News: CJ Exclusives

Friday Interview: Property Rights Fight

Group seeks constitutional amendment to prevent a Kelo in N.C.

In today’s Friday interview the John Locke Foundation’s Donna Martinez discusses eminent domain and property rights with former Raleigh City Councilman Kieran Shanahan, who heads the North Carolina Property Rights Coalition.. The interview aired on Carolina Journal Radio (click here to find the station near you).

Martinez: Let’s give a quick refresher course. Exactly what is eminent domain law? Because this has been used for many years now by governments.

Shanahan: That is a great question. If you go back to our forefathers, one of the reasons many of them came here was the right to own private property that they couldn’t do in other places around the world. And so, ingrained in our Constitution — specifically the Fifth Amendment — it does give the right of governments to take someone’s private property for a public use upon the payment of just compensation.

Martinez: Now what would be a public use? Is that a road? A bridge?

Shanahan: Precisely — a road, a bridge, a firehouse, a police station, something that the government needs to carry out its core mission, which is to protect people and to provide certain utilities.

Martinez: And then the government is required to pay the private citizen for that property, right?

Shanahan: And that is known as “just compensation,” which is a secondary problem if you live here in North Carolina. The word “just” does not really describe the process that we have compensated people when a legitimate taking does occur. So our organization is not against legitimate government takings for public use, roadways and the like.

Martinez: And when you mention your organization, the name of the group is the North Carolina Property Rights Coalition. You can visit their website at www.ncpropertyrights.com. So what is it then, Mr. Shanahan, about the Kelo v. City of New London decision that is different, and that has alarmed so many people, including you and others in the state of North Carolina?

Shanahan: Well, the hue and cry, if you will, comes out because taking someone’s property under any circumstances is unsettling with the average landowner. But in this case — and the alarming trend that is going on — is that local municipalities have seized on the notion of economic redevelopment. To say: we are going to go into an area that we think is blighted and we are going to take the blighted area and move those folks out and then bring in Starbucks, or bring in some fancy condominiums or something that will enhance the tax base, or that the local powers believe will enhance the tax base. And so basically, it’s displacing people from their homes to give the property to another private entity to run for private purposes, with the indirect benefit being that the local municipality will garner increased taxes from it.

Martinez: Well, help me understand something here because I am a little bit confused. For example, the North Carolina League of Municipalities — which is the organization that represents cities and town governments around the state — that organization is on record as saying, hey, North Carolina law doesn’t allow a Kelo-style taking in the first place, so all of you folks who are upset about this and very concerned, you are really concerned over a problem that doesn’t exist in North Carolina. Is that right or wrong?

Shanahan: That certainly was the spin, if you will, that was placed on it. That isn’t accurate. The primary economic redevelopment statute in North Carolina has two very troubling provisions, which makes North Carolina worse than Kelo in my opinion. That is, you can go into these blighted areas and take not just blighted homes, but any home within the area.

Martinez: Now, how would a government do that if something is not blighted and they aren’t looking at a legitimate public use such as a road or a bridge?

Shanahan: Well, they use this statute to go in and say that you are within an area — they carve out this street or that street and any home within that that they need to put together an assemblage so that they then can go to a potential developer or, say, a Dell, that they bring, or somebody that may bring a manufacturing facility in. So they go into that area and take all the property so they can put it together in an assemblage and then make it attractive for economic development. So that is the first side and that is basically the Kelo-type case. The reason that I say that we are worse than Kelo in North Carolina is that same statute’s next provision says that the municipalities can go into areas that might become blighted. And to me, that rings alarms bells because, when I first read it, I felt the need to run home and mow my lawn and make sure that somebody doesn’t come along and say that my home was blighted.

Martinez: That a picture was being taken and it was going in your “permanent file” as they like to say!

Shanahan: Exactly. So I think North Carolina’s law is too wide open for municipalities and, like any government authority, once they have power, you know, case in point, the legislature when they pass those temporary taxes, they somehow become permanent. We have laws on the books that need to be whittled back. What the local municipalities are going to say is, we are not going to abuse our position to do it. But the truth is, that kind of power is fraught with opportunities for abuse. And as I mentioned earlier, the impact on the taker and the person’s property that is taken, and the effect on him, puts him at odds with government, and he has very little ammunition, if you will, to be able to resist the taking, and more important, to be justly compensated when the taking occurs.

Martinez: Your organization is endorsing a constitutional amendment to the North Carolina constitution to prevent a Kelo-style taking from occurring in the state. Why do you believe that’s necessary? Again, some of the critics of groups like yours are saying, hey, we can’t do it in North Carolina anyway — the statute just doesn’t read that way.

Shanahan: Well, first of all, the statutes on the books, including the one that I mentioned and a dozen more, specifically give Kelo-type legislation. The problem is, legislators come and go. Legislation oftentimes, and regrettably in North Carolina, takes place out in the hallway. We have the ability to have local bills passed, where if everybody in your delegation agrees, then a bill gets passed and, frankly and honestly, most of the rest of the legislators don’t pay any attention to it. It’s a local bill and if all the local people want it, it gets passed. To have that ability taken away by a constitutional amendment would be like sealing the Pandora’s Box. If we don’t do that, we know, because human nature is that these municipalities are hungry for cash, looking to build tax base, and they are going to use it.

Martinez: Do you think you are going to be successful?

Shanahan: I know this — we aren’t going to stop until we are successful.

Martinez: All right.

Shanahan: And it’s going to be a grassroots effort.