214 N.C. App. 307
N.C. Ct. App.2011Background
- DOT sought to condemn 1.80 acres and 3,639 sq ft of a temporary slope easement next to the NC 87 Bypass in Bladen County; land comprised part of a larger 9.47-acre tract, leaving two parcels after takings (6.85 acres and 0.832 acres).
- $41,600 was deposited with the clerk as just compensation for the taking by DOT.
- Only some defendants answered; those answering asserted an inverse condemnation claim for the remaining 0.832-acre parcel, contending the taking substantially reduced its value and usability.
- Affidavits from Bobby Dowless, Israel Cromartie, and Dale Holland claim the 0.832-acre parcel is unmarketable, cannot be developed, and was substantially damaged (100% of value).
- On November 30, 2009, the superior court ordered an inverse condemnation of the 0.832-acre parcel; DOT moved to dismiss the counterclaims, which the court denied.
- The North Carolina Court of Appeals ultimately affirmed the denial of the motion to dismiss, but reversed the inverse condemnation finding and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants' inverse-condemnation counterclaim was properly allowed in ongoing proceedings | DOT contends §136-111 limits inverse condemnation filings unless no action is filed | Defendants allege a further taking may be pursued within ongoing proceedings | Yes; counterclaim proper in ongoing action |
| Whether defendants complied with §136-111's notice and memorandum requirements | Defendants allegedly failed to file memorandum contemporaneously | Memorandum of action filed and parties on notice; substantial compliance | Yes; substantial compliance; memorandum sufficient |
| Whether the affidavits admitted at the hearing were properly admissible and relied upon | Affidavits are hearsay and lacked proper Rule 803(24) procedure | Affidavits may be admissible; required procedural safeguards were not followed | Affidavits improperly admitted and, even if admitted, not competent evidence to sustain findings |
| Whether the trial court's findings support a constitutional inverse condemnation | Taking was proper and limited to the parcel; no inverse condemnation | The 0.832-acre parcel was substantially impaired and not marketable | The court erred in finding inverse condemnation; reversed and remanded |
Key Cases Cited
- Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982) (actual interference must reduce market value; not mere incidental impact)
- City of Greensboro v. Pearce, 121 N.C.App. 582, 468 S.E.2d 416 (1996) (inverse condemnation during ongoing action; economy favors consolidation)
- Lea Co. v. North Carolina Bd. of Transp., 308 N.C. 603, 304 S.E.2d 164 (1983) (inverse condemnation procedure and claims within proceedings)
- Adams Outdoor Advertising v. N.C. Dept. of Transportation, 112 N.C.App. 120, 434 S.E.2d 666 (1993) (relevance of takings principles and evidence considerations)
- State Highway Comm'n v. Farm Equip. Co., 281 N.C. 459, 189 S.E.2d 272 (1972) (scope and limits of eminent domain take)