Monday, February 05, 2007

Momentum building for eminent domain reform in Va.

But let’s not pretend the Republicans’ bill would cripple municipal economic initiatives or urban renewal. The city councils have an array of potent pump-priming tools, including tax incentives, subsides, favorable zoning concessions and public-private partnerships. If there is to be an error in rewriting the rules of eminent domain, lawmakers must err on the side of the fundamental rights of the property owner, not the financial interest of the government, or the developers with whom it is so often entwined.
'Just compensation' unjust by any name
The Virginian-Pilot. © February 4, 2007

Back in 2001, Cumberland County officials decided they didn't need the Luther P. Jackson Elementary School on U.S. 60. The 32 classrooms had been empty for years and the building was a wreck. The county declared the property government surplus and put it up for auction.

Mary Meeks, a Farmville Realtor, bid $110,000. It took two more years to clear the title, but in 2003, Meeks closed the deal. She spent $250,000 to repair and renovate the old school. Four churches and an appliance store moved in while she tried to persuade the county to let her convert the building into apartments.

That's when school officials decided they needed the school after all, and when Meeks' expensive education in the cruelty of Virginia's eminent domain laws began.

The county wanted the building to house several hundred students while a new middle school was being built nearby.

Meeks offered to rent space to the county, but officials wanted to own the building. When they couldn't agree on a price, the county's lawyer filed papers justifying what's known as a "quick-take" and deposited $200,000 in an account to compensate Meeks.

When the state takes somebody's property, Virginia's Constitution entitles them to "just compensation." But Meeks discovered that her rights to that just compensation were protected more in name than in fact.

So, where did those rights go? They were hollowed out by years of concessions from the General Assembly to local governments, state agencies, utility companies and redevelopment authorities, and by the acquiescence of Virginia's judiciary.

The extent of the loss is prove d by the weak hand Meeks holds when she arrives in court this week to appeal the county's treatment. She is classified in legal filings as the "defendant," the presumption being that she has done something wrong.

A judge will hear arguments about whether the government was reasonable when it set aside $200,000 for the Meeks property when the county's own tax assessor says the land and improvements are worth $609,000.

Common sense would argue that the assessment gives Meeks an advantage in prying more money from the county. Except that she can't use it. Virginia courts won't permit tax assessments to become evidence for property owners.

Meeks' complaint could take years of motions, hearings and accumulating legal expenses to settle. To compound the injustice, the commonwealth's eminent domain laws oblige Meeks to keep paying the mortgage as long as she fights.

She doesn't even get the rent from the churches and small businesses in the building. That money goes to the county.

The playing field is so tilted against Meeks that if the financial pressures force her to surrender and take the $200,000, she loses the right to challenge the constitutionality of the taking.

In other words, the law pressures her in several ways to settle for less money than her property is worth because it will be so expensive to defend her rights.

It is just as unlikely that a judge will find the county did anything wrong. The Virginia Supreme Court in 2006 ruled that judges have no business reviewing whether local officials recklessly used their eminent domain power. That eliminates one of the few checks or balances on officials abusing their extensive authority to take private property.

Cumberland County officials should have known better than to sell off a school they would need so soon. For the sake of argument, let's concede that officials made a good-faith miscalculation and a legitimate public need was served by taking back the school. If that's true, then what can possibly justify the county's financial punishment of Meeks?

The proper course would have been for Cumberland officials to acknowledge their mistakes and make Meeks whole by paying her what her property is actually worth.

Instead, even if Meeks prevails and proves that she was cheated, she will have to pay all her legal expenses - court costs, experts, lawyers and appraisers - from her final award. In other words, even if she wins, she will walk away with less than her property's fair-market value.

Despite all of Virginia's vaunted protection of property rights, Meeks' case proves that some misguided officials act on occasion with impunity, taking people's livelihood and property while the law lacks safeguards to prevent it. The gaps in state protection for people like Meeks ensure that even if she wins in court, she won't win the justice - financial or otherwise - she deserves.

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Tomorrow: The argument against reform in Virginia is based on the mistaken belief that property rights are scrupulously protected.

Property rights don’t halt wrongs
The Virginian-Pilot. © February 5, 2007

Since the U.S. Supreme Court opened the door for governments to confiscate someone’s home and sell it to a developer, 34 states have enacted property rights safeguards into law.

On Election Day last November, voters in nine states passed constitutional amendments to make sure officials avoid the new temptation to exercise condemnation powers for purely economic development reasons.

Virginia is conspicuously absent from this national consensus. When asked why, the answer given by lawmakers, lobbyists and municipal administrators goes like this: We’re a property rights state and local governments can’t do the things permitted by the high court’s 2005 Kelo ruling.

While it’s true that Virginia law expressly bans government confiscations for economic development, that hasn’t stopped such things from occurring under other names and pretexts. Last year, the House of Delegates and Senate deadlocked over whether the loopholes that permit such abuses will be acknowledged and closed, or just ignored and tolerated.

In the coming weeks, the Assembly will try again, but the prospects are dim for real reform.

And it’s just as unlikely that lawmakers will do anything about another, even bigger category of eminent domain excesses: the unfair treatment of property owners when their land is taken for indisputable public necessities, such as for building roads or fighting blight. If the cruel treatment of Mary Meeks, whose case was profiled yesterday, isn’t enough reason for alarm, then a new comprehensive study has arrived just in time.

“The Real Story of Eminent Domain in Virginia,” by property rights attorney Jeremy P. Hopkins, debunks the notion that landowners are well protected from government overreaching. The study was sponsored by the Virginia Institute for Public Policy, a libertarian advocacy group. A copy is on its Web site,

Hopkins catalogues injustices too numerous to be dismissed as isolated aberrations. He has amassed carefully footnoted evidence pointing instead to an official prejudice against property owners embedded in our laws, in our politics, and in our courts.

Here are but a few recent examples from his study:

- The Supreme Court of Virginia in 2003 allowed Hampton to take far more land than was needed for a new road, then lease the rest to the developer of the Power Plant project. The government used 20 percent of the property owned by Frank and Dora Ottofaro for a road, then leased the other 80 percent to the developer. Such a case opens the door for local governments to condemn land as a pretext for benefit ing developers. To add insult, the city bulldozed a house on the property before the case was settled.

- Last year, the Supreme Court of Virginia permitted a condemnation by Alexandria to help rid a developer of an obstacle. To better arrange his land for condos, shopping and offices, the developer wanted to move a drainage culvert onto the land of an adjacent owner, who resisted. Alexandria officials acknowledged that the condemnation was done just to assist the developer. Not even the Supreme Court in the Kelo ruling went this far. It drew the line against takings that confer a purely private benefit on an particular private party.

- The Board of Supervisors in Halifax County condemned one person’s land at the request of his neighbor, who wanted it for a paved driveway. The landowner even put the money up. Now, state taxpayers are maintaining the mile-long road, though it serves only one family. The local court upheld the taking and the Virginia Supreme Court refused to hear an appeal.

- During the construction of Route 221 in Bedford, the Virginia Department of Transportation used a new car wash as a staging area for its construction equipment. For a year, the disruption cost the owner half his business. In a hearing to determine damages, the judge refused to permit the owner to enter any of this into evidence before a jury and ruled the owner was not entitled to recover any money. The state Supreme Court refused an appeal. It could have been worse: The car wash owner could have been put out of business entirely, but legally would have no claim against the state.

- The Norfolk Redevelopment and Housing Authority took a vacant Park Place home for $40,000 when it said it couldn’t find the owner. It didn’t check the house, however. The father of the owner, a New Jersey policewoman, was renovating it at the time. NRHA obtained the house merely by placing a public notice in an obscure publication, but not on the house itself. Generally, in default judgments, Virginians have two years to reopen a case to correct an injustice. Except in condemnations. In condemnations, former owners have been specifically denied that right. Two months after the taking, the owner learned what happened to her Park Place home. But the court said it was too late.

The Republican caucus in the House of Delegates is attempting to restore some balance between individual rights and the public good, offering up strong legislative medicine to cure the potential for economic abuses. By drawing a sharp line against job- and tax-creating condemnations, for example, the House legislation eliminates the ambiguities that have invited them.

The challenge facing lawmakers in the coming weeks is drafting a law that ends abuses without handcuffing public works departments, redevelopment authorities and utility companies. Critics argue that the restrictions being considered are drawn too tightly and that some worthwhile projects might not get built.

But let’s not pretend the Republicans’ bill would cripple municipal economic initiatives or urban renewal. The city councils have an array of potent pump-priming tools, including tax incentives, subsides, favorable zoning concessions and public-private partnerships.

If there is to be an error in rewriting the rules of eminent domain, lawmakers must err on the side of the fundamental rights of the property owner, not the financial interest of the government, or the developers with whom it is so often entwined.

As Virginia’s own Thomas Jefferson said: “I would rather be exposed to the inconvenience attending too much liberty, than those attending too small a degree of it.”

As it weighs the trade-offs in lawmaking, and in eminent domain reform, the General Assembly ought to look to Jefferson for inspiration.

Delegates astir over eminent domain proposal
By HARRY MINIUM, The Virginian-Pilot. © February 5, 2007

RICHMOND - Del. Robert Bell speaks plainly about why he is trying to amend the state constitution.

"We want to make it more difficult for government to take your home," said the Republican from Albemarle County.

Bell and others believe the rights of homeowners have been abused around the state, by the Virginia Department of Transportation, by cities and by housing authorities.

He is among nearly a dozen legislators who have proposed legislation to limit eminent domain, or the power of government to go to court and take private property.

The most hotly contested legislation is expected to be his constitutional amendment - HJ723 - which goes to the House floor this week.

It forbids government from taking land for anything other than a "public use," such as a school or a road.

It also forbids government from taking a home that isn't blighted in a redevelopment area and outlaws the taking of land for economic development purposes.

He has worked closely with Del. Johnny Joannou, D-Portsmouth, who said eminent domain laws need an overhaul.

Chip Dicks, a real estate attorney and former Democratic delegate from Colonial Heights, said Bell's fix is too vaguely worded and goes too far. While saying homes can't be condemned for economic development reasons, the proposed amendment doesn't define "economic development," he said.

"Any taking, for a road or for a school, is probably going to improve property values," Dicks said, which courts might interpret as economic development.

"This amendment is going to send hundreds of cases to the courts," he said.

The U.S. Supreme Court in 2005 ruled that homes that are not blighted can be condemned for economic development if state law allows it.

In response, dozens of states have rewritten their eminent domain laws. An effort by Del. Terrie Suit, R-Virginia Beach, to clarify Virginia's law during last year's session ended in failure, as both sides clashed on how far to go.

Housing rights advocates and local officials have worked to craft a compromise, with several meetings occurring in the offices of Attorney General Bob McDonnell.

"We continue to meet," Bell said. "We hope to reach a compromise before the session is over."

Much of the debate has focused on the Norfolk Redevelopment and Housing Authority.

Proponents of the status quo point to the city's successful revitalization of downtown, Ghent, Broad Creek and Ocean View, and say eminent domain helped.

Even though Norfolk has claimed some housing that wasn't blighted, Dicks said there has been no abuse about which he knows.

Yet opponents - including Jeremy P. Hopkins, a counsel with the Norfolk law firm of Waldo & Lyle - say there have been abuses in Norfolk.

In association with the Virginia Institute for Public Policy, Hopkins wrote a paper titled "The Real Story of Eminent Domain in Virginia."

It has become a bible of sorts for eminent domain conservatives. Norfolk's housing authority is the culprit in much of the paper, which also criticizes other cities and VDOT.

Amendment opponents warn that building the East Beach community in East Ocean View might be impossible under Bell's bill, because it forbids taking non blighted homes.

In East Beach, 1,600 residences in a high-crime community were demolished by the housing authority. Developers are building 750 upscale houses in their place.

Ocean View native Steven D. Anderson, an attorney for the Arlington-based Institute for Justice, said regardless, private property rights should be protected.

"Development is not going to stop under those circumstances," he said.

"And even if it does, I'd rather live in a state that recognizes you don't have to give up your property if you haven't done anything wrong."

Reach Harry Minium at (757) 446-2371 or


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