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Localities challenge state amendment
Local governments oppose constitutional amendment

Date published: 11/30/2011

Virginia's local governments are gearing up for a fight in the 2012 session over limits on the use of eminent domain.

Both the Virginia Municipal League, which represents cities, and the Virginia Association of Counties have recently approved 2012 legislative agendas that oppose a constitutional amendment to curtail government use of eminent domain powers.

The amendment passed once already, in the 2011 session. Under state law, it would have to pass again in the 2012 session, and then go to the ballot for voters next November.

Eminent domain is a concept under which government may take--with compensation--private land for public use. It's the definition of "public use" that often raises questions.

The proposed amendment says that governments can take private property through eminent domain only for a truly public use, and not for the benefit of another private entity, nor for economic development, increasing tax revenue or increasing jobs.

Local government officials won't find an ally in Virginia's attorney general.

That's because Ken Cuccinelli is a strong supporter of the amendment, and says those localities are the very entities the amendment is intended to limit. Local governments are the greatest users of eminent domain laws, he said.

In an interview, Cuccinelli said local governments "despise the notion of individual rights that may ever impede anything they want to do.

"They're exactly the ones that need to be reined in," he added.

The controversy stems from a U.S. Supreme Court case from 2005, known as the Kelo case, in which the court ruled a locality could take private property for economic development purposes.

Virginia already passed a separate law, changing state statutes so that a Kelo-like situation would be unlikely to be repeated here. But a constitutional amendment is binding, so advocates of property and individual rights have been pushing for the amendment to pass.

What local governments dislike about the amendment is that it also contains language about compensation for "lost profits and lost access."

Local government officials fear that could result in them having to pay business owners every time they close a city street for a festival, or any time they build a bypass road that might result in lost business for the retailers along the old road. They also say "economic development" can include the building of public roads or other public needs.

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