Last summer, city officials in Alexandria announced they were considering taking some of the land owned by the Old Dominion Boat Club through eminent domain. They later backed down, although the constitutional amendment could have made the process more difficult.
Photo by Louise Krafft.
This fall, voters across Virginia will be confronted with a hotly debated amendment to the Virginia Constitution that seeks to limit the ability of local governments to use the power of eminent domain. According to various sides of the debate, the measure would either be a disastrous move that would drastically increase the price of transportation projects, an empty measure that’s intended to appeal to voters or a bold way to prevent local governments from abusing the power of eminent domain.
“Voters tend to view eminent domain negatively,” said Jeff Skelley, political analyst with the Virginia Center for Politics. “So delegates and senators who voted for it probably just gave themselves a little more cover.”
The lopsided nature of support for the effort in the General Assembly certainly speaks to the political popularity of being seen as tough on eminent domain. The state Senate approved the amendment 23 to 17, and the House of Delegates passed the measure with an 80 to 18 vote. Essentially, the amendment would allow business owners to seek damages from local governments if they could prove that property taken under eminent domain resulted in a loss of profits or loss of access, the definitions of which are laid out in a separate bill now working its way through the General Assembly. Although many feared that the implementation could allow lawsuits for something as simple as removing a left turn lane, the legislation outlining how it would work is crafted very narrowly to focus on actual land being taken. Nevertheless, some say the final version would create a hardship for the Virginia Department of Transportation.
“It’s not as bad as it was, but it is still a very troublesome piece of legislation and should not have passed,” said state Sen. Barbara Favola (D-31), who voted against the amendment and the implementing legislation. “I think it’s going to be very challenging for VDOT to be able to acquire private right-of-way to put into public use without paying an incredibly inordinate amount of money.”
THE DEBATE ABOUT eminent domain snapped into the public conscious back in 2005 when the U.S. Supreme Court issued a 5-4 decision in Kelo versus City of New London. The majority in that case ruled that the government taking of property from one private owner to give to another for economic development constitutes a permissible public use under the Fifth Amendment. That ruling created a massive backlash, including 2007 legislation in the Virginia General Assembly that defined “public use” in a way that narrowed how eminent domain could be used in the commonwealth.
“This is legislation that closed the Kelo loophole, but every year people come to Richmond and try to weaken it,” said John Taylor, president of the Virginia Institute for Public Policy. “That’s why a constitutional amendment is necessary.”
Taylor and other supporters began working years ago to set the pieces in place for a constitutional amendment to Virginia’s Constitution. Last year, the effort was given preliminary approval by the House and Senate. But because the way the amendment process works in Virginia, the text of the amendment had to be approved again the next year with an intervening election. Now that identical text of the amendment has been approved for a second time, the amendment is on the way to Republican Gov. Bob McDonnell.
“The right to own property was codified by our founding fathers and is a part of what makes up the fabric of our nation,” said Jeff Caldwell, press secretary to the governor in an email response to questions. “Ensuring that individual property rights are protected, maintained and not threatened by government use for non-core services was part of the governor’s agenda this year, along with Republicans from the General Assembly.”
Supporters say the effort is aimed at ensuring that property owners are compensated if they are subjected to eminent domain. Opponents say the amendment could cost the state an extra $100 million each year by making transportation projects more expensive. It’s a debate that has created difficulty by some lawmakers. Sen. George Barker (D-39), for example, voted for the amendment last year in an effort to strip out language adding the ability of property owners to seek interest on top of the loss of profits and loss of access. This year, he voted against the bill, which he says he opposed all along.
“It’s nowhere near as bad as the proposal that came out of committee last year,” said Barker. “But it still has very significant negative consequences in terms of cost, and it’s also something that would be very difficult to change.”
THE IMPLEMENTING legislation may have undercut at least some of the opposition. Now that the ability of businesses to collect for an action not involving land acquisition, the thrust of the amendment is now aimed squarely at cases that involve actual condemnation. Because existing law is already clear on how that works, some have interpreted the implementing legislation unveiling the effort as a naked attempt to capitalize on a politically popular issue.
“If this determination is being made, it seems to me that it somewhat negates the need for a constitutional amendment,” said Alexandria Vice Mayor Kerry Donley. “Is the constitutional amendment intended to be a politician’s brochure?”
“I’m shocked that anyone would even raise the fact that we might pass a political measure,” responded state Sen. Chap Petersen (D-34), who voted in favor of the amendment. “Frankly, I think the impact will be minimal.”