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Simple bill change would help prevent eminent domain abuse

Current S.B. 600 focuses only on land linked to conservation easements

Contact: Daren Bakst
919-828-3876
dbakst@johnlocke.org

June 15, 2009

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RALEIGH -- Legislators can prove that they care as much about people as they do about open space, if they make a simple change to an eminent domain bill moving through the General Assembly. That's the assessment a John Locke Foundation expert offers in his latest Spotlight report.

Click here to listen to Daren Bakst discussing this Spotlight report.

"Senate Bill 600 would prevent the government from using eminent domain to seize private property encumbered by a conservation easement unless it could show that 'no prudent and feasible alternative exists to condemnation of the property,'" said report author Daren Bakst, JLF Legal and Regulatory Policy Analyst. "The primary problem with the legislation is that it does not provide the same protection to all other private property or to all property owners."

Lawmakers should ask themselves a few simple questions before proceeding with S.B. 600, Bakst said. "First, should the government be able to seize an individual's home or any private property even if reasonable alternatives exist?" he asked. "Second, should conservation easement holders have more protection than landowners -- in other words, homeowners, business owners, churches, etc.? Third, should trees and plants have more protections than humans who own private property? Hopefully, the legislators' answers would be a resounding no to these questions."

Once they've answered no, lawmakers can address a simple change, Bakst said. "There is a constant mantra among government officials that eminent domain is only used as a last resort," he said. "If this really is the case, then there is no excuse for anyone not to support the following very simple change to S.B. 600: protect all properties. The government should be required to prove that no prudent and feasible alternative exists to condemnation of all properties, not just those encumbered by conservation easements."

The Senate approved S.B. 600 with a 45-1 vote in May. A modified version of the bill has cleared one House committee and must pass through two others before it could head to a final vote in the full House. S.B. 600 adds new eminent domain protection to holders of conservation easements, which restrict property use by limiting development.

"A conservation easement holder -- often the government or a private land trust -- has no right to possess land but has a right to prohibit the landowner from disturbing the natural habitat by, for example, building a garage," Bakst said. "By its own language, S.B. 600 exists to protect land and its ecological features. No version of the bill suggests that it's designed to protect rights of people who hold the conservation easements. So the legislation exists to protect natural habitats, not a human's interest in that habitat."

Bakst labels the bill's likely impact "absurd." "It can fairly be said that this bill provides greater protection for mushrooms and dirt than it does for homeowners," he said. "This may seem harsh, but it is an accurate statement."

The legislation would allow conservation easement holders to challenge eminent domain takings in court, Bakst said. "It would provide greater protection to conservation easement holders than to the very people who own the land," he said. "A homeowner would have less protection than someone holding an easement. In fact, a conservation easement holder would be able to trump a landowner's property rights by challenging a taking in court."

The current legislation ignores the real victims of eminent domain abuse, Bakst said. "When property rights advocates get concerned about the seizure of an individual's home, they are not concerned with the house itself," he said. "Instead they are concerned with the individual's loss of property rights in the house. The concern is about the human, not the brick and mortar that makes up a house."

"Proponents of S.B. 600 literally are concerned with the trees, dirt, and everything that exists on the protected land," Bakst added. "There is nothing wrong with being concerned with nature. We need to be concerned with nature, but there is something very wrong with being more concerned about protecting a mushroom than protecting a North Carolinian from losing his family home, farm, or business."

"Eminent domain is an awesome governmental power," Bakst added. "In one single act, the government can take away the most important assets that people possess. It is not too much to ask for the government to seek alternatives to harming its citizens through the use of eminent domain. S.B. 600 would protect trees from being harmed but not fellow citizens from being harmed. Legislators can make a simple change to the bill and protect fellow citizens and the open space that the bill's proponents are so concerned about."

Daren Bakst's Spotlight report, "Seizing Property As a Last Resort: N.C. legislature should expand eminent domain bill to protect humans, not just natural habitats," is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or dbakst@johnlocke.org. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or mkokai@johnlocke.org.

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