§ 40A-82. Demonstration of no prudent and feasible alternative required in certain actions; judicial determination.
§ 40A‑82. Demonstrationof no prudent and feasible alternative required in certain actions; judicialdetermination.
(a) If a holder of aconservation easement contests an action to condemn property encumbered by aconservation easement on the basis that the condemnor failed to sufficientlyconsider alternatives to the action or that a prudent and feasible alternativeexists to the action, the holder of the conservation easement may file ananswer to the complaint within 30 days from the date of service of thecomplaint as to that issue. If the holder of the conservation easement does notassert that the condemnor failed to sufficiently consider alternatives to theaction or that a prudent and feasible alternative exists to the action, theholder of the conservation easement may file an answer within 120 days from thedate of service of the complaint.
(b) If the holder of aconservation easement contests an action pursuant to subsection (a) of thissection, the judge shall hear and determine whether or not a prudent andfeasible alternative exists to condemnation of the property. The burden ofpersuasion on this issue is on the condemnor if the holder of the conservationeasement, after discovery, has identified at least one alternative. If noalternative identified by the holder of the conservation easement is adjudgedprudent and feasible, then the condemnation action shall proceed under theprovisions of Article 3 of this Chapter, or Article 9 of Chapter 136 of theGeneral Statutes, as applicable. If the judge determines that a prudent andfeasible alternative does exist to condemnation of the property, the courtshall dismiss the action and award the holder of the conservation easementcosts, disbursements, and expenses in accordance with G.S. 40A‑8(b) or G.S.136‑119, as applicable, except that attorneys' fees may not be awarded.The procedure for this hearing shall be as set forth in G.S. 40A‑47 orG.S. 136‑108, as applicable.
(c) A determination asto whether a prudent or feasible alternative exists to condemnation of theproperty as set forth in subsection (b) of this section shall not be requiredfor actions meeting all of the following criteria:
(1) The Department ofTransportation or the North Carolina Turnpike Authority is the condemnor.
(2) Prior to filing thecondemnation action, a review of the project for which the property is beingcondemned was conducted that considered the alternatives to the condemnation ofthe property encumbered by the conservation easement and mitigation measures tominimize the impact. The condemnor shall, in the complaint filed with thecourt, identify the alternatives and mitigation measures considered with regardto condemnation of the property encumbered by the conservation easement.
(3) The review wasconducted pursuant to any of the following:
a. The StateEnvironmental Policy Act (SEPA), G.S. 113A‑1, et seq.
b. The NationalEnvironmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq.
c. 49 U.S.C. § 303. (2009‑439, s. 1.)