Overcorrecting on eminent domain: Roanoke VA Times, 3/7/07


The [Virginia] General Assembly went too far in its attempt to rein in expansive powers to seize property after the U.S. Supreme Court's Kelo decision.

The General Assembly overreacted to a U.S. Supreme Court decision that unreasonably expanded eminent domain powers.

A bill on its way to Gov. Tim Kaine's desk goes too far in restricting those powers.

Eminent domain - taking a citizen's property, even with just compensation required - is one of the most intrusive powers granted to government by the U.S. Constitution (behind only imprisonment and execution).

The Constitution limited the exercise of this power to instances when private property was needed for a "public use." But it didn't take long for the definition of public use to broaden, and court decisions soon began using the phrase, "public purpose."

Eminent domain has been approved for private developments that might improve blighted areas or some other broad public benefit and not just projects such as roads, bridges or schools actually used by the public.

Then, in 2005, the U.S. Supreme Court took it even further, ruling in the infamous Kelo decision that government could take private property from unwilling sellers for the sole purpose of economic development.

The "public purpose" now included generating more tax revenue.

As former Justice Sandra Day O'Connor wrote in her impassioned dissent, "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded - i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public - in the process."

This year, the Virginia General Assembly passed a bill to rein in those powers - but it overcorrected, restricting the ability of local governments to resort to eminent domain in ways that genuinely serve a public good.

The bill strictly defines public uses as things such as parks, public buildings and infrastructure.

There is a provision to use eminent domain to eliminate blighted property, but only if the property being taken is blighted itself, not just in a blighted area.

Originally, the Senate passed a bill that would have allowed governments to seize property in an area where 85 percent of the property is blighted. The House rejected that amendment.

But to make some redevelopment projects work, it is occasionally necessary to assemble large tracts of land, which could necessitate taking scattered properties within a parcel that aren't necessarily blighted. If local governments are stripped of eminent domain authority, a lone holdout could stop an entire project in its tracks.

Gov. Kaine should amend the legislation to reflect the more reasonable Senate language.

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