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JOHN HOOD: A federal court ruling upholds property rights

By John Hood, Published: March 9, 2022

There’s always a cost to protecting property rights.

No rational person has ever suggested otherwise. In free societies that place a high value on the individual right to own and control private property, it’s more expensive for governments to build roads or public facilities. It’s harder to piece together parcels of land for redevelopment. And what your neighbors choose to do with their property may annoy you.

These costs are well worth paying, however, because the alternative is a more stagnant and stultifying society. If you’re unsure whether some future politician or bureaucrat might confiscate your property, or diminish its value through capricious regulation, you’re less likely to invest significant resources in it. You’re less likely to take chances. You’re less free to live as you choose. These are significant costs, as well.

An underappreciated accomplishment over the past decade is that North Carolina’s protection of property rights has gotten a lot stronger. Still, each leap forward drew passionate critics.

When in 2012 the General Assembly essentially did away with forced annexation, critics predicted dire economic and financial consequences for cities and towns. When the North Carolina Supreme Court struck down the state’s nearly 30-year-old Map Act in 2016, critics predicted that having to compensate people in the path of future roads for government restrictions on the use of their land would make road-building inefficient and unwieldy.

Neither objection held water, in my view. North Carolina’s annexation and road-corridor regulations were wildly out of step with those of most other states, where somehow municipalities and highway departments managed to deliver their services without relying on unjust laws.

Our latest leap forward in property-rights protections came in December. But neither state lawmakers nor state judges are responsible. It came from a federal court, in response to a case involving a homeless shelter in North Wilkesboro.

The Catherine H. Barber Memorial Shelter opened its doors in the Wilkes County town more than three decades ago. When board members expressed a need for a larger space to accommodate the growing needs of the shelter, a local dentist and his wife stepped up to donate the two-story office building that had previously housed his practice.

Barber Shelter officials were delighted — until the local zoning board denied its application for a conditional-use permit, citing a potential loss of property value among neighboring parcels as well as an alleged threat to public health because of the shelter’s location on a busy highway.

Rather than take the rejection on the chin, the Barber Shelter took the zoning board to court. Represented by the Institute for Justice’s Diana Simpson, the shelter argued that other, similarly situated businesses would have received permits to operate in the same location. U.S. District Court Judge Kenneth Bell agreed, writing in his order that the board “apparently believes — incorrectly — that it can say the magic words ‘traffic and safety’ and this Court will rubber stamp the classification no matter the facts.”

Examining those facts, Bell concluded that “North Wilkesboro intentionally treated the Shelter differently from other similarly situated uses, and there is no rational basis for the difference in treatment.” While there are certainly circumstances in which courts should defer to the informed judgment of administrative agencies, he wrote, “such deference cannot be an excuse for the Court to abdicate its duty to protect the constitutional rights of all people.”

To their credit, the town manager and North Wilkesboro Board of Commissioners decided not to appeal and will pay $180,000 in attorney fees. Indeed, Mayor Marc Hauser went out of his way to be supportive. “The Catherine Barber shelter provides a much-needed service for the less fortunate,” he said. “Personally, I would like to see them expand their hours and offer more services. Here’s wishing them all the best in their new facility.”

So the Barber Shelter is relocating as planned. And local officials in North Carolina and beyond got a clear message: infringing on property rights may be costly — for you.

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John Hood is a John Locke Foundation board member and author of the new novel Mountain Folk, a historical fantasy set during the American Revolution (MountainFolkBook.com).