House tries again to limit eminent domain

Posted February 5, 2015

— State House lawmakers have once again given tentative approval to a proposed constitutional amendment limiting government's powers to take private property.

House Bill 3 passed its second reading by a 111-4 vote. A final vote is expected next Tuesday before the measure heads to the Senate.

The bill, which has 69 House sponsors and co-sponsors from across the political spectrum, would add language to the North Carolina constitution specifying that local and state governments can take private property with "just compensation" only for public uses, such as schools, roads, sewers and utility easements. It also adds to the constitution a guarantee that damages in such a case should be decided by a jury if requested by the property owner.

Sponsor Rep. Chuck McGrady, R-Henderson, explained that those stipulations are already in North Carolina law, but unlike most states, they're not in its constitution.

"Aside from the public use test, there are two other tests or phrases sometimes used," he said. "Some courts have talked in terms of a public purpose or public benefit, and with time, the test has gotten rather fuzzy or has morphed."

The case that prompted the proposal, McGrady said, was Kelo v. New London. In 2000, the city of New London, Conn., used its power of eminent domain to take land from a property owner. After paying for the land, the city sold it to a private developer who wanted to build a shopping center on it.

When the property owner sued, the city argued that "economic development" counts as a public purpose. In 2005, the U.S. Supreme Court agreed with the city but also said states have the authority to establish more restrictive standards, which is what McGrady's proposed amendment would do. 

"The bill will mean that a public use does not mean the taking of property in order to convey an interest in that property for economic development," McGrady said. "We’re not trying to make new law here. We’re just trying to make sure North Carolina’s law stays what it is."

Rep. Mickey Michaux, D-Durham, said the debate over eminent domain started long before Kelo, recalling a bill before state lawmakers back in 1990.

"This question has been before this body and before this state for a long time," Michaux said. "Condemnation of private property has always been a problem."

He said the amendment wouldn't take away government's power to condemn unsafe buildings or so-called "blighted areas" for improvement.

"It says you just can’t go in and take property and sell it to a developer for a lower price so they can make a profit," Michaux explained. "We need this."

Nearly identical provisions passed the House in 2013 and 2014 by overwhelming margins, and similar bills won House approval in prior years, but Senate leaders have refused to take up the matter.

If it's approved, it would go before voters in the May 2016 primary. 

"I believe that, if we put this before the people, we will have overwhelming support," said sponsor Rep. Paul Stam, R-Wake.


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  • cruzinlong Feb 6, 2015

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  • cruzinlong Feb 6, 2015

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    nobody said this bill covers the taking of land for the fracking process itself but it does cover the gas companies being able to take and use some properties for the infrastructure they will need in the fracking process, such as pipelines.
    Again...the eminent domain that will be made able to take place for the actual fracking process will be in the rules that were drafted by the Mining and energy commission and will be approved ( very good chance ) when those rules go before the Legislature soon.
    This eminent domain, again, will pertain to people who will be FORCED pooled or forced to have fracking activity going on within 400 feet of their homes in a split estate situation.

  • goobnav Feb 6, 2015

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    Fracking is a private enterprise, not a utility. No more than an oil rig.

    This bill is still bad as it doesn't directly address the real reason for it. Government can still take your property for the building of roads. Don't believe me, ask the people in Garner that still cannot sell "their" property due to the 540 toll road. Forgive me but, basic economics building a road directly correlates with Economic Development.

  • Tommie Chavis Feb 6, 2015
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    No one is blurring the lines. You on the other hand like many politicians deflect and need every thing "SPELLED" out for you so you can feel good or safe. The bill does not clarify limitations but gives more power.

  • justabumer Feb 6, 2015

    I fought this battle, on a small scale, with the local utility which wanted to run a sewer line across a portion of my property. We fought. The line was run but it cost them two and a half what they first offered.

  • 68_dodge_polara Feb 6, 2015

    You guys are blurring the lines between reading between the lines and making stuff up. No where does it say land can be taken for extraction of natural gas. In fact this amendment better clarifies limitations on companies.

  • Travis Upchurch Feb 6, 2015
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    If any of you had any land you woulden want someone to come in and take yours for any reason!!

  • Tommie Chavis Feb 6, 2015
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    I am glad someone can see what I see and read between the lines. When I read it, my mind went haywire with all the possibilities that can happen with the way they have this bill worded. I have read this bill at least 10 times today over and over to see it from 68_Dodge_Polara's point and I am not seeing where this is a good bill at all. I would be the first to agree if I could see where any good comes out of this kind of bill.

  • cruzinlong Feb 6, 2015

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    "facilities" related to the distribution of natural gas, and pipelines or mains originating 2 in North Carolina for the transportation of petroleum products, coal, natural 3 gas, limestone or minerals. "
    It does not just pertain to PSNC and their pipelines, again...sometimes you have to read between the lines. " Facilites" could mean well pads etc. used in fracking,
    Giving up land ( mineral rights below it ) forcibly will also happen if the NC mining and energy comm.'s Forced Pooling rules are passed that they want to allow to happen.
    you can google forced pooling to see what that's all about.
    As far as fracking goes there's another situation where people who only own their surface rights but not their mineral rights below them will be FORCED to let heavy industrial activity go on as close to 400 feet of their homes with little to no compensation.
    That's a split estate situation.
    NC wants to have all bases covered.

  • 68_dodge_polara Feb 6, 2015

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    I'm just not seeing this in the proposed amendment.