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Sun Gazette: Despite Local Opposition, Eminent-Domain Proposal Moves Forward Print


Created:  Monday, February 20, 2012

An amendment to Virginia's constitution that would redefine eminent domain and give extra protection to property owners has passed in the state Senate and House of Delegates, and, if the both houses approve each other's identical bills, the measure will be placed before voters this November.

The House of Delegates voted 80-18 on Feb. 13 to approve the measure, and the state Senate the same day gave the thumbs-up to an identically worded piece of legislation on a 23-17 tally. Both houses now are considering each other's resolutions.

The proposed amendment passed both houses of the General Assembly last year, and if it does again this year in identical form, with the 2011 election having occurred in between those votes, the amendment will appear on the Nov. 6 ballot.

A key provision of the amendment requires that owners of private property be compensated not only when their land is taken, but also for lost profits and access related to various governmental activities. The General Assembly would define what constitutes lost access and profits.

The amendment also reads, "a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property."

Local government officials around Northern Virginia, as well as members of the Virginia Municipal League and Virginia Association of Counties, have opposed the eminent-domain amendment, saying it might force localities to compensate private-property owners for disruptions in cases ranging from local festivals to law-enforcement activity.

In the state Senate, state Sen. Janet Howell (D-32nd) changed her position and voted with the opposition. Freshman Sens. Barbara Favola (D-31st) and Adam Ebbin (D-30th) voted against it.

Ebbin said state law already protects private property from eminent-domain abuses by government.

"It doesn't need to be in the constitution," Ebbin said of the proposed amendment.

"Lost profits shouldn't be part of eminent domain," he added.

Another opponent, Del. Patrick Hope (D-47th), said foes of the amendment still could make their case before the public votes on the proposal in November.

"The voters still have to decide," Hope said. "That does give us some time to mobilize people."

But Hope acknowledged that the public often pays little attention to constitutional amendments on the ballot.

Lt. Gov. Bill Bolling, who spoke to the Sun Gazette in a Feb. 16 interview at his Richmond office, said the legislation's intention is to protect property rights, which Virginians hold sacred.

Lawmakers' concerns about the amendment's definitions of lost access and profit have been addressed, Bolling said.

Bolling, who said he long has supported the need for constitutional protection of private-property rights, predicted the amendment would find smooth sailing at the polls in November.

"My hunch is it will be very positively received by the voters," he said.