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Editorial on Eminent Domain
Published March 5, 2011, in the Richmond Times-Dispatch
by Craig Wilson, AICP
In his column of Feb. 25, A. Barton Hinkle posited that the proposed constitutional amendment regarding eminent domain will end "eminent-domain abuse" in Virginia. He further implied that "eminent-domain reform" as embodied in the amendment is something new.
I would argue that except for condemnation proceedings already under way, any eminent-domain abuse that may have occurred in Virginia in the past has ended under eminent-domain reforms passed by the General Assembly in 2007. Like much legislation put before the G.A., the proposed amendment makes good politics, but is a solution looking for a problem.
The U.S. Supreme Court's 2005 ruling against Susette Kelo in Kelo v. New London set off a wave of reform across the country. State assemblies across the country rose up in unison to negate Kelo's affirmation that eminent domain could be used for economic development purposes. In 2007 Virginia joined 41 other states in passing eminent-domain reforms. The other eight states already prohibited the use of eminent domain for economic development.
I would propose five reasons that an amendment is unnecessary. First, the majority of the language in the amendment is already in the Code of Virginia via the 2007 reforms. Those reforms:
- Defined the right to private property as a "fundamental right."
- Better defined "public uses" and "blighted property" for which eminent domain could be used.
- Excluded the use of eminent domain where public interest did not dominate private gain and where the primary purpose was for "private financial gain, private benefit, an increase in tax base or tax revenues, or an increase in employment."
- Established that property in a redevelopment area must be blighted at condemnation and not just when a redevelopment plan was adopted, and completely eliminated the taking of non-blighted property simply for the purpose of the plan.
Second, under the 2007 reforms it is unlikely additional "David vs. Goliath" scenarios like the Central Radio case in Norfolk and the redevelopment project in Roanoke will occur in Virginia. Both involve projects and proceedings undertaken according to previous code provisions. One can argue that grandfathering these cases under previous statutes was incorrect, as was recently done in Norfolk Redevelopment and Housing Authority v. Central Radio . However, such an argument overlooks the fact that any redevelopment plan passed since Jan. 1, 2007, and any associated acquisition or condemnation under a previous plan not in process by July 1, 2010, are subject to the 2007 reforms.
Third, the vast majority of contested eminent domain cases eventually come down to haggling over price and how price is determined, hardly subjects worthy of a constitutional amendment. Who hasn't haggled over the price of a car, home, or even a set of used golf clubs bought from a neighbor? In fact, on Feb. 17, Norfolk's 4th Judicial Circuit Court ruled that Central Radio is grandfathered under the former statutes, leaving the sale price and how to establish the price as the only unresolved matters.
Fourth, there are significant protections already in place when a public body acquires private property. Even before the 2007 reforms, the Virginia Code clearly defined just compensation and how fair market value should be determined and required an attempt at negotiated sale prior to pursuing condemnation. The 1970 federal Uniform Relocation and Acquisition Act (URA) requires acquisition per fair market value, additional assistance if the cost of replacement housing or commercial space exceeds the purchase price or previous rent, and the payment of relocation expenses where federal funds are involved. Because of its ubiquity, states and local governments follow the URA even when federal funds are not involved.
Fifth, the 2007 reforms are having their intended impact. Our firm consults with attorneys and housing authorities regarding redevelopment, and we regularly recommend that acquisition budgets be set at 125 percent to 150 percent of assessed values to allow for as many negotiated acquisitions as possible. Since Kelo and the 2007 reforms, localities have loathed exercising eminent domain, even for legitimate public health and safety purposes. In late February our firm was in a meeting regarding a potential and very blighted revitalization area where local leaders said, "We will not be using eminent domain to purchase any property." Hinkle's claim that a small town might seize a gay bar by exercising eminent domain in order to regulate private behavior is extremely far-fetched.
At a minimum the proposed constitutional amendment is premature. It may be entirely unnecessary. Virginia would be wise to allow the 2007 reforms to be fully implemented before pursuing any additional legislation for a problem that may no longer exist.
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