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Charlotte Has Few Legal Options If State Creates Regional Airport Authority

North Carolina lawmakers are considering a bill that would strip control of the Charlotte airport from the city and create a regional authority to run it instead. The measure concerns Mayor Anthony Foxx. But it’s gained the support of others, including the chairman of the airport’s Advisory Committee.

It got us wondering – does the city have any legal recourse if it loses its airport? To answer that question, we turned to UNC-Chapel Hill public law and government professor Frayda Bluestein. She spoke with “Morning Edition” host Duncan McFadyen.

BLUESTEIN: There is very little that the city can do. There isn’t much in terms of recourse, in terms of challenging the authority of the legislature to rearrange the way services are delivered at the local level.             

MCFADYEN: ...and to be clear, that authority comes directly from the state constitution?

BLUESTEIN: Right, it comes from a couple of places. One is that the state constitution gives the legislature authority to create and enable local governments. There also is just simply no other source of authority for local governments other than the legislature. There generally isn’t an argument that…cities don’t have authority to be compensated for these sorts of changes. They don’t have the right in the same way a private individual would with taking property  

MCFADYEN: How is this different from an eminent domain case?

BLUESTEIN: In an eminent domain case, where I have the use of my property for my personal use, the government takes it and uses it for government use, that’s where the compensation is. When the government takes property that is used by a set of customers, but it’s now run by someone else for the same set of customers, it’s a different argument.

MCFADYEN: What’s the precedent for these sorts of actions? How many times has the state done it?

BLUESTEIN: I don’t have a complete knowledge of the history of it. There was recently done, in Asheville, last year, the legislature enacted a law to transfer the Asheville airport to an airport authority, very similar to what’s being done here. But, in the longer-term, on the greater scheme of things, it’s very rare.

MCFADYEN: Is it fair to say that this action is getting considered more now than it has been in the past?

BLUESTEIN:  It’s hard to say. I would say there have been two areas where it’s noticeably different. One in the annexation area, this has been a very hotly contested issue for a number of years, and the legislature over the last couple of years has made significant changes in the authority that cities have to annex. In a move that really is a departure from previous years, de-annexed property over the objection of some of the cities. Local acts for de-annexation and for other kinds of modifications of local government authority have typically been consensual.

MCFADYEN: In the rare instances that they were not consensual, have the municipalities challenged the state in court?

BLUESTEIN: There are a couple of cases that relate to the issue that I described in terms of whether there’s any right to compensation. There’s an 1903 case, so that’s been a long time ago, obviously, that actually involved the city of Charlotte. It was a similar kind of operation where a local act created a board to take over the operation of the water system. That was challenged and did go to the NC Supreme Court, and the challenge was to the authority of the legislature to make that kind of a change. And the Supreme Court upheld that. There were challenges to a series of local acts that restricted the city of Asheville’s operation of its water system, and in each of those cases, the actions of the legislature were upheld.