Senate passes property rights amendment
By Norman Leahy | Monday, February 13th, 2012 | Politics, Virginia(Three Updates)
SJ 3, the property rights amendment that has been the subject of a good deal of Senate intrigue, passed that august body today by a 23-17 vote. As the LIS system is being a bit flighty right now, a vote break down will have to come later. Suffice it to say that a number of votes flipped from “yes” to “no” since the amendment’s passage in the last session (when it was approved 35-5).
I’ll update this with a comparison of the votes from each session as the current data becomes available.
How the Senate voted
Here’s the roll call vote on the amendment. Supporters included Democrats Creigh Deeds, John Edwards, Phil Puckett, Ralph Northam and Chap Petersen.
The rest of the Democratic caucus opposed the measure. And they were joined by two Republicans — John Watkins and Harry Blevins.
Last year, with an election looming, the Senate passed HJ 693 35-5. The only members to oppose it were Sens. Mamie Locke, Louise Lucas, Yvonne Miller, Mary Margaret Whipple and Patsy Ticer. Among Democrats, then, it’s rather clear that the notion of voting against a property rights measure in advance of an election was seen as bad politics. Even Dick Saslaw was among the “yes” votes.
No Republicans opposed the measure in 2011.
The House is slightly behind the Senate in getting the amendment through, but passage there is highly likely. The Senate was always the key. Congratulations to Sen. Obenshain for shepherding the bill this far.
And a special congratulations go to the Democrats who voted for the amendment — particularly Creigh Deeds. Those who followed the roller coaster ride the amendment took last year will recall that it was Deeds to road to the amendment’s rescue in the Senate Privileges and Elections committee.
There’s still a long way to go on this bill…crossover, the November ballot. Anything can still happen.
But for the moment, excellent work, folks.
Update #2
Regarding Sen. Watkins’ change of heart on the amendment…
During floor debate, Watkins wondered (and this is paraphrasing) whether property rights should be called fundamental, as that might lessen the importance of the other rights enshrined in the state’s constitution. Watkins also wondered whether it was right and proper for Christians to say they owned or otherwise had a right over property.
Yes, metaphysical moments do happen on the Senate floor.
Oddly, though, Watkins also said the Senate had not had enough time to study the amendment. Considering it was debated extensively in the previous session (and Watkins had no problem voting for it then) and the exact same text was debated this year, I’m left to wonder…was he merely trimming last year? Or simply not paying attention?
Update #3 – Senator Blevin’s office explains his vote
“Following Kelo the General Assembly passed a law that adequately protected citizens of Virginia from a similar taking. Last year the Senate passed a Senate Resolution to codify these protections in the VA Constitution. Senator Blevin’s proxy was mistakenly voted for the resolution and the bill was reported out of Privileges & Elections. He had reservations at that time and felt that the measure went unnecessarily way beyond the protections established previously.
“Senator Blevins sought the advice of a number of attorneys on the current law in place and the impact of placing the resolution, as written, in the constitution. They all recommended against it for a number of reasons. One in particular was that it is very difficult to address problems with it once it is part of the constitution. Another issue is that there is no definition of lost profits in the code. It would adversely impact the state’s ability to construct needed roads and will substantially increase the cost (especially due to litigation) of local and state projects.
“Growth should never be supported at the expense of private landowners, but over-legislating will limit it.”
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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.
Comments
31 Responses to "Senate passes property rights amendment"
Best news I’ve had all week.
This is a great day for property owners. There was too much abuse of the Takings Clause even before Kelo. Now the individual property owner, not the government, determines the future circumstances of his holdings.
This is a sad day for taxpayers who have been hoodwinked by politicians who are working for rich commercial property owners. That is who benefits at the expense of homeowners.
The chances of a residential homeowwner’s property being needed for a public use is infinitesimal; the chances of a rich commercial property owner receiving much more in awards from the use of eminent domain for public projects will go up dramatically.
So who is being served by this amendment which is unnecessary? You guessed it, the rich and the powerful. Congratulations Senate, you just proved to whom you owe your allegiance.
Mark my words. This is a disaster.
Mr. Barrett:
For the very last time, will you or will you not agree to debate this issue in a public arena and not from behind a computer screen? For at least the last ten years you have shown how shallow you are in your personal attacks against those to whom you disagree.
Now is the time for you to stand up and publicly say that you are not a coward, and that you will face those who are fiscal conservative, constitutional Americans. What say you, Mr. Barrett. As the old adage goes, “Put up or shut up.”
You can use the debate to make your case against members of the the Taliban who serve in the Virginia General Assembly. (Your words appearing in the Virginian-Pilot, not mine).
Perhaps you can convince two or three voters to vote against the Constitutional Amendment when it appears on the November ballot.
What say you, Mr. Mike? Any time, any place.
I am not in the habit of spending time with nuts who froth at the mouth; that includes you as well, Robert. In regard to my use of the term Taliban, yes, I have posted that as a protest to our loss of liberty which occurs every time the House of Delegates goes into session. Their religious fanaticism is on full display this year, and I have objected to it and have protested their gross overreach in print.
I also think they have been guilty of dereliction of duty in regard to the funding of transportation infrastructure, and believe any member of the republican caucus in the House ought to be ashamed of themselves for their destruction of a system that just a decade ago, actually worked well.
In regard to the constitutional amendment, anyone with a wit of knowledge and experience in this arena knows the amendment is unnecessary, benefits only the rich and wealthy, will put projects like U.S. 460 and U.S 59 in jeopardy, and will cost taxpayers like you millions more in awards every year. I will vote against it; you’re not smart enough to realize it will cost you money so you can pay rich commercial propety owners higher awards as well.
Norm, the most bizarre thing about Senator Watkins’ call for more study was that he was the one who proposed the amended language on lost profits and lost access on the Senate floor in 2011 that ultimately was adopted and is now heading to the voters in November. So I suppose his speech yesterday was an admission on his part that he had flubbed it up the year before.
I think business owners across the Commonwealth were able to convince a significant number of Senators of the unintentional consequences of this ill thought out and ill prepared amendment. Had we had a bit more time, we may have been able to convince a few more and defeat the amendment.
But we didn’t, so taxpayers around the Commonwealth will pay higher awards to millionaires, and homeowners will think they are protected when in fact, they are put at higher risk. Why? Because cities and counties will be incented to take residential land, where they will not have to pay lost access and lost profits, and to avoid taking commercial property, where they do have to pay lost access and lost profits, wherever they can.
So the net effect of this ill conceived amendment is that the homeowners will be put at more risk for the use of condemnation of their property for public use.
Once again, the republicans who pushed this amendment proved they will go out of their way to punish homeowning taxpayers in order to provide more wealth to rich commercial landowners. So what else is new?
I can understand why Brian S would think is the best news he’s heard all week. It may as well be called “Attorney Bonanze in Billable Hours Act” because the only place this amendment is going–if it is passed–is straight to court. For YEARS.
[...] if you recall, was against the property rights amendment before he was for [...]
Wonder how much this will cost Virginia Taxpayers ??
A couple of pennies every 10 years???
Wonder how much the cost of gasoline will go up in the next week due to the failed energy policies of Barry and the democrats ???
And if you want to see where the failed economic policies of Barry and the democrats are taking us, just watch Greece.
http://www.telegraph.co.uk/finance/financialcrisis/9082843/Greek-economy-spirals-down-as-EU-forces-final-catharsis.html
Any piece of legislation that impacts on property rights in any way is going to end up in court. That’s not the point and it shouldn’t be a deterrent. Even the best laws are challenged. This isn’t my area of the law anyway, so it’s not like I’ll make a dime off it.
The point is that we’ve protected Virginia from the Kelo decision and have made it harder for localities to take property from property owners without proper compensation and without a legitimate public use in the way public use has traditionally been determined. This may have been a loss for commercial developers, and a loss for localities, but it’s a win for residents and property owners.
Actually Brian, that is not the case. We were protected from Kelo by statute, and it is not any harder to take property for public use. That has not changed at all.
But it will be more expensive, so this amendment is a budget buster. And rich commercial property owners will receive a bonanza at the expense of residential homeowners.
The impact on major economic development projects like the improvment of U.S. 460 and 59 remains to be seen. Since these have been touted by this Governor as part of his economic development program, regretfully, that may disquality them for the use of eminent domain. That will be litigated, and here is hoping that it does not take a decade or more to come to a decision.
Statutes can be changed. A constitutional amendment keeps this issue from being tinkered with.
Well yes Brian, but that cuts both ways. If it is the disaster I and others predict, you won’t be able to change it back.
Mike,
We get it. You think that this amendment is equivalent to the last law passed in Rome. But your logic continues to elude me. How will wealthy commercial developers get richer if this amendment is a budget buster? Won’t developers (like you) see projects cancelled due to increased costs? And how will that be at the expense of residential property owners who will be protected from condemnations for commercial purposes and will be guaranteed full market value, as opposed to some arbitrary tax assessment, when their property is taken for public use? I just can’t imagine why you are so opposed to this amendment. Not.
The people have spoken, bub, and people like you are the ones who are going to take it in the shorts. It really sucks, doesn’t it?
Man, I cannot believe the absolute ignorance about how eminent domaine works here. I am flummoxed on where to even start. I’ll try:
(1) Virginia was NEVER in “threat” of a Kelo decision. It does not have the necessary statutes in place for it to happen. These statutes generally fall under a broad definition of what is “public use.” The financing is called TIF (Tax Increment Financing–I’d insert an hyperlink here but since I am not an editor, I can’t, so look it up. I already know what is) and is at least as far as Missouri goes only available for arge scale urban renewal projects where definitions of blight have to met.
Virginia has NO TIF laws and no such statutes on the books. This whole amendment as some sort of buffer to KELO (where one person out of hundreds was alone stand-out despite any amount of money offered to her. I wonder how that’s working out for her now in her slum?)
(2) The money awarded in condemnation suits is not based on tax assessment. It is based on fair market value. Sure, property assessments are suppposed to be based on fair market value, but we all that tax assessments are about 80% of value. That’s now it works. Further, it depends on if one is taking one’s entire property, or a sliver of it to widen a road. This is a red herring and some of the mouths here really should know better. Can values be disputed? Of course. And there is a process for that. Both sides get an appraisal, commissioners are hired to arbitrate, and an award is made. That can be appealed. It is usually the property owner being greedy for MORE money than he knows the taking is “hurting” him. And usually, the property is worth MORE after a small taking than it was before (i.e., curb, gutters, public water, sewers, safe turning lanes…)
(3) No government entity wants to go to arbitration or a dispute. It slows down everything and costs a lot of money, and, a la Kelo, makes for very bad press. They don’t run around like robber barons trying to fool little old ladies. This is an insult. In every case I’ve ever been involved, the property owner was not satisfied with the initial offer.
(4) The SCOTUS UPHELD Kelo, on state’s right’s grounds. But as I said, Virginia has no such statute.
(5) For Brian S. to say that no constitutional amendment (i.e. ergo, Constitution as amended) can’t be tinkered with via statute is really showing a complete ignorance of statutory law. Trust me, there are lots of ways to “tinker” with anything. “To the contrary notwithstanding…” is a favorite term in many statutes.
That’s enough for now. This proposed amendment is a total f’ing disaster and on no grounds can anyone with a sound mind be in favor of it. Oh, yes, it sounds to great to run and say “I’m for property rights!” but one needs to know that those rights derive from the state who gave the land from day one.
NOW. OF COURSE. There are plenty of exceptions and plenty of ways the government may overstep this, but this amendment is not the way to address it–and it won’t because all it does it make some vague and sweeping propagandist sloganeering.
Oh, wait. That brings us back to the Confederacy of Fools.
The point, Craig, is that it can’t be repealed without going through the amendment process which takes a minimum of four years. I am well aware of how the law works.
Mike Barrett has been saying everything done by this administration is going to end civilization as we know it and none of those chicken little predictions have come to fruition. This will be no different.
Brian S. you are right. This disaster cannot be repealed for at least four years. Wonderful job of screwing up everything.
Even even in their wildest dreams, no ORIGINAL political party wanted to screw up government. THen again, George Washington warned us against this.
Yeah, you are right about one thing. I do write about history and geneaolgy. Nice of you to make fun of that. Wish you would do more of the same. And sometimes, combined with my experience as state legislator, you should try it some time. It would help round you out. Might cut the edge off. Also get a real estate license and do some work in the real world. Really helps. Trust me.
I don’ recall Mike Barrett saying “this administration” (do you mean Obama or McDonell?) is going to end civilization as we know it, but if you say so…..well, no, you’re still wrong.
This AMENDMENT will end public progress as we know it. You are going to rue the day you ever applauded this ludicrous amendment. Mark my words on it, Brian.
P.S. Brian S. Since you say you have no experience at all in real estate or real estate law, what ON EARTH makes you an expert on this amendment???? Seriously. Enquiring minds want to know. Please tell us what makes you an expert on something you admittedly know nothing about.
Brian S. writes: “The point, Craig, is that it can’t be repealed without going through the amendment process which takes a minimum of four years. I am well aware of how the law works.”
Yeah duh. Did you read the part about how statutes can tinker? You really can’t be THIS stupid, can you? (Maybe you are.)
At this rate, I am going to apply to Cracker Jacks for a Law Degree.
Somebody didn’t get enough hugs from his mommy when he was a little boy. BTW, Craig. Why did you leave Missouri?
MD..this is even beneath you.
But ME, if you really want to know all about me, it’s all on the web, and you can start with my web site craigkilby.com
So now tell us about you.
By the way, Russ. My mother just turned 80 last year and we had a great family gathering for that event I MISSOURI. Anything else you want to know, or do you just want to be a professional jerk? Really, this is beyond low. Leave my other out this.
OK. I know. Russ has got me off track. But one thing I do is track my mother’s voting pattern. She never votes the way I would. I do not appreciate her being attacked here. Nobody would. Her last comment to me was this (and this was before the Missouri Primary).
She is an avid voter and something I think all of us should keep in mind.
Her comment was “I don’t like that Newt Gingrich person, but I will vote for anyone the Republicans put up against Obama.”
And she will. She is an reconstructed Golderwatite. But she admired the Kennedys. My first memory of politics was Kennedy being assassniate.
But she detested Lyndon B. Johnson. Since we are talking about childhood memories, my first memory of politics was being dragged to her polling booth in Foristell, MO to vote for Goldwater. Of course he lost. But I remember the experiencel. I had no idea who or what she was talking about, I just remember she was adamant about it.
I could really was on this, but I don’t see the point in it. I can say yours was a cheap shot at my mother that I really don’t appreciate.
My mother is not very political. So let’s leave her out of this, OK? I am fair game. I ask for it. To take cheap shots at my mother is not at all appropriate, unless you want me to start to taking cheap shots at your mother. I don’t think you’d like that. Would you?
Drop it.
Well, one more time. It is a budget buster because this will allow a business owner to claim lost access and lost profits in addition to the fair market value of the land. This will create a whole new industry to create maximum potential “loss of profit” that may have accrued to the business owner who’s land in being taken. This could increase awards so much that cities will do all they can to take land from homeowners instead who are not covered by these new categories.
So that is why I say residential taxpayers will pay higher taxes so commercial propety owners get paid more for their land.
Second, because public use is not even defined in the amendment, and because if a project is deemed to be primarily for economic ddevelopment, then it is not a public use. So if U.S. 460 proceeds, read the Governor’s statements about this project and underline the times he says this project is for economic development. But by doing so, he is giving ammunition to lawyers for property owners to claim that eminent domain cannot be used to obtain their property. Try building a new highway through negotiation with every land owner along the way, especially those knowing that condemnation is not available as a last resort.
Now many herein will applaud that, but for those of us who acknowledge that economic development is a team sport between the public and private sectors, this amendment will put us at a severe disadvantage in attracting major economic development projects. Fbor example, the Rolls Royce deal involved a new interchange, land for which was condemned. Not anymore.
Lastly, as Craig has so aptly pointed out, this amendment is totally unnecessary as our statutes have never allowed the taking of land to give to developers. Now if the area is subject to redevelopment/conservation, land can be taken and sold to new developers, buy those who wish to stop that will condemn cities to rot and decline forever.
Perhaps that is what this is really about as libertarians wish us to go back to an agrarian lifestyle where all citizens owned farms and kept to themselves. Sorry, that century passed a long time ago.
Craig,
Who attacked your mother?
Craig, I never attacked your job. You’ve done that to me repeatedly. It would be nice if you could keep your responses straight.
Harry Blevins’ explanation is quite weak and vague.
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