A Wake County judge has again ordered the N.C. Department of Transportation to make down payments to dozens of property owners who have been prevented from developing their property for the past 20 years because it was in the path of a planned highway across southern Wake County.
Superior Court Judge G. Bryan Collins Jr. rejected NCDOT’s argument that making deposits into property owners’ accounts would unfairly assume that the owners were owed money under the Map Act, the 1980s-era law that allowed the state to restrict development in corridors of future highways. NCDOT argues that whether a property owner should be paid for the loss of those development rights – and how much – must be decided on a case-by-case basis by the courts.
Collins disagreed, saying the state Supreme Court has already determined that the state took the property without compensation when the court declared the Map Act unconstitutional in 2016. He gave NCDOT six months to appraise each property and another month to “make the deposit of a good faith estimate of just compensation (to include interest from the date of taking).”
The ruling is just the latest to confirm that the NCDOT used the Map Act to take people’s property rights and now must pay for them, said Matthew Bryant, a Winston-Salem attorney whose firm represented the Wake property owners in 31 separate lawsuits.
“This is consistent with every single ruling across the state of North Carolina for what is nearly 500 property owners across the state,” said Bryant, whose firm represents the majority of Map Act cases in North Carolina. “Now it is incumbent for DOT to begin to pay the price for beginning to take these properties and rendering them unmarketable for 20 years.”
Collins issued a similar order in November 2016, after the Supreme Court struck down the Map Act. He set a schedule for NCDOT to appraise the Wake properties and begin making deposits. NCDOT appealed similar orders in other counties, and in Friday’s ruling Collins wrote that the appeals could justify NCDOT’s failure to comply with his earlier order.
But after the state Court of Appeals rejected NCDOT’s appeals in 211 similar cases last fall, Collins issued the new order Friday with the same schedule for appraising property and making deposits as the first.
What’s a ‘taking’?
NCDOT has argued that the courts still must settle what kind of property rights were taken under the Map Act. Does a “taking” under the 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?
Jacob Wellman, a private attorney representing NCDOT, told Collins during a hearing last week that the plaintiffs’ position that NCDOT had taken their property outright was a legal impossibility under the Map Act, and that the state should not be liable for its full value.
Wellman also argued that some of the plaintiffs had acquired their property after the Map Act restrictions were put in place, and therefore were not entitled to compensation because presumably they paid a price that reflected the lower value of the property.
Bryant says those arguments have been rejected in other courts. “No judge has bought in to anything they have said,” he said.
Collins did not address NCDOT’s arguments directly. Not only did he order the state to begin paying the property owners, he also spelled out a process through which owners could seek mediation or a court hearing if they aren’t happy with the state’s offer.
NCDOT said Monday that it has not decided whether to appeal Collins’ order. At the same time, the department said in a statement that it will comply with his schedule.
“If for some reason we determine there is any issue that puts that compliance with any property in jeopardy, we would immediately go back to the judge for input on how to proceed,” the statement said.
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 owners would be barred from subdividing or building on their property. NCDOT used the Map Act to reserve corridors for 26 future highways across the state, mostly 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.
Among the projects was the southern extension of N.C. 540, also known as the Triangle Expressway, a planned six-lane toll road that will run from Holly Springs east to Knightdale. NCDOT used the Map Act to place development restrictions on more than 300 pieces of property in the N.C. 540 corridor in 1996 and 1997.
Among them was part of Walter Simpkins’ property at the end Joe Leech Road, including his house which NCDOT maps show sits in the middle of the planned Triangle Expressway. Simpkins says Collins’ latest court order is heartening, but until NCDOT actually pays him for his property he can’t make arrangements to find another home.
“You know we’ve even had the Supreme Court rule on the Map Act, and it hasn’t done anything,” he said.
The Final Environmental Impact Statement, a report that spells out the possible effects of the final 28.4 miles of the Triangle Expressway on the natural and human environment, was released Dec. 22, putting the state on a schedule to begin buying property this summer and starting construction early next year.