Written by John Boyle, Asheville Watchdog.
Perhaps no road project in the Asheville region has been talked about longer than the I-26 Connector, a billion-dollar-plus behemoth designed to connect I-26 north of Asheville to I-26 south of town.
So when Rob Sheeran bought his three-bedroom, two-bath home in West Asheville two decades ago, he knew one day it might be in the crosshairs of eminent domain, the policy that allows the North Carolina Department of Transportation to take property for fair market value for needed road projects.
He and his wife Sarah envisioned a scenario in which the DOT would take their land and their home. They were only half right.
The DOT’s plan calls for leaving the Sheerans in their home but taking a sliver of their land and paying them for two easements — one for utilities and one for construction that comes within 10 feet of their front porch and close to their 12-year-old daughter’s bedroom. That means they potentially would have to live next to heavy construction equipment grading and paving the nearby planned off-ramp and traffic circle for months or even years.
It’s a case that highlights the DOT’s “Right of Way” process in which the department or its representatives negotiate with property owners to compensate them for land and buildings the DOT needs to build a road. The process, in which DOT does not consider quality of life issues such as residents living next to an ongoing construction site, is unfair, the Sheerans contend.
The DOT has been actively acquiring land for more than a year for three sections of the $1.2 billion Connector project, which has five sections total and will affect 175 property owners — 154 residential and 21 non-residential.
As of early February, the NCDOT had made 119 offers, settled 41, and condemned four properties. Condemnation means the NCDOT will take the land, and the owner will have to dispute the payment in court, according to the department’s Asheville office.
Sarah Sheeran said she’d heard of eminent domain and learned all she could about the process at DOT community meetings that stretched back 10 years. And she understood that DOT claimed it would offer fair market value.
“But I think when you’re really faced with, A. Either losing your house or, B. Having an impacted property, it’s hard to conceptualize what that really means for you,” she said. “It’s you versus the government, right? You versus DOT. They have all these resources behind them, and it’s a project you can’t stop.”
DOT: No compensation for inconvenience
Tony Rickman, the DOT’s right of way agent in Asheville, responded to questions about the Sheerans’ case via email. Asked why the DOT wouldn’t simply take the house along with the property and the utility and construction easements, Rickman said it comes down to precisely where the easements will go.
“The main factors that Right of Way assesses if a residence needs to be acquired or not include if any easement line touches a structure or acquisition of a septic tank and/or drain field,” Rickman said. “If this is not the case, then DOT will not pursue purchasing the structure.”
Offers are based on appraisals that use current market values, and include the price of the land, improvements a property owner has made to the land, and “proximity damages when applicable,” Rickman said.
“The inconvenience of a construction project is a non-compensable item, per state law,” Rickman siad. “Owners are guaranteed access to their property throughout the duration of construction.”
That access issue is also a sticking point for the Sheerans, as they say the DOT plans to close their current driveway, which also serves other homes, and relocate it to a very steep hillside farther up Hubbard Avenue.
The Sheerans also contend the DOT’s appraisal did not use comparable nearby properties, even though several have been sold for the project.
For the past year, the Sheerans have negotiated with a DOT Right of Way agent, who is a contractor for the agency. The DOT wants to take or use three sections of their .24 acre — one an outright taking of the land, one sliver for a utilities easement, and another for a construction easement.
That last one, which allows the DOT to use the property during construction of an off-ramp and roundabout for the Connector, would be temporary, but it comes surprisingly close to their home and with no guarantees of how long construction will last.
“You can see that none of those actually touch the house, but it’s really dang close,” Sarah Sheeran said, sitting at her dining room table with a sheaf of paperwork, including a project map. “The temporary construction easement comes within 10 feet, approximately, of our front porch — and outside of our daughter’s room.”
“And we don’t know how long they will be working on the project,” Rob Sheeran said. “That’s the thing — it could be years.”
The DOT says its goal is to treat property owners fairly, offering “fair market value” for homes and businesses. Appraisers contracted to work for DOT are not encouraged to come in with low bids to save money for the department and taxpayers, said Nathan Moneyham, division construction engineer with the NCDOT’s Asheville office.
The history of their house and the offer
The Sheerans dispute that notion. They got their first letter from the contracted Right of Way agent on Feb. 10, 2023.
It generated “a little bit of a sense of doom,” Sarah Sheeran said.
The nut of the issue, said Rob Sheeran, an artist who works at a home studio, is, “What’s fair?”
Rob Sheeran said he paid $151,000 for the house and lot in 2004, and the couple has six years of payments remaining, at a 2.9 percent interest rate, about four points lower than current rates. They do not want to live in a construction zone for several years, and then next to an on-ramp and traffic circle that will require substantial fill in what is now a small gulch next to their home. They’re unsure they could even rent the house with those conditions.
Nearby homes have sold for between $460,000 and $640,000 in recent years, so the Sheerans say they would consider between $450,000 and $500,000 to be a rough fair market value.
“If I had to express our wishes, we want to be paid for the full value of our house, so that we can actually afford a house in Asheville,” said Sarah Sheeran, who works for a nonprofit land conservation organization. “I’ve given up on my pipe dream of having something equivalent to 2.9% (interest) and owing less than 60 grand on a house. I’ve given up on that pipe dream. That sucks — it’s not a fair exchange, not a one-to-one exchange.”
The home and property have an assessed tax value of $359,400, according to the Buncombe County tax assessor. But the online real estate platform Zillow estimates the property value at $505,500, while Redfin lists it as $466,813.
About four months into the process, the Sheerans said, they were irritated that the offer they had received did not include a promised professional appraisal. When the 122-page appraisal arrived later, they were shocked it was based on home sales a few blocks away, near public housing, not on several homes that had sold in their neighborhood.
The DOT’s initial offer of $92,625, which did not include their house, broke down like this:
- Value of right of way to be acquired: $15,375
- Value of permanent easements the DOT would acquire: $6,925.
- Value of temporary easement (rental of land during construction): $4,250.
- Value of improvements to be acquired: $9,450.
- Damages to the remainder of property: $56,625.
An updated appraisal tweaked the amount of land that would be used, increasing the offer to $98,825.
Early on, the Sheerans countered with what they acknowledged was a “pie in the sky” offer.
“We said, ‘We actually think you should take the whole house, because you’re effectively condemning us,” Sarah Sheeran said. “So while you’re offering us money for the land, there’s really no accounting for the quality of life that is reduced.”
Negotiations have gone back and forth for months, “with us conceding every time,” she said.
As of Feb. 28, the DOT had not made its final offer based on its adjustments and the most recent negotiations, the Sheerans said.
Asheville Watchdog left phone and email messages for the right of way agent in the Sheeran’s case, Ashley Robertson of AECOM Technical Services of North Carolina Inc., but did not hear back by deadline.
In addition to their daughter, the Sheerans have a 9-year-old son. They don’t want to continue raising their children in a work zone, and then with a large retaining wall, embankment, and exit ramp all within a few dozen yards from their home.
“You can see that none of those (easements) actually touch the house, but it’s really dang close,” Sarah Sheeran said.
Attorney: Few landowners know how to properly evaluate cases
Kevin Mahoney, head of the eminent domain practice at the law firm NC Eminent Domain Attorneys, said the eminent domain process can overwhelm homeowners. Mahoney, who is not representing the Sheerans, spoke in general terms and not about their case specifically.
“The legal process is complicated, the DOT construction plans are complicated, and the appraisal reports are complicated,” Mahoney said. “Few landowners have the training and experience necessary to competently evaluate their case.”
“DOT employs hundreds of engineers and many right of way agents and appraisers,” Mahoney said, adding that landowners “often stand alone against the government.”
Many simply take the DOT’s initial offer, or engage in little negotiation, which can result in leaving a lot of money on the table, Mahoney said. His firm’s brochure cites a 2015 study by the North Carolina General Assembly that “showed that property owners who did not accept the NCDOT’s condemnation deposit — the final offer — ended up getting, on average, 85 percent more for their property.
Mahoney is upfront about how attorneys make money by handling eminent domain cases.
Typically, attorneys usually take about a third of what they get for the client that is over and above what the DOT offered. Property owners should be aware that they typically will also have to pay for costs such as additional appraisals.
Sometimes appraisers lack all the documents they need to evaluate the effects of a land acquisition, Mahoney said, including utility plan sheets showing where the utilities will run, or documents regarding new driveways showing how steep they will be after the taking.
Mahoney pointed out that North Carolina landowners have to bear their own costs and attorneys’ fees, so in some cases “they may never receive full and complete just compensation in an eminent domain case.”
In some states, such as Florida, the state pays landowners’ attorneys fees and expert fees, Mahoney said.
How the process works
Nathan Moneyham, division construction engineer with the NCDOT’s Division 13, which covers Buncombe County and six others, said he could not comment directly on the Sheerans’ case. But he did give an overview of the Right of Way process.
It begins when the DOT identifies the need for a road project. The DOT starts work on the project design, and it holds public meetings. Typically, when the project’s design phase is about 75 percent complete, the DOT has zeroed in on the Right of Way, or the amount of land it needs for the project.
The right of way plans have to be approved from an engineering and technical standpoint, with the limits of properties needed clearly defined. Next comes securing the Right of Way funding through the state Board of Transportation.
“And then from the public’s perspective, the first step after that’s done is what we would call first contact,” he said. “Right of Way agents — either consultants or DOT-managed out of our roadway office here in Asheville — would make first contact with a property owner that is affected.”
Often agents reach out by phone, then arrange an in-person meeting.
“When they do that they go to them, they show them the plans as they are, what the needs will be of the project, explain to them why the project’s coming — all those things,” Moneyham said. “At this point, if there’s been any public engagement, folks are normally probably already aware of the basics of a project. And after that initial conversation, we would trigger the appraisal process for us.”
An appraisal works for the DOT the same way it would if you are buying a home, “in that it’s based (on) market conditions and comparable properties in the same area,” Moneyham said.
“The difference in the process for us is we do an appraisal of the existing value of the property, and then we do a second appraisal in the after condition, meaning, ‘What’s the value of the property with the road constructed?’” Moneyham said. “The difference between those two appraisals is what informs the initial offer that will be made.”
The value of the property could decrease, which is “most commonly the case,” Moneyham said, but in some instances it actually increases because of improved accessibility or other factors.
Some appraisers work exclusively for the DOT, but Moneyham was adamant that the agency does not incentivize appraisers for coming in with low appraisals, saying, “We look at fair market value.”
Once the appraisal is done, the right of way agent goes back to the property owner to make an initial offer.
“That includes damages,” Moneyham said. “So if the use of the property is changed, or if potentially a structure that’s been affected, a shed or those kinds of things, values and improvements that the people have made to the property that would be affected — things like signs, landscaping and things like that, all that gets accounted into that.”
After the initial offer, negotiations can go back and forth multiple times before an agreement is reached. This typically takes six to nine months, he added.
If no agreement is reached, the condemnation process begins. The North Carolina Attorney General’s Office starts that process by filing for condemnation through the court system, a process that can last years.
The money from the DOT’s official offer goes to the county clerk in the respective county, so the property owner can petition to have access to those funds during the condemnation process. As this is the minimum the property owner will get, they can use the money for relocation or other needs.
Feeling stuck, and looking for options
The Sheerans remain skeptical of the process, particularly the appraisal. In a September 12, 2023 email, The Sheerans told the Right of Way agent they felt their offer was unfair.
“The market value of our house is undervalued and the comparable real estate sales used to calculate the value of our property are not reflective of this neighborhood,” they wrote. “None of the homes that have sold within a half-to-1 mile of our home within the past two years were used…”
“The temporary construction easement and utility easement are grossly undervalued,” the Sheerans wrote.
They also pointed out how close the construction will be to their home, and that they’ll inevitably have to deal with trash thrown from vehicles and copious amounts of exhaust, if they even stay.
“Living in such close proximity to a major road construction project is an enormous disruption to our lives and decreases the quality of life for our family, especially our two young children and a parent who works from home,” they wrote. “This offer is abstract and does not account for the very real people who are impacted by this project.”
In response, the Right of Way agent wrote back that some of the homes were sold after the appraisal was done, and “a few of them are half the size” of the Sheerans’ home.
“I can’t speak to why the appraiser used the comps he used but based on what I am looking at, it’s homes that are most comparable to yours in all aspects,” Robertson wrote. “Ultimately it is the land being valued as it’s the land being impacted by the project and not the home, physically.”
The Sheerans have requested a new Right of Way agent, and they’ve hired an Asheville attorney, Ron Payne, to handle their case. Payne declined comment, as the case is ongoing.
The Sheerans say they’re disheartened by the whole experience.
“What I’ve learned is DOT is not here to help you,” Sarah Sheeran said. “They are not your advocate. And so the responsibility falls solely on the landowner to navigate this.”
Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. John Boyle has been covering Asheville and surrounding communities since the 20th century. You can reach him at (828) 337-0941, or via email at [email protected]. The Watchdog’s reporting is made possible by donations from the community. To show your support for this vital public service please visit avlwatchdog.org/donate.