- The Washington Times - Monday, February 28, 2011

ANALYSIS/OPINION:

The Virginia General Assembly last week gave its first approval to a constitutional amendment restoring the sanctity of private property in the commonwealth. The measure was made necessary by the reckless 2005 Supreme Court decision Kelo v. New London, which gave towns and cities free rein to grab land for the use and benefit of well-connected developers.

At issue is the power of eminent domain, under which landowners are forced to sell property to the government for public use. Over the years, the Supreme Court has expanded the scope of government takings by redefining “public use.” Originally, the term was applied to such things as parks, roads or rail lines - all of which were open for use by the entire community. The high court elasticized the concept to include land intended for a public “purpose,” such as eliminating blight or other catchall categories related to public safety.

The Kelo court went further to rule that economic growth, and the tax revenue that would accrue from it, was sufficient to justify a land grab. By refusing to hear a 2010 appeal called 480 Acres of Land v. United States, the high court effectively gave the green light to jurisdictions that use their regulatory powers to reduce the value of land so that bureaucrats end up paying less in “just compensation” for the seized land.

Attorney General Kenneth T. Cuccinelli II and Gov. Robert F. McDonnell, both Republicans, have been leading the fight to reform Virginia’s property laws over the developer interests that, until now, have succeeded in blocking the amendment from consideration. The measure clarifies that eminent domain may be used only for purposes that are truly public. Land could not be transferred by the government to private entities to generate more tax dollars. In the event of a dispute, the proposal would give the little guy an edge in fighting city hall, which would bear “the burden of proving that the use is public, without a presumption that it is.” Compensation also would be more fair, as the government would pay not just for the static value of the land and buildings taken, but also the demonstrable loss of business profits or land access.

Before this amendment is enshrined in the state constitution, the General Assembly must pass the same language next year and put the question to the vote for final approval of the public in a statewide referendum. The latter should be a breeze, as polls since the Kelo decision have repeatedly shown large, bipartisan majorities in favor of eminent-domain reform.

As important as the amendment is on its own terms, it also sends an important message to the Supreme Court’s activist wing that a handful of justices do not, in fact, dictate public policy in this country. All but a few states have enacted their own legislative rebukes of the Kelo decision, with some states offering better protection than others. Virginia’s proposal would elevate the status of the Old Dominion as one of the friendliest to homeowners in the nation.

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