Sunday, January 14, 2007

Any Virginian outraged by the United States Supreme Court’s decision in Kelo v. New London should examine Virginia law, which often gives Virginians less protection than the court gave the property owners in Kelo. Virginia law allowed a housing authority to take an owner’s house without the owner’s notice and at a price set by the authority in the owner’s absence.

With regard to notice of a lawsuit, Virginia law gives debtors, who refuse to pay their bills, more protections than law-abiding, taxpaying property owners. The law specifically singles out owners whose property is taken by eminent domain and excludes them from the protections given to all other Virginians. Virginia law allowed a city to take an owner’s property and give 82 percent of the property to a private developer to build a shopping center. Virginia law allowed a county to take a farmer’s land to build a driveway for the farmer’s neighbor. Virginia law allows housing authorities to take the well-maintained property of a law-abiding, taxpaying property owner solely because his neighbor refuses to maintain his property.

In Kelo, the United States Supreme Court stated that condemnors may not take one man’s property “to benefit a particular class of identifiable individuals.” The Court further stated that a condemnor may not take property “under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” Yet, in the Virginia Supreme Court’s latest eminent domain opinion, it allowed a taking that was undisputedly designed to benefit a particular private party — a developer who desired the taking to develop his property. The Virginia Supreme Court refused to examine the “good faith” of the condemnor’s actions and stated “the fact that neighboring property owners will benefit from [a taking] is irrelevant.”

The Virginia Constitution guarantees owners just compensation for property taken, but Virginia law frequently guarantees that owners receive less than just compensation or less than the value of the property taken. An owner who receives a below-market-value offer for his property has one choice: accept the condemnor’s low offer or forfeit a portion of his compensation to litigation expenses. Virginia law prohibits an owner from being reimbursed for litigation expenses regardless of how unreasonable a condemnor’s offer may have been. Virginia law also prohibits business owners from recovering business losses they suffer when a condemnor takes their business.

While the General Assembly created these abuses by delegating broad powers of eminent domain to countless entities, many of which are unaccountable and unelected, these abuses continue because a strong lobby, consisting of the takers themselves, has captured key members of the assembly. The takers’ lobby consists of Virginia cities and counties, state agencies such as VDOT, wealthy public utility companies and others with the power to take Virginians’ property. As a result of this powerful lobby, Virginia became one of only thirteen states to refuse to take action in response to Kelo during the 2006 legislative session.

Just as in years past, controlling members of the Senate Courts of Justice Committee seem poised to appease the takers’ lobby in 2007 by derailing any meaningful eminent-domain reform. Unfortunately for Virginians, the assembly has recently funneled all eminent domain reform bills through this hostile committee. Many of the legislators on this committee, most notably in the Senate, continue to lead the charge against meaningful eminent-domain reform despite glaring conflicts of interest. Some of these legislators are partners in law firms that make hundreds of thousands of dollars annually representing condemning authorities, and other legislators, or their immediate family members, own large amounts of stock in private condemnors, such as Dominion Power. These legislators and their committees cannot be trusted with the private property of Virginians, as they have proven that they are willing to give Virginians’ private property to entities from which they will receive a private financial benefit, such as gifts, campaign contributions and political clout.

As the assembly has repeatedly proven, it will not act to protect Virginians and their private property. The people must demand that these needed protections be placed into the fundamental law of the land: the Virginia Constitution. In 1902, Virginians demanded a constitutional amendment to protect their private property. It is now time for Virginians to take similar action. A constitutional amendment would not only allow the people to place sufficient protections upon themselves and their private property, but it would also provide lasting protections that future assemblies cannot take away. The assembly created and perpetuated the eminent domain abuses in Virginia, and it is now time for Virginians to once more bind the assembly down with the chains of the Constitution, thereby depriving legislators of the ability to continue trading the private property rights of individual Virginians for financial and political favors from the takers themselves.

Jeremy P. Hopkins is of counsel with the law firm of Waldo & Lyle, P.C. and a member of the board of directors of advocacy group Tertium Quids.

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