[10/24/12 update: Click here for a 10/23/12 WVTF public radio report (3 minutes/30 seconds) on the proposed amendment.]
On November 6, 2012, Virginia citizens will vote on a proposed state constitutional amendment on the use of eminent domain, that is, the power of the government to take private property—with just compensation—for public uses. Questions of eminent domain and private property takings can often be involved in government policies, regulations, or other actions that affect land uses and water resources affected by those uses. According to an explanation provided by the Virginia State Board of Elections (see Web site given below), the proposed amendment follows a 2005 U.S. Supreme Court decision in Kelo v. City of New London, in which the court ruled that eminent domain could be used to take private property for economic development purposes, but also said that states could limit the use of eminent domain; and Virginia General Assembly legislation in 2007 that put restrictions on eminent domain.
The proposed change to the Section 11 of Article I. Bill of Rights of the Virginia constitution would remove this passage: [that the General Assembly may not pass]…any law whereby private property may be taken or damaged for public uses, without just compensation, the term ‘public uses’ to be defined by the General Assembly” and add the following language:
“That 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, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly. 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.”
The wording on the November 6 ballot will be as follows:
“Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?”
The text of the proposed amendment and additional information (along with information on a second proposed amendment on legislative sessions) is available from the Virginia State Board of Elections, online at http://www.sbe.virginia.gov/CandidatesList.html.