{ "id": 4245190, "name": "TOWN OF MIDLAND, Plaintiff v. DARRYL KEITH WAYNE, Trustee or any successors in trust, under the Darryl Keith Wayne Revocable Trust Agreement, and any Amendments thereto, dated February 23, 2007, Defendant", "name_abbreviation": "Town of Midland v. Wayne", "decision_date": "2013-09-03", "docket_number": "No. COA12-1163", "first_page": "481", "last_page": "490", "citations": [ { "type": "official", "cite": "229 N.C. App. 481" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "649 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639192 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0433-01" ] }, { "cite": "385 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "96 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521400 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/96/0260-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 59-55", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1996, "pin_cites": [ { "page": "(a)" }, { "page": "367" } ], "opinion_index": 0 }, { "cite": "185 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "year": 2007, "opinion_index": 0 }, { "cite": "489 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "450" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11796046 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/127/0365-01" ] }, { "cite": "451 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "117 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525320 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/117/0340-01" ] }, { "cite": "249 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "395", "parenthetical": "emphasis added" }, { "page": "396" }, { "page": "395", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564418 ], "year": 1978, "pin_cites": [ { "page": "26", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0020-01" ] }, { "cite": "85 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "241 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610333 ], "year": 1955, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0350-01" ] }, { "cite": "255 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "187-88", "parenthetical": "quoting Gallimore v. Commission, 241 N.C. 350, 355, 85 S.E.2d 392, 396 (1955)" } ], "opinion_index": 0 }, { "cite": "297 N.C. 436", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570684 ], "year": 1979, "pin_cites": [ { "page": "439", "parenthetical": "quoting Gallimore v. Commission, 241 N.C. 350, 355, 85 S.E.2d 392, 396 (1955)" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0436-01" ] }, { "cite": "388 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "325 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489393, 2488819, 2489452, 2492647 ], "year": 1989, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0714-01", "/nc/325/0714-03", "/nc/325/0714-04", "/nc/325/0714-02" ] }, { "cite": "384 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "parenthetical": "citation omitted" }, { "page": "16", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "325 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489703 ], "year": 1989, "pin_cites": [ { "page": "364", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0352-01" ] }, { "cite": "487 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139620, 139372, 139535, 139646, 139327 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0280-03", "/nc/346/0280-01", "/nc/346/0280-04", "/nc/346/0280-05", "/nc/346/0280-02" ] }, { "cite": "481 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11867868 ], "year": 1997, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0379-01" ] }, { "cite": "338 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "797" }, { "page": "799" }, { "page": "795" }, { "page": "800" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519505 ], "year": 1986, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0103-01" ] } ], "analysis": { "cardinality": 862, "char_count": 22541, "ocr_confidence": 0.73, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14113139414691744 }, "sha256": "898f1372c07436045d0a6392e8d334df9bfd2cc1738b8834843d50b07d04fa78", "simhash": "1:8b2a4260663f5c90", "word_count": 3693 }, "last_updated": "2023-07-14T15:07:10.338246+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA and Judge ERVIN concur." ], "parties": [ "TOWN OF MIDLAND, Plaintiff v. DARRYL KEITH WAYNE, Trustee or any successors in trust, under the Darryl Keith Wayne Revocable Trust Agreement, and any Amendments thereto, dated February 23, 2007, Defendant" ], "opinions": [ { "text": "DILLON, Judge.\nIn February 2009, Plaintiff Town of Midland (the \u201cTown\u201d) filed two actions to condemn portions of two adjacent tracts of land (the \u201cWayne Tracts\u201d) owned by Defendant, Darryl Keith Wayne, Trustee of the Darryl Keith Wayne Revocable Trust (\u201cDefendant\u201d). On 2 December 2011, the trial court held a hearing pursuant to N.C. Gen. Stat. \u00a7 40A-47 (2011), to consider all issues relating to the taking other than compensation. The trial court subsequently entered various orders regarding the matters raised at the hearing, which are the subject of this appeal.\nI. Background\nThe Wayne Tracts, which consist of approximately 90 acres of land, form the southern portion of a tract containing 250 acres of land assembled by Mr. Wayne for the purpose of developing a residential subdivision known as Park Creek. (The entire 250-acre assemblage is hereinafter referred to as \u201cthe Property.\u201d) The northern portion of the Property consisted of several tracts which were held in the name of Park Creek, LLC, in which Mr. Wayne was a member.\nOn 19 June 1997, the Cabarrus County Planning and Zoning Commission approved a customized development plan (the \u201c1997 Plan\u201d) for the Property. The 1997 Plan gave Mr. Wayne the right to develop residential lots on the Property within certain parameters so long as it remained in force.\nBy 2009, the first two phases of lots within the Park Creek subdivision, which were located on the northern portion of the Property, had been substantially developed and sold. However, the Wayne Tracts and one tract owned by Park Creek, LLC, remained largely undeveloped.\nIn February 2009, the Town commenced these actions for the purpose of taking an interest in a small portion - approximately three acres - of the two Wayne Tracts for an easement in which to construct a natural gas pipeline and a fiber optic line. (The easement within the Wayne Tracts is hereinafter referred to as \u201cthe Easement.\u201d) The Town did not name Park Creek, LLC, as a party or identify its tract in the taking since the Easement did not include any portion of the tract owned by Park Creek, LLC.\nIn September 2009, a contractor employed by the Town drove vehicles and equipment and maintained construction staging areas on portions of the Wayne Tracts outside of the Easement for a period of time during construction.\nIn the fall of 2011, Defendant filed a counterclaim for inverse condemnation in each action claiming that the contractor\u2019s actions constituted a temporary taking of portions of the Wayne Tracts outside the Easement and that Defendant was entitled \u201cto be paid just compensation for the taking of [the Wayne Tracts].\u201d\nAlso in the fall of 2011, Park Creek, LLC, moved to intervene in the condemnation actions, claiming that the Town had inversely condemned its tract by adversely impacting its rights to develop it in accordance with the 1997 Plan. This motion, however, was denied by the trial court after a hearing on 25 October 2011.\nIn November 2011, the trial court held a hearing, pursuant to N.C. Gen. Stat. \u00a7 40A-47, to consider all issues other than damages. Subsequently, the trial court entered two orders on 23 March 2012, which were amended by orders entered on 7 June 2012. In these orders the trial court concluded that (1) an inverse condemnation had occurred with respect to the Wayne Tracts outside the Easement and (2) there was no unity of ownership between the Wayne Tracts and the tract owned by Park Creek, LLC. From these orders, the Town appeals; and Defendant cross-appeals.\nPreliminarily, we note the orders are interlocutory, with the issue of damages remaining unresolved. However, we have held that a trial court\u2019s determination that an inverse condemnation has occurred affects a substantial right and is, therefore, immediately appealable. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 107, 338 S.E.2d 794, 797 (1986).\nII. Analysis\nIn reviewing the Town\u2019s appeal and Defendant\u2019s cross-appeal from the trial court\u2019s orders, our standard of review is whether the findings of fact are supported by competent evidence and whether the findings of fact support the conclusions of law. Conclusions of law are reviewed de novo. See id. at 111, 338 S.E.2d at 799. We address each appeal separately below.\nA: The Town\u2019s Appeal\nThe Town challenges the trial court\u2019s determination regarding Defendant\u2019s inverse condemnation counterclaims. Additionally, the Town argues that the trial court erred by relying upon the opinion of Defendant\u2019s expert.\nIn these actions, the Town filed actions to condemn the Easement. In its orders, however, the trial court determined that the Town had inversely condemned the Wayne Tracts outside the Easement in two ways. First, the trial court determined that the Town had temporarily taken portions of the Wayne Tracts outside the Easement through the actions of its contractor during the construction of the pipeline and fiber optic line. Second, the trial court determined that the Town\u2019s condemnation of the Easement \u201cha[s] denied [Defendant] of all practical uses of the Wayne Tracts, resulting in a regulatory taking of the Wayne Tracts.\u201d We address each challenge below.\n1: Temporary Taking\nThe Town argues that the trial court erred in concluding that the actions by its contractor in using portions of the Wayne Tracts outside the Easement constituted an inverse taking. We disagree.\nIn this case, the trial court found that the Town\u2019s contractor drove vehicles and equipment, built a road and cleared and maintained construction staging areas, all on portions of the Wayne Tracts outside the Easement. The findings in this case are similar to the facts in Ferrell in which \u201c[t]he contractor entered upon defendants\u2019 land, graded and gravelled a roadway outside the areas identified as areas to be acquired by the City, and began to haul pipe into the construction site[;] [t]he contractor used a second area outside the identified easements to store pipes and equipment.\u201d Id. at 105, 338 S.E.2d at 795. In Ferrell, we held that the trial court, \u201cas the trier of fact, could find from the ... evidence that the contractor\u2019s use of the roadway over defendants\u2019 property was essential to provide access to the City\u2019s sewer outfall construction site, that such use thus necessarily flowed from the construction of the improvement in keeping with the design of the condemnor, and that it thus resulted in an appropriation of land outside the easements.\u201d Id. at 112, 338 S.E.2d at 800. As in Ferrell, the trial court, here, essentially found the contractor\u2019s use of portions of the Wayne Tracts outside the Easement was essential to the construction. Specifically, in its 7 June 2012 order, the trial court made finding of fact number 10, which stated as follows:\n10. The dimensions, size, and location of the easements acquired and the location of an existing pipeline were such that the Town\u2019s contractor was forced to enter areas of the Wayne Tracts outside such easements. The said easements were not large enough or so situated to accommodate both the piles of dirt generated by excavations required for the installation of the pipeline and other construction activities necessitated by plans for the Project.\nAfter thorough review of the evidence in this case, we conclude that there was substantial evidence to support the trial court\u2019s findings on this issue, including the ultimate finding quoted above. Defendant offered the testimony of Alan Goodman, who testified, inter alia, that the area within the Easement was impassable at times during construction making it necessary for the contractor to utilize land outside the Easement. Further, Defendant also offered a number of photographs purportedly showing that the Easement was impassable. Accordingly, the Town\u2019s argument is overruled.\n2: Regulatory Taking\nThe Town next argues that the trial court erred by concluding that the Town\u2019s taking of the Easement constituted a regulatory taking of the Wayne Tracts in their entirety. We agree.\nThere are \u201ctwo categories of regulatory action that require a finding of a compensable taking: regulations that compel physical invasions of property and regulations that deny an owner all economically beneficial or productive use of property.\u201d King by & Through Warren v. North Carolina Dep\u2019t of Env\u2019t., Health & Natural Resources, 125 N.C. App. 379, 385, 481 S.E.2d 330, 333, disc. review denied, 346 N.C. 280, 487 S.E.2d 548 (1997). In the case, sub judice, the trial court concluded that a regulatory taking occurred based on the second category set out in King. Specifically, the trial court concluded in its June 2012 order as follows:\n18. The Town\u2019s condemnations in [these actions] have denied [Defendant] all practical uses of the Wayne Tracts, resulting in a regulatory taking of the Wayne Tracts.\nThis conclusion is based on a series of findings in which the trial court determined that Defendant had a vested right to develop lots on the Wayne Tracts in accordance with the 1997 Plan; that because of the Town\u2019s condemnation of the Easement, \u201cit is no longer economically feasible for [Defendant] to construct roads on the Wayne Tracts in accordance with the [1997] Plan\u201d; and that \u201c[consequently, [Defendant] has been deprived of all practical uses of the Wayne Tracts.\u201d In other words, the trial court concluded that the Wayne Tracts have no practical use based on a finding that Defendant might no longer be able to develop them in a particular way.\nOur Supreme Court has stated in such cases that \u201cthe test for determining whether a taking has occurred ... is whether the property . . . has a practical use and a reasonable value.\u201d Finch v. City of Durham, 325 N.C. 352, 364, 384 S.E.2d 8, 15 reh\u2019g denied, 325 N.C. 714, 388 S.E.2d 452 (1989) (citation omitted). However, \u201ca taking does not occur simply because government action deprives an owner of previously available property rights.\u201d Id. at 366, 384 S.E.2d at 16 (citation omitted).\nWe do not believe that the trial court\u2019s conclusion that a regulatory taking by the Town of the Wayne Tracts in their entirety is supported by the trial court\u2019s findings. The trial court made no findings to support a conclusion that the Wayne Tracts, which include approximately 87 acres outside the three-acre Easement, have no \u201cpractical use ... or reasonable value.\u201d The trial court did not find that the Wayne Tracts could not be developed residentially at all. Rather, the trial court found that \u201c[a]ny major changes or amendments to the [1997] Plan such as the elimination of roads will also render the [1997] Plan ineffective, eliminating [Defendant\u2019s] vested rights in the Plan, and requiring [Defendant] to submit a new plan for approval by Cabarrus County[,]\u201d which suggests that the Wayne Tracts could still be developed for residential use, though not in accordance with the 1997 Plan. Therefore, the trial court\u2019s findings do not support Defendant\u2019s claim for inverse condemnation of the Wayne Tracts in their entirety based on a regulatory taking.\nOur holding does not prevent Defendant from presenting evidence at a subsequent trial on damages with respect to an inability to develop the Wayne Tracts in accordance with the 1997 Plan. Such evidence could be determined to be competent to show the diminution in value of the Wayne Tracts resulting from the taking of the Easement.\n\u2022 Defendant argues that its inverse condemnation claim should be sustained, in any event, based on the trial corut\u2019s finding that it had a \u201cvested right\u201d in the 1997 Plan, because the Town did not specifically identify in its complaint that this \u201cvested right\u201d was being taken. Generally, a property owner may have a justified inverse condemnation claim in the event that it loses a vested right as a result of a government action where the government has not filed a declaration of taking. N.C. Gen. Stat. \u00a7 40A-51(a) provides that \u201c[i]f property has been taken . . . and no complaint containing a declaration of taking has been filed[,] the owner of the property . . . may initiate an action to seek compensation for the taking.\u201d Id.\nHowever, here, the Town did file complaints identifying the \u201cproperty [it] sought to acquire\u201d as required by N.C. Gen. Stat. \u00a7 40A-20, which was a portion of the Wayne Tracts. Chapter 40A provides that one measure of damages where only a partial taking of a tract occurs is \u201cthe amount by which the fair market value of the entire tract immediately before the taking exceeds the fair market value of the remainder immediately after the takmg[.[\u201d N.C. Gen. Stat. \u00a7 40A-64(b)(i) (2011). Our Supreme Court stated in Board, of Transportation v. Jones that where a condemner has taken a portion of a tract, \u201cevidence regarding the adverse effects of the condemnation on the remaining property is admissible, but such effects \u2018are not separate items of damages, recoverable as such, but are relevant only as circumstances tending to show a diminution in the overall fair market value of the property.\u2019 \u201d 297 N.C. 436, 439, 255 S.E.2d 185, 187-88 (1979) (quoting Gallimore v. Commission, 241 N.C. 350, 355, 85 S.E.2d 392, 396 (1955)). Defendant is not entitled to additional compensation, beyond the diminution in value as provided in N.C. Gen. Stat. \u00a740A-64, based on the loss of the right to develop the property in a certain way. Therefore, where the Town has filed a complaint which will entitle Defendant to compensation based on the diminution in value of the Wayne Tracts caused by the taking of the Easement, an inverse condemnation action by Defendant seeking additional damages resulting in the loss of its vested rights cannot be sustained.\n3: Expert Witness Opinion Testimony\nThe Town argues that the trial court erred in relying upon the speculative opinion testimony of Richard Flowe, Defendant\u2019s expert witness, in concluding that the Town\u2019s taking of the Easement resulted in a regulatory taking of the Wayne Tracts in their entirety. Specifically, the Town argues that Mr. Flowe\u2019s testimony was based on a map showing a hypothetical development plan and not on a review of the 1997 Plan. However, our decision in subsection 2 above renders this argument moot.\nB: Defendant\u2019s Cross-Appeal\n1: Unity of Ownership\nIn Defendant\u2019s sole argument on cross-appeal, he contends the trial court erred by concluding that no unity of ownership existed between Park Creek, LLC, and Defendant. We disagree.\nPursuant to N.C. Gen. Stat. \u00a7 40A-67, \u201call contiguous tracts of land that are in the same ownership and axe being used as an integrated economic unit shall be treated as if the combined tracts constitute a single tract.\u201d Id.\nIn this case, the facts are not in dispute. Mr. Wayne testified that he was the majority shareholder of Park Creek, LLC, owning 75% of its property. Mr. Wayne also testified that he is the record owner of the Wayne Tracts as Trustee of the Darryl Keith Wayne Trust. Our Supreme Court has held that \u201c[a]bsent unity of ownership ... two parcels of land cannot be regarded as a single tract for purposes of determining a condemnation award.\u201d Board of Transp. v. Martin, 296 N.C. 20, 26, 249 S.E.2d 390, 395 (1978) (emphasis added). Further, the Martin Court held that \u201ca parcel of land owned by an individual and an adjacent parcel of land owned by a corporation of which that individual is the sole or principal shareholder cannot be treated as a unified tract for the purpose of assessing condemnation damages.\u201d Id. at 28, 249 S.E.2d at 396. Based on Martin, we conclude the trial court did not err in finding and concluding that there was no unity of ownership between the Wayne Tracts owned by Mr. Wayne and the tract owned by a separate limited liability company.\nDefendant argues that Martin is not controlling because it is a limited liability company and not a corporation, citing City of Winston-Salem v. Yarbrough, 117 N.C. App. 340, 451 S.E.2d 358 (1994); D.O.T. v. Nelson Co., 127 N.C. App. 365, 489 S.E.2d 449 (1997); and D.O.T. v. Fernwood Hill Townhome Homeowners\u2019 Ass\u2019n, 185 N.C. App. 663, 649 S.E.2d 433 (2007). However, none of these cases involve a situation in which a limited liability company owns one tract and one of its members has ownership in an adjacent tract.\nIn Yarbrough, supra, we found that there was unity of ownership between a tract owned by a husband and an adjacent tract owned by his wife. We based this holding on the wife\u2019s inchoate right of dower in the husband\u2019s land; and, accordingly, the wife held \u201csome quality\u201d of interest in both tracts. Yarbrough, supra.\nIn Nelson Co., supra, we held unity of ownership may exist between two adjacent tracts owned by separate partnerships where some of the general partners were the same. In so holding, we stated that \u201ceach general partner has an ownership interest in partnership property along with the other partnersf,]\u201d relying on N.C. Gen. Stat. \u00a7 59-55(a) (1996). Id. at 367, 489 S.E.2d at 450.\nFinally, in Femwood Hill Toumhome Homeowners\u2019 Ass\u2019n, supra, we held that there was unity of ownership between the common areas owned by a homeowner\u2019s association and the individual townhomes. In so holding, we noted that the owners of the individual townhomes also each possessed an easement over the common areas, thus creating a unity of ownership. Id. at 640, 649 S.E.2d at 438.\nHowever, unlike the individuals in Yarbrough, Nelson Co., and Fernwood Hill Tounhome Homeowners\u2019 Ass\u2019n, Mr. Wayne, individually, has no interest in the tract owned by Park Creek, LLC. Rather, he merely owns an interest in the limited liability company which owns the tract. The Martin Court reasoned that a corporation and its shareholders are to be treated differently for purposes of determining whether unity of ownership exists based on the fact that a \u201ccorporation is an entity distinct from its shareholders which own it. . . . Where persons have deliberately adopted the corporate form to secure its advantages, they will not be allowed to disregard the existence of the corporate entity when it is in their benefit to do so.\u201d Id. at 28-29, 249 S.E.2d at 395 (citations omitted). We believe that this reasoning equally applies to the relationship between a limited liability partner and its members. Unlike a general partnership, a corporation and a limited liability company are each established by its owners, in part, \u201cto secure [the] advantage []\u201d of a shield from the liabilities of the entity. Defendant cannot now ask this Court to disregard the entity. Defendant argues, however, that we should treat a limited liability company like a general partnership, rather than like a corporation, for purposes of determining unity of ownership because both entities are taxed similarly. However, this argument is unconvincing; subchapter S corporations and partnerships are also taxed similarly.\nIll: Conclusion\nFor the foregoing reasons, we conclude the trial court did not err in ruling there was an inverse taking with regard the parking of construction vehicles and the temporary construction of a road on the Wayne Tracts outside of the Easement condemned by the Town\u2019s contractor. However, we hold that the trial court erred in concluding that there was a regulatory taking of the Wayne Tracts in their entirety. Lastly, regarding Defendant\u2019s cross-appeal, we affirm the trial court\u2019s ruling concerning the question of unity of ownership. Accordingly, we remand this matter to the trial court for a determination of damages with respect to both the Town\u2019s taking as described in its notice of taking to be calculated pursuant to N.C. Gen. Stat. \u00a740A-46 and the temporary taking of portions of the Wayne Tracts outside the Easement by the Town\u2019s contractor.\nAFFIRMED, in part; REVERSED and REMANDED, in part.\nJudge CALABRIA and Judge ERVIN concur.\n. The other cases cited by Defendant regarding a regulatory taking are inapposite. For instance, Defendant cites Raleigh v. Hollingsworth in which a property owner filed a counterclaim for inverse condemnation. 96 N.C. App. 260,385 S.E.2d 513 (1989). Our Court sustained a finding that an inverse condemnation had occurred; however, the property owner did not allege that the condemnor had taken additional rights in the property the condemnor had not identified in its notice of taking. Rather, the property owner alleged that the condemnor took another separate tract in addition to the tract identified in the notice of taking. Id.\n. Based on our holding, it is not necessary for us to decide whether Defendant\u2019s right to develop the Wayne Tracts in accordance with the 1997 Plan constitutes a \u201cvested right.\u201d", "type": "majority", "author": "DILLON, Judge." } ], "attorneys": [ "Hartsell & Williams, P.A., by Christy E. Wilhelm and Andrew T. Cornelius, for Plaintiff", "Vanderventer Black, LLP, by Norman Shearin, David P Ferrell, and Ashley P. Holmes, for Defendant." ], "corrections": "", "head_matter": "TOWN OF MIDLAND, Plaintiff v. DARRYL KEITH WAYNE, Trustee or any successors in trust, under the Darryl Keith Wayne Revocable Trust Agreement, and any Amendments thereto, dated February 23, 2007, Defendant\nNo. COA12-1163\nFiled 3 September 2013\n1. Real property \u2014 inverse taking \u2014 sufficient evidence\nThe trial court did not err in a real property case by concluding that actions by plaintiff Town\u2019s contractor in using portions of defendant\u2019s land outside an easement constituted an inverse taking. There was substantial evidence to support the trial court\u2019s findings on this issue, including the ultimate finding.\n2. Real property \u2014 regulatory taking \u2014 in its entirety\nThe trial court erred in a real property case by concluding that plaintiff Town\u2019s taking of an easement constituted a regulatory taking of defendant\u2019s property in its entirety. The trial court made no findings to support a conclusion that the property had no practical use or reasonable value. Furthermore, defendant is not entitled to additional compensation, beyond the diminution in value as provided in N.C.G.S. \u00a740A-64, based on the loss of the right to develop the property in a certain way.\n3. Appeal and Error \u2014 issue moot\nPlaintiff Town\u2019s argument in a real property case that the trial court erred in relying upon the speculative opinion testimony of defendant\u2019s expert was moot.\n4. Real Property \u2014 unity of ownership \u2014 separate owners\nThe trial court did not err in a real property case by concluding that no unity of ownership existed between tracts of land owned by defendant and a tract owned by a separate limited liability company.\nAppeal by Plaintiff and cross-appeal by Defendant from orders entered 23 March 2012 and 7 June 2012 by Judge C.W. Bragg in Cabarrus County Superior Court. Heard in the Court of Appeals 27 March 2013.\nHartsell & Williams, P.A., by Christy E. Wilhelm and Andrew T. Cornelius, for Plaintiff\nVanderventer Black, LLP, by Norman Shearin, David P Ferrell, and Ashley P. Holmes, for Defendant." }, "file_name": "0481-01", "first_page_order": 491, "last_page_order": 500 }