By CHELYEN DAVIS
RICHMOND--In the wake of the U.S. Supreme Court's ruling that localities can exercise eminent domain powers for economic development, Virginia lawmakers are planning to change Virginia's eminent domain laws.
The court's decision says that while localities may use eminent domain to take private property for public use, state legislatures may define public use.
So state officials want to tighten Virginia's law to specify that economic development is not a qualifying public use.
"If a state acts to affirmatively limit the powers of eminent domain, they can certainly do that," said House Speaker Bill Howell, R-Stafford County, who decried the court's ruling when it came down. "So the opportunity is certainly there to correct it."
Ruling in a Connecticut case, the Supreme Court had said that local governments can take private property--say, a house--and give it to another private entity--say, a developer, if the private entity plans to use the property for a purpose that will benefit more people. The scenario that opponents of the ruling envision is one in which a locality takes your house through eminent domain, gives the property to a developer who will build a mall, because the mall will generate more tax revenue and therefore qualifies as economic development.
The Virginia Housing Commission met on the subject last night in Falls Church to discuss the ruling.
Del. Bob Marshall, R-Prince William, had submitted legislation in the 2005 General Assembly session that would have essentially done what lawmakers want done now, by prohibiting the use of eminent domain for private profit.
That bill was tabled in the House Counties, Cities and Towns committee because legislators knew the Supreme Court ruling was coming up, and they wanted to wait and see how it played out.
Now Marshall is planning to resubmit his bill in the 2006 session.
"I saw this thing coming, and I wanted to do something," Marshall said. "Frankly, the Supreme Court's decision has gotten everyone's attention. [But] we can change it. That's the one saving grace. This is not like the abortion decision where the court pre-empted us from doing anything. I intend Virginia to be more restrictive to protect homeowners, small businessmen. This is the classic big dog eats small dog fight."
The Virginia Constitution currently states that the General Assembly will not pass any "law whereby private property shall be taken or damaged for public uses, without just compensation, the term 'public uses' to be defined by the General Assembly."
What Marshall would do is essentially define "public use" to exclude economic development.
Marshall said he's been hearing from a lot of constituents on the eminent domain issue. They stop him in the grocery store to talk about worries that their property could be taken away.
"This really cuts across a lot of people's interest and situation in society," Marshall said.
While the Housing Commission can only suggest policy, not make it, Marshall said they can generate publicity for the issue.
He wants as much input as possible to make his bill airtight, because he's worried developers will try to get it quashed.
"I'm going to have everybody look at this thing because obviously the other side is well-positioned, and I don't want any drafting error to even bring a crack of daylight for people to steal property in the name of economic development," Marshall said.
He added that developers have a powerful lobby and donate a lot of money to legislators. Data compiled by the Virginia Public Access Project shows that real estate developers and home builders have donated millions of dollars to Virginia candidates in recent years, and thousands of dollars in this election cycle. That includes more than $790,000 from the Homebuilders Association of Virginia. So far this year, the Homebuilders Association has donated almost $50,000 to candidates.
But while the home builders are a powerful lobby who successfully help defeat legislation they view as anti-development, the group hasn't taken a position on the eminent domain issue yet.
Pat O'Hare, of the Homebuilders Association, said his organization will be monitoring developments.
"We're keeping an open mind on that subject for the time being," he said, until the association finishes reviewing the court ruling and possible state law changes.
"Our primary interest is in protecting property rights, and then we'll just see how that plays out in the end as far as the industry itself goes," O'Hare added.
Other groups are getting into the debate as well. Some Charlottesville residents have founded a Web site, virginiapropertyrights .org, that includes a petition drive. Site founders plan to take petitions to Richmond during the 2006 session, but what they want is for the state to amend the constitution, not just pass a law that could be changed later.
Howell expects that in the end, the changes to state law will be pretty straightforward--that localities can't take property for private use.
And Marshall said it's Virginia's job to lead on the eminent domain issue.
"Virginia, which led the American Revolution, has a special responsibility to right this wrong," Marshall said. "I do not want citizens who are disadvantaged by their wealth or situation to have their property taken. It's like a pawn shop owner fencing stolen goods. It's wrong."
To reach CHELYEN DAVIS: