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Better Options for Property “Takings” by Government


Road Work Ahead SignIt is no secret that there are many upcoming road projects in our area.  You would have to be blind not to see that we need roads in the North Mecklenburg and South Iredell area.  The unfortunate, but necessary, land acquisitions that accompany those projects present a very difficult and emotional conflict between landowners and the governmental staff charged with acquiring the needed right of way.

Taking people’s property is one of the most difficult tasks of any government.  It is their job to plan for the roads we desperately need.  Especially if the taking has a “local flavor” – your town representatives are involved - it is hard to sit in local businesses, churches and ball games with people who have taken your property.  It is one of the most infuriating experiences to have property that you earned or inherited from family through the generations taken by the government to which you are forced to pay taxes.  It is just not the “polite” thing to do.  Your own money being used to take your property is just not what any local taxpayer wants to see.  Unfortunately, it is a necessary evil of progress that roads have to go somewhere.  The key idea to live by is that, “It is not personal” – on either side.  Try to keep an open mind and remove the emotion from the process as much as possible.

The process should be as local as possible.  We are neighbors; let’s work together to make the process as collaborative as we can.  We know we need roads and they have to go somewhere.  If the road affects your property, understand that the government will pay you for whatever they take.  Yes, I know you would rather not have them take any … but that option is simply not possible.  Go to the next position and ask yourself, “How can I make this unfortunate situation work for my benefit so that I have a better quality of life after the new road?”

Most people have heard of “condemnation”, “right of imminent domain”, “taking” and all of the accompanying horror stories.  The years of litigation, the litany of expert testimony, appraisers, construction nightmares, disrupted lives and decimated properties and property values.  It does not have to be that way.  However, a better result requires BOTH sides to be willing to talk, compromise and leave room to work together for the benefit of all involved.  The government has to be willing to be a little patient and landowners have to be willing to listen to reason and accept the changes coming to their situations.  Hopefully, the changes can and will be positive.  Failing to work together will result in the worst of all possible situations:  a judge or jury in Davidson or Statesville making a cold decision about your property, your lives and your homes or businesses based on limited facts and in less than ideal circumstances.  There are much better options available.

The use of a local mediation process with impartial mediators who understand local issues and use local people is one of those options.  A mediation is an assisted negotiation where everyone has to agree before resolution is reached.  There is no reason not to sit down and talk; nothing is forced upon you here – you agree to whatever follows.  The decision that is reached by and between the two parties most affected by it is usually much better than one that is imposed by a court.  It has the opportunity to take many more factors into consideration than a court can.  It is not bound by the artificial dictates of the law:  if you can agree, it can happen.  Need more time, we can do that.  Move the road this way a little and save the big tree, no problem.  Pay some more money and get needed access to another Town project, yes, that has value to us.  The options are literally limitless.

You have the chance to talk about your concerns with someone trained to express them to the other side and hopefully have some room to make concessions as needed.  Again, the focus should not be on adversarial, suit, condemnation, but on the collaborative and cooperative.  It is OK to be a little unhappy in some things, but have a resolution that everyone can live with … without the need for lawsuits and trips to Davidson.  Attorneys can be part of the process as long as their focus is a resolution and not prolonging a painful situation for either party.   The mediations can be scheduled in all types of places and at times convenient for both parties.  The more we can make it convenient for the participants, the more likely we are to get a good result and the worse the option of going to Davidson becomes.

If you are unable to reach an agreeable resolution, the State or Town is required by statute to use this process that will result in increased costs for everyone and the end result is that the Court in Davidson or Statesville will decide what should happen and both parties may leave very unhappy.  It will require the use of attorneys and be expensive for both sides.  It is time consuming and the costs will mount … is it not in everyone’s interest to look at a better option?

Author:  Bob McIntosh, Attorney & President

The McIntosh Law Firm, P.C.