Eminent Domain Law in Virginia

Content Highlights

“This is the only book of its kind which collects and updates eminent domain law in Virginia. It belongs on the bookshelf of every person who practices in this area, including state and local government attorneys, public utility counsel, and private practitioners who represent landowners. It is designed to help a general litigator handle the typical condemnation case, but is also essential for those who specialize in this practice area, and handle the most complex cases.”
– Paul B. Terpak, Editor

Eminent Domain Law in Virginia covers every aspect of eminent domain, both state and federal, including regulatory takings and inverse condemnation. It is oriented toward practice requirements, with in-depth treatment of pretrial and trial procedure and the key step of valuation, to ensure that the property owner received just compensation for any taking.

This fifth edition is updated with the first wave of cases interpreting the 2013 constitutional amendment responding to the Kelo decision and clarifying the term “just compensation,” case law on inverse condemnation matters, and guidance on procedural and evidentiary issues that impact all eminent domain cases.

Editor

Paul B. Terpak, Blankingship & Keith, P.C./ Fairfax

Paul B. Terpak, editor of this handbook and co-author of Chapter 6, is a shareholder and head of the Virginia Eminent Domain Group at Blankingship & Keith, P.C. His firm was ranked No. 1 in Virginia in Eminent Domain by Best Lawyers in America for several years, and Best Lawyers has named him Washington, D.C. Area Eminent Domain and Condemnation Law Lawyer of the Year for 2012, 2016, and 2018. Mr. Terpak has lectured and written about eminent domain on numerous occasions and served on the Virginia Code Commission Advisory Committee on the recodification of eminent domain law. He is a graduate of the University of Virginia and its School of Law and is a past president of the Fairfax Bar Association and past chair of the Virginia State Bar Committee on Lawyer Discipline.

Authors

Nancy C. Auth, Office of the Attorney General of Virginia / Richmond

Nancy C. Auth, author of Chapter 2, is a Senior Assistant Attorney General in the Transportation Section of the Office of the Attorney General of Virginia. In her 16 years at the office, her practice has encompassed many areas of transportation law. She currently works on a wide variety of matters statewide for Virginia’s transportation agencies. She has considerable experience in eminent domain, in complex contract drafting and negotiation, and in rail and transit. Her work has included a number of high profile transportation projects, among them the Woodrow Wilson Bridge Project, the Dulles Metro-rail Project, I-66 Inside the Beltway, the U.S. Route 121 Public-Private Transportation Act Project (Coalfields Expressway), development of an interstate compact for safety oversight for the Washington Metropolitan Area Transit Authority (WMATA) Metrorail system, the development of high speed and intercity passenger rail, and commercial space flight. She also served as a member of the committee appointed by the Virginia Code Commission for the recodification of Title 33.2 of the Virginia Code. Ms. Auth is a graduate of the University of North Carolina at Chapel Hill School of Journalism and of the University of South Carolina School of Law. Ms. Auth represented governmental entities in eminent domain proceedings in private practice before joining the Attorney General’s Office. She is a member of Phi Beta Kappa and has been presented the Patrick Henry Award for steadfast devotion to the just and sound government of the Commonwealth of Virginia.

Neil V. Birkhoff, Woods Rogers PLC / Roanoke

Neil V. Birkhoff, author of Chapter 10, is a principal in the firm of Woods Rogers PLC in Roanoke. He is the chair of the firm’s Tax & Estate Planning Group and is a member of the firm’s Corporate Law Group. Mr. Birkhoff is a Fellow of the American College of Tax Counsel and a member of the adjunct faculty of the Washington & Lee University School of Law, where he teaches courses on estate planning and nonprofit organizations. Before joining Woods Rogers, he was a trial attorney with the Tax Division of the U.S. Department of Justice in Washington, D.C., where he handled a wide variety of civil tax litigation matters. Mr. Birkhoff is a Past Chair of the Virginia State Bar’s Section of Taxation and The Virginia Bar Association’s Section of Taxation. He is active in Roanoke Valley community organizations, including service on the boards of directors of Feeding America–Southwest Virginia and Goodwill Industries of the Valleys, Inc. Mr. Birkhoff is a contributing author to several continuing legal education publications on estate planning and tax topics. He received his B.A., with distinction, from the University of Virginia, his J.D. from the College of William & Mary, and his LL.M. in Taxation from The George Washington University.

John K. Burke, Jr., J.K. Burke Law Firm PLC / Glen Allen

John K. Burke, Jr., co-author of Chapter 5, is the principal attorney of J.K. Burke Law Firm, PLC, in Glen Allen. In addition to his business litigation practice, Mr. Burke has over 25 years of experience in litigating eminent domain cases on behalf of condemnors and property owners throughout Virginia, and he has often appeared as a presenter at eminent domain seminars. Mr. Burke is listed in the Best Lawyers in America in three categories: business litigation, real estate litigation, and eminent domain. He is also listed in Chambers USA’s America’s Leading Lawyers for Litigation. He graduated from the college and law school at the University of Virginia and is a former Vice President of the Bar Association of the City of Richmond.

Francis A. Cherry, Jr., Randolph, Boyd, Cherry and Vaughan / Richmond

Francis A. Cherry, Jr., co-author of Chapter 5, is a partner in the law firm of Randolph, Boyd, Cherry and Vaughan. He is listed in Best Lawyers in America for condemnation and eminent domain. He has lectured on eminent domain in Virginia and nationally. In 2003 Mr. Cherry served on the Virginia Code Commission Advisory Committee for the recodification of eminent domain law. He updated the chapter titled “The Trial of Condemnation Cases” for the 1988 edition of Eminent Domain—State and Federal, Virginia Continuing Legal Education Committee. From 1972 to 1976 he served as Assistant Attorney General for the Commonwealth of Virginia representing the Virginia Department of Transportation. Mr. Cherry received his law degree from Vanderbilt University School of Law and his undergraduate degree from Denison University.

Michael J. Coughlin, Walsh Colucci Lubeley & Walsh PC / Prince William

Michael J. Coughlin, co-author of Chapter 4, is an experienced litigation attorney who leads his firm’s Eminent Domain Practice Group. Mr. Coughlin regularly lectures on eminent domain and land use topics at local and national conferences. He is a member of the Virginia Bar Association’s Real Estate Section Council and an affiliate member of the Appraisal Institute. Mr. Coughlin is admitted to practice in Virginia courts, the U.S. District Courts for the Eastern and Western Districts of Virginia, and the U.S. Bankruptcy Court for the Eastern District of Virginia. He has been recognized as one of Virginia’s “Rising Stars” in Virginia Lawyer magazine, is rated AV Preeminent by Martindale-Hubbell, and has been named to Virginia Business’ Legal Elite in the Real Estate/Land Use category. His experience handling land use, real estate, and eminent domain matters allows him to provide a comprehensive approach to resolving eminent domain cases.

Kevin F. X. DeTurris, Blankingship & Keith, P.C. / Fairfax

Kevin DeTurris, co-author of Chapter 6, is a principal with the law firm of Blankingship & Keith, P.C. Mr. DeTurris’ practice is concentrated in eminent domain matters and civil litigation. He has been listed in Super Lawyers as a rising star in the years 2013 and 2014. His professional memberships and activities include: Director on the Virginia Bar Association’s Young Lawyers Division Board (2007-2008); a Director of the Fairfax Bar Association’s Board of Directors (2005-2007); and President of the Fairfax Bar Association’s Young Lawyers Section (2005-2006). Mr. DeTurris has spoken at numerous continuing legal education courses on eminent domain and property tax appeals. He received his B.A. from the University of Rhode Island in 1995 and his J.D. from the American University Washington College of Law in 2003.

1. Steven Emmert, Sykes, Bourdon, Ahern & Levy, P.C. / Virginia Beach
2. Steven Emmert, author of Chapter 7, practices with the Virginia Beach firm of Sykes, Bourdon, Ahern & Levy, P.C. He focuses his practice exclusively on appellate advocacy in the state and federal courts. Mr. Emmert is a frequent lecturer in Virginia and elsewhere on appellate topics and maintains a free website devoted to appellate practice in Virginia at www.virginia-appeals.com. He is a member of the Virginia State Bar (Immediate Past Chair, Appellate Practice Committee), Virginia Beach and Federal Bar Asso-ciations, Virginia Bar Association (Founder and Immediate Past Chair of the Appellate Practice Section), Boyd Graves Conference (Conference Chair 2014-2015), Virginia Trial Lawyers Association (Member, Board of Governors), and American Bar Association (Council of Appellate Lawyers). Mr. Emmert is admitted to practice in Virginia courts, U.S. District Courts for the Eastern and Western Districts of Virginia, and the U.S. Court of Appeals for the Fourth Circuit. He received his undergraduate degree from Richmond College in 1979 and his J.D. from the University of Virginia School of Law in 1982.

Gifford R. Hampshire, Blankingship & Keith, P.C. / Fairfax and Manassas

Gifford R. Hampshire, author of Chapter 9, is a shareholder and member of the Virginia Eminent Domain Group at Blankingship & Keith, P.C., representing both landowners and condemning authorities. Mr. Hampshire represented Prince William County in the important regulatory taking case of Omni Homes v. Board of County Supervisors of Prince William County, 253 Va. 59 (1997), and in the eminent domain case of Board of County Supervisors of Prince William County v. United States, 276 F.3d 1359 (Fed. Cir. 2002). He was co-counsel for the landowner in the regulatory taking case of Board of Supervisors v. Greengael, LLC, 217 Va. 266 (2006). Mr. Hampshire is a graduate of Hampden-Sydney College and George Mason University School of Law. He is a past president of the George Mason American Inn of Court, past member of Virginia State Bar Council, past president of the Prince William County Bar Association, past Chair of the Virginia State Bar Conference of Local Bar Associations, past member of the Professionalism Course faculty of the Virginia State Bar, and past member of the Virginia State Bar Clients’ Protection Fund Board.

Scott D. Helsel, Walton & Adams, P.C. / Reston

Scott D. Helsel, co-author of Chapter 4, practices with Walton & Adams, P.C., in Reston. His practice focuses on the representation of condemnors in eminent domain proceedings and includes litigation in business, employment, and real estate matters as well as appellate work. Mr. Helsel is a member of the Virginia State Bar and the District of Columbia Bar and is admitted to practice in the state, local, and federal courts in both jurisdictions. He received his undergraduate degree from Elizabethtown College in 1992 and his J.D. from the College of William & Mary, Marshall-Wythe School of Law, in 1995. After law school, he clerked for the Honorable Henry H. Whiting on the Supreme Court of Virginia.

Henry E. Howell, III, The Eminent Domain Litigation Group, PLC / Norfolk

Henry E. Howell, III, co-author of chapter 3, is the principal member of The Eminent Domain Litigation Group, P.L.C., where he practices in eminent domain and property rights litigation for owners. Mr. Howell has specialized in representing owners in eminent domain proceedings for the past nine years. He is admitted to practice before the Virginia and United States District Courts (Eastern District of Virginia and Western District of Virginia) and the United States Court of Appeals for the Fourth Circuit. Mr. Howell is a member of the Virginia Beach, Norfolk, and Portsmouth bar associations. He earned his B.A. and J.D. degrees from the University of Virginia.

Brian G. Kunze, Waldo & Lyle, PC / Norfolk

Brian G. Kunze, co-author of Chapter 3, is a partner in the firm of Waldo & Lyle, PC, in Norfolk. Mr. Kunze’s practice is limited to representing property owners throughout Virginia in eminent domain proceedings and defending property rights. He has tried eminent domain and property rights cases in Virginia’s circuit courts as well as federal district court. Mr. Kunze has spoken around the country at eminent domain and property rights conferences. He received his B.S. from Old Dominion

1. Scott Mersiowsky, Virginia Department of Transportation
2. Scott Mersiowsky, author of Chapter 8, is the Assistant Relocation Program Manager at the Central Office of the Virginia Department of Transportation in Richmond. His responsibilities include assuring that relocations conducted by VDOT comply with the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 and regulations of the Federal Highway Administration. Before assuming his duties in the VDOT Central Office, Mr. Mersiowsky was located at VDOT’s Fredericksburg District Right of Way Office, where he worked in its legal department on aspects of negotiations, property management, and relocation matters. His experience at the Fredericksburg District Office also includes the writing and monitoring of contracts for the provision of roadside maintenance services. Mr. Mersiowsky has been awarded the designation of Senior Right of Way Professional by the International Right of Way Association.

Steven L. Micas, County Attorney for Prince George County

Steven L. Micas, author of Chapter 1, is the County Attorney for Prince George County. He previously served as County Attorney for Chesterfield County and as Assistant City Attorney for Charlottesville. He has participated in the defense of many public officials and has extensive experience in land use and real estate development litigation. Mr. Micas has been a speaker at numerous courses sponsored by the Virginia State Bar and the Local Government Attorneys of Virginia, including Eminent Domain courses in 1988, 1996, 1998, and 2006. He has also been a speaker at a national ALIABA conference in San Francisco on Eminent Domain and for the Virginia Association of Assessing Officers. He is the author of the Eminent Domain chapter in the Handbook of Virginia Local Government Law and is also the editor and an author of the 2009 LGA publication, The Local Government Attorney in Virginia. Mr. Micas is a past president of the Local Government Attorney’s Association. He was awarded the Edward J. Finnegan Award for Distinguished Service in 2004, which is the highest award available to public attorneys in Virginia. Mr. Micas was elected to the Virginia Bar Foundation in 2004 and, in 2008, he was appointed by the Chief Justice of the Supreme Court as an instructor in the State Bar Association’s mandated “Professionalism” course. He has received the “AV” rating by Martindale Hubbell, the national lawyer’s rating service. Mr. Micas received a B.A. from the University of Virginia in 1970 and a J.D. from the University of Virginia School of Law in 1973.