Eminent-domain switch: (Richmond VA) Times Dispatch, 2/14/06

By Greg Edwards

A delegate ambushed an eminent-domain bill yesterday with an amendment that apparently would make it impossible to condemn blighted property and turn it over to a private developer.

The House's preliminary approval of the amendment, offered by Del. Johnny S. Joannou, D-Portsmouth, essentially gutted a measure sponsored by Del. Terrie L. Suit, R-Virginia Beach.

Suit's bill and Jannou's amendment were both offered to counter a U.S. Supreme Court decision last June that said the U.S. Constitution does not bar the use of government condemnation powers for economic development.

Joannou's amendment passed the House 50-47 and then survived by a 51-45 vote a parliamentary maneuver to kill it. The measure faces a third and final vote by the House today.

Joannou called upon the ghosts of George Mason and other Founding Fathers and quoted from the Virginia Declaration of Rights and the Declaration of Independence in arguing for tighter controls on eminent domain than Suit had proposed. The right to acquire and own property is an inalienable right on which the legislature cannot compromise, he declared.

Joannou's amendment defines public uses for which land can be condemned under the state constitution to "embrace only the ownership, possession, occupation, and enjoyment of land by the public or public agencies." It also would allow eminent domain powers to continue to be used for roads, utilities and railroads.

The Joannou measure also bars consideration of economic development goals such as increasing taxes or jobs when determining whether a proposed condemnation is for a legal public use. The bill also would ease the standard by which a property owner can challenge a condemnation from arbitrariness or fraud to a "preponderance of the evidence."

Suit's approach, which is now dead in the House, would have forbidden the use of eminent domain if the "primary purpose" was for the "enhancement of tax revenue." It would have retained nine existing sections of state law, including blight removal by housing authorities and the preservation of historic resources, under which land could be condemned and turned over to a private person or entity.

Joannou's measure would prevent land from being condemned and turned over to private parties in any circumstance, including for public-private road and school projects, Suit complained. In removing blight, the only thing a housing authority could do would be to retain ownership of the land and build public housing projects on it, such as those localities are now trying to be rid of, she said.

Suit said Joannou's proposal might prevent the construction of access roads, water and sewer lines and broadband connections to new businesses in distressed areas because the projects could improve the value of surrounding property. She argued that her approach had been developed with the participation of parties interested in eminent domain and had their backing.

The Virginia Farm Bureau Federation had supported Suit's proposal. Farm Bureau, however, is not opposed to Joannou's approach, and it more closely mirrors the state's largest farmers group's original position on the eminent domain issue, said Farm Bureau lobbyist Martha Moore.

Joannou said he was a bit surprised his amendment was successful, but from a philosophical standpoint, the amendment does what the majority of homeowners in Virginia want. "I just hope the bill meets some success over [in the Senate]."

A bill very similar to Suit's is still alive in the state Senate, sponsored by Sen. Kenneth W. Stolle, R-Virginia Beach. Stolle's bill was endorsed by his Courts of Justice Committee yesterday and goes to the Senate floor for a vote today.

Efforts by Sen. Ken Cuccinelli, R-Fairfax, to make the bill more restrictive on condemnation uses generally failed but he succeeded in inserting language preventing eminent domain's use for creating jobs.

Times Dispatch: www.timesdispatch.com