Tawfiq Abdel-Ghani and his brother-in-law made what looked like a pretty nice investment 20 years ago when they bought 25 acres of farmland on Sunset Lake Road near Holly Springs.
“Our intent was to have some family land, and everybody would build houses out there eventually,” said Abdel-Ghani’s eldest son, Raaid. “And then we would sell off the rest of the land that was not needed.”
But today they are forbidden by law to build on their land or to subdivide it. Abdel-Ghani and other landowners across southern Wake are in thrall to the state Department of Transportation and its desire to – someday – build a six-lane toll road somewhere near their property.
In 1997, DOT drew a 1,000-foot-wide stripe on the map from Holly Springs to Interstate 40 near Garner, marking its preferred path for extending the road now known as the 540 Outer Loop. This is called a “protected corridor” under the state Map Act, which empowers DOT to veto development on land it may decide in the future to condemn or buy for a new highway.
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That means DOT eventually will pay for farmland or a few houses, rather than for new subdivisions and shopping centers. It makes land acquisition less expensive for taxpayers, but it can be painful for the affected landowners.
Tawfiq Abdel-Ghani and Suleman Asad paid $136,000 in 1994 for land that today is valued at $1.07 million on the Wake County tax books. They paid $7,064 in property taxes this year for land they can only look at.
The two men are among a handful of Wake property owners challenging DOT and the Map Act in court. Theirs is one of two lawsuits filed Monday asking a judge to force DOT either to pay them a fair-market price or to free them to develop their land. Three other families filed a similar suit in 2011.
“It’s unconstitutional to restrict the property for the state’s benefit of getting lower prices,” said one of their attorneys, Matthew Bryant of Winston-Salem. “They (DOT) don’t want these people to freely use their property. If they want these properties, they ought to buy them.”
Bryant is handling similar lawsuits for Forsyth County landowners who have been in limbo for two decades while DOT ponders an Interstate 74 bypass in Winston-Salem. The N.C. Court of Appeals heard arguments this summer in one Forsyth case and is expected to rule later this fall.
The 540 Outer Loop’s protected corridor, known on planning maps as the Orange Route, faces environmental obstacles because it would trample sensitive wetlands and the habitat of an endangered mussel. Under pressure from federal regulators, DOT now is evaluating it and 16 other possible paths that would complete the toll loop in southern and eastern Wake.
Asked to discuss DOT’s use of the Map Act, a spokesman provided a brochure and a list of 28 “bullet points for media” drafted by the Attorney General’s Office. Item 21 says the law enables DOT to minimize the impact of new urban loops, “facilitate orderly and predictable development” along the project path, and reduce the need to relocate homes and businesses.
Developers have expressed interest over the years in the Sunset Lake Road property, Raaid Abdel-Ghani said. One made a formal purchase offer and another, last week, wanted to build apartments there.
“But once they heard DOT has this on their future road map they said, ‘We need to move quickly. We can’t wait for DOT to change their minds,’ ” said Abdel-Ghani, 35, of Holly Springs.
The Map Act does let landowners apply for building permits, a step that gives DOT three years to either approve the construction or buy the land. Two major developers in southern Wake took that path, drawing up subdivision plans for swaths of Orange Route land so they could sell it later to DOT for more than $2 million.
But Bryant says small landowners cannot invest thousands of dollars to develop the detailed plans required for a building permit application, only to wait three years for payment.
Andy Mullins, a Fuquay-Varina developer, tried to buy another Orange Route tract in 2005. He said he withdrew the offer after he realized that the Map Act would squelch his hopes of developing a residential subdivision.
“The Map Act takes a whole swath of land and makes it unsellable or unusable,” Mullins said. “You’re having to pay taxes on your land, and you’re not free to develop it under its highest and best use. Under those circumstances, no one would purchase it.”
Landowners can apply for “hardship” exemption, and DOT will make them an offer if it decides that they qualify.
But Bryant said DOT is inconsistent in granting hardship status for one landowner while denying it for another. And while most right-of-way sales are subject to negotiation in order to reach the fair-market value guaranteed by law, the hardship offers are not.
“You plead hardship and they offer you low, take-it-or-leave-it prices,” Raaid Abdel-Ghani said. “I know that DOT is going to lowball my father if he tries to go the hardship route.”
Raaid Abdel-Ghani said his father had hoped to build family homes on a few acres and sell the rest to provide a comfortable retirement for himself and an inheritance for his children. It hasn’t worked out that way
“My father is on fixed income, on Social Security – with additional help from me, his son,” Raaid said. “Monthly, I give him some money. It is not fair for my father to hold on to the land for DOT’s benefit, and pay taxes on it now, so the greater constituency can benefit later.”