Wind farms or national security? Eminent domain taking or police power? Sorting it out.

An interesting land use bill is working it’s way through the General Assembly. You may recall a CJ report from Sept 2015 raising concerns about wind farms interfering with military operations. HB 763 modifies the permitting process for wind farms allowing the Dept of Military and Veteran Affairs to consider and review applications. An official military map indicates sections of North Carolina, mostly in the eastern part of the state, that are critical to military training and operations. Tall structures such as wind farms would interfer with those operations. The map lays out where it would be okay to build wind farms and where it would not, providing certainty and guidance to both land owners and wind farm developers and assurances that military operations are protected.

Debate on the bill in the Senate came mostly from those in favor of protecting NC’s strong military population on bases across the state and the economic impact of those installations. They argued that the restrictions on building wind farms were necessary to ensure national security and protect the health and safety of citizens.

Others raised some concerns about the property rights of those land owners in the areas designated as fly-over zones for military training operations. There were even analogies made between the restrictions for military operations and the recent court case outlawing NCDOT’s taking of land under the Map Act, but JLF legal analyst and property rights guru, Jon Guze, says that’s “a red herring”:

It’s true, as some critics have pointed out, that “the bill incorporates a map into the statute and places limits on development in specified areas,” but as far as last week’s Supreme Court decision in Kirby v. NCDOT is concerned that’s beside the point. The issue in Kirby was not whether the land that was subject to restrictions had been identified on official maps. The issue was whether the restrictions imposed on the land were police power regulations (which do not require compensation), or takings under the power of eminent domain (which do). The Court held that the Map Act restrictions were takings because:

The language of the Map Act plainly points to future condemnation of land in the development of … highway projects, thus requiring the NCDOT to invoke eminent domain….

Because:

No environmental, development, or relocation concerns arise absent the highway project and the accompanying condemnation itself….

And because:

Though the reduction in acquisition costs for highway development properties is a laudable public policy, economic savings are a far cry from the protections from injury contemplated under the police power….

The language of HB 763 doesn’t “point to future condemnation”—condemnation isn’t contemplated at all—nor are the land use restrictions intended to reduce acquisition costs. Instead the restrictions are plainly intended as “protections from injury,” which places them pretty clearly within the scope of the State’s police power.

So for HB 763, the fundamental question raised is whether the wind farm/turbine provisions: (1) regulate the use of property to protect health and safety (police power), or (2) take property for public use (eminent domain).

I am not an attorney but I am a land owner and a diehard advocate for property rights. Government places restrictions all the time on what we can do with our land. There are zoning regulations, restrictive covenants, public right of ways and in some cases, home owner association restrictions. Not all restrictions are “takings” and not all warrant compensation. Public safety comes before all else. If wind farms are going to interfere with military operations and threaten national security – it seems like the restrictions set out in HB 763 are reasonable, necessary and, not a threat to the rights of property owners.

But that’s just my opinion and like many property rights issues, this one may end up the courts too. And yet another reminder of how important the NC Supreme Court elections are.

Becki Gray / Senior Vice President

Becki Gray is Senior Vice President of the John Locke Foundation. She provides information, consultation, and publications to elected officials, government staff and other dec...

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