Property rights don’t halt wrongs
The Virginian-Pilot
© February 5, 2007
Last updated: 10:32 PM

This is the conclusion of a series that began on Sunday.

Since the U.S. Supreme Court opened the door for governments to confiscate someone’s home and sell it to a developer, 34 states have enacted property rights safeguards into law.

On Election Day last November, voters in nine states passed constitutional amendments to make sure officials avoid the new temptation to exercise condemnation powers for purely economic development reasons.

Virginia is conspicuously absent from this national consensus. When asked why, the answer given by lawmakers, lobbyists and municipal administrators goes like this: We’re a property rights state and local governments can’t do the things permitted by the high court’s 2005 Kelo ruling.

While it’s true that Virginia law expressly bans government confiscations for economic development, that hasn’t stopped such things from occurring under other names and pretexts. Last year, the House of Delegates and Senate deadlocked over whether the loopholes that permit such abuses will be acknowledged and closed, or just ignored and tolerated.

In the coming weeks, the Assembly will try again, but the prospects are dim for real reform.

And it’s just as unlikely that lawmakers will do anything about another, even bigger category of eminent domain excesses: the unfair treatment of property owners when their land is taken for indisputable public necessities, such as for building roads or fighting blight. If the cruel treatment of Mary Meeks, whose case was profiled yesterday, isn’t enough reason for alarm, then a new comprehensive study has arrived just in time.

“The Real Story of Eminent Domain in Virginia,” by property rights attorney Jeremy P. Hopkins, debunks the notion that landowners are well protected from government overreaching. The study was sponsored by the Virginia Institute for Public Policy, a libertarian advocacy group. A copy is on its Web site, http://www.virginiainstitute.org/.

Hopkins catalogues injustices too numerous to be dismissed as isolated aberrations. He has amassed carefully footnoted evidence pointing instead to an official prejudice against property owners embedded in our laws, in our politics, and in our courts.

Here are but a few recent examples from his study:

- The Supreme Court of Virginia in 2003 allowed Hampton to take far more land than was needed for a new road, then lease the rest to the developer of the Power Plant project. The government used 20 percent of the property owned by Frank and Dora Ottofaro for a road, then leased the other 80 percent to the developer. Such a case opens the door for local governments to condemn land as a pretext for benefit ing developers. To add insult, the city bulldozed a house on the property before the case was settled.

- Last year, the Supreme Court of Virginia permitted a condemnation by Alexandria to help rid a developer of an obstacle. To better arrange his land for condos, shopping and offices, the developer wanted to move a drainage culvert onto the land of an adjacent owner, who resisted. Alexandria officials acknowledged that the condemnation was done just to assist the developer. Not even the Supreme Court in the Kelo ruling went this far. It drew the line against takings that confer a purely private benefit on an particular private party.

- The Board of Supervisors in Halifax County condemned one person’s land at the request of his neighbor, who wanted it for a paved driveway. The landowner even put the money up. Now, state taxpayers are maintaining the mile-long road, though it serves only one family. The local court upheld the taking and the Virginia Supreme Court refused to hear an appeal.

- During the construction of Route 221 in Bedford, the Virginia Department of Transportation used a new car wash as a staging area for its construction equipment. For a year, the disruption cost the owner half his business. In a hearing to determine damages, the judge refused to permit the owner to enter any of this into evidence before a jury and ruled the owner was not entitled to recover any money. The state Supreme Court refused an appeal. It could have been worse: The car wash owner could have been put out of business entirely, but legally would have no claim against the state.

- The Norfolk Redevelopment and Housing Authority took a vacant Park Place home for $40,000 when it said it couldn’t find the owner. It didn’t check the house, however. The father of the owner, a New Jersey policewoman, was renovating it at the time. NRHA obtained the house merely by placing a public notice in an obscure publication, but not on the house itself. Generally, in default judgments, Virginians have two years to reopen a case to correct an injustice. Except in condemnations. In condemnations, former owners have been specifically denied that right. Two months after the taking, the owner learned what happened to her Park Place home. But the court said it was too late.

The Republican caucus in the House of Delegates is attempting to restore some balance between individual rights and the public good, offering up strong legislative medicine to cure the potential for economic abuses. By drawing a sharp line against job- and tax-creating condemnations, for example, the House legislation eliminates the ambiguities that have invited them.

The challenge facing lawmakers in the coming weeks is drafting a law that ends abuses without handcuffing public works departments, redevelopment authorities and utility companies. Critics argue that the restrictions being considered are drawn too tightly and that some worthwhile projects might not get built.

But let’s not pretend the Republicans’ bill would cripple municipal economic initiatives or urban renewal. The city councils have an array of potent pump-priming tools, including tax incentives, subsides, favorable zoning concessions and public-private partnerships.

If there is to be an error in rewriting the rules of eminent domain, lawmakers must err on the side of the fundamental rights of the property owner, not the financial interest of the government, or the developers with whom it is so often entwined.

As Virginia’s own Thomas Jefferson said: “I would rather be exposed to the inconvenience attending too much liberty, than those attending too small a degree of it.”

As it weighs the trade-offs in lawmaking, and in eminent domain reform, the General Assembly ought to look to Jefferson for inspiration.