This is a big election year. Not only will Virginians be voting on the future president, but they will also be voting on a proposed amendment to the Virginia Constitution. The proposed amendment relates to property rights and eminent domain. Specifically, the amendment seeks to restrict the definition of "public use" so the government will be more limited in its ability to take private property from one individual and give the property to another private individual. It is important to note that a "taking" does require the government to pay "just compensation" to the owner of the land. However, even with compensation, many say that the amendment is needed because the current policy allows the government to encroach on the liberty of individual's without a legitimate reason. This issue has been coming up frequently in the news as Old Dominion University tries to acquire more land for its desired expansion.
Under the amendment, if "the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development" then the taking is not for public use and is not permitted. The changes to the amendment limit the ability of the General Assembly to define public uses loosely and subsequently take property for so-called better uses. Under the amendment, there will be no presumption that a public use exists. The government would have the burden to show that a legitimate public use exists.
The potential scope of this amendment is broad. In addition to limiting complete takings of private property, it seems that the passage of the amendment could lead to compensation for partial takings as well. Specifically, the Senate's summary of the amendment states that a taking of private property can only occur "with compensation to the owner, and only so much taken as is necessary for the public use. Just compensation must equal or exceed the value of the property taken, lost profits and lost access, and damage." The mention of lost profits and lost access could mean that blocking access to a business for roadwork, etc. would constitute a taking that would require just compensation.
Businesses should be conscious of this amendment. If passed, businesses could have new claims against the government for use restrictions to their property starting January 1, 2013.
Authored by summer clerk Jenny Eaton. These articles are meant to bring awareness to these topics and are not intended to be used as legal advice. For more information, contact Mike Sterling at 757-446-8626 or Bill Franczek at 757-446-8600. Visit www.vanblk.com, for our library of Construction Law Tips. Suggestions for a topic? E-mail firstname.lastname@example.org.
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