John Locke Update / Research Brief

Charting a New Course for Transportation Planning in North Carolina

posted on in Land Use Planning, Law & Regulation, Legal Update, Transportation
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Transportation planning in North Carolina took a wrong turn in 1987 when the General Assembly approved a controversial piece of legislation known as the Map Act. The Map Act gave the North Carolina Department of Transportation (NCDOT) the power to impose absolute, permanent development moratoria on land within designated transportation corridors, thereby suppressing the value of the land and reducing the amount it would have to pay when it eventually acquired it for highway rights-of-way. NCDOT used that power to suppress the value of large tracts of land for years—sometimes even for decades—without initiating condemnation proceedings and without compensating the owners.

At the John Locke Foundation, we were always highly critical of the Map Act. We argued that it was economically inefficient, unfair to landowners, and unnecessary. We also believed the Map Act was unconstitutional, which is why we supported a group of Forsyth County landowners who challenged it on constitutional grounds. When their case, Kirby v. NCDOT, reached the North Carolina Supreme Court, we filed a friend of the court brief on their behalf, and we were delighted when the Court decided in their favor.

The Court held that, “By recording the corridor maps … which restricted plaintiffs’ rights to improve, develop, and subdivide their property for an indefinite period of time, NCDOT effectuated a taking of fundamental property rights,” and it ordered NCDOT to compensate the plaintiffs for “the loss of these fundamental rights.”

Despite the Supreme Court’s order, in the 18 months since the Kirby decision was handed down, NCDOT has only compensated a handful of Map Act victims for their losses. Hundreds are still waiting. Many of them have grown old while languishing in Map Act limbo, and some of them—including some of the original Kirby plaintiffs—have died. Instead of making them continue to wait, NCDOT should stop dragging its heels and get on with the business of making prompt and full compensation.

In immediate response to the Kirby decision, the General Assembly passed a bill that rescinded all existing corridor maps and placed a one-year moratorium on the filing of new maps. The bill also instructed NCDOT to study more equitable alternatives to the Map Act, and submit a final report by July 1, 2017. Initially, at least, NCDOT appeared to be making a good-faith effort to comply with that order. In a series of quarterly interim reports, it described its efforts to find out how other states handle corridor preservation and provided a tentative list of options under consideration. Recently, however, NCDOT’s progress appears to have slowed or even come to a halt. It requested, and was granted, an extension allowing it to put off submitting its final report until February 1, 2018, and it failed to file an interim report for the third quarter of 2017.

It is very important that NCDOT meets this new deadline. The General Assembly should, and most likely will, address the issue of transportation planning in the 2018 session, and its members should be given plenty of time to review NCDOT’s recommendations before they begin their deliberations.

If the General Assembly does address the issue of transportation planning next session, there are several lessons from the Map Act debacle that should guide its deliberations.

  1. If possible, the imposition of development moratoria and similar restrictions on land use within projected transportation corridors should be avoided altogether.

The best way, indeed the only reliable way, to determine the most economically productive use of land within projected transportation corridors is by bringing market knowledge and market incentives into play. The NCDOT draft interim report for January 2017 lists several ways this could be done. One approach would be for NCDOT to publish maps showing projected corridors and a timetable for completion, and allow property owners to make their own decisions about which interim uses make the most sense. Another would be to give NCDOT a short period of time in which it must either concur with an application for a building and subdivision permit for land within a corridor or initiate a right-of-way purchase. A third approach would be to create a fund that would make it possible for NCDOT to make advance purchase of vulnerable property within corridors. Once this had been done, NCDOT could lease the property back to the original owner for the expected interim period, if the owner wants it, or to another private tenant if the owner does not. The tenant could then decide, at his or her own risk, what sort of interim development made sense, taking into consideration the full range of locally available market knowledge. A fourth approach, not listed in the report, would be for NCDOT to acquire from the owner an option to purchase the property at the end of the interim period. This would similarly permit the owner to make market-based decisions about the property’s use during the interim.

  1. If some form of interim regulation of land with projected transportation corridors is required, the following guidelines should be adhered to:

For the sake of economic efficiency, regulation should be applied as lightly and as briefly as possible. To ensure fairness and constitutionality, the owners of regulated property should be promptly and fully compensated for any significant losses they incur as a result of the regulation. And, to maximize democratic accountability and a full consideration of competing interests and conflicting goals, the task of regulation should be assigned, not to NCDOT, but to local authorities that have been explicitly authorized to exercise the police power and that possess the expertise, the knowledge, and the incentives needed to exercise that power fairly, flexibly, and with discretion.

The Map Act approach to transportation planning is inefficient, unfair, and unnecessary, and the NC Supreme Court has declared that it is unconstitutional as well. It’s time for a new approach to transportation planning in North Carolina—one that delivers the roads and other transportation infrastructure we need, while simultaneously promoting our economic well-being and respecting our rights.

Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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