Commissioners discuss eminent domain

By Scott Nicholson

nicholson@wataugademocrat.com

The Watauga County commissioners addressed two regulatory issues during Tuesday’s meeting, one for a proposed local ordinance and another addressing a national debate.

The board considered a resolution, presented by commissioner Keith Honeycutt, to limit the use of eminent domain powers. The resolution arose from a controversial U.S. Supreme Court case, Kelo v. City of New London, in which the court ruled 5-4 that local governments could use eminent domain powers in taking private land for economic development purposes.

Traditionally, eminent domain powers are most often used for public services such as roads or utilities. Other forms involve taking property deemed to be blighted or in a poor condition, land which is then transferred to private development interests. In such cases, those whose land is taken are compensated at an agreed-upon rate, or at a fair-market value determined by an arbitrator.

The Kelo case involved a taking of private property that wasn’t blighted, but was part of a larger economic development program. The case drew on previous decisions regarding urban redevelopment, with prior judgments equating “public purpose,” or improving economic conditions and therefore the tax base, with “public use.”

Honeycutt said he was concerned with what he called the “abuse” of eminent domain powers. “We owe it to our citizens to give them as much protection as possible,” he said.

Commission chairman Jim Deal, himself an attorney, said the Kelo decision hinged on Connecticut state laws, and felt North Carolina law wouldn’t allow such a land seizure. He said state law limited eminent domain power to projects providing direct public benefit.

Honeycutt said local government shouldn’t take property to try to increase the tax base, even if the property could be used for a mall or other business opportunity.

Commissioner David Blust said he liked the resolution presented to the commissioners, but wanted more fine-tuning of details and language. The draft resolution said the commissioners believed eminent domain powers should be limited to “public projects such as water/sewer lines, roads, streets, public parks, public buildings, electricity development and other similar projects that benefit the public as a whole and that the power of eminent domain should not be used simply to further a private use.”

The draft also makes a reference to Fifth Amendment protections against unlawful seizure, and reads, “The protection of homes, small businesses, and other private property rights against government seizure and other unreasonable government interference is a fundamental principle and core commitment of our nation’s founders and the essence of what they fought for in the defense of their homes and private properties.”

The issue is one sweeping a number of local and state governments. The February issue of “County Lines,” a publication of the North Carolina Association of County Commissioners, features an article on the subject on its front page. Richard D. Ducker, a professor of Public Law and Government, described the Kelo case as one in which a small group of landowners held out of a larger economic revitalization project that would turn their land over to a private developer. The Connecticut Supreme Court said state statutes41 were allowable under municipal planning provisions.

Drucker believes eminent domain use will still be upheld wherever it is a “last resort” for blighted communities or where the land is vital to any project valuable to the community. “Both state legislatures and courts will be looking for ways to establish principled safeguards to curb perceived abuses of that authority while allowing it where necessary,” Drucker wrote. “Local and state governments, whose practices will be analyzed, will have the opportunity to help in this process and in so doing to reevaluate the way they conduct the public’s business.”

The commissioners agreed to review the resolution and revisit it during a later meeting.

The board also turned down a chance to enact the county’s first ban on fishing from a bridge. The North Carolina Department of Transportation (DOT) asked the county to consider such a ban on Dewitt Barnett Road in Valle Crucis after a resident had complained to the state.

Planning director Joe Furman, who researched the issue, said the county had never had such a ban and that there were no such bans anywhere in the eight-county DOT Division 11.

County attorney Tony di Santi said the issue also touched on a larger issue, and said the commission’s lack of action could be used as evidence against them if there was an accident on the bridge. “How many ordinances do you want to put out there?” he asked.

Counties have authority under state law to prohibit fishing from bridges, with the DOT then responsible for erecting signs to reflect the ordinance. The commissioners declined taking action on the request. Deal said the county had enough regulatory duties already. “I don’t think the county needs to be regulating fishing,” he said.