Yes Virginia, There are Property Rights to be Protected

Yesterday's election brought some real encouraging news about property rights. In Virginia, voters passed a constitutional amendment protecting property owners from eminent domain abuse-and it wasn't even close:

"Voters overwhelmingly approved a constitutional amendment that some officials contend will make it nearly impossible for Virginia localities to seize private property for redevelopment.As of 10:30 p.m., the statewide amendment had 76 percent approval, which was enough for The Associated Press to call it."

Sponsor Rob Bell had some important insights on the underlying rationale for the effort: "When you give the voters a chance to affirm their constitutional rights, they take it," sponsor Del. Rob Bell, R-Charlottesville, said late Tuesday night."You don't really own your property if the government can take it from you and give it to someone else," he added."

That, however, is just the situation we are facing in New York State, where there are basically no protections for property owners-and no US senator willing to spearhead support for the Private Propert Protection Act that was passed by a wide margin in the House this year (H.R. 1433). It seems that both of our senators-including the re-elected (by a wide margin) Kirsten Gillibrand-have a greater desire to protect Big Real Estate than the homeowners and small businesses of New York. (The junior senator didn't even bother to answer our letter on the eminent domain bill)

That's particularly sad because both Schumer and Gillibrand posture relentlessly as supporters of the little folks-while cleverly cloaking their support for their real constituency in the real estate community. What the Virginia situation shows is that if the issue is put up for a vote, people on all sides of the political aisle will stand for the property rights that the US Constitution is supposed to protect.

The fight in Virginia was given some poignancy by one particularly aggrieved property owner:

"The amendment's passage shows that property owners are fed up with the "abuse of power," said Central Radio business owner Bob Wilson, who is fighting the Norfolk Housing and Redevelopment Authority's efforts to seize his property. The housing authority is attempting to acquire five properties for a private, mixed-use development project near Old Dominion University.

"It's going to put it right back to where it was supposed to be from the start," Wilson said Tuesday night. "They're going to have to negotiate in good faith with property owners."

Virginia was also blessed with a righteous attorney general-unlike our own Eric Schniderman whose pusillanimous investigation of the illegal lobbying around the Willets Point development ended in a whimper with the lawbreaking Sterling Equities being awarded development rights when the illegalities were not sanctioned by the AG:

"Virginia Attorney General Ken Cuccinelli visited Norfolk in September and cited Central Radio as an example of why the amendment was needed. At the time, Cuccinelli said housing authorities have been the "most aggressive at grabbing property" in the commonwealth, and he pointed to southeastern Virginia as being the worst."The biggest victory in Virginia, however, was the contentious issue of public use: "The amendment won't alter Wilson's case. But it will force localities, or their agents, to compensate property owners for lost profits and access in addition to purchasing their land. Governments will also have to prove that the seized property would be used for public use."

And not for the eminently amorphous "public benefit" that can be stretched to mean almost anything-including the building of a mall on parkland. Virginia's response was a result of its concerns about the implications of the 2005 Kelo decision that made economic benefit an excuse for condemnation:

"The General Assembly passed limitations on the use of eminent domain in 2007, two years after a controversial U.S. Supreme Court ruling that public entities could take private property and transfer it to a private business for economic development. Bell said the high court's 2005 decision was a "wake-up call."

The amendment goes further than the 2007 legislation did and requires a future constitutional amendment to undo the new restrictions. "You've literally taken the power away from the politicians and given it to the voters," Bell said."

New York property owners are left to look wistfully at Virginia, knowing that their feckless elected officials will never act to limit the power of the state when it comes to property rights-a sad commentary on the erosion of the protections that our Founding Fathers put in the Constitution. Maybe we need out own small homeowner like Suzette Kelo, clearly small business doesn't rate with the NY political class.