After the Caroline County Board of Supervisors voted unanimously June 18 to condemn 11 acres of a fifth-generation farmer’s land and exercise eminent domain to acquire the property and construct a water intake facility along the Rappahannock River, Cory and Rebekah Garrett pledged to fight it every step of the way.
The county filed a Certificate of Take to acquire the land on July 22 and the following day filed a petition to condemn the property on Tidewater Trail.
After being dealt those blows, the Garretts are now taking the fight to the county.
Their attorney, Joshua Baker, filed a motion in Caroline County Circuit Court on Aug. 28 to invalidate the Certificate of Take and dismiss the petition to condemn the property.
Baker, an attorney for the Norfolk-based Waldo & Lynn law firm, requested that the court schedule a hearing to invalidate the Certificate of Take and dismiss the Petition in Condemnation and reimburse the Garretts all disbursements and legal fees associated with the case. If the case is to move forward, Baker requested that the court sets an evidentiary hearing that will force the county to present evidence to establish the “public use” for which it condemned the property.
Baker wrote in his motion that the county’s proposal to pump approximately 14 million gallons of water a day 35 miles from the Rappahannock River to serve the growing western part of the county is an unconstitutional “speculative project.”
Baker’s motion states the county’s actions do not meet Virginia’s requirements for eminent domain and are tied to aiding economic growth, particularly the recruitment of data centers that require large amounts of water to operate.
State law requires that any jurisdiction exercising the power of eminent domain must show that the acquisition of the property is necessary for a public purpose. Christopher Mackenzie, the attorney for the county, stated in the petition to condemn that localities are authorized to take land for the purpose of constructing water supply systems, citing Virginia code. The county offered $78,400 for the property.
“The taking is necessary for the provision of water services to the citizens of Caroline County and the maintenance of an adequate water supply,” Mackenzie wrote.
But Baker said the county must have an established project before exercising eminent domain. He said the county “has no plans, approvals or funding for the water project.”
The county’s efforts to acquire the Garretts’ property were met with widespread criticism at a board of supervisors public hearing as dozens of county residents and citizens from surrounding counties spoke out against the use of eminent domain.
Environmentalists also criticized the county for its attempt to pump so much water from the Rappahannock into the Mattaponi River.
Despite the pushback, the supervisors voted 6-0 to move forward with the project, stating the concept for the plan to address the county’s water needs began approximately 20 years ago.
The motion filed by Baker to invalidate the Certificate of Take cites Article I, Section 11 of the Virginia constitution which states that a public service company, public service corporation or railroad exercises the power of eminent domain for public use “when such exercise is for the authorized provision of utility, common carrier or railroad services.”
It goes on to declare that in all other cases, taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, increasing jobs, increasing tax revenue or economic development, unless there is a public nuisance existing on the property. The burden of proof, in this case, would be on the county to show that the use is public.
Garrett said after the June public hearing that he would be willing to work with county officials if he believed the water would be primarily for residential use. He cited that according to the county’s justifications in its request to the Virginia Department of Environmental Quality, most of the water would be for industrial use — including for data centers, some of which have been approved by the county.
The county’s resolution to condemn and take the property states that maintaining adequate water supply is the “public purpose” for which the county is authorized to take possession of the land.
“The county’s resolution impermissibly attempts to invoke its eminent domain for a public purpose rather than a public use and accordingly is [invalid],” the motion reads.
Baker’s motion cites Virginia Supreme Court cases Mumpower v. Housing Auth. of City of Bristol and Light vs. City of Danville that determined public use must be “fixed and definite” and not speculative or intended to bank rights for the future.
“The water project is anything but fixed and definite,” Baker wrote. “The county’s present condemnation is premature and unconnected to a fixed and definite public use.”
The motion notes that the county has not designed or contracted to design the related infrastructure to impact its publicly stated reasons for acquiring the property. Baker also claimed that the county is hoping to bank the property now with no immediate public purpose.
The motion states that the county does not have a plan, proposal, or engineering to acquire the necessary right-of-way to connect the water intake facility with other new or existing infrastructure.
Baker cited comments from supervisors in his motion, including from Bowling Green District representative Jeff Sili, who said at the June 18 meeting that “this isn’t going to happen fast” and that “just the planning and engineering is going to take three to five years.”
County Administrator Charles Culley stated during an Oct. 30, 2023, data center town hall that it would be “seven years before we get to the Rappahannock,” and begin funneling water from the river.
Culley was asked if a lack of an increased commercial tax base would defer the project, and stated “it could easily be 20 or 30 years if we don’t have anything to support that revenue, so if we don’t do any data centers … then it will be a long time before we get to the river.”
“After 20 years, the county’s project appears to be what it is —a speculative endeavor for which no regulatory approvals have been obtained and for which there is no clear path to obtaining them,” Baker’s motion stated.
