City trying to claim land through eminent domain

Last updated: March 21. 2014 2:45PM - 3744 Views
By - aoverfelt@civitasmedia.com

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LAURINBURG — The city of Laurinburg aims to bolster its water system by using eminent domain to acquire three wells on a Scotland County farm, but the farmer, a Pembroke resident, is contesting what the city considers fair price for his land is far less than the revenue he could earn by using the water that lies below the soil.

Brian Maynor, a partner of the 275-acre Shoeheel Farms located along Wagram and Log Cabin Roads, and longtime municipal government attorney Garris Neil Yarborough say that the $4,000 the city has offered for each of three parcels of land, which together total less than an acre, is not sufficient.

Maynor has told The Laurinburg Exchange that an irrigation system could provide him with an additional $200,000 of revenue a year.

While it could be a year or more before the case is heard in civil court, a Feb. 24 request for an injunction, filed by Yarborough in an effort to prevent the city from proceeding with the condemnation and subsequent use of Maynor’s property, was denied by Scotland County Superior Court Judge Richard T. Brown — allowing the city to continue its pursuit of the groundwater beneath Shoeheel Farms while the two parties battle over Maynor’s due compensation.

“The resource is the water, and that’s the resource that I need and the resource that they need,” Maynor said. “That’s where the value comes in.”

Following the injunction’s denial, the city on March 11 filed a civil summons that states a “declaration of taking” and notes that a deposit for $12,000 — the amount determined by the city to be fair compensation for the land — has been deposited into an account. The summons asks that the court make a determination of fair compensation for the property.

City Attorney Bill Floyd and other city officials have declined to comment on the case, as is customary with pending litigation, referring questions to civil court documents.

“We’re a long way off from a trial of the case, that could be maybe a year from now,” Yarborough said. “There’s a lot of intermediate steps before we get to trial.”

The city in its motion states that North Carolina General Statutes allow it to “condemn property inside or outside of its boundaries to extend, enlarge or improve its water supply and distribution systems, which are public enterprises… .”

According to background provided by Yarborough in his Feb. 24 injunction request, the city in July approached Maynor and asked him for permission to access his property in order to drill three wells — one located east of and adjacent to U.S. 401 (Wagram Road), one west and adjacent to U.S. 401 and the other north and adjacent to Log Cabin Road — to “determine suitable locations for raw water wells to provide water to a manufacturing facility being built off U.S. 401 bypass near Heck Norton Road.”

Maynor says he was told the water would be tested to see if it met the standards of FCC America LLC, currently the only facility at the U.S. 401 Industrial Park, and that if it did, the two parties would agree on a suitable price. Maynor, who at the time was already thinking about testing for the potential installation of an irrigation system, welcomed the city onto his property.

“My feelings were, if they offer something reasonable then I’ll scrap my plans to irrigate,” he said, “and if they didn’t offer a reasonable price I would go ahead with my plans to irrigate.”

Maynor said the wells were found to be capable of producing some 600 gallons of water per minute each, a total of more than 315 million gallons per year that would be pumped into the city’s system and then sold.

After the city spent some $70,000 on one well site and paid for appraisals of the land, according to an affadavit by City Manager Charles Nichols, it deemed that $4,000 per site was an adequate offer.

“I told him it wasn’t acceptable, laid out my case and he immediately said ‘We don’t have time for this, we’re going to take you to court,’” Maynor said.

In his affadavit, Nichols states that Maynor sent an email on Nov. 14 “rejecting these offers and making outrageous demands on the city,” including a purchase price of $300,000.

“They’re trying to suck up all the water out from under me,” Maynor said.

Yarborough argues that the city would never had filed a notice of condemnation of Maynor’s land if it had not known that the water beneath it was compatible with FCC’s needs; and that knowledge would have not been gained if Maynor had not voluntarily agreed to let the city proceed with testing.

Without “the promise to mutually agree on a price, there would have been no consideration flowing to (Maynor) and no reason for them to enter into this access contract,” Yarborough wrote in the background. “… The (city) has now gotten what it wants, knowledge of the suitability of (Shoeheel Farm’s) water for FCC, and now wishes to use that information for the purposes of condemnation as opposed to acquiring it by means of a mutually agreed upon price. It is also interesting to note that although the (city) wants access to all the water under (Shoeheel Farms) they only want to acquire three small well sites to suck it all out and pay for only the land upon which these three small well sites are located.”

Yarborough also argues that eminent domain may not be used to “take one’s private property for the use of another.”

While the city argues that Maynor’s claims regarding the water’s unilateral benefit to FCC are unfounded, Floyd states in his motion for dismissal of Yarborough’s findings that the city’s intent doesn’t matter.

“Even if the court were to find that the expansion of the city’s water and distribution systems were being undertaken for the sole purpose of benefiting a single customer, which it is not, this is still a proper basis for public utilities to condemn private property under North Carolina law,” he writes.

Abbi Overfelt can be reached at 910-276-2311, Ext. 12. Follow her on Twitter @aoinscotco.

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