The spurious talking points against property rights..and the biggest eminent domain abuser of them all
By Norman Leahy | Monday, December 12th, 2011 | Politics, VirginiaOver the last few weeks, I’ve pulled together articles on the property rights amendment that will be debated a second time in the upcoming General Assembly session and the local government opposition to the measure. In each case, the reporters’ articles (all from Northern Virginia) I link to quote local officials as being deeply worried over the section of the amendment that would allow property owners to recoup damages for lost access and profits from takings. All of them use the same example: city or county sponsored street fairs and festivals and new infrastructure projects could unleash a storm of litigation.
Now we have the street festival/sewer line bogeyman appearing in Lynchburg, as duly recorded in this News & Advance piece. What reporter Alicia Petska does that her NoVa counterparts don’t, though, is make note of this universal concern:
Lynchburg and other local governments are anxious about the amendment, saying it’s too broad and will jack up the cost of infrastructure projects and public events such as street fairs and parades.
So we know the talking points have been distributed, read and parroted. But among the more nefarious of the talking points is the one repeated by Lynchburg city manager Kimball Payne:
“It’s just poorly constructed,” Payne said of the amendment. “… This takes nothing away from our strong respect for property rights. It’s a bad amendment.”
This is an out-and-out lie, as Del. Rob Bell told the Washington Times, as Bart Hinkle reminded us in his RTD column, and as Sen. Steve Newman says in the News & Advance:
Sen. Steven Newman, R-Lynchburg, said the city and its hired lobbyist have consistently opposed any effort to limit powers of eminent domain.
Local governments and a raft of others who depend upon eminent domain have fought stricter property rights measures consistently for years because such controls are a threat to the way they do business. That they are now reduced to warning of the possible litigation that might arise from street festivals shows how bare their rhetorical larder has become.
And just in case one gets the impression that local governments are the only bad actors in the property rights fight, the biggest bully of them all has consistently been the commonwealth of Virginia, through VDOT. More on that can be found here. And for one of the more jaw-dropping examples of VDOT’s abuse of property rights, check out this interview with Edd Jennings, a farmer in Southwest Virginia.
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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 Examiner contributor.
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36 Responses to "The spurious talking points against property rights..and the biggest eminent domain abuser of them all"
Norm, once again you disappoint; fact is, this amendment is opposed by business groups throughout the Commonwealth because of its perceived negative effect on job growth and economic development, yet you continue to refuse to acknowledge the legitimate case against this amendment.
Further proof of the negative effect is provided by the General Assembly itself which has refused to provide a fiscal impact statement for this legislation, likely becasue they will be embarrassed by the costs of this amendment that will be borne by taxpayers mostly for the benefit of rich commercial landowners (read campaign contributors).
Further, this amendment, by prohibiting the use of eminent domain for any project which is primarily for economic development, could stop the Governor’s top inititaive, the I-85 Economic Developement Corridor. Did anyone bother to tell him that calling a road project an economic development corridor will prevent the use of eminent domain for this mega project to benefit the Port of Virginia?
Norm, you continue to ignore legitimate policy issues with this poorly written and poorly thought out amendment. It should be defeated as an amendment to return as legislation if the proponents can ever write a legitimate bill.
I’m quite content with my stand. If safeguarding a fundamental right upsets the apple carts, plans and aspirations of politicians, economic developers, and their kindred spirits in the corporate world, so be it.
Of course you are content with your stand; despite questions about the impact of the amendment all around, you ignore the facts. And this is not about safeguarding fundamental rights, which are well protected in Virginia by our constitution and statutes. It is about creating additional taxpayer funded “rights” which have not existed, and which will cost each of us to pay higher taxes.
Further, the attempt to prevent the use of condemnation for public projects that have a nexus to economic development could destroy our Port, lessen our ability to attract international companies, and curtail economic development projects throughout the Commonwealth of Virginia.
But if you prefer to bury your head in the sand, these concerns will never reach you. Enjoy the view.
Often times and especially in more rural and underserved areas, infrastructure improvements can definitely lead to real growth. When you take somebody’s land for a public purpose, yes, you must compensate them. It is the law NOW, that eminent domain may not be used for development. They just want to put that in the Va Constitution to make it harder for govt and developers to collude and steal their land with unfair compensation.
It is the law now that transportation projects are allowed. In fact some localities try to reroute new public transportation routes specifically cut through property of businesses or homes they want moved elsewhere. Maybe they would rather clear you business from the beach front and clear other people from where they want their “entertainment district” so they can move your nightclub to where the riff raff used to live.
Certain people in office and development understand it will be much harder to legally plunder the citizenry if an amendment passes. Changing the law is one thing. It will be near impossible to undo the amendment.
My view from the sand is infinitely preferable to Mike’s view of his cecum.
Badly drafted is code for “needs to be amended.” If it’s amended of course the whole process has to start all over from square one and then it would have to be approved by next year’s General Assembly as well before it could get on the ballot. Look for various legislators, including some that you think are on your side on this issue, to offer “clarifying” or “technical” amendments.
Mike should “recuse” himself on this topic since he has a huge conflict of interest with taking private property which directly affects the bottom line of his business enterprise. This is the ultimate pinnacle of redistribution when private property is “taken” by the state for the “common good” or by representatives in municipal governments who are bought and paid for by developers, or which are controlled by developers who get elected. These parasites deserve to be “occupied”.
So Britt, to you, the condemnation of private land, subject to fair compensation, is defined as “legal plunder”? This is the kind of hysterical commentary that has plagued a real understanding of the effect of this amendment.
Fact is, today, fair compensation is required, and if the condemnor does not provide it, landowners have access to the courts. As the CEO of a commercial real estate company, we have used the system frequently and have found it to generally produce a fair result.
Regretfully, some property owners are not content with a fair result, but try to get more than fair compensation by appealing in the press for more money. Frankly, I think a whole new legal industry has grown up around this despicable attempt to bleed the taxpayers.
Remember, if more compensation is paid than the land is worth, we the taxpayers pay that bill. This amendment sets up additional criteria requiring the state or local government to pay more than before. It has a negative fiscal impact on taxpayers, and it will cost all of us more money.
Mike, thanks for reminding us that you are gorging yourself at the public trough of “we the taxpayers”. The fact that this amendment has some developers and municipalities’ panties in a bunch means that there is something good in it for private property owners.
In my county we have seen one egregious infringement on property rights after another- usually resulting from overly ambitious developers seeking corporate welfare from equally ambitious local governments.
Bottom line, property rights need to be sacrosanct. Period. I’d like to see the look on Mike’s face if someone were to condemn his house and offer him 1/2 the market value. Especially if it’s underwater as is.
No one should have to go to court to protect what rightfully, legally belongs to them. No one.
Well Steve, since the current statutes and the constitution prevent “overly ambitious developers seeking corporate welfare from equally ambitious local governments”, I would be surprised if you could back up your statement with the facts.
Currently, condemnation is only allowed for public purposes, and the land being condemned must be compensated at fair market value. If a city/county were to use condemnation, and then turn it over to a developer for private use, that is now a violation of the statute and the constitution.
So I look forward to your example.
When fair market value is determined by the same entities taking the land, it is a conflict of interest and a source of a lot of the issues.
Notice how you didn’t dispute the point about your home being condemned.
Mike, you are confused when you use the word “private” when you really mean “commercial” or “government”. We don’t need to revisit the 2005 Kelo and 2010 Florida SCOTUS cases again and all of the new zoning ordinances and regulations by counties and municipalities which are significantly reducing private property values by draconian use restrictions and defacto condemnation by zoning reclassification .
Lol, Mike, you kill me. What I meant was there would be legalized plunder if it were not an amendment, but just a law (as is now) and guys like you gave lots of money to politicians and had that law changed. Then we would have eminent domain legal for development. Your buddies on council could condemn John Moss’s house so you could build a strip mall or Walmart or something.
I have zero problem with a public purpose taking where there is FAIR compensation. Heck, that’s even constitutional. I did not mean under current law or the amendment, but plunder can still illegally or pseudolegally happen.
Games are often played. Localities try to contrive ways to condemn for blight where there really is none. Another game is announcing intentions to condemn far ahead of time. Mike, what do you think happens to market value when you announce you are thinking about taking a property. It drops! Lastly, you just ignore the fact that flies in the face of your legal remedy argument. Often times, it is the poor or those otherwise unable to hire good attorneys to protect their rights and assure fair compensation is indeed paid.
Norman, I would urge you to contact the legal offices of Joseph Waldo for a short interview. He or his partners could cite multiple examples of abuse. Even locally. He specializes in these cases and has spoken to the Tidewater Libertarian Party about Eminent Domain in the past.
Additionally, someone should petition their rep to request AG Cuccinelli render a legal opinion so that Mike Barrett can be comforted.
Despite that light rail really serves skyward development and has little positive effect on traffic congestion, it is a transportation project. I am pretty sure current law or an identical amendment would not stop your light rail from happening.
Actually Britt, none of what you describe can be done in Virginia today, so no amendment is required. Further, the new language prohibiting the use of eminent domain if the primary purpose of the project is economic development will prohibit the Port from gaining new propery, from the use of condemnation for the new SR 460, the Governor’s top highway project, and likely any other project that some lawyer can make the case is really for economic development.
The cost to the public treasury will be enormous; that must be why the Legislature has not done a fiscal impact statement. We the taxpayers will pay this outrageous increase in costs for public projects. There you go; republicans support higher taxes.
Interesting that people are so vehemently in favor of property rights when it comes to eminent domain, but so quite about zoning laws….pretty much all of which involve people trying to exert property rights on property they don’t, in fact, own.
Spurious talking points, Mike.
Legally, you are correct that it can’t currently happen. Although, those that do retain legal counsel and win are telling. Evidently it DOES happen.
You are correct that it can’t happen under current law. The reason why an amendment is needed is to prevent crooked collusion between developers and office holder fundraisers and changing the law. Good luck trying that when it becomes a part of the VA constitution.
You’re just spinning a legal tale about the amendment and none of your “parade of horribles” has come to fruition under the CURRENT LAW.
For Steve V.: You make some good points. On the last one I would say that emeinent domain is easier to understand, more clear cut, already understood by those that pay attention to the news. Additionally, I think hotly pursuing a known evil and ending it as swiftly as possible is best even if that means addressing the other later. It could be ignorance or laziness.
I must also point out that Tim J did indeed touch on zoning. I think many of us here could agree with you about zoning also being an issue. It just isn’t the political hot button eminent domain is at the moment.
Steve, zoning is the dirty little secret where a developer can grease municipal officials into classifying a desired property into a land use category that will restrict use rights of the private property owner and devalue the property which means that the property owner is screwed both ways. The taxpayers will still pay “this outrageous increase in costs for public projects.” because of the embedded “political patronage tax” on “public projects” that reflects the arrangement between developers and the politicians they own.
On this forum, the use of fear and derision seem to be the weapons of choice. Fact is, the chance of any property owner who owns a home being the subject of a condemnation for a public profit is somewhere between infinitesimal and no chance at all. But if you own commercial property along an existing right of way, your chances go up considerably.
So those who would benefit from these new “right” in this proposed amendment are mostly rich owners of commercial property. They will be able to make the case for lost profits and lost access and they will be the beneficiaries of this change.
Of course, the homeowners some have referenced on this forum will be the ones paying these rich owners of commercial property in the property taxes they must pay. This amendment is both unnecessary, and expensive.
And Britt, the issues I and others have raised deal with the additions this amendment will cause to be compensated that are not compensated now. That is, compensation for lost profits and lost access.
We beleive that this will result in windfall profits to property owners at taxpayer expenses, especially to those who can afford to employ land planners, architects, engineers, and accountants to create a speculative picture of what they could have done at some unknown future date and the taxpayers will have to pay them for it.
Fear and derision, Mike? How about the attempted class warfare where you assert the main beneficiaries will be rich guys like you. Thankfully, you argue against your own interest, right?
Fear and derision? How about the fear that you put forth that we taxpayers will end up bearing a horrible burden because of guys like you getting good deals because of the amendment?
Loss of profits and access? What? Do we not agree what fair compensation for taken property is. When you damage another person to the tune of 100k do we not see lawsuits for 100k? Windfall? I call it making the injured party whole and not legalizing plunder.
I totally disagree that it is only the “rich” that will be affected. Localities often pick the path of least resistance. That means razing neighborhoods and compensating them less than it will take to relocate them.
What is often unnecessary and expensive are some of the projects paid for by taxes at the homeowners expense.
Now Mike attempts to characterize himself as an expensive commercial “victim” of “right of way” to further justify looting the public trust and treasure.
Actually, I acknowledge that firms like us may benefit from this amendment; afterall, we do own a portfolio of commercial real estate. But just as we may receive higher awards, so will we pay higher taxes to support these higher awards to others. Point is, the system as structured today provides for damages to the residue, so this amendment is simply not necessary.
I am a supporter of the new SR 460, but I believe the amendment will prevent condemnation to obtain the ROW. If the necessary ROW must be obtained by negotiation, this project will have to be abandoned. That is not good for Hampton Roads, for the Port, nor for the Commonwealth.
Mike Barrett,
Chairman of the “Road to Serfdom” board. No wonder your such an advocate using the government to steal people’s property.
http://www.hreda.com/news/annual-report
As most of us around here was fighting for your freedoms, you were robbing us blind. Good job,
John, if serving as a volunteer on the regional economic development alliance which works to bring new national and international corporations to Hampton Roads makes me a target of derision from you, I know I must be doing the right thing. If you speak for others on this forum, the shift from most conservatives supporting private enterprise and economic development, to extreme populism combined with libertariansim, is an incredible turn around, one which ignores the history of our great nation as one that serves liberty and freedom while ensuring that we all play a part in making this nation great.
Wonder who said that the Mayor of Norfolk asking for federal funds for flooding in Norfolk proved that man-made global warming was real.
Anyone who claims that man-made global warming is real is either
(1) a moron
(2) greedy and corrupt
(3) a greedy and corrupt moron
History has shown that countries with strong property rights usually have strong economies.
Pass the property rights amendment.
Data from 2 different satelite systems show that ocean levels have started FALLING. And I have no idea why.
Mike,
Central planning doesn’t work and our country was not built on central planning, there are 190 other examples of it failing.
…and we can add America to the mix. I don’t know if you realize that your central planning is based off the premise of United Nations. And there is nothing to tell us whether it did or didn’t because your minions have destroyed the free market.
I speak for no one else. Hopefully, the ones that can form their own opinion will do so. The other minions will fall back in line…as they always do.
Yes…Spain got a lot of jobs and Obama is creating a lot of jobs also (stimulus). But those jobs are killing our economy costing the taxpayers hundreds of thousands of $$ a year…per job.
You have no measuring stick except all the minions in the room…and of course, they’re not going to bust up their cushy little relationship.
I see the Daily Press and Virginia-Pilot was in on the little meetings too. I’m sure they have a lot of integraty also. Especially now.
You see, the only people central planning helps are the people in the room.
Well John, if you are saying that HREDA is an example of central planning, you just don’t understand its role. We travel the nation and the globe so our municipal partners don’t have to each duplicate that travel. We market Hampton Roads, often with VEDP and the Port of Virginia. We call on international firms to thank them for locating in our region, and oh, by the way, can we meet with the companies that make up your supply chain. We are supported by the public and the private sector. We had seven announcements this year with hundreds of millions of dollars of investment and over 2,000 direct new jobs. Green Mountain Coffee was our latest announcement. Not a bad year.
Then remove our elected officials from your planning. I would imagine those meetings would have an entirely different atmosphere. You can solicit all the businesses you wish but do it on your own dime.
Give me FREE MARKET! Mike Barrett’s economic planning sucks!
…and that investment is my damn tax money. Give me my money back!
So, the social engineering of city plans, draconian ordinances and monitoring our purchases is done to help you solicit European suppliers.
John, for pete’s sake, take a tablet and chill. You really are a trip.
Mike, you were an “appointed” SPSA governing board member and once wrote: “The regional service providers like SPSA, HRSD, HRT, HRPDC, all do excellent work but on occasion have caused controversy.”
Your cronies and their stewardship of public money have led to some controversies noted by comments by others on various VP articles: “paying people who don’t show up for work for more than a decade, maintaining two sets of books to lie to the Federal government, abusing their role by their Executive Director openly advocating for one side of a referendum ballot issue, running up massive cost over runs, running up massive debt, going of safari trips and all manner of travel on the taxpayer’s dime, nepotism, cronyism, failure to comply with the law in regard to FOIA requests, and an utter failure to safeguard the public’s money.”
And then mentioning that you are a card carrying member of HREDA, “We travel the nation and the globe so our municipal partners don’t have to each duplicate that travel. We market Hampton Roads, often with VEDP and the Port of Virginia. We call on international firms to thank them for locating in our region,…”. What’s the difference between HREDA and all of the other corrupt “public service” organizations in Hampton Roads that are tapped into public money? Are you guys now meeting in the basements of local churches with politicians to cover your tracks?
To paraphrase everyone’s favorite President, there they go again!
In 2007, after the Kelo decision, then-Senator Ken Cuccinelli and I authored the bill to protect private property from abusive eminent domain. At the time, we heard many of these same arguments from opponents — that the bill would end economic development, raise costs for taxpayers, and so on. We answered that all we were trying to do was ensure that if the government took private property, it should only be for a true public use, not some nebulous public “purpose.” In other words, government is allowed to condemn property for a road, but it cannot take Susette Kelo’s house and give it to Pfizer in the name of higher tax revenues.
The bill passed, and the parade of horribles proved to have been illusory. Now we are trying to put property rights protections into the constitution where they will be safe from shifting legislative majorities. And what is happening? The same people who opposed the bill are trotting out the same arguments to oppose the Constitutional amendment.
With regards to impeding economic development, the easiest thing is to go read the law and the amendment, side by side. You will see the same language. There are identical prohibitions against a taking where the primary purpose is increasing tax revenue or economic development. And yet, economic development has continued in Virginia since 2007, just with these additional safeguards. We just want to make sure that private property protections are placed where they ought to be, in the Virginia Constitution.
There is one place where the Amendment expands on the original bill, and this relates to damages to be paid when property is condemned. This is only to make the landowner whole; there is no windfall, just an effort to adequately compensate him for the government taking his land. If the public wants to take someone’s property for a necessary public use, the least the public can do is pay for it, rather than leaving uncompensated costs for the landowner. But these only arise when property is taken or damaged, and even then, the terms “lost access” and “lost profits” shall be defined by the General Assembly. Again, just go read the Amendment.
It is no surprise that the local governments and those who profit from condemnations would oppose this amendment. It would have been much harder for Pfizer to assemble a large property if it had been forced to negotiate with Susette Kelo to purchase her property. But the property was her property, and the government had no legitimate basis for taking it away. We have had eminent domain abuses in Virginia, and this Amendment will help prevent them in the future.
Well again, Kelo did not apply in Virginia, so once again referring to it just shows how the use of fear is being used to promote this amendment.
Thanks for admitting this amendment adds new forms of compensation. Who knows how it will be defined by the GA? We ought not to put something into an amendment to the Constitution until we do know.
You could just as easily add new forms of compensation by statute; no need to put it in the constitution. Further, since this will have a tax impact, why no fiscal impact statement? Don’t taxpayers have the right to know how much this new windfall for property owners is going to cost them?
Your dismissal of the concern over economic development is very misleading. When it says that…”a taking or damaging of private property is not for public use if the primary use is for public gain, private benefit, private enterprise, increasing jobs, increase tax revenue, or economic development…” are you not concerned that improvements to SR 460, advocated by the Governor as essential for economic develpment and for increased revenue at the Port, will therefore be ineligible for the use eminent domain?
Clearly, this project is for economic development, and therefore does not qualify as public use. If the ROW for this must be obtained by negotiation, you must honestly admit that the project is dead. If so, all the state’s nvestment to get ready for the opening of the Panama Canal will have been for naught.
This amendment is simply not ready for prime time.
Delegate Bell, thanks for your support of this Amendment and your point: “It is no surprise that the local governments and those who profit from condemnations would oppose this amendment.” I would also ask that you also look at zoning abuses that work hand in hand with eminent domain condemnation and are sometimes strategically used by local governments to reduce property values, which translates to less than just compensation to the property owner.
Those who suppport the improvements to SR 460 will note that one of the Amazon centers will be built south of Petersburg on SR 460. Perhaps astute readers of the announcement will have noted the Governor’s comment that…”This was solely about jobs and economic development here,” said McDonnell.
My point is, if the General Assembly passes the proposed amendment which bans the use of domain for highway projects if they are primarily for economic development may want to make special note of the above comment. Certainly, real estate lawyers will. Any attempt to obtain the ROW for the new 460 will have to be done by negotiation, not condemnation.
That project could be a century away.
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