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Local resistance building on Virginia’s eminent domain change

- The Washington Times - Thursday, November 24, 2011

A state constitutional amendment to expand Virginia's eminent domain laws is meeting local resistance, with the city of Alexandria agreeing to contribute as much as $5,000 for a lobbying firm to help fight the legislation.

The amendment, sponsored for the 2012 General Assembly session by Delegate Rob Bell, Albemarle Republican, attempts to change the Virginia Constitution by updating a law enacted in 2007 that says private property can be taken only when the public interest dominates the private gain, among other conditions.

"The goal is to put [the amendment] into the constitution so that it can't be tinkered with," Mr. Bell said.

However, the nonpartisan Virginia Municipal League and Democrat-controlled Alexandria City Council oppose the amendment because it provides for property owners to be compensated for "lost profits and lost access"caused by government action.

Arlington County also opposes the measure as part of its draft 2012 legislative package.

Though the Alexandria council is against the proposed change, members support the 2007 law, said Bernard Caton, the city's legislative director.

He cited as an example a median strip that prevents left turns into a business, resulting in a drop in daily revenue of $1,000 to $800 and potentially leaving taxpayers on the hook for the difference.

That Alexandria agreed to provide up to $5,000 for a firm to help lobby against the amendment, though,rankled Mr. Bell.

"I think it's awful that local governments are using local dollars to try to take property from taxpayers," he said.

Newly elected House Majority Whip Jackson H. Miller, Manassas Republican, supports the proposed amendment, saying it is simply a matter of protecting the small property owner against the power of government and large industry.

"It doesn't stop eminent domain for true public use, and that's what I think is important," he said.

The amendment passed with wide support during the 2011 General Assembly session, with help from Mr. Bell. It cleared the House by a vote of 83-15 and the Senate by a vote of 35-5.

But to amend the state constitution, the measure must pass again in the assembly before going to the public as a voter referendum on the 2012 ballot.

Despite the broad support, Mr. Bell said, amendment supporters are girding a fight.

"We are not taking anything for granted," he said.

The long-standing eminent-domain debate drew national attention after the Supreme Court's 2005 ruling in the case of Kelo v. City of New London, Conn.

New London resident Susette Kelso brought the case against the city after her house was moved to make way for economic redevelopment — a plan that ultimately was abandoned when the developer couldn't secure financing.

Still, the court ruled that benefits to the community qualified the plans as permissible public use under the "takings clause" of the Fifth Amendment, which prohibits the government from taking private property for public use without just compensation.

Another issue for the Municipal League in Virginia is that the amendment would bar eminent domain if the purpose is for "increasing jobs, increasing tax revenue or economic development."

When a locality and a landowner negotiate a price to buy land, for example, the government typically will pay fair market value.

But if a court rules that the state constitution means eminent domain cannot be used for the purpose of economic development, the Municipal League argues, then the fair market standard is voided and the landowner dictates the price.

Still, Mr. Bell said, the impetus was to protect property owners.

"The local governments were certainly opposed to the original statute and claimed it would bring along the end of the world," he said. "Of course, it hasn't. ... We're certainly hopeful that property owners will protect themselves."

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