By Fred Carroll
Frank Ottofaro fought Hampton officials all the way to the state Supreme Court when they condemned a house he owned for a road to the Power Plant, a retail hub subsidized by the city but built by a private developer.
Even so, he refuses to drop the fight. Two years later, he still cusses city officials even as he recovers from surgery to remove a kidney stone.
"I'm for progress but not for stealing people's property," Ottofaro said. "They violated my constitutional rights. I don't know why you take the Constitution and rip it up in pieces."
A case before the U.S. Supreme Court could please people like Ottofaro by redefining the power of eminent domain - the government's right to seize private property as long as it's for a public use and the owner gets fair compensation.
The decision could restrict the use of property condemnation in instances where government turns land it has seized over to private developers for construction, such as Virginia localities can do when redeveloping blighted neighborhoods.
"It's a quarrel over how expansive is the meaning of public use," said William Van Alstyne, a law professor at the College of William and Mary.
Riverfront residents of New London, Conn., sued to halt town officials from demolishing their homes to clear the way for an office complex that complements a nearby pharmaceutical company.
Town officials describe the project as a renewal effort that ultimately benefits residents by bringing in new jobs and boosting tax revenues. Opponents call it a land grab that benefits the private developers, not taxpayers. Van Alstyne said the court's decision to hear the case surprised legal observers who considered the issue settled.
Governments traditionally used eminent domain powers for direct public uses - such as building a road or school. But a 1954 Supreme Court ruling allowed governments to take property and resell it to private developers for projects that overhauled blighted neighborhoods.
Most legal observers don't expect the justices to overturn the earlier ruling after hearing them question lawyers, Van Alstyne said.
"Otherwise, the race is on," he said.
Regardless, Mark Flynn, legal services director for the Virginia Municipal League, doubts the ruling will change eminent domain use in Virginia, which handles condemnations differently than Connecticut.
In Connecticut, government officials can take land for economic development - regardless of its condition - if they show that tax revenues will increase.
In Virginia, localities must show that an area is predominantly blighted and outline a redevelopment plan for it. Then if a property owner refuses to sell, officials can condemn the land.
"We don't do it very often," Flynn said, "but it is important when it does happen - to the landowner and the locality."
For example, Newport News housing officials figure they've condemned a single lot - excluding those condemned because ownership was unknown or uncertain - over about two decades for a neighborhood of new houses and a proposed industrial park.
Local officials consider eminent domain a powerful negotiating tool that forces otherwise uncooperative landowners to deal in good faith with government officials.
Newport News Vice Mayor Charles Allen, a planning consultant who represents the city's oldest neighborhoods, said judges and legislators should ensure that landowners are fully compensated for existing and prospective financial losses, rather than erode eminent domain powers.
In February, the General Assembly approved legislation that allows judges to order government agencies to pay some court costs for landowners in certain instances. The legislation awaits Gov. Mark Warner's signature.
"It was tremendous progress," said Del. Terrie L. Suit, R-Virginia Beach, who sponsored the two bills, "although it was not everything we wanted."
Virginia was one of six states this year to consider bills that would have prevented governments from taking properties with the intent of giving them to private developers, according to the National Conference of State Legislatures.
The bill was tabled.
Nationwide, more than 10,000 instances of filed or threatened government condemnations for private use occurred between 1998 and 2002, according to a report for the Institute for Justice, a libertarian public interest law firm.
An institute spokesman said the report likely reflected just a fraction of condemnation cases since it relied on news reports and court papers that wouldn't identify all instances.
The report highlights Hampton's efforts to spur the Power Plant and Ottofaro's lawsuit - even though neither the city nor the state Supreme Court characterizes the road as a private use.
In January 2003, the justices called the road an "undisputed" public use owned and controlled by the city, with leftover land going to the city's economic development authority. They did not consider Ottofaro's contention that his property - which the city bought for $170,000 - was taken to help build the Power Plant.
Ottofaro, a 70-year-old retired railroad employee and gas station operator, refuses to accept the ruling. He carries several copies of the institute's report and has frequently blistered Hampton council members in public meetings.
"You think I had a fair trial up there?" he asks. "Heavens no."
Hampton officials expect about 26,000 cars and trucks to travel the road daily in about a decade.
They expect the Power Plant to bring in millions of dollars in tax revenue - money that could pay for firefighters, street repairs and other public services.
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