Court orders NCDOT to begin paying landowners hurt by unconstitutional law. But will it?

The N.C. Department of Transportation has lost an appeal to a court order that it begin paying landowners whose property was subject to the Map Act, a state law that allowed the department to reserve corridors for future highways without buying the property.

The state Supreme Court declared the law unconstitutional in the summer of 2016, concluding that it amounted to the government taking property without compensation. But NCDOT has appealed subsequent local court rulings that it begin to appraise property in the corridors and deposit money in accounts for the owners. Among the cases on appeal are more than two dozen involving landowners in the path of the planned Triangle Expressway extension across southern Wake County, between Holly Springs and Interstate 40.

On Tuesday, the Court of Appeals issued a ruling that rejected the state’s arguments in 211 Map Act cases in Forsyth and Guilford counties. The state had claimed that its rights and the rights of taxpayers weren’t being protected and that it had sovereign immunity from the lower court’s order that it begin compensating property owners.

Attorneys for the plaintiffs and NCDOT disagreed over the significance of Tuesday’s ruling. Matthew Bryant, a Winston-Salem attorney whose firm represents the majority of Map Act cases in the state, said it affirms that the owners had their property taken without proper compensation and that the state should begin paying them.

“This opinion recognizes that the state cannot delay further and that its actions so far have been against our citizens’ interests,” Bryant wrote in an email.

But Chuck Watts Jr., the general counsel for NCDOT, called the court’s decision a procedural ruling that simply says the department was not entitled to appeal the cases while they were still being handled at the local level. NCDOT had appealed an order that was issued before the cases were settled.

“By denying the appeal and kicking it back down to the trial court level, it’s sort of a non-ruling,” Watts said in an interview.

Watts says the ruling did not address fundamental legal questions that NCDOT thinks need to be settled before the state begins writing checks to property owners. Does a “taking” under the Map Act amount to a full taking of someone’s property, or is it more like a utility easement, where a property owner is entitled to something less than full value? What if The Map Act applied only to part of someone’s property, or what if other circumstances, such as homeowners association rules, already prevented the owner from developing it?

‘Rules of the road’

Answers to those questions from the Court of Appeals would set the “rules of the road” that will help trial courts begin to decide each individual case, Watts said.

“We will hopefully get guidance that will have statewide impact, that would help us streamline future negotiations,” he said. “Otherwise, we’re stuck with the plaintiff’s attorneys approach, which is designed to maximize the returns to landowners.”

But in its ruling Tuesday, the Court of Appeals said it was too late for NCDOT to argue that it is looking out for taxpayers by appealing Map Act cases.

“This should have been a consideration before the highway corridor map was filed,” the judges wrote. “The constitutional right to just compensation when the state takes an individual’s private property rights for public use will not be suspended on the mere fact that it may be expensive.”

The legislature passed the Map Act in 1987 to make it easier and cheaper for the state to build highways by allowing it to designate certain corridors for future roads where landowners would be barred from subdividing or building on their property. Some of the property owners, including those in the Wake County cases, have had their property tied up by Map Act restrictions for 20 years, without receiving any compensation from the state.

NCDOT used the Map Act to reserve corridors for 26 future highways across the state. Most of the projects were loop roads or bypasses through fast-growing suburban areas, where the state knew it wanted to build roads but didn’t have the money to buy property or begin construction.

The Court of Appeals ruled that NCDOT must follow the lower court’s order to begin the process of compensating the 211 Map Act landowners in Forsyth and Guilford counties, with the understanding that the exact amount of damages may be determined by a jury.

Watts said NCDOT’s legal team was still reviewing the ruling to determine whether it will appeal to the Supreme Court. If it doesn’t appeal, he said, the department will pursue cases at the local level in hopes of getting a ruling that spells out what constitutes a taking under the Map Act.

“This probably prolongs the process,” he said of Tuesday’s ruling. “It doesn’t help to shorten the process.”

This story was originally published November 21, 2017 at 1:26 PM with the headline "Court orders NCDOT to begin paying landowners hurt by unconstitutional law. But will it?."