{ "id": 12169593, "name": "HENRY F. TWITTY and WILLIAM TWITTY v. STATE OF NORTH CAROLINA and HEMAN R. CLARK, SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY", "name_abbreviation": "Twitty v. State", "decision_date": "1987-04-07", "docket_number": "No. 869SC949", "first_page": "42", "last_page": "56", "citations": [ { "type": "official", "cite": "85 N.C. App. 42" } ], "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": "14 S.E. 2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "219 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624342 ], "year": 1941, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/nc/219/0402-01" ] }, { "cite": "288 S.E. 2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571202, 8571266, 8571300, 8571179, 8571230 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0725-02", "/nc/304/0725-04", "/nc/304/0725-05", "/nc/304/0725-01", "/nc/304/0725-03" ] }, { "cite": "281 S.E. 2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "186", "parenthetical": "emphasis original" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521438 ], "year": 1981, "pin_cites": [ { "page": "397", "parenthetical": "emphasis original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0390-01" ] }, { "cite": "57 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "231 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630552 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/231/0481-01" ] }, { "cite": "1 S.E. 2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627745 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0001-01" ] }, { "cite": "166 S.E. 911", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 0 }, { "cite": "203 N.C. 756", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620022 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/203/0756-01" ] }, { "cite": "78 S.E. 510", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "opinion_index": 0 }, { "cite": "162 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271513 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nc/162/0409-01" ] }, { "cite": "319 S.E. 2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "311 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687517 ], "year": 1984, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0689-01" ] }, { "cite": "293 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 24, "year": 1982, "pin_cites": [ { "page": "199" }, { "page": "109" }, { "page": "109" }, { "page": "109" }, { "page": "110" }, { "page": "109" }, { "page": "200" }, { "page": "110" }, { "page": "201" }, { "page": "110" }, { "page": "110-11" }, { "page": "201" }, { "page": "111" }, { "page": "199" }, { "page": "109" }, { "page": "110" } ], "opinion_index": 0 }, { "cite": "306 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567947 ], "weight": 5, "year": 1982, "pin_cites": [ { "page": "198-99" }, { "page": "199" }, { "page": "199" }, { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0187-01" ] }, { "cite": "236 S.E. 2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562517 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0201-01" ] }, { "cite": "77 S.E. 2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602245 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0185-01" ] }, { "cite": "124 S.E. 2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1962, "pin_cites": [ { "page": "813", "parenthetical": "emphasis in original" }, { "parenthetical": "emphasis in original" }, { "page": "814" } ], "opinion_index": 0 }, { "cite": "256 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574237 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0611-01" ] }, { "cite": "166 S.E. 738", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1932, "pin_cites": [ { "page": "741-42" }, { "page": "742" } ], "opinion_index": 0 }, { "cite": "203 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616638 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "617" }, { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc/203/0610-01" ] }, { "cite": "231 S.E. 2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549118 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0154-01" ] }, { "cite": "265 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560050 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0186-01" ] }, { "cite": "317 S.E. 2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684448 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0325-01" ] } ], "analysis": { "cardinality": 1140, "char_count": 31779, "ocr_confidence": 0.877, "pagerank": { "raw": 2.2625378312386826e-07, "percentile": 0.7827962170767485 }, "sha256": "c83dd83c1c4c0106a17a786797a441baceb6927003e92213350b9c0d6d384d33", "simhash": "1:8323d45e72d08f60", "word_count": 5164 }, "last_updated": "2023-07-14T23:00:25.781259+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Greene concur." ], "parties": [ "HENRY F. TWITTY and WILLIAM TWITTY v. STATE OF NORTH CAROLINA and HEMAN R. CLARK, SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nThe State first assigns error to the trial court\u2019s conclusion of law that the State\u2019s operation of the PCBs disposal facility \u201cconstitutes a public nuisance permanent in nature that has resulted in a diminution in value of plaintiffs\u2019 lands for which plaintiffs are entitled to just compensation.\u201d\nOn appeal, the conclusions of law drawn by the trial judge are fully reviewable and may be reversed if erroneous. Hofler v. Hill and Hofler v. Hill, 311 N.C. 325, 317 S.E. 2d 670 (1984); Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E. 2d 189 (1980). A conclusion of law must be based upon the facts found by the trial judge. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E. 2d 26 (1977).\n\u201cA public nuisance exists wherever acts or conditions are subversive of public order, decency, or morals, or constitute an obstruction of public rights. Such nuisances always arise out of unlawful acts.\u201d State v. Everhardt, 203 N.C. 610, 617, 166 S.E. 738, 741-42 (1932). A public nuisance affects the local community generally and its maintenance constitutes an offense against the State. Id.\nTo constitute a public nuisance, the condition of things must be such as injuriously affects the community at large, and not merely one or even a very few individuals .... Whatever tends to endanger life, or generate disease, and affect the health of the community; whatever shocks the public morals and sense of decency; whatever shocks the religious feelings of the community, or tends to its discomfort \u2014is generally, at common law, a public nuisance, and a crime.\n203 N.C. at 618, 166 S.E. at 742.\nThere are no findings of fact here that support a conclusion of law that the State\u2019s operation of the PCBs disposal facility constitutes a public nuisance permanent in nature. Indeed, there is no evidence upon which findings could have been made. This is not an action to abate a public nuisance. See generally 9 Strongs, N.C. Index 3d, Nuisance Section 10 (1977). Plaintiffs\u2019 cause of action is for inverse condemnation.\nPlaintiffs argue that the type of nuisance to which they have been subjected is more properly classified as a private nuisance per accidens and the trial court\u2019s conclusion of a public nuisance rather than private nuisance is not prejudicial error. Plaintiffs rely on 5 Am. Jur. 2d, Appeal and Error Section 785 (1962): \u201cThe decision of the trial court should be affirmed if it is correct, although the lower court relied upon a wrong ground or gave a wrong reason, or the judgment or order complained of contains inaccurate or erroneous declarations of law. The judgment or order need not be sustained for the same reason or for all the reasons relied upon by the trial court.\u201d\nThe trial court\u2019s judgment here cannot be sustained on the basis of private nuisance per accidens. An intentional private nuisance per accidens is one which constitutes a nuisance by reason of its location or the manner in which it is constructed, maintained or operated. Watts v. Manufacturing Company, 256 N.C. 611, 124 S.E. 2d 809 (1962); Morgan v. Oil Co., 238 N.C. 185, 77 S.E. 2d 682 (1953). \u201cIt is the unreasonable operation and maintenance that produces the nuisance.\u201d 256 N.C. at 617, 124 S.E. 2d at 813 (emphasis in original). In addition, for liability to exist, there must be a \u201csubstantial non-trespassory invasion of another\u2019s interest in the private use and enjoyment of property.\u201d Id. (emphasis in original). Therefore, in order to make out a prima facie case plaintiff must show (1) that defendant\u2019s maintenance and operation of the enterprise is unreasonable and (2) that because of the unreasonable conduct there has been substantial injury and loss of value to plaintiffs property. Id. at 618, 124 S.E. 2d at 814. The essential inquiry in any nuisance action is whether the defendant\u2019s conduct is unreasonable. Pendergrast v. Aiken, 293 N.C. 201, 236 S.E. 2d 787 (1977).\nThere is no finding or conclusion of law that the State\u2019s conduct in maintaining and operating the PCBs disposal facility was unreasonable. On the contrary, the trial court concluded that the State\u2019s conduct \u201cin maintaining and operating the PCBs disposal facility upon the lands in question is not unreasonable and constitutes a proper exercise of the police authority of the State to promote the health, safety and welfare of the people of North Carolina.\u201d We have reviewed this conclusion of law in light of the evidence presented and the trial court\u2019s findings of fact and have determined that it is supported by both the evidence and the findings of fact.\nThere is no evidence to support plaintiffs\u2019 recovery on the basis of nuisance, public or private. The trial court\u2019s conclusion of law number six, that the State\u2019s operation of the PCBs disposal facility constitutes a public nuisance is unsupported by its findings of fact, is in direct conflict with its conclusions of law, is erroneous and must be set aside.\nII\nThe State assigns error to the trial court\u2019s conclusion of law that there has been a \u201ctaking\u201d of plaintiffs\u2019 lands, or an interest therein, for which plaintiffs are entitled to recover just compensation.\nThe trial court concluded that \u201cplaintiffs have shown an actual interference with or disturbance of their property rights resulting in injuries which are not merely consequential or incidental in nature,\u201d and that the State\u2019s location and operation of the disposal facility have \u201cresulted in a substantial non-trespasso-ry invasion of plaintiffs\u2019 interest in the private use and enjoyment of their property in that it has resulted in a material diminution in value of plaintiffs\u2019 l^nds.\u201d Based on its findings and conclusions, the trial court ordered and decreed that:\nThe interest taken in plaintiffs\u2019 land is an easement for the accommodation of the continued operation of the PCBs disposal facility on the site in question. This interest is maximally defined as the right of the State to continue to operate the PCBs disposal facility so long as the physical integrity of the facility remains intact, and it is operated in such a manner as to prevent any physical invasion of plaintiffs\u2019 lands by the PCBs stored therein.\nThis portion of defendant\u2019s appeal addresses the validity of plaintiffs\u2019 claim for inverse condemnation. In essence, plaintiffs contend that the State\u2019s placement of the PCBs disposal facility in close proximity to plaintiffs\u2019 land constitutes a governmental taking for which they are entitled to just compensation under the Fourteenth Amendment to the United States Constitution and under Article 1, Section 19 of the Constitution of North Carolina. The State, on the other hand, contends that there has been no governmental taking of any kind. We believe that resolution of this issue depends upon our interpretation of Long v. City of Charlotte, 306 N.C. 187, 293 S.E. 2d 101 (1982).\nIn Long the Supreme Court held that for a \u201ctaking\u201d to occur \u201cthere need only be a substantial interference with elemental rights growing out of the ownership of the property.\u201d Id. at 199, 293 S.E. 2d at 109; see Stillings v. Winston-Salem, 311 N.C. 689, 692, 319 S.E. 2d 233, 235 (1984). Actual occupation of the land, dispossession of the landowner or even a physical touching of the land is not necessary under the modern construction of the \u201ctaking\u201d requirement. 306 N.C. at 198-99, 293 S.E. 2d at 109. Examples of \u201ctakings\u201d cited by the court include odors from a nearby trash dump, Hines v. City of Rocky Mount, 162 N.C. 409, 78 S.E. 510 (1913); odors from an adjacent sewage disposal plant, Gray v. City of High Point, 203 N.C. 756, 166 S.E. 911 (1932); and odors, smoke, ashes, rats, mosquitoes and other insects from a sewage disposal plant, Ivester v. City of Winston-Salem, 215 N.C. 1, 1 S.E. 2d 88 (1939). As explained by the Court \u201c[t]hough no physical touching was present in those cases, the wafted smoke, odors, dust, or ashes over the plaintiffs land warranted compensation for a \u2018taking.\u2019 \u201d 306 N.C. at 199, 293 S.E. 2d at 109.\n\u201cIn order to recover for inverse condemnation, a plaintiff must show an actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental.\u201d Id. The Court in Long added that a \u201ctaking\u201d has been defined as \u201centering upon private property for more than a momentary period, and under warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.\u201d Id. (quoting Penn v. Coastal Cory., 231 N.C. 481, 57 S.E. 2d 817 (1950)).\nLong involved landowners alleging damage caused by low flying aircraft in taking off from and landing in the city owned and operated airport. As the Court pointed out, flights at altitudes that would in no way damage or interfere with the use and enjoyment of land have been held not to constitute a taking or damaging of the property: \u201c[I]t has been recognized that there must be a substantial interference with the use and enjoyment of the land, not merely incidental damage, before a taking results.\u201d Id. at 200, 293 S.E. 2d at 110. \u201cA compensable taking of a flight or avigation easement does not occur until overflights constitute a material interference with the use and enjoyment of property, such that there is substantial diminution in fair market value.\u201d Id. (quoting Cochran v. City of Charlotte, 53 N.C. App. 390, 397, 281 S.E. 2d 179, 186 (1981) (emphasis original), cert. denied, 304 N.C. 725, 288 S.E. 2d 380 (1982)).\nNot every act or happening injurious to a landowner, his property or his use of his property is compensable. 306 N.C. at 199, 293 S.E. 2d at 109. The public importance and social utility of activity must be balanced against the inconvenience, annoyance and aggravation to those in its vicinity. Id. at 200, 293 S.E. 2d at 110. \u201cThis balancing of interests necessarily and properly places a heavy burden on the landowner.\u201d Id. The balancing of interests is established by \u201cthe requirement that in order to recover for the interference with one\u2019s property, the owner must establish not merely an occasional trespass or nuisance, but an interference substantial enough to reduce the market value of his property.\u201d Id. With regard to the issue of compensability (entitlement to recover), \u201cthe fair and logical rule is that a landowner is entitled to compensation if the interference caused by the flights is sufficiently direct, sufficiently peculiar and of sufficient magnitude to support a conclusion that a taking has occurred.\u201d Id. at 201, 293 S.E. 2d at 110. The test is whether the value of plaintiffs property has been substantially impaired by a \u201ctaking.\u201d Id. Property means not only the thing possessed but also \u201cthe right of the owner to the land; the right to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from its use.\u201d Id. (quoting Hildebrand v. Telegraph Co., 219 N.C. 402, 408, 14 S.E. 2d 252, 256 (1941)). \u201cThus, where a person\u2019s right to possess, use, enjoy or dispose of his land is substantially impaired, his property has been taken, and he is entitled to recover to the extent of the diminution in his property\u2019s value.\u201d Id at 201, 293 S.E. 2d at 110-11. The measure of damages is the difference in the fair market value of the property immediately before and immediately after the taking. Id. at 201, 293 S.E. 2d at 111.\nLong requires \u201can actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental.\u201d Id. at 199, 293 S.E. 2d at 109. While the term \u201cactual interference\u201d does not require actual physical invasion, actual dispossession or even a physical touching, the term does require that plaintiffs show interference with the use and enjoyment of their property substantial enough to reduce market value. Here the trial court concluded that the plaintiffs had shown actual interference with the private use and enjoyment of their property by showing that the State\u2019s location of the landfill \u201cresulted in a material diminution in value of plaintiffs\u2019 lands.\u201d In essence, the trial court concluded that there was a \u201ctaking\u201d because the market value of plaintiffs\u2019 lands had been diminished. However, we believe that the trial court skipped an important step and its conclusion is based on a misapprehension of the law.\nA reduction in market value, standing alone, does not constitute an \u201cactual interference with or disturbance of plaintiffs\u2019 use and enjoyment of their property. Long requires an actual interference (the cause) substantial enough to reduce the market value of plaintiffs\u2019 property (the effect). Plaintiffs here have proved the effect\u2014a material diminution in value \u2014but not the cause. They have not demonstrated any actual interference with the use and enjoyment of their property caused by the State\u2019s operation of the PCBs disposal facility. Plaintiffs\u2019 complain about placement and assert that their damages stem from location of the PCB landfill. However, placement or location is not enough; if it were, then the plaintiffs in Long could have demonstrated a right to recover for inverse condemnation without ever having to show that aircraft overflights actually interfered with their use and enjoyment of their property, so long as they could prove reduced market value due solely to the location of and their proximity to the city owned and operated airport. Reading Long as a whole, we believe it requires that plaintiffs show more than a diminution in market value. Plaintiffs must show that the location and the operation of the PCBs disposal facility combined to constitute an \u201cactual interference\u201d with the use and enjoyment of their property.\nThe trial court concluded that the State\u2019s conduct in maintaining and operating the disposal facility upon the lands in question is not unreasonable and constitutes a proper exercise of the police authority of the State and that so long as the physical integrity of the State-owned facility remains intact, there is no realistic likelihood of environmental contamination to any lands either adjoining or in the vicinity of the facility as a result of the PCBs stored in the facility. Additionally, the trial court concluded that the evidence conclusively establishes that there have been no harmful or dangerous releases of PCBs buried in the disposal facility. No ground water, surface water or surface water sediments draining or being discharged into Richneck Creek or its tributaries from the PCBs disposal site, or the county-owned buffer zone which completely surrounds the disposal site, have been contaminated by any detectable or harmful or dangerous levels of PCBs buried in the site. There has been no actual physical invasion of plaintiffs\u2019 lands by the PCBs stored in the facility. These conclusions of law are supported by the trial court\u2019s findings of fact and the evidence in the record; as a result, they are conclusive and binding on appeal. Plaintiffs have failed to show any actual interference with the use and enjoyment of their property caused by the State\u2019s operation of the PCBs disposal facility which is \u201csufficiently direct, sufficiently peculiar and of sufficient magnitude to support a conclusion that a taking has occurred.\u201d 306 N.C. at 201, 293 S.E. 2d at 110.\nConclusion\nPlaintiffs are not entitled to recover on the ground of nuisance, public or private, and the trial court\u2019s conclusions that the State\u2019s operation of the PCBs disposal facility constitutes a public nuisance is erroneous and must be set aside. Further, plaintiffs have failed to demonstrate that they are entitled to recover based upon inverse condemnation. The trial court\u2019s conclusions that plaintiffs \u201chave shown an actual interference with or disturbance of their property rights resulting in injuries which are not merely consequential or incidental in nature\u201d and that \u201cthe State\u2019s location and operation of the PCBs disposal facility on the site in question have resulted in a substantial non-trespassory invasion of plaintiffs\u2019 interest in the private use and enjoyment of their property in that it has resulted in a material diminution in value of plaintiffs\u2019 lands\u201d are not supported by the findings of fact or the evidence of record. Having resolved the first two issues in favor of the State, it is unnecessary to address the State\u2019s remaining arguments and assignments of error. The judgment of the trial court is\nReversed.\nJudges Wells and Greene concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Banzet, Banzet & Thompson by Lewis A. Thompson, III and Bobby W. Rogers for plaintiff-appellees.", "Attorney General Thornburg by Assistant Attorney General Roy A. Giles, Jr. for the State." ], "corrections": "", "head_matter": "HENRY F. TWITTY and WILLIAM TWITTY v. STATE OF NORTH CAROLINA and HEMAN R. CLARK, SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY\nNo. 869SC949\n(Filed 7 April 1987)\n1. Nuisance \u00a7\u00a7 1, 8\u2014 PCBs landfill disposal facility \u2014no nuisance\nThere was no evidence to support plaintiffs\u2019 recovery on the basis of nuisance, public or private, for the State\u2019s operation of a PCBs landfill disposal facility.\n2. Eminent Domain \u00a7\u00a7 2, 13\u2014 PCBs landfill disposal facility\u2014diminution in market value \u2014no taking\nIn an inverse condemnation action where plaintiffs alleged a taking of their property as a result of the State\u2019s construction and operation of a PCBs landfill disposal facility, plaintiffs were required to show that the location and the operation of the facility combined to constitute an actual interference with the use and enjoyment of their property, and a showing only of diminution in market value was insufficient to show a taking.\nAppeal by defendant from Hobgood, Judge. Judgment entered 17 June 1986 in Superior Court, Franklin County. Heard in the Court of Appeals 4 February 1987.\nThis is an inverse condemnation action for an alleged taking of plaintiffs\u2019 property as a result of the State\u2019s construction and operation of a landfill disposal facility for the storage of soil contaminated by the toxic chemical polychlorinated biphenyls (referred to hereinafter as PCBs). This action was dismissed as to defendant Hern\u00e1n R. Clark, former Secretary of the North Carolina Department of Crime Control and Public Safety.\nPlaintiffs own 775 acres of land in Warren County consisting of six separate tracts, three of which are owned individually by plaintiff Henry Twitty and three of which are owned jointly by both plaintiffs. In their complaint, plaintiffs allege that they have been deprived of their property without just compensation in violation of Article 1, Section 19, of the North Carolina Constitution and the Fourteenth Amendment of the United States Constitution suffering damage by the diminution in value of their property in the amount of $786,940.00.\nDefendant moved for summary judgment and alternatively for an order removing the action to an adjacent county on the ground that defendant could not obtain a fair and impartial jury trial in Warren County. The trial court denied defendant\u2019s motion for summary judgment but removed the action to Franklin County. On 14 January 1986 defendant filed a motion requesting the trial court to determine all issues except compensation and to direct the preparation of a court-ordered survey. The issues are:\n(1) Has there been a taking of any of plaintiffs\u2019 lands, or any interest therein, for which plaintiffs, or either of them, may be entitled to recover just compensation?\n(2) If so, when did the taking(s) occur?\n(3) Has there been a taking with regard to all of the lots (tracts) or only as to some of said lots (tracts)?\n(4) If the Court determines there has been a taking, which of the six lots (tracts) should be joined or considered together for the purpose of assessing damages, if any, in this action?\n(5) What interest, if any, has been taken in plaintiffs\u2019 lands?\nThe essential facts, as found by the trial court, are as follows:\nDuring the summer of 1978 many miles of roadside in North Carolina were saturated by a liquid waste containing PCBs. Federal EPA regulations required disposal of PCBs either in a well-designed, monitored landfill or by incineration. There were no EPA approved incinerators in the United States at that time. As an alternative to landfill disposal, the State considered the possibility of in-place treatment. However, the EPA recommended against in-place treatment and the State began to look for a suitable landfill site. In the face of severe opposition by both local government officials and state residents, the State formally petitioned the EPA to reconsider its position against in-place treatment. On 4 June 1979 the EPA formally denied the State\u2019s petition and the State resumed its search for a landfill site.\nThe State acquired a 142.3-acre tract of land in Warren County. In accordance with federal regulations, the State applied for and received EPA approval of the site. In late 1979, a draft Environmental Impact Statement (EIS) was filed covering the Warren County site. A final EIS was filed in November 1980, but use of the site was delayed by litigation, including an earlier action instituted by the plaintiffs. On 21 May 1982 the EPA issued a \u201cFinding of No Significant Impact.\u201d The landfill was constructed by the State and storage of the contaminated soil was completed in the latter part of 1982.\nPrior to construction of the disposal facility, the State conveyed the 142.3-acre tract to Warren County, with the exception of 19.317 acres where the landfill facility is actually situated. The State also retained an access easement, a stream monitoring easement and a temporary construction easement. The county\u2019s use of the tract surrounding the 19.317 acres was restricted so that the tract would serve as a buffer zone between the landfill and adjacent properties. All residential, commercial, industrial, institutional, recreational, agricultural or any other temporary, periodic, regular or occasional human use or occupancy were prohibited unless approved by the Governor and Council of State as being consistent with the use of the property as a buffer zone.\nIn addition, restrictive covenants limit the State\u2019s use of the 19.317-acre landfill facility. The covenants and restrictions provide that no other hazardous waste as defined in G.S. 130-166.16(4) and no radioactive waste or materials as defined in G.S. 104E-5(9a) and G.S. 104E-5(14) may be placed upon or disposed of or stored on the landfill parcel. Further, except for necessary activities relating to safe storage and disposal of the EPA approved PCBs material, no other hazardous or radioactive waste management activities may be engaged in on the 19.317-acre tract.\nThe plaintiffs, Henry and William Twitty, are father and son. Their 775-acre tract of land is adjacent to Richneck Creek and adjoins the north and northeastern portions of the buffer zone conveyed to Warren County. The six tracts of land are identified as Lot 19 (62.5 acres), Lot 20 (356.5 acres), Lot 21 (176 acres), Lot 22 (21 acres), Lot 23 (87 acres) and Lot 24 (54 acres) on Warren County Tax Map E-7. Lots 19, 21 and 22 are owned individually by Henry Twitty. Lots 20, 23 and 24 are owned jointly by the plaintiffs. Only Lots 19, 21 and 24 actually border Richneck Creek.The six tracts are contiguous and have traditionally been utilized as one operating farm for agricultural purposes. The trial court found both \u201cphysical unity\u201d and \u201cunity of use\u201d with respect to these six tracts.\nThe area surrounding the landfill facility is basically rural and agricultural in nature. Warrenton is located three and one-half miles to the north and is the major shopping and labor market in the County. The area is somewhat isolated due to its agricultural use and lack of development. The tract upon which the landfill is located has no road frontage and access to the facility is by an easement extending approximately 1,675 feet to State Road 1604.\nThe disposal facility is situated on the crest of a hill. U.S. Geological Survey Flood Records establish that the one hundred year flood elevation is not more than eight feet above the average water level in Richneck Creek and its tributaries. The facility is approximately 80 feet above the level of Richneck Creek and is not subject to flooding. Based upon ground water elevation measurements made on 23 and 24 May 1985, there is a separation of 19 feet between the elevation of ground water beneath the landfill site and the PCBs waste material stored there. Surface water infiltration is minimized and surface water runoff is maximized by the topographic position of the landfill facility, the clay subsoils and side slopes of the ridge on which the landfill facility is located. Recharge of ground water resulting from surface water infiltration and percolation is low and there are no significant fluctuations in the water table elevations beneath the ridge occupied by the disposal facility. There are also seven natural draws located in a radial pattern around the fill site which enhance surface water drainage away from the facility.\nThe disposal facility was constructed in accordance with plans and specifications approved by the EPA. Artificial and compacted clay liners were constructed below the landfill and along side slopes to prevent hydraulic connection between ground water and the contaminated soil. Artificial and compacted clay liners were also placed on top of the landfill to prevent infiltration of rain and surface water. The compacted clay liner is five feet thick along the side slopes and bottom of the facility. The compacted clay liner is two feet thick over the top of the facility. In addition, there are ten mil thick artificial liners encasing the disposal facility which overlap and are sealed at the seams. The entire encased storage facility is buried two feet below the surface. There is one foot of bridging and one foot of topsoil separating the encased facility from the surface. Constructed within the facility is a leachate collection system designed to remove free liquids from the stored PCBs waste and a leachate detection system designed to indicate the presence of any leachate that might migrate through the encasing liners.\nSince October 1982 the State has continuously monitored and inspected the facility on a monthly basis in accordance with EPA permit conditions and approved sampling methodologies. Monitoring activities are the responsibility of the Solid and Hazardous Waste Management Branch, Environmental Health Section, Division of Health Services, North Carolina Department of Human Resources. The fact that no free liquids have ever been discovered in the leachate detection system indicates that there has been no migration of free liquids through the liners which completely encase the contaminated waste material. All free liquids which have been removed from the leachate collection system have resulted from accumulated rainfall in the facility prior to completion of the landfill cap. After completion of the cap, the facility was completely encased by artificial and compacted clay liners which prevent water infiltration. The free liquids removed from the leachate collection system are treated in the on-site treatment works which passes the effluent through a sand filter and an activated carbon filter. The effluent is then discharged into an on-site surface impoundment lined with compacted clay. After on-site treatment, no detectable levels of PCBs have ever been measured in the free liquids in the surface impoundment.\nIn addition to monthly monitoring of the leachate systems, samples of ground water, surface water and surface water sediments have been analyzed every six months. The sampling points designated by the EPA include Richneck Creek which is the boundary between plaintiffs\u2019 land and the county owned buffer zone. Analyses conducted on all samplings taken from the leachate systems, ground water, surface water and surface water sediments from October 1982 to the present reveal no harmful or dangerous releases of PCBs contaminants from the disposal facility. Further, no ground water, surface water or surface water sediments draining into Richneck Creek from the landfill site or the buffer zone have been contaminated by any detectable levels of PCBs. The site is periodically inspected and maintained to insure security and to prevent outside hazardous conditions from developing. A six-foot chain link fence topped with barbed wire surrounds the entire facility to prevent unauthorized persons and animals from entering the site.\nIn addition to the above-described findings of fact the trial court also found that prior to acquisition of the land in Warren County, local citizens and government officials voiced severe opposition to the disposal of PCBs contaminated soil in their county. During the hearings held prior to land purchase, State officials received notice that the proposed location would have a chilling effect on county land values especially with respect to property in close proximity to the site itself. Further, the trial court found that plaintiffs introduced evidence establishing that the value of their land has been substantially diminished as a result of the PCBs disposal facility owned and operated by the State.\nBased on these findings of fact the trial court made the following conclusions of law:\nThe State\u2019s conduct in maintaining and operating the PCBs disposal facility is not unreasonable and constitutes a proper exercise of the police authority of the State to promote the health, safety and welfare of the people of North Carolina.\nSo long as the physical integrity of the PCBs disposal facility remains intact, there is no realistic likelihood of environmental contamination to any adjoining land or any land in the vicinity of the facility. The evidence conclusively establishes that there have been no harmful or dangerous releases of PCBs buried in the disposal facility. Richneck Creek and its tributaries have not been contaminated by any detectable, harmful or dangerous levels of PCBs. There has been no actual physical invasion of plaintiffs\u2019 land by the PCBs stored in the disposal facility.\nNotwithstanding the foregoing conclusions of law, the trial court concluded that plaintiffs have demonstrated \u201can actual interference with or disturbance of their property rights resulting in injuries which are not merely consequential or incidental in nature.\u201d The State\u2019s location and operation of the disposal facility has resulted in a \u201csubstantial non-trespassory invasion of plaintiffs\u2019 interest in the private use and enjoyment of their property in that it has resulted in a material diminution in value of plaintiffs\u2019 lands.\u201d The interference with plaintiffs\u2019 rights to use and enjoy their property caused by the State\u2019s operation of this facility requires that the public bear the cost of the diminution in value to that property.\nThe operation of the PCBs disposal facility constitutes a public nuisance permanent in nature resulting in a diminution in value of plaintiffs\u2019 lands and plaintiffs are entitled to just compensation. The date of taking is 5 October 1982 when the State began operation of the facility. All six parcels should be treated as one tract for the purpose of assessing damages. The plaintiffs shall not be required to obtain a survey of their property.\nFrom judgment decreeing that the disposal facility constitutes a public nuisance permanent in nature and a taking of plaintiffs\u2019 property for the purpose of an easement accommodating the continued operation of the disposal facility and ordering that plaintiffs are entitled to just compensation for the material diminution in market value of their property, defendant appeals.\nBanzet, Banzet & Thompson by Lewis A. Thompson, III and Bobby W. Rogers for plaintiff-appellees.\nAttorney General Thornburg by Assistant Attorney General Roy A. Giles, Jr. for the State." }, "file_name": "0042-01", "first_page_order": 70, "last_page_order": 84 }