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State right to “take” property under the Map Act back at the Supreme Court

The state Supreme Court is hearing argument this morning in a case challenging the Department of Transportation’s right to control land use in areas where it intends to build roads, as set forth in the decades-old Map Act.

Pursuant to that Act, the DOT can file a map with the local register of deeds identifying property where it anticipates building a road and protect that property from development or other action that might improve its value — in effect holding down the purchase price until the DOT is ready to buy.

In Kirby v. DOT, the justices are reviewing a unanimous decision by the state Court of Appeals, holding that DOT had effectively “taken” property through eminent domain when it filed the maps protecting the eastern and western loops of the proposed Northern Beltway in Forsyth County, and owed the owners “just compensation” for that land.

Here’s more from Policy Watch’s report on that decision:

Michael Hendrix had a contract to sell eight of his 24 acres of land at Old Hollow and Germanton Roads in Winston-Salem for more than a million dollars in early 1998. But because the state Department of Transportation had identified that land as lying in the path of a proposed beltway project running east to west just north of the city, the deal died.

Instead, ten years later and with no construction in sight, the DOT made Hendrix an offer that any property owner in right mind would refuse: a non-negotiable $530,700 for all 24 acres. In 2012, though, health issues pushed the former contractor to go back to the agency for a new deal.

Hendrix died from a stroke in November 2013, still waiting for an answer from the DOT.

James and Phyllis Nelson live on two of the nearly eight acres they own on the western side of that proposed Northern Beltway project. They’d planned on developing the remaining property for retirement income. But once the DOT identified that land as lying in the path of the project, the Nelsons couldn’t improve or develop their land.

Instead, they sat by helplessly as DOT put down traverse stakes there, watching as the agency bought out other nearby owners, tore down homes (one burned down) and let others fail into disrepair.

Hendrix and the Nelsons are just a few of the thousands of property owners in North Carolina who’ve fallen victim to a state device known as the “Map Act.”

Pursuant to that Act, the DOT can file a map with the local register of deeds identifying property where it anticipates building a road and protect that property from development or other action that might improve its value — in effect holding down the purchase price until the DOT is ready to buy.

How many years away can that be?

“For as long as it takes North Carolina to get enough money to build the road,” the DOT says in a fact sheet distributed to affected property owners.

The DOT filed its first map along the western loop of the proposed Northern Beltway in 1997, and construction on just one segment of one loop is just now beginning.

In the meantime, property owners there have been fighting for relief from the agency, and in recent years have resorted to lawsuits, traveling up and down the appellate courts in search of help.

Yesterday, they may just have hit pay dirt.

In a unanimous decision with sweeping implications for North Carolina road projects, the state Court of Appeals ruled that DOT had effectively “taken” their property through eminent domain when it filed the maps protecting the eastern and western loops of the proposed beltway and owed the owners “just compensation” for that land.

“It confirms what we have been saying from the beginning — that the state was condemning these people and needed to buy them,” Matthew Bryant, the attorney representing owners in this and other lawsuits, told the Winston-Salem Journal.

“The state will now have to pay those people, and they should have bought them out years ago. They should never have gone through this.”

WRAL is streaming the argument at the high court here.

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Help from the high court on roadway takings

A decision in one of the first cases heard by the U.S. Supreme Court this term may help thousands of North Carolina property owners whose land has been tied up by proposed but delayed Department of Transportation road projects — some for more than a decade — recover the damages they say the DOT owes them.

In Arkansas Game and Fish Commission v. U.S., the Court considered whether the commission can recover for damage to its property caused by intentional upstream flooding by the Army Corps of Engineers.

The threshold question before the court was whether that flooding was a “taking” under the U.S. Constitution’s Fifth Amendment, which provides that no private property can be taken for a public purpose without just compensation.

That’s also the issue property owners along the Northern Beltway in Winston-Salem have put before the court there in dozens of complaints filed against the DOT over the past year. Their parcels and some 2000 others lay in the path of the proposed beltway, spanning from U.S.158 north to U.S. 52 in western Forsyth County through to U.S. 311 in eastern Forsyth County. Read more