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What is eminent domain and could it be used to seize Duke's land for the light rail?

<p>The proposed light rail would have a stop&nbsp;along Lasalle Street and&nbsp;Erwin Road near Duke Hospital.</p>

The proposed light rail would have a stop along Lasalle Street and Erwin Road near Duke Hospital.

After Duke declined to sign a cooperative agreement with GoTriangle for its light rail project, the project appeared to be stalled in its tracks. 

In order for light rail to become a reality under the proposed plan, Duke was expected to contribute some of its land. Could one of the options to get light rail rolling again be using eminent domain to seize Duke's land for the project? 

The Chronicle looked at the law behind the practice and what it could look like if GoTriangle tried that route. 

Duke declined to enter mediation with GoTriangle after opting not to sign a cooperative agreement, and the proposed light rail project—expected to cost approximately $2.5 billion total, with half of that potentially covered by a federal grant if local authorities received it—appears to be at an impasse. On March 4 in a letter to President Vincent Price, GoTriangle leaders had asked Duke to enter mediation to resolve concerns about the light rail's proposed route along Erwin Road by Duke Hospital and Clinics. 

Price and the Duke administration said that GoTriangle did not address concerns regarding electromagnetic interference, vibrations, utilities and liability that could result from the proposed light rail project.

“Having concluded that your proposed [Durham-Orange Light Rail Transit] route down Erwin Road is simply not workable, we do not see any value in entering into mediation," Price wrote in Duke's letter to GoTriangle officials. 

With the first option off the table, officials began to look elsewhere to make the project workable.

“It’s been said that all options are on the table,” said Mark-Anthony Middleton, Durham city council member.

The options could include rerouting or eminent domain, Middleton said. But the route is “pretty much set,” he added, so rerouting would place a significant burden on the already complex process of planning the light rail. 

Eminent domain could allow GoTriangle to seize private property from Duke along the proposed route to further a public use, which would be the light rail and the benefits they expected from connecting Durham and Orange counties.

“The exercise of eminent domain would be done by GoTriangle,” Middleton said. “It wouldn’t be [by] the county or the city.”

Michael Schoenfeld, Duke’s vice president for public affairs and government relations, declined to comment on the possibility of eminent domain to acquire the Duke's land.

“Duke University has been engaged in Durham for more than a century,” he wrote in an email to The Chronicle. 

Schoenfeld wrote that engagement takes many forms and touches the lives of all local citizens "through education, research, health care and economic impact, and will only continue to grow."

Although GoTriangle has not said that it would move forward with eminent domain, there are some legal considerations—specifically, fair compensation—that would limit GoTriangle’s authority to seize land along the proposed light rail route. 

“To use eminent domain, the authority has to comply with the state’s statute,” said Charles Szypszak, Albert Coates distinguished professor of public law and government at the UNC-Chapel Hill School of Government. “They’re given authority by the state legislature, and that statute sets the limits for eminent domain.”

Szypszak, an expert on eminent domain in North Carolina, addressed the law generally and not specifically related to the Duke situation. He explained that though eminent domain could be exercised to take private property for a public use, the owner of that private property would need to be fairly compensated based on the property’s market value.

“What the constitution requires is that the party whose property is being taken has to be paid just compensation,” he said. 

However, it is also important to reflect on the financial and political consequences if the city or county uses eminent domain, according to Jason Campbell, an attorney with the N.C. Eminent Domain Law Firm.

Campbell told WRAL that a jury could determine the amount of money Duke would be provided if it no longer owned the land because of eminent domain.

"Duke is no different than you or I," Campbell told WRAL. "If Durham wanted to take our houses, it could. If it wanted to take Duke’s land, it could. The only issue is just compensation."

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