The power of the government to acquire private property for public use is known as the right of eminent domain, or more commonly, condemnation. Traditionally the right of eminent domain is referred to as "the king’s right". This reference derived from doctrine in common law wherein all real property within the realm belonged to the king and a private citizen was permitted to hold a particular parcel only at the sufferance of the crown. A new principle exists in today’s governmental taking of private land for public use: the requirement that the owner be paid "just compensation" for the taking. The Fifth Amendment to the United States Constitution, which reads, in part, as follows, created this principle:

No person shall be…. deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation (emphasis added).

While elements of eminent domain proceedings vary from state to state, the term "just compensation" is almost universally defined as the difference between the fair market value of the property before the taking and the fair market value of the property after the taking. For specifics on the law and procedures in North Carolina please refer to Chapter 40A of the General Statutes of North Carolina. For a closer look at how one local public agency uses condemnation authority within their easement acquisition program, read on.

The Metropolitan Sewerage District of Buncombe County, North Carolina (the "District") was formed in 1962 to address major public health issues caused by the direct discharge of untreated sewage into the French Broad River and its tributaries. Prior to the construction of the District’s 25 million-gallon per day sewage treatment plant in 1967, there were no public wastewater treatment facilities in Buncombe County. Initially, there were 19 miles of interceptor sewers (large trunk lines) built from the treatment plant to connect existing collector sewer systems (smaller feed lines) lying throughout 16 separate municipalities and political subdivisions within the District’s service area. From 1967 to 1990 the District’s responsibilities were limited to the operation and maintenance of the treatment plant and the interceptor sewers.

Under the North Carolina Metropolitan Sewerage Districts Act, the District is authorized, among other things, to "acquire, lease, construct, reconstruct, improve, extend, enlarge, equip, repair, maintain, and operate any sewerage system or part thereof … within or without the District". In July 1990, after ten years of negotiations, these 16 political entities transferred to the District the collector sewer systems located within their boundaries that had previously been owned, operated and maintained separately by them. The purpose and result of this transaction was to create a consolidated sewerage system in the urbanized portion of Buncombe County with ownership of both the treatment and collection components of the system and the responsibility for their operation, maintenance and capital improvements centralized with the District.

The system inherited by the District was old, (many portions were built in the 1920’s) undersized and in dilapidated condition due to lack of adequate maintenance. Thus, in 1990, the District undertook the massive task of rehabilitating over 1,000 miles of collection sewer lines that serve more than 80% of the population of Buncombe County.

In 1991 the District established a Right of Way Section and began acquisition of the necessary easements for the rehabilitation of the system. The District invokes its power of eminent domain only after other negotiation attempts have been unsuccessful and an impasse is reached with the landowner. Right of Way procedures require a minimum of three significant contacts with each affected landowner. In most negotiations an average of five or more significant contacts is the norm. Right of Way agents are responsible to thoroughly explain all aspects of the project and its effect on the property to the landowner. Then the process of answering questions and resolving any issues of concern to the landowner takes place. If, after all contacts and negotiation attempts have been unsuccessful, the process of condemnation is begun.

An independent appraiser appraises the area of taking. Almost always the taking for a sewer easement is a partial taking, rather than an entire property. Depending upon pipe size and trench depth, the District has standardized easement widths from 20 feet to 80 feet for the length of the pipe across the affected property. The appraiser prepares a report offering his opinion of the fair market value of the land taken. This fair market value (the damages for the taking) is then offered to the landowner. If the landowner does not agree with this amount, then the District will proceed with condemnation.

Not less than 30 days prior to the filing of the condemnation action itself, a notice of condemnation is prepared and sent to the landowner(s) and lienholder(s). The notice must state the purpose for which the property is being condemned, include a general description of the property to be taken, the amount of just compensation (based on the appraisal) and the date the District intends to file the condemnation action.

After the required 30-day Notice, the District institutes a civil action to condemn the property by filing with the superior court of Buncombe County a complaint containing a declaration of taking that the property described is taken for the use of a public sewer line. The complaint includes the items appearing in the notice and concludes with a request that the court determine just compensation in accordance with the law.

A deposit of the amount of just compensation accompanies the filing of the complaint with the Clerk of Superior Court. Upon the filing of the complaint, the court serves a summons, copy of the complaint, and notice of the deposit to each landowner of the property. Once filed, the right to immediate possession of the property is vested with the District. This allows the District to proceed with the construction of the sewer line and address the treat to public health while waiting for the judicial process to progress.

At any time while the condemnation is pending, the District may amend the complaint and may increase the amount of the deposit with the court. The landowner has the right to withdraw this deposit at anytime without prejudice to further proceedings in the case to determine just compensation.

Within 120 days after the complaint is filed with the court, the landowner must file an answer to the declaration of taking and notice of deposit. The answer must contain admissions or denials of the allegations of the complaint, the names, addresses and interest of the persons filing the answer, any defenses that are pertinent to the action and a request that the court determine the amount of just compensation. If the landowner fails to file an answer within 120 days, that constitutes an admission that the amount deposited is just compensation and is a waiver of any further court proceeding to determine just compensation. In such an event the judge enters a final judgment in the amount deposited and orders disbursement of the deposit to the landowner.

Assuming the landowner does file an answer, the condemnation process proceeds with the court ordering a mediation hearing. In many court systems, the backlog of cases is so large that it takes years for them to make their way into the actual courtroom for the trial. In an attempt to reduce some of this backlog, civil courts in North Carolina mandate a mediation hearing to try and settle the issue without having to pursue a trial. This mediation hearing is held with a third party mediation counselor as the mediator between the District and the landowner. Many times the mediation counselor is an attorney. The hearing is usually an informal meeting held in the mediator’s offices with the District, the landowner and their respective attorneys present. An attempt is made to negotiate a settlement in the differences of opinion on the amount of just compensation. This mediation is non-binding. If a settlement is reached, the appropriate paperwork is filed with the court to disburse the previously deposited funds and cancel the trial. Then any additional settlement terms resulting from the mediation are addressed with the landowner. If a settlement is not reached, the condemnation process proceeds to trial where the jury and judge will determine just compensation.

Angel Banks has 10 years experience as manager of the right of way program for the Metropolitan Sewerage District of Buncombe County, Asheville, North Carolina. Ms. Banks holds her North Carolina Real Estate Broker’s license and worked in residential and commercial real estate for 5 years previous to her current position with MSD. An active International Right of Way Association member since 1991, Ms. Banks currently acts as Secretary for North and South Carolina Chapter 31.

Sources

Principles of Right of Way, International Right of Way Association, Publishers Press, Inc., Phoenix, 1990.