DOT appeals Map Act ruling

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Despite a major loss at the North Carolina Court of Appeals and mounting pressure from the legislature to scrap the Map Act, the state Department of Transportation is not reversing course.

The DOT on March 24 urged the state Supreme Court to overturn a Court of Appeals ruling a month earlier in Kirby v. N.C. Department of Transportation. The agency contends that a unanimous three-judge panel for the court applied the wrong analysis in reaching its decision.

Chief Judge Linda McGee led the panel, which found that the DOT’s use of the state’s Map Act constituted an exercise of its power of eminent domain, not its police powers, as the agency had contended.

The DOT uses the Map Act to file road project plans with local register of deeds offices throughout the state and halt development on land within the so-called protected corridors.

Because construction usually does not begin immediately, some affected landowners have been waiting for payment from the DOT for 20 years. But Kirby changes that by requiring the state to give owners fair compensation within a reasonable amount of time.

“This is a bad law, but the state could have used these maps and bought these people up in a year or two instead of recording these roadways and disappearing for two decades,” said Matthew Bryant, the Winston-Salem lawyer who is spearheading the legal fight against the DOT and the Map Act.

“Those days have come to an end with Kirby and should stay at an end,” added Bryant, a partner at Hendrick Bryant Nerhood Sanders & Otis. He called Kirby a strong and well-reasoned opinion, but said he expected an appeal.

“I’m not surprised that they want to continue to dishonor these people’s property rights without paying for it,” he said. “This is a continuation of the course of conduct that they’ve gotten away with for over two decades.”

State legislators were quick to take action in the wake of Kirby, filing two companion bills — one in each of the houses of the state General Assembly — that would repeal the Map Act. Another proposal pending in the Senate requires the DOT to begin its planned road projects within 10 years of filing a map. And a House bill makes owner-friendly modifications to the compensation formula used in state land takings.

Still, the DOT continues to support the Map Act. The agency argues in its petition for discretionary review to the Supreme Court that Kirby should be overturned because the Court of Appeals failed to apply an ends-means test that involves a finding as to whether the map filing deprived a property owner of “all practical use” of the land and rendered it of “no reasonable value.”

“The failure to employ the ends-means analysis conflicts with decisions of this Court and other decisions where the analysis was used to determine whether land-use regulations and their enforcement fell outside the government’s police powers and created a taking requiring payment of just compensation,” the DOT told the Supreme Court.

The agency further asserts that the Court of Appeals jumped the gun by remanding the Kirby claims for trials on the owners’ damages, saying that the court should first hold evidentiary hearings to determine whether a taking occurred and, if so, how much of the land in question was taken.

The DOT also is concerned about the impact of Kirby, telling the Supreme Court that the opinion “erroneously creates a per se taking cause of action for any owner of property located within a protected corridor, regardless of whether the owner experienced an actual interference with the use of property.”

In the wake of Kirby, several lawyers, including Bryant, said they were signing up dozens of new clients who had Map Act-related claims against the DOT but had been apprehensive to enter the legal fray. Kirby changed that, said Bryant, who took on 60 new Map Act clients within 10 days of the opinion’s publication.

“That’s pretty impressive,” he added. “It took me three years [before Kirby] to get to 70. Lots of our citizens and these homeowners are extremely skeptical and cynical about the legal system and Kirby has relieved a great deal of that for them.”

If the decision stands, the DOT expects that it will have to pay hundreds of millions of dollars to buy land in the path of planned urban loop projects that were pending in 2013 but do not have funding. The agency says it will cost taxpayers $8 billion to complete those projects.

The estimate is based on 2011 dollars and does not take into account the potential costs for municipalities and regional transportation authorities, which also can create protected corridors under the Map Act, according to the DOT.

Legislators backing the proposals to repeal the Map Act and attorneys representing the property owners acknowledge that the costs of Kirby are significant, but say that the state has only itself to blame.