In most states, when the department of transportation or a local government needs land for a highway, it obtains it the old fashioned way — by buying it. It uses the state’s power of eminent domain to condemn the property, and it compensates the property’s owners at a level commensurate with the market value at the time of the taking.
Under North Carolina’s Map Act, however, the N.C. Department of Transportation has been able to take a different approach. The act empowers the DOT (and other agencies) to create “transportation corridors” within which “no building permits shall be issued for any building or structure or part thereof … nor shall approval of a subdivision … be granted.” There is no time limit to how long land may be subjected to such a moratorium on development, and as a result the DOT has been able to control large tracts of land for years without condemning them and without paying compensation to their owners.
Land within a transportation corridor loses value and becomes difficult to sell, which is precisely the point. At the time of passage, the General Assembly was surprisingly candid about its intentions for the Map Act, which it described as, “An act to control the cost of acquiring rights-of-way for the state’s highway system.”
A recent decision by the N.C. Court of Appeals, Kirby v. NCDOT, puts the state on the defensive, where it belongs. Among the transportation corridors created by the DOT are two in Forsyth County that tie up land for a future beltway around Winston-Salem. Ever since the corridors were created, the owners of the affected property have lived in a state of limbo. The western corridor was created in 1997!
Eventually, some of these Forsyth County property owners sued the DOT. They alleged, among other things, that the indefinite moratorium constituted a taking for which they had a constitutional right to be compensated.
The DOT denied this allegation, asserting instead that the Map Act moratorium was simply an ordinary exercise of the state’s power to regulate the use of land for which no compensation was required. The trial court agreed with the DOT. The property owners appealed. And won.
The Court of Appeals concluded that the Map Act is “a cost-controlling mechanism” under which development moratoria are imposed “with a mind toward property acquisition. … The Map Act empowers NCDOT with the right to exercise the state’s power of eminent domain … which power, when exercised, requires the payment of just compensation.”
The court remanded the case to the trial court to consider “the extent of the damage suffered by each plaintiff as a result of the respective takings” and “the amount of compensation due to each plaintiff for such takings.”
This is a stunning victory, not only for the long-suffering property owners in Forsyth County who brought the lawsuit, but also for all the property owners across the state whose lives have been blighted by the Map Act. It is also a stunning victory for constitutional government in North Carolina.
For years, the John Locke Foundation has urged the General Assembly to repeal the Map Act in its entirety. A group of House members, led by Rep. Rayne Brown, R-Davie, have sponsored House Bill 183, doing exactly that. It repeals the various sections of the General Statutes that pertain to the Map Act, and it gives the DOT six months to “study the development of a process for acquiring land for future highway construction that is in accordance with … Kirby v. NCDOT.”
Thirty-seven states manage to build highways without abusing property owners in this way. North Carolina can, too.
Jon Guze is director of legal studies for the John Locke Foundation.