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North Carolina's Eminent Domain Laws and Property Rights

PROPERTY RIGHTS IN THE STATE OF NORTH CAROLINA

While North Carolina remains the only state in the nation without a just compensation clause in its Constitution, the courts have required just compensation under the Law of the Land Clause found in Sec. 19 of the North Carolina Constitution.This clause reads:

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.  No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

Likewise, North Carolina lacks many of the pre-condemnation protections provided to owners in other states. For instance, North Carolina law fails to provide reimbursement for litigation expenses, even when the owner demonstrates that the condemnor’s estimate of just compensation was grossly inadequate.

Nevertheless, despite these shortcomings, for those landowners willing to stand and defend their property rights and entitlement to just compensation, North Carolina law guarantees them not only the value of the property taken from them, but also compensation for the damages inflicted upon the property that remains after the taking.

Meet OCA's North Carolina Attorney

George B. Autry, Jr.

George B. Autry, Jr. is a partner at Cranfill Sumner & Hartzog, LLP and is the leader of the firm’s Eminent Domain and Land Condemnation practice group. He has been practicing exclusively in the area of eminent domain for three decades and represents property owners throughout North Carolina in cases involving all types of real property. Mr Autry has tried dozens of eminent domain cases to successful jury verdicts and has handled numerous high profile appellate cases. A former member of the Owners’ Counsel of America board of directors, Mr. Autry has also served two terms on the North Carolina Mining Commission.

SUMMARY OF NORTH CAROLINA’S EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Laws?

    North Carolina law permits state and local governments, and their instrumentalities, as well as certain private condemnors, such as public utility and railroad companies, to take private property by eminent domain. North Carolina General Statute §40A-3 lists the various entities that can take property and the specific uses for which each entity can exercise the power of eminent domain. Additionally, Chapter 136 of the North Carolina General Statutes authorizes the North Carolina Department of Transportation to take property, whereas Chapter 146 authorizes the Department of Administration to take property on behalf of the State.

  • What Are the Legal Requirements for Exercising the Power?

    Under North Carolina law, property can be condemned only for a public use. An entity seeking to take property must demonstrate that the General Assembly has granted it the power of eminent domain and has authorized that entity to take property for the specific purpose for which it seeks to condemn an owner’s property. See North Carolina General Statute § 40A-3.

    The procedural requirements vary greatly depending on whether the entity seeking to take property is a private condemnor, local public condemnor, or other public condemnor. These procures are specified in Chapters 40A and 136 of the North Carolina General Statutes.

  • What Limitations or Defenses Exist?

    Once a condemnor establishes that the General Assembly has (1) delegated the power of eminent domain to it and (2) authorized that entity to take property for a use authorized in the North Carolina General Statutes, the defenses to the taking are limited. At that point, the owner is typically limited to constitutional defenses beyond any defense against the condemnor’s authorization to take the property.

  • What Constitutes a Public Purpose?

    Any use specified in North Carolina General Statute § 40A-3 constitutes a valid public use for purposes of exercising the power of eminent domain. Additionally, the North Carolina Department of Transportation can take property for those uses specified in Chapter 136, and the Department of Administration can likewise take property for the uses specified in Chapter 146.

  • How is Just Compensation Determined?

    When the North Carolina Department of Transportation or Department of Administration take property, just compensation is determined by the difference between the value of the entire property before the taking and the value of the property remaining after the taking.

    When other entities take property, just compensation is determined by the greater of the following two amounts: (1) the value of the property taken or (2) the difference between the value of the entire property before the taking and the value of the property remaining after the taking.

  • How Is Fair Market Value Defined?

    At its core, fair market value is defined by the price that would be negotiated between a willing buyer and willing seller if each were acting knowledgeably and voluntarily. Courts seek to replicate the market when determining just compensation in a forced condemnation sale. In order to ensure owners are made whole when forced to sell their property, fair market value is determined based on the highest and best use of the property in condemnation cases.

    While there are a variety of ways to measure fair market value, appraisers most often use the three standard approaches to value: sales, income, and cost approaches.

  • What About Recovering Damages to Remaining Property?

    Owners are constitutionally entitled to damages to any property remaining after the taking. As just compensation is determined based on the difference between the value of the entire property before the taking and the value of the property remaining after the taking, damages are a vital part of determining what the owner is constitutionally due. Any analysis of just compensation in a partial taking case must include consideration of the damages, i.e., the depreciation in the value of the property remaining after the taking.

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    Unlike the law in many other states, attorney’s fees, expert witness fees, and other litigation expenses and costs are generally not recoverable under North Carolina law. There are three exceptions to this general rule. First, owners are entitled to reimbursement if they are forced to file the lawsuit to recover just compensation (i.e., inverse condemnation). Second, if the court determines a condemnor does not have authority to take the owner’s property, the owner is entitled to reimbursement. Third, if a condemnor abandons the taking, which is permitted only in certain circumstances, the owner is entitled to reimbursement. North Carolina General Statutes §§ 40A-8 and 136-119 address these exceptions.

North Carolina

Cranfill Sumner & Hartzog LLP
5420 Wade Park Boulevard, Suite 300
Raleigh, NC 27607
Tel:(919) 828-5100 | Fax:(919) 828-2277
gba@cshlaw.com | www.csh-eminentdomain.com

George B. Autry, Jr., has been practicing in Raleigh, North Carolina since 1991. For over the past twenty years, he has practiced exclusively in the area of eminent domain and has limited his eminent domain practice to representing private property owners since 1999.

George has tried condemnation jury trials in every corner of the state and has secured dozens of multi-million dollar verdicts and settlements for North Carolina landowners. His career includes trials and settlements of virtually every type of eminent domain case, including condemnations of shopping centers, golf courses, gas stations, hotels, mining and manufacturing facilities, office and residential condominiums, farms, schools, churches, and automobile dealerships. George regularly represents clients against the North Carolina Department of Transportation, the City of Charlotte, the Triangle Transit Authority, and Duke Energy Progress. He has tried over a dozen multi-million dollar land condemnation cases to favorable jury verdicts, resulting in awards greatly in excess of the condemnor’s estimated just compensation. George together with his wife and law partner, Stephanie Autry, have won the two largest condemnation judgments in NCDOT history.

Significant Eminent Domain and Property Rights Representations and Reported Decisions

  • Achieved a settlement of $5,380,000 for a Wake County property owner originally offered $2,700,000 for the taking of approximately 22 acres of land.
  • Obtained a jury verdict of $3,479,465 for a New Hanover County building supply company originally offered $303,525.
  • Achieved a settlement of $22,5000,000 for a Mecklenburg County property owner originally offered $16,865,400 for a shopping center.
  • Achieved a settlement of $15,800,000 for a Cumberland County property owner originally offered $4,842,525.
  • Obtained $11,900,000 for a Wake County property owner whose Raleigh property was acquired by the city in order to consolidate city services, including maintenance and parks and recreation.
  • Obtained a jury verdict of $2,691,703.94 for a Johnston County property owner originally offered $420,000.
  • Obtained a jury verdict of $2,611,647 for a Forsyth County property owner originally offered $1,268,075.
  • Obtained a jury verdict of $1,320,551 for a New Hanover County property owner originally offered $263,007.
  • Achieved a settlement of $1,550,000 for a Camden County school originally offered $146,400 for a partial taking of .7 acres of land.
  • Obtained a jury verdict of $2,533,364 including interest, for a Durham County hotel owner originally offered $291,000 for the taking of approximately .6 acres of land.
  • Obtained a jury verdict of $2,558,031.12, including interest, for an Alamance County landowner originally offered $400,800 for a partial taking of his property. The verdict continues to be the largest of any kind in Alamance County history.
  • Obtained a jury verdict of $1,707,033.16, including interest, on behalf of a Durham County restaurant owner who was originally offered $427,425.
  • Achieved a settlement of $3,041,000 for a Wake county property owner originally offered $692,760 for a partial taking.
  • Achieved a settlement of $3,667,000 on behalf of two brothers in a highly publicized case involving the total taking of a family tire business located in downtown Raleigh.
  • Achieved a settlement of $1,277,266 on behalf of Rex Hospital for the taking of four acres. The hospital was originally offered nothing.

Speaking Engagements

  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Use of First and Second Generation Rents and Just Compensation: Issues Sweeping Lower and Appellate Courts Throughout the Country,” January 2014, New Orleans, LA.
  • American Law Institute: Condemnation 101, “Trial Exhibits that Work,” January 2014, New Orleans, LA.
  • American Law Institute-American Bar Association: Condemnation 101, “How the Case Was Won: Practice Tips from Experienced Eminent Domain Practitioners,” February 2011, Coral Gables, FL.
  • American Law Institute-American Bar Association: Condemnation 101-How to Prepare and Present an Eminent Domain Case, “Representing the Condemnee and Winning from the Start: Overview and Suggestions for a Case Plan,” January 2009, Miami Beach, FL.
  • American Law Institute-American Bar Association: Condemnation 101-Fundamentals of Condemnation Law and Land Valuation, January 2008, San Francisco, CA.
  • American Law Institute-American Bar Association: Eminent Domain and Land Valuation Litigation Seminar, “Environmental Issues and Interaction with State Environmental Agencies,” January 2005, Miami, FL.

Professional Affiliations

  • Chairman, Land Condemnation Specialty Committee of the North Carolina State Ba
  • Member, North Carolina Mining Commission
  • Board of Directors, Owners’ Counsel of America (2014-2017)

Eminent Domain North Carolina | Cranfill, Sumner & Hartzog | CSH from TeamMultiverse on Vimeo.

Education

  • University of Texas at Austin, B.A., with honors
  • University of North Carolina at Chapel Hill School of Law, J.D.

Bar Admissions and Memberships

  • North Carolina, 1991
  • U.S. Court of Appeals for the Fourth Circuit
  • U.S. District Court, Eastern and Middle Districts of North Carolina
  • North Carolina Bar Association
  • Wake County Bar Association

Honors and Awards

  • Selected for inclusion in The Best Lawyers in America® for Eminent Domain and Condemnation Law, 2007-2009, 2013-2015
  • Selected by North Carolina Super Lawyers® as a Super Lawyer: 2012
  • Outstanding Volunteer Attorney, Wake County, 1993

George B. Autry, Jr., has been practicing in Raleigh, North Carolina since 1991. For over the past twenty years, he has practiced exclusively in the area of eminent domain and has limited his eminent domain practice to representing private property owners since 1999.

George has tried condemnation jury trials in every corner of the state and has secured dozens of multi-million dollar verdicts and settlements for North Carolina landowners. His career includes trials and settlements of virtually every type of eminent domain case, including condemnations of shopping centers, golf courses, gas stations, hotels, mining and manufacturing facilities, office and residential condominiums, farms, schools, churches, and automobile dealerships. George regularly represents clients against the North Carolina Department of Transportation, the City of Charlotte, the Triangle Transit Authority, and Duke Energy Progress. He has tried over a dozen multi-million dollar land condemnation cases to favorable jury verdicts, resulting in awards greatly in excess of the condemnor’s estimated just compensation. George together with his wife and law partner, Stephanie Autry, have won the two largest condemnation judgments in NCDOT history.

Significant Eminent Domain and Property Rights Representations and Reported Decisions

  • Achieved a settlement of $5,380,000 for a Wake County property owner originally offered $2,700,000 for the taking of approximately 22 acres of land.
  • Obtained a jury verdict of $3,479,465 for a New Hanover County building supply company originally offered $303,525.
  • Achieved a settlement of $22,5000,000 for a Mecklenburg County property owner originally offered $16,865,400 for a shopping center.
  • Achieved a settlement of $15,800,000 for a Cumberland County property owner originally offered $4,842,525.
  • Obtained $11,900,000 for a Wake County property owner whose Raleigh property was acquired by the city in order to consolidate city services, including maintenance and parks and recreation.
  • Obtained a jury verdict of $2,691,703.94 for a Johnston County property owner originally offered $420,000.
  • Obtained a jury verdict of $2,611,647 for a Forsyth County property owner originally offered $1,268,075.
  • Obtained a jury verdict of $1,320,551 for a New Hanover County property owner originally offered $263,007.
  • Achieved a settlement of $1,550,000 for a Camden County school originally offered $146,400 for a partial taking of .7 acres of land.
  • Obtained a jury verdict of $2,533,364 including interest, for a Durham County hotel owner originally offered $291,000 for the taking of approximately .6 acres of land.
  • Obtained a jury verdict of $2,558,031.12, including interest, for an Alamance County landowner originally offered $400,800 for a partial taking of his property. The verdict continues to be the largest of any kind in Alamance County history.
  • Obtained a jury verdict of $1,707,033.16, including interest, on behalf of a Durham County restaurant owner who was originally offered $427,425.
  • Achieved a settlement of $3,041,000 for a Wake county property owner originally offered $692,760 for a partial taking.
  • Achieved a settlement of $3,667,000 on behalf of two brothers in a highly publicized case involving the total taking of a family tire business located in downtown Raleigh.
  • Achieved a settlement of $1,277,266 on behalf of Rex Hospital for the taking of four acres. The hospital was originally offered nothing.

Speaking Engagements

  • American Law Institute: Eminent Domain and Land Valuation Litigation, “Use of First and Second Generation Rents and Just Compensation: Issues Sweeping Lower and Appellate Courts Throughout the Country,” January 2014, New Orleans, LA.
  • American Law Institute: Condemnation 101, “Trial Exhibits that Work,” January 2014, New Orleans, LA.
  • American Law Institute-American Bar Association: Condemnation 101, “How the Case Was Won: Practice Tips from Experienced Eminent Domain Practitioners,” February 2011, Coral Gables, FL.
  • American Law Institute-American Bar Association: Condemnation 101-How to Prepare and Present an Eminent Domain Case, “Representing the Condemnee and Winning from the Start: Overview and Suggestions for a Case Plan,” January 2009, Miami Beach, FL.
  • American Law Institute-American Bar Association: Condemnation 101-Fundamentals of Condemnation Law and Land Valuation, January 2008, San Francisco, CA.
  • American Law Institute-American Bar Association: Eminent Domain and Land Valuation Litigation Seminar, “Environmental Issues and Interaction with State Environmental Agencies,” January 2005, Miami, FL.

Professional Affiliations

  • Chairman, Land Condemnation Specialty Committee of the North Carolina State Ba
  • Member, North Carolina Mining Commission
  • Board of Directors, Owners’ Counsel of America (2014-2017)

Eminent Domain North Carolina | Cranfill, Sumner & Hartzog | CSH from TeamMultiverse on Vimeo.

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