News: CJ Exclusives

League Backed City of New London

League of Municipalities filed amicus brief in controversial Kelo case

The state’s League of Municipalities, despite claiming that what happened in a controversial eminent domain case in Connecticut could not happen in North Carolina, filed an amicus brief in November 2004 on behalf of the city of New London, Conn., in its successful Supreme Court case.

Defenders of private property rights say that should concern those who worry that government can use eminent domain powers for questionable policies.

Cathy Heath, a property rights activist who runs the Web site, said enough leeway and vagueness exist in North Carolina’s statutes that local governments could use eminent domain for economic development purposes. She said laws addressing blighted properties should be of special concern to lawmakers reviewing the state statutes.

“I look at our redevelopment laws, and I look at other states’ redevelopment laws,” Heath said, “and I see a wide-open highway for the state of North Carolina to use those statutes to accomplish the same kinds of redevelopment.”

The state’s federation of cities and towns joined similar organizations from 31 other states, in filing an amicus curiae brief backing government eminent-domain taking in the Kelo v. City of New London, Conn. case. The 5-4 court decision, which allows government agencies to seize private property from one owner and to give it to another private owner for economic development purposes, led to a grass-roots backlash across the nation.

A special state House committee began studying North Carolina’s eminent-domain laws in January.

The Kelo decision addressed a situation in which a local economic development agency, with powers of eminent domain given to it by the city, sought to condemn the properties of nine owners of 15 homes in the city of New London. The agency planned to obtain the land and turn it over to a private developer, who would build offices, a hotel, and a health club.

Ellis Hankins, executive director of the N.C. League of Municipalities, said what happened in Connecticut is not possible in North Carolina.

“North Carolina law does not allow our cities, counties, or local governments to do what New London did,” Hankins said.

Hankins also served as chair of the Legal Advisory Committee to the National League of Cities, which also supported the City of New London. He was asked by Donald Borut, executive director of the NLC, in 2004 to review its involvement in the case. The committee recommended that NLC file the amicus curiae brief backing New London.

“This case deals with an essential local government tool for economic development,” Borut said in an article published in NLC’s weekly newsletter Oct. 18, 2004. “While it is one case involving one city, a Supreme Court decision stopping New London from using eminent domain to implement this economic development plan would have major ramifications for every city in America.”

Borut and Hankins also co-wrote an editorial for the same issue of the newsletter, further explaining why the NLC and the 32 state municipality leagues backed New London.

“It is in the public interest for municipalities to pursue economic development locally and regionally because a healthy economy helps generate the revenue necessary to provide services and infrastructure needs of the public,” they wrote. “At times, the ability to provide for the public good requires municipalities to exercise the power of eminent domain granted by state authority.”

But Hankins insisted to Carolina Journal that North Carolina doesn’t give eminent-domain authority to local governments for economic development purposes. He said from the NLC’s perspective, they were defending New London from a local governing point of view.

“In the amicus briefs filed by the NLC and the state municipal leagues, [we] were supporting states’ rights and opposing judicial activism,” Hankins said.

State law allows local governments to create special agencies that may consider redevelopment necessary not only for existing blight, as determined by a local planning commission, but also to prevent “the creation of new blighted areas” or if “there is a clear and present danger that the area will become blighted.”

North Carolina law allows for eminent domain as long as there is a “redevelopment plan” in the cases of blight. In the Supreme Court’s Kelo ruling, Justice John Paul Stevens wrote for the majority opinion that “those who govern the City [of New London] were not confronted with the need to remove blight…but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.”

In an editorial for the July 2005 issue of Southern City, Hankins wrote that proposals to “tighten” North Carolina laws on eminent domain are unnecessary, because “the statutes provide detailed legal rights and remedies for property owners.”

“Our good North Carolina courts will safeguard the rights of property owners,” he wrote.

But Daren Bakst, regulation policy analyst for the John Locke Foundation (which publishes Carolina Journal), said in a recent position paper that the state’s laws on blighted property are too broadly defined.

“The law says buildings in ‘blighted areas’ must cause harms, such as impairing the ‘sound growth of the community’ and being ‘conducive to ill health,'” Bakst said. “How much growth is sound growth?

“North Carolina law needs a narrow definition of blight, or it will be open season on private property. Right now its laws are so vague they are open to all kinds of interpretation.”

Hankins disagreed.

“The North Carolina law on the definition of blight is very clear and specific and limited, from our perspective,” he said.

Paul Chesser ([email protected]) is associate editor of Carolina Journal.