News: CJ Exclusives

Kelo-Protection Vote Possible Today

Constitutional amendment strengthening property rights up for vote

The N.C. House could vote as early as today to endorse a constitutional amendment designed to strengthen property rights protection. The proposed amendment cleared a House committee Tuesday evening with little debate.

“I’d be surprised if it did not pass,” said Rep. Paul Stam, R-Wake, an amendment co-sponsor. “There’s a pretty big consensus in North Carolina that private property should only be taken for public uses, and that’s the principle. The only difficulty was getting the bill heard, not getting it passed. And that was true last year, too. If [former House Speaker] Jim Black had ever let it be heard, it would have passed a year ago.”

Eighty percent of the House signed on to the original version of House Bill 878, which would place the amendment on the next statewide ballot. Most will likely support the bill in its current version, Stam predicted. “There will be a fair amount of debate just because it’s important, but I doubt that 10 people will vote against it.”

No one voted against the measure in the House’s Judiciary II Committee. The committee’s chairman, Rep. Dan Blue, D-Wake, is another amendment cosponsor.

“One of the most precious things in this democracy of ours … is that you ought to be able to control your own property unless there’s a reason that government takes it to use for government purposes,” Blue said. “This amendment would prohibit private property from being taken for purposes of economic development. Government could take it for government uses, but it couldn’t take it and then sell it to somebody else. That just seems to offend fundamental concepts of somebody’s right to own and control their property.”

Voters could decide in the next statewide election whether to adopt the amendment. It would limit government’s ability to take property through the eminent domain process except for takings tied to a public use, Blue said. The amendment spells out three exceptions: taking of a “blighted” property, taking of property for access purposes, and taking of property that allows a “public use to be preserved or utilized.”

The amendment also would guarantee prompt payment of “just compensation” when property is condemned, and it would guarantee a constitutional right of trial by jury for all condemnation cases. That right is now guaranteed in state law, but North Carolina is the only state that does not include that guarantee in its constitution, Stam said.

The measure would not stop a government from taking property for a public use, then selling the property later, said Gerry Cohen, director of the General Assembly’s Bill Drafting Division. “You could use it for a road or a courthouse, and if 30 years later it’s abandoned, you could sell it to a developer because the property is surplus at that point,” Cohen said. “You didn’t condemn it for economic development, but if you’re finished using it you can sell it like any other piece of property.”

That provision raised concerns from at least one committee member. “Suppose that a piece of property is condemned for a specific use and then that use is not carried out?” asked Rep. Joe Kiser, R-Lincoln. He cited a school project as an example. “If three or four years down the road, they decide, ‘Well, we’re not going to build this school,’ then what becomes of the property?”

Stam answered that amendment sponsors decided not to include any time constraints for governments that want to sell property taken for public purposes. That’s an issue that could be addressed in state law, he said.

Outside the committee, at least one advocate for constitutional property rights protection has concerns about the proposed amendment. “Support for an amendment in a House committee shows the legislature recognizes how much North Carolina needs a constitutional amendment,” said Daren Bakst, John Locke Foundation legal and regulatory policy analyst. “Unfortunately, this particular amendment, at least as drafted, creates concerns.”

The amendment would allow for some economic development takings, Bakst said. “It would allow the government to take private property and keep it indefinitely, as long as one day in the future the property might be used for a public use. It also would constitutionally protect blight abuse. Fortunately, there is time to fix the amendment with some minor changes and truly protect North Carolinians.”

The General Assembly changed its property rights laws in 2006, in the wake of a controversial U.S. Supreme Court ruling in June 2005. In Kelo v. New London, the high court upheld a Connecticut community’s decision to condemn private property for a private economic development project.

Along with changing the law, 88 members of the House endorsed a constitutional amendment. Under the orders of Black and former Rules Committee Chairman Bill Culpepper, the 2006 amendment was shuffled to different committees and subcommittees before it died, Stam said.

With House approval, the current constitutional amendment would need Senate support before voters could address the issue. “After it passes the House, I’ll go over and do a little missionary work in the Senate and explain to the staffers — the lawyers over there — why we really do need it,” Stam said. “I think they’ve been just ‘hoodoo-ed’ into thinking it’s unimportant, and we haven’t had a chance to have a really good sit-down discussion with them.”

Mitch Kokai is an associate editor of Carolina Journal.