State Resolution Strengthens Property Owners’ Rights

February 27th, 2011 by Kim Lenz

RICHMOND – This land is my land — not your land.

Virginians’ private property rights would be more secure under a resolution passed by the General Assembly to restrict the government’s eminent domain powers. The resolution seeks to amend the Virginia Constitution to strengthen property right protections.

Gov. Bob McDonnell said passage of the resolution last week “is a step in the right direction and is a long time coming.”

“For too long, government and certain business interests colluded to make it possible to take the land of one landowner and give it to another, merely for the purpose of increasing tax revenue or employment or for private gain,” the governor said.

On Tuesday, the Senate voted 35-5 for House Joint Resolution 693. The following day, the House gave its final approval of the measure, 83-15. If the General Assembly passes the resolution again next year, voters will consider the constitutional amendment in a statewide referendum in 2012.

As a state legislator in 2007, McDonnell sponsored a proposal similar to HJ 693, but it failed.

“Every year since then, the General Assembly and special interests have attempted to chip away at those protections,” McDonnell said. “That is why there was a need to put these very fundamental rights in the Virginia Constitution and protect them from the political whims of future legislatures.”

Just two weeks earlier, the Senate had defeated a motion to consider HJ 693 on a party-line vote, with all 22 Democratic senators opposing the measure.

But last week in the Senate, 17 Democrats joined all 18 Republicans to approve the resolution. The reversal came after the measure was approved by one-vote margins by both a subcommittee of the Senate Privileges and Elections Committee and by the full committee.

HJ 693 was sponsored by Delegate Johnny Joannou, a Democrat from Portsmouth. It would add these words to the state Constitution:

• “The General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.”
• “No private property shall be damaged or taken for public use without just compensation to the owner thereof.”
• “No more private property may be taken than necessary to achieve the stated public use.”
• “Just compensation shall be no less than the value of the property taken, business goodwill and access lost, damages to the residue caused by the taking, and damages to adjacent property caused by the taking.”
• “A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services.”
• “In all other cases, 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 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.”

According to McDonnell, the resolution will ensure that “the cost of taking private property be borne by the public, not the individual property owner.”

“The public at large benefits from the property, and so it should bear the total cost, which includes compensating landowners for loss of profits when businesses are forced to move, and loss of access when property is taken which gave a landowner access to his land,” McDonnell said.

Before the legislative session began, the state’s Republican leadership said it would push for protecting the property rights of Virginians. This was a priority for McDonnell, Lt. Gov. Bill Bolling, Attorney General Ken Cuccinelli and the Senate and House Republicans, noted Sen. Thomas Norment Jr., R-Williamsburg.

Sen. Stephen Newman, R-Lynchburg, chairman of the Virginia Senate Republican Caucus, said the resolution’s passage was a major victory for all Virginians dedicated to ensuring private property rights.

“It is also an important victory for Senate Republicans,” Newman said. “Our persistence and commitment have paid off.”

Legislators see the proposed constitutional amendment as a corrective to the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London, Conn. In that case, the court ruled 5-4 that the power of eminent domain could be used to transfer land from one private owner to another to further economic development.

Sen. Emmett Hanger Jr., R- Mount Solon, said the constitutional protections would have the greatest impact on Virginia’s farming communities.

“Even before the Kelo decision made this a national issue, leaders in rural communities and agribusiness were advocating measures to limit eminent domain,” Hanger said. “The passage of this amendment is great news for rural Virginians.”

How They Voted
Here is how senators voted on Feb. 22 on HJ 693 [Constitutional amendment; taking or damaging of private property for public use (first reference)]. The Senate agreed to the resolution on a vote of 35 yeas and 5 nays.
YEAS – Barker, Blevins, Colgan, Deeds, Edwards, Hanger, Herring, Houck, Howell, Marsden, Marsh, Martin, McDougle, McEachin, McWaters, Miller, J.C., Newman, Norment, Northam, Obenshain, Petersen, Puckett, Puller, Quayle, Reynolds, Ruff, Saslaw, Smith, Stanley, Stosch, Stuart, Vogel, Wagner, Wampler, Watkins – 35.
NAYS – Locke, Lucas, Miller, Y.B., Ticer, Whipple – 5.

Here is how delegates voted on Feb. 23 on HJ 693. The House adopted the resolution on a vote of 83 yeas and 15 nays.
YEAS – Abbitt, Abbott, Albo, Alexander, Anderson, Armstrong, Athey, BaCote, Barlow, Bell, Richard P., Bell, Robert B., Bulova, Byron, Carrico, Cline, Cole, Comstock, Cosgrove, Cox, J.A., Cox, M.K., Crockett-Stark, Dance, Edmunds, Garrett, Gilbert, Greason, Habeeb, Howell, A.T., Hugo, Iaquinto, Ingram, Janis, Joannou, Johnson, Jones, Keam, Kilgore, Knight, Landes, LeMunyon, Lewis, Lingamfelter, Loupassi, Marshall, D.W., Marshall, R.G., Massie, May, McClellan, McQuinn, Merricks, Miller, J.H., Miller, P.J., Morefield, Morgan, Nutter, O’Bannon, Oder, Orrock, Peace, Phillips, Pogge, Poindexter, Pollard, Purkey, Putney, Robinson, Rust, Scott, E.T., Sherwood, Shuler, Spruill, Stolle, Tata, Torian, Tyler, Villanueva, Ward, Ware, O., Ware, R.L., Watts, Wilt, Wright, Mr. Speaker – 83.
NAYS –Brink, Carr, Ebbin, Englin, Filler-Corn, Herring, Hope, James, Kory, Morrissey, Plum, Scott, J.M., Sickles, Surovell, Toscano – 15.
NOT VOTING – Cleaveland – 1.
Delegate Cleaveland recorded as not voting. Intended to vote yea.
Delegate Dance recorded as yea. Intended to vote nay.

2 Responses to State Resolution Strengthens Property Owners’ Rights

  1. Anonymous

    February 28, 2011 at 1:21 pm

    Great job!
    Property rights are fundamental and should be protect by the state constitution.

  2. Anonymous

    February 28, 2011 at 3:11 pm

    This must mean also that banks may NOT pay real estate taxes and/or insurance on properties on which they hold mortgages, early
    and form “escrow” accounts that greatly amplify land owners’ payments (especially without adequate notice of same).
    In my case, Wells Fargo/Wachovia is refusing cash payments of my mortgage, until their “escrow” account is satisfied in full! Also without any notice, that scurulous company is demanding that their branches in Virginia may not accept any mortgage payments made there, as of February 19, 2011. Customers were not notified in that regard, and so their payments (after being told at their branch that payment there is unacceptable) will be called late, when the payment by money order as instructed by branches – or not.
    Before my second refused payment that I again brought in cash for February, 2011 could be called late, I was notified by special delivery mail, that I was twice on default, and foreclosure proceedings had begun. THAT just has to be illegal!

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