Eminent Domain

The 5th Amendment of the U.S. Constitution’s Bill of Rights protect property owners from having their property taken without just compensation.

Attorney Kirk Sanders was part of the 5 attorney eminent domain litigation team that won landmark appellate cases against the NCDOT in the “Beltway cases”. The Beltway Cases involved the NC Map Act legislation from 1987 where the NC Department of Transportation inversely condemned property owners for up to 25 years without paying them. It took multiple appellate case victories before the NCDOT began paying these property owners.

After the first victory in the N.C. Supreme Court in Kirby v. NCDOT (https://appellate.nccourts.org/opinions/?c=1&pdf=34396), the Department of Transportation hired multiple private law firms and spent over $10,000,000 in attorney fees in 3 years fighting the 5 person litigation team to prevent compensation of these inverse condemnation victims.

This 5 attorney litigation team Kirk was a member of successfully resolved over 350 cases by recovering $300,000,000 for their clients.

Some of the most affected areas where the NC Map Act violated our fellow NC property owners’ rights included:

  • Forsyth County’s Northern Beltway
  • Raleigh’s South 540 Triangle Expressway
  • Shelby’s US 74 Bypass
  • Pender County’s Hampstead Bypass
  • Fayetteville’s Outer Loop I-295

Because of the Kirby v. NCDOT and other appellate victories, the NC Map Act was repealed. When you are involved in an eminent domain case, you must stand up for your rights to obtain just compensation over the taking. Don’t take their first offer.

Who can exercise eminent domain in North Carolina?

The State, NCDOT, municipalities, school boards, and public utilities.

What can eminent domain be used for?

Building roads, highways, water systems, sewer pipes, schools, government offices, public parks, electric power lines, natural gas lines.

How do you value eminent domain taking?

It’s the difference in value between fair market value of the property before the taking and immediately after the taking.

What are the main ways to value condemned property in NC?

The three main methods for property valuation are: 1) the market approach, 2) the income approach, and 3) the cost approach.

In addition, you have to determine the amount of land taken. There are total takes and partial takings. If it is a partial taking, the expert values the damage to the land taken and the damage to the remainder of the land.

What is Market Approach in an eminent domain case?

It’s the comparison of similar property sales in a similar time frame to the taking of your land. By example, the issue gets more complex when the taker claims your property should be farmland, when all around your land is beginning to be developed for retail or mixed use. This is when the “Highest & Best Use Rule” is argued to the court. This rule would allow the expert to testify that while the property is currently being used for “A”, it could reasonably be developed for purpose “B” or “C” in the near future.

What is the Income approach in an eminent domain case?

If you have an income producing property, such as residential or office rentals, then it would be a calculation of the net operating income of the property being taken. Then a capitalization multiplier would be calculated.

What is the cost approach?

This occurs if you have a highly specific building structure. The expert would determine the costs of replacing the structure, less depreciation, plus the value of the underlying land taken.

These are brief examples. Almost all the time, an expert appraiser is needed to testify as to the analysis of the value of the land taken.

Are eminent domain cases hard to win?

No. An eminent domain case comes down to a good litigation attorney and a solid appraiser expert.

Has anyone won an eminent domain case?

Yes. Typically, the taking authority (DOT, school, city, utility co.) makes a low initial deposit for the damages. An experienced eminent domain attorney and an expert appraiser can evaluate the damages to your property and work to obtain maximum compensation for the forced taking of your property.

What is an example of an eminent domain case?

It is typically used to build roads or government buildings or utility pipe lines.

What is the difference between a taking and eminent domain?

Eminent domain is the right of the government to take private property for public use. Taking is another word to describe that process. Just compensation is the constitutional protection of the property owner to get the proper amount of payment for the exercise of eminent domain.

What is a partial taking in eminent domain?

This is when NCDOT or another government agency takes some but not all of your land. For instance, your convenience store and pumps are not taken in a road widening, but you lose one of your driveway access cuts and 4 parking spaces. If that happens, you’ve had a partial taking.

What is a Permanent Utility Easement?

Typically this is the land that runs along the side of a highway construction project for utility providers to put their pipes and lines. It is an additional taking with damages to be paid to the property owner. Even if the taking is underground, your property has been taken. The utility company can come and dig under that land whenever they need to. Sometimes it is a brand new pipeline that cuts through your property.

What is relocation assistance in NC?

In addition to the just compensation damages, if a transportation project forces you to move, the relocation services are to pay to help you move, pack, unpack, acquire a new residence. See https://www.ncdot.gov/projects/documents/right-of-way-residential-english.pdf

Here’s a link to Condemnation statutes

When the Department of Transportation taking:
https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_136/Article_9.pdf

When it’s a municipality or school district condemnation:
https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/ByChapter/Chapter_40a.pdf

When it’s a telephone, natural gas, or electric power taking:
https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_62/Article_9.pdf

Call Kirk Sanders to discuss your eminent domain case at 336-768-1515

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Phone:
336-768-1515
Address:
Kurtz Whitley Guy Sanders & Rainey, PLLC
One Salem Tower 119 Brookstown Ave
Suite 400
Winston-Salem, NC 27101

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