1.2 STATUTORY CONSIDERATIONS
1.201 Delegation of Eminent Domain Power and Territorial Limits. 7 Sections 25.1-101, 15.2-1901.1, and 15.2-1907 of the Virginia Code statutorily extend the eminent domain power to state agencies, localities, and the Commonwealth Transportation Board. Other statutes specifically grant condemnation power to special governmental entities such as public authorities. Under section 15.2-1901, cities and towns may acquire property through eminent domain outside of their boundaries without any specific grant of authority when condemning for public utilities or transportation purposes. For any other public purpose, cities and towns must have a specific grant of authority to condemn outside their boundaries. For example, towns could not condemn in a county for a town school site. 8 Counties are limited to using their eminent domain power within their boundaries unless a special act or general law specifically extends authority to condemn beyond their boundaries. The Governor, on behalf of the Commonwealth, may acquire by condemnation satellite service facilities for the General Assembly in areas "near" the capitol upon a majority vote of the members of the General Assembly. 9 For other extraterritorial authority see section 15.2-1907 relating specifically to water systems and sections 15.2-1907.1 and 25.1-109 regarding additional restrictions on condemning land as compensatory mitigation for adverse effects on wetlands.
1.202 Delegation of the Eminent Domain Power to Subordinate State Agencies and Units of Local Government. The General Assembly may delegate the eminent domain power to subordinate agencies (for example, the Virginia Department of Transportation (VDOT)) or subordinate units of government created by the General Assembly (counties, cities, towns, public authorities, districts, and school boards). Rather than separate references to condemnation restrictions based on status such as a county, city, or town, Title 15.2 of the Virginia Code now generally uses the term
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"locality" to encompass counties, cities, and, towns "as the context may re-quire." 10
Virginia courts require that statutes delegating the eminent domain power be strictly construed against the condemnor, thereby requiring complete compliance with all preconditions to the taking of property. 11 The Federal District Court for the Eastern District of Virginia likewise required a landowner who attempted to turn a condemnation case into a section 1983 civil rights claim to make precise and specific allegations of procedural irregularities or unconstitutional animus to support the claim. 12 Subordinate agencies may not delegate their authority to condemn. 13 Accordingly, governmental entities that are delegated the power of eminent domain may not relinquish or surrender the power to condemn land needed for public safety purposes. An airport commission, in acquiring an easement permitting removal or topping of trees, may not give up the right to condemn any of the landowner's property. 14
However, with the court's approval, parties to condemnation actions may agree to waive strict compliance with the statutes and such agreements will be enforced against the condemnor. 15 In contrast, in HMK Corp. v. Chesterfield County, 16 the district court held that as a condition to agreeing to review road plans for the developer's needs, a county could not constitutionally require the property owner to agree to a non-statutory alternative method of valuing his road right of way for future acquisitions by the county within the development area.
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Statutes have delegated the power of eminent domain to the following entities for various public purposes:
A. Counties. Under Title 15.2, historically different county and city powers to condemn have largely been equalized and include the following public purposes. 17
1. Roads and Bridges. 18 Under section 15.2-2233, localities may "hold," for up to 120 days, applications for building permits for construction in any future or proposed right of way in order to give the locality time to acquire the property by condemnation.
2. Acquisition of Remnants in Connection with Public Right-of-Way. Condemnors may condemn portions of any lot or other subdivision of property not needed for public rights of way when the residue after the taking is not suited for development. 19
3. Airports. 20
4. Sanitary Landfills and Other Waste Disposal Facilities. 21
5. Parks, Recreational Facilities, Sports Facilities, Playgrounds, and Swimming Pools. Chapter 18 of Title 15.2 extends to localities the power to condemn property for parks, recreational facilities, sports facilities, and swimming pools. In addition, any county or city within which a sanitary district has been established may condemn property for parks, recreational facilities, and swimming pools. 22 Under section 15.2-1801, localities may condemn real property "adjoining" or "in the vicinity of" public property to protect its beauty or usefulness. Property may be condemned for a
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park only if the park is so designated by the Commonwealth or by the locality in its comprehensive plan. 23
6. Drainage. 24 Allegations that a municipality's actions caused an increase in the downstream flow of water onto a piece of land alone were sufficient to meet the pleading requirements under state law and the Fifth Amendment to state an inverse condemnation cause of action. 25 However, under the Fifth Amendment, diminution in value alone will not support an inverse condemnation claim.
7. Educational Purposes Such as Schools and Related Facilities. 26
8. Waterworks, Gasworks, Mass Transit, Storm Water Management, and Other Public Utilities. 27 A government utility corporation (for example, a county or municipality, including an entity or agency thereof, that provides or operates utility services) is considered to be acting as a public service corporation with regard to the provision of authorized utility services for the purposes of any taking of private property by eminent domain. 28 A locality may not acquire a public utility operated by another locality or all of a public utility's natural gas or electric power systems or facilities within the locality's limits unless the acquisition is approved by referendum or agreed to by the utility. The requirement of consent or use of a referendum does not apply to certain cities or counties that use methane gas from landfills to create electricity. Cities and towns that provided electric service as of January 1, 1994, are exempt from the referendum requirement
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with regard to electric power. 29 The authority of a city or town under section 56-265.4:2 to acquire by eminent domain the distribution facilities of an electric utility serving an annexed area does not extend to a shire, borough, or other subdivision of a city or town or to additions of territory by consolidation, merger, or other voluntary means.
9. Waterworks Systems. 30
10. Sewerage Systems. 31
11. Cemeteries. 32 Relying on statutory and charter authority outside Title 25.1, the Virginia Attorney General opined that the City of Falls Church can condemn land owned by a private cemetery association devoted to cemetery use for the purpose of straightening a curve in the street. 33 The Attorney General also opined that the specific authority granted to condemn land to operate an airport prevails over the general statutory prohibition of condemnation of cemetery property. 34
12. Courthouse and Parking Areas. 35
13. Hospitals. 36
14. Housing. 37 A local governing body acting on behalf of a housing authority may condemn real property for renovation, rehabilitation, and redevelopment for housing.
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15. Wharves, Piers, or Docks for Public Harbor Facilities. 38
16. Historic Areas, Landmarks, Buildings, Structures, or Land in Order to Preserve Historic Sites. Section 15.2-2306 of the Virginia Code applies to all localities, but the power may be exercised only if, in the opinion of the governing body, the area must be acquired for the "use, observation, education, pleasure and welfare" of its citizens and the historical value of what is to be condemned is "about to be destroyed."
B. Cities. 39 Cities generally have the same condemnation authority as counties, although they have some additional authority outside of their boundaries regarding public utilities. 40 An Attorney General's opinion indicates that any General Assembly legislation permitting the City of Richmond to condemn on behalf of a state agency would be unconstitutional. 41
Under Title 15.2 of the Virginia Code, all localities must use the condemnation procedures in Title 25.1, except that the Title 33.2 procedures relating to VDOT quick-take also apply in condemnations by a locality for highway purposes even though the locality uses Title 25.1 42 certificate/quick-take authority. 43
Specific governmental activities such as prisons, markets, and public lighting are defined as public purposes, thereby permitting the exercise of eminent domain for such uses. Although a statute may not contain an express grant of condemnation power, the Virginia Supreme Court and the 2012 constitutional amendment to Article I, Section 11 have established that the eminent domain power can be "necessarily implied" 44 even in the absence of an express grant of authority. For example, statutory language was "broadened" by the court to allow the condemning of property for an off-street parking facility. 45
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The Attorney General has opined that a proposed statute allowing the City of Virginia Beach to condemn for slum clearance for economic development is for a constitutionally valid public purpose. 46 This opinion is now limited by the 2012 constitutional amendment to Article I, Section 11 and the provisions of section 1-219.1 of the Virginia Code.
C. Towns. Towns have the same authority to exercise eminent domain as cities. 47 A county may not exercise the power...
