By Peter Galuszka
It hasn’t gotten a lot of attention during this campaign, but Virginia will decide Tuesday whether to go with an amendment resulting in the toughest law in the country regarding eminent domain.
Virginia has a law already that requires fair market compensation for private property taken for “Public Good” such as building a highway or knocking down blighted buildings for public ones or even a for-profit project that is being handled through the auspices of the government.
Question 1 regarding a constitutional amendment on Tuesday’s ballot would go even farther. It would not just provide for fair market value for eminent domain but would make the state also compensate for the loss of “profit” or access — the cost to be determined.
The issue is whether the extra level of compensation is necessary or wise. Conservatives, although not all, tend to like the proposition, such as Atty. Gen. Kenneth Cuccinelli and Corey A. Stewart, the head of the Prince William County Board of Supervisors. So does the Virginia Farm Bureau.
Opposing it are equally formidable groups including the Virginia Municipal League and the Virginia Association of Counties and Spotsylvania County which is heavy with historic parks.
A Washington Post editorial states that the idea must be voted down because it would “cost state and local governments and taxpayers tens of millions of dollars annually in giveaways to private landowners and businesses.” It would be a “staggering act of corporate welfare,” the Post believes.
Experts point out that the state’s eminent domain law was already beefed up several years ago to make taking private land harder. This follows the U.S. Supreme Court’s decision in 2005 that upheld the idea of taking land for the “public good” in the case of a woman named Kelo who sued the City of New London which took her house as part of a government-sponsored retail project.
Personally, I tend to favor the private land holder versus that of government in such cases, but the key question for Question 1 is whether the extra belt of protection is really needed.
It is a complex issue, as seen in this Virginian-Pilot report. Tidewater has long been a hotbed for urban renewal. It started in the 1950s when Norfolk decided to tear down acres of slums occupied by low income African-Americans and owned usually by absentee landlords. Urban removal became fashionable in planning circles, but what happened is that the poor residents had to go somewhere — in this case to cheap public housing left over from barracks-style buildings used by shipyard workers during World War II in adjacent cities like Portsmouth.
The port city is hemmed in and its major facilities such as the Norfolk Naval Shipyard and Naval Hospital are government owned and don’t pay taxes. Blight became a decades-old issue. Retail centers such as the Mid City Shopping Center fell apart and were put back together thanks to the threat of eminent domain. The surrounding area is no longer the haven for drugs and crime it once was.
Norfolk did something similar with East Ocean View where eminent domain was deployed in the 1990s to tear down 1,600 gritty buildings and relocate hundreds of low income people.
According to the Pilot, one of the East Ocean View landlords was a eminent domain lawyer Joe Waldo, who says his properties were not high priced but were clean. He felt cheated when he went through the eminent domain process and now represents others fighting in similar situations.
The issue is not that eminent domain can be abusive, it is whether Question 1 goes too far and gives too much protection to property owners. They may not always be modest homeowners. They could be big and deep-pocketed companies. If Virginia’s law already has brakes available on abuse, why the need for the extra law?
My view is that advocates haven’t made their case other than paying homage to the conservative dogma of protecting personal property rights. A more troubling and unanswered aspect is that as the experience in Tidewater has shown, eminent domain is merely a band-aid on the much bigger wounds of poverty that are still very much with Virginia.