1990

Hamer v. School Bd. of Chesapeake

Supreme Court of Virginia

240 Va. 66, 393 S.E.2d 623

School Board adopted resolutions that a 50-acre tract was needed for construction of a new high school. Petition for condemnation was filed and Hamer family responded by challenging (1) the internal Board proceedings adopting the resolutions, (2) the public purpose served, and (3) the necessity for the taking. Trial court heard all issues except just compensation, and ruled that the petition for condemnation made a prima facie case for the necessity of the taking, and that the Hamers had the burden going forward to refute the assertion of necessity. Supreme Court ruled that when a public purpose has been established, the necessity of a condemnor’s project was a legislative question. The only constitutional limits placed upon the power of eminent domain were contained in the just compensation clause of the Constitution of Virginia, Article 1, § 11. There was no constitutional right to a hearing on the issue of necessity. Further, public schools were not among the public purposes subjected by statute to judicial review on the issue of necessity. If a condemnee alleged that a condemnor had arbitrarily and capriciously chosen the location of property to be taken, condemnee had burden of persuasion and of going forward on that issue. Here, the Hamers failed in adducing any evidence to prove their allegations. Although the condemnor had to institute the proceedings, by petition and notice, there was no burden of proof in the common law sense on the issue of just compensation. Because condemnor had burden of going forward with the evidence, it had the right to open and close in final argument. Case reversed and remanded for improper argument of Board’s counsel in closing.

Dissent by Justice Compton stating that improper comments did not require reversal.

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