Group wants state amendment to limit eminent domain powers: Durham (NC) Herald-Sun, 7/17/05

By Ginny Skalski

It's unlikely North Carolina property owners will be affected by a recent U.S. Supreme Court decision concerning local governments and property rights, but a local organization led in part by City Councilman Thomas Stith wants to ensure it stays that way.

The Civitas Institute has proposed a state constitutional amendment to prevent North Carolina from changing its laws on eminent domain. The proposal is in response to last month's U.S. Supreme Court ruling that says local governments may seize people's homes and businesses for private economic development.

The ruling is not expected to immediately affect North Carolina because existing state law does not list private use as a reason cities and counties can condemn private land. But some opponents of the court's 5-4 ruling worry that could change.

"Laws can be changed and laws depend on who happens to be elected," said Stith, who is vice president of the Raleigh-based public policy think tank.

David Lawrence, a professor at the UNC School of Government, doesn't recall a bill ever being introduced in the N.C. General Assembly that would add condemnation for economic development purposes.

"But things could change in the future, and if people want to cut that off, the constitution is the way to do it," Lawrence said.

In order to amend the constitution, three-fifths of the members of the House and Senate would have to approve the proposal. The final decision would be left to a majority of voters.

The Civitas Institute wants the Legislature to take up the proposal before the current session ends, according to the organization's president, Jack Hawke. The institute, however, is still researching a possible amendment.

Lawmakers in at least seven states have already introduced legislation to either limit the use of eminent domain for private projects or tighten existing procedures, according to the Institute for Justice. At least 11 other states intend to do the same in upcoming sessions, the Institute for Justice reported.

Rep. Paul Luebke, a Durham Democrat, said he doesn't see lawmakers "getting into that at all this session," adding that their "focus is on trying to pass the budget and go home."

While Luebke disagrees with the court's decision, he said state law provides enough protection against seizing property for private economic development.

"The constitution should be amended very carefully and only when absolutely necessary and this doesn't seem necessary," Luebke said.

S. Ellis Hankins, executive director of the North Carolina League of Municipalities, said he doesn't think league members would see a need for amending the constitution to specifically prohibit eminent domain for private use.

"I believe deference ought to be given to the elected representatives of the people," Hankins said.

Still, Hawke said an amendment is necessary to ensure state law isn't changed in the future and to protect the rights of property owners.

"[Otherwise] nobody ever owns their property," Hawke said. "There's no such thing as personal property rights and that was one of the basic foundations on which our nation was formed."

Hawke said the Supreme Court ruling could allow a local government to seize a homeowner's house so that a developer could build a larger house that would bring more property taxes to the community.

County Commissioner Chairwoman Ellen Reckhow said the court's decision centering on New London, Conn., was not based on a proposal for a "miscellaneous economic development." Instead, the court was asked to consider a large-scale project where economic growth outweighed the property rights of several homeowners.

"To liken it to just an individual developer coming in and saying: 'I want to put in a store on this corner please take this parcel through eminent domain' ? I don't think that's comparable," Reckhow said.

Durham County is currently involved in the eminent domain process with two downtown companies. The county wants to take property owned by the U-Haul Real Estate Co. at 247 S. Mangum St. and the Scarborough & Hargett Funeral Home at 306 S. Roxboro St. to build a courthouse and a parking lot.

The county is allowed to pursue eminent domain in that case because a new courthouse would be for public use. Since 2002, the city has filed six eminent domain cases, one of which is still pending, according to Assistant City Attorney Richard Weintraub.

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