Question #1 – A Constitutional Amendment on Eminent Domain

As folks prepare to vote in the upcoming election this November (and for those already voting absentee) there have been a lot of inquiries about Question #1 – a Virginia Constitutional Amendment concerning Eminent Domain.

This Constitutional Amendment is a bad idea for Virginia and I will be voting “No”.  I also encourage all Virginians to reject this measure. 

Background – In 2005, the U.S. Supreme Court took up the case of Kelo v. New London involving the use of eminent domain to transfer land between private owners in order to further economic development. In a 5–4 decision, the Court held that “…the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.” 

It is important to note that in the majority opinion the Supreme Court stated that while the U.S. Constitution did not prohibit the action, there was nothing to prohibit the states from having more restrictive provisions in their state constitutions. 

In response to the Kelo decision the Virginia General Assembly passed a statute prohibiting exactly what happened in the Kelo case.  The Virginia statute restricted any eminent domain condemnation unless the property that is taken is to be owned by the government, a utility, or a public service corporation. 

Essentially, the kind of condemnation that took place in the Kelo case has been illegal in Virginia since 2007 – and continues to be illegal today.

Reasons to Vote No – The Amendment will place significant new restrictions on the government's power to take property through eminent domain. This may sound like a good idea at first, but the approach being taken here is redundant at best and will have significant, negative unintended consequences at worst. 

• The language is unnecessary. It purports to fix something in the State Constitution that has already been more appropriately addressed by Virginia Statute. The kind of eminent domain condemnation addressed in the Amendment has been illegal in Virginia since 2007 – and continues to be illegal today.  It is a solution in search of a problem.

• Special interests worked to add unnecessary language to the Amendment broadening damages landowners would receive to include “lost profits” and “lost access”.  Requiring the government to pay for not only the full market value of land, but for any affected party’s lost profits and lost access will massively run up the costs of infrastructure projects.  Imagine what that means for transit improvements along Columbia Pike or any Northern Virginia transportation project.  This Amendment will make roads and transit even harder to construct.

• The Virginia Association of Counties and many of Virginia's localities oppose the Amendment.  While they are primarily concerned about the skyrocketing costs it would cause for future projects, they are also worried that under the new language, if they even vote to shut down a street for a parade, they could be sued for "lost access" damages to private property. The terms and language used in the Amendment are so poorly defined that it will create an avalanche of litigation.

Question #1 – the Amendment to the Virginia Constitution on Eminent Domain – is a bad idea for the Commonwealth.  I urge you to vote NO.