Farmers whose land is taken using eminent domain should be able to access what’s left of their property and should be compensated for profits lost when a condemning authority has decided to take their land.
That’s one premise of a proposed amendment to Virginia’s constitution that was passed by this year’s General Assembly and will be on the ballot for voters in November.
As part of the language in the resolution, the state legislature has been asked to define lost profits and lost access.
“We feel that defining these terms is a critical step in moving the constitutional amendment forward," said Trey Davis, assistant director of governmental relations for Virginia Farm Bureau Federation.
“Anyone can have their property taken for eminent domain, and if they can’t access their (remaining) property or don’t get compensated for lost profits, that’s not fair."
Earlier this winter, Attorney General Ken Cuccinelli cited an example of a dairy farmer whose land was taken by the Virginia Department of Transportation to build a road. VDOT deposited a sum amounting to 20 percent of the value of the farm buildings on that land into an account, but it took two years for the farm owner to get the money.
Without a barn and milking parlor or money to build new ones, the farm family was forced to sell its cows.
“This quick-take demolished their business,” Cuccinelli said.
The family had to wait two years before receiving any compensation, and they received no money for the business lost during those two years.
“With other parts of the state code, the law allows Virginians to seek and be compensated for lost profits, so why is it fair to exclude those affected by eminent domain?” Davis asked.
HJ 3 and SJ 3, the House and Senate versions of the constitutional amendment, tighten the definition of public use and require just compensation for owners whose property has been taken using eminent domain.
Companion legislation, HB 1035 sponsored by Del. Johnny Joannou, D-Portsmouth, and SB 437 from Sen. Mark Obenshain, R-Harrisonburg, defines lost profits and lost access to property as required by the amendment.
“The financial penalty incurred by farmers during eminent domain takings is real and provable,” Davis said.
"With the enactment of this legislation, farmers will at least have the opportunity to be justly compensated in court. I'm thankful that HB 1035 and SB 437 have seen bipartisan support and also that we have reached a compromise on language between many of the condemning authorities and property rights advocates."