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Court of Appeals: DOT liable for Map Act filings by other agencies

//November 9, 2016

Court of Appeals: DOT liable for Map Act filings by other agencies

//November 9, 2016

The North Carolina Department of Transportation cannot sidestep liability when another agency has used the Map Act to freeze development on properties in the path of proposed road projects, the state Court of Appeals has ruled.

The unpublished decision in Jamestown Pender answers a question that was not addressed in the state Supreme Court’s landmark decision over the summer in Kirby, which held that a Map Act filing was a taking.

The Jamestown Pender decision makes it clear that no matter who files a road project map with the register of deeds, the DOT is responsible, according to an attorney for the plaintiffs, Ryal Tayloe of Ward and Smith in Wilmington.

“I think it’s an important decision,” said Tayloe, who has filed a motion asking the court to publish the Nov. 1 opinion.

Another attorney in the case, Matthew Bryant, a partner at Hendrick Bryant in Winston-Salem who led the charge against the Map Act, said “hundreds and hundreds of cases across the state will be positively affected by this” opinion. He was aware of at least 400 such cases and expected that more will be filed as the litigation gains momentum.

The decision also drives home the point that Kirby was not specific to the nine property owner plaintiffs in that particular case, said Anne Fisher, a partner at Henson Fuerst in Boone who represents landowners in other ongoing Map Act suits.

She said the DOT’s attorneys have been arguing that Map Act filings were not takings per se and, in some instances, they have been successful. She believed that Jameston Pender foreclosed that argument going forward.

“It [the decision] would make life easier for the plaintiffs and be more in accordance with what the Supreme Court ordered” in Kirby, she said. “I don’t think they intended to make a special rule for those nine plaintiffs.”

Bryant said the decision makes it clear that “if you’re in a Map Act piece of property there is a taking” and the only remaining issue is determining damages. He added that “it’s taken a long time to get to that point. But the Jamestown case proves the point.”

DOT spokesman Robert Broome declined to discuss the case. The agency had denied in Jamestown Pender that the Wilmington Urban Area Metropolitan Planning Organization was acting for the DOT when it filed a transportation corridor map in November 2011. The DOT also contended that a taking had not occurred because the WMPO, and not the DOT, had filed the map.

But Judge Ann Marie Calabria rejected the argument, finding that the law “does not mention any distinctions between maps recorded by the NCDOT and those recorded by other organizations in terms of liability.”

She concluded that, based on the language in the Map Act, legislators did not intend to exempt the DOT from liability “simply on the basis of another agency filing the map.”

Now, Tayloe expects that the DOT will be required to make a deposit of just compensation for the affected property owners in Jamestown Pender. Other attorneys representing Map Act plaintiffs can point to the decision in arguing for compensation from the DOT.

“It’s important to the owners that are involved in this,” Bryant said.

In the aftermath of Kirby, state lawmakers rescinded all Map Act filings. They also passed a bill with a last-minute provision that drastically reduced the interest that gets folded into the compensation residents receive when the DOT takes their land.

The 19-page decision is Jamestown Pender, L.P. v. North Carolina Department of Transportation (Lawyers Weekly NO. 012-208-16). A digest of the opinion is available at

Follow Phillip Bantz on Twitter @NCLWBantz

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