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COA Holds That Issues Regarding Decline In Property Value After DOT's Construction Of A Median Fall Within The Trial Court's Discretion

By Sean E. Andrussier

In Dept. of Trans. v. Blevins, the DOT filed a complaint and declaration of taking to widen a highway that ran in front of Blevins' convenience store. The taking involved 279 square feet of property and a drainage easement, and the widening involved construction of a median that Blevins claimed would further reduce the value of his property. Blevins claimed that the $2,375 DOT wanted to give him for the taking was not just compensation. The trial court found that the road widening and median construction reduced the fair market value of the property and awarded Blevins $74,000.01. On appeal DOT argued that the construction of a median to separate lanes of traffic is an exercise of the State's police power and is not a compensable injury. The COA majority disagreed and held that the trial court did not abuse its discretion in admitting evidence of the effect of the highway's median on the value of Blevins' property. Judge Jackson dissented, arguing that two NC Supreme Court cases, Barnes v. North Carolina State Highway Comm'n, 257 N.C. 507, 126 S.E.2d 732 (1962), and City of Concord v. Stafford, 173 N.C. App. 201, 618 S.E.2d 276 (2005), denied property owners compensation for the diminution in value resulting from median construction because this was a proper exercise of police power. The majority distinguished Barnes and Stafford, saying that those cases dealt with situations where the decrease in value resulting from construction of a median was the primary damage from the taking, whereas here there was also a taking of part of Blevins' property and a drainage easement. The majority characterized the issue as whether the trial court properly exercised its broad discretion in admitting evidence.

Full post as published by North Carolina Appellate Blog on January 07, 2009 (boomark / email).