THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, August 5, 1995 TAG: 9508030387
SECTION: REAL ESTATE WEEKLY PAGE: 14 EDITION: FINAL
COLUMN: ABOUT THE OUTER BANKS
SOURCE: Chris Kidder
LENGTH: Long : 102 lines
Last week, we looked at the historical origins of eminent domain, the power of a public body to take private property, against the owner's will, for public use. Public use can include just about anything, including cable television lines, playgrounds, airports, microwave communication towers and cemeteries.
This week, we're looking at how property owners can respond to the news their property is being taken and what their chances are for success.
As promised in the U.S. Constitution and outlined in the state statutes, land cannot be taken - by the federal government, the state, the county or other local governments and their agents - without due process of law and full compensation for its fair market value.
``Due process'' in eminent domain falls short of what most property owners might expect.
The procedure for taking property is called condemnation, a term most of us relate to unsafe or unfit structures. But condemnation under eminent domain usually involves unimproved land or land where safe and sound homes have been built. All that's required is for the property to be needed to advance the public good.
According to North Carolina General Statute 40A, condemners (public officials) may survey, appraise or perform other evaluations of property before notifying property owners of their interest. They may discuss the property in private or public meetings. They can include it in site plans and other proposals. All without advising owners that the property is being considered for public use.
There are only two requirements in G.S.40A about notifying property owners of their impending loss. They must be notified at least 30 days in advance of filing papers with the court and notification must be given in writing to all owners of record and to any current tenants.
Unlike many government actions, condemnation under eminent domain does not require any public notice or advertisement before the fact.
One could argue that the public interest is best served by a certain amount of secrecy in these cases. Condemners can act unencumbered by opposition from individual property owners.
Without time to mount defenses, individuals can't control compensation. It all saves ``the public'' money.
Property owners who find out about condemnation plans before the legal wheels start turning have a definite advantage. Once the courts are involved, the law favors the condemner.
Property owners have 120 days to respond once condemnation papers have been filed in all but ``quick take'' cases. Since the 1981 revisions to the state's General Statutes, ``quick take'' - the practice of ``take now, litigate later'' - has been limited, in most cases, to the Department of Transportation and its need for road rights-of-way.
Allowing owners 120 days to respond is more show than substance: the courts can only help in matters of compensation. When the statute has been strictly followed, there's no legal remedy for property owners who don't want their land condemned for public use, says Ben F. Loeb Jr., professor of public law at UNC-Chapel Hill.
``Hire a lawyer immediately but concentrate on compensation,'' Loeb advises.
``Trying to stop development is a lost cause. The best you can hope for is to get as much compensation as you are entitled to.''
Compensation is limited by law to fair market value, a price generally accepted to be what a property would bring on an open market allowing a reasonable period of time to find an informed buyer.
It rarely equals assessed tax value, although assessed values are what property owners are usually offered when condemnation proceedings begin.
Condemners are not authorized to pay moving expenses or costs associated with replacing the property.
Most condemnation cases involve only a portion of a property (a few feet of frontage for utility lines or widening a road, for example).
In these cases, owners can be compensated for losses to the value of remaining property adversely affected by the taking.
When possession, not money, is the issue, property owners had best look outside the court system, Loeb says.
``Look for a political solution. Raise public sympathy.''
Loeb's advice worked in Dare County recently when homeowners discovered their land was included on a site plan for a proposed county office complex.
For two weeks, property owners collected signatures on petitions asking for an accounting of the county's planning procedure that proved taking their property was in the best interest of the community.
As it turned out, the group had found the project's Achilles heel: the planning process seemed flawed to more than 800 county residents who signed their petitions. The county stopped work on the project.
The homeowners were lucky, Loeb says. Although the group was willing to hire an attorney to fight the county's plan, there was little chance for legal victory.
For Ginny Zdanski, one of the homeowners who stood to lose her family home and land that had been in her family for three generations, her brush with eminent domain was an unsettling one.
``It's not a good feeling if you're a landowner,'' she says.
The decision to take her land could be made ``off the record, at the whim of politicians,'' Zdanski says.
``It scares me that there was no way to protect ourselves.'' MEMO: Send comments and questions to Chris Kidder at P.O. Box 10, Nags Head,
N.C. 27959.
by CNB