House leaders once again will try to write eminent domain private property protections into the N.C. Constitution.
Rep. Chuck McGrady, R-Henderson, has filed a proposed constitutional amendment that would prohibit condemnation of private property for any reason other than a public use. It also would require just compensation when condemnation procedures are used, and would allow sides in condemnation lawsuits to demand a jury trial.
“This is directed at the Kelo case, where [the U.S. Supreme Court] set a standard if there was a public interest, it was constitutional under the federal constitution,” McGrady said.
In 2005, the federal justices ruled in Kelo v. City of New London that the Connecticut town could condemn private property for redevelopment purposes, saying that a public use included a public purpose.
Even though the Supreme Court ruled in favor of New London, the private developer was not able to secure financing for the project. The acquired land was left barren.
Rep. Paul “Skip” Stam, R-Wake, one of the co-sponsors, noted that the proposed eminent domain constitutional amendment has passed with broad, bipartisan support in the House over the past three sessions, under both Democratic and Republican majorities. But it has yet to pass the Senate.
Stam noted that former state Sen. Pete Brunstetter, R-Forsyth, had some qualms with the proposed change in the state’s constitution, preventing it from reaching the upper chamber for consideration.
“We’re thinking, with Pete gone, maybe we can do it,” Stam said.
“I think if this ever came to the floor of the Senate, this would pass overwhelmingly,” McGrady said.
While there is an eminent domain provision is in the Fifth Amendment to the U.S. Constitution, there is no such provision in the N.C. Constitution. There are statutes regulating condemnation proceedings, but statutes can be changed by the General Assembly.
Stam said that the N.C. Supreme Court has ruled, under other provisions in the state constitution, that just compensation must be paid when property is condemned for public use. He also said that North Carolina is the only state in the nation that does not give parties involved in eminent domain disputes the constitutional right to require a jury trial, although statutes do provide for that.
“That is a legal change, but not an operative change,” Stam said.
Other provisions of the bill would tighten state law to say that property could be taken for public use, but not for public benefit.
McGrady noted that the eminent domain change was included in the 2010 “first 100 days” agenda Republicans embraced in 2010 when they gained a majority in both chambers of the General Assembly. He added the bill is not related to the process for acquiring property for energy producers would need to satisfy before setting up fracking operations.
Stam noted that public use could include procedures that do not involve a government taking of property. For example, an electric utility could take property for an easement to run electricity lines.
Amending the N.C. Constitution requires support from a three-fifths majority of the membership of both chambers of the General Assembly. If the amendment passes both chambers by that margin, it would go to voters for ratification during the May 2016 primary.
Barry Smith (@Barry_Smith) is an associate editor of Carolina Journal.