Local lawmakers said they were not surprised that nearly two and half million voters (74.6 percent) approved a state constitutional amendment last night further restricting Virginia’s power of eminent domain.
But they do predict the unintended consequences of enshrining those restrictions in the state constitution—which some call an act of “corporate welfare”—will cost state and local governments and taxpayers tens of millions of dollars in added compensation to businesses and private landowners.
Proposed Constitutional Amendment Question 1
Precincts reporting: 2588/2588
Yes—2,408,032 (74.64 percent)
No—818,314 (25.36 percent)
*Information provided by The Virginia State Board of Elections
“The same people who voted for it will express outrage at how much more expensive it is to make road improvements or extend sewer to properties with failing septic systems a year from now,” said Fairfax County Board of Supervisors Chairman Sharon Bulova (D-At-large.)
At issue was not if the government could use the power of eminent domain, but how much corporations, business owners and landowners could be compensated when—in the course of building roads, power lines and many other public projects—the government takes their property through eminent domain.
Many local lawmakers argued the amendment goes too far, requiring taxpayers to compensate landowners not only for the value of condemned property, but for lost access to their property and lost benefits.
In 2007, responding to a populist backlash against a Supreme Court decision allowing the government to use the power of eminent domain to aid private development, Virginia legislators passed a law restricting that power.
“The language in this amendment is completely unnecessary—it bans actions currently illegal in Virginia,” said Del. Scott Surovell (D-44).
“I don’t think anyone’s arguing that private property owner’s rights are not important,” said City of Fairfax Councilman Dan Drummond. “But this is a solution in search of a problem.”
He said the fear is that the amendment will have a “chilling effect” on economic progress and projects that benefit the public.
“I don’t think anyone’s arguing that private property owner’s rights are not important. But this is a solution in search of a problem.”
—City of Fairfax Councilman Dan Drummond
“Nobody really knows from a local government perspective how this will be used, but the fear is that it could open up a Pandora’s Box of litigation that would leave taxpayers footing the bill.”
Bulova said business-owners could construe the amendment as “taking away or diminishing” their profits when streets are closed and their shops are shut down during popular parades and festivals, such as Viva Vienna or the City of Fairfax Fall Festival, events that attract up to 40,000 people during one weekend.
“These are community-building events, and we’re concerned the language in the amendment can be read by individuals as way to seek compensation for lost profits,” Bulova said.
“A shop owner could complain they lost revenue, that festival vendors are taking their business away,” Bulova added. “What if someone decided to make that an issue and seek compensation for lost profits under [the amendment]? The Town of Vienna can’t afford to reimburse every shop owner...”
Del. Dave Albo (R-41), who co-sponsored one of the versions of the law, acknowledged that “lost profits and lost access” could end up making roads more expensive to build.
“But it’s fair,” Albo said. “If they run a road and cut off your driveway to the point that no one can get into your restaurant and ruin your business, you should be compensated.”
“Basically, we don't want the government taking private property for something that is not a bona fide government use, for example taking old houses in the name of economic development and then transferring the land to a private hotel,” Albo added.
At the crux of the debate is the Supreme Court’s landmark 2005 decision known as the “Kelo decision,” widely considered by scholars, land-use attorneys and local government to be one of the most controversial rulings in recent U.S. history. “Kelo v. City of New London” came before the Supreme Court in 2005. In a 5–4 decision, the court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.
“I think all of this is an overreaction to Kelo,” said Toni-Michelle Travis, a GMU associate professor of government and politics and editor of “The Almanac of Virginia Politics.” “Historically, property owners have always been favored under Virginia law,”
Prior to Kelo, only seven states specifically restricted the use of eminent domain for private development.
As of June 2012, 44 states had enacted some type of reform legislation in response to the Kelo decision, according to the National Conference of State Legislatures. Of those states, 22 passed laws that severely inhibited the takings allowed by the Kelo decision, while the rest enacted laws that place some limits on the power of municipalities to invoke eminent domain for economic development.
Bulova said local officials take the power of eminent domain seriously:
“Eminent domain is a very heavy power and absolutely needed only for the greater good. We haven’t used it to force people off their property. That just doesn’t happen in Fairfax County and it never has,” Bulova said.