The Supreme Court's recent decision in Kelo v. City of New London -- that localities may use eminent domain to transfer private property to private developers for construction that will yield more in taxes -- has significant repercussions for Northern Virginia.
Many areas, such as Fairfax and Arlington counties, are running out of land for new construction. When that happens, developers now can cite the Kelo v. City of New London precedent to claim working-class neighborhoods. Think it's tough to find affordable housing in Northern Virginia? Imagine what it will be like if the modest homes remaining are razed to make way for more strip malls.
Owners of lower-valued houses aren't the only ones who could be affected. The court's reasoning in Kelo is that local governments are justified in seizing private property as long as replacement structures can be expected to produce higher tax revenue (supposedly satisfying the "public use" requirement of the Fifth Amendment). Swank condominium buildings could be endangered as well as more modest dwellings if a local government deems that conversion to another use would be better for its tax base.
Even when tax revenue isn't the issue, the court's decision may embolden officials to claim eminent domain too freely. Alexandria's city planners, for example, have had their eye on private waterfront property along the Strand, south of King Street in Old Town. For what great "public use"? The relocation of the Mount Vernon bike trail to the waterfront from the few blocks where it diverts to Union Street. That hardly qualifies as an overriding public benefit -- especially considering the property owners who would be adversely effected by the land seizure.
Alexandria officials specifically have expressed interest in acquiring the space now occupied by the Old Dominion Boat Club, which represents private property owned by 700 individuals. The club's presence doesn't prevent bicyclists and pedestrians from enjoying the view of the Potomac: The Mount Vernon trail has plenty of river views, and Alexandria has several waterfront parks. So why trample the rights of many when the benefit to other citizens would be minimal?
The Supreme Court evidently foresaw the potential for abuse in Kelo v. City of New London -- and suggested a remedy. "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power," the justices wrote. "Indeed, many states already impose 'public use' requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised." When it convenes next year, Virginia's legislature should waste no time in setting such new limits. It will be interesting to see how Northern Virginia's Democratic representatives behave. If their reflexive veneration of high tax revenue prevails, they will side with developers and oppose new restrictions. But that would be a betrayal of their constituents in the working-class neighborhoods, where homes could to be wiped out by development. How will Democrats be able to maintain their pose as champions of the little guy if they don't protect the little guy's property?
Republicans generally defend property rights, so GOP lawmakers should have few qualms about limiting the ramifications of Kelo v. City of New London. Unless they do, "the specter of condemnation hangs over all property," as Justice Sandra Day O'Connor said in dissent. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
With such a bizarre interpretation of the takings clause now in force, Virginia lawmakers should act expeditiously to protect the private property of the commonwealth's citizens.