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HOPKINS: Debunking property rights amendment fears

Virginians need measure to temper eminent domain

- The Washington Times - Friday, January 20, 2012

It has been more than 100 years since the Virginia General Assembly took a hard look at property rights guarantees in the state constitution. As our lawmakers begin a historic debate about how and whether to safeguard those constitutional protections, it is apparent already that the arguments against property rights protections have a distinct deja vu quality.

In 1902, those who opposed efforts to give Virginians more security in their homes, farms and businesses against eminent domain abuses made the same kind of doom-and-gloom predictions that are heard by opponents today. Opponents argued that the amendment would doom Virginia as an economic backwater, discourage out-of-state investment, drown the courts in lawsuits and bind Virginians to their horses and wagons and to their steep hills and valleys because rights of way would become prohibitively expensive. They claimed increased protection for property rights would cause progress to come to a screeching halt. Despite this parade of horrors, Virginians amended their constitution in 1902 to correct the rampant property rights abuses of that time.

With more than a century of hindsight and a perennial ranking as one of the top states in which to do business, Virginians must conclude that those arguments are as quaint as they are wrongheaded.

But that has not stopped the heirs of the same governmental and corporate interest groups from mounting a stout defense of the status quo, claiming the proposed constitutional amendment to strengthen property rights is "flawed." A closer look reveals that the flaw does not lie in the amendment, but in the main arguments against it:

Flaw No. 1. The amendment will "hamper economic development." No, it will put a permanent end to the use of eminent domain to turn over someone's home, farm or business to a corporate giant promising an economic windfall. While it will stop Kelo-type takings for "economic development," it will not stop local governments from using their many tools and powers to foster new jobs and investment. Private developers build large neighborhoods, industrial sites, office parks and shopping centers without the power of eminent domain and without other powers, such as the authority to grant concessions, give tax breaks or approve rezonings. This amendment does not stop local governments from doing the same thing; it simply ensures that everyone in the marketplace plays by the same rules, government included.

Flaw No. 2: The amendment "will cost taxpayers dearly." For this to be true, the opponents would have to admit that condemning authorities have been acquiring land at below-market prices by force, in effect systematically shortchanging property owners and denying them the "just compensation" they are promised by law. The government should not get a discount. Property owners deserve to be made whole for what they have to give up.

Flaw No. 3: Businesses are not entitled to "lost profits" because the calculations would be too speculative. Virginia law allows persons to recover business losses in other areas of the law. There is no reason why property owners should not likewise be reimbursed for lost profits when they prove the government's taking caused lost profits. For example, if the government takes a restaurant owner's entire parking lot for two years to store equipment and materials, why should the owner not be reimbursed for profit losses caused by this taking?

Flaw No. 4. It will make it harder to use eminent domain for roads or utilities. The amendment will require that every taking be for a truly public use. If a road is available to the public, no court would hold that a road is not for a public use. With regard to utilities, the amendment specifically allows private utility companies to take property for utilities. It is doubtful that courts will interpret this language to prohibit public bodies from doing the very thing it allows private entities to do. Plus, the legislature could simply add local governments to the list of public utility corporations when those governments are acting as public utility corporations and providing utilities.

Northern Virginia is home to the commonwealth's most valuable real estate. So, it is as surprising as it is disappointing that so many of its city council members, supervisors, delegates and state senators want to preserve the status quo, a system that guarantees Northern Virginia property owners never receive just compensation.

In the end, despite the myths and misinformation spread by the opponents, the amendment will simply restore fairness and equality in an area that has been dominated by injustice and abuse. It will stop government from taking one person's property to give it to another, and it will require governmental and corporate entities exercising the power of eminent domain to reimburse owners for the damages caused by a taking.

Jeremy Hopkins is a partner at Waldo & Lyle, a law firm that represents property owners in eminent domain suits. He is author of "The Real Story of Eminent Domain in Virginia" (Virginia Institute of Public Policy, 2006).

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