Is There Anything I Can Do to Stop the Government From Using Its Eminent Domain Rights?
The Fifth Amendment to the Constitution protects us against eminent domain, stating that “private property shall not be taken for public use without just compensation.” However, the key here is “just compensation.” The government has the power to take land for public reasons provided that certain requirements are met — such as fair payment. However, you still have the right to challenge the government’s decision to try to take your land.
Generally when you challenge the government over eminent domain, two rules are taken into consideration:
- The government must be buying your land for public use.
- The government must pay you a fair compensation.
When looking at whether or not the government is buying your land for public use, the amount of land needed for their project will also be taken into consideration. For example, if the government really only needs half of your property to build a school, chances are you’ll be able to limit the amount of your property the government is able to buy.
If you are opposed to the government buying your land, then you must challenge their right to take your land. If the government fails to provide an adequate reason (or any reason at all) as to why they’re buying your land, then you might be able to put a stop to the purchase.
You will not be able to stop the purchase by refusing their compensation. While there may be some negotiation when it comes to the amount being offered, if the government is able to prove that they are buying the land for public use, then their right to purchase your land will be preserved.
If you have any questions about eminent domain or want to find out more about your rights, feel free to contact one of our experienced attorneys for a free consultation.
What Qualifies as “Public Use” in North Carolina?
The U.S. Constitution is generally very careful about what the government can and can’t do. The Founding Fathers outlined a government that would not have the same tyrannical power as a monarchy like the U.K. So when the government is given power by the Constitution, it’s usually for something that would benefit the greater good. One such instance is that of “public use.”
The Constitution states that property may be taken away from individuals by the government for public use provided that the government pays a fair compensation. Traditionally this has been used to create public goods such as parks, highways, or schools. The general consensus is that this is a fair use of government power.
However, in 2005, the U.S. Supreme Court went a very different direction with what is considered public use. They ruled that a decision that encourages economic development is protected under public use. Therefore, if the city could gain a higher tax value by taking a woman’s home and allowing Wal-Mart to build on the property, they could do so under public use.
As you might imagine, this was a very divisive decision, and many people felt that it was an abuse of government power. As a result, many states decided to enact legislation that would strengthen their laws regarding eminent domain to combat this decision. Many states, such as South Carolina, have elected to exclude economic development as a basis for taking property. North Carolina on the other hand, has not enacted laws to strengthen property right protections.
Litigation Concerning the Map Act Continues
A recent hot topic of the eminent domain world has been the “Map Act,” and as such it has been the topic of our last few eminent domain posts. A quick refresher: the Map Act was a law in North Carolina that allowed city governments to stake claim on land that they were planning on using for infrastructure without having to put any money towards that claim. Recently the Court of Appeals ruled that the Map Act was improper as it caused the value of the land claimed by the government to plummet. The Supreme Court upheld the Court of Appeals’ ruling.
Excellent! The ruling has been upheld, which is great news. Unfortunately, this process is not complete just yet, however. The next step is for the initial trial court to implement the Supreme Court’s decision. Superior Court Judge Joe Craig’s ruling on the case outlined a list of requirements that the state must follow. One such requirement was that the state begins hiring appraisers to value the properties and set aside the appraised value of that property for compensation. The state has 90 days to evaluate and deposit the money for the 9 properties that were brought into question during the case.
Even with this ruling, there are still some uncertainties. For instance, it is unknown whether this is a complete taking or not. In other words, does the state have to buy the property in full? Or is it just compensation for the decreased value of the property that the state has to pay? It’s going to take additional litigation and time to resolve these issues. In the meantime, homeowners will face additional hardship and uncertainty, and the state will owe more money. We’ll be sure to keep you informed as things progress. If you have any questions about eminent domain and your own property, don’t hesitate to contact us.
North Carolina’s Ruling on The Map Act
Unless you were directly affected by it, you may not have heard of the “Map Act,” but it’s at the center of the biggest eminent domain law case in the world right now. The Map Act was originally passed in the late 80s to allow cities to put development restrictions on land that they were intending to use for future roadways—basically the government could call “dibs” on land that they wanted to use without having to put any money towards that reservation.
This may have seemed like a good idea at the time, as it would prevent new construction in areas where new roadways were planned. This meant that the city would be able to spend less money purchasing the land, and new developments wouldn’t have to be torn down in order to make way for the new road.
However, the big problem here was that it might take years or even decades for the city to be ready to actually purchase the land. Which meant it was very difficult for landowners to sell or develop their land. Land in protected areas became less valuable and, in some cases, unsalable.
Many people felt that the loss of property value was a bigger problem than the eventual cost to the cities for the price of land, so earlier this year the N.C. Court of Appeals ruled that the Map Act was in fact a case of the government taking private property, and the U.S. requires compensation. The state, unhappy with this outcome, appealed the Court of Appeals ruling to the North Carolina Supreme Court. The North Carolina Supreme Court agreed with the Court of Appeals: the Map Act was in violation of the landowners’ rights.
The North Carolina Supreme Court also ordered that the landowners affected by the law receive the difference in the value of their land before and after the law was passed. It is estimated that the government will have to pay around $200 million in compensation.
When it comes to your rights, Oxner + Permar is dedicated to making sure that you are being protected. If you have any questions or concerns about your rights, be sure to contact an attorney for a free, 30-minute consultation.