THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, July 29, 1995 TAG: 9507270323
SECTION: REAL ESTATE WEEKLY PAGE: 04 EDITION: FINAL
COLUMN: ABOUT THE OUTER BANKS
SOURCE: Chris Kidder
LENGTH: Medium: 96 lines
Property owners in our nation usually believe that nothing but death or a bad debt can separate them from their land against their will. Americans are unique in this belief; citizens of other countries know better.
But this month, some folks in Manteo learned that property ownership is not an inviolable right: Government can - and, frequently does - seize private property for public use.
Until July 17, Dare County commissioners were planning to build a county office complex. One site under consideration included several privately-owned acres of land and single-family residences not currently for sale. These properties would have been acquired through condemnation.
Although the commissioners had been privately talking - only talking, at this point, because this was one of three sites being studied - about taking the private property for some time, no public notice had been given.
The threatened condemnation proceedings had not been discussed at any public meetings until a dozen angry property owners showed up at a public site selection meeting to confront county officials. The owners had inadvertently seen the site plan showing their houses gone and their land paved for parking 500 cars.
The property owners were shocked; they were mad. They thought that some terrible breach of law must have transpired.
They were wrong.
The county's actions in this matter, arguably, may have been politically naive or institutionally insensitive, but they were perfectly legal.
Condemnation - the taking of private property for public use - is the result of the doctrine of eminent domain, a concept originating in Western civilization and formalized by a Dutch jurist in the 17th century.
Before that time, there were vague ideas that individual property rights were to be protected from the state; the legal basis for protecting private property rights existed. But, because few people actually owned land, no one had bothered to put it all together.
The Industrial Revolution, the discovery of new lands to be owned, and social changes that gave the individual more voice in state matters all had a profound affect on how the Western world looked at property ownership.
The United States, forming on the cusp of all this change, incorporated the protection of property rights into its Constitution. The Fifth Amendment, passed by Congress in 1789 as part of the Bill of Rights, declares that no person shall be ``deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.''
In spite of the Fifth Amendment, private property owners had problems keeping their land in the face of progress. In the early 1800s, states claimed the right to eminent domain almost without restriction as cities grew, railroads worked their way across the continent, and public utilities and roads were built.
Citizens turned to the federal government.
In 1868, Congress passed the Fourteenth Amendment to the Constitution, which, in part, detailed the right of due process before a state deprives a citizen of property.
But while Congress was fine-tuning the rights of individual property owners, the Supreme Court was bolstering - if not broadening - the rights of a government to seize private property for public use. An 1848 court decision ended that attack on the principle of eminent domain; later court decisions would deal with the methods and circumstances permitted.
In the 1930s, government began a new round of property acquisition for its massive public works projects. A new round of legal challenges to the principle and application of eminent domain made its way through the courts. If anything, the court decisions once again upheld the doctrine and broadened the definition of what constitutes ``public use.''
In addition to federal laws, North Carolina General Statute 40-A grants the state powers of eminent domain and outlines the ``due process'' required: Written notice 30 days before a condemnation suit is filed. That's it.
Property owners have 30 days to challenge the action, although there is no legal remedy against it. ``I don't know of any legal means to keep property from being taken,'' says Ben F. Loeb, Jr., professor of public law at the University of North Carolina at Chapel Hill.
``In rare cases, you can get an injunction to slow or stop the action,'' says Loeb, but the chances of not losing your property in the end are slim unless you can find a political solution.
Knowing a court battle will probably end in defeat doesn't keep property owners from fighting the taking of their property. Americans cherish their right to due process. But even that right isn't as clear-cut as it might seem.
Next week, we'll look at how the doctrine of eminent domain works in North Carolina and at the ``quick take'' law which allows the state to take your property now and litigate later for certain public works projects.
We'll also see what steps the Manteo property owners took to fight Dare County's site plan and what they might have been able to do if the county hadn't changed its course. MEMO: Send comments and questions to Chris Kidder at P.O. Box 10, Nags Head,
N.C. 27959.
by CNB