DOT again ordered to pay up for Map Act debts

The North Carolina Department of Transportation has lost yet another appeal in the Map Act litigation, which has dragged on for two decades and is costing taxpayers millions of dollars in legal fees.  

In delivering the latest defeat, the Court of Appeals criticized the DOT for arguing that decisions depriving the state of its right to sovereign immunity require immediate review and ordered the agency to comply with earlier rulings and begin paying property owners affected by the state’s use of the Map Act.

Judge Phil Berger Jr. wrote in the majority opinion that the case had “progressed well past the point where sovereign immunity could be asserted,” adding that the DOT’s argument “appears to be for no reason but either delay or distraction.”

The Nov. 21 decision, Beroth Oil Co. v. North Carolina Department of Transportation, marked the DOT’s fourth goose egg at a state appellate court.

Earlier rulings were handed down against the agency twice in the landmark Kirby cases, in which the state Supreme Court determined that Map Act filings constituted takings. Later, the

Court of Appeals held in Jamestown Pender that the DOT was liable for the Map Act filings of local transportation planning agencies.

But it was Kirby that turned things upside down for the DOT and spurred the agency to halt its practice of using the Map Act to file plans for roads with county registers of deeds and freeze development indefinitely on land within so-called protected corridors.

The state had used the Map Act since the late 1980s to fix or drive down land acquisition costs until it had gathered enough money for a particular road project, a process that could take many years while property owners were left with undesirable and undevelopable land.  

Despite their string of appellate wins, residents across the state are still waiting for the DOT to appraise their properties and begin cutting checks. And Berger wrote in the recent Beroth opinion that it’s time for the state to pay.

“While there will be a high monetary price, and conceivably a political price as well, once NCDOT pays just compensation for exercising its eminent domain power, perhaps this will force NCDOT to respect the rights of our individual citizens and not restrict their rights without the ability or willingness to pay,” Berger wrote.

Judge Chris Dillon contended in his dissent that the majority was wrong in holding that the court lacked appellate jurisdiction to consider the DOT’s appeal. But he said that he’d still side with the landowners.

An attorney for the owners, Matthew Bryant of Hendrick Bryant Nerhood Sanders & Otis in Winston-Salem, stressed that the DOT has paid law firms more than $3 million and counting to stubbornly fight Kirby and the Map Act rulings that followed.  

“The fact that the department elected to spend money on private attorneys, an exorbitant sum, and not start the appraisal process shows that the priorities of the state are clearly misplaced, as the Court of Appeals noted,” he said.  

Bryant added that the state’s sovereign immunity argument was an insult to all the property owners hurt by the Map Act. So far, his firm has more than 450 Map Act cases against the DOT. He is aware of more than 470 cases statewide. The Beroth decision directly affects 211 property owners in Forsyth and Guilford counties. But it could have ramifications for similarly situated owners throughout the state.  

“For the state of North Carolina to have avoided its obligation for over 20 years and do nothing about it but assert sovereign immunity highlights the motive of the DOT: Take advantage of our citizens wherever possible,” Bryant said.

The DOT’s general counsel, Chuck Watts, did not respond to emailed questions about the Beroth opinion before press time. But he told the Raleigh News & Observer that the decision was “sort of a non-ruling,” asserting that the court had failed to answer some key questions, including whether a Map Act filing is a full or partial taking.

Adding that the DOT was considering whether it would challenge the ruling or seek answers at the trial court, he said Beroth “probably prolongs the process. It doesn’t help shorten the process.”

In addition to asserting, repeatedly and unsuccessfully, that Map Act filings do not constitute takings, the DOT also has argued that taxpayers would be hurt if the state is forced to shell out hundreds of millions of dollars to pay for Map Act filings.

But Berger found that the DOT’s concern for taxpayers came too late.  

“While it is admirable to protect the public purse and spend it wisely, this argument is not helpful at this point in the litigation. This should have been a consideration before the highway corridor map was filed,” he wrote. “The constitutional right to just compensation when the state takes an individual’s property rights for public use will not be suspended on the mere fact that it may be expensive.”

The 36-page decision is Beroth Oil Co. v. North Carolina Department of Transportation (Lawyers Weekly No. 011-351-17). An opinion digest is available at nclawyersweekly.com.

Follow Phillip Bantz on Twitter @NCLWBantz