Can a North Carolina county use eminent domain to take land that it plans to donate to the state for a prison site?
Plain-English summary
Tyrrell County was being considered as a site for a state prison. The state was telling the county that, to be picked, it would have to acquire the land and donate it to the state, along with utilities. The county attorney asked the AG two questions. First, if the county could not negotiate a purchase, did it have the power to condemn the land through eminent domain so it could be donated to the state? Second, could the county ask the state to do the condemning and agree to reimburse the state for the cost?
The AG said no on both counts. Eminent domain is a sovereign power that the state holds, and it passes to a county only when the legislature has specifically delegated it for a specifically described purpose. The AG walked through the statutes that grant counties condemnation power. N.C.G.S. § 40A-3(b) lists the purposes for which a local public condemnor may exercise eminent domain; none of them covers acquiring land for transfer to the state. Chapter 40A also requires the condemnor's complaint to declare that the property is being taken "for the use of the condemnor," not for someone else's use. And N.C.G.S. § 153A-158, the county's general authority to acquire real property, limits acquisitions to property "for use by the county or any department, board, commission, or agency of the county."
The AG pointed to State v. Club Properties, where the North Carolina Supreme Court rejected an attempt by the state to condemn land in order to convey it to the federal government for a national seashore. The legislature had to specifically authorize that kind of indirect taking, and it had not. The same logic applies one level down: without a specific statute saying counties can condemn for state-use transfers, they cannot.
On the second question, the AG said a county also has no statutory authority to enter a reimbursement contract under which the state would do the condemnation on the county's behalf. Counties act only with legislative permission, and the legislature has not given that permission.
The AG noted one thing the county could still do. If Tyrrell County already owned land suitable for the prison, it could transfer that land to the state with or without consideration under N.C.G.S. § 160A-274(b), which is made applicable to counties by N.C.G.S. § 153A-176. The block is only on acquiring new land by force for this purpose.
Currency note
This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The eminent-domain framework in Chapter 40A and the county-authority provisions in Chapters 153A and 160A have been amended over the years. Site-acquisition tools for state facilities, including incentives and the role of local economic-development entities, have also evolved. Treat the 1994 opinion as a starting point on the structural rule (counties get only delegated condemnation powers and only for their own use), and verify the current statutory landscape before acting.
Common questions
Q: Can a county donate land it already owns to the state for a prison or other state facility?
A: The AG said yes, under N.C.G.S. § 160A-274(b) made applicable to counties by § 153A-176. Counties can convey real property they already hold to the state, with or without consideration. The restriction is on using condemnation to acquire new land for that purpose.
Q: Why can't the county just contract with the state to have the state condemn the land?
A: The AG read the relevant chapters and found no statute that authorizes a county to enter that kind of reimbursement agreement. A county can only act within the powers the legislature has granted. Without an enabling statute, the county lacks the authority to bind itself to that contract.
Q: Does this mean the state can never get a prison sited in a willing county that does not already own land?
A: Not at all. The state itself has its own eminent-domain powers under different statutes, and a willing seller can always negotiate a sale. The opinion addressed only the specific question of whether the county could be the condemning party with the goal of donating to the state. Other paths to siting the facility, including state condemnation directly or a private sale, were not before the AG.
Q: What if the county wants the prison for the local economic-development benefits it brings?
A: That motivation does not change the legal answer. The AG's reasoning is structural: condemnation power must be expressly granted, and the grant has to match the use. A desired benefit, even a substantial one, does not supply the missing statutory authority.
Background and statutory framework
North Carolina follows the long-standing rule that eminent domain "lies dormant" with the state until the legislature delegates it for specific public uses. State v. Club Properties, 275 N.C. 328 (1969); Pipeline Company v. Neill, 296 N.C. 503 (1979). A delegated grant of condemnation must be strictly construed, meaning a court will not stretch the statutory list to fit a purpose the legislature did not name. Counties, as creatures of the state, hold only those powers the legislature has given them. Smith v. City of Charlotte, 79 N.C. App. 517 (1986).
Three statutory provisions framed the AG's analysis:
- N.C.G.S. § 40A-3(b) lists the purposes for which local public condemnors may take property. Each item describes a use by the condemnor itself (streets, parks, water and sewer systems, and similar). The AG read the list and found no item covering acquisition for transfer to another sovereign.
- N.C.G.S. § 40A-41 requires the condemnor's complaint to declare a taking "for the use of the condemnor." That phrase is in the operative procedural section, so it constrains every Chapter 40A taking, regardless of motive.
- N.C.G.S. § 153A-158 is the county's general real-property acquisition statute. It permits acquisitions "for use by the county or any department, board, commission, or agency of the county." A taking with the intent to donate to the state does not fit that description.
The AG also looked at N.C.G.S. §§ 160A-265 and 160A-274, which authorize counties to dispose of real property and to sell or transfer to the state. Those are disposal statutes, not acquisition statutes. They tell the county what it can do with property it already owns; they do not authorize acquiring new property by condemnation for that purpose.
State v. Club Properties was the closest precedent. There, the state attempted to use eminent domain to acquire land it intended to convey to the federal government for the Cape Hatteras National Seashore. Even though a separate statute (N.C.G.S. § 146-36) authorized the Governor and Council of State to enter agreements binding the state to convey land to the United States, that statute did not itself grant condemnation power. The Supreme Court held that the state still needed a specific eminent-domain statute matched to the purpose. The AG applied the same logic to Tyrrell County.
Citations
- N.C.G.S. § 40A-3(b) (local public condemnor purposes)
- N.C.G.S. § 40A-41 (taking "for the use of the condemnor")
- N.C.G.S. § 153A-158 (county real-property acquisition for county use)
- N.C.G.S. § 153A-176 (applying § 160A-274 to counties)
- N.C.G.S. § 160A-265 (disposal without regard to method of acquisition)
- N.C.G.S. § 160A-274, § 160A-274(b) (conveyance to the state)
- N.C.G.S. § 146-36 (Governor and Council of State authority to bind the state to acquire and convey land)
- State v. Club Properties, 275 N.C. 328, 167 S.E.2d 385 (1969)
- Pipeline Company v. Neill, 296 N.C. 503, 251 S.E.2d 457 (1979)
- Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986)
Source
Original opinion text
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