{ "id": 4277936, "name": "CITY OF ASHEVILLE, a North Carolina Municipality, Plaintiff v. RESURGENCE DEVELOPMENT COMPANY, LLC, Defendant", "name_abbreviation": "City of Asheville v. Resurgence Development Co.", "decision_date": "2013-10-15", "docket_number": "No. COA13-341", "first_page": "80", "last_page": "87", "citations": [ { "type": "official", "cite": "230 N.C. App. 80" } ], "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": "647 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638970 ], "year": 2007, "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0643-01" ] }, { "cite": "143 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "79", "parenthetical": "stating that \"a municipality has the right to condemn property for the construction and operation of sewage systems and related facilities.\"" } ], "opinion_index": 0 }, { "cite": "265 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574762 ], "year": 1965, "pin_cites": [ { "page": "183", "parenthetical": "stating that \"a municipality has the right to condemn property for the construction and operation of sewage systems and related facilities.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0181-01" ] }, { "cite": "168 S.E. 255", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "pin_cites": [ { "page": "255", "parenthetical": "noting the right of a municipality to establish an easement through condemnation \"for sewerage purposes\"" } ], "opinion_index": 0 }, { "cite": "200 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625577 ], "year": 1931, "pin_cites": [ { "page": "691", "parenthetical": "noting the right of a municipality to establish an easement through condemnation \"for sewerage purposes\"" } ], "opinion_index": 0, "case_paths": [ "/nc/200/0690-01" ] }, { "cite": "131 S.E. 407", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "pin_cites": [ { "page": "409", "parenthetical": "observing that the Town of Mebane could take land through its power of eminent domain for the establishment of sewer systems" } ], "opinion_index": 0 }, { "cite": "191 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627538 ], "year": 1926, "pin_cites": [ { "page": "5", "parenthetical": "observing that the Town of Mebane could take land through its power of eminent domain for the establishment of sewer systems" } ], "opinion_index": 0, "case_paths": [ "/nc/191/0001-01" ] }, { "cite": "484 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54024, 54187, 53844, 53941, 53916 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0353-04", "/nc/345/0353-03", "/nc/345/0353-05", "/nc/345/0353-02", "/nc/345/0353-01" ] }, { "cite": "477 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 637", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867576, 867624, 867579, 867599 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0637-03", "/nc/344/0637-04", "/nc/344/0637-02", "/nc/344/0637-01" ] }, { "cite": "468 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1996, "pin_cites": [ { "page": "257" }, { "page": "257" }, { "page": "257", "parenthetical": "holding that use of condemned land to expand sewer systems sufficient to support planned private development was both a public use and for public benefit" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 716", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919991 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "718-19" }, { "page": "718-19", "parenthetical": "holding that use of condemned land to expand sewer systems sufficient to support planned private development was both a public use and for public benefit" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0716-01" ] }, { "cite": "710 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "1, 3" } ], "opinion_index": 0 }, { "cite": "365 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "704 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "209 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181864 ], "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc-app/209/0208-01" ] }, { "cite": "40 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1946, "pin_cites": [ { "page": "605", "parenthetical": "citations and quotation marks omitted" }, { "page": "604-05" }, { "page": "604" } ], "opinion_index": 0 }, { "cite": "226 N.C. 750", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625343 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "756", "parenthetical": "citations and quotation marks omitted" }, { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0750-01" ] }, { "cite": "582 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 174", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954715 ], "year": 2003, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0174-01" ] }, { "cite": "364 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "400", "parenthetical": "citation omitted" }, { "page": "401", "parenthetical": "citations omitted" }, { "page": "401" }, { "page": "402", "parenthetical": "citations and quotation marks omitted" }, { "page": "402", "parenthetical": "\"The mere fact that the advantage of the use inures to a particular individual will not deprive it of its public character.\" (citation, quotation marks, and ellipses omitted)" }, { "page": "400, 402" } ], "opinion_index": 0 }, { "cite": "321 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571827 ], "weight": 6, "year": 1988, "pin_cites": [ { "page": "429", "parenthetical": "citation omitted" }, { "page": "429-30" }, { "page": "430" }, { "page": "432" }, { "page": "431" }, { "page": "431-32" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0426-01" ] }, { "cite": "707 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "704 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "52", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "208 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4180720 ], "year": 2010, "pin_cites": [ { "page": "668", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0664-01" ] }, { "cite": "580 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491428, 491847, 491722, 491755, 491435, 491796, 491543, 491513 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0165-01", "/nc/357/0165-07", "/nc/357/0165-03", "/nc/357/0165-04", "/nc/357/0165-05", "/nc/357/0165-02", "/nc/357/0165-08", "/nc/357/0165-06" ] }, { "cite": "572 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "834", "parenthetical": "trial court's determination under N.C. Gen.Stat. \u00a7 40A-47 \"affect[ed] a substantial right\"" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251289 ], "year": 2002, "pin_cites": [ { "page": "591", "parenthetical": "trial court's determination under N.C. Gen.Stat. \u00a7 40A-47 \"affect[ed] a substantial right\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0589-01" ] }, { "cite": "185 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8208412 ], "year": 2007, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0033-01" ] } ], "analysis": { "cardinality": 784, "char_count": 17741, "ocr_confidence": 0.736, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14357362147368438 }, "sha256": "6061926909d44e8e1c972f2e21f57ea44953f893a9174ea60a808c03b62facfd", "simhash": "1:d219f1525c673c76", "word_count": 2893 }, "last_updated": "2023-07-14T21:27:10.360096+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge GEER concur." ], "parties": [ "CITY OF ASHEVILLE, a North Carolina Municipality, Plaintiff v. RESURGENCE DEVELOPMENT COMPANY, LLC, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nResurgence Development Company, LLC, (\u201cdefendant\u201d) appeals from an order entered pursuant to N.C. Gen. Stat. \u00a7 40A-47 (2011) wherein the trial court determined that the City of Asheville\u2019s proposed condemnation of an easement over defendant\u2019s land was for a public purpose. For the following reasons, we affirm.\nI. Background\nDefendant owns approximately 5.3 acres of land in Buncombe County, North Carolina. Plaintiff owns an adjacent tract of approximately 16 acres. Plaintiff and defendant both purchased their land at the same foreclosure sale. Plaintiff purchased the 16 acres to protect its interest in two loans it had made to the previous owner of both tracts of land \u2014 another company for which defendant\u2019s member/manager was also member/manager. Plaintiff had made the loans to help finance the development of affordable housing, but the prior owner defaulted.\nOn 15 October 2010, plaintiff entered into a contract with the Asheville-Area Habitat for Humanity (\u201cHabitat\u201d), a non-profit corporation, to sell plaintiff\u2019s 16 acres so that Habitat could build 55 single-family homes and thereby provide affordable housing to area residents. As a condition of the sale, Habitat required that the property be connected to the public sewer system.\nWhen defendant bought its property, there was already a sewer pump station on the property capable of serving 310 units. Defendant\u2019s property can only support 42 units. Plaintiff\u2019s property, however, had no access to the sewer system. To access the sewer pump station, there would need to be an additional line running from plaintiff\u2019s property, across defendant\u2019s land (along the existing sewer easement), to the station. The sewer pump station and its associated lines are owned by the Metropolitan Sewerage District of Buncombe County (MSD), a public body. The existing easement did not authorize an additional sewer line, so MSD refused to construct it without an additional easement area.\nPlaintiff filed this eminent domain action to condemn a permanent easement of 435 square feet and a temporary construction easement of 474 square feet. Plaintiff stated that once it acquired the easement and constructed the line, it would be transferred to MSD and operated in conjunction with the existing sewer system. Defendant answered, contending that plaintiff\u2019s intended condemnation was not for a public purpose. Plaintiff then moved for a determination of all issues other than damages under N.C. Gen. Stat. \u00a7 40A-47.\nThe trial court entered an order on 10 September 2012 finding the above facts and concluding that plaintiff\u2019s proposed use of the easement was for a public purpose. Defendant filed timely written notice of appeal.\nII. Appellate Jurisdiction\nWe first note that this appeal is interlocutory because the order from which defendant appeals does not resolve the issue of just compensation. City of Winston-Salem v. Slate, 185 N.C. App. 33, 37, 647 S.E.2d 643, 646 (2007).\nGenerally, there is no right to appeal from an interlocutory order. Nevertheless, this Court has held on multiple occasions that orders under N.C. Gen. Stat. \u00a7 40A-47 are immediately appealable as affecting a substantial right. See, e.g., Piedmont Triad Reg\u2019l Water Auth. v. Unger, 154 N.C. App. 589, 591, 572 S.E.2d 832, 834 (2002) (trial court\u2019s determination under N.C. Gen.Stat. \u00a7 40A-47 \u201caffect[ed] a substantial right\u201d), disc. review denied, 357 N.C. 165, 580 S.E.2d 695 (2003).\nId. (citation omitted). Therefore, defendant\u2019s appeal is properly before this Court.\nIII. Public Use or Benefit\nDefendant argues that the trial court erred in concluding that plaintiff\u2019s condemnation of an easement to expand the sewer lines that run across his property is for a public purpose. We disagree.\nThe trial court, sitting without a jury, made a number of relevant findings of fact and concluded that plaintiff\u2019s proposed condemnation is for a public purpose and is therefore both constitutional and authorized by statute.\nIt is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts. Findings of fact by the trial court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support those findings. A trial court\u2019s conclusions of law, however, are reviewable de novo.\nMecklenburg County v. Simply Fashion Stores, Ltd., 208 N.C. App. 664, 668, 704 S.E.2d 48, 52 (2010) (citations and quotation marks omitted), app. dismissed, 365 N.C. 187, 707 S.E.2d 231 (2011). The trial court\u2019s findings of fact are conclusive on appeal because defendant has not challenged any as unsupported by the evidence. Id. We review the trial court\u2019s conclusion that plaintiff\u2019s proposed use of eminent domain is \u201cfor a public purpose\u201d de novo. Id.\n\u201cEminent domain is the power of the nation or of a sovereign state to take, or to authorize the taking of, private property for a public use without the owner\u2019s consent and upon payment of just compensation.\u201d Carolina Tel & Tel. Co. v. McLeod, 321 N.C. 426, 429, 364 S.E.2d 399, 400 (1988) (citation omitted). Plaintiff, a municipality of the state, is authorized by statute to exercise that power. N.C. Gen. Stat. \u00a7 40A-3(b) (2011).\nWhile delegation of the power of eminent domain is for the legislature, the determination of whether the condemnor\u2019s intended use of the land is for \u201cthe public use or benefit\u201d is a question of law for the courts. This task has not proven easy. While it is clear that the power of eminent domain may not be employed to take private property for a purely private puipose, it is far from clear just how \u201cpublic\u201d is public enough for purposes of N.C.G.S. \u00a7 40A-3. As we have stated on numerous occasions, the statutory phrase \u201cthe public use or benefit\u201d is incapable of a precise definition applicable to all situations. Rather, because of the progressive demands of an ever-changing society and the perpetually fluid concept of governmental duty and function, the phrase is elastic and keeps pace with changing times.\nHowever, judicial determination of whether a condemnor\u2019s intended use is an action for \u201cthe public use or benefit\u201d under N.C.G.S. \u00a7 40A-3 is not standardless. On the contrary, courts in this and other states have employed essentially two approaches to this problem. The first approach \u2014 the public use test \u2014 asks whether the public has a right to a definite use of the condemned property. The second approach \u2014 the public benefit test \u2014 asks whether some benefit accrues to the public as a result of the desired condemnation.\nCarolina Tel. & Tel. Co., 321 N.C. at 429-30, 364 S.E.2d at 401 (citations omitted).\nMunicipal use of eminent domain to establish and expand access to sewer systems has long been upheld as proper by the courts of this state. Additionally, the Legislature has specifically authorized local public condemnors to exercise eminent domain in order to \u201c[e]stablish[], extendf], enlarg[e], or improv[e] . . . sewer and septic tank lines and systems.\u201d N.C. Gen. Stat. \u00a7 40A-3(b)(4) (2011). Nevertheless, \u201cwhether a condemnor\u2019s intended use of the property is for \u2018the public use or benefit\u2019 is a question of law for the courts\u201d that we must consider under the particular facts presented here. Tucker v. City of Kannapolis, 159 N.C. App. 174, 178, 582 S.E.2d 697, 699 (2003).\nUnder the public use test, the question is \u201cwhether the general public has a right to a definite use of the property sought to be condemned.\u201d Carolina Tel. & Tel. Co., 321 N.C. at 430, 364 S.E.2d at 401.\nThe public use required need not be the use or benefit of the whole public or state, or any large portion of it. It may be for the inhabitants of a small or restricted locality; but the use and benefit must be in common, not to particular individuals or estates.\nCity of Charlotte v. Heath, 226 N.C. 750, 756, 40 S.E.2d 600, 605 (1946) (citations and quotation marks omitted). Thus, where the City of Charlotte condemned a right-of-way to extend sewer lines to several dozen residents outside of the city limits, our Supreme Court upheld the condemnation as a public use despite arguments that the benefit was limited to those residents. Id. at 755-56, 40 S.E.2d at 604-05.\nHere, the trial court specifically found that \u201c[i]n addition to the 55 homes planned to be bufit by Habitat and subject to access and the capacity of the sewer pumping station, the sewer easement area will be available to the public at large in accordance with the appropriate rules, regulations and standards of MSD.\u201d Defendant has not challenged this finding.\nAs our Supreme Court observed in Heath-.\nIf there was in the record any evidence to sustain the theory that the use of the sewer line was intended to be confined, or could be confined in the future, to the 65 or 70 persons presently dwelling in the area to be served, and was not now, nor could hereafter be accessible to the general public who seek residence there, the case might be different. But there is no such evidence, and the inferences are to the contrary.\nHeath, 226 N.C. at 755, 40 S.E.2d at 604.\nAs in Heath, there is no indication here that access to the sewer system will be somehow restricted to plaintiff, Habitat, or the initial residents on plaintiff\u2019s property. Indeed, the record evidence and the trial court\u2019s finding shows that the sewer easement will be useable by the public. Therefore, as our Supreme Court did in Heath, we conclude that plaintiff\u2019s proposed use here is a \u201cpublic use.\u201d\nSecond, we must consider whether plaintiff\u2019s proposed condemnation satisfies the \u201cpublic benefit\u201d test. See Town of Midland v. Morris, 209 N.C. App. 208, 218, 704 S.E.2d 329, 337 (\u201cDespite the disjunctive language of this statutory requirement, our Courts have determined the propriety of a condemnation under section 40A-3 based on the condemnation\u2019s satisfaction of both a \u2018public use test\u2019 and a \u2018public benefit test.\u2019 \u201d), app. dismissed and disc. rev. denied, 365 N.C. 198, 710 S.E.2d 1, 1, 3 (2011).\nGenerally, under the public benefit test, a given condemnor\u2019s desired use of the condemned property in question is for \u201cthe public use or benefit\u201d if that use would contribute to the general welfare and prosperity of the public at large. However, judicial decisions in this and other states reveal that not just any benefit to the general public will suffice under this test. Rather, the taking must furnish the public with some necessity or convenience which cannot readily be furnished without the aid of some governmental power, and which is required by the public as such.\nCarolina Tel. & Tel. Co., 321 N.C. at 432, 364 S.E.2d at 402 (citations and quotation marks omitted).\nHere, using the eminent domain power to connect plaintiff\u2019s property to the sewer pump station under defendant\u2019s property benefits the public. Currently, there is no sewer access on plaintiff\u2019s property. Extending the sewer lines will allow the development of the land currently owned by the City of Asheville, whether this development is ultimately performed by Habitat for Humanity or some other entity, thereby increasing the availability of affordable housing in the area. The sewer line under defendant\u2019s property has more than sufficient capacity to service plaintiff\u2019s land. Indeed, when the sewer lines were initially set up, the pump station on defendant\u2019s property was designed to service both plaintiff\u2019s property and defendant\u2019s. The separation of the ownership of the two properties is simply the fortuitous result of the sale of the two properties at foreclosure to two different buyers. Requiring plaintiff to construct a sewer pump station on its property \u2014 which is what defendant contends plaintiff ought to do \u2014 would result in wasteful and unnecessary duplication of resources.\nThe facts under consideration here are indistinguishable from those in Stout v. City of Durham, 121 N.C. App. 716, 468 S.E.2d 254, disc. rev. allowed, 344 N.C. 637, 477 S.E.2d 54 (1996), disc. rev. withdrawn, 345 N.C. 353, 484 S.E.2d 93 (1997). In Stout, the City of Durham intended to acquire private property through eminent domain in order to expand the sewer lines and thereby facilitate the private development of a shopping center. 121 N.C. App. at 718-19, 468 S.E.2d at 257. Despite the obvious benefits that would accrue to the private developers of the shopping center and the fact that the desired private construction motivated the sewer expansion, we concluded that the intended use was both a \u201cpublic use\u201d and for \u201cpublic benefit\u201d because it fostered economic growth. Id.\nAs in Stout, we conclude that the expansion of the sewer system to plaintiff\u2019s property through the condemnation of an easement over defendant\u2019s land is for public benefit. The fact that some benefit might also accrue to a private party does not change that conclusion. See Carolina Tel. & Tel. Co., 321 N.C. at 431, 364 S.E.2d at 402 (\u201cThe mere fact that the advantage of the use inures to a particular individual will not deprive it of its public character.\u201d (citation, quotation marks, and ellipses omitted)).\nFinally, we must decide whether that public benefit is paramount to or merely incidental to the private benefit. See id. at 719, 468 S.E.2d at 257. We conclude that the development of affordable housing for the Asheville area is the predominant interest at stake. Here, regardless of whether one considers some private benefit as accruing to the City of Asheville, Habitat, or both, it is clear from the trial court\u2019s findings and the record evidence that condemning a sewer easement over defendant\u2019s land will facilitate the construction of affordable housing, which is to the benefit of the public. See id. Even the loan that plaintiff hopes to recoup in part through the sale of the land in question was intended to facilitate the construction of affordable housing. To the extent there are any private interests here, they all ultimately relate back to the purpose of building affordable housing for citizens in need. Condemnation of the easement here furthers that legitimate public interest.\nWe hold that the expansion of sewer service here constitutes an action for \u201cthe public use or benefit\u201d under N.C. Gen. Stat. \u00a7 40A-3 and that plaintiff may validly exercise its power of eminent domain to condemn a sewer easement over defendant\u2019s land. Therefore, we affirm the trial court\u2019s order.\nIV. Conclusion\nFor the foregoing reasons, we hold that plaintiff\u2019s proposed condemnation of an easement over defendant\u2019s land is for the public use or benefit. We therefore affirm the trial court\u2019s order.\nAFFIRMED.\nChief Judge MARTIN and Judge GEER concur.\n. See, e.g., Cook v. Town of Mebane, 191 N.C. 1, 5, 131 S.E. 407, 409 (1926) (observing that the Town of Mebane could take land through its power of eminent domain for the establishment of sewer systems); Harmon v. Town of Bessemer City, 200 N.C. 690, 691, 168 S.E. 255, 255 (1931) (noting the right of a municipality to establish an easement through condemnation \u201cfor sewerage purposes\u201d), Glace v. Town of Pilot Mountain, 265 N.C. 181, 183, 143 S.E.2d 78, 79 (1965) (stating that \u201ca municipality has the right to condemn property for the construction and operation of sewage systems and related facilities.\u201d); Stout v. City of Durham, 121 N.C. App. 716, 718-19, 468 S.E.2d 254, 257 (1996) (holding that use of condemned land to expand sewer systems sufficient to support planned private development was both a public use and for public benefit).\n. Indeed, our Supreme Court, applying Heath, held that use of eminent domain to ' provide telephone service to a single individual was a \u201cpublic use.\u201d McLeod, 321 N.C. at 431-32,364 S.E.2d at 400, 402.\n. We also note the proposed permanent easement is entirely within the pre-existing easement owned by MSD.\n. Defendant also argues that plaintiff\u2019s plan violates N.C. Gen. Stat. \u00a7 160A-279(a) (2011), which forbids the transfer of property acquired by eminent domain through a private sale. Plaintiff asserts, however, and the trial court found that plaintiff intends to convey the easement to MSD, not to sell it to Habitat or some other private party. Therefore, the prohibition contained in \u00a7 160A-279(a) is not applicable.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Ferikes & Bleynat, PLLC, by Joseph A. Ferikes, for plaintiff-appellee.", "Adams, Hendon, Carson, Crow & Saenger, P.A., by George W. Saenger, for defendant-appellant." ], "corrections": "", "head_matter": "CITY OF ASHEVILLE, a North Carolina Municipality, Plaintiff v. RESURGENCE DEVELOPMENT COMPANY, LLC, Defendant\nNo. COA13-341\nFiled 15 October 2013\n1. Appeal and Error \u2014 interlocutory orders and appeals \u2014 eminent domain \u2014 substantial right affected\nAn order in an eminent domain action finding facts and concluding that the easement was for a public purpose was interlocutory because the order the issue of just compensation was not resolved. However, orders under N.C.G.S. \u00a7 40A-47 are immediately appeal-able as affecting a substantial right.\n2. Eminent Domain \u2014 extension of sewer service \u2014 affordable housing \u2014 public use or benefit\nAn expansion of sewer service constituted an action for the public use or benefit under N.C.G.S. \u00a7 40A-3 and plaintiff could validly exercise its power of eminent domain to condemn a sewer easement over defendant\u2019s land. An extension of sewer lines to allow the development of the land owned by the City of Asheville facilitated the construction of affordable housing, which was to the benefit of the public.\nAppeal by defendant from Order entered on or about 10 September 2012 by Judge Robert C. Ervin in Superior Court, Buncombe County. Heard in the Court of Appeals 9 September 2013.\nFerikes & Bleynat, PLLC, by Joseph A. Ferikes, for plaintiff-appellee.\nAdams, Hendon, Carson, Crow & Saenger, P.A., by George W. Saenger, for defendant-appellant." }, "file_name": "0080-01", "first_page_order": 90, "last_page_order": 97 }