1/10/2007

Eminent domain loopholes target of legislators: The Washington DC Times, 1/10/07

By Seth McLaughlin

Several Virginia lawmakers said yesterday the General Assembly must close loopholes in state law that leaves property owners vulnerable to governments taking their property under eminent-domain laws.

"Basically, we have no protection, and [property ownership] is one of the most foundational principles upon which the republic is built," said Sen. Kenneth T. Cuccinelli II, Fairfax County Republican.

Under eminent-domain laws, governments have long had the power to seize property for such public uses as new highways or public schools, in return for what they determine to be a fair payment.

However, many states strengthened their laws after the U.S. Supreme Court in 2005 brought eminent domain to national attention with its ruling in Kelo v. City of New London, Conn.

The high court ruled 5-4 that government - typically, cities and counties - can take property from its owner and give it to a private developer who promises to use it to generate more jobs and tax revenue.

Mr. Cuccinelli, Attorney General Bob McDonnell, and Delegate Johnny S. Joannou, Portsmouth Democrat, are among those pushing eminent-domain reform, an issue considered second only to transportation this session.

The lawmakers each have different proposals for constitutional amendments that include language to keep governments from taking private property from owners, then giving it to a private interest for economic development or to increase tax revenues.

"I just think property rights have to be protected in statute," Mr. McDonnell said. "It's imperative that we get it done.... There is a broad consensus that the Kelo-type taking should not be permitted in Virginia, and we should find the right words to do that."

Though most people agree that eminent domain should be used sparingly, not everybody agrees that state law should be amended.

"Virginia law does not require a wholesale change," said Delegate Brian J. Moran, Alexandria Democrat. "We have a long tradition of respecting property rights in Virginia."

Kevin Hall, spokesman for Gov. Timothy M. Kaine, a Democrat, said the governor agrees.

Mr. Kaine "is of the camp that [eminent domain] isn't a big deal because we are so conservative in its use typically. Beyond that, we would want to look at the specifics of legislation that emerge from the legislature."

Craig Shirley, a Republican strategist, last month said Republicans have an "enormous opportunity" to remind people of true "populist conservatism" by amending the constitution in reaction to the Kelo ruling.

"In the minds of most populists, Kelo is nothing more than endorsement of greedy developers working with corrupt politicians to take property away from regular people," he said.

The renewed efforts of state lawmakers will mark the second time in as many years the General Assembly considers tightening the laws.

The lawmakers ended the 2006 legislative session without passing legislation, though many Democrats and Republicans agreed government's property-taking powers should be curbed.

The Virginia Institute for Public Policy, a nonprofit organization, released a report last month that criticized lawmakers for not doing something sooner, and highlighted how the abuses in Kelo are not new in Virginia.

In 2003, the Virginia Supreme Court allowed the city of Hampton to take Frank and Dora Ottofaro's property and give 82 percent of the Ottofaros' property to a private developer.

In 2005, the Norfolk Redevelopment and Housing Authority attempted to take a small-business owner's property to build a parking lot for the Coca-Cola Co., which owned the adjacent property.

"As the General Assembly has expanded the power of eminent domain, it has failed to put protections in the plan to protect the people," said attorney Jeremy P. Hopkins, a consultant on the report.

Mr. Hopkins said state lawmakers have shielded themselves from criticism by doling out eminent-domain powers to cities and towns, which in turn have established unelected bodies such as housing authorities that take homes, farms and businesses under the name of "public use" or "blighted property."

"What's happened is if they can delegate the power to another body, then they don't have to approve the taking or accept responsibility for unpopular takings," Mr. Hopkins said. "It is a way to avoid accountability entirely for takings people's homes and properties."

John Taylor, president of the Virginia Institute for Public Policy, said politics have made some lawmakers reluctant to act.

"I made the assumption that Virginia was a conservative state, but it is not," he said. "Virginia is the most stereotypical example of a good old boy system I have ever seen. Under the ... system, the state government is reduced to being a financial intermediary between people who produce wealth on one side and people who want access to wealth on the other side, who also happen to be large donors to political campaigns."


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