Wilkie v. City of Boiling Spring Lakes
Wilkie v. City of Boiling Spring Lakes
Opinion
**540 The issue in this case is whether plaintiffs Edward F. and Debra T. Wilkie are entitled to seek compensation pursuant to N.C.G.S. § 40A-51 based upon the extended flooding of their property as the result of actions taken by defendant City of Boiling Spring Lakes for an allegedly private purpose. For the reasons set forth below, we reverse the Court of Appeals' decision and remand this case to the Court of Appeals for consideration of defendant's remaining challenges to the trial court's order.
**541 Plaintiffs own a house and lot bordering Spring Lake, a thirty-one acre body of water owned by defendant that is fed by natural springs that empty into the lake and by surface water runoff from the surrounding area. Two fixed pipes drain excess water from Spring Lake.
On 25 June 2013, defendant's Board of Commissioners received a petition signed by plaintiffs 1 and other persons owning property adjacent to Spring Lake requesting that defendant modify the height of the drain pipes. According to a number of persons who owned property adjoining Spring Lake, the installation of replacement pipes a number of years earlier had lowered the lake level. On 2 July 2013, after several meetings during which concerns about the lake level continued to be expressed, the Board voted "to return Spring Lake to its original shore line as quickly as can be done."
On or about 11 July 2013, "elbows" were placed onto the inlet side of the two outlet pipes for the purpose of raising the pipes by eight or nine inches and elevating the lake level. After the pipes were raised, plaintiffs claimed that portions of their property were covered by the lake. Plaintiffs and a number of other lakeside property owners signed a second petition seeking removal of the "elbows" from the outlet pipes that was presented to the Board on 6 August 2013.
After receiving the second petition, the Board voted to lower the lake level by three inches. A number of additional Board meetings were held between 6 August 2013 and 13 *855 January 2014, during which several residents complained that water from the lake continued to encroach upon their property. However, a majority of the Board refrained from voting to remove the elbows during these meetings. On 13 January 2014, the Board voted to hire Sungate Design Group, an engineering firm, to determine the appropriate lake level. In light of Sungate's recommendation that the lake be returned to its original level, the elbows were removed on 30 July 2014.
On 23 May 2014, plaintiffs filed a complaint in which they sought, among other things, compensation pursuant to N.C.G.S. § 40A-51. In support of their request for relief, plaintiffs asserted that they had "lost approximately fifteen to eighteen percent" of their lakeside property **542 "due to the installation of the 'elbow' and subsequent rise of Spring Lake's water level," that the Board "voted to install an elbow on a drainage pipe within Spring Lake for the purpose of raising Spring Lake's water level" "to further a public use and public purpose," and that "[t]he City did not file a complaint containing a declaration of this taking." As a result, plaintiffs sought compensation for the taking of their property pursuant to N.C.G.S. §§ 40A-8 and 40A-51, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 19 of the North Carolina Constitution. 2
After conducting a hearing pursuant to N.C.G.S. § 40A-47 for the purpose of resolving all disputed issues between the parties other than the amount of damages, if any, to which plaintiffs were entitled, the trial court entered an order on 5 November 2015 determining that the installation of the elbows "for the benefit of, and at the sole request of, residents around the lake" elevated the lake level and "encroached upon and submerged" plaintiffs' property and resulted in a "taking of [plaintiffs'] property without just compensation being paid." Although defendant "maintain[ed] Spring Lake at elevated levels" "for a private use," the trial court determined that plaintiffs had "proven their N.C.G.S. §[ ]40A-51 cause of action" because defendant took a temporary easement in a portion of plaintiffs' property without filing a complaint containing a declaration of taking. 3 As a result, the trial court ordered that further proceedings be held for the purpose of determining the amount of compensation to which plaintiffs were entitled in light of the temporary taking of a portion of their property.
In seeking relief from the trial court's order before the Court of Appeals, defendant argued that plaintiffs' claims should be dismissed because a claim for inverse condemnation does not lie unless plaintiffs' property is taken for a public use or public purpose. According to defendant, the trial court's determination that defendant decided to raise the
**543
lake level for the benefit of private landowners "should have ended the case." In defendant's view, the remedy provided by N.C.G.S. § 40A-51(a) is only available when "property has been taken by an act or omission of a condemnor listed in G.S. 40A-3(b) or (c)" "[f]or the public use or benefit." In addition, defendant argued that the trial court had erred by concluding that a taking had occurred given that (1) the encroachment upon and damage to plaintiffs' property was not foreseeable; (2) the trial court misapplied the principles enunciated in the decision of the United States Supreme Court in
Arkansas Game & Fish Commission v. United States,
Plaintiffs, on the other hand, contended that "neither a 'public use' nor a 'public purpose' is an element of an inverse condemnation action." According to plaintiffs, this Court held in
Kirby v. North Carolina Department of Transportation,
In reversing the trial court's order, the Court of Appeals began by noting that "[o]rders from a condemnation hearing concerning title and area taken are vital preliminary issues that must be immediately appealed pursuant to N.C.[G.S.] § 1-277, which permits interlocutory appeals of determinations affecting substantial rights."
Wilkie v. City of Boiling Spring Lakes,
--- N.C. App. ----, ----,
id="p544" href="#p544" data-label="544" data-citation-index="2" class="page-label">**544
In seeking relief from the Court of Appeals' decision before this Court, plaintiffs argue that N.C.G.S. § 40A-51 is "clear and unambiguous" and only requires a showing
*857
"(1) that property has been taken, (2) by an act or omission, (3) of a condemnor listed in N.C.[G.S.] § 40A-3(b) or (c), and (4) that no condemnation complaint containing a declaration has been filed," with the Court of Appeals having erred by "adding a 'public use or benefit' requirement" to the elements of a statutory inverse condemnation claim. According to plaintiffs, the phrase " 'listed in [N.C.]G.S. [§] 40A-3(b) or (c)' should be applied to the immediately preceding word 'condemnor' as opposed to the earlier phrase 'act or
**545
omission,' " so as to limit "the type of
entity
that can be sued for inverse condemnation" rather than "the type of
action or omission
for which a property owner can recover following a taking." In advancing this argument, plaintiffs point to the doctrine of the last antecedent, pursuant to which "relative and qualifying words, phrases, and clauses ordinarily are to be applied to the word or phrase immediately preceding."
HCA Crossroads Residential Ctrs., Inc. v. N.C. Dep't of Human Res.
,
Defendant, on the other hand, contends that an examination of both the language in which N.C.G.S. § 40A-51 is couched and the statute's legislative history demonstrates that an inverse condemnation claimant must allege and show that the property in question was taken by one of "the enumerated acts or omissions" listed in N.C.G.S. § 40A-3(b) and (c). According to defendant, the statutory reference to an "act or omission" would be superfluous in the absence of such an interpretation, given that "everything a condemnor does is either an act or omission." Defendant asserts that the doctrine of the last antecedent provides no assistance in interpreting N.C.G.S. § 40A-51, since "listed in N.C.G.S. § 40A-3(b) or (c)" could modify either the entire phrase "enumerated acts or omissions
**546
of condemnors" or nothing more than "condemnors." Defendant claims that the language granting "the authority to exercise the power of eminent domain" in N.C.G.S. § 40A-1 applies to and limits the availability of the statutory inverse condemnation remedy set out in N.C.G.S. § 40A-51 on the grounds that "inverse condemnation is the process of forcing a government to exercise its power of eminent domain," citing
Hoyle v. City of Charlotte,
According to defendant, even if the phrase "listed in [G.S.] 40A-3(b) or (c)" refers to "condemnors," rather than "acts or omissions," N.C.G.S. § 40A-51 requires that the claimant show that his or her injury resulted from a "taking," which is a "term of art" that refers to "takings under the power of eminent domain." In defendant's view, "the application of inverse condemnation [is limited] to those situations '[w]here private property is
taken
for a public purpose by a governmental agency having the power of eminent
*858
domain,' " (quoting
State Highway Commission v. L.A. Reynolds Co.,
The essential issue before us in this case 4 is whether a property owner seeking to assert a statutory inverse condemnation claim pursuant to N.C.G.S. § 40A-51 must show that the condemnor acted to further a public purpose. In order to resolve this issue, we are required **547 to construe the relevant statutory language. After carefully considering the relevant statutory language and precedent, we conclude that the references to N.C.G.S. § 40A-3(b) and (c) contained in N.C.G.S. § 40A-51 serve to simply delineate the universe of entities against whom a statutory inverse condemnation action can be brought pursuant to N.C.G.S. § 40A-51 rather than limiting the acts or omissions that must be shown in order to permit the maintenance of the statutory inverse condemnation action authorized by N.C.G.S. § 40A-51.
"Questions of statutory interpretation are ultimately questions of law for the courts and are reviewed de novo."
In re Ernst & Young
,
LLP,
N.C.G.S. § 40A-51(a) provides, in pertinent part, that
[i]f property has been taken by an act or omission of a condemnor listed in [N.C.]G.S. [§] 40A-3(b) or (c) and no complaint containing a declaration of taking *859 has been filed the owner of the property [ ] may initiate an action to seek compensation for the taking.
**548 N.C.G.S. § 40A-51(a) (2017). N.C.G.S. § 40A-3(b) 5 and (c), 6 to which reference is made in N.C.G.S. § 40A-51(a), contain a list of entities that have "the power of eminent domain" "[f]or the public use or benefit." In other words, N.C.G.S. § 40A-3(b) and (c) specify the public entities that are entitled to exercise the power of eminent domain and the purposes for which the entities in question are entitled to exercise that authority. When read in context and in accordance with ordinary English usage, the reference to N.C.G.S. § 40A-3(b) and (c) contained in N.C.G.S. § 40A-51(a) makes most sense as a simple delineation of the range of entities against whom a statutory inverse condemnation action can be brought rather than as a description of the motivations underlying the "act[s] or omission[s]" necessary for the existence of a statutory inverse condemnation claim. As a result, we hold that the plain meaning of the reference to N.C.G.S. § 40A-3(b) and (c) contained in N.C.G.S. § 40A-51(a) is to specify the entities against whom a statutory inverse condemnation claim can be asserted and nothing more.
A number of additional considerations support this "plain meaning" construction of the relevant statutory language. As plaintiffs note, "relative and qualifying words, phrases, and clauses ordinarily are to be applied to the word or phrase immediately preceding" rather than
**549
"extending to or including others more remote," "unless the context indicates a contrary intent."
HCA Crossroads
,
In addition, it seems to us that a decision to provide a claimant whose property has been taken for a public purpose with a statutory
*860
inverse condemnation remedy while depriving a claimant who has suffered the same injury for a non-public purpose of the right to utilize that statutory remedy seems inconsistent with the likely legislative intent. "[W]hen the Act is considered as a whole in the light of the evils sought to be eliminated, the remedies intended to be applied, and the objective to be attained," a decision to construe N.C.G.S. § 40A-51 so as to limit plaintiffs' statutory inverse condemnation remedy to instances in which the condemnor acted for a public purpose would "attribute to [the General Assembly] a purpose and intent so fraught with injustice as to shock the consciences of fair-minded men" while a contrary construction "is consonant with the general purpose and intent of the Act ...[,] is in harmony with the other provisions of the statute, and serves to effectuate the objective of the legislation."
Puckett,
Although defendant contends that "taken" and "taking" as used in N.C.G.S. § 40A-51(a) are terms of art that serve to limit statutory inverse condemnation proceedings to claims arising from actions or omissions undertaken for a public purpose, we do not find that argument persuasive.
8
"Usually, words of a statute will be given their natural, approved, and recognized meaning,"
Black v. Littlejohn
,
"A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty." N.C. Const. art. I, § 35.
While North Carolina does not have an express constitutional provision against the "taking" or "damaging" of private property for public use without payment of just compensation, this Court has allowed recovery for a taking on constitutional as well as common law principles. We recognize the fundamental right to just compensation as so grounded in natural law and justice that it is part of the fundamental law of this State, and imposes upon a governmental agency taking private property for public use a correlative duty to make just compensation to the owner of the property taken. This principle is considered in North Carolina as an integral part of " the law of the land" within the meaning of Article I, Section 19 of our State Constitution.
Beroth Oil Co. v. N.C. Dep't of Transp.
,
*862
City of Charlotte v. Spratt,
REVERSED AND REMANDED.
The only member of the family who actually signed the petition was Ms. Wilkie, who affixed her name and that of Mr. Wilkie to the document.
According to surveys obtained by plaintiffs on 14 May 2014, while the elbows were still in place, and 18 March 2015, after the elbows had been removed, "the Lake encroached upon and submerged 1,192 square feet of [plaintiffs'] property" "during the time the elbows were installed." An appraisal commissioned by plaintiffs estimated that the value of the topsoil and centipede grass lost due to the flooding of plaintiffs' property amounted to $1,000. The validity of these damage estimates appears to be a disputed issue of fact.
The trial court also determined that the installation of the elbows proximately caused the encroachment of the lake water upon plaintiffs' land, that this encroachment was foreseeable, and that defendant had taken "a temporary easement interest in 1,120 square feet of [plaintiffs'] property for a period of 1 year and 20 days" along with "a portion of the topsoil and centipede grass that was located on the same."
Plaintiffs also argue that defendant failed to note a timely appeal from the trial court's order and that the raising of the lake level constituted a taking for a public purpose. After carefully reviewing the record, we conclude that the trial court did not err by denying plaintiffs' motion to dismiss defendant's appeal and that the Court of Appeals did not err by addressing defendant's challenges to the trial court's order on the merits. In addition, we decline to address plaintiffs' "public use or benefit" argument both because we denied plaintiffs' request for discretionary review of that issue and because we need not do so given our decision with respect to the statutory construction issue that we did elect to review.
N.C.G.S. § 40A-3(b) (2017) allows "the governing body of each municipality or county" to "possess" "the power of eminent domain" for the purposes of: "[o]pening, widening, extending, or improving roads, streets, alleys, and sidewalks"; "[e]stablishing, extending, enlarging, or improving" various public enterprises; [e]stablishing, extending, enlarging or improving parks, playgrounds, and other recreational facilities"; "[e]stablishing, extending, enlarging or improving storm sewer and drainage systems and works, or sewer and septic tank lines and systems"; [e]stablishing, enlarging, or improving hospital facilities, cemeteries, or library facilities"; "[c]onstructing, enlarging, or improving city halls, fire stations, office buildings, courthouse jails and other buildings for use by any department, board, commission or agency"; "[e]stablishing drainage programs"; "[a]cquiring designated historic properties"; and "[o]pening, widening, extending, or improving public wharves." N.C.G.S. § 40A-3(b) also extends the "power of eminent domain" to "[t]he board of education of any municipality or county" "for purposes authorized by Chapter 115C of the General Statutes."
N.C.G.S. § 40A-3(c) (2017) authorizes "[a] sanitary district board," "[t]he board of commissioners of a mosquito control district," "[a] hospital authority," "[a] watershed improvement district," "[a] housing authority," "[a] corporation as defined in [N.C.]G.S. [§] 157.50," "a commission established under the provisions of Article 22 of Chapter 160A," "[a]n authority created under the provisions of Article 1 of Chapter 162A," "[a] district established under the provisions of Article 4 of Chapter 162A," "[t]he board of trustees of a community college," "[a] district established under the provisions of Article 6 of Chapter 162A," and "[a] regional public transportation authority" to exercise "the power of eminent domain" "[f]or the public use or benefit."
Defendant asserts that N.C.G.S. § 40A-51 is a procedural, rather than a remedial, statute given that the claimant's right to recover arises from the relevant constitutional provisions rather than from N.C.G.S. § 40A-51. Although this assertion may, as a technical matter, be true, a decision in defendant's favor would deprive plaintiffs of access to the relatively clear statutory procedures spelled out in N.C.G.S. § 40A-51 and compel plaintiffs to seek redress using procedures that are less suited to the type of claim that they seek to assert. As a result, we are inclined to believe that, when viewed in any realistic sense, N.C.G.S. § 40A-51 is intended to have a remedial effect by codifying any remedies that might otherwise be available to claimants in plaintiffs' position and should be treated as a remedial statute.
To be sure, a number of decisions of this Court and the Court of Appeals have made reference to a "public use" requirement in generally defining an inverse condemnation claim.
See, e.g.,
State Highway Comm'n. v. L.A. Reynolds Co.,
Our decision in
State Highway Commission v. Batts
,
Reference
- Full Case Name
- Edward F. WILKIE and Debra T. Wilkie v. CITY OF BOILING SPRING LAKES
- Cited By
- 47 cases
- Status
- Published
- Syllabus
- Action for inverse condemnation pursuant to N.C.G.S. 40A-51 based upon the flooding of plaintiffs' property by water from an adjacent City-owned lake.