Eminent Domain

We support enacting a Constitutional amendment paralleling the eminent domain laws enacted in 2007 to close loopholes in Virginia’s law that are a result of the Kelo decision.

We recommend that legislation requiring employees of a condemning entity or by a subcontractor notify landowners of their regular maintenance activities on the property and compensate landowners for any damage to crops, land, livestock, or equipment as a result of the activities.

Constitutional Amendment Needed to Ensure Property Right Protections

In Kelo v. The City of New London, Connecticut decision, the “Public Use” clause was replaced with a broader “Public Purpose” clause. Therefore, land could be condemned for economic benefit by a governmental entity and transferred to a nongovernmental entity. Virginia’s statutory law was amended in 2007 to clarify and strictly define public use and/or public necessity and not broaden its meaning like in the authority given in Connecticut. Now, the process needs to be started to enact a Constitutional amendment giving these same protections.

Virginia’s legislative solution specifically provided that property can only be taken when the public interest dominates the private gain and the primary purpose of the taking is not private financial gain, private benefit, an increase in tax base or revenues, or an increase in employment. It also provided that a property owner may challenge that a taking is a pretext for an unauthorized use. The legislation protected well kept property that is in a redevelopment area from being taken for blight by placing new limitations upon the Housing Authorities ability to condemn for blight.  Similar type language needs to be developed for a Constitutional amendment.

Notification by Condemning Authority for Maintenance Activities

Legislation was clarified that landowners be notified before entry onto land prior to condemnation in the 2005 General Assembly. However, these changes did not require the condemning authority or their subcontractors to notify the landowner of damages that occurred to crops and equipment as a result of those activities, or the loss of escaped livestock from fences left open. Virginia farmers and landowners should be notified before a condemning authority places limbs or debris on their land, cross their fields, or fenced in pastures to access public utilities for regular maintenance.

Reasons for Position

1. Constitutional protection of property rights prevents a weakening of statutory provisions. 
   
   
2. Virginia farmers suffer damages to crops, loss of livestock from gates being left open, and debris piled on their land.  They should be notified of regular maintenance activities if their land is being used to access the easement or utility.