Voters to Have Final Say on Eminent Domain Amendment
By Michael Lee Pope
Feb 23, 2012
http://www.fairfaxconnection.com/news/2012/feb/23/eminent-domain-amendment-voters-to-have-final-say/
This fall, voters across Virginia will be confronted with a hotly debated
amendment to the Virginia
Constitution that seeks to limit the ability of local governments to use the
power of eminent domain. According to various sides of the debate, the measure
would either be a disastrous move that would drastically increase the price of
transportation projects, an empty measure that’s intended to appeal to voters
or a bold way to prevent local governments from abusing the power of eminent
domain.
“Voters tend to view eminent domain
negatively,” said Jeff Skelley, political analyst
with the Virginia
Center for Politics. “So
delegates and senators who voted for it probably just gave themselves a little
more cover.”
The lopsided nature of support for the
effort in the General Assembly certainly speaks to the political popularity of
being seen as tough on eminent domain. The state Senate approved the amendment
23 to 17, and the House of Delegates passed the measure with an 80 to 18 vote.
Essentially, the amendment would allow business owners to seek damages from
local governments if they could prove that property taken under eminent domain
resulted in a loss of profits or loss of access, the definitions of which are
laid out in a separate bill now working its way through the General Assembly.
Although many feared that the implementation could allow lawsuits for something
as simple as removing a left turn lane, the legislation outlining how it would
work is crafted very narrowly to focus on actual land being taken.
Nevertheless, some say the final version would create a hardship for the Virginia Department of Transportation.
“It’s not as bad as it was, but it is still a
very troublesome piece of legislation and should not have passed,” said state
Sen. Barbara Favola (D-31), who voted against the
amendment and the implementing legislation. “I think it’s going to be very
challenging for VDOT to be able to acquire private right-of-way to put into
public use without paying an incredibly inordinate amount of money.”
THE DEBATE ABOUT eminent domain snapped into
the public conscious back in 2005 when the U.S. Supreme Court issued a 5-4
decision in Kelo versus City of New London. The
majority in that case ruled that the government taking of property from one
private owner to give to another for economic development constitutes a
permissible public use under the Fifth Amendment. That ruling created a massive
backlash, including 2007 legislation in the Virginia General Assembly that defined
“public use” in a way that narrowed how eminent domain could be used in the
commonwealth.
“This is legislation that closed the Kelo loophole, but every year people come to Richmond and try to
weaken it,” said John Taylor, president of the Virginia Institute for Public
Policy. “That’s why a constitutional amendment is necessary.”
Taylor and other supporters began
working years ago to set the pieces in place for a constitutional amendment to Virginia’s Constitution.
Last year, the effort was given preliminary approval by the House and Senate.
But because the way the amendment process works in Virginia, the text of the amendment had to
be approved again the next year with an intervening election. Now that
identical text of the amendment has been approved for a second time, the
amendment is on the way to Republican Gov. Bob McDonnell.
“The right to own property was codified by our
founding fathers and is a part of what makes up the fabric of our nation,” said
Jeff Caldwell, press secretary to the governor in an email response to
questions. “Ensuring that individual property rights are protected,
maintained and not threatened by government use for non-core services was part
of the governor’s agenda this year, along with Republicans from the General
Assembly.”
Supporters say the effort is aimed at
ensuring that property owners are compensated if they are subjected to eminent
domain. Opponents say the amendment could cost the state an extra $100 million
each year by making transportation projects more expensive. It’s a debate that
has created difficulty by some lawmakers. Sen. George Barker (D-39), for
example, voted for the amendment last year in an effort to strip out language
adding the ability of property owners to seek interest on top of the loss of
profits and loss of access. This year, he voted against the bill, which he says
he opposed all along.
“It’s nowhere near as bad as the
proposal that came out of committee last year,” said Barker. “But it still has
very significant negative consequences in terms of cost, and it’s also
something that would be very difficult to change.”
THE IMPLEMENTING legislation may have undercut
at least some of the opposition. Now that the ability of businesses to collect
for an action not involving land acquisition, the thrust of the amendment is
now aimed squarely at cases that involve actual condemnation. Because existing
law is already clear on how that works, some have interpreted the implementing
legislation unveiling the effort as a naked attempt to capitalize on a
politically popular issue.
“If this determination is being made,
it seems to me that it somewhat negates the need for a constitutional
amendment,” said Alexandria
Vice Mayor Kerry Donley. “Is the constitutional amendment intended to be a
politician’s brochure?”
“I’m shocked that anyone would
even raise the fact that we might pass a political measure,” responded state
Sen. Chap Petersen (D-34), who voted in favor of the amendment. “Frankly, I
think the impact will be minimal.”
http://www.fairfaxconnection.com/news/2012/feb/23/eminent-domain-amendment-voters-to-have-final-say/