Wake County

Justices hear challenge to NCDOT’s hold over landowners

NCDOT uses Map Act to block landowner's plans

Landowner Gene Kirby, the lead plaintiff in a NC Map Act lawsuit, discusses how the NC Dept. of Transportation has used the Map Act to block development.
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Landowner Gene Kirby, the lead plaintiff in a NC Map Act lawsuit, discusses how the NC Dept. of Transportation has used the Map Act to block development.

A lawyer for the state faced skeptical questions from N.C. Supreme Court justices Tuesday as he defended a law used by the Department of Transportation to freeze development on property it might buy later – sometimes decades in the future – for a highway project.

The N.C. Court of Appeals ruled in 2015 that when DOT invoked the Map Act in 1997 to create a “protected corridor” for a planned Winston-Salem beltway, it was effectively taking private property without paying for it. The swath of land is protected from improvements that would make it more expensive when DOT is ready to buy it.

John F. Maddrey, the state solicitor general, likened the law Tuesday to city and county zoning ordinances designed to limit development that might clash with local long-range plans.

“The public purpose and benefit can be broadly described as coordinating future road projects with future land uses,” Maddrey said.

Justice Paul Newby said the Map Act is different from local planning ordinances.

“The county is not ultimately desirous of obtaining that property,” Newby told Maddrey. “Where the Department of Transportation is.”

Property rights

Justice Robin Hudson asked Maddrey if he agreed that DOT’s use of the Map Act is “designed to ultimately acquire property and not just to regulate it.” And Justice Barbara Jackson suggested that DOT was putting a “decades-long burden on property rights.”

The Supreme Court arguments were attended by more than 100 property owners from across the state whose land is restricted under the Map Act

DOT created a protected corridor in southern Wake County in the late 1990s – a path known now as the Orange Route – for an extension of the 540 Outer Loop that is still years away from construction. Map Act lawsuits in Wake and other counties are on hold pending the Supreme Court’s decision, expected later this year, on the Winston-Salem case.

I hope they’ll do something to repeal this Map Act and give us just compensation for our property.

Walter Simpkins of Wake County, Orange Route property owner

“I hope they’ll do something to repeal this Map Act and give us just compensation for our property,” Walter Simpkins, 73, whose family owns about 80 acres of Orange Route farmland south of Garner, said in an interview. “We hoped to sell it and move to the beach. But we’ve not been able to do it financially, because they’ve got me tied up.”

Maddrey acknowledged that legislators had not expected landowners to live under Map Act restrictions for so many years.

“When the Map Act was enacted, the contemplation was that projects would be quickly designed, approved, funded and constructed,” Maddrey said. “That's not where we are today. Certainly with the length of time here and other projects around the state, that's undeniable.”

Calculating damages

Some of the justices’ questions Tuesday skipped over the question of whether the appeals court was correct in ruling that DOT should compensate the nine Winston-Salem landowners. They asked how the damages should be calculated.

Maddrey said each landowner’s case should be examined separately. But Matthew Bryant, a Winston-Salem attorney representing scores of Map Act plaintiffs, said the state was trying to add more years of delay. He gestured to the lead plaintiff in the Winston-Salem case, 81-year-old Gene Kirby of High Point, seated in the courtroom.

“They’re asking Mr. Kirby to wait until he’s dead,” Bryant said.

After six of the seven justices had challenged Maddrey with questions about how much the state has constrained landowners and reduced their property values, they let Bryant make his case with only a couple of mild questions from Newby.

“The state has imposed indefinite, perpetual development restrictions on these property owners for the sole and single purpose of price control,” Bryant said. He said DOT should be ordered to purchase all the properties locked up in Map Act corridors.

Outside the courtroom, Kirby said he bought a Forsyth County farm 35 years ago with plans to build apartments there.

“I’ve now reached near the end of my life, and it’s still pending,” Kirby said. “I had hoped to get it settled in time to enjoy some of the benefits of having owned it. But that’s passing me by, I’m afraid.”

Bruce Siceloff: 919-829-4527, @Road_Worrier

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