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Public use

What Counts as a Public Use in Virginia

Virginia answered this question in its Constitution rather than leaving it to argument. The answer is unusually favourable to property owners.

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Introduction

A limit written into the Constitution

Article I Section 11, as amended in 2012, states that the condemnor bears the burden of proving that the use is public, without a presumption that it is.

It also states that a taking primarily for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development is not a public use.

Quick answerIn Virginia the condemnor must prove public use. Economic development, jobs and tax revenue are expressly excluded as the primary justification for a taking.
Key topics

How the limit works in practice

The burden of proof

It sits with the condemnor, not the owner.

ExploreExcluded purposes

Private gain, jobs, tax revenue and economic development.

ExploreRedevelopment projects

Where the question is most often live.

ExploreUtility routing

Where regulatory approval and public use interact.

ExploreChallenging a taking

How owners raise the issue.

ExploreWho holds authority

Authority and public use are separate questions.

Explore
How it works

Raising a public use question

Identify the stated purpose

What the condemnor says the project is for.

Compare it to the constitutional limit

Whether the primary purpose falls within an excluded category.

Look at who benefits

Whether a private party is the principal beneficiary.

Raise it in the grounds of defense

Title 25.1 provides the procedural route.

The condemnor must prove it

No presumption assists it.

Property owner considerations

Points worth noting

•A public use challenge is a challenge to the taking itself, not merely to the amount offered.
•The 2012 amendment was a deliberate response to takings justified by economic development. Virginia owners should not assume the general rule from other states applies here.
•Whether a particular project falls inside or outside the limit is fact specific and contested. This is a question for licensed Virginia counsel.
•A taking may be lawful and the compensation still inadequate. The two questions are separate.
Related resources

Where to go next

Property Owner Rights

What the Constitution guarantees.

Read moreCondemnation

Where the question is decided.

Read moreGovernment Authority

Who may condemn and on what basis.

Read more
Common questions

Frequently asked questions

Is economic development a public use in Virginia?
No. Under Article I Section 11 a taking primarily for economic development, jobs, tax revenue or private benefit is not a public use.
Do I have to prove the use is not public?
No. The condemnor carries the burden of proving that it is, and receives no presumption.
Does this stop road and utility projects?
No. Traditional public works remain public uses. The limit targets takings whose primary purpose is private benefit.

Work out how this applies to your property

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