by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
On Tuesday the N.C. Court of Appeals handed down a ruling that strikes at the heart of a controversial piece of legislation known as the Map Act. Here at the John Locke Foundation, we have been urging the General Assembly to repeal or reform the Map Act for some time. Now, however, thanks to Chief Judge Linda M. McGee’s admirably thorough and well-reasoned opinion, it appears that legislative action may not be necessary. Judge McGee has ruled that, Map Act or no Map Act, if the State wants to use private property for highways and other transportation projects, it must compensate the owners of that property in a just and timely manner.
In most states, when the department of transportation needs land for a highway, it obtains it the old fashioned way — by buying it. It uses the state’s power of eminent domain to condemn the property, and it compensates the property’s owners at a level commensurate with the market value at the time of the taking. Under the Map Act, however, the N.C. Department of Transportation has been able to take a different approach. The Act empowers the DOT (and other agencies) to create "transportation corridors" within which "no building permits shall be issued for any building or structure or part thereof…nor shall approval of a subdivision…be granted." There is no time limit to how long land may be subjected to such a moratorium on development, and as a result the DOT has been able to control large tracts of land for years without formally condemning them and without paying compensation to their owners. Because both improvement and subdivision are forbidden, land within a transportation corridor loses value and becomes difficult to sell, which is precisely the point. The purpose of the Map Act is to reduce the amount that will have to be paid to the owners of the land when and if the DOT finally decides to condemn it and purchase it under the state’s power of eminent domain. At the time of passage, the General Assembly was surprisingly candid about its intentions for the Map Act, which it described as, "An act to control the cost of acquiring rights-of-way for the State’s highway system."
Among the transportation corridors created by the DOT are two in Forsyth County that tie up land for a future beltway around Winston-Salem. Ever since the corridors were created, the owners of the affected property have lived in a state of limbo — unable to develop their property, unable to sell it for a reasonable price, and uncertain about when, if ever, the State will actually take it and offer them compensation — and they have remained in that state of limbo for a long time. The western corridor was created in 1997!
Eventually some of these Forsyth County property owners decided they had had enough and took the bold step of suing the DOT. They alleged, among other things, that the indefinite moratorium on their right to improve and subdivide their property constituted a taking for which they had a constitutional right to be compensated. The DOT denied this allegation, asserting instead that the Map Act moratorium was simply an ordinary exercise of the State’s power to regulate the use of land for which no compensation was required. The trial court agreed with the DOT and granted its motion for summary judgment on that issue. The property owners appealed, which is how the Court of Appeals came to consider an important constitutional question:
Should development moratoria imposed under the Map Act be regarded as regulations imposed under the State’s police power, which do not require compensation, or as takings under its power of eminent domain, which do?
After a thorough review of the facts and of the relevant case law and on the basis of some very clear and rigorous analysis, the Court of Appeals concluded that the Map Act is not an exercise of the State’s police power under which regulations are imposed on property owners to prevent harms to the public welfare. It is, instead, "a cost-controlling mechanism" under which development moratoria are imposed "with a mind toward property acquisition." The Court held, therefore, 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.
NCDOT exercised its power of eminent domain when it filed the transportation corridor maps.
Accordingly, the Court remanded the case to the trial court to consider "the extent of the damage suffered by each Plaintiff as a result of the respective takings" and "the amount of compensation due to each Plaintiff for such takings."
This is a stunning victory, not just for the long-suffering property owners in Forsyth County who brought the lawsuit, but for all the property owners across the state whose lives have been blighted by the Map Act. It is also a stunning victory for constitutional government in North Carolina. Everyone involved in the outcome deserves our congratulations and our praise: the property owners for their courage; Matt Bryant and the rest of the property owners’ legal team for their diligence; and Chief Judge McGee for her scholarship, her clarity of thought, and her commitment to the rule of law.
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