Addressing Landowner Arguments for Stricter Review of Public Projects in the Wake of the 2013 Eminent Domain Amendment

对第一条的修正, 1月1日生效的弗吉尼亚州宪法第11条, 2013, restricted the power of eminent domain and expanded the right to compensation in certain clearly defined ways.  It also included two broader policy statements that counsel for landowners have seized upon to argue that courts should subject takings to more scrutiny than in the past.  虽然这些论点表面上有吸引力, 仔细检查就会发现它们应该被拒绝.

The Arguments

The first provision that is often seized on by landowners is the declaration that the right to private property “is fundamental.”  Va. Const. art. I, § 11.  Landowners sometimes argue that this declaration means that courts should apply something akin to strict scrutiny to public projects such that a taking will only be allowed when it is the least burdensome option available to fulfill the public use.  See Mahan v. 全国保守政治行动委员会, 227 Va. 330, 336, 315 S.E.2d 829, 832 (1984) (describing the strict scrutiny test as requiring a statute to be the least burdensome means available for attaining a compelling governmental interest).  这与以前判例法中存在的规则形成对比, which afforded great discretion to condemning authorities such that the projects are only reviewed for abuse of discretion under the much more lenient arbitrary and capricious standard.  Va. Electric & Power Co. v. Webb, 196 Va. 555, 564-65, 84 S.E.2d 735, 740 (1954).  The other provision that landowners look to states that “[n]o more private property may be taken than necessary to achieve the stated public use.”  Va. Const. art. I, § 11.  Landowners argue that this provision requires the court to afford more scrutiny to the amount of property taken in an eminent domain case and, 如果发现谴责当局确实超过了必要的财产, 命令撤销此案.

司法反应

Unfortunately for landowners, these arguments have had little to no success in court.  弗吉尼亚州最高法院没有采纳这些论点.  在此期间，法院审理的所有案件都与这两项规定无关, 但法院也没有表示会对征收行为进行更严格的审查.  See, e.g., Palmer v. Atl. 海岸管道, 293 Va. 573, 583-84, 801 S.E.2d 414, 419-420 (2017) (noting that the amendment declared property rights to be “fundamental” but rejecting the landowner’s contention that the amendment overruled previous case law that recognized condemning authorities’ right to enter property for preliminary surveys and studies).

而上诉法院基本上对这些论点保持沉默, 初审法院几乎一致拒绝了这些要求.  One court rejected a landowner’s argument that the court should scrutinize a condemning authority’s decision as to the amount of property taken because the two provisions did not signal a rejection of prior precedent.  参见路政署署长v. Sadler, 93 Va. Cir. 74, 83 (Petersburg 2016) (noting that a court only has a limited role in reviewing the amount of property taken and rejecting the argument that the amendment changed that role because it “announces a commonly understood fundamental right to private property ownership”).  在另一个案例中, a landowner advocated for a review of the necessity of a taking that was akin to strict scrutiny, arguing that a taking should only be approved if there is no other way to achieve the public use for which the property is being taken.  The court rejected the argument, citing a pre-amendment Supreme Court of Virginia case called Hamer v. 切萨皮克市学校董事会, 240 Va. 66, 393 S.E.2d 623 (1990), which held that questions regarding the location of a project or the amount of land taken are only reviewable if the discretion afforded the condemning authority is arbitrarily or capriciously exercised or in cases of manifest fraud.  没有发现任意选择或欺诈的证据, 法院驳回了土地所有者的论点.  路政署署长v. Clevinger, No. 516-17, 2020 Va. Cir. LEXIS 154, at *9(布坎南8月8日. 17, 2020).  Even in a case where a landowner successfully argued that a condemning authority took more property than necessary, 法院适用了 Hamer 通过测试得出结论.  参见切萨皮克市5. 赫赫尔二桥有限责任公司, 91 Va. Cir. 16 (Chesapeake 2015) (ruling that the landowner had met its burden of showing the city acted arbitrarily and capriciously in the amount of property taken and that the city had failed to show that the issue was fairly debatable).

击败论点

直到弗吉尼亚最高法院介入, the best way to approach the arguments made by landowners is to adopt the rationale of the trial courts that have rejected them to this point.  Thus, the rejoinder should be that both the provisions are declarative of pre-existing law and so do not signal that the courts should depart from controlling precedent.  See, e.g., 罗利法院公司. v. Faucett, 140 Va. 126, 138, 124 S.E. 433, 436 (1924) (“Private ownership of property is one of the fundamental rights of the citizen not surrendered by entering into organized government.”); Webb, 196 Va. 在564-65,84 S.E.2d at 740 (stating that a condemning authority has discretion as to the amount of property taken, 但注意到自由裁量权可能会被滥用。.  这应该足以让法院相信现有的法律, which affords condemning authorities great discretion and calls for only limited review of their decisions, should apply.

Matt Hull is a Pender & Coward attorney focusing his practice on eminent domain/right of way and local government matters.