It’s Time to Scrap Certificate-of-Need Rules | Eastern North Carolina Now

    Publisher's note: The author of this post is Barry Smith, who is an associate editor for the Carolina Journal, John Hood Publisher.

Unanimous court says NCDOT's use of highway corridors is a taking of private property requiring compensation to landowners

    RALEIGH     The N.C. Supreme Court on Friday handed hundreds of property owners in highway corridors a victory by ruling unanimously that restrictions placed on landowners by the state's Map Act amounted to a use of eminent domain requiring just compensation.

    The amount of money the N.C. Department of Transportation will have to pay to the landowners could reach hundreds of millions of dollars.

    "The Supreme Court vindicated their property rights," said Matthew Bryant, a Winston-Salem lawyer who led the plaintiffs' legal team. "There are limits to what government can properly do. North Carolina failed to recognize that for 20 years."

    Justice Paul Newby wrote the opinion of the court.

    "Upon NCDOT's recording of the highway corridor maps at issue here, the Map Act restricted plaintiffs' fundamental rights to improve, develop, and subdivide their property for an unlimited period of time," Newby wrote. "These restraints, coupled with their indefinite nature, constitute a taking of plaintiffs' elemental property rights by eminent domain."

    The General Assembly enacted the Map Act in 1987. It allows the DOT to file a highway corridor map with local officials and prohibits local governments from issuing building permits on property within the corridor. It also prohibits land within the corridor from being subdivided.

    The purpose of the law is to hold down taxpayer costs for highway projects by preventing development.

    Property owners are allowed a break on property taxes under the law. And they could apply to NCDOT for an expedited acquisition process if they can show that Map Act restrictions place a hardship on them.

    However, the court ruled that the law doesn't go far enough in protecting property rights.

    "From the very beginnings of our republic we have jealously guarded against the governmental taking of property," Newby wrote, citing John Locke and James Madison.

    The court rejected the state's argument that NCDOT was using its police powers, and not eminent domain powers, in placing restrictions on development of property.

    "Under the police power, the government regulates property to prevent injury to the public," Newby wrote. "Under the power of eminent domain, the government takes property for public use because such action is advantageous or beneficial to the public."

    Newby said that while a reduction in property acquisition cost for highway projects is a laudable public policy, it doesn't fall under police power protections.

    "The societal benefits envisioned by the Map Act are not designed primarily to prevent injury or protect the health, safety, and welfare of the public," Newby wrote. "Furthermore, the provisions of the Map Act that allow landowners relief from the statutory scheme are inadequate to safeguard their constitutionally protected property rights."

    Newby said that the Map Act language "plainly points to future condemnation of land in the development of corridor highway projects, thus requiring NCDOT to invoke eminent domain."

    The case before the Supreme Court relates to the Northern Beltway around Winston-Salem in Forsyth County. However, similar lawsuits were filed in Cleveland, Guilford, Wake, Cumberland, Robeson, and Pender counties involving more than 300 landowners.

    "The state's estimate of this is several hundred million dollars that will be due to these owners," Bryant said. "That's money was due to them a long time ago. And it's money the state intended to spend at some point in time in the future."

    Bryant noted that organizations filing amicus (friend of the court) briefs backing the property owners in the case ranged across the political spectrum. They included the John Locke Foundation, the Civitas Institute, the N.C. Advocates for Justice, the N.C. Justice Center, and the N.C. Association of Realtors.

    "Our cause was just," Bryant said. "It wasn't political."

    The Wilmington Urban Area Metropolitan Planning Organization filed a friend of the court brief backing NCDOT.

    "Our attorneys are reviewing the decision and determining how it will affect NCDOT policies and procedures moving forward," NCDOT said in a statement. Spokesman Steve Abbott added that because the litigation continues, the agency will not comment further.

    The case will now go back to the trial court level to determine how much NCDOT owes individual property owners.