Eminent Domain & Takings

Eminent domain is the power of a government to take private real estate for public use, with or without the permission of the owner, as long as the acquisition is for a public purpose. In Virginia, eminent domain is typically used for roads, utilities, and occasionally for public access to the water.

Virginia General Assembly has granted the power of eminent domain to municipalities. Although eminent domain permits acquisition of land not otherwise for sale, localities cannot expect a break on the price. The property’s owner must be paid fair market value, otherwise a “taking” may occur.

The takings clause of the U.S. Constitution states that the government cannot take private property without just compensation. If the current government can afford the land outright, then use of eminent domain to acquire the land might be an option. However, because coastal land is very expensive, the government may be forced into acquiring the land through longer-term purchase agreements, such as paying installments over time, binding future governments that may lack the resources to make regular payments.

Though eminent domain is often viewed as heavy-handed by residents and landowners, the possibility that the government could force a landowner to give access privileges to others is an incentive for landowners to provide access under their own terms and conditions.

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