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Posted November 4, 2012 | comments 32 Comments

Eminent domain, veto session amendments on ballot Tuesday

By Jeb Inge

In addition to federal, state and local elections, Virginians on Tuesday also will decide two possible changes to the commonwealth's constitution.

Question one on the ballot concerns the definition of eminent domain.

Proposed by State Sen. Mark Obenshain (R-26) in the Senate, and Del. Rob Bell (R-Albemarle) in the House of Delegates, question one further defines eminent domain, and when land may or may not be taken by commonwealth or local governments. It stipulates that land owners get compensation at least equal to the value of the land in question.

Article 1, Section 11 of the Virginia Constitution prohibits the seizure or damaging of private property for public use without just compensation. Eminent domain is a term used to describe the power of the government to take private property for public use after receiving compensation or payment to the owner.

The proposed amendment contains the following:

-- The right to private property is a "fundamental" right.

-- The taking or damaging of private property must be for a "public use."

-- No more property may be taken or damaged than is necessary for the stated public use.

-- The entity condemning property has the burden of proof that the land being taken is for public use.

-- Just compensation for the taking of property is further defined to be "no less than the value of the property being taken, lost profits and lost access."

-- Elimination of a public nuisance may be a public use. It is not a public use if the "primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development."

Obenshain, who is running for his party's nomination for state attorney general in 2013, calls the amendment "a bulwark against eminent domain abuse," and has found support from Republicans including current Attorney General and gubernatorial hopeful Ken Cuccinelli.

The Central Committee of the Democratic Party of Virginia voted to oppose the amendment, claiming it "will lock ... a prohibition on using eminent domain to advance private enterprise, job creation, tax revenue generation or economic development."

Question two on the ballot, if passed, would allow the General Assembly to delay by one week the fixed date for the annual Reconvened "Veto" Session usually held in April to address bills returned to the legislature by the governor.

The proposed amendment would allow the legislature the ability to avoid scheduling the veto session on a religious holiday such as Passover or Easter. It has not garnered the attention or controversy of the proposed eminent domain amendment.

More information on the proposed amendment, including the full text of both questions and amendments, is available at www.sbe.virginia.gov.

Contact Region Editor Jeb Inge at 540-465-5137 ext. 168, or jinge@nvdaily.com

32 Comments |

    The one part of the eminent domain issue that sticks in my craw is the provision for any politically connected private enterprise (oh, say Popeyes Chicken) to use its influence to obtain a eminent domain condemnation of privately owned real estate to help it create a few minimum wage jobs to help sell more chicken. So, I am leaning towards voting to approve the change to the state constitution.

    Do I understand this ballot question correctly?

      The Post is saying vote no. TBH, I am still researching this myself as to the pros vs cons. But they do have more in depth information

      http://www.washingtonpost.com/opinions/posts-endorsement-vote-no-on-ballot-question-1-in-va/2012/11/01/62636726-1c8e-11e2-ba31-3083ca97c314_story.html

      http://www.washingtonpost.com/local/question-1-on-nov-6-virginia-ballot-would-limit-governments-right-to-take-property/2012/10/28/d3565a1e-2112-11e2-92f8-7f9c4daf276a_story.html

        It appears the hang up (*If I am even understanding this right) is that VA already passed a law that prevents seizure without payment to owner and if seized, it must be for public use.
        This amendment covers that again but puts into the bargain the payment of future profits a property owner might suffer the loss of.

        So saying for example, WC decided for whatever reason to take the land Walmart sits on, under current law, they would pay Walmart the value of the land, but under the new amendment WC tax payers would be on the hook for Walmart's current and future lost profits as well.

        So...I think I'm going no. Mind you this is only *my* understanding of what I have learned thus far.

      From what I've read here and in the Washington Post, the problem is if eminent domain was used to take some property FROM some place like Popeye's Chicken (or any other business that could say they would lose future profits), we the taxpayers could end up footing a heafty payment to them. Once again taxing us to death. I'm voting no.

        It is absurd to think that the government needs protection from the individual or small business that is being dispossessed of their property. As has been pointed out here, the big corporations already have the legal means to include "foregone profits" with their "damages" - it is only the individual & small business that need the presumption (and constitutional definition) that will add protection to the private property rights threatened by abuse of eminent domain. By the way, the people dispossessed in New London, CT saw their homes taken & torn down only to have the corporate beneficiary back out of the deal!! - i.e. no higher tax base, no new jobs, just the PUBLIC expense of demolishing a thriving neighborhood. Only a socialist could object to this amendment - yup, Wash Post & Dem Party!! (& I am NOT a Republican, i.e corporate facist)

    This legislation, if passed, would require the government to pay at the very minimum, compensation equal to what the condemned land is worth.

    But any use of eminent domain requires that the land be for public use. So a business like Popeyes, (or Chick-fil-A for that matter) wouldn't be able to operate a business on the public land, because they would be increasing their private enterprise.

    Thanks to everyone for all the information and references.

    I can understand my home being taken under eminent domain if I am amply rewarded, raising the question - who provides my compensation?

    Eminent domain for the benefit of private enterprise seems to need more work to stop a greedy developer acting on insider information buying a property destined for construction of a major roadway knowing the rewards of eminent domain will provide a windfall profit. The potential for manipulation is mind-boggling.

    Why should taxpayers compensate homeowners if the true benefit is primarily to enhance private enterprise earnings and only secondarily benefits the public interest in some non-monetary fashion such as eliminating blighted buildings or creating a postage stamp sized public park in the middle of a 5,000 home development?

    Shouldn't the compensation for taking my home and my land be the burden of the private enterprise?

    I was impressed by the Washington Posts view of the ballot initiative. I will vote "NO" to deny the amendment, as it is presently written, to the Virginia Constitution.

    The amendment comes from Kehoe vs New London, CT where the Supreme Court found it a "public purpose" to dispossess people of their homes to transfer their properties to a corporation that would pay more taxes (or provide jobs, or whatever else Big Gov & Big Corp decides is in the "public" (read "their") interests). I urge EVERYONE (D, R, or I) to vote for this amendment to make it difficult & expensive for those who would take YOUR property for their own pursuits. One of the few things that Republicans suggest to protect FROM Gov & their corporate sponsors. Amazing that the Democrats (party of the "average" man?) do not feel that we are worthy of this protection!

    Socialist-Socialism in America are simple words to scare tiny brains. It will never happen.

    That said, if it didn't include paying for future profits, 3 years worth (I believe), I'd be all in.

    shenvaltech can try to 'scare' with the word "socialist" all he wants, but here is an excellent link for anyone who wants to find out more about this eminent domaine question.

    http://www.washingtonpost.com/opinions/posts-endorsement-vote-no-on-ballot-question-1-in-va/2012/11/01/62636726-1c8e-11e2-ba31-3083ca97c314_story.html

    Just a few quotes from this link: "Virginia Lawmakers, in thrall to special interests, are asking voters to approve a state constitutional amendment that would cost state and local governments and taxpayers tens of millions of dollars annually in giveaways to private landowners and businesses. This staggering act of corporate welfare — as proposed in Question 1 on the ballot Virginia voters will cast Nov. 6 — would go far beyond current law in any other state. Virginians should vote no on Question 1.

    They also say in this editorial:
    "In addition to making owners whole by paying them the market value of seized property, the state would also compensate them for “lost profit” and “lost access.” In other words, the sky’s the limit."

    And: "Conservatives such as Virginia’s attorney general, Ken Cuccinelli II, have pushed Question 1, portraying it as a safeguard against government abuse. In fact, the existing law in Virginia, enacted just five years ago, already does that. If Question 1 is approved, the real losers would be taxpayers who would subsidize state-guaranteed profits, and local governments — read: more taxpayers — for whom the cost of projects like new roads and utilities would skyrocket."

    And this: "It would even apply to those who are eager to sell or who might benefit from their inconvenience in the long run — for example, following the construction of a new road or transit station that temporarily impedes access to a business."
    "----------business owners would be entitled to receive government payments equivalent to their most recent three years of profits."


    Sorry--typed too fast. Meant to type Eminent "Domain".

    "Socialist-Socialism in America are simple words to scare tiny brains. It will never happen."

    Katy - get your head out of the sand: It HAS happened here - both in the US & Shenandoah County
    - Where the government is the largest employer!
    - Where the government & its corporate sponsors control your choices in healthcare, education, and available media.
    - Where you are required to account for all your transactions to the government, but it is not accountable to you.
    - Where your constitutional rights have been eroded by both parties who are sponsored by the same corporate mafia.

    I suggest that you read Washington's farewell address where he warned against two things which could thwart true democracy: 1- foreign entanglements with those that do not support the principles our country is based on, and 2-political parties more interest in control & power than the welfare of the individual. Also read the writings of Thomas Jefferson with regard to economics.

    To many of us, liberty is freedom FROM government - NOT the ability to force our will on others who do not share our views.

    Eminent Domain makes every land owner upset--just the thought of government telling us they need our land. BUT THIS particular amendment we will vote on here in Virginia is not needed and would indeed cost taxpayers more! To quote: "business owners would be entitled to receive government payments equivalent to their most recent three years of profits."

    We all agree that land owners should be paid FAIRLY for their land, but it should NOT then become over payment that WE the taxpayers will pay for! AND the last thing I want is for some developer, having knowledge that a road or whatever will be built, then buys that particular land and makes a better profit from Eminent Domain with my tax dollars than if he actually did something with the land!

    Another quote from the editorial:

    "In addition to making owners whole by paying them the market value of seized property, the state would also compensate them for “lost profit” and “lost access.” In other words, the sky’s the limit."

    Somehow, shevaltech, sounds to me like you have "a horse in this race". You wouldn't happen to be that Front Royal lobbyist we are familar with for the times you have appeared on the pages of NV Daily?! Sure appears that way.

    My family & I have had rights & property "taken" by government - the question is "who needs protection from who?" I will side with the individual every time!!

    "One of the saddest lessons of history is this: If we've been bamboozled long enough, we tend to reject any evidence of the bamboozle. We're no longer interested in finding out the truth. The bamboozle has captured us. It is simply too painful to acknowledge - even to ourselves - that we've been so credulous." - Carl Sagan

    No - I do not live in Front Royal but in the socialist republic of Shenandoah County (thus my distaste for BOTH parties).

    I repeat: NO ONE likes to have their property taken but from what I have read, THIS particular amendment gives way more than what fair market value of the land would be.

    In other words, as has been quoted, "state (read: WE THE TAXPAYERS) would also compensate them for “lost profit” and “lost access.” In other words, the sky’s the limit."

    and I repeat - the large corporations already have the political and legal muscle to include these profits in the "damages" to which they are entitled.

    When a small business is dispossessed, they lose MORE than the value of the land - they lose the value of their business! This is not something that will be manipulated for the benefit of the "big boys" as the Post characterizes, but for the protection of the little guy who is being placed between the rock & the hard place by a government unconcerned of his welfare.

    The constitutional amendment is necessary to stop a legislative "bait & switch" that can easily be accomplished with the close majority that continues to exist. The specter of large corporations taking advantage of this is smoke & mirrors to deny the individual & small business this needed protection!

    Example - you own a farm market that is on an I-81 interchange. The state decides to lengthen it's right-of-way by 20 feet which will eliminate access to the remainder of your property and your existing market. Should the government be required to pay only for the "market value" of the 20 feet it takes or for the full damage done to the thriving business - your sole means of support?

    This amendment requires the government to take the full effect on the business or individual into consideration, not just the value of the land taken.

    BTW, this scenario did come into being several years ago and cost some businesses adjoining 81 major legal fees to get the VDOT determination changed.

    Song98, I don’t understand why you think “the sky’s the limit”. If a property would be too expensive for public use because of the existing business that is there then the government would need to choose a different property. Also, I don’t think a speculator can purchase the property and then claim lost profits. Lost profits on what? There has to be a something that is generating profits. Yes, they could make money if the value of the land increased but that is all. I think shenvaltech is correct. This is trying to protect the small business. For example it could be land that a county wants for a school but a family runs some kind of farm, apple orchard, saw mill, etc. The value is more than just the land. They would need money to relocate their business and start up again.

      Thank you, debtfree.

      No, song, I am retired & have no "horse in this race", just 45 acres of land that have been stripped of development rights in Shenandoah County which will force me to sell and relocate to recover my retirement cash. While my situation would not be helped by this amendment, I am well aware of the detrimental effects of actions by an uncaring government and feel the necessary protection from arbitrary government action included in this amendment is important!

    It still comes down to this question that WE THE TAXPAYERS must ask: Do we want our tax money to pay fair market price for property taken under Eminent Domain for say, a road, OR, with this amendment, do we want to pay fair market price PLUS PLUS!

    I again quote the Washington Post "-------- would cost state and local governments and TAXPAYERS tens of millions of dollars annually in giveaways to private landowners and businesses. This staggering act of CORPORATE WELFARE — as proposed in Question 1 on the ballot Virginia voters will cast Nov. 6 - would go far beyond current law in any other state. Virginians should vote no on Question 1."

    uh huh------I still say from reading your posts that you, 'shenvaltech', appear to have a "horse in this race". I 'just' speak as a TAXPAYER.

    “giveaways to private landowners and businesses. This staggering act of CORPORATE WELFARE”
    How is it a giveaway or CORPORATE WELFARE to pay someone for the value of something they own? So a small business is just supposed to give away their business? Asking to be compensated for losing their place of business is corporate welfare? I don’t think so.

      Wasn't that long ago, was it, that we Virginias were quite upset to read in the July 8, 2009 Washington Post article, "Virginia's major roadways will become a less hospitable place in two weeks when the cash-strapped state closes 18 rest stops". Do we now have an over-abundance of money here in Virginia? You know the answer to that!

      Really surprised, I'mdebtfree, that you, who I thought was fiscally conservative having read other posts of yours, do not agree with me in that as a taxpayer we just do not have the money in Virginia to OVERPAY for the times that land must be taken for roads, etc. Pay the fair market value, but when you start having to pay for projected future profits? Sorry----Virginia just can't afford it.

      Now, you and shenvaltech can bat this topic back and forth all you want, I am leaving to go and vote!

    In my view the amendment adds protection to the constitutional right to own property, and I would vote for the amendment.
    The problem as I see it is that the amendment, if approved, would dilute the right to own property. For example, a person happily retired living in a house that is in a choice location for a good business (cross roads, close to the beach) could be forced out of his place by a developer claiming the many public benefits (jobs, elimination of a public nuisance, etc.) that would result.
    But surely there must be better ways to create jobs besides forcing someone out of his house. Or if the problem is that of a public nuisance, such as an old lady living in the house with too many cats, again there must be better ways to eliminate that public nuisance.

    No, Charles, just the opposite - "not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development". This eliminates these as "public use" reasons for eminent domain and would not permit the New London debacle to occur in Virginia!

    *Make that "Virginians".


    Hypothetical:

    A developer buys land acting on insider knowledge of a future bypass roadway.
    Developer rezones from agricultural to mixed use residential/commercial and proffers land for 2 lane right of way. Commercial lots border both sides of right-of-way.
    Developers surrogates/partners pressure or persuades State/County officials/cronies 2 lanes are inadequate, who then approve 4 lanes divided instead, requiring an additional width of 100 - 150 feet for right-of-way. Developer claims commercial lots become "un-usable" due to width reduction. Developer claims his intent was to 'lease' the land long term to commercial/business accounts, now impossible.

    Question: Did the developer reap an eminent domain windfall (3 years of land lease income) without improving the property (utilities) or erecting any bricks and mortar?

    If someone as dumb as me can figure out a way to game the proposed constitutional amendment for eminent domain imagine what some shyster lawyer can concoct.

      "insider knowledge" - illegal;
      "rezoning" - time consuming & expensive
      "surrogates/partners pressure State/County officials" - conspiratorial illegality.
      "intent to lease" - not proven "profits"

      Frankly, the cost of improvements described would exceed the amount of "damages" claimed. You have not figured out how to "game" the system with this absurd example.

    Interesting that you would mention that, song. That debacle was Governor Tim Kaine's revenge for not passing his requested increase in the gas tax!! It saved NO money - actually COST TAXPAYER DOLLARS by recreating and replacing signage. Frankly, I felt it caused several deaths shortly thereafter due to overtired truckers and (together with Kaine's moonlighting in his "second" job as DNC head while governor) is one reason I will NEVER vote for this man for public office again!

    Everyone quoting The Post, is quoting an editorial piece, someone's OPINION! I'll use my own opinion, thank you.


    shenvaltech is suggesting county government officials are bastions of honesty, free from corruption?

    I counter by suggesting they just haven't been caught, yet.

    One only has to look at Loundon County to see recent examples of their Republican 'good old boys" skillfully manipulating the system by using their positions in government to enhance personal profit.

    Washington Post Articles:
    January 21, 2007; Page A11 : Supervisor Voted on Issue in Which Friend Had Interest

    January 21, 2007; Page A01 : Influence of Developers, Allies Runs Deep - Political Backers Gain From Growth

    January 22, 2007; Page A01 : Official Backed Plans Of Business Connections - Former Planning Chief Had Ties to Companies

    January 27, 2007; Page B01: Loudoun Launches Probe Into Land-Use Decisions

    January 29, 2007; Page A14 : The Sleaze in Loudoun - Insiders get rich, and the public stays in the dark.

    January 31, 2007; Page B05 - Ethics Measures on Development Proposed

    February 7, 2007; Page A01: Loudoun Land Deals Subject of U.S. Probe - County Officials' Ties to Developers Under Investigation

    Sunday, March 18, 2007; Page C01 : FBI Meets With Loudoun Officials, Staff - Probe Into Possible Corruption Includes County's $13.5 Million Land Purchase

    June 1, 2007; Page A01: Loudoun Official Tried To Capitalize On Contacts - Supervisor Tulloch Sees No Conflicts

    June 3, 2007; Page B06: Loudoun's Exclusive Club - Only elected officials and their pals need apply

    July 28, 2009: Lots of Talk, Little Action in Loudoun Corruption Probe

    AND THE BAND PLAYS ON...

      Fuddy,
      Quite the opposite - I feel that our government(s) - local, state & federal - are corrupt, possibly beyond saving! That merely goes to the necessity of protection FROM that corruption through amendments such as this which will serve to protect the individual & small business. We already had the proposed purchase of development land in Toms Brook with Mr. Morris' complicity - corruption can game any system but must be exposed as such.

      Laws like this amendment do not create such corruption, but tend to protect the little guy from it. 4ur411 makes this point with a good example.

    Take a short drive down Interstate-81 and you will come upon what used to be a nice small town. Maybe not as some see 'small town' but a nice town to grow up in, raise children and know many of the people making decisions impacting the area. That was then.
    The size of James Madison University has exploded. Not just student population but by their impact on available housing, restaurants, shopping and services. This Godzilla of almost 20,000 students in a town of approximately 30,000 creates traffic calamity. Thanks to the current version of eminent domain one man I know who had a business property with a value of $2,000,000. across from the JMU campus, got nothing near that figure from the Commonwealth but JMU is a little larger and the taxpayers pockets are just a little lighter. I support any legislation that limits the size and power of government.


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