From Marye’s Transmission Study to the 2013 Amendment — Utilities Still Take Land for Data Center Load

RICHMOND — Virginia’s modern property-rights constitution did not begin with the U.S. Supreme Court’s 2005 Kelo decision. It began, in part, with transmission lines. The 1999 joint subcommittee under Sen. Madison Marye — created by SJR 271 and HJR 491 — spent a year hearing from Southwest Virginia landowners facing AEP’s 765 kV proposals, Hanover County residue fights after Vepco’s Elmont–Chickahominy easement, and appraisers who said public fear of power lines, rational or not, is already priced into fair market value.

A 2016 Real Estate Law Journal article by James J. Knicely and Francis A. Cherry, Jr., “Eminent Domain Reform: The ‘Virginia Way,’” traces that arc. Reforms started in 1999, long before Kelo upheld taking private property for economic development. Momentum accelerated after Kelo’s political backlash. The General Assembly enacted statutory limits in 2007. Voters then overwhelmingly approved a 2012 statewide referendum amending Article I, Section 11 of the Virginia Constitution, effective January 1, 2013.

The amendment is blunt. Private property is a fundamental right. No more may be taken than necessary for a stated public use. Just compensation must be no less than the value of property taken, lost profits and lost access as defined by the General Assembly, and damages to the residue. A public service company or railroad exercises eminent domain for public use when the taking is for authorized utility, common carrier, or railroad service. In all other cases, a taking is not for public use if the primary use is private gain, private benefit, private enterprise, jobs, tax revenue, or economic development — except to eliminate a public nuisance on the property. The condemnor bears the burden of proving public use, without a presumption that it is.

Utilities kept a carve-out. Transmission and distribution still sit inside the “authorized provision of utility … services” clause. That means the constitutional firewall aimed at Kelo-style private-to-private transfers does not, by itself, block a certificate-backed 500 kV or 765 kV easement across a farm because electrons will eventually serve hyperscale campuses. Lost-profits and lost-access statutes were tightened in later sessions; residue damages remain the battlefield Chappell left open in 1995 when EMF-fear evidence never reached the commissioners.

Marye’s December 1999 work session already floated transmission-specific buffers — extending the distance from a dwelling that land can be acquired for a 765 kV right-of-way from 60 to 100 feet — alongside condemnor-paid appraisals and disclosure of offers. Those details show the study was never only about urban redevelopment. It was about power-line corridors that leave residual parcels and neighboring tracts absorbing cost the utility never writes a check for.

The politics of need have changed even if the utility carve-out has not. Across Virginia, the majority of votes placing data centers into zoning maps and by-right pathways have come primarily from Democrats. Loudoun’s Democratic majorities repeatedly rezoned, grandfathered, and expanded industrial pathways — including the Board’s March 18, 2025 unanimous vote to add data center as a by-right use on older industrial parcels — creating the load PJM and incumbents now cite for Valley Link, MARL rebuilds, and related Mid-Atlantic steel. Landowners along those routes inherit the same structure the Marye panels documented: negotiated easements when possible, condemnation when not; residual parcels the utility never buys; neighboring tracts that lose viewshed and marketability without a check; and litigation costs that still tilt toward the company with the permanent right-of-way staff.

The 1999 subcommittee already floated answers that still echo: pay owners’ appraisals; disclose the condemnor’s appraisal with the offer; reimburse litigation expenses when awards smash lowball bids; widen dwelling buffers on 765 kV rights-of-way; compensate for view and adjacent devaluation the way a scenic easement would. Some of that became statute or constitutional text. Much of the transmission-specific residue problem did not. As Democratic local boards keep approving campuses that require new interstate corridors, Virginia’s “Virginia Way” reform leaves utilities with the power to take the land — and landowners with another generation of residue fights the joint subcommittee warned about before Data Center Alley had a name.

Email the Hanover County Board of Supervisors:
Sean Davis, smdavis@hanovercounty.gov,
Jeff Stoneman, jsstoneman@hanovercounty.gov,
Faye Prichard, foprichard@hanovercounty.gov,
Danielle Grieshaber Floyd, dgfloyd@hanovercounty.gov,
Michael Herzberg IV, fmherzberg@hanovercounty.gov,
Ryan Hudson, rmhudson@hanovercounty.gov,
Susan Dibble, spdibble@hanovercounty.gov,

Email the Board of Supervisors at:
Phyllis J. Randall (Chair, At-Large) – Phyllis.Randall@loudoun.gov,
Michael R. Turner (Vice Chair, Ashburn District) – Mike.Turner@loudoun.gov,
Juli E. Briskman (Algonkian District) – Juli.Briskman@loudoun.gov,
Sylvia R. Glass (Broad Run District) – Sylvia.Glass@loudoun.gov,
Caleb Kershner (Catoctin District) – caleb.kershner@loudoun.gov,
Matthew F. Letourneau (Dulles District) – Matt.Letourneau@loudoun.gov,
Kristen C. Umstattd (Leesburg District) – Kristen.Umstattd@loudoun.gov,
Laura A. TeKrony (Little River District) – Laura.TeKrony@loudoun.gov,
Koran Saines (Sterling District) – Koran.Saines@loudoun.gov

Email the Richmond City Council:
Andrew Breton, andrew.breton@rva.gov,
Katherine Jordan, katherine.jordan@rva.gov,
Kenya Gibson, kenya.gibson@rva.gov,
Sarah Abubaker, sarah.abubaker@rva.gov,
Stephanie Lynch, stephanie.lynch@rva.gov,
Ellen Robertson, ellen.robertson@rva.gov,
Cynthia Newbille, cynthia.newbille@rva.gov,
Reva Trammell, reva.trammell@rva.gov,
Nicole Jones, nicole.jones@rva.gov,

Email the Hanover County School Board:
Whitney Welsh, SB-wwelsh@hcps.us,
William D. Sroufe, SB-wsroufe@hcps.us,
Karen Lynne, SB-klynne@hcps.us,
Greg Coleman, SB-gcoleman@hcps.us,
Bob Seifert, SB-rseifert@hcps.us,
Ryan Martin, SB-rmartin@hcps.us,
Frank E. Shelp, SB-fshelp@hcps.us,

Email the Loudoun County School Board:
April Chandler, april.chandler@lcps.org,
Anne Donohue, anne.donohue@lcps.org,
Deana Griffiths, deana.griffiths@lcps.org,
Ross Svenson, ross.stevenson@lcps.org,
Kari LaBell, kari.labell@lcps.org,
Jon Pepper, jonathon.pepper@lcps.org,
Lauren Shernoff, lauren.shernoff@lcps.org,
Sumera Rashid, sumera.rashid@lcps.org,
Amy Riccardi, amy.riccardi@lcps.org,

Email the Richmond School Board:
Matthew Percival, mpercival@rvaschools.net,
Kathryn Ricard, kricard@rvaschools.net,
Ali Faruk, afaruk@rvaschools.net,
Wesley Hedgepeth, whedgepeth@rvaschools.net,
Stephanie Rizzi, srizzi@rvaschools.net,
Anne Holton, aholton@rvaschools.net,
Cheryl Burke, cburke2@rvaschools.net,
Emmett Jafari, ejafari@rvaschools.net,
Shavonda Fernandez, sdixon@rvaschools.net,