Town of Midland v. Wayne

IN THE SUPREME COURT OF NORTH CAROLINA

No. 458PA13

TOWN OF MIDLAND

v.
DARRYL KEITH WAYNE, Trustee, or any successors in trust, under the Darryl
Keith Wayne Revocable Trust Agreement, and any Amendments thereto, dated
February 23, 2007

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 748 S.E.2d 35 (2013), affirming in part

and reversing in part orders entered on 23 March 2012 and 7 June 2012 by Judge C.

W. Bragg in Superior Court, Cabarrus County, and remanding for additional

proceedings. Heard in the Supreme Court on 10 September 2014.

Hartsell & Williams, P.A., by Andrew T. Cornelius and Brittany M. Love, for
plaintiff-appellee.

Vandeventer Black LLP, by Norman W. Shearin, David P. Ferrell, and Ashley
P. Holmes, for defendant-appellant.

NEWBY, Justice.

In this condemnation action we decide the existence of a vested right to develop

a subdivision and the effect of that vested right on the questions of unity of ownership

and damages. We hold that the owners of the undeveloped portions of the subdivision

have a vested right to complete the subdivision in accordance with the pre-approved

plan. Having a vested right to complete the subdivision means both owners of the

remaining undeveloped property, the named defendant and the limited liability
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Opinion of the Court

company, have interests affected by the condemnation of a portion of the subdivision,

satisfying the unity of ownership requirement. The measure of damages is the

difference between the value of the property before the taking and the value

immediately afterwards. The vested right enhances the value of the property before

the taking but is not a separate element of damages. Accordingly, we modify and

affirm in part and reverse in part the decision of the Court of Appeals.

Defendant’s predecessor in title, Darryl Keith Wayne (“Wayne”), owned two

tracts of land totaling ninety acres (“Wayne Tracts”).1 Park Creek, LLC (“the LCC”),

the majority of which is owned by Wayne, held the adjacent one hundred sixty acres.

Together, Wayne and the LLC submitted a Customized Development Plan (“the 1997

plan”) for a multiphase, two hundred fifty acre residential subdivision known as Park

Creek (“Park Creek”). The Cabarrus County Planning and Zoning Commission

approved the 1997 plan provided that the development met certain requirements.

These requirements specified minimum lot sizes and established a certain percentage

of the “high-income,” two hundred home subdivision as open space. Wayne and the

LLC developed the first two phases using some of the land owned by the LLC,

installing water lines and other infrastructure designed and constructed to service

the future phases as well. On or after 23 February 2007, Wayne conveyed his

property to defendant, his revocable trust of which he is the trustee (“defendant”). By

1The Wayne Tracts consist of a 74.75 acre parcel and a 15.11 acre parcel. The
condemned three-acre easement crosses both parcels.

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2009 the first two development phases of Park Creek were substantially completed,

representing roughly fifty percent of the subdivision, at a cost of approximately $4.6

million dollars. Most of the lots in the first two phases had been sold. At that time,

the future phases of the subdivision, including one tract of about forty acres owned

by the LLC (“LLC Tract”) and the Wayne Tracts, remained mostly undeveloped.

Since its inception defendant and the LLC have maintained the 1997 plan as required

by the Town, and the legal effectiveness of the 1997 plan has never lapsed.

In February 2009 in Superior Court, Cabarrus County, the Town of Midland

filed two separate condemnation actions against defendant, condemning three acres

of the Wayne Tracts for a right-of-way and easement “to construct and operate a

natural gas pipeline for the transmission and distribution of natural gas,” “to

construct and operate a fiber optic line,” and “to obtain a temporary construction

easement in order to construct the pipeline” (“the easement”). As required by statute,

the Town deposited its estimated value and asked for a determination of just

compensation. The Town did not name the LLC as a party or identify its tract in the

condemnation actions, presumably because the easement did not cross any portion of

the LLC property. Likewise, the Town did not specify the taking of the vested right

to complete the subdivision as approved. The Town’s condemnation actions

contemplated taking only the three acres necessary for the easement.

Defendant filed an answer to each complaint, claiming the amount offered by

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the Town was insufficient and asking for a determination of just compensation.2 In

October 2011 defendant moved to consolidate the two actions for purposes of hearing

all issues other than compensation. Defendant also moved to amend his answers to

include additional issues for adjudication, particularly those addressing “the scope of

the land affected by the taking and the Town’s inverse condemnation of certain areas

of [his] property outside the temporary and permanent easement areas.”

The same day that defendant moved to consolidate the actions, the LLC moved

to intervene in the actions, asserting that the easement affected the LLC Tract as

well. The LLC stated that since its undeveloped land was part of Park Creek, “[t]he

Court’s determination of the area affected by the taking and disposition of [this

action] may, as a practical matter, impair or impede [the LLC’s] ability to protect its

interest in the Subdivision rights in parcels of land which lie upon the Subdivision.”3

On 27 October 2011, the trial court found that the two affected Wayne Tracts

are adjacent to the LLC Tract and that Wayne “is the Trustee of Defendant and also

the principal or exclusive owner of [the] LLC.” The trial court, however, denied the

LLC’s motion to intervene as untimely. The trial court noted that the LLC “can

2 As permitted under the condemnation statutes, see N.C.G.S. § 40A-48 (2013), in
June 2011 three commissioners determined that defendant should receive $220,000,
representing just compensation for the property taken. The Town disagreed with the
commissioners and requested a jury determination of value. Defendant also desires to have
a jury decide just compensation.
3 The LLC also owns several unsold lots in the developed portion of Park Creek. The

effect of the condemnation, if any, on the unsold developed lots is not a part of these
proceedings.

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separately and adequately protect its interest by pursuing any separate action that

may be available to it.”4 In the same order the trial court also consolidated the two

condemnation actions for certain purposes5 and allowed defendant to amend his

answers: (1) “to assert a counterclaim to seek compensation for an inverse

condemnation resulting from [the Town’s] actions in connection with the pipeline

outside the boundaries of the property described in the declaration of taking,” and

(2) to request that the court treat the Wayne tracts “as a single parcel with ‘other

adjoining parcels owned by Defendant or individuals or related entities to

Defendant.’ ”

In his amended answers dated 1 November 2011, defendant counterclaimed

that, while constructing the natural gas pipeline and fiber optic line, the Town’s

contractor transported equipment and maintained construction staging areas outside

the easement boundaries without his consent. Defendant claimed that, as a result,

“the Town has physically damaged and inversely condemned the Wayne Tracts

outside and beyond the easement areas.” Defendant reiterated his request that

plaintiff pay him “just compensation for the taking of the Wayne Tracts.”

4 It appears that the LLC attempted to assign its claim for damages to defendant.
Later, the LLC initiated a separate action. In two separate orders dated 21 March 2012
and 1 June 2012, the trial court concluded that the LLC impermissibly assigned its claim
for damages, thereby violating the intent and spirit of the trial court’s denial of the motion
to intervene. The trial court later granted a motion to consolidate the Town’s condemnation
actions against defendant and the action initiated by the LLC for the sake of judicial
economy due to common questions of law and fact and the “virtually identical” issues
involved.
5 Hereinafter, the consolidated condemnation actions are referred to in the singular.

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Additionally, defendant “reserve[d] the right to have the parcels to be condemned . . .

and any other adjoining parcels owned by Defendant or individuals or related entities

to Defendant treated as a single parcel for purposes of determining just

compensation.”

At the hearing for determination of issues under N.C.G.S. § 40A-47, defendant

presented evidence that the easement’s far-reaching effect, though perhaps

unforeseen, decreases the net developable area of the subdivision property and

impairs vital flexibility in its development. Defendant’s expert asserted that the

easement reduces road frontage on some lots, diminishes lot yield, adversely affects

street designs and water line placement, shrinks or eliminates vegetative buffers,

and reduces overall residential density. The expert noted that the easement

mandates certain grade restrictions and includes other requirements such as buffer

zones and set-offs. For example, before the easement took effect, any lots developed

could extend onto a pre-existing utility easement; however, the new easement

prevents development over itself, and its grading restrictions prevent the

development of land used for the pre-existing utility easement as well. Moreover,

according to defendant, the grading restrictions adversely affect the predetermined

road network within the subdivision. Likewise, construction of the pipeline within

the easement eliminated an existing buffer of mature woodlands, forcing defendant

to plant a new vegetative buffer and further reducing the remaining developable land.

The permanent effects of the easement, defendant argued, have made it economically

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unfeasible for him to develop the Wayne Tracts in accordance with the 1997 plan, will

cause him to incur additional development costs, and will reduce the overall value of

the remaining undeveloped lots in the subdivision.

In an order dated 21 March 2012, the trial court concluded as a matter of law

that the Town had inversely condemned a portion of the Wayne Tracts situated

outside the easement by maintaining staging areas during construction. In the same

order the trial court found that “the Cabarrus County Planning & Zoning Commission

approved a Customized Development Plan for the Subdivision which included the

Wayne Tracts,” and subsequently, “Wayne has maintained the Plan as required by

Cabarrus County.” Based on defendant’s evidence, the trial court found “that the

impact of the gas pipeline easements would reduce the developable area of the Wayne

Tracts, reduce road frontage for some lots, reduce lot yield, reduce flexibility in

development, including adversely affecting street designs and locations, reduce or

eliminate some vegetative buffers, and reduce residential density.” As a result, “[t]he

installation of the gas pipeline . . . reduced the net developable area available in the

Wayne Tracts,” making “it no longer economically feasible for Wayne to develop the

Wayne Tracts in accordance with the Plan.” The trial court further concluded that

the easement “substantially interfere[d] with the elemental property rights in the

Wayne Tracts, and thereby diminished the fair market value of the entire Wayne

Tracts.” As a matter of law, the trial court stated that “[t]he decrease in developable

land and loss of density resulting from [the easement] has had a significant adverse

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impact on Wayne’s rights to develop the Subdivision in accordance with the Plan.”

Moreover, on the date the easement was taken, “the Plan was valid, remained in

effect, and recognized by Cabarrus County.” Therefore, the trial court concluded as

a matter of law that the easement “resulted in a regulatory taking of the Wayne

Tracts.”

In a separate order issued the same day the trial court denied defendant’s

request that the Wayne Tracts and the adjacent property owned by the LLC be

considered as one unified tract. The trial court determined that establishing a unified

tract for the purpose of assessing condemnation damages requires “ ‘some unity of

ownership . . . when separate parcels of land are involved.’ ” Relying on our decision

in Board of Transportation v. Martin, 296 N.C. 20, 28, 249 S.E.2d 390, 396 (1978),

the trial court noted that “ ‘a parcel of land owned by an individual and an adjacent

parcel of land owned by a corporation of which that individual is the sole or principal

shareholder cannot be treated as a unified tract for the purpose of assessing

condemnation damages.’ ” The trial court determined as a matter of law that Martin

controls here “where Wayne owns the Wayne Tracts and Park Creek, LLC, in which

Mr. Wayne is majority owner, owns the adjoining land.” Therefore, no unity of

ownership existed between the Wayne Tracts and the LLC Tract, limiting the area

affected by the taking for purposes of compensation to the Wayne Tracts.

Defendant successfully moved the trial court to amend its orders to recognize

that he based his unity of ownership argument on his vested right to develop land

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“upon the valid approval . . . of . . . a phased development plan, giving land owners

the right to undertake and complete the development and use of said property under

the terms and conditions of the . . . plan” and on his common law vested rights to

develop his land based on his “substantial expenditures of money, time, labor or

energy in a good faith reliance on a government approved land use.” In its amended

order the trial court found that it was “no longer economically feasible for Wayne to

construct roads on the Wayne Tracts in accordance with the Plan,” thus depriving

him of “all practical uses of the Wayne Tracts.” The Town’s condemnation action,

according to the trial court, has “had a significant adverse impact on Wayne’s

statutory and common law vested rights to develop the Subdivision in accordance

with the Plan” and has resulted “in a regulatory taking of the Wayne Tracts.”

Nonetheless, the trial court once more found that, despite defendant’s vested rights,

the decision in Martin precludes finding unity of ownership between defendant and

the LLC.

Before the damages phase of the trial began, both defendant and the Town

entered interlocutory notices of appeal. Town of Midland v. Wayne, ___ N.C. App.

___, ___, 748 S.E.2d 35, 38 (2013). The Town appealed the trial court’s ruling that

maintaining the construction staging areas resulted in an inverse condemnation and

that a separate and complete taking of the Wayne Tracts occurred. Defendant cross-

appealed the trial court’s conclusion that “no unity of ownership existed as to the

contiguous tracts of land owned by Wayne and Park Creek, LLC.”

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Opinion of the Court

First, addressing the Town’s appeal, the Court of Appeals affirmed the trial

court’s conclusion that the construction staging areas located outside the easement

constituted a temporary inverse taking, id. at ___, 748 S.E.2d at 38-39, and the Town

has not sought further review of this issue. Thus, the decision of the Court of Appeals

as to this issue is final.

Then, the Court of Appeals reversed the trial court’s conclusion that the Town’s

condemnation action constituted a “regulatory” or separate and complete taking of

the Wayne Tracts. Id. at ___, 748 S.E.2d at 39-40. The Court of Appeals first observed

the absence of findings in the trial court’s order to support its conclusion that the

eighty-seven acres of the Wayne Tracts remaining outside the easement retain “no

‘practical use . . . or reasonable value.’ ” Id. at ___, 748 S.E.2d at 39-40. Noting that

“ ‘a taking does not occur simply because government action deprives an owner of

previously available property rights,’ ” id. at ___, 748 S.E.2d at 39, the Court of

Appeals concluded that the trial court erred in finding a separate and complete taking

of the Wayne Tracts because the trial court’s findings suggested that “the Wayne

Tracts could still be developed for residential use, though not in accordance with the

1997 Plan,” id. at ___, 748 S.E.2d at 40 (citing Finch v. City of Durham N.C., 325 N.C.

352, 364, 366, 384 S.E.2d 8, 15, 16 (1989)).

Next, the Court of Appeals addressed defendant’s argument “based on the trial

court’s findings that defendant had a ‘vested right’ in the 1997 Plan.” Id. at ___, 748

S.E.2d at 40. Pointing to the Town’s complaints which identified specific portions of

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the Wayne Tracts as the “ ‘property [it] sought to acquire,’ ” as required by N.C.G.S.

§ 40A-20, the Court of Appeals determined that “where a condemner has taken a

portion of a tract, ‘evidence regarding the adverse effects of the condemnation on the

remaining property is admissible, but such effects are not separate items of

damages.’ ” Wayne, id. at ___, 748 S.E.2d at 40 (quoting Bd. of Transp. v. Jones, 297

N.C. 436, 439, 255 S.E.2d 185, 187-88 (1979) (citation and internal quotation marks

omitted)). Rather than requiring “separate” damages for the loss of defendant’s

“vested rights,” the Court of Appeals reasoned the compensation awarded in exchange

for the easement may account for any “diminution in [market] value of the Wayne

Tracts.” Id. at ___, 748 S.E.2d at 40 (“Defendant is not entitled to additional

compensation, beyond the diminution in value as provided in N.C. Gen. Stat. § 40A-

64, based on the loss of the right to develop the property in a certain way.”).

The Court of Appeals lastly addressed defendant’s unity of ownership

argument. Relying on our decision in Martin, the Court of Appeals affirmed the trial

court’s conclusion that no unity of ownership existed between the Wayne Tracts and

the LLC Tract for the purpose of determining compensation. Wayne, id. at ___, 748

S.E.2d at 41. In so holding, the Court of Appeals noted that defendant, “individually,

has no interest in the tract owned by Park Creek, LLC,” but “merely owns an interest

in the limited liability company which owns the tract.” Id. at ___, 748 S.E.2d at 41.

Because defendant has secured the advantages of the LLC as a liability shield, the

Court of Appeals concluded that he cannot now request that the court disregard it.

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Id. at ___, 748 S.E.2d at 41-42. Ultimately, given its analysis, the Court of Appeals

found a determination of the existence of a vested right to be unnecessary. Id. at ___

n.2, 748 S.E.2d at 40 n.2.

We allowed defendant’s petition for discretionary review. Town of Midland v.

Wayne, 367 N.C. 292, 753 S.E.2d 664 (2014). On appeal, defendant reasserts that a

taking of his vested right to develop the remainder of Park Creek under the 1997 plan

has occurred, requiring the Town to identify it in the complaint and compensate for

the vested right as an additional, separate element of damages. Moreover, defendant

argues that the vested right to develop these contiguous parcels according to that

plan satisfies the unity of ownership required between the Wayne Tracts and the LLC

Tract. The Town first responds that defendant failed to meet the criteria for a

statutory vested right under N.C.G.S. § 153A-344.1 because the statute terminated

any such vested right in defendant two years after approval of the 1997 plan, unless

specifically extended by the county. See N.C.G.S. § 153A-344.1(d)(1)-(2) (2013). The

Town further contends that defendant failed to establish a common law vested right

because substantial expenditures had not been made on the undeveloped tracts of the

subdivision. As to whether the Town must identify and compensate for any

interference with a vested right, the Town argues that the complaints sufficiently

identify the property rights and tracts of land affected by the taking. Finally, the

Town asserts the Court of Appeals correctly held that there was no unity of ownership

as to the Wayne Tracts and the LLC Tract.

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Opinion of the Court

“[T]he power of eminent domain[ ] is one of the prerogatives of a sovereign

state. . . . Its exercise, however, is limited by the constitutional requirements of due

process and payment of just compensation for property condemned.” Dep’t of Transp.

v. M.M. Fowler, Inc., 361 N.C. 1, 4, 637 S.E.2d 885, 889 (2006) (citations and quotation

marks omitted). See N.C. Const. art. I, § 19 (“No person shall be . . . deprived of his . . .

property, but by the law of the land.”); see also U.S. Const. amend. XIV, § 1 (“[N]or

shall any State deprive any person of life, liberty, or property, without due process of

law . . . .”). Due process requires that the property right taken and the owner of the

right be identified in the condemnation complaint. See Barnes v. N.C. State Highway

Comm’n, 250 N.C. 378, 387, 109 S.E.2d 219, 227 (1959) (noting the government’s duty

to make just compensation to the owner of the property appropriated). Just

compensation means “that persons being required to provide land for public projects

are put in the same financial position as prior to the taking.” Dep’t of Transp. v. Rowe,

353 N.C. 671, 679, 549 S.E.2d 203, 210 (2001) (citations omitted), cert. denied, 534

U.S. 1130, 122 S. Ct. 1070, 151 L. Ed. 2d 972 (2002).

“If there is a taking of less than the entire tract, the measure of compensation

is the greater of either (i) the amount by which the fair market value of the entire

tract immediately before the taking exceeds the fair market value of the remainder

immediately after the taking; or (ii) the fair market value of the property taken.”

N.C.G.S. § 40A-64(b) (2013); see also Fowler, 361 N.C. at 5, 637 S.E.2d at 889 (defining

just compensation in condemnation proceedings instituted by the Department of

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Transportation as the difference between the “before value” and the “after value”

(citing N.C.G.S. § 136-112(1) (2005))).6 In weighing before and after values, a

determination of the property’s remaining fair market value considers the property’s

worth in light of its “ ‘availability for all valuable uses.’ ” Fowler, 361 N.C. at 6, 637

S.E.2d at 890 (quoting State v. Johnson, 282 N.C. 1, 14, 191 S.E.2d 641, 651 (1972)

(citation and quotation marks omitted)).

We must first determine the property interest affected by the condemnation

action, identifying the property right taken and its owner. After hearing evidence,

the trial court determined that defendant had a vested right to develop the property

under the 1997 plan. We agree. While the trial court found a vested right based on

both a common law and statutory analysis, we confine our review to the common law.

At common law, government may not deprive a landowner of his right to

continue with an approved use of his land when, in good faith and in reliance upon

valid governmental approval, he makes substantial expenditures or incurs significant

contractual obligations towards that approved use. Town of Hillsborough v. Smith,

276 N.C. 48, 55, 170 S.E.2d 904, 909 (1969). “Once [a developer] makes substantial

expenditures in good-faith reliance on the approval, he has a vested right to carry out

the project as approved.” River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 112,

6 The valuation approach used in subdivision 40A-64(b)(i) is known as the “before
and after method.” While subdivision 40A-64(b)(ii) allows valuation to be computed based
on “the fair market value of the property taken,” it appears, here, that the before and after
method will result in the greater recovery.

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388 S.E.2d 538, 544-45 (1990) (citing Smith, 276 N.C. at 48, 170 S.E.2d at 904). “[A]

determination of the ‘vested rights’ issue requires resolution of questions of fact,

including reasonableness of reliance, existence of good or bad faith, and substantiality

of expenditures.” Godfrey v. Zoning Bd. of Adjust., 317 N.C. 51, 63, 344 S.E.2d 272,

279 (1986) (citations omitted).

The trial court’s findings of fact sufficiently support its conclusion that the

Town’s condemnation action interfered with defendant’s vested right to develop the

future phases of the subdivision under the 1997 plan. Defendant’s approved,

multiphase residential development plan—a preliminary planning followed by

phased implementation—is consistent with the inherent nature of residential

development. Defendant reasonably and in good faith relied on that plan because it

has never lapsed in legal effect. See River Birch, 326 N.C. at 111, 388 S.E.2d at 544

(“[T]he preliminary plan is a formal document that constitutes the most critical step

in the subdivision approval process.”); Dep’t of Transp. v. Nelson Co., 127 N.C. App.

365, 368-69, 489 S.E.2d 449, 451 (1997) (acknowledging the unity of use component

inherent in the multiphase commercial development process). As found by the trial

court, defendant in good faith reliance made substantial expenditures of money, time,

and labor based on the 1997 plan, thus supporting his common law vested right to

develop the subdivision in accordance with the plan. The Town’s argument that the

expenditures were directed primarily to the developed first two phases of Park Creek

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fails to recognize the unified nature of the 1997 plan and the benefit of the

expenditures to the entire subdivision.

This vested right determination also informs our decision as to which parties

are affected by the taking. We agree with defendant’s argument that the common

law vested right to develop the contiguous parcels according to the 1997 plan helps

satisfy the unity of ownership required between the Wayne Tracts and LLC Tract.

Under section 40A-67, “all contiguous tracts of land that are in the same ownership

and are being used as an integrated economic unit shall be treated as if the combined

tracts constitute a single tract” for the purpose of determining just compensation in

an eminent domain proceeding. N.C.G.S. § 40A-67 (2013). Three factors generally

determine whether contiguous tracts of land should be considered as a whole:

(1) “unity of ownership” between the parcels; (2) “unity of use” between the parcels;

and (3) “physical unity” between the parcels. Barnes, 250 N.C. at 384, 109 S.E.2d at

224-25. “ ‘Under certain circumstances the presence of all these unities is not

essential.’ ” Martin, 296 N.C. at 25, 249 S.E.2d at 394 (quoting Barnes, 250 N.C. at

384, 109 S.E.2d at 225). Though some unity of ownership is required, a party need

not “ ‘have the same quantity or quality of interest or estate in all parts of the tract.’ ”

Id. Among the three factors, the one “ ‘given greatest emphasis’ ” and most often

found “ ‘controlling in determining whether land is a single tract is unity of use.’ ”

Martin, 296 N.C. at 25-26, 249 S.E.2d at 394 (quoting Barnes, 250 N.C. at 384-85,

109 S.E.2d at 225); see Nelson, 127 N.C. App. at 368, 489 S.E.2d at 451 (concluding

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that, if a completed, commercially developed office park would be considered an

“integrated economic unit,” a partially completed office park meets that requirement

as well). The connecting parcels must “be presently, actually, and permanently used

in such a manner that the enjoyment of the parcel taken is reasonably and

substantially necessary to the enjoyment of the remaining parcel.” Martin, 296 N.C.

at 29, 249 S.E.2d at 396.

Here the undeveloped tracts of Park Creek are contiguous, satisfying the

“physical unity” requirement. Most importantly, as we have said, is “unity of use.”

Not only are the Wayne Tracts and LLC Tract part of the same subdivision, they are

subject to the same vested right to be developed pursuant to the 1997 plan.

Defendant and the LLC each have an identifiable interest in the lands of the other;

the Wayne Tracts and the LLC Tract are indispensable parts of the unified project.

Consequently, the easement area taken is “reasonably and substantially necessary to

the enjoyment” of both the Wayne Tracts and the LLC Tract. Id. The unity of use is

controlling and being a part of a vested development plan is the strongest evidence of

unity of use. Nonetheless, a modicum of unity of ownership must also be present. Cf.

City of Winston-Salem N.C. v. Yarbrough, 117 N.C. App. 340, 345, 451 S.E.2d 358,

362 (1994), cert. denied, 340 N.C. 110, 456 S.E.2d 311 (1995) (concluding that unity

of ownership exists between a husband and a wife, each owning separate tracts,

because of the inchoate dower interest of the wife in the husband’s property). Given

the significance of the joint vested right to develop Park Creek, we hold that the unity

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of ownership is satisfied here, where Wayne is the trustee of his revocable trust

owning the Wayne Tracts and has the controlling interest in the LLC.

The Court of Appeals and the trial court relied heavily on Martin to conclude

that unity of ownership did not exist between defendant and the LLC. Each court

believed Martin involved one tract owned by an individual and an adjacent tract

owned by a corporation of which the individual was the sole shareholder. The facts

and holding of Martin, however, are far more nuanced than that analysis implies.

First, title to the adjacent property sought to be included in the condemnation in

Martin was not titled in the corporation but in a distinct, unrelated entity, a

bankruptcy trustee. Martin, 296 N.C. at 29-30, 249 S.E.2d at 396-97. Further, and

most importantly, there was no unity of use; the adjacent parcel was not a part of an

approved development project. Though the owner in Martin may have intended some

future development of the undeveloped parcel in conjunction with the adjacent

developed tract, unlike here, that site had not received an approved, unified

development plan encompassing the entire property. Id. at 30, 249 S.E.2d at 397.

Finally, we consider the measure of damages. Defendant argues, and the trial

court determined, that the loss of the vested right is a separate “property interest”

for which he is entitled to compensation. We do not agree. The vested right is not a

property interest separate from the real estate to which it attaches; it is, instead, a

unique quality of that land which enhances the value. Generally, an undeveloped

parcel of land for which development has been approved is significantly more

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valuable than the same parcel without the development rights. As such, it is an

important feature of the condemned land and not a separate, compensable property

right.

According to defendant and the trial court, the Town’s condemnation

undermines defendant’s vested right to implement an approved plan to develop the

future phases of the subdivision in harmony with the already completed development.

Defendant incurred substantial expense in good faith reliance on the 1997 plan,

including, inter alia, installation of infrastructure, preparation of plats and surveys,

and marketing the subdivision. The significant adverse effects of the easement and

resulting losses in developable area, residential density and flexibility in the

development, and the shifting of shared costs prevent defendant from completing the

1997 plan in accordance with his vested right.

Nonetheless, the statute establishes that the measure of damages is simply the

difference between the value immediately before the taking and that immediately

afterwards. N.C.G.S. § 40A-64(b). The fact that the property is subject to the vested

right to be developed under the 1997 plan will be the significant factor in determining

the value before the taking. During the damages stage of trial, the jury may believe

the evidence presented, as did the trial court, that the condemnation has virtually

eliminated the use of the property as a residential subdivision. If so, the jury’s

ultimate valuation will reflect the value of the property before the taking as an

approved residential development and the value after the taking as acreage without

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Opinion of the Court

that significant benefit. Regardless, the remaining undeveloped portion of Park

Creek retains some value. Thus, the statutory before and after method will provide

defendant and the LLC just compensation for the taking, including any loss of the

ability to develop the subdivision under their vested right.

In sum, we hold that defendant and the LLC have a vested right to complete

Park Creek pursuant to the 1997 plan. Since defendant and the LLC own contiguous

properties which are subject to a vested, unified development plan adversely affected

by the condemnation, and Wayne has a modicum of interest in both, unity of

ownership exists. The Court of Appeals’ decision as to the lack of unity of ownership

is reversed. Regarding the measure of damages, loss of a vested right is not a

separate element of recovery but a quality of the property. The value of the property

before the taking will reflect the enhancement resulting from the vested right as the

value afterward will reflect the diminution or destruction of the right. As to this

issue, the Court of Appeals’ decision is modified and affirmed.

Accordingly, the decision of the Court of Appeals is modified and affirmed in

part and reversed in part. This matter is remanded to the Court of Appeals for

further remand to the Superior Court, Cabarrus County, to determine at trial the

damages arising from the condemnation and for further proceedings not inconsistent

with this opinion.

MODIFIED AND AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

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Opinion of the Court

Justice ERVIN did not participate in the consideration or decision of this case.

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