In the wake of Kelo, the people of Virginia overwhelmingly amended their state constitution (the vote was 75% in favor) to make it much clearer about what qualifies as a public use supporting an exercise of eminent domain, what doesn’t qualify, and how public use is proven:
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.
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Most fundamentally, the amendment also made clear that the right to private property is a “fundamental” right, as highlighted above.
But these revisions were not universally accepted, with some opining that the amendments merely affirmed existing practice and that the new language was largely superfluous.
The Virginia Supreme Court just cleared up any lingering uncertainty.
In Norfolk Southern Railway Co. v. State Corp. Comm’n, No. 240869 (May 22, 2025), the court held that the constitutional amendment, and the statute it enabled, “recogniz[ed] the fundamental right to own private property.” Slip op. at 6. Most importantly, the court held this recognition was not hortatory.
Here’s the story. A railroad challenged a Virginia statute that permits broadband service providers to install fiber optic cables across railroad property. The statute caps the license fees a provider may be required to pay to a railroad for these installations. After a provider filed applications with the Commonwealth’s State Corporation Commission to exercise its statutory rights, the railroad objected. It didn’t protest initially, only after the provider rejected its request for a license fee in excess of the statutory cap:
Norfolk Southern filed a petition for relief with the Commission. Among other things, Norfolk Southern asserted that Code § 56-16.3 violated Article I, Section 11 of the Constitution of Virginia. Emphasizing that Cox was a private, for-profit company, Norfolk Southern maintained that the application of Code § 56-16.3 effectuated a taking of its property for a nonpublic use. Norfolk Southern also argued that Code § 56-16.3 eliminated the condemnor’s burden to establish the public use underlying a proposed taking.
Slip op. at 4. The Commission rejected the railroad’s claim, after which the railroad appealed to the Virginia Supreme Court.
Describing the constitutional limitations as “robust,” the Supreme Court held that “[a]s applied in this case, Code § 56-16.3 authorizes a private broadband service provider to take railroad property for a nonpublic use. We hold that the challenged application of Code § 56-16.3 violates Article I, Section 11 of the Constitution of Virginia.” Slip op. at 1.
The court acknowledged that a party challenging a statute as unconstitutional “bears a heavy burden.” Slip op. at 5. But also recognized that “[e]minent domain statutes, however, must be ‘strictly construed.'” Id. (quotation omitted). And we know why: when a statute authorizes the taking of private property, “every reasonable doubt is to be resolved adversely to that right.”
The railroad pointed out that the fiber optic statute authorized a taking for a nonpublic use (the statute does not mention public use), and that it “eliminates Cox’s constitutionally imposed burden to establish the public use underlying the proposed taking.” Slip op. at 8. The court agreed:
Pursuant to the plain terms of Article I, Section 11 of the Constitution of Virginia, “[t]he condemnor bears the burden of proving that the use is public, without a presumption that it is.” Despite this clear constitutional directive, Code § 56-16.3 does not even reference the term “public use.” The statute permits a broadband service provider to install fiber optic cables across railroad property after it files an application to do so with the affected railroad company. See Code § 56-16.3(B), (C). The broadband service provider’s application is not required to address the public use underlying the proposed crossing. See Code § 56-16.3(C)(1). Although a railroad company may petition the Commission for relief based on three specific grounds, none of these grounds address the public use of a proposed crossing. See Code § 56-16.3(H).
Id.
Installing fiber optic cables is a permanent (or more precisely, an “indefinite”) physical taking, and because the broadband provider is a “private, for-profit broadband service provider” and “not a government entity, public service corporation, or public service company,” the statute violates the Virginia Constitution.
The broadband provider argued that the statutory omission of the words “public use” and its failure to put the burden on the provider in accordance with the Constitution didn’t matter because fiber optic broadband results in a public benefit. The court was having none of this, concluding that the Constitution distinguishes between public use and public benefit:
We acknowledge that the expansion of an existing broadband network may benefit the members of the public who would be served by the expansion. Nevertheless, a taking for a “public benefit” is not necessarily a taking for a “public use.” See Hoffman Family, LLC v. City of Alexandria, 272 Va. 274, 289 (2006); Phillips, 215 Va. at 547. “The term ‘public use’ connotes a possession, occupation, and enjoyment of the land by the general public, or by public agencies.” Hoffman Family, LLC, 272 Va. at 289. “In a condemnation proceeding, the appropriate consideration is whether a public use predominates, not whether a public benefit may result.” Id. (emphasis omitted).
Slip op. at 9-10 (footnote omitted).
Statute invalidated, case remanded for entry of judgment in the railroad’s favor.
Norfolk Southern Railway Co. v. State Corp. Comm’n, No. 240869 (Va. May 22, 2025)