The chances for a statewide vote on property rights protection dimmed this summer, when the N.C. Senate refused to endorse a constitutional amendment targeting eminent domain abuse. Voters will not address the issue before 2008.
The Senate’s silence bothered some groups that pushed for a vote on the amendment in the closing days of this year’s legislative session. “It’s obvious that the intent is to not listen to the will of the people,” said Joyce Krawiec, N.C. grassroots coordinator for North Carolina FreedomWorks. “If you don’t have to vote on it, your constituents don’t have anything to hold against you.”
Advocates had pushed for action this summer to help secure a statewide vote on the constitutional amendment this fall. A vote in 2007 would have helped supporters avoid debate about scheduling a constitutional amendment during a legislative election year, said Kieran Shanahan, chairman of the N.C. Property Rights Coalition. “Some folks are saying that if you put it on the ballot for the people to vote on in the 2008 election cycle, it would politicize it,” Shanahan said. “This is fundamental: property rights. So let’s take politics out of it. Property rights is not a Democrat/Republican issue. It’s an American issue.”
Debate about the eminent domain amendment focused on the Senate for the last two months of the legislative session that ended Aug. 2. The amendment debate reached the Senate May 24, after the House voted 104-15 to endorse House Bill 878.
Five days later, Senate leaders sent that bill to their Ways and Means Committee. That committee has not met since 2001. “It sends a message they don’t want to deal with it, which is exactly the message that the [Senate] leadership is sending,” Krawiec said. “Some of the rank-and-file members are very much with us.”
The General Assembly changed its property rights laws in 2006, in the wake of a controversial June 2005 U.S. Supreme Court ruling. In Kelo v. New London, the high court upheld a Connecticut community’s decision to condemn private property for a private economic development project.
Some lawmakers believed the 2006 law solved the problems created by the Kelo decision, but property rights advocates argued for more protection. Eighty-eight state representatives endorsed an unsuccessful constitutional amendment last year.
This year, 92 representatives endorsed a similar measure. Under H.B. 878, voters would decide in the next statewide election whether to limit government’s ability to take property through the eminent domain process except for takings tied to a public use. 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.
Bipartisan support included the endorsement of primary sponsor Rep. Dan Blue, R-Wake, a former House speaker. “The government can negotiate, just as private entities do,” Blue said during debate about the bill. “It offends me, and I think it offends you, the thought that the government can take my property, that I’m keeping up, that I’m profiting on, that I’m prospering on, take it from me and condemn it as part of a bigger project, then convey it to Wal-Mart or whoever else they want to convey it to who then makes profit on the land that I owned.”
Legislative critics cited concerns that new restrictions on government powers of eminent domain would limit economic development in rural North Carolina. Amendment supporters disagreed.
“It’s not the end of economic development parks,” said Rep. Jim Harrell, D-Surry. “It just requires you to pay just compensation for that property. If the person isn’t willing to sell, then you have to go to another area. I know tons of land developers out there who are riding around looking at property. They acquire the property. They then develop that property. They don’t have the tool of eminent domain, but they are still successful in economic development. Yes, they have to approach the property owner and pay them a fair market value for their property. That is economic development, and that is fair economic development.”
Once the Senate parked H.B. 878 in the Ways and Means Committee, property-rights advocates made their case. “Of all our constitutional rights, none could be more vital to our continued sustainability as a free society as property rights,” Shanahan said. “We all know the government figures every way they can take your dollars and cents from you. Now they want your property. It’s incremental, incremental, incremental. If we don’t do something about it, we’re going to lose those basic rights that our forefathers fought for.”
Local governments’ growing demand for money will increase the threat of eminent domain abuse in future years, Shanahan said. “At the federal level, when they need money they just print it because they do deficit spending,” he said. “At the legislature, when they need money, what do they do? They go into the trust fund de jure, and they take from the trust fund. The problem with the local governments is they can’t print money and they can’t go and rob trust funds. So they have to increase their tax base.”
That means the problem of eminent domain abuse is not going away, Shanahan said. “Everywhere we travel, there’s a local story, and it resonates deeply with people,” he said. “So really this amendment touches every corner of North Carolina. People are connected because when you’ve been the victim of an adverse eminent domain situation you never forget it. The people in the town don’t forget it, either.”
There’s at least some hope that voters could address the constitutional amendment next year, according to a top legislative Democrat. “I would like to see it happen,” said House Majority Leader Hugh Holliman, D-Davidson. “This has not been a problem in North Carolina, and we have a pretty strong statute. But people on our side of the aisle believe property rights are important.”
There’s no need to put off a constitutional amendment because of 2008 legislative elections, Holliman said. “Both parties really agree on this issue,” he said. “I don’t think it hurts Democrats. I don’t think it helps Republicans.”
Mitch Kokai is an associate editor of Carolina Journal.