Nowhere is the debate about eminent domain more intense than the foot of King Street in Alexandria, where city officials threatened to take land owned by the Old Dominion Boat Club using the power of eminent domain for flood mitigation. The land is currently leased by the club as parking, creating a perpetual source of revenue for the organization. As a result, an amendment to the Virginia constitution that will be on the ballot in November could have drastic consequences.
“Any use of eminent domain after this amendment passes, could potentially be more expensive for the city,” said City Attorney James Banks. “How much more expensive, I have no idea — nor does anyone else because it requires further definition by the General Assembly.”
Across Northern Virginia, local government officials are concerned that the amendment could increase the cost of public-works projects such as building roads. The language of the amendment allows land owners to seek damages from local governments if they can prove a loss of profits or a loss of access. If a county government prevents traffic from turning into a parking lot, for example, a retail outlet could seek damages for loss of access to the business. The Old Dominion Boat Club, on the other hand, could seek damages for the loss of profits on the parking spaces.
“Virginia has one of the worst state constitutions in the entire country with regard to property rights,” said Ilya Somin, professor of law at George Mason University. “Most state constitutions say you can only take property for a public use. But what the Virginia constitution currently says is you can condemn property for any reason the legislature defines as a pubic use.”
THE AMENDMENT BEFORE VOTERS this year is, in many ways, part of the backlash against the U.S. Supreme Court decision in Kelo versus City of New London. Virginia is one of 44 states that enacted legislation limiting how eminent domain could be used in the wake of the decision, a five-to-four ruling that opened the door to governments taking private property for “public purpose,” even if that means economic revitalization. Legislators have already passed a law that prevents government officials from condemning property for economic development or private use, although supporters of the amendment say the amendment would be more permanent than a statutory restriction.
“Institutionalizing it in the constitution prevents the legislature from backsliding on this later as they would quite possibly be inclined to do as public opinion moves on to other issues,” said Somin. “In the short run, that part of the amendment would change very little, but it would entrench this against future change by the legislature, which I think is very important.”
The language of the amendment goes beyond codifying the existing prohibition against taking private land for public use. It also creates a new way for landowners to seek damages from local governments if they can prove in court that they have lost access or profits. That concerns local government leaders who are worried that the new limitations might dramatically increase the cost of public-works projects while inflicting unintended consequences on unsuspecting property owners.
“There may be a perverse incentive now to look at residential property rather than commercial properties when jurisdictions might be looking at eminent domain said state Sen. Barbara Favola (D-31). “This compensation for lost profits is going to be a complicating factor.”
THE POLITICS OF EMINENT DOMAIN are not strictly partisan, although Republicans seem united in their support of the amendment. State Sen. George Barker (D-39) 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 in an interview earlier this year. “But I still has very significant negative consequences in terms of cost, and it’s also something that would be very difficult to change.”
The amendment has not received much attention this year, and many voters may be hearing about it for the first time when they enter the polls on Election Day. Some of the Democratic sample ballots are encouraging voters to reject the amendment, but many say the threat of eminent domain could be enough to turn the tide in favor of the initiative.
“I can imagine why Democrats in Northern Virginia wouldn’t be as keen on the amendment as folks in other parts of the state because one can imagine eminent domain being used more because of all the development in Northern Virginia,” said Kyle Kondick, analyst for the University of Virginia Center for Politics. “I’d be surprised if it didn’t pass because when given the opportunity to limit eminent domain, voters would probably decide to do that.”
If the amendment is successful, members of the General Assembly will have to pass another bill outlining what would constitute a loss of profits and a loss of access.
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