Reform Eminent Domain; Virginia Fails to Protect Property Rights

Article excerpt


Any Virginian outraged by the United States Supreme Court's decision in Kelo v. New London should examine Virginia law, which often gives Virginians less protection than the court gave the property owners in Kelo. Virginia law allowed a housing authority to take an owner's house without the owner's notice and at a price set by the authority in the owner's absence.

With regard to notice of a lawsuit, Virginia law gives debtors, who refuse to pay their bills, more protections than law-abiding, taxpaying property owners. The law specifically singles out owners whose property is taken by eminent domain and excludes them from the protections given to all other Virginians. Virginia law allowed a city to take an owner's property and give 82 percent of the property to a private developer to build a shopping center. Virginia law allowed a county to take a farmer's land to build a driveway for the farmer's neighbor. Virginia law allows housing authorities to take the well-maintained property of a law-abiding, taxpaying property owner solely because his neighbor refuses to maintain his property.

In Kelo, the United States Supreme Court stated that condemnors may not take one man's property "to benefit a particular class of identifiable individuals." The Court further stated that a condemnor may not take property "under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit." Yet, in the Virginia Supreme Court's latest eminent domain opinion, it allowed a taking that was undisputedly designed to benefit a particular private party a developer who desired the taking to develop his property. The Virginia Supreme Court refused to examine the "good faith" of the condemnor's actions and stated "the fact that neighboring property owners will benefit from [a taking] is irrelevant."

The Virginia Constitution guarantees owners just compensation for property taken, but Virginia law frequently guarantees that owners receive less than just compensation or less than the value of the property taken. An owner who receives a below-market-value offer for his property has one choice: accept the condemnor's low offer or forfeit a portion of his compensation to litigation expenses. Virginia law prohibits an owner from being reimbursed for litigation expenses regardless of how unreasonable a condemnor's offer may have been. Virginia law also prohibits business owners from recovering business losses they suffer when a condemnor takes their business.

While the General Assembly created these abuses by delegating broad powers of eminent domain to countless entities, many of which are unaccountable and unelected, these abuses continue because a strong lobby, consisting of the takers themselves, has captured key members of the assembly. …