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VDOT can condemn land for stream mitigation

Virginia Lawyers Weekly//September 18, 2020

VDOT can condemn land for stream mitigation

Virginia Lawyers Weekly//September 18, 2020//

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Where the Virginia Department of Transportation seeks to condemn respondents’ property for stream mitigation in connection with a highway construction project, respondents’ demurrer based on VDOT’s alleged lack of authority to do so is denied.


Respondents in these consolidated cases are the Clevingers and Brown, who own property that petitioner, the Virginia Department of Transportation, seeks to condemn in connection with a highway construction project.

Respondents have demurred to the petition in condemnation (PIC). They argue that the PIC “is insufficient because it fails to plead that the Commissioner of Highways has the jurisdiction and power to exercise eminent domain for the purpose of stream mitigation.

“Respondents further argue that Petitioner does not have either the requisite authority to condemn property for wetlands mitigation or subject matter jurisdiction because (1) there is no express statutory authority that gives the power to the Commissioner of Highways to condemn property for the purpose of stream mitigation and (2) the Virginia Constitution prohibits condemnation for stream mitigation because it is not ‘necessary’ to the express public purpose.

“Respondents maintain that jurisdiction may only be acquired by the Constitution or by statute.”

Respondents’ position

“Respondents contend that neither Virginia Code Title 25,1, Chapter 2 nor Title 33.2 expressly authorize the use of eminent domain to acquire land for purposes of compensatory mitigation.

“Respondents recognize that Virginia Code Title 25.1 Section 109 implies, with certain restrictions as to location, that eminent domain may be used by agencies given the power of eminent domain to acquire land for compensatory mitigation.

“However, Respondents argue that this statute expressly states that it shall not apply to the property acquired by the Commissioner of Highways under Title 33.2 and therefore, because the right of eminent domain for purposes of compensatory mitigation is not expressly given in 33.2, the right does not extend to 33.2. …

“Respondents further argue that the power given the Commissioner, under Title 33.2, to acquire property by eminent domain broadly grants that right to that which is ‘reasonable’ and ‘incidental’ to public highway construction.

“Respondents contend that the legislature expanded upon this power by listing specific grants of power within 33.2.14 Some of these include: (1) the acquisition of land in median highways for public mass transit; (2) installation of broadband conduit; and (3) taking highway materials from streams, rivers and watercourses.

“Respondents imply that because ‘stream mitigation’ is not listed as a specific grant of power, the power was never granted at all. Respondents contend that there must be jurisdiction of the subject matter of the litigation, and this jurisdiction ‘can only be acquired by virtue of the Constitution or some statute.’”


“When the words of a statute are unambiguous, a court must accord the statutory language its plain meaning. The language found in Section 25.1-109 is almost identical to the language found in Section 15.2-1907.1, which refers to a locality’s authority to acquire property for compensatory mitigation. The only differences between the statutes are the introductory phrases and the fact that 15.2-1907.1 does not contain the concluding phrase found in 25.1-109 which states that ‘this section shall not apply to property acquired by the Commissioner of Highways pursuant to Title 33.2.’

“To accept Respondents’ argument that the concluding phrase in Section 25.1-109 implies that the Commissioner has no authority to condemn property for purposes of compensatory mitigation would mean that a locality (town, city or county) has greater authority to condemn than the Commissioner of Highways. This reading of the statute is not in accord with its plain meaning.

“This Court agrees with Petitioner that the plain meaning of the statutory language is that Section 25.1-109 does not apply to the present case, and not that it limits the Commissioner’s authority to acquire for stream mitigation.”

Respondents assert that there are other alternatives to taking their property for compensatory remediation. They “interpret Article I, Section 11 of the Virginia Constitution to prohibit the acquisition of private property if other avenues are potentially available to achieve the public use.” Respondents point to mitigation banking, in-lieu fee programs and permittee-responsible mitigation.

Petitioner “argues that there were no mitigation banks or in-lieu fee programs available in the Big Sandy River watershed, where Respondent’s parcels are located. Only permittee­responsible mitigation methods existed. On-site mitigation efforts were not available because on-site areas would not exist post-construction.

“With this information in mind, [the U.S. Army Corps of Engineers] concluded that the VDOT parcels selected by the Commissioner for off-site stream mitigation were the most preferable means of satisfying federal requirements.”

Further, under Hamer v. School Board of City of Chesapeake, 240 Va. 66 (1990), because “[t]here is no evidence to suggest that the Commissioner exercised his discretion in choosing the location of the highway arbitrarily or capriciously nor is there evidence of manifest fraud[,] … this Court is without authority to address the issue of the necessity of the taking of Respondents’ parcels. …

“The Court hereby rules that Petitioner does have the requisite authority to condemn property for purposes of compensatory wetlands mitigation and the Court has subject matter jurisdiction over this case.”

The demurrer is denied.

Commn’r of Highways v. Clevinger, Commn’r of Highways v. Brown, Case Nos. 516-17, 517-17, 539-18, 540-18, Aug. 17, 2020; Buchanan County Cir. Ct. (Johnson). Tom Pruitt, Mark M. Lawson for the parties. VLW 020-8-101, 10 pp.

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