U.S. high court didn't authorize N.C. cities to do anything more By Ellis Hankins Executive Director, N.C. League of Municipalities

Judging from the hysterical reactions to the recent U.S. Supreme Court decision on use of eminent domain for economic development in a Connecticut case, we should all worry that the city is going to take our home and give it to a private developer. Nothing could be further from the truth here in North Carolina, but why let the facts get in the way of a good rant? This Supreme Court decision changes nothing in North Carolina. That’s right—nothing. Our N.C. cities and counties have no statutory authority to use eminent domain for general economic development purposes, and the federal courts cannot provide it. The authority of our cities and towns comes from the N.C. General Assembly, which is not about to authorize use of the eminent domain power in this way. The Supreme Court ruled, in a 5-4 decision, that use of eminent domain by the city of New London, Conn. – with payment of just compensation – to carry out a detailed redevelopment plan to revitalize the devastated local economy does not violate the “public use” requirement of the Fifth Amendment to the U.S. Constitution. The court majority pointed out that the city derived its authority under Connecticut law, which permits use of eminent domain for general economic development purposes. The majority decided that the Fifth Amendment leaves room for judicial deference to legislative decisions by state and local elected officials. Some critics of the decision apparently wanted the Court to commit the dreaded “judicial activism,” and stamp a constitutional veto on the decisions of state legislators and city council members. Those elected representatives concluded, after careful deliberation and probably reluctantly, that sometimes the need to create jobs, increase the tax base and revitalize declining neighborhoods justifies the use of eminent domain. The recently announced plans to close the U.S. Navy submarine base in New London brings sharper focus to the economic considerations. This is not how the issue has been portrayed (“explained” is the wrong word) in the media since the Court announced its decision in Kelo v. City of New London. First, some headlines were overly dramatic: “Court: OK to take homes” (News & Observer, June 28). Some news stories in North Carolina failed to make it clear that our cities and counties cannot do what the City of New London is doing. Some national media stories left the impression that the case would allow all local governments across the country to ride roughshod over private property rights. Those misleading or incorrect stories caused an outpouring of indignant letters-to-the-editor and editorials. Citizens labeled the decision a “blatant eradication of our Fifth Amendment property rights” and a “devastating betrayal to every U.S. citizen.” Some members of the General Assembly have said that we need to “tighten” the N.C. eminent domain law in response to the Supreme Court decision. That is unnecessary, of course, since state law is crystal clear and does not authorize our state government, cities or counties to use eminent domain for general economic development purposes. The law in this state and most others does authorize use of eminent domain to aid in improving blighted urban areas where neglected buildings and increasing crime drive down the property values of hard working people who care about their neighborhoods. The U.S. Supreme upheld that in the 1950’s, and it is settled and accepted law. We have heard no outcry about abuse of eminent domain in North Carolina. The statutes provide detailed legal rights and remedies for property owners. Owners can challenge whether the proposed “public use” is authorized by law and constitutional, and they have a right to have “just compensation” determined by a jury. Our good North Carolina courts will safeguard the rights of property owners. In the last significant controversial case, the conservative N.C. Supreme Court voted unanimously to uphold condemnation of private property by the Piedmont Triad Airport Authority, under very specific and limited state constitutional and statutory provisions that authorize use of eminent domain for public airport improvements. The Authority acted under longstanding plans to expand cargo facilities directly related to airport operations. A crucial point is that the land acquired by eminent domain remains in public ownership and was not conveyed to private parties. The Authority granted the air cargo carrier a limited leasehold interest, just like public airports often lease interests to fixed base operators and airlines. Eminent domain is an essential tool, and local officials must use it carefully and wisely. It is used in North Carolina to acquire necessary property for public facilities, such as roads and airports, usually as a last resort after negotiations have been unsuccessful. North Carolina’s eminent domain law does not grant excessive authority to local governments. It is not broken and does not need fixing. This article originally appeared in the July 2005 issue of Southern City.