Lawmakers take up fight against eminent domain: Lynchburg VA News & Advance, 1/29/07

By Conor Reilly

Calling it an “egregious abuse of court authority,” a local lawmaker is joining others in the General Assembly this year to protect Virginia property rights he says were stripped away by a 2005 U.S. Supreme Court ruling.

But Lynchburg officials say the proposed laws are unnecessary and could eliminate an important tool used locally to target blighted properties.

Legislators are responding to the Court’s 2005 Kelo v. New London decision allowing the economically depressed Connecticut town to use eminent domain to take private homes and give the land to a private company that would generate more jobs and more tax revenue for the locality.

“What the court has done is, in effect, punted the protection of property rights to the states,” Del. Ben Cline, R-Rockbridge, said at a news conference Monday. “Well, we need to carry that ball down the field, not drop the ball, and make sure that we protect property rights for our citizens.”

Cline, along with Del. Rob Bell, R-Albemarle, has sponsored legislation that would significantly narrow Virginia localities’ ability to take property through eminent domain. The proposed laws would permit localities to use eminent domain only to build things such as roads, power lines or parks, or if a particular property was “an immediate threat to public health and safety.”

“We think that with these limitations, we will rein in eminent domain to what most Virginians think it already is,” Bell said at the news conference.

Bell’s House Bill 2954 unanimously passed a subcommittee Monday, and Cline’s version of the bill likely will be considered later this week. Last year, both the House and the Senate passed similar legislation before talks broke down toward the end of the session.

Lynchburg City Attorney Walter Erwin said Monday that the legislation is an overreaction to the Supreme Court decision.

The Kelo decision, he said, “was in a sense a state’s rights case.”

“The Supreme Court basically said that individual states can have a lot of leeway in defining what constitutes a legitimate public purpose (for eminent domain),” Erwin said.

Connecticut decided that taking property for economic development purposes was appropriate. But under Virginia law, he said, courts have consistently said that’s not appropriate.

“In Virginia, it’s certainly an emotional subject,” Erwin said. “But I’m not aware of any instance where this has ever happened in Virginia, or where it’s even being contemplated.”

Lynchburg and its housing authority are concerned that if the bills pass, cities across the state will lose the ability to use the “spot blight” program, designed to get rundown properties out of the hands of irresponsible owners and into the hands of responsible ones.

The city began using its program in 1999 and has since dealt with 60 blighted properties in and around downtown Lynchburg. The city had to resort to eminent domain in seven of those cases.

Spot blight, Erwin said, raised the assessed values of those 60 properties by $1 million.

“The city would be very concerned about bills that will take away the spot blight powers, because I don’t think there are any instances where local governments have abused these spot blight powers,” he said.

Cline said that in some cases, he was concerned with the way Lynchburg’s spot blight program has been used.

“I think that some of the properties (taken under spot blight) may be less related to health and safety and more related to tax bases and higher revenues,” he said.

Erwin said eminent domain is important because it can help preserve the historic character of the city.

Localities can already take and demolish homes when safety is a factor. But spot blight allows the city to intervene before the home must be razed.

Losing the threat of eminent domain could mean losing the last available method localities have to compel a property owner to take care of their property.

“Our goal isn’t to take properties,” he said. “Our goal is to get the owner’s attention.”

Erwin said many Lynchburg residents want the city to be able to control blight. A dilapidated property pushes down property values and depresses entire neighborhoods.

“Why should (property owners’) rights be so much more protected at the expense of everybody else in the neighborhood?” Erwin said. “Property ownership is a two-way street.”

But for Cline, the Kelo decision eroded and weakened property rights and misinterpreted protections guaranteed in the Constitution. The Constitution, he said, dictates pretty clearly how the power of eminent domain should be used.

“With respect to eminent domain, it was important enough for our Founding Fathers to include in our Constitution and we should respect that,” Cline said.

Lynchburg VA News & Advance: http://www.newsadvance.com