Protecting Property Rights in Virginia; Will Legislature Reform Eminent Domain?

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Virginia, a state synonymous with American history, is poised to make it once again, though it remains to be seen what kind of history it will be.

In February, both the Senate and House of Delegates passed two versions of legislation seeking to reform the state's horrid eminent-domain laws. In the wake of the U.S. Supreme Court's infamous decision in Kelo v. City of New London - which now allows the government to take property from one individual and transfer it to another on the mere promise of increased tax revenue or jobs - home and small business owners around the country are calling for an end to this type of abuse. Virginia joins more than 40 other states that have passed or are considering passing eminent-domain reforms. And now, after various machinations that have confused which bills contain what language, a conference committee will soon address the two versions of "reform."

Unfortunately, not all reforms are real, and this state is the perfect example of the clash between real and cosmetic reform - a battle between those who want to save their homes and those who want the power to take them. Senate Bill 394, now containing Del. Johnny Joannou's amendment, provides the exact protections necessary for Virginia's property owners to keep what they've worked so hard to own. This legislation limits the power of eminent domain to situations where the government or the public at large will ultimately own and occupy the property taken - things like schools and roads - and where it will be used for public service companies.

Eminent domain can no longer be used to take farms, homes or businesses for private commercial development, which nearly everyone, in poll after poll, rejects.

House Bill 94, however, contains almost no restrictions at all. Property can be taken for the simple use or occupation by the public, which arguably means a shopping mall or big-box store. The bill's reference to taxes contains a qualifier - "primary purpose" - that any condemning authority can get around by claiming it's doing something else. Courts won't check these assertions, particularly because the bill also reinforces the presumption that any government taking is correct, a significant and often insurmountable judicial obstacle to challenging public use. Most importantly, HB 94 leaves a gaping exception for condemnations under the Housing Authorities Law, which is routinely used to take property under the guise of "blight removal," when the real reason is the one everyone despises and one sanctioned by statute - increased tax revenue. …