Eminent domain authority questioned: Kinston (NC) Free Press, 11/13/05

BY Barry Smith

State lawmakers next year could be asked to approve a state law or an amendment to the N.C. Constitution that would protect property owners from condemnation for economic development purposes.

The head of an organization representing North Carolina's cities and towns believes such a move would be unnecessary.

The effort arises out of a decision by the U.S. Supreme Court earlier this year which allowed the city of New London, Conn., to use its eminent domain powers to take houses in a neighborhood to use for economic development.

"We're researching the issue and we are looking at what other states are doing," said Rick Zechini, director of regulatory affairs for the N.C. Association of Realtors.

Ellis Hankins, executive director of the N.C. League of Municipalities, said that cities and towns across the state haven't asked for and don't want the power to condemn property for economic development.

"State law does not authorize cities and counties to do what New London, Conn., did," Hankins said. "In our opinion, there is nothing in North Carolina that needs to be fixed."

Eminent domain allows government to take private property for public use, provided the government pays the property owner just compensation.

Gerry Cohen, who heads bill drafting for the N.C. General Assembly, said that state law does not provide any general authority for local governments to use their power of eminent domain for development purposes.

Steve Rose, a staff attorney at the General Assembly, said that the Kelo decision, as it's known, probably would not stand in North Carolina.

"At this point, it's hard to imagine a city trying to use Kelo," Rose said.

Rose said the only thing that state law allows that even comes close to the Kelo decision is a provision that allows governments to take property in blighted areas for redevelopment.

"Typically, nobody much cares if you get in there and knock down a slum," Rose said.

Rose noted that such laws have been on the books in North Carolina for about 30 years.

And, Rose said, there are about 400 local acts that deal with eminent domain, which have yet to be fully researched.

Zechini said that Realtors and other property rights groups might want to get out ahead on the issue and make it crystal clear to prevent the use of eminent domain for economic development.

"The only way to really prevent it is to get a constitutional amendment," he said.

Constitutional amendments require a three-fifth's majority of both chambers of the General Assembly and must then be ratified by the voters in a referendum.

Hankins said he hopes that lawmakers won't approve such a constitutional amendment for fear that it might be too broad.

"It could be more restrictive than the law already is," Hankins said.

Rose said that the Supreme Court's ruling was not a good one.

"It was a lousy decision," he said.

Public purposes generally refer to things used by the public, such as public buildings, schools, roads and water and sewer infrastructure.

"Boy, this does stretch the imagination," he said.

Kinston Free Press: www.kinston.com