Can an Eminent Domain Taking Be Overturned Because of Racism?

The government (and some private third parties) can use the power of eminent domain to take private land for public use as long as the government pays the fair market value of the land taken. However, the government cannot use the power of eminent domain to disquise an invidious and improper motive like racisim or discrimination. That can be difficult to prove, but an invidious and improper motive can be used to challenge the validity of a government taking.

As to whether an eminent domain taking can be overturned -- reversed -- if discrimination or racism can be proven, that is more complicated. Much depends on the level of proof, how long ago the taking occurred, who owns the land now and other factors. Further, reversing an eminent domain taking may require specific action by a legislative body.

An example that illustrates this recently occurred in California. See Washington Post report here. The example involves what is called "Bruce's Beach" in Manhattan Beach, California. The area is on the shores of the Pacific Ocean and is described as "picturesque." In the early 1900s, the land was owned by the Bruce Family. As reported, through 1924, the land was owned and used by Charles and Willa Bruce to operate a thriving African American beach-front resort. However, as documented, the Bruce Beach Resort endured years of harassment from White neighbors, including threats and intimidation from the Ku Klux Klan.

In 1924, the City of Manhattan Beach used its power of eminent domain to take the land and dispossess the Bruces from the property. The City claimed that the land was needed for "public use." More specifically, the land was going to be used for a public park. However, the park was never built. Eventually, the land was transferred to the State of California in 1948 and then, eventually, transferred to the County of Los Angeles.

Over the years, the descendants of Charles and Willa Bruce have sought to have the land returned to their family by having the eminent domain taking overturned. The Bruce family finally succeeded and, last year, the California State Assembly passed a law giving Los Angeles County the authority to deed the Bruce's Beach property back to the Bruce family.

As the case illustrates, several important conditions must exist for an eminent domain taking to be reversed because of racial animus. First, the invidious racial motivation must be well documented. Second -- most likely -- the land in question must be owned by a governmental unit. And, third, some sort of legislative action must be taken. In the case of Bruce's Beach, two legislative actions were needed: a law from the State and legislative action by Los Angeles County. Note that in reversing the taking of Bruce's Beach, California and Los Angeles County did not use the power of eminent domain. A different type of legislation was needed.

Here in North Carolina, there are a couple of provisions in the Eminent Domain statute related to returning land taken through eminent domain. These are general provisions related to the non-use of the land, not related to an invidious motive for taking the land in the first place. First, in general, if land taken is no longer needed, then N.C. Gen. Stat., § 40A-10 allows for the land to be sold or disposed of as "surplus property." In theory, the land could be sold back to the original owner or owners. But, the statute does not require that the price be the same as the price paid for the eminent domain taking. By contrast, there is a more specific provision when land is taken by North Carolina local and municipal governments. See N.C. Gen. Stat., §40A-70. Under this provision, land that has been taken that is no longer needed CAN be offered back to the original landowners if the original landowner pays the full price paid to the owner when the property was taken by eminent domain plus the cost of any improvements and interest. Further, if there was a partial taking, the original landowner must still own the remainder of the land. The original landowner must be given at least 30 days to consummate the reconveyance after notice.

For more information, and to schedule a confidential consultation with experienced and dedicated eminent domain and condemnation 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 federal court, in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.