No one wants the government to take his private property for any reason, particularly when it’s the most significant asset an individual owns.
But the government has that power to take, by what’s called eminent domain, certain private property, often a part of a property, a right of way, but sometimes more, even all of it, and the United States Constitution, in the Fifth Amendment, provides that no person shall “be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
This Fifth Amendment that originally only applied to the federal government was incorporated and made to apply to the several states by the Fourteenth Amendment to the U.S. Constitution.
While any taking is distressing, the rub in its application is the phrase, “public use.”
Years ago, in 2005, the U.S. Supreme Court decided a case, Kelo v. City of New London, that got many concerned when the Supreme Court approved the taking of privately owned real property for a “comprehensive redevelopment plan” as a “public use.”
To make matters worse, as a political, if not a legal matter, when the dust up from the decision settled, the private developer couldn’t get financing, gave up the project and the land remained empty until it was converted into a dump.
But before this was known, the disaster that was Kelo, the State Court found that the creation of new jobs, increased tax revenues, and bringing back a depressed area, even absent “blight,” was a “public purpose” that was tantamount to a “public use.”
The Supreme Court basically adopted the State’s equivalent standard of “purpose” with “use,” and Justice Kennedy said the discovery necessary in these “takings” was to confirm or deny whether the “primary benefit” was to the developer and private businesses financially and then only of “incidental” benefit to the governing body that was responsible for the taking. It mattered to the court, in Kelo, in upholding the taking as a public use, that the private beneficiaries were unknown when the property was being acquired.
The understandable reaction across the nation was that the government was taking from the poor and giving to the rich.
The Virginia Constitution, in Article 1, Section 11, provides, similar to the US constitution, that “no person shall be deprived of his life, liberty or property without due process of law” and that the General Assembly shall not pass “any law whereby private property shall be taken or damaged for public uses, without just compensation” and “the term ‘public uses’ [is] to be defined by the General Assembly …”
In 2007, the General Assembly did define limitations as to “public uses” on “taking” under eminent domain.
But that was not the end of it.
Our General Assembly has proposed a constitutional amendment.
This amendment has an extraordinary loophole that is mentioned in the ballot text, and it adopts the language that permitted the Kelo decision.
The Amended constitution would state that “a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise …”
That was the very test that Justice Kennedy applied in the Kelo case when they approved the private development, that it’s “primary” purpose was not for private gain.
So, if the “primary purpose” is found “public,” then it is of no consequence that the beneficiary of the taking will make a huge profit.
The Virginia statute is stronger as it now stands and can be adjusted as experience dictates – and without waiting several election cycles to do so.
There are other provisions that are troubling as they are not defined.
It is who has the burden of proof in one of these proceedings; that’s something that has no business in the constitution – as it should be in a statute so it may be tweaked when it is applied in real cases.
Another provision is that the compensation for the taking won’t just be the value of the property taken, it will be “lost profits and lost access, and damages to the residue caused by the taking.”
No one knows what that will mean – and this too should be in a statute and clearly defined as it is not now.
On balance, this is a bad amendment, and we are better off with the protections in the existing statute and implementing those aspects that might be of use to property owners when we know what they are precisely.
I know that the public is upset with this law but this amendment will make things worse – and then it will take us years to repair the damage.
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