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.
History
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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