More Map Act News | Eastern North Carolina Now

    Publisher's note: The author of this post is Jon Guze, who is the Director of Legal Studies for the John Locke Foundation.

    A couple of weeks ago I discussed an excellent NC Court of Appeals decision in which the Court held that development moratoria imposed under the Map Act constitute takings for which just compensation must be paid. Today I'm happy to report that the General Assembly is already responding to that holding in positive ways.

    HB 127, which is sponsored by Reps. Stam, Jackson, and Bryan, is primarily aimed at reforming DOT condemnation rules. However, it also includes a provision that would "reduce to one hundred eighty days any delay of a building permit issuance due to the transportation corridor official map act." Given that the current law allows permits to be delayed for up to three years, this is certainly an improvement as far as it goes; however, it does not go nearly far enough.

    In Kirby v. NCDOT, the DOT argued that the Map Act merely "creates a temporary three-year restriction on new improvements to properties located within the mapped corridor," but the Court rejected this argument. It pointed out that the restrictions do not begin to apply when and if a property owner decides to apply for a permit. They begin "upon the filing with the register of deeds of a...transportation corridor map," and they "never expire." The fact that a property owner may, in theory, force the DOT to either issue a permit or condemn a parcel by applying for a permit and waiting for a prescribed period of time does not change matters. The Map Act prohibition on the issuance of permits is, as the Court says, "absolute." Any application for a building or subdivision permit would therefore be futile, and requiring property owners to go through the expensive charade of preparing and filing imaginary building or subdivision plans simply in order to force the DOT to condemn their property within a finite period of time is almost certainly a violation of due process in itself.

    The Court held that, notwithstanding the three-year permit delay provision, "NCDOT exercised its power of eminent domain when it filed the transportation corridor maps" and it must pay compensation to the affected property owners for the entire time their property has been encumbered. Changing the permit delay period will not save the Map Act. Either strict limits on the total period of encumbrance will have to be imposed, or provisions will have to be made for the payment of just compensation whenever the period of encumbrance exceeds such limits. A much better solution, however, would be the one the John Locke Foundation has been advocating for years: repeal the Map Act in its entirety. I'm delighted, therefore, to report that Reps. R. Brown, Conrad, Lambeth, and Watford have sponsored a bill — HB 183 — that does exactly that. It repeals the various sections of the General Statutes that pertain to the Map Act, and it gives the DOT six months within which to "study the development of a process for acquiring land for future highway construction that is in accordance with...Kirby v. NCDOT."

    Repealing the Map Act is unquestionably the right way to go. Thirty-seven states manage to build highways without abusing property owners in this way. North Carolina can too!