October 19, 2012

Next month, Virginia voters are being asked to change language in the Virginia constitution that dates to George Mason. Taxpayers should be wary.

In 2005, the U.S. Supreme Court decided Kelo v. New London after the city of New London, Conn., condemned 15 holdout homes as part of a redevelopment of an area designated “economically distressed.” Justice John Paul Stevens held that condemning land for a broad redevelopment project was a valid “public use” under the Fifth Amendment of the U.S. Constitution. But he went on to say that there was nothing prohibiting state governments from enacting more restrictive provisions.

In 2007, the Virginia General Assembly did exactly that, enacting legislation that prohibited the state and local governments from doing what New London did. Today in Virginia, state and municipal officials cannot condemn property unless it is ultimately owned by the government, a utility or a public service corporation.

Notwithstanding that, Attorney General Ken Cuccinelli and two Republicans in the General Assembly running for attorney general have led a charge to place this statutory prohibition into Virginia’s 236 year-old Declaration of Rights. But they went further than the current law. Businesses were able to add language to the proposed amendment requiring taxpayers to compensate landowners not just for the value of condemned land but for lost profits and lost access. Taxpayers should be concerned.

First, the proposed amendment flunks the constitutional drafting test. The language in the Fifth Amendment is virtually identical to existing language in Article I of the Virginia constitution because James Madison borrowed the concept from George Mason, who had written it into the Declaration of Rights in 1776. It has stood virtually unchanged for 236 years.

Now, the amendment aims to delete George Mason’s 13 words, plus 11 added in a 1971 revision, and replace them with 199 words of detailed policy prescriptions. Putting such details into a constitution is tantamount to putting all of the electrical wiring for your house into your concrete foundation.

Second, the amendment is unnecessary. To repeat, prohibitions on Kelo-style condemnations are already the law of the land in Virginia.

Third, the addition of “lost profits” and “lost access” as condemnation damages is unfair because it gives businesses more rights than people. Two identical houses could be sitting right next to each other, but if one has a business in it and the other is a home, the homeowner would be compensated only for the value of the property while the business owner would get that plus more — even if an improved road made the business vastly more profitable.

Fourth, the amendment would explode Virginia’s transportation problem. Virginia’s unfunded 20-year transportation construction backlog exceeds $150 billion, or $18,750 per Virginian. Adding payments to businesses for lost profits and lost access to every road improvement would dramatically raise the cost of infrastructure improvements across the commonwealth. Imagine the increased cost to the Silver Line if taxpayers were required to pay each Starbucks, Panera and McDonald’s on Route 7 lost profits during the two years of construction, all while carrying out a public improvement that would substantially increase business and property values in perpetuity.

Fifth, local governments fear the consequences from adding lost-access damages. Every street festival or street closure to bury utilities could result in payments to businesses, even though these activities have broad public benefits.

The proponents of this amendment lose sight of an overarching point: When public improvements are carried out, the biggest beneficiaries are frequently landowners themselves. The trade-off for losing some land or temporarily losing some access is often significantly increased property values and profit potential — just ask the landowners next to Silver Line stations.

George Mason and James Madison knew how to draft timeless documents. Our Constitution should not become a dumping ground for special interests or leaders looking to chisel their favorite policies into the bedrock of our social compact.

Scott A. Surovell, D-Mount Vernon, is a member of the Virginia House of Delegates. Linda T. “Toddy” Puller, D-Fairfax, is a member of the Virginia Senate.