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Virginia's Eminent Domain Laws and Property Rights

Property Rights in the State of Virginia

Virginia’s private property rights protections have not always been as strong as the traditions of its Founding Fathers would lead one to expect.  However, in the last twenty years many fundamental changes have been made to the use of the power of eminent domain.  Property owners can now rely on far fairer treatment then they had before the turn of the century when the government could take property without giving an owner notice, without providing the appraisal on which they based their offer, without providing the plan sheets to show what would happen to the property and a host of other practices that left property owners disadvantaged and shortchanged in the condemnation process.

Following the United States Supreme Court’s 2005 Kelo decision, a grassroots movement led to the amendment of Article I, Section 11 of the Virginia Constitution, in 2012.  The 2012 Property Rights amendment declared the right to own private property to be a fundamental right and stopped takings of private property from one owner to be given to another owner whose use was preferred by the government.  Eminent domain can no longer be used for the private profit of a private company.

While much progress has been made, much still needs to be done to ensure that property owners are playing on a level playing field with the government condemning their property.

Meet OCA's Virginia Attorney

Joshua E. Baker

Joshua E. Baker

Josh Baker is a partner in the firm Waldo & Lyle, P.C. in Norfolk, Virginia. Waldo & Lyle was formed in 1999 and focuses its practice exclusively on representing landowners in eminent domain and inverse condemnation actions throughout Virginia and the District of Columbia.

A Summary of Virginia's Eminent Domain Laws

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Laws?

    The state has the inherent power of eminent domain and can delegate the power to other political subdivisions, including Cities and Counties, or to regulated utilities. The Virginia Supreme Court has found the eminent domain power to be a legislative power. While the state has condemnation power, inherent in its authority, the Virginia general assembly has also granted numerous public and private entities. Some examples of this include: Virginia Public Building Authority; Virginia Aviation Board; Commonwealth Transportation Commissioner (VDOT); Metropolitan Washington Airports Authority; Department of Conservation and Recreation; Localities; Sewer Authorities; Hospital Commissions; Public Service Corporations; Railroads; The Virginia Port Authority; Housing Authorities; Utility Cooperatives; Drainage Districts; Sanitation Commissions; School Boards; and Electric Authorities.

    Under Virginia law, statutes granting powers of eminent domain are strictly construed against the party seeking to exercise the power, and in favor of the property owner. Entities attempting to exercise the power of eminent domain must show they have the authority to do so, and that they have complied with a number of jurisdictional prerequisites before condemning private property for a public use.

  • What Are the Legal Requirements For Exercising the Power?

    The exercise of the power of eminent domain is strictly governed by statute. These statutes are strictly construed against the condemning authority and in favor of the property owner. The governmental entity must have the authority to condemn private property and the purpose for which the private property is being taken must be a public use as defined by the Virginia Constitution at Article I, Section 11.

    Before condemning private property through eminent domain proceedings, a condemning authority must make a good faith attempt to purchase the property or rights sought, must provide the property owner with an appraisal of the property (if the value of the property acquired exceeds $25,000), must provide the owner with plan sheets which adequately show the property being acquired, and must provide the owner with a title report for the property.

    Additional guidance for the requirements imposed on The Commissioner of Highways (VDOT) can be found in Va. Code §§ 33.2-1000 et seq. Similarly, there are additional requirements for localities, which must adopt a sufficient resolution or ordinance approving the taking. Public utilities must obtain a certificate of public convenience and necessity from the State Corporation Commission.

  • What Limitations or Defenses Exists?

    If the condemning agency has eminent domain power and is exercising for a constitutionally approved “public use,” then Virginia law provides only limited grounds to challenge condemnation proceedings once the decision to proceed with a public project and acquire private property has been made.

    However, an owner may challenge the “public use” that is stated for the project without a presumption that the public use is authorized.

    An owner may challenge whether or not a condemnor has met the condemnation prerequisites of Va. Code § 25.1-204, for example, failure to provide a title report, failure to make a good-faith offer to purchase the property, etc.

    Importantly, an owner is also free to challenge the condemnation on the grounds that more property than necessary is being taken for the stated public use. Virginia law only authorizes a condemning authority to acquire what is necessary for it to accomplish the stated public use, if the condemning authority seeks to acquire more property or rights than what it actually needs, a landowner may seek to invalidate the taking.

  • What Constitutes a Public Purpose?

    Virginia law only authorizes the taking of private property for a “public use,” and not merely for a public purpose. Virginia’s Constitution and Virginia Code § 1-219.1(A) define a public use be only when: (i) the property is taken for the possession, ownership, occupation and enjoyment of by the public or a public corporation; (ii) the property is taken for construction, maintenance or operation of public facilities, public corporations, or by a private entity where there is a contract providing for use of the facility by the public; (iii) the property is taken for the creation or functioning of a public service company or corporation or a railroad; (iv) the property is taken for the provision of any authorized utility service by government utility corporation; (v) the property is taken to eliminate blight, provided the property itself is blighted; or (vi) the property is taken in a redevelopment or conservation area and is abandoned, or the acquisition is needed to clear title and where one or all of the owners agree to such acquisition.

  • How is Just Compensation Determined?

    In Virginia, just compensation means putting the owner of private property in as good a position monetarily after the take as he or she was in before the take. The property must be valued, based on its highest and best use, as of the date of take, to determine the property’s fair market value before and after the taking. The general formula for determining just compensation is to value the property taken and to determine whether the property remaining after the taking suffers a diminished value (damages). Just compensation is the equivalent of the value of the property taken plus the amount of diminished value of the remaining property. Under Virginia law, in order to determine just compensation, everything that affects market value should be considered. Importantly, in Virginia, the landowner has the burden of proving whether any damages have occurred to the property by the greater weight of the evidence.

    Just compensation may also include evidence of “adjustment” or “cure” costs associated with restoring the remaining property to its before-take condition. These costs are only paid in place of damages, and not in addition to damages.

    If the condemnation case proceeds to trial – the owner has the option to select either a jury of land owners, a panel of land commissioners or a judge to determine the amount of just compensation owed. In Virginia, the jury or land commissioners in eminent domain cases must be landowners in the jurisdiction where the case is being tried.

    Virginia law also recognizes that owners may be compensated for lost profits and lost access in connection with the taking. Lost profits claims are typically made separate from the condemnation action. In certain circumstances, owners or business operators may also be entitled to relocation assistance as well, separate and apart from just compensation.

  • How is Fair Market Value Defined?

    Virginia law defines “fair market value” in a condemnation case as “the price which one, under no compulsion, is willing to take for property which he has for sale, and which another, under no compulsion, being desirous and able to buy, is willing to pay for the article.” See Talbot v. City of Norfolk, 158 Va. 387, 391-92 (1932). Virginia law requires that the fair market value be determined as of the date of the take – which in quick-take cases, is the date of the filing of a Certificate of Take or Certificate of Deposit; in slow-take condemnation cases, the date of the taking is the date which the Petition for Condemnation is filed with the Court. Importantly, in condemnation matters, the fair market value of the subject property is determined based on the property’s highest and best use on the date of take.

  • What About Recovering Damages to Remaining Property?

    Virginia’s Constitution requires the payment of just compensation for property “damaged or taken.” Under Virginia law, just compensation includes any diminution in value (damages) to an owner’s remaining property. When a condemning authority takes part of an owner’s property, it must pay both for the property/rights actually taken, and for any loss or decrease in value caused to the remaining property by virtue of the taking. Virginia law requires that the owner be put in as good a position monetarily as he or she was in before the taking occurred. In Virginia, an owner only gets one opportunity to be compensated for a taking, so it is important that the owner be fully and fairly compensated, including any damages during the condemnation proceedings. In addition, when analyzing the damage to remaining property, it is presumed that the condemning authority will exercise the rights it has (or will) acquire to the fullest extent. This ensures the owner receives full compensation for the damages imposed by the public use project.

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    Virginia law allows for an owner to recover reimbursement of costs and expert fees if an owner receives an amount at trial 25% or more greater than the condemnor’s initial written offer. This reimbursement is to be made by the court upon its determination of the reasonable costs, excluding attorneys’ fees, as well as reasonable fees and travel costs, including reasonable appraisal and engineering fees for up to three experts, or as many experts as the condemnor has testify at trial, whichever is greater. See Va. Code § 25.1-245.1

    Additionally, under Virginia law, an owner may have their costs associated with discovery reimbursed by a condemnor, if the condemnor initiates discovery.

    Unlike some other states, Virginia law does not allow for the recovery of attorneys’ fees in condemnation matters as a part of just compensation. However, an owner may recover attorneys’ fees when a condemning authority abandons its taking. See Va. Code §§ 25.1-249, 25.1-419. If an owner brings a successful inverse condemnation claim they may also have their attorneys’ fees reimbursed pursuant to Va. Code §§ 25.1- -420.

  • Can the Government Take Possession of the Landowner's Property Before Final Compensation is Paid?

    Virginia law authorizes the “quick take” eminent domain power, which allows the government to acquire property and construct its project before a jury renders a just compensation verdict. To do so, the government must deposit with the Court its estimated value of just compensation and record a Certificate of Take. An owner is permitted to withdraw the deposited sum and still challenge the total amount of just compensation to be paid.

    Prior to 2017 the government did not have to provide notice to a property owner of when it had legally taken title to the condemned portions of property. Waldo & Lyle sponsored legislation that requires property owners to be given advance notice of when property will be legally condemned and a copy of the recorded Certificate of Take so that property owners are aware of their rights.

Virginia

Joshua E. Baker
Waldo & Lyle, PC
301 Freemason Street
Norfolk, VA 23510
Tel:(757) 622-5812 | Fax:(757) 622-5815
jeb@waldoandlyle.com | www.waldoandlyle.com

Josh Baker joined Waldo & Lyle in 2006 and has over 14 years of experience representing landowners in both condemnation and inverse condemnation matters in both federal and state courts. Josh’s keen understanding of property valuations and Virginia laws make him an outstanding advocate for property owners. Josh currently serves as the Managing Partner at Waldo & Lyle and became Virginia’s OCA Representative in 2018.

Professional Activities

  • Chairman, CLE International Virginia Eminent Domain Seminar, 2016-Present
  • Presenter, CLE International Virginia Eminent Domain Seminar, Common Areas in Subdivisions: A Study in Highest and Best Use (2017)
  • Presenter, CLE International Virginia Eminent Domain Seminar, Rare, Unique and Unusual Easement:  What Rights Can Be Taken?  (2016)
  • Virginia Super Lawyers, Rising Star, 2012-Present
  • Presenter, CLE International Virginia Eminent Domain Seminar, Property Rights: Are Less Than Fee Interests Worth Anything in Condemnation? (2015)
  • Presenter, CLE International Virginia Eminent Domain Seminar, Unity of Lands: Do I Have One Parcel? (2014)
  • Presenter, CLE International Virginia Eminent Domain Seminar, Latest Trends in Mediation: New Strategies to Resolve Disputes (2013)
  • Presenter, CLE International Virginia Eminent Domain Seminar, Recovering Compensable Costs: What Your Colleagues Do Not Know (2012)
  • Member, Brigham-Kanner Property Rights Conference Journal Advisory Board, 2013-Present
  • Co-Author (with Joseph T. Waldo), Damages from Transmission Corridors and Transmission Lines, The Practical Real Estate Lawyer, January 2012
  • Presenter, CLE International Virginia Eminent Domain Seminar, Housing Authority Projects: New Laws, New Rules, Old Plans (2011)
  • Author, Virginia’s Property Owners Are Not Safe From Kelo-Styled Economic Takings, The Fee Simple, Vol. XXX, No. 2, May 2010
  • Author, Note “Quieting the Clang: Hathcock as a Model of the State-Based Protection of Property Which Kelo Demands,” Volume 14 William & Mary Bill of Rights Journal Issue 1 (2006) (Available at 14 Wm. & Mary Bill Rts. J. 351).
  • Executive Articles Editor, William & Mary Bill of Rights Journal Volume 14

Professional Membereships

  • Virginia Member, Owners Counsel of America
  • Norfolk and Portsmouth Bar Association, 2007-present
  • Chair, Young Lawyers Section, 2011-2012
  • Treasurer, Young Lawyers Section, 2010-2011
  • The Federalist Society
  • Virginia State Bar

Civic Involvement

  • Hillsdale College President’s Club Member
  • Hillsdale College Admissions Assistance Program, Volunteer
  • Alzheimer Association, Alois Society Member

Education

  • Hillsdale College Hillsdale, Michigan (B.A., 2001)
  • College of William and Mary Marshall-Wythe School of Law (J.D., 2006)

Bar Admissions

  • Virginia

Josh Baker joined Waldo & Lyle in 2006 and has over 14 years of experience representing landowners in both condemnation and inverse condemnation matters in both federal and state courts. Josh’s keen understanding of property valuations and Virginia laws make him an outstanding advocate for property owners. Josh currently serves as the Managing Partner at Waldo & Lyle and became Virginia’s OCA Representative in 2018.

Professional Activities

  • Chairman, CLE International Virginia Eminent Domain Seminar, 2016-Present
  • Presenter, CLE International Virginia Eminent Domain Seminar, Common Areas in Subdivisions: A Study in Highest and Best Use (2017)
  • Presenter, CLE International Virginia Eminent Domain Seminar, Rare, Unique and Unusual Easement:  What Rights Can Be Taken?  (2016)
  • Virginia Super Lawyers, Rising Star, 2012-Present
  • Presenter, CLE International Virginia Eminent Domain Seminar, Property Rights: Are Less Than Fee Interests Worth Anything in Condemnation? (2015)
  • Presenter, CLE International Virginia Eminent Domain Seminar, Unity of Lands: Do I Have One Parcel? (2014)
  • Presenter, CLE International Virginia Eminent Domain Seminar, Latest Trends in Mediation: New Strategies to Resolve Disputes (2013)
  • Presenter, CLE International Virginia Eminent Domain Seminar, Recovering Compensable Costs: What Your Colleagues Do Not Know (2012)
  • Member, Brigham-Kanner Property Rights Conference Journal Advisory Board, 2013-Present
  • Co-Author (with Joseph T. Waldo), Damages from Transmission Corridors and Transmission Lines, The Practical Real Estate Lawyer, January 2012
  • Presenter, CLE International Virginia Eminent Domain Seminar, Housing Authority Projects: New Laws, New Rules, Old Plans (2011)
  • Author, Virginia’s Property Owners Are Not Safe From Kelo-Styled Economic Takings, The Fee Simple, Vol. XXX, No. 2, May 2010
  • Author, Note “Quieting the Clang: Hathcock as a Model of the State-Based Protection of Property Which Kelo Demands,” Volume 14 William & Mary Bill of Rights Journal Issue 1 (2006) (Available at 14 Wm. & Mary Bill Rts. J. 351).
  • Executive Articles Editor, William & Mary Bill of Rights Journal Volume 14

Professional Membereships

  • Virginia Member, Owners Counsel of America
  • Norfolk and Portsmouth Bar Association, 2007-present
  • Chair, Young Lawyers Section, 2011-2012
  • Treasurer, Young Lawyers Section, 2010-2011
  • The Federalist Society
  • Virginia State Bar

Civic Involvement

  • Hillsdale College President’s Club Member
  • Hillsdale College Admissions Assistance Program, Volunteer
  • Alzheimer Association, Alois Society Member
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