Outstanding Law Student Analysis of Eminent Domain and the Proposed Amendment to the Virginia Constitution
Any constitutional change, especially one so dear to the hearts of so many people as eminent domain, will present frustration, anger and confusion. Mr. Viviano has prepared an outstanding analysis of the positives and negatives of the amendment.
The analysis written by Mr. Viviano may be one of the few which offers some balance, because the public sentiment is so strongly in favor of the amendment and a sophisticated political bureaucracy is so opposed to the amendment that having a balance explaining all the various issues is difficult to find.
Eminent Domain in Virginia
An Analysis of Virginia Senate Joint Resolution 3
Joseph J. Viviano
Eminent domain constitutional reform has been underway in Virginia for the last two years. The proposed constitutional amendment, Virginia Senate Joint Resolution 3, will greatly expand constitutional protections for Virginian landowners. Many of these protections already exist in the Virginia Code. However, property owners will receive two additional protections when their property is taken or damaged by the government: the right to lost profits and the right to compensation caused by a loss of access. This Paper proceeds by first explaining the development of constitutional eminent domain law in Virginia to provide context for examining Senate Joint Resolution 3. Next, the effect the proposed constitutional will have on current law in Virginia is analyzed. Finally, this Paper concludes by rebutting arguments opposing Senate Joint Resolution 3.
II. A Brief History of Eminent Domain in Virginia and Constitutional Reform
Absent a constitutional provision to the contrary, the State's power to take or control the use of private property for the public's benefit is absolute. This is inherent in the meaning of “eminent domain,” which the Virginia Supreme Court has defined as:
the right on the part of the state to take or control the use of private property for the public benefit when public necessity demands it, is inherent in every sovereignty, and is inseparable from sovereignty, unless denied to it by its fundamental law.
 City of Roanoke v. Berkowitz, 80 Va. 616, 619 (1885) (emphasis added).