Tracking eminent domain: Roanoke VA Times, 10/20/06

Norfolk Southern could use eminent domain to seize land for its proposed shipping yard

By Greg Esposito

Since announcing plans in June to build an $18 million intermodal shipping yard in Elliston, Norfolk Southern has faced criticism from local and state politicians and questions from concerned homeowners whose land makes up the proposed site.

The 50-acre site would include land owned by 10 families along U.S. 460 on the banks of the Roanoke River on the far eastern end of Montgomery County. While landowners have said Norfolk Southern has made it clear that it will use eminent domain to seize land if necessary, Gov. Tim Kaine and Del. David Nutter, R-Christiansburg, have spoken out against such a tactic.

With $12.8 million in state funds earmarked to go toward the site, Pierce Homer, Virginia's secretary of transportation, said the port won't receive any state funding unless the company convinces the state that no other site will work.

[The Roanoke Times interviewed Irene Leach for insights into the controversy.] Irene Leach is an associate professor of consumer studies at Virginia Tech and president of the Consumer Federation of America. She's followed several cases involving eminent domain both inside and outside Virginia during her 23 years at Virginia Tech. She lives in Ironto, about four miles from the proposed site.

Q: Most people think of eminent domain as something that the government can do. How is it that some private companies have the power to seize private property?

A: Companies, like railroads ... because of the needs that they serve, have historically been given this right.

Q: Has the definition of public use changed over the years? Can you shed some light on how it's defined?

A: Public use has over the years been looked at in a lot of different ways, and it's been the focus of a lot of research over time ... in making sure that it is a broad benefit. Over time that has been allowed to mean a broad variety of things. Part of where it's been looked at - the one that probably is in the front of people's minds right now --would be the Kelo decision up north where people's homes were taken so there could be something brought into the area that would bring in more money. There was a decision made that it would be better for the whole if those people lost their homes so that they could put in big high-rise hotels. The most recent eminent domain that I can think of in our area would be when they [Norfolk Southern] brought in the trash train [in 1992 through parts of Roanoke and Montgomery counties].

Q: Do different states interpret eminent domain differently? Where does Virginia fall in the spectrum?

A: That's where a lot of the action is right now, in how states interpret what that public use is. And Virginia, just like many of the other states, continues to have discussions about what it ought to be, how it should be done, and you look at the bills that have gone in the legislature the last 10 years or so. Each different year there's a number of different issues about eminent domain. I think it's one of those things where there's a continuing discussion and a continuing refinement ... and the federal government continues to look at it as well, so it's kind of a moving target in a way because we need it to be interpreted in so many different ways. Yet, the underlying piece is still the fact that we do allow some entities the right to condemn private property.

Q: From what you know about the situation in Eastern Montgomery County, is there any question that Norfolk Southern will be able to claim eminent domain if it comes down to that?

A: I'm afraid that they are going to be able to do that. The state has a goal of trying to get trucks off of Interstate 81, and I think that people beyond this area think that it is something that would be helpful for everyone. And so I'm very much afraid that the people of Eastern Montgomery County are going to have very little control over this when it really comes down to it.

Q: How is it determined if something like the intermodal port will be for the public good?

A: The courts make that decision if people are not willing to negotiate and agree to do that. But again, they'd be looking at the benefit of people in the broad sense, not just the people of the county or even the state.

Roanoke VA Times: http://www.roanoke.com