North Carolina State Highway Commission v. Mills Manufacturing Co. , 24 N.C. App. 478 ( 1975 )

PARKER, Judge.

Article 6D of G.S. Chap. 136, entitled “Controlled-Access Facilities,” contains the following:

G.S. 136-89.49: “Definitions. — When used in this. Article :

“(2) ‘Controlled-access facility’ means a State highway, or section of State highway, especially designed for through traffic, and over, from or to which highivay owners or occupants of abutting property, or others, shall'have only a controlled right or easement of access.” '

G.S. 136-89.50: “Authority to establish controlled-access facilities. — The Board of Transportation may designate, establish, abandon, improve, construct, maintain- and regulate controlled-access facilities as a part of the State highway system, National System of Interstate Highways,- and Federal Aid Primary System whenever the Board of Transportation determines that traffic conditions, présent or future, justify such controlled-access facilities, or the abandonment thereof.”

Defendant contends that plaintiff has statutory power to establish a controlled-access facility only over a section of highway which is either a part of the State highway system, .a part of the National System of Interstate Highways, or a part of the Federal Aid Primary System, and that the road here involved does not fall into any of these classifications but is part of the secondary road system. In support of this contention, defendant points to testimony in the record that the new road across its property has been designated State Road 2838 and that “SR 2838 was constructed for the purpose of relocating the Porter Cove Road to lead to the Porter Cove area” and that it “serves as a county road.” The trial court, however, found that the new road was condemned both for the relocation of Porter Cove Road (old SR 2753) and for access to and exit from Interstate 40, and there is ample evidence in the record to support such a finding. There is evidence that Porter Cove Road south of its underpass beneath Interstate 40 is a two-lane road which dead ends a short distance south of Interstate 40, that the portion of the road north of Interstate 40 and connecting into Highway 70 is a four-lane road which serves as a connector between Interstate 40 and Highway 70, and that the traffic projections for the road were for 4000 vehicles per day in 1968 and for 7800 vehicles per day in 1988. It is apparent from all of the evidence that although the new road across defendant’s property does serve to carry the same limited local traffic into and out of Porter Cove which was formerly carried by the old Porter Cove Road, the principal purpose of the new road is to carry traffic to and from the Interstate Highway. From the design of the new road and from the pro j ected traffic volume to be carried thereon, it is apparent that by far the largest portion of such traffic will be traffic moving between Highway 70 and Interstate 40. Whatever the new road is called or by whatever number it is designated, its principal functional purpose is to serve as an important connector between these two major traffic arteries. We hold that plaintiff had statutory authority under G.S. 136-89.50 to designate the new road across defendant’s property a controlled-access facility as a part both of the State highway system and of the National System of Interstate Highways.

Defendant next contends that if it be found that plaintiff had statutory authority to designate the new road as a controlled-access facility, its action in so doing in this case was arbitrary, capricious and whimsical. In support of this contention defendant points to the fact that a similar connector between Interstate 40 and Highway 70, known as Patton Cove Road, which is located some two miles east of defendant’s property, was not designated by plaintiff as a controlled-access facility, and defendant contends that there is no reasonable basis to justify plaintiff’s making one road and not the other a controlled-access facility. There is, however, an important difference between the two connector roads. In the case of the road across defendant’s land, the distance between Interstate 40 and Highway 70 is approximately 920 feet, while in the case of the Patton Cove Road, the distance between Interstate 40 and Highway 70 is 1825 feet. The trial court found that the shorter distance in the one case created a hazardous traffic condition which did not exist in the other. Although plaintiff may not exercise its statutory power to establish controlled-access facilities in an arbitrary or capricious manner, necessarily plaintiff must be accorded a wide latitude in making a determination that traffic conditions, present or future, justify creating a controlled-access facility in one place and not in another. Certainly the evidence in the present case is not such as to compel a finding that plaintiff here exercised its statutory powers in an arbitrary or capricious manner and the trial court committed no error in refusing to make such a finding.

We also find no merit in defendant’s further contention that plaintiff’s action in creating a controlled-access facility over defendant’s land, while failing to create such facilities along Patton Cove Road and along other connecting links between Highway 70 and Interstate 40, resulted in a denial of defendant’s constitutional right to the equal protection of the laws. As noted above, the difference in length of the connector link over defendant’s property, as compared with the Patton Cove Road connector, furnished a rational basis for plaintiff’s determination that traffic hazards over the two connectors would not be the same. Furthermore, we do not understand that the equal protection clause of the Fourteenth Amendment operates to prohibit the Board of Transportation from establishing a controlled-access facility over one tract of land unless it also creates such facilities over every other tract which might be somewhat similarly situated. Of course, when, as here, such a facility is created, that fact must be taken into account in arriving at just compensation. G.S. 136-89.52.

Finally, defendant’s assignments of error directed to the court’s refusal to adopt defendant’s tendered findings of fact are overruled. The findings which the court did make were supported by the evidence and these in turn supported the conclusions of law made and the order entered.

The order appealed from is

Affirmed.

Chief Judge Brock and Judge Martin concur.