North Carolina Eminent Domain Laws
In 1625, Dutch jurist Hugo Grotius, who was a proponent of natural law, used the phrase dominium eminens (supreme lordship) to describe a sovereign’s power to seize control of privately owned land within its territory. Basically, Grotius argued that all the property in the state belonged to the state. However, the state may only assert this right “in the case of extreme necessity” or “for ends of public utility.” After any such taking, “the state is bound to make good the loss to those who lose their property.”
This principle is the foundation of North Carolina’s eminent domain law. The state may take property because it needs it for public purposes, such as a road (“public utility”). Most people, including most affected private property owners, agree with these takings, at least in principle, as long as they are limited in scope and the government provides just compensation, as set forth below.“Public Use and Necessity”
Initially, there is a difference between a public works project and “public use.” To be blunt, not all public works projects are useful. For example, before the state takes property to build a road, it conducts traffic and other studies which prove that there is a need for the project and motorists will use the road. Similarly, most people are in favor of new schools. But it may be more efficient to improve an existing school, or the new building might largely be a showpiece.
“Necessity” usually means that only the minimum taking is allowable under the Fifth Amendment. In the 19th century, American railroad companies became very rich because the government gave them not only the right-of-way for the track, but also a large swath of land on either side of the track. Such a taking is not necessary under eminent domain. Only the right-of-way is necessary.Eminent Domain Timeline in North Carolina
Because it involves the Fifth Amendment’s takings clause, the eminent domain process in Mecklenburg County is very deliberate. The North Carolina Department of Transportation (NCDOT) carries out most of the eminent domain takings in the Tarheel State, and the agency uses the following outline. Other agencies may be different.
First, NCDOT announces the project and the affected private property. The announcement must address the issues discussed above, most notably with regard to public use and necessity.
Next, NCDOT sends a government inspector to look at the land and value it. These NCDOT employees are supposed to approach these tasks objectively and with open minds. But that is often not the case. Based on this inspection and report, the government makes a purchase offer.
The next phase usually involves an independent inspection and a professional financial appraisal. This appraisal usually looks at the whole financial picture. For example, if NCDOT wants to take part of your land to build a road, that taking might adversely affect the value of the remaining property.
At this point, NCDOT has the right to take possession of the disputed land and place the financial compensation in an escrow account. If the owner does not contest the notice, the case is over. If the owner contests the notice, the matter usually goes before an ad hoc commission. This commission reviews all the evidence, including the initial NCDOT report and subsequent independent evaluation. The commission may also hear testimony from the current owner and from other material witnesses.
Bear in mind that NCDOT and a landowner’s negotiations, through the use of a Charlotte land condemnation lawyer may occur at any time. As mentioned, settlement often happens early in the process. Other eminent domain matters settle almost literally on the courthouse steps right before trial begins.
One final note. Once the eminent domain process begins, it usually cannot be stopped. In most cases, the government will take the land sooner or later. The only issue is the amount of compensation. In some instances, courts have held that the attempted taking was completely unjustified. But in 2005’s Kelo v. City of New London, the United States Supreme Court broadly defined the right of eminent domain. Therefore, such results are rare.Count on a Diligent Attorney
The government cannot take private property for any purpose without paying just compensation. For a confidential consultation with an experienced land condemnation attorney in Charlotte, contact Arnold & Smith, PLLC. We routinely handle matters in Mecklenburg County and throughout North Carolina.