North Carolina Land Condemnation: Who Can Condemn My Land?

Governments are empowered to take private land for public use and benefit through the power of eminent domain. When the power of eminent domain is exercised, the government is constitutionally required to pay "just compensation" for the taking of private land. As the United States Supreme Court has stated: "[t]he government must pay for what it takes." Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (US Supreme Court 2021). North Carolina has the same rule. "Just compensation" is generally defined as paying the fair market value of the private land.

In North Carolina, when the government takes private land for public use, the proceedings are called "condemnation proceedings." That is, the government condemns that private land. As such, per North Carolina statute and legal custom, the government entities or agencies condemning private land are called “condemnors.”

From the foregoing, it can be said generally that any government can be a condemnor. Thus, the federal government and the State of North Carolina can exercise the power of eminent domain. Further, any sub-part of the government can be authorized to use the power of eminent domain. Thus, for example, here in North Carolina, the North Carolina Department of Transportation ("NCDOT") is statutorily authorized to condemn private lands for road and other public works projects.

However, the list of condemnors is NOT limited to governments and governmental agencies. Why? Because courts have ruled that the power of eminent domain can be delegated to private parties. This rule applies to the federal government and to the State of North Carolina. For example, more than 125 years ago, the United States Supreme Court said that the federal government could lawfully delegate its condemnation authority to a private corporation for the purpose of condemning private land to build a bridge. See Luxton v. North River Bridge Co., 153 U.S. 525 (US Supreme Court 1894). The Court recently reaffirmed the power of delegation in PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244 (US Supreme Court 2021) which approved the ability of Congress to delegate its condemnation power to a private natural gas company for the purpose of building an interstate pipeline.

In North Carolina, the power of eminent domain has its source in the inherent governmental powers of the State of North Carolina. From that source, the State has granted local governments the ability to exercise the power of eminent domain within certain restrictions. The State has also delegated the power of eminent domain to certain private parties. The rules with respect to eminent domain are set forth in N.Car. Gen. Stat., § 40A-3 which establishes two categories of condemnors: Local Public Condemnors and Local Private Condemnors.

As defined by the statute and as the name would imply, a Local Public Condemnor is a local governmental entity -- like a city, town or county government -- who is empowered to condemn private property for public use. N.Car. Gen. Stat., § 40A-3(b) states: "For the public use or benefit, the governing body of each municipality or county shall possess the power of eminent domain and may acquire by ... condemnation any property, either inside or outside its boundaries, for the following purposes ..." Local public school authorities are also specifically listed as Local Public Condemnors specifically allowed to use the power of condemnation.

Examples of allowable purposes include:

• Opening, widening, extending or improving roads
• Establishing, enlarging or improving recreational facilities
• Establishing, extending, enlarging or improving drainage systems, hospital facilities, cemeteries or libraries
• And more

In addition to local municipal governments, N.Car. Gen. Stat., § 40A-3(c) authorizes the use of condemnation proceedings by a number of additional Local Public Condemnors. These include:

• Sanitary district boards
• Mosquito control districts
• Hospital authorities
• Watershed improvement districts
• Housing authorities
• A board of trustees of a community college
• Regional public transportation authorities
• And more

North Carolina has delegated its power of eminent domain to only four categories of private entities for specific and limited purposes. N.C. Gen. Stat., § 40A-3(a). These are:

• Corporations, bodies politic or persons for the construction of railroads, power generating facilities, substations, switching stations, microwave towers, roads, alleys, access railroads, turnpikes, street railroads, plank roads, tramroads, canals, telegraphs, telephones, electric power lines, electric lights, public water supplies, public sewerage systems, flumes, bridges, and pipelines or mains originating in North Carolina for the transportation of petroleum products, coal, gas, limestone or minerals
• To obtain pure and adequate water supply, school committees or boards of trustees or of directors of any corporation holding title to real estate upon which any private educational institution is situated
• Franchised motor vehicle carriers or union bus station companies organized by authority of the Utilities Commission for the purpose of constructing and operating union bus stations
• Railroad companies -- either privately owned or State-owned -- for the purposes of constructing railroads, depots, etc.

For more information, and to schedule a confidential consultation with experienced and dedicated eminent domain and condemnation attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in federal court, in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.