Saturday, September 29, 2012

Eminent Domain Amendment: Well Intentioned, But Bad Amendment

As absentee voting starts, I've been receiving a lot of questions about the Question #1 on the ballot which is a constitutional amendment regarding eminent domain (Questions #1).

I am going to vote No and would encourage all Virginians to vote No.

First, some background.  In the case of Kelo v. New London, the U.S. Supreme Court held that there was nothing in the United States Constitution prohibiting the government from condeming private property from an individual or business and giving it to another private person or entity.  The case held that the general benefits a community receives from redevelopment were sufficient to justify that action as a "public use" of the property.  However, the Supreme Court noted that while the United States Constitution did not prohibit the action, there was nothing to prohibit the states from having more restrictive provisions in their state constitutions.

The United States Constitution's Bill of Rights is based upon the Virginia Declaration of Rights that makes up the first article of the Constitution of Virginia.  Therefore, the Constitution of Virginia also contains no prohibition. 

Therefore, in 2007, the General Assembly passed a statute (Section 1-237.1) effectively prohibiting exactly what happened in Kelo by effectively prohibiting any condemnation unless the property was ultimately owned by the government, a utility or a public service corporation.  Since 2007, the kind of condemnation in Kelo has been illegal in Virginia and continues to be illegal today.

Notwithstanding that, the supporters of this issue believe that this prohibition belongs in the Constitution of Virginia and once the Constitutional Amendment started to move, supporters added on remedies that will be harmful to taxpayers.

The final vote in the General Assembly was 24-16 in the State Senate and 80-18 in the House of Delegates.

The Problems
First, here's the actual text.  The Amendment deletes the following:
Section 11. Due process of law; obligation of contracts; taking or damaging of private property; prohibited discrimination; jury trial in civil cases.
That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term "public uses" to be defined by the General Assembly; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination.
That in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred. The General Assembly may limit the number of jurors for civil cases in courts of record to not less than five.  
And adds this:

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.
Constitution v. Statute
This is not something that belongs in the Constitution.  You don't write the speed limit into the Constitution - you simply say who has the power to write the speed limit.  The language in this amendment is completely unnecessary - it bans actions currently illegal in Virginia.

Also, one can see that adding 199 words to the Constitution is highly unusual.  That is simply not how you write a constitution. 

Amending Historic Documents
Question #1 amends the Virginia Declaration of Rights.  This document was drafted by Fairfax County's George Mason whose picture is above.  It is a historical document. 

It has worked fine for 236 years and history has proven it to be adequate. 

Bad for Taxpayers & Infrastructure
Special interests convinced the sponsors of this legislation to add unnecessary language to amendment broadening damages that landowners can receive to include lost profits and lost access.  First, this kind of detail belongs in the Code of Virginia, not the Constitution.

Second, lost profits are built into the price of land.  If an individual does not receive fair compensation from the government, they are entitled to a jury trial where the jury sets the correct value.  Most attorneys take these cases on a contingency basis.

Requiring the government to pay for not only the value of land, but for lost profits and lost access will massively run up the costs of infrastructure projects all over Virginia.  Imagine what that means for widening U.S. 1 or what they would have meant in terms of the disruption caused on Route 7 for the construction of the Silver Line.  This bill will make roads and transit even harder to construct.

Most Local Governments Unanimously Opposes
The Virginia Association of Counties and most of Virginia's 130+/- localities Nearly every local government in Virginia opposes this.  They are primarily concerned about exploding costs, but they also believe that if they vote to shut down a street for a parade, they could be sued for "lost access" damages to their property. 

[I'm told that Prince William County Board of Supervisors approved a resolution endorsing the amendment on October 2, 2012.]

Political Grandstanding
There has been a trend in this state that need to stop.  We do not have voter initiatives in Virginia like many other states.  However, some in this state have been proposing unnecessary amendments to our Constitution to drive up voter turnout. 

The classic example of this was in 2006 with the Marshall-Newman Amendment that banned gay marriage.  In the 2000 Presidential Election, the legislature added a question to add the "right to hunt and fish" to the Constitution - I'm not aware of anyone trying to take that away. 

I am not against people being fairly compensate for their property when the government takes it.  However, this is a matter of balance, good public policy, and constitutional law.  This amendment is an ill-advised attempt to write statutes into the Constitution for political reasons - to drive up voter turnout. Voters should not be fooled.  This amendment will end up strangling out ability to build roads, extend the Metro or expand transit.  Voters should reject it. 


  1. As might be expected, I respectfully disagree.

    First, this has been an ongoing problem in Virginia. Right now, Norfolk is in court trying to take Bob Wilson's property so the property can be given to a developer for a mixed use "University Village." This is a repeated pattern. Eminent domain is used not to take property for public use -- like a road -- but so developers with connections to City Hall can force a reluctant property owner to sell.

    Second, I was the co-author of the statute to stop eminent domain abuse, but we need these protections in the Constitution. This is not like the speed limit -- it addresses the fundamental right to property. There will always be pressure by special interest groups to chip away at this right for some purported public benefit. If the rights is placed in the State Constitution, it will not be subject to change except by subsequent referendum by a majority of Virginians.

    Last, it is not accurate that all local governments are opposed to the Amendment. Hanover, Spotsylvania, Goochland, and my own Albemarle County have passed resolutions repudiating the VACO position and endorsing the Amendment. Given that the Amendment protects liberty by restricting government, we are very happy that these four have endorsed it, and we expect many more endorsements in the coming weeks.

    Delegate Rob Bell (R-Albemarle)

  2. I wonder how many of the amendments so recently proposed would disappear if citizens could trust their government representatives (at all levels) to do the right thing.

    When WE THE PEOPLE start electing people who will do the right thing, we'll see this trend wane, I expect. However, until they, citizens seem to recognize that what the legislature gives (Section 1-237.1) it can just as easily take.

  3. Hey Rob

    Welcome to The Dixie Pig! I'm glad someone's reading it.

    First, I'll correct the part about the local governments. I didn't realize any Boards of Supervisor had endorsed it. I'm pretty sure all up here are opposed.

    Second, I don't see why any of these concerns can't be addressed in the Code. I just don't see a large enough problem where we need a statewide constitutional solution.

    To me that's like using a nuclear bomb to take out a couple of snipers.

  4. So glad to hear the pros and cons of this amendment from two delegates. So far, Rob's argument is winning for me, but I will keep an open mind -- so glad we don't have to hear a million commericials like "Question #7"

  5. "They are primarily concerned about exploding costs, but they also believe that if they vote to shut down a street for a parade, they could be sued for "lost access" damages to their property."


    Chuck Smith
    Lexington, VA

  6. I have been researching this topic because a friend of mine in Burundi asked me what does the City of Fairfax's committee ( think of this matter. I had no idea, not sure if I do now either, but will certainly share this blog with him. Thanks for writing this, and thanks Rob for your counter-argument.

  7. Thank you Rob for standing up for individual rights. Anyone can see what this really is-- a Dem initiative to keep the door wide open for government infringement on our most precious of liberties. Scott Surovell, for the sake of this great Commonwealth I think you would be served well to serve the interests of ALL Virginians and not just the Federal government leaches up here in NOVA

  8. Glad to see both sides of the argument, even if it is after the election. I can appreciate the point and counter point approach, which leaves it up to the voter, their knowledge, and conscience. Thanks Scott and Rob for a civil discourse. The public needs to see more of this!