Should you vote yes or no on the
eminent domain ballot question?
http://blogs.roanoke.com/roundtable/2012/10/eminent-domain-pointcounterpoint-2/
Here’s the question as it
will appear on the ballot: Shall
Section 11 of Article I (Bill of Rights) of the Constitution of Virginia
be amended (i) to require that eminent domain only be
exercised where the property taken or damaged is for public use and, except for
utilities or the elimination of a public nuisance, not where the primary use is
for private gain, private benefit, private enterprise, increasing jobs,
increasing tax revenue, or economic development; (ii) to define what is
included in just compensation for such taking or damaging of property; and
(iii) to prohibit the taking or damaging of more private property than is
necessary for the public use?
To read the State Election Board’s explanation of the
question and the language of the amendment, visit bit.ly/ballot_question
October, 2012
******************************************
The impacts of the proposed changes
are virtually unknown
By John Watkins, Watkins represents Powhatan County
and parts of Chesterfield County and Richmond
in the Virginia Senate.
Eminent
domain is one of those issues that has been the
subject of consideration over the past decade. Much of the concern on the part
of property owners is the impact and, indeed the implication, of cases in other
parts of the country that have led to decisions at the highest level of the
federal judicial system.
The U.S.
Supreme Court’s ruling in Kelo sparked an outcry on
the part of landowners across the country concerning the statutory structure in
the individual states with regard to how property owners could protect their
property and how they could ensure that, if it is taken for the appropriate
reason, they would be properly reimbursed.
The Virginia General
Assembly took a couple of years in fashioning legislation, which ultimately
passed in 2007 and has had a couple of additional amendments in 2009 and 2011.
These changes statutorily prevented a case such as Kelo
from occurring in Virginia.
To the best
of my knowledge, this statute has never been tested before the Supreme Court of
Virginia or
in any federal court. Yet there has been an ongoing outcry for an amendment to
the state constitution to put in place protections that even exceed the statute
that Virginia
has put in place and had amended over the last few years.
The impacts
of the changes that have been proposed are virtually unknown. Traditionally,
any constitutional amendments that pass the first-year test are subjected to
significant review and development of the fiscal and economic impacts of the
proposed changes. This was not done.
Most of the
amendment was put together at the last minute in 2011 and was subsequently
amended on the floor of the Senate before it passed. So no one thoroughly
understood at the end of the 2011 session what the effects of this amendment
would be. Then the amendment came back before the 2012 legislature for final
passage prior to the referendum to be held in conjunction with the presidential
election next month.
Because I
have had up close and personal involvement and experience with eminent domain
proceedings — being one of only a limited number of individuals in the Virginia
General Assembly whose property has been taken as a result of eminent domain —
I feel somewhat qualified and compelled to discuss the issue with you, the
voters, before Nov. 6. There are three elements to this amendment that
give me grave concern.
The first is
the requirement that individuals or corporations who own property be
compensated for lost profits and for lost access. I am unsure, as a
businessman, how you can adequately justify what your profits, particularly
future profits, will be. To place the burden on the state or local government
that is in the position of implementing a taking through eminent domain, the
question becomes: Who pays for those profits? To the best of my knowledge, the
taxpayers will wind up paying for those lost profits.
The same
issue revolves around lost access. The question might arise if there is also an
offset for increased value as a result of, for instance, the widening of a
highway, even though it may reduce the level of access. If there is a claim
that access is lost because of a new median or new limited access highway, who
pays? Again, it will be the taxpayers who that will bear the cost.
Secondly,
there is the introduction of a term that provides a prohibition on the use of
eminent domain to acquire property that would be utilized in a “for profit”
setting. This, in my mind, eliminates the use of public/private partnerships
and revenue sharing with private entities for the development of infrastructure.
Examples would be the Metro in Northern Virginia or Virginia 895 in
central Virginia.
Each of
these changes will lead to bigger government and more costly government as a
result of increased payments for property acquisition. This, in turn, will probably
push development into more rural and more undeveloped areas in order to reduce
costs. An inevitable result would be “blight” as these changes would make it
much more difficult to rehabilitate properties in more densely populated areas
of the state.
My third
concern is that, for the first time in the constitution, the term “fundamental”
is used as a descriptor of property rights. I am not aware of any other place
in the constitution where a right is expressed as fundamental.
My fear is
that, in a court of law, this term will carry more meaning in the delineation
of which rights, which individual rights, have more
importance. I personally feel that there are other basic rights that are far
more important than the ownership of property.
I would not
presume to attempt to dictate how you should vote on this issue, but you need
to be aware of what you are voting for. Sometimes the cure may be far worse
than the disease.
As a
legislator, I voted against this amendment in the 2012 General Assembly. As a
citizen and as a property owner whose land has been, for one reason or another,
taken under eminent domain proceedings, I will vote “No” once again when I cast
my ballot Nov. 6.
Put property rights beyond reach of
those who would take them
By Joseph T. Waldo, Waldo is the managing
partner of Waldo & Lyle, a Norfolk
firm that specializes in property rights.
A man’s home
is his castle, but even so, Virginians understand that sometimes eminent domain
must be used to construct schools, highways and public utilities. In the same
way, they do not believe it is right to force someone to surrender their
property at a fire sale price.
I’ve been
defending people’s castles for more than 20 years. I have encountered many
public officials who try hard to strike the right balance when the public
interest encroaches upon a farm, home or business. They understand that private
property is more than a commodity with a fluctuating price tag; in a free
society, it is a basic building block — like freedom of speech and worship — not
to be taken lightly.
We would not
be voting Nov. 6 on a property rights constitutional amendment if every
public official acted with such admirable restraint and respect. Economic
temptation and political pressure have led too many officials to stretch eminent
domain laws to condemn property for shopping centers and offices, or to
shortchange property owners, particularly the elderly, minorities, the
uneducated and politically powerless.
Better
eminent domain laws are not the answer; they can be worn down by these same
influences. The constitutional amendment will safeguard private property from
these corrupting impulses and limit condemnation to its traditional and
necessary work.
The
opponents would have you believe that we don’t have an eminent domain problem
or that laws adopted in 2007 by the General Assembly closed the loopholes.
The former argument ignores dramatic examples of eminent domain abuse across Virginia. Here are but
three:
In 1975, Roanoke promised to
condemn Walter Claytor’s block of thriving businesses
as part of its clearance of Gainsboro. Over the next
24 years, Roanoke
never followed through, but the threat alone was enough to ruin Claytor. Because the surroundings were leveled, his block
became unattractive and the tenants in his apartments and office building moved
out. Underwriters refused insurance on the vacated buildings, and they became a
target, first of vandals, then an arsonist. Not until 2004, did a Roanoke Circuit Court
address the injustice, ordering the city to pay Claytor
several hundred thousand dollars in damages. The buildings, still empty, stand
as a monument to eminent domain abuse.
In 1999, the
city of Hampton,
in partnership with a developer, targeted a neighborhood for a shopping and
entertainment district. One homeowner fought back. Frank Ottafaro
complained that the city took his house for the developer when it was not
needed, and his house was not touched in any way by the plans. When he
challenged the condemnation, Hampton retaliated, lowered its appraisal, tried to
take it for less than the original offer and fought him vigorously through
numerous and expensive court proceedings. In the end, it was for naught. He was
so traumatized that he protested at every meeting of the city council for
12 years until his death this spring.
In the
mid-1990s, Old Dominion University
decided it wanted to get in the real estate development business by expanding
its campus across Hampton
Boulevard. Lacking the power of eminent domain for
such commercial purposes, it hired the Norfolk
Redevelopment and Housing Authority. NRHA declared the neighborhood of more
than 160 homes, apartments and businesses blighted (even though it
admitted only 20 percent were in poor condition), then set about removing
them under the threat of condemnation. One business, Central Radio, is to be
taken because the college wants restaurants and retail for its students. This
would replace a family-run company with 100 employees who install, repair
and maintain highly sensitive communications gear on Navy warships docked
nearby. A 4 percent commission gives the NRHA a strong incentive to keep
doing ODU’s bidding. Ten years later, practically
every building for blocks, except for Central Radio and a few neighbors, are
gone.
The
opponents believe the 2007 laws are strong medicine against abuse. These are
the same political and business organizations that waged war against the laws’
enactment, have tried ever since to water them down and now lead the fight
against the amendment. The new law is a good one, but with such powerful forces
aligned against it, it will not stay that way.
The system
has failed to write fair rules and to abide by them. On Nov. 6, Virginians
can write the rules themselves by voting yes. Once in the constitution,
property rights will be beyond the reach of those who would take them away.
Here’s the question as it will appear on the
ballot:
Shall
Section 11 of Article I (Bill of Rights) of the Constitution of Virginia
be amended (i) to require that eminent domain only be
exercised where the property taken or damaged is for public use and, except for
utilities or the elimination of a public nuisance, not where the primary use is
for private gain, private benefit, private enterprise, increasing jobs,
increasing tax revenue, or economic development; (ii) to define what is
included in just compensation for such taking or damaging of property; and
(iii) to prohibit the taking or damaging of more private property than is
necessary for the public use?
To read the
State Election Board’s explanation of the question and the language of the
amendment, visit bit.ly/ballot_question