DOT warns of ‘immense new burden on taxpayers’ from recent Map Act ruling

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  • The North Carolina Department of Transportation seeks reconsideration of a Feb. 6 Appeals Court decision in a Map Act case. DOT lawyers argue the decision could "create an immense new burden on taxpayers."
  • DOT cites support for its argument from lawyers who have resolved hundreds of Map Act cases since North Carolina's Supreme Court struck down the law in 2016.
  • A DOT petition claims the Feb. 6 decision could open the door to hundreds of additional Map Act lawsuits. The case also could double the amount of compensation DOT must pay to some property owners affected by the Map Act.

The North Carolina Department of Transportation is asking the state Court of Appeals to reconsider a recent ruling in a Map Act case. DOT warns that the challenged ruling could “create an immense new burden on taxpayers.”

The Map Act, repealed in 2019, allowed DOT to block any development of private property within designated highway corridors.

A petition for rehearing filed Tuesday targets the Appeals Court’s unpublished Feb. 6 opinion in Sanders v. NC DOT. A unanimous three-judge panel upheld a Cumberland County trial judge’s decision to allow a property owner to move forward with Map Act claims.

“DOT respectfully submits that this Court misapprehended North Carolina’s Map Act jurisprudence and should reconsider its holding in this case,” the department’s lawyers wrote in the petition.

DOT cited support for its argument from attorneys Matthew Bryant and Paul Hendrick, “who were the first attorneys in North Carolina to bring a Map Act claim, have represented hundreds of landowners in Map Act cases for more than a decade, and who have successfully litigated multiple Map Act appeals before this Court and the North Carolina Supreme Court.”

“If left undisturbed, this decision would treat Map Act landowners differently based not on the unique characteristics of their property, but based on when they chose to file their lawsuit,” DOT lawyers argued.

The department cited three points of law the Feb. 6 opinion “misapprehended.” First, the Appeals Court endorsed the trial judge’s decision that a Map Act taking of property was “temporary” and that damages would be based on the affected land’s rental value.

Second, according to DOT lawyers, the Appeals Court misread DOT’s argument that state law required a plaintiff to bring a Map Act claim before the end of a direct condemnation action. Third, the court made a mistake when considering a release the plaintiff signed after previous condemnation actions.

“Since the Supreme Court decided Kirby in 2016, DOT has settled or litigated just compensation in over seven hundred (700) Map Act cases statewide,” the department’s lawyers wrote. “Fewer than twenty-five (25) such cases remain, and many of those – like this case – assert claims at odds with the established law of the Map Act or involve other unique issues.”

“The Court’s decision here, though unpublished, will treat current Map Act claimants differently than those landowners who settled their claims based on established law, will prolong the Map Act litigation, and will increase the financial cost of this litigation for the taxpayers who must pay the bill,” DOT argued.

The petition suggested that the Appeals Court’s decision could open the door for more legal action against DOT.

“[T]his Court’s decision will potentially create hundreds of new Map Act claims,” DOT lawyers warned. “In Forsyth and Guilford counties alone, DOT estimates there are approximately one thousand one hundred and ninety-eight (1,198) new claims that could arise based on this decision.”

“This will undo years of dedicated effort to resolve the Map Act litigation under the guidance of the Supreme Court and create an immense new burden on taxpayers,” the petition continued.

“[B]y accepting a rental value method of valuation for Map Act claims, this Court’s decision will increase the public cost of just compensation for each current and new Map Act lawsuit,” the department warned. “The application of rental value to these claims has the potential to double the amount DOT must pay in just compensation based on a highly speculative approach to damages.”

“By applying rental value to the taking of rights under the Map Act for which there is no known rental market, the Court’s decision will force trial courts and juries to speculate on damages in a manner unmoored to any practical notion of fair market value,” the petition added. “This is manifestly unjust to DOT and the taxpaying public who must shoulder the cost.”

Five pending lawsuits in Forsyth and Wake counties depend on the resolution of the Sanders case, DOT lawyers explained.

“Beyond those pending cases, this decision will serve as a springboard for potentially hundreds of new lawsuits regardless of its unpublished status,” DOT’s lawyers added. “At a minimum, this will cause additional litigation, public cost, and appeals. Given that these impacts will be directly related to departures from precedent established by our Supreme Court, this decision should be reconsidered.”