Eminent domain protection not in the cards: Kinston (NC) Free Press, 7/22/06

By Barry Smith

North Carolina landowners won’t be getting any constitutional protection from governments taking their property for private economic development, not this year anyway.

Some argue that no such constitutional protection is necessary because the state’s courts have carefully limited a local government’s eminent domain powers. Others say that without the constitutional protection, landowners are subject to the whims of legislators, who could be caught off-guard in the wee hours of the night during the waning days of a legislative session.

“They (the North Carolina courts) have never allowed us to do anything like Kelo,” said Andy Romanet, general counsel for the N.C. League of Municipalities, referring to the U.S. Supreme Court decision last year which allowed a Connecticut town to use its eminent domain powers to seize land for private redevelopment purposes.

Instead of pushing ahead for an amendment to the N.C. Constitution, the General Assembly has approved a bill repealing a handful of statutes that allowed a handful of local governments to have limited use of eminent domain powers for economic development purposes.

Lawmakers also tightened up the state’s urban redevelopment law, which allows property to be seized in blighted areas. Previously, property could be seized in an area if two-thirds of the land was determined to be blighted.

The change, adopted by the General Assembly, would require any parcel of land to be blighted before it could be seized through eminent domain powers.

That’s a change that Romanet said he expects will have little effect since a lot of money that municipalities traditionally used for such redevelopment projects has dried up.

Efforts have been made in both the Senate and the House for the stronger constitutional amendment banning such uses for eminent domain. However, Democratic majorities have thwarted those efforts.

Last month, in a party-line vote, a House committee considering such a bill voted to send the proposed constitutional change to the House Rules Committee.

One of the sponsors of the bill, Rep. Skip Stam, R-Wake, has tried unsuccessfully to revive the bill.

The other day, Senate Republicans were prepared to push for a constitutional amendment when the eminent domain issue came to the floor. However, the Democratic majority used a parliamentary maneuver to cut off debate and not allow the proposed amendment to come to the floor.

“I think it’s incumbent upon us to at least have a debate on amending our constitution and protecting private property,” Sen. Fred Smith, R-Johnston, who had prepared the proposed constitutional amendment.

The Senate’s minority leader, Sen. Phil Berger, R-Rockingham, said that it’s important for the state to draw a constitutional line on protecting property rights.

“When the Supreme Court says the U.S. Constitution doesn’t protect private property from economic development condemnations, we need to make sure the N.C. Constitution does,” Berger said.

While Berger said that the statutory tightening is good, it’s important to have the constitutional safeguard. He said that sometimes, especially as a legislative session nears its end, a bill can be run through the General Assembly that “nobody’s seen before and half the people are sleep-deprived.”

Romanet, however, said that if the N.C. Constitution is going to be changed, more debate is needed.

“I think you need to have a full discussion on that and run it out because it looks good,” Romanet said. “We’d want to make sure we didn’t violate the law of unintended consequences.”

Romanet said that if a constitutional amendment is adopted, municipalities would like to participate when it is drawn up.

Kinston Free Press: http://www.kinston.com