Earlier this year, I wrote about a Virginia eminent domain ballot question. That question passed yesterday with approximately 74% of the vote. Question 1 on the November 6, 2012 ballot in the state of Virginia was an amendment to its state Constitution restricting the power of eminent domain. It was passed by both houses of the VA legislature. It has significant eminent domain restrictions including prohibiting using the power of eminent domain for private enterprise, job creation, tax revenue generation or economic development, thereby restricting it to only being invoked to take private land for public use. It also permits a condemnee to recover lost profits as part of its condemnation damages.


The Amendment provides:


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.