The North Carolina Supreme Court is expected to hear the state Department of Transportation’s challenge of a landmark Court of Appeals opinion centered on the Map Act next month. The Kirby decision will affect hundreds of property owners throughout the state and could significantly alter the way the DOT handles eminent domain actions.
But before that happens, the DOT is slated to go back before the Court of Appeals and argue another Map Act case – despite the fact that the same court concluded last year in Kirby that a taking occurs when the state files plans for highway projects under the Map Act.
The DOT asserts that the second case, Jamestown Pender v. DOT and Wilmington Urban Area Metropolitan Planning Organization, differs from Kirby because it involves a relationship between the DOT and an independent entity that is authorized to use the Map Act.
The state has wielded the Map Act as a legal tool to stall development on land within so-called “protected corridors” as it raises the money needed to move forward with proposed road projects, which can take decades.
While the DOT works on funding the projects, neighborhoods and business districts deteriorate and property values drop, which gives the state the upper hand when it finally decides to step in and purchase the land.
The Wilmington planning organization, known as WMPO, recorded plans under the Map Act for the Hampstead Bypass in 2011. When completed, the roadway will cut through the middle of 684 acres that real estate investment company Jamestown Pender LP owns in Pender County.
The DOT has told Jamestown that it will be at least 10 years before it has enough money to buy the properties in the path of the bypass, according to an appellate brief by Jamestown’s attorney, Ryal Tayloe of Ward and Smith in Wilmington.
He argues that the issues in Jamestown are “indistinguishable” from those at the heart of Kirby and says that the DOT and WMPO are trying, unsuccessfully, to “manufacture differences” between the two cases.
In the wake of the Court of Appeals decision in Kirby, a trial judge ruled that the DOT had taken Jamestown’s property through inverse condemnation and would have to pay just compensation for the taking.
An attorney for the DOT, special deputy attorney general Dahr Tanoury of Raleigh, contends in the state’s brief that the trial ruling must be reversed because the WMPO was not acting as the DOT’s agent when it made the Map Act recording for the Hampstead Bypass.
The Court of Appeals is scheduled to hear arguments in Jamestown on Jan. 27. Meanwhile, the state Supreme Court will hear the DOT’s appeal of Kirby on Feb. 16.
“It just sort of turned out that way,” said Matthew Bryant, a Winston-Salem attorney at Hendrick Bryant who has spearheaded the Map Act litigation against the DOT and represents property owners in Kirby.
“The Court of Appeals will have to figure out how to deal with a case that’s before the Supreme Court,” he added. “We’ll leave it up to the DOT to explain what they’re doing.”
An email to DOT spokesman Mike Charbonneau was not returned.
Dozens of new Map Act suits have been filed since the Kirby decision, which DOT representatives have claimed will cost the state an estimated $600 million – taxpayer money that would have to be used to buy damaged land in the Map Act corridors.
So far, the Hendrick Bryant firm has at least 250 Map Act cases across the state, according to Bryant.
A diverse group of amici has filed briefs in support of the property owners in Kirby. They are the Civitas Institute, Pacific Legal Foundation, John Locke Foundation, N.C. Association of Realtors, N.C. Advocates for Justice and the N.C. Justice Center.
“I think the fact that you’ve got people from across all political spectrums agreeing that Kirby is a good decision shows that this is a bad law,” Bryant said. “It’s been a bad law for a very long time and it’s hurt good people. It’s time to move this thing forward.”
One amicus brief has been filed in support of the DOT.
It’s from the WMPO.