Petition — Irvin v. Greensboro-High Point Airport Authority

Supreme Court brief1979

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Text

=~ Supreme Court, USP] |

| -FILED |

} DEC 5 1978

IN THE SUPREME COURT OF RH URERER, erat

es ee =

October Term, 1978

No. 78-894

PEARL TAYLOR IRVIN, CHARLES

WATSON IRVIN, JR. and Wife,

MARY S. IRVIN, JOHN LAFAYETTE IRVIN

and Wife, NANCY B. IRVIN, DORIS

IRVIN EGERTON and Husband,

GEORGE G. EGERTON

Petitioners

Vv.

GREENSBORO-HIGH POINT

AIRPORT AUTHORITY

Respondent

PETITION FOR A WRIT

OF CERTIORARI TO THE NORTH

CAROLINA COURT OF APPEALS

J. Sam Johnson, Jr.

Counsel for Petitioners

P. O. Box 3344

Greensboro, North Carolina 27402

(919) 378-9750

Armistead W. Sapp, Jr.

Counsel for Petitioners

219 West Washington Street

Greensboro, North Carolina 27401

(919) 275-7206

a Wines,

ea eh

RiP iS Nase Se NW

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BMEMGEL CIOS CACOG. cccccccccccccccciii

PE SEE caccseceuncceescocese |

WU AMROEAEceseseescesecseccseccces 3

GUSStions Presented... ccccccccccce 6

Constitutional Provisions

and ET ee 8

ee . eh bee ee ee ee @ eeees 10

Reasons for Granting the Writ..... 20

EE eee eae a

Appendix A

Opinion, North Carolina

Court of Appeals

Filed June 20, 1978.......... A-l

Appendix B

Judgment Pismissing Appeal

on Motion of Plaintiff and

Denying Petition For Dis-

cretionary Review, Eighteenth

District, Supreme Court of

North Carolina

Issued September 7, 1978..... B-l

Appendix C

Findings of Fact, Conclusions

of Law, and Order, North

Carolina, Guilford County,

-i-

In the General Court of

Justice, Superior Court

Division

Filed July 7V¢ Dt Td +a see 6s 66

Appendix D

Pertinent Portions of

Constitutional Provisions

and Pre. sea eoeeeceeense

Amendment V to the United

States Constitution... ..cccece

Amendment VII to the United

States Constitution... .ccccoe

Amendment XIV to the United

States Constitution. .ceccececes

North Carolina Constitution

BPESGIO © BLP sccccoccesccscoccce

BPESGIO. EF Ehecccecceccescose's

AZCIiCLlS IV Slscccccccccsecccce

28 U.S.C.

42 U.S.C.

49 U.S.C.

ere

ee an sé es

ak 7) Ee

§1716 (c) (3) (4)

D-3

D-7

D-8

D-10

D-11

(d) OP ceseeseeeweee D-14

North Carolina General Statutes

S40-10. .. cc creer cvcccces

S40-L1l. ccc cece cece ccvves

G40—-12. Cc ccc c cree evvecves

S40-17. ccc ccc r ccc ccveces

G40-18. cc ce eee e recur recone

D-19

D-20

D-23

D-24

AUTHORITIES CITED

CONSTITUTIONS AND STATUTES

United States Constitution

po, a

BmOnGMOnt Vit .ccevceccs

Amendment XIV.........

North Carolina Constitution

pig AT Ee a 6 | reer

ASCAGLS ZT GOS... cece

MECAGIO ZIV Bls.ccsvess

28 U.S.C. §1257(3)..... cece

42 U.S.C. §1982......-. eocce

42 U.S.C. §4332(A) (C)......

49 U.S.C. §1716(c) (3) (4)

Se Perr ere

North Carolina General

Statutes

Chapter a ee a ee ae

ae eee eee

§40-1l... eee eee ee ee eee

-iii-

8, 10, 17, 21

8, 10, 17

8, 10

3, 8

4, 8, 33

CASES

Airport Authority v. Irvin,

36 N.C. App. 662, 245

S.E.2@ 390 . .. -

Airport Authority v. Irvin,

295 N.C. 548, 248

S.E.2d . . . . > . ° .

City of Charlotte v. McNeely,

8 N.C. App. 649, 185

S.E.2d 348 (1970) modified

and affirmed 281 N.C. 684,

190 S.E.2d 179 (1972).

Charlotte v. Heath, 226 N.C.

750, 40 S.E.2d 600...

Life of the Land v. Brinegar,

C.A.Hawaii 1973, 485

-iv-

1=-2

F.2d 460, cert. den.

94 S.Ct. 1979, 416 U.S.

961, 40 L.Ed.2d 312

Copren as & © © © o

State Highway Commission v.

Thornton, 271 N.C. 227,

156 S.E.2d 248 (1967).

State of Delaware et rel

Sharpe v. 0.62033 Acres

of Land, 110 A.2d l

(2954) 2. 2 © © © © «

Touhy v. Ragen, 340 U.S. 462

at 470, 71 S.Ct. 416, 95

L.Ed. 417, 423...

Virginians for Dulles v. Volpe,

344 F.Supp. 573 (1972),

541 F.2d 442 (1976).

-V-

IN THE SUPREME COURT OF THE UNITED STATES

TEXT October Term, 1978

80 ALR3d 1071 . . « « « © «© © Dy 26

No.

PEARL TAYLOR IRVIN, CHARLES

WATSON IRVIN, JR. and Wife,

MARY S. IRVIN, JOHN LAFAYETTE IRVIN

and Wife, NANCY B. IRVIN, DORIS

IRVIN EGERTON and Husband,

GEORGE G. EGERTON

Petitioners

Vv.

GREENSBORO-HIGH POINT

AIRPORT AUTHORITY

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE NORTH CAROLINA

COURT OF APPEALS

OPINIONS BELOW

The opinion of the North Carolina

Court of Appeals 36 N.C.App. 662, 245

aja

-vi-

S.E.2d 390, which affirmed the decision

of the North Carolina Superior Court

for Guilford County permitting Respon-

dent-Airport Authority's condemnation

of Petitioners’ 90.35 acres a copy of

which is appended to this Petition begin-

ning on page A-l. The final Judgment

of the Supreme Court of North Carolina

295 N.C. 548, 248 S.E.2d » which

dismissed Petitioners' Appeal and denied

their Petition for Discretionary Review

of the Opinion of the North Carolina

Court of Appeals, a copy which is

appended to this Petition beginning

on page B-l. The Judgment of the Supe-

rior Court, affirmed, is appended to

this Petition beginning on page C-l.

JURISDICTION

The Judgment of the North Caro-

lina Court of Appeals was made and

entered on June 20, 1978 [Rpp. A-1l ff]

as affirmed by the final Judgment

entered by the Supreme Court of North

Carolina on September 7, 1978 [Rp. B-l

ff). The jurisdiction of this Court

is invoked under 28 U.S.C.A. § 1257(3).

The North Carolina Appellate Courts'

decisions questioned the validity of

statutes of the United States; the

National Environmental Policy Act of

1969, as Amended, 42 U.S.C.A. § 4332 (A)

§ 1716(c), in failing to hold Respon-

dent was required to hold hearings,

make environmental determinations

and otherwise comply with these United

hold their real property, cf. 80

States statutes before undertaking

ALR3d 1071. In the Findings of Fact,

major airport construction. Petitioners

Conclusions of Law and Order of the

do not abandon their exceptions on the

Superior Court for Guilford County,

grounds that such Courts failed to

(affirmed by the North Carolina Court

find Petitioners were denied due

of Appeals) erroneously concluded

process and failed to dismiss Respon- )

as a matter of law "IV. No environ-

dent's action for condemnation and

mental impact statement is required,

denied Petitioners’ trial by jury as

| either under the laws of the United

at common law as to the questions of

States or of the State of North

necessity and the conditions prece-

Carolina, or under any rules or reg-

dent; which violated the property .

ulations issued in consequence thereof,

rights of Petitioners guaranteed in

for petitioner to acquire the tract of

42 U.S.C.A. § 1982. The state action -

land which petitioner is endeavoring

of condemnation of Petitioners' property

to acquire by condemantion in this

for purported airport purposes with- )

proceeding.” [Rpp 161 ff at page 171;

out compliance with federal conditions

Rp C-28].

precedent and without present nec- ,

essity denies Petitioners "the same

right" enjoyed by white citizens

"in every state and territory" to

hin

controverted questions of nec-

Se essity and the conditions

precedent, particularly the

environmental conditions?

Did the Courts below deny Peti-

tioners' due process in:

failing to dismiss Respondent's

action for condemnation for that

Respondent has no present nec-

essity for taking Petitioners'

lands;

Il.

failing to require Respondent to

comply with federal environmental

conditions precedent to condemna-

tion;

III.

denying Petitioners trial by

jury as at common law on the

North Carolina General Statutes:

CONSTITUTIONAL PROVISIONS

Chapter 40, §§ 40-10, 1l, 12,

AND STATUTES | 17 and 18

The pertinent portions of the follow-

ing constitutional provisions and statutes

are set forth in Appendix D to this Peti-

tion:

United States Constitution:

Amendments V, VII and XIV

North Carolina Constitution:

Article I, §§ 19 and 25

Article IV, § 13

United States Code:

Title 28, § 1257(3)

Title 42, § 1982

Title 42, §§ 4332 (A) (C)

Title 49, §§ 1716(c) (3) (4) (da) (e)

~9=

STATEMENT

Petitioners Irvin assert that their

motion for review of the Decision of the

North Carolina Court of Appeals as con-

firmed by the North Carolina Supreme

Court involves substantial constitu-

tional questions for that the taking

of their lands denies them their right

to substantive and procedural due

process in violation of the United

States Constitution, Amendments V, VII

and XIV and the North Carolina Constitu-

tion §§ 19 and 25 of Article I and § 13

of Article IV, particularly violating

Petitioners' rights to procedural due

process in the failure of the Courts

below to dismiss Respondent's condem-

nation action for Respondent's failure

to comply with the conditions prece-

dent to any condemnation by it as

=}9-=

established by Section 102(a)(c) of

the National Environmental Policy Act

of 1969, as Amended, 42 U.S.C.A. §

4332(A)(C), Virginians for Dulles v.

Volpe, 344 F.Supp. 573 (1972), 541 F.2d

442 (1976) and the Airport Act, 49

U.S.C.A. § 1716(c) (3) (4) (d) (e), Life

of the Land v. Brinegar, C.A.Hawaii 1973,

485 F.2d 460, cert. den. 94 S.Ct. 1979,

416 U.S. 961, 40 L.Ed.2d 312 (1974),

and in failing to negotiate in good

faith and in seeking to condemn Peti-

tioners' dwelling houses, in violation

of Chapter 40 of the North Carolina

General Statutes, particularly Sections

40-10, 11, 12, 17 and 18, State Highway

Commission v. Thornton, 271 N.C. 227, 156

S.E.2d 248 (1967); Charlotte v. Heath,

226 N.C. 750, 40 S.E.2d 600.

The constitutional and statutory

ale

conditions precedent issues were timely

raised in the pleadings, Responses

filed August 25 and 27, 1975 [Rpp 9 ff

at Rpp 11-12:

"FOURTH DEFENSE

In the alternative, as a

PLEA IN BAR, these responding

respondents DENY that petitioner

has properly exercised any

right of eminent domain it may

have been properly granted by

the State of North Carolina,

for that there is no necessity

for the taking of respondents'

property; that such property

is, on information and belief,

sought to be acquired to be

used for warehouses and other

buildings to be rented to

the public; the Greensboro-

=} 2=

High Point Airport lies with-

in the Friendship Township,

Guilford County, North Carolina,

within that area designated as

the watershed for the City

of Greensboro, North Carolina.

On information and belief,

Federal funds have been

extensively used and are to

be used in the acquisition of

lands, including the lands

of these respondents; and on

information and belief, no

public hearings or state-

ment, in compliance with

Section 102(a)(c) of the

National Environmental

Policy Act of 1969 as

amended, have been held

Or prepared nor made

available to the President

-13-

of the United States,

the Council on Environ-

mental Quality and the

public as provided by

Section 552 of Title 5,

United States Code; and

such is a condition pre-

cedent to the exercise of

condemnation; nor has

petitioner complied with

Section 16(c) (3) (4) (d) (e)

of The Airport Act, the

proposed actions of the

Airport Authority having

the following effects which

are LIKELY to be signifi-

cant:

(1) lead to a notice-

able change in the

ambient noise level for

-14-

ee eet a ee

a substantial number

of people, residents

of nearby communities

such as The Cardinal;

(2) lead to signi-

ficant increased air

and water pollution

in the area of The

Cardinal because of the

two (2) creeks flowing

through the lands of

the respondents;

(3) involve a reason-

able probability of

contamination of a pub-

lic water supply source,

treatment facilities and

distribution system be-

cause of the proposed

use of the lands for

-15-

storage of air cargo,

including poisonous

chemicals.

that respondents are ready, will-

ing and able, through their

private enterprise, to furnish

such tacilities and rent them

to members of the general

public; and such taking as

sought to be made on behalf

of petitioner is an unlaw-

ful and illegal exercise of

any such right as they may

imperfectly have. These

respondents move the dis-

missal of petitioner's

action."

and 13 ff at Rpp 15-16]:

". . . To take the re-

spondents' property for

-16-

such purpose without prior

hearings as to the nec-

essity of such taking, or

prior determination as to

the power of the petitioner

to exercise eminent domain,

is violative of the due

process provisions of the

United States Constitution

as well as the Fourteenth

Amendment thereof, and of

Article I, Section XIX of

the North Carolina Con-

stitution.

FIFTH DEFENSE

Petitioner has not com-

plied with the requirements

of the National Environmental

Policy Act of 1969, as

amended, in that there has

been no public hearings or

=17=

statement filed as required

by the United States Code,

which is a condition prece-

dent to the exercise of

condemnation. This action

is, therefore, an unlawful

exercise of the power of

eminent domain. . ."

preserved before the Assistant Clerk

and Clerk of Court for Guilford County

by exceptions [Rpp 125-126; 141-142]

and before Hal Hammer Walker, judge

presiding over the June 27, 1977 Ses-

sion of Superior Court for Guilford

County, Greensboro Division, by Bill

of Exceptions [Rpp 143 ff, XVII Rpp

156-157 cf. IV Rp 171 and (2) Rp 172;

Rp C-30] and preserved on appeals.

[Rpp 174-175], filed and doc-

keted October 5, 1977, to the North

-18-

Carolina Court of Appeals, and to the

Supreme Court of North Carolina July

19, 1978. Such Objections and Excep-

tions were overruled by the Assistant

Clerk and Clerk; overruled by the

Superior Court; deemed by the North

Carolina Court of Appeals as fully

", . .to raise any questions which

require further discussion by this

Court" [Rp A-35]; affirmed by the

Supreme Court of North Carolina in

allowing the dismissal of Petitioners’

appeal for lack of a substantial con-

stitutional question [Rp B-2]. They

are preserved and brought forward

here.

-19-

REASONS FOR GRANTING WRIT

(1) the cause involves legal princi-

ples of major significance to the

jurisprudence of the United States, on

the questions of uniform decisions as

to the necessity of taking of private

property for public airport uses,

where federal funding is involved and

the requirement of good faith negoti-

of the North Carolina Court of Appeals

affirmed by the North Carolina Supreme

Court appears to be in conflict with

decisions of the Supreme Court.

The North Carolina Court of Appeals

and the North Carolina Supreme Court

held the constitutional and statutory

conditions precedent questions insub-

stantial. Petitioners contend this to

ations to be conducted prior to taking; be reversible error in that both the

(2) the subject matter of the cause has National Environmental Policy Act of

Significant public interest, involving 1969 and the Airport Act are thus

uniform application of federal environ- voided by state action denying Peti-

mental law to the taking of land for tioners equal protection under the law

airport purposes; "issues of far reach- and taking their property without

ing importance”, Touhy v. Ragen, 340 due process of law in violation of

U.S. 462 at 470, 71 S.Ct. 416, 95 L.Ed the Fifth and Fourteenth Amendments

417, 423, left undecided in this case to the United States Constitution.

must be faced and (3) the decision

22a

~2Q=

DID THE COURTS BELOW DENY

PETITIONER'S DUE PROCESS IN:

failing to dismiss Respondent's

action for condemnation for that

Respondent has no present nec-

essity for taking Petitioners’

ands?

The Authority in its Complaint

alleged the necessity of taking in Para-

graphs VI, VII and XI [Rpp 4, 5-6, 7].

In response, the Petitioners stated ina

First Defense [Rp 9] that ". . . There

is no necessity for the taking of such

lands, and the Petition is totally de-

fective in that Petitioner fails to

state in detail the specific use of

such lands sought to be acquired . ..".

In their Fourth Defense, [Rpp 10-11]

—-22=

Petitioners answered that they denied

"that petitioner has properly exercised

any right of eminent domain it may have

been properly granted by the State of

North Carolina, for that there is no

necessity for the taking of Respondents’

property ...". In their Fifth De-

fense, [Rp 12] Petitioners denied the

allegations of Paragraphs VI, VII and

XI where the necessity had been

alleged.

Other Petitioners’ Third Defense

[Rpp 14-15] stated: "They plead in bar

of the Petitioner's action both the

failure to allege the specific use and

the failure to show public necessity for

the taking of the Respondents' land as

required by G. S. Section 40-12." In

their Fourth Defense, these Petitioners

said "Respondents having denied the pub-

=~23-

ae NNT

lic necessity for the taking of their property. There was no evidence of

land by the Petitioner, they plead in any proper public use within the rea-

bar of the Plaintiff's action, that Peti- sonably foreseeable future. Indeed,

tioner has no authority to condemn... .”. on the question of necessity Respon-

dent Airport Authority's Executive

In spite of these repeated and ex- Director Sekadlo testified with re-

plicit denials of allegations of necessity, spect to condemning land with fifty

the North Carolina Court of Appeals in per cent reimbursement from the FAA

its decision said: ". . . We hold that as follows:

the allegations of the Responses were

not adequate to raise the question of "Q Whether you need it or not?

necessity in the trial court and the A Well, right, whether you need

question is thus not before this Court it or not. (emphasis supplied)

on appeal." [Opinion, p. 3] Q That's good business manage-

ment?

On their appeal, the Petitioners A Damn right. Because it's

did not argue that necessary Airport , already been paid in by you and

purposes are not a public use. Peti- : me when you buy airline tickets,

tioners sought a determination that and why should it go to Charlotte

the evidence failed to show any nec- ' or some other place.

essity for any taking of Petitioners’

[R.p. 89-90]"

~24—

Several recent cases from other

states hold that eminent domain may

not be exercised unless property taken

is to be devoted to public use within

a reasonable time after taking. Con-

demnation may not be based upon

speculation by the condemnor as to its

possible needs at some remote future

time. This line of cases is set forth

in an excellent treatise at 80 ALR

3d 1071.

In a Delaware case cited in that

annotation, State of Delaware et rel

Sharpe v. 0.62033 Acres of Land, 110 A

2a 1 (1954), the Highway Department was

prevented from taking more land than

was necessary for the present needs.

The questions considered there were

the identical questions asked to be

reviewed by this Court in the instant

-26=—

case. Both questions were decided

against the Highway Department: (1)

That necessity for taking land and the

quantity thereof was a judicial, and

no= merely a legislative question;

and (2) That the trial court was cor-

rect in deciding that there was no

necessity for taking of land in con-

templation of remote future needs.

It is not merely theoretical to

Say, that, if the general rule cited

by the Court of Appeals in our case is

to be applied inflexibly, any govern-

mental authority could condemn any

land and any amount of land as early

as it wishes, and not be required to

prove that it needs the land within

the reasonable future. If such were

the case, no landowner's land would

-27-

be safe from condemnation anywhere

within the territorial jurisdiction

of the condemnor. Surely this is

not the intent of eminent domain law;

and as certainly it marks the return

of the property pendulum to its pre-

Magna Charta nadir.

Petitioners Irvin PRAY REVERSAL

and DISMISSAL of Respondent Airport's

condemnation of their lands for that

as a matter of law they are denied their

rights to due process where the author-

ity is permitted to take their lands,

"whether it needs them or not". No pre-

sent necessity for condemnation is

shown on the record below; no public

purpose is shown on the record below.

-28-

DID THE COURTS BELOW DENY

PETITIONERS' DUE PROCESS IN:

If.

failing to require Respondent

to comply with federal environ-

mental conditions precedent to

condemnation?

The applicable statutes have not been

followed; no negotiations in good faith

or otherwise were conducted with the

Irvins [Rpp 74-75, 106, 109], Dwelling

houses were condemned [Rp 1ll]. The

environment&l requirements of the appli-

cable statutes were not met. Mr. Sekadlo,

testifying,

"To my knowledge, I did not

file any other environmental

statement other than this let-

-29-

under date of February 22,

1972] to David Kelley, chief sia

of Atlanta Airports to Opera-

denying Petitioners trial by

tions Branch, Department of jury as at commor law on the

controverted quescions of nec-

Transportation, Federal Avia- essity and he conditions

, a , precedent, particularly the

tion Administration, dated environmental conditions?

February 22nd, 1972 and which

letter moved on from there The constitutional right of the

through the proper channels appellants to a jury trial on the ques-~-

and approvals and so forth.” tion of necessity of taking for public

[Rpp 72-73] [cf Rp 21, 25] | purpose is mooted where the Court

determines, as a matter of law, that

Such letter was a negative declaration; an indefinite "need" for "future ex-

[Exhibits F, G and H; Rp 21]; Respon- pansion" is not a public purpose. The

dent prepared no environmental impact . Court has here failed to so decide

statement relating to surface water, . and the question of denial of the

drainage, portions of lands sought Seventh Amendment right is reached.

to be acquired and changes [Rp 25]. Respondents have the right to require

See Appendix C, Paragraph IV, Rp C-28.

an -31-

the petitioner to comply strictly

with all statutory procedures, City

of Charlotte v. McNeely, 8 N.C.App.

649, 185 S.E.2d 348 (1970), modified

and affirmed 281 N.C. 684, 190 S.E.2d

179 (1972).

It is elementary that appellants

are entitled to equal treatment under

the Airport Act, 49 U.S.C.A. § 1716(c)

(3) (4) (a) (e), and the National Envi-

ronmental Policy Act of 1969 as

beneficiaries, and that the burden of

proof to show compliance with these

conditions precedent and those pre-

scribed by Chapter 40, North Carolina

General Statutes, is upon the taker.

Obviously the authority cannot show such

compliance and can show only an arbi-

trarily capricious proceeding to take

~32=

the lands of appellants without due

process and without jury trial in order

that federal money should not ". . .go

to Charlotte or some other place."

[Rpp 89-90]. Petitioners’ civil rights

have been thus violated, 42 U.S.C.A.

1982.

=33-

CONCLUSION

Petitioners urge the vacation

of the judgments below for that the

federal environmental pre-conditions

were not met and further that the

Courts below erred in deciding that

the question of necessity had not been

raised, and therefore was not before

the Court, [or that it had been raised

and judicially determined to exist].

We submit that the question of neces-

sity should be uniformly held to

require present necessity in the Courts

of these United States where federal

funds and statutes apply and that

"necessity" involves the element of

“when" the property will be put to

public use. Where the evidence

establishes a remote, indefinite

future time, a jury question arises.

-34-

Petitioners have been deprived of

their property arbitrarily and capri-

ciously without due process of law.

Petitioners pray that the decision

of the North Carolina Court of Appeals

as confirmed by the North Carolina Su-

preme Court be reviewed, that it be

reversed and Respondent's action dis~-

missed.

RESPECTFULLY SUBMITTED this the

day of December, 1978.

DEES, JOHNSON, TART, GILES &

TEDVER

By:

e or Petitioners

P. O. Box 3344

Greensboro, North Carolina 27402

(919) 378-9750

ARMISTEAD W. SAPP,

Counsel for Petitioners

219 West Washington Street

Greensboro, North Carolina 27401

(919) 275-7206

~3S<

APPENDIX A

NO. 7718SC817

NORTH CAROLINA COURT OF APPEALS

Filed: 20 June 1978

GREENSBORO-HIGH POINT

AIRPORT AUTHORITY

Guilford County

Vv No. 75SP870

PEARL TAYLOR IRVIN, et als

Appeal by respondents from Walker

(Hal H.), Judge. Judgment entered /

July 1977 in Superior Court, Guilford

County. Heard in the Court of Appeals

10 March 1978.

On 1 July 1975, petitioner Greens-

boro-High Point Airport Authority

(Authority) filed its petition insti-

tuting condemnation proceedings pursuant

to G.S. Chapter 40, seeking to acquire

fee simple title to a 90.35 acre tract

of land owned by respondents for pur-

poses of the expansion of the Greens-

boro/High Point/Winston-Salem Regional

A-1

Airport. Responses were filed on be-

half of the respondents challenging,

inter alia, the necessity of the taking

of their land, the sufficiency of the

Authority's effort to purchase the

land by private negotiations, the

constitutionality of the taking of

the property, and denying, generally,

the allegations of the Authority's

petition.

The matter came on for hearing

before John F. Yeatts, Jr., Assistant

Clerk of Superior Court of Guilford

County, on 11 May 1976, at which time

the parties presented evidence. On 5

August 1976, an order was entered con-

taining findings of fact and conclusions

of law, overruling respondents' defenses,

and appointing Commissioners of Apprai-.-

sal to determine the compensation which

the Authority should pay to respondents.

On 27 August 1976, the Commis-

Sioners took their oath and conducted

a hearing. On 24 November 1978, the

Commissioners filed their report with

the clerk, assessing respondents' dam-

ages at $310,000.

Respondents filed objections and

exceptions to the report of the Com-

missioners and the matter was heard

by J. P. Shore, Clerk of Superior

Court of Guilford County; on 28 Feb-

ruary 1977, a Judgment of Confirma-

tion was filed by the clerk confirming

the report of the Commissioners. Re-

spondents gave notice of appeal to

superior court.

Upon stipulation of the parties,

the superior court determined the

appeal based upon the record of the pro-

ceedings before the clerk, which

consisted essentially of transcripts of

testimony and exhibits. Based upon

the record and the oral arguments

presented on behalf of the parties, the

trial court, on 7 July 1977, entered

judgment setting out findings of fact

and conclusions of law favorable to

the Authority, overruling respondents’

various exceptions and objections,

and affirming the Judgment of confirma-

tion except insofar as it related to the

amount of compensation to be paid to

respondents, upon which question re-

spondents are entitled to a trial by

jury.

Respondents gave notice of appeal

to this Court from the judgment of the

superior court.

The factual circumstances which

have given rise to this litigation

are, to the extent necessary for a

determination of this appeal, re-

flected in the trial court's findings

A-4

of fact, pertinent paragraphs of

which are set out in the opinion which

follows.

Cooke & Cooke, by William Owen

Cooke, for petitioner.

Armistead W. Sapp, Jr., and Dees,

Johnson, Tart, Giles & Tedder, by J.

Sam Johnson, Jr., for respondents.

Brock, Chief Judge.

Respondents' challenge to the

Authority's efforts to annex the land

in question is brought forward in three

assignments of error presented in

three arguments. At the outset, we

note that the Authority derives its

existence and powers from Chapter 98,

Public-Local Laws of 1941, as amended.

Section 7 of said Chapter 98, as

amended by Chapter 601, Session Laws

A-5

of 1943 and Chapter 793, Session Laws

of 1969, authorizes the Authority to

acquire needed property by exercise

of the power of eminent domain pursuant

to Chapter 40 of the North Carolina

General Statutes. Section 6 of the

aforementioned Chapter 98, Public-

Local Laws of 1941, declares that any

lands acquired, owened, etc. by the

Authority are so acquired, owned, etc.

for a public purpose. See also G.S.

63-5. It is also clearly established

by judicial decisions that the taking

of land for the establishment and main-

tenance of a municipal airport is for

a public purpose. Vance County v.

Royster, 271 N.C. 53, 155 S.E.2d 790

(1967).

For their first assignment of

error, respondents contend that peti-

tioner has failed to show a necessity

A--6

for the taking of their land. Respon-

dents present various factual arguments

and legal theories in an attempt to

raise a defense of lack of necessity,

primarily aimed at a failure of the

Authority to show precisely when the

land will be needed for the specific

use envisioned. However, we hold that

the allegations of the responses were

not adequate to raise the question of

necessity in the trial court and the

question is thus not before this Court

on appeal.

As noted supra, the taking of

land for airport purposes is a taking

for a public purpose. As a general

rule, once the public purpose is

established, the necessity or exped-

iency of the taking is a legislative,

and not a judicial question. City of

Charlotte v. McNeely, 281 N.C. 684, 190

A-7

S.E.2d 179 (1972); Jeffress v. Green-

ville, 154 N.C. 490, 70 S.E. 919 (1911).

To the foregoing rule proscribing judic-

ial interference with the condemning

body's determination of necessity,

there is an exception, to wit: "Upon

specific allegations tending to show

bad faith, malice, wantonness, or op-

pressive and manifest abuse of

discretion by the condemnor, the issue

raised becomes the subject of judicial

inquiry as a question of fact to be

determined by the judge." (Emphasis

added.) City of Charlotte v. McNeely,

Supra, 281 N.C. at 690, 190 S.E.2d at

185, and cases cited therein.

The Authority commenced this

action by filing a verified petition

wherein the jurisdictional requirements

as set out by G.S. 40-12 were fully

alleged, including allegations as to

A-8

necessity. An examination of the re-

sponses filed by respondents reveals no

allegations as to necessity which rise

above a denial of petitioner's allega-

tions; there are no "specific allegations

tending to show bad faith, malice,

wantonness, or oppressive and manifest

abuse of discretion" so as to invoke

judicial review of the Authority's

determination. See Redevelopment Com-

mission v. Grimes, 277 N.C. 634, 178

S.E.2d 345 (1971).

The sole factual question raised

by the Authority's allegations of,

and respondent's denial of necessity

for condemnation is whether the property

is being condemned in good faith to

conduct public business. Webster,

Real Estate Law in North Carolina §

358, pp. 479-480 (1971). The trial

court made the following pertinent

A-9

findings of fact (parenthetical refer-

ences to the transcript of hearing

before the Clerk of Superior Court

and to exhibits are omitted):

"V. Petitioner's Board

of Directors, at a meeting

held on 19 March 1968, approved

a plan for the expansion and

enlargement of the facilities

of the Greensboro/High Point/

Winston-Salem Regional Airport

prepared by Paul Stafford

Associates-Arnold Thompson

Associates, Inc. Said plan

was entitled 'Master Plan for

the Greensboro/High Point/

Winston-Salem Regional Air-

port’. This plan provided for

the construction of a new

terminal building, new cargo

A-10

handling facilities and other

facilities connected with the

airport. Said plan provided

for such new construction in

the northwest quadrant for

the four quadrants formed

by the airport runways entitled

*"5-23' and '14-32'. The re-

location and expansion of

facilities shown by said plan

was to enable petitioner to

provide adequate facilities

for the rapid increase in the

use of the airport by members

of the public and to meet the

increased demands of the public

for airport services. The

plan included the property

owned by respondents which is

described in Paragraph VI of

the petition as part of the

A-1l

the expanded airport facilities

property which it would be nec-

onto said tract of land owned

essary for petitioner to acquire

by respondents. This new lay-

in order to carry out the ex- ‘ ;

} out plan which changed the 1968

pansion plan."

Master Plan was approved by the

k* *& *

Board of Directors of petitioner

at a meeting held on 24 May

eral regulations required the 1972."

construction of a new taxiway a a a

parallel to Runway 5-23 at a

"X. The Board of Directors

location other than the loca- wee :

of petitioner, at a meeting held

tion shown in the 1968 Master

on 29 August 1974, approved a

Plan. As a result, the cargo

1973 update of the 1968 Master

area shown on the 1968 Master

‘ Plan which incorporated the

Plan had to be relocated, and

amendment to the 1968 Master

to that end, a layout plan was

Plan effected by the layout

repared by Southern Mappin

ie F sists plan prepared by Southern Mapping

and Engineering Company , : : :

and Engineering Company which

changing the 1968 Master Plan

‘had been approved by the Board

by moving the proposed new

; : cathy of Directors at a meeting held

location of the cargo area for

on 24 May 1971. The update

A-12

A-13

of the 1968 Master Plan is

entitled 'Master Plan for

the Greensboro/High Point/

Winston-Salem Regional Air-

port' and it was prepared

by Arnold Thompson Associates,

Inc. This 1973 Master Plan

included respondents' property

as a part of the expanded air-

port and also designated its

use for cargo area."

* *& *

"XII. Respondents' pro-

perty is located in the north-

west quadrant of the airport

which is the area in which

the projected expansion is to

be located. Petitioner has

already carried out many of

the proposals for expansion

set forth in the 1968 Master

A-14

Plan. Two Fixed Base Opera-

tions are now located in the

northwest quadrant of the

airport as well as a new

Control Tower and a new

Weather Bureau. Petitioner

has employed an architect

to design a new terminal

building to be constructed

in the northwest quadrant as

contemplated by the Master

Plan. The architect has also

been retained to design cargo

facilities, but is not pre-

sently working on this project.”

2 k @

"XIV. - Public interest and

public necessity require peti-

tioner to take and acquire for

the use and benefit of petitioner

and the public the fee simple

A-15

title to the tract of land lo-

cated near the Greensboro/High

Point/Winston-Salem Regional

Airport in Friendship fown-

ship Guilford County, North

Carolina, which is described

in Paragraph VI of the petition.

Petitioner in good faith has

found that it requires said

tract of land described in Para-

graph VI of the petition for the

purpose of carrying on anc con-

ducting public business which

petitioner is authorized to

conduct and carry on. Said

tract of land is needed and

required in order that peti-

tioner may use the same for ©

cargo handling activities in

connection with the planned

expansion of the Greensboro/

A-16

High Point/Winston-Salem Reg-

ional Airport, including the

construction of a cargo

building thereon, and also in

order to facilitate the use

by petitioner of its other

properties for airport pur-

poses and, in addition, said

property is required in con-

nection with the general

development and expansion by

petitioner of the Greensboro/

High Point/Winston-Salem Reg-

ional Airport. Said acquisition

of said property by petitioner

in fee simple is necessary for

the proper maintenance, im-

provement and development of

the airport."

These findings of fact, which establish

A-17

that the Authority carried its burden the condemnor "is unable to agree for

of proof to show that the land in ques- the purchase of any real estate required"

tion is being taken in good faith for for its purposes. G.S. 40-11. A peti-

a public purpose, are supported by evi- tion filed to institute condemnation

dence which was before the trial court ; proceedings must allege "that the cor-

and are thus conclusive on appeal. poration has not been able to acquire

Blackwell v. Butts, 278 N.C. 615, 180 title [to the real estate], and the

S.E.2a 835 (1971). Respondents' first reason of such inability." G.S. 40-12.

assignment of error is overruled. In the present case, the Authority al-

For their second assignment of leged that it made a good faith effort

error, respondents contend that the to purchase the land in question but

evidence does not support the trial that it was unable to agree on a price

court's finding that the Authority with respondents. This allegation was

negotiated in good faith for the pur- denied by respondents, thus raising

chase of respondents' property prior an issue of fact for the trial judge,

to instituting condemnation proceedings. upon which the Authority bore the bur-

We disagree. den of establishing the facts as

alleged. Webster, supra, § 358, pp.

479-480.

The condemnation proceedings set

out in Article 2 of G.S. Chapter 40

can be invoked by a corporation pos- As to the question of the Auth-

sessing the power of eminent domain if ority’s attempts to acquire the

A-18 A-19

property by purchase, the trial court

made the following findings of fact

(parenthetical references to the trans-

script and exhibits are, once again,

omitted) :

"VIII. As a result

of a request by petitioner's

staff personnel, appraisals

of the property of respon-

dents described in Paragraph

VI of the petition were made

by Wayne Sudderth and Calvin

Reynolds, both competent real

estate appraisers. On 19

February 1973, Wayne Sudderth

reported an appraisal of $225,

000.00 for respondents’ proper-

ty, and on 20 March 1973 Calvin

Reynolds report an appraisal

of $244,375.00 for respondents’

property. Calvin Reynolds was

A-20

also employed by petitioner to

conduct negotiations for the

purchase of properties needed

by the Authority in its expan-

sion program. One of the

employees of Mr. Reynolds in

the performance of these duties

was R. J. Leftwich. In April,

1973, Mr. Leftwich endeavored

to determine on behalf of peti-

tioner, if respondents might

be interested in selling this

property to petitioner for

the sum of $225,500.00. Mr.

Leftwich met with respondents

and conveyed to respondents

an offer by petitioner to pur-

chase respondents’ property

for $225,500.00. Respondents

indicated such amount was

A-21

totally insufficient and re-

spondent Charles W. Irvin, Jr.,

stated that he thought the

property was worth at least

$10,000.00 to $12,000.00 an

acre plus the replacement cost

of all improvements, a sum in

excess of $1,000,000.00. The

results of this conference were

conveyed to petitioner on 14

May 1973.

IX. The Board of Directors

of petitioner, at a meeting held

on 6 August 1973, adopted a

resolution authorizing the Exe-

cutive Director of petitioner

to offer to pay the appraised

value of respondents' property

as determined by competent

appraisers, subject to any

agreement to accept such

A-22

_ appraised value being approved

by the land subcommittee of

of the Board of Directors

and by the Authority. Said

resolution further provided

that if respondents' pro-

perty could not be purchased

at its appraised value as so

determined, petitioner should

institute condemnation pro-

ceedings therefor. At the

time this resolution was

adopted, the 1968 Master

Plan approved by the Board

of Directors of petitioner

on 19 March 1968 had been

amended by the layout plan

prepared by Southern Mapping

and Engineering Company

approved by the Board of

A-23

Directors of petitioner

on 24 May 1971 so as to show

that the plan for the use

of respondents’ property

was for a cargo area."

"XI. Petitioner's

Executive Director obtained

new appraisals of respon-

dents' property from Wayne

Sudderth and Calvin Rey-

nolds, both competent

appraisers. On 20 June

1975, Wayne Sudderth

appraised respondents’

property at $225,000.00,

and Calvin Reynolds on

11 July 1975 appraised

respondents’ property

at $254,000.00. On 12

A-24

July 1974, petitioner's

Executive Director, on

behalf of petitioner,

offered to purchase re-

Sspondents'’ property for

$254,000.00, and requested

a response within 30 days.

Such offer was made by

letter to C. W. Irvin, Jr.,

Doris Irvin Egerton, John

L. Irvin and Pearl T.

Irvin. There was no re-

sponse to said offer by

Charles Watson Irvin, Jr.

John L. Irvin responded

by letter dated 1 August

1974, in which he rejected

petitioner's offer of

$254,000.00. At the time

said letter was written

A-25

petitioner's Executive

Director, respondent

Charles W. Irvin, Jr.,

valued respondents" pro-

perty in excess of One

Million Dollars ($1,000,

000.00), and would not

accept any amount less

than Twelve Thousand to

Thirteen Thousand Dollars

per acre for respondents'

property or a total sum

of over One Million Dollars

plus the replacement cost

of the clubhouse and all

other buildings."

* * *

"XVII. Petitioner, uy .

acting through its officer,

agents and representatives,

has made an effort in good

A-26

*‘ faith to purchase and acquire

title to the real property

described in Paragraph VI

hereof, from the owners there-

of, to wit: respondents

named herein, but petitioner

and said respondents have

been unable to agree on a

price or compensation for

said tract of land."

In our opinion, the preliminary

facts as found in VIII, IX and XI,

Supra, are supported by the evidence

and are thus conclusive on appeal,

and support the ultimate finding of

fact XVII, supra.

G.S. 40-11 and 40-12 require a

condemnor to "make a bona fide

effort to purchase by private

negotiation" prior to instituting

A-27

condemnation proceedings. Power Co. earlier negotiations had revealed that

v. King, 259 N.C. 219, 220-221, 130 respondents would sell only at a price

S.E.2da 318, 320 (1963). The Authority ce far in excess of that which the Auth-

was aware that respondents felt that ority was Willing to offer. See _ Power

their land was worth in excess of ey Co. v. Moses, 191 N.C. 744, 133 S.E.

$1,000,000.00. The Authority's 5 (1926). In many respects, the facts

resolution of 6 August 1973 auth- of the instant case are similar to

orized an offer to purchase respondents’ those in Murray v. City of Richmond,

land at its appraised value; an offer 257 Ind. 548, 276 N.E.2d 519 (1971);

was conveyed to respondents by letter wherein the condemnor offered to pur-

of 12 July 1974, offering the highest | chase property at its appraised value

of several appraisals secured by the of $40,000 and the condemnees counter-

Authority. No higher offer was auth- offered in the amount of $500,500

orized by the Authority. The offer | (later reduced to $100,000). The

was rejected by letter by respondent condemnor refused the counter-offers

John L. Irvin, although he indicated and instituted condemnation pro-

his willingness to sell at a reason~ . ceedings. On appeal, the condemnees

able and just price. However, we argued that the trial court erred in

do not feel upon the facts of this finding that there had been a bona

case, that the Authority was required fide effort to purchase in that the

to explore the matter further since condemnor had refused to negotiate

A-28 A-29

upward from the $40,000 figure. The reasonable was agreed upon.

following language in the Murray In fact, it appears to be

opinion is pertinent to the case at much more honest and forth-

bar: right on the part of the

"We do not agree with appel- | condemning authority to come

lants' contention in this forth in their initial offer

regard. We do not construe with the highest price they

the language [of the statute feel they could reasonably

pertaining to negotiations] justify paying for the

to mean that the condemning property. The fact that a

authorities must first make property owner might place

an offer of a figure below a higher value on his real

that which they believe to . estate and attempt to in-

be the maximum they could duce the condemning authority

justify paying for the pro- to pay a higher price does

perty, then through a series not bind the condemning

of negotiations bargain with authority to raise its fig-

the property owner until some . ! ure.

figure within what the Com- We do not interpret

mission might consider to be the word "negotiations" in

A-30 A-31

the statute to mandate a

series of encounters of offers

and counter-offers in an at-

tempt to arrive at a price.

Where as here, the condemning

authority has employed pro-

fessional appraisers and

has based its firm offer to

purchase on figures presented

to it by its appraisers, we

hold that such an offer to

purchase meets the require-

ment to negotiate as set

out in the statute.” 276

N.E.2d at 522.

We hold that the evidence in the

case sub judice indicates that the

Authority made the requisite bona

fide, good faith effort to acquire

respondents' property by purchase,

A-32

and supports the trial court's

finding to that effect.

Under their second assignment

of error, respondents have attempted

to present several distinct ques-

tions of law, in violation of App.

Rule 10(c); the assignment is a

broadside assignment and is sub-

ject to being overruled for that

reason. However, we elected to

deal with respondents' contention

relating to the sufficiency of the

Authority's attempt to purchase

the land; we have also elected

to deal with respondents' con-

tention that G.S. 40-10

prohibits the Authority from con-

demning the land in question

because of the presence thereon

of one or more dwelling houses.

A-33

We reject this latter con-

tention, based upon the reasoning

of Mount Olive v. Cowan, 235 N.C.

259, 69 S.E.2d 525 (1952), which held

that the limitation of G.S. 40-10

applied only to corporations named

in Article 1 of G.S. Chapter 40

and not to a corporation deriving

its power to condemn from some

other act of the legislature. The

Authority derives its power to

condemn, as noted at the outset

of this opinion, from Chapter 98,

Public-Local Laws of 1941 as amended,

and is not one of the corporations

named in the sections preceding

G.S. 40-10.

Respondents’ second assignment

of error is overruled.

For their third assignment of

error, respondents contend that they

A-34

have been deprived of rights guaranteed

them by the United States and North

Carolina Constitutions. Respondents

attempt to raise, once again, the

question of necessity of the taking

of their land; having dealt with

the question, supra, we decline to

do so again.

Respondents' contention that

the Authority's petition did not comply

with the requirements of G.S. 40-12

by stating in detail the nature of the

public business and the specific use

for which the land is sought is without

merit and warrants no discussion. In

our opinion, respondents' third assign-

ment of error fails to raise any

questions which require further dis-

cussion by this Court.

The decision of the trial court

A-35

Affirmed.

Judges HEDRICK and MITCHELL concur.

A-36

APPENDIX B

No. 201PC EIGHTEENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

Spring Term 1978

(ARRAS ELLSLL ELE LES EE ETE TEE EES

)

GREENSBORO-HIGH

POINT AIRPORT

AUTHORITY

)

) JUDGMENT DISMISSING

) APPEAL ON MOTION OF

) PLAINTIFF AND

Vv. ) DENYING PETITION FOR

) DISCRETIONARY REVIEW

PEARL TAYLOR IRVIN, )

)

ET AL (7718SC817)

LARS AASSLEL EAL EL ERA LER ESE EE EE SD

This matter came on to be considered

upon defendant's notice of appeal from

the North Carolina Court of Appeals, pur-

Suant to G. S. 7A-30, upon the plain-

tiff's motion to dismiss the appeal for

lack of a substantial constitutional

question, and upon defendant's petition

for discretionary review of the decision

of the North Carolina Court of Appeals,

B-1

pursuant to G. S. 7A-31; upon consid-

eration whereof, it is adjudged by the

Court in conference this 29th day of

August, 1978, that the motion to dis-

miss the appeal be allowed, that the

petition for discretionary review be

denied, and that it be so certified

to the North Carolina Court of Appeals.

It is considered and adjudged

further that the defendant do pay the

sum of NINE AND NO/100 DOLLARS ($9.00)

and execution issue therefor.

s/ Exum, J.

For the Court

This foregoing order is issued over

my hand and seal of the Supreme Court

this 7th day of September, 1978.

s/ John R. Morgan

~ John R. Morgan

Clerk of the Supreme

Court of North Carolina

B-2

cc:

North Carolina Court of Appeals

Dees, Johnson, Tart, Giles &

Tedder, Attorneys at Law

Mr. Armistead W. Sapp, Jr.,

Attorney at Law

Cooke and Cooke, Attorneys at Law

APPENDIX C

FILED: JUL 7 1:29 PM '77

J. P. SHORE

CLERK OF SUPERIOR COURT

GUILFORD COUNTY, N.C.

NORTH CAROLINA IN THE GENERAL COURT

OF JUSTICE

GUILFORD COUNTY SUPERIOR COURT DIVISION

GREENSBORO-HIGH POINT

AIRPORT AUTHORITY,

Petitioner,

vs. FINDINGS OF

FACT, CONCLU-

PEARL TAYLOR IRVIN, SIONS OF LAW,

CHARLES WATSON IRVIN, AND ORDER

JR., and wife, MARY S.

IRVIN, JOHN LAFAYETTE 75 SP 870

IRVIN and wife, NANCY

B. IRVIN and DORIS

IRVIN EGERTON and hus-

band, GEORGE G. EGERTON,

Respondents.

THIS CAUSE COMING ON TO BE HEARD,

and being heard by and before the under-

signed Judge presiding at the June 27,

1977, Civil Session of the Superior

Court of Guilford County, North Caro-

lina, upon the exceptions taken by

C-1

Respondents herein to the Findings of

Fact and Conclusions of Law made by

the Clerk of the Superior Court of

Guilford County, North Carolina, and the

Order entered thereon by said Clerk

appointing Commissioners of Appra-

isal, dated August 5, 1976, and also

upon the appeal of Respondents from the

Judgment of Confirmation entered herein

by the Clerk of said Court, confirming

the Report of Commissioners filed Nov-

ember 24, 1976; and

IT APPEARING TO THE COURT that all

parties were before the Court, and for

purposes of the appeal to this Court

were duly represented by counsel; and

IT FURTHER APPEARING that all

parties through their respective coun-

sel stipulated and agreed in open Court

that this appeal would be heard by the

Court upon the Record of the Proceedings

before the Clerk of Court, consisting

of transcripts of evidence adduced at

hearings, all exhibits relating thereto;

and all other documents, orders and

proceedings had in connection there-

with; and

IT FURTHER APPEARING that coun-

sel for all parties, in open Court,

Stipulated that any judgment, order or

other decision, including Findings of

Fact, Conclusions of Law made or en-

tered by the Court in this matter could

be made and entered out of Session,

out of District and at the convenience

of the Court; and

THE COURT, having heard oral argu-

ment and contentions of counsel for both

Petitioner and Respondents, examined

and studied the entire record, in-

cluding Respondents' transcript of

Kinard's interview with Sekadlo, filed

by Respondents as "newly discovered"

evidence, and stipulations of counsel

herein, as well as written briefs of

said counsel, upon such Record of Pro-

ceedings, exhibits and stipulations

makes the following

FINDINGS OF FACT

This proceeding was instituted on

the lst day of July, 1975, by the filing

of a petition and the issuance of sum-

mons. Said summons and a copy of the

petition were duly served on each of

the respondents and said respondents,

within due time, have each filed

answer herein as appears of record.

All necessary parties to this pro-

ceeding are before the Court and the

Court has jurisdiction of the subject

matter thereof.

II.

Petitioner, Greensboro-High

Point Airport Authority, is a body

politic and corporate of the State of

North Carolina, created by the Gen-

eral Assembly of the State of North

Carolina, pursuant to Chapter 98 of

the Public-Local Laws of North Caro-

lina, Session 1941, and the amendments

thereto.

Saee

Petitioner conducts and carries

on the public business authorized by

C-5

the provisions of said Public-Local

Laws of North Carolina, and the var-

ious amendments thereto, and in good

faith intends to continue to conduct

and carry on such public business

(Tr-p. 16-22). In the conducting and

carrying on of said public business,

petitioner owns, operates, maintains

and controls, and in good faith in-

tends to continue to own, operate,

maintain and control the Greensboro/

High Point/Winston-Salem Regional

Airport located in Friendship and

Deep River Townships, Guilford County,

North Carolina. Said airport is

operated by petitioner for the bene-

fit and use of the public in order

Tr-p. - designates Transcript of hearing

before clerk held on May 11-12,

1976.

to supply the needs of the’ public

for airport services and facilities

(Tr-p. 16-22). It is used exten-

Sively by residents of Guilford

County and the public in general

for aviation purposes and purposes

incidental thereto. It is used

for the transportation of persons,

property and mail and, in connection

therewith, petitioner provides

runways for the landing of aircraft

an air terminal building for the

convenience of passengers and others,

space for the transfer of cargo and,

through its various tenants, it

provides rental car services, parking

services for automobiles, facilities

for flying instruction, fuel facil-

ities, restaurant and banking

facilities and other facilities for

the convenience and comfort of members

C-7

of the public using the airport (Tr-

p. 16-22). The ownership, operation,

maintenance and control of said air-

port by petitioner is for a public

purpose (Tr-p. 16-22).

IV.

Petitioner possesses the power

of eminent domain, including the

right to take real property which

is necessary for conducting and

carrying on the business and opera-

tions of the petitioner for said public

purpose. Petitioner has the right

to acquire title to real property in

fee simple by condemnation proceedings

conducted under the provisions of

Chapter 40 of the General Statutes

of North Carolina (Sec. 7, Chapter

601, Session Laws 1943).

Petitioner's Board of Directors,

at a meeting held on 19 March 1968,

approved a plan for the expansion and

enlargement of the facilities of the

Greensboro/High Point/Winston-Salem

Regional Airport prepared by Paul

Stafford Associates-Arnold Thompson

Associates, Inc. (PX-2). Said plan was

entitled "Master Plan for the Greens-

boro/High Point/Winston-Salem Regional

Airport" (PX-1). This plan provided

for the construction of a new terminal

building, new cargo handling facilities

and other facilities connected with

PX - indicates Petitioner's Exhibit No.

C-9

the airport. Said plan provided for

such new construction in the north-

west quadrant of the four quadrants

formed by the airport runways entitled

"5-23" and 14-32" (PX-1). The relo-

cation and expansion of facilities

shown by said plan was to enable peti-

tioner to provide adequate facilities

for the rapid increase in the use of

the airport by members of the public

and to meet the increased demands of

the public for airport services

(PX-1). The plan included the pro-

perty owned by respondents which is

described in Paragraph VI of the peti-

tion as part of the property which

it would be necessary for petitioner

to acquire in order to carry out the

expansion plan (PX-1).

C-10

VI.

On or about 15 June 1972, an offer

was made to petitioner by the United

States, through the Federal Aviation

Administration, under the provisions

of the Airport and Airway Development

Act of 1970 enacted by the United States

Congress, to reimburse petitioner for

one-half of the costs incurred by

petitioner in acquiring lands for airport

expansion included within a project

known as Project 8-37-0026002. This

offer was made through the Federal

Aviation Administration as a result of

applications filed by petitioner (RX-2;

Tr-p. 77-79). The tract of land owned

by respondents which is described in

RX - indicates Respondents' Exhibit No.

C-11l

Paragraph VI of petitioner's petition

was included within the lands to be

acquired under said project (Tr-p. 76).

At a regular meeting of the Board of

Directors of petitioner held on 16 June

1972, this offer made through the Fed-

eral Aviation Administration was accepted

by petitioner (RX-1). Petitioner, by

the acceptance of said offer, expressed

its intent to acquire the lands em-

braced within the project for the

purposes of airport expansion and to

begin accomplishment of the project

within 30 days after 16 June 1972

(RX-1).

Vit.

In 1970, new federal regulations

required the construction of a new taxi-

way parallel to Runway 5-23 at a

C-12

location other than the location shown

in the 1968 Master Plan (Tr-p. 41).

As a result, the cargo area shown on the

1968 Master Plan had to be relocated

and, to that end, a layout plan was pre-

pared by Southern Mapping and Engi-

neering Company changing the 1968 Master

Plan by moving the proposed new loca-

tion of the cargo area for the expanded

airport facilities onto said tract of

land owned by respondents (Tr-p. 66-

69; PX-13). This new layout plan which

changed the 1968 Master Plan was

approved by the Board of Directors of

petitioner at a meeting held on 24

May 1971 (Tr-p. 69; PX-14).

VIII.

As a result of a request bv peti-

tioner's staff personnel appraisals

C-13

of the property of respondents described

in Paragraph VI of the petition were

made by Wayne Sudderth and Calvin Rey-

nolds, both competent real estate

appraisers. On 19 February 1973,

Wayne Sudderth reported an appraisal

of $225,000.00 (PxX-7) for respondents'

property, and on 20 March 1973, Calvin

Reynolds report an appraisal of $244,

375.00 for respondents' property (PX-6).

Calvin Reynolds was also employed by

petitioner to conduct negotiations for

the purchase of properties needed

by the Authority in its expansion pro-

gram (Tr-p. 92; Tr-p. 75). One of the

employees of Mr. Reynolds in the perfor-

mance of these duties was R. J. Leftwich

(Tr-p. 74-75). In April, 1973, Mr.

Leftwich endeavored to determine, on

behalf of petitioner, if respondents

might be interested in selling this

Cc-14

SIO stale ee AO)» 0

property to petitioner for the sum of

$225,500.00 (Tr-p. 92; Tr-p. 142, Px-

8). Mr. Leftwich met with respondents

and conveyed to respondents an offer by

petitioner to purchase respondents'

property for $225,500.00 (Tr-p. 142).

Respondents indicated such amount was

totally insufficient and respondent

Charles W. Irvin, Jr., stated that he

thought the property was worth at

least $10,000.00 to $12,000.00 an acre

plus the replacement cost of all im-

provements, an sum in excess of $1,000,

000.00 (Tr-p. 143). The results of

this conference were conveyed to peti-

tioner on 14 May 1973 (PX-23).

IX.

The Board of Directors of peti-

tioner, at a meeting held on 6 August

C-15

” |

1973, adopted a resolution authorizing

the Executive Director of petitioner

to offer to pay the appraised value of

respondents' property as determined by

competent appraisers, subject to any

agreement to accept such appraised

value being approved by the land sub-

committee of the Board of Directors

and by the Authority (Petitioner's

Answer to Interrogatories No. 15-

Exhibit C). Said resolution further

provided that if respondents’ property

could not be purchased at its ap-

praised value as so determined,

petitioner should institute condemna-

tion proceedings therefor. At the time

this iiciuihen eek adopted, the 1968

Master Plan approved by the Board

of Directors of petitioner on 19 March

1968 had been amended by the layout

plan prepared by Southern Mapping and

Engineering Company approved by the

Board of Directors of petitioner on

24 May 1971 so as to show that the

plan for the use of respondents'

property was for a cargo area.

The Board of Directors of peti-

tioner, at a meeting held on 29 August

1974, approved a 1973 update of the 1968

Master Plan which incorporated the amend-

ment to the 1968 Master Plan effected

by the layout plan prepared by Southern

Mapping and Engineering Company which

had been approved by the Board of Direc-

tors at a meeting held on 24 May 1971

(PxX-4). The update of the 1968 Master

Plan is entitled "Master Plan for the

Greensboro/High Point/Winston-Salem

Regional Airport" and it was prepared

by Arnold Thompson Associates, Inc.

(PX-3). This 1973 Master Plan included

respondents' property as a part of the

expanded airport and also designated

its use for cargo area. (PX-3).

XI.

Petitioner's Executive Director ob-

tained new appraisals of respondents’

property from Wayne Sudderth and Calvin

Reynolds, both competent appraisers. On

20 June 1975, Wayne Sudderth appraised

respondents' property at $225,000.00

(Tr-p. 62; PX-11), and Calvin Reynolds on

11 July 1975 appraised respondents’

property at $254,000.00 (Tr-p. 63; PX-12).

On 12 July 1974, petitioner's Executive

Director, on behalf of petitioner,

C-18

offered to purchase respondents' property

for $254,000.00, and requested a response

within 30 days (Tr-p. 63-64; Tr-p. 70,

PX-9). Such offer was made by letter to

C. W. Irvin, Jr., Doris Irvin Egerton,

John L. Irvin and Pearl T. Irvin (PX-9).

There was no response to said offer by

Charles Watson Irvin, Jr. (Tr-p. 150).

John L. Irvin responded by letter dated

1 August 1974, in which he rejected peti-

tion's offer of $254,000.00 (Tr-p. 71-72;

PX-15). At the time said letter was

written by ‘petitioner's Executive Direc-

tor, respondent Charles W. Irvin, Jr.,

valued respondents' property in excess

of One Million Dollars ($1,000,000.00),

and would not accept any amount less

than Twelve Thousand to Thirteen Thousand

Dollars per acre for respondents' pro-

perty or a total sum of over One Million

Dollars plus the replacement cost of the

C-19

clubhouse and all other builidngs (Tr-

p. 150).

XII.

Respondents' property is located in

the northwest quadrant of the airport

which is the area in which the projected

expansion is to be located (Tr-p. 31).

Petitioner has already carried out many

of the proposals for expansion set forth

in the 1968 Master Plan (Tr-p.3l1). Two

Fixed Base Operations are now located

in the northwest quadrant of the airport

as well as a new Control Tower and a

new Weather Bureau (Tr-p. 31). Peti-

tioner has employed an architect to

design a new terminal building to be

constructeii in the northwest quadrant

as contewplated by the Master Plan

(Tr-p. 127). The architect has also

C-20

been retained to design cargo facili-

ties, but is not presently working on

this project (Tr-p. 127).

XIII.

Certain improvements are located

on respondents’ property. Among these

are a main house and a tenant house

(Tr-p. 154). The main house (sometimes

referred to as a "clubhouse") (Tr-p.

157) was not in use as a dwelling in

August 1975 (Tr-p. 157). The tenant

house has a "dweller" in it (Tr-p. 155).

XIV.

Public interest and public nec-

essity require petitioner to take and

acquire for the use and benefit of

C-21

petitioner and the public the fee simple

title to the tract of land located near

the Greensboro/High Point/Winston-Salem

Regional Airport in Friendship Township,

Guilford County, North Carolina, which

is described in Paragraph VI of the

petition. Petitioner in good faith

has found that it requires said tract

of land described in Paragraph VI of

the petition for the purpose of carrying

on and conducting the public business

which petitioner is authorized to con-

duct and carry on. Said tract of land

is needed and required in order that

petitioner may use the same for cargo

handling activities in connection with

the planned expansion of the Greensboro/

High Point/Winston-Salem Regional Air-

port, including the construction of a

cargo building thereon, and also in

order to facilitate the use by petitioner

C-22

of its other properties for airport pur-

poses and, in addition, said property

is required in connection with the

general development and expansion by

petitioner of the Greensboro/High Point/

Winston-Salem Regional Airport (PX-1;

PX-3; PX-13). Said acquisition of

said property by petitioner in fee

simple is necessary for the proper

maintenance, improvement and develop-

ment of the airport (PX-1; PX-3; Px-

13).

The respondents are the only parties

who own or have or claim to own or have

estates or interests in said tract of

land described in Paragraph VI of the

petition and the interest of respon-

dents in the fee simple title therein

C-23

are as alleged in the petition, to wit:

respondent Pearl Taylor Irvin owns a

dower interest in an undivided one-

half interest in said tract of land and,

subject to said dower interest, respon-

dents Charles W. Irvin, Jr., John

LaFayette Irvin and Doris Irvin Eger-

ton each owns an undivided one-third

interest in said tract of land in fee

simple, subject to the marital rights

of his or her respective spouse. Said

tract of land is subject to the lien

of all unpaid Guilford County ad valorem

taxes and all unpaid assessments for

sewer, water, or other local improve-

ments made or assessed against said

tract of land by Guilford County, all

of which should be paid out of such award

as may be made in this proceeding to

respondents as owners of said tract of

C-24

land. Said tract of land is subject

to all public utility easeements and

rights of way of record.

The failure, if any, of said Com-

missioners of Appraisal to comply

strictly with statutory provisions re-

garding promptness in the filing of

their reports or in any other respects

constituted mere irregularities which

in no way adversely affected the rights

of the Respondents.

XVII.

Petitioner, acting through its

officers, agents and representatives,

has made an effort in good faith to

purchase and acquire title to the

C-25

real property described in Paragraph

VI hereof, from the owners thereof,

to wit: respondents named herein,

but petitioner and said respondents

have been unable to agree on a price

Or compensation for said tract of land.

XVIII.

The institution of these pro-

ceedings has been duly authorized by

the Board of Directors of the Greens-

boro-High Point Airport Authority

(Petitioner's Ex. C to Answer to

Interrogatories No. 15).

Based upon the foregoing Findings

of Fact, the Court makes the following

CONCLUSIONS OF LAW

The allegations in petitioner's

C-26

petition and the proofs thereof by peti-

tioner comply in all respects with the

provisions of G.S. 40-12, et seq., as

amended.

Il.

The provisions of Chapter 40 of

the General Statutes of North Carolina

are not unconstitutional either under

the provisions of the Constitution of

the United States of America or the

Constitution of North Carolina.

Iii.

The provisions of Chapter 40-10 of

the General Statutes of North Carolina

have no application to condemnation pro-

ceedings instututed by petitioner under

the provisions of Chapter 40 of the

C-27

General Statutes of North Carolina, overruled, except their objections and

since petitioner derives its power to exceptions as to amount of just compen-

condemn from Section 7, Chapter 601, sation as found by the Commissioners

of the Session Laws of 1943. of Appraisal, which issue is for deter-

mination by a trial by jury as herein-

IV. after set forth.

No environmental impact statement vi.

is required, either under the laws of

the United States or of the State of Petitioner, Greensboro-High Point

North Carolina, or under any rules or Airport Authority, is entitled to condemn,

regulations issued in consequence acquire, and take said tract of land

thereof, for petitioner to acquire the divested and barred of all right, title,

tract of land which petitioner is en- interest, easements, and estate in said

deavoring to acquire by condemnation tract of land owned by Respondents upon

in this proceeding. the payment to Respondents of just com-

pensation for said taking.

ming

NOW, THEREFORE, IT IS ORDERED, AD-

All objections and exceptions JUDGED and DECREED:

te SS ee Ar

filed by respondents herein should be

C-29

C-28

(1) That the exceptions made and

taken by Respondents herein to the

Findings of Fact and Conclusions of Law

made by the Clerk of the Superior Court

of Guilford County, and the Order pre-

dicated thereon entered by said Clerk,

dated August 5, 1976, be and the same

are overruled, and said Order is in all

respects affirmed;

(2) That the exceptions made and

taken by Respondents herein to the

Findings of Fact and Conclusions of Law

and the entry of the Judgment of Con-

firmation thereon made and entered by

the Clerk of the Superior Court of Guil-

ford County on the 28th day of February,

1977, be and the same are hereby over-

ruled, and said Judgment of Confirmation

is in all respects affirmed, SAVE and

C-30

EXCEPT insofar as said Judgment relates

to the Respondents' exceptions to and

appeal from the provisions thereof

pertaining to the amount of just com-

pensation to be paid to Respondents

for the taking of the property

described in ARTICLE VI of the Peti-

tion filed herein by petitioner,

Greensboro-High Point Airport Authority,

this Court, at this time, makes no

determination in respect thereto, said

issue of the amount just compensation

being a matter for determination by a

trial by jury;

(3) That by reason of Respondents

exceptions made and taken to the amount

of just compensation as set forth in

said Judgment of Confirmation, and their

appeal from the entry thereof, Respon-

C-31

dents are entitled to a trial by jury be taxed against Petitioner

upon the issue of the amount of just

j b i

compensation to be paid to Respondents This the 6th day of July, 1977.

by the Petitioner for the taking of the

property which is the subject of this s/ Hal H. Walker

Judge Presiding at the

June 27, 1977, Civil Ses-

sion, Superior Court of

Guilford County, North

Carolina.

Proceeding, and this Proceeding is

hereby retained solely for the trial

of such issue;

(4) That Respondents are not en-

titled to a dismissal of this Proceeding

by reason of any of the matters and

things alleged in their respective

answers or other pleadings filed here-

in, or by reason of any evidence con-

tained in the Record of this Proceeding.

(5) That the costs of the action

C=-33

APPENDIX D

CONSTITUTIONAL PROVISIONS

= AND STATUTES

United States Constitution

Amendment V.

U.S.C.A.Const. Amend. V.

Amendment V. Capital Crimes;

Double Jeopardy; Self-Incrimination;

Due Process; Just Compensation For

Property.

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except

in cases arising in the land or naval

forces, or in the Militia, when

in actual service in time of War or

public danger; nor shall any person

be subject for the same offence to be

twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself,

nor be deprived of life, liberty, or

property, without due process of law;

nor shall private property be taken

for public use, without just

compensation.

United States Constitution

Amendment VII.

U.S.C.A.Const. Amend. VII.

Amendment VII. Civil Trials.

In Suits at common law, where the

value in controversy shall exceed twenty -

dollars, the right of trial by jury shall

be preserved, and no fact tried by a

jury, shall be otherwise reexamined in

any Court of the United States, than

according to the rules of the common law.

United States Constitution

Amendment XIV.

U.S.C.A.Const. Amend. XIV.

Amendment XIV. Citizenship;

Privileges and Immunities; Due

Process; Equal Protection; Appor-

tionment of Representation; Dis-

qualification of Officers; Public

Debt; Enforcement.

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities

of citizens of the United States; nor

shall any State deprive any person of

life, liberty, or property, without

due process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

Section 2. Representatives shall be

apportioned among the several States

according to their respective numbers,

counting the whole number of persons in

each State, excluding Indians not

taxed. But when the right to vote at any

election for the choice of electors for

President and Vice President of the

United States, Representatives in

Congress, the Executive and Judicial

officers of a State, or the members

of the Legislature thereof, is denied

to any of the male inhabitants of

such State, being twenty-one years of

age, and citizens of the United States,

or in any way abridged, except for

participation in rebellion, or other

crime, the basis of representation

therein shall be reduced in the

proportion which the number of such male

citizens shall bear to the whole number

of male citizens twenty-one years of

age in such State.

Section 3. No person shall be a

Senator or Representative in Congress, or

elector of President and Vice President,

or hold any office, civil or military,

under the United States, or under any

State, who, having previously taken

an oath, as a member of Congress, or

as an officer of the United States,

or as a member of any state legislature,

or as an executive or judicial officer

of any State, to support the Constitution

of the United States, shall have engaged

in insurrection or rebellion against

the same, or given aid or comfort to the

enemies thereof. But Congress may by

a vote of two-thirds of each House,

remove such disability.

Section 4. The validity of the pub-

lic debt of the United States, authorized

by law, including debts incurred for

payment of pensions and bounties for

services in suppressing insurrection or

rebellion, shall not be questioned. But

neither the United States nor any State

shall assume or pay any debt or

obligation incurred in aid of

insurrection or rebellion against

the United States, or any claim for the

loss or emancipation of any slave;

but all such debts, obligations and

claims shall be held illegal and void.

Section 5. The Congress shall have

power to enforce, by appropriate

legislation, the provisions of this

article.

North Carolina Constitution

Article I

Sec. 19. Law of the land; equal

protection of the laws.

No person shall be taken,

imprisoned, or disseized of his freehold,

liberties, or privileges, or outlawed,

or exiled, or in any manner deprived of

his life, liberty, or property,

but by the law of the land. No

person shall be denied the equal

protection of the laws; nor shall

any person be subjected to

discrimination by the State because

of race, color, religion, or

national origin.

Sec. 25. Right of jury trial in

civil cases.

In all controversies at law res-

pecting property, the ancient mode of

trial by jury is one of the best

securities of the rights of the people,

and shall remain sacred and inviolable.

Article IV.

Sec. 13. Forms of action; rules

of procedure.

(1) Forms of action.

There shall be in this State but

one form of action for the enforcement

or protection of private rights or the

redress of private wrongs, which shall

be denominated a civil action, and

in which there shall be a right to

have issues of fact tried before a

jury. Every action prosecuted by the

people of the State as a party against

a person charged with a public offense,

for the punishment thereof, shall be

termed a criminal action.

(2) Rules of procedure.

The Supreme Court shall have

exclusive authority to make rules of

procedure and practice for the Appellate

Division. The General Assembly may

make rules of procedure and practice

for the Superior Court and District

Court Divisions, and the General

Assembly may delegate this authority

to the Supreme Court. No rule of

procedure or practice shall abridge

substantive rights or abrogate or

limit the right of trial by jury. If the

General Assembly should delegate to the

Supreme Court the rule making power, the

General Assembly may, nevertheless,

alter, amend, or repeal any rule of

procedure or practice adopted by the

Supreme Court for the Superior Court or

District Court Divisions.

United States Code

Title 28

§ 1257. State courts; appeal;

certiorari.

(3) By writ of certiorari, where

the validity of a treaty or statute

of the United States is drawn in

question or where the validity of

a State statute is drawn in question

on the ground of its being repugnant

to the Constitution, treaties or laws

of the United States, or where any

title, right, privilege or immunity is

specially set up or claimed under the

Constitution, treaties or statutes

of, or commission held or authority

exercised under, the United States.

D-10

Title 42

§ 1982. Property rights of

citizens.

All citizens of the United States

shall have the same right, in every

State and Territory, as is enjoyed

by white citizens thereof to inherit,

purchase, lease, sell, hold, and convey

real and personal property.

Title 42

§ 4332. Cooperation of agencies;

reports; availability of information;

recommendations; international and

national coordination of efforts.

The Congress authorizes and

directs that, to the fullest extent

possible: (1) the policies, regu-

lations, and public laws of the United

States shall be interpreted and

D-11

administered in accordance with the

policies set forth in this chapter, and

(2) all agencies of the Federal

Government shall--

(A) utilize a systematic,

interdisciplinary approach which

will insure the integrated use of

the natural and social sciences and

the environmental design arts in

planning and in decisionmaking which

may have an impact on man's environment;

dation or report on proposals for

legislation and other major Federal

actions significantly affecting the

quality of the human environment, a

detailed statement by the responsible

official on--

(i) the environmental impact

of the proposed action,

D-12

(ii) any adverse environmental

effects which cannot be avoided should

the proposal be implemented,

(iii) alternatives to the

proposed action,

(iv} the relationship between

local short-term uses of man's envi-

ronment and the maintenance and

enhancement of long-term productivity,

and

(v) any irreversible and

irretrievable commitments of resources

which would be involved in the proposed

action should it be implemented.

Prior to making any detailed

statement, the responsible Federal

official shall consult with and obtain

the comments of any Federal agency

which has jurisdicition by law or

D-13

special expertise with respect to

any environmental impact involved.

Copies of such statement and the

comments and views of the appropriate

Federal, State, and local agencies,

which are authorized to develop and

enforce environmental standards, shall

be made available to the President, the

Council on Environmental Quality and to

the public as provided by section 552

of Title 5, and shall accompany the

proposal through the existing agency

review processes;

Title 49

§ 1716. Project applications for

airport development.

Approval.

D-14

project may be approved by the Secretary

unless he is satisfied that fair

consideration has been given to the

interest of communities in or near

which the project may be located.

(4) It is declared to be national

policy that airport development

projects authorized pursuant to this

subchapter shall provide for the

protection and enhancement of the natural

resources and the quality of environment

of the Nation. In implementing this

policy, the Secretary shall consult

with the Secretaries of the Interior and

Health, Education, and Welfare with

regard to the effect that any project

involving airport location, a major

runway extension, or runway location may

have on natural resources including, but

D-15

not limited to, fish and wildlife,

natural, scenic, and recreatiohk assets,

water and air quality, and other factors

affecting the environment, and shall

authorize no such project found to have

adverse effect unless the Secretary shall

render a finding, in writing, following

a full and complete review, which shall

be a matter of public record, that no

feasible and prudent alternative exists

and that all possible steps have been

taken to minimize such adverse effect.

Hearings

(d) (1) No airport development

project involving the location of an

airport, an airport runway, or a runway

extension may be approved by the

Secretary unless the public agency

D-16

sponsoring the project certifies to the

Secretary that there has been afforded

the opportunity for public hearings for

the purpose of considering the economic,

social, and environmental effects of

the airport location and its consistency

with the goals and objectives of such

urban planning as has been carried

out by the community.

(2) When hearings are held under

paragraph (1) of this subsection, the

project sponsor shall, when requested by

the Secretary, submit a copy of the

transcript to the Secretary.

Air and water quality

(e) (1) The Secretary shall not

approve any project application for a

project involving airport location, a

D-17

Major runway extension, or runway

location unless the Governor of the State

in which such project may be located

certifies in writing to the Secretary

that there is reasonable assurance that

the project will be located, designed,

constructed, and operated so as to

comply with applicable air and water

quality standards. In any case where

such standards have not been approved

or where such standards have been

promulgated by the Secretary of the

Interior or the Secretary of Health,

Education, and Welfare, certification

shall be obtained from the appropriate

Secretary. Notice of certification or

of refusal to certify shall be provided

within sixty days after the project

application is received by the Secretary.

D-18

(2) The Secretary shall condition

approval of any such project application

on compliance during construction and

operation with applicable air and water

quality standards.

North Carolina General Statutes

Volume 2A

Chapter 40. Eminent Domain

§ 40-10. Dwelling houses and burial

grounds cannot be condemned.

No such corporation shall be allowed

to have condemned to its use, without the

consent of the owner, his dwelling house,

yard, kitchen, garden or burial ground,

unless condemnation of such property is

expressly authorized in its charter or by

some provision of this Code.

Article 2.

Condemnation Proceedings.

§ 40-11. Proceedings when parties

cannot agree.

If any corporation, enumerated in

G.S. 40-2, possessing by law the right of

eminent domain in this State, is unable

to agree for the purchase of any real

estate required for purposes of its

incorporation or for the purposes

specified in this Chapter, it shall have

the right to acquire fee simple title

to such real estate or an easement in

such real estate in the manner and by the

special proceedings herein prescribed.

§ 40-12. Petition filed; contains

what; copy served.

For the purpose of acquiring such

title the corporation, or the owner of

D-20

the land sought to be condemned, may

present a petition to the clerk of the

superior court of the county in which

the real estate described in the petition

is situtated, praying for the appoirtment

of commissioners of appraisal. Such

petition shall be signed and verified

according to the rules and practice of

such court; and if filed by the

corporation it must contain a description

of the real estate which the corporation

seeks to acquire; and it must, in effect,

state that the corporation is duly

incorporated, and that it is its inten-

tion in good faith to conduct and

carry on the public business authorized

by its charter, stating in detail the

nature of such public business, and the

specific use of such land; that the land

described in the petition is required

for the purpose of conducting the

D-21

proposed business, and that the

corporation has not been able to acquire

title thereto, and the reason of such

inability. The petition, whether filed

by the corporation or the owner of the

land, must also state the names and

places of residence of the parties, so

far as the same can by reasonable

diligence be ascertained, who own or

have, or claim to own or have, estates or

interests in the said real estate; and if

any such persons are infants, their ages,

as near as may be, must be stated; and if

any such persons are idiots or persons

of unsound mind or are unknown, that

fact must be stated, together with such

other allegations and statements of liens

or encumbrances on said real estate as

the corporation or the owner may see fit

to make. A summons as in other cases of

special proceedings, together with

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a copy of the petition, must be served

on all persons whose interests are to be

affected by the proceedings, at least

10 days prior to the hearing of the same

by the court.

§ 40-17. Powers and duties of

commissioners.

The commissioners, before entering

upon the discharge of their duties, shall

take and subscribe an oath that they will

fairly and impartially appraise the lands

mentioned in the petition. Any one of

them may issue subpoenas, administer

oaths to witnesses, and any two of them

may adjourn the proceedings before them

from time to time, in their discretion.

Whenever they meet, except by the

appointment of the court or pursuant to

adjournment, they shall cause 10 days'

notice of such meeting to be given to

the parties who are to be affected by

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their proceedings, or their attorney or

agent. They shall view the premises

described in the petition, hear the

proofs and allegations of the parties,

and reduce the testimony, if any is taken

by them, to writing; and after the

testimony is closed in each case, and

without any unnecessary delay, and before

proceeding to the examination of any

other claim, a majority of them all being

present and acting, shall ascertain and

determine the compensation which ought

justly to be made by the corporation to

the party or parties owning or interested

in the real estate appraised by them.

They shall report the same to the court

within 10 days.

§ 40-18. Form of commissioners'

report.

When the commissioners shall have

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assessed the damages, they shall

forthwith make and subscribe a written

report of their proceedings, in substance

as follows:

To the Clerk of the Superior Court of....

e+.-County:

We,...++.+, Commissioners appointed

by the court to assess the damages that

have been and will be sustained by

eecccsceesey, the owner of certain land

lying in the county of............, which

the..........corporation proposes to

condemn for its use, do hereby certify

that we met on..........(or the day to

which we were regularly adjourned), and,

having first been duly sworn, we visited

the premises of the owner, and after

taking into full consideration the

quality and quantity of the land

aforesaid, the additional fencing likely

D-25

to be occasioned by/ the work of the

corporation, and all other inconveniences

likely to result to the owner, we have

estimated and do assess the damages

aforesaid at the sum of $..........

We have estimated the special

benefits which the said owner will

receive from the construction of said

works to be the sum of $...........

Given under our hands, the.......

day Geictcoscesevess A.D. ,\ See

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.