March 31, 1994
Mr. Charles W. Ogletree Tyrrell County Attorney
P.O. Box 510 Columbia, North Carolina 27925
Re: Advisory Opinion; Tyrrell County Land Acquisition Chapters 40A, 153A and 160A of the General Statutes
Dear Mr. Ogletree:
The following is submitted in response to your letter dated March 2, 1994 regarding the acquisition of land for a State prison unit.
Tyrrell County is being considered as a possible site for a State prison facility. As a prerequisite to location of the proposed facility in Tyrrell County, the County would be required to acquire the site for the proposed facility and donate it to the State. The County also would be required to supply suitable utilities to the site. The County Attorney, Charles W. Ogletree, has raised a question as to whether or not the County has the authority to acquire the site by eminent domain, for conveyance to the State, in the event it is unable to successfully negotiate a purchase of the site.
The right of eminent domain lies dormant in the State until the legislature, by statute, confers the power and points out the occasion, mode, conditions and agencies for its exercise. State v. Club Properties, 275 N.C. 328, 167 S.E.2d 385 (1969). The legislature has the right to determine what portion of the sovereign power of eminent domain it delegates to public corporations to be used for public benefit. The right of eminent domain must be conferred by statute, expressly or by necessary implication, and such statute must be strictly construed. Pipeline Company v. Neill, 296 N.C. 503, 251 S.E.2d 457 (1979).
The County of Tyrrell is a local governmental agency created by the State, and it has no authority other than that granted by the legislature, either expressly or by necessary implication. Smith v. City of Charlotte, 79 N.C.App. 517, 339 S.E.2d 844 (1986). The inquiry then is to determine whether the legislature has evidenced an intent to confer the right of eminent domain upon the County to acquire land to be conveyed to the State as a site for the location of a State prison facility.
We have examined N.C.G.S. § 40A-3(b) which sets forth the purposes for which a local public condemnor may exercise the power of eminent domain. None of the enumerated grants of authority either expressly or by necessary implication authorize an acquisition of land by eminent domain for the purpose of conveying it to the State for use as a site for a State prison facility. In addition, it is noted that the general authority vested in counties to acquire real property is limited to acquisitions ". . . for use by the county or any department, board, commission, or agency of the county." See N.C.G.S. § 153A-158. Chapter 40A of the General Statutes, which sets the condemnation procedure to be followed by local public condemnors, provides that the public condemnor must file a complaint ". . . containing a declaration of taking declaring that property therein is thereby taken for the use of the condemnor." N.C.G.S. § 40A-41 (emphasis supplied).
We have considered N.C.G.S. § 160A-265, which authorizes counties to dispose of real property "without regard to the method or purpose of its acquisition" and N.C.G.S. § 160A-274, which authorizes the counties to sell property to the State, with or without consideration. Neither of these statutes would authorize an acquisition of the property by eminent domain for this purpose.
The case of State v. Club Properties is instructive in this regard. In that case, the State attempted to acquire land by eminent domain for the purpose of conveying same to the United States for a national seashore park. An existing statute [N.C.G.S. § 146-36] authorized the Governor and Council of State, when they found it to be in the best interest of the State to do so, to enter into contracts or other agreements which would bind the State to acquire for and to convey land to the United States government. The North Carolina Supreme Court ruled that this statute conferred no power of eminent domain. It did not eliminate the requirement of specific statutory authority for the State to condemn land for a federal park.
In the absence of specific statutory authority for the County of Tyrrell to condemn land for the purpose of conveying it to the State to be used as a site for a State prison facility, we conclude that the County does not possess the power of eminent domain for this purpose.
The second question set out in your request is "whether or not the County can request the State of North Carolina to exercise its power of eminent domain in this circumstance with an agreement to reimburse the State for the cost of the purchase of the lands through the condemnation proceeding."
As noted previously, a county has no authority to act in the absence of legislation which grants that authority. Smith v. Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986). A review of Chapters 153A and 160A of the General Statutes reveals no express or implied statutory authority for a county to reimburse a state agency for the cost of condemnation of land for a state prison unit. Therefore, the answer to your second question is that Tyrrell County has no authority to enter into the contemplated agreement.
If Tyrrell County already owns land it wishes to transfer to the State without consideration, it has the authority to do so under the provisions of N.C.G.S. § 160A-274(b) which specifically is made applicable to counties by N.C.G.S. § 153A-176.
Charles J. Murray Special Deputy Attorney General
Roy A. Giles, Jr.
Assistant Attorney General
Andrew A. Vanore, Jr.
Chief Deputy Attorney General