New Report: How to Protect Against Eminent Domain Abuse (Includes a Model Amendment)
By Daren Bakst
Yesterday, my report entitled "Blocking Eminent
Domain Abuse in NC: It's past time for a well-crafted constitutional
amendment" was released.
Below are some of the key points on why North Carolina needs an eminent domain
amendment and what an amendment needs to address. Finally, I have provided
readers the language of my model amendment. To really understand the issues,
including the reasoning behind the amendment language, I strongly recommend
reading the report.
There is optimism that an eminent domain amendment will
pass this upcoming legislative session. The amendment must be carefully
drafted, however, to properly protect property owners.
- The amendment (HB
8) introduced in the House on Wednesday, while a good start, needs to be strengthened.
An amendment is necessary for many reasons including:
- There is no state constitutional
protection from eminent domain abuse, such as the government seizing private
property for economic development.
- In fact, North Carolina has the
weakest property rights protection in the country; it is the only state in the
country that does not have a Constitution that expressly addresses eminent
- The North Carolina Supreme Court
has held that the government can take private property and transfer an interest
in that property to a private company for its sole and exclusive use.
- The government seizes private
property for other private parties through various means, such as blight laws.
- After Kelo,
eight states passed constitutional amendments, including the two neighboring
states of Georgia and South Carolina.
A model amendment would, among other things:
- Prohibit takings for private
uses. A prohibition on takings for economic development is not enough, since many
takings that involve the transfer of property from one private party to another
private party are not connected to economic development.
- Prohibit the government from
improperly using "blight" and other pretexts for seizing private
property in order to promote economic development or to achieve some other
- Require the government to have
the burden of proof to demonstrate that a taking is for a proper public use.
- Require just compensation to make
property owners whole, by including the payment of relocation costs, loss of
business goodwill, and attorneys fees.
The Model Amendment
Private property shall not be
taken except for a public use. Public use shall not include the transfer of any
interest in property from one private party to another private party, unless
the transfer is to a common carrier or public utility for the use of the public
generally or the transfer is clearly unrelated to the reason for the taking.
Public use may include the taking of property to address blight only when the
physical condition of the specific parcel of property poses a concrete threat
to health or safety.
Just compensation shall be paid to property owners and shall include loss of
business goodwill, relocation costs, reasonable attorneys fees and other costs
necessary to put the property owners in the same position they would have been
in had their properties not been taken. If demanded, a jury shall determine
just compensation. Condemnors shall prove by clear and convincing evidence that
a taking is for a public use and that compensation is just.
Forced Annexation Moratorium Bill: How Does it Work?
On the first day of the legislative
session, the House introduced a bill (HB
9) that would put a moratorium on annexations that are still "in the
The House members should be commended for introducing a moratorium bill on the
first day of session. The bill appears to be good, but it also is very confusing
to figure out. Below is my initial analysis of the bill in order to help the
public make sense of the bill (the analysis is subject to change).
1) What happens when an annexation ordinance has not been adopted prior to
the effective date of the moratorium bill?
A municipality can't move forward with any part of the annexation
process until July 1, 2012. Municipalities still can do things such as planning
and research, but they can't take actions that move the annexation forward in
2) What happens when an annexation ordinance has been adopted, but the
effective date of the annexation is on or after the moratorium bill becomes
The ordinance doesn't become effective
until July 1, 2012.
3) Is there protection when an annexation ordinance has been adopted
and the effective date of the ordinance is before the effective date of the
Yes, so long as the annexation is subject
to litigation in any court on the effective date of the
moratorium bill. The ordinance can't become effective until July 1, 2012.
4) Is there protection when an annexation ordinance has been adopted and the
effective date of the ordinance is before the effective date of the moratorium
bill but the annexation is not
subject to litigation?
This becomes a moot question because if the ordinance effective date
is before the effective date of the annexation bill, and there is no
litigation, then the process is already over -- the annexation is law.
An annexation ordinance can't become effective less than 70 days after passage
of the ordinance. To appeal an annexation, property owners have 60 days after
passage of the ordinance. This means that property owners will have had their
chance to make the annexation "subject to litigation" prior to the ordinance
It may be possible, I guess, for a court (state or federal) to look past the
60-day requirement for an appeal, but it is highly unlikely.
5) What happens to all litigation pending in state court?
The litigation is stayed upon enactment of the moratorium bill.
6) Does the bill cover all forced annexations in the process?
Yes, it appears to.
7) What are my thoughts on a moratorium?
A moratorium bill is helpful, but there is a much bigger need for a real reform bill. Please recognize that a reform bill can stop annexations in process too, and may have retroactive provisions.
Monday, Jan. 31st, 2011 at 12:00 noon
A meeting of the Shaftesbury Society
with our special guest Becki Gray
The New General Assembly- Who Are Those Guys (and Gals)?
Saturday, Feb. 19th, 2011 at 10:00am-4:00pm
A Citizens' Constitutional Workshop in La Grange, NC
with presenters Dr. Troy Kickler & Dr. Michael Sanera
What the Founders and the State Ratification Conventions Can Teach Us Today
Saturday, Feb. 26th, 2011 at 6:00 p.m.
21st Anniversary Dinner
with our special guest George Will