Category Archives: Property rights

The Systemic Racism of Monument Avenue

By Peter Galuszka

Richmond’s grand Monument Avenue, a double lane, tree lined thoroughfare, has been the epicenter of the Black Lives Matter campaign that has focused on the statues of several Confederate figures one the road, including Robert E. Lee, J.E.B. Stuart, Thomas “Stonewall” Jackson and Jefferson Davis.

All are up for removal, but the same foot-dragging that has for years protected the statues that some consider racist is at work today. Protestors have torn down Davis and have defaced the rest. On Sunday night, they nearly ripped down the Stuart statue as two city council members urged that it be removed on an emergency basis.

Lee’s statue has been ordered down by Gov. Ralph Northam, but the effort has been tied up in lawsuits by several property owners. One claims either that the original deed that gave the state the site for Lee included language that it could not be removed. Other plaintiffs, most anonymous,  claim that removing the statues would hurt their property values and their special tax status.

If anything smacks of white privilege and entitlement, this is it. But for more perspective, this article in The Atlantic neatly sums up the history behind the statues and the Avenue, noting that the issue has everything to do with rewriting Richmond’s history and making a marketing play to sell expensive and exclusive real estate decades after the Confederacy was suppressed. Continue reading

Who Pays The Unpaid Bills? Watch Out.

By Steve Haner

This was published this morning in The Roanoke Times and then distributed by the Thomas Jefferson Institute for Public Policy.

There may be a second wave of COVID-19 disease coming, but the secondary effects of various pandemic economic decisions may hit us sooner. Rent and utility bills customers can delay paying because of the crisis will eventually come due.But for whom?

The Legal Aid Justice Center looked at U.S. Census survey data that indicated many Virginians have fallen behind on their rent and did not expect to pay their next bill. It predicted an “eviction catastrophe” as eviction and foreclosure bans end, and lenders and landlords rush into newly reopened courts for judgments.

“The Governor should use emergency powers to immediately enact a moratorium on evictions or should allow localities to enact their own until the General Assembly can address tenants’ mounting debt. The General Assembly should create relief for tenants who are significantly behind in rent payments through a waiver or rent cancellation plan,” the advocacy group asserted.

Governor Ralph Northam took up the call, and the Virginia Supreme Court has agreed to hold off eviction proceedings a few more weeks, until June 28.   Continue reading

An Enormous Bill is Coming Due in Virginia

by James C. Sherlock

We had a long discussion in this space earlier about whether the Virginia Supreme Court Order of March 16, 2020, that suspended writs of eviction and residential unlawful detainers was constitutional.

The June 8 extension of the original order was especially troubling because by that order the courts were open for business to all plaintiffs except residential landlords.

Regardless of individual views of constitutionality, that order constituted unmistakably a taking of private property.

For purposes of this discussion assume:

  1. the taking of the property of the landlords in order to stem the effects of COVID was for public purposes and thus constituted a taking for public use; and
  2. the method of the taking was not impeded by any barrier of constitution or law.

Under Article I Bill of Rights, Section 11 of the Constitution of Virginia Due process of law; obligation of contracts; taking or damaging of private property; reads in part: Continue reading

The ACP Wins One But The War Drags On

By Peter Galuszka

The $8.5 billion Atlantic Coast Pipeline has won a significant legal victory but the war is far from over.

The U.S. Supreme Court, in a 7-2 decision, has ruled in favor of project operated by Dominion Energy and Duke Energy saying that its 42-inch pipeline can cross under the Appalachian Trail in the George Washington National Forest.

The Court ruled that the pipeline can pass 600 feet underneath the trail and that the U.S. Forest Service has the right to allow a right of way. The Richmond-based 4th Circuit Court of Appeals had previously ruled that the Forest Service had no such authority.

Dissenting, Justices Sonia Sotomayor and Elena Kagan wrote that the U.S. Minerals Leasing Act does give the federal government the right to regulate federal land, including trails. Justice Clarence Thomas, who wrote the majority ruling, said that plans to bury the pipeline under the Appalachian Trail represent an easement which is not the same as “land.”

The project still faces eight other permitting issues involving the Forest Service, the U.S. Fish & Wildlife Service, the National Park Service and the U.S. Army Corps of Engineers. Continue reading

Gunning Up Virginia’s Cops

By Peter Galuszka

 In 2014, the Sheriff’s Department of York County and Poquoson got their very own tank-like vehicle, called a “Mine Resistant Ambush Protected (MRAP).”

Fully armored and tan in color with steep sides, it looks like something out television footage of the war in Iraq where U.S. troops needed to get through mine-infested streets and terrain safely.

But why do such generally sleepy communities such as these need a high-powered armored car? Sheriff J.D. “Danny” Digs told The Virginian-Pilot and Daily Press that it isn’t meant to “intimidate people” but can be useful during adverse weather when trees are down. Really? Wouldn’t a pickup truck work?

The newspaper story is important since it combs through what Virginia law enforcement got after the “1033”Defense Department program started to sell surplus military gear to local law enforcement in 1997.

It notes that military surplus sales in Virginia went from $216,000 in 1999 to $853,824 in 2019, according to Defense Logistics Agency statistics. The latter number included the cost of another MRAP so Virginia Beach could get its very own armored truck. Over time, the City of Portsmouth got 87 M-16 assault rifles. Other goodies include night vision glasses. Continue reading

Construction: Virginia’s Quiet, Strong Man

Scene from Micron’s $3 billion construction project in Manassas. Photo credit: Inside NoVa

By Peter Galuszka

For all the complaints about the COVID-19 pandemic in Virginia – the shut-down restaurants and (temporarily) closed beaches – one industry has been working steadily and quietly all along – the state’s construction sector.

Builders haven’t missed much of a beat since the “state at home” orders started going out a couple of months ago.

In Pentagon City, works still progresses on the two, 22-story towers for Amazon’s new eastern headquarters. In suburban Chesterfield County near Richmond, workers toil adding new drain pipes and four-laning once- rural roads. Four-story apartments overlooking Swift Creek Reservoir are taking shape for the over-55 crowd.

At a loud and garish protest next to the State Capitol against Gov. Ralph Norham’s work-stoppage plans last month, Mark Carter, a contractor from Hanover County, made his views known. “We‘re still working,” he told me. “I’m not for Trump and I’m not a Democrat. People need to work.”

In Virginia, some are. After all, New York state and Boston stopped construction work due to the pandemic. Continue reading

WTJU Podcast: COVID-19 and the Economy

By Peter Galuszka

Here’s is the twice-monthly podcast produced by WTJU, the official radio station of the University of Virginia. With me on this podcast  are Nathan Moore, the station general manager, and Sarah Vogelsong, who covers, labor, energy and environmental issues across the state for the Virginia Mercury, a fairly new and highly regarded non-profit news outlet. Our topic is how Virginia is handling the economic fallout from the COVID-19 pandemic.

Notes from the Right Wing Echo Chamber

By Peter Galuszka

On Wednesday, I was standing next to the Capitol grounds in Richmond watching brightly decorated cars and pickups drive on 9th Street, their horns blaring.

I was attending the drive by protest rally on assignment for Style Weekly and happened to speak to Jason Roberge, a Spotsylvania County resident who is one of several Republicans hoping to oust U.S. Rep. Abigail Spanberger, a former covert CIA officer who represents the 7th Congressional district.

Roberge was there to protest what he says is Gov. Ralph Northam’s “terrible job” in temporarily shutting down businesses to prevent the spread of the COVID 19 virus. The rally was part of a series of protests across the country that are being set up on cue from right-wing activists.

Roberge told me: ”I hear he’s (Northam’s) down on North Carolina beach while this is going on.” As he spoke the House of Delegates was holding a special session under an outdoor tent nearby while the Senate presided at the Science Museum of Virginia.

Northam at the beach? It turns out that the conservative echo chamber has been peddling a story, firmly denied by Northam’s office, that he was at his house in Manteo, N.C. not far from the beaches at Nags Head during the special General Assembly session. Continue reading

Dare County, N.C., closes its borders

By DJ Rippert

From Outer Banks to Outer Mongolia. Dare County, N.C. issued orders last week closing its borders to non-residents. Dare is a coastal county just south of Currituck County, N.C., which borders Virginia. Many Virginians know Dare County from Outer Banks vacations in towns such as Duck or fishing trips launched from Manteo. Checkpoints into and out of Dare County are apparently now manned by law enforcement officers who will check IDs to ensure that travelers are residents of Dare County or have pre-authorized transit permits issued by Dare County. As of last week there were no confirmed cases of COVID-19 in Dare County, and it seems county officials want to keep it that way.

Is it legal? Some are questioning whether officials in Dare County can legally enforce a prohibition against non-residents entering the county. Apparently they can. North Carolina law, specifically N.C. General Statute 166A-19.31, allows local officials to control access and ingress to their jurisdiction during times of emergency. Given the Coronavirus outbreak, local officials in Dare County have decided to invoke that law.

We want your taxes but not you. Dare County has many vacation homes owned by non-Dare County residents. These homes are typically expensive and generate a material amount of tax revenue for the county. Originally, non-resident owners of these homes were allowed entry into the county by showing their tax receipts for the property along with valid ID. Yesterday that changed. Dare County is now excluding non-resident property owners from entering the county.

Commentary. I was originally predisposed to giving Dare County officials the benefit of the doubt regarding the border closure. For one thing all those expensive and unoccupied beach homes could be targets for burglars taking advantage of the Coronavirus outbreak. However, my perception changed when those same officials decided to bar entry for non-resident property owners. These are people who have invested in the county, who pay taxes to the county and who should have every right to go to their properties. I have no idea if Virginia law would permit the same type of buffoonery from our local officials. Let’s hope not  However, even if such actions are allowed, I hope no Virginia jurisdiction would follow the selfish, arrogant and small minded actions of the officials in Dare County, N.C.

More Mobile Homes, Please

Smitty’s Mobile Home Park in Norfolk

by James A. Bacon

The good news is that the poverty lobby has recognized that mobile home parks provide a valuable source of affordable housing in Virginia. The bad news is that… the poverty lobby wants to help.

There are about 600 mobile home parks in Virginia. The average sales price for a single-width mobile home is about $53,000 (not including lots), a fraction of the $280,000 median price for a single-family house. These parks provide affordable housing for tens of thousands of Virginians — more than 11,400 in Central Virginia alone.

One way to approach mobile homes in Virginia is to say, “Fantastic! A source of affordable housing. How can we open up more land for development of mobile home parks? How can we increase the supply and give poor people more options for where to live and whom to rent or buy land from?”

Another way to approach mobile homes is to look at the negatives. It turns out that many are in disrepair. Figure that — homes owned by poor people are in disrepair. Not only that, Christie Marra, director of housing advocacy at the Virginia Poverty Law Center, tells Virginia Public Media (VPM), many trailer parks have less than desirable surroundings. “They didn’t have street lights, they didn’t have paved roads, they didn’t have up-to-date electricity or sewer systems.” Continue reading

A Closer Look at those Tenant-Eviction Stats

Graphic credit: VPM

Virginia’s eviction-reform movement gained considerable momentum last year when the New York Times, citing data of the Princeton Eviction Lab, published a story asserting that four Virginia cities numbered in the top 10 cities with the highest eviction rates in the country. Richmond supposedly had an eviction rate five times the national average. Armed with this scandalous data, renters rights advocates pressed successfully for changes to state law that make it somewhat easier for tenants to avoid eviction.

Now a VPM (Virginia Public Media) investigation has revealed significant flaws in the data. The first problem is one that I identified shortly after the Times article was published: The reason Virginia cities stood out so prominently in the Top 10 list was not that Virginia laws are tougher on renters but because Virginia’s city/county form of government skewed the data.

A second problem is that Princeton Eviction Lab cobbled together different data sets for different states. The Lab was able to obtain court data directly from 12 states, including Virginia. For the others, they used data from private sources. Continue reading

Taking Some Pain Out of Eminent Domain

Senator Frank Ruff of Clarksville. Taking some of the pain out of eminent domain.

Four successful bills heading for Governor Ralph Northam’s desk may combine into a measurable shift in Virginia’s condemnation laws in favor of the targeted landowners.  They may also spark a race to the courthouse between now and when some go into effect July 1.

The biggest financial impact may come from Senator Frank Ruff’s Senate Bill 1256, which eliminates state tax on any capital gain resulting from the forced sale.  The subtraction for any capital gain applies to both individual and corporate landowners and applies to any transaction after January 1 of this year.  Too bad if you took that check in December.   Continue reading

SCC Examiner Recommends Shorter Transmission Line Towers for Augusta

Image source: Staunton News Leader

Dominion Energy wants to rebuild 17.7 miles of a 500 kV power line through Augusta County to meet the electricity load of its western Virginia customers, and as long as it’s rebuilding the line, increase the height to accommodate an additional 230 kV line should the need for it ever arise. Building a double-circuit structure would add $6.1 million to the project but save between $44 million and $55 million if the utility had to come back later to add the second transmission line.

Local landowners, distressed by the visual impact on their property, oppose the higher line, and they want Dominion to pay between $1.3 million and $2.5 million extra to add a coating that would give the bright galvanized steel a brown color.

In a ruling issued earlier this month, State Corporation Commission hearing examiner Ann Berkebile ruled that the rebuilding of the existing Dooms-Valley 500 kV line is justified by the public convenience and necessity but that spending the additional money for taller towers is not. Further, she found that the expenditure of additional money to chemically dull the towers is warranted. The case now goes to the SCC’s three judges for a final ruling. Wrote Berkebile:

The ability to address a need that could arise at some time in the future at an incremental increased cost (and at a lower cost than is likely to be incurred should a future need arise) does not outweigh the actual detrimental impacts of significantly taller towers upon the scenic and historic assets of August County. Under the circumstances, I conclude that the Commission should approve the use of less expensive, shorter lattice towers for the rebuild.

Berkebile’s findings come at a time in which Dominion and other electric utilities are investing massive sums to upgrade their electric grids. Over the next 15 years, Virginia likely will see the retirement of more coal-fired plants and the construction of more solar farms and gas combustion-turbine plants. An open question is whether Dominion will be able to re-license its four nuclear power units. The grid, designed for a traditional configuration of electric-power generation also will need to be upgraded to meet a new configuration in which intermittent solar and wind sources play a role.

Dominion consulting engineer Peter Nedwick identified three scenarios that would support the need for the additional 230 kV line through Augusta County, according to Berkebile’s summary of the testimony. In her report, however, Berkebile did not discuss the scenarios or assess how likely any one of them was to occur. SCC staff, she stated, was “unable to verify” a need for taller towers to accommodate a 230 kV line.

In his testimony, Nedwick also cited three instances in which single-circuit structures proved inadequate and Dominion was required to come back and rebuild transmission lines within a double-circuit structure. Given the relatively low cost of preserving the flexibility, summarized Berkebile, “he continued to support the double circuit option as a means of maximizing the use of existing [Right of Way] while maintaining flexibility to meet future demands and changes in [North American Electric Reliability Corporation] Reliability Standards.

The SCC staff supported the chemical dulling option to reduce the visual impact of the pipelines on the Augusta County landscape. A relatively new product, Natina, gives galvanized steel a brown color. According to a Dominion engineer, testing shows that the coating will not maintain a uniform appearance over time. Also, it will increase rust, be difficult to paint over, and hinder the natural development of a patina on the steel girders. Alternatives include COR-TEN weathering steel, hot-dipped galvanized steel, a chemically dulled (pre-dulled) steel.

Oyster Wars, Viewsheds and Property Rights

An oysterman at work in Virginia Beach’s Lynnhaven River. Photo credit: Associated Press

One might think all Virginians would be delighted by the resurgence of the oyster population in the Chesapeake Bay. But more oysters means more oystermen, and more oystermen means more strange men trudging around the shallows and dragging around ugly cages within the sight of wealthy waterfront property owners.

The resurgence has led to resistance from coastal homeowners who want to maintain picturesque views and has fueled a debate over access to public waterways, reports the Associated Press.

Homeowners say the growing number of oystermen — dressed in waders and often tending cages of shellfish — spoil their views and invade their privacy. Residents also worry about less access to the water and the safety of boaters and swimmers.

Low tides often expose oyster cages, usually accompanied by markers or warning signs that protrude from the surface. In some places, cages float.

“All of sudden you have people working in your backyard like it was some industrial area,” said John Korte, a retired NASA aerospace engineer. “They may be a hundred feet away from someone’s yard.”

In a 2012 lawsuit in York County focused on the right of two oystermen to use property in a residential neighborhood for industrial-scale harvesting and cleaning operations. The new trend goes much further. In Virginia, Maryland and Delaware, homeowners are seeking greater restrictions against oystermen activities that offend their sensibilities. But the oystermen aren’t rolling over.

“Oftentimes, affluent and new members of the community have the point of view that they own the water in front of them, which is really not true,” said Bob Rheault, executive director of the East Coast Shellfish Growers Association. “We need to win back our social license to farm.”

Bacon’s bottom line: The fate of oysters, which are making a comeback in large part to the efforts of oystermen who have an economic incentive to create oyster reefs. Oysters are a keystone species in the Chesapeake Bay. As a matter of public policy, this socially beneficial activity should be encouraged, not discouraged.

But recovery of the oyster population is being stymied, in part, by a massive redefinition of property rights — in the popular culture, if not yet in the law. Owners of waterfront property are effectively trying to extend their property rights into public waterways. They are asserting a right to an undefiled viewshed. When they purchased their property, they paid a premium for pristine water views. When oyster populations revived and oystermen began working shallows in public waters that their forebears had abandoned decades ago, property owners perceived them as interlopers.

This is similar to a trend in other places, most notably in rural areas with gorgeous views of mountains, hills, woodlands, farms, rivers and streams. Once upon a time, Virginians purchased rural property for their productive value as farms or timberland. Over the years, people began buying property for the scenery. They paid a premium price for their views, and they objected to anything — be it a cell tower, transmission line, gas pipeline, or industrial facility — that diminished those views.

Here is a photo of the view I observed last month while dining on the porch of the Pippin Hill Farm winery. The owners had built the winery to take full advantage of the beautiful view. Gauging by the large number of people who visited that Saturday to enjoy meals and indulge in wine tastings, the enterprise is highly successful. Now, imagine someone proposing to disrupt that image. I can guarantee that the winery owners would rise up in opposition — not merely for aesthetic reasons but because their livelihood would be threatened.

I’m not taking sides in the dispute between landowners and energy companies, or property owners and oystermen. I am not even drawing a moral equivalence. Oystermen are working in public waters, while inland landowners object to energy companies using eminent domain to cross their land. I am saying that the rise of viewsheds as a determinant of property value is fueling conflict that did not previously occur. I’m not sure that our system of laws and regulations has caught up.

Will NIMBYs Thwart SolUnesco Solar Plan?

SolUnesco CEO Francis Hodsoll addresses the Albemarle County Board of Supervisors

SolUnesco CEO Francis Hodsoll addresses the Albemarle County Board of Supervisors. Photo credit: Charlottesville Tomorrow.

Not all barriers to solar energy emanate from Richmond. Take Albemarle County, for example. The county zoning code outlaws solar farms, we learn from Charlottesville Tomorrow.

“The current zoning ordinance allows for the transmission and distribution of energy, but not the generation of energy,” said county planner Margaret Maliszewski at Wednesday’s Board of Supervisors meeting.

The issue arose because Reston-based SolUnesco wants to submit an application to develop an 11-megawatt photovoltaic solar energy generation system in southern Albemarle. “Our project is for the wholesale supply of energy that goes onto a wholesale network of transmission and distribution lines and that allows people to buy energy from our project or for a utility to buy energy directly from us,” said SolUnesco CEO Francis Hodsoll.

Albemarle Supervisors directed the planning department to study the issue. But, while the Charlottesville-Albemarle area may be home to many solar-loving greenies, don’t take it for granted that county planners will roll over for SolUnesco.

“As a member of a rural neighborhood, the first thing that comes to mind is protection of the rural areas,” said Phillip Fassieux at the board meeting. “We all love solar power, but at what cost? … “How will residents of Albemarle benefit specifically from turning over part of our rural county to its use? Will we see reductions in electricity rates?”

Everyone loves solar in theory, but opposition frequently surfaces locally when someone proposes building a solar farm near them. Others object to the idea of vast solar farms displacing agricultural uses of the land. SolUnesco’s proposed 11-megawatt solar farm, big enough to supply demand for about 2,000 households, would require between 70 and 80 acres of land. Typically, solar farms include vegetated buffer zones to screen the solar panels from view.

(Another potential objection to solar is that, given the state formula for distributing school aid, a big capital investment in solar could actually hurt a county financially. I’ll deal with that issue in a separate post.)

Bacon’s bottom line: Call me a Neanderthal, but I support private property rights. I see no justification for Albemarle County — or any county — to impose zoning restrictions prohibiting solar farms. If a property owner decides that installing solar panels represents a use of land preferable to agriculture or timber, that should be his decision to make. Counties have no business intervening unless the land use creates a nuisance to neighbors. Unlike wind turbines, solar panels create no noise, are easily hidden from view, and don’t harm wildlife. NIMBYs need to get a life.

And one more thing… The SolUnesco pitch to landowners asserts that its 25-year leases will generate above-market returns for landowners with an inflation escalator. The company assumes all costs and risks associated with developing the project — the landowner just collects checks for 25 years.

Rural Virginia is hurting. It has few resources of value in the knowledge economy. One thing it does have is land. Solar energy represents a rare opportunity for Virginia’s rural economy. There are many complex issues surrounding the integration of solar into the electric grid that need to be resolved before we see widespread deployment, but land use should not be one of them.