Abstract

Excerpted From: Michaela R. Hill, Not Just a Castle in the Sky: a Legal Remedy for Race-based Takings in Virginia, 67 William and Mary Law Review 1497 (April, 2026) (175 Footnotes) (Full Document)

James and Barbara Johnson, residents of the formerly bustling Shoe Lane community, know the reality of governmental takings all too well. The Johnsons watched as their Newport News, Virginia, neighborhood was chipped away by the city council for the expansion of Christopher Newport University (CNU). What was once a growing, middle-class neighborhood filled with ranch-style homes is now a memory, its true essence confined to photo albums and scrapbooks. Looking at the site today in comparison to the neighborhood they loved, the Johnsons lamented: "Young folks don't know anything about what used to be here .... We all felt it was taken because it was a Black neighborhood." The Johnsons' assessment was correct--a task force has been assembled to investigate the erasure of this Black community. The "egregious wrong"6 that was the taking of Shoe Lane was the natural outgrowth of the coupling of racism and the condition of eminent domain law. Without adopting new legal standards for blight-based takings, Virginia risks leveling other Black communities for "public use."

The Fifth Amendment of the United States Constitution limits the government's eminent domain power. Through eminent domain, the government can take private property for public use, so long as it provides ""just compensation." Historically, Virginia's public higher education institutions have used eminent domain, or the threat of eminent domain, to take homes from minority communities for the sake of expanding their campuses. They have succeeded under Virginia's statute categorizing "the elimination of blight" as a "public use[ ]." After the homes were taken, the former property owners were given "just compensation" based on the properties' fair market value.

During the mid-1900s, proving blight was not difficult. This ease of proof resulted in the uprooting of Black communities throughout the Commonwealth. Not only was proving blight too easy, but the so-called just compensation provided to the homeowners was insufficient. Just compensation based on fair market value is problematic because it does not account for the sentimental value of the home and the severance of a meaningful community where people feel like they belong. It severely undercompensates those who are forced to find new homes to restart their lives, make new memories, and forge new relationships.

Virginia should implement three major changes to address the issue of abusing eminent domain power to take residential properties: (1) adopt a new statute that shifts the burden of proof for blight to the government, (2) include sentimental value and community value in its just compensation calculation, and (3) consider returning taken property or implementing retroactive payments to wronged homeowners.

This Note argues that Virginia must adopt this three-pronged approach to both address its history of taking minority residential property to expand its higher education institutions and recognize the sanctity of the home by making it more difficult to take under the elimination of blight justification. Part I will address federal and state statutes and case law surrounding physical takings and the eminent domain power. Part I will also discuss Virginia's history of racial discrimination in housing, the Shoe Lane Community in Newport News, and CNU's expansion into the neighborhood for the elimination of blight. Part II will present the first prong of this Note's three-pronged approach to correcting Virginia's abuse of its eminent domain power to take residential properties: adopting stricter statutory blight standards. Part III will present the second prong: a new formula for calculating increased just compensation. Part IV will outline the third prong: a model for owner or descendant return. Lastly, Part V will address counterarguments and explain why the three-pronged approach is Virginia's best option to both prevent and rectify unjust takings of minority residential communities in the name of eliminating blight.

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Life, liberty, and property are considered pillars of American freedom, yet in Virginia, property is still not properly respected. Property is deeply intertwined with life and liberty, especially among Black Americans whose homes were taken unjustly, whose lives were changed completely, and whose liberty was stripped away by eminent domain abuse. The three-pronged arrangement suggested by this Note would propel Virginia ahead of other states in remedying blight-based takings and particularly the wrongful takings of Black residences under the guise of remedying blight.

Shifting the burden of proof for blight to the government would remove the deference currently enjoyed by the government and protect the homeowner's interest in keeping their home. Increasing just compensation to account for sentimental value respects the home as more than just a plot of land. Descendant return is the ultimate acknowledgment of wrongdoing and rectification. But it is essential that Virginia implement the entire approach--the home deserves a comprehensive legal program to adequately protect it as a fundamental right.

Vinegar Hill, Gospel Hill, Lambert's Point, and Shoe Lane were all communities subjected to the abuses of eminent domain. The Johnsons in Shoe Lane have just a scrapbook of the community they once called home. With only five remaining properties, Shoe Lane faces threats of complete erasure with continued expansion into the neighborhood. Virginia must adopt this Note's three-pronged approach to eminent domain so instead of just a collection of memories, the home will be treated as a castle on the highest ground.

J.D. Candidate, 2026, William & Mary Law School.