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Panel makes right move to drop 'takings' provision

Lawmakers need to keep costly measure out of eminent domain bill

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Finally, some good news out of Columbia this legislative session.

The House Judiciary Committee on Tuesday sent to the full House a Senate-passed eminent domain bill that did not include a controversial "regulatory takings" provision.

Rep. Bill Herbkersman, R-Bluffton, made the motion to keep out the provision, which passed by the narrowest of margins, 11-10. It was a good day's work for Herbkersman, and we thank him.

Now, our legislators need to make sure the provision doesn't reappear as an amendment on the House floor.

The takings provision would require local governments to pay landowners if their property values are affected by new laws or regulations, such as zoning. A 1998 study of a similar measure concluded that it would cost local governments more than $100 million in its first year, and most of the money would go to lawyers and administrators, rather than landowners.

The Senate bill in question would put to a vote a change in the state constitution prohibiting condemnation of private property for private use.

Attaching takings to a popular measure to stop governments from taking private property for private use is intellectually dishonest. Bringing it up this way signals that its supporters recognize the idea can't stand on its own merits.

Earlier this year, Herbkersman and Rep. Richard Chalk, R-Hilton Head Island, voted for the bill that would make the provision part of state law. Both voted against making the takings language part of the state constitution, which would have made it exceedingly hard to undo later.

Herbkersman said then he was against the idea and hoped to see it changed in conference committee. But Chalk said he voted for the measure because he believes in home rule and by that he said he means "homeowners' rule." If a zoning change means lower value, then the community should pay the landowner.

Unless Chalk's views have changed since March, it's a good thing Herbkersman serves on the House Judiciary Committee and not Chalk.

Gov. Mark Sanford also weighed in this week, asking the House to pass a version of the eminent domain bill without the takings provision. Such a provision jeopardizes passage of an eminent domain bill in the Senate.

"The issue of regulatory takings is an important one that needs full debate, but based upon what we've heard from a number of friends in the Senate, it's an idea that could jeopardize getting an eminent domain bill through that body this year," Sanford said in a prepared statement. "I believe it would be a disservice to all homeowners and business owners in South Carolina if regulatory takings was the deal breaker for passing an eminent domain bill that actually has a chance to become law. At this late stage of the legislative session, I'd urge the House to put aside its valid concerns about regulatory takings in order to make sure we pass a bill that gives property owners essential protection from eminent domain abuse."

In truth, legislators already have dealt with the subject of takings. A 2003 compromise sets out how a property owner can appeal a decision, including requiring mediation when requested. It also calls for educating appointed officials and employees on such subjects as land-use planning and zoning, transportation, parliamentary procedure and public hearing procedures.

Any proponent of smart growth must recognize that local governments need to be able to control land use and not at a cost that would bankrupt the effort.