JLF Memo
Nov. 17th, 2010: - johnlocke.org

Featured Article

News & Observer Wrong on Eminent Domain Amendment
By Daren Bakst

A recent staff editorial in The News & Observer stated the following regarding the GOP's plan to push for an eminent domain constitutional amendment:

And is the use of eminent domain, while not something to be encouraged, that big an issue in North Carolina? Not that we've noticed. The U.S. Supreme Court case that created such an uproar a couple of years ago involved the taking of property in Connecticut for economic development, with private developers to benefit. That might be a bad idea, but it's not happening here.

 To answer their question: Yes, the use of eminent domain is that big of an issue. Besides the wide use of eminent domain, there are examples of shocking eminent domain abuse. For example, the Triangle Transit Authority (TTA) took private property for rail stations that at the time of the takings were definitely not going to exist. Speculative takings should never be considered a proper public use. The TTA was also trying to seize private property that would primarily benefit a developer and using the non-existent need for rail stations as the excuse to justify the takings.

There is the North Carolina case Piedmont Triad Airport Authority v. Urbine, which held that private property could be leased to Federal Express for the sole use of Federal Express -- this was a taking for a private use. Also, there have been many takings using the state's broad blight law. As I have shown, blight laws are the number one way that governments seize private property for economic development -- "blight" is used merely as a pretext for economic development takings.

Even apart from the clear instances of abuse, North Carolina has the weakest constitutional protection in the country when it comes to eminent domain. The North Carolina Constitution is the only constitution in the country that does not have a takings clause (i.e., a provision that says private property may be taken only for a public use with just compensation). By itself, that fact alone justifies an amendment.

After the United States Supreme Court gave the green light to economic development takings in Kelo v. City of New London, there is nothing in the state constitution to protect North Carolinians from these takings.

Currently, North Carolina can and does take private property for economic development, using excuses such as blight. If the legislature decided to pass a statute expressly allowing for economic development takings, there would be no protections from such abuse.

This whole situation is akin to the U.S. Supreme Court gutting the First Amendment and the N&O not wanting to amend the state constitution to protect free speech. Such a scenario would be absurd. In such a case, the N&O would surely be up in arms and rightfully demand that the legislature amend the state constitution to protect against restraints on free speech. The same can be said about the need for protection against eminent domain abuse. Both free speech and property rights are fundamental rights entitled to the same level of constitutional protection.

When the legislature comes back in session, an eminent domain amendment should be a major priority, and the amendment should be drafted in a manner that protects against all the eminent domain abuses that are prevalent in the state.

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