Property Rights Update in the Old Dominion
The Virginia Land Rights Coalition Bulletin/News Article
There is cause for concern about property rights abuses in the Old Dominion. The attitudes of Virginia’s elected officials, especially in rural areas, have been generally perceived as politically ‘conservative’, yet at both state and municipal levels, there has been a recent, marked shift toward greater tax-and-spend policies, and a reluctance by some legislators to counter and correct abuses involving local and state government intervention in the lives and property rights of citizens.
John Taylor, president of the Virginia Institute for Public Policy (http://www.virginiainstitute.org/) stated in a recent interview, “The answer I get from Virginia legislators is: our goal is to allocate more money and grow the government.” He indicated those General Assembly members who this year pushed through Governor Warner’s massive $1.4 billion tax increase did not want to get “bogged down in details of accountability.” VIPP hosts a monthly meeting in Richmond where a variety of guest speakers address property rights, taxation and education issues. At a recent meeting, several guests indicated Virginia was near the “bottom of the barrel” when it comes to protection of private land owner’s rights. VIPP will soon publish a paper on takings and property rights in Virginia. Written by attorney Donald Kochan, currently an Olin Foundation Research Fellow at the University of Virginia, the paper should be a valuable guide to those seeking to revise eminent domain statutes.
Waldo and Lyle, P.C. (http://www.vaemdomain.com/index.html) is a Norfolk law firm which “limits its practice to eminent domain and condemnation law…dedicated to protecting the rights of private property holders.” In a recent conversation with Jeremy Hopkins, an attorney with the firm, he noted the rights of property owners “are thoroughly abused in Virginia.” The website contains a number of informative articles about property rights.
Hopkins pointed out several critical areas in need of statutory action, but that there is “apathy in the legislature regarding property rights.” One area is the ‘quick take’ power being exercised by government agencies such as VDOT and public utilities. Under ‘quick take’, the agency may file a notice of condemnation, deposit what their appraiser determines to be a fair value for the land with the local court, and immediately take title to the property. The landowner, no longer in possession, is then burdened with challenging the government’s “fair market” appraisal if he believes it is not fair.
In addition, Hopkins notes the costs of challenging government appraisals as well as proving damages to property most likely will include expenses for engineers, private appraisers and/or real estate brokers, as well as legal fees. In a recent case, Duke Power offered an elderly woman $800 to run a gas pipeline through her lakefront property. The offer was grossly inadequate and the court agreed, awarding her $28,000.
But the Virginia legal system does not allow the landowner to recover the thousands of dollars in appraisal, engineering or legal fees which come out of the landowner’s pocket, thus, in this case as with many others, leaving the landowner without just compensation for a taking. Government agencies and utilities are well aware of this powerful leverage, essentially a club held over landowner’s heads, and have little incentive to make a fair offer at the start, which would eliminate much of the expensive litigation in condemnation cases.
But even worse, Hopkins says, are the lobbyists hired by agencies such as VDOT, paid by the Virginia taxpayers, who lobby to maintain statutes which “strip property owners of rights.” Hopkins went on to say, “VDOT is the worst offender in Virginia, by far.”
In the House of Delegates, there are members who are seeking to rein in abuses of property rights. One of them is Thelma Drake (R. 87th District-Norfolk). Drake introduced H.B.822, a bill seeking “to define public purpose so that the property owner knows why. The goal of our work group is to develop this criteria and a process to be used so everyone understands and can clearly see if it is a public use.”
“The General Assembly frowns on eminent domain, but most of them don’t know what’s going on out here,” she said. “How many legislators have had their home taken? You’ve probably heard about Norfolk trying to shut down a junkyard and then sell the land to Coca-cola. I think you would agree what we have defined as public purpose is a pretty loosey-goosey thing.”
Delegate Drake and others in the House want to “clearly define when we are allowed to use eminent domain.” “Too often,” she wrote in a recent article, “in Virginia and around the nation, property is taken from one individual only to convey it to another private owner in the name of economic development.”
Unfortunately, some local governments and public agencies don’t want it defined because the redevelopment of “blighted areas” at the expense of property owners is seen as a way to increase tax receipts.
The Castle Coalition’s overview (http://www.castlecoalition.org/report/reportStates/Virginia.shtml) of eminent domain reports: “Virginia regularly uses eminent domain to transfer land to private developers and also uses the threat of eminent domain to force people to sell. In the past few years, there have been at least 58 condemnations for private parties (almost all for one project in Hampton), threatened condemnations, and properties currently under threat of condemnation for other private parties. Apparently, Virginia bureaucrats have short memories. Virginia has a history of spectacular failures in redevelopment projects.”
One Virginia legislator stated: “It’s just outrageous what they think they can get away with.”
A series of work sessions will be held this summer by the Virginia Housing Commission. Drake is the Chair of the commission. Additional information on meeting schedules may be found at their website: http://dls.state.va.us/HousComm.HTM
In a recent decision by Virginia’s supreme Court, Ottofaro v. City of Hampton, 574 S.E.2d 235, (2003), the city of Hampton’s definition of taking private property for “public use” was upheld despite the fact that the Development Authority was simply acting as a front for private interests. The Ottofaro land was condemned and handed over to a retail shopping center.
Elizabeth Moser, with the Institute for Justice (http://www.ij.org/index.shtml) stated, “When one thinks of ‘public use,’ one thinks of roads, hospitals, schools, and parks…Virginia joins the growing list of states that allow the abuse of eminent domain to continue. Governments cannot exercise the eminent domain power to determine what use of property is more valuable to the public, that of a homeowner or that of a shopping center. This abuse of eminent domain borders on theft and ruins communities by uprooting residents without a pressing public necessity. Eminent domain abuse of the kind allowed by the Virginia supreme Court also runs counter to American principles of free markets and limited government.”
With the combined efforts of elected representatives like Thelma Drake, property rights advocates and organizations, and law firms such as Waldo & Lyle, eminent domain abuses in Virginia will be brought to the public’s attention and legislators will be forced to give more than lip service to growing citizen anger.
The Founders of our Republic did not envision a 5th Amendment eviscerated by public official’s greed and ignorance, and the usurpations of the courts. The Founders, many of them Virginians, would not have tolerated current abuses and neither should their heirs.