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Ashley Park Charlotte Assocs. v. Charlotte, City of

ELR Citation: 24 ELR 21163
Nos. No. C-C-90-395-P, 827 F. Supp. 1223/(W.D.N.C., 06/08/1993)

The court holds that North Carolina's inverse condemnation statute preempts state commom-law claims of nuisance, trespass, and negligence, but does not preempt a statutory claim of strict liability asserted under the North Carolina Oil Pollution and Hazardous Substances Act when methane gas escaping from a public use landfill allegedly migrates onto a developer's land and contaminates it. Following North Carolina precedent, the court interprets the state's inverse condemnation statute to preempt state common-law claims, but not to preempt a statutory claim. The North Carolina legislature passed the inverse condemnation statute without explicitly preempting statutory claims, creating the presumption that the legislature chose not to preempt such claims. Moreover, preemption of the state Oil Pollution Act (OPA) is illogical because a landowner who cannot show a taking may still be able to recover for property damage and to compel the polluter to clean up the discharge(s) under the Act. Furthermore, the North Carolina legislature intended to assure both the individual right that property will not be taken without just compensation with the inverse condemnation statute, and the health, safety, and welfare of all state citizens with the state OPA.

Finally, the court holds that genuine issues of material fact regarding whether or when a taking actually occurred, and whether takings continue to occur, preclude summary judgment on the basis of statutory limitations. Even though the statute of limitations has run with respect to state OPA claims relating to discharges released and discovered before November 27, 1987, this does not bar the strict liability claim in toto. Determination of the tolling of the statute of limitations with respect to either the inverse condemnation or the state OPA claims requires further findings of fact.

Councel for Plaintiff
Michael D. Meeker
Brooks, Pierce, McLendon, Humphrey & Leonard
2000 Renaissance Plaza
230 N. Elm St., Greensboro NC 27420
(910) 373-8850

Counsel for Defendant
Benne C. Hutson
Smith, Helms, Mulliss & Moore
227 N. Tryon St., Charlotte NC 28231
(704) 343-2000