Department of Transportation v. Indian Trail Plaza, LLC

The Department of Transportation (DOT) took a permanent utility easement over the commercial property of Indian Trail Plaza, LLC (ITP). Although DOT had total control over the language used in this easement and therefore could have carefully crafted said language to seize only the rights it needed, DOT instead used broad language that allows for construction and maintenance of any and every kind of utility – on, under, or above the ground – in perpetuity. Prior to a jury trial to determine just compensation for the taking, the trial court concluded that said compensation was to be measured not by what utilities DOT claims it intends to install but based on the rights DOT actually seized. DOT appealed.

NCAJ filed an amicus brief in support of the property owner, responding to arguments made both by DOT and amici for the State. First, because the easement language claims exceedingly broad rights, and because ITP’s use of its land is not allowed to “interfere with or disturb” the easement, the trial court was correct to determine that DOT is granted extensive and permanent use of the easement area to the exclusion of ITP. Nonetheless, DOT wishes to kick the can down the road, leaving it to future litigation for ITP to show that its use of its property has been unreasonably hindered. It should not be a property owner’s burden to file additional litigation or to establish such a hindrance, especially where DOT had complete control of the language used in the easement.

Next, the NCAJ brief responds to arguments from DOT and amici that the trial court’s order limits evidence on fair market value. It plainly does not. The trial court simply declared what was taken, and it still remains for the parties to present competing evidence as to the proper amount of just compensation.

Third, DOT and Duke Energy (as amicus) accuse property owners of seeking a windfall and point to the potential high costs that must be paid for such broad rights. Obviously, this is a matter within DOT’s control, since it controls what rights it takes, for which it must then pay compensation. In fact, DOT has already begun restricting the language used in its utility easements, thereby reducing its own payment obligations. Utility companies like Duke Energy are often the driving force behind broad easement takings, since it is the utility companies, not the State, that are usually installing utilities. For said companies to accuse property owners of seeking a windfall while they themselves encourage broad takings for financial gain is ironic at best.

Finally, NCAJ responds to another DOT amicus who argued that the trial court’s order would create confusion in title searches by granting to DOT rights it did not ask for and did not know it had. To the contrary, DOT knew exactly what it was taking when it took it, and a title search would reveal the easement language of DOT’s own choosing.