Contributed By McGuireWoods LLP
Local governments enjoy the ability to potentially condemn property for public purpose; this authority is derived from Va. Code §15.2-1901. Prior to any condemnation, the locality must hold a public hearing and adopt a resolution or ordinance approving the proposed public use in directing the acquisition of the property. There are also jurisdictional procedures and prerequisites to filing a condemnation action (ie, notice, appraisals, offers and negotiations) under the applicable law: the property condemned must be for a “public use”, which requires the property to be within the control of the condemning authority. Said differently, there must be a right by the public or some public agency to use the property as a matter of right as opposed to a favor or a license. A taking is generally not for public use “if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue or economic development.” However, the fact that the property may also incidentally benefit some private individuals does not destroy the public use. Ultimately, the public interest must dominate any private gain. The condemnor has the burden of proving public use but courts generally do not inquire into the locality’s good faith in initiating condemnation proceedings if the locality’s purpose is clearly stated in the resolution or ordinance.