Can I Challenge the Taking of My Private Land Because They are Taking More Than Necessary?

Under North Carolina law, landowners facing condemnation of their land will have difficulty challenging the condemnation on the basis that the condemning authority is taking more land than is necessary. This is because of a case decided by the North Carolina Supreme Court in 1998 called City of Charlotte v. Cook, 498 SE 2d 605 (NC Supreme Court 1998). In that case, the City initiated condemnation of a 15-acre parcel of a dairy farm to install a pipeline, various other lines and cables to transport water to a newly built treatment plant in North Mecklenburg County. The landowners challenged the condemnation by arguing that the City was taking more than was necessary. The landowners argued that, rather than taking the whole of the acreage with full title, the City could accomplish the same public use purpose by taking an easement across the land.

The general rule is that, in order for a governmental unit to take private property through the power of eminent domain, the land must be taken for "public use" and only so much of the land that is necessary for that public use can be taken. But, in the Cook case, the North Carolina Supreme Court held that what is "necessary" is left mostly up to the discretion of the governmental unit that is condemning the land. The City offered several reasons for taking the title to the acreage -- rather than taking an easement -- including these reasons:

• Taking full title was better since some pipes would need to be located at depths up to 40 feet
• A number of other facilities and equipment would be needed
• Taking full title would assist the City in exercising effective control and protective security over all uses and facilities/equipment related to the pipeline
• The cost for acquiring full title to the acreage was not much different than acquiring an easement
• Taking full title would give the City flexibility in selecting vendors and suppliers

These reasons were sufficient for the Supreme Court to hold that the City properly exercised its discretion in choosing to take full title to the acreage.

This is not necessarily the rule in other states. Montana, for example, has a different rule. In Montana, a governmental agency taking private land must take ONLY what is truly necessary to effectuate the "public purpose" of the taking. Thus, in Montana, the City of Charlotte would have been required to take only an easement.

Since 1998, the law has shifted and various legal theories have been adopted by various courts around the country. These new legal theories make it even more difficult to challenge a public taking of private land on the grounds that the governmental agency is taking more land that is necessary. These are generally discussed and debated as "excess takings issues." The three most important excess takings justifications are these:

• Remnant avoidance
• Allowing excess condemnation as being "protective" of the public project and
• "Recoupment" justification

The remnant avoidance justification applies in situations where a condemning authority takes most of a tract of land, but leaves in private hands a small remnant. For example, assume that a road widening is planned and the condemning authority needs an 80-foot strip of land adjacent to the new road. But assume that the land in question is only 100 feet deep. Under a pure "necessary" theory of land condemnation, a condemning authority would be required to only take the 80 foot area of private land. But that would leave a nearly useless 20-foot strip of land along the new road. Being nearly useless, the land would also likely have little value. As such, the land might well be abandoned which, in turn, might lead to the 20-foot strip of land becoming an "eye-sore" and hazardous. Thus, under this theory, a condemning authority might deem it "necessary" to condemn a whole area of land to avoid leaving useless remnant parcels of land near a newly built public works project. Under the holding of Cook discussed above, likely, such a decision would be deemed within the discretion of a North Carolina condemning authority.

The protection justification is similar, but more controversial. The general idea is that condemning adjacent land can be "necessary" to ensure that the future use of that adjacent land is consistent and harmonious with the public project. The recoupment justification is much more controversial. Here, a condemning authority could deem it "necessary" to condemn private land adjacent to the public project for the purposes of holding the land and then reselling it after the public project is completed. Presumably, the excess land has appreciated in value since it is adjacent to a newly built public project. The condemning authority makes a profit on the resold adjacent land and these profits provide a "public benefit" by offsetting costs of the public works project.

None of these excess land condemnation justifications have been legally tested here in North Carolina. So, it is unknown whether these justifications would be legally viable. However, the point in discussing these is that, since the Cook decision, laws around the country have moved very much in the direction of giving condemning authorities a VERY broad degree of discretion in determining what is "necessary" for the taking of private land for public use.

For more information, and to schedule a confidential consultation with experienced and dedicated eminent domain and condemnation attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in federal court, in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.