Lawmakers tossing rules under water

State legislators have an obligation to consider how their actions will affect individual property rights. But they have an equal obligation to consider the collective property rights of all Virginians.

Those two interests can conflict when the issue is ownership of land created decades ago from mud dredged from riverbeds and dumped on shore. Under long-standing public trust doctrine, subaqueous land belongs to the commonwealth and its taxpayers even after it is covered over with dirt. But that legal reality often comes as a surprise to homeowners and business developers who believe if they can see it, it's theirs.

Lawmakers have struggled for years to balance individual and collective property rights, and they've come up with a fair system. Now two Hampton Roads legislators - backed by Gov. Bob McDonnell - are trying to change the rules, in large part because one prominent landowner doesn't like them. Their proposal is unfair to property owners who have followed the rules, and it's unfair to all state residents.

Under existing state law, an applicant can clear the title to subaqueous property by paying 25 percent of its assessed value, a bargain by any standard. The law also gives the Virginia Marine Resources Commission the authority to accept a smaller sum if the agency finds that unique circumstances exist.

Bills sponsored by Del. John Cosgrove, R-Chesapeake, and Sen. Frank Wagner, R-Virginia Beach, would turn VMRC into a rubber stamp for any application involving land filled before 1960. In those cases, the agency would be prohibited from charging more than a small fee to cover administrative costs for the conveyance.

Cosgrove said many landowners would benefit from the bill, but only one of them has been a regular in Richmond in recent years. Virginia Beach developer Wayne McLeskey owns property in Fort Norfolk adjacent to filled bottomland. He has been paying taxes on the land, and a series of legislators have tried to help him resolve the problem.

But McLeskey never seems to be satisfied. Indeed, he outraged some of his supporters in 2006 when he tried to seize public riverbed beneath the Elizabeth River in addition to the dry land that first inspired his quest. More recently, he has been embroiled in a lawsuit with Virginia Beach over riverbed that was filled with sand during construction of the Rudee Inlet Bridge.

McLeskey, his wife and his business have made more than $400,000 in political donations over the past 15 years, including $37,300 to McDonnell's attorney general campaign and inaugural fund, according to the Virginia Public Access Project.

The developer's political clout, along with the fact that he is a former board member at VMRC, should inspire caution. Instead, members of McDonnell's administration and top business leaders are lobbying heavily for the Cosgrove and Wagner bills, and they're making headway. Last year, House Agriculture Committee Chairman Harvey Morgan, R-Gloucester, helped kill a similar bill, but this year he abstained even though he publicly expressed concerns about the measure.

If dozens of unsuspecting landowners are facing financial harm and have been unable to obtain relief under existing rules, as Cosgrove says, then he and Wagner should identify those people and the specifics of their cases. The legislators also should explain why those people should be treated differently from two property owners who paid a total of $84,000 in 2009 to obtain clear title to commercial waterfront land in Norfolk. McLeskey could follow the same process, but he has not.

"Just because someone may be able to afford it doesn't make it right," Cosgrove told a legislative committee Wednesday.

But just because one person doesn't like the rules doesn't mean the legislature should change them. And without more evidence that a problem exists, they shouldn't.