Affirming Virginia’s Public Use Requirement: Invalidity of Private Takings Under Code § 56-16.3

Introduction

In Norfolk Southern Railway Co. v. State Corporation Commission (Record No. 240869, Va. May 22, 2025), the Supreme Court of Virginia addressed the constitutionality of Code § 56-16.3, a 2023 statute empowering broadband service providers to install fiber-optic cables across railroad property without demonstrating a public use. Norfolk Southern Railway Company (“Norfolk Southern”) challenged the statute as a violation of Article I, Section 11 of the Virginia Constitution, which requires that any taking of private property be for a public use and accompanied by just compensation. The Court held that the statute, as applied, authorizes a taking of railroad property for a private purpose—and thus conflicts with Virginia’s strict public-use requirement.

Background and Key Issues

Parties: Norfolk Southern Railway Company (private railroad) vs. Cox Communications Hampton Roads, LLC (private broadband provider) and the State Corporation Commission (“SCC”).
Statutory Framework: Code § 56-16.3 (2023 Va. Acts chs. 713, 714) establishes a streamlined process for broadband providers to cross railroad rights-of-way, imposing engineering requirements but omitting any public-use inquiry.
Procedural Posture: Cox filed applications for three underground fiber crossings in New Kent County. Norfolk Southern objected to license fees that exceeded the statutory cap and simultaneously challenged the statute’s constitutionality before the SCC. The SCC denied relief; Norfolk Southern appealed to the Supreme Court of Virginia.

Summary of the Judgment

The Supreme Court of Virginia, in an opinion by Justice Teresa M. Chafin, reversed the SCC’s order. The Court held that Code § 56-16.3 authorizes a taking of Norfolk Southern’s property by a private entity (Cox) for private gain—without satisfying the “public use” requirement of Article I, Section 11. The statute’s omission of any public-use inquiry or burden on the broadband provider to prove a public purpose renders it unconstitutional “as applied” to these crossings. The case was remanded for entry of judgment in Norfolk Southern’s favor.

Analysis

1. Legal and Constitutional Framework

Virginia Constitution, Art. I, § 11: “No private property shall be damaged or taken for public use except….” The condemnor bears the burden of proving public use; no presumption in its favor.
Code § 1-219.1: Defines “public uses” and imposes additional statutory restrictions—public interest must dominate any incidental private gain; primary purpose cannot be private benefit or economic development, with limited exceptions (e.g., utilities, railroads).
Federal Baseline (Kelo v. New London): U.S. Supreme Court approved takings for economic development as public use under the Fifth Amendment, but expressly allowed states to adopt stricter standards.

2. Precedents Cited

Old Dominion Comm’n for Fair Util. Rates v. SCC (2017): Presumption of constitutionality for statutes, but strict construction for eminent domain.
PKO Ventures, LLC v. Norfolk Redev. & Hous. Auth. (2013): Eminent domain statutes must be strictly construed against takings powers.
Loretto v. Teleprompter Manhattan CATV (1982): Physical occupations, however minor, constitute takings.
Hoffman Family, LLC v. City of Alexandria (2006): Public benefit does not equate to public use; “public use predominates” is the test.
Phillips v. Foster (1975) and Boyd v. C.L. Ritter Lumber Co. (1916): Virginia prohibits takings for private use under any conditions.

3. Court’s Legal Reasoning

Nature of the Taking: Underground fiber conduits beneath Norfolk Southern’s tracks constitute a permanent physical occupation—a taking under Loretto.
Public Use Requirement: Article I, § 11 and Code § 1-219.1 require the condemnor (here, the broadband provider) to prove a dominant public use, with no presumption.
Statutory Deficiency: Code § 56-16.3 omits any reference to “public use,” places no burden on the provider to demonstrate such use, and forecloses judicial inquiry by stating the statute applies “notwithstanding any contrary provision of law.”
Conflict with Virginia Constitution: By permitting private, for-profit broadband expansion on railroad property for economic gain, § 56-16.3 violates the Virginia Constitution’s stricter public-use standard.
Reversal and Remand: The SCC’s order upholding the crossings is reversed; judgment must be entered for Norfolk Southern.

4. Impact and Implications

This decision reinforces Virginia’s rigorous protection of property rights post-Kelo. States may promote infrastructure expansion, but cannot shortcut constitutionally mandated public-use inquiries or shift the burden of proof away from private condemners. Future legislative schemes authorizing takings for broadband, utilities, or other private providers must explicitly satisfy Article I, § 11 and Code § 1-219.1. Regulatory agencies and lower courts will now scrutinize any statute granting eminent-domain powers to private entities to ensure a demonstrable and dominant public use predates any taking.

Complex Concepts Simplified

Eminent Domain: The government’s power to take private property for public use, with just compensation.
Public Use vs. Public Benefit: Public use means the public actually occupies or enjoys the land (or a public entity provides services there). Public benefit is any positive outcome; not enough alone to satisfy constitutional requirements.
Strict Construction: Courts interpret takings statutes narrowly; any doubt is resolved against granting takings power.
As Applied Challenge: The Court did not strike down Code § 56-16.3 in all circumstances, but held that its application here—authorizing a private entity to take railroad property without a public-use finding—was unconstitutional.

Conclusion

Norfolk Southern Railway Co. v. SCC cements Virginia’s post-Kelo stance: private entities may not invoke eminent domain without a clear, dominant public use and bearing the burden to prove it. By invalidating the application of Code § 56-16.3 to private broadband crossings, the Supreme Court of Virginia reaffirmed the fundamental right to property, ensuring legislative measures expand infrastructure only within constitutional bounds.