Nov 08, 2012
Eminent domain amendment passes… but be wary
08 Nov 2012
Posted by Andrew Kantor
It’s easy to jump on eminent domain as a black-and-white issue; no one wants the government to be able to seize property just because someone else thinks they can do something better with it. That’s what property rights are all about, and here at VAR we’re big on property rights.
That said, most people realize that there are cases where eminent domain is important — for purely public works like roads or schools, for example. (Not all the time, of course. Those are just examples.) It’s when we get into the use of eminent domain to take private property for private use that our collective hackles are — rightly — raised. Taking someone’s home to build a shopping center in the name of “economic development” goes against our ideas of fair play.
That’s why VAR spent considerable time and money in 2007 working to create a fair and rational framework around what is far from a simple issue. We defined terms carefully. We balanced rights and equities. We specified fair processes. Bottom line: Virginia wasn’t going to have a case like “Kelo,” where the Supreme Court ruled that a local government in Connecticut could take people’s homes to sell to a developer simply because it was considered “economic development.”
While it certainly seems like a good idea to prevent government from taking property simply for economic development or redevelopment, we should also be aware that there ARE cases when it is good and right and necessary. When poverty and crime are so rampant in an area that the people — all of us — need to step in and say “Enough.”
How rampant must crime be? How poverty stricken? What constitutes “public use” is open to interpretation — and legal wrangling. There’s no single answer, and there is a line dividing where government should act and where it shouldn’t. We can (and should) argue over where that line is. But we can’t simply say that using eminent domain for economic reasons is always bad. Often bad? Yes. But not always.
And in those few cases where we can agree that redevelopment is far and away the right course of action, we have to be careful not to have painted ourselves into a corner, where it becomes too difficult for local governments to act.
With the passage of the constitutional amendment, governments in Virginia can only take land for purely public use — economic revitalization doesn’t cut it, no matter how poor the area or how many jobs it creates.
So take the Midtown area of Portsmouth. It wasn’t long ago, as this Virginian Pilot story explains, that the area consisted mainly of abandoned stores, broken windows, and high crime. Then the city used its eminent domain powers, bought up property, sold it to developers … and the area came back to life (not to mention creating jobs, producing tax revenues, and helping the entire community).
Yes, eminent domain was used for economic development, but unlike the Kelo case in Connecticut, private homes weren’t taken to make way for commercial development. Families weren’t uprooted. In Portsmouth’s case, what was bought by the city, while privately owned, was virtually abandoned commercial property.
Or take the new rail line being built in Fairfax County. Even when property isn’t bought via eminent domain, under the amended constitution the city may have to compensate local shops for lost business caused by construction, straining state and local transportation budgets even further.
There is at least a good and rational argument to be made for using eminent domain in Portsmouth’s case. But today it wouldn’t be possible — or would be much more difficult, with taxpayers footing the bill for a court battle. Ditto for Fairfax.
And that is why we had our doubts about the eminent domain constitutional amendment. Virginia had, thankfully, already erected significant roadblocks to the use of eminent domain. Now those laws may themselves be subject to (expensive) legal challenges, while making it harder for government to act when it is clear that there is a far greater good to be served.