Commissioners Receive ‘Petition for Action’ Regarding Intake, Moved To Closed Session

Published Wednesday, January 20, 2016 at 11:33 am

By Jesse Wood

The Watauga County Board of Commissioners heard from Deborah Greene of the New River Advocates, a nonprofit that opposes the Town of Boone’s water intake along the South Fork of the New River, regarding a “petition for action.”

Greene is requesting that the Watauga County Board of Commissioners “compel the Town of Boone to seek approval” from them regarding the town’s condemnations of property in the county for its intake.

Last year, the Town of Boone filed 16 condemnation actions the day before the passage of N.C. House Bill 875, which prevents municipalities in Ashe and Watauga counties from exercising eminent domain outside of its planning jurisdiction without the consent of elected officials in those counties.

The bill was sponsored by N.C. Rep. Jonathan Jordan in April and later advanced through the Senate by N.C. Sen. Dan Soucek in September. Jordan sponsored the bill on the heels of the Town of Boone notifying landowners of its intent to acquire easements along the transmission line route of its proposed water intake near Todd – either through a fair negotiation or eminent domain.

In the “petition for action,” the New River Advocates state that while the condemnation proceedings were filed one day before the bill’s ratification, the town didn’t file the memorandum of action for the properties being condemned until Sept. 25, which is about one week after the bill instantly became law upon passage.

“The New River Advocates, Inc. contends the Town of Boone failed to initiate the condemnation proceedings on Sept. 16, 2015 by failure to file the memorandum of action referenced herein until Sept. 25, 2015,” the petition for action reads.

The New River Advocates state that the commissioners have standing to request the Town of Boone to seek approval from them and also requests the commissioners to take legal action to prevent the Town of Boone from seeking final judgment of the condemnations without the commissioner’s approval.

After listening to Greene’s presentation, which essentially boiled down to reading the two-page petition, Austin Eggers, an attorney representing the county, said it would be “better” to discuss the issue under closed session.

“Right now it’s a question of standing and whether or not the county has standing to bring this type of action,” Eggers said, adding that this likely falls under attorney-client matters.

With those words from Eggers, Chair Jimmy Hodges asked for the consensus of the board to discuss this issue in closed session after the public portion of the meeting.

“So we all have a good understanding of the situation. This could be a very contentious issue, so we want to deal with in in the right way and not jump into something that could cause a big problem or whatever for this board and this county,” Hodges said.

With consent of the board, the commissioners moved on to the next agenda item.

Responding to a request for comment via email on Wednesday morning, Town Attorney Allison Meade said that the town “certainly” disagrees with the assessment in the “petition for action” and said that she or Town Manager John Ward would provide further comment later in the day.

[Update: Here’s Meade’s response:

“The condemnations were filed on Sept. 16 and the law as it existed on that date is what will apply to them.  Here is why:

NC case law establishes that, with limited exceptions that don’t apply here, the law as it exists when a civil action is filed is the law that applies to that case.  Normally, a “civil action” is instituted when the complaint is filed.  In the case of a condemnation, the statute is explicit as to when the action is filed.  NCGS s 40A-41 provides in relevant part: “A public condemnor listed in G.S. 40A-3(b) or (c) shall institute a civil action to condemn property by filing in the superior court of any county in which the land is located a complaint containing a declaration of taking declaring that property therein is thereby taken for the use of the condemnor . . .”  Accordingly, the Town’s civil action was properly filed when it filed its complaint and declaration of taking, both of which happened on September 16, 2015.

This conclusion is further buttressed by the language of s. 40A-42, which provides that in cases such as this, title immediately vests in the condemnor “upon the filling of the complaint and the making of the deposit in accordance with G.S. 40A-41.”  There is no mention of “memorandums of actions” in either 40A-41 or 40A-42.

The filing of the MOA with the Register of Deeds office is required by a different provision of the statute, s. 40A-43.  Nothing in this provision states that a MOA must be filed as part of the civil action, or that it must be filed for the civil action to be effective.   The point of the filing of the memorandum is to give title record notice in the Register of Deeds office to potential purchasers of the real property at issue that the property is subject to a condemnation.  The filing requirement thus protects third parties and the condemnor in the event the condemnee attempts to sell or obtain a loan on property that is subject to a condemnation action, by ensuring that potential purchasers or lenders have notice of the pending condemnation.  In other words, the requirement for the filing of the MOA is for the protection of third parties and the condemnor – not the condemnee.  So, even assuming that the MOA was filed “late” in this case, the supposedly “late” filing of the MOA that does not cause prejudice to any party cannot possibly be found to invalidate or delay the effective date of the civil action.  There is no NC appellate case in which a court has ever found that failure to file a MOA on the same day as a complaint was filed affected the validity or effective date of the complaint.”]

When the town filed the condemnations in September prior to the passage of the legislation, Brantz noted that the town chose to act because this bill would add additional costs and delays to a project that has already cost at least $2 million and is several years old.

“The delays involved with changing state law at the end of the easement acquisition phase of the project could compromise approximately $22 million in loans and grants the Town of Boone has secured,” Brantz said in September.

County Manager Deron Geouque didn’t immediately respond to questions regarding the closed session meeting on Tuesday evening.

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