VA to Vote on Eminent Domain Amendment

On November 6 Virginia residents will vote on an amendment to the state's constitution regarding eminent domain and private property rights. The proposed amendment will change the way that the government can seize private property under eminent domain. Any property rights lawyer would agree that the outcome of this election would surely affect the VA economy.

In a 2005 United States Supreme Court case, Kelo versus City of New London, Connecticut, the courts ruled that the US Constitution gives the government the power to take a person’s private property and then sell or give it to another private entity if jobs and taxes can be generated. The VA state government thus could use eminent domain to transfer land from one private owner to another to further that state's economic development.

The question that VA residents will answer in just one week is this: "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 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?"

In layman's terms, if this amendment is approved, private property can only be taken for a public use - it cannot be taken and given to another private landowner; if property is taken under eminent domain, the landowner will receive fair compensation for the loss of property (with the assistance of a just compensation attorney if need be); and only the absolutely necessary amount of property can be taken.

Unlike most issues, this amendment has drawn bipartisan support for and against the amendment. Critics are concerned that the amendment may be too broad and have unforeseen consequences. They claim that the state's constitution already provides protection for eminent domain, and if the amendment is approved, then state officials will not be able to use eminent domain to take property for economic development purposes. It could force the state to pay more for what they claim are appropriate eminent domain uses and force them to hire an eminent domain lawyer to review the possible outcomes of any proposal.

If approved, the changes would go into affect on January 1, 2013. Virginia is one of the 44 states that examined the issue of private property and limiting eminent domain since the 2005 Kelo decision.