Eminent domain could affect ‘about 90 percent of Virginians’


Edd Jennings has to keep an eye on the antiques on his mantle. Vibrations from an Interstate 77 bridge that crosses his property continually move them closer to the edge.

Jennings, a Wythe County beef producer, looks at once-productive alfalfa fields on his farm that are no longer useable due to sinkholes a local utility company created when it installed a natural gas pipeline. He also worries about the possibility of that line leaking into the New River, which borders his property.
And he wonders if eminent domain will knock on his door once again.

Jennings was 5 years old the first time he encountered the ability of government agencies to acquire private property for public use.

"I listened as highway agents explained that the interstate bridge would tower over both houses on my family’s farm and split the property in half," he said. "The highway agents said that the road would only enhance the farm, but because they were nice people, they intended to pay $1,000 anyway. When this offer was refused, the state came up with a formal appraisal that valued our riverfront property at $50 per acre."

Since then, the farm has been affected by eminent domain nine more times. From minor projects like widening roads to major ones like putting up a 150,000-volt power line, Jennings has lost 4 acres, the main road to the back of his farm and the beauty of his land. The projects also have had a negative effect on his property value.

"The 4 acres in the heart of these alfalfa fields I lost created erosion problems that have affected other acreage," he said. "When you disturb the subsoil like that, it may take 100 years to become usable again."

Though Jennings’ case is an extreme example of how landowners can be affected by eminent domain, many other owners are finding themselves in his shoes every day.

But since the U.S. Supreme Court ruling in the Kelo, et al., v. City of New London, Conn., et al. case in 2005, more people have joined landowners in the fight for eminent domain reform. The Kelo case set a legal precedent by ruling that Connecticut’s constitution does not prevent local governments and other condemning authorities from taking private property for the purpose of developing that land and creating a higher tax base.

"Eminent domain is a very important issue, because it affects three types of landowners: homeowners, farmers and business owners. That means about 90 percent of Virginians are affected by eminent domain," said attorney Joe Waldo of the Norfolk law firm Waldo & Lyle, which specializes in eminent domain cases.

"Most people don’t realize how unfair the system is," Waldo added. "Virginia has some of the harshest laws. Our system encourages litigation, not mediation and settlement."

Jennings currently is fighting for just compensation for some of his property damages, and Waldo encourages other landowners affected by eminent domain to stand up for their rights if they feel they are not getting a fair deal.

"So many times landowners go along with eminent domain at first," Waldo said. "But then they see how unfair it can be after the fact, and they begin to fight.

"And when the landowners are right, they win."

Farm bureau members continue to see reform as top priority

Because the Virginia Farm Bureau Federation works on behalf of members whose livelihoods are tied to their land, eminent domain issues have long held the organization’s interest.

Martha Moore, VFBF director of governmental relations, noted that reform of Virginia’s eminent domain laws is an issue about which members are most willing to contact their legislators.

The U.S. Supreme Court decision in the 2005 Kelo et al. v. City of New London, Conn., et al. case spurred the VFBF and other state Farm Bureaus nationwide into action to ensure that farmers and other citizens are treated fairly.

Topping Farm Bureau’s list is a call to amend Virginia’s constitution so that it parallels state eminent domain laws enacted in 2007, to close loopholes that were a result of the Kelo decision.

Farm Bureau also supports legislation requiring employees or subcontractors of a condemning entity to notify landowners of their regular maintenance activities on seized property and to compensate landowners for any damage to crops, land, livestock or equipment that result from those activities.

The organization had legislation prepared to be introduced in this year’s General Assembly but opted instead to meet with utility companies over the next year to develop nonlegislative solutions to members’ concerns.

"Our goal is still to resolve our members’ problems," Moore said, "and we look forward to a productive dialogue with entities that have condemnation authority and have to perform maintenance on their easements and on condemned property."

Other issues on Farm Bureau members’ wish list include compensation for business losses resulting from condemnation; a more uniform procedure for the related appraisal process; and recovery of attorney fees. "We’re addressing situations into which landowners are being forced because their property is wanted," Moore explained. "They simply want their rights respected and preserved."

Kelo decision spurred changes in 42 states

It’s been almost three years since a U.S. Supreme Court decision that made people realize their American dreams literally could be snatched right out from under them.

In Kelo et al. v. City of New London, Conn., et al., the Supreme Court allowed the city of New London, Conn., to invoke using eminent domain—the taking of private property for public use. In that June 23, 2005, decision, the court ruled that the governmental taking of property from a private owner to give to another is acceptable if the state’s laws allow economic development as permissible "public use" under the Fifth Amendment.

Susette Kelo and eight other private property owners were forced to move out of their homes so the city could sell their 15 lots, along with 100 others, to a commercial developer who promised to redevelop the area. Kelo had received an eviction notice the day before Thanksgiving 2000 telling her the city was taking her little pink cottage and the land on which it was built. She refused to sell, but almost five years later the Supreme Court told her she didn’t have a choice.

"Prior to Kelo, people didn’t realize this kind of brazen, carte blanch takings were happening," said Steven Anderson, director of finance and administration for the Institute for Justice, a civil liberties law firm that represented Kelo and the other homeowners involved in the case. "Once this happened, there has been a much greater awareness." Anderson also serves as director of the IJ’s Castle Coalition, which represents citizens fighting eminent domain abuse.

The coalition has given Virginia a grade of B+ for eminent domain reform in its 50 State Report Card: Tracking Eminent Domain Reform Legislation Since Kelo report released last summer.

The Kelo decision unleashed a wave of eminent domain takings. In the first year after Kelo, more than 5,700 properties nationwide were threatened by or taken with eminent domain for private development, according to the IJ. There were more than 10,000 such instances in the five years before the decision.

However, Anderson said, after the initial flood, the public began fighting for reforms. "The good news is that (Kelo) unleashed an unprecedented backlash from the public," he said.

Since the summer of 2005, 42 states have passed laws increasing protections against eminent domain takings, and some states have even passed constitutional amendments protecting private property rights. The Virginia Farm Bureau Federation is working with other organizations to get a constitutional amendment passed in Virginia.

"Our members believe that protecting property rights is a fundamental right that needs to be constitutionally protected," said Martha Moore, VFBF director of governmental relations. "Because a farmer’s assets are mostly land-based, they feel constantly under threat from eminent domain."

Tara Bowman, who operates a livestock hauling and brokering business with her husband in Shenandoah County, concurred. "I am very worried about eminent domain, very worried," she said. "This is not what our founding fathers intended at all."
Right now Virginia has a law that says the government cannot take private property unless it’s for a specific public use such as utility pipelines or roads. The legislation says that property can be taken only when the public interest dominates the private gain and the primary purpose of taking the property is not for any private financial gain or benefit or an increase in employment.

"Virginia’s constitution allows the General Assembly to define public use, so for complete reform, a constitutional amendment is required," the Castle Coalition notes in its 50 State Report Card.

How does a va. constitutional amendment get put in place?

To amend the Constitution of Virginia, a state senator and/or delegate must introduce a bill, in the form of a resolution, with the wording of the amendment. The bill is then discussed and voted on in a committee, sometimes in a subcommittee, and on the Senate or House of Delegates floor.

If the bill is passed by one house, it goes to the other house and goes through the same process. The bill must pass by a majority.

After the next election, the bill must go through the same process the following year and be approved in exactly the same form. Also in the second year, a separate bill is introduced that lists word-for-word what will appear on the ballot.

After this process, the amendment goes on the November ballot, where it must be approved by a majority of voters.

The Virginia Farm Bureau Federation supports enacting a constitutional amendment paralleling eminent domain laws enacted in 2007 to close loopholes in Virginia’s laws. That legislation defined "public use" with regard to using eminent domain. The current Constitution of Virginia became effective July 1, 1971. It is the ninth constitution that the commonwealth has had since its founding and was the work of a revision commission chaired by University of Virginia law professor A. E. Dick Howard.

The current constitution retains the language of George Mason’s original Virginia Declaration of Rights, which served as the model for the Bill of Rights ultimately incorporated into the U.S. Constitution.

The Virginia constitution provides the architecture for Virginia’s government and is the supreme law that governs all other states laws and leaves to citizens of the commonwealth the ultimate decision of whether it should be amended.

Since 2000, the state constitution has been amended to secure the right of people to hunt and fish; to ensure that lottery proceeds are spent on public education; and to define the specific union that the state recognizes as a marriage, among other reasons.

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