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David whips Goliath: Man vs. the state

October 14, 2012 12:10 am

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A constitutional amendment can help to preserve the American dream of homeownership and property rights.

YOUR HOME is your castle, isn't it? It's where you hang your hat at the end of the day, raise your children, plant your garden, barbecue in the backyard, or tinker in your garage. When you come home from a trip, it's the simple comfort of a cup of tea in the kitchen or sleeping in your own bed. There's no place like home. But what happens to your American dream if the government wants your property for a bigger mall?

Perhaps you think your property is safe from the ever-reaching tentacles of government encroachment. I met recently with Spotsylvania County's very own David. Dale Swanson didn't look much like David but she soundly whipped Goliath. She used to think her property was safe until the day a D-9 bulldozer appeared in her front yard. She was notified of "property inspections" for the mall expansion and the now defunct, infamous Harrison Road connector. On her small pond they brought barges, and bulldozer tracks damaged her road. One wonders what mammoth-size bulldozers and barges have to do with inspections. Obviously, far more damage was done to Dale's property than was necessary.

Dale's 6-acre property became a centerpiece of punitive destruction after she opposed the mall road. An appraiser placed the damage to her property at $98,000, for which she has yet to be compensated. At first, it was rumored that the mall was paying for the road. Slowly, the details began to emerge in stories by Dan Telvock in the The Free Lance-Star that the homeowners' land would be taxed to pay for the road under the newly created Community Development Authority.

HOW DOES THIS HAPPEN?

The tax allotted to Dale's property, not including her regular property tax, was $64,000 per year for the next 100 years. A tax of this amount would have forced her from her home and destroyed the market value of her property, which has been in her family for 200 years. In fact, when Dale tried to refinance her house, her banker told her that since she'd been in the newspaper and her land had been basically condemned, the bank would not be able to assist with her refinancing. The words of Supreme Court Justice John Marshall in 1819 echo through to our day: "The power to tax involves the power to destroy."

How do the actions of local government go so far beyond the limits of its authority as to post deputies on a person's property while bulldozers rape the land without the necessary permit? Does the Fourth Amendment to the Constitution ring a bell here?

Dale Swanson sued the county and settlement talks are stalled because they want her to sign a "gag" rule. How many rape victims are put under a gag rule?

Finally, the Spotsylvania Department of Erosion Control figured that the necessary permit to disrupt more than 2,500 square feet was not in place. There was no authority to do what was done to Dale Swanson's property. None. But David didn't give up. The indefatigable Dale Swanson garnered the support of neighbors, and with 511 signatures protested to the Board of Supervisors dressed in orange trash bags to represent the "trashing" of their property rights.

The tide turned. Then-Attorney General Bob McDonnell issued an opinion in response to Del. Mark Cole on the matter, putting the final nail in the CDA's coffin. McDonnell wrote in his Oct. 20, 2008, opinion:

Because local governments are subordinate creatures of the Commonwealth, they possess only those powers conferred upon them by the General Assembly. An ultra vires act is one that is beyond the powers conferred upon a county by law. Such acts are void ab initio, from the beginning. Because I conclude that a county is not directly or 'by necessary implication' authorized to enact an ordinance permitting petitioning landowners to withdraw from an Authority once it has been created, I must also conclude that enacting an ordinance containing such unauthorized provision an ultra vires act. Therefore, such an ordinance is void ab initio.

David stopped the bulldozers.

The right to own private property is inextricably linked with freedom. Throughout history, one of the first things tyrants do is confiscate private property. Property ownership encourages responsibility and freedom and less dependence on government. "The Real Story of Eminent Domain in Virginia," published by the Virginia Institute for Public Policy, is a powerful lesson in government gone wild.

Protect your home and property. It's your castle that's at stake here. It doesn't matter whether you live on a 600-acre farm, in a quaint downtown shop, in a small house by a babbling brook, or in busy city condo. Your home and your property are yours. The government must respect that and only you can hold them accountable by your vote. No one should have to endure Dale Swanson's seven-year nightmare. Vote "yes" on the Virginia Eminent Domain Amendment (Question 1) on Nov. 6.




Mary Walsh is a freelance writer who lives in Spotsylvania County.




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