I met a woman this weekend who said she was voting against 1, because it would make eminent domain EASIER. Not wanting to argue, we agreed we were both voting against 1, but for different reasons.

I predict the electoral outcome on 1 will be almost random.

by AWalkerInTheCity on Nov 5, 2012 10:45 am • link • report

I think it will be random because people don't really know anything about it. My father-in-law who abreast of issues was told by me about it and I didn't know about it until I saw a sample ballot at this year's state fair. A lot of people won't be seeing it until they walk into the booth.

Which is one reason why I don't like referendums for state laws.

by drumz on Nov 5, 2012 10:49 am • link • report

drumz has it right, I think. This is going to be random because people seldom pay attention to the ballot referendums, and because there are several of 'em this year.

That being said, there have been articles about this in plenty of the local press (I've seen it covered in at least three of the media sources I read at the gym), so it may have a chance to break through in this area, at least.

by Ser Amantio di Nicolao on Nov 5, 2012 11:03 am • link • report

I agree that the voting for VA question 1 will be random, because I have seen almost no public discussion on the issue. Even in VA, I see many ads on the MD ballot initiatives but none on the VA ones. I also first learned of the initiative when I saw a sample ballot, in my case in the Washington Post local insert. Many - most? - people will be voting on it in as a knee-jerk reaction seeing it on the ballot in the voting booth without having given any thought to the ramifications.

I will vote against VA 1, but my guess is that it will pass.

by AlanF on Nov 5, 2012 11:10 am • link • report

I think it will pass...uninformed people will read it and think it sounds good because it appears to protect private property rights without any regard for the fact that this will end up eating away at infrastructure development and maintenance budgets at the state and local government level, and in the case of utilities, represent additional capital costs that will be pushed off on the ratepayers. As an engineer for a Northern Virginia utility who is frequently involved in land acquisition negotiations, I am concerned about this initiative.

by xtr657 on Nov 5, 2012 11:20 am • link • report

The author is right. It will have the effect of dramatically increasing the costs of many projects, at a time when infrastructure costs are already a serious problem for budgets in the Commonwealth.

Sometimes people don't think through the reflexive anti-government slogans to the financial impact on roads, sewer, airports and all the systems that government teams up with private sector forces to build.

by Crickey7 on Nov 5, 2012 11:23 am • link • report

Here's an unintended consequence of this amendment: The additional "lost access" and "lost profits" compensation only applies to commercial property owners (who own their own land or have a long-term lease arrangements). Residential property owners get no additional compensation from the amendment. This means that seizing land from homeowners will become more cost-effective relative to seizing land from commercial owners, probably significantly.

Maybe this shift in incentives will not be significant enough to change actions, or maybe it will. I'm not sure that a constitutional amendment is the right place to be experimenting with policy that has never been tried here or in any other state.

by Daniel on Nov 5, 2012 11:28 am • link • report

This may be an overreaction to the Kelo decision, but it would be helpful if you described the existing safeguards to prevent such abuses. What happened in New London was an abuse of government power which ultimately led to unmitigated disaster in city planning. The voters rightfully cautious and want to curb the future potential for such injustices.

by goldfish on Nov 5, 2012 11:38 am • link • report

How much ED is happening on the Silver Line? Seems like they already have the ROW established.

by Stu on Nov 5, 2012 11:39 am • link • report

And I will say that reading the question for the first time had me leaning yes. But upon further review I'm more inclined to tell the General Assembly to try again.

by drumz on Nov 5, 2012 11:41 am • link • report

The fix to Kelo was political, not Constitutional. The local government was lax in determining the public good to be served and how to achieve it. Highly visible screw-ups like that are self-correcting.

by Crickey7 on Nov 5, 2012 11:45 am • link • report

@Stu - Silver Line and the HOT lanes are linked together in the way their funded. The idea of linking tolls to transit projects is an innovative alternative. Because the 495 Express Lanes did require ED, messing with it would mess with Silver line.

@drumz - Thanks. I'm glad I got this obscure point across.

@goldfish - Overreaction indeed. Perhaps they should go back and try again, maybe without such a loosely worded buckshot measure.

@daniel - great point. Yes, homeowners will likely be preferred targets for ED relative to commercial owners for this very issue.

by Michael Rodriguez on Nov 5, 2012 11:48 am • link • report

@Crikey, not sure that politics can be relied upon to correct every abuse. Think of the urban highways that were built in the 60s, despite opposition. They got built anyway, and we are still paying the price.

by goldfish on Nov 5, 2012 11:48 am • link • report

The point is that if there is a political process that can correct it, then we should avoid Constitutional "fixes". The Constitution cannot be a guarantor of outcomes, only process.

by Crickey7 on Nov 5, 2012 12:05 pm • link • report

@Crieky: check out that 14th amendment -- it addresses a problem that was (mostly) already solved politically by the civil war.

We don't need to get as far as New London to recognize that there is a constitutional shortcoming.

by goldfish on Nov 5, 2012 12:08 pm • link • report

Goldfish, do you think a constitutional amendment against urban highways should be passed in Virginia? Do you think in the absense of one there is no way to prevent a new interstate destroying say, Old Town Alexandria?

And if there IS to be a constitutional amendment against urban highways in Va (I look forward to AG Cuccinelli proposing it) wouldnt it be a good idea to make sure its carefully drafted to avoid unintended side effects?

by AWalkerInTheCity on Nov 5, 2012 12:10 pm • link • report

The problem with amendments like this (and 1-5 in MD) is that such things are very hard for the general public to have an informed opinion about. Worse, detailed legislation does not belong in a constitution. What makes the US constitution so great is that it is a rather simple, readable document. Too many amendments and details clutter constitutions.

The reason why all such items end in constitutions is because constitutional amendments are one of the few ways through which unelected people can get legislation passed. And since the general public often pays little attention, you can do quite some damage in a very undemocratic way.

MD question 7, though not constitutional, is a good example, as the campaign for and against are largely driven by out-of-state companies (WV casinos v MGM).

by Jasper on Nov 5, 2012 12:24 pm • link • report

Let's be clear on one thing, this is not an amendment in the sense of an additional article to the constitution. The language addressing takings is already in Article 1 of Virginia's constitution. The ballot issue is to augment, add, or amend existing language.

by Stu on Nov 5, 2012 12:36 pm • link • report

Thanks for the informative opinion, Michael. I read the language and was immediately suspicious, and sounds like I was right.

Here's a good rule of thumb to live by in Virginia. If the Assembly wants to amend the state constitution, you can safely assume they are up to no good.

by Trespasser on Nov 5, 2012 12:42 pm • link • report

I had planned to vote "no," but if this would make public-private "partnerships" more difficult then I'm wavering. They usually benefit companies at the expense of the public.

I'll probably still vote against it, but it will pass. It would likely be close if people understood the implications, but I would guess that most people will be reading it for the first time in the voting booth.

by Greg on Nov 5, 2012 12:45 pm • link • report

@ Jasper I agree, things are best left to the legislative process, and intervening in state constitution language should be used very judiciously. And its especially dangerous when initiatives like this go forward with little public discussion or awareness. Like folks mentioned, most people will see this for the first time tomorrow when they read their ballot.

by Michael Rodriguez on Nov 5, 2012 12:45 pm • link • report

@ Greg. The public-private partnerships (P3) issue is just one of many. Even if you don't like P3s (but I'll remind you Silver Line is built on the back of a P3), there are more than enough other unintended consequences. Increased costs. Making residential property a better ED target. The language about not taking "more than necessary", which is absurd for transportation right of way projects that always require a buffer. Lots of stuff I that's too long for me to get into in a single blog op-ed.

That's the problem of such broad language. They could have narrowly tailored the scope of the amendment of this to prevent this. My thought is that the partisan agenda behind this is content with anything that makes the functioning of government more difficult.

by Michael Rodriguez on Nov 5, 2012 12:52 pm • link • report

Agree with Jasper. Virginians will vote affirmatively for this amendment without knowing what they are voting for. Honestly, I would consider the ballot measure pretty reasonable too, if I were unaware of the details omitted from the question. This is why all of the opposition showed up at the General Assembly over getting in on the ballot, and nobody has spent a dime trying to influence the actual referendum.

by Daniel on Nov 5, 2012 12:55 pm • link • report

This article is weeks late. Half a million have already voted on this

by Chris on Nov 5, 2012 2:34 pm • link • report

I agree that ED is necessary. I also question the wisdom of this VA ballot question. But what horrifies me is the DEM position.

I think that the DEMs have done a great disservice to themselves in focusing on ED as a "cost to government" issue. The political traction on this issue is not cost to government, but cost to the people who get scr*w*d by ED, including by the lowballing of restitution for ED. There are many cases where the amount offered by the govt is very low: in effect, the price is lower for government only because they underbid the property. What is worse, is that the poor and minorities have historically been those who suffer most from ED, and many of the infrastructure was linked to contracts that reward politcal allies. e.g. black neighborhoods that were condemned for a new highway build by a friend of the mayor.

Many of the worst ED abuses have been associated with the same big infrastructure projects that are regularly derided on this blog: mega highways, public housing projects, etc, loss of "organic communities" in the face of some ill-considered new vision that fails 50 years later. Perhaps if the ED costs had been higher, there would have been more consideration of the issue before charging ahead.

by SJE on Nov 5, 2012 2:50 pm • link • report

Put it another way: how would GGW readers feel if large swathes of DC had been razed for a giant freeway?

by SJE on Nov 5, 2012 2:52 pm • link • report

a. if the compensation is lowballed, there is recourse to the courts. I have no reason to beleive that comp is lowballed in Va.

b. your concern for black neighborhoods does not seem relevant to likely infrastructure projects in Va. I am not going to vote based on what might or might not have happened in DC or Chicago 30 years ago. I live in Virginia, in 2012.

c. We are not all here against large infrastructure projects. I am not. I am not even against all highways. And I certainly think the way to stop bad ones, is through the political process, not by arbitrarily raising the cost of ED.

d. And yes, this will raise the cost of govt, which is a concern to Va voters. And which is passed on to all of us as taxpayers.

by AWalkerInTheCity on Nov 5, 2012 3:07 pm • link • report

Chris: We made an endorsement over a week ago.

by David Alpert on Nov 5, 2012 3:12 pm • link • report

@ SJE:how would GGW readers feel if large swathes of DC had been razed for a giant freeway?

You mean like for I-66, I-395 and I-295?

by Jasper on Nov 5, 2012 3:28 pm • link • report

If the government does the ED and determines what is "fair" it is very difficult and expensive to challenge it. Would you want to spend $500,000 protesting the government's paying you 250,000 for your 500,000 loss? Making certain things explicitly included in the valuation makes it easier for an ED opponent to fight for that right. If the state now has to offer you 450K, you might be willing to take it.

Note that govt usually only counts the price paid under ED, not the full cost to the government, which can include millions fighting things in court, relocation costs, etc. None of this gets to the issue of what is wrong with compensating businesses for their losses? If the project is worthwhile and necessary, we should be willing to pay for it. ED tries to make that cost lower by stiffing the owner.

by SJE on Nov 5, 2012 5:05 pm • link • report

Jasper: there were plans to make the 395 spur go all the way out, paving over large sections of NE.

by SJE on Nov 5, 2012 5:06 pm • link • report

@ SJE: there were plans to make the 395 spur go all the way out, paving over large sections of NE.

Yeah, yeah. I know. The C100 is still trying to derive legitimacy from stopping that.

by Jasper on Nov 5, 2012 8:57 pm • link • report

Oh good, it'll make it harder for the government to forcibly seize property for ill-defined reasons, and also make public/private partnerships less attractive. Two birds with one stone. (I still can't believe that people like the idea of a private entity profiting while taxpayers pick up the risk. We have too much of that in this country.)

by Mike on Nov 6, 2012 7:45 am • link • report

Mike: exactly. Too many times "partnership" involves taxpayers subsidizing a private business, while the private business just happens to employ lots of the mayor's relatives as consultant. Of course, if the private business supports the mayor's enemies, its property might be considered to be "essential" and subject to ED.

by SJE on Nov 6, 2012 11:12 am • link • report

PPP's can be structured so that the private partner shares the risk, or takes most of it. And again, its not clear how TOD would fare under this amendment. Thats an increasingly important way to finance transit improvements.

Anyway, I already voted No on this.

SJE - why do you keep saying "mayor"??? Most transportation projects in Va happen in counties,not cities. I wouldnt quibble, but I am wondering if you live in Va, or are up on our politics?

by AWalkerInTheCity on Nov 6, 2012 11:21 am • link • report

I voted for it because the wording was ample for me to justify the Kelo-type scenario. It clearly differentiated commercial benefit versus other ventures. I've watched folks say it won't happen time and time again and it does. Eastern Baltimore County can give you a long explanation.

by T1 on Nov 6, 2012 4:25 pm • link • report

Sure, PPP's can be structured so the taxpayers don't get the pointy end of the stick, but then they're not really attractive to the private end of the partnership.

by Mike on Nov 6, 2012 9:44 pm • link • report

People voted for this amendment because developer rights should not supersede property ownership by private citizens. We don't want our homes and businesses taken, with pennies on the dollar paid, so someone can build another neighborhood of McMansions or a new Petsmart.

People living in every developed region of Virginia have witnessed eminent domain land grabs that are immediately turned over to developers, all under the argument that redevelopment brings higher taxes and therefore is in the public interest.

Over the last few decade many people have lost their homes, neighborhoods, businesses, and communities because of this practice. These people worked hard for property ownership, all to have it taken away so some developer crony could build a new shopping center with more big box stores. Most are not paid enough to reasonably relocate and replace what they are losing... because if a developer was forced to pay a fair amount, the redevelopment would not be profitable.

This amendment makes these backroom, underhanded deals between local governments and private interests much more difficult. We should all celebrate it.

by Nola on Nov 7, 2012 8:55 am • link • report

Nola,

This isn't a rhetorical question. But do you have some examples? The only one I can think of that qualifies is in Alexandria but the land in question is for a park and not part of the private development further up which is already spoken for.

by drumz on Nov 7, 2012 9:19 am • link • report

The arguments that this will make infrastructure more expensive are probably true, but it's also the case the National Environmental Policy Act and other laws that require Environmental Impact Statements make infrastructure more expensive. Indeed, they were a direct result of the "freeway revolts." Would people oppose NEPA and the requirements for EIS and EA because they make infrastructure more expensive? At the very least, thinking about it that way I think one can understand why many people don't consider the cost argument sufficient.

On a practical standpoint, I think that people like having the ability to block megaprojects that they don't like, but want ones that they like to go forward. That means for some people opposing the policies that would have prevented I-66 and I-495 from razing neighborhoods in the past, since now *their* preferred infrastucture views have the upper hand.

by John Thacker on Nov 7, 2012 9:37 am • link • report

The most obvious example that I remember was in Hampton in the late 90s/early 00s, where holdouts in neighborhoods and businesses were declared EM to build the "Power Plant" shopping center. Most of these holdouts were retirees or business that had paid off their mortgages and could not afford to relocate elsewhere the area based on what they had been offered by the city.

This information was not widely reported, because the local machine was heavily behind the new shopping center development. I knew one of the families forced out by EM personally and read some of the paperwork.

While that is the only example that I can testify to as 100% an abuse of EM, in Henrico and Richmond I saw several transfers of property under EM for road expansion -- only to see that same property become a fast food restaurant or retail store a year or two later. Forcing a property turnover to store a dump truck on it for a year, then selling to Panera Bread, should not be a reasonable use of ED.

by Nola on Nov 7, 2012 9:51 am • link • report

@John Thacker: nicely put; I was instinctively seeking a similar argument.

People have accused this blog of corporate and development boosterism, cloaked in smart growth arguments. This endorsement supports that interpretation.

by goldfish on Nov 7, 2012 10:10 am • link • report

goldfish: This post is not an endorsement, but a contributor post. Here is our endorsement.

by David Alpert on Nov 7, 2012 10:17 am • link • report

what ultimatley turned me off was the nice ACDC flyer:

It made the point that

1) this would cost a lot of money

2) and it isn't neccessary because it is already protected by statute.

So, it is the current law, how is going to cost more?

by charlie on Nov 7, 2012 10:23 am • link • report

I have the same objection to the official GGW endorsement against Question 1. "[T]he amendment is worded so broadly that it might require local governments to give significant financial compensation to property owners for any number of mundane and necessary actions... Routine projects could become prohibitively expensive, and get mired in court for years at a time."

Aren't these the same arguments made against environmental regulation like NEPA? The same arguments made against mandatory community consultation, open meeting laws, and stakeholder involvement? That routine projects get mired in court for years at a time in lawsuits? Yet GGW supported Arlington's lawsuits against various I-395 plans, and called accusations that this was making projects more expensive or slowing it down exaggerations.

(The Washington Post, consistently, also attacked the I-395 lawsuit for slowing things down.)

Protecting the environment costs money and slows things down, but it's the right thing to do. Having the entire community pay the whole cost of building a road instead of taking someone's land and giving them a lowball number also costs money and slows thing down, but it's the right thing to do.

I don't know if this amendment goes too far (though I concur, it seems odd if some say both that it isn't necessary because it won't do anything but it will cost a lot), but if you only make the argument about costs, lawsuits, and time, you sound just like the people who want to gut environmental laws or stakeholder involvement. Or you sound like people who want every tool possible to kill projects you personally don't like, but want to be able to steamroller over opposition when you like the megaproject in question.

by John Thacker on Nov 7, 2012 11:37 am • link • report

@John Thacker

The objection in the official endorsement is that the vague wording of the law might force the government to compensate people for changes that have nothing to do with taking their land.

The example given in the endorsement is, if the state decides to build a median on a road and thereby restricts left turns into a business, does the state then have to compensate the business for a theoretical loss? Note in this case building the median wouldn't require taking any property away from anyone.

by MLD on Nov 7, 2012 12:16 pm • link • report

If developers and local government did not want to have a backlash against eminent domian, then they should not have abused it so much in the past. Now governments will have to responsible for their actions instead of passing goodies on to private companies.

by superdestroyer on Nov 7, 2012 3:49 pm • link • report

"this would cost a lot of money

2) and it isn't neccessary because it is already protected by statute.

So, it is the current law, how is going to cost more?"

let me just resolve the dissonance - the argument was that that the GOOD parts (no ED for kelo style redevelopment, fair compensation) WERE already law - but that depending on interpretation, the amendment will cause changes BEYOND those - paying beyond fair market value, limiting use for legit public private partnerships or creative financing arrangements like TOD.

Right now I must say I can't get too upset - Id much rather have the broader result last night and lose on this amendment, than the reverse. I also note the anti waterfront redevelopment folks lost in Alexandria, the GOP lost Va in both presidential and senate elections, and the folks are going to have to rethink this who tea party thing. And BHO even mentioned climate change!

If and when they try to use this to block some valuable TOD project, we will deal with it then. Or just watch Md and DC pass us.

by AWalkerInTheCity on Nov 7, 2012 4:12 pm • link • report

I say "mayor" as shorthand for politician with appropriate excecutive power to enact ED. It could be anyone.

We now see that the measure passed handily, which goes back to my original point. If the DEMS were against this, they should have made a decent campaign to oppose it and EXPLAINED why. Instead it was about "costing government more" which the ED opponents rephrased as "making the government pay more if it wants to ED your property." When that is the argument, the measure deserved to pass. Even in DEM strongholds there is a resistance to government expenses: see union bashing/backlash in Chicago or Wisconsin.

by SJE on Nov 7, 2012 5:15 pm • link • report

If developers and local government did not want to have a backlash against eminent domian, then they should not have abused it so much in the past.

Well, thank you, so very much, for yet AGAIN saddling my generation with the sins of our fathers. Isn't it great to have future progress, transit development, and all the other great things killed because goddamn boomers once again get theirs, and everyone else can DIAF?

by AlbuterolGonzales on Nov 8, 2012 11:43 am • link • report

"The example given in the endorsement is, if the state decides to build a median on a road and thereby restricts left turns into a business, does the state then have to compensate the business for a theoretical loss? Note in this case building the median wouldn't require taking any property away from anyone."

I see. That seems pretty similar to allowing neighbors to block construction because of environmental concerns, or because their view is being obstructed, or because it affects their commute or increases auto congestion, or because it divides a thriving community, or any of a number of externalities.

If we accept that the government should compensate local groups for externalities, isn't it at least under reasonable discussion whether the government should compensate individuals when construction imposes significant externalities? It seems to me, roughly, that the case for compensating someone for externalities is even higher when only one person or business bears the entire cost.

Note that similarly I'd be quite willing to make local business *pay* or otherwise chip in when there are positive externalities that give them a windfall when developments are built. If, for example, an intersection is reconfigured that greatly helps people turning into a particular business, then I think that business should shoulder more of the burden.

by John Thacker on Nov 9, 2012 8:40 am • link • report

"Isn't it great to have future progress, transit development, and all the other great things killed because goddamn boomers once again get theirs, and everyone else can DIAF?"

Again, the same argument can be made about NEPA and Environmental Impact Statements. They're only required because the boomer ran roughshod over so many communities when putting in the Interstate Highway System. They were a direct result of the freeway revolts.

Right now, those same laws make future progress and transit development a lot more expensive and time-consuming. But it's worth it if it prevents the environmental mistakes of the past from being repeated.

The fact that the previous generation made mistakes without these rules suggests that our generation might make the same mistakes without good rules and processes. Don't automatically assume that we've advanced so much.

by John Thacker on Nov 9, 2012 8:43 am • link • report

EIS statements are required because of abuses to the environment going back more than a century not for boomers.

As for ED, I see no evidence of such abuse in virginia, by boomers or any other generation. The better quesion, is why should positive projects in Virginia suffer becaues of what was done in New London Connecticut?

(btw - this "Note that similarly I'd be quite willing to make local business *pay* or otherwise chip in when there are positive externalities that give them a windfall when developments are built." is a total piperdream in Virginia - at least as a general rule - the politics in Va that created this amendment is totally pro-property owner, and is based on property owner paranoia, stirred up by the tea party, and channeled through AG cuccinelli)

Third, EIS, etc are NOT parts of the federal or (AFAIK most) state constitutions. Its STATUTE law. There is nothing in how we handle EIS or anything related that suggests having these ED limits in the constitution is a good idea.

Nonetheless, there is so much more that is positive that happened Tuesday, this mistake can be taken in stride.

by AWalkerInTheCity on Nov 9, 2012 9:00 am • link • report

Folks, I'm glad that I at least was able to spur some discussion. Unfortunately, they threw the baby out with the bathwater here, and it will be a year or 2 before all counties, cities, and the DOT in Virginia start complaining about the ramifications of this.

You'll see the effects next time your favorite TOD project becomes prohibitively expensive and then doesn't happen at all. Not to mention the adverse effects this will likely have on Phase 2 of Silver Line.

I think the point that the EIS requirements is statute, not constitutional, is important. Yes, there are things that make the functioning of government more expensive, but usually there's a more compelling societal interest. I don't think this amendment made that compelling.

With regards to protecting the "little guy," existing statutes already addressed Kelo-style development. Let me repeat: Kelo-style development is already prevented by existing statutes in Virginia. One more time: the current law in Virginia limits emiment domain for private developer redevelopment.

So all this ammendment did was protect commercial property by adding "lost profits" and "lost access" rules. Ironically, this may have the effect of making residential property a better target for ED.

This wasn't a simple statute that they can easily change when they realize they regret this. To change this will require yet another constitutional ammendment. This was the Tea Part's strategy all along, and I at least saw past the veneer of "property rights" and looked at who was really behind this.

And to the folks who just don't seem to like ED and are happy when things cost more, this is not a compelling argument. You're effectively suggesting some sort of a "Tax" on ED; make it more expensive just so that it happens less.

Why not just add something that says "property owners need to be compenseted one bajillion dollars, in addition to compensation for emotional trauma, their dog's emotional trauma, time spent in the ED process, and more." I'm sure THAT would really make government have to think about ED, right? Just make it more expensive for government as a general rule? "ED bad. Make more hard." Alternatively stated as the argument: "Blahhh! The Man! Blahhh!"

There's a reason that courts have upheld ED compensation norms and rejected claims for lost profits and lost access; and this is undermining over a century of state Supreme Court precedent that was well justified.

by Michael Rodriguez on Nov 9, 2012 10:30 am • link • report

Well used in my neck of the woods in Va to build shopping centers and bring in big retail companies. Tearing down old neighborhoods for projects that only bring in 1/3 of the tax gain because they can not fill the centers. Lovely. When you bring in 3 or 4 retailers, price club stores, fill the middle with over price ice cream stores, this is what you have to do to get the land to get these companies to built.

by TSN on Nov 10, 2012 4:06 pm • link • report

TSN?

Wheres that? Can you link to an article about a specific project?

by AWalkerInTheCity on Nov 10, 2012 7:17 pm • link • report