# Petition — Irvin v. Greensboro-High Point Airport Authority

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 912

## 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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eae Oe: oe

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.
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-8
D-10
D-11

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-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

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

32

11

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-

1l

26

20

11

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)
(C) and the Airport Act, 49 U.S.C.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-
oe

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."
xk

"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

is

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

ee

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

I.

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;

(C) include in every recommen-
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.

(c) (3) No airport development

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

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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

D-24

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2149%3A1. Public record. Not legal advice.