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Proposed constitutional amendment would restrict use of eminent domain

Rep. Chuck McGrady, R-Henderson, is a sponsor of a bill proposing amendment to restrict use of eminent domain.
Rep. Chuck McGrady, R-Henderson, is a sponsor of a bill proposing amendment to restrict use of eminent domain.

A group of House Republicans got an early start to the new General Assembly session by re-introducing a bill Wednesday to propose a state constitutional amendment restricting eminent domain.

House Bill 3 was filed early on the legislature’s opening day. Bill sponsors include Rep. Destin Hall, R-Caldwell, and Rep. Chuck McGrady, R-Henderson.

The bill would allow voters in the March 2020 primaries to approve a one-sentence amendment.

“Constitutional amendment to prohibit condemnation of private property except for a public use and to provide for the payment of just compensation with right of trial by jury in all condemnation cases,” the amendment reads.

Hall told Carolina Journal he is confident that the bill will pass his chamber with bipartisan support.

“It gives certainty to courts that property can only be taken for a public use, and not a public benefit,” Hall said. “It will be a big step toward protection of private property rights.”

The amendment would solidify limitations on eminent domain, preventing future expansion by lawmakers, and give affected property owners the right to have a jury decide just compensation. The bill would also update the statutory language specifying the types of utilities eligible for use of eminent domain.

State law allows transportation companies, utilities, school boards, and similar groups to take private property for public use. Property owners must be compensated for the fair market value of their land or water.

McGrady said Republicans legislators have sought an eminent domain protection amendment since 2011, when they took control of the General Assembly. Earlier versions of H.B. 3 were introduced in each session by McGrady and former Rep. Skip Stam, R-Wake, before the torch was passed to Hall.

McGrady said the major impetus for the bill was the 2005 U.S. Supreme Court decision Kelo v. New London, which interpreted a private economic development plan as a “public use” purpose for eminent domain property seizure.

The Fifth Amendment to the U.S. Constitution states that private property shall not “be taken for public use, without just compensation.” While the Kelo decision considered private economic development a public use, it also allowed states to more clearly define eminent domain. This spurred opponents of eminent domain to seek greater protections on the state level.

The state passed a law in 2006 requiring municipalities to seek approval of property seizure from the General Assembly in cases of private economic development. Still, North Carolina receives a “C-” grade on eminent domain protections from Castle Coalition, an eminent domain watchdog.

The N.C. Supreme Court clarified circumstances in which property owners can be compensated for their loss with its decision in the 2016 case Kirby v. NCDOT. It said people with properties identified for road construction under the state’s Map Act, who could not fully use their land while the state took years to buy it, had the right to payment.

Citing the writings of John Locke, the court noted protecting private property from government seizure is a time-honored tradition. It also noted the state doesn’t have a constitutional provision requiring just compensation for eminent domain.

McGrady says the bill has faced minor opposition in the House, mainly from light rail advocates who are concerned it would limit commercial development near train stations.

“That’s exactly what I’m trying to prevent,” McGrady said. “The government shouldn’t pick economic winners or losers. I understand if you need to build a road or school, but eminent domain should not influence our economic system.”