Norfolk Southern Victorious over Cox in Virginia Takings Case
'Under our leadership and with the full support of President Donald Trump, we are moving faster, smarter, and more collaboratively than ever before,' West Virginia Gov. Patrick Morrisey said Saturday.
ROW: Terrestrial broadband deployment was dealt a setback last Thursday when a Virginia state law designed to speed ISP access to railroad property was held to include an unconstitutional taking of private property for private use in a dispute between Cox Communications and Norfolk Southern Railway. “Cox is a private, for-profit broadband service provider. It is not a government entity, public service corporation, or public service company. Therefore, Cox cannot exercise the power of eminent domain for a ‘public use,’ under either Article I, Section 11 of the Constitution of Virginia or Code § 1-219.1,” the Virginia Supreme Court said in a May 22 decision that reversed a State Corporation Commission (SCC) decision favorable to Cox.
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The law in question – Code § 56-16.3 – established a framework for Cox to get access to railroad property within 35 days and for the railroad to appeal Cox’s application to the SCC. Norfolk Southern challenged the constitutionality of the law after losing its SCC appeal. Norfolk Southern contended that Code § 56-16.3, which took effect on July 1, 2023, permitted Cox to take railroad property for non-public use and eliminated Cox’s constitutionally imposed burden to establish the public use underlying the proposed taking. “We agree with both of Norfolk Southern’s arguments. By essentially ignoring the public use requirement set forth in Article I, Section 11 of the Constitution of Virginia and Code § 1-219.1, Code § 56-16.3 permits Cox to take Norfolk Southern’s property for a private purpose,” Justice Teresa M. Chafin said for a unanimous court. (More after paywall, including PDF of the Court’s decision.)
