Heard in the Supreme Court September 10, 2014
MODIFIED AND AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Hartsell & Williams, P.A., by Andrew T. Cornelius and Brittany M. Love, for plaintiff-appellee.
Vandeventer Black LLP, by Norman W. Shearin, David P. Ferrell, and Ashley P. Holmes, for defendant-appellant.
NEWBY, Justice. Justice ERVIN did not participate in the consideration or decision of this case.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, ___ N.C.App.
___, 748 S.E.2d 35 (2013), affirming in part and reversing in part orders
entered on 23 March 2012 and 7 June 2012 by Judge C. W. Bragg in Superior Court,
Cabarrus County, and remanding for additional proceedings.
NEWBY, Justice. In this condemnation action we decide the existence of a vested right to develop a subdivision and the effect of that vested right on the questions of unity of ownership and damages. We hold that the owners of the undeveloped portions of the subdivision have a vested right to complete the subdivision in accordance with the pre-approved plan. Having a vested right to complete the subdivision means both owners of the remaining undeveloped property, the named defendant and the limited liability company, have interests affected by the condemnation of a portion of the subdivision, satisfying the unity of ownership requirement. The measure of damages is the difference between the value of the property before the taking and the value immediately afterwards. The vested right enhances the value of the property before the taking but is not a separate element of damages. Accordingly, we modify and affirm in part and reverse in part the decision of the Court of Appeals.
Defendant's predecessor in title, Darryl Keith Wayne (" Wayne" ), owned two tracts of land totaling ninety acres (" Wayne Tracts" ).
Park Creek, LLC (" the LCC" ), the majority of which is owned by Wayne, held the adjacent one hundred sixty acres. Together, Wayne and the LLC submitted a Customized Development Plan (" the 1997 plan" ) for a multiphase, two hundred fifty acre residential subdivision known as Park Creek (" Park Creek" ). The Cabarrus County Planning and Zoning Commission approved the 1997 plan provided that the development met certain requirements. These requirements specified minimum lot sizes and established a certain percentage of the " high-income," two hundred home subdivision as open space. Wayne and the LLC developed the first two phases using some of the land owned by the LLC, installing water lines and other infrastructure designed and constructed to service the future phases as well. On or after 23 February 2007, Wayne conveyed his property to defendant, his revocable trust of which he is the trustee (" defendant" ). By 2009 the first two development phases of Park Creek were substantially completed, representing roughly fifty percent of the subdivision, at a cost of approximately $4.6 million dollars. Most of the lots in the first two phases had been sold. At that time, the future phases of the subdivision, including one tract of about forty acres owned by the LLC (" LLC Tract" ) and the Wayne Tracts, remained mostly undeveloped. Since its inception defendant and the LLC have maintained the 1997 plan as required by the Town, and the legal effectiveness of the 1997 plan has never lapsed.
In February 2009 in Superior Court, Cabarrus County, the Town of Midland filed two separate condemnation actions against defendant, condemning three acres of the Wayne Tracts for a right-of-way and easement " to construct and operate a natural gas pipeline for the transmission and distribution of natural gas," " to construct and operate a fiber optic line," and " to obtain a temporary construction easement in order to construct the pipeline" (" the easement" ). As required by statute, the Town deposited its estimated value and asked for a determination of just compensation. The Town did not name the LLC as a party or identify its tract in the condemnation actions, presumably because the easement did not cross any portion of the LLC property. Likewise, the Town did not specify the taking of the vested right to complete the subdivision as approved. The Town's condemnation actions contemplated taking only the three acres necessary for the easement.
Defendant filed an answer to each complaint, claiming the amount offered by the Town was insufficient and asking for a determination of just compensation. In October 2011 defendant moved to consolidate the two actions for purposes of hearing all issues other than compensation. Defendant also moved to amend his answers to include additional issues for adjudication, particularly those addressing " the scope of the land affected by the taking and the Town's inverse condemnation of certain areas of [his] property outside the temporary and permanent easement areas."
The same day that defendant moved to consolidate the actions, the LLC moved to intervene in the actions, asserting that the easement affected the LLC Tract as well. The LLC stated that since its undeveloped land was part of Park Creek, " [t]he Court's determination of the area affected by the taking and disposition of [this action] may, as a practical matter, impair or impede [the LLC's] ability to protect its interest in the Subdivision rights in parcels of land which lie upon the Subdivision." 
On 27 October 2011, the trial court found that the two affected Wayne Tracts are adjacent to the LLC Tract and that Wayne " is the Trustee of Defendant and also the principal or exclusive owner of [the] LLC." The ...