Eminent Domain

Eminent Domain and Condemnation

Eminent Domain is the right of governments to seize private property in the public interest. Under the 5th amendment, governments may exercise this right against a landowner's will, provided the taking is for a "public use" and the government provides "just compensation." Just compensation includes the fair market value of the property as well as any indirect or hidden damage to the value of any remaining parcels ("severance damages").

Historically, "public use" meant projects intended benefit the community as a whole, such as highways, schools, parks, and public works projects. In addition, governments have exercised eminent domain rights to eliminate "blight" through redevelopment.

The definition of "public use" was greatly expanded by the Supreme Court in 2005, however. In Kelo vs. New London, Conn., the Court recognized a municipality's right to condemn property for use by a private developer for economic development reasons. In the Kelo case, seized property was sold to a private developer to build offices, a health club, and a hotel in order to create jobs and raise municipal tax revenue.

When a government exercises eminent domain rights, it does so through a process called condemnation. While the word "condemned" may carry certain negative implications, in the context of eminent domain such a term is used regardless of the physical condition of the property.

Your Legal Rights

Though eminent domain can be a frightening proposition, property owners are not powerless. There are many ways the Law Office of James Scott Farrin can help.

Like any buyer of real estate, the government has an incentive to purchase property for the lowest cost possible. "Just compensation," however, has been interpreted to require that the government pay Fair Market Value (FMR) on taken property based on professional real estate appraisals. Fair Market Value (FMR) is based not on the property's current use, but on its "highest and best use." For example, property currently used as a family farm could be sold for high-end commercial development.

The government may claim there is a lower "highest and best use of the property" than is the actual case. The difference in compensation can be substantial. Our lawyers may be able to help you negotiate a fair settlement.

The government may also understate severance damages, or doesn't recognize their existence. Examples of severance damages include:

  • The loss of a business' street frontage that affects its ability to display wares and attract customers.
  • The loss of a parcel that was complimentary to a remaining one (i.e., a storage facility that served the primary business).
  • The taking of one parcel that leaves a remaining one "nonconforming" under zoning codes, requiring special permission to make substantial changes.
  • The seizure of property that compromises access to any remaining parcels.
  • The taking of parking areas critical to remaining business parcels.
  • The taking of land that results in the division of the property into smaller parcels that may not be used efficiently.

Triangle Eminent Domain Threats

The Triangle Transit Authority (TTA) has already acquired, or is in the process of acquiring, nearly 240 acres of land along a proposed rail line designed to connect rail stops over 28 miles through Durham, Raleigh and Research Triangle Park. To pay for the project, the TTA has entered into a partnership with a developer that plans to construct residences, stores, and offices near rail stops to increase public demand for the commuter trains. Construction of the train system would be financed through local tax increases from these new communities.

In 2006, TTA Interim Director Wib Gulley told Carolina Journal Online that the TTA has no intention of taking property for private commercial development. However, it might have the legal right to do so. Under North Carolina General Statute 160A-601, a "public transportation system" is a combination of real and personal property "without limitation" that is in any way "used or useful for the purposes of public transportation." Eminent Domain is also likely to be a factor in the $850 million, 18.8 mile Triangle Expressway, Western Wake Freeway, and Triangle Parkway projects planned throughout Wake County.

If the government is threatening to take away your land and you feel you are not being treated fairly, you may need North Carolina eminent domain lawyer on your side. You may need the Law Offices of James Scott Farrin. Contact us and we'll see if we can help. There is no charge for the initial conversation.

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