Va. Eminent Domain Amendment and the War on Due Process

The bad news is public use is not defined as property available to all members of the public to use for the purpose it was taken. But it's a step in the right direction

Charlottesville, Va. – In the Nov. 6 referendum on the eminent domain amendment, a Yes vote will elevate Delegate Rob Bell’s 2007 reforms to the current state Constitution, passed 1971 where “public purpose” redefined “public use.” The amendment closes some loopholes and keeps others. A No vote would keep the ‘07 reforms as state law more easily changed annually by legislation.

The amendment is only one of two steps necessary to protect property rights. A law has never protected anything in the history of the world. A law is ink on a piece of paper or words at a legislative assembly. Laws don’t protect people. People protect people. The Constitution was written to protect our rights. How’s that working out?

The second part is to elect people to office who will stand up and speak out for your rights. They’re free to use the amendment as a tool to dissuade others from violating your due process and calling it eminent domain. Unfortunately the champions of the legislation seem out of touch or in denial, which casts doubt on the amendment. But a future representative or attorney might be able to use the amendment if the voters say yes this November.

Because they’re out of touch or benefiting from the abuse, some supporters have to go all the way to Connecticut to find a reason to update eminent domain in Virginia. According to the Institute for Justice, Virginia is one of the worst abusers in the nation. The institute represented Suzette Kelo in the 2005 Supreme Court case where New London destroyed a neighborhood for expansion of a pharmaceutical company, which later cancelled plans, leaving empty space where people once lived and paid real estate tax for the right of due process.

As we are surrounded by abuses, a recent Rob Bell mailer had to go all the way to Norfolk to find an egregious example of active eminent domain abuse. Bell became involved after the 2005 Kelo case and seemed unaware of the issue in 2003 when Blair Hawkins intended to run against Delegate Mitch Van Yahres on the issue of eminent domain. The amendment would grandfather the abuses in progress.

Not all politicians are out of touch. Attorney General Ken Cuccinelli knows that housing authorities are the primary abusers in Virginia (“Cuccinelli campaigns for eminent domain limits,” Sep. 7, 2012, Associated Press, The Daily Progress). As a delegate, Cuccinelli was introducing eminent domain bills years before Kelo. Eminent domain is a constant controversy somewhere in the state. There is tweaking of eminent domain every year. Hence the fear the ’07 reforms could be watered down by a 51% vote in the state assembly without much notice.

“You will find the housing authorities in this part of Virginia [Norfolk] being among the most aggressive takers of property in the last 100, 200 years of Virginia,” said Cuccinelli in the article. The Norfolk housing authority wants to use eminent domain to turn the clock back to a time when lack of zoning encouraged mixed-use development. They want to force what modern zoning disallows and re-create the neighborhoods they destroyed.

Housing authorities exist to spread the real estate around to the highest bidder in every city in Virginia. Their mission invokes eminent domain for two private uses, which they claim are public uses: publicly funded private residences (public housing) and privately owned private residences and private businesses (redevelopment). Because the seized properties are not available to every member of the public to use, it’s not a public use and therefore a felony violation of due process when the property is taken by legislative order, skipping the judicial process and your day in court. Of course public housing sites attract crime because public housing is a crime.

At the state level the Virginia Department Of Transportation is the biggest abuser of eminent domain. They like to take more property than they need for a road, then sell the “surplus public land” leftover for profit to go back to VDOT and employee salaries and benefits. The amendment specifically addresses this practice. Only a few years ago the Virginia Supreme Court ordered VDOT to return land near Short Pump seized in 1973 and still unsold by VDOT. Property seized by eminent domain is often hard to sell because it doesn’t make sense to a private citizen to buy what was taken for the public to use.

But nobody’s enforcing our laws. If they don’t enforce the ’07 reforms or the Fifth Amendment of the US Constitution, why would anyone magically start enforcing the Virginia Constitution?

PROPOSED CONSTITUTIONAL AMENDMENT ON EMINENT DOMAIN

Article I. Bill of Rights.
Section 11. Due process of law; obligation of contracts; taking of private property; prohibited discrimination; jury trial in civil cases.

BALLOT QUESTION includes explanation and amendment. | 2nd Ballot Question on when to start the reconvened, veto session.

Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended

(i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development;
(ii) to define what is included in just compensation for such taking or damaging of property; and
(iii) to prohibit the taking or damaging of more private property than is necessary for the public use?

The Actual Amendment formatted for readability

[1] That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.

[2] No private property shall be damaged or taken for public use without just compensation to the owner thereof.

[3] No more private property may be taken than necessary to achieve the stated public use.

[4] Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms "lost profits" and "lost access" are to be defined by the General Assembly.

[5] 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.

[6] 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.

[7] The condemnor bears the burden of proving that the use is public, without a presumption that it is.

Analysis of the Constitutional Amendment

Does it meet the eight criteria as described of the 2007 reforms by the Virginia Property Rights Coalition and documented at “Virginia 36th state to reform eminent domain,” Apr. 8, 2007 and abbreviated below?

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.

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.

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

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.

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

6. 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.

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

8. 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

Analysis by Blair’s Blog

The amendment does not define public use but does define the loopholes. Public use includes cases where public benefit outweighs the incidental private benefit. Blight or “elimination of a public nuisance” by claiming public use would be allowed, although the public would not use the property. A private railroad or utility company can use eminent domain for “authorized provision” of services.

It’s just too difficult to go through a judicial process and convict a property owner of blight. It’s so easy for the legislature to order your nuisance be eliminated. It’s just too hard to get a guilty ruling from a court before taking someone’s life, liberty, and property. Eminent domain is so much easier.

The majority of the Property Right’s Coalition’s points (1, 2, 5, 7, and 8) seem to maintain loopholes. The amendment actually broadens blight to nuisance. Language to balance private-public benefit redefines use as benefit. Non-blighted property is not protected if it serves as a nuisance to block a development project to benefit the public.

The good news is just compensation is expanded beyond fair market value. A claim of public use is presumed to be false, thus the burden of proof is on the seizing agency. Only property actually needed for the public to use is to be taken without due process.

The bad news is public use is not defined as property available to all members of the public to use for the purpose it was taken. For example a street or road can be used by anyone for the purpose of travel. Why is it so difficult to define public use as property the public is actually using?

The amendment would not affect most abuses people are familiar with. Property can still be taken as a “insurance policy” in case the government needs that land for some future public use (Buck Mountain Reservoir). Property seized generations ago that housing authorities are still trying to sell would not be affected (Levy Avenue).

Eminent domain can still be used to void a landlord-tenant lease agreement (110 parking spaces at Kmart for Hillsdale Drive and Whole Foods). The property owner can pay the government to take by eminent domain property already given as a proffer. Due process can be violated for blight, for which the public has no use (704 Montrose Avenue).

City councils can still appoint judges to the planning commission and architectural review boards to adjudicate local ordinances. Charlottesville’s latest assault on due process is the proposed Human Right Commission. It’s hard to argue politicians are clueless when they say things like Councilor Kristin Szakos said Aug. 20. She wants results “in a less-than-judiciary sort of way.”

It’s just too hard to follow the Rule of Law. The public would benefit more if we used eminent domain for everything. But in fact society is in decline since the loss of due process to protect property, and increasingly to protect liberty.

How Eminent Domain Perverts Legal System, Mar. 17, 2012.

Virginia Property Rights Coalition

Virginia 36th state to reform eminent domain, Apr. 8, 2007.

Eminent domain topic at Republican Breakfast, Jan. 15, 2007. John and Nancy McCord of the Virginia Property Rights Coalition spoke to a crowd of about 50 people at Golden Corral Saturday January 13.

Va Supreme Court: VDOT must return land seized in 1973, Jul. 29, 2007, Virginian-Pilot editorial.

2007: Virginia Reforms Eminent Domain, Jan. 12, 2008.

Opposes Charlottesville’s affordable housing amendment: Letter to Va. General Assembly, Jan. 8, 2006. Another detailed discussion of eminent domain and blight euphemisms.

Council invokes eminent domain for Hillsdale dedication, May 2, 2011. Tenant Kmart loses 110 parking spaces.