The Many Methods of Legally Challenging Eminent Domain in North Carolina

The state of North Carolina and local governments have the power to take private land for public use through use of the power of eminent domain. The state has also delegated its power of eminent domain to a list of private parties -- like utility and railroad companies. When the government (or private parties) use eminent domain to take private property, "just compensation" must be paid for the land taken.

For those that do not want their private property taken through the power of eminent domain, there ARE legal challenges that can be raised. Although the unique circumstances of your particular case may render as unsuitable certain legal arguments and theories). It is worth mentioning some landowners do not necessarily want to challenge the taking of the land itself, but rather the "just compensation" that is being paid. Indeed, one can challenge the amount to be paid without making other legal challenges. Further, care must be taken that ALL legal challenges are presented at the earliest opportunity. Often, challenging ONLY the amount to be paid accomplishes, in effect, the waiver of other legal challenges to the taking itself. This article will not discuss methods of challenging the amount to be paid.

Here are some of the more common legal options for challenging an eminent domain taking in North Carolina.

In general, aside from having to pay "just compensation," the power of eminent domain is limited by two other conditions: (1) that the taking of private land be "necessary" and (2) that the land taken be designated for "public use or benefit."

Of the two, challenging the "necessity" requirement is the most difficult. Essentially, the argument is that the entity taking the private land did not NEED to take this particular land or that they did not need to take as much of the land as they did. The taking of private land was excessive. Generally, however, North Carolina courts leave the question of "necessity" up to the entities seeking to take private land. Here in North Carolina, "necessity" is not defined in some absolute physical manner, but more in line with what is reasonably necessary, expedient and helpful to the public. There are several reported North Carolina case decisions where this argument was put forward, but ultimately rejected. That being said, in the right circumstances, necessity might be a viable legal challenge and there have been many cases around the country where results were more favorable to the landowner.

Challenging the "public use" requirement has been more successful in North Carolina with the way being shown by the case of Town of Apex v. Rubin, 2021 NCCOA 187 (N.C. Court of Appeals 2021). In that case, the landowner successfully challenged a local municipal taking of a sewer easement across her land. The court agreed that the taking was for a private purpose: linking a private housing development to the Town's sewer and water lines. This was not allowable under North Carolina law.

Along the same lines, it is possible to raise a legal challenge involving an improper purpose. Under North Carolina statutes, certain entities are strictly limited to certain purposes when using the power of eminent domain. For example, private schools and education institutions can use the power of eminent domain, but ONLY for the purpose of obtaining "pure and adequate water supply." See N. Car. Gen. Stat., § 40A-3(a). If a private school is attempting an eminent domain proceeding for any other purpose, a successful legal challenge is likely.

The North Carolina statutes that govern eminent domain takings specify various procedures for the process. For example, the North Carolina Department of Transportation can use a "quick take" process for eminent domain whereas other entities cannot. There are also various notice and other procedural requirements that must be met first. Failure to abide by the statutory procedures can result in a successful challenge. However, procedural deficiencies can be remedied by the entity seeking to take the land. As such, asserting procedural challenges may only delay the taking of private land.

Again, depending on the unique circumstances of the case, there may be legal challenges that can be brought on the basis of other public policy and/or constitutional grounds. For example, there have been recent successful political efforts to raise the issue of "environmental justice" with respect to road building, the placement of public work projects, and use of eminent domain to cure "urban blight." Thus, if it can be shown that a particular eminent domain has disproportionate harmful impacts on certain communities, then legal challenges based on equal protection, civil rights, and related public policies might be possible. Similar legal challenges might be possible where environmental issues are implicated.

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.