978-1285770178 Case Printout Case CPC-29-08 Part 2

B. Tap Rights.

1. Midland. Pursuant to the second amendment to the Interlocal Agreement between Midland and Monroe, Mid-

land shall have the right to locate and install one (1) service tap from the Pipeline to serve customers located

within the corporate limits of Midland as of December 4, 2008; provided that PSNC has first elected not to

The present controversy stems from fifteen condemnation actions filed by the Town of Midland in Cabarrus

County Superior Court. In those fifteen actions, the opposing parties (hereinafter “Property Owners”) filed defenses

and counterclaims, challenging Midland’s power to condemn the properties in question; several Property Owners

also filed separate claims against Midland for injunctive relief.

ty, denying the Property Owners’ motions for injunctive relief and motions to dismiss, and entering summary judg-

ment in favor of Midland in the actions. From the trial court’s order granting summary judgment for Midland, the

Property Owners appeal.

Discussion

statute afforded the plaintiff no relief, even if the Court were to find in its favor, the appeal was moot.FN2

FN2. In Total Renal Care, petitioner appealed the decision by the Department of Health and Human Ser–

vices (“DHHS”) to issue a certificate of need (“CON”) to respondent healthcare provider and respondent–

intervenor developer. 195 N.C.App. 378, 673 S.E.2d 137. While the appeal was pending, respondent–

In this case, however, if this Court finds in their favor, Property Owners will be entitled to relief both in the

form of reimbursement for their costs in the action, as well as in the form of return of title to the land. See N.C.

Gen.Stat. § 40A–8(b) (2009) (stating that if final judgment is that the condemnor is not authorized to condemn the

property, the court with jurisdiction over the action shall award each owner of the property a sum that will reimburse

Carolina] and of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States”).

We are wholly unpersuaded by Midland’s argument that, even where a city flagrantly violates the statutes governing

eminent domain, that city can obtain permanent title to the land by fulfilling the purpose of a condemnation before

final judgment on the validity of condemnation is rendered. Accordingly, we hold that this appeal is not moot and

we address the merits of Property Owners’ appeal.

[2] Regarding the Order of the Utilities Commission, our Supreme Court has stated that important public docu-

ments such as an order of the Utilities Commission will be judicially noticed. State ex rel. Utils. Comm‘n v. Southern

Bell Tel. & Tel. Co., 289 N.C. 286, 288, 221 S.E.2d 322, 323–24 (1976); see also State ex rel. Comm‘r of Ins. v.

North Carolina Auto. Rate Admin. Office, 293 N.C. 365, 381, 239 S.E.2d 48, 58 (1977) (taking judicial notice of the

ville, we decline this invitation as the “uncontested facts” offered by Midland are irrelevant in our determination of

the issues of this case. The fact that Monroe and Mooresville may soon have a need for the natural gas flowing

through the Pipeline has no effect on the validity of Midland’s condemnations. If this case is decided in Property

Owners’ favor, they will be entitled to relief regardless of the natural gas needs of Monroe and Mooresville.

Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001), cert. denied, 535 U.S. 971,

122 S.Ct. 1438, 152 L.Ed.2d 381 (2002). Specifically, Property Owners raise several arguments challenging the

right of Midland to acquire the property by exercise of its eminent domain power. We address each of these argu-

ments separately below.

erty “for use by the city.” N.C. Gen.Stat. § 160A–240.1 (2009). This use by the city must be an authorized use. See

Porsh Builders, Inc. v. City of Winston–Salem, 302 N.C. 550, 276 S.E.2d 443 (1981) (holding that a city may only

exercise those powers granted by statute or charter). As applicable in this case, N.C. Gen. Stat. § 160A–312 author-

izes a city to establish a public enterprise—including a gas transmission and distribution system—to “furnish ser-

vices to the city and its citizens.” N.C. Gen.Stat. §§ 160A–311(4), 160A–312(a) (2009). Further, a city may establish

Property Owners argue that, regardless of Midland‘s entitlement to discounted natural gas and a tap on the Pipe-

line, Midland’s lack of plans to ever furnish gas services to the city and its citizens shows that Midland is not con-

demning the property for any actual use by the city and that the condemnations are therefore unlawful. Midland

counters that the mere potential to distribute low-cost natural gas to its citizens constitutes sufficient “use” by the

develop the infrastructure and capability, but no immediate plan to actually furnish the services. Based on the fol-

lowing excerpt from N.C. Gen.Stat. § 160A–4, we must conclude that a broad interpretation of section 160A–312 is

required:

It is the policy of the General Assembly that the cities of this State should have adequate authority to execute the

Furthermore, this Court has previously interpreted section 160A–312 to grant cities extensive power to establish

and operate public enterprises:

By the broad language the Legislature has used in G.S. § 160A–312 … it has evidenced its intent to give cities [

modified and aff‘d, 321 N.C. 252, 362 S.E.2d 553 (1987).

Consistent with the broad mandates of sections 160A–4 and 160A–312, we find it manifest that Midland may

acquire property by condemnation to establish a gas transmission and distribution system, even in the absence of a

concrete, immediate plan to furnish gas services to its citizens.

the Pipeline “from which to operate and supply its own natural gas distribution utility for the benefit of Midland’s

utility customers” indicates just the opposite: that Midland will, eventually, furnish natural gas services to its citi–

zens.FN3

FN3. Property Owners also argue that Midland itself will never furnish services based on PSNC’s right of

Based on the foregoing, we conclude that Midland’s acquisition by condemnation of the property for the Pipe-

line is for use by the city such that section 160A–240.1 is satisfied. Property Owners’ argument is overruled.

B. No public use or benefit

Property Owners further argue that Midland’s condemnations violate N.C. Gen.Stat. § 40A–3(b) because the