Property rights, eminent domain at the 2011 GA

This is a guest post by Connellee Armentrout. Connellee is originally from Roanoke Virginia and is a second year law student at the University of Richmond.

This 2011 general assembly session Virginia legislators have introduced several bills which intend to limit or eliminate eminent domain in Virginia. Eminent domain is the power held by the state to seize, or “condemn,” private property for a public use; in exchange, the property owner is guaranteed, under the Fifth Amendment, fair market value for his property. The most common use of eminent domain is to for utility lines, such as electricity, gas, water, or sewer, to be run through private property, but the power is also exercised for public projects like roads, stadiums, or to spur economic development.

First, the legislature is considering limiting Virginia’s power of eminent domain. HJ 647 and HJ 693, sponsored by Delegates Rob Bell and Johnny Joannou respectively, are worded identically, and currently both bills are in the Privileges and Elections Committee. However, HJ 647 has made it through subcommittee already. These bills begin with a declaration that the “right to private property is fundamental,” and they also reiterate the general requirements of eminent domain. To limit eminent domain the bill requires:

  1. that fair value is not just the price of the property but also intangibles like business goodwill and relocation expenses;
  2. that the condemner may not take any more property than is necessary to achieve the stated public use; and
  3. that a condemnation is not for public use if the primary use is for increasing jobs, increasing tax revenue, or economic development.

Second, HJ 498 accepts the definition of “public use” but goes further to specifically define what uses are public uses. “A taking of private property is for a public use only if the property;”

  1. will be owned, occupied, and enjoyed by the public or by the Commonwealth or by a political subdivision of the Commonwealth (i.e. cities and counties)
  2. will be used for the construction, maintenance, or operation of public facilities;
  3. will be used to provide utility service
  4. is taken to eliminate a public nuisance or other existing condition that renders the property unfit for its intended use and a threat to public health or safety.

Although there is reinvigorated push-back against eminent domain in pursuit of protecting private property rights, there are protections in place for property owners from eminent domain abuses. In Virginia, Chapter 2 of Title 25.1 outlines a condemnation procedure that protects the property owner from an unjust condemnation, and 25.1-230 ensures that the property owner receives “just compensation” for his property. In addition, the 5th Amendment ensures just compensation for seized property.

While reasonable minds can disagree on the theoretical significances of eminent domain, it has been used beneficially and can be considered vital. As the US Government Accountability Office (GAO) has reported, eminent domain can be used not only to allow for public projects like roads, stadiums, and public utilities, but it has also been successfully used, in places like Boston, for blight abatement, which allows municipalities to seize abandoned property that is falling into disrepair and may even pose a hazard to the public.

For more information, please see the International Economic Development Council’s Eminent Domain Resource Kit and the GAO’s Eminent Domain Report.


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