GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

H	1 

HOUSE BILL 1238

Short Title:  Condemnation Law Modified.	(Public)

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Sponsors: Representative Nesbitt.

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Referred to:  Judiciary I.

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April 15, 1999

A BILL TO BE ENTITLED
AN ACT TO AMEND THE GENERAL STATUTES RELATING TO CONDEMNATION PROCEEDINGS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 40A-8 is amended by adding a new subsection to read:
"( d)	In addition to the other costs allowed under this Chapter, in any action brought under Article 2 or Article 3 of this Chapter in which the judgment, including a consent judgment, awarded to the owner exceeds the amount of the commissioners' report under G.S. 40A-27 or the deposit under G.S. 40A-41 by at least seven hundred dollars ($700.00) and at least twenty percent (20%), the court with jurisdiction over the action may, after making appropriate findings of fact, award each owner of the condemned property a sum that, in the opinion of the court based upon its findings of fact, will reimburse the owner for reasonable costs, disbursements, and expenses, including reasonable attorneys', appraisal, and engineering fees, in such amounts as the court shall in its discretion determine and allow."
Section 2.  G.S. 136-119 reads as rewritten:
"§ 136-119.  Costs and appeal.
(a)	The Department of Transportation shall pay all court costs taxed by the court. Either party shall have a right of appeal to the Supreme Court for errors of law committed in any proceedings provided for in this Article in the same manner as in any other civil actions and it shall not be necessary that an appeal bond be posted.
The court having jurisdiction of the condemnation action instituted by the Department of Transportation to acquire real property by condemnation shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for his reasonable cost, disbursements, and expenses, including reasonable attorney fees, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if (i)	the final judgment is that the Department of Transportation cannot acquire real property by condemnation; or (ii) the proceeding is abandoned by the Department of Transportation.
The judge rendering a judgment for the plaintiff in a proceeding brought under G.S. 136-111 awarding compensation for the taking of property, shall determine and award or allow to such plaintiff, as a part of such judgment, such sum as will in the opinion of the judge reimburse such plaintiff for his reasonable cost, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.
(b)	In addition to the other costs allowed under this Article, in any action brought under this Article in which the judgment, including a consent judgment, awarded to the owner exceeds the amount of the deposit under G.S. 136-103 by at least seven hundred dollars ($700.00) and at least twenty percent (20%), the court with jurisdiction over the action may, after making appropriate findings of fact, award each owner of the condemned property a sum that, in the opinion of the court based upon its findings of fact, will reimburse the owner for reasonable costs, disbursements, and expenses, including reasonable attorneys', appraisal, and engineering fees, in such amounts as the court shall in its discretion determine and allow."
Section 3.  G.S. 40A-64 reads as rewritten:
"§ 40A-64. Compensation for taking.
(a)	Except as provided in subsections (b) and (d), the measure of compensation for a taking of property is its fair market value.
(b)	If there is a taking of less than the entire tract, the measure of compensation is the greater of either (i) the amount by which the fair market value of the entire tract immediately before the taking exceeds the fair market value of the remainder immediately after the taking; or (ii) the fair market value of the property taken.
If the condemnor takes or restricts reasonable access to the remaining property during the construction of the project, or otherwise reasonably disrupts the use of the remaining property during construction, those are separately compensable elements of damage.
(c)	If the owner is to be allowed to remove any timber, building or other permanent improvement of fixtures from the property, the value thereof shall not be included in the compensation award, but the cost of removal shall be considered as an element to be compensated.
(d)	Damages suffered by a property owner due to a condemnor's announcement of plans to condemn in advance of a condemnation are recoverable as a separately compensable element of damages."
Section 4.  G.S. 136-112 reads as rewritten:
"§ 136-112. Measure of damages.
(a)	The following shall be the measure of damages to be followed by the commissioners, jury or judge who determines the issue of damages:
(1)	Where only a part of a tract is taken, the measure of damages for said taking shall be the greater of either (i) the amount by which the fair market value of the entire tract immediately before the taking exceeds the fair market value of the remainder immediately after the taking; or (ii) the fair market value of the property taken.
		If the condemnor takes or restricts reasonable access to the remaining property during the construction of the project, or otherwise reasonably disrupts the use of the remaining property during construction, those are separately compensable elements of damage.
(2)	Where the entire tract is taken the measure of damages for said taking shall be the fair market value of the property at the time of taking.
(b)	Damages suffered by a property owner due to a condemnor's announcement of plans to condemn in advance of a condemnation are recoverable as a separately compensable element of damages."
Section 5.  Chapter 40A of the General Statutes is amended by adding a new section to read:
"§ 40A-64.1.  Evidence of fair market value.
(a)	If the property taken is suitable for development as a subdivided commercial property or a residential subdivision, as shown by competent expert evidence of a qualified land planner, engineer, or architect, evidence of value of the amount that a willing buyer would pay and a willing seller would accept, based on the reasonable price of the subdivided property less the cost of development, including the cost of infrastructure, developer's profit, and time over which the property could reasonably be sold,  is competent evidence in determining the fair market value of the property.
(b)	The price paid by the condemnor for other comparable properties by settlement of condemnation actions or in an arms-length transaction is competent evidence of value.  Evidence of judgments in condemnation actions for other comparable properties is not competent evidence of value."
Section 6.  Chapter 136 of the General Statutes is amended by adding a new section to read:
"§ 136-112.1.  Evidence of fair market value.
(a)	If the property taken is suitable for development as a subdivided commercial property or a residential subdivision, as shown by competent expert evidence of a qualified land planner, engineer, or architect, evidence of value of the amount that a willing buyer would pay and a willing seller accept, based on the reasonable price of the subdivided property less the cost of development, including the cost of infrastructure, developer's profit, and time over which the property could reasonably be sold,  is competent evidence in determining the fair market value of the property.
(b)	The price paid by the condemnor for other comparable properties by settlement of condemnation actions or in an arms-length transaction is competent evidence of value.  Evidence of judgments in condemnation actions for other comparable properties is not competent evidence of value."
Section 7.  G.S. 40A-41 reads as rewritten:
"§ 40A-41. Institution of action and deposit.
A public condemnor listed in G.S. 40A-3(b)	or (c) shall institute a civil action to condemn property by filing in the superior court of any county in which the land is located a complaint containing a declaration of taking declaring that property therein is thereby taken for the use of the condemnor.
The complaint shall contain or have attached thereto the following:
(1)	A statement of the authority under which and the public use for which the property is taken.
(2)	A description of the entire tract or tracts of land affected  by the taking sufficient for the identification thereof.
(3)	A statement of the property taken and a description of the area taken sufficient for the identification thereof.
(4)	The names and addresses of those persons who the condemnor is informed and believes may be or, claim to be, owners of the property so far as the same can by reasonable diligence be ascertained, and if any such persons are infants, incompetents, inebriates or under any other disability, or their whereabouts or names unknown, it must be so stated.
(5)	A statement of the sum of money estimated by the condemnor to be just compensation for the taking.
(6)	A statement as to whether the owner will be permitted to remove all or a specified portion of any timber, buildings, structures, permanent improvements, or fixtures situated on or affixed to the property.
(7)	A statement as to such liens or other encumbrances as the condemnor is informed and believes are encumbrances upon the property and can by reasonable diligence be ascertained.
(7a)	A statement of the basis for the condemnor's estimate of just compensation upon which the deposit of the sum of money estimated by the condemnor to be just compensation for the taking is based.  This statement shall include the identity of the persons making the estimate, the methods and data used to make the estimate, and copies of all appraisals on which the estimate is based.
(8)	A prayer that there be a determination of just compensation in accordance with the provisions of this Article.
The filing of the complaint shall be accompanied by the deposit to the use of the owner of the sum of money estimated by the condemnor to be just compensation for the taking. Upon the filing of the complaint and the deposit of said sum, summons shall be issued to each owner of the property. The summons, together with a copy of the complaint and notice of the deposit shall be served upon the person named therein in the manner provided for the service of process under the provisions of G.S. 1A-1, Rule 4. The condemnor may amend the complaint and may increase the amount of its deposit with the court at any time while the proceeding is pending, and the owner shall have the same rights of withdrawal of this additional amount as set forth in G.S. 40A-44 of this Chapter."
Section 8.  G.S. 136-103 reads as rewritten:
"§ 136-103.  Institution of action and deposit.
(a)	In case condemnation shall become necessary the Department of Transportation shall institute a civil action by filing in the superior court of any county in which the land is located a complaint and a declaration of taking declaring that such land, easement, or interest therein is thereby taken for the use of the Department of Transportation.
(b)	Said declaration shall contain or have attached thereto the following:
(1)	A statement of the authority under which and the public use for which said land is taken.
(2)	A description of the entire tract or tracts affected by said taking sufficient for the identification thereof.
(3)	A statement of the estate or interest in said land taken for public use and a description of the area taken sufficient for the identification thereof.
(4)	The names and addresses of those persons who the Department of Transportation is informed and believes may have or claim to have an interest in said lands, so far as the same can by reasonable diligence be ascertained and if any such persons are infants, non compos mentis, under any other disability, or their whereabouts or names unknown, it must be so stated.
(5)	A statement of the sum of money estimated by said Department of Transportation to be just compensation for said taking.
(c)	Said complaint shall contain or have attached thereto the following:
(1)	A statement of the authority under which and the public use for which said land is taken.
(2)	A description of the entire tract or tracts affected by said taking sufficient for the identification thereof.
(3)	A statement of the estate or interest in said land taken for public use and a description of the area taken sufficient for the identification thereof.
(4)	The names and addresses of those persons who the Department of Transportation is informed and believes may have or claim to have an interest in said lands, so far as the same can by reasonable diligence be ascertained and if any such persons are infants, non compos mentis, under any other disability, or their whereabouts or names unknown, it must be so stated.
(5)	A statement as to such liens or other encumbrances as the Department of Transportation is informed and believes are encumbrances upon said real estate and can by reasonable diligence be ascertained.
(5a)	A statement of the basis for the condemnor's estimate of just compensation upon which the deposit of the sum of money estimated by the condemnor to be just compensation for the taking is based.  This statement shall include the identity of the persons making the estimate, the methods and data used to make the estimate, and copies of all appraisals on which the estimate is based.
(6)	A prayer that there be a determination of just compensation in accordance with the provisions of this Article.
(d)	The filing of said complaint and said declaration of taking shall be accompanied by the deposit of the sum of money estimated by said Department of Transportation to be just compensation for said taking and upon the filing of said complaint and said declaration of taking and deposit of said sum, summons shall be issued and together with a copy of said complaint and said declaration of taking and notice of the deposit be served upon the person named therein in the manner now provided for the service of process in civil actions.  The Department of Transportation may amend the complaint and declaration of taking and may increase the amount of its deposit with the court at any time while the proceeding is pending, and the owner shall have the same rights of withdrawal of this additional amount as set forth in G.S. 136-105 of this Chapter."
Section 9.  This act becomes effective October 1, 1999, and applies to actions commenced on or after that date.