Can the Government Take My Land to Fix 'Blight?'

Unfortunately for home and landowners, the answer is "yes," governments can take private property for the purpose of fixing "blight." In North Carolina, local governments and agencies can take private property for "public use" or "public benefit" as long as the government pays fair and just compensation for the land taken. This is allowed pursuant to a legal doctrine called "eminent domain" and the specific legal process is called a "condemnation proceeding." It has been held that "public benefit" includes remediation of urban blight even if the intent is to sell the taken property to a private developer of the land.

This is what is happening in the City of Orangeburg, South Carolina which recently approved use condemnation proceedings to target "blighted" areas in the city. See news report here. There is an area in Orangeburg which is generally known as "Railroad Corner." The City Council has declared Railroad Corner to be a "blighted" area and the City Council intends to take the private homes and land for the purposes of redevelopment. In Orangeburg, "blighted" homes are defined as homes and buildings that do not meet current building code standards and are unsafe, deteriorated, unsanitary, have leaking roofs, water damage and the like.

The process of condemnation involves having the targeted properties appraised for fair market value and paying that value to the home and landowners. Title and possession would transfer to the City and, then, the City could transfer the land to a developer. According to Orangeburg's Mayor, remediating blighted areas "will benefit the city and its citizens."

Condemnation for "Public Benefit"

It may seem strange that the government is allowed to take land from one private owner through condemnation proceedings and then sell the land to another private owner. But, it is legal.

This question was hotly debated and litigated for many years until, in 2005, the US Supreme Court handed down its decision in Kelo v City of New London, 125 S.Ct. 2655 (2005). In that case, the City of New London, Connecticut wanted a section of the city redeveloped. The City used its eminent domain powers to condemn about 90 acres of land adjacent to a planned research facility to be built by Pfizer Pharmaceutical Company. The Supreme Court held that this was a permissible use of the power of eminent domain. Taking private property for "public use" included the concept of taking private property for the "public benefit." The redevelopment of the acreage was deemed to be a public benefit. The court went further and held that courts should give deference to a city’s determination that the area was sufficiently "blighted" to justify a program of economic rejuvenation and redevelopment.

Here in North Carolina, this question remains hotly disputed. For example, in March 2021, the North Carolina House approved a bill that would place eminent domain reform on the ballot in 2022. See Carolina Journal report here. Among other changes, if approved, the ballot initiative would amend the North Carolina Constitution to remove "public benefit" as a proper basis for condemnation of private property. Similar ballot initiatives have been passed by the House previously, however, the North Carolina Senate has, so far, failed to agree with the proposed initiatives.

Some of the impetus for political change has been prompted by the saga of Beverly Rubin and her fight with the Town of Apex, in Wake County. See media report here. Rubin owns rural land in Wake County. In 2012/2013, a local real estate developer purchased several parcels to the east and west of Rubin's land. The western parcels were eventually developed with homes and was connected to the Town's sewer services. The eastern parcels -- called Riley's Pond -- were also developed, but had no access to the Town's sewer services. The developer tried to buy an easement for a sewer line from Rubin, but she refused. The developer then had the Town of Apex use its power of eminent domain to take a 40-foot easement over Rubin's land allowing Riley's Pond to be connected to the Town's sewer service. The Town argued that the condemnation was "for public use and benefit."

Rubin challenged that argument in the county court and won. The court held clearly that the taking of Rubin's land was for private use and was, therefore, invalid. The problem for Rubin is that, while the case was being litigated, the Town proceeded to install the sewer line. Rubin wants the sewer line removed, but the North Carolina Court of Appeals recently ruled that she had to file a new lawsuit to have the sewer line removed. See Town of Apex v. Rubin, 277 N.C. App. 328, 858 S.E.2d 387 (2021).

What seems like a clear case of abuse of the power of eminent domain is fueling demands for political change.

Contact Experienced Mecklenburg County Land Use Attorneys Today

For more information, and to schedule a confidential consultation with experienced and dedicated property law attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and throughout in North Carolina and have offices in Charlotte, Lake Norman, and Union County.