DOT withdraws Map Act appeals after latest setback

The North Carolina Department of Transportation has withdrawn its interlocutory appeals in the Map Act litigation in the wake of its fourth consecutive loss at a state appellate court.

“We believe that they have taken the Court of Appeals opinion to heart and will get on to paying just compensation to the plaintiffs,” said Matthew Bryant of Hendrick Bryant Nerhood Sanders & Otis in Winston-Salem.

The firm is handling more than 450 cases filed across the state against the DOT over its use of the Map Act, a now-defunct law that the state had used since the 1980s to freeze development on private land — without paying the owners — by filing road construction maps with local registers of deeds.  

The DOT’s first major loss in the Map Act litigation occurred last June, when the North Carolina Supreme Court affirmed a Court of Appeals decision in Kirby that the state’s use of the Map Act constituted a land taking.

In the recent opinion that Bryant referenced, Beroth Oil Co. v. North Carolina Department of Transportation, 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 Beroth that the litigation 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.”

Shortly after the opinion was published on Nov. 21, the DOT “began pulling all their identical appeals out of the court and accepting the Beroth opinion,” Bryant said.

But the DOT is still pursuing appeals in other Map Act actions in which final orders have been entered at the trial level and are not interlocutory, unlike Beroth, according to DOT spokesman Steve Abbott.

“A panel of the [Court of Appeals] ruled that the appeals from Forsyth County were from a non-appealable interlocutory order,” Abbott wrote in an email, referring to Beroth. “While we respectfully disagreed with that decision, and believe doing so will extend the time to conclude these matters, we determined that it would be more productive to proceed with the cases in the trial court, and if necessary, to appeal from the final judgments any cases where the taxpayers are aggrieved by the outcome.”

“So we have withdrawn appeals in the inverse cases that were characterized or would be characterized by the court as interlocutory,” he added.

Follow Phillip Bantz on Twitter @NCLWBantz