Attorney General Ken Cuccinelli has clearly articulated defined constitutional principles his entire career and as attorney general he has vigorously defended them in high courts and in the court of public opinion. Yesterday, he was in the latter, making his case at a Norfolk news conference where he discussed how the abuse of eminent domain power against local property owners by the Norfolk Redevelopment and Housing Authority dramatizes the need for voter approval of the proposed constitutional amendment on property rights (see Norfolk Virginian-Pilot). The event highlighted the well publicized case of Central Radio, a 78-year-old business that the NRHA is desperately trying to force from the property it has owned for 50 years, where it provides essential equipment for the U.S. Navy, and where it must remain to continue to meet its contract's requirements.
But Central Radio's plight clearly is not a unique case. Also at the news conference, its attorneys announced its appeal to the Virginia Supreme Court to stop the condemnation of Central Radio and other properties for private economic development at Old Dominion Village. Mr. Cuccinelli said:
We have fought every year since before the 2005 Kelo decision to strengthen property rights in the commonwealth through various bills and three attempts at a constitutional amendment. A property rights amendment to Virginia's constitution is the ultimate protection Virginians need, and voters will finally have a property rights amendment to vote on in the November ballot. Hopefully then — finally — we can put this dreaded and abominable era of government taking private property from one landowner and giving it to another behind us. ...
The defense of property rights is the defense of a founding principle of this country. It belongs in our constitution.
The constitutional amendment has four reforms:
» Private property can only be taken for true public uses, not for enhancing tax revenues, economic development, or private gain;
» The cost of taking property must be borne by the public, not by the individual property owner. Fair and full compensation must be given when property is taken or damaged — this includes loss of business profits and loss of access (which is be defined by companion legislation that will take effect if the amendment is ratified);
» No more property can be taken than is necessary for the project; and
» The burden of proof that the taking is for a true "public use" is on the entity taking the property.
Currently, Virginia has statutory protections for property owners. It passed the General Assembly in 2007, and Mr. Cuccinelli, then a Virginia senator, was one of the patrons of the legislation. It provides homeowners, farmers and business owners the protections in the first amendment's first feature. For example: A locality or state agency cannot take a family business, church property, homes or farmland in order to turn it over to a private developer for a shopping mall. If the developer wants it that much, it must make a convincing offer to the landowners. As the attorney general said, "It is not the city's job to force people out of their homes or businesses for the developer." Unfortunately, this is a regular occurrence in Virginia.
But the 2007 law does not include all the protections the amendment contains. Not only that, but special interests every year since have tried to chip away at it and will continue their attempts to weaken it until the "permanent" constitutional protections are ratified by Virginians.
The proposed amendment, after seven years of debate in the General Assembly, finally won its required second approval last session by legislators after the required intervening election and no changes to the resolution's language, and is on Virginia's ballot this November. While it received broad bipartisan support, it faces hostile opposition by local governments, "public-private" groups, housing authorities, and others connected to local and state government (including developers) who see passage as eroding their power over the citizens they are hired to serve. Making matters worse, they have used their residents' hard-earned tax money to lobby the General Assembly against this basic right by opposing the proposed amendment and property rights statutes since 2005. They have been largely successful, with two exceptions: 2011 and 2012, and 2007. This November, as they go to the polls, Virginians can end the debate once and for all.