January 5, 2006
RALEIGH – North Carolina lawmakers need to amend the state’s Constitution to give property owners more protection against governments’ use of eminent domain powers. That’s the finding in a new Spotlight paper from the John Locke Foundation.
The recent U.S. Supreme Court decision in a Connecticut case — Kelo v. New London — allowed government taking of private property through eminent domain for “economic development.” North Carolina may be the last state in the union whose Constitution doesn’t explicitly prohibit government from seizing property without just compensation.
Daren Bakst, legal and regulatory policy analyst for the John Locke Foundation, addresses the issue in his Spotlight paper “A Model Amendment: Protecting North Carolinians’ Property Rights.” Bakst shows how a property-rights amendment would read in order to offer full protection against eminent-domain abuse and courts’ misinterpretations.
“North Carolinians need a property-rights amendment that will define public use, prohibit takings for private use, require just compensation up front, and force the government to prove that the taking is a last resort,” Bakst said.
Recent court rulings have favored governments over property owners in eminent domain cases. The Fifth Amendment to the U.S. Constitution allows government to take property for “public use” — but the government must offer the property owner “just compensation” in return. Courts have expanded “public use” to include “public benefit” and “public purpose.” Kelo allowed governments to use the expanded definition of public use take property for economic development.
“Even in their wildest dreams, the Founders could not have envisioned takings for economic development,” Bakst said.
Courts have allowed governments to use urban-renewal laws to seize any property in an area a government deems “blighted.” That can include even properties in pristine condition.
“North Carolina’s urban-renewal law even allows takings if the government declares the property might become blighted in the future,” Bakst said.
A key part of the model amendment would ensure that urban-renewal laws are not used as pretexts for economic-development takings, Bakst said. “The amendment also would offer other critical protections,” he said. “It would ensure that when property is taken, the compensation the property owner receives is truly ‘just.’ It also would make it clear that the government bears the burden to show why a taking is necessary.”
Daren Bakst’s Spotlight report, “A Model Amendment: Protecting North Carolinians’ Property Rights,” is available on the John Locke Foundation website. For more information, contact Bakst at 919-828-3876 or [email protected].