6 rules that were bent

lewleadbeater.com

notes from the edge

Home

Email Me

				THE
Column Archive				VIRGINIA GAZETTE
				WILLIAMSBURG, VIRGINIA
6 rules that were bent				March 28, 2007

Given what’s gone on around here lately relative to James City County’s penchant for gobbling up private property through the process known as eminent domain, homeowners might want to consider moving to China.

Last Friday, communist China’s National People’s Congress for the first time enacted legislation, called The Property Law, that brings near absolute protection to the ownership of private property. As one analyst put it, “This law means that an ordinary home buyer can be sure that his children and grandchildren will still be able to live in the home he buys.” NPC Vice Chairman, Wang Zhaoguo, concurred and noted that “People urgently require effective protection of their own lawful property accumulated through hard work.”

Sound familiar? It should, since not only the Virginia Constitution but the Fifth Amendment to our federal Constitution grant essentially the same rights to private property owners in this country. Property can be seized only for “public uses,” such as roads, railroads, utilities or the urban renewal of blighted areas.

But in 2005 that all changed. In a suit brought against the city of New London, Conn., Susette Kelso claimed that city plans to condemn and raze perfectly sound Victorian homes in her neighborhood for the construction of a riverfront hotel, a health spa and offices were clearly illegal under the laws governing eminent domain.

In a 5-4 decision, however, the Supreme Court disagreed and thus foolishly expanded the concept of public use to allow local governments to seize homes for private development and the enrichment of developers.

Voting in the minority against the city, Justice Sandra Day O’Connor noted that “The beneficiaries of this plan are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

On the other hand, the Supreme Court tempered its decision somewhat by affirming the rights of states to amend their statutes to make it more difficult to seize private property under the process of eminent domain.

To its credit, the Virginia legislature did just that in its last session.

In a bill that will affect all development planned on or after Jan. 1, 2007, legislators declared that property can be taken only for public uses. These uses they divided into six categories:

1) For the possession, ownership and enjoyment of property by the public or a public corporation. 2) For the construction and maintenance of public facilities by public corporations providing for use of the facility by the public. 3) For the creation of a public service company or a railroad. 4) For a public utility service or a government utility corporation. 5) For the elimination of blight. 6) If a property is in a conservation area or an area of abandonment.

In its most recent excursion into the vale of eminent domain, James City County decided that it would exercise its alleged right to seize private property on Ironbound Road in order to construct a so-called “affordable” housing development known as Ironbound Square. To date, 36 lots have been bought for pitifully low prices. There are four holdouts.

Yet, given the latest legislative injunctions relative to eminent domain, one might well question the county’s rationale for ousting low-income families from their neighborhood in order to build more low-income facilities.

Will the property that is seized be used for the enjoyment of the public at large? Not unless you constrict the meaning of “public” to include only those who will live in the new homes. Is it for the construction of a public facility for the use of the public? Obviously not. Is it for the building of a railroad, a public service company or a utility? No. Is the neighborhood in a conservation area, or has it been abandoned. No again.

Well, maybe it’s the issue of blight that lies behind these seizures. After all, the properties involved sit just across the street from New Town. Given the unchecked, cancerous sprawl of that development, there will soon be new residents and business owners gazing across at a neighborhood inhabited primarily by low-income blacks.

But does that constitute blight? It would be one thing if we were talking about dilapidated shacks that are sagging on their foundations, but we’re not. These are well-kept properties that have been in some families for 50 or more years. Yet, compared to the price per acre for property across the street, the county is paying shamefully meager compensation for lots it wants to make more aesthetically amenable to the eyes of New Town’s residents.

And that, I suspect, is the bottom line.

In the final analysis, it would behoove the county to cool it when it comes to seizing private property via the eminent domain route. Embarrassingly red in the face after its botched efforts to seize property for Matoaka Elementary, the county might have become more wary of resorting to such an intrusive process again. Instead, they have involved themselves in another dubious effort to clean up the joint by dislodging minority residents and promising them replacement digs in a new low-scale Garden of Eden.

Shanghai is looking better all the time.