noting promulgation of the manual in Georgia regulations
How later courts described this case
- noting promulgation of the manual in Georgia regulations
Written by the judges who cited it.
The opinion
JACKSON, Judge,
concurring in part and dissenting in part.
I concur in sections II, III, and IV of the majority’s opinion. However, I respectfully dissent from the majority’s holding in section I because I believe it departs from precedent established by our Supreme Court in Barnes v. Highway Commission, 257 N.C. 507 , 126 S.E.2d 732 (1962) as well as this Court’s precedent in City of Concord v. Stafford, 173 N.C. App. 201 , 618 S.E.2d 276 (2005). In view of Barnes and Stafford , I would hold that the trial court abused its discretion by admitting evidence regarding the effect of the median on the diminution in value of Blevins’ property.
The facts in the case sub judice are substantially similar to the facts presented in both Barnes and Stafford . In Barnes and Stafford , as here, (1) a governmental body used its power of eminent domain to take a portion of a property owner’s land to widen a public road; (2) the governmental body installed a median as a part of the roadway project to facilitate safe traffic flow pursuant to its police powers; (3) the median limited the accessibility of the property owner’s land; and (4) the property owner sought to recover compensation for the property’s diminution in value effected as a result of the median’s installation in addition to compensation for the taking. See Barnes, 257 N.C. 507 , 126 S.E.2d 732 ; Stafford, 173 N.C. App. 201 , 618 S.E.2d 276 . In both Barnes and Stafford , the property owners’ attempts to recover compensation for the diminution in value resulting from the medians’ installations were denied because the installations were held to be proper exercises of police power for which no compensation was required. See Barnes, 257 N.C. at 518 , 126 S.E.2d at 740 ; Stafford, 173 N.C. App. at 204-05 , 618 S.E.2d at 278-79 .
In Barnes, our Supreme Court concluded
that the instruction that injury, if any, caused [by the restricted flow of traffic as a result of the installation of the median] was for consideration by the jury as an element of petitioner’s damages, and the admission of evidence as to the injury to the remaining *648 portion ... of petitioner’s property caused thereby, were erroneous and entitle the Highway Commission to a new trial.
Barnes, 257 N.C. at 518 , 126 S.E.2d at 740 (original emphasis omitted). In Stafford , we held that the trial court properly granted partial summary judgment to the City of Concord on the issue of whether the diminution in value suffered as a result of the installation of a median was a noncompensable action taken pursuant to the exercise of the city’s police power. Stafford, 173 N.C. App. at 204-05 , 618 S.E.2d at 278-79 .
In the case sub judice, the majority states that the jury could have considered evidence of the median within the context of the purpose of the taking and generally could have considered evidence of the median in determining whether the taking diminished Blevins’ property value. I believe this conclusion contradicts the settled law in North Carolina.
Our Supreme Court already has held that' consideration of the diminution in value resulting from noncompensable action pursuant to a governmental body’s police power may not be considered in conjunction with the otherwise compensable diminution in value resulting from eminent domain. See Barnes, 257 N.C. at 518 , 126 S.E.2d at 740 . Furthermore, our affirmation of partial summary judgment in Stafford signals that, as a matter of law, the installation of a median is a noncompensable exercise of a governmental body’s police power. See Stafford, 173 N.C. App. at 205 , 618 S.E.2d at 278-79 . While a jury may consider the lost business profits resulting from the State’s exercise of eminent domain, a jury may not consider the noncompensable effects of the State’s proper exercise of its police power. Compare Department of Transp. v. M.M. Fowler, Inc., 361 N.C. 1, 14 , 637 S.E.2d 885, 895 (2006), with Barnes, 257 N.C. at 518 , 126 S.E.2d at 740 . Therefore, in light of the settled law of the State, I would hold that the trial court abused its discretion by admitting testimony regarding the diminution in value of the subject property resulting from the installation of the median — a noncompensable, proper exercise of the State’s police power. Based upon my holding as to issue I, I also would hold that this matter must be remanded for a new trial. See Barnes, 257 N.C. at 518 , 126 S.E.2d at 740 .