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When most people think of the Fifth Amendment to the United States Constitution, they think of criminal prosecution: Someone “pleads the Fifth” to avoid self-incrimination. They may also think of the constitutional right to avoid double jeopardy—being tried twice for the same crime. However, included in the Fifth Amendment is a provision that protects private property owners from having their land seized for public use without proper compensation.

The power of federal and local government agencies to take private property and convert it to public use is called “eminent domain.” When a property owner is notified that a government agency is going to take some or all of the private property for public use—a road, a park, or a railroad for example—it can be extremely frustrating for the owner who will be deprived of the use of his or her own property.

Consulting a Raleigh eminent domain lawyer as quickly as possible can help ensure that your constitutional rights are protected, that your property is not appropriated against the law, and that the value of your property is adequately assessed and compensated.

What is Eminent Domain?

As stated earlier, eminent domain is the power granted by state and federal law to government agencies and other specified public and private developers to take a person’s private property and convert it to public use. Under the United States Constitution, federal agencies may not take private property for public use “without just compensation” (Fifth Amendment), and states may not “deprive any person of life, liberty, or property, without due process of law” (Fourteenth Amendment).

Because of the power of eminent domain granted by both federal law and North Carolina state law, certain agencies and organizations can convert private property to public use by providing “just compensation.” The agency may offer to purchase the private property, but if a property owner refuses to sell, the agency then exercises the power of eminent domain by beginning the land condemnation process.

The terms “eminent domain” and “land condemnation” are often used interchangeably; however, eminent domain is the power to take private land and convert it to public use, and land condemnation is the process by which the land is expropriated. In the land condemnation process, the government or authorized agency will declare the need for public use of the property, appraise or value the property to determine “just compensation,” and begin building on the property or otherwise converting it to public use, through widening a road or some other type of conversion.

It is important to consult an Raleigh area eminent domain attorney early in the process to make sure that the government or agency actually has a right to exercise eminent domain over the property for the intended purpose, that the property’s value is appraised appropriately, and that the constitutional and statutory rights of the property owner are protected every step of the way.

Exercising Eminent Domain to Claim Private Property

Federal law gives government agencies the power of eminent domain over private property as long at the property is converted to public use, the property owner is provided fair compensation for being deprived of the use of his or her land, and the property owner is given due process for the seizure of the property.

In addition to government agencies, certain other entities are given the power of eminent domain under North Carolina law. These public and private entities, known as “condemnors,” are listed in N.C. Gen. Stat. § 40A-3 and include the following:

  • Corporations, agencies, or individuals constructing public works, including railroads, public sewage systems, power generating facilities, electric power lines, telephone lines, pipelines, bridges, public water supplies, etc.
  • School boards requiring the use of the land to obtain an adequate water supply
  • Franchised motor vehicle carriers or union bus station companies for the purpose of constructing and operating a union bus station
  • Railroad companies

Local public agencies (city and county governments) are given the power of eminent domain for the following specified purposes, including the following:

  • Opening, widening, extending or improving sidewalks and roads;
  • Building or improving parks and recreation areas;
  • Establishing or improving storm sewer and drainage systems and sewer or septic systems;
  • Establishing or improving cemeteries, hospitals, or libraries;
  • Building, enlarging, or improving public buildings including city hall, fire stations, municipal and county jails, and government agency office buildings
  • Acquiring historical property
  • Improving drainage programs and preventing the obstruction of flow of natural waterways

When a private or public condemnor attempts to obtain private property, the expropriation must be by an entity granted the power of eminent domain to meet a specified public need.

Determination of “Just Compensation” For Private Property

North Carolina law determines “just compensation” for a property owner whose land is condemned and expropriated under the power of eminent domain.

According to N.C. Gen. Stat. § 40A-63, the measure of compensation is generally the fair market value immediately prior to filing the eminent domain and land condemnation petition. However, if only a portion of the tract is taken or used, the property owner is to receive as compensation the greater of the fair market value of the property taken or the difference between the property value prior to and after the taking. Other consideration is given to the removal of resources, such as timber or buildings, and the cost of removal of these resources. A eminent domain attorney in Raleigh can help sure that all these calculations and considerations are being made properly and fairly.

What to do After Receiving Notice of Eminent Domain

If a public or private condemnor claims your property under the power of eminent domain, contact an Raleigh eminent domain lawyer who can help you fight unconstitutional land condemnation and can help you avoid mistakes that could affect just compensation for your property if it is expropriated under eminent domain. Call today for help.

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