07/25/12: Property rights on the ballot

This op-ed appeared in The Virginian-Pilot on the date shown.

“SHALL SECTION 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended to require that eminent domain powers only be exercised for public uses and not for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue or economic development; and amended to define what is to be included in determining just compensation for permissible takings and to prevent the taking of more private property than is necessary for the state public use?”

Last week, Gov. Bob McDonnell signed legislation that will place on the November ballot the question above.

If approved by the voters, new language will be added to the Bill of Rights that will prohibit the taking of private property for any reason other than public use. Should property be taken, the owner is entitled to “just compensation,” which includes “the value of the property, lost profits and loss access, and damages to the residue caused by the taking.”

The governor also signed legislation that defines “lost profits” and “lost access.” The fiscal impact statement that accompanied the legislation (Senate Bill 437) could not estimate the future cost of the inclusion of these terms; however, the Virginia Department of Transportation “was able to specifically identify $37.2 million over a three-year period (approximately $12.4 million annually) in additional costs that would have resulted if this legislation had been in effect.”

Virginia adopted eminent domain reform in 2007 in the wake of the U.S. Supreme Court’s 2005 ruling in Kelo v. City of New London. The controversial case, in which land was transferred from one private owner to another private owner, expanded the definition of “public use” to include economic development.

The 2007 reforms prohibit Kelo-like condemnations. Specifically excluded are uses where the primary purpose is for “private financial gain, private benefit, an increase in tax base or tax revenues, or an increase in employment.” (It should be noted that the Central Radio case in Norfolk involves proceedings that were undertaken prior to the 2007 reforms and were grandfathered in under the old law.)

Like others before it, proponents of this amendment say it simply enshrines existing law into the state constitution. Opponents say that isn’t true, that nothing in the existing law allows for compensation for lost profits and lost access.

Proponents say private landowners will be better protected, as condemnation will be more difficult. Attorney General Ken Cuccinelli said, “A property rights amendment to Virginia’s constitution is the ultimate protection.”

Opponents say it will take years to amend our constitution again should the impact be unaffordable or undesirable. “A flawed constitutional amendment, once approved, is time-consuming and extremely difficult to remedy,” wrote Hanover County attorney Sterling E. Rives III.

I say the voters should, at the very least, be given the actual language that is going to be added to the Virginia Bill of Rights.

“That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The term ‘lost profits’ and ‘lost access’ are to be defined by the General Assembly. 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. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.”

This is what we are being asked to vote on. Let the conversations begin.