The Cause of Liberty at Virginia's General Assembly Part 1

So much focus is given to events in Washington D.C., that it’s easy to lose sight of the fact that some of the best opportunities for increasing liberty are found in local politics.  The Virginia General Assembly recently adjourned its 2012 session (although they will go back to Richmond for a special budget session).  Since they have wrapped up their business for the year, I thought that this might be a good time to analyze the legislation that was considered, voted down, or passed.  Given the sheer volume of bills that went through the House of Delegates and the Senate I can’t hope to go through every single bill and write about how it helped or hurt the cause of liberty, but I can try to at least hit some highlights (and hopefully very few lowlights).  This will be the first in a series of posts on that topic and I hope that someone out there finds this helpful.

HB 5 Constitutional amendment; taking or damaging of private property for public use


Constitutional amendment (voter referendum); taking or damaging of private property; public use.  Provides for a referendum at the November 6, 2012, election to approve or reject an amendment that revises the prohibition on the enactment by the General Assembly of laws whereby private property may be taken or damaged without just compensation. The bill is identical to SB 240.

Full text of bill is available here (pdf).

Chief Patrons: Delegate Robert B. Bell (R) - House District 58; Senator Mark D. Obenshain (R) - Senate District 26.

Co-patrons: Delegate Kathy J. Byron (R) - House District 22; Delegate Mark L. Cole (R) - House District 88; Delegate Chris T. Head (R) - House District 17; Delegate M. Keith Hodges (R) - House District 98; Delegate Johnny S. Joannou (D) - House District 79; Delegate James P. "Jimmie" Massie, III (R) - House District 72; Delegate Rick L. Morris (R) - House District 64; Delegate John M. O'Bannon, III (R) - House District 73; Delegate Charles D. Poindexter (R) - House District 9; Delegate David I. Ramadan (R) - House District 87; Delegate Nick Rush (R) - House District 7; Delegate Edward T. Scott (R) - House District 30; Delegate Michael J. Webert (R) - House District 18.

Since the decision of the United States Supreme Court in the case of Kelo v. City of New London (2005), the power of eminent domain has been a target for state legislators.  Hoping to prevent another situation in which private homeowners can be forced to give up their homes so that the government can transfer that land to another private party, a number of states have taken steps to narrow the definition of “public use.”  Delegate Rob Bell’s HB 5 is another step on the road to full protection of property rights for Virginians.

Currently, under the Virginia Constitution, the power to define what is a “public use” in the context of an eminent domain taking of property resides with the General Assembly.  In the Virginia Code (§ 1-219.1), “public uses” is defined as follows:

he acquisition of property where: (i) the property is taken for the possession, ownership, occupation, and enjoyment of property by the public or a public corporation; (ii) the property is taken for construction, maintenance, or operation of public facilities by public corporations or by private entities provided that there is a written agreement with a public corporation providing for use of the facility by the public; (iii) the property is taken for the creation or functioning of any public service corporation, public service company, or railroad; (iv) the property is taken for the provision of any authorized utility service by a government utility corporation; (v) the property is taken for the elimination of blight provided that the property itself is a blighted property; or (vi) the property taken is in a redevelopment or conservation area and is abandoned or the acquisition is needed to clear title where one of the owners agrees to such acquisition or the acquisition is by agreement of all the owners.

Allowing takings for “the elimination of blight” has been one of the sticking points for property rights advocates since the Kelo decision nearly seven years ago.  The Virginia Code does better than some other states in giving a specific, limited definition of “blighted property” (and, in fact, the law that provided that definition was written by Rob Bell).  That definition, however, could be changed by subsequent sessions of the General Assembly.

This resolution would put those same protections of property rights in the Virginia Constitution itself.  Making a change to the Constitution is, of course, significantly more difficult than changing the Code.  A similar version of HB 5 was passed during the 2011 session of the General Assembly and since it has now passed in consecutive sessions it can be put to a referendum this November.  HB 5 would insert the following language into the Constitution:

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms "lost profits" and "lost access" are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, 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. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

 The question on the ballot will read:

"Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?"

 That this resolution passed the House of Delegates with overwhelming support (83-14) is an encouraging sign.  The roll call for that vote can be found here.  The 22-16 vote in the Senate was much closer, but even there Senators from both parties supported the measure (roll call vote found here).  Come this November Virginians will have an opportunity to enshrine strong property rights in their Constitution.  If they capitalize on that opportunity, the cause of liberty will have another small victory.

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