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D.A. Realestate Investment, LLC v. City of Norfolk (2025)

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II. The district court properly granted summary judgment on Fox’s Virginia inverse condemnation claim. We explain our decision by first reviewing Virginia’s eminent domain and police powers and then describing why Fox failed to show a genuine dispute of material fact. A. “Eminent domain is the power of the government to take property for public use without the consent of the owner.” PennEast Pipeline Co., LLC v. New Jersey, 594 U.S. 482, 487 (2021). Like the United States Constitution, Virginia’s Constitution requires the government to pay “just compensation” when it exercises eminent domain authority to take property. Va. Const. art. 1, § 11; see AGCS Marine Ins. Co. v. Arlington Cnty., 800 S.E.2d 159, 162 (Va. 2017). Virginia law also restricts the use of eminent domain to “public use” takings. See AGCS, 800 S.E.2d at 164 (“The power of eminent domain can never be exercised ‘except for public use,’ . . . .”). In Kelo v. City of New London, the Supreme Court concluded that, for purposes of federal law, private development could, under certain circumstances, constitute a “public use.” 545 U.S. 469, 483–84 (2005). After this holding, many states, including Virgnia, responded by defining “public use” more narrowly under state law. In 2007, the Virginia General Assembly enacted Va. Code Ann. § 1-219.1, which provides an exclusive list of six “public uses.” Id. § 1-219.1(A). Virginia voters then enacted a 2012 Constitutional Amendment that incorporated § 1-219.1’s central concepts. See Va. Const. art. I, § 11, cl. 11
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