Eminent domain changes expected in General Assembly

Lynchburg and other localities are sounding the alarm over a constitutional amendment restricting eminent domain, but the city’s General Assembly delegation says fears are unfounded and the measure will likely pass its required second vote next year.

“Unless there’s a lot of controversy, we’re going to see it pass, I’m sure,” said Del. Kathy Byron, who’s been tapped to serve as chief deputy majority whip in the House of Delegate’s 2012 session.

“When you have a constitutional amendment that went through years of scrutiny to get where it is today, unless they’ve identified something new that is very, very harmful, I don’t anticipate it will fail,” said Byron, R-Campbell County.

The constitutional amendment — a response to the controversial 2005 case Kelo v. New London, Conn. — says Virginia governments may only assert eminent domain for a true public use.

It prohibits exercising eminent domain for a private entity, economic development, creating jobs or raising tax revenue. In addition, it would entitle property owners to compensation for lost access, lost profits and other damages.

Last year, the amendment passed a first reading of the General Assembly by a wide margin. It must pass a second time in 2012 before being put to a public referendum.

Lynchburg and other local governments are anxious about the amendment, saying it’s too broad and will jack up the cost of infrastructure projects and public events such as street fairs and parades.

In October, when City Council was setting its legislative agenda, City Manager Kimball Payne said if the amendment passes, property owners could sue for compensation over the Virginia 10 Miler, annual Christmas parade or other events.

Infrastructure projects such as sewer extensions could also run into roadblocks if they are interpreted as economic development projects, he said.

“It’s just poorly constructed,” Payne said of the amendment. “… This takes nothing away from our strong respect for property rights. It’s a bad amendment.”

Sen. Steven Newman, R-Lynchburg, said the city and its hired lobbyist have consistently opposed any effort to limit powers of eminent domain.

“They feel strongly about that, and I feel equally strongly that property rights are extremely important,” said Newman, who supports the amendment. “One of the most important powers a government has is the ability to take away your personal property.”

Newman added that implementation legislation would be passed as part of the amendment to define what qualifies for compensation. That legislation, which has not been written yet, will address the fears raised by local governments, he said.

“I do not anticipate that a temporary closure for parades or a temporary closure for a road repair will be determined to be (an eminent domain taking) in the implementation law,” Newman said. “… Any constitutional amendment has got to be taken with common sense. I think this one will.”

Trying to “scare the public on parades” is not a sound argument against the amendment, Newman added.

In its new legislative agenda, Lynchburg included more expansive language detailing its numerous complaints with the constitutional amendment. Many other Virginia localities also oppose the bill, including Spotsylvania County, Alexandria and Manassas.

The Virginia Municipal League and Virginia Association of Counties are fighting it as well.

Payne argued a constitutional amendment was unnecessary as private property rights are already adequately protected by post-Kelo laws Virginia put in place in 2007.

City Councilmen Michael Gillette and Turner Perrow said they were nervous about tinkering with the state constitution, noting Virginia does not want to become like referendum-riddled California and that mistakes are harder to undo once they are enshrined in the constitution.

Sen.-elect Tom Garrett, R-Louisa County, said he trusted Virginia’s judges to settle any disputes that may arise after the amendment is passed. While he understood why localities are concerned about being subjected to unreasonable claims for compensation, he said it was a “stretch” to think such claims would be upheld in court.

“I have some confidence in the courts in the commonwealth to look at precedent, which is what has been the reasonably compensating process under the constitution heretofore, and make logical conclusions,” he said.

Del. Scott Garrett, R-Lynchburg, said the implementation legislation will take care of any concerns and he does not see Lynchburg’s reservations coming to fruition.

“The Kelo case raised awareness that some bodies will take advantage of the privilege of eminent domain,” Del. Garrett said. “This constitutional amendment attempts to further clarify that government cannot and should not usurp private property rights for non-public uses.”