Permanent Utility Easements (PUEs); Machiavelli’s taking

“The promise given was a necessity of the past. The word broken is a necessity of the present.”—Niccolo Machiavelli

The Department of Transportation (DOT) often condemns land along its highway projects for utility providers to place the equipment needed to operate their utilities and serve their customers. The DOT does so by taking what are called permanent utility easements. The DOT agents, and sometimes even the current roadway plans, will tell you that they are only going to put a specific type of use on the easement such as transmission lines, sewer lines, or some other individual utility. However, when you look at the language of the taking, the DOT is taking the rights to use the easements “for all purposes for which the [DOT] is authorized by law to subject the same.”

We are seeing this language used across the State in all of the permanent utility easements taken in recent years, including 2022, and expect it to continue into 2023. This is important because the language determines the rights that are taken from the landowner. Because of the breadth of the language used, the DOT has taken the rights to fully occupy the easements with all of the utility items that are legally allowed.

In a recent deposition taken by our office, the Department of Transportation admitted that the DOT, or some third party allowed by the DOT, can completely occupy the entire easement area with at least 23 different types of utilities. Above and below ground. Forever. They can even refuse to allow access to the landowner. If they want to put new utilities into the easement in the future, they can do so without the landowner’s permission or consent. They don’t even have to consult the landowner. They just put the new utility in the permanent utility easement that they already own.

The law says that it is the rights taken for which the landowner must be compensated not the current intent of the plans. This means that the DOT must pay the landowner for all of the rights they are taking even if they are promising to not use it all right now. Because later, when they need to use it for a new type of utility—or even some other existing utility—they can put it right into the permanent utility easement that they have taken.

We Represent Property Owners Across North Carolina

The best way to make sure that your rights are protected and that you get just compensation for what the DOT is actually taking is to have an experienced land condemnation attorney review the taking today. Contact Henson Fuerst to speak with one of our eminent domain and land condemnation lawyers today by calling 866-821-3146 or by submitting a web form online.