News: CJ Exclusives

Panel Begins Eminent Domain Talks

Fine tuning rather than major change was the recommended approach

North Carolina could tweak its laws governing eminent domain, if lawmakers follow through on ideas they mentioned Wednesday in a committee meeting. But caution rather than major change was the watchword as legislators began addressing issues raised by last year’s U.S. Supreme Court ruling in the case of Kelo v. New London.

“The key is to make the individual who’s losing his property whole,” said Rep. Bruce Goforth, D-Buncombe, who co-chairs the N.C. House Select Committee on Eminent Domain Powers. “And whatever it takes to do that, I think we need to look at that.”

Goforth and his colleagues started outlining priorities after listening to more than two hours of presentations on condemnation cases and eminent domain. The committee plans to report its findings to the full state House this spring. House leaders formed the special committee after the 5-4 Kelo ruling, in which the high court ruled that a government could take private property for an economic development project involving a private developer.

“I do think we need to address ‘just compensation’ and talk about how we could define that or if we could,” said Rep. Wilma Sherrill, R-Buncombe, the committee’s other co-chair. The U.S. Constitution requires government to offer property owners “just compensation” when using eminent domain powers to take property for public use.

Sherrill outlined other concerns. “I’ve talked about appraisal fees and attorney fees in some instances,” she said. Sherrill and others hinted they might support shifting the burden of those fees from a property owner to the government in eminent-domain cases.

Final rulings in those cases can depend on a court determining whether property is taken for a legitimate public use. “I’m not sure if we can define ‘public use’ and ‘public purpose,’ but I’d sure like to try,” Sherrill said.

Other committee members addressed different concerns. Rep. H. M. “Mickey” Michaux, D-Durham, focused on condemnation cases involving the state Department of Transportation. “DOT ought to be responsible for some legal fees and some expenses involved in their taking process.”

Some committee members urged caution in efforts to tinker with existing laws. “It’s a very, very careful process,” said Rep. Lucy Allen, D-Franklin. “Local government officials represent the same citizens and their property rights that state officials do.

“And so as we look at these things, I hope we will do exactly like doctors,” Allen said. “First, do no harm to our current structure.”

Allen’s comments echoed those of the representatives for city and county governments. Neither group pledged to fight new laws, but both groups raised warning flags.

“We see two possible avenues of danger,” said Jim Blackburn of the N.C. Association of County Commissioners. “One is that you all will unintentionally inhibit the legitimate uses of eminent domain authority that local governments now enjoy.

“The second fear that I have is that you all will change the balance that is struck between the interests of the community as determined by legitimate decision makers in that community and the interests of individual property owners and the folks that represent those property owners,” Blackburn said.

Two UNC-Chapel Hill professors also urged the committee to proceed with caution, while only one outside speaker pushed for specific changes.

Daren Bakst of the John Locke Foundation argued in favor of a constitutional amendment limiting eminent-domain powers. “If rights are taken away from individuals for the benefit of the community, they no longer are rights, but rather government-granted privileges,” Bakst said. “This is why when property rights are infringed, it should only be in very narrow circumstances and when addressing a true public use.”

The committee will meet again Feb. 1. The group hopes to draft all recommendations by the time the General Assembly returns to work in May.

Mitch Kokai is associate editor of Carolina Journal.