Should you vote yes or no on the eminent domain ballot question?
The impacts of the proposed changes are virtually unknown
Watkins represents Powhatan County and parts of Chesterfield County and Richmond in the Virginia Senate.
Eminent domain is one of those issues that has been the subject of consideration over the past decade. Much of the concern on the part of property owners is the impact and, indeed the implication, of cases in other parts of the country that have led to decisions at the highest level of the federal judicial system.
The U.S. Supreme Court’s ruling in Kelo sparked an outcry on the part of landowners across the country concerning the statutory structure in the individual states with regard to how property owners could protect their property and how they could ensure that, if it is taken for the appropriate reason, they would be properly reimbursed.
The Virginia General Assembly took a couple of years in fashioning legislation, which ultimately passed in 2007 and has had a couple of additional amendments in 2009 and 2011. These changes statutorily prevented a case such as Kelo from occurring in Virginia.
To the best of my knowledge, this statute has never been tested before the Supreme Court of Virginia or in any federal court. Yet there has been an ongoing outcry for an amendment to the state constitution to put in place protections that even exceed the statute that Virginia has put in place and had amended over the last few years.
The impacts of the changes that have been proposed are virtually unknown. Traditionally, any constitutional amendments that pass the first-year test are subjected to significant review and development of the fiscal and economic impacts of the proposed changes. This was not done.
Most of the amendment was put together at the last minute in 2011 and was subsequently amended on the floor of the Senate before it passed. So no one thoroughly understood at the end of the 2011 session what the effects of this amendment would be. Then the amendment came back before the 2012 legislature for final passage prior to the referendum to be held in conjunction with the presidential election next month.
Because I have had up close and personal involvement and experience with eminent domain proceedings — being one of only a limited number of individuals in the Virginia General Assembly whose property has been taken as a result of eminent domain — I feel somewhat qualified and compelled to discuss the issue with you, the voters, before Nov. 6. There are three elements to this amendment that give me grave concern.
The first is the requirement that individuals or corporations who own property be compensated for lost profits and for lost access. I am unsure, as a businessman, how you can adequately justify what your profits, particularly future profits, will be. To place the burden on the state or local government that is in the position of implementing a taking through eminent domain, the question becomes: Who pays for those profits? To the best of my knowledge, the taxpayers will wind up paying for those lost profits.
The same issue revolves around lost access. The question might arise if there is also an offset for increased value as a result of, for instance, the widening of a highway, even though it may reduce the level of access. If there is a claim that access is lost because of a new median or new limited access highway, who pays? Again, it will be the taxpayers who that will bear the cost.
Secondly, there is the introduction of a term that provides a prohibition on the use of eminent domain to acquire property that would be utilized in a “for profit” setting. This, in my mind, eliminates the use of public/private partnerships and revenue sharing with private entities for the development of infrastructure. Examples would be the Metro in Northern Virginia or Virginia 895 in central Virginia.
Each of these changes will lead to bigger government and more costly government as a result of increased payments for property acquisition. This, in turn, will probably push development into more rural and more undeveloped areas in order to reduce costs. An inevitable result would be “blight” as these changes would make it much more difficult to rehabilitate properties in more densely populated areas of the state.
My third concern is that, for the first time in the constitution, the term “fundamental” is used as a descriptor of property rights. I am not aware of any other place in the constitution where a right is expressed as fundamental.
My fear is that, in a court of law, this term will carry more meaning in the delineation of which rights, which individual rights, have more importance. I personally feel that there are other basic rights that are far more important than the ownership of property.
I would not presume to attempt to dictate how you should vote on this issue, but you need to be aware of what you are voting for. Sometimes the cure may be far worse than the disease.
As a legislator, I voted against this amendment in the 2012 General Assembly. As a citizen and as a property owner whose land has been, for one reason or another, taken under eminent domain proceedings, I will vote “No” once again when I cast my ballot Nov. 6.
Put property rights beyond reach of those who would take them
Waldo is the managing partner of Waldo & Lyle, a Norfolk firm that specializes in property rights.
A man’s home is his castle, but even so, Virginians understand that sometimes eminent domain must be used to construct schools, highways and public utilities. In the same way, they do not believe it is right to force someone to surrender their property at a fire sale price.
I’ve been defending people’s castles for more than 20 years. I have encountered many public officials who try hard to strike the right balance when the public interest encroaches upon a farm, home or business. They understand that private property is more than a commodity with a fluctuating price tag; in a free society, it is a basic building block — like freedom of speech and worship — not to be taken lightly.
We would not be voting Nov. 6 on a property rights constitutional amendment if every public official acted with such admirable restraint and respect. Economic temptation and political pressure have led too many officials to stretch eminent domain laws to condemn property for shopping centers and offices, or to shortchange property owners, particularly the elderly, minorities, the uneducated and politically powerless.
Better eminent domain laws are not the answer; they can be worn down by these same influences. The constitutional amendment will safeguard private property from these corrupting impulses and limit condemnation to its traditional and necessary work.
The opponents would have you believe that we don’t have an eminent domain problem or that laws adopted in 2007 by the General Assembly closed the loopholes.
The former argument ignores dramatic examples of eminent domain abuse across Virginia. Here are but three:
In 1975, Roanoke promised to condemn Walter Claytor’s block of thriving businesses as part of its clearance of Gainsboro. Over the next 24 years, Roanoke never followed through, but the threat alone was enough to ruin Claytor. Because the surroundings were leveled, his block became unattractive and the tenants in his apartments and office building moved out. Underwriters refused insurance on the vacated buildings, and they became a target, first of vandals, then an arsonist. Not until 2004, did a Roanoke Circuit Court address the injustice, ordering the city to pay Claytor several hundred thousand dollars in damages. The buildings, still empty, stand as a monument to eminent domain abuse.
In 1999, the city of Hampton, in partnership with a developer, targeted a neighborhood for a shopping and entertainment district. One homeowner fought back. Frank Ottafaro complained that the city took his house for the developer when it was not needed, and his house was not touched in any way by the plans. When he challenged the condemnation, Hampton retaliated, lowered its appraisal, tried to take it for less than the original offer and fought him vigorously through numerous and expensive court proceedings. In the end, it was for naught. He was so traumatized that he protested at every meeting of the city council for 12 years until his death this spring.
In the mid-1990s, Old Dominion University decided it wanted to get in the real estate development business by expanding its campus across Hampton Boulevard. Lacking the power of eminent domain for such commercial purposes, it hired the Norfolk Redevelopment and Housing Authority. NRHA declared the neighborhood of more than 160 homes, apartments and businesses blighted (even though it admitted only 20 percent were in poor condition), then set about removing them under the threat of condemnation. One business, Central Radio, is to be taken because the college wants restaurants and retail for its students. This would replace a family-run company with 100 employees who install, repair and maintain highly sensitive communications gear on Navy warships docked nearby. A 4 percent commission gives the NRHA a strong incentive to keep doing ODU’s bidding. Ten years later, practically every building for blocks, except for Central Radio and a few neighbors, are gone.
The opponents believe the 2007 laws are strong medicine against abuse. These are the same political and business organizations that waged war against the laws’ enactment, have tried ever since to water them down and now lead the fight against the amendment. The new law is a good one, but with such powerful forces aligned against it, it will not stay that way.
The system has failed to write fair rules and to abide by them. On Nov. 6, Virginians can write the rules themselves by voting yes. Once in the constitution, property rights will be beyond the reach of those who would take them away.
Here’s the question as it will appear on the ballot:
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?
To read the State Election Board’s explanation of the question and the language of the amendment, visit bit.ly/ballot_question