A proposed amendment to North Carolina’s constitution seeks to restrict when state and local governments can seize private land. The amendment passed the state House of Representatives last week, is on to the Senate, and would ultimately require voter approval in 2016, but the actual effect is uncertain.
The power of eminent domain allows federal, state, and local governments to claim private land for public purposes, such as when Charlotte built the Blue Line. The city claimed about a fifth of the land using eminent domain. The law instructs cities to pay fair value for what they take.
Lawmakers feel the power is too broad right now, says Representative Chuck McGrady of Henderson County. The House passed his constitutional amendment last week almost unanimously.
“It is a direct reaction to a US Supreme Court decision that more broadly allowed condemnation for projects that would have a public purpose to them,” says McGrady.
Kelo vs. New London is a famous, or notorious, 2004 court case. In a 5-4 decision, the court allowed a Connecticut city to seize land, not for power lines or a new highway, but for an economic development project containing a public park and private homes. The court found that job creation and urban renewal count as public purposes.
Every state considered revisions to their eminent domain laws in response to the decision by 2008, according to the Institute of Real Estate Management. Many, including North Carolina, explicitly banned the use of eminent domain for economic development projects. But state lawmakers want broader language.
McGrady’s bill would add a constitutional amendment saying private property can only be taken for “public use,” a standard McGrady says North Carolina “has traditionally used.” The amendment would also allow a jury to determine the value of seized land.
The rest of the bill changes sections of state law, which currently allow seizure for “public use or benefit.” It strikes the “or benefit.”
But Chuck Szypszak, a UNC Chapel Hill government professor and an expert on eminent domain law, says the new “public use” definition is problematic.
He says it seems intended “to narrow the power of the General Assembly to authorize use of eminent domain. I’m not exactly sure how it does that, because we still have to figure out what ‘public use’ means.”
The Kelo decision actually centered on the phrase “public use,” and the Supreme Court ruled it can mean a purpose or benefit. Szypszak says, even if the amendment passes the Senate and wins voter approval, he expects a court will have to take up the new North Carolina language and determine what lawmakers intended.
