Here’s one we have some trouble understanding, especially in light of the Virginia Constitution’s post-Kelo provision that measures just compensation as an amount “no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking.” Va. Const. art. I, § 11.

That last part “caused by the taking” is what was at issue in El-Rashed v. Commissioner of Highways, No. 1145-25-4 (Va. Ct. App. Nov. 10, 2026), where the Virginia Court of Appeals held that when VDOT temporarily takes a temporary easement over a portion of a larger parcel as part of a highway project, severance damages to the remainder is limited to those caused by the temporary easement alone, not the impacts caused by the taking for the highway project for which VDOT needed the easement.

The owners’ home is next to I-495 in Northern Virginia. VDOT expropriated a 1,458-sf temporary construction easement over their roughly 20,000-sf parcel as part of VDOT’s highway expansion project. Before the project, a sound wall and wooded area separated the home from the highway. The owner offered the testimony of an appraiser, who concluded that elimination of trees, relocation of the sound wall closer to the remaining property, and proximity of the new travel lanes permanently reduced the property’s value by nearly $500,000.

A statute implements the constitutional provision on severance damages, providing that “[t]he body determining just compensation shall ascertain (i) the value of the property to be taken and (ii) the damages, if any, that may accrue to the residue beyond the specific enhancement in value, if any, to such residue caused by the taking and public use of the property for which it is condemned.” Va. Code § 25.1-230.

The trial court excluded the owner’s evidence because in the court’s view, the relevant “public use” wasn’t the I-495 project, but only the imposition of a temporary construction easement. Thus, the Virginia Constitution’s promise of compensation for “damages to the residue caused by the taking” only reaches damages sufficiently connected to that little strip temporarily occupied by VDOT. The larger highway project is something else.

The court of appeals affirmed that reasoning, and that’s where we lost the trail.

Virginia Code § 25.1-230 instructs the factfinder, when determining the “after” value, to consider “everything a buyer and seller in the marketplace would reasonably consider,” including the public use for which the property is [being] acquired.” Yet the court concluded that because the property acquired was temporary, the “public use” was correspondingly limited. We can’t wrap our heads around that one.

The highway, and all the effects that caused ain’t temporary. Imagine a hypothetical buyer standing in the owner’s backyard after the project is complete:

“Yes, the highway is now closer, the buffer changed, and the property’s market value may be lower. But please don’t consider why VDOT took part of this very property to build that project. The taking was only temporary.”

To us, that’s a pretty strange hypothetical marketplace.

Even more troubling is the court’s conclusion that harms from the larger project weren’t “special” because nearby owners might experience them too. That seems to turn a protection for owners whose property is actually taken into something approaching a disadvantage. These owners didn’t merely live near a highway project — VDOT condemned their property to help build it. Yet when measuring the residue, the court separated the taking from the very project it facilitated.

Perhaps Virginia precedent compels that result. But it sits uneasily with a statute commanding consideration of what actual market participants would consider, and with Virginia’s post-Kelo constitutional amendment expressly protecting “damages to the residue caused by the taking.”

Our bottom line: when a condemnor takes part of a parcel because it needs it to construct a project, pretending the project is legally unrelated to the effect of that taking on the remainder may make doctrinal categories neater. But we’re not convinced it makes the owner whole.

El-Rashed v. Commissioner of Highways, No. 1145-25-4 (Va. Ct. App. Nov. 10, 2026)