dfLDK880w0 | Hansen Howell

House Bill 3: Explicit Protections for Landowners

On Jan. 14th, 2015 State Rep. Chuck McGrady (R-117th Dist.) filed a bill proposing an amendment to the North Carolina Constitution in order to address concerns about the condemnation of private property within the state. House Bill 3 proposes to amend section 19 of the Constitution to explicitly state that (1) eminent domain should be used only to take private property for public use; (2) just compensation shall be paid whenever private property is taken; and (3) a landowner has a right to a jury trial in a condemnation matter. Rep. McGrady recently told the Hendersonville Lightning that “[a]mong state constitutions, only North Carolina does not expressly state that a government must pay for the private property it takes.” Indeed, even the Fifth Amendment of the United States Constitution states that “nor shall private property be taken for public use, without just compensation.” Continue reading “House Bill 3: Explicit Protections for Landowners”

Dominion Selected to Build $5B Atlantic Coast Pipeline

Duke Energy and Piedmont Natural Gas have selected Dominion to construct their proposed 550-mile long natural gas pipeline. The so-called “Atlantic Coast Pipeline” will run from West Virginia, through Virginia and North Carolina, and will cost between $4.5 and $5 billion. In North Carolina, the pipeline will run from Northampton County, then travel southwest through six other counties before ending in Robeson County and connecting to existing Piedmont Natural Gas transmission facilities. According to a Duke Energy press release, “Dominion is conducting land surveys along the proposed pipeline route. It will determine the final route based on landowner input; community meetings in counties on the route; consultation with government agencies and other interested stakeholders; and an environmental, historical and cultural impact assessment.” Continue reading “Dominion Selected to Build $5B Atlantic Coast Pipeline”

Federal Highway Trust Fund Gets $11 Billion Patch

The US Senate recently passed a House-drafted bill that provides a temporary fix to the federal Highway Trust Fund problems. The bill moves $11 billion from other sources over to the fund to prevent a 28% reduction in spending during peak construction time. The fix is far from permanent but will allow the feds to continue to make payments to state agencies and others – for now. Several of the large transportation projects currently underway in North Carolina receive federal dollars, including the Monroe Bypass, I-540 / Outer Loop in Wake County, and the Durham East End Connector.

NC Supreme Court Issues Opinion on Northern Beltway Eminent Domain Class Action Case

On April 11, 2014, the North Carolina Supreme Court issued its opinion in the case of Beroth Oil Company, et al. v. North Carolina Department of Transportation. The Court granted discretionary review of the Court of Appeal‘s unanimous decision to deny class certification to the plaintiffs, who are landowners in the path of the Northern Beltway in Winston Salem. In a 5 to 2 ruling, the Court held that the trial court and Court of Appeal’s analysis of the merits of the underlying inverse condemnation claim was improper, but also affirmed the lower courts‘ decisions not to certify the plaintiffs as a class, finding that “because of unique nature of property, coupled with the large number of diverse tracts involved in this litigation, individual issues would predominate over common issues of law and fact in a trial on the merits.”

Kelo Revisited

Recently, a reporter with the Weekly Standard paid a visit to New London, Connecticut, site of perhaps the most well-known eminent domain controversy in the country. As you will recall, New London hoped to jump-start economic development in the city and add much-needed jobs. To realize this goal, in 1998 the city partnered with New London Development Corporation (NLDC), a private nonprofit organization. The anchor to the revitalization project was Pfizer, which was offered copious tax breaks to locate a $300 million research facility in the Fort Trumbull area of New London. The hope was that the Pfizer facility would draw additional mixed development to the area. NLDC’s plan called for nearly 90 acres in the Fort Trumbull area to be redeveloped, which included approximately 115 privately owned properties. Continue reading “Kelo Revisited”

Recent US Supreme Court Decision May Lead to Federal Government Paying for Rails-to-Trails Land

On March 10, 2014 the U.S. Supreme Court released their decision in the case of Marvin M. Brandt Revocable Trust, et al. v. United States, holding that when a railroad abandons their right of way under an 1875 law, the property owner holding title to the land within the right of way acquires full rights to the land. Continue reading “Recent US Supreme Court Decision May Lead to Federal Government Paying for Rails-to-Trails Land”

I-540 Loop Closure Back on Track

In 2011 North Carolina lawmakers voted to stop the North Carolina Department of Transportation from studying the controversial so-called “Red Route”, which proposed routing part of I-540 through Garner. That move caused the federal government to pull funding from the project because it meant that no alternatives for the route would be studied – a violation of federal law. Continue reading “I-540 Loop Closure Back on Track”

Recent Court of Appeals decision highlights importance of knowing procedure in condemnation cases

A recent North Carolina Court of Appeals decision reinforces the importance of choosing an attorney familiar with proper procedure in eminent domain cases. In City of Wilson v. the Batten Family, et al., a condemnation case out of Wilson County, Defendants moved for a 108 hearing in early 2010. (A 108 hearing is held pursuant to NCGS 136-108 in order to determine issues other than compensation.) The 108 hearing was held in July of 2010. In November of 2011 Defendants filed another motion for an additional 108 hearing; this motion was denied by the trial court. The Defendants appealed this decision and the Court of Appeals affirmed the lower court’s decision. The Court of Appeals pointed out that Defendants should have appealed the order from the first 108 hearing rather than waiting more than a year to request a second hearing.

The take-away message for anyone considering hiring an attorney to represent them when their land is being taken is that you should make sure your attorney is experienced in practicing in the field of condemnation / eminent domain.

NC House Bill 272 proposes to change costs paid by the DOT

House Bill 272, which was referred to the Transportation Committee on April 18th, proposes to change the statute addressing the payment of costs by the Department of Transportation in a condemnation lawsuit. The fourth version of the bill would amend NC General Statute Sec. 113-136 to require interest on the judgment awarded to the landower to be paid from the date of taking (when the suit is filed) until the date the judgment is paid, rather than until the date of judgment. In theory, this would encourage the DOT to pay the judgment as soon as possible to avoid interest accruing. Continue reading “NC House Bill 272 proposes to change costs paid by the DOT”

North Carolina Legislature tackles the “Red Route,” other Transportation Projects

In March, North Carolina legislators introduced a bill to remove restrictions placed on considering the so-called I-540 “Red Route” through Garner. House Bill 10 was subsequently amended, and the third version (referred to the Committee on Rules, Calendar and Operations of the House as of March 12, 2013) would also remove authorization for three major projects from the Turnpike Authority. Those major projects are (1) the Garden Parkway (also known as the Gaston East West Connector); the Cape Fear Skyway; and the Mid-Currituck Bridge. The bill does not propose to terminate the projects; however, it does mean those projects will now have to compete with other Department of Transportation projects for scarce funding.