Wednesday, February 26, 2014

Obenshain's Property Rights Bill Passes Both Chambers

February 26, 2014

RICHMOND—Today, the House passed Senator Obenshain's SB 578, legislation establishing a more even playing field for property owners challenging unconstitutional land use determinations. The bill, which previously passed the Senate unanimously, entitles landowners to the award of compensatory damages, and permits the award of reasonable attorney fees, upon successfully challenging a local land use decision as being based on an "unconstitutional condition" pursuant to the state or federal constitution.

"When property owners run up against City Hall, it doesn't always seem like a fair fight," said Obenshain. "No matter what the merits of a property rights challenge, any property owner at odds with local government feels like David taking on Goliath."


"Two years ago, Virginians overwhelmingly affirmed their commitment to private property rights with the ratification of the Virginia Property Rights Amendment. But sometimes, property rights cases don't involve outright takings, but instead deal with overreaching—in the form of demands for payments or unreasonable conditions—by local governments in response to efforts by a property owner to use his or her land," Obenshain added.


Senator Obenshain's bill, SB 578, seeks to level the playing field and discourage localities from abusing their authority by imposing unconstitutional restrictions —for instance, by conditioning the issuance of a permit on the property owner making concessions entirely unrelated to the impacts or burdens imposed by the underlying application.

In Koontz v. St. Johns River Water Management District, the U.S. Supreme Court ruled that when government engages in land-use regulation, including by denying a permit or demanding payment as a condition for a permit, the government must show that there is a nexus and rough proportionality between its demand on the landowner and the effects on the proposed land use. The Court also found that petitioners have a right, when afforded by state law, to recover money damages in the event of an unconstitutional taking as defined in the Nollan v. California Coastal Commission and Dolan v. City of Tigard cases, establishing what has come to be known as the Nollan / Dolan Test.

Senate Bill 578 simply establishes that when a petitioner in a land use case proves in court that a decision to grant or deny a permit turned on an "unconstitutional condition," then the land owner is entitled to compensatory damages and reasonable attorney fees, as permitted by the U.S. Supreme Court.

"This bill represents a significant additional step in protecting homeowners from either actual takings or arbitrary decisions that deny them the right to use their property," said Obenshain.

"I was pleased to see this bill pass on a bipartisan basis," Obenshain added. "It shouldn't matter whether you're a Republican, Democrat, or independent: we should all be able to agree that if you can prove in court that the government abridged your rights, you shouldn't have to be the one footing the bill."

The bill passed the Senate 40-0 last month, and passed the House 98-1 earlier today. It now goes to the Governor for his signature.

Mark Obenshain represents the 26th District in the Senate of Virginia. He was the Republican Party's nominee for Attorney General in 2013.