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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