1. Eminent Domain--traffic median--separation of lanes of travel_-traffic regulation--
police power
The trial court did not err in a condemnation case as a matter of law by granting partial
summary judgment in favor of plaintiff city even though defendant property owners contend the
construction of a median in front of their property was done for aesthetic rather than public safety
purposes and was therefore an exercise of eminent domain rather than an exercise of the city's
police power, because separation of lanes of travel is a valid traffic regulation and an exercise of a
governmental agency's police power. Consequently, injury to a landowner's remaining property
resulting from it is noncompensable.
2. Eminent Domain--traffic median-_public safety purposes--aesthetic purposes--police
power
The trial court did not err in a condemnation case as a matter of law by granting partial
summary judgment in favor of plaintiff city even though defendant property owners contend a
genuine issue of material fact was created by evidence that the construction of a median in front
of defendants' property was done for aesthetic rather than public safety purposes, because: (1)
even taking the statement in an affidavit from defendants' consultant as true that the median was
not incorporated into the design primarily for safety, this bare statement fails to establish that the
median did not serve a public safety purpose; and (2) the evidence presented by defendants in this
case also does not support the contention that the median serves no public purpose, but instead
supports the argument that public safety is not its primary purpose.
3. Eminent Domain--traffic median--police power
--reasonable means
The means used to accomplish plaintiff city's legitimate police power to construct a traffic
median in front of defendants' property were reasonable, because defendants still have free ingress
and egress to their property by use of crossover intersections located in the same block as their
property and the property has not been deprived of all reasonable value by the exercise of this
police power.
4. Eminent Domain--value of property--diminution caused by construction of median
The trial court did not err by entering the final judgment in favor of defendants in the
amount of $12,290.81 representing the value of that portion of defendants' property taken by
plaintiff, because defendants were not entitled to compensation for the diminution of value of their
property due to the construction of a median.
City of Concord by Deputy City Attorney Robert E. Cansler, for
plaintiff-appellee.
Ferguson, Scarbrough & Hayes, P.A., by James E. Scarbrough,
for defendants-appellants.
JACKSON, Judge.
Defendant appeals from an order granting partial summary
judgment in favor of plaintiff entered on 16 June 2003 and entry of
a final judgment by the Superior Court of Cabarrus County on 27
September 2004 in favor of defendants in the amount of $12,290.81.
Plaintiff, City of Concord, is a municipal corporation
organized and existing under the laws of the State of North
Carolina and is vested with the power of eminent domain pursuant to
North Carolina General Statutes section 160A-240.1 (2003) .
Plaintiff commenced a condemnation proceeding against defendants on
14 November 2001 pursuant to its power of eminent domain seeking
temporary and permanent rights of way for a road widening project.
Plaintiff estimated the just compensation for the taking to be
$6,675, which amount was deposited with the Clerk of Superior Court
of Cabarrus County when the complaint was filed. Defendants
answered the complaint, admitting all allegations except the value
of the just compensation.
The road widening project for which the portion of defendants'
property was condemned consisted of increasing the number of travel
lanes comprising Lake Concord Road on which defendants' propertyabutted. The purpose of this project was to accommodate the
increased traffic flow safely along the roadway resulting from the
expansion plan of the nearby regional hospital. The initial plan
consisted of widening the roadway to two travel lanes in each
direction with a center turn lane allowing access to each side of
the roadway from either direction of travel. The configuration
that ultimately was put in place, however, consisted of two travel
lanes in each direction with a center median in front of
defendants' property. This configuration prevented access to
defendants' property from the southbound traffic lanes. Access to
or from the southbound traffic lanes was available at crossover
intersections located within the same block as defendants'
property.
Defendants presented an appraisal that showed the reduction in
value of their property due to the road widening project to be
$103,890. The majority of this amount ($98,665) was attributable
to the restriction of access to lanes in only one direction of
travel by the median. The trial court entered partial summary
judgment in favor of plaintiff. Defendants appealed to this Court
and filed a petition for writ of certiorari. The petition for writ
of certiorari was denied and the appeal dismissed as interlocutory.
On remand, plaintiff and defendants stipulated to the evidence and
requested an entry of final judgment. Final judgment was entered
in favor of defendants in the amount of $12,290.81 on 27 September
2004. Defendants timely appealed. Defendants argue: (1) the trial court erred as a matter of law
in granting partial summary judgment to plaintiff; (2) the trial
court erred in granting partial summary judgment to plaintiff as
there were genuine issues of material fact; and (3) the trial court
erred in entering judgment in favor of plaintiff (as to the amount
of compensation). Plaintiff cross-assigns as error the trial
court's failure to rule on its objection to the consideration of
the affidavit of Jerry Newton based upon his lack of qualification
as an expert.
[1] Defendants first contend that the trial court erred as a
matter of law in granting partial summary judgment in favor of
plaintiff as the construction of the median was done for aesthetic,
rather than public safety, purposes and was therefore an exercise
of eminent domain and not an exercise of the city's police power.
Summary judgment is proper where there exists no genuine issue of
material fact and a party is entitled to judgment as a matter of
law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003); Raybon v. Kidd,
147 N.C. App. 509, 512, 555 S.E.2d 656, 658 (2001).
“'If the act is a proper exercise of the police power, the
constitutional provision that private property shall not be taken
for public use, unless compensation is made, is not applicable.'”
Department of Transp. v. Harkey, 308 N.C. 148, 153, 301 S.E.2d 64,
68 (1983)(quoting Barnes v. North Carolina State Highway Com., 257
N.C. 507, 514, 126 S.E.2d 732, 739 (1962)(internal quotations and
citations omitted)). The separation of lanes of travel is a valid
traffic regulation and an exercise of a governmental agency'spolice power, consequently, injury to a landowner's remaining
property resulting from it is non-compensable. Barnes, at 518, 126
S.E.2d at 740.
The facts in Barnes are substantially similar to those in the
case sub judice. In Barnes, as here, a portion of the property
owner's land was taken as part of a road improvement project which
included physically dividing the existing roadway into separate
lanes of travel. As in the instant case, the result of this
separation was to leave the property owner with direct access from
his remaining property only to the lanes of travel in one direction
with access to or from the opposite lanes of travel available via
crossovers located a short distance before and after his property.
In Barnes, our Supreme Court discussed the reasoning of the Supreme
Court of Washington that “[property owners] have no property right
in the continuation or maintenance of the flow of traffic past
their property. . . . Circuity of route, resulting from an exercise
of the police power, is an incidental result of a lawful act. It
is not the taking or damaging of a property right.” Id. at 516,
126 S.E. 2d at 738-39 (quoting Walker v. State, 295 P.2d 238 (Wash.
1956)). Ultimately, the Barnes Court concluded that the property
owner was not entitled to compensation for the diminution in value
of his remaining property attributable to the presence of the
median.
Defendants urge us to adopt the position taken by the South
Carolina Supreme Court allowing for the recovery of diminution of
value resulting from the construction of medians included in largerroad projects. South Carolina State Highway Dep't v. Wilson, 175
S.E.2d 391 (S.C. 1970); Hardin v. S.C. DOT, 597 S.E.2d 814 (S.C.
Ct. App. 2004). We see no significant distinction between the
instant case and Barnes that would justify a departure from the
precedents of the courts of North Carolina - precedents by which we
are bound. Accordingly, we decline to adopt the position urged by
defendants.
The trial court found no basis to distinguish the facts of the
current case from the precedent existing under Barnes that
separation of lanes of traffic is an exercise of the police power.
As injury to property as a result of the exercise of the police
power is not compensable, we hold that the trial court did not err
as a matter of law in granting partial summary judgment in favor of
plaintiff. This assignment of error is overruled.
[2] Defendants next argue that the trial court erred in
granting partial summary judgment in favor of plaintiff as there
were genuine issues of material fact. Defendants contend a genuine
issue of material fact was created by evidence that the
construction of the median was done for aesthetic, rather than
public safety, purposes.
As discussed supra, an exercise of eminent domain requires
just compensation while an exercise of a police power does not. An
“ends-means” analysis is used to determine whether a governmental
action is a legitimate exercise of the police power. Eastern
Appraisal Servs. v. State, 118 N.C. App. 692, 696, 457 S.E.2d 312,
314 (1995)(citing Responsible Citizens in Opposition to Flood PlainOrdinance v. Asheville, 308 N.C. 255, 302 S.E.2d 204 (1983)). The
first step of this analysis is to determine whether the goal of the
action is within the police power and the second step is to
determine whether the means of achieving this goal is reasonable.
Id. If either step of the analysis fails, then a compensable
taking results. Id. (citing Weeks v. North Carolina Dep't of
Natural Resources & Community Dev., 97 N.C. App. 215, 388 S.E.2d
228, disc. review denied, 326 N.C. 601, 393 S.E.2d 890 (1990)).
The scope of the police power generally includes the
protection of the public health, safety, morals and general
welfare. Id. The means used to accomplish a goal within the scope
of the police power are unreasonable when they deprive an owner of
all practical use of the property or they cause the property to
lose all reasonable value. Weeks, 97 N.C. App. at 225, 388 S.E.2d
at 234.
On appeal defendants argue that the median serves no public
safety purpose and therefore fails to fall within the scope of the
police power. In support of this argument defendants rely on the
affidavit of their consultant Jerry Newton (“Newton”), who
evaluated the median in question and its purpose. In his affidavit
Newton states, without providing any basis for his opinion, that
the “median was not incorporated into the design primarily for
safety.” (Emphasis added). Even when taken as true, this bare
statement fails to establish that the median did not serve a
public safety purpose. Our Supreme Court specifically has stated, “[a] median strip,
completely separating traffic moving in opposite directions on [the
roadway], and preventing left turns except at intersections, is an
obvious safety device clearly calculated to reduce traffic
hazards.” Gene's, Inc. v. Charlotte, 259 N.C. 118, 121, 129 S.E.2d
889, 892 (1963). Defendants attempt to distinguish both Barnes and
Gene's from the instant case by pointing out, as the Supreme Court
did in Gene's, that in neither of those cases did the property
owner allege that the median strip failed to serve a public safety
purpose. Nonetheless, the evidence presented by defendants in the
case sub judice does not support the contention that the median
serves no public safety purpose either. Defendants' evidence
supports only the argument that public safety is not its primary
purpose. We find that the median in this case serves, at least in
part, to promote public safety and therefore falls within the
police power.
[3] We now turn to the question of whether the means used to
accomplish this legitimate police power objective were reasonable.
The evidence in the record establishes that defendants still have
free ingress and egress to their property and the property has not
been deprived of all reasonable value by the exercise of this
police power. Accordingly, the means used to accomplish this
exercise of the police power were reasonable.
We hold that there was no genuine issue of material fact
whether the construction of the traffic median by plaintiff was a
valid exercise of the police power. Consequently, the trial courtdid not err in granting partial summary judgment on that issue in
favor of plaintiff. This assignment of error is overruled.
[4] Finally, defendants assign as error that the trial court
erred in granting judgment in favor of plaintiff. It appears that
defendants actually are attempting to assign error to the amount of
the final judgment as the trial court did not grant judgment in
favor of plaintiff. The final judgment was entered in favor of
defendants in the amount of $12,290.81, an amount representing the
value of that portion of defendants' property taken by plaintiff.
As discussed infra, defendants were not entitled to compensation
for the diminution of value resulting from the construction of the
median. Accordingly, we find no error in the trial court's final
entry of judgment.
As we have found no error in the trial court's denial of
compensation to defendants for the diminution of value of their
property due to the construction of the median, it is unnecessary
to reach plaintiff's cross-assignment of error regarding the trial
court's failure to rule on its objection to the consideration of
Newton's affidavit.
Affirmed.
Judges HUDSON and STEELMAN concur.
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