Perhaps the least eminent item you’ll see on November’s ballot is the annoyingly abstract amendment on eminent domain.
It asks that you tap your inner George Mason and approve a change to Virginia’s constitution by channeling your inner John Locke for your feelings on property rights. What is a proper public purpose for a land taking? Should it include economic development?
Not as simple as deciding which candidate you’d rather have a beer with.
Arlington’s Committee of 100 last week made a noble attempt to provide clarity. Three speakers suggested that (1) it’s likely to pass; and (2) it may clog Virginia’s courts for years.
Prince William County lawyer John Foote explained how the movement behind the ballot question began after the U.S. Supreme Court’s 2005 Kelo decision. A woman in New London, Conn., found her home had been condemned (compensation provided) so the city could pursue what it considered well-thought-out economic development. Five of the most liberal justices backed the city, and anti-Kelo activists have been fuming ever since.
The General Assembly broached the subject with statutory reforms in 2007, a step toward banning takings for public use purposes if said purposes are private gain or economic development. The current amendment would permit compensation to property owners for lost profits and lost access. This April, the measure to place it on the ballot passed the requisite second time. “It’s a philosophically grounded debate,” Foote said, “that boils down to your perspective on the nature of property rights.”
Plugging for passage was Trey Davis, a lobbyist for the Virginia Farm Bureau Federation, which represents 45,000 families. “From a landowners’ perspective, it’s the future of your business or home, a foundation for anything you want to do with your land,” he said. His sample case was when the Roanoke Redevelopment and Housing Authority decided that a medical building would generate more tax revenue than an office supply store.
The amendment asks whether you agree that public use should be limited to traditionally recognized projects such as roads and schools, Davis added. And it asks whether the distinction belongs in the state constitution, where it becomes harder to repeal.
Not so simple, said Mark Flynn, legal services director for the Virginia Municipal League. While the seemingly innocuous language may pass, “hard cases make bad law,” he noted. Imagine trying to speculate on lost profits for, say, a fancy guitar maker who earns $2 million a year. Three years’ profit would entitle him to $6 million, but he then could simply quit the business.
Flynn warned that the Virginia Transportation Department in planning roads would be steered for cost reasons toward taking more residential and less commercial property. And he questioned the amendment’s use of the term “fundamental right” for the first time in state history. (Is this issue more fundamental than free speech?)
The politics here are complex. Davis says the amendment has backing of the state chamber of commerce, the National Federation of Independent Business, the Virginia Forestry Association, most Republicans and a few Democrats. Flynn says most real estate interests are opposed.
In April, the Arlington delegation voted against it, while the County Board has expressed wariness.
The Arlington Democratic Party Sept. 5 approved a resolution opposing the amendment. The Arlington Republicans Sept. 11 approved one favoring it.
Do you now feel ready to choose?
Charlie Clark may be e-mailed at [email protected]