After waiting since the 1990s for the North Carolina Department of Transportation to pay for taking their homes, businesses and other properties through Map Act filings, hundreds of residents are going to have to wait a little longer. But the end appears to be near.
Forsyth County Superior Court Judge John Craig has ordered the DOT to begin appraising properties that lie in the path of the long-delayed Winston-Salem Northern Beltway and Greensboro Outer Loop highway construction projects.
Craig has given the state until March 29, 2017, to appraise the plaintiffs’ properties – the list of plaintiffs in this case alone is six pages long. Then the DOT must make a deposit of a good-faith estimate of just compensation, including interest from the date of the taking.
Matthew Bryant, the Winston-Salem attorney at Hendrick Bryant Nerhood Sanders & Otis who is leading the charge against the DOT, said the agency has been unable to provide a clear answer when asked how long the appraisal process will take.
“This appraisal problem was not a secret and might have been better addressed by the current administration if it showed any interest in how badly things were managed on the backs of these owners,” Bryant said. “We have hundreds of clients that had their properties unconstitutionally taken without payment nearly 20 years ago, yet the administration and the General Assembly have paid far more attention to bathrooms and voting restrictions than righting wrongs visited on these citizens.”
Craig’s Sept. 29 order follows the state Supreme Court’s June decision in lawsuit, Kirby v. N.C. Department of Transportation. The court held that the DOT’s use of the Map Act constituted a taking, reversing earlier orders from Craig, who had ruled against the property owners.
In his recent order, Craig granted summary judgment to the plaintiffs, finding that “a taking of some nature has occurred” based on the Kirby decision.
Craig also ordered the DOT to file new answers to approximately 132 Map Act suits filed after July 15, 2015, when the state began making blanket denials of allegations that it had previously admitted, including the legal existence of the DOT as an entity and whether the agency was capable of owning property.
DOT spokesman Steve Abbott wrote in an email response to an interview request that the agency was contemplating its next move. He said the DOT had received “conflicting rulings from different counties on this issue” and was reviewing those rulings. He cited an order from Cleveland County Superior Court Judge J. Thomas Davis.
Davis found that the “filing of a corridor map pursuant to the Map Act does not … constitute a fee simple taking of the corridor area for the determination of just compensation,” while Craig held off on making a ruling on the issue at this stage of the case.
Bryant disagreed with Abbott’s assertion that the orders were significantly different, saying, “There’s nothing conflicting about either ruling. They [the DOT] know exactly what they took and they’ve been taking it for 20 years. There’s a distinction without a difference.”
In his order, Craig wrote that the DOT appraisers should consider fair market value transfers in the beltways since the corridor maps were filed; the DOT’s acquisition practices in the areas; and the DOT’s standards for appraisal valuations.
According to Bryant, the DOT has bought through fee simple transactions more than 500 Map Act properties in Winston-Salem over the last two decades, while less than 10 properties out of more than 2,000 were sold privately – meaning that very few people are buying Map Act properties.
The DOT has used the Map Act to freeze development on properties in the path of proposed road projects and postpone paying the owners for years as their property values plummeted and their neighborhoods crumbled.
The DOT contended, unsuccessfully, that its use of the Map Act did not constitute a taking because it was a valid regulatory exercise of police power that benefited the public by holding down land acquisition costs and minimizing the number of residents who would need to be relocated when road construction began.
In the wake of the Kirby decision, state lawmakers rescinded all Map Act filings and lifted the development restrictions in July. But an effort to repeal the law stalled.