The 2009 General Assembly session brought wins and losses for property rights in Virginia. It also brought a twist, with local governments using taxpayer money to lobby against their own residents’ property rights.
Virginia was one of many states to address property rights protections in the wake of the Supreme Court’s Kelo decision in 2005, which said governments may use eminent domain for a public “purpose” instead of for public “use” as stated in the Constitution.
Public purpose under the Kelo ruling includes taking property from one private party and giving it to another who would use the property in ways expected to generate more tax revenue.
Kelo Loopholes Closed
Virginia lawmakers in 2007 passed a statute closing the Kelo loopholes. Tertium Quids, a nonpartisan issue advocacy organization that promotes legislative efforts to reduce the size and cost of government in Virginia, lobbied for the bill and worked closely with its patrons, including state Sen. Ken Cuccinelli (R-Fairfax) and state Del. Johnny Joannou (D-Portsmouth).
The law states that in contrast to true public purposes—such as utilities, schools, and public buildings—government may not seize property if the primary purpose is private financial gain, an increase in the tax base or tax revenues, or an increase in jobs. The law also states no more property can be taken than would be necessary to achieve the stated public use.
Efforts to put the most important sections of the 2007 property rights law into a state constitutional amendment began shortly after the 2008 session ended, and lobbying by local governments and others opposed to such protections became fierce.
State Sen. Mark Obenshain (R–Harrisonburg) and others worked on draft amendment legislation, and an amendment with similar language won easy approval in the Republican-controlled House. But the House measure and Obenshain’s bill ran into strong opposition in the Democrat-held Senate.
Local governments, housing authorities, and their taxpayer-funded lobbyists led the opposition.
Municipalities, Utilities Oppose
In a packed committee meeting in February, lobbyists from the Virginia Municipal League, utility groups, and other state-regulated entities argued the proposed clarified property rights have no place in the state’s constitution, that property rights are already secure enough in Virginia, and courts should decide property rights matters on a case by case basis.
Obenshain said their actions didn’t match their words: “The opponents of placing these property rights protections in Virginia’s Constitution are many. Detractors of the bill will tell you that eminent domain abuse is a thing of the past, that no one wants to revive that abuse, and that this amendment is unnecessary. Since that time, we’ve seen numerous attempts to undermine that statutory language.”
In the state Senate’s powerful Privileges and Elections Committee, anti-property-rights lobbyists in February 2009 distributed to committee members a list of the groups opposed to any amendments on eminent domain. It read like a “who’s who” of Virginia’s local governments: the cities of Richmond, Norfolk, Chesapeake, Virginia Beach, Alexandria, and Petersburg, as well as Fairfax and Arlington Counties and the Virginia Association of Counties.
Close Committee Votes
Even with the opposition from local governments and regulated industries, the vote was close. The committee killed both amendments by 8-7 votes, with one rural Democrat crossing party lines and voting with the Republican minority.
The closeness of the votes gave Obenshain reason for hope.
“If this isn’t David versus Goliath, I don’t know what is,” Obenshain said. “For today, at least, the giant prevailed, but the little guy in this fight—the property owners—isn’t about to surrender. After all, we all know the story of that age-old encounter, and we know who wins in the end.”
Immediate Attempts to Weaken
The 2008 and 2009 General Assembly sessions brought several bills attempting to overturn the 2007 protections, and in 2009 Tertium Quids and other groups testified against a bill to expand the definition of “blight.”
The bill would have made it easier for local governments to take private property that sits unattended for six months or more, making no exceptions for vacation, seasonal, or secondary homes vacated temporarily by their owners. After testimony by property rights defenders, the bill was amended to address these concerns before being passed out of committee.
Krystal Slivinski ([email protected]) is vice president for government affairs at Tertium Quids.