THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, May 6, 1995 TAG: 9505060301
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY PAUL SOUTH, STAFF WRITER
LENGTH: Medium: 51 lines
Cape Hatteras School has moved a step closer to new playing fields, thanks to a ruling by the North Carolina Court of Appeals.
A three-judge panel in Raleigh this week unanimously upheld a 1994 Dare County Superior Court ruling that held that the Dare County Board of Education has the right to condemn land for the use and construction of new playing fields at the Buxton facilities.
The defendants, owners of the condemned property, argued that the board did not have the right, since the property was taken as a means to replace wetlands damaged by construction of the playing fields, and not primarily to construct a school facility. Therefore, they argued, the board exercised an improper use of eminent domain.
An attorney for the owners said an appeal to the North Carolina Supreme Court is likely.
Under North Carolina law, eminent domain is defined as ``the power of the state or some agency authorized by it to take or damage private property for a public purpose upon payment of just compensation.''
The court held that as long as the size of a site needed for construction does not exceed 50 acres, local school boards have discretion in determining what constitutes a suitable and adequate site for new construction. Therefore the Dare County board had the authority to condemn the lots.
The appeals panel also dismissed the property owners' contention that the choice of the property to be condemned was done in an arbitrary fashion.
The court said that the board considered 41 sites, and that in order to obtain permits for construction on a wetlands area from the U.S. Army Corps of Engineers and the North Carolina Division of Coastal Management, the school district was required to replace the acre of wetlands that would be lost with the construction of the playing fields.
Dare County School Superintendent Leon Holleman praised the ruling.
``This has been a long process,'' Holleman said. ``But any time we move closer to playing fields for the children of Hatteras Island, it's a great thing.''
However, Robert O'Donnell, an attorney for the property owners, said the appeals panel erred in its interpretation of the eminent domain statute.
``Our view is that the law is clear that government can only take property that is needed for construction of its athletic fields,'' O'Donnell said. ``To allow that government can take private property in such a way is abhorrent to everything this country stands for.'' by CNB