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Posted July 16, 2012 | comments Leave a comment

Proposed amendment seeks to protect property from eminent domain

By Alex Bridges -- abridges@nvdaily.com

An amendment to the state constitution supporters say would protect private property rights goes before voters in November.

Gov. Bob McDonnell on Monday ceremonially signed four pieces of legislation seeking to protect property rights of private residents. Companion bills passed in the Virginia General Assembly, patroned by Del. Robert B. Bell, R-Charlottesville, and Sen. Mark D. Obenshain, R-Harrisonburg, provide for a referendum for an amendment to the state constitution which would appear on the ballot on Election Day, Nov. 6.

"There are folks who continue to farm family farms and I'm sure that a box store on that family farm is gonna generate more tax dollars for the locality," Obenshain said. "But, by golly, if it's been a farm and I want to farm it, who in the world, county government or city government, is gonna step in and tell me they know better how to use my property?

"It's just wrong," Obenshain added. "If I want to farm it, I ought to be able to."

The amendment does not prohibit a locality from taking the land for a road, school or similar project, Obenshain explained.

A second set of companion bills, patroned by Obenshain and Del. Johnny S. Joannou, D-Portsmouth, define the terms "lost profits" and "lost access" and how to determine the amount of just compensation for property taken through eminent domain, according to a press release from the governor's office.

The first part of the proposed amendment seeks to ensure that when a government uses eminent domain to take a private property the locality or agency does so for a "true, public use" and not just transferred to another private developer, according to Trey Davis, assistant director for governmental relations with the Virginia Farm Bureau Federation.

"Along those lines it ensures that primary use has to be for a legitimate public purpose and it cannot be for private gain, private benefit, private enterprise, increase in jobs, increase in tax revenue or economic development," Davis said Monday.

The organization kicked off a campaign to educate Virginians about the proposal and to drum up support ahead of the election.

But some organizations have come out in opposition to the amendment, such as the Virginia Municipal League and the Virginia Association of Counties.

"I really don't know who, outside of the local government organizations, is gonna oppose this legislation and I would hope that," Obenshain said.

Local elected leaders opposed to the amendment should review the proposed legislation and see that it benefits their constituents -- the private property owners in their jurisdictions, according to Obenshain.

The proposed amendment also requires that should a government obtain private property through eminent domain, the owner would receive proper compensation under the fair market value of the land, Davis explained. The amendment also contains language which protects the private property from damage once taken through eminent domain, according to Davis. For example a developer of land received through eminent domain could not take more property than necessary for a right of way, Davis explained.

The initiative to put the measure on the ballot started years ago following a 2005 court decision over property rights and eminent domain in Connecticut. The Supreme Court ruled that a government rightfully took houses through eminent domain with the intent to give the properties to a developer for the purpose of making industrial facility for a private firm, Davis recalled. Plans to bring Pfizer to the new site fell through. However, the court left it up to the states to devise their own laws regarding eminent domain.

Virginia legislators in 2007 made statutory changes to prevent land grabs, Davis said. The day before the changes were to take effect the Roanoke Redevelopment and Housing Authority took a furniture company's land and gave it to Carillion hospital. Obenshain notes that Norfolk has tried to condemn Central Radio in an effort to make room for a shopping center for students at Old Dominion University.

"The only way to permanently lock language in place is to have a constitutional amendment because otherwise you're at the mercy of the next legislature and the mercy of the courts to sort of chip away at it," Davis said. "Virginia's constitution is extremely difficult to amend compared to most states."

In Virginia, in order to amend the constitution, the legislature must pass bills in the exact same language two years in a row with an intervening election of either the House of Delegates or the Senate between passages, Davis explained. Then the measure must be placed on the ballot by governor and approved by a majority of the voters in Virginia.

On its first year of passage, the amendment received a vote of 35-5, according to Obenshain.

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