Virginia One of 44 States to Restrict Government’s Arbitrary Taking of Private Property

Well-connected developers influence their cronies in local governments to give them private property from homeowners and small businesses simply by asserting they can make the land more profitable.

By Rachel Alexander l November 28, 2012

Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?

On November 6, 2012, voters in Virginia said they’d had enough of government seizing private property for questionable purposes, as 74% voted to approve a ballot initiative limiting eminent domain. Question 1 amended Virginia’s constitution to curtail state and local governments from arbitrarily seizing private property. Private property can now only be taken for a true “public use;” it cannot be taken simply to give it to another private landowner such as a developer for the primary purpose of creating jobs, increasing tax revenue or economic development. The only exceptions are for utilities or to eliminate a public nuisance. Property owners whose land is taken would be given “just compensation,” including for lost profits or lost access.

The constitutional amendment would most likely have prevented cities like Norfolk, Virginia from taking a thriving radio station from its owners and giving the land to Old Dominion University, which had proposed no plans for the property. The Norfolk Redevelopment and Housing Authority declared the 78-year old property of Central Radio Company as “blighted,” along with more than 170 other properties in the vicinity of the university. The owners fought back, taking the city to court and hanging a 375-foot banner on their building informing the public of the taking. The city responded by citing the business for a sign code violation, asserting that only 60-foot or smaller signs are permitted. Hypocritically, Old Dominion University has banners larger than the one in question.

Virginia is one of 44 states that have changed its laws or constitution in order to override the landmark 2005 property rights case Kelo v. City of New London. There, the U.S. Supreme Court narrowly decided 5-4 that the Takings Clause of the U.S. Constitution’s Fifth Amendment did not prohibit the city of New London, Connecticut from taking land from private homeowners and giving it to businesses in the hope that it might promote economic development. The case precipitated the largest backlash against a Supreme Court case in decades, as Americans became educated about eminent domain abuse.

Kelo rendered the Takings Clause of the U.S. Constitution’s Fifth Amendment practically meaningless. The Takings Clause states that private property shall not be taken for public use without just compensation. Five unelected Supreme Court justices struck a devastating blow against private property, essentially holding that government exists to take away our rights, not protect them.

Not only does arbitrary eminent domain decimate the U.S. Constitution, but it is costly and doesn’t work. Constitutional amendments like Virginia’s Question 1 put the burden back on the government to prove that a taking is for “public use,” instead of forcing property owners to fight to defend themselves in expensive lawsuits. Allowing the government to seize private property for arbitrary reasons results in hundreds of thousands of dollars being spent subsidizing commercial enterprise.

Since the Kelo decision, New London’s redevelopment effort has flopped. Local and state governments in Connecticut spent over $80 million to buy and demolish private property, only to have the corporation they seized it for – the pharmaceutical company Pfizer – bail, taking 1,400 jobs with it. There has been no new construction and the neighborhood is now a barren field. The local economy has been damaged, homes and businesses have been destroyed, and taxpayers’ money has been squandered.

Permitting government to trample on private property rights has resulted in massive abuses of the coercive power of eminent domain. Well-connected developers influence their cronies in local governments to give them private property from homeowners and small businesses simply by asserting they can make the land more profitable. Justice Clarence Thomas presciently wrote in his dissent in Kelo that the taking by the city of New London was not done for general economic benefits, but to specifically benefit Pfizer. He called New London’s plan “a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation.” According to Institute for Justice attorney Dana Berliner, who represented the homeowners in Kelo, the courts didn’t even take into consideration a study from the developer showing that there was no market for bio-tech buildings.

Arbitrary eminent domain allows government to act like a bully and victimize small property owners. Virginia Attorney General Ken Cuccinelli, who backed Question 1, observed that the government only singles out small property owners for eminent domain. “Have you ever heard of anybody trying to take Walmart’s property? I haven’t. Government is a bully, and bullies don’t pick on people who fight back.”

Opponents, such as the Virginia State Democratic Party, claimed that Question 1 was unnecessary since it duplicated a state law passed in 2007. However, anyone versed in the law knows that it is much easier to revoke or undermine a state statute than the constitution. Additionally, the amendment tightens up the definition of “public use,” which is currently left to the discretion of the state’s General Assembly, and ensures that any taking will result in just compensation.

While the Court in Kelo encouraged states to pass their own laws, some that followed through did not write the laws well and they will need to be improved. 17 of the new state laws are largely symbolic in nature, providing little protection for private property. Pennsylvania by far had the most incidents of government taking from one private party and awarding their property to another private party. But its law contains alarge loophole exempting those parts of the state where most of the takings occur. Other states have enacted laws that forbid takings for “economic development” but allow them to continue under descriptions like “blight” or “community development.” Generally, the laws that have been passed through citizen-initiated referendums have had the most teeth; and lacked effectiveness where state legislatures have passed them.

With the re-election of President Barack Obama, who will likely appoint more liberal Supreme Court justices opposed to the protection of private property rights, there is little chance Kelo will be overturned by the Supreme Court in the near future. Fortunately, although an unelected group of five judges has chosen to ignore the plain words of the U.S. Constitution and dictate public policy, state legislatures and the ballot initiative process are providing an effective way for the people to fight back and protect their rights. State and national opinion surveys show overwhelming public opposition to economic development takings. The remaining states that have not passed anti-Kelo laws need to follow up and get these laws passed, and states like Maryland and Kentucky must toughen up their watered-down versions of anti-Kelo laws. The drastic expansion of the federal government and its powers in recent years means there is little chance of regaining protections for private property rights at the federal level and this battle will have to be fought on the local level.

Rachel Alexander is the founder of the Intellectual Conservative and an attorney. Ms. Alexander is also a contributor to

SFPPR News & Analysis .