Va. Senate begins process to strengthen private-property rights

February 22, 2011

RICHMOND - The Democratic-led state Senate handed a victory to tea party activists and other conservatives in Virginia on Tuesday by agreeing to start the process of adding new protections for private property to the state constitution.

On a 35 to 5 vote, the Senate agreed that the state's constitution should include a prohibition against government seizing of property through eminent domain to spur economic development or job creation.

If the constitutional amendment were adopted, the government would be able to seize land only for public uses - such as roads and school buildings - and it would be required to fully compensate land owners.

Several years and additional debate will be needed before the language could be added to the constitution. To change the document, an amendment must pass the General Assembly twice, with an election in between. Then, it must be approved by voters through referendum.

Tuesday's passage was only the first time such a measure has emerged from the General Assembly.

But it was a symbolic victory for those who have pushed for stronger private property protections in Virginia, including Attorney General Ken T. Cuccinelli (R), who lobbied for the amendment.

The chamber's GOP minority claimed a "major victory" with the amendment's passage, as did the conservative Family Foundation. Tea party activists also pushed for the legislation, a priority in year in which the movement made only modest gains.

The move to amend the document emerged from reaction to a 2005 U.S. Supreme Court ruling that the U.S. Constitution does not bar governments from seizing property from one private owner and transferring it to another to spur economic development.

In response, Virginia passed a law in 2007 to bar such private takings. But Cuccinelli and others say the ability to hold private property is such an integral right that it should be protected in the state constitution.

"Private property rights are so fundamental to our founding, to everything this country was built on, that they're something that should be bigger than even the code," said Family Foundation Executive Director Victoria Cobb.

Advocates of the amendment also say the 2007 law exempted public utilities and the Virginia Department of Transportation - the primary agencies that seize private property in rural areas. In urban and suburban areas, condemnation is more often performed by local governments or housing authorities.

"Most of the abuse that occurs in rural areas comes from utilities or VDOT," said Sen. R. Creigh Deeds (D-Bath).

He cited the example of the construction of a power plant in his area in the late 1970s that gobbled up local farmland. "From my perspective, this amendment offers us the opportunity to have a real eminent domain debate. Because every condemnor is treated the same," he said.

The amendment was hotly contested by local governments, including Fairfax County, where officials argued that it would create new requirements for compensating people whose property is seized that would dramatically increase costs for government to do business.

They say it would also make it more difficult to use eminent domain to extend utilities to private companies that local governments are trying to lure to create new jobs.

Already, the law requires that government pay land owners fair market value, as determined by a court, when it seizes property. The amendment would require that government also pay for the loss of profits and land access.

The amendment adopted by the Senate is somewhat different than the one approved earlier in the legislative session by the GOP-led House of Delegates. The two chambers will have to work out their differences before Saturday's scheduled adjournment of the session.

But conservatives who have pushed the measure said getting it through the Senate was a success.

The Senate this year killed another tea party priority, a proposal to call a convention to amend the U.S. Constitution to give states more power in relation to Washington.

Some had also opposed Gov. Robert F. McDonnell's (R) plan to borrow close to $3 billion to improve state roads, but the General Assembly appears likely to approve the plan anyway, content that the debt spending is a good fiscal investment.

The General Assembly also took no action on McDonnell's proposal to privatize state-run liquor stores, which a tea party group backed.

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