Eminent Domain Amendment Breezes Through House, Heads to Senate | Eastern North Carolina Now

    Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.

Provision would prevent use of eminent domain to take land from one private property owner and give it to another

    State House members continue to push for a constitutional amendment to protect private landowners' from eminent domain seizures for economic development projects. Similar measures introduced as far back as 2006 have died in the Senate.

    Rep. Chuck McGrady, R-Henderson, on Thursday ushered House Bill 3 through a floor vote, 104-9, and got the three-fifths supermajority vote required to pass constitutional amendments. The measure was sent to the Senate, where Sen. Brent Jackson, R-Sampson, has introduced Senate Bill 35, which is similar. That bill has been referred to the Senate Rules Committee.

    Rep. David Lewis, R-Harnett, chairman of the House Rules Committee, Deputy Majority Whip Chris Malone, R-Wake, and Rep. Ken Goodman, D-Richmond, are the primary co-sponsors. McGrady said H.B. 3 closely aligns with a bill that achieved near unanimous House passage last session but was not taken up when sent back from the Senate with other constitutional amendments tacked on.

    The legislation folds in House Bill 10, another eminent domain bill. It extends constitutional rights to just compensation for condemned land and a right to trial by jury in public takings of private land.

    McGrady presented H.B. 3 to the House Judiciary I Committee on Wednesday, and the measure passed unanimously without debate.

    During his committee discussion, which mirrored his arguments before the full House on Thursday, McGrady said he would be an ineffective legislator if he were unable to move the bill out of the House because past attempts have succeeded with near unanimous margins. Amendments expanding eminent domain protection have been introduced in every legislative session since 2006.

    "The problem has been getting the Senate to take it up at any point in time," he said.

    "Basically, the proposed constitutional amendment says that private property shall not be taken by eminent domain except for a public use," McGrady said. A public use would be something such as roads, schools, sewers, courthouses, public utilities, and acquisitions of right of way.

    Even though utilities are "owned by a private entity, that utility is by definition something that the public has the right to obtain a service [from] upon payment of fee," McGrady said.

    A constitutional amendment is needed because, aside from the public use rationale, "there are other tests sometimes used when deciding whether a government can use its power of eminent domain," McGrady said. Courts also have extended the eminent domain power to "public purpose, or public benefit. With time the test has gotten fuzzy or morphed."

    In the most infamous example, which led to an unpopular U.S. Supreme Court ruling in the so-called Kelo case. In that case, the high court decided the town of New London, Conn., could force the sale of residential property by one private landowner to the town. The town then sold the property to a private entity desirous of the land for economic development, McGrady said.

    But that decision also allowed states to restrict eminent domain further than the court determined, "and that is precisely what we are trying to do here with this bill," McGrady said. "We are trying to clearly establish a constitutional standard under the North Carolina constitution" to avoid a situation such as the Kelo case.

    McGrady said he doesn't believe the bill changes North Carolina law because there's a statute giving residents have a right to jury trial and by court decision a right to just compensation for a taking of land by the government.

    But North Carolina is among only a handful of states without language in their constitutions mandating just compensation for condemnation of land, McGrady said.

    "We are the only state that doesn't require in its constitution the issue of damages and condemnation cases be decided by a jury. So we join the other 49 states" by passing this bill, McGrady said.

    McGrady's bill also makes language changes to existing laws so they will be consistent with what the constitutional amendment says, and to strike the "public benefit" language.

    Statutory language in bill is mostly the same but includes some revisions to sections about pipelines. McGrady said the changes are simply to clean up laws, and are not being made for some hidden purpose to benefit fracking or oil and gas producers.

    If the amendment is approved by a three-fifths majority of the Senate, it would appear on the November 2018 general election ballot.