Tuesday, October 9, 2012

Power over Virginia property rights can be returned to the citizens in 2012

Virginia has a rare and important statewide matter on the ballot for November.  In addition to the Presidential election, Virginia has a statewide ballot measure where voters will get to decide if private property continues to have meaning or if politically connected developers can seize your property when it is deemed to benefit the public coffers.

An opportunity to permanently curtail the power of both the state and local government in Virginia is upon us.


In 2005 the Supreme Court eviscerated the right to keep one's own property when faced with private developers seeking a larger commercial development in the decision of Kelo v. City of New London, 545 U.S. 469 (2005).  Lower middle class residents sought to prevent the City of New London Connecticut from taking their property via eminent domain as the owners argued the property was not being taken for "public use" as required by the 5th Amendment.

Our antagonist in this story, Pfizer, Inc. wanted to build a large scale commercial development, and seizing the property of private homeowners was necessary to achieve Pfizer's goal.  The City of New London used the power of eminent domain, claiming that the improvement to the property would be a "public use."  This public use was couched in terms of increased tax revenue and a wealthier citizenry.

The Supreme Court essentially stated there are no bounds to "public use" as anything that financially benefits a government could now be considered public use.

The uproar among private citizens believing in keeping their small portion of the American dream was heard throughout state legislatures nationwide as laws were passed to placate their worries.  Virginia moved quickly and successfully to pass laws restricting eminent domain to actual public uses at the local level. 

The Dillon Rule

Virginia is a Dillon rule state.  In short the Dillon rule indicates that a local government only has those powers granted to it by the statewide government.  If the Virginia General Assembly decides to grant or revoke a power to a locality, the locality must abide by that grant or revocation.

As localities are governed by the Dillon rule, the General Assembly curtailed the power of localities to use eminent domain to take private property for purposes of bolstering a tax base.

Private property was safe, or so it seemed.

What is actually on the ballot in November 2012?

Oddly, finding anything other than innuendo about the property rights amendment in November is exceedingly difficult.  The public should understand both the provision on the ballot, and the actual language in the amendment.

The language you will see on the ballot is as follows:

"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?"

This description is generally accurate, but omits the primary criticism of opponents of the amendment.

The actual text of the Amendment to the Virginia Constitution is as follows:

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. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. 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. 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. 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. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

We will come back to the text in a moment.

The controversy over the Property Rights Amendment

Those in favor:  Those in favor of the Amendment appear to be general private property advocates and broadly speaking, farming interests.  They express that we need to enshrine the definition of public use in the Virginia Constitution.  Further, proponents appear to desire that compensation for any taking of private property take into consideration lost profits and lost access.  These are generally not included in the calculation of compensation.  It should be noted that the terms "lost profits" and "lost access" are to be defined by the General Assembly."

Those opposed: Those opposed were local governments through their voluntary collective associations.

Now it seems that the Virginia Association of Counties no longer opposes the Amendment.

The Virginia Municipal League appears to still oppose the Amendment largely due to the "lost profits" issue. 

Apparently the Virginia Democrat powers that be ["VADemSCC"] also oppose the property rights amendment due to the cost and complexity of compliance for local governments.  Additionally, the VADemSCC also feels the Amendment is merely duplicative. 

Why the Amendment is extremely beneficial

Private property rights are not safe, but can be much safer.

1. The Dillon rule allows for grants and revocations of powers.  Although today public use is limited for local governments, a future general assembly might slowly water down the definition of public use.  The doctrine of entrenchment prevents a current legislature form binding future legislatures.  The only solution to prevent the watering down of fundamental rights is this Constitutional Amendment.

2. The General Assembly has been laboring under NO RESTRICTIONS.  Although the General Assembly can pass a law restricting the Governor's office from exercising eminent domain at the state level, that law can be undone completely, or exceptions made on a whim by a subsequent General Assembly.  Once enshrined in the Virginia Constitution, these restrictions can not be undone on a whim or one simple exception.

3. This Amendment contains the holy grail of eminent domain opponents.  Although not discussed in any detail, compensation must be made for "damaged" property, and not just property taken in total.  This allows a landowner to be compensated for something referred to as a "regulatory taking."  This is an instance in which a regulation reduces the value of property.  This is an incredible curb to government power, and significantly bolsters the rights of private landowners of all kinds.

Those opposed neither want to acknowledge nor contest the above three benefits, as the public at large tends to support private property rights in concept. 

Virginia residents, please be sure to register and vote to protect your rights in November.

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