AG Opinion – Clarification on “lost access” regarding the changes to Article I of the Constitution of Virginia (eminent domain provisions)

In 2011 and 2012 and after presentation to the Virginians, Article 1, Section 11 was changed in the Constitution of Virginia (presented below). In 2013, the General Assembly passed legislation to determine just compensation for “lost access”. This opinion clarifies certain previous cases and how loss of access to a primary highway for access to a service road should be handled. In this matter, no compensation is due to the landowner for the loss of access to the primary road. The landowner’s right of access to a public road is subordinate to the police power of the state to control the use of streets.

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.