1.3 Substantive Prerequisites to Condemnation

• Library: Eminent Domain Law in Virginia (Virginia CLE) (2017 Ed.)

1.3 SUBSTANTIVE PREREQUISITES TO CONDEMNATION

1.301 Public Use as a Precondition to Condemnation. Any property acquired by the use of the eminent domain process must be for a "public use." The definition of "public use" is controlled by section 1-219.1, which supersedes any broader definitions elsewhere in the Virginia Code. ¹²² Section 1-219.1 provides that the term "public uses" used in Article I, Section 11 of the Constitution of Virginia is defined as the acquisition of property where:

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1.	The property is taken for the possession, ownership, occupation, and enjoyment of property by the public or a public corporation 123 ;
2.	The property is taken for construction, maintenance, or operation of public facilities by public corporations or by private entities provided that there is a written agreement with a public corporation providing for use of the facility by the public;
3.	The property is taken for the creation or functioning of any public service corporation, public service company, or railroad;
4.	The property is taken for the provision of any authorized utility service by a government utility corporation;
5.	The property is taken for the elimination of blight, provided that the property itself is a blighted property; or
6.	The property taken is in a redevelopment or conservation area and is abandoned or the acquisition is needed to clear title where one of the owners agrees to such acquisition or the acquisition is by agreement of all the owners.

Public facilities are defined as:

1.	Airports, landing fields, and air navigation facilities;
2.	Educational facilities;
3.	Flood control, bank and shore protection, watershed protection, and dams;
4.	Hospital facilities;
5.	Judicial and court facilities;

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6.	Correctional facilities, including jails and penitentiaries;
7.	Library facilities;
8.	Military installations;
9.	Parks so designated by the Commonwealth or by the locality in its comprehensive plan;
10.	Properties of historical significance so designated by the Commonwealth;
11.	Law enforcement, fire, emergency medical, and rescue facilities;
12.	Sanitary sewer, water, or stormwater facilities;
13.	Transportation facilities, including highways, roads, streets, bridges, traffic signals, related easements and rights of way, mass transit, ports, and any components of federal, state, or local transportation facilities;
14.	Waste management facilities for hazardous, radioactive, or other waste;
15.	Office facilities occupied by a public corporation; and
16.	Such other facilities that are necessary and directly related to the construction, maintenance, or operation of a public facility as listed in clauses (1) through (15).

Section 1-219.1(C) specifically provides that no more private property may be taken than that which is necessary to achieve the stated public use. Furthermore,

[e]xcept where property is taken (i) for the creation or functioning of a public service corporation, public service company, or railroad; (ii) for the provision of any authorized utility service by a government utility corporation; or (iii) for sanitary sewer, water or stormwater facilities, or transportation facilities . . . by a public corporation, property can only be taken where the public interest dominates over private gain and the primary purpose is not private

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financial gain, private benefit, an increase in tax base or tax revenues, an increase in employment, or economic development. ¹²⁴

1.302 Judicial Determination of Appropriate Public Use. The 2012 amendment to Article I, Section 11 of the Virginia Constitution provides that the "condemnor bears the burden of proving that the use is public, without a presumption that it is." Thus, any case discussed in this section, to the extent that it turns on the burden of proof, is no longer valid law. What constitutes public use has also been limited. There may be aspects of decisions discussed in this section that are still "good law" and, therefore, may still be consulted with the caveat that the constitutional amendment's effect on the prior holding must now be considered.

Whether a use is public or private is a judicial question determined by the character of each use. ¹²⁵ For example, in Ottofaro v. City of Hampton, ¹²⁶ condemning the right of way shown on a comprehensive plan was for a public use even though the exact location was not specified in the enabling resolution and even though the road was to be built by a private developer who, along with the traveling public, benefited from the construction. The court held that land was properly taken for public use as a roadway even though the city planned to transfer the residue to an industrial development authority, which would then lease the property to a private developer. The road was shown on the comprehensive plan, owned by the city, and used by the public. The court also held that the enabling resolution or ordinance required by section 15.2-1903(B) need not include a fixed and definite description of the road. The city's statement that the acquisition was to improve the city's transportation network, provide access to underutilized property within the city, and reduce traffic flow was sufficient. Finally, the court held that the council's direction to the city attorney to...