4/23/2006

State looks to reform eminent domain laws: (Kinston NC) Free Press, 3/2/06

By Barry Smith

John Moore of Wake County said that he spent a lot of time, money and effort when a power company wanted to take part of his land in southwestern Wake County.

Moore, who uses his land as a horse training facility, said that in the process of dealing with the power company over the price of the land it wanted, he was never compensated for expenses for attorney, appraisers and other services, an amount that he said cost $85,106.

Moore told his story on Wednesday to a state House committee that is looking into reforming the state’s eminent domain laws in the wake of a U.S. Supreme Court decision last year that allowed a Connecticut town to take private property for private development. One thing the committee is looking into is requiring the government or, in Moore’s case a utility, to pay attorney and appraiser fees if they low-ball their “just compensation” offer.

“If municipalities have a right to condemn property and they are able to do so without having to reimburse attorney’s fees after making grossly low offers, then they will continue to make grossly low offers,” Moore said once he had finished speaking to the committee.

The Fifth Amendment to the U.S. Constitution allows governments to take private property for public use provided that “just compensation” is given to the property owner.

The committee pored over draft legislation that would require courts to award property owners costs and expenses, including reasonable attorney fees, appraisal fees and engineering fees, if the amount the court awards the property owner is more than 25 percent higher than the amount the government or utility made in its initial offer.

One of the members of the committee, Rep. Robert Grady, R-Onslow, said he agrees with requiring attorney fees to be paid.

“I really don’t think it’s fair for a citizen to be attacked by government-paid attorneys and then the citizens have to pay for their own attorneys even if they win,” Grady said. Otherwise, he said, the government attorneys could drag the case out for a long time and “starve out” the citizens.

“A provision to pay the attorney fees when the citizen wins I think is only fair,” Grady said.

The draft legislation would also disallow any local acts giving local governments the right to take property for private development purposes.

The wording is in the form of a statute and not an amendment to the N.C. Constitution.

Rep. Wilma Sherrill, R-Buncombe, the co-chairwoman of the committee, said she thinks that the legislation will “make it perfectly clear that the laws of this state don’t allow for the taking of private property for private use.”

She said that she had consulted with a number of lawyers about the wording in the proposed new law.

“I feel real good about it,” Sherrill said.

Grady said that while he would prefer a constitutional amendment, the legislation is a good starting place.

“I’m willing to work with this and start the process with this and see how it works,” Grady said.

The House committee is preparing legislation to be taken up by the 2006 short session of the General Assembly, which begins in May.


The Free Press: www.kinston.com