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Judge tosses more DOT direct condemnation actions

//June 7, 2017//

Judge tosses more DOT direct condemnation actions

//June 7, 2017//

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The North Carolina Department of Transportation continues to strike out in Map Act litigation in Forsyth County, where Superior Court Judge John Craig dismissed 11 of the department’s direct condemnations actions in one day.

Craig’s flurry of May 30 dismissal orders followed another series of virtually identical orders that he issued against the DOT in February. His rulings against the DOT follow a decision two years ago from the state Court of Appeals in Kirby v. NCDOT, which held that the DOT’s use of the Map Act constituted a taking.

Before Kirby, the DOT used the unique state law to freeze development in the path of proposed highway projects without paying the affected landowners, whose property values plummeted as they waited years for the state to buy their land. Many are still waiting.

Matthew Bryant, a Winston-Salem lawyer who spearheaded the Map Act litigation, said the DOT’s attempt to take Map Act properties through new, direct condemnation actions is a blatant attempt to ignore the Kirby decision.

“The owners were condemned back in 2008 [when the Map Act filings occurred] and want to be paid for it. You can only have one lawsuit over one piece of property. They can’t file the second lawsuit. That’s why they get dismissed,” he said. “And the DOT refuses to file counterclaims in the inverse actions.”

DOT spokesman Robert Broom has declined interview requests, citing a department policy against discussing pending litigation.

Despite Kirby and other adverse rulings against the DOT that followed, including the Court of Appeals’ decision in Jamestown Pender v. NCDOT, the state continues to refuse to pay property owners what they’re owed, according to Bryant.

Meanwhile, the DOT paid private law firms handling Map Act litigation on behalf of the state $2.4 million between April 2015 and January 2017, according to public records.

“The state spending money on private counsel rather than paying these property owners, most of whom are elderly, is kind of like Donald Trump withdrawing from the climate agreement,” said Anne Fisher, a partner at Henson Fuerst in Boone who also represents landowners in other ongoing Map Act suits.

“That’s my view on how completely counterproductive and bad for the citizenry it is for the state to put the money into fighting paying condemnees who have suffered for so many years rather than paying them,” she added. “I think it’s not a public service. And it’s the duty of the state to serve the public’s interest.”

The DOT’s filing of direct condemnation actions and its appeal of dismissal orders has further delayed the process of paying owners — Bryant said none of his clients’ properties have been appraised since the Kirby decision in 2015. He added that the DOT has appealed adverse rulings from several other judges.

So far, five judges in seven counties have granted the Map Act plaintiffs’ motions on the pleadings and have found that there has been a taking, according to Bryant. Only one judge, Senior Resident Superior Court Judge Thomas Davis of Rutherford County, declined to find during the judgment on the pleadings stage that there had been a taking in 28 Cleveland County cases.

But those cases have now been set for a hearing on the owners’ summary judgment motions asserting that a taking has occurred, Bryant said.

Follow Phillip Bantz on Twitter @NCLWBantz

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