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Addressing Landowner Arguments for Stricter Review of Public Projects in the Wake of the 2013 Eminent Domain Amendment

April 29, 2021

The amendment to Article I, section 11 of the Virginia Constitution that became effective January 1, 2013, restricted the power of eminent domain and expanded the right to compensation in certain clearly defined ways.  It also included two broader policy statements that counsel for landowners have seized upon to argue that courts should subject takings to more scrutiny than in the past.  While these arguments have a surface appeal, a closer examination reveals that they should be rejected.

The Arguments

The first provision that is often seized on by landowners is the declaration that the right to private property “is fundamental.”  Va. Const. art. I, § 11.  Landowners sometimes argue that this declaration means that courts should apply something akin to strict scrutiny to public projects such that a taking will only be allowed when it is the least burdensome option available to fulfill the public use.  See Mahan v. National Conservative Political Action Committee, 227 Va. 330, 336, 315 S.E.2d 829, 832 (1984) (describing the strict scrutiny test as requiring a statute to be the least burdensome means available for attaining a compelling governmental interest).  This stands in contrast to the rule that existed under previous case law, which afforded great discretion to condemning authorities such that the projects are only reviewed for abuse of discretion under the much more lenient arbitrary and capricious standard.  Va. Electric & Power Co. v. Webb, 196 Va. 555, 564-65, 84 S.E.2d 735, 740 (1954).  The other provision that landowners look to states that “[n]o more private property may be taken than necessary to achieve the stated public use.”  Va. Const. art. I, § 11.  Landowners argue that this provision requires the court to afford more scrutiny to the amount of property taken in an eminent domain case and, if it is found that the condemning authority did take more property than necessary, order the case to be dismissed.

Judicial Response

Unfortunately for landowners, these arguments have had little to no success in court.  The Supreme Court of Virginia has not adopted these arguments.  None of the cases it has decided in the interim has hinged on either provision, but the court also has not signaled any greater scrutiny of takings.  See, e.g., Palmer v. Atl. Coast Pipeline, 293 Va. 573, 583-84, 801 S.E.2d 414, 419-420 (2017) (noting that the amendment declared property rights to be “fundamental” but rejecting the landowner’s contention that the amendment overruled previous case law that recognized condemning authorities’ right to enter property for preliminary surveys and studies).

While the appellate courts have largely been silent on the arguments, the trial courts have almost uniformly rejected them.  One court rejected a landowner’s argument that the court should scrutinize a condemning authority’s decision as to the amount of property taken because the two provisions did not signal a rejection of prior precedent.  See Commissioner of Highways v. Sadler, 93 Va. Cir. 74, 83 (Petersburg 2016) (noting that a court only has a limited role in reviewing the amount of property taken and rejecting the argument that the amendment changed that role because it “announces a commonly understood fundamental right to private property ownership”).  In another case, a landowner advocated for a review of the necessity of a taking that was akin to strict scrutiny, arguing that a taking should only be approved if there is no other way to achieve the public use for which the property is being taken.  The court rejected the argument, citing a pre-amendment Supreme Court of Virginia case called Hamer v. School Board of City of Chesapeake, 240 Va. 66, 393 S.E.2d 623 (1990), which held that questions regarding the location of a project or the amount of land taken are only reviewable if the discretion afforded the condemning authority is arbitrarily or capriciously exercised or in cases of manifest fraud.  Finding no evidence of arbitrary selection or fraud in that case, the court rejected the landowner’s argument.  Commissioner of Highways v. Clevinger, No. 516-17, 2020 Va. Cir. LEXIS 154, at *9 (Buchanan Aug. 17, 2020).  Even in a case where a landowner successfully argued that a condemning authority took more property than necessary, the court applied the Hamer test to make the finding.  See City of Chesapeake v. KH HR Two Great Bridge, LLC, 91 Va. Cir. 16 (Chesapeake 2015) (ruling that the landowner had met its burden of showing the city acted arbitrarily and capriciously in the amount of property taken and that the city had failed to show that the issue was fairly debatable).

Defeating the Arguments

Until the Supreme Court of Virginia weighs in, the best way to approach the arguments made by landowners is to adopt the rationale of the trial courts that have rejected them to this point.  Thus, the rejoinder should be that both the provisions are declarative of pre-existing law and so do not signal that the courts should depart from controlling precedent.  See, e.g., Raleigh Court Corp. v. Faucett, 140 Va. 126, 138, 124 S.E. 433, 436 (1924) (“Private ownership of property is one of the fundamental rights of the citizen not surrendered by entering into organized government.”); Webb, 196 Va. at 564-65, 84 S.E.2d at 740 (stating that a condemning authority has discretion as to the amount of property taken, but noting that the discretion can be reviewed for abuse).  That should be sufficient to convince the court that existing law, which affords condemning authorities great discretion and calls for only limited review of their decisions, should apply.

Matt Hull is a Pender & Coward attorney focusing his practice on eminent domain/right of way and local government matters.

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