- Published on Wednesday, 25 July 2012 15:01
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Most counties, states, and even the Federal Government, tend to be reluctant to use their power of eminent domain. As a rule, they much prefer a straight sale. But, when they can’t get their way, or get the price they want to pay, their next step is eminent domain. That way they can force the sale of the property at what they deem is the prevailing market rate. It can seem heavy handed at times. I remember when I was on the Stafford school board, getting chewed out by a local property owner, because the school system was using eminent domain to purchase a small part of his property to use for a bus lane. It was something we needed. The current traffic pattern was unsafe, but the property owner, felt that knocking off the 12 feet, reduced the value of his remaining property to a level far below what we paid him. I don’t know if was right or not. He might have been, but it was then and there that I understood how personal this issue can be.
Eminent Domain is an affirmed principle in American law. But there are limits and as noted, in what’s called the “takings clause” of the Constitution’s Fifth Amendment, “nor shall private property be taken for public use, without just compensation.” That seems straightforward, and it’s likely that the writers of the Constitution had a good idea of what they meant by public use and just compensation. However, in recent years, the definition of public use has been stretched to the breaking point. Local governments, not locally, but many in Virginia, have used Eminent Domain to force the sale of property, not for public projects, but instead to other individuals or to corporations. That is if the locality deems the sale in the public interest. That’s a broad and dangerous interpretation.
Sadly, it’s an interpretation that was endorsed by the Supreme Court in 2005 when they ruled that the City of New London, Connecticut, had the right to use eminent domain to force the sale of a property to a private developer. The majority said that since it was an urban renewal project it was in the public interest. It was a terrible decision. Sandra Day O’Conner, writing for the dissent said, “…the beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
Such takings of property aren’t as common in Virginia as they are in other states, but they do occur. The City of Hampton Roads, for example, condemned a property owned by a small business in order to force its sale to the Old Dominion University Foundation. In Alexandria, there is an on-going dispute about the City’s possibly using eminent domain to take a portion of the Alexandria Boat Club’s Property to support a private re-development initiative. Sadly, this kind of abuse, where well connected individuals or companies can force the purchase of property, usually on bargain basement terms, is something you might expect in Russia, but surely not Virginia.
Fortunately, the General Assembly, following on the heels of the New London decision, passed, with strong Democratic support, legislation to prevent the abuse of eminent domain. But, they wanted to do more than just add the legislation to the statute books. This November, along with choosing our next President, Senator, and Member of the House of Representatives, we’ll have the chance to vote on an amendment to the Virginia Constitution that defines the limits of eminent domain. It limits the definition of public use, and when this power is justified, demands that localities consider loss of access and other factors, when coming up with a sale price.
Most of all, it’s about fairness. Eminent Domain is a valuable and needed prerogative of government. But, when it’s abused, or too broadly interpreted, something has to be done. This amendment shouldn’t be necessary. The power of Eminent Domain shouldn’t have been abused in first place, but it was, and this amendment, carefully and succinctly worded, seeks to put things right.