Eminent domain is broadly understood as the power of the state to seize private property without the owner’s consent. Historically, the most common uses of property taken by eminent domain are public facilities, highways and railroads. Traditionally the power of eminent domain has been exercised for the construction of large public projects, but its use is beginning to be broadened to projects involving not ‘public use’ but ‘public benefi t.’

That use is in question in Fayetteville, as the city continues plans to build the multi-modal transportation center on land it does not own. The Multi-Modal Transportation Center has been a long-time in the making and the storm surrounding it has been as well. First proposed in the late 1990s, the center started gaining traction in 2008, when a site-selection study was undertaken by Charlottebased fi rm, HGA Architects. The fi rm was hired by the city to draw up plans for the proposed center, which would bring the city’s key public transportation hubs together. The fi rm looked at six sites around the city’s center, including the existing site of the Fayetteville Area System of Transit and the Amtrak station.

The idea behind the multi-modal transportation center is to bring all forms of public transportation under one roof to allow for ease of transfer and greater use, while creating retail/business opportunities that would blend with and benefit the patrons of public transport. This idea has gained popularity over the past two decades, with the North Carolina cities of Charlotte, Greensboro, Raleigh and Durham embracing the idea. Facilities in several of these cities are located in the historic train depots, including the site in Greensboro.

The Greensboro facility is housed in the historic train depot, which includes 68,000 square feet of passenger platforms, a 6,500 square foot interior addition and a 5,700 square foot interior renovation, which included the move of the Greensboro bus service to the station. Greensboro sees more than 35 trains passing through the station each day. The J. Douglas Galyon Depot, a multi-modal transportation center, serves as the main passenger transfer for the Greensboro Transit Authority, as well as a hub for Amtrak, PART and Greyhound. The GTA serves approximately 260,000 people, with 15 GTA routes operating Mondays through Saturdays and seven routes on Sundays. In addition, there are fi ve connector routes, the Career Express serves the airport area, and nine Higher Education Area Transit routes. Together, GTA and HEAT vehicles drive 2,170,000 revenue miles per year, more than 231 miles of GTA routes, 49 miles of GTA connectors, and 59 miles of HEAT routes. At last count, there were 1,056 GTA bus stops and 46 HEAT bus stops in Greensboro and Jamestown. GTA and HEAT serve more than four million passenger trips per year. SCAT vehicles drive 1,400,000 revenue miles per year.

GTA has an operating budget of approximately $19.5 million annually, which includes operating expenses of the J. Douglas Galyon Depot. The Piedmont Authority for Regional Transportation also runs out of the facility. PART Express is the regional bus system connecting the major cities of the Piedmont and bringing people from the outlying counties into the urban areas. Fourteen PART Express Routes are offered during weekdays with two routes running on the weekend. PART vehicles drive 60,000 revenue miles per year. There are 23 Park & Ride lots scattered across the Piedmont Triad. PART served 544,061 passenger trips in FY ’09 with an average length of 26 miles.

Needless to say, a multi-modal transportation center makes sense in Greensboro, although the much touted retail space has yet to be fi lled. As late as June of 2010, there were no restaurants or coffee shops in the facility to serve the many riders who passed through its hallways, although retail space is a key tenant of multimodal centers. In June 2010, a coffee shop/bagel shop opened in the facility. The lack of interest in locating businesses in facilities like Greensboro’s J. Douglas Galyon Depot, is one of the reasons local business owners are still fighting against the city’s 2009 decision to use the power of eminent domain to seize land already used by local business owners for use as Fayetteville’s multi-modal transportation center.

At the center of the fight is Jacqueline Pfendler, the owner of J.P. Electric, whose business is situated on the land bounded by Robeson, Franklin, Winslow, and West Russell Streets. Consisting of seven parcels, the land was one of six sites offered up by HGA in 2008 as possible sites for the new center. It was not, in fact, the fi rst, second or third recommended site. It was sixth on the list of six.

The first site recommended was the Amtrak station, which is adjacent to city-owned property. That site was turned down by city offi cials despite the arguments of HGA for its merit. On Nov. 8, 2008 after hearing the recommendations from HGA, city offi cials took a tour of the six sites, focusing on the sixth site. During the interim period, Pfendler and her family purchased a major section of the land to locate their electrical business. The building, which currently houses the business was renovated from top to bottom, with custom woodwork done throughout. It wasn’t until Pfendler was in the middle of applying for a city grant to update the building in the historic district that she learned the city was interested in the space. Pfendler saw the facility up for sale while in town visiting the Dogwood Festival. She contacted the realtor who did not mention the city’s interest. Her bank was unaware of the city’s interest and the landscape company she hired to drawup plans for parking and landscaping, owned by then City Councilman Wesley Meredith did not mention the city’s interest. “People say I was stupid, and should have known, but no one told me, including the city councilman I was paying money to — and he was the one who made the motion to condemn my land.”

Today, Pfendler is faced with losing the business she worked so hard to create to the city, so that another private entity can build a building to house private retail space on her land. The city has made Pfendler an offer on her land, but what they are offering will not allow her to purchase a new lot in a desirable location, let alone build a new facility.

Pfendler’s frustration is shared by others in the community, including Joel Smith, the owner of Homemakers Furniture. Smith, a long-time Fayetteville business owner, is not directly affected by the city’s land grab, although his business will be located nearby the facility. Smith sees it as back-door politics gone wrong. He noted that many of the entities who should have been included in the site selection were ignored, including the Downtown Alliance and the Cape Fear Valley Hospital Board of Trustees. The CFVH board came out against the site because of environmental concerns about the exhaust fumes from the buses that would affect Highsmith Rainey Hospital. In fact, the hospital commissioned a study, which was fi led with the city. However, when Breeden Blackwell of the board tried to address the council during a public hearing on April 26, 2010, he was only given the requisite three minutes to speak, despite the fact that many in the room tried to cede their time to him.

Smith has visited other multi-modal centers within the state, including those in Greensboro, Durham and Raleigh. The Greensboro site he found void of retail occupants. The Durham site had a heavy police presence — designed to keep vagrants away and to protect many of the older clients of the bus service.

Both Pfendler and Smith point to the failed Festival Park Plaza as a reason why the city should not appropriate land for private retail/business space, with both asking how much money has the city lost in that failed venture.

Pfendler has engaged the services of Fayetteville attorney Neil Yarborough to help her in her fi ght, but notes that she doesn’t think there is a lot he can do since the state recently awarded the city an $8 million grant to move forward with the project.

“I don’t think it’s right that the city takes away a profi table, functioning business to give it to someone else,” she said.

For many years, she would have been on the winning side, but with the 2004 decision in Kelo V. City of New London, the U.S. Supreme Court set a precedent for property to be transferred to a private owner for the purpose of economic development. The court found that if an economic project creates new jobs, increases tax and other city revenues, and revitalizes a depressed or blighted urban area it qualifi es as public use. This expands on a prior decision in Berman v. Parker (1954) which argued that the problems of large-scale urban blight need to be addressed with large-scale redevelopment plans and that land can be confi scated, and transferred to a private entity for a clearly defi ned public use.

The Fifth Amendment to the U.S. Constitution forbids the confi scation of property “without just compensation,” so that anyone whose property is acquired does receive some compensation. However, as is the case with Pfendler, many are offered compensation packages that are inadequate.