The governor and legislative leaders were in agreement last August on the need for defensive action after the U.S. Supreme Court gave Connecticut officials a virtual free hand in condemning private property. Well, the session's nearly over and a constitutional amendment that would ensure property owners in this state are protected has yet to receive the legislative go-ahead needed to place it on the November ballot.

On Tuesday, the House Judiciary Committee did agree to send a Senate-passed bill to the floor after substituting the language of an earlier House-passed bill. The good news is that an effort to once again muddy the waters by inserting a regulatory takings provision into the bill failed. But just barely. Had it succeeded, any chance of getting the eminent domain protection on the ballot would have gone away.

Unfortunately, there's still reason to worry that the regulatory takings effort will be renewed on the House floor. The regulatory issue is a highly explosive one that would require local governments to compensate property owners for any action that diminishes potential property value, including zoning changes. Many lawmakers who support tightening the law against the actual taking of property through the government's power of eminent domain agree that the regulatory issue should be debated. But not at this late date and not in this piece of legislation.

Of course those promoting compensation for regulatory takings know just how strong the opposition is ? particularly in the Senate. That's why they are trying to so hard to attach it to the far more acceptable eminent domain restrictions which involve government condemnation of property.

There is general agreement that in this state's present legal climate it would be virtually impossible to see a repeat of the Connecticut case. In Connecticut, state law actually allows governments to condemn private property for private use under the guise of benefiting the public through economic development.

Fortunately, the S.C. Supreme Court left no doubt in one fairly recent opinion just how restrictive its view is on eminent domain. In our court's words, eminent domain "cannot be used to accomplish a project simply because it will benefit the public." Instead, according to the S.C. court, the project must serve a provable "public use" that includes public access.

The concern clearly isn't how the current Supreme Court would rule in an eminent domain case. The worry is what could happen in the future if the philosophical makeup of the court changes. That's why it is so important to clearly write the court's strict construction of eminent domain into the constitution.

Charleston's Rep. Wallace Scarborough has been among those fighting the hardest to keep the regulatory takings spoiler out of the eminent domain constitutional amendment. In view of the importance of providing the eminent domain protection, Rep. Scarborough says he doesn't understand "why in the world they are trying to cram regulatory takings down everyone's throats. It needs to be discussed, but not in this bill."

Noting the nearing end of the session, Gov. Mark Sanford also has urged the House to adopt a clean eminent domain bill. "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," he said.

If the regulatory takings' advocates selfishly keep the eminent domain amendment off the November ballot, they will show how little they care about ensuring that the government can't seize private land for someone else's private use.