Did you know that the North Carolina Constitution does not formally contain a "takings" or "just compensation" clause? Instead of an outright prohibition on uncompensated takings for public use, the N.C. Constitution has a "law of the land" clause:
Sec. 19. Law of the land; equal protection of the laws.
No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.
The lack of an express takings clause, of course doesn't t mean that the government can just take property and has no obligation to provide compensation. The term "law of the land" goes back way further than express limitations like the Fifth Amendment (you know, Magna Carta and all that), and the North Carolina courts have long recognized that "by the law of the land" means takings can only be for public use, and with just compensation. Good show, and a valuable lesson on how this works.
So it is interesting that now, the N.C. House of Representatives is considering a bill to amend the constitution to add section 19.1, expressly recognizing the right of business owner to bring an inverse condemnation claim for "[l]oss of income," and the [l]oss of going concern, including the loss of real property," as the result of a government order to fully or partially shut down during a state of emergency. See House Bill 1174 (May 26, 2020).
The owner claiming compensation would bear the burden of proof on causation, with the remedy being an order compelling the government to institute an eminent domain action.
Follow along here, to see if this proposal has legs. More here ("N.C, House bill would allow business owners to sue over shutdowns").
