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2006 SESSION

064680820
SENATE BILL NO. 394
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Joint Conference Committee
on March 11, 2006)
(Patron Prior to Substitute-- Senators Stolle, O'Brien [SB 131], Obenshain [SB 336], and Cuccinelli [SB 631])
A BILL to amend and reenact §§ 15.2-1800 and 15.2-1814 of the Code of Virginia, to amend the Code of Virginia by adding a section numbered 1-237.1, and to repeal § 15.2-1900 of the Code of Virginia, relating to eminent domain; the definition of public uses.

Be it enacted by the General Assembly of Virginia:

1.  That §§ 15.2-1800 and 15.2-1814 of the Code of Virginia are amended and reenacted, and that the Code of Virginia is amended by adding a section numbered 1-237.1 as follows:

§ 1-237.1.  Public Uses.

A. The right to private property being a fundamental right, the term "public uses" mentioned in Article I, Section 11 of the Constitution of Virginia is hereby defined to embrace all uses that are necessary for: (i) possession, occupation and enjoyment of property by the public or by public agencies; (ii) carrying out and effectuating the purposes and objectives of a local government or political subdivision; (iii) creation or functioning of any public service corporation or public service company, including but not limited to railroad companies, or on behalf of any public service corporation or public service company, as otherwise provided by law; (iv) construction, maintenance, or operation of public highways or other public transportation facilities by the Commonwealth, a locality or political subdivision, or a private entity; (v) the construction, maintenance, or operation of public facilities, for the enjoyment of the property by the public, pursuant to a public-private partnership agreement between a public agency and a private entity; or (vi) carrying out and effectuating the purposes and objectives of a redevelopment and housing authority.

B. The taking of private property for conveyance to a private person for the primary purpose of conferring private financial gain, or the taking of private property for the primary purpose of enhancement of tax revenues, shall not constitute a public use. 

C. During condemnation proceedings, a property owner shall have the right to rebut the presumption that the taking is for a public use, including that such taking is a pretext for the primary purpose of conferring private financial gain or the primary purpose of enhancement of tax revenues. 

D. Provided that a public use exists under this section, nothing contained herein shall be construed as granting or abrogating the power of eminent domain conferred independently of this section.

§ 15.2-1800. Purchase, sale, etc., of real property.

A. A locality may acquire by purchase, gift, devise, bequest, exchange, lease as lessee, or otherwise, title to, or any interests in, any real property, whether improved or unimproved, within its jurisdiction, for any public use. Acquisition of any interest in real property by condemnation is governed by Chapter 19 (§ 15.2-1900§ 15.2-1901 et seq.). The acquisition of a leasehold or other interest in a telecommunications tower, owned by a nongovernmental source, for the operation of a locality's wireless radio communications systems shall be governed by this chapter.

B. Subject to any applicable requirements of Article VII, Section 9 of the Constitution, any locality may sell, at public or private sale, exchange, lease as lessor, mortgage, pledge, subordinate interest in or otherwise dispose of its real property, which includes the superjacent airspace (except airspace provided for in § 15.2-2030) which may be subdivided and conveyed separate from the subjacent land surface, provided that no such real property, whether improved or unimproved, shall be disposed of until the governing body has held a public hearing concerning such disposal. However, the holding of a public hearing shall not apply to (i) the leasing of real property to another public body, political subdivision or authority of the Commonwealth or (ii) conveyance of site development easements across public property, including but not limited to, easements for ingress, egress, utilities, cable, telecommunications, storm water management, and other similar conveyances, that are consistent with the local capital improvement program, involving improvement of property owned by the locality. The provisions of this section shall not apply to the vacation of public interests in real property under the provisions of Articles 6 (§ 15.2-2240 et seq.) and 7 (§ 15.2-2280 et seq.) of Chapter 22 of this title.

C. A city or town may also acquire real property for a public use outside its boundaries; a county may acquire real property for a public use outside its boundaries when expressly authorized by law.

D. A locality may construct, insure and equip buildings, structures and other improvements on real property owned or leased by it.

E. A locality may operate, maintain and regulate the use of its real property or may contract with other persons to do so.

F. This section shall not be construed to deprive the resident judge or judges of the right to control the use of the courthouse.

G. "Public use" as used in this section shall have the same meaning as the term "public uses" in § 15.2-1900§ 1-237.1.

§ 15.2-1814. Acquisition authorized by chapter declared to be for public use.

Any acquisition of property authorized by any provision of this chapter is hereby declared to be for a public use as the term "public uses" is used in § 15.2-1900§ 1-237.1.

2.  That § 15.2-1900 of the Code of Virginia is repealed.

3.  That the Chairman of the Senate Committee for Courts of Justice and the Chairman of the House Committee for Courts of Justice are hereby directed to appoint a joint subcommittee pursuant to the rules of each body to review the existing provisions in the Code of Virginia that authorize the use of the power of eminent domain, including the Housing Authorities Law to determine whether additional changes in the law are advisable.