Thoughts about Ballot Question 1

In addition to voting for electors for President and Vice President, for a United States Senator, and for a member of the House of Representatives, Virginians will be voting for two Ballot Questions concerning amendments to the Constitution of Virginia.

Ballot Question 1 states:

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?

Eminent domain - the power of government to take (with just compensation) private property for public use - has been on the public radar since the U.S. Supreme Court held that New London, Connecticut had every right to take a home that stood in the way of commercial development. The outrage was nationwide. In Virginia that anger was translated into 2007 legislation that prohibited government from condemning property for private purposes. This reasonable legislation is still in effect.

Some, like the Virginia Farm Bureau, fear the current law could be weakened legislatively and wants an amendment to the Virginia Constitution to assure its staying power. That's all well and good. But the proposed amendment adds provisions - provisions that could sink us in an expensive legal swamp - into the eminent domain cauldron. Before we look at that issue, voters should be aware that, if passed, this amendment would not affect the power of the federal government regarding eminent domain.

Ballot Question 1 contains the following language that raises questions about how the General Assembly will define lost profits and access:

Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly.

Current law awards compensation if the property is landlocked after the taking. Under the amendment any reduction of access might be grounds for compensation. So a new median blocking an easy left turn into a McDonald's or a farmer having to divert his hay wagon from a preferred lane might prompt a lengthy court battle and increase the costs of a new road.

The "lost profits" provision is even stickier. Lost profits for how long? How can the legislature or a judge predict future profits that are determined by supply and demand? If the "lost profits" are awarded to a restaurant that soon thereafter goes out of business does it get refunded?

While most Americans want to protect private property rights, they also want to have new roads or utilities such as water, sewer, and electricity done at the lowest possible costs to taxpayers and consumers. This amendment threatens the ability of state and local government to provide those improvements as cheaply as possible.

Ballot Question 1 will be a hay day for two groups - the lobbyists who will twist legislators arms about the enacting legislation and the lawyers who will argue the cases. Beware of the unintended consequences of well-intentioned legislation. The devil, as always, is in the details. Ballot Question 1 should go back to the drawing board.