Fifteen years ago, Michael Hendrix and his family watched a $1.2 million deal for a third of their 24-acre property crumble when the would-be buyer learned that the property stood in the path of the proposed Winston-Salem Northern Beltway.
The N.C. Department of Transportation approached Hendrix in early 2007 with an offer to buy all 24 acres for $530,700 through the agency’s hardship acquisition program. Unsurprisingly, he balked at the number.
Tired of waiting for the state to come back with a better deal, Hendrix reapplied for a hardship buyout in July 2012, telling the state that his health was failing. He was still waiting for a response when he died last November, according to his attorney Matthew H. Bryant of Hendrick, Bryant, Nerhood & Otis in Winston-Salem.
“Mr. Hendrix died after dealing with this for nearly 20 years,” Bryant said. “Too many have already died, leaving this uncertainty to their widows or their kids and no one should have to die with this uncertainty hanging over their family.”
Why some, not others?
Hendrix’s plight illustrates the unenviable situation that many others in his area face as the state contemplates building the proposed 35-mile Northern Beltway around Winston-Salem, Bryant said.
He represents two separate but similarly situated groups of land and homeowners who have sued the DOT in a last-ditch effort to force the agency to buy their properties for a fair price and allow them to move on with their lives.
Now, Hendrix’s group, led by plaintiffs Eugene and Martha Kirby, is urging the North Carolina Supreme Court to hear their case and grant their “simple” request for relief:
“NCDOT – Buy our property – for just compensation – like you have bought over 454 of our neighbors over the last 17 years,” Bryant writes in the petition for discretionary review.
The owners say the state has arbitrarily shelled out millions of dollars for hundreds of properties, including a church and junkyard, through its hardship program, while refusing to pay for others. Bryant, who describes the practice as absurd and unjust, said that “if anyone can figure out why NCDOT buys some owners and not others, please tell me.”
Seeking a deadline
The other group of owners, which is led by plaintiff Beroth Oil, is waiting for the N.C. Supreme Court to determine whether they can sue as a class. The lower courts have refused to grant class certification because the various properties involved are too different to lump together. The high court heard arguments in September.
The Beroth group filed suit first and the Kirby plaintiffs, deciding not to wait for the appeals process to play out, followed later with an identical complaint against the DOT. Both groups are challenging the constitutionality of the state’s Map Act, which lies at the heart of the dispute.
Transportation officials use the act to file plans with the register of deeds and halt the development of any property that the DOT might need for a road. The practice allows the state to control property values in a certain area that it intends to purchase, regardless of how long it might be before construction begins.
Map Act neighborhoods become blighted with abandoned and neglected homes, which causes property values to fall, Bryant said. He writes in the Kirby petition that the “state cannot ‘have its cake and eat it, too.’ It cannot restrict property for lower prices and not pay for that benefit.”
The DOT has declined to discuss the suits, but it argues in court filings that the Map Act’s development restrictions have not deprived owners of “all practical use and all reasonable value” of their land. It also says owners cannot qualify as a class because a “takings analysis requires a case-by-case, ‘ad hoc’ inquiry into the factual circumstances of each claim.”
During arguments in the Beroth suit, Supreme Court justices Barbara A. Jackson and Mark D. Martin both raised questions about the Map Act’s silence on having a deadline for the state to begin construction and pay homeowners.
“The thing that seems troubling here, and different from a lot of other DOT projects that have come to fruition, is the length of time involved,” Jackson said in court. “Seventeen years seems like an awfully long time to have a sword of Damocles hanging over your property’s head.”
Follow Phillip Bantz on Twitter @NCLWBantz