              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-473

                                 Filed: 5 April 2016

Mecklenburg County, No. 13-CVS-8602

THE CITY OF CHARLOTTE, a municipal corporation, Plaintiff,

             v.

UNIVERSITY FINANCIAL PROPERTIES, LLC, a North Carolina limited liability
company f/k/a University Bank Properties Limited Partnership, a North Carolina
limited partnership, et al., Defendants.


      Appeal by plaintiff from orders entered 17 December 2014 by Judge John W.

Bowers in Mecklenburg County Superior Court. Heard in the Court of Appeals 4

November 2015.


      Parker Poe Adams & Bernstein, LLP, by Jonathan E. Hall, Benjamin R.
      Sullivan, and Nicolas E. Tosco, for plaintiff-appellant.

      Johnston, Allison & Hord, P.A., by Martin L. White, R. Susanne Todd, and
      David V. Brennan, for defendant-appellee.


      DAVIS, Judge.


      This appeal arises from the condemnation by the City of Charlotte (“the City”)

of a portion of property owned by University Financial Properties, LLC (“University

Financial”) in connection with the expansion of the City’s light rail system. The

primary issued raised by the City on appeal concerns the trial court’s determination

that the construction of an elevated bridge (“the Bridge”) in connection with the light
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rail extension project “is part of the taking of University Financial’s property in this

action.” After careful review, we reverse and remand for further proceedings.

                                Factual Background

      University Financial owns property located at the intersection of North Tryon

Street and W.T. Harris Boulevard in Charlotte, North Carolina. University Financial

leases the property to Bank of America, which operates a retail banking services

branch from this location.

      On 30 April 2013, the City filed a complaint and declaration of taking in

Mecklenburg County Superior Court to acquire by condemnation a portion of

University Financial’s property “in connection with the LYNX Blueline Extension,

Northeast Corridor Lightrail Project.”       University Financial’s tract of property

comprises 75,079 total square feet, and the City’s declaration of taking identified

5,135 square feet of the tract that would be taken in fee simple. The declaration of

taking also set forth various easements the City would be acquiring with respect to

University Financial’s property. The property taken in fee simple was acquired in

order to widen the travel lanes of North Tryon Street and accommodate vehicular

traffic because the infrastructure for the new light rail line — specifically, the light

rail track and the Bridge — will be located in the middle of the existing roadway so

as to enable the light rail to travel down the center of North Tryon Street. University

Financial filed its answer on 9 April 2014, seeking the trial court’s determination of



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just compensation for the property taken and the diminution in value of the

remaining tract as a result of the taking.

      On 24 October 2014, the City filed a motion for the determination of all issues

other than damages pursuant to N.C. Gen. Stat. § 136-108. In its motion, the City

contended that University Financial was not entitled to compensation for any loss of

visibility to its property resulting from the construction of the Bridge because the

Bridge was not being built on the condemned property.         Consequently, the City

requested a hearing under § 136-108 so that the trial court could “determine whether

any impact from construction of the bridge within the existing public right-of-way is

part of the taking in this action and is therefore compensable.”

      On 19 November 2014, the City filed a motion for partial summary judgment

“on the question of whether an elevated bridge that the City plans to build at the

intersection of North Tryon Street and W.T. Harris Boulevard is part of the taking in

this case and is an element of the just compensation owed to University Financial.”

University Financial filed several exhibits with its response to the City’s partial

summary judgment motion, and the City moved to strike these documents, alleging

that they were inadmissible on various grounds.

      The trial court held a hearing on the City’s motions on 1 December 2014. In

three orders entered 17 December 2014, the trial court (1) determined that the

construction of the Bridge “is part of the taking of University Financial’s property in



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this action” and that University Financial is entitled to present evidence of “any and

all damages resulting from the impact of the construction of the [light rail], including

construction of the Bridge, on its remaining property”; (2) denied the City’s motion

for partial summary judgment; and (3) denied its motion to strike. The City gave

timely notice of appeal.

                                       Analysis

I. Appellate Jurisdiction

      All three of the trial court’s orders that the City seeks to appeal are

interlocutory orders. It is well established that interlocutory orders, which are made

during the pendency of an action, are generally not immediately appealable. Duval

v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007). If,

however, the order implicates a substantial right that will be lost absent our review

prior to the entry of a final judgment, an immediate appeal is permissible. See Veazey

v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“An appeal does not

lie . . . from an interlocutory order of the Superior Court, unless such order affects

some substantial right claimed by the appellant and will work an injury to him if not

corrected before an appeal from the final judgment.”).

      In condemnation proceedings, our appellate courts have identified certain

“vital preliminary issues,” such as the trial court’s determination of the title or area

taken, which affect a substantial right and are subject to immediate appeal. N.C.



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Dep’t of Transp. v. Stagecoach Village, 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005)

(citation and quotation marks omitted); see Dep’t of Transp. v. Airlie Park, Inc., 156

N.C. App. 63, 66, 576 S.E.2d 341, 343 (“Because defendant’s present appeal

specifically contests the trial court’s determination of the area affected by the taking,

which is a ‘vital preliminary issue,’ such appeal is properly before this Court.”), appeal

dismissed, 357 N.C. 504, 587 S.E.2d 417 (2003). In its order pursuant to N.C. Gen.

Stat. § 136-108, the trial court concluded that the City’s construction of the Bridge

was “part of the taking in this action.”                 Because this ruling concerns the area

encompassed by the taking, we have jurisdiction over the City’s appeal with regard

to the trial court’s determination of this issue.1

II. Damages Due to Loss of Visibility

        In ruling on the issue of “whether any impact from construction of the bridge

within the existing public right of way is part of the taking [in] this action and

therefore compensable,” the trial court concluded, in pertinent part, as follows: (1)

“The construction of the BLE Project2, including the construction of the Bridge, is

part of the taking of University Financial’s property in this action”; (2) “Any and all




        1  For the reasons explained herein, our ruling on the trial court’s § 136-108 issue is dispositive
of this entire appeal and grants the City the relief it sought in its motion for partial summary
judgment. Moreover, our decision renders moot the City’s appeal of the trial court’s denial of its motion
to strike.

        2The term “BLE Project” is an abbreviation of the project’s full title, which is the LYNX Blue
Line Extension Northeast Corridor Light Rail Project.

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impact to University Financial’s remaining property caused by the construction of the

BLE Project, including construction of the Bridge, is compensable”; and (3) “Loss of

visibility of University Financial’s remaining property resulting from the Bridge is a

factor that may be considered by a finder of fact in determining the fair market value

of University Financial’s remaining property.”

      Based on the above-quoted conclusions of law, the trial court ordered that

University Financial be permitted to present evidence of “any and all damages

resulting from the impact of the construction of the BLE Project, including

construction of the Bridge, on its remaining property[.]” The City contends that the

trial court’s ruling is contrary to North Carolina law, and we agree.

      When the State, an agency, or a municipality exercises its power of eminent

domain to take private property for a public purpose, it must provide just

compensation to the property owner for the taking. Dare Cty. Bd. of Educ. v. Sakaria,

118 N.C. App. 609, 614, 456 S.E.2d 842, 845 (1995), aff’d per curiam, 342 N.C. 648,

466 S.E.2d 717 (1996), cert. denied, 519 U.S. 976, 136 L.Ed.2d 325 (1997). When only

a portion of the property is taken, “the owners of the land are entitled to receive the

difference between the fair market value of the entire tract immediately before the

taking and the fair market value of the remaining property after the taking, less any

general and special benefits.” Dep’t of Transp. v. Bragg, 308 N.C. 367, 369-70, 302

S.E.2d 227, 229 (1983); see also N.C. Gen. Stat. § 136-112(1) (2015). “In determining



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the fair market value of the remaining land the owner is entitled to damage which is

a consequence of the taking of a portion thereof, that is, for the injuries accruing to

the residue from the taking, which includes damage resulting from the condemnor’s

use of the appropriated portion.” Bd. of Transp. v. Brown, 34 N.C. App. 266, 268, 237

S.E.2d 854, 855 (1977), aff’d per curiam, 296 N.C. 250, 249 S.E.2d 803 (1978). The

fair market value of the remaining land after the taking “contemplates the project in

its completed state and any damage to the remainder due to the use[ ] to which the

part appropriated may, or probably will, be put.” Bragg, 308 N.C. at 370, 302 S.E.2d

at 229 (citation, quotation marks, and emphasis omitted).

             This rule of damages provides a landowner compensation
             only for damages arising from a taking of property and
             which flow directly from the use to which the land taken is
             put. No compensation is awarded for damages which are
             shared by neighboring property owners and the public and
             which arise regardless of whether the landowner’s property
             has been condemned.

Bd. of Transp. v. Bryant, 59 N.C. App. 256, 261-62, 296 S.E.2d 814, 817-18 (1982)

(emphasis added).

      Here, the trial court concluded that the determination of the fair market value

of the remainder of University Financial’s property required consideration of the loss

of visibility to that property resulting from the Bridge’s construction. However, this

ruling ignores the fact that (1) University Financial’s loss of visibility argument is

akin to a property owner’s assertion of the right to compensation for a reduction in



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the flow of traffic past his property — an argument our appellate courts have

repeatedly rejected; and (2) the loss of visibility from the Bridge does not “flow directly

from the use to which the land taken is put,” id., given that the land taken from

University Financial is being utilized for road-widening purposes and not as the

location of the Bridge.

       A property owner whose land abuts a public roadway — such as University

Financial here — has a right of reasonable access to that roadway that cannot be

taken without the payment of just compensation. See Wofford v. N.C. State Highway

Comm’n, 263 N.C. 677, 681, 140 S.E.2d 376, 380 (“The private right of the owner of

land abutting a street or highway is an easement appurtenant to the land, consisting

of the right of reasonable access to the particular street or highway which his property

abuts.”), cert. denied, 382 U.S. 822, 15 L.Ed.2d 67 (1965). However, so long as the

landowner can still access his property (a concern not at issue here), any

modifications to the roadway that may alter the flow of traffic are not takings. See

Barnes v. N.C. State Highway Comm’n, 257 N.C. 507, 516, 126 S.E.2d 732, 738-39

(1962) (“[Landowners] have no property right in the continuation or maintenance of

the flow of traffic past their property. They still have free and unhampered ingress

and egress to their property. . . . Re-routing and diversion of traffic are police power

regulations. Circuity of route, resulting from an exercise of the police power, is an




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incidental result of a lawful act. It is not the taking or damaging of a property right.”

(citation and quotation marks omitted)).

      Because a landowner “has no constitutional right to have anyone pass by his

premises at all,” id. at 515, 126 S.E.2d at 738 (citation and quotation marks omitted),

the landowner is not owed compensation for any changes in traffic around his

property that result from the municipality’s actions. See Moses v. State Highway

Comm’n, 261 N.C. 316, 320, 134 S.E.2d 664, 667 (rejecting petitioners’ argument that

they were entitled to compensation based on replacement of their direct access to the

highway with service road access simply because less traffic passed by their property

and noting that “[i]f petitioners could collect because of such diminution in travel by

their property, so could every merchant in a town when the Highway Commission

constructed a by-pass to expedite the flow of traffic”), cert. denied, 379 U.S. 930, 13

L.Ed.2d 342 (1964); see also Wofford, 263 N.C. at 684, 140 S.E.2d at 382 (explaining

that “[t]he purchaser of a lot abutting a public street, whatever the origin of the street,

takes title subject to the authority of the city to control and limit its use, and to

abandon or close it under lawful procedure”).

      We are unable to discern a meaningful distinction between (1) the assertion

that a landowner is entitled to compensation because its property has diminished in

value due to the reduction in traffic caused by a municipality’s actions; and (2)

University Financial’s contention here that it is entitled to compensation for the



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decreased value of its property based on the reduced visibility to passing traffic caused

by the City’s construction of the elevated light rail bridge.3 Consequently, we hold

that the loss in visibility of University Financial’s property to passing traffic is not

“part of the taking” and that the trial court’s order holding otherwise must be

reversed.

        In arguing to the contrary, University Financial cites our decision in N.C. State

Highway Comm’n v. English, 20 N.C. App. 20, 200 S.E.2d 429 (1973). However, its

reliance on English is misplaced.

        In English, the North Carolina Highway Commission condemned 1.38 acres of

the defendants’ 3.24-acre property in order to relocate a road and construct a

controlled-access facility to Interstate 40. Id. at 21, 200 S.E.2d at 430. During the

jury trial on just compensation, the defendants presented evidence that the loss of

visibility to their remaining land caused by a “fill” that had been constructed so that

the highway could pass over a road reduced the fair market value of their remaining

property. Id. at 24, 200 S.E.2d at 432. University Financial argues that English

“supports loss of visibility as a relevant factor affecting fair market value of a


        3  While University Financial argues that the reduction in traffic flow cases are distinguishable
from the present case because they involve a governmental body’s exercise of its police power to
regulate traffic, it has not demonstrated that the City’s decision to widen an existing public roadway
and construct the Bridge over the W.T. Harris Boulevard intersection is not likewise a valid exercise
of police power. See generally Barnes, 257 N.C. at 516, 126 S.E.2d at 738-39 (“Re-routing and diversion
of traffic are police power regulations”); Haymore v. N.C. State Highway Comm’n, 14 N.C. App. 691,
695, 189 S.E.2d 611, 615 (regulations enacted “so as not to endanger travel upon the highway”
constitute valid “exercise of the general police power”), cert. denied, 281 N.C. 757, 191 S.E.2d 355
(1972).

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remainder” and contends that English “sanctioned the use of loss of visibility evidence

as relevant to a determination of just compensation.”

      However, neither party in English contested on appeal the admissibility of the

loss of visibility evidence. Instead, the issue before this Court concerned the trial

court’s instructions to the jury. We rejected the defendant landowners’ argument

that the trial court was required to instruct the jury that pursuant to N.C. Gen. Stat.

§ 136-89.52 “the Commission may acquire private or public property and property

rights for controlled-access facilities . . . including rights of access, air, view, and

light.” Id. at 23, 200 S.E.2d at 431. We concluded that such an instruction was

inapplicable because

                [t]his sentence of the statute does not create a right of view
                or sight distance in individual landowners to and from
                their land. Nor does it suggest that an individual
                landowner has a right of view or sight distance for which
                compensation must be paid.

Id. Thus, English does not provide support for University Financial’s position in the

present case.

      University Financial next argues that because there was an actual physical

taking of a portion of its land — namely, the 5,135 square foot tract abutting North

Tryon Street taken to expand the roadway — it is entitled to “receive compensation

for impacts to its remainder that might not be compensable had a physical taking not

occurred.” We are not persuaded.



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         As this Court explained in Bryant, “the fact that a taking occurs does not make

all other damages automatically compensable.” Bryant, 59 N.C. App. at 262, 296

S.E.2d at 818. In Bryant, the Board of Transportation condemned a portion of the

defendants’ land in order to make improvements to Interstate 40. Id. at 257, 296

S.E.2d at 815. There was a trial on the issue of just compensation, and on appeal,

the defendants argued that the trial court had erred in failing to admit evidence that

“following condemnation of a portion of their property, there was unreasonable

interference with access to their remaining property during the resulting

construction . . . . as an element to be considered by the jury in determining the

difference between the fair market value of the property before and after the taking.”

Id. at 261, 296 S.E.2d at 817. We rejected this contention, explaining that

               [d]amages for unreasonable interference with access to
               defendants’ remaining property during construction on a
               public road project do not arise from the taking of the right-
               of-way or from the use to which the taken property is put.
               These damages are noncompensable because they are not
               unique to defendants. They are shared by defendants in
               common with the public at large, and the fact that a taking
               occurs does not make all other damages automatically
               compensable.

Id. at 262, 296 S.E.2d at 818. Thus, the fact that a physical taking has occurred is

not enough to render compensable injuries that are otherwise recognized as

noncompensable that do not arise from the condemnor’s use of the particular land

taken.



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      As explained above, a landowner is entitled to compensation when a portion of

his land is acquired by condemnation both for the land taken and for “any damage to

the remainder due to the use[ ] to which the part appropriated may, or probably will,

be put.” Bragg, 308 N.C. at 370, 302 S.E.2d at 229.

             A use of lands of another which causes annoyance,
             inconvenience, or damage to the land of the defendant is
             not compensable. If the defendant were to claim damage
             from conduct of the condemnor, which conduct did not arise
             out of use of the defendant’s land taken, such damage is
             suffered by all in the neighborhood generally, and is not the
             proper subject of compensation.

City of Kings Mountain v. Cline, 19 N.C. App. 9, 11, 198 S.E.2d 64, 66 (1973) (internal

citation omitted).

      Our Supreme Court’s decision in Carolina Power & Light Co. v. Creasman, 262

N.C. 390, 137 S.E.2d 497 (1964), is instructive. Creasman involved the condemnation

of a small portion of the defendant landowners’ property for the construction of a new

steam plant. During the jury trial on just compensation, the defendant landowners

were permitted to offer evidence that “the construction, maintenance and operation

by petitioner of said steam plant, together with the dam, the lake, the railroad, etc.,

in a desirable rural residential community, seriously and adversely affected the fair

market value of property in the community.” Id. at 399, 137 S.E.2d at 504. Carolina

Power & Light Company appealed from the jury’s award of damages and sought a




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new trial on just compensation, arguing that this evidence had been improperly

admitted by the trial court. Id. at 403, 137 S.E.2d at 506.

      Our Supreme Court agreed, explaining that while the defendant landowners

were entitled to “recover compensation both for the land actually taken and for the

permanent injuries to their remaining property caused by the severance and the use

to which the land taken may, or probably will, be put[,]” the evidence concerning the

damage to the value of the remainder of the property from the steam plant’s

construction and operation “occur[s] without reference to whether any portion of [the]

property is condemned. In short, [these damages] do not result from the taking of a

portion of [the] property.” Id. at 402, 137 S.E.2d at 506. The Court further held that

             consequential damages to be awarded the owner for a
             taking of a part of his lands are to be limited to the
             damages sustained by him by reason of the taking of the
             particular part and of the use to which such part is to be
             put by the acquiring agency. No additional compensation
             may be awarded to him by reason of proper public use of
             other lands located in proximity to but not part of the lands
             taken from the particular owner. The theory behind this
             denial of recovery is undoubtedly that such owner may not
             be considered as suffering legal damage over and above
             that suffered by his neighbors whose lands were not taken.

Id. at 402-03, 137 S.E.2d at 506 (citation and quotation marks omitted).

      The same is true here. The property taken from University Financial is being

used to widen North Tryon Street. The Bridge that will reduce the visibility of

University Financial’s remaining property to passing traffic is to be located over the



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existing roadway (not on the land taken from University Financial) and is likely to

similarly reduce the visibility of other neighboring lots on North Tryon Street. As

such, University Financial is not entitled to compensation from the City’s use of land

that is “not part of the lands taken from [University Financial]” and “may not be

considered as suffering legal damage over and above that suffered by [its] neighbors

whose lands were not taken.” Id. (citation and quotation marks omitted). Therefore,

for this reason as well, the trial court erred in ruling that University Financial is

entitled to present evidence concerning “all damages resulting from the impact of the

construction of the BLE Project, including construction of the Bridge, on its remaining

property” during the trial on just compensation.

                                    Conclusion

      For the reasons stated above, we reverse the trial court’s ruling that the

Bridge’s impact on University Financial’s remaining property is compensable and

remand for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.

      Judges STEPHENS and STROUD concur.




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