Article I Section 11 of the Virginia Constitution provides in part that no property shall be taken or damaged except for public use and also provides that it 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. The condemnor has the burden of proof that the use is public without a presumption. See Virginia Code Section 1-219.1(D) & (E).
The courts will not review a locality’s reasons or statement of necessity for condemnation unless the locality has arbitrarily or capriciously exercised its discretion or there is a showing of manifest fraud. See Hoffman Family, LLC v. City of Alexandria, 272 Va. 274, 286 (2006) citing cases. In other words, the “declaration of necessity is not a statement of public purpose….” Id. at 288. While it is therefore almost impossible to challenge the necessity of a taking or the type or amount of the taking on a necessity ground, public use is different, as “what constitutes a public use is a judicial question to be decided by the courts.” Hoffman Family, LLC , 272 Va. at 286 citing City of Richmond v. Carneal, 129 Va. 388, 393-94 (1921). The determination whether a condemnor’s intended use qualifies as a public use requires consideration of the facts and circumstances of the particular case. See Hoffman Family, LLC , 272 Va. at 286. The public interest must dominate the private gain. See Mumpower v. Housing Authority of Bristol, 176 Va. 426, 448 (1940); Light v. City of Danville, 168 Va. 181, 201 (1937). Furthermore, “[T]he right of the public to receive and enjoy the benefit of the use is the determining factor whether the use is public or private.” Light v. City of Danville, 168 Va. at 209.
Caroline County, Virginia is currently facing a “public use” challenge by a landowner to its condemnation of 11 acres of farmland to construct a water in-take facility from the Rappahannock River. Landowner’s counsel claims the project is unconstitutional because it is premature and unconnected to a fixed and definite public use alleging the County wants to bank the property now with no immediate public purpose. It has been reported that the landowner believes the purpose of the proposed water in-take project is for economic development including more residential subdivisions and the promise of corporate computer data storage centers which require significant amounts of water for industrial cooling of the computer equipment.
County officials claim that the water woes have been thoroughly investigated over the last 20 years and they must turn to surface water instead of groundwater for public consumption because of new regulations on groundwater due to declining levels of water in eastern Virginia acquifers. The County applied for permits from the Virginia Department of Environmental Quality (DEQ) and the Virginia Marine Resources Commission (VMRC) for the in-take of surface water. The DEQ tentatively approved the plan for the water in-take facility. A 2020 DEQ Report found that aquatic life in the Rappahannock River will only be minorly affected by the project. The VMRC has not yet responded to the County’s request for approval of the plan.
The Court may undertake an analysis of the relevant facts to evaluate the constitutionality of the proposed acquisition through the use of eminent domain in order to determine whether the primary purpose of the proposed County project for intake of surface water is for public use of potable water or private/corporate use for economic development.
Marshall Winslow is a Pender & Coward attorney in the firm’s Eminent Domain / Right of Way Practice Group focusing his practice on eminent domain/right of way and construction matters.
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