Friday Interview: Paving the Way for the Map Act's End | Eastern North Carolina Now

    Publisher's note: This post was created by the staff for the Carolina Journal, John Hood Publisher.

JLF legal expert Guze outlines problems tied to 1987 law

    RALEIGH     It is inefficient, unfair, unconstitutional, and unnecessary. That's the assessment of North Carolina's Map Act from Jon Guze, John Locke Foundation director of legal studies. Guze assessed the Map Act's flaws during a discussion with Donna Martinez for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

    Martinez: When did North Carolina enact the Map Act, and how does it actually work?

    Guze: It happened in 1987, and I like to point out that that was a time before the fall of the Berlin Wall, before the collapse of the Soviet Union. This was a time when central planning still seemed like a reasonably good idea, an idea in good currency, and a lot has changed since then.

    But, in any case, it happened in 1987, and ever since then the North Carolina Department of Transportation has been able to tie up land that it thinks it's going to eventually want for transportation purposes by recording transportation corridors. These are the places where they think they're going to want to run their right of ways sometime in the future.

    And once those corridors are in place, once they've been registered with a local recorder, no building permits can be issued. No subdivision permits can be issued. Land use in those transportation corridors is permanent and completely frozen in its current state.

    Martinez: What happens if you own land in one of those corridors?

    Guze: Well, it can be very bad because nobody wants to buy land like that. So if you need to sell for any reason, it's difficult and sometimes impossible. And, of course, you can't develop the land, so you can't find ways to make it profitable. And even minor improvements are often difficult when people have tried to just do things like add an addition to a house or enclose a carport and turn it into a garage. And sometimes even those kinds of permits have been denied. So it's very difficult for the people who own land in a corridor.

    Martinez: It sounds like people are stuck.

    Guze: They're stuck, absolutely. I say they're in a state of limbo because they can't sell, they can't develop their land, and they don't know when, if ever, this situation is going to end.

    Martinez: Jon, where have people been affected by this?

    Guze: There are major corridors around Winston-Salem for a beltway there, there are major corridors in Wake County, and there are others here and there around the state, including some in the eastern part.

    Martinez: State transportation officials undoubtedly would say, "Well, look, we've got to plan for decades down the road." No pun intended. "We've got to figure out where these transportation corridors would go." How is it that we ended up with a law that is so restrictive and so unfriendly to property rights and property owners?

    Guze: I think, again, it's because of the climate of opinion at the time, when in the '80s, planning professionals and planning bureaucrats were very keen on this idea of transportation planning. It wasn't enough to plan what went on within cities. They decided they needed to plan these transportation corridors in and around and between cities, so it was a chance for them to sort of expand their empires.

    Most states didn't bite. North Carolina is one of only a handful of states - 13, according to a report that we did a couple years ago - that actually enacted statutes like this one that give state departments of transportation these kinds of powers. Most states didn't do it, which is why I say the Map Act is unnecessary.

    It clearly isn't necessary because all of these other states, 37 at least, are able to provide for their transportation needs without giving their departments of transportation these kinds of powers.

    Martinez: What kind of folks have been affected by this?

    Guze: A lot of them - in fact, the vast majority of them - are farming folks, people who often have had family farms that they've had for many years. And that's part of what makes this a hardship because these people are getting on in years - some of them are getting sick, some of them need to retire, some of them have died. Some of the plaintiffs in the recent Kirby v. North Carolina Department of Transportation case were actually representing the estates of people who had died ... and they can't get out from under, even though they can no longer maintain or operate their farms.

    Martinez: Now you mentioned the lawsuit. There were some of these landowners in Forsyth County who essentially had enough. Is that a fair characterization?

    Guze: That's right. It's amazing. These things have been in place - and some of the ones in Forsyth County have been in place for 17 or 18 years - but they've been very patient, I'd say. North Carolina property owners are a very patient group, but some of them finally decided they'd had enough, and they sued the Department of Transportation.

    Martinez: And what was the outcome?

    Guze: It went up, eventually, to the North Carolina Court of Appeals, and the Court of Appeals agreed with the landowners. The Department of Transportation had taken the position that all they were doing was regulating land use in a time-honored way and there was no need to compensate people for police power, land-use regulations. But the Court of Appeals said no, this isn't just run-of-the-mill land use regulation. This is actually a taking. The Department of Transportation is exercising its power of eminent domain, and when you do that you have to compensate the people for their losses.

    And so the case has been remanded down to the [Superior] Court for an analysis of what kind of compensation is due. Unfortunately, however, the Department of Transportation has decided to appeal.

    Martinez: You are advocating for complete repeal of the Map Act. Why?

    Guze: I just don't think it has any use to us. It's a relic from a different era. As we've talked about, it's inefficient. There is always some use, some productive use, that can be made of land, especially when we've got decades to wait until it actually gets used for road building. It's a very crude approach to say nothing can happen to that land in the interim. So it's inefficient.

    It's unfair because it forces these handful of owners, who happen to own land within a transportation corridor, to bear costs that really ought to be borne by the taxpayers as a whole. It's unconstitutional. At least that's what the Court of Appeals has said, and I certainly agree.

    And it's unnecessary. Thirty-seven states get by without anything like the Map Act, and I'm sure we can, too.

    Martinez: So what happens for these folks who are now involved in this court case? It is being appealed by the DOT, as you mentioned, so do they have any compensation at this point, or are they just still waiting?

    Guze: No, they're going to have to go on waiting, and we'll see what happens. But, personally, I'm very hopeful. Our Supreme Court has done a pretty good job on eminent domain over the years. As Matt Bryant, who represents those plaintiffs, says, what the Department of Transportation ought to be doing isn't hiring lawyers. They ought to be hiring appraisers so they can get on with compensating those landowners.