Local Government,State Government

JLF Expert Urges Real Property-Rights Protection With Constitutional Amendment

Bakst's new report offers model language, spells out critical provisions

Jan. 28th, 2011
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RALEIGH -- Legislators should provide real property-rights protections as they pursue a constitutional amendment targeting eminent domain abuse. The John Locke Foundation's top legal expert offers that advice in a new Spotlight report.

"There will be only bite at the apple if an eminent domain amendment becomes law, and it will be very difficult to address abuse through an amendment again, at least for the foreseeable future," said Daren Bakst, JLF Director of Legal and Regulatory Studies. "This means the legislature needs to get the amendment correct and not push an amendment simply to get something through and claim a hollow political victory."

Recent efforts to strengthen North Carolinians' protections against eminent domain abuse have died in the General Assembly. "Since 2006, the North Carolina House twice passed a constitutional amendment to address eminent domain abuse," Bakst said. "Both times, those amendments failed to be considered in the Senate."

With new leadership in both the House and Senate, "there is optimism that an eminent domain amendment will pass in this new legislative session," Bakst added.

A House bill filed on the first day of the new legislative session matches the eminent domain legislation the House approved in 2010. "It's good to see that the House is focusing attention again on eminent domain abuse," Bakst said. "But this is precisely the type of weak amendment that should be avoided."

An amendment is critically important, Bakst said. "North Carolina has the weakest property rights protection in the country," he said. "This is the only state that does not expressly address eminent domain in its constitution. There is absolutely no state constitutional protection from eminent domain abuse, such as the government seizing private property for economic development."

Past state Supreme Court rulings and blight laws open North Carolinians up to the threat of eminent domain abuse, Bakst said.

Since the controversial 2005 U.S. Supreme Court ruling in Kelo v. New London, eight other states have strengthened eminent domain protections through constitutional amendments. "That list includes neighbors Georgia and South Carolina," Bakst said. "It is past time for North Carolina to follow suit."

Bakst aims to help the amendment process by offering his own model language. In just two paragraphs and six sentences, Bakst addresses the key problems an eminent domain amendment should address. His report offers a line-by-line analysis of the model language.

"The primary purpose in discussing a model amendment is to identify what protections need to be in place regardless of how an amendment affords those protections," Bakst said.

Bakst spells out six crucial provisions. "First, an amendment should prohibit any takings for private uses, whether they're related to economic development or not," he said. "Government should not take property from one private party and give it to another private party."

A second protection focuses on "public use," the words governments have used to justify eminent domain takings in the past. "Public use should have its traditional meaning," Bakst explained. "That meaning includes the use of property by the government, by utilities for conducting utility business, or by the public as a matter of right. For example, a public use would include seizing property for a highway or courthouse."

Third, the amendment should prohibit end runs around its prohibitions, Bakst said. "The government should not be able to use blight laws to seize property for private uses," he said. "Neither should the government be able to identify some public use -- such as public transportation -- and use that as an excuse to seize property primarily to benefit a private party."

A fourth critical element focuses on the burden of proof. "An amendment should force the government to bear the burden of proof that the reason for the taking is proper," Bakst said. "Without this provision, governments will easily be able to do end runs around prohibitions against eminent domain abuse."

Fifth, an amendment should ensure that "just compensation" offered to property owners in the case of an eminent domain taking makes them whole, Bakst said. "Even if a property owner receives fair market value for her property, this will never put her in the same position she would have been in had the property not been seized," he said. "The government should face the same burden as a defendant under tort law."

The sixth key provision also addresses just compensation. "A jury of one's peers should decide the issue of just compensation, if the property owner requests a jury," Bakst said.

States should enact constitutional amendments only when there is a significant issue that must be addressed, Bakst said. "When it comes to an eminent domain amendment, the need is clear," he said. "The issue is certainly significant."

"The North Carolina legislature has a chance to make a real difference this year when it comes to eminent domain abuse," Bakst said. "Legislators should take advantage of the unique opportunity."