Often at the end of something, one thinks about how it began. For me and my partners Paul Hendrick and Tim Nerhood, that “something” is 15 years of litigation against the North Carolina Department of Transportation over the Map Act — the law that allowed the NC DOT to reserve land for highways without paying for the reservation. This month, we settled our last case. That last case makes 580 cases settled in eight counties.

In 2009, Beroth Oil asked me to get DOT to approve a building permit for its property in the Map Act’s Winston-Salem Northern Beltway or make DOT buy the lot. Beroth would have sold the lot to DOT for $250,000, and this case would never have started. Instead, DOT refused to end the restrictions or buy the lot. I casually told my partners I thought this odd Map Act thing was an inverse taking. Paul and Tim agreed. We were amazed the Map Act had never been challenged, especially by lawyers doing condemnation cases. We were naïve about the task that lay ahead. 

DOT’s refusal prompted us to pursue class action. By the summer of 2010, we had met with hundreds of Forsyth County property owners — all angered by DOT’s actions. They understood their property was taken, could not be freely sold or improved, and that DOT was their only buyer. No owner wanted the restrictions removed. They wanted to be bought and moved out from the middle of a highway.

We filed the first inverse condemnation case in September 2010 in Forsyth County. We lost the class action issue at trial in the Court of Appeals and Supreme Court. Undeterred, we encouraged owners to file individual cases. Gene Kirby stepped up without hesitation and many more owners followed. We filed cases in Forsyth, Wake, Guilford, Cleveland, Cumberland, Robeson, Pender, and Pitt counties with the help of Neil Yarborough, Ad Winters, Kieran Shanahan, and Anne Duvoisin.

Our plaintiffs’ path to just compensation was tortured. Mr. Kirby and nine other plaintiffs had their cases dismissed in 2013. Instead of folding, we appealed, held dozens of owners meetings, and filed more and more lawsuits. We conducted over 30 DOT depositions, reviewed 60,000 DOT documents, hired numerous experts (appraisers, map makers, economists, developers, title reviewers, and statisticians). We produced market data that proved that no properties were sold in the DOT’s Map Act over two decades — except to DOT. The properties were unmarketable. The fee simple value was taken.

We gathered amicus support from the John Locke Foundation, Pacific Legal Foundation, North Carolina Advocates of Justice, North Carolina Justice Center, and North Carolina Association of Realtors that the Map Act was an act of eminent domain, not police powers.  This line-up proved our point that taking of property is not bound by ideological dispositions.  

Then came the Kirby 1 and 2 decisions in 2015 and 2016. The Map Act was a taking, now DOT had to pay damages. Oh, if only that simple.

Nothing came easy with DOT. DOT appealed almost every ruling. We won those appeals — seven of them. The General Assembly tried to lower the prejudgment interest rate. It repealed the Map Act. No less than 40 hearings across the State — we won them all. We won two favorable jury verdicts.  

The repeal of the Map Act had no bearing on our cases. The Court of Appeals and the Supreme Court agreed with us that the restrictions were not temporary and were an exercise of eminent domain not police power. The taking was a fait accompli because the restrictions were, as the appellate courts said, “perpetual, indefinite, never-expir(ing), long lasting.” We argued repeatedly and successfully that the taking could not be undone — there is no “un-taking, we give it back” for a Map Act taking.

DOT came to its senses in late 2018 and began to settle cases. DOT and our firm settled using Kirby 2’s instruction: Determine the difference in value of the property immediately before and immediately after the Map Act restrictions, adding on the decades of interest due. Every owner received just compensation for their taking and the delay, and as important, far more than the current market value for the taking. The title that was taken by the Map Act was transferred to DOT.

Our clients were of varying ages, backgrounds, and financial wherewithal. Many distrusted attorneys, politicians, courts, and DOT. My partners and I were favored with their trust and confidence. To the credit of our systems of government that we often take for granted, the success of this case can hopefully be seen as an endorsement for attorneys, good government, and our courts.   

DOT has an important and difficult role. It has millions of customers (drivers) who want to travel quickly, safely and comfortably. It is an engine of future economic success. The lessons learned from the Map Act litigation may serve to encourage better planning and policy in years to come.