ince 2006, the North Carolina House twice passed a constitutional amendment to address eminent domainabuse.
Both times, those amendments ailed to be considered in the North Carolina Senate.
As the new legislative session begins with a new political make-up or both chambers, there is hope thatthe North Carolina legislature will nally pass an eminent domain amendment. Even i an amendment does getpassed, however, it must be careully drated to properly address eminent domain abuse. The House-enacted eminentdomain amendments were very narrow in scope and provided little protection or property owners.
Recently, theHouse introduced an amendment that is identical to the weak amendment it passed in 2010.
An amendment certainly should be drated in response to the United States Supreme Court case,
Kelo v. City o New London
In that case, the Court held that the government could seize private property and transer it toanother private party i the taking is or economic development.
As a result, the government, or example, can take aperson’s home and give it to a developer who could supposedly generate more tax revenue o the property by buildinga strip mall.While the amendment must eature a clear prohibition against these “economic development takings,” it shouldalso protect against the ways the government nds end runs around such a prohibition.Furthermore, while economic development takings receive most o the attention, they are simply a subcategory o takings that make up the real problem. The amendment should specically prohibit the taking o private property tobenet another private party, whether it be or economic development or another reason.This
will briefy explain why North Carolina needs an eminent domain amendment. It will outline thekey protections that are necessary in an eminent domain amendment and provide model language or an eectiveamendment.
Wh an amndmn i Nr
1) Fundamental rights should be protected by the Constitution.
I the United States Supreme Court gutted a undamental right such as ree speech, it would be highly unlikelythat legislators or the public would want ree speech to be protected by state statutes alone that could change at thewhim o political interests.The same logic applies to property rights, which are also undamental rights. Property rights were gutted in the
case, and currently the only thing that may provide limited protection rom economic development takings arestate statutes. An amendment is the only way to provide the necessary protection rom economic development takings. Since itwould require the legislature to obtain a three-ths vote in both chambers and a majority vote o the public to get rido the amendment,
an eminent domain amendment could not easily be scrapped due to political interests.
2) North Carolina has the weakest property rights protection in the country.
North Carolina is the only state in the country that does not have a “takings clause” in its state constitution, whichis a provision that expressly states the government may only take private property or a public use upon the paymento just compensation.
The North Carolina Supreme Court has had to read this protection into the Constitution.
As a result o thisweak constitutional protection, even had
never occurred, North Carolina would have needed an eminent domainamendment.