More local governments line up to fight property rights
By Norman Leahy | Wednesday, November 30th, 2011 | Politics, VirginiaWhile the state’s budget will, rightly, claim most of the attention in the next General Assembly session, the sleeper issue will be the constitutional amendment on eminent domain. The measure passed its first hurdle in the 2011 session by winning passage by wide margins in the House and Senate.*
Before is can appear on the November, 2012 ballot, however, the amendment must pass the Assembly again — without changes. And local government lobbyists are aiming to do whatever they can to stop it. We’ve already seen that the city of Manassas is determined to fight. Now we learn of Spotsylvania county and the city Fredericksburg’s efforts to scuttle the amendment:
Spotsylvania County recently approved a resolution opposing the eminent domain amendment. The resolution says the county wants to preserve eminent domain for public purposes, such as schools, parks and roads, and also wants to ensure the amounts that localities pay private landowners for taken property are “reasonable and do not include speculative measures of damages.”
Spotsylvania’s resolution also says the county also wants to preserve its local authority to combat blight.
In Fredericksburg, council members have generally agreed on language to oppose the eminent domain amendment, said council member Fred Howe.
Alexandria, and Arlington, too, has joined the anti-property rights bandwagon, hiring its own lobbyist (for $5,000) to argue against the measure.
More localities will do so — if not directly, then through their associations, the Virgina Municipal League and the Virginia Association of Counties. Putting aside the notion that local governments are using taxpayer dollars to lobby against strengthened property rights for those same taxpayers, is the larger question of honesty:
Though the Alexandria council is against the proposed change, members support the 2007 law, said Bernard Caton, the city’s legislative director.
Ridiculous. The 2007 fight over the eminent domain law featured strong opposition from the local government lobby, as the RTD’s Bart Hinkle reminds us:
Not surprisingly, local governments oppose the amendment. Among other things, they worry about a provision stipulating that property owners should be compensated for the loss of business resulting from government takings. Does this mean they would support the amendment absent that provision? Er, no. The Virginia Municipal League (VML) and the Virginia Association of Counties (VACO) fought 2007′s statutory effort to protect property rights as well. The VML did not want to limit condemnation only “to pure public uses” and felt Kelo produced “the correct outcome.”
The locals don’t like the idea of anyone taking away their eminent domain club — by statute or amendment. And they will invent any excuse in an attempt to keep it, even when those excuses, worries and fears are shown to be baseless. As Del. Rob Bell told the Washington Times:
“The local governments were certainly opposed to the original statute and claimed it would bring along the end of the world,” he said. “Of course, it hasn’t. … We’re certainly hopeful that property owners will protect themselves.”
Indeed we should. And in this legislative fight, the entity they need to protect themselves against is their own (local) government.
* The Senate’s approval was long in doubt and the amendment was dead for a time. Only an unusual bit of legislative maneuvering by Sen. Mark Obenshain, and a surprise move by Sen. Creigh Deeds to strengthen the amendment in committee brought it back to life. More on that can be found here and here.
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About the author
Norm Leahy has written about Virginia and national politics online since 2002, beginning with One Man's Trash (OMT), and continuing through Bacon's Rebellion (both the blog and the e-zine), Sic Semper Tyrannis, NBC12's Decision Virginia, Richmond.com and Tertium Quids. He is the chief blogger at "The Score" and a producer of "The Score" radio show as well as being a Washington Post contributor.
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17 Responses to "More local governments line up to fight property rights"
Norm, by ommision, you have failed to note that business groups oppose this as well. In fact, there is a developing coalition of those who understand the negative effects this change will bring to quality growth and development throughout the Commonwealth.
By focusing on the position of local governments, and failing to note the oppostion by business groups, you have either intentionally misrepresented the opposition, or attempted to downplay legitimate concerns about the effect of the legislation. Certainly, if the cost of obtaining property for necessary public projects skyrockets, all of us taxpayers will pay higher taxes. The benefits will inordinately go to rich commercial land owners.
Now this may be the perfect situation for politicans; great new contributions from the wealthy who will benefit, hidden in support for an emotional issue, but which when examined, reveals its true cost. This legislation, as written, adds new benefits to those whose property is taken for public purposes, which all of us will have to pay for.
You could have done better if you attempted to present a balanced review of the matter; instead, you just provided more red meat for your conservative base that does not understand the real impact of this amendment.
Based on your past articles, I expect better from you.
As this post was already getting long, I left out the business groups opposing the issue (with utilities leading the way).
Needless to say, they tend to like eminent domain as much as local governments. Scroll down a bit in this post, and there’s a graphic listing companies, associations and local governments who opposed the amendment in 2009: http://bearingdrift.com/2011/10/18/the-coming-fight-over-property-rights/
The home builders association was against it…as were commercial real estate developers, the chamber of commerce, realtors, Norfolk Southern, Verizon, and many more.
Fair enough, and thank you for that clarification. So why would so many business groups led mostly by republicans oppose this amendment?
The fact is, this amendment creates new property rights for those who own income producing property. If a taking is required for a public project, these landowners and business owners could receive much more than they are entitled to today, and we, the general taxpayer, will have to pay more in taxes for this added compensation. Further, the financial benefit of these new rights will be based upon speculative criteria, and those who can afford the smartest consultants who can conceive of the most valuable future uses of land will likely receive the most new money.
Ironically, the General Assembly requires a fiscal impact statement for new legislation that has a budget impact; I guess they exempted themselves from this requirement in this case. Why? Because we will pay more so the rich commercial land owners will get higher awards.
This amendment is a grab by special interests for more support from the government. It is about time Bearing Drift looked beyond the ideology and dealt with the facts.
Special Interest! The special interest are the businesses who will steal people’s property through the local government. A note, noted by the decenting judges of Kelo…
Gotta love those Public-Private Partnerships… Using the blunt instrument of government to steal people’s property.
Who’s the special interest now. Looks like Norman has a long laundry list of such special interest who have partnered up with local governments. Who gets screwed? The individual, the American citizen.
Mike since when did regular tax paying citizens get demoted to “special interest” status, are you kidding me ?
Well, as you say, if this amendment passes, then in your words we will know….”Who gets screwed? The individual, the American citizen.” That is exactly who will get the shaft as the special interests will be compensated for a whole new definition of property rights that has never existed before.
Wrapping this in Kelo is either ignorance or intentional misdirection on your part. This is post condemnation and has nothing to do with the taking.
It has nothing to do with PPVs either. It is simply a new way for rich commercial landowers to take more money from taxpayers for creative speculation about what ehy may have done with the property sometime in the future, or how much business they lost becasue of a new road built by the City.
This is disastrous legislation, and no one in the majority wants to admit their error.
Mike Barrett,
Your opposition to the amendment is as transparent as your arguments are shamefully dishonest. The Takings Clause of the US Constitution requires “just compensation” for private property taken for public use. Just compensation, not current market value of the land, not current appraised value of the property, or any other cockamamie formula devised to limit the expense of a public project. And, thanks to Kelo, “taking for public use” now includes condemning blighted private property to create more upscale, and higher taxed, private property. No wonder that developers like you, real estate agents, and public utilities oppose this amendment! You want local governments to steal private property and sell it at a discount to people like you. Well, here is a news flash: if you take someone’s business and destroy their livelihood, then you are going to have to pay what it takes to make them whole again. And if you want private property for commercial development, you are going to have to negotiate with the owner instead of bribing local officials with campaign contributions to steal it for you. I’m quite certain that is what makes you so opposed to this amendment, despite your crocodile tears for the taxpayers.
Well Rocky, from your post, it is clear you don’t live in Virginia, because all your references to Kelo do not apply here. Our constitution and statutes never allowed the taking of private property for commercial development and already states that property shall not be taken for public uses without just compensation. No amendment is required because it already says that. So after you have informed yourself of the facts, perhaps you can revise your post accordingly.
Nice try, Mike. I was born and raised in Virginia and have been a resident of Fairfax County for almost 20 years. Not only do I know what the law is in Virginia, but I have also studied Constitutional Law as part of my dual undergrad degree in Political Science and History. Supreme Court rulings trump state law, so regardless of what Virginia laws says it became inoperative when Kelo vs. Bridgeport was handed down. As for just compensation, that has been interpreted by Virginia courts to be many things, as enumerated in my unrevised post. Local governments has sought to lessen the financial impact of public projects by using low tax assessments as the value basis rather than fair market value. That is hardly just compensation, particularly when the property owner is holding the property for future speculation. Look up the case law in Virginia on how often a eminent domain condemnation has dragged through the courts for years over the question of just compensation. I am well-informed of the facts and that is why I can see right through your bullshit. So, if no amendment is necessary because of existing Virginia law then why are you so vociferously opposing this “unnecessary” amendment here on BD and why are so many local jurisdictions spending tens of thousands of dollars on lobbyists to oppose it? That hardly passes the Giggle Test.
Perhaps you studied the law, but you must have forgotten most of it. All Kelo did was affirm that the states can determine the rules for eminent domain and compensation, so since Connecticut had broad power to condemn for economic development, the Court ruled that State law prevailed.
Since Virginia had no such power, Kelo had little or no impact in our Commonwealth. But that did not stop politicians from making hay as if it did. This amendment, and the wrapping of oneself in Kelo, is a political act of misrepresentation of the highest order.
As a participant in commercial real estate, I have personnally been involved in many condemnation cases. We have generally been treated fairly by both the Commonwealth and the cities, and in cases where we felt the award was not just, we availed ourselves of the court. One thing we have never done is appeal to the press to try to get a higher award, a new tactic apparently pushed by some attorneys.
Mike,
Since you are fond of distorting the facts, here is the text of the Kelo Decision that you are apparently hanging your hat on:
“In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.”
Notice that the Court took notice of the difference between statutory restrictions that exceed the Federal baseline and those that are embodied in a State Constitution. And, it carefully noted that “…the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate.” Under existing Virginia law, the restrictions on condemnation for commercial use could be voided by a single act of the General Assembly, thanks to the Kelo Decision. Under this amendment, the restrictions could not be lifted without another Constitutional amendment. And you could run a developer’s bulldozer through the difference between the two.
BTW, do you know what eventually happened to Kelo’s property? Connecticut relocated her house at great taxpayer expense to another location, the development of the waterfront lots that were condemned failed, and the area is now a city dump. Look it up.
Thanks for proving my point. Since Virginia statutes and court precedence do not allow the taking of private property for economic development purposes, no amendment is required in Virginia.
Already, our Constitution requires that just compensation be provided, and that public uses are to be defined by the General Assembly. This proposed amendment sets up a whole new set of claims for damages that do not exist today and which will cost millions and inure to the benefit primarily of commercial land owners.
Further, by enshrining the prohibition against increasing “jobs, increasing tax revenue, or economic development” the risk to projects like improvement to SR 460 are simply too great. Since the Governor touts this project as his number one priority for our region, and justifies it as a stimulus to improved performance of the Port of Virginia and economic development along the route, any lawyer worth his salt will sue to stop this project because it is primarily for economic development.
And the lawyer, and his client, would be right if this amendment is adopted.
You are hilarious, Mike. You remind me of the hyenas back in the days of the Equal Rights Amendment who screamed that it would make men and women restrooms unconstitutional. Your arguments are just as ludicrous.
Thanks Rocky; you appear frustrated that the Party’s talking points failed to cover the most relevant information. But that is what happens when ideology trumps common sense.
No, Mike. I am frustrated because I let myself get sucked in to arguing with an unprincipled charlatan. Buh-bye.
Fine Rocky, and I suspect you won’t read this. But it would be wise to talk with others who don’t always just take the Party line as gospel and instead, get viewpoints from those who don’t agree. Frankly, the view I expressed is supported by very competent lawyers from some of the largest law firms in Virginia who are on both sides of the aisle. Of course, many of them will benefit from the work this amendment would provide if it were adopted, but they also see the problems inherent in putting this in the constitution, especially in law suits claiming lost profit and lost access, and in stopping public projects like SR 460 because it is in essence a project that enhances economic development and therefore could not use eminent domain to acquire the ROW.
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