On June 10th the NC Supreme Court handed down a unanimous decision in Kirby v. North Carolina Department of Transportation. It’s a well-earned victory for the plaintiffs and their legal team, but we’re celebrating here at the John Locke Foundation as well. In this newsletter I’ll explain why.
The Kirby plaintiffs own land in Forsyth County that the DOT plans to eventually use for a beltway around Winston Salem. Under a statute known as the Map Act, the DOT imposed development moratoria on that land. Because both improvement and subdivision were forbidden, the land lost value and became difficult to sell, which was precisely the point. The purpose of the Map Act is to suppress the value of land so that the DOT pays less when it eventually acquires it.
The moratoria placed the Kirby plaintiffs 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 it left them there for a long time; it’s already been almost 20 years for some of them, and, at a public hearing, the DOT indicated that it might go on for another 20 years more. It’s little wonder, therefore, that the plaintiffs decided to sue and demand compensation.
At the John Locke Foundation (JLF), we’ve always been highly critical of the Map Act, and we’ve been rooting for Mr. & Mrs. Kirby and their fellow plaintiffs ever since they decided to sue. Last year when the case reached the Supreme Court we were able to do more than just root. We filed a friend-of-the court-brief in support of the plaintiffs. In it we summed up our objections by saying:
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.
As that summary suggests, the primary issue before the Court was whether development moratoria imposed under the Map Act should be regarded as ordinary regulations imposed under the State’s police power, which do not require compensation, or as takings under the state’s power of eminent domain, which do. We cheered last year when the Court of Appeals found that Map Act moratoria are takings, and we’re cheering even harder now.
Writing for a unanimous Court, Justice Newby upheld the Court of appeals:
The Map Act’s indefinite restraint on fundamental property rights is squarely outside the scope of the police power. No environmental, development, or relocation concerns arise absent the highway project and the accompanying condemnation itself…. Though the reduction in acquisition costs for highway development properties is a laudable public policy, economic savings are a far cry from the protections from injury contemplated under the police power….
By recording the corridor maps at issue here, 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. On remand, the trier of fact must determine the value of the loss of these fundamental rights by calculating the value of the land before the corridor map was recorded and the value of the land afterward, taking into account all pertinent factors, including the restriction on each plaintiff’s fundamental rights.
The opinion is admirably clear, concise, and focused, but Justice Newby nevertheless finds room to place the case in its historical context. Citing North Carolina’s 1776 Constitution as evidence, he notes that, “The fundamental right to property is as old as our state.” After also noting that, “From the very beginnings of our republic we have jealously guarded against the governmental taking of property,” he quotes James Madison:
Government is instituted to protect property of every sort.
And John Locke(!):
The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.
These historical references come as no surprise. Justice Newby is a scholar with a particular interest in North Carolina’s constitutional history. He’s an adjunct professor of law at Campbell University and (along with UNC Professor John Orth) coauthor of The North Carolina State Constitution which was published by Oxford University Press in 2013. No one is better qualified to explain how North Carolina’s Constitution implicitly protects property against uncompensated takings or why the property protected “clearly includes the rights to improve, develop, and subdivide.”
It’s a great opinion and a great result. On behalf of the John Locke Foundation—and on behalf of North Carolina’s property-owners—I’m delighted to extend congratulations and thanks to the Kirbys and their fellow plaintiffs, to Matt Bryant and the rest of the legal team at Hendrick Bryant Nerhood Sanders & Otis, and to Justice Newby and the entire North Carolina Supreme Court.