City of Burlington v. Isley Place Condominium Ass'n

105 N.C. App. 713 | N.C. Ct. App. | 1992

WALKER, Judge.

G.S. 40A-3 provides in pertinent part:

(b) Local Public Condemnors. — For the public use or benefit, the governing body of each municipality or county shall possess the power of eminent domain and may acquire by purchase, gift or condemnation any property, either inside or outside its boundaries, for the following purposes.

(1) Opening, widening, extending, or improving roads, streets, alleys, and sidewalks. The authority contained in this subsection is in addition to the authority to acquire rights-of-way for streets, sidewalks and highways under Article 9 of Chapter 136.

The City Council thereby acted pursuant to its authority when adopting resolutions authorizing condemnation to acquire certain property in order to extend an existing street.

In City of Charlotte v. McNeely, 281 N.C. 684, 690, 190 S.E.2d 179, 184 (1972), our Supreme Court stated:

The taking of property to construct or enlarge a public street is, as a matter of law, a taking for a public purpose. The public purpose being established, “the question as to the necessity or expediency of devoting the property to the public use is one which must be left to the legislative department.” . . . Thus, the advisability of widening a public street is a matter within the discretion of a city’s governing body. (Citation omitted).

The City Council’s decision that it was necessary and in the public interest to condemn this particular property for the public purpose of extending an existing street was therefore within its discretion.

Insofar as the City Council acted within its scope of authority on a subject matter afforded legislative discretion the burden shifted to the property owners to refute the City’s showing of a public purpose. The only showing in either action in support of the summary judgment motions was the affidavit of Stephen I. Moore, Jr., which was to the effect that Isley Place was being extended to serve only two lots which already had other access and that the City did not intend to construct any improvements upon the area acquired by exercise of eminent domain. This evidence was insufficient to overcome the City’s determination that the extension of Isley Place was for the public use and benefit. Since neither party challenged the vehicle of summary judgment as an inappropriate means through which to establish public purpose, summary judgment pursuant to Rule 56, N.C. Rules of Civil Procedure, should have been entered for plaintiff and defendants’ motions for summary judgment should have been denied.

Reversed.

Chief Judge HEDRICK and Judge ORR concur.