One former state Supreme Court of Appeals justice called the ruling a "grave error," but a case decided last year about the state's authority to use eminent domain leaves unanswered questions about when private property can be condemned.
The case involved Spencer contractor David Heeter and land his company purchased in Logan County in 2006 anticipation of winning a construction contract for work on state Route 10. However, the state condemned the land for use in the road project after bids came in higher than anticipated, believing the lack of a nearby waste disposal site was driving up costs.
Heeter said he was offered $118,000 for the land after having spent $125,000 purchasing it and another $225,000 preparing it for waste disposal. He fought the state Department of Transportation's condemnation in court, but last year the state Supreme Court ruled in the state's favor, saying the agency was well within its rights to use its condemnation power.
Heeter's company eventually was awarded the contract, but he said he took a financial hit.
"If I thought I would have lost the Supreme Court case, I would have bid higher than I did, (but) I thought right would prevail," he said.
The court opinion was not unanimous. In a dissenting opinion, former Justice Elliott "Spike" Maynard said the court had made a "grave error" in ruling in favor of the state.
"The dangers of abusing government power to take private property cannot be overestimated or overstated," he wrote. "The power of eminent domain should only be used to take private property when the taking is absolutely essential for a public purpose and when there are no reasonable alternatives to such a taking."
Heeter said the decision could cause other contractors in the state to rethink making similar land purchases in an effort to keep their bids low and save the state money.
"It nearly destroyed all the confidence of contractors in West Virginia," he said.
Michael Clowser, executive director of the Contractors Association of West Virginia, said he didn't know whether the ruling would have an effect on contractors in the state.
The association filed a friend-of-the-court brief in favor of Heeter, but not because it opposes the state's use of eminent domain. Rather, it was concerned about the process the state used to condemn the land, given it only exercised its power after Heeter's and other contractors' bids came in higher than projected.
"It is the overall fairness of the bidding process and the competition it enhances that will produce the highest quality work at the lowest possible cost to the taxpayers of West Virginia," the association stated in its brief.
The DOT argued in the case and has argued since that it does not regularly condemn land for use as waste sites.
The Heeter case has failed to catch the attention of national organizations that watch for alleged eminent domain abuse. Many groups are focusing instead on the ramifications of the 2005 Kelo v. New London case, in which the U.S. Supreme Court ruled there was nothing preventing the city of New London, Conn., from condemning private land so it could be given it to a private developer.
However, Timothy Lee, an adjunct scholar with the libertarian Cato Institute, said a common point of contention in many cases is that land owners are not compensated for the real value of their condemned land.
"It is a hard problem," he said. "Unless you have had a recent sale, it is kind of a matter of opinion how much the land is worth."
