Roanoke Times
Monday, July 18, 2005
By Todd Jackson
981-3253
Private -- keep off: aftershocks of Kelo v. city of New London
Government participation in private property matters can be viewed
as meddling in this mostly rural portion of the state.
Rarely does a U.S. Supreme Court decision resonate in Western Virginia
such as last month's ruling that broadens governmental power to take
privately owned land.
"This goes against the Founding Fathers' intent," said Roanoke
businessman Brad Allen, the treasurer of the Virginia Property Rights
Coalition. "This is beyond Republicans and Democrats, conservatives and
liberals. This deals with everyone right in their homes."
"It's almost a blessing in disguise," said the coalition's president, Nancy
McCord of Christiansburg, "because the one thing it's done is to bring this
issue to the forefront."
Federal, state and local governments have always had authority to take
private land with "just" compensation for public needs such as schools,
utilities, hospitals and roads - the process known as eminent domain.
However, the recent 5-4 Supreme Court decision expanded the
government's power to seize property for economic development reasons.
In Kelo v. City ofAdvertisement
New London, the court ruled that an economically depressed Connecticut
locality could use eminent domain to acquire privately owned land that it
would then turn over to a private developer. The basis for invoking eminent
domain in the case was the city's belief that the new development would
generate more jobs and tax revenue - facts it produced in a predetermined
revitalization plan.
In the court's majority ruling, Justice John Paul Stevens wrote that the case
was unique to New London's situation and that individual states are free to
address eminent domain matters as they so choose.
But those alarmed by the court's decision argue that it now sets up the
possibility that politicians and bureaucrats can work with developers behind
the scenes and then use eminent domain to take existing homes or
businesses. That property could then be immediately turned over to
another private interest based on the development promise of more jobs
and increased tax revenue.
The government already had plenty of eminent domain power, Allen and
McCord said. The Supreme Court decision only increases that muscle, and
that's a scary proposition for Joe Taxpayer, they said.
• • •
Allen and McCord are no strangers to eminent domain.
McCord and her husband moved into a Montgomery County mountainside
home in 1997 and soon after learned that part of the property was in the
path of a proposed power line. The path of the line was later moved, but
McCord said she was so distressed by Virginia's lack of protection for
property owners that it led her to start the coalition, which serves mainly as
an information clearinghouse for smaller grass-roots property organizations
across the state.
Allen, at one point, was surrounded by eminent domain. His business, a
commercial flooring company, was in the area now being redeveloped for a
biomedical park off South Jefferson Street - a venture in which land was
acquired by the Roanoke Redevelopment and Housing Authority. The
authority alerted private property owners early on that it could use eminent
domain if necessary, Allen said. At about the same time, Allen said his
house and his father's were also in the path of the proposed Interstate 73 -
a route that has since been changed.
Allen continues to run his company and has worked out an agreement with
city officials to continue to operate with the promise that he can develop
some of his property himself in conjunction with the new park. But, Allen
said, it became apparent to him early on in the discussions that the city
government - with resources and an entrenched bureaucracy - can use
eminent domain to wear down an individual property owner quickly.
"You find out that you're better off to cooperate or you will lose your shirt,"
he said.
State Del. Onzlee Ware, D-Roanoke, said he's already received calls from
constituents who are concerned that the federal decision will allow
governments to prey particularly on the less advantaged and
disenfranchised minorities.
"For a conservative court to rule like that is astonishing," he said.
Other regional legislators - including state Sens. John Edwards, D-
Roanoke, and Brandon Bell, R-Roanoke County, as well as Del. William
Fralin, R-Roanoke - said they were also surprised by the Supreme Court
decision and believe the General Assembly must address the matter during
its next session.
In his most recent weekly congressional column, U.S. Rep. Bob Goodlatte,
R-Roanoke, wrote, "This appalling decision strikes a serious blow to the
core values of our nation, and has far reaching implications."
The U.S. House of Representatives has already voted to condemn the
Supreme Court's ruling and Goodlatte said he is supporting a bill to prevent
the federal government from using economic development as an eminent
domain justification. The bill would also prohibit states or municipalities from
seizing privately owned property for an economic development project that
involves federal funding.
• • •
There are issues that make the federal ruling particularly relevant in
Western Virginia.
Governmental participation in private property matters can be viewed as
meddling in this mostly rural portion of the state. Some jurisdictions don't
have local zoning laws because of the public's distrust of government.
McCord and Allen say they've been to emotional meetings over eminent
domain takings where some people have openly threatened public officials.
They say they realize that eminent domain is necessary for public needs
such as roads and hospitals. But they say the Supreme Court decision
goes too far. The coalition is now actively lobbying state legislators to
change Virginia law to more narrowly define legitimate public uses for
governmental taking of private land with just compensation. Another
Charlottesville-based group, made up mostly of Libertarians, has started a
petition drive to ask the General Assembly to pass a state constitutional
amendment outlawing eminent domain uses based solely on economic
development purposes.
Another pertinent issue is Virginia's status as the only state with
independent cities that depend on redevelopment because they're
prohibited from annexation. The Supreme Court decision could give urban
entities such as Roanoke the ability to generate more tax revenue by using
eminent domain to start redevelopment projects.
Economic development-related eminent domain cases are not new to
Roanoke, but they have always hinged on another mitigating factor to
determine an accepted public use of land. In 1984, the city took some
Gainsboro landowners to court to force a sale of their property for a Coca-
Cola bottling plant expansion. The city argued that the property was
"blighted" and was therefore condemnable under eminent domain. A judge
agreed. That decision and earlier uses of eminent domain in connection
with urban renewal in Gainsboro and nearby Northeast Roanoke
neighborhoods led to mistrust of city government, particularly among the
city's black community.
The last time a judge ruled in a Roanoke eminent domain case was five
years ago. The city of Roanoke used the power to get an easement in front
of a building to help complete its downtown railwalk project. A judge ruled in
the city's favor, and agreed with the argument that eminent domain was
applicable because the railwalk was defined as a public park.
City Attorney Bill Hackworth, who was involved in the railwalk action, said he
doesn't believe the Supreme Court decision will have any major impact on
municipal business. He said he would not advise the city council to ever use
eminent domain as a way to grab private property so it can transfer it to
another private party for development.
Hackworth said he believes the federal ruling, based on New London's
predicament, was likely the right decision.
"I'm afraid it's going to have more a backlash than it deserves," he said.
Hackworth used another example from the railwalk to argue the other side
of eminent domain.
Another downtown property owner, the late Bob Zimmerman, dug in for a
fight in 1999 when the city attempted to get an easement in front of his
Norfolk Avenue warehouse complex. Zimmerman, who had the money and
time to extend his battle, fought the city so vehemently that it later settled
with him, agreeing to buy his entire property for $636,000 - a price that was
more than triple its assessed value.
"All we wanted was an easement across his property and we ended up
buying his whole darned building," Hackworth said. "How much more just
and fair can you get than that? The last time I saw him [Zimmerman], he
chuckled and told me that he'd just returned from Vegas."
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