Eminent Domain in Virginia

Hat tip to One Man’s Trash. Take a look at the two versions of a bill in Virginia to limit the use of eminent domain. The first version where there is a strike through looks like you could drive a truck between the exceptions without any damage. The second version is concise:

The right to private property being a fundamental right, the term “public uses” mentioned in Article I, Section 11 of the Constitution of Virginia is hereby defined in all instances to embrace only the ownership, possession, occupation, and enjoyment of land by the public or by public agencies, the use of land for the creation or functioning of any public service corporation or public service company, including but not limited to railroad companies, which has been granted or delegated the power of eminent domain, or the use of land for any entity that owns, operates, or maintains a road that is open to and services the public generally. In determining whether a use constitutes a public use, public benefits or potential public benefits including economic development or private development, an increase in the tax base, tax revenues, employment or general economic health and welfare shall not be considered. Any taking of private property must be necessary to achieve the public use, and the public interest must dominate the private gain. Except as stated herein, the taking of private property for the primary purpose of transferring or leasing to private parties shall not constitute a public use. Any taking under the pretext of an alleged public use shall be impermissible when the primary purpose is to bestow a private benefit.

How many times do they need to say it? Many times before the Supreme Court gets on the same page.

Any taking under the pretext of an alleged public use shall be impermissible when the primary purpose is to bestow a private benefit.

eminent domainVirginai Mover Mike

One Response to “Eminent Domain in Virginia”

  1. Suppose under M37 that the government buys the right to develop from a claimant. How would you characterize the item, or document, if it was resold to a private party? If it is a mere contract then it is subject to the rule against perpetuities. If it is real property then it must go with the land when the land is transferred and must show up in a title report.

    Yet, if M37 purchases of development rights (not privilege, in my opinion) are OK then it could be repeated in nearly every conceivable context so as to fully convert property rights into discrete contracts for development held by the government, as if the government owns ALL property, or at least owns ALL development related rights associated with property.

    The so-called righties that crafted M37 are the dangerous kind of bunglers that I fear, for they seem to have sacrificed property rights for fleeting special interests. I can only cross my fingers and hope that the Oregon Supreme Court can see through the confusion of interests.

    By the government holding the development right it just seems to do nothing more than delay the ultimate retransfer to a private party. Go ahead and apply the Virginia wording to the predicament I try to present above. Would the wording need to be reworked?

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