- The Washington Times - Sunday, October 7, 2012

The Democratic Party of Virginia’s State Central Committee voted to oppose an eminent-domain measure that Democratic voters in the state support by a 20-point margin, and expected to pass overwhelmingly on the Nov. 6 ballot.

The General Assembly approved the amendment for voters’ consideration earlier this year. If it passes, the measure will add a state statute on property rights protection to the Virginia Constitution and entitle landowners whose property is taken to compensation from the government for at least as much as the property is worth.

Though it passed on a bipartisan vote in both the House of Delegates and the state Senate, the Democrats’ central committee argued that the amendment would “add to the complexity and expense of governmental entities seeking to utilize eminent domain for the benefit of taxpayers, even when property is taken for unquestioned public purposes.” (The measure also passed in 2011, but amendments to the state constitution must be approved twice by the legislature with an intervening election before being placed on the ballot.)

But the reason the expense will be higher is because landowners will be entitled to “fair compensation” — theoretically, more than the government otherwise would have provided, said Sen. Mark D. Obenshain, Harrisonburg Republican and Senate sponsor of the amendment.

“The burden — the loss associated with that — shouldn’t fall on the property owner,” Mr. Obenshain said.

Mr. Obenshain also chided Democrats for another section of the resolution that says, essentially, they oppose it because Attorney General Kenneth T. Cuccinelli II, a Republican, supports it.

“The last [reason] was, ‘We don’t like the attorney general and he likes this. Therefore it must be bad,’” Mr. Obenshain said. “It is too petty for them. It’s ridiculous.”

A poll last month from the liberal-leaning firm Public Policy Polling showed Virginia voters across the political spectrum support the amendment. Forty-three percent of likely voters said they planned to vote for it, compared to 19 percent who planned to vote against it and 38 percent who weren’t sure. Forty-two percent of Democrats planned to vote for it, compared to 22 percent who planned to vote against it and 36 percent who weren’t sure.

According to the resolution approved last month, Democratic Party brass also are opposed because the amendment is “duplicative” of requirements in an existing state statute, and will codify a prohibition on using eminent domain “to advance private enterprise, job creation, tax revenue generation, or economic development.”

“The concern among Democrats is that it could add a lot of costs to economic projects — infrastructure projects and the like, economic development — and how costly it could be,” said a party official who was granted anonymity in order to speak freely about internal strategy. “It’s very restrictive as to what’s allowed.”

One concern brought forward by localities during General Assembly debate was that a section entitling affected landowners to “lost profits and lost access” was not defined specifically enough and could lead to costly litigation and attempts to grab far more money than property is actually worth.

The General Assembly bill lays out more specifics. For example, one provision requires the owner of a business or farm to prove the economic loss was directly caused by the taking of the property and that it cannot be “reasonably prevented” by relocating the farm or business.

This proposal doesn’t, however, prevent tinkering by future legislatures, said Bernard Caton, Alexandria’s director of legislative affairs.

“The potential is there under the constitutional amendment because it gives the General Assembly such latitude in defining those issues,” Mr. Caton said. He did, however, applaud the legislature for taking the “responsible” move to clarify the language.

Though the issue has been overshadowed somewhat by the presidential, U.S. Senate and congressional races in the state, it has been causing controversy for months. Goochland County, just outside Richmond, withdrew from both the Virginia Association of Counties and the National Association of Counties in August, citing the state group’s opposition to the amendment.

“When eminent domain is abused, it’s almost always used against people who lack the power to defend themselves,” said Delegate Robert B. Bell, Albemarle Republican.

Both Mr. Bell and Mr. Obenshain, who will be battling for the GOP nomination for attorney general next year, have been working on the issue for some time. Both they and Mr. Cuccinelli, then a state senator, introduced versions of the eminent-domain state statute in 2007. All three have worked to get it on the ballot since then.



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