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2005 North Carolina Article 22 Statutes on Redevelopment are very similar to Ohio Revised Code on redevelopment of "blighted" areas. There are seven active cases in Ohio of using vaguely defined "blight" to condemn property for the benefit of 'preferred' private parties. The Institute for Justice has documented 421 cases of redevelopment in Ohio that has used, or threatened to use, eminent domain to transfer property from one private owner to benefit another private owner. We have been lucky indeed in North Carolina that we haven't seen the abuses of our Redevelopment Statutes like they have been used in Ohio and a number of other States that have similar "blight" language to justify redevelopment like Arizona and New Jersey. The League of Municipalities claims that "we can't do what
New London, CT did, here in NC". I don't see it that way. I will grant that
Connecticut Law is very comprehensive and much more developed than North
Carolina or many other States, and they have bypassed the need to declare
property "blighted", but not having laws like Connecticut isn't stopping
other States from accomplishing the same end result. NC Article 22 contains nearly identical language to define blight. We are lucky indeed that we haven't seen more abuse of "blight" redevelopment. Perhaps this has been because our politicians have had better
scruples, or maybe it has been because the financial incentive has not been
as attractive. Most other States have had Tax Increment Financing available
to them for a long time. North Carolina voted to allow "project development
financing" (or TIF) in 2004. Still, there has so far been a reluctance to
use TIF, but there is more talk about using this finance option all the
time. (See NCTIFuse.com & this
Reason Article) Our North Carolina Legislators need to tighten up the definitions of blight in Article 22 Statutes to limit takings to truly dilapidated structures and narrow the scope of redevelopment area takings to insure that owners of sound and maintained properties aren't caught up in the net of "blight". The National League of Cities, (the parent organization of the State Municipal Leagues,) is lobbying Congress in an attempt to stop Federal legislation that would remove Federal funding for economic development projects that benefit private parties. NLC tried to stop an amendment to the Appropriations Bill that does this, and they are trying to stop Congress from passing the 'Private Property Rights Protection Act of 2005'. They lobbied the House unsuccessfully, but in their letter to the House, they made this statement:
That's exactly what we should all be worried about in
regard to our Article 22 Redevelopment Statutes. While Connecticut may have
been straightforward in allowing property to be transferred from "A to B",
in other States, like North Carolina, the "process" for
redevelopment is in place, to end up at
the same outcome. The National League of Cities is telling Congress that the public has been misled by the "fearful rhetoric in the press" and that limits to eminent domain should be left to the States. At the State level, our League of Municipalities is claiming the public is misled by the press, and our Legislators should "Do No Harm" to the existing power to use eminent domain in North Carolina. As Daren Bakst had said in his article, the Legislators
should be focused on making sure NC Statutes "Do No Harm" to NC property
owner "A" for the benefit of property owners "B". North
Carolina needs clearer limits on what is "blighted", eminent domain use
limited to truly blighted property, and elimination of condemnation of
non-blighted property that get caught up in a redevelopment area.
Citizens across North Carolina have expressed strong
concern about how the US Supreme Court decision regarding Kelo v. New
London would affect their property rights to their Legislators and
newspapers. The outcry was overwhelming and bipartisan.
Citizens expressed their desire to have greater protections for NC
land owners against abuse of eminent domain that might put their property
at risk for seizure in order to promote "economic development" or
increasing the
tax revenue for the condemning governmental entity.
The North Carolina League of Municipalities immediately
responded to the fear and concern by writing editorials and commentaries
attempting to quiet the fears and reassure NC landowners that they have
nothing to worry about in NC from the Supreme Court decision.
"NC Statute does not allow eminent domain for economic
development.", the League spokespersons say.
Really? Can we trust any
reassurances coming from the NCLM? The very same NCLM that put it's name and
endorsement to the seizure of Suzette Kelo's property by becoming co-signers of an
amicus brief supporting New London, CT in the US Supreme Court case?
Amicus Brief for New London, signed by NCLM: Connecticut Conference of Municipalities, et al.  10/18/2004 Eminent Domain Vital to Local Economic Development Can we trust assurances from the NCLM Director Ellis Hankins, who actively participated in the defense of New London for the National League of Cities?
Amicus Brief for New London:
National League of Cities, et al.
What is the truth about what NC Statutes allow as justification for seizure of property?
According to testimony by David Lawrence from the Institute
for Government, "....no General Statute currently authorizes condemnation
purely for urban redevelopment projects. There is,
however, authority to condemn for urban redevelopment projects, pursuant
to G.S. 160A, Article 22." (note the qualifier, 'purely')
So, what does G.S.160A, Article 22 say and allow?
G.S. 160A -503 defines "redevelopment areas" that allow the
use of eminent domain as:
Each of these areas are further defined, but do these
definitions reassure us with 'strict' limitations and clear parameters?
How are these terms defined? Much too generally I'm afraid.
Note: GS 160A 503(21) states:
(21) "Rehabilitation, conservation, and reconditioning area" shall mean any area which the planning commission shall find, by reason of factors listed in subdivision (2) or subdivision (10), to be subject to a clear and present danger that, in the absence of municipal action to rehabilitate, conserve, and recondition the area, it will become in the reasonably foreseeable future a blighted area or a nonresidential redevelopment area as defined herein.
The allowable uses, as I read them in (2) or (10), are general and open to
subjective interpretation, with 'planning commissions' assigned the power
and latitude to interpret the terms.
Otherwise, how, and by whom, is it to be determined
whether;
These 'planning commissions' are free to decide whether an
area "might become" any of these things listed, regardless
if they currently are any of these nebulous things. Are they making
these determinations using their own subjective opinions?
(See
NCGS Article 22 for more on related
NC Statutes)
Where are the property owners protections against the
subjective and generalized parameters that are being left to
interpretation by government bureaucrats?
Landowners have no recourse other than to
challenge these interpretations in the courts and hope that judges will
interpret them in their favor and not defer to the judgment of
biased bureaucrats. Our Courts will also look to precedents set by other courts
across the country to
resolve this.
The precedents they will look to, when the NC Statutes give
them no clear parameters, will include decisions made in Federal Courts
and other State Courts. They will look to the US Supreme Court decision in
the Kelo case for precedent, just as many State Courts have relied on
other State Courts and the Federal Courts for 'stare decisis' to guide their rulings.
The definition of Public Use, benefit, and purpose have
been, and are, parsed and debated by lawyers and politicians. The people
seem to disagree with the lawyers about the plainly understood definition
of "Public Use".
History shows that Constitutional limitations and protected
rights die by slow degrees of litigation.
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| Notes from the Feb 1st Select
Committee Meeting: Presenters to the Select Committee included; Don Hobart, Dept. of Commerce (To be posted soon)
Attorneys fees in eminent domain cases questioned "Leanne Winner, representing the N.C. School Boards Association and N.C. Council of School Attorneys, said that requiring attorneys fees be paid could hurt a school board’s negotiating position. “If mandatory attorneys fees and other compensation are awarded to landowners, there will be no incentive for the landowners to negotiate,” Winner said. “Our belief is the current law strikes a fair balance between public interest and private property rights.” That prompted Rep. Robert Grady, R-Onslow, to thank Winner for her honesty but comment that it could invigorate property rights proponents to call for more protections. “I have to tell you that if we had a C-SPAN in North Carolina and your comments were played on the air that I would have 300 calls from my constituents tonight telling me why we need to pass a constitutional amendment,” Grady said." (2.03.06)
First, Do No Harm |
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| Notes from the Jan 18th Select
Committee Meeting: Presenters to the Select Committee included; Elizabeth McKay, Special Dep. AG, for NCDOT Ms. Wegner began her presentation by commenting on
how the media has inaccurately influenced public opinion about the Supreme
Court decision in the Kelo case and it's affect on NC property owners. Mr. Lawrence continued along the same lines with
explanations of the General Statutes on Eminent Domain use, particularly
Article 22. His handout included some of the references to parts of the
General Statutes that defined general limitations. The Committee took a 20 minute recess after this
presentation. Daren Bakst, who gave a very good argument for the
need for an Amendment to the NC Constitution, along with suggested language
for the amendment, based on policy papers he has published through
the John Locke Foundation. These papers can be found at these links: Mr. Blackburn gave a short presentation wherein he agreed with and restated the belief that the public has been misled by the media to erroneous conclusions about the impact of Kelo on NC property rights. He was also of the opinion that property rights and eminent domain use should be left to the Legislators to determine. Mr. Romanet from the NCLM was the last speaker for
the Committee. His presentation was also brief. He repeated the claim that
"we can't do in NC what New London did". He stated that "We haven't asked
for legislation to allow eminent domain for economic development". He
recounted how he had property that was taken by eminent domain before and
was glad that it was taken. He was amused by his own story, but then went on
to say that he didn't want to make a joke out the subject of eminent domain.
The discussion by the Committee members seemed to
be primarily focused on whether just compensation was fair as it is currently
written, and there seemed to be lots of concern by several members that
the current ability to use eminent domain not be restricted. I wondered if anyone else caught the contradiction in the
argument that the public was safe because 'public benefit' could be
adequately defined by the Legislature, but then claim that 'Public Use' could not be
adequately defined as an amendment to the NC Constitution. I hope that the Committee is approached by more speakers
who will make the case for better protection of property rights in NC. |
