A bill filed earlier this week in the North Carolina General Assembly seeks to place a state constitutional amendment on the ballot that would limit the right of eminent domain. House Bill Number 8 was filed in hopes that voters would decide on the amendment in November 2014. Representatives Chuck McGrady, Paul “Skip” Stam, David Lewis, and Ken Goodman filed the bill, and it has 36 additional secondary co-sponsors. The bill is titled:
“AN ACT TO AMEND THE NORTH CAROLINA CONSTITUTION TO PROHIBIT CONDEMNATION OF PRIVATE PROPERTY EXCEPT FOR A PUBLIC USE, TO PROVIDE FOR THE PAYMENT OF JUST COMPENSATION WITH RIGHT OF TRIAL BY JURY IN ALL CONDEMNATION CASES, AND TO MAKE SIMILAR STATUTORY CHANGES.” (See the full text here: https://ncleg.net/Sessions/2013/Bills/House/PDF/H8v0.pdf).
So what does it mean? In essence, the proposed amendment would narrow the justification for eminent domain and require to be property taken for public USE, not just a public use or benefit. The existing “use or benefit” test is broader and potentially allows for condemnation takings of private property even by private entities so long as there is a benefit – even an indirect one – to the public. This is the type of scenario that was at the heart of the infamous eminent domain case decided by the Supreme Court of the United States in 2005, Kelo v. City of New London.
Under the new “use” standard, a condemning authority would have to show that the public is actually able to utilize and access the property. Thus, a redevelopment commission, for example, might not be able to condemn property that was ultimately going to be held in private hands. The judges in North Carolina would ultimately have to apply a stricter standard to determine whether a taking is proper, and having this additional requirement would probably reassure most land owners and voters.
This is hardly the first time that legislators have tried to amend North Carolina condemnation and eminent domain laws in the wake of the Kelo decision. A nearly identical bill was introduced and passed by the House in 2011, but it was never taken up by the state Senate. Before that in 2006, the General Assembly modified the private condemnation statute to provide certain limitations that were needed after the Kelo case. Various advocates have insisted that North Carolina needs an amendment to more precisely define and narrow the power of eminent domain, especially since North Carolina is only state in the nation that lacks an explicit constitutional clause declaring the right of eminent domain or requiring just compensation for property taken through the condemnation process. North Carolina law, however, does provide a level of protection similar to other states – it just doesn’t happen to be written into our State’s Constitution.
To be clear, this proposed amendment would in no way affect property owners affected by major road projects where the right of way is being acquired by the NC Department of Transportation (NCDOT). Projects like these include the Winston Salem Northern Beltway, Salem Creek Connector, Greensboro Urban Loop, Durham East End Connector, Alston Avenue Widening, Charlotte Lynx Blue Line Extension, US 221 Widening in Jefferson Watauga and Ashe counties, US 64 Asheboro Bypass, the Monroe Connector and Bypass, or the Garden Parkway in Gastonia. These road projects and many others would still be well within the state’s eminent domain and condemnation powers.
A recent case in Forsyth County shows that private takings can be occasional challenged, even without the proposed constitutional amendment. In that case a Superior Court Judge ruled that a case must go to trial to settle a dispute that allegedly benefitted private developers who had bought land near the Kernersville Medical Center. The Town of Kernersville wanted to condemn 2.3 acres to connect N.C. Highway 66 to Macy Grove Road. Even with the existing standard, the judge did not dismiss the landowner’s case. The additional authority of a constitutional amendment might have made the case easier to challenge the taking by condemnation, but we will have to await further legislative action to know what the impact on future eminent domain cases might be. Our original State Constitution has been amended before, and there is no reason that our law cannot be update from the 1700s to reflect the needs of property owners today.
Shiloh Daum, North Carolina Attorney
Sever Storey, LLP
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