What is a North Carolina Chapter 136 Eminent Domain Taking?

In North Carolina, there are two statutory chapters that deal with eminent domain takings of private land/property for public use: North Carolina General Statutes Chapter 136 and Chapter 40A.

Chapter 136 governs the methods and means by which the North Carolina Department of Transportation ("NCDOT") can exercise the power of eminent domain and Chapter 40A governs use of eminent domain proceedings by North Carolina local governments and municipalities, by other public condemnors and by private third parties who are permitted to use the power of eminent domain (like utility companies). Here is some basic information on Chapter 136 eminent domain takings.

Governments in general, including the State of North Carolina, have the power to take private land for public use through use of the power of eminent domain. Eminent domain legal proceedings are called "condemnation proceedings." Governments also have the authority to delegate the power of eminent domain to governmental agencies, local governments subdivisions and even to private parties. Thus, in North Carolina, the State has given the NCDOT the authority to use the power of eminent domain for the purposes of building and maintaining North Carolina roads and highways. The use of condemnation proceedings has two main limitations: the condemnation of private land must be for "public use/benefit" and the government must pay "just compensation" for the land taken. Just compensation is generally defined as the fair market value of the land.

As noted, Chapter 136 governs the use of eminent domain by the NCDOT. Overall, Chapter 136 governs all powers and authorities granted to the NCDOT with provisions related to eminent domain contained throughout the Chapter. However, N. Car. Gen. Stat., § 136-103, et seq., is the main provision governing use of eminent domain by the NCDOT.

These provisions allow the NCDOT to use what is called a “quick take” method of taking private land. In brief terms, a "quick take" means that title and the right to possession of land transfers immediately (and by operation of law) when the NCDOT files condemnation papers with the local county Superior Court and deposits the "just compensation." There is no Closing or formal signing of papers like for a private sale/purchase of land. The NCDOT does not even need the landowner to sign a deed or similar papers. Title and right to immediate possession transfer by operation of law. N. Car. Gen. Stat., § 136-104.

The "papers" that must be filed with the local county Superior Court are a "Complaint" and a "Declaration of Taking." Under sections 136-103(b) and (c), the Complaint and Declaration must contain the following information:

• A statement of the authority under which and the public use for which said land is taken
• A description of the entire tract or tracts affected by said taking sufficient for the identification thereof
• A statement of the estate or interest taken such as full title to the land or an easement
• The names and addresses of all persons/entities who own or otherwise may have an interest in the land (such a lender with a mortgage on the land)
• A statement of the sum of money estimated by the NCDOT to be just compensation for said taking
• A statement as to such liens or other encumbrances as the NCDOT believes to exist with respect to the land being taken

After filing the Complaint and Declaration, the landowner and all other persons with an interest in the land must be notified. Such landowners and interested parties may respond and answer the Complaint and Declaration. Landowners may bring legal challenges to the taking of their land and may also challenge the amount of just compensation that has been deposited. Without losing their rights to challenge the amount deposited, landowners may also ask the court to release all or portions of the just compensation. However, as noted, title and right to possession has already been transferred to the NCDOT. Thus, while landowners and others may seek to litigate the taking and/or the amount paid as just compensation, the NCDOT may take possession and begin work on the road, highway or other public work construction.

In addition to being authorized to take private land, the NCDOT is also authorized by section 136-18 to use condemnation proceedings to take materials easements from a "... person, firm, or corporation owning a deposit of sand, gravel, or other material necessary for the construction of the system of State highways..." The same procedures described above must be used to condemn material easements and just compensation must be deposited with the county Superior Court. However, any easement of this sort that is condemned "... shall be returned to the owner as soon as the deposits are exhausted or abandoned by the Department of Transportation." A similar authority is granted by section 136-19 for "... gravel beds or bars, sand, sand beds or bars, rock, stone, boulders, quarries, or quarry beds, lime or other earth or mineral deposits or formations, and such standing timber as it may deem necessary and suitable for transportation infrastructure construction..."

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.