What Are NC Chapter 40A and Chapter 136 Takings?
Eminent domain is the power of the government to take your private property for a public purpose; these takings will interfere with your private use and enjoyment of the land. The process of taking land is called condemnation.
In North Carolina, the power of eminent domain is outlined in Chapter 40A and Chapter 136 of the state statutes. Chapter 40A applies to most municipalities, counties, and public utilities. Chapter 136 primarily applies to state agencies such as the North Carolina Department of Transportation.
Each chapter outlines rules for the taking of private property for public use, as well as what compensation is required. Each has different rules for who can condemn property, and what damages are required to be paid.
What Is the Chapter 40A Statute in North Carolina?
Government authority for condemnation extends all the way down to local county and municipal officials, as set forth in G.S. 40A.
Local public condemnors can exercise eminent domain power for uses such as construction and improvement of:
- Hospital facilities
- Drainage systems
- Public beach parking
- And more
Eminent domain power may also be used to acquire and preserve an historic site.
The right of condemnation extends to private entities under certain conditions. Procedures and limits for how private condemnors may operate are established by 40A.
Private condemnors may exercise eminent domain power for certain “public use and benefit” activities, including:
- Corporations and companies building public utilities such as railroads, power substations, sewage systems, bus stations, etc.
- Schools trying to obtain a pure and adequate water supply.
What Special Provisions are in 40A for Public Condemnors?
Public condemnors must file a condemnation action with the court in every county where the property they want to take is located. A monetary deposit for “just compensation” is made with the court for the landowner. For certain public purposes, the condemnor’s right to possession is immediate once the paperwork is filed and the money is deposited.
Just compensation is the difference between the value of your property before the taking and the value of your property after the taking, or the value of the portion taken. The law allows for the initial deposit to be increased at any point during pending proceedings.
You normally have 120 days from when you are served with the lawsuit by the condemnor to file an initial response, an “Answer” to the lawsuit contesting the amount of compensation deposited. If you fail to answer within the applicable time period, you may forfeit your right to contest that the amount deposited was insufficient.
What Are Special Provisions in 40A for Private Condemnors?
Article 2 of the law lays out procedures for how private entities may condemn your property. First, the condemnor files a petition with the court in each county where the property is located. The legal paperwork is then “served” on the property owners.
The next step is the appointment of impartial commissioners to value the taking. The commissioners decide what constitutes “just compensation” for the taking of your land. A landowner may be able to get their compensation increased by providing evidence and making arguments to the commissioners showing why the condemnor’s proposed compensation is insufficient.
Once the commissioners make their final recommendations on just compensation and the money is deposited with the court, landowners are divested of their property, and title transfers to the condemning authority.
Both property owners and the government agency initiating the commissioners’ hearing may appeal this decision within 10 days. Once appealed, the case will proceed in superior court, similarly to a case filed under Chapter 136.
Read More: Fighting for Just Compensation
What Is the Chapter 136 Statute in North Carolina?
Chapter 136 specifies eminent domain powers for the North Carolina Department of Transportation (NCDOT). Article 9 of Section 136 sets forth condemnation procedures.
When the NCDOT files a complaint and deposits estimated just compensation with the court, title is immediately vested in the NCDOT. This is known as a “quick take” procedure.
The fact that the title vests with the NCDOT upon filing means that you do not have to agree with their compensation offer, or even receive notification before the taking can move forward. You’ll have a limited amount of time after the process has begun to object to the NCDOT’s calculation of just compensation.
Please note that NCDOT doesn’t always file paperwork before doing something that may be considered a taking. Sometimes their construction and development activities can create a taking, even where the taking did not occur in the usual way with court filings and an initial deposit. This is called an inverse condemnation.
Seeking Just Compensation
While the NCDOT may increase their compensation at any time, the original deposit of compensation allows the DOT to take ownership of the land. The initial deposit may be withdrawn at any point by the owner – even as they continue to fight for additional compensation. The landowner has 12 months from when the condemnation action was served upon the landowner to file an official response with the court claiming they have not received adequate just compensation.
If you’re feeling bulldozed and need to fight for maximum compensation, contact us to see how we can help.
How Do Chapters 40A and 136 Impact Land Takings?
These two statutes put the landowner at a disadvantage. Eminent domain is a broad and awesome power, and there is a great imbalance of power between the government or condemning agencies and property owners. For example, both statutes allow for the right of entry even prior to condemnation. The condemning authority can enter your property to make surveys, examine your property, or conduct an appraisal – before filing a petition or depositing any compensation for the property.
The chapters are concerned with a landowner’s compensation, but not their comfort. Whoever comes for your property, they don’t necessarily need to try and negotiate with you before condemning your property. They may simply give you notice that condemnation proceedings have been initiated against your property.
How Can an Eminent Domain Lawyer Help You?
The statutes favor the condemnors, but you do have rights as a property owner. An eminent domain lawyer can inform you of your rights. For example, while the condemnor has a right of entry prior to condemnation, they are not permitted to enter any structures.
Importantly, you are generally entitled to compensation for any physical damages that might arise from such entry. The NCDOT’s powers do not mean you’re completely at their mercy, but you want an experienced advocate to help you try to level the playing field.
There are many federal and state rules regulating the power of eminent domain. Sometimes, those laws can be interpreted differently. Sometimes, they can be abused. Get help from a qualified North Carolina eminent domain lawyer to learn what you can do to try to protect your rights.
Our “Second Check” Contingency Fee Arrangement
You have a right to just compensation for your property, so fight for it. The first check a condemning agency, like the NCDOT, deposits is hopefully just the start. While you keep that check free and clear, we’ll fight to increase your compensation.
We have a network of professionals to draw on as needed in determining the true value of your land, including:
- Real estate brokers
- Land planners
You pay nothing to us up front. Even the case evaluation is free. If we are unable to increase your compensation, you owe us nothing. If we are successful in getting you a “second check,” our attorney’s fee is a percentage of only that extra check.
Call the North Carolina Eminent Domain Law Firm at 1-877-393-4990 for a free evaluation of your case and to find out if one of our North Carolina condemnation attorneys can help you. Four of them are former NCDOT attorneys – a rarity – using their knowledge from the other side to fight for you.