Takings for Road Construction

As we discussed in the Takings for Public Use article, the construction or improvement of roads and highways is a prime example of an eminent domain condemnation for a public use. However, NCDOT takings are not limited to just roads – they could be railroads or new power line poles. In this type of taking, the government entity you will be dealing with is the North Carolina Department of Transportation (NCDOT).

Generally, if your property is condemned, you are given the right to dispute the taking and the right to be paid a fair price for your land. When NCDOT is seeking to condemn your property for a road or highway use, they additionally have to prove that the taking is “necessary.” That means that if you own 5 acres of property, NCDOT should not need to condemn all 5 acres just to add one lane to the road that runs adjacent to your property. NCDOT takings usually fall into one of three categories:

  • Your entire property will be condemned because the state wants to construct a road, highway, or railroad that would run directly through your property.
  • Only part of your property will be condemned, usually at the edges, to allow for a road to be paved or widened. If you own a large parcel, you might still only have a partial condemnation for NCDOT to cut a road or erect utility poles.
  • Your property will only be temporarily taken as it is within the construction zone of a new road, highway or railroad, but once the project is done, your property will not be permanently affected.

In the case of your land being used to erect above or below ground utilities, you may also be required to grant the government an easement, or a continuing right of way, so that they can get to and from the utility should repairs be needed.

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In all of these situations, you have the right to be fairly compensated for the temporary or permanent loss of your land. “Fair compensation” under the law means the loss in fair market value (FMV) of your property. This is simple in the case of a complete condemnation, as you will be whole the FMV of your property.

However, in the case of a partial taking, the appraisal should take into consideration the value of the property you are losing as well as how much the value of your remaining property will suffer (depreciate) as a result of the loss. For example, if you live on a quiet two-lane road, and NCDOT takes part of your property to make that two-lane road into a six-lane interstate, your remaining property value is likely to decrease substantially once that highway is completed. If the taking is temporary, you will be compensated for the use of your property and any permanent damage or depreciation in value caused by the temporary use of the property.

One thing to note - If the North Carolina Department of Transportation files a condemnation action on your property in order to build or improve a road or highway, your property becomes their property the moment that action is filed. It is called a quick-take condemnation. The North Carolina Department of Transportation gets immediate rights to the property taken and you, the landowner, gets immediate rights in the funds that the DOT claims as just compensation and the ability to pursue further funds as just compensation.