Wednesday, August 30, 2006

Cities Race to Acquire Land Before U.S. Court Ruling Is Undone

By Greg Stohr

Aug. 15 (Bloomberg) -- Officials in Riviera Beach, Florida, needed to act fast. Governor Jeb Bush was poised to sign a bill to limit government seizures of private land, jeopardizing the town's vision for a $2.4 billion waterfront redevelopment.

So city officials called an emergency meeting for May 10, the night before Bush's planned signing. Looking to beat the clock, the City Council approved a contract with the project's developer and promised to use the city's power to take land for public use to secure the necessary property.

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The national poster child for eminent domain abuse

This editorial says a town "has truly become the national poster child for eminent domain abuse."

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A Win for Property Owners, Setback for Kelo Developers

by William F. Jasper
August 12, 2006

The Ohio Supreme Court delivered a unanimous and historic ruling on July 26 that is being heralded as a major victory for property rights and a stinging blow to last year's infamous U.S. Supreme Court Kelo decision, which ruled that local governments can use eminent domain powers to condemn private property for commercial development.

The most immediate beneficiaries of the Ohio ruling are Carl and Joy Gamble of Norwood, Ohio, who faced losing their home of 35 years. They and their neighbors in a tidy Norwood neighborhood were to be evicted by Norwood officials in favor of a developer who had plans to replace their homes with a condominium-office-shopping complex; the court decision rejected Norwood’s “right” to do so.

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Simple Sense from Ohio's Supreme Court

By Steven Greenhut

The Orange County Register


As a rule, the freer the society, the more easily understood and straightforward its laws and constitution. The meaning of the First Amendment is pretty clear to most anyone, but it takes a decoder ring - or the judgment of an elite group of government regulators - to explain whether one is in violation of the USA Patriot Act or the Clean Water Act.

Simplicity is the friend of freedom, obfuscation its foe.

And so the enemies of freedom would have us believe that the Constitution's fairly simple words don't precisely matter - only the penumbras and complicated modern interpretations. Which explains why the high court often makes rulings that seem grievously at odds with the founding text. For instance, in Kelo v. City of New London (Conn.), the U.S. Supreme Court ruled last year that cities can take private property and give it to other private parties even though the Fifth Amendment clearly limits such takings to "public uses."

We've all gotten used to this type of thing. But once in a while, clarity and simplicity win out, and judges actually read the words of our founders and apply them as they were meant to be applied. The ruling came in late July, yet I'm still stunned and slightly giddy over it.

A frequently divided Ohio Supreme Court ruled unaminously against an Ohio city that was trying something similar to the issue at the heart of the Kelo case. The city of Norwood invoked eminent domain to take properties from current owners and give them to a developer in order to promote economic development. The new owners would pay more in taxes and provide more desirable uses than the old owners, according to the city.

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The legislative "solution" to eminent domain abuse isn't good enough

Since the conclusion of the 2006 legislative short session many members of the General Assembly have proudly touted their support for a bill that purports to protect our private property from eminent domain abuse. Unfortunately, many of these same legislators opposed the only form of protection that will truly stand the test of time: an amendment to the North Carolina Constitution. The legislation that was passed and signed into law -- and of which many legislators are apparently quite proud -- can easily be undone by a future legislature. We believe North Carolinians deserve more than this mere band-aid.

Private property is one of the most fundamental rights of citizens in a free society. If you agree that this important right deserves constitutional protection, click here to sign our petition calling for a constitutional amendment that will give us protection that stands the test of time.

The John Locke Foundation's view of why we need an Eminent Domain amendment:

Property rights have received renewed attention in large part because of the Kelo v. City of New London case. In that case, the United States Supreme Court held that the government can seize private property solely for economic development reasons. In other words, if the government can find a better economic use for private property, it can seize it and transfer the property to a private developer. This opinion has sent shockwaves throughout the country. If anything good came out of Kelo, it was putting eminent domain abuse and other property-rights violations (e.g., forced annexation) on policymakers' radar screens.

A Constitutional Amendment is Needed

Eminent domain is the government's power to seize private property for a public use as long as just compensation is provided to the property owner. The Fifth Amendment of the United States Constitution states "Nor shall private property be taken for public use, without just compensation." After Kelo, the term "public use" basically has been deleted from the U.S. Constitution. Below are some frequently asked questions that demonstrate the need for North Carolina to develop a detailed constitutional amendment to protect against economic development takings and other eminent domain abuses.

  • Why does North Carolina need a constitutional amendment instead of legislation?

    Even if state statutes protected us from Kelo-type (economic development) takings, a statute can be changed at the whim of political interests. A constitutional amendment is difficult to change and provides the necessary protection. If the U.S. Supreme Court gutted our freedom of speech rights, would we feel comfortable that a state statute protected our freedom of speech? Property rights are fundamental rights that certainly deserve the same type of protection as other rights listed in the Bill of Rights.

  • Doesn't North Carolina law already protect us from Kelo-type takings?

    Absolutely not. There are local acts (bills passed by the General Assembly affecting a local community) that specifically allow for economic-development takings. North Carolina has a law that allows the state and local governments to use eminent domain to complete revenue bond projects that are designed to promote economic development.

    This revenue bond provision is a great example of why an express constitutional prohibition on economic-development takings is necessary. It was so buried in the statutes that legislative research staff for the special House eminent domain committee did not find it until a couple of weeks before the committee's interim report was completed. What other provisions are buried in the statutes?

    Most importantly, the state's urban redevelopment law (or "blight" statute) is so broad and subjective that it could allow economic-development takings, if not in name, then in effect. Even a prohibition on economic-development takings may not be enough to protect against the abuse of this law.

Click here for the rest of the John Locke Foundation report

Monday, August 14, 2006

NCPRC Chairman addresses Wake County Libertarians

N.C. Property Rights Coalition Chairman Kieran Shanahan spoke to the Wake County Libertarian Party's meeting on August 10. Kieran's speech is mentioned on the LP's blog.

Since the coalition's launch, Shanahan has attended a number of events in an effort to educate North Carolinians on the very real dangers of eminent domain abuse. He has attended Republican and Libertarian events, as well as meetings of civic and other non-profit organizations.

The coalition also attempted to reserve a table at the N.C. Democratic Party's convention in High Point, but was told there was no room at the inn.

An excellent picture of government's "our way or the highway" approache to eminent domain

This article provides an excellent picture of the dangers of eminent domain abuse:

Sound Transit insisted all the way to the Washington state Supreme Court that posting an agenda four clicks deep into a government Web page is adequate notice of an eminent domain action.

No phone call. No letter. No posting on the property. The law requires notice, but unnoticeable notice such as a Web posting was legally adequate, Sound Transit's lawyers insisted.

And the court bought it.

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Zoning Rules Create Home Office Headaches

From The News & Observer (8/14/06):

For the fifth time in 25 years, Garner; residents Jack and Carol Metts are seeking to rezone their residential home along N.C. 50.

Since 1969, the couple has operated a popular barber and beauty shop out of their house, cutting the hair of such dignitaries as former Gov. Jim Holshouser.

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Monday, August 07, 2006

Jury rules in favor of Durham landowner

From The News & Observer (8/5/2006):

The owner of a gas station won a land dispute with the state Transportation Department this week when a jury awarded $995,000 -- 66 times what the state was offering.

Attorneys for Holmes Oil Co., which owns an Exxon station at the corner of N.C. 55 and N.C. 54, argued that when the state Department of Transportation took more than 3,500 square feet for road work, the gas station would be virtually inaccessible to customers.

"They've taken a convenience store and made it inconvenient," said Emmett Haywood, a Raleigh lawyer who represented Holmes Oil along with Durham lawyer Jay Ferguson. "The DOT wants to put on blinders and say they're just paying for what they're taking and not the damages they're causing."

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Editorial: Ohio lawmakers must solve eminent domain

The eminent domain pendulum swung in favor of government about one year ago when the U.S. Supreme Court ruled that private property could be taken for purposes of economic development.

It shifted back to personal property rights in the Buckeye State after a recent Ohio Supreme Court decision rejected economic development as a sufficient reason for taking someone's land.

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Property rights measures head for ballot showdowns in western states

Other states are putting property rights amendments on the ballot -- but North Carolina's legislature has refused to do so.

Momentum building for backlash

(7/27/06) - The Ohio Supreme Court's decision Wednesday in favor of homeowners in a hard-fought Norwood eminent-domain case will reverberate across the country.

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Land restrictions cost Wilson property owners

(News14) -- City leaders are restricting development around the Wilson Airport in hopes of bringing new businesses to the area. But some property owners say the restrictions are costing them thousands of dollars.

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Residents annexed by Fayetteville question sewer service

(News14) -- It's been almost a year since parts of western Cumberland County became part of Fayetteville, but residents still have questions about the annexation. The mayor and city staff members addressed those issues at a town hall meeting.

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Eminent Domain protection not in the cards


RALEIGH — North Carolina landowners won’t be getting any constitutional protection from governments taking their property for private economic development, not this year anyway.

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Shanahan interviewed by Carolina Journal

Kieran Shanahan, Chairman of the NC Property Rights Coalition, was recently interviewed by Carolina Journal. The text of the interview is here.

Eminent Domain soars since Kelo ruling

This is an interesting read on the increased use of government's eminent domain powers in the wake of the Kelo decision.