The worst abusers of property rights
Guest View
L.M. Schwartz
Special to The Augusta Free Press
There is cause for concern about property-rights abuses in the Old
Dominion. The attitudes of Virginia's elected officials, especially in rural
areas, have been generally perceived as politically conservative, yet at both
state and municipal levels, there has been a recent, marked shift toward
greater tax-and-spend policies, and a reluctance by some legislators to counter
and correct abuses involving local and state government intervention in the
lives and property rights of citizens.
John Taylor, president of the Virginia Institute for Public Policy (www.virginiainstitute.org) stated
in a recent interview, "The answer I get from Virginia legislators is: Our goal
is to allocate more money and grow the government." He indicated those General
Assembly members who this year pushed through Gov. Warner's massive $1.4
billion tax increase did not want to get "bogged down in details of
accountability."
VIPP hosts a monthly meeting in Richmond where a variety of guest
speakers address property rights, taxation and education issues. At a recent
meeting, several guests indicated Virginia was near the "bottom of the barrel"
when it comes to protection of private landowners' rights. VIPP will soon
publish a paper on takings and property rights in Virginia. Written by attorney
Donald Kochan, currently an Olin Foundation Research Fellow at the University
of Virginia, the paper should be a valuable guide to those seeking to revise
eminent-domain statutes.
Waldo & Lyle P.C. (www.vaemdomain.com/index.html)
is a Norfolk law firm that "limits its practice to eminent domain and
condemnation law" and is "dedicated to protecting the rights of
private-property holders." In a recent conversation with Jeremy Hopkins, an
attorney with the firm, he noted the rights of property owners "are thoroughly
abused in Virginia." The Web site contains a number of informative articles
about property rights.
Hopkins pointed out several critical areas in need of statutory
action, but that there is "apathy in the legislature regarding property
rights." One area is the quick take power being exercised by government
agencies such as the Virginia Department of Transportation and public
utilities. Under quick take, the agency may file a notice of condemnation,
deposit what their appraiser determines to be a fair value for the land with
the local court, and immediately take title to the property. The landowner, no
longer in possession, is then burdened with challenging the government's "fair
market" appraisal if he believes it is not fair.
In addition, Hopkins notes the costs of challenging government
appraisals as well as proving damages to property most likely will include
expenses for engineers, private appraisers and/or real-estate brokers, as well
as legal fees.
In a recent case, Duke Power offered an elderly woman $800 to run a
gas pipeline through her lakefront property. The offer was grossly inadequate
and the court agreed, awarding her $28,000.
But the Virginia legal system does not allow the landowner to recover
the thousands of dollars in appraisal, engineering or legal fees that come out
of the landowner's pocket, thus, in this case as with many others, leaving the
landowner without just compensation for a taking. Government agencies and
utilities are well aware of this powerful leverage, essentially a club held
over landowners' heads, and have little incentive to make a fair offer at the
start, which would eliminate much of the expensive litigation in condemnation
cases.
Even worse, Hopkins says, are the lobbyists hired by agencies such as
VDOT, paid by the Virginia taxpayers, who lobby to maintain statutes that
"strip property owners of rights." Hopkins went on to say, "VDOT is the worst
offender in Virginia, by far."
In the House of Delegates, there are members who are seeking to rein
in abuses of property rights. One of them is Thelma Drake, R-Norfolk. Drake
introduced H.B.822, a bill seeking "to define public purpose so that the
property owner knows why. The goal of our work group is to develop this
criteria and a process to be used so everyone understands and can clearly see
if it is a public use."
"The General Assembly frowns on eminent domain, but most of them don't
know what's going on out here," she said. "How many legislators have had their
home taken? You've probably heard about Norfolk trying to shut down a junkyard
and then sell the land to Coca-Cola. I think you would agree what we have
defined as public purpose is a pretty loosey-goosey thing."
Del. Drake and others in the House want to "clearly define when we are
allowed to use eminent domain." "Too often," she wrote in a recent article, "in
Virginia and around the nation, property is taken from one individual only to
convey it to another private owner in the name of economic development."
Unfortunately, some local governments and public agencies don't want
it defined, because the redevelopment of "blighted areas" at the expense of
property owners is seen as a way to increase tax receipts.
The Castle Coalition's overview (www.castlecoalition.org/report/reportStates/Virginia.shtml)
of eminent domain reports: "Virginia regularly uses eminent domain to transfer
land to private developers and also uses the threat of eminent domain to force
people to sell. In the past few years, there have been at least 58
condemnations for private parties (almost all for one project in Hampton),
threatened condemnations, and properties currently under threat of condemnation
for other private parties. Apparently, Virginia bureaucrats have short
memories. Virginia has a history of spectacular failures in redevelopment
projects."
One Virginia legislator stated: "It's just outrageous what they think
they can get away with."
A series of work sessions will be held this summer by the Virginia
Housing Commission. Drake is the Chair of the commission. Additional
information on meeting schedules may be found at their website:
http://dls.state.va.us/HousComm.HTM.
In a recent decision by the Virginia Supreme Court, Ottofaro v.
City of Hampton, 574 S.E.2d 235, (2003), the city of Hampton's definition
of taking private property for "public use" was upheld despite the fact that
the development authority was simply acting as a front for private interests.
The Ottofaro land was condemned and handed over to a retail shopping
center.
Elizabeth Moser, with the Institute for Justice (www.ij.org/index.shtml) stated, "When
one thinks of 'public use,' one thinks of roads, hospitals, schools and parks
... Virginia joins the growing list of states that allow the abuse of eminent
domain to continue. Governments cannot exercise the eminent-domain power to
determine what use of property is more valuable to the public, that of a
homeowner or that of a shopping center. This abuse of eminent domain borders on
theft and ruins communities by uprooting residents without a pressing public
necessity. Eminent-domain abuse of the kind allowed by the Virginia Supreme
Court also runs counter to American principles of free markets and limited
government."
With the combined efforts of elected representatives like Thelma
Drake, property-rights advocates and organizations, and law firms such as Waldo
& Lyle, eminent-domain abuses in Virginia will be brought to the public's
attention and legislators will be forced to give more than lip service to
growing citizen anger.
The Founders of our Republic did not envision a Fifth Amendment
eviscerated by public officials' greed and ignorance, and the usurpations of
the courts.
The Founders, many of them Virginians, would not have tolerated
current abuses, and neither should their heirs.
L.M. Schwartz is the chairman of the Virginia Land Rights
Coalition. He resides in McDowell.
The views expressed by op-ed writers do not necessarily reflect those
of management of The Augusta Free Press.
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(Published 08-06-04/Opinion)