Status of the Eminent Domain Amendment

The State House voted yesterday to send House Bill 1268, a proposed amendment to the state constitution to ban eminent domain abuse, back to the Judiciary II Committee.

More on this:

More on the eminent domain amendment (blog post by Becki Gray of the John Locke Foundation)

Under the Dome: Domain bill condemned to committee

Eminent Domain: The Biggest Property Rights Issue Deserves the Right Solution

The following was released earlier this week by The John Locke Foundation:

This week, the North Carolina House is expected to consider a constitutional amendment (H B 1268) to address eminent domain abuse. While the House should be commended for taking up this crucial issue, the proposed amendment is a cure worse than the disease. Through some minor changes though, this amendment could offer real protection.

The Latest Amendment

“Private property shall not be taken by eminent domain except for a public use. Public use does not include the taking of property in order to convey an interest in the property for economic development. This paragraph does not apply to the taking of physically blighted properties as defined by general law, nor to takings for access to property. Just compensation shall be paid and, if demanded, shall be determined by a jury."

The Problems with the Amendment

I. Blight Abuse

This amendment would expressly allow economic development takings so long as the property is “physically blighted.” The problem is that “physically blighted” can mean almost anything (e.g. an unattractive house, an old building, a home that is outdated, etc).

By not properly defining blight, the amendment would give the green light for abusing blight (urban renewal) laws to seize private property for economic development. It would actually undermine statutory protections the legislature put in place a few years ago to address the abuse of blight laws. Here’s what others have said about the abuse of blight laws to seize private property:

Indeed, the displacement of African-Americans and urban renewal projects are so intertwined that “urban renewal” was often referred to as “Black Removal.”
- Senate Testimony of Hilary O. Shelton, NAACP Washington Bureau Director (2005).

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“Under that act [Federal Housing Act of 1949], which was in force between 1949 and 1973, cities were authorized to use the power of eminent domain to clear ‘blighted neighborhoods’ for ‘higher uses.’ In 24 years, 2,532 projects were carried out in 992 cities that displaced one million people, two-thirds of them African American.
— Institute for Justice study

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Eminent domain abuse cannot be effectively addressed without limiting blight condemnations, which have caused more harm than any other kind of taking…

Moreover, a ban on economic-development takings is unlikely to be effective without parallel restrictions on blight condemnations. Effective reform efforts must address the two major flaws of current blight takings: over-expansive definitions of blight and abusive takings in truly blighted areas.
- Ilya Somin, George Mason University law professor and national expert on eminent domain

Simple Solution: By properly defining blight, these problems can be addressed. For example, the amendment could state: “does not apply to the taking of blighted properties that are abandoned or pose a risk to the health and safety20of the public.”


II. Allows Government to Make End-Runs Around the Prohibition on Economic Development Takings

When the government seizes private property for economic development, it rarely comes out and admits it. So long as the government identifies a secondary reason for taking private property, which is easy to do, courts will defer to this reason. The amendment provides little to no protection against these end-runs.

Like Michigan has done with its new constitutional amendment, there should be a burden of proof requirement.

Simple Solution: Require that the government have the burden of proof to show, by clear and convincing evidence, that the taking is for a public use, and that the taking would not have occurred but for the public use.


III. Other Problems

A) Technical Mistake: The current amendment would have the unintended consequence of not requiring just compensation for “physically blighted” properties or takings for “access to property.” This problem can be fixed by simply making the last sentence of the amendment its own paragraph.

B) Access to Property: Under the proposed amendment, an economic development taking would be allowed when it is for “access to property.” This could mean seizing a house so that a driveway could be built for a shopping mall. This language is far too broad.

C) Just Compensation: The amendment should specifically define just compensation to include relocation costs, loss of business goodwill, attorney’s fees and other costs necessary to make eminent domain victims “whole.”

Conclusion

North Carolina needs an eminent domain amendment — the legislature understands that as evidenced by the bipartisan support for the proposed amendment. At best, there will be one bite at the eminent domain reform apple—this amendment would waste this critical opportunity. Fortunately, by making only slight changes, the amendment could provide real eminent domain reform.

Eminent Domain and Dirt

Article by Daren Bakst at the John Locke Foundation: Message to NC Senate: Please Treat Us Like Dirt.

Wilmington: Airport ready to cut elderly man's trees to the ground

From the Wilmington Star-News: Airport ready to cut elderly man's trees to the ground

Article: The Wrong Eminent Domain Amendment

by Daren Bakst of The John Locke Foundation

Editor's note: this article is the opinion of the author; the NC Property Rights Coalition has not yet taken a position on this particular amendment.

After the 2005 U.S. Supreme Court decision in Kelo v. New London, it's constitutional for the government to seize private property for economic development reasons. For example, your house or church could be seized so that a wealthy developer could build a shopping mall on your property.

Since 2006, eight states have passed constitutional amendments to protect against what are referred to as "economic development takings." There has been bipartisan support for a constitutional amendment in North Carolina. In 2007, the House passed an amendment by an overwhelming 104-15 vote. The state Senate, notorious for its opposition to property rights, let the amendment die.

Recently, some House members have introduced a new eminent domain amendment: House Bill 1268. The amendment would prohibit takings for economic development. It appears as if the amendment may be on the fast track. This may sound good on its face, but when it comes to this amendment, the cure is worse than the disease. The amendment would actually weaken, not strengthen, property rights. more...

NCPRC expects eminent domain amendment to be introduced

We expect an eminent domain amendment to be introduced at the General Assembly in the coming weeks. Such an amendment would protect your property from being unjustly seized for purposes other than a legitimate public use such as a school or road.

On May 24, 2007 a proposed eminent domain amendment (HB 878) passed the NC House by a vote of 104-15. On May 29, 2007, the bill was referred to the N.C. Senate's Ways & Means Committee -- which had not met since 2001. The bill was clearly sent away to die.

We will keep you posted on the progress of the eminent domain amendment once it is introduced. We hope that the House & Senate leadership will give it the fair hearing it deserves.

Protecting Private Property Rights included in AFP's legislative agenda

Americans for Prosperity of North Carolina has included protecting private property rights as one of the key issues in its 2009 legislative agenda.

From an e-mail recently distributed by AFP-NC:

Protect private property:

o Support a constitutional amendment stopping eminent domain abuse.

o Stop forced municipal annexation.

o Stop excessive property tax increases that threaten homes & businesses.

Book written about Kelo case

Book Review: 'Little Pink House' Relates Eminent Domain Injustice.

2008 N.C. Property Rights Voter Guide Now Available

The 2008 N.C. Property Rights Voter Guide is now available on our Web site. Click here to find out where the candidates stand on protecting private property rights.

Property Rights Voter Guide -- Coming Soon

Late last week, the N.C. Property Rights Coalition mailed a 12-question candidate survey to every legislative candidate in North Carolina, as well as candidates for Governor, Lt. Governor and Attorney General. We will use candidates' responses to publish a voter guide to let citizens know where candidates stand when it comes to private property rights.

Please encourage every candidate you know, regardless of party affiliation, to return our survey. Private property rights are one of the cornerstones of our free society, and we should know where they stand on this important issue.

N.C. Property Rights Coalition launches new Facebook group

The NCPRC recently ventured into the world of social networking by launching a new Facebook group. Click here to join.

WRAL: Condemnation off for downtown Raleigh plaza site

According to WRAL.com, Raleigh officials have reached a tentative agreement with the owners of a downtown site being eyed for a proposed plaza. Last month, the Raleigh City Council voted to begin condemnation proceedings to seize the property using eminent domain. According to WRAL, that process would halt if the City Council gives final approval to the agreement with property owners.

The Threat of Eminent Domain in Raleigh

From the Civitas Institute's blog (Red Clay Citizen): The Threat of Eminent Domain in Raleigh

Deal reached in years-long eminent domain case

From SignOnSanDiego.com: "A vacant lot that once housed a thriving downtown San Diego cigar shop – and stands as a reminder of some of the evils of government taking people's land – looks set to finally become a four-star hotel. The dispute reaches back to 2004 when the city used eminent domain to take Ahmad Mesdaq's Gran Havana Cigar & Coffee Lounge in order to assemble land for a Gaslamp hotel developer."

A few things jump out of this article:

1. This was a classic example of a small business being confronted with the specter of "taking on city hall."

2. The dispute wasn't solved overnight -- it took nearly four years.

3. The land wasn't taken from the property owner to build a bridge, school, road or for some other legitimate public use. From the article: "The city condemned the corner parcel in 2004 to make way for a Marriott Renaissance hotel."

Eminent Domain: Land grab or tool to rebuild?

From the California Eminent Domain Law blog:

Taxpayer groups are battling elected officials over the government’s right to seize property in a campaign that could impact thousands of homes and businesses in California.

Each side is pushing a measure for the June ballot that would reform eminent domain, — which allows local governments to seize privately owned homes and businesses and turn them over to developers for shopping malls and office parks.