Sunday, February 13, 2011

Virginia eminent domain amendment fails on party vote

Charlottesville, Va. – This year’s effort to elevate the 2007 eminent domain reforms into the state Constitution passed in the House of Delegates but failed in the state Senate. The 2005 Kelo case inspired the reforms, which addressed known abuses in Virginia.

This time, Democrats sided with property theft while Republicans stood up for property ownership and the little guy. The bill passed the 100-member House 81–18 but failed in the 40-member Senate 18–22. Virginia is a purple state.

The Democrats oppose the civil right of due process, preferring instead to claim public use to seize and sell your home to a developer for imagined social benefits. Eminent domain is preferred because it’s easier to prove public use than to prove a crime and the property does not have to be sold at auction, thus guaranteeing the delivery of the seized property to the correct buyer.

A state Constitutional amendment must be passed by two General Assembly sessions separated by an election. The amendment then goes to the voters as a referendum for adoption or rejection. That the voters would approve the abstract property restrictions is not a certainty by any means.

Local representatives Delegate David Toscano (57th) and Senator Creigh Deeds (25th) voted with their party.

Toscano is a longtime supporter of eminent domain to seize and sell property. He was a sitting city councilor on June 5, 2000 when Blair Hawkins delivered two landmark speeches on eminent domain abuse specific to Charlottesville. Toscano has remained silent on these community grievances and remains complicit.

Toscano and Deeds opposed then voted for the 2007 reforms. On a radio show in Dec. 2006, they argued that eminent domain is not a problem in Virginia, despite all the abuses that have been told to their faces.

Toscano has posted his most recent legislative update to the Augusta Free Press. He mentions the eminent domain amendment in a list of bills but doesn’t disclose his position or his vote. On other proposed Constitutional amendments, Toscano indicates a statute or state law is sufficient protection.

Delegate Rob Bell (58th) cosponsored the 2007 reforms as well as this year’s attempt to elevate the restrictions to Constitutional stature.

Of course this entire debate is absurd. Government employees are not following the Fifth Amendment to the US Constitution. In 2005 the Supreme Court ruled they don’t have to unless their state says otherwise. So we passed a state law to enforce the federal law. Somehow we think people will follow the state Constitution when they have ignored state and federal law, and the national Constitution.

Still no mention of the enforcement mechanism. It’s not until Attorney General Ken Cucinelli or a commonwealth's attorney brings charges against an eminent domain abuser will we know the meaning of the 2007 reforms.

Follow SJ307 in the state Senate.

Follow HJ693 in the House of Delegates

“Va. House tries to limit taking of property” by Bill Sizemore, Feb. 9, 2011, The Virginian-Pilot.

David Toscano: The calm before the storm? Feb. 1, 2011, Augusta Free Press.

Deeds and Toscano: Eminent domain not a problem in Va., Dec. 14, 2006, Blair’s Blog.

Va. 36th state to reform eminent domain, Apr. 8, 2007, Blair’s Blog.

2007: Virginia reforms eminent domain, Jan. 12, 2008, Blair’s Blog.

Del. Rob Bell explains why property rights belong in the Va. Constitution, Feb. 7, 2011,
“That’s what the Fifth Amendment’s supposed to protect and it doesn’t any longer.”

Va. Att'y Gen'l Ken Cuccinelli endorses curbs on eminent domain in constitution, Jan. 20, 2011,
“This is a fundamental right and it should be enshrined in the constitution.”

State Senator Mark Obenshain discusses property rights and eminent domain reform, Jan. 17, 2011.
“It prevents the economic development/employment-type of eminent domain exercises that have been subject to abuse across the commonwealth of Virginia. It gives us the opportunity to memorialize that [language] in the Constitution so that it can’t just be undermined by efforts of the General Assembly in years to come.”

Virginia’s current Constitution was adopted in 1971.

Virginia’s Constitution 1776.

SJ 307 Constitutional amendment; taking of private property for public use (first reference).

Mark D. Obenshain | all patrons ... notes | add to my profiles
Summary as introduced:
Constitutional amendment (first resolution); taking of private property for public uses. Limits the exercise of eminent domain for the purpose of public use and specifies that, with the exception of property taken for public service corporations, public service companies, or railroads, property may not be taken if the primary purpose of the taking is private financial gain, private benefit, an increase in tax base or tax revenues, or an increase in employment. No more property shall be taken than is necessary to achieve the stated public use.

Full text:
01/05/11 Senate: Prefiled and ordered printed; offered 01/12/11 11100710D pdf

01/05/11 Senate: Prefiled and ordered printed; offered 01/12/11 11100710D
01/05/11 Senate: Referred to Committee on Privileges and Elections
01/14/11 Senate: Assigned to P&E sub: Constitutional Amendments, Reapportionment, Referenda
02/08/11 Senate: Left in Privileges and Elections
02/08/11 Senate: Motion to suspend the rules rejected (18-Y 22-N)

HJ 693 Constitutional amendment; taking or damaging of private property for public use (first reference).

Johnny S. Joannou | all patrons ... notes | add to my profiles
Summary as passed House: (all summaries)
Constitutional amendment (first resolution); taking or damaging of private property; public use.

Revises the prohibition on the enactment by the General Assembly of laws whereby private property may be taken or damaged. An existing provision authorizing the General Assembly to define what constitutes a public use is removed. The proposed amendment states that (i) no private property shall be damaged or taken except for public use without just compensation to its owner for the property taken and for damages to the residue caused by the taking or damaging and (ii) that no more private property may be taken than that which is necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken and the damages to the residue caused by the taking. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

Full text:
01/17/11 House: Presented and ordered printed 11103856D pdf
02/04/11 House: Committee substitute printed 11105102D-H1 pdf

01/17/11 House: Presented and ordered printed 11103856D
01/17/11 House: Referred to Committee on Privileges and Elections
02/04/11 House: Reported from Privileges and Elections with substitute (17-Y 2-N)
02/04/11 House: Committee substitute printed 11105102D-H1
02/04/11 House: Incorporates HJ647
02/04/11 House: Incorporates HJ515
02/04/11 House: Incorporates HJ498
02/07/11 House: Passed by for the day
02/08/11 House: Taken up
02/08/11 House: Committee substitute agreed to 11105102D-H1
02/08/11 House: Engrossed by House - committee substitute HJ693H1
02/08/11 House: Agreed to by House (81-Y 18-N)
02/08/11 House: VOTE: ADOPTION (81-Y 18-N)
02/09/11 Senate: Reading waived
02/09/11 Senate: Referred to Committee on Privileges and Elections


Anonymous Anonymous said...

Blair, Good work. I will be sending this to our rep. David and ask his stance. Can't wait. Moose

2/15/2011 1:47 PM  

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