Newspaper confuses Va. Eminent Domain amendment

“[The amendment] may well place government in too tight a straight jacket.” – Writes Editorial Page Editor Anita Shelburne.

Charlottesville, Va. – On Friday The Daily Progress editorial argued that the proposed state constitutional amendment on the ballot Tuesday is too broad and too narrow at the same time. The title says “too broad” and the article says “too restrictive.” Which is it? The newspaper is playing word games. (“Proposed Va. Amendment is too broad,” Nov. 2, 2012.) 

Four days before the presidential election and referendum on property rights, the editorial made the incredible claim: “This newspaper has a decades-long history of supporting private property rights.” Which decades were they?

Yet local blogger Blair Hawkins has spent more than a decade documenting and publishing the opposite view, that The Daily Progress steadfastly supports abuses of eminent domain. How can we both be right? The newspaper supports property rights in the abstract for distant places.

But at the local level they can’t make simple connections such as housing authority = urban renewal = eminent domain abuse…despite an Aug. 20, 2002 letter in the paper making that historical connection. The modern reporting contradicts the paper’s own archives.

It’s like Thomas Jefferson claiming to support property rights while holding slaves. At some level that is hypocrisy.

In the sixth paragraph the newspaper wanted six definitions for eminent domain: (1) public use (2) utilities (3) nuisance (4) gain (5) benefit (6) enterprise. If the primary gain/benefit/enterprise benefits the public, then eminent domain for private gain, private benefit, private enterprise is okay. The article also refers to eminent domain as “public good” and “public goals.”

“But our main concern lies in its prohibition against using eminent domain for ‘economic development.’ The wording is a clear reaction against Kelo. But in practice it may well place government in too tight a straight jacket.” – Writes Editorial Page Editor Anita Shelburne.

Here’s where the newspaper argues that Vinegar Hill had no “economic development” component. If that were true and the project was for the elimination of blight (nuisance), then Westhaven public housing would be on Vinegar Hill. The editorial makes no mention of Vinegar Hill because the paper does in fact support the project, historically and today, but it’s not politically correct to say so. On the same day as the editorial, CBS-19 Newsplex, in the Garrett urban renewal zone, did make the local connection from Vinegar Hill to the property rights amendment.

The newspaper gave the appearance of making local connections. Will the publicly owned Port of Virginia not be able to expand if they can’t use eminent domain for economic development? Will an apple distribution facility in Nelson County not be able to open without eminent domain? In Charlottesville and Albemarle County, the home base of the newspaper, there are no concerns or examples involving property rights issues.

The newspaper agrees eminent domain should not be for economic development. But what about “public economic development?” The problem is not that eminent domain for economic development hurts the economy. The problem is you don’t have “public” in front of the name of the reason you want to use eminent domain.

After saying the amendment is too broad and too restrictive, the final paragraph returns to “too broad, leaving too much room for uncertain interpretations, unintended consequences, and unexpected damages.”

Blair’s Blog agrees the amendment is broad. But it’s more restrictive than the status quo. Therefore I support the 2012 constitutional amendment to reform eminent domain in Virginia. We will have to amend the constitution again in the future on this issue. Failure to achieve perfection should not be a reason to reject something better. Vote Yes on November 6.

Future Reforms for Eminent Domain

The amendment is inherently confusing. The biggest flaw is it refers to “public use” as if everybody knows what that is. It defines what it is (use, nuisance, utility) and what it’s not (economic development, tax revenue, jobs, private benefit).

If it’s not in the list, then what? You change the name of the reason you want to take property. Remember “blight” changed its meaning over time and acquired the new definition: property we want to take without due process for private use. Economic development changed to mean eminent domain project and Supervisor Ken Boyd had to rename his agenda “economic vitality” after arguing vehemently that economic development does not have the connotation of eminent domain.

Everything not prohibited is permitted. That’s what happens when you define terms in the negative. Eventually we must define eminent domain in the positive, what it is instead of what it’s not. We have to define public and use. Everything not permitted should be prohibited.

Possible Future Positive Definition of Eminent Domain:

Public Use is land available to any and all members of the public to use for the purpose it was taken from the private owner for Just Compensation, an amount that would justify bypassing your God-given right of Due Process.

I think this is how the founding fathers intended our system to work or understood the system. Have a strict definition and let the courts create exceptions and exemptions. Here are some examples and problems.

(A) A street or road is a classic example of eminent domain. The road is available to all members of the public to use for the purpose of travel. Any restriction applies to all travelers equally.

(B) Public schools. Technically schools are available only to students, teachers, personnel – not open to the general public. Aware of the abuse (eminent domain for use by a group), schools make themselves available to the true public after hours for classes, sports games, concerts, plays, and even church services. “Public” turns out to be a vague word. The “public use” applies to all members of the public, not individuals or groups.

(C) Utilities. The key here is that water, sewer, electric, railroad is available to all members of the public at equal rates. You’re not physically using the land, but everyone in any group can use the service. Utilities are often easements where private ownership and public use co-exist. When the public no longer has use for the property, such as decommissioning a water line or rail line, the property continues its rightful ownership without the nasty business of selling “surplus public land.”

(D) Why “land” in the definition instead of “property?” Property is so vague as to mean anything from land to people to money to real estate to intellectual property to – get ready – an NFL football team. Yes, the Colts fled to Indianapolis in the middle of the night after Baltimore threatened to use eminent domain to take over the team a few decades ago.

The Single Most Effective Reform to Reduce Eminent Domain Abuse Now:

All surplus public land and property must be sold at public auction.

This reform removes the motivation of seizing agencies to sell to the right person or right type of person. The entire public has an opportunity to participate. That is for a future General Assembly to consider.

Finally, I don’t want to be too harsh on the Daily Progress. I just don’t understand their motivations. It can’t be profit and paychecks and selling newspapers because they’re excluding so many people. They’re on a downward spiral while my blog has arisen drawing most of its energy from the Progress. I thought about listing out the examples and criticisms. But that would be piling on. They’re online and can be easily found.

For the last twelve years the newspaper has been my nemesis, inspiring nine issues of pamphlets, two years writing for Charlottesville Independent Media, and since 2006 Blair’s Blog. Many of those articles criticize the newspaper and seek to set the record straight.

My blog articles are like newspaper articles– but without the newspaper. What is newspaper style writing? “The news that's fit to print.” If you only had space for one sentence to tell a story, put that sentence first. I didn't really understand how effective that is until I heard Joe Thomas on WCHV AM-1260/FM 107.5 read the first sentence of the story on evictions from public housing.

It’s as if I am the Editor of the Daily Progress, who delivered the paper as a teen, writing on difficult, abstract issues to show my young writers the process of good journalism. At the same time I’m trying to write articles that people will cut out of the paper and keep. I’m trying to promote the paper and disprove the charges Blair’s Blog has made against the newspaper. I’m trying to grow the readership beyond tourists.

That’s the weird psychology playing out with me and my hometown newspaper. Without the paper as my nemesis and Anita Shelburne as my mentor, I would not have grown and become the powerful writer I am today.

Va. Eminent Domain Amendment and the War on Due Process. Sep. 9, 2012.

Vote Yes November 6 to make it harder for the government to take your property.