[youtube_sc url=”http://youtu.be/yaf94Cqg3nc” width=”580″ modestbranding=”1″ autohide=”1″ fs=”1″ border=”1″ hd=”1″]Representative McGrady, the primary sponsor of the eminent domain bill, further explains the legislation on “Legislative Week in Review.”
The first substantive legislation of the year was filed by Representative McGrady on the same day the General Assembly convened for its 2015-2016 Session, an opening day which otherwise only saw the election of a new Speaker and other leaders.
House Bill 3, sponsored by Representative McGrady and co-sponsored by 47 of his Republican and Democrat colleagues, calls for a 2016 referendum regarding a proposed constitutional amendment that would clarify state government’s “eminent domain” authority.
Eminent domain is the well-established power of sovereign governments to take private property within its own borders for public use. Eminent domain authority can be exercised (and often is) by all levels of government: state, local, and federal (and in some cases, private persons or corporations which are authorized by these governments to exercise certain functions deemed beneficial to the public) — a process known as “condemnation.” What typically comes to mind when most people think of property being “condemned” under eminent domain is when the government seizes someone’s land in order to build something like a highway, a courthouse, or a public school.
The kicker with eminent domain, of course, is that if private property is taken by the government for a public use, the person or persons who owned that property must be fairly reimbursed. In other words, the government can’t just come in and take your home or your land without paying you fair market value.
This fundamental protection is enshrined in the United States Constitution, which states in Amendment 5 that “private property shall not be taken for public use without just compensation” (referred to as the “Takings Clause”). The principle was first inscribed in the Magna Carta, the cornerstone of modern democracy, the 800th anniversary of which happens to be this year.
While North Carolina already has laws that outline the conditions and processes for exercising its eminent domain authority (North Carolina General Statutes Chapter 40A), those laws are statutory — meaning they could be changed anytime by a future legislature — a legislature that may not be as inclined as the current one to support private property rights.
This bipartisan measure, if it eventually becomes law and the language is then in turn approved by voters, would write eminent domain protections into North Carolina’s State Constitution by both explicitly requiring “just compensation” and giving property owners the right to a jury trial in condemnation cases — meaning that twelve normal citizens would determine what monetary compensation would be fair when property is taken, and not just a judge.
North Carolina is the only state in the union which currently lacks these constitutional protections.
The proposed constitutional amendment is a direct response to the controversial 2005 U.S. Supreme Court decision in Kelo v. City of New London which basically said that it was okay for a government to take a private citizen’s land and then give it to a developer — in that case, for the public “benefit” of increasing city revenues by way of increasing property values.
But the High Court left the door open for states to adopt stricter standards in eminent domain cases — and that is exactly what House Bill 3 proposes to do for North Carolina. Since that time (and because of Kelo) 42 other states have enacted stricter eminent domain legislation or passed similar constitutional amendments.
But the legislation’s not just about Just Compensation: House Bill 3 also establishes a higher standard for North Carolina and its local governments. State law currently allows for state and local (county and city) governments to take private property “for the public use or benefit.” This bill would strike the “or benefit” bit and therefore limit potential property condemnations only to those situations where there is a “public use.”
House Bill 3 is very similar to legislation sponsored by Representative McGrady last session which overwhelmingly passed the House but wasn’t taken up by the Senate.
- Cornell University Law School: “National Eminent Domain Power
- Harvard Law School: The ‘Public Use’ Requirement in Eminent Domain Law
- National Conference of State Legislatures: Eminent Domain Overview
- Sedgwick Law: Expropriation and the Public Use Clause: The Legislature’s Eminent Domain
- UNC School of Government: Ten Common Misconceptions about Eminent Domain
- Carolina Journal Online: Eminent Domain Amendment Gets Another Chance
- 60 Minutes: Eminent Domain