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Eminent Domain--size of taking--three determinations required
In a case arising from plaintiff's exercise of its power of eminent domain under N.C.G.S.
§ 162-6 for construction of a water supply lake, the trial court's attempt to limit plaintiff's
decision to condemn an entire 145-acre tract of land owned by defendant is reversed and
remanded because: (1) the trial court improperly treated the “of little value” language in
N.C.G.S. § 40A-7 as a threshold determination which must be met before consideration of the
requirements of the three subsections in that statute; and (2) plaintiffs need to provide additional
evidence to show all three determinations in N.C.G.S. § 40A-7 were met in order for the trial
court to conduct its abuse of discretion determination.
Adams, Kleemeier, Hagan, Hannah & Fouts, by M. Jay Devaney,
for plaintiff-appellant.
Hill, Evans, Duncan, Jordan & Davis, by R. Thompson Wright,
for defendant-appellee, Sumner Hills Incorporated.
LEWIS, Judge.
This case arises from the exercise of the power of eminent
domain by plaintiff, Piedmont Triad Regional Water Authority
("Authority"). Plaintiff appeals from an order limiting its
decision to condemn an entire 145-acre tract of land owned by
defendant Sumner Hills Incorporated ("Sumner Hills"). It has been
stipulated that defendant Denmark Golf Services, the lessee of the
property, has no interest in the issues raised on appeal.
Plaintiff is a public authority organized under N.C. Gen.
Stat. § 162A-3.1, which has been granted the power of eminent
domain pursuant to N.C. Gen. Stat. § 162A-6. The Authority isconstructing a water supply lake, known as the Randleman Dam and
Lake Water Supply Project ("Project"), in Guilford and Randolph
Counties. Sumner Hills is the owner of a 145-acre tract located at
Hickory Creek Road, Sumner Township, Guilford County ("Property"),
and has used the Property for over twenty years as an eighteen-hole
golf course. A portion of the Property is bordered by Reddick
Creek, which feeds into the Randleman Dam Lake. The Authority
sought to condemn the entire Property for construction of the water
supply lake associated with the Project .
Since it could not obtain the property by negotiated
conveyance, by resolution dated 7 October 1997, the Authority
instituted a proceeding under Chapter 40A of the North Carolina
General Statutes to condemn the entire Property. The Authority
made the following determinations in its Resolution which
purported to justify a taking of the entire 145 acres:
(a) a partial taking
of the above-described
land would substantially destroy the
economic value or utility of the
remainder; or that
(b) an economy in th
e expenditure of public
funds will be promoted by taking the
entire parcel; or that
(c) the interest of
the public will be best
served by acquiring the entire parcel.
On 24 February 1998, the Authority filed a Complaint,
Declaration of Taking and Notice of Deposit under N.C. Gen. Stat.
§ 40A-41 in Guilford County Superior Court against defendants and
a Memorandum of Action pursuant to section 40A-43. The Memorandum
of Action included that the public purpose of the taking was "to
protect the public health, to provide the public with an adequateand sound public water supply and to meet the public water supply
needs of the jurisdictions served by the plaintiff, specifically
the construction of the [Project]." In its answer, Sumner Hills
alleged that only a portion of the Property was actually required
for public use, and that the Authority should be required to
condemn only that portion of the Property required for the stated
public purpose. Because an issue other than just compensation
existed, specifically the amount of land that could be condemned,
the Authority then sought a judicial determination as to the amount
of land it could acquire pursuant to N.C. Gen. Stat. § 40A-47.
After a hearing the trial court entered an order on 26 October
1998 determining that the Authority lacked the power to condemn the
entire tract of Property under section 40A-7, and instead was
authorized to condemn only 48 acres of the 145-acre tract. The
Authority appeals from this order.
Chapter 40A of the North Carolina General Statutes provides
the exclusive condemnation procedures to be used by all local
public condemnors. N.C. Gen. Stat. § 40A-1 (1984). As an
authority created under the provisions of Article 1 of Chapter
162A, the Authority here constitutes a public condemnor within the
meaning of Chapter 40A. N.C. Gen. Stat. § 40A-3(c)(8) (1984).
Authorities given the power of eminent domain may take property
only for a public purpose. City of Charlotte v. Cook, 348 N.C.
222, 225, 498 S.E.2d 605, 607-08 (1998). Once the public purpose
is established, the question of the extent of such a taking is left
to the discretion of the Authority. City of Burlington v. Isley
Place Condominium Assn., 105 N.C. App. 713, 714, 414 S.E.2d 385,386 (1992). Section 40A-7 sets forth the guidelines the Authoritymust
follow in order to determine the extent of the Property it may
condemn within its discretion. So long as the Authority has
followed these statutory guidelines, the Authority's decision to
condemn a parcel of land is subject to an abuse of discretion
standard. City of Charlotte, 348 N.C. at 225, 498 S.E.2d at 608.
On appeal, the parties raise an issue of first impression regarding
the proper construction of section 40A-7 and an issue as to whether
sufficient evidence was before the trial court to make a
determination under section 40A-7.
The relevant portions of section 40A-7 are as follows:
(a) When the proposed project requires
condemnation of only a portion of a parcel of
land leaving a remainder of such shape, size
or condition that it is of little value, a
condemnor may acquire the entire parcel by
purchase or condemnation. If the remainder is
to be condemned the petition filed under the
provisions of G.S. 40A-20 or the complaint
filed under the provisions of G.S. 40A-41
shall include:
(1) &nbs
p; A determination by the
condemnor that a partial taking
of the land would substantially
destroy the economic value or
utility of the remainder; or
(2) &nbs
p; A determination by the
condemnor that an economy in
the expenditure of public funds
will be promoted by taking the
entire parcel; or
(3) &nbs
p; A determination by the
condemnor that the interest of
the public will be best served
by acquiring the entire parcel.
When interpreting the meaning of a statute, we must look to
the language of the statute itself. Sara Lee Corporation v.Carter, 351 N.C. 27 , 35, 519 S.E.2d 308, 313 (1999). When a
public condemnor wishes to condemn an entire parcel of land, even
though the project clearly does not necessitate acquisition of the
entire parcel, it must meet the requirements of section 40A-7.
This section sets forth three determinations in subsections (1),
(2) and (3), one of which must be met to authorize the Authority's
condemnation of the entire parcel.
In construing this section, the trial court treated the "of
little value" language in section 40A-7(a) as a threshold
determination which must be met before consideration of the
requirements in subsections (1), (2) and (3). The court therefore
made a determination as to whether the purportedly remaining parcel
was of "such shape, size or condition that it is of little value
[such that] a condemnor may acquire the entire parcel by purchase
or condemnation" before it reached consideration of subsections
(1), (2) and (3). In its complaint, however, the Authority did not
treat the "of little value" language in section 40A-7(a) as a
threshold determination. It made its first inquiry the
consideration of the three provisions listed under that section.
We agree with the Authority's construction of section 40A-7, in
that the "of little value" language in section 40A-7(a) does not
establish a threshold determination, making consideration of
subsections (1), (2) and (3) the first inquiry under that section.
Section 40A-7 sets forth the allegations which must be
included in the Authority's complaint in order to condemn an entire
tract of land when the project requires condemnation of only aparcel. N.C. Gen. Stat. 40A-7(a). In conformance with the common
law standard, subsections (1), (2) and (3) establish the guidelines
surrounding the Authority's discretion to determine the amount of
land to be condemned. Given that the purpose of section 40A-7 is
to set forth the allegations necessary for the Authority's
complaint, it would be illogical to require a threshold
determination that the remainder is "of little value" in order to
condemn the property. Such a construction would present a question
of law that would have to be resolved before the Authority would be
permitted to file a complaint under section 40A-7. Reading this
question of law into the statute would essentially override the
common law discretionary right of the Authority in a condemnation
action. There is no indication in the statute of the legislature's
intent to override this common law discretionary right.
Furthermore, we feel that the phrase "of little value" is so
subjective that our legislature could not have possibly intended it
to be a threshold determination. One can only imagine the endless
meanings "of little value" may take on when applied to various
tracts of land. Because the statute neither defines "of little
value," nor provides any guidance were we to construe it as a
threshold determination, we conclude that the "of little value"
language is a mere introduction to the more specific determinations
in subsections (1), (2) and (3). Because the trial court did not
consider the determinations in subsections (1), (2) and (3), we
remand for further consideration on this issue.
We emphasize that the Authority's discretion in this decisionis subject to review by the trial court under an abuse
of
discretion standard. City of Charlotte, 348 N.C. at 225, 498
S.E.2d at 608. We note, then, that the trial court must have
before it competent evidence to ascertain whether the Authority
exercised its discretion appropriately. Our review of the record
before us reveals only conclusory assertions of the Authority in
which it merely stated in its Resolution that all three of the
determinations in section 40A-7 were met. On remand, additional
evidence is necessary to conduct a sufficient review of these
determinations under the abuse of discretion standard.
We reverse the trial court's order and remand to the Guilford
County Superior Court for proceedings consistent with this opinion.
Reversed and Remanded.
Judges JOHN and MCGEE concur.
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