A proposed constitutional amendment to protect Virginia property owners from the widespread abuse of eminent domain is once again before the General Assembly. The measure easily passed both legislative chambers last year, but according to Virginia law, the legislature must pass it again this year in the same form before it can appear on the November ballot for final voter approval.
Both House and Senate versions tighten the definition of "public use," which over the years has been misinterpreted by the courts to include the taking of property for totally private projects merely because they would generate more tax revenue. However, in its highly criticized Kelo v. New London decision, the U.S. Supreme Court said that, while local governments may use their powers of eminent domain to benefit private developers, states may also choose to provide more protection for individual property owners if they so desire. This proposed amendment to the Virginia Constitution would do just that.
It requires government bodies that seize private property under eminent domain to not only pay for the underlying land itself, but for the "lost access and lost profits" suffered by business owners as a result of the seizure. Since a private business is obviously worth more than the land it occupies, this provision protects Virginians' Fifth Amendment rights, which guarantee that "private property [shall not] be taken for public use without just compensation."
State agencies such as the Virginia Department of Transportation, local elected officials, and a coalition of chambers of commerce in Northern Virginia, among others, have started a lobbying campaign to oppose the second passage of the amendment, once again claiming that it would hamstring local jurisdictions' efforts to build public infrastructure. But the amendment does not eliminate eminent domain; it merely requires that private landowners be fairly reimbursed when their property is seized.
Many times in the past, certain individuals were unfairly forced to pay a wildly disproportionate share of the costs of public infrastructure that benefits everybody. The proposed constitutional amendment seeks to right that wrong and restore some fairness and equity to the process. The main argument against the amendment is that the costs of public projects will dramatically increase if government entities have to pay the true cost of any land taken via eminent domain. However, if accurate, this argument only underscores the fact that they have not been paying "just compensation," as the Bill of Rights so clearly requires.
