Last Friday the John Locke Foundation filed a brief in support of the plaintiffs in Kirby v. NCDOT, a case that is currently before the NC Supreme Court. We filed as amicus curiae (“a friend of the court”) because we wanted to bring certain facts and arguments to the Court’s attention.

As I have previously explained in a newsletter, the plaintiffs in Kirby are a group of Forsyth County property owners who have challenged the NC Department of Transportation’s power to impose long-term, uncompensated development moratoria on their land under a statute known as the Map Act. They won an important victory in February when the NC Court of Appeals rejected the NCDOT’s claim that its imposition of development moratoria under the Map Act should be construed as an exercise of the police power for which no compensation was necessary. The Court found that, “The Map Act empowers NCDOT with the right to exercise the State’s power of eminent domain…which power, when exercised, requires the payment of just compensation.” The Court also found that, “The NCDOT exercised its power of eminent domain when it filed the transportation corridor maps,” and it remanded the case to the trial court to consider, “The amount of compensation due to each Plaintiff for such takings.”

In response to an appeal by the NCDOT, in August the NC Supreme Court agreed to review the lower court’s decision, which is how we came to file our brief. We believe the Court of Appeals’ decision was correct, and in the brief we urge the Supreme Court to uphold it. Here some excerpts (citations omitted):

The NCDOT attempts to characterize its imposition of development moratoria under the Map Act as an ordinary exercise of the police power. After noting that, “The regulation of land use is a common police power function,” it asserts that, “The Map Act is similar to other legislation allowing governments to place limitations on certain types of land use in planned highway corridors,” and it cites, as examples, specific legislation in North Carolina authorizing cities and counties to impose such limitations and a specific decision by this Court upholding such a limitation.

In fact, however, while the regulation of land use by local governments under legislation like that cited by the NCDOT is certainly quite common, the imposition of long-term and uncompensated development moratoria by state transportation departments under statutes like the Map Act is very uncommon indeed. Furthermore, the Map Act differs from the legislation cited by the NCDOT in many constitutionally significant ways.

Because the Map Act is such an uncommon type of legislation, and because it is so different from the conventional land use legislation cited by the NCDOT, the Court of Appeals was right to carefully scrutinize the NCDOT’s power under the Act rather then apply standards and tests that were developed to deal with much different kinds of statutes—and it was also right to find that, “The NCDOT exercised its power of eminent domain when it filed the transportation corridor maps.”…

For years the NCDOT has attempted to evade its duty to pay just compensation for land it plans to use for highway rights-of-way by imposing uncompensated, long-term development moratoria on that land. Now it is attempting to evade judicial scrutiny of its actions by encouraging this Court to apply highly deferential standards and tests. However, the Map Act does not merit such deference. It does not resemble the legislation that governs transportation planning in other states; it does not resemble the legislation that governs conventional land use regulation in North Carolina; it is blatantly unfair; it is patently unnecessary; and it violates fundamental rights protected by the United States Constitution and the Constitution of North Carolina, including the rights to equal protection, due process, and just compensation. The Court of Appeals was wise to reject the NCDOT’s calls for deference and to subject the Map Act to a level of scrutiny that is appropriate to its history, its character, and its importance.

We conclude by saying: 

The Court of Appeals did not err when it held that the imposition of development moratoria by the NCDOT under the Map Act should be construed as an exercise of the power of eminent domain. That holding should be affirmed.