Question 1 on the Virginia Ballot – Eminent Domain

Question 1 - November 2012

(the above is from the Albemarle County site)

“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?”

Property rights. + The Virginia Constitution. + Election Day.

Brings us to Question 1 on the ballot.

Read now so that you know what you’re voting for.

Eminent domain matters. Restricting the government’s ability to take private property for purposes they deem fit is crucial to ensuring individuals’ property rights. That said (and I’m no legal scholar) …

– I’m curious what constitutes “public nuisance”

– “Just compensation” can be a negotiable thing. (the City of Charlottesville nearly used eminent domain recently in Fry’s Spring)

You might have already made up your mind on whom to vote for President, but I’d wager few have heard of Question 1 on the Virginia Ballot this year; I didn’t know until recently. (while you’re reading, find out what else is on the ballot)

Ilya Somin writes at the Volokh Conspiracy (read the whole thing):

In Friday’s Washington Post, state legislators Scott Surovell and Linda Puller published an op ed attacking Question 1, the eminent domain reform referendum question that Virginians will vote on in November. Unfortunately, their arguments are off-base, and some are seriously misleading.

Question 1 would amend Virginia’s Constitution to forbid economic development takings of the kind the US Supreme Court allowed in Kelo v. City of New London. Such takings often enable powerful interest groups to use the power of eminent domain to transfer property to themselves at the expense of the politically weak; they also tend to destroy more economic value than they create. If adopted by the voters, Question 1 would provide some important protection against such abuses.

Surovell and Puller’s critique of Question 1 completely ignores the fact that Virginia’s present constitution is one of the worst in the country when it comes to protecting property rights. Article 1 Section 11 states that the “public uses” for which property can be taken by the government are to be “defined by the General Assembly” – the state legislature. This gives the legislators a blank check to authorize the taking of property for any reason they wish, including benefiting powerful interest groups at the expense of the poor and weak.


It’s also worth noting that Question 1 gives the state legislature the power to define what counts as loss of “profit” and “access” for purposes of compensation. Given the lobbying power of local governments, it’s unlikely that the legislature will define these concepts in a way that imposes excessive burdens on them. If anything, there is a greater danger that the Assembly will shortchange property owners. Owners targeted for condemnation rarely wield great political power; otherwise their land probably would not be condemned in the first place.

In sum, Question 1 is far from perfect. It does not protect property rights as fully as it should. But it’s a major improvement over Virginia’s current constitution.

As a bit of an aside, I’m curious where this will go in the Virginia Code.

Looking for more information?

Page 30 of the Virginia Association of Realtors’ magazine (big PDF)

Update: Waldo Jaquith wrote a great explanation of both Amendments on the Ballot.

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4 Comments

  1. horseyone October 30, 2012 at 08:34

    Vote yes on 1!!!

    Reply
  2. Waldo Jaquith November 5, 2012 at 11:46

    It’ll go nowhere in the Virginia Code—it’s a constitutional amendment!

    Reply
    1. Jim Duncan November 5, 2012 at 11:49

      Thanks for the clarification. /hangingmyhead

      Reply
      1. Waldo Jaquith November 5, 2012 at 11:55

        Well, I think that goes to my point of how weird this is. We already have broad restrictions eminent domain in the constitution, leaving the specifics up to the legislature, who have encoded those specifics in the law. This amendment proposes to move those specifics into the constitution, despite that a reasonable person would expect to find them them in the code. Stuff this specific ought not be in the constitution, because then to change it is a huge pain in the ass. Next time we find some logical problem with eminent domain, we can’t just pass a new law, like happened in 2007—instead the legislature has to pass the amendment twice, in years spanning House elections, and then the following year the public has to vote on it. This is a crazy inefficient method of accomplishing basic legal aims, one that will leave us exposed for at least three years should future changes be needed.

        Reply

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