Map Act plaintiffs urge Supreme Court to shut the door on the DOT

See related story on proposed legislation that would change or repeal the Map Act.

A group of property owners who are beating the North Carolina Department of Transportation in a high-stakes fight over the Map Act have asked the Supreme Court to put an end to the case.

The state wants the high court to reverse the unanimous Court of Appeals opinion in Kirby v. North Carolina Department of Transportation, which held that the DOT’s use of the Map Act constituted a taking.

If the February ruling stands, the DOT says it will have to shell out $600 million to buy land in the path of planned urban loop projects throughout the state that currently do not have funding.

“The state claims that this is a $600 million problem for it, but I submit that this is really a $600 million problem for the owners who have had their property stolen,” said plaintiffs’ attorney Matthew Bryant, of Hendrick Bryant Nerhood & Otis of Winston-Salem, in an interview. He wrote in response to the DOT’s petition that the state was “forcing certain citizens to bear a burden that our constitutions provide is to be born by all of us.”

Kirby represents a major loss for the DOT, which had used the Map Act to file road plans with the register of deeds and halt development on land within the so-called protected corridors.

The tactic allowed the state to postpone paying the owners for years – some have been waiting for two decades – as their property values plummeted. Then the DOT gets a better deal when it finally decides to acquire the land.

In its petition to the Supreme Court, the DOT argued 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 DOT also asserted that the lower court erred in remanding theclaims 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.

Bryant contended in the owners’ response to the DOT that the Court of Appeals used the correct legal analysis to reach its conclusion that the state was exercising its power of eminent domain through its use of the Map Act. He also noted that the opinion brings North Carolina in line with every state in the country that has considered the issue.

“These owners – and there are hundreds of them – have had to wait a very long time for any amount of good news,” he added during the interview. “And now instead of our DOT trying to cure their wrong behavior for so long, they just want to extend it and I hope that doesn’t happen, for the sake of the owners.”

Meanwhile, Kirby seems to have lit a fire under the state Legislature. So far, bills have been filed in the House and Senate that would repeal the Map Act. Another proposal that would make the DOT pay for lowballing landowners facing condemnation has passed the House.