Henson Fuerst Reports Significant Victory for Wake County Property Owner

Henson Fuerst land condemnation attorneys David Henson and Chris Beacham report a significant victory for a Wake County property owner in a recent case involving a permanent utility easement (PUE) stretching across the frontage of the property. Henson Fuerst Attorneys have been challenging the overly broad taking language used by the NC Department of Transportation (DOT) in these easements across the state. This win at a section 108 hearing is only the second known order from a Superior Court judge holding the DOT accountable for fully encompassing language that allows for the DOT and utility companies to install an unlimited number of items within the PUE area including: gas lines, telephone lines, wireless facilities, fences, signs, telephone poles, water lines, broadband communications, sewer lines, distributed antenna systems, and any other utilities that may be approved in the future.

The current taking language of the department states:

“A permanent utility easement for all purposes for which the plaintiff is authorized by law to subject the same. Said utility easement in perpetuity is for the installation and maintenance of utilities, and for all purposes for which the Department of Transportation is authorized by law to subject same.”

In the case at hand, the commercial property is proximally located to the I-440 beltline and has a highest and best use as multi-family residential development. Pursuant to the order, the judge held:

  1. That the permanent utility easements taken were so broad and extensive that the DOT has the right to use and occupy the entire easement to the total exclusion of the property owner (including denying access),
  2. In determining just compensation and damages for the property owner, that all parties and their experts must assume that the DOT will fully and forever exercise all interests and rights it has taken,
  3. All of the statutory items listed in North Carolina General Statutes § 136-18.(2)(c) and 136-18(10) can be installed by the DOT or their assignees without consultation or consent of the land owner,
  4. The parties and their experts must consider the fully exercised rights taken by the DOT, and not simply what they intend to do with the property.

This order represents a major win for this property owner, but also sets the stage for similar arguments that other commercial property owners across the state should consider to make sure they get full just compensation. Remember, it’s the rights that are taken that matter, not what the DOT intends to do with those rights.