Wednesday, March 8, 2006

Virginia, a state synonymous with American history, is poised to make it once again, though it remains to be seen what kind of history it will be.

In February, both the Senate and House of Delegates passed two versions of legislation seeking to reform the state’s horrid eminent-domain laws. In the wake of the U.S. Supreme Court’s infamous decision in Kelo v. City of New London — which now allows the government to take property from one individual and transfer it to another on the mere promise of increased tax revenue or jobs — home and small business owners around the country are calling for an end to this type of abuse. Virginia joins more than 40 other states that have passed or are considering passing eminent-domain reforms. And now, after various machinations that have confused which bills contain what language, a conference committee will soon address the two versions of “reform.”

Unfortunately, not all reforms are real, and this state is the perfect example of the clash between real and cosmetic reform — a battle between those who want to save their homes and those who want the power to take them. Senate Bill 394, now containing Del. Johnny Joannou’s amendment, provides the exact protections necessary for Virginia’s property owners to keep what they’ve worked so hard to own. This legislation limits the power of eminent domain to situations where the government or the public at large will ultimately own and occupy the property taken — things like schools and roads — and where it will be used for public service companies.

Eminent domain can no longer be used to take farms, homes or businesses for private commercial development, which nearly everyone, in poll after poll, rejects.

House Bill 94, however, contains almost no restrictions at all. Property can be taken for the simple use or occupation by the public, which arguably means a shopping mall or big-box store. The bill’s reference to taxes contains a qualifier — “primary purpose” — that any condemning authority can get around by claiming it’s doing something else. Courts won’t check these assertions, particularly because the bill also reinforces the presumption that any government taking is correct, a significant and often insurmountable judicial obstacle to challenging public use. Most importantly, HB 94 leaves a gaping exception for condemnations under the Housing Authorities Law, which is routinely used to take property under the guise of “blight removal,” when the real reason is the one everyone despises and one sanctioned by statute — increased tax revenue.

It’s no surprise, then, that the beneficiaries of eminent-domain abuse are the strongest proponents of this language. This should be seen as cause for alarm.

Cities and counties will no doubt clamor for the power of eminent domain to remove so-called blighted properties, even though they already have the power to take properties that are serious threats to public health and safety. Should the General Assembly choose to include a blight provision, the criteria for designating a property as blighted must be objective and identifiable — fire hazards, abandoned or tax-delinquent property — not vague terms like obsolescence, faulty arrangement or diversity of ownership. House Bill 699, which is flying through the legislature, purports to change the criteria, but it contains the same broad factors so often abused by governments across the state for private development. It must be rejected, and for real guidance, Virginia should look to another commonwealth, Pennsylvania, whose Senate unanimously passed Senate Bill 881 to overhaul that state’s blight statutes, or to the Castle Coalition’s own model language.

Unlike most other states, the constitution of Virginia leaves it up to the General Assembly to define “public use,” the requirement for taking property by eminent domain. That’s what makes this session so important to every citizen of the Commonwealth. Senate Bill 394, with the Joannou language, provides sensible and long-overdue eminent-domain reform. House Bill 94 is a sham and it would be a shame to see the powerful and well-connected interests patrolling the halls of the General Assembly Building win this debate.

As the mother of both presidents and states, it’s time Virginia gave birth again — to a law that recognizes its rich tradition of liberty and the rights of its citizens to hold on to what’s theirs, not a law that allows influential special interests to block real reform. The country is watching — and will be able to tell the difference.

Steven Anderson is an attorney and coordinator of the Castle Coalition, the Institute for Justice’s grass-roots, property-rights project.

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