2003

Ottofaro v. City of Hampton

Supreme Court of Virginia

265 Va. 26, 574 S.E.2d 235

City Council of Hampton approved a resolution calling for the acquisition of property for construction of a new arterial network. The resolution included two parcels owned by the Ottofaros. The resolution included language that the construction and improvement of roadways would serve a public purpose by improving the transportation network, traffic flow and access to underutilized areas. Ottofaros asserted that the condemnation lacked a public purpose and City wanted to convey it to a developer to create a retail shopping center. City denied that the residue would be transferred to a private entity for a private purpose. Trial court ruled for City and case was heard by commissioners. Supreme Court concluded that what constitutes a public use is a judicial question to be determined by the courts. Public use implies a possession, occupation and enjoyment of the land by the public at large. The creation and improvement of roadways is a public use. Further, the City did not improperly delegate to the city attorney the power to exercise eminent domain, nor did the City wrongfully take the residue of the two parcels.

Dissent by Justices Kinser and Lemons, stating that the city attorney, rather than the City Council, improperly made the final decision as to whether to obtain a portion of the Ottofaro’s property, or all of it, and petition for condemnation should have been dismissed.

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