Tuesday, September 25, 2007

Charlotte Observer: Landowners feel railroaded

Concord auto mechanic Frank Abernethy, struggling to run his small business, was caught off guard by the unannounced visit from the railroad agent.

It was early August when the employee from the state-owned N.C. Railroad Co. showed up at his garage and demanded he sign a lease for $1,200 a year in rent and fees. He also said Abernethy needed $1 million in insurance because his shop sits too close to the tracks.

Even though the mechanic bought the property in 2005, the railroad says it technically owns his land -- and has 19th-century deeds as proof.

"Nobody told me that when I bought the building," Abernethy said this week. "I told the guy, `What are you trying to do, put me out of business?' "

The railroad says there are hundreds of other property owners like Abernethy along its 317-mile line from Charlotte to Morehead City. One day, the company could try to reclaim the disputed parcels. But for now, the railroad just wants rent, said Scott Saylor, railroad president.

It's part of the railroad's push to take back and manage its right of way -- the 200-foot-wide buffer along the tracks. more...

Sunday, September 23, 2007

John Locke Foundation Report: Eminent Domain in N.C. -- The Case for Real Reform

John Locke Foundation Report: Eminent Domain in N.C. -- The Case for Real Reform

Background on Eminent Domain and Kelo

  • Eminent domain refers to the government’s power to seize private property without the consent of owners.

  • In 2005, the United States Supreme Court, in the now infamous case of Kelo v. City of New London, held that the government could seize private property solely for economic development reasons. For example, if a house can generate more tax revenue as a strip mall, then the government can seize the house and transfer it to a strip mall developer.

What Other States Have Done
  • Seven states have already passed constitutional amendments to protect against eminent domain abuse, include neighboring states such as Florida, Georgia, and South Carolina.

  • In Nevada, the voters overwhelmingly approved a new amendment but it requires passage in two consecutive general elections to become law.

  • When a state brings up an eminent domain amendment to the voters, which does not also try to address regulatory takings, the voters overwhelmingly pass the amendment.

What North Carolina Has Done
  • The House Select Committee on Eminent Domain Powers developed a watered down interim report in 2006 and was supposed to meet after the short session to address just compensation and other critical issues. For no apparent reason, it never met again.

  • The legislature passed a bill in 2006 that deleted provisions in existing law that expressly allowed for economic development takings. However, the legislature was not willing, in legislation, to expressly prohibit all economic development takings. In addition, the bill amended the state’s urban redevelopment (blight) law.

Why North Carolina Needs a Constitutional Amendment
  • North Carolina’s constitution has the weakest property rights protections in the country. It is the only state in the country that does not have an express constitutional provision that limits the taking of private property for a public use with just compensation.

  • State legislation is the only thing coming between North Carolinians and the government’s ability to take private property for economic development or any other reason. When legislation can be changed at the whim of political interests, this is far from adequate protection.

Limit Takings to a Proper “Public Use”
  • A constitutional amendment should only permit property to be taken for what has traditionally been understood to be a public use. Those reasons generally are not different from what North Carolina now allows in the state’s eminent domain statute.

  • Proper takings include property taken for use by the government or use by the general public. It also should include takings for utilities and common carriers in their role to provide services to the general public, and to protect against blighted property.

  • The blight justification for taking property must be very narrow in scope. If not, a constitutional amendment could actually be worse than the eminent domain abuse it is trying to solve. It should only mean taking property to protect the public from a clear and direct harm to the public’s health and safety that is caused by that parcel of property.

  • All takings for any private use should be prohibited (except for public utilities and common carriers, as explained above).

Protect Against the “Blight” Excuse
  • It is critical to understand that most eminent domain abuse has not come from blatant economic development takings, but instead through the abuse of blight laws.

  • It is almost impossible to demonstrate that a taking is really for economic development reasons, as opposed to addressing some overbroad definition of blight.

  • There is a “reverse Robin-Hood effect” when it comes to blight laws. The government takes private property from the poor to give to the wealthy.

Provide “Just” Compensation
  • The House Select Committee on Eminent Domain Powers had drafted a bill that identified a way to better compensate eminent domain victims

  • Many of the compensation issues that need to be addressed in a constitutional amendment are consistent with the compensation issues that the Committee identified in its interim report.

  • Generally, just compensation has meant fair market value.

  • Just compensation should be “just.” It should make eminent domain victims “whole.” This means that they should be put in the same position that they would have been in had their property not been taken.

Create a Fair Process for Eminent Domain Victims
  • The government always should have the burden of proof in all eminent domain proceedings.

  • The government should have the burden of proof to demonstrate that a taking of a specific piece of property is clearly necessary for the public use espoused and that no reasonable alternatives exist.

Bottom Line
  • An eminent domain amendment is a bipartisan issue, as seen by the wide support for recent eminent domain amendments even in North Carolina. Only politics and the desire to protect governmental interests will explain why a properly drafted amendment is not enacted.

Download PDF file: Eminent Domain in N.C.: The Case for Real Reform (701 k)

Annexed area pays police taxes twice

The Charlotte Observer

When residents of the Shannamara neighborhood got their tax bills last month, a few realized something strange: They'd been billed for police services in both Mecklenburg County and Stallings. Now, there may be nothing they can do about it. more...

Saturday, September 22, 2007

City of Toledo invokes eminent domain for mall

Toledo Free Press

The City of Toledo's proposed use of eminent domain for taking the Southwyck Mall properties for redevelopment will be the subject of a public hearing on Sept. 24. The issue of eminent domain became official with a resolution presented to City Council Sept. 18.

The resolution (603-07), calling for the use of eminent domain for the roadway extension at Southwyck Mall, was discussed and held for the next Council meeting on Oct. 2, due to the hearing, according to City Council Clerk Gerald Dendinger.

Eminent domain for Southwyck is the topic for the Environmental, Utilities and Public Service Committee meeting scheduled for 4 p.m. Sept. 24 in City Council chambers. The public is invited to attend and voice its opinion on the proposed use of eminent domain.

City Council member Rob Ludeman said eminent domain is a tool the City of Toledo can use to get Bill Dillard and Buddy Hering, who own parcels at Southwyck, to complete the deal with Larry Dillin, president of Dillin Corporation. more...

Friday, September 21, 2007

Forced Annexation in Selma, NC?

An interesting read from a local blogger in Selma, N.C.

Delaware state legislators seek to protect property rights

From the Cape Gazette:

Two state representatives say they’ll be working over the next several months on legislation to protect the property rights of all Delawareans.

State representatives Greg Hastings, R-Millsboro, and Dennis Williams, D-Wilmington, recently announced a cooperative effort that’ll use the resources of the Institute for Justice, the Delaware Bar Association and the state House of Representatives to craft a bill to shield private property owners from unwarranted governmental takings.

The issue has most recently surfaced in Wilmington, where city officials have threatened to use their power of eminent domain to seize as many as 62 properties as part of the next phase of the South Walnut Street Urban Renewal Plan. As many as 38 working businesses could be displaced if their properties are condemned by the city. Under the plan, the land would then be sold to private developers for use in high-end residential and commercial projects.


Thursday, September 20, 2007

Landowners threatened by eminent domain abuse

The Courier-Post

Some of what is taking place throughout the United States is surprising. Take for example, the legally authorized abuse of eminent domain. more...

Property owners: We'll fight for land rights

Property rights advocates said Tuesday they are ready for a court fight to defend a 2006 law that reduced local governments' right to seize property.

The test case may be in Osceola in southern Iowa, where local governments may attempt to seize farmland to make way for a reservoir.

"This lake project is about development and money under the guise of Osceola's water needs," said Cindy Sanford, whose farm may be taken for the project.

Sanford and other property owners spoke at a Statehouse news conference, joined by Reps. Jeff Kaufmann, R-Wilton, Jodi Tymeson, R-Winterset, and former Rep. Ed Fallon, D-Des Moines.

Kaufmann said there will be a two-pronged effort, one to fight for property rights in court and one to strengthen the 2006 law in the next legislative session. He said the law seemed adequate until "some knowledgeable lawyers found some loopholes." more...

Moore County: Pinewild Files Suit to Block Annexation

Southern Pines Pilot

A group of Pinewild residents have filed a lawsuit attempting to block the village of Pinehurst's planned annexation of the gated country club community.

Pinewild Project Limited Partnership, the company that owns Pinewild, is among the plaintiffs.


Wednesday, September 19, 2007

NoLandGrab.org: Eminent Domain Becomes Common in Developments

Eminent Domain Becomes Common in Developments

CA: Council to vote on land theft for “redevelopment”

CA: Council to vote on land theft for “redevelopment”

Iowa Lawmakers Call for Property Protections

DES MOINES, Iowa — Lawmakers and landowners called Tuesday for tightening a state law guarding property rights, warning that developers and officials are using a loophole to push for a new lake project that would flood dozens of Clarke County properties.

Two legislators said they would try to add new restrictions to a property rights law approved by the Legislature last year over the veto of then-Gov. Tom Vilsack.

"It really is important for lawmakers to stand up for landowners because Iowans just fundamentally believe it's wrong for government to take people's land and their homes and their farms for economic development," Rep. Jodi Tymeson, R-Winterset, said at a Statehouse news conference. more...

Tuesday, September 18, 2007

Lawsuit puts Tryon’s annexation on hold

From the Tryon Daily Bulletin

Leah Justice and Chris Dailey
September 14, 2007

The recently filed lawsuit against Tryon’s annexation automatically puts the town’s expansion on hold, and it could take a few years to resolve the case in court, according to David Lawrence of the N.C. Institute of Government.

Lawrence, considered a leading authority on annexation in the state, responded to questions from the Bulletin this week. He said the lawsuit, filed by 136 petitioners representing 88 properties (see list of names on page 15) in Polk County Superior Court in August, creates an automatic stay of the annexation.


Eminent domain plans not always successful

From NorthJersey.com:

When a developer devised a plan in early 2006 to turn Little Ferry's drab industrial area into a 12-acre, tax-generating waterfront, the concept appeared enticing.

A hotel along with restaurants, retail shops, condos, office space and parkland would replace an abandoned pipe company and several underused commercial sites along the Hackensack River.

But the plan created an uproar among residents because it called for designating the area blighted and condemning several homes and small businesses through eminent domain.

The project was shelved within a month.


Adding Insult to Injury: City Sues Victims of Eminent Domain Abuse

Eminent Domain Victim Victimized By Rock Hill Again

Sunday, September 16, 2007

Homeowner: Cary Wants My Land for Performing Arts Center

From WRAL.com:

Homeowner: Cary Wants My Land for Performing Arts Center

Marilyn and Marvin Goldman have spent the past 11 years living in a downtown Cary condo, but their home might be in jeopardy.The town of Cary wants to build a performing arts center and a parking deck at the northeast Corner of Dry Avenue and Academy Street. The problem is, the Goldman's home and 18 other properties are in the way.

“They’re going to bulldoze this,” Marilyn said. "It’s not my house they want. It’s my land they want.”
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