Eminent Reluctance

Roads may get politicians' hearts pounding faster, but as state after state has discovered recently, nothing lights a match under the public like reports of unfair government encroachment on property rights. Which explains why 34 states have made changes to their eminent domain laws in the wake of the U.S. Supreme Court's 2005 decision in Kelo v. City of New London. That decision technically confirmed the right of local governments to use eminent domain for economic development purposes, but legislatures have reacted by scaling back the opportunities to do it.

Virginia joined them in this year's legislative session. The Republican-controlled General Assembly passed a bill allowing local government to seize property for such "public uses" as parks, public buildings and infrastructure, and for eliminating blighted property-- but only if the property to be taken is itself blighted, not just in a blighted area. The measure also tightened the definition of "blight." All of this was in line with changes in other states, and all of it made Virginia localities decidedly unhappy, because it makes it harder for them to assemble property for redevelopment or address the challenges posed to troubled neighborhoods as a whole.

In Virginia, however, governors are allowed unlimited power to amend legislation that reaches their desks--although their changes then have to be approved by the legislature. And local governments had an ally in Democratic Governor Tim Kaine, who as a former mayor of Richmond is well acquainted with the ins and outs of trying to redevelop blighted neighborhoods. Yet Kaine proved to be of limited help--a perfect illustration of why the Kelo decision was such a bad deal for cities.

To begin with, any substantial changes moving back toward a broader eminent-domain approach would run counter to the weight of editorial opinion, public sentiment and a strong majority of legislators. And Kaine had bigger fish to fry. His top concern for the year was a massive transportation funding measure that was the subject of extensive negotiations with the legislature--and on which he was demanding considerable give from Republican leaders. So when the eminent-domain bill reached his desk, Kaine opted to do just modest tinkering. He changed the definition of "blight" from a condition threatening "public health and safety" to one threatening "public health OR safety"--thus giving localities a bit more flexibility. He removed a requirement that property could be "blighted" only if vacant. And he exempted an ongoing effort in the city of Norfolk to clear the way for a recreational facility being built by a nonprofit.

"Overall," says Mark Flynn, a lobbyist for the Virginia Municipal League, "his amendments were either benign or improvements. Still, it got us just 10 feet in a thousand-mile journey."