After Virginia's 2012 eminent domain amendment defined 'lost access,' can a landowner get just compensation when a road change reroutes traffic past the property?

Plain-English summary

Senator Petersen asked five technical questions about how Virginia's 2012 eminent domain amendment fit with the existing Virginia Supreme Court cases. The amendment rewrote Article I, § 11 of the Virginia Constitution to require just compensation for "lost access" (along with the value of land taken, lost profits, and residue damages). The General Assembly then defined "lost access" in §§ 25.1-100 and 25.1-230.1 as a "material impairment of direct access" to property where a portion has been taken or damaged. The new statute also said the body determining just compensation "may not consider an injury or benefit that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power."

The senator's worry was that this last sentence might have wiped out Linsly (compensation owed when direct highway access was extinguished by a project), or might have changed how Dennison's "reasonable access" rule worked, or might shift the access question from the jury to the judge. Attorney General Cuccinelli walked through each one and concluded that the existing case law mostly survived intact.

Linsly survives. Linsly involved the extinguishment of an abutter's easement of access. That is a property interest, and taking it is a "damaging" in the constitutional sense, so compensation was owed. The new "common with the general community" language does not change that result, because the Linsly injury was not a police-power injury shared with the community at large. It was an extinguishment of a specific property right.

Whether any particular change in access is compensable is a question of fact. The senator's second question was a hypothetical: what if the entrance to the property is unchanged but the road it connects to becomes a service drive? The AG declined to answer in the abstract. The new statute treats material impairment as a fact-specific inquiry, and AG opinions historically decline questions that require factual determination.

The "reasonableness" standard and the "material impairment" standard can be read together. Dennison said a landowner is only entitled to "reasonable" access, and if reasonable access remains after a project, no residue damages are owed. The new statute uses "material impairment of direct access" as the trigger for lost-access compensation. The AG concluded that the two standards are not in conflict. If a jury finds reasonable access remains, it would also likely find the impairment not material. If the jury finds the impairment important enough to be "material," the remaining access is probably not "moderate or fair." Same outcome, just two ways to describe it.

Easley survives too. Easley held that no compensation is due when a median or other traffic regulation reduces access and there is no taking or damaging of property; that is the police power, not eminent domain. The new statutory language preserves this distinction by excluding injuries "arising from an exercise of the police power" from the compensation calculus. So a property owner who loses direct access conjointly with a taking can recover for lost access; a property owner whose neighborhood gets a median but whose own land is untouched still cannot.

Material impairment is a jury question, except when the facts are so plain that it becomes a question of law. The threshold question of whether the project caused material impairment to direct access is an inherently fact-dependent inquiry, like "reasonable use" or "materiality" in other parts of Virginia law. Juries (or commissioners under § 25.1-227.2) decide it. The court only takes it over when "reasonable minds could not differ" about the answer.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Virginia's eminent domain statutes (Title 25.1) have been amended multiple times since 2014. The Virginia Supreme Court has issued additional opinions interpreting the "lost access" provisions. Any condemnation case currently in litigation should pull the present text of §§ 25.1-100 and 25.1-230.1 and the most recent Supreme Court of Virginia decisions.

Common questions

What did the 2012 constitutional amendment actually change?
It added the requirement that just compensation include "lost profits and lost access, and damages to the residue caused by the taking." It also added that "[n]o more private property may be taken than necessary to achieve the stated public use" and disclaimed economic development as a public use. The "lost access" terminology was new at the constitutional level; the General Assembly was directed to define it.

Is a median always a non-compensable police-power action?
Per the historic Howard and Easley cases (which this opinion concluded still apply), yes when there is no separate taking or damaging. The state's general regulation of traffic, including medians and signal changes, does not trigger compensation by itself. Only when the median project is conjoined with a taking can the access losses become part of the compensation calculation.

Who decides whether the impairment is "material"?
The body determining just compensation, which is either a panel of commissioners (§ 25.1-227.2), a jury (§ 25.1-229), or the court itself if neither has been seated. The court can take the question away from the jury only if the facts are so undisputed that reasonable persons could not differ.

Does the amendment apply to projects started before its effective date?
The opinion does not address retroactivity. Cases pending as of January 1, 2013, would have raised that issue, and the legislature's effective-date provisions in 2012 Va. Acts chs. 699 and 719 should be consulted.

Can I still recover for diminished traffic past my business?
No. Howard and the statute say an abutter has no property right in the continuance of traffic. Circuity of travel and diversion of traffic, when imposed by exercise of the police power, are not compensable.

What about a complete cul-de-sac that leaves my business reachable only by a long detour?
Read as a 2014 question, this would be heavily fact-dependent. If the project includes a taking or damaging of the property and the detour means the direct access is materially impaired, the new statute would allow that to factor into compensation. If the cul-de-sac is purely a traffic-regulation choice without any taking, Easley and the police-power exclusion still bar recovery. Modern condemnation litigation has refined these questions, and the present-day analysis requires looking at later cases.

Background and statutory framework

• Va. Const. art. I, § 11 (as amended 2012): Just compensation includes lost profits and lost access. Public use cannot be primarily for private gain, jobs, or economic development.
• Va. Code § 25.1-100: Defines "lost access" as "a material impairment of direct access to property" where a portion has been taken or damaged. States this definition "shall not diminish any existing right or remedy, and shall not create any new right or remedy other than to allow the body determining just compensation to consider a change in access in awarding just compensation."
• Va. Code § 25.1-230.1(B): The body determining just compensation includes loss in market value from lost access caused by the taking or damaging, but excludes "an injury or benefit that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power."
• Va. Code § 25.1-230.1(D): Liability for lost access and lost profits is established as part of the residue damages award.

The interpretive moves:

• The statutory definition expressly preserves existing rights and remedies.
• Linsly's extinguishment-of-access rule and Easley's police-power exclusion both survive.
• Dennison's "reasonableness" rule and the new "material impairment" rule can be read together.
• Material impairment is a fact question for the body determining just compensation, with the usual exception for cases where reasonable minds cannot differ.

Citations

• Va. Const. art. I, § 11
• Va. Code § 25.1-100
• Va. Code § 25.1-227.2
• Va. Code § 25.1-229
• Va. Code § 25.1-230
• Va. Code § 25.1-230.1
• State Highway & Transp. Comm'r v. Linsly, 223 Va. 437, 290 S.E.2d 834 (1982)
• State Highway & Transp. Comm'r v. Dennison, 231 Va. 239, 343 S.E.2d 324 (1986)
• State Highway Comm'r v. Easley, 215 Va. 197, 207 S.E.2d 870 (1974)
• State Highway Comm'r v. Howard, 213 Va. 731, 195 S.E.2d 880 (1973)
• Tidewater Ry. Co. v. Shartzer, 107 Va. 562, 59 S.E. 407 (1907)
• Potomac Elec. Power Co. v. Fugate, 211 Va. 745, 180 S.E.2d 657 (1971)
• Richmeade, L.P. v. City of Richmond, 267 Va. 598, 594 S.E.2d 606 (2004)
• Byler v. Va. Elec. & Power Co., 284 Va. 501, 731 S.E.2d 916 (2012)
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
• 2012 Op. Va. Att'y Gen. 37 (the "Prior Opinion" referenced throughout)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/13-099_Petersen.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120

January 10, 2014

Honorable J. Chapman Petersen
Member, Senate of Virginia
Post Office Box 1066
Fairfax, Virginia 22038

Dear Senator Petersen:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask several questions regarding the recently amended Article I, § 11, of the Constitution of Virginia, the related legislation contained in §§ 25.1-100 and 25.1-230.1 of the Code of Virginia, and a previous opinion of this Office ("Prior Opinion") that concern the power of eminent domain as it relates to just compensation owing for lost access. Specifically,

1. You ask how I reconcile my Prior Opinion and the award of damages in State Highway & Transportation Commissioner v. Linsly, where direct access to a public highway was replaced by indirect access via a service road, with the statement in newly enacted § 25.1-230.1 that "[t]he body determining just compensation may not consider an injury or benefit that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power;"

2. You ask whether a landowner, whose "particular entrance onto his property may be unchanged, is entitled to compensation if the road to which he has direct access is changed to a service drive;"

3. You ask whether the "reasonableness" standard in State Highway & Transportation Commissioner v. Dennison remains applicable or whether it has been replaced with "material impairment" under § 25.1-100;

4. You ask whether my Prior Opinion, concluding that the holding of State Highway Commissioner v. Easley would not bar a damage claim due to installation of a median or other traffic regulation in a case where the loss of access occurs conjointly with a taking or damaging of the property, still applies in light of the definition of "lost access" provided in §§ 25.1-100 and 25.1-230.1; and

5. You ask if the determinations of whether there is a material impairment of access and/or whether property owners are entitled to just compensation for lost access, as defined under §§ 25.1-100 and 25.1-230.1, will be made by judges as legal findings or by juries/commissioners as factual findings.

Response

It is my opinion that:

1. The holding in Linsly and the views expressed in my Prior Opinion remain valid after the adoption of § 25.1-230.1, especially in light of the express statement made in § 25.1-100 by the General Assembly that its statutory definition of "lost access" neither diminishes any existing right or remedy nor creates any new right or remedy, other than to allow the body determining just compensation to consider a change in access in awarding just compensation;

2. Whether any particular change in access to a specific landowner's property constitutes compensable lost access is a fact-dependent question and, therefore, is properly a matter for the body determining just compensation to resolve, based on the evidence in each case;

3. The "reasonableness" standard articulated in Dennison is not in conflict with the new statutory definition of "lost access" in § 25.1-100 as being a "material impairment of direct access to property" and, thus, the reasonableness standard and the statutory definition may be read together in determining whether a change in access constitutes compensable lost access caused by the taking or damaging of private property for public use;

4. The holding in Easley and the views expressed in my Prior Opinion remain valid after the enactment of the General Assembly's definition of "lost access" in § 25.1-230.1(B); where a loss of access occurs conjointly with a taking or damaging of private property, just compensation may include damages for lost access unless the body determining just compensation finds that the injury sustained is one "the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power;" and

5. Whether there is a material impairment of direct access and whether a property owner is entitled to just compensation for lost access are questions of fact properly left to the body determining just compensation, unless the facts in a specific case lead the court to conclude that reasonable persons cannot differ, in which circumstance the court may proceed with the determination as a matter of law.

Background

After passage in the 2011 and 2012 Sessions of the General Assembly, and successful presentation to the voters of the Commonwealth, Article I, § 11, of the Constitution of Virginia was amended to provide, in pertinent part:

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms "lost profits" and "lost access" are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

On January 1, 2013, complementary legislation defining the term "lost access" and providing procedures to determine the just compensation related thereto also became law. These new statutory provisions now provide, in pertinent part:

"Lost access" means a material impairment of direct access to property, a portion of which has been taken or damaged as set out in subsection B of § 25.1-230.1. This definition of the term "lost access" shall not diminish any existing right or remedy, and shall not create any new right or remedy other than to allow the body determining just compensation to consider a change in access in awarding just compensation.

The body determining just compensation shall include in its determination of damage to the residue any loss in market value of the remaining property from lost access caused by the taking or damaging of the property. The body determining just compensation shall ascertain any reduction in value for lost access, if any, that may accrue to the residue (i) beyond the enhancement in value, if any, to such residue as provided in subdivision A 1 of § 25.1-230, or (ii) beyond the peculiar benefits, if any, to such other property as provided in subdivision A 2 of § 25.1-230, by reason of the taking and use by the petitioner. If such peculiar benefit or enhancement in value shall exceed the reduction in value, there shall be no recovery against the landowner for such excess. The body determining just compensation may not consider an injury or benefit that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power. The body determining just compensation shall ensure that any compensation awarded for lost access shall not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged.

Any and all liability for lost access and lost profits shall be established and made a part of the award of just compensation for damage to the residue of the property taken or damaged.

Applicable Law and Discussion

On January 26, 2012, subsequent to the passage of the first reference of the constitutional amendment, but prior to the enactment of legislation defining "lost access," I answered several questions related to the impact of the proposed constitutional amendment on existing eminent domain jurisprudence. In light of the Prior Opinion and the passage of the legislation, I turn now to your specific queries.

I.

First, you ask whether the principles stated in Linsly remain valid law after the General Assembly enacted § 25.1-230.1 to provide that "[t]he body determining just compensation [for a taking or damaging of private property] may not consider an injury or benefit that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power." I see no conflict between the established precedent contained in Linsly and the new statutory provisions defining "lost access."

Linsly concerned the conversion of an existing highway into a limited access highway. As a result of the project, the Commissioner of Highways acquired 0.48 acre of land and easements resulting in the extinguishment of the landowner's direct highway access. The Commissioner planned to substitute direct highway access with indirect access via a newly constructed service road. The Court found that just compensation to the landowner for the damaged residue "is the difference between the value of the residue immediately before and immediately after the taking" and that the determination should include any change of value to the residue resulting from the substituted access. The Court distinguished the substitute access at issue in Linsly from other cases where direct access was merely reduced or limited.

As discussed in the Prior Opinion of this Office:

[A]n easement of access to a public road (generally, an easement by implication) is a property interest, and its extinguishment by the Commonwealth or a locality under powers of eminent domain would be a form of "damage" in a legal sense. In . . . Linsly, the landowner has lost his abutter's easement of access to a major public highway, a substantive property right, resulting in damage in the legal sense. The damage suffered entitles the landowner to just compensation.

Prior to the amendment of Article I, § 11 and the new statutory provisions defining "lost access," courts declined to permit a property owner to submit to the body determining just compensation evidence of damages caused by lost access unless the case involved an extinguishment of direct access. The Virginia Constitution now expressly states that lost access is a component of just compensation to be provided in the taking or damaging of private property and directs the General Assembly to define the term "lost access" by statute. The General Assembly now has defined compensable "lost access" more broadly than the extinguishment of direct access. The effect of the new law is that a jury or commission determining just compensation now will consider evidence regarding lost access damages even in cases where direct access is not extinguished. The legislature signaled that intention with its qualification in § 25.1-100 that the new "lost access" definition "shall not diminish any existing right or remedy, and shall not create any new right or remedy other than to allow the body determining just compensation to consider a change in access in awarding just compensation." This qualification also signals the legislature's intention that, except in instances of conflicts, existing eminent domain statutes and the related body of case law remain applicable, including Linsly.

In my opinion, the new statute's provision related to injuries experienced in common with the general community and arising from an exercise of the police power would not have changed the result in Linsly. Linsly involved the extinguishment of an abutter's easement of access, a property interest, and the court held that the extinguishment constituted a compensable taking. Linsly did not address an injury arising from the exercise of police power and experienced in common with the general community; therefore, the provisions you emphasize in the new statute would not have applied in that case. A landowner's right to just compensation arises from the taking or damaging of property, not the exercise of the police power by the regulation of traffic. Accordingly, under both Linsly and the new statute, there is a right to just compensation where there is a taking or damaging of property, but not where there is only the exercise of the police power in the regulation of traffic.

II.

Your second question asks whether a landowner is entitled to just compensation for lost access if the entrance to his property remains unchanged, but the road to which he has access is changed. Such a determination may involve a number of factors based on more detailed information than you have provided. Accordingly, an answer to your question would require factual determinations that, under current law, a jury or commission now will make. Attorneys General decline to render opinions where the request involves a matter that requires a factual determination or is a question of fact rather than of law. Consequently, I respectfully must decline to render an opinion on whether a landowner would be entitled to just compensation for lost access in the circumstance you present. Instead, as the Virginia Supreme Court has observed, "[i]t will be for commissioners and juries, under the supervision of the courts, to determine upon the facts of each case whether or not there has been such damage to property as should be compensated."

III.

Your third question asks whether the "reasonableness" standard relating to access has been replaced with a "material impairment" standard from the new statutory definition of "lost access." The "reasonableness" standard arises, in part, from the Virginia Supreme Court's ruling in State Highway & Transportation Commissioner v. Dennison. In Dennison, the Court agreed with a jury instruction providing that:

[T]he owner of land abutting a public highway is only entitled to reasonable access to his property. His rights of access are subordinate to the right of the State to control traffic over its highways. If you find that the landowners in this case will have reasonable access to the property after the construction of this project, you shall not make any awards for residue damages that might result from a change in access.

Although the new constitutional and statutory language does not employ the same terminology as the reasonableness standard stated in Dennison, it is unnecessary to find a conflict between the two. Indeed, it is quite possible to read the provisions together as complementary.

While the Dennison rule bars compensation if reasonable access remains, the new statutory language requires compensation if the taking includes a material impairment of direct access. The General Assembly has not provided a definition for either "material" or "reasonable." In the absence of such a statutory definition, the plain and ordinary meaning of a term is controlling. The word "material" means "having real importance or great consequences," and the word "reasonable" means "moderate" or "fair." I am of the opinion that the standards may be read together. If a jury or commission were to find reasonable access to remain after a taking, the jury or commission logically also could conclude the impairment not to be material. Alternatively, if a jury or commission were to find the impairment to be of real importance or great consequence, the jury or commission likely would not find remaining direct access to be moderate or fair considering the circumstances of the taking.

IV.

You also ask for confirmation of my Prior Opinion as it related to the holding in Easley, which I restate here for the purpose of clarity:

The proposed [constitutional] Amendment will not change the rule in Easley for cases where a median or other regulation of traffic leads to diminished access and there is no taking or damaging of property. In such cases, no just compensation, including lost profits or lost access, would be due because the median or other traffic regulation would be an exercise of the police power and not an exercise of the power of eminent domain. In cases, however, where a loss of access occurs conjointly with a taking or damaging of private property, the [constitutional] Amendment provides that just compensation will include damages for the lost access. Under the [constitutional] Amendment, the term "lost access," and thus the degree of loss that will qualify for compensation, is to be defined by the General Assembly. The property owner will have the opportunity to present evidence of the damages sustained as a result of the lost access to the body determining just compensation, but in any event, the property owner will have to show that the lost access has resulted in a diminution of value in the residue property in order to receive compensation for that damage.

These conclusions remain unchanged. As discussed in the Prior Opinion, "[a]n abutting landowner's right of access to a public road is subordinate to the police power of the state reasonably to control the use of streets so as to promote the public health, safety, and welfare," and no compensation is due to the owner of property abutting a public road "when the state, in the exercise of its police powers, reasonably regulates the flow of traffic on the highway." Neither the recent constitutional amendment nor the accompanying statutes appear to have changed the rule in Easley for cases where a median or other regulation of traffic leads to diminished access and there is no taking or damaging of property. "In such cases, no just compensation, including lost profits or lost access, would be due because the median or other traffic regulation would be an exercise of the police power and not an exercise of the power of eminent domain." To be clear, "the abutter has no property right in the continuance or maintenance of the flow of traffic past his property." In its definition of "lost access," the General Assembly chose to continue this distinction by prohibiting compensation for "an injury . . . that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power."

V.

Your final two inquiries address whether certain findings are legal questions to be determined by the court or factual questions to be presented to the finder of fact. Specifically, you ask if the determination of whether there is a material impairment of access and/or whether property owners are entitled to just compensation for lost access, are legal findings or factual findings. To reiterate the current law, a property owner is entitled to just compensation related to lost access if he suffers a material impairment of direct access to his property arising from an exercise of eminent domain. Necessarily, if the taking or damaging has caused a material impairment to direct access, then the property owner is entitled to just compensation calculated as the loss of value to the residue. The threshold question, then, is whether there has been a material impairment of access to the property caused by the taking or damaging.

Although the General Assembly did not explicitly state whether the determination of material impairment is a factual or legal finding, determining "materiality" or the state of having "real importance or great consequences" would appear to be an inherently fact-dependent exercise. Generally, "[i]t is only when the issue is one about which reasonable persons cannot differ, the question so plain in the meaning and interpretation that should be given to it, that no doubt is admitted of its legal significance and effect, that it becomes a question of law for the courts to determine." The question of material impairment, then, in my opinion, is one of fact unless the facts in a specific case lead the court to find that reasonable persons cannot differ, in which case the court may proceed with the determination as a matter of law. Once the fact finder, or the court, finds a material impairment of direct access amounting to lost access, "[t]he body determining just compensation shall include in its determination of damage to the residue any loss in market value of the remaining property from lost access caused by the taking or damaging of the property."

Conclusion

Accordingly, it is my opinion that:

1. The holding in Linsly and the views expressed in my Prior Opinion remain valid after the adoption of § 25.1-230.1, especially in light of the express statement made in § 25.1-100 by the General Assembly that its statutory definition of "lost access" neither diminishes any existing right or remedy nor creates any new right or remedy, other than to allow the body determining just compensation to consider a change in access in awarding just compensation;

2. Whether any particular change in access to a specific landowner's property constitutes compensable lost access is a fact-dependent question and, therefore, is properly a matter for the body determining just compensation to resolve, based on the evidence in each case;

3. The "reasonableness" standard articulated in Dennison is not in conflict with the new statutory definition of "lost access" in § 25.1-100 as being a "material impairment of direct access to property" and, thus, the reasonableness standard and the statutory definition may be read together in determining whether a change in access constitutes compensable lost access caused by the taking or damaging of private property for public use;

4. The holding in Easley and the views expressed in my Prior Opinion remain valid after the enactment of the General Assembly's definition of "lost access" in § 25.1-230.1(B); where a loss of access occurs conjointly with a taking or damaging of private property, just compensation may include damages for lost access unless the body determining just compensation finds that the injury sustained is one "the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power;" and

5. Whether there is a material impairment of direct access and whether a property owner is entitled to just compensation for lost access are questions of fact properly left to the body determining just compensation, unless the facts in a specific case lead the court to conclude that reasonable persons cannot differ, in which circumstance the court may proceed with the determination as a matter of law.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General