230 N.C. App. 468
N.C. Ct. App.2013Background
- DOT condemned 0.67 acre from Rescue Lane for Brawley School Road widening; Rescue Lane was a private road intersecting Brawley School Road.
- Widening converted Rescue Lane portion to a state-maintained road; medians added on Brawley School Road, restricting access from Rescue Lane.
- Southern Properties sought and obtained a driveway permit for its adjacent property approximately 18 months after taking; permit not part of the highway project.
- Trial court held that the driveway permit and its traffic effects were a police-power consequence and not a compensable taking; evidence of the permit excluded from damages trial.
- Defendants challenged the section 108 hearing and the exclusion of driveway-permit evidence; appellate review affirmed the order excluding such evidence and upheld the 108 hearing ruling.
- Court affirmed that the issue is whether increased traffic on a private road taken for public use is compensable; court analyzed police power vs. eminent domain and distinguished access regulation from compensation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 108 hearing was proper to decide police-power vs. taking questions. | DOT argues §136-108 authorizes such issues. | Defendants contend issues related to damages were outside §108 scope. | 108 hearing properly addressed police-power vs. taking question. |
| Whether evidence of increased Rescue Lane traffic from the Southern Properties driveway permit is admissible at damages trial. | Increased traffic should be considered as part of damages. | Traffic increases from police-power actions are noncompensable. | Trial court did not error in excluding driveway-permit traffic effects from damages trial. |
Key Cases Cited
- Barnes v. Highway Comm’n, 257 N.C. 507 (1962) (police power regulation; no compensation for traffic-flow regulation when access remains)
- N.C. State Highway Comm’n v. Nuckles, 271 N.C. 1 (1967) (trial court may determine whether an interest is compensable; §108 scope authority)
- Haymore v. N.C. State Highway Comm’n, 14 N.C. App. 691 (1972) (driveway permitting as police-power necessity to assure safe access)
- Board of Transp. v. Terminal Warehouse Corp., 300 N.C. 700 (1980) (access regulation vs. taking; reasonable limitations not compensable)
- In re Schiphof, 192 N.C. App. 696 (2008) (uncontested findings binding on appeal; standard of review)