Ballot question on eminent domain could increase redevelopment costs

If Virginia voters approve a constitutional amendment on eminent domain, efforts to revitalize Annandale would be more difficult and “significantly more expensive,” says state Sen. Dave Marsden (D-37). “It will slow down the whole process.”

The amendment, a priority of the Tea Party, as well as Gov. Bob McDonnell and Attorney General Ken Cuccinelli, both Republicans, places restrictions on the taking of private property for public use. It would require eminent domain to be exercised only “where the property taken or damaged is for public use” and and not where the primary use is for private gain, increasing jobs, increasing tax revenue, or economic development.

The most controversial provision of the amendment would expand the amount of compensation to property-owners to include “lost profits and lost access,” as well as the value of the property.

Supporters of the amendment say it’s necessary to protect property rights in the wake of a 2005 Supreme Court decision (Kelo v. New London) that upheld a Connecticut city’s ability to take private property needed for another private development that would generate jobs and tax revenue.

Marsden, whose district includes most of Annandale, calls the proposed constitutional amendment “an overly restrictive way of dealing with a problem we really don’t have.” Virginia’s law on eminent domain is already fairly restrictive and prohibits it from being used for private purposes.

Mason Supervisor Penny Gross says, under current law, eminent domain can only be used for roads, and a constitutional amendment “doesn’t change anything, except make road building much more expensive.”

If the amendment is passed, Marsden says, “people will be able to claim damages for things that don’t affect their property.” For example, if the state does some roadwork and moves the entrance to a shopping center, a store owner could claim restitution for lost business far into the future.

That would set a dangerous precedent, he says, and figuring out the amount of “lost business” would be complicated.

If there is a problem with eminent domain, it would have been better addressed through state law, Marsden says. “Don’t tie our hands by putting it in the constitution.”

Sen. Mark Herring (D-33), who announced plans to run for state attorney general in 2013, told the Annandale Blog he voted against putting the constitutional amendment on the ballot because of concerns that it was poorly written. “If we’re amending the constitution, we need to get it right,” he says. “There is a lot of uncertainty over how it would work and whether it will lead to a lot of litigation.”

An official Virginia impact study estimates the amendment would cost the state $36 million a year.