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Reason Foundation

Eminent Domain in the Old Dominion

In Virginia, the government gives you the sand, then they take the beach.

A. Barton Hinkle
August 5, 2011

“Better a bleeding heart than none at all,” say some progressives, perhaps a trifle too smugly. No matter: Those who consider kindness a primary political virtue should make common cause with conservatives who are motivated by regard for property rights in order to fight eminent-domain abuse. Because it is there that government shows a real mean streak.

Take a case now playing out in Virginia Beach. In 2009 the city condemned a spot of beach on the Chesapeake Bay in order to take it for a sand-replenishment project and public access. According to a December 2008 story in the Virginian-Pilot, “the city wants to dump the sand from the Lynnhaven Inlet dredging project...Most of the property owners have agreed, and many want the sand. In exchange, the city is asking the owners to agree that the public has a right to use the beach for recreation. But some property owners say their deeds give them the beach.”

One of the latter group is Tommy Sheets, who owns about a quarter-acre of beach. The city claimed the property was worth $4,000. But on June 9 of this year, a jury said the city should pay Sheets $152,000 for his property. In response, the city has decided—surprise!—it owned easement rights to the property all along, so it doesn’t have to pay Sheets a dime.

As Joe Waldo, a lawyer representing the Sheets family, put it recently, Virginia Beach’s plan to grab the land on the cheap backfired. So now it’s trying an end-run around its own citizens—not to mention the judicial system and the city citizens who ruled in Sheets’ favor.

This is hardly an isolated case. A few weeks ago The Roanoke Times detailed the case of Ed Jennings, a farmer who has been fighting the Virginia Department of Transportation off and on for more than three decades. VDOT tried to claim it owed Jennings nothing for the harm it did him when it rebuilt the I-77 bridge above his farm, dumping tons of debris onto his property. Judge Josiah Showalter Jr., disagreed—and a jury will decide what VDOT owes.

Then there’s the case of Wanda Beavers, who runs the Leave It to Beaver childcare center in a working-class section of south Richmond. VDOT condemned part of her property to widen German School Road, and offered the measly sum of $6,683. Beavers asked for $30,000. The state took her to court instead—and lost, big-time. A jury awarded Beavers more than $52,000. Add $61,000 in lawyers’ fees the state had to shell out to fight the case, and the taxpayers ended up on the hook for almost four times Beavers’ original asking price.

These are not even the worst cases in Virginia. The state has seen several more egregious ones in the past several years. Roanoke’s housing and redevelopment agency seized a flooring company’s building to hand it over to the multi-billion-dollar Carillion health clinic...which then said it never wanted the property in the first place. Norfolk’s housing and redevelopment agency has fought to seize several privately owned parcels in order to get them conveyed to private developers with deeper pockets. And in case after case after case—including the current case in Virginia Beach—officials have lowballed estimates of land value when condemning property, often by hundreds of thousands of dollars.

The common denominator? The big guys putting the muscle on the little guys. Surely that is something every good progressive will abhor.

Some of the blame for the situation rests at the feet of the Supreme Court. Its infamous decision in Kelo and prior cases allowed local officials to seize property from one private party and give it to another private party if there is any chance the second party might pay higher taxes. This is the “public purpose” that supplanted the Fifth Amendment’s plain requirement that property be seized only for public “use.”

Virginia lawmakers wisely reacted to Kelo by enacting measures designed to prevent such abuse. But the Constitution’s language about property rights has two prongs, not just one. Not only must the government take private property only for a “public use”—it cannot do so “without just compensation.” It’s painfully clear local and state officials seem woefully ignorant of that second prong. Maybe it’s time state lawmakers gave an education to those who have been a little less than kind.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared at the Richmond Times-Dispatch.



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