This week we have a somewhat unusual case, where the Virginia Supreme Court has struck down a statute that does not on the face of it purport to involve the use of eminent domain power, as a violation of Article I, Section 11 of the of the Virginia Constitution, which we usually think of as the eminent domain portion of Virginia’s Constititution. Article I, Section 11, provides as follows:
That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.
In the current case, Norfolk S. Ry. Co. v. State Corp. Comm’n, 2025 Va. LEXIS 27 (Va. 2025), Norfolk Southern Railway Company (“Norfolk Southern”) challenged the constitutionality of Code § 56-16.3, a statute that permits broadband service providers to install fiber optic cables across railroad property. In 2023, the General Assembly enacted Code § 56-16.3 to promote the expansion of broadband services in the Commonwealth. The statute provides a framework that allows a broadband service provider to install fiber optic cables across railroad property.
In the spring of 2024, Cox Communications Hampton Roads, LLC (“Cox”), filed three applications to install fiber optic cables across Norfolk Southern’s railroad tracks in New Kent County. Cox intended to run the fiber optic cables through underground conduits that would be installed beneath the railroad tracks. After reviewing the applications, Norfolk Southern advised Cox that it did not object to the proposed crossings. Norfolk Southern forwarded a draft licensing agreement to Cox, requesting license fees for the proposed crossings. Cox refused to execute Norfolk Southern’s licensing agreement, asserting that the proposed crossings and corresponding license fees were governed by Va. Code § 56-16.3. Cox advised Norfolk Southern that it intended to proceed with the construction of the crossings without entering into the licensing agreement. Norfolk Southern filed a petition for relief with the Commission. Among other things, Norfolk Southern asserted that Va. Code § 56-16.3 violated Article I, Section 11 of the Constitution of Virginia as Cox was a private, for-profit company. The Commission rejected Norfolk Southern’s arguments without holding a hearing concerning the matter. Norfolk Southern noted an appeal to the Supreme Court of Virginia, and the Supreme Court of Virginia reversed.
Arguably the Supreme Court of Virginia could have gotten where it ended up in this opinion with quite a bit fewer words than it did, and much of the extra verbiage seems to be making sure to send a message that the Virginia Constitution is deliberately contrary to the holding of Kelo v. New London. (If you’d like to read a writeup that deals with the Court’s interaction here with Kelo v. New London, Rob Thomas over at www.inversecondemnation.com has a writeup on this opinion that addresses that).
When we are dealing with eminent domain cases, we are usually dealing most directly with the sentence in Article I, Section 11, that says “No private property shall be damaged or taken for public use without just compensation to the owner thereof.” Although the Court does not point it out in so many words, this particular opinion really deals with the previous sentence in Article I, Section 11 of the Virginia Constitution which says “That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.” (Notice how different from and much more restrictive than the Fith Amendment to the U.S. Constitution this is, where the Fifth Amendment only says “nor shall private property be taken for public use, without just compensation.”). Boiled down, if a Virginia statute purports to take private property for a private use rather than a public use, then that statute is unconstitutional under Virginia law. Because Va. Code § 56-16.3 takes private property for private use, it is unconstitutional.
Stated that way, it seems pretty obvious, and thus the interesting part of this opinion may be in what it does not say, and what it seems to set up. In analyzing that Va. Code § 56-16.3 is not for a public use, the Court references a different statute:
Although Code § 56-16.3 cites the Commonwealth’s “stated policy to promote the rapid deployment of broadband,” Code § 56-16.3(G), it does not state that the crossings authorized by the statute are for a “public use.” A statute addressing similar subject matter, however, has indicated that the use of an easement for the expansion of broadband services is not a “public use.” Code § 55.1-306.1 permits certain utility easements to be used for the expansion of broadband and other communication services. While the statute recognizes that such a use of utility easements is in the “public interest,” Code § 55.1-306.1(B)(2), it clarifies that “[n]othing in this section shall be deemed to make the use of an easement for broadband or other communications services . . . a public use for the purposes of [Code] § 1-219.1, or other applicable law,” Code § 55.1-306.1(B)(6).
Although the Court says nothing about the constitutionality of Va. Code § 55.1-306.1, which would not have been before it in this case, the reference to it seems to beg the question: if Va. Code § 56-16.3 is unconstitutional under this analysis, then what about Va. Code § 55.1-306.1 ?
Ross Greene, CRE, SR/WA is a firm shareholder and chair of the firm’s Eminent Domain / Right of Way Practice Group. He focuses his practice in the areas of eminent domain, real estate, wills, trusts, estates, and business matters.
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