On April 17, 2025, Sidley presented oral arguments before the Virginia Supreme Court over the improper taking of railroad property for private use. The Sidley team represented Norfolk Southern Railway Company in this challenge to the constitutionality of a state statute that allows private broadband service providers to take and permanently occupy railroad property with minimal or no compensation.
Railroads regularly permit utility and other crossings of their rights-of-way in exchange for a fee and subject to established procedures to ensure those crossings are installed and maintained safely and without impeding rail operations. In 2023, Virginia enacted legislation giving for-profit broadband companies the right to cross and permanently occupy railroad property. The statute prescribes an application scheme that requires a railroad to either quickly approve a new crossing or petition the State Corporation Commission for discretionary relief on limited grounds. In doing so, the statute strips away the safeguards of the railroads’ existing procedures, deprives the railroads of market-based compensation, and restricts railroads’ access to the ordinary procedural protections available in condemnation actions.
Norfolk Southern challenged the constitutionality of the statute, with Sidley arguing that the takings authorized by the statute do not satisfy Virginia’s strict definition of public use as defined by the state’s constitution and the General Assembly. The statute also impermissibly shifts the burden of proving public use from the condemnor, where the state constitution places it, onto the railroad to disprove public use. A decision on the constitutionality of the broadband crossing statute by the Virginia Supreme Court is expected later this year.
The Sidley team representing Norfolk Southern was led by Tobias Loss-Eaton, who argued the case, and included Raymond Atkins, Gordon Todd, Stephen Laudone, and Chike Croslin (Sidley alumnus).
