The Northern Virginia Daily's Political Depot

A service for our readers outside the Northern Shenandoah Valley... a sampling of The Daily's political coverage, plus unofficial, 'reporter's notebook' stuff. And occasional dry humor...

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Location: Strasburg, Virginia

Tuesday, July 05, 2005

Lawmakers say eminent domain must be limited; A1

Politicians propose additional protection for Va. landowners

By Garren Shipley
(Daily Staff Writer)

RICHMOND — It wasn’t on Virginia’s political radar until late last month.

But a decision by the U.S. Supreme Court letting a town in Connecticut take homes on Long Island Sound for economic redevelopment has some in the Old Dominion’s political class fired up about eminent domain.

The case, Kero v. New London, dealt with the power of government to take private property for public use. The U.S. Constitution requires that any such taking be for “public use” and that the owner be paid just compensation.

New London officials wanted the property to be taken and turned over to private developers, who would build higher-value projects that would generate jobs and more tax revenue than the existing homes.

Writing for the five-justice majority, Justice John Paul Stephens said the court has a history of respecting legislative determinations in matters of property seizure, and Kero is no different.

“[Connecticut’s] statute ex-presses a legislative determination that the taking of land, even developed land, as part of an economic development project is a ‘public use’ and in the ‘public interest,’” he wrote, citing the 1967 state law that authorized the taking purely for economic development purposes.

But the opinion left open, and almost invited, states to step in and limit the power of eminent domain in their borders.
“We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power,” he wrote.

A number of politicians responded to the invitation quickly.

House of Delegates Speaker William Howell, R-Stafford, said the decision needs quick attention by the General Assembly.

“Governments ought not to be confiscating private property for reasons other than important governmental purposes,” Howell said. “I will see to it that delegates and others in the General Assembly work to determine whether legislation is necessary to protect Virginia private property owners.”

Virginia law does provide for eminent domain takings — it devotes an entire title to the procedures — including takings for economic redevelopment.

But that section of Virginia law is very specific as to when and why governments can take homes to redevelop property.

Property must be “blighted,” defined as displaying conditions “which impair economic values and tax revenues, cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the Commonwealth.”

Other political entities, like cities, counties, towns and the Commonwealth Transportation Board, are allowed to take property for public use, but not for economic development.

Some local legislators said it’s already clear that legislation is needed.

“In Virginia, we must act without delay,” said state Sen. Mark Obenshain, R-Harrisonburg. Obenshain promised to patron a bill in the 2006 General Assembly that would limit property takings through a narrow definition of “public use.”

The Virginia Constitution states in its Bill of Rights that takings cannot be done for any other reason than public use, but leaves it to the legislature to define the term.

“We have a choice. Are we are going to authorize state and local government to take the property of private citizens just to give it to another private party, or are we going to protect and defend the rights of property owners?” Obenshain said.

Republican Todd Gilbert, an assistant commonwealth’s attorney in Shenandoah County and candidate for the seat of retiring Del. Alan Louderback, R-Luray, concurred. Gilbert said the ruling of “a few liberal justices” had changed the meaning of the Constitution, and pledged to support legislation similar to Obenshain’s.

But the state shouldn’t take local authority to correct a federal wrong, said Gilbert’s Democratic opponent, Jim Blubaugh.

“What the Supreme Court primarily did was to state that localities have a right to control their own development,” he said.

“The best way to deal with this is to elect individuals that reflect the wishes of the community to county boards and city councils.”