Copyright 1998 - N.C. Administrative Office of the Courts


CITY OF MONROE Plaintiff-Appellee, v. W.F. HARRIS DEVELOPMENT,

LLC Defendant-Appellant

No. COA97-1369

(Filed 6 October 1998)

1. Appeal and Error--appealability--condemnation action--order resolving all issues except damages

A trial court order in a condemnation action which resolved all issues but damages was immediately appealable.

2. Eminent Domain--propriety of taking--public purpose established

The trial court did not err in a condemnation action where defendant contended that the court erroneously concluded that the nature and extent of the property acquired was not a judicial question. Reading the challenged conclusion in context, it is clear that the trial court did not disregard allegations of arbitrary and capricious conduct by the City, but specifically made them the subject of it judicial inquiry in determining the propriety of the City's taking of this tract.

3. Eminent Domain--size of taking--necessity to accomplish purpose

The City of Monroe presented sufficient evidence to prove the necessity of a fee simple title and the trial court did not err by concluding that the taking was not an arbitrary and capricious act taken in bad faith where, although it was argued that the City had sufficient land to undertake the expansion of the airport without taking this tract, the city manager made it clear that property which lay outside the current master plan boundaries was necessary to the fulfillment of the City's ultimate goal. Based upon City of Charlotte v. Cook, 348 N.C. 205, the City was only required to show that it needed a fee simple title in all of the tract in order to expand the airport.

4. Eminent Domain--airport taking--federal and state aviation approvals

The City's condemnation of a tract did not amount to an abuse of its condemnation power based on its failure to obtain property appraisals and approvals from federal and state aviation agencies. The City's failure to follow the guidelines was not so egregious an omission as to constitute a manifest abuse of discretion sufficient to overcome the presumption that the City initiated the proceeding in good faith and in accordance with the spirit of the law.

5. Eminent Domain--taking as abuse of discretion--intent to injure competitor--insufficient evidence

The trial court's order was not reversed in a condemnation action where defendant contended that the tract was taken to prevent development of a corporate center which would compete with the City's industrial park, but the court found that the allegations referred to actions of the City which were consistent with carrying out a public purpose in a lawful way or were not substantiated by the evidence.

    Appeal by Defendant-Appellant from judgment entered 14 July 1997 by Judge William Z. Wood in Union County Superior Court. Heard in the Court of Appeals 20 August 1998.

    Kilpatrick Stockton by Attorney Keith J. Merritt for defendant-appellant .

    Underwood Kinsey Waren & Tucker by Attorney William E. Underwood Jr. for the plaintiff-appellee.

    WYNN, Judge.

    This appeal arises out of a condemnation action brought by the City of Monroe to take two tracts consisting of 14.87 acres of a 42.77 acre parcel of land owned by Harris Development Corporation ("Harris"). The property, initially purchased by William and Loretta Harris, was transferred to Harris in order to develop an industrial park.     On 29 January 1997, Harris filed its Answer, Counterclaim, and Motion for Preliminary Injunction denying that the City of Monroe had the right to take the property, denying the amount of money placed on the deposit was just compensation, and seeking preliminary and permanent injunctive relief to prevent title from being vested in the City of Monroe.

    In response, the City of Monroe moved to dismiss the counterclaim and moved to amend their complaint to change the purpose of the taking of the property. Originally, both Tract 1 and Tract 2 were taken to expand the airport. The City of Monroe, however, subsequently determined that Tract 1 would be used as a public roadway for the airport's new terminal. The trial court granted the City of Monroe's motion to amend its complaint and no appeal was taken from this motion.

    On 14 July 1997, the trial court entered an order as to all issues other than damages. Specifically, the court denied Harris Development's Motion for Preliminary and Permanent Injunctive relief, dismissed the Counterclaim filed by Harris Development, and ruled the City of Monroe had acquired fee simple title to the Harris property. Harris appeals the trial court's order.

    [1]We first note that in North Carolina State Highway Commission v. Nuckles, 271 N.C. 1, 13, 155 S.E.2d 772, 783 (1967), our Supreme Court held that a highway condemnation proceeding which resolves all questions except damages is immediately appealable. Therefore, in the instant case, although the issue of damages has not been resolved, the trial court's order on all issues except damages is immediately appealable.

I.

    [2]On appeal, Harris first argues that "the trial court erred in finding that the City of Monroe's right to acquire part of Tract 2 of the property was not a judicial question for the court . . .." Specifically, Harris challenges the trial court's conclusion of law #4 which states:

        The issues raised by defendant Harris concerning the right of the City to acquire the part of Tract 2 that was not shown to be acquired on the ALP Update address the nature and extent of the property required by the City for expansion of its Airport and is not a judicial question for this Court.

    Although the propriety of a taking is generally not reviewable by the courts once a public purpose is established, our courts have consistently held that "[u]pon specific allegations tending to show bad faith, malice, wantonness, or oppressive and manifest abuse of discretion by the condemnor, [the takings] issue . . . becomes a subject of judicial inquiry as a question of fact to be determined by the judge." Greensboro-Highpoint Airport Authority v. Irvin, 36 N.C. App. 662, 665, 245 S.E.2d 390, 392, appeal dismissed, 295 N.C. 548, 248 S.E.2d 726 (1978), cert. denied, 440 U.S. 912, 59 L. Ed. 2d 460 (1979)(citations omitted). Our courts have also held that in raising such allegations, the burden of proof is upon the condemnee to show that an abuse of discretion has indeed occurred as there is a presumption in this State that public officials discharge their duties in good faith and in accordance with the spirit and purpose of the law. See Board of Education of Hickory v. Seagle, 120 N.C. App. 566, 463 S.E.2d 277 (1995), disc. review improvidently allowed, 343 N.C. 509, 471 S.E.2d 63 (1996)(per curiam); Painter v. Wake County Board of Education, 288 N.C. 165, 217 S.E.2d 650 (1975).

    In this case, the trial court, having first determined that "[t]he City ha[d] a valid purpose for acquiring . . . Tract 2 of the Harris Property, to wit: expansion of the Airport," then concluded as a matter of law that:

        2. Neither the taking of Tract 1 for use as a public road nor the taking of Tract 2 for Airport expansion constitutes an arbitrary and capricious act undertaken in bad faith or a manifest abuse of discretion by the City. 3. Defendant Harris has not offered sufficient credible and substantial evidence to overcome the presumption that the officials of the City have discharged their duties in good faith and exercised their powers in the spirit and purpose of the law.

According to the trial court's order, it was only after reaching these conclusions that the court then concluded the issues raised by Harris concerning whether part of Tract 2 addressed "the nature and extent of the property," and therefore, they were not judicial questions for the court.

    Reading the challenged conclusion in the context of conclusions #2 and 3, as well as the numerous findings of fact set forth by the court, it is clear the trial court did not disregard Harris' allegations of arbitrary and capricious conduct on the part of the City of Monroe, but that it specifically made them the subject of its judicial inquiry in determining the propriety of the City of Monroe's taking of Tract 2. Accordingly, Harris' first argument for reversal of the trial court's order is rejected.

II.

    Next Harris contends, in a number of interrelated assignments of error, the court erred in concluding as a matter of law that the City of Monroe's taking of Tract 2 for the purpose of expanding its airport was not an arbitrary and capricious act undertaken in bad faith. According to Harris, the taking of Tract 2 was an abuse of the City of Monroe's discretion for three reasons: (1) the City took more of the property than was necessary for expansion of the Monroe Airport; (2) the City failed to comply with required federal grant and aviation procedures for the taking of property by eminent domain; and (3) the City's taking of Tract 2 was undertaken for the sole purpose of injuring the Harris Corporate Center. We address each of Harris' arguments in turn.

    [3]In his first argument, Harris contends the City of Monroe's actions were "arbitrary, capricious, oppressive, excessive, and an abuse of discretion" because its condemnation of all of Tract 2 was not necessary to accomplish its public purpose. Specifically, Harris contends that the part of the property lying outside of the future expansion lines of the Monroe Airport is in excess of what the City of Monroe needs for its airport expansion; that the City of Monroe already had sufficient land to undertake the expansion of its airport without having to resort to the taking of Tract 2; and that an easement would have been sufficient to serve the public purpose. We disagree.

    Under North Carolina law, "[c]ondemnation by right of eminent

domain is not allowed, except so far as it is necessary for the proper construction and use of the improvement for which it is taken." Spencer v. Wills, 179 N.C. 175, 178, 102 S.E.2d 275, 277 (1920). In support of his argument that the City of Monroe took property in excess of what was necessary for its purpose, Harris cited the deposition testimony of Jerry Cox, the City Manager of Monroe. Harris specifically points to the following testimony:

        Q. So the line that is on the Airport Master Plan showing the future property line established the amount of land that is needed for airport expansion under the master plan?

         A. I will answer the question this way, under the immediate plan.

        Q. So if there is land that is outside the future property line as shown on the current master plan, then it isn't needed for current airport expansion, correct?

        A. I will say that what's shown on the airport master plan that has been adopted is our best estimation, judgment as to what we need to accomplish the current master plan that has been approved.

        Q. So if it lies outside the current master plan, you don't currently need that property?

        A. As far as currently need, that's correct . . . .

        Q. So, in other words, the city is taking by eminent domain property that lies outside the future expansion lines for Monroe Municipal Airport as shown on the Airport's Master plan?

        A. On the current master plan, but again, in terms of future needs, as to being future expansion, that would be incorrect.

        Q. But on the current master plan, it is outside the area that is being shown for future expansion?

        A. On the current master plan that I'm looking at, that's correct.

        Q. Which you've identified as the accurate current master plan?

        A. As presented today, yes.

    Contrary to Harris' assertion, we do not believe Mr. Cox's testimony establishes that the taking of all of Tract 2 was not necessary for the City of Monroe's future expansion of the airport. Although Mr. Cox admitted that part of Tract 2 fell outside the airport's property line, he made it clear that the land was not included within the expansion boundaries because it was not "what [the City] need[ed] to accomplish the current master plan that ha[d] been approved." (emphasis added). Indeed, he was rather adamant in noting the airport master plan was merely a plan by which the City of Monroe was to accomplish its most "immediate" needs, and in terms of the City's future needs and future plans for expanding the airport, the property which lay outside the master plan boundaries was necessary to the fulfillment of the City's ultimate goal.

    Moreover, even if we were to read Mr. Cox's testimony as contemplated by defendant, we believe the following findings of fact made by the trial court sufficiently justify its conclusion that the City of Monroe was entitled to take all of Tract 2 in fee simple rather than by acquiring an easement: