- - Wednesday, September 25, 2013

ANALYSIS/OPINION:

The city of Norfolk suffered a seizure earlier this month, and Virginia can celebrate, along with Bob Wilson and his shop, Central Radio. The Virginia Supreme Court unanimously ruled that the city’s attempt to take Mr. Wilson’s land and give it to real-estate developers is against the law, so knock it off.

Developers, together with Old Dominion University, wanted to build a shopping mall called University Village on Mr. Wilson’s land, and the city of Norfolk thought that was a nifty idea. The university offered the city a bounty for every small-business firm it could evict from the property. Mr. Wilson’s repair shop had been there 50 years, and he didn’t want to sell. He resisted the city’s attempt to declare his modest but neat property “blighted” so that it could be seized and handed over to the developers. He put up a large sign on the building: “50 Years on This Street/78 Years in Norfolk/100 Workers/Threatened by Eminent Domain.” The sign, accurate in its particulars, particularly upset the university.

Until the U.S. Supreme Court’s Kelo v. City of New London decision in 2005, the Fifth Amendment unambiguously prohibited the taking of private property for private benefit. The high court ignored the plain meaning of the amendment and allowed confiscation of private property so long as the government did it to collect public tax revenue. Virginia cities leaped at the opportunity. The city of Hampton, for example, took land from Dora and Frank Ottofaro to “build a road.” Some road. A fisherman’s supply store, a hardware store and a steakhouse stand on the Ottofaro property today.

The General Assembly curbed these abuses in 2007 with a law requiring the government to prove a traditional “public use” before taking a home or business. Takings for economic development, job creation or tax revenue were prohibited, but Old Dominion University won a grandfather exemption, which expired in July 2010. Voters amended the state constitution last year to make permanent the prohibition on eminent domain for private profit.

Three months after Norfolk’s grandfather clause expired, Norfolk filed the paperwork to condemn Central Radio and nearby businesses to complete the mall-development scheme. That’s when Mr. Wilson put up his sign to protest. An official of Old Dominion University complained, and the city threatened him with a fine of $1,000 a day if he didn’t take the sign down.

The Institute for Justice finally beat City Hall, proving the city hadn’t filed its paperwork in time to meet the statutory deadline. Mr. Wilson gets to keep his land for as long as he wishes. Old Dominion University and city officials might persuade him yet to sell, but they will have to do it with a legitimate offer that satisfies him. They can’t use the government, like a mafia don, to make him “an offer you can’t refuse.”

Mr. Wilson has one more score to settle. He filed a lawsuit against the city to protect his right to publicly object to governmental action with his sign. The lawsuit is pending in the 4th U.S. Circuit Court of Appeals in Richmond. This seems an easy call to us. Mr. Wilson’s First Amendment right to free speech is just as important the Fifth Amendment protecting his property rights. We wish him good luck.

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