Virginia Attorney General Endorses Constitutional Curbs On Eminent Domain

Delegates Rob Bell (R-58) and Johnny Joannou (D-79) have introduced identical resolutions (HJ 647 and HJ 693, respectively) calling for a constitutional amendment that would protect private property rights by circumscribing the powers of eminent domain now exercised by Virginia state and local governments. New constitutional language. The new language that would be added to the Virginia Constitution is: “That the General Assembly shall not pass any law whereby private property, the right to which is fundamental, shall be taken or damaged except for public use, and only upon payment of just compensation to the owner thereof for the property taken or damaged and for damages to the residue caused by the taking. No more private property may be taken than that which is necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken or damaged, business goodwill, relocation expenses, loss of access and other economic loss proximately caused by the taking or damaging. A taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; except for the authorized provision of a public service company, public service corporation, or railroad service or for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public without a presumption that it is.” Bell’s resolution is copatroned by Ben Cline and Bill Janis; Joannou’s resolution has a bipartisan list of 36 House copatrons, including Bell and Cline, and two Democratic copatrons in the state Senate. Support from Ken Cuccinelli The proposed amendment has the support of Virginia Attorney General Ken Cuccinelli, who told the Charlottesville Libertarian Examiner in an interview on January 11 that “you will see this session that we’re going to be pushing again on the property rights front for a constitutional amendment.” Cuccinelli noted some of the history of this legislative effort. “After a few years of work” following the U.S. Supreme Court’s Kelo decision, he said, “we managed to get a statute passed that’s a good statute, but it’s a law; it’s not in the constitution. This is a fundamental right and it should be enshrined in the constitution.” Citing Founders like George Mason and Patrick Henry, Cuccinelli self-deprecatingly pointed out that “people far more noteworthy than I voted against the U.S. Constitution because it didn’t protect these kinds of individual rights.” It is “terribly inappropriate,” he added, “that the Commonwealth of Virginia doesn’t protect them properly in its constitution.” In the General Assembly’s 2011 session, he repeated, “we’re going to have a make a push on that” issue. He predicted that this will “be a bipartisan effort.” (“It already is,” he said.) Four major issues Cuccinelli went on to explain that he and his colleagues have “been working for months on good language that will address four different issues.” The first issue is “properdamages to people whose property is taken.” The second is “requiring the government entities taking property to prove that it’s going to be put to a public use.” The third is limiting those entities “to take no more than is absolutely necessary for the achievement of the public use.” The fourth issue is “not treating such things that we typically refer to as the ‘Kelo elements’” – such as “economic development, increasing tax base, those kinds of things” — as rationale for a taking. The proposed amendments, Cuccinelli said, “eliminate those constitutionally as possibilities for legitimate – by ‘legitimate.’ I mean legally allowable by a court – explanations for a taking for a public use.” ((20 JAN 2011))























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