Eminent Domain in the Old Dominion

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

“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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  • MNG||

    Here's the thing: I totally think the left misses the vast potential of eminent domain abuse to impact the "little guy." Thomas and O'connor wrote eloquently about that imo.

    On the other hand, how do you get eminent domain that is not subject to such abuse? If you limit it to a public use doesn't that push governments to eschew privatized policies and strategies for accomplishing their goals for explicitly governmental ones?

  • MNG||

    Consider a municipality that determines it needs a park. It uses ED to take some land adjoining existing land to make this park. If the government keeps and runs the park then the "public use, not public purpose" crowd has to be satisfied, but if the government was to privatize the park then they would not be. But why would libertarians prefer the former to the latter?

  • CrackertyAssCracker||

    I prefer defining "fair market value" as "whatever the owner is willing to accept". Then I don't care about the park getting privatized later.

  • ||

    a park is still a Public Use property, even if privatized.

    as opposed to giving the land to a private developer, which results in Private Use property.

    see the difference?

  • some guy||

    What's to keep a city from using ED to get a property, declaring that property a park for a few years (days?) and THEN turning the property over to a corporation for development? Is there a time frame in which the property must be a public land? Must it always remain public land after the ED?

  • ||

    Legally, probably nothing. Practically, there is huge pushback when a municipality tries to close a park.

  • Highway||

    Generally there are a lot of protections for making public-use land like parks into any other sort of thing. If something gets called a park, generally it gets put in the same category as other protected land like wetlands and historic properties.

    If turning it over was the goal all along, it's a lot easier to just fight initially using Kelo arguments than to try to end run them with public use.

  • Edwin||

    Public property is available to all the public to access. When a private company runs the park, it's still public property - the private company can't ban anyone (or frankly evem set codes of conduct most of the time).

    To actually turn public land into PRIVATE PROPERTY is a whole nother kit n kaboodle, and I've never even heard of such a process. I'd imagine it would be very difficult because you're essentially stealing from everyone when you do that. Maybe a judge would order that there has to be an actual vote by the public first

  • cynical||

    Perhaps the original owner of any property taken by eminent domain should, if the property is sold by the government within a few decades, be entitled to reclaim the difference between the sale price and whatever he got for it when the government took it. That seems fair to me.

    Doesn't do much good if they sell it off on the cheap, but they might open themselves up to corruption allegations that way.

  • Fluffy||

    I see your point, but the difference is really fairly straightforward to me:

    If the city takes my property to give to another citizen, that essentially debases me before that other citizen, and declares their rights to be superior to mine.

    OTOH if they take for property for a legitimate public use, one that I concede is a legitimate public use, then it's more like "taxation in kind" than a general devaluation of my rights.

    Also, in the case of taking my property to give to another citizen, the purchase price is a huge issue. It's hard for a private citizen to amass a large parcel in certain areas. In other to amass a large parcel, a private citizen would probably have to pay a substantial premium for odd-lot parcels that make up critical parts of the planned project. And you know what? That's the way it should be. If you need my quarter-acre property to undertake your billion-dollar-profit project, the actual value of my property to you is quite high, and you should be forced to negotiate with me to meet that price or not get your project done. Using eminent domain to enable private developers to bypass a genuine market process and underpay for property is expropriatory thievery.

  • Pudgeboy||

    Liberals only use the 'little guy' as a pawn in their elitist game of redistributing other people's money.

  • the real OO||

    whoops - virginia has a gop administration.

  • Pudgeboy||

    Eminent domain isn't only an issue in VA. Look at the Kelo decision... yea, all the conservatives voted for it.... whoops, no they didn't.

  • Johnny Clamboat||

    Which has nothing to do with the cities of VA Beach, Richmond and Roanoke.

  • Liberta||

    I have a friend in VA Beach. Though the city council is GOP/conservative in name (influence of local military bases), there is enormous political pressure from the tourist trade and the accompanying developers for them to favor "public-private partnerships." Accordingly, with regard to property rights, they should be considered progressive.

    Indeed, city ordinances make it more difficult for residents to find beach parking than tourists during summer months. Swearing can and will be fined by the Draconian police presence at the beach. Hardly a libertarian's paradise.

    Richmond of course, is hard left. The population is made of "minorities", which sadly tend to vote for someone because they have the same skin color.

  • Night Elf Mohawk||

    If you limit it to a public use doesn't that push governments to follow the Constitution?

  • Duke of Anarchy||

    I see eminent domain as inherently abusive. The solution is to amend the constitution to abolish ED.

  • little suki||

    first

  • KPres||

    I used to live in Virginia. It's the most Nazi state out there. Maybe they're getting something in the water from DC.

  • ||

    You've obviously never had the pleasure of dealing with the California Coastal Commission.

  • Barely Suppressed Rage||

    You're out of your mind if you think VA is "the most Nazi state out there."

    Have you never lived in NJ, CA, NY, CT, MA, or MD?

    All are far worse in many ways than anything I've yet to see VA do.

  • Barely Suppressed Rage||

    OTOH, if your experience with VA was northern VA (NOVA) - the D.C. suburbs, like Arlington, Falls Church, Tysons Corner or Alexandria, then yeah, I definitely could see how you could get that impression. But down here in Richmond, we pretty much don't consider NOVA to be part of VA. That whole area is pretty much just an annex of D.C. and is overrun with nannying liberals.

  • Kristen||

    You wouldn't believe the conversation I heard on the Pentagon shuttle the other day (speaking of NoVA being a DC annex). The gist was that the young lady who was speaking was pretty shocked at the size and scope of the government when she came here, but she thinks no one in government should ever be laid off, and they should probably hire even more people. Ruined the nap I had planned on taking during the ride.

  • Hooha||

    Were you able to cure the stupid, doctor?

  • ||

    We can hasz Richmond Reasonoid meetup. Please?

  • Edwin||

    I live in NJ and I feel pretty great. I never see anything Nazi-like anywhere in the state.
    I guess you're wrong. So what does that tell me about your political philosophy?

  • adam||

    Have you seen any NJ state troopers? Check out that uniform a little more closely next time...

  • cloudbuster||

    Have you ever tried to exercise your second amendment rights in NJ or NYC. What they'll do to you for trying to take a gun out in public (or in NYC, even own a gun), will make the Nazis look like nice guys in comparison.

  • John Dutton Frost||

    There's some inappropriate ED threats going on right now in Alexandria, VA. The city council is 5:2 dem:cons. I've got the two cons on the record opposing the ED but the authoritarians (dems in nova are not libs) are all hot for seizing.

    http://washingtonexaminer.com/.....ial-legacy

  • ||

    Odd Hinkle did not include that one since it's particularly egregious. The city's $150k offer for Old Town Alexandria waterfront property is a joke -- an upscale townhouse in the vicinity is easily $1.5m.

  • Liberta||

    Brilliant. I will be calling the left authoritarians rather than liberals. They have wrongfully expropriated that title from us.

  • jtuf||

    ED is bad.

  • ||

    You have no idea

  • ||

    The obvious solution to thieves trying to steal your property is to kill them. Which is what people should do to city and "redevelopment" officials who personally make these decisions. And these judges who can issue a ruling like Kelo (that a public purpose is the payment of more taxes), should be shot. No ifs, ands, or buts about it. That's pure evil.

  • Edwin||

    see that?

    see that shit?

    See how fuckin quickly libertarians get into fucked up shit? Promoting murder just because they disagree with people?

    How many comments did it take when I got numerous posters to admit they think they have the right to grope female employees in that other article a few months ago? Like only 3 or so.

  • Edwin||

    you guys are all sick perverted sociopath fucks

    And its not one or two guys here or there. It's something that pops up frequently in libertarianism

  • ||

    Murder? I think it is called watering the tree of liberty.....

    Fuck you Edwin

  • MrGuy||

    When peaceful protest is met with deaf ears, violence is the volume knob.

  • cynical||

    "Promoting murder just because they disagree with people?"

    Weird, I thought he was promoting murder when people use force to rob you, and you have no legal, peaceful recourse.

  • Edwin||

    they pay you fairly for it, it isn't robbery

    you want to kill people because they disagree with you. You can frame it any way you want but in the end that's the reality of it

  • Hooha||

    So if I throw a jackson at you before I hotwire and drive away in your car, it's "pay[ing] you fairly for it"?

    Sometimes I wonder if you're a troll, or if you're really just that stupid.

  • Edwin||

    only libertarians are so self-centered they think one can own a beach, the epitome of a NATURAL PATHWAY and natural pleasure/viewing spot. Complain all you want about all the other political systems, at least with them I can every fucking once in a while go to the beach and enjoy myself without some asshole claiming it's his land and stopping me.

    We're all fleas on a dog's back, and only libertarians think they have an absolute right to own parts or all of the dog.
    I mean it's the very opposite of non-agression and doesn't at all follow from self-ownership.

  • Pudgeboy||

    What? No use of 'sheeple' or 'bushhitlerburton? ...poseur.

  • Mr. FIFY||

    Where do you live, Edwin? We'll come over and fuck up your yard with 4-wheelers, and drink all your beverages, and eat all your sandwich materials... then we'll shit in your hat.

    NOW... how do you feel about property?

  • Edwin||

    another mountain-molehill conflation

    recognising that you don't have an absolute right to land-property doesn't mean you don't recognize any rights whatsoever

    you're so retarded and your arguments so pedantic you should be ashamed

  • Common Sense||

    Edwin, I think your car looks nice. Here's 5% of what it cost you, I'll be driving away with it now.

  • Hooha||

    TRUTH. Asshats like Edwin are the sort of shit-eating hypocrites that need to be taught some hard lessons.

    +1 internets for you, sir. Wonder if he'll respond to you. Come on, Edwin; defend your hypocricy, or give us your adress. If you live anywhere on the west coast, I'll be the first one there. Best of all, I know you're not willing to defend your place, you progtard, so I don't have to worry about eating a bullet while I set up a tent-city for the homeless on your lawn.

  • Hooha||

    Was in response to FIFY. Threaded comments fail.

    Classy how you just discard his argument without adressing it, Edwin. Please explain how not respecting the 'any rights' of the beach house owner differs from not respecting YOUR 'any rights'. You're so full of shit, I hope you die a little inside whenever you tell someone else they should be ashamed.

  • Mr. FIFY||

    Notice how he puts himself above everyone else - kinda like liberals - and doesn't bother to answer the question - again, kinda like liberals.

  • Mr. FIFY||

    And thanks for the plus one.

  • KW6||

    Only thieves and infant children are so self-centered that they think that whatever they want belongs to them.

    Which are you?

  • ||

    ED is a useful policy if you agencies and contractors actually abide by it. However, most people don't know what it all entails in their state and end up getting screwed by it. The system wasn't meant for the average person to understand and navigate and in this case its no different. Get a lawyer and let them handle it for you.

    (http://bit.ly/r2dAIR)

  • Robert||

    How do we know Va. Beach's gov't wasn't right that it had that easement? Is there some way we can check that out?

  • sailor||

    Someone needs to look into the taking of property rights by rezoning without compensation. It hasn't been heard by the Supreme Court since 1926 when zoning laws were still a new concept. Here in San Diego County for instance, some properties are being downzoned from one house per acre to one house per 10 acres and other similar changes. If someone owns 10 acres, taking away their right to build 9 additional houses seriously reduces the property's value and they should be compensated.

  • MrGuy||

    One house every ten acres? Since when is San Diego farmland?

  • Hooha||

    I'd just build one REALLY big house that took up all ten acres. I'd be sure to make it ugly as hell, too.

  • ||

    Here in Louisiana we have had a few ED cases, but they arent that common. The people here wont put up with it much.
    Our state law kinda strikes a balance. We have strong private property rights, but all high-water areas around navigable waterways are public, that includes all beaches.

    As for you Edwin, my private property rights dont evaporate because you think my land looks pretty or because you want to enjoy it. Go fuck yourself thief.

  • Edwin||

    "Our state law kinda strikes a balance. We have strong private property rights, but all high-water areas around navigable waterways are public, that includes all beaches"

    You JUST conceded my point there.
    RETARD

  • ||

    Meaning, there never was any private ownership of it to begin with. Once it is privately owned, should state law allow for that, no one has a right to simply take it because they want it. That is thievery.
    My 77 year old aunt tells me she has three nice area rugs that she took to the yard and cleaned with the water hose then hung on her 6ft. privacy fence to dry. After three days she was coming back from the store and a young woman approached her as she was going in the gate.
    "Lady what you gonna do with them rugs? Me and my friend been watchin them rugs and we wuz wondering cuz we sure needs some rugs like that."

    My aunt replied" I am just drying them and I am going to put them back in my house."

    "Yeah but lady we been seein them rugs up there for days them sure are some nice rugs. We been watchin them......"

    At this point my aunt told the girl in no uncertain terms to fuck off and dont come back.
    ".....we been seein them rugs....they sure are nice...we needs...."
    Uh-huh, she saw the rugs and wants them. The girl has a magic gaze that evaporates other peoples property rights, kinda like superman's laser-vision cuts steel. Impressive.

    Edwin -"...I can every fucking once in a while go to the beach and enjoy myself without some asshole claiming it's his land and stopping me" , "you don't have an absolute right to land-property" , " only libertarians think they have an absolute right to own parts or all of the dog."

    Thats you Edwin, just like the girl. A thief, plain and simple. Thats why I agree with Anon about shooting thieves when you are left no legal recourse.
    Fuck you Edwin. Really...piece-of-shit socialist....fuck you. I am hoping you get excruciating colon cancer, and on your way to have a colostomy you get into a wreck and survive, but your spine is severed. Fuck you.

  • ||

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

    You're joking, right? Liberals are always for the biggest guy, the government, squashing everyone, little guys and big guys alike.

  • ||

    Libertarians are no better than Democrat and Republican government-lovers.

    Libertarians love the primary function of government, that is, to dePRIVE people.

    That's what PRIVate land property is all about: dePRIVation. Ask the Indians on the Trail of Tears. Some were even dePRIVed of life itself to make PRIVate property.

    Land TITLE that deprives whole peoples of land so a few can own PRIVate property is the primary government enTITLEment program.

    Oh, how "libertarians" love that enTITLEment program that dePRIVes.

  • ||

    See my reply to Edwin 'you got a dollah, gimme a dollah' above. Consider yourself included in my fond wishes for him.

  • mr.vb||

    thank u

  • شات بنات مصر||

    i love u

  • قبلة الوداع||

    ThaNk U

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