News: CJ Exclusives

House approves amendment to restrict eminent domain amendment, strengthen property rights

(CJ photo by Maya Reagan)
(CJ photo by Maya Reagan)

A supermajority of the N.C. House has approved a proposed constitutional amendment to strengthen private property rights against eminent domain land takings.

The proposed amendment, House Bill 271, would hit the ballot in 2022. The bill passed the House, 101-17, Thursday, March 25.

Eminent domain, Jon Guze has written, “refers to the government’s power to take land from property owners who are unwilling to sell it voluntarily.”

“State and local governments throughout the country have a long history of abusing that power to benefit well-connected industrialists and property developers rather than the public. Compared to other states, North Carolina does a poor job of protecting property owners from that kind of abuse, and, for many years, JLF has advocated statutory and constitutional changes that would improve matters.”

Guze is senior fellow in legal studies at the John Locke Foundation.

The bill, a statement says, proposes that the state constitution be amended to prohibit condemnation of private property except for a “public use” and to require the payment of just compensation for the property taken in an amount to be determined by jury trial, if requested, by any party. Current law allows condemnation for “public use or benefit.”

The bill also makes statutory changes to detail the purpose for which property may be taken by eminent domain as “public use,” and clarifies the types of construction projects for which private property may be acquired by eminent domain by public and private condemnors. It would permit condemnors to acquire property by eminent domain for the connection of utility customers.

Rep. Dennis Riddell, R-Alamance, a primary sponsor, said in a news release the House repeatedly approved similar legislation in the past decade because it represents vital rights for the people of North Carolina. The legislation has typically died in the Senate.

“This legislation is necessary to prevent overreach of state government into property takings that are not for a public use, but rather benefit private development,” Riddell said. “We are currently the only state in the nation that does not have just compensation guarantees in our state constitution for government takings. That is a big concern for the people.”

Last summer, Locke and N.C. Advocates for Justice filed a joint amicus, or “friend-of-the-court,” brief in support of a Wake County property owner, Beverly Rubin, who has spent the past several years in a legal battle with the town of Apex over a sewer line that the town installed across her property in 2015.

It was a taking for private purposes, the court has ruled, as opposed to a public taking. The state constitution forbids the former. Still, the battle continues.

“It’s very important,” Guze said in a CJ video interview, “that however this plays out, we need to vindicate that principle. We don’t want towns and cities, or any government, to be able to take property for a private person, only if it’s a public purpose.”

The N.C. Court of Appeals recently heard the case, the latest step in the protracted legal battle. Problem is, Apex already installed the line, which now serves a subdivision.

“Not we have this awkward situation, where 50 homeowners are depending on that sewer,” Guze said. “All the alternatives are expensive, it’s going to take time, and there’s going to be a lot of inconvenience involved.”

It’s a hard call for the court, Guze said. The case has no precedent, though it’s possible this case could change that.

Rep. Dean Arp, R-Union, also a bill sponsor, said of the House measure: “There is no liberty when the government can take your property, or your freedom, without just cause and due process of the highest standards.

“We all understand there are some instances where the government may properly, with just compensation, declare eminent domain and take private property. But we do not want that great power of the government to be used to take your property and give it to someone else. That’s why this constitutional amendment is needed for North Carolina.”