Garner Cleveland Record

Appellate court limits NCDOT's power to reserve land indefinitely

A N.C. Court of Appeals ruling in a Forsyth County case gave hope Tuesday to southern Wake County property owners who have been barred from developing their land since the 1990s because it lies along the state’s preferred path for a future extension of the 540 Outer Loop.

A three-judge appellate panel said the state Department of Transportation must pay nine Forsyth property owners whose land was included in a 1997 corridor planning map – land that DOT might one day want to purchase for Winston-Salem’s Northern Beltway project.

Under the state Map Act, drafted in part to keep DOT real estate costs low, the landowners are not allowed to subdivide their land, put up new buildings or make improvements that would make their property more valuable.

A lower court had ruled that DOT legally used the Map Act to regulate the use of private land in keeping with the best interests of the public. But the appellate panel said DOT’s restrictions were effectively the same as seizing the property without paying for it.

A Superior Court judge now must determine “the damage suffered by each plaintiff as a result of the respective takings and ... the amount of compensation due each plaintiff for such takings,” said Chief Judge Linda M. McGee, writing for a three-judge panel.

Judges Wanda G. Bryant and Donna S. Stroud concurred. Their order cited examples of similar laws that have been ruled unconstitutional in other states.

“The whole Map Act has been called what it is, a massive Ponzi scheme,” said attorney Matthew Bryant of Winston-Salem, who represents the Beltway landowners. “The state needs to buy these people’s property. Should have done it a long time ago.”

Bryant also has clients fighting DOT’s use of the Map Act for road projects in Guilford, Cleveland, Pender, Cumberland and Wake counties. He said he will deliver a copy of Tuesday’s ruling to Wake Superior Court Judge Paul Gessner, who heard arguments in the Wake County case in January.

The Wake plaintiffs include Jim and Carol Deans, who own 21 acres and live on Bells Lake Road near Apex. They had hoped in the 1990s to pay for Jim’s retirement by subdividing land and selling most of it to a developer. Their plans were crushed when DOT included their property in its corridor map – a 1,000-foot-wide swath across southern Wake – for the Outer Loop.

540 Orange Route

The corridor map marks what later became known as the Orange Route. Environmental regulators have ordered DOT to study other possible routes for the Outer Loop, in an effort to minimize harm to sensitive wetlands and an endangered freshwater mussel. DOT is expected this spring to indicate its recommended route in a draft environmental impact statement.

DOT has agreed to buy some of these properties where the owners claimed medical or financial hardship, but these transactions are take-it-or-leave-it offers that residents say result in payments below the market rate. When public agencies exercise their condemnation powers, they are obligated to pay a fair price determined in negotiation or in a trial.

Now the Deanses hope Tuesday’s ruling will persuade DOT to buy their land for the Outer Loop, at a fair price.

“They obviously plan on building it, so it doesn’t make sense for them to keep fighting what we want them to do,” said Carol Deans, 57. “We want them to acquire the rest of the land and quit holding us hostage. This is the first ray of sunshine we’ve had in 20 years, so I’m really happy.”

DOT officials were not available Tuesday for comment on the appellate ruling. Bryant said he expects the state to appeal the case to the N.C. Supreme Court.

“If this ruling stands up through whatever else may come, the scales are now going to be balanced between the landowners and the state,” Bryant said.