Va. AG expresses support for eminent domain amendment

Jessica M. Karmasek Sep. 7, 2012, 10:45am


NORFOLK, Va. (Legal Newsline) - Virginia Attorney General Ken Cuccinelli this week came out in support of a proposed constitutional amendment on property rights, which would make it more difficult for governments to take private land in the state.

Cuccinelli, a Republican who is running for governor next year, held a news conference in Norfolk Thursday.

During the conference, he called out the city's Redevelopment and Housing Authority for its alleged abuse of eminent domain power against local property owners.

He said the authority's action "dramatizes" the need for the constitutional amendment, which will appear on the state's November ballot.

"We have fought every year since before the 2005 Kelo decision to strengthen property rights in the commonwealth through various bills and three attempts at a constitutional amendment," the attorney general told the crowd.

The U.S. Supreme Court's decision in Kelo v. City of New London affirmed the authority of New London, Conn., to take non-blighted private property by eminent domain, and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues.

The Court's 5-4 decision led to a public outcry that eminent domain powers were too broad.

"A property rights amendment to Virginia's constitution is the ultimate protection Virginians need, and voters will finally have a property rights amendment to vote on in the November ballot. Hopefully then -- finally -- we can put this dreaded and abominable era of government taking private property from one landowner and giving it to another behind us," Cuccinelli said.

During the news conference Thursday, Norfolk law firm Waldo and Lyle PC announced its plans to appeal to the state's high court to stop the condemnation of Central Radio Company, a government contractor, and other nearby properties for private economic development at Old Dominion Village.

The Central Radio property was condemned by the city's housing authority as part of a plan by Old Dominion University to build a development of shops, apartments and restaurants.

"The defense of property rights is the defense of a founding principle of this country," Cuccinelli said. "It belongs in our constitution."

The attorney general, a long-time proponent of property rights, helped write the constitutional amendment that passed the General Assembly this year.

The amendment includes four reforms:

- Private property can only be taken for true public uses, not for enhancing tax revenues, economic development or private gain;

- The cost of taking property must be borne by the public, not by the individual property owner. Fair and full compensation must be given when property is taken or damaged -- this includes loss of business profits and loss of access (which will be defined by the General Assembly through legislation);

- No more property can be taken than is necessary for the project; and

- The burden of proof that the taking is for a true "public use" is on the entity taking the property.

As a state senator, Cuccinelli sponsored a bill in 2007 to create a law that protected homeowners, farmers and business owners from having their property taken by government and handed over to private entities for the primary purpose of increasing tax revenues or creating jobs.

Although the 2007 law was considered a major step forward in the protection of private property rights in the state, because it is a statute, it can be chipped away by future sessions of the General Assembly, the attorney general explained.

Putting property rights protections in the state constitution ensures that the only way they can be changed is by a vote of the people, Cuccinelli said Thursday.

However, opponents argue that the amendment -- if it passes -- will only make public projects more expensive for the State and local governments.

From Legal Newsline: Reach Jessica Karmasek by email at

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