Va. amendment limiting eminent domain could affect public projects

Local officials warned Wednesday that some proposed public projects need to be reexamined or perhaps dropped following Virginia’s approval of a constitutional amendment that strengthens private property rights against government takings.

But backers hailed the newly adopted amendment a victory for landowners and limited government.

“It’s a big win for for the people of Virginia,” said Attorney General Ken Cuccinelli (R), who helped craft the amendment and pushed for its approval. “It’ll make it harder for government to take your property and give it to some developer. That’s an abuse of rights.”

By a margin of almost 3 to 1, Virginians agreed to limit the ability of the state and local governments to take property by exercising its right of eminent domain. The amendment changes the state’s Bill of Rights to say that local governments can seize property only for public uses, such as roads. It will forbid governments from taking land for economic revitalization if the primary purpose is private gain, job creation or increasing tax revenues.

The amendment would also require property owners to receive just compensation, but with a more expansive definition of the potential loss. That provision is what troubles some local officials. Instead of paying the fair market value of the property used to build a school, for example, a local government will also have to calculate a business’s “lost profits” or the value of “lost access” to the property.

Fairfax County Supervisor Catherine M. Hudgins (D-Hunter Mill) said she worries that such potential costs may prevent the county from moving forward with public-private partnerships on the sort of projects that are helping to transform Tysons Corner into an urban hub. The Fairfax County Chamber of Commerce also was wary of its effects.

By one reading, Fairfax County would have to compensate nearby Starbucks coffee shops for lost business caused by construction on Metro’s new Silver Line, Del. Scott A. Surovell (D-Mount Vernon) said. That’s a tremendous problem considering Virginia’s already massive backlog on transportation projects, he said.

“It’s potentially going to put some projects out of reach,” he said

The move to amend the constitution came from property-rights advocates and others who were outraged by a 2005 Supreme Court decision that gave governments broad discretion to seize private property. In Kelo v. City of New London, the court narrowly upheld the Connecticut city’s plan to force out 15 homeowners to redevelop its waterfront with a marina, upscale housing, office space and a research center for Pfizer.

Cuccinelli said the new amendment will not prevent governments from taking land to build a jail or a school, but it would block redevelopment projects.

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