209 N.C. App. 208
N.C. Ct. App.2011Background
- Transcontinental Pipeline carries natural gas from the Gulf to the U.S. northeast; Monroe decides to connect directly and acquire land through Cabarrus County.
- Midland enters interlocal agreements with Monroe and Mooresville; Midland to obtain easements, rights of way, and property for the Pipeline in Cabarrus County.
- Interlocal Agreement grants Monroe a perpetual right to use easements and Midland a tap on the Pipeline to serve Midland’s citizens; Midland capacity up to 5,000 decatherms per day at discount.
- Midland and Mooresville enter a Joint Venture with PSNC; Midland must assign rights in easements to PSNC; PSNC has right of first refusal for Midland customers.
- When voluntary negotiations fail, Midland condemns properties in Cabarrus County; fifteen separate condemnation actions consolidated in Cabarrus County Superior Court; trial court grants Midland summary judgment and denial of injunctive relief.
- Property Owners appeal, challenging Midland’s power to condemn, with related requests for injunctive relief; mootness debated but court finds potential relief remains available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the appeal moot | Midland argues moot since pipeline construction is complete. | Midland contends relief remains available (cost recovery, title return). | Appeal not moot; relief available if success. |
| Validity of condemnations under 160A-240.1 and 40A-3 | Condemnations authorized for city use and public utility purposes. | Condemnations lack public use/benefit or improper private influence. | Condemnations valid; public use and benefit established. |
| Whether Midland lacked a plan to furnish gas services | No current plan to provide gas to Midland or citizens undermines use. | Broad statutory interpretation allows potential use and future service; tap rights indicate plan. | Broad interpretation approved; potential use suffices. |
| Condominations are for a private rather than public purpose | PSNC ownership/easements show private benefit. | Public benefits (growth, service expansion) prevail; incidental private interests permissible. | Not solely private; public benefits predominate. |
| Standing to challenge under § 153A-15 | Property Owners can challenge county consents. | Only a affected county’s Board of Commissioners has standing. | Property Owners lack standing; dismissal for lack of jurisdiction. |
Key Cases Cited
- State ex rel. Utils. Comm'n v. Southern Bell Tel. & Tel. Co., 289 N.C. 286 (1976) (judicial notice of public utilities orders)
- State ex rel. Comm'r of Ins. v. North Carolina Auto. Rate Admin Office, 293 N.C. 365 (1977) (judicial notice of regulatory filings)
- Carolina Tel. & Tel. Co. v. McLeod, 321 N.C. 426 (1989) (public use and public benefit tests in eminent domain)
- Stout v. City of Durham, 121 N.C.App. 716 (1996) (public use vs. public benefit in condemnation)
- County of Johnston v. City of Wilson, 136 N.C.App. 775 (2000) (standing of counties under § 153A-15; real party in interest)
- Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336 (2001) (de novo review for eminent domain questions other than damages)