Cary wants to take John Gasiorowski’s private property for the sewage pipeline that will connect the town with the proposed New Hill regional sewage plant, according to The News & Observer.

Gasiorowski wants what current law demands: "fair market" value. But what is fair market value in a down economy? Appraisers have few similar sales to use to determine the market value. It appears that the parties will be going to court to sort this out.

This case illustrates the larger problem with eminent domain abuse in North Carolina. According to Daren Bakst, the John Locke Foundation’s director of legal and regulatory studies, North Carolina has the weakest property rights protections in the country and is the only state that does not have a constitutional provision that expressly addresses eminent domain. Thus, he argues, that it is time for a well-crafted constitutional amendment addressing eminent domain abuse.

The model amendment recommended by Bakst would help Mr. Gasiorowski by:

  • Requiring "the government to have the burden of proof to demonstrate that a taking is for a proper public use." It appears that the pipeline is clearly a proper public use.

  • Requiring "just compensation to make property owners whole, by including the payment of relocation costs, loss of business goodwill, and attorneys fees." This provision would change the fair market value standard and instead require the government to make the individual property owners whole.

Bakst’s model constitutional amendment would also prevent other types of eminent domain abuse. It would:

  • 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 improper objective."

Bakst’s report, "Blocking Eminent Domain Abuse in NC: It’s past time for well-crafted constitutional amendment," is available here.

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