Sunday, April 08, 2007

Virginia 36th state to reform eminent domain

April 5, 2007

Virginia Enacts Meaningful Eminent Domain Reform
Property Owners Have Real Protection Against Abuse

Arlington, Va.-Yesterday, the Virginia General Assembly approved Gov. Tim Kaine’s amendments to H.B. 2954, commonsense eminent domain reform that provides Virginians with much-needed protection from tax-hungry governments and land-hungry developers. Virginia is now the 36th state to pass legislation aimed at protecting home and small business owners in the wake of the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, which allows government to forcibly take property for private gain. It joins Wyoming in passing eminent domain reform this year.

“This is a proud day for Virginians,” said Steven Anderson, director of the Castle Coalition, the Institute for Justice’s grassroots eminent domain advocacy project. The Institute for Justice litigated the Kelo case. “After failing to pass reform last session, the General Assembly responded to the popular outcry against eminent domain abuse and returned this year committed to protecting the Commonwealth’s home and small business owners.”

H.B. 2954, sponsored by Delegate Rob Bell, requires that private property be seized for only traditional “public uses,” like roads, schools and post offices. It also tightens the Housing Authorities Law’s definition of “blight,” which was so broad that almost any property could be designated “blighted.” Local governments can still acquire properties that pose a real threat to public health or safety, but perfectly fine homes and businesses can no longer be seized using vague and subjective criteria like “deteriorated” and “dilapidated,” nor can they be seized because they happen to sit within “blighted” areas.

H.B. 2954 received overwhelming support in both chambers and Gov. Kaine offered mostly nominal amendments to the legislation, leaving intact the bill’s strong protections, though one amendment does exempt the Norfolk Redevelopment and Housing Authority from the provisions of the bill until July 1, 2010, as the city builds a new public recreational facility.

“Many people worked on this bill-from activists to legislators-and they all should be applauded for finally getting protection for Virginians,” said Anderson. “Nationwide, homes and small businesses are seized for big-box stores and luxury condominiums. Thomas Jefferson and James Madison would surely be proud that this is no longer the case in their home state.”

Christina Walsh
Castle Coalition Coordinator Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 (703) 682-9320
P.S. HELP THE CASTLE COALITION GROW! Forward this message to your friends. They can sign-up here:

Dear Coalitionists:

Yesterday both Houses of the General Assembly accepted the Governor's recommended changes to HB2954, SB781, and SB1296. All that is needed now is the Governor's signature which is simply procedural. Because of questions raised by several coalition members I have listed the specific changes this legislation provides along with a brief explanation of why they were included or needed.

The Legislation:

1. Prohibits taking private property if the primary purpose is for private benefit, an increase in tax base or revenues, or an increase in employment.

This directly addresses the abuses allowed by the Kelo decision.

2. Limits the use of the power of eminent domain to well-established, traditional public uses such as schools, roads, parks, public services and utilities and to specific named entities both public and private which take part in development of public facilities.

This reverses the expansion of eminent domain in Virginia that had led to Kelo type takings prior to the ruling.

3. Restricts the amount of land taken to no more than is necessary for the public use.

This directly addresses abuses such as occurred in the Ottafaro case where only 18% of the property taken was needed for the road.

4. Allows owners to defend themselves in cases where the government's stated public use is merely a contrived justification for taking property for an improper/illegitimate purpose.

This directly addresses the abuse allowed by Virginia courts in the Ottafaro and Lacy cases. As you remember, in: Ottafaro, the City took the Ottafaro's property for a road and then leased 82 % of the property to a private developer for a big box store and other retail establishments. Lacy, the property was taken for a so called "public road" that served as a driveway for the person who asked for and paid the County for the taking

5. Provides that whenever property is taken the public interest must “dominate”private gain.

Addresses Lacy because this taking was clearly carried out strictly for private gain. 6. Prohibits the taking of property if the primary purpose is for private financial gain. Addresses Ottafaro and Hoffman because the talking in both of these cases was for the private gain of a developer whom the government favored.

7. Tightens the definition of blight, only allowing property to be taken if it endangers public health or safety and when a structures is involved, it can only be taken if it is beyond repair or unfit for human occupancy or use.

This removes the broad definition of blight found in the current Virginia Housing Authority Code which allows homes and entire neighborhoods to be taken because some property is deteriorating (this can simply mean old) or because it may become blighted at some point in the future. Under this tightening of Virginia Code, localities can still take and/or require the repair of dilapidated and/or vacant buildings by simply enforcing laws which are already on the books.

8. Prohibits the taking of a non-blighted property, just because the property is located in a blighted area.

This directly addresses abuses which have occurred throughout the Commonwealth in redevelopment/conservation areas under current Housing Authority Law. In these areas, perfectly good homes and businesses have been condemned and made available to private developers simply because other property in the area was blighted

9. Reaffirms that the right to property is a fundamental right. This will force courts to give private property the highest judicial protection which was the intention of our Founders. Thomas Jefferson said, the defense of private property "is the standard by which 'every provision of law,' past and present will be judged." He would undoubtedly be happy to see property rights given their intended position.

Congratulations! Today is a happy day for the people of Virginia.
Kindest regards,
Nancy McCord, President

John and Nancy McCord in Charlottesville January 13
Eminent domain topic at Republican Breakfast


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