Types of Eminent Domain Takings in North Carolina

Under North Carolina law, the State, county, and local governments (and their agencies and departments) can take private land for public use or benefit. To be allowed to do this legally, three conditions must be met:

• The government must pay "just compensation" for the private land
• The taking of private land must be "necessary" and
• Must be for "public use or benefit"

The government is allowed to take private property under the power of eminent domain. Certain private third parties are also allowed, under North Carolina law, to exercise the power of eminent domain within certain statutory restrictions. Examples include railroads and public utility companies. As an example of a restriction, if a utility company is taking private land for a pipeline, the strip of land taken can only be a certain number of feet wide.

Mostly, the taking of private land here in North Carolina involves a physical taking of the land. Legal title to the property and possession is taken. However, there are two other types of takings: regulatory takings and inverse condemnation. These are the three types of eminent domain takings in North Carolina. Here is a quick summary.

As noted, with physical takings, once payment is made, legal title and possession of the land is taken. The previous owners and occupants are required to vacate the land in question. Unlike the other types of takings, physical taking is accomplished through a condemnation proceeding. The process involves the governmental agency (or private third party) filing condemnation papers with the local county Superior Court and depositing with the Court what it believed to be the "just compensation." Landowners may collect the payment deposited, but still need to determine whether the payment is sufficient. Prior to the filing of condemnation paperwork, there is generally an evaluation and measurement of the land to be taken and, often, a negotiation with the landowner about buying the land. So, landowners typically have some forewarning that their land is about to be taken.

Physical takings can be further subdivided into complete and partial takings and into permanent and temporary takings. As the terms imply, a complete taking is the taking of every square foot of land in the parcel, whereas a partial taking is the taking of only a portion of the parcel. An example of a partial taking would be – for a road widening – a taking of a 20-foot strip of property along the road. A temporary taking might involve using a portion of private land for equipment and material staging for a road widening. Whether complete, partial, temporary, or permanent, occupants of the land must vacate, and just compensation must be paid.

Easements are another type of physical taking, but do not always require a landowner to vacate the land. Utility companies generally have easements to run electric wire or underground pipes. These are often negotiated privately, but such easements can be taken through the power of eminent domain. Mostly, easements do not require the landowner to vacate the land in question. Rather, the landowner is forbidden from interfering with the easement's purpose.

Regulatory takings do not involve the physical taking of land. Instead, the government (or private third party) takes some action or enacts some legislation that substantially destroys the use and economic value of a landowner's property. Under North Carolina law, a regulatory taking must essentially make the land useless and without value.

Unlike with a physical taking, the government does NOT file any sort of condemnation papers with the local Court. Instead, the landowner must file papers in the local Superior Court to prove that the government has rendered the land in question useless and valueless, entitling the landowner to just compensation. An example might be where a law is passed prohibiting landowners from building any habitable structures on their land.

Here again, with inverse condemnation, there is no physical taking of the land in question. Rather, the government takes some action or enact some legislation that damages or diminishes the value of private land. Unlike a regulatory taking (which destroys the whole value of the land), an inverse condemnation destroys only part of the value of the private land. An example might be the building of an airport, which results in constant low-altitude plane flights over a residential area, making those homes unlivable and diminishing the value of those homes. As another example, the government builds a road that causes diversion of groundwater resulting in flooding of adjacent private land.

Again, unlike with a physical taking, the government does NOT file any sort of condemnation papers with the local Court. Instead, the landowner must file documents with the local Superior Court claiming that the government action has diminished the value of the land in question entitling the landowner to just compensation.

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.