I admit to staying away from the Kelo result as much as possible, it is simply too depressing. But the spin it is getting from state and local officials in North Carolina is a little extreme. No, North Carolina is not at the forefront of the takings frenzy, like Connecticut or New Jersey. But neither does it have in place iron-clad restrictions on government taking the property of one person or entity and delivering it to another private entity for their use and benefit.
The 2003 Institute for Justice state-by-state report by Dana Berliner that helped frame the Kelo case, and now is simply required reading on the topic, puts the Piedmont Triad-FedEx deal, and the subsequent N.C. Supreme Court ruling which upheld the taking of one land-owner’s parcel, in the proper perspective:
This was a strange holding, as FedEx will be the only user of the additional cargo facilities. Neither passengers, nor shippers, nor other cargo companies will receive any benefit from the improved airport.
Clearly, N.C. law did not slam the door on these kinds of takings pre-Kelo, indeed the door was left slightly ajar. Or as I wrote back in October:
But because this was a relatively specialized case of an airport expansion — which involves questions of safety and does not happen very often — the decision might not signal a change in how North Carolina courts treat property rights. Or, as Berliner notes, it could signal a jumping-off point for local governments and development commissions upon which to base new arguments for broader eminent domain powers. We just do not know.
Well, now we know that the Supremes, via Kelo, have swung the door wide open to states, municipalities, and quasi-public authorities looking to concoct new development deals that might involve swapping one property owner for another.
North Carolina may or may not walk through that door, but to pretend that opening is instead a high wall is madness.
