What is eminent domain?
So just what is eminent domain? I think it is best that we start with an example to illustrate and then move into a more in-depth look at what eminent domain includes.
A Residential Example of Eminent Domain
Let’s say you own an acre of land with a house on it. There is a two-lane road in front of the house but lately you’ve noticed a lot more traffic since that shopping center opened down the street. Well, you’re probably not the only one who has noticed this increase in traffic, the North Carolina Department of Transportation has noticed it too.
So one day you are out mowing your lawn and you see a sign being put up describing a “road widening project.” You go over and ask the official looking lady what is going on and she tells you that they are going to be turning this from a two-lane road to four lanes and will be taking part of your front yard to do it! You may start asking yourself if they are allowed to do this, and how they can go about taking your property for a road you don’t even want. This situation is what we would consider a typical example of eminent domain.
Eminent Domain Definition – General and Legal
At its most basic level, Eminent Domain is the ability of a government to take the private property of its citizens. This power has long been exercised by governments ranging from medieval kings of England to the modern day North Carolina General Assembly. Today, we see this power frequently being used to build roads, schools, sewer systems, natural gas pipelines, and many more public projects across our state.
According to North Carolina Court of Appeals, Eminent Domain means “the right of the [S]tate or of the person acting for the [S]tate to use, alienate, or destroy property of a citizen for the ends of public utility or necessity.” Griffith v. S. Ry. Co., 191 N.C. 84, 89, 131 S.E. 413, 416 (1926) “This power is one of the highest attributes of sovereignty, and the extent of its exercise is limited to the express terms or necessary implication of the statute delegating the power.” Kirby v. N. Carolina Dep’t of Transp., 239 N.C. App. 345, 356, 769 S.E.2d 218, 228 (2015), aff’d sub nom. Kirby v. N. Carolina Dep’t of Transportation, 368 N.C. 847, 786 S.E.2d 919 (2016).
What Eminent Domain Means to You as a Property Owner
The first question that property owners usually ask about Eminent Domain is, “Can the government take my property when I don’t want to sell it to them?” The short answer is yes. For centuries, it has been the legal right of a sovereign government to take the property of its citizens. Governments around the world have taken the private property of its citizens for a number of reasons ranging from public benefit to political favors. But, beginning with the Magna Carta in 1215 and expanded by our founding fathers in the U.S. Constitution, the individual citizen has been guaranteed certain property protections.
The Fifth Amendment of the United States Constitution states “…nor shall private property be taken for public use, without just compensation.” The two main questions that have come from this are:
- What is public use, and
- What is just compensation
Let’s go back to our example above. You own an acre of land and the DOT decides to put a road through it, is that public use? What about if they put a school on it? What about a shopping mall?
“Public Use” in Eminent Domain
Public use may sound pretty obvious, but it is actually quite nuanced. While we usually think of a road like I-40 or a state park as being available for the public to use, but public use can also refer to something such as a pro football stadium (See Mercedes-Benz Stadium, Atlanta, GA where the city demolished two churches and dozens of homes to create the stadium) or for economic re-development.
In the highly controversial Kelo v. City of New London (2005), the United States Supreme Court determined that the city could take the houses of private citizens and transfer the property to a private owner for development. They determined it was public use because there was a general public benefit of economic growth to the community. After this case, the houses were demolished and the developer was unable to find financing, leaving the property as an undeveloped empty lot. If there is any consolation to this, it is that the homeowners were required to be given just compensation for the property.
“Just Compensation” in Eminent Domain
But what does the phrase “just compensation” actually mean? What you think your property is worth and what the government thinks your property is worth are usually at odds with each other. So the real question becomes: what is your property legally worth.
Over the years, courts have determined the legal worth is the Fair Market Value or what a willing seller and a willing and knowledgeable buyer would agree upon as a fair price. As you may have noticed, that isn’t exactly a scientific formula. It’s important to note that, unfortunately, a jury can’t consider things like sentimental value, how long you’ve owned the property, or the headache the government is causing. They may, however, take into consideration your new roof, that you’ve redone your kitchen, or that you just replaced your septic system. This critical point is where you will find an experienced attorney to be most helpful.
Can I Keep the Government From Taking My Property?
You, like many other property owners, probably do not want to be forced to sell your property to the government. Unfortunately, from a legal standpoint there is not much property owners can do to prevent a government taking. According to the North Carolina Supreme Court, absent allegations of bad faith, malice, wantonness, or abuse of discretion on behalf of the condemnor, the propriety of a taking is not generally reviewable. Piedmont Triad Reg’l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 349, 543 S.E.2d 844, 849 (2001) In other words, the government has broad discretion to take the property unless the property owner can show that the government (or its agent) is being a bad actor.
Outside of extraordinary circumstances, the government will be allowed to take your property and the civil engineers who have designed the roadway (or other project) likely won’t make dramatic changes to accommodate your property. The area where you may best make a change is in how much you’re compensated. The government is trying to complete the project as cheaply as possible. You should not assume that the government has given you a fair offer. An eminent domain attorney can use experience and negotiation techniques to try to increase the government’s offer to a fair number, and, if a settlement cannot be reached, can represent you in litigation.
How Is Eminent Domain Different in North Carolina?
Interestingly, unlike almost every other state in the Union, the North Carolina Constitution does not expressly limit the eminent domain powers of the state government (although a bill to add an amendment to the 2020 election ballot did pass the state House of Representatives in February 2019). Don’t be too worried though, the North Carolina Supreme Court and the Court of Appeals have held that due process, just compensation, and public use are applicable to any property takings by the state.
The ability to own property is one of the fundamental rights the founders of our country and our state sought to protect by enumerating them in the Fifth Amendment of the Constitution. While the Fifth Amendment does not prevent the government from taking your land, it does provide that just compensation must be given.
We have seen the Supreme Court attempt to clarify what is required by the Fifth Amendment, with the most recent major ruling coming from Kelo in 2005. The most common point of contention between homeowners and the government is how much their property is worth. An experienced attorney such as those at the NC Eminent Domain Law Firm will be able to evaluate your case and help you fight for a truly fair amount.
What Should I Do if the Government Wants to Take My Property?
Contact an experienced eminent domain attorney. Just because the government has the right to take your property doesn’t mean you have to accept what they offer for it. In fact, that’s often an bad idea. Contact us right away or give us a call at 1-877-393-4990 for a free case evaluation.