Eminent domain imminent?

by David Forbes in Vol. 15 / Iss. 04 on 08/20/2008

Related topics: Parkside, eminent domain

The controversy over developer Stewart Coleman‘s hotly contested Parkside condominium project has continued to escalate over the past few weeks, as Coleman has stated his intention to cut down a magnolia tree on the disputed property (which borders City/County Plaza). The tree had already become a rallying point for the project’s opponents, who are now organizing workshops on nonviolent direct action.

Throughout the brouhaha, however, one particularly loaded phrase has kept coming up: eminent domain. And on Aug. 7, about 50 Parkside detractors gathered under the tree, calling on the Asheville City Council or the Buncombe County Board of Commissioners to use their power of eminent domain (or condemnation, as it’s also known) to reclaim the Pack Square parkland the county sold to Coleman in 2006.

But what would this entail? First, one of the two governing bodies would have to take action (something both have so far been reluctant to do) by declaring that it was taking the land from Coleman for public use. State law details nine acceptable uses, ranging from roads to improving public wharves. Parks are No. 3 on the list.

Under North Carolina law, either a judge or a group of commissioners appointed by the court would then determine the fair-market value of the parcel at the time the motion to condemn was made. The governmental unit in question would also have to have the money ready to reimburse Coleman.

Local blogger Gordon Smith, a vocal Parkside opponent, has weighed in on the matter in an “eminent-domain primer” on his Web site, Scrutiny Hooligans. “Invoking eminent domain in the case of restoring our public parkland is entirely in line with the letter and the spirit of ‘public use,’” argues Smith. “It’s easy to see how such a power could be abused by an acquisitive governmental body, so I’d hold that it ought to be used very sparingly and only when all other possibilities and courses of action have been exhausted.”

That’s pretty much what has tended to happen in the past, notes Charles Szypszak, an associate professor of public law and policy at the School of Government at UNC-Chapel Hill.

“It’s not very popular, and governments are very reluctant to use it,” said Szypszak, an expert on property law. “But the law allows them to take land for recreational purposes, though the fair-market price will actually be set by the Superior Court.”

The city or county, he explained, would name what it thought was a fair price, “while the owner would call their experts to say it’s worth this much; then the court would decide.”

The fact that the county sold Coleman the land “doesn’t matter,” said Szypszak, “though the value may have changed since the county sold it, and the court would have to take that into account when it set a fair-market value.”

And unpopular or not, eminent domain is very hard to stop if a government chooses to go that route.

“Someone can try to contest it, but it takes very extreme circumstances. The only way you can stop it is to prove there’s a case of fraud—and that’s very, very rare,” he noted.

For his part, Smith concedes that the step would be controversial.

“We’re likely to be embroiled in a countywide debate over condemnation for the foreseeable future,” he writes at the end of the primer. “I have a feeling this is going to be exhausting.”
For documents related to the Parkside controversy, go to http://mountainx.com/xpressfiles.

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Thanks for the shoutout, David.

If you’d like to read the Eminent Domain Primer, it’s here:

http://www.scrutinyhooligans.us/?p=5867

{Xers - feel free to hotlink ScruHoo when you write about it!}

Gordon Smith

Aug 20, 2008
at

Whatever it takes, Coleman and his plans must be stopped.

I’m a native, have watched this unfold, and if Asheville continues to be ruled by money, I’ll find greener pastures somewhere else.

bmwloco

Aug 20, 2008
at

Eminent domain has been horribly abused in Western North Carolina and mostly by Democrats ...

watch Don Yelton’s “Citizens Speak” tonight on URTV for some examples ... I’ll be on it also.