RALEIGH – Nothing in the North Carolina Constitution prevents the government from taking your house and giving it to some well-connected developer to build a strip mall. This is just one reason North Carolina needs an eminent domain amendment.
In 2005, the U.S. Supreme Court held, in a case called Kelo v. City of New London, that the Constitution allows the government to seize private property and transfer it to another private party for economic development. Americans across the country woke up to eminent domain abuse.
Since that opinion, eight states have passed constitutional amendments by overwhelming margins to protect against these “economic development takings” and to address other abuses. Our neighbors Georgia and South Carolina are among them.
The Kelo case, though, is far from the only reason for an eminent domain amendment. North Carolina is the only state in the country whose constitution doesn’t expressly address eminent domain.
The N.C. Supreme Court, in a 2001 case called Piedmont Triad Airport Authority v. Urbine, held that it was constitutional for an airport authority to seize private property and allow Federal Express, another private party, to have the sole and exclusive use of that property.
The Fifth Amendment of the U.S. Constitution limits the taking of private property for a public use. However, the Kelo and Urbine cases show that the term “public use” has lost all meaning. The highest courts in the state and the nation have given the green light to takings for private use.
An eminent domain amendment first should prohibit the government from seizing private property from one citizen and transferring it to another. It makes no difference if the justification is to promote economic development or some other reason.
The Urbine case offers a great example of why an amendment simply prohibiting the taking of private property for economic development isn’t enough. In that case, the taking allegedly was to help the airport. Of course, the only thing the taking accomplished was to benefit a private party at the expense of an innocent property owner.
Second, an amendment must protect against any end-runs the government may employ. The biggest end-run is the abuse of “blight” or urban redevelopment laws. North Carolina improved its blight law in 2006, but a future General Assembly could change it back.
Before the law was improved, the state could seize property that wasn’t blighted so long as it was in an area that allegedly was blighted — for instance, if the government determined the parcel of land somehow harmed economic growth. There’s no distinction in practice between seizing property that impedes economic growth and seizing property to promote economic development.
Blight can be defined so broadly that it renders the term meaningless. This is one of the most important things to recognize about eminent domain abuse. The government rarely admits it’s taking property for reasons such as economic development — instead, it comes up with some other justification.
The history of blight abuse across the nation is shocking. According to an Institute for Justice study, “Under [the Federal Housing Act of 1949], which was in force between 1949 and 1973, cities were authorized to use the power of eminent domain to clear ‘blighted neighborhoods’ for ‘higher uses.’ In 24 years, 2,532 projects were carried out in 992 cities that displaced 1 million people, two-thirds of them African American.”
Finally, an eminent domain amendment should provide compensation that is truly just.
Just compensation should make property owners whole. As in tort law, the property owner should be left no worse off than he would have been in had his property not been seized. This would require compensation to include relocation costs, loss of business goodwill, attorneys fees, and other related costs.
The new legislative session brings hope that an eminent domain amendment with strong protections finally can get passed. The General Assembly can protect the property rights of all North Carolinians. A citizen should never have to worry about losing his home or his land because the government thinks another private individual can make better use of it.
Daren Bakst is director of legal and regulatory studies at the John Locke Foundation.