News: CJ Exclusives

House Begins Post-Kelo Review

Supreme Court's ruling prompts look at state's eminent domain laws

A new N.C. House committee, reacting to a U.S. Supreme Court ruling in June that approved a Connecticut local government’s seizing of one person’s private property to give it to another person, began work Thursday reviewing the scope and breadth of North Carolina’s eminent domain statutes.

“We need to understand where we are and work together and see what if anything we need to do,” said Rep. Wilma Sherrill, R-Buncombe, who co-chairs the new House Select Committee on Eminent Domain Powers. “I’ll start out saying I’m not sure we’ve got to change the Constitution, or we’ve got to do this and this and this.”

House Speaker Jim Black, D-Mecklenburg, appointed Sherrill and 10 other House members to look at North Carolina’s laws governing eminent domain. They will review the state’s rules in light of the U.S. Supreme Court decision in Kelo v. New London. In June, the court ruled 5-4 that a local government in Connecticut could seize private property for an economic development project involving a private developer.

North Carolina’s restrictions on eminent domain are different from those in Connecticut. “The more I learn, the more I realize it is very complicated,” Sherrill said. “But I do think there’s some statutes that we need to look at and we need to talk about and we need to maybe tweak.”

The committee started work with a review of current law. Legislative research staff attorney Steve Rose reminded the committee that eminent domain has a long history. “In the common law, the sovereign has the right of eminent domain,” Rose said. “It’s a historical doctrine that goes back way before the creation of this country. Constitutional provisions — courts have pointed out — are there not to grant the right of eminent domain, but to limit the right of eminent domain.”

Rose outlined the Supreme Court’s reasoning in the Kelo case. He said the court’s majority agreed that the local government had taken private property for a “public use.” The “public use” standard is tied to protections guaranteed by the U.S. Constitution’s Fifth Amendment.

Rose also noted the main dissent from Justice Sandra Day O’Connor. “What she said in the dissent was that this use of private property crossed the line of public use,” Rose said. “There was nothing wrong with this property. This property was not injurious to the health, safety and welfare of the community where it sat.

“It was a factor of this property being able to be used for a higher use which would eventually benefit the entire city,” Rose said. “What she said is if you cross that line of public use, then almost anyone’s property is subject to condemnation by the government because there are very few instances where the property could not be put to a higher use.”

The select committee could make recommendations to the full General Assembly this spring. If lawmakers hope to add new protections to the state Constitution, the issue would go before voters in a statewide referendum.

Mitch Kokai is communications director of the John Locke Foundation.