Eminent Domain: The Sleeper Issue of ’06

The gubernatorial candidates aren’t talking about it. The press isn’t writing about it. But eminent domain is shaping up as the sleeper issue of the 2006 General Assembly session. In the aftermath of the Supreme Court’s ruling in the Kelo vs. New London case, in which the Supremes expanded the definition of the “public purpose” justification for condemning someone’s property, the Virginia legislature is expected to enact legislation that will remedy the perceived excesses of the Court’s ruling.

Eminent domain is one of those topics that put most people to sleep — until it’s wielded against them. Then it can mean being evicted from their homes, or life and death for their businesses. As Peter Galuszka writes in an article commissioned for Bacon’s Rebellion:

Fears now abound in Virginia and nationally that eminent domain could be wielded by powerful economic interests for mostly private gain rather than for public good.

It’s a rare instance in which liberals and conservatives agree! But good-government pragmatists are worried. Placing drastic restrictions on the power of government to condemn land could put a crimp in the community revitalization projects that municipalities depend upon to shore up their tax bases.

Bacon’s Rebellion is proud to create a venue for the discussion of eminent domain at the “Public Private Partnership Forum” this Dec. 16-17, at the Virginia Crossings Resort north of Richmond. Sessions include:

  • The Public Sector’s Responsibility to the Private Sector
  • The Private Sector’s Responsibility to the Public
  • Abuses and Successes of Eminent Domain Cases
  • Economic Risk Considerations with Community Development
  • The Eminent Domain Debate of Oceana Naval Air Station in Virginia Beach
  • What’s on Virginia’s Political Horizon for Community Development, Eminent Domain and Transportation?

And more… To find out more about the conference, click here.

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16 responses to “Eminent Domain: The Sleeper Issue of ’06”

  1. Sounds good. Where’s Ed Risse to push logical thinking on this issue???

  2. Blackstone Avatar

    So what else is new? In Virginia–long before the excitment of the Kelso decision, the Supreme Court of Virginia permitted what was a “taking for private use.” While a string of cases gave lip service to the restrictions on the power of eminent domain, Article I, Section 11 of the Virginia Constitution gives the General Assembly the right to define “public uses.” Of course it kowtowed long ago to railroad, telephone and electrical utility companies in granting them the broadest powers of eminet domain. Railroads, phone companies and power companies are still some of the largest land owners in the state–and for uses of more than trains and electrical substations, too.

    In 1953, the Virginia Supreme Court held that the Norfolk Redevelopment Authority could condemn private property and then sell or lease it to private developers.Hunter v. Norfolk Redevelopment, 195 Va. 326.

    Check the Code for examples of municipalities’ rights to determine that areas are “blighted” and then condemn with the avowed purpose of selling to a private developer.

    It is highly amusing to see some so-called conservaties get their drawers in a knot about a pernicious practice that has been going on for a fairly long time.

    Where have you all been? Had your heads stuck in copies of The National Review?

  3. Ray Hyde Avatar

    “Placing drastic restrictions on the power of government to condemn land could put a crimp in the community revitalization projects that municipalities depend upon to shore up their tax bases.”

    Tough Bananas. Why should I have to give up my life to solve problems caused by the communities failure to plan ahead for an appropriate expense vs tax ratio? As it stands now communities claim that development costs them money: hence the need for proffers and development restrictions.

    I could be restricted against development until it suits someones schedule, and then developed against my will.


  4. Anonymous Avatar


    Every state in the union permits public utilities to use eminent domain. It would be impossible to build networks to serve the public without it.

    By the way, Virginia is also one of the few that no longer allows the use of eminent domain for the location/construction of an electric generation facility.

  5. Jim Bacon Avatar

    Blackstone, Thanks for the legal history lesson. As a non-lawyer, I didn’t know much of that. But let me ask you, what’s more important to you — taking a poke at conservatives, or finding an area you can agree on and push for useful change?

    By the way, conservative property rights advocates have always been among those most active in the fight against public takings, have they not?

  6. SouthoftheJames.com Avatar

    Yeah, I’m surprised that someone hasn’t taken issue with the “wackos” who started the whole eminent domain movement in America. To think that a bunch of men dressed in wigs and stockings would create a silly rule like Em.Dom. by adding, say, a 5th Amendment to the Constitution which said, “…nor shall private property be taken for public use, without just compensation.”

    This isn’t a new issue – it’s part of the centries-old debate in the US about property rights. Maybe with Kelo, Chief Roberts, and Alito, we can really start to think more critically about the fundamental rights of property, liberty and others that both liberals and conservatives will infringe upon to suit their interests..

    — Conaway

  7. I am not a big fan of eminent domain, but I am looking forward to Wilder taking back the land from the VaPAF on behalf of Richmond citizens.

    I am also looking forward to seeing this conference address the quasi-public entities like VCU, which has threatened to use eminent domain in the past against surrounding neighborhoods. Not to mention VDOT’s takings for the 195 corridor.

  8. Doug in Mount Vernon Avatar
    Doug in Mount Vernon

    South of the James, how’s this for a whacko?

    This is absolutely mind-numbing. Black is desperate folks. I really think he may actually be going down this time.


  9. Ray Hyde Avatar

    I believe the first cases of eminent domain in the US involved sites for water driven mills.

    The current situation with the new DC ballpark is interesting. According to the accounts, people near the park are being offered more by private developers than the owners are being offered on the actual park location. The accounts could be wrong, of course.

  10. Anonymous Avatar

    Technically, since any level of taxation is perfectly legal (despite it being taking without compensation), the government could just tax your land to the point where you couldn’t afford to own it and then buy it back from you… with your own money! Ah, the wonders of government…

  11. Anonymous Avatar

    Kaine’s last-minute proposal to “fix” our current transportation problems is a lot like the emminent domain controversy.

    Kaine is suggesting that local government be given the right to forbid otherwise legal and approved uses of property if the local government deems that the use of the property is not supported by the current infrastructure.

    Which is another way of saying that, rather than FIX the road problem, they can use the excuse of NOT fixing the road problem do deny people the currently legal and approved use of their private property.

    In other words, to take away the use of your property because of the failure of government to do their job.

    And if this plan is passed, not only will many landowners lose the ability to exersize the rights they now have to use their property, and will see thier property values go down because the government has essentially taken from them, without payment, their rights — But it won’t make our road problems any better than they are now.

  12. Anonymous Avatar

    That seems a little hysterical. From what I understand, the proposal is to give locaties _slightly_ more bargaining room to require that space and planning be done for roads. Not to allow them to simply stop development altogether on a whim. Figuring out where and how to put roads is an immensely complicated dance, one that cannot simply be solved by “government” deciding to build roads. I don’t necessarily see that this would drastically change the picture for good or ill, but I’m not convinced that it would be for ill.

  13. SouthoftheJames.com Avatar

    The House and Bush Admin is pushing out a bill today to prevent localities from implementing Kelo by withholding federal dollars from those who use Em.Dom for privately-driven economic development. This is akin to the 21 y.o. drinking age issue.

    – Conaway

  14. Blackstone Avatar

    Mr. Bacon,

    I probably shouldn’t waste my time but your comment about “conservatives opposing emminet domain” is wrong. Maybe some conservatives do but check the record for campaign contributions and lobbying expenses.

    Dominion Virginia Power–hardly an enclave of liberal thought– usually leads the list and they do so defending their right to grab your land and mine. The power companies, pipeline companies and railroads are the biggest proponents of the Kelo type takings. They have excess land as a result from which they profit.

    When an effort was made to require colocation of pipeline easements so two or three competing easements would not run parallel through the same property a few years ago, those “great conservative forces” rose up to oppose the measure and forced a watering down of the bill. Try to limit their condemnation powers some time–you’ll see.

    The only private property they respect is their own–which in many cases they have seized from you and me. Oh with “just” compensation, of course and within the statutory definition of “public use.” (Now I wonder why that wasn’t a “constitutional” definition–just asking)

  15. Jim Bacon Avatar

    Blackstone, Why would you classify Dominion as “conservative”? Because they aren’t a bunch of Trotskyites and they’re not calling for the redistribution of wealth? Dominion is a business. As a business, it pursues its own self interest — not the kind of abstract principles of governance that philosophical conservatives call for.

  16. Anonymous Avatar

    “Placing drastic restrictions on the power of government to condemn land could put a crimp in the community revitalization projects that municipalities depend upon to shore up their tax bases.”

    This is absolutely true. Let me provide a reality check on what we are really talking about here. Unfortunately, every older city has slum areas that have abandoned and blighted properties. What do you do when a blighted property is in an estate and you can’t find the heirs? What if it’s in the possession of an absentee owner who refuses to fix it or sell it, and it’s bringing down the value of all the real estate on the block? If you lived in such a neighborhood, as many people do, you would want something done. No one benefits from these situations. Eminent domain, exercised through a redevelopment authority, can crack the tough cases and put blighted properties on the market to private buyers who will rehab the structures or redevelop the land.

    Most of the time it’s not at all about increasing tax revenues (that’s just a way to explain it that money-oriented people can understand). It’s usually a simple matter of trying to improve living conditions.

    Anyone who cares about Virginia’s older cities should urge the General Assembly to tread carefully when it comes to changing the laws that enable the acquisition of blighted property. I support changes to the law that would prevent abuses such as Kelo, where a non-blighted property was condemned for redevelopment purposes. It’s easy enough to do that. But I fear that this is such a red-meat political issue that sweeping changes will be made before all the facts are on the table. That would be a raw deal for Virginia cities. As if they don’t have enough problems to deal with.

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