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Property “Ownership” a Fantasy in the State of Virginia

June 5, 2011 by Contributor filed under Editorial, Opinion No Comments

By Kelli Grim
(The following information was gleaned from an extensive study of eminent domain in Virginia written by Jeremy P. Hopkins, Esq. , and published by the Virginia Institute for Public Policy.)

The right to own property protects the individual by dividing power between the people and the government, and between the people themselves. The right to own, use and dispose of property gives the individual true security and independence. It is the bedrock of our constitution and all laws and freedoms are dependent upon it. Thomas Jefferson wrote, “Economic dependence begets subservience and venality,” while economic independence begets freedom, liberty and industriousness. It is no wonder that tyrannical governments make common property a method by which to control people. If everyone owns something, no one owns it, and the government is, of course, the default owner of everything.

Despite the fact that we continue to believe we live in a democracy, the government can take any property for any reason and give you nothing for it. No property owner, short of the very rich and influential, is safe from the taking or his or her land. And, not only are takings of land extremely arbitrary and capricious, often wasteful and uncompensated for, the cases for just compensation or returned ownership languish for years in the courts while the owner loses everything.

Most of us think of the Kelo v. New London case in Connecticut when we think of the abuse of eminent domain. But Virginia has committed many injustices as grave or even more serious than this case.

Two reasons that eminent domain, or the seizure of private property, has become so widespread and so easy for the “condemnor” since the middle of the last century are these:

  1. The courts have extended to many other entities the power to condemn land. Some of these entities are the Commonwealth Transportation Commission (VDOT), Produce Market Authorities, Virginia Baseball Stadium Authority, Housing and Gasline Authorities, etc.
  2. Towns, cities and counties can incorporate language in their own charters that goes well beyond the constitutional limits of the state. The Virginia Assembly gave Virginia cities the right to take property “for any purposes of the city” and this applies to counties and towns as well. The Virginia Constitution only allows takings for “public uses” but since the Assembly allows municipalities to take land for “public purposes” this extends the allowable justification for the take to mean anything that would have a public benefit. This includes job creation and tax revenues that are not created or used directly by and for the government.

People whose property is condemned have fewer rights to rectify injustices than any other citizens seeking relief from the courts, including debtors. In all other types of litigation, the citizens have much more extensive protections, including much higher standards of notification of the case, much greater time to respond, and the right to appeal to address injustices. The man whose land is condemned has NO rights to open the case again in court, Even if the property owner never gets any compensation, the project is abandoned and his property is not used (or is sold to someone else), his buildings destroyed and his business is ruined, and he is rendered penniless, he has NO RIGHT TO APPEAL.

VDOT is one of the worst abusers of eminent domain, not only because it may never use the property, but because it routinely offers extremely low compensation for the land.

In one case where the jury awarded the landowner $2.4 million, VDOT has offered them $112,000. This isn’t as bad as the City of Chesapeake which refused to acknowledge that it had seized the land of Ms. Willet, even though she showed proof of the taking, but then offered the woman $7.56 as compensation!

In Commonwealth Transportation Commission v. Stull, VDOT demolished the farm buildings, deprived the farmers of their ability to farm and destroyed their business. They said the buildings were old, as a justification for destroying them. However, the buildings were in good repair, functioned well, and could have been maintained. In another case, the courts ruled that a Mr. Thomas had to pay rent to use his property even when the condemnor refused to pay him any compensation for the taking of his property!

The courts, those entities empowered to protect the rights of the citizens, are actually the greatest cause of eminent domain abuse. Both on the Federal and State court level, the courts continue to deny property owners the most basic rights of compensation and appeal. The courts are often unwilling to give land owners fair compensation and will often strike rulings by their own handpicked three-panel experts or by juries.

The Town of Purcellville has done four quick takes in the past two years, all to benefit private developers. There is no proof that the business owners, whose land was taken, were happy with the takings. In the case of the seizure of the land on Crooked Run Orchard Farm, the amount of money the Town is offering the Browns is about one quarter of fair market value. The amount of damage it will cause is not measurable in dollars or in the well-being of the citizens because of the trees that will be destroyed and the spikes in pollution, traffic and the expense to the taxpayer in endless road improvements that will inevitably follow. Unfortunately, prospects for a just and compassionate response from the courts in Virginia are close to nil.

Until the laws are changed to support citizen sentiment that is strongly against Eminent Domain abuse, only the “people” can voice their opposition to their elected officials and make it clear they do not want this to continue in their town, city, and county. The stage is being set for a constitutional showdown over property rights in Virginia, and outrage over a Roanoke condemnation case has become a rallying cry in the campaign to limit government power to seize privately owned land.

Virginia Attorney General Ken Cuccinelli is leading the charge to enshrine private property rights in the Virginia Constitution. Cuccinelli, a conservative Republican, has a long-standing interest in personal property rights and championed legislation throughout his seven years in the Virginia Senate to limit the use of eminent domain.

Virginia Attorney General Ken Cuccinelli does not mince words when he spoke about a Roanoke condemnation. “I think it’s legally criminal,” he said. “It’s immoral. I think it’s tyrannical. It’s horrific.”

In his push for constitutional change, Cuccinelli points to Roanoke condemnation proceedings as “the most recent, egregious violation of property rights under color of law.”

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