Attorneys fees in eminent domain cases questioned: New Bern (NC) Sun Journal, 2/2/06

Government legal expenses are paid with tax dollars, property owners must pay own charges

By Barry Smith

Some [North Carolina] lawmakers looking into state laws regarding the government’s right to acquire land from property owners are questioning if it is fair to have tax dollars pay the legal fees of the government while the people whose property is being taken have to pay for their own attorneys.

“That person has to bear the cost of the condemnation that the government is doing,” Rep. Mickey Michaux, D-Durham, said during a hearing by a House committee Wednesday.

He said that attorneys fees on eminent domain or condemnation cases are usually based on the amount of money the property owner receives in excess of the government’s original offer. Michaux said the going rate is about one-third of that amount.

Leanne Winner, representing the N.C. School Boards Association and N.C. Council of School Attorneys, said that requiring attorneys fees be paid could hurt a school board’s negotiating position.

“If mandatory attorneys fees and other compensation are awarded to landowners, there will be no incentive for the landowners to negotiate,” Winner said. “Our belief is the current law strikes a fair balance between public interest and private property rights.”

That prompted Rep. Robert Grady, R-Onslow, to thank Winner for her honesty but comment that it could invigorate property rights proponents to call for more protections.

“I have to tell you that if we had a C-SPAN in North Carolina and your comments were played on the air that I would have 300 calls from my constituents tonight telling me why we need to pass a constitutional amendment,” Grady said.

An amendment to the N.C. Constitution is among the options being considered by lawmakers in the wake of what has become known as the Kelo decision by the U.S. Supreme Court last year. That decision said that a Connecticut town, New London, could take private land and give it to another private entity for economic development.

After the meeting, Grady said that the current setup for legal fees puts the private property owner at a disadvantage.

“It seems very, very unfair to me that the person taking the property gets a tax-paid attorney and the person who is losing their property has to pay for an attorney personally.”

He said that governmental bodies taking property have unlimited legal budgets while the property owners do not.

Rep. Lucy Allen, D-Franklin, said that “rhetoric” and “panic” coming out of the Kelo decision “just astounds me.”

The co-chair of the committee, Rep. Wilma Sherrill, R-Buncombe, said that she gets about 25 e-mails a day asking for lawmakers to adopt a constitutional amendment protecting private property rights as a result of the Kelo decision.

Steve Rose, a General Assembly staff attorney, told committee members that current North Carolina law allows for eminent domain powers to be used in limited areas when it comes to private development.

He outlined the areas that come under the N.C. Urban Redevelopment Law.

Generally, the law requires such takings to be in blighted, dilapidated areas that impair sound growth, have seriously adverse effects on surrounding development and are detrimental to the public health, safety, morals or welfare to the community, Rose said.

Unlike other condemnation proceedings, the governmental body condemning property under the Urban Redevelopment Law must pay the property owner’s attorney’s fees. Such fees are determined by the court.

Sun Journal: www.newbernsj.com