Land and data-center sites, North Carolina
Guides

Can a data center take your land by eminent domain?

No. North Carolina gives the power of eminent domain to the bodies and purposes its statutes list, and a data center is not a listed purpose. A utility or a public body may hold the power for a line, a substation, or a road that also serves a project.

Talk about your land

Quick summary: This guide corrects a common belief among North Carolina landowners: that a data-center company can condemn land it wants. It is for owners who receive a letter about their land. The key point: the statutes give the power of eminent domain to listed bodies for listed purposes, and a data center is not one of those purposes. A utility line or a public road that serves a project is a different question.

Who holds the power of eminent domain

Only the bodies a statute names hold the power, and each holds it for stated purposes. N.C. Gen. Stat. § 40A-3 sets three groups:

  • Private condemnors. Corporations, bodies politic, or persons have the power for the construction of listed works. The works include railroads, power generating facilities, substations, switching stations, telephones, electric power lines, public water supplies, public sewerage systems, and pipelines.
  • Local public condemnors. The governing body of each municipality or county has the power for listed purposes. Examples are streets, public enterprises, parks, storm drainage, and public buildings. The street purpose does not apply to counties.
  • Other public condemnors. Listed political entities have the power for their own statutory purposes. Examples are sanitary districts, hospital authorities, and housing authorities.

The Department of Transportation has its own statute. N.C. Gen. Stat. § 136-19 vests it with the power to acquire rights-of-way and land for transportation infrastructure by purchase, donation, or condemnation.

For the procedure, the deposit, and the deadlines, see Eminent domain in North Carolina: when the government takes land.

Why a data-center developer is not on the list

A data-center developer is not on the list because the list is written by purpose, and a data center is not a listed purpose. Section 40A-3 grants the power “for the stated purposes and other works which are authorized by law”. The stated purposes for private condemnors are works such as railroads, power lines, and pipelines. A server building, a private campus, and a site for a private business do not appear.

The list for cities and counties does not name a site for a private business either.

A buyer without the power cannot condemn your land. A letter from a developer, a buyer, or a broker that offers a price is an offer. It is not a condemnation notice. See Unsolicited offers to buy your land: what to check before you answer.

The public use limit

Each grant of the power in § 40A-3 begins with the same words: “For the public use or benefit”. A body on the list may condemn only within that limit.

A court decides whether a taking meets the limit. In an opinion reported at 321 N.C. 426, the Supreme Court of North Carolina said the question is one of law for the courts. The Court said the power “may not be employed to take private property for a purely private purpose”. It also said the phrase “the public use or benefit” has no precise definition that applies to all situations.

The condemnor must put its public purpose in writing:

  • A private condemnor. Under N.C. Gen. Stat. § 40A-20, its petition must state that it intends in good faith to carry on the public business its charter authorizes. The petition must state the nature of that public business in detail and the specific use of the property.
  • The Department of Transportation. Under N.C. Gen. Stat. § 136-103, its complaint must state the authority for the taking and the public use.

What a utility can condemn for a line that serves a project

A utility can condemn for the works the statutes name, and those works include electric power lines and substations. N.C. Gen. Stat. § 62-183 gives a telegraph, telephone, electric power, or lighting company the right-of-way over the lands of other persons, and the right to erect poles and towers. The company must pay compensation.

The opinion at 321 N.C. 426 addressed a line for one customer. A telephone company sought an easement across one owner’s land to serve a single customer. The Court held that the service was for the public use or benefit, “irrespective of the number of customers directly affected”. The Court also stated a rule for a taking with public and private effects. The controlling question is whether the public interest is the paramount reason for the taking, with private benefit merely incidental, or the reverse.

That opinion concerned a telephone line. A North Carolina condemnation attorney answers how it applies to an electric line across your land.

A new transmission line can also need a state certificate. Under N.C. Gen. Stat. § 62-101, no public utility or other person may begin to construct a new transmission line without a certificate from the Utilities Commission. The statute exempts several kinds of line. Examples are a line below the design voltage the statute sets and the rebuild of an existing line. Under N.C. Gen. Stat. § 62-105, the applicant has the burden of proof. The first finding the Commission must make is that the line is necessary to satisfy the reasonable needs of the public for an adequate and reliable supply of electric energy.

The short version: Section 40A-3 does not list a data center as a purpose, so a developer cannot condemn land for one under it. A utility holds the power for its lines and substations, within the public use limit. A court decides that limit, case by case.

What a utility cannot condemn

A utility cannot condemn outside the listed purposes or outside the public use limit. The statutes and the opinion state these limits:

  • Your home ground. Under § 40A-3, a private condemnor may not take a burial ground, a usual dwelling house and yard, or a kitchen and garden without the owner’s consent. The exception is a condemnation that a statute expressly authorizes.
  • A purely private purpose. The opinion at 321 N.C. 426 says the power may not be used for one.
  • Land without payment. Section 62-183 grants the right-of-way upon payment of compensation.

A failed condemnation has consequences for the condemnor. Under N.C. Gen. Stat. § 40A-28, if the judge on appeal refuses to condemn the property, the condemnor has no right to it and must surrender possession on demand. Under N.C. Gen. Stat. § 40A-8, the court awards the owner reasonable costs when the final judgment is that the condemnor is not authorized to condemn, or when the condemnor abandons the action. Those costs include reasonable attorney, appraisal, and engineering fees.

For what an easement leaves you after a line is built, see Utility easements: what they allow and how they shrink usable land and A power line on your land: what it does and does not mean when you sell.

Roads, water, and sewer near a project

A public body can condemn for a road or a public utility line that also serves a project. The Department of Transportation holds the power for transportation infrastructure under § 136-19. A city or county holds it under § 40A-3 for its listed purposes, which include its public enterprises.

The public use limit applies to these takings too. A condemnation attorney answers whether a specific road or line meets it.

The power to condemn is separate from the approval of the project. See How a data center gets approved in North Carolina and A zoning label is only the beginning.

What to do when a notice arrives

First identify the document, because each kind has its own statute and its own clock.

Document What the statute says
A notice of entry for a survey Under N.C. Gen. Stat. § 40A-11, a condemnor may enter land, but not structures, for surveys, borings, examinations, and appraisals. It must give 30 days’ notice in writing. It must reimburse the owner for damage.
A petition and summons from a private condemnor Under N.C. Gen. Stat. § 40A-22, the summons and a copy of the petition must be served at least 10 days before the hearing. Under N.C. Gen. Stat. § 40A-25, the owner may answer and show cause against the petition.
A commissioners’ report Under § 40A-28, a party may file exceptions within 20 days after the report is filed.
A published summary of a transmission line application Under N.C. Gen. Stat. § 62-102, the applicant publishes a summary in local newspapers. The summary states the proposed location and the date by which an interested person must intervene.
A letter that offers to buy An offer is not a petition, a complaint, or a summons. Find out whether the sender is a body that § 40A-3 lists. A listed body may acquire by purchase or by condemnation.

Keep every page and the envelope, and write down the date each one reached you. A North Carolina condemnation attorney reads the document, confirms who sent it and under what authority, and tells you the deadline. A licensed appraiser answers the value question.

Take action: Before you answer a letter about your land, find out what kind of document it is and who sent it. Then gather the deed, the plat, and any recorded easements for the attorney. Start with Is your land a data-center site?

Key recap

  • Section 40A-3 grants the power of eminent domain for listed purposes, and a data center is not one.
  • Every grant in § 40A-3 is “for the public use or benefit”. A court decides whether a taking meets that limit.
  • A utility holds the power for electric power lines and substations. It may seek an easement across your land for a line that serves a project.
  • A private condemnor may not take a usual dwelling house and yard, a kitchen and garden, or a burial ground without consent, unless a statute expressly authorizes it.
  • An offer letter is not a condemnation notice. A petition, a summons, and a notice of entry each carry a statutory period.

Questions

Can a data-center company force me to sell my land?

Section 40A-3 lists who holds the power and for what purposes. A data center is not a listed purpose. A North Carolina condemnation attorney answers for a specific notice.

Can the county condemn my land and give it to a data center?

Section 40A-3 lists the purposes for which a county may condemn, and a site for a private business is not among them. A North Carolina condemnation attorney answers whether a specific taking fits a listed purpose and the public use limit.

Can a utility take an easement for a line that serves only one customer?

The Supreme Court of North Carolina held at 321 N.C. 426 that telephone service to a single customer was for the public use or benefit. That case concerned a telephone line. A condemnation attorney answers how it applies to a power line across your land.

Is a letter from a developer a condemnation notice?

No. A condemnation by a private condemnor starts with a petition filed with the clerk of superior court, served with a summons. A letter that offers a price is an offer. An attorney reads either one before you sign or answer.

References

Primary sources cited on this page, in APA style.

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