Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Mitch Kokai.
Momentous votes in the N.C. General Assembly usually involve lengthy debate, ideological splits, and occasional frayed tempers.
But none of those elements factored into one of the most important votes in recent memory involving property rights. With little discussion and no dissent, lawmakers voted to scrap the state's three-decade-old Map Act.
Two months after the House voted 114-0 to repeal the act, the Senate followed suit, 41-0, on June 12. Floor debate in the Senate lasted less than two minutes. Just one senator spoke about the repeal. Her comments lasted roughly 25 seconds.
That outcome might not seem particularly shocking to those who have followed state legal proceedings. A unanimous N.C. Supreme Court
had ruled against the N.C. Department of Transportation in 2016 in a case focusing on the Map Act.
DOT had used the act to tie up property throughout the path of a proposed Winston-Salem bypass. Property owners who had seen their homes sit in legal limbo for more than a decade sued the department. They won a clear victory.
The department had argued that the Map Act reflected state government's police power. The Supreme Court disagreed. "The Map Act's indefinite restraint on fundamental property rights is squarely outside the scope of the police power,"
Justice Paul Newby wrote.
Government clearly has a police power. That power does not give DOT the right to use the Map Act to drive down highway construction costs. "Though the reduction in acquisition costs for highway development properties is a laudable public policy, economic savings are a far cry from the protections from injury contemplated under the police power,"
A proposed highway map had a clear negative impact for affected property owners. "By recording the corridor maps at issue here, which restricted plaintiffs' rights to improve, develop, and subdivide their property for an indefinite period of time, NCDOT effectuated a taking of fundamental property rights,"
Newby and his colleagues sent the case back to the trial court and ordered it to compensate property owners for the "takings." The lower court "must determine the value of the loss of these fundamental rights by calculating the value of the land before the corridor map was recorded and the value of the land afterward."
The high court offered no short cuts, saying the calculation should take into account "all pertinent factors, including the restriction on each plaintiff's fundamental rights."
The resulting price tag has been hefty. During House debate over this year's Map Act repeal bill, Rep. John Torbett, R-Gaston, told colleagues that DOT already had paid $230 million to resolve about one-third of the outstanding court cases. The total cost to taxpayers could top $600 million.
The 2016 N.C. Supreme Court ruling clearly pointed the way toward the Map Act's ultimate demise. The high-profile case had painted an unflattering picture of a big, bad DOT trampling on the rights of hundreds of small property owners.
But a unanimous vote to repeal the act doesn't end the story. DOT still needs to acquire property for future projects. One suspects that department leaders and legislators want to limit future property-rights problems. They especially want to avoid another unconstitutional state program that costs taxpayers a half-billion dollars in legal settlements.
The state will need to balance its need to acquire land with the "fundamental" property rights Newby described in 2016.
In a perfect world, DOT would find willing sellers throughout the path of any proposed road. In reality, the department is likely to have to engage in at least some "takings." They will rely on government's power of eminent domain.
As that process plays out, the Map Act case suggests some principles state road planners ought to keep in mind. First, realize that the value of a piece of property might decline as soon as it is designated officially for a road project. This is true with or without a Map Act. DOT ought to buy the land as early in the process as possible. If a quick purchase isn't possible, the department should pay some equitable price for limiting the property's use.
Second, both the department and the General Assembly should agree that government will not cut highway costs by pushing private property owners around. Lawmakers face a duty to taxpayers to spend their money wisely. No one wants to pay more than necessary to build a new road. But part of the necessary expense involves fair property acquisition. The state must make property owners whole when a project forces them out of their homes or off their land.
DOT appears to recognize the need for reform. The department has recommended that lawmakers replace the Map Act with a law restoring highway corridor maps. The new maps would not restrict uses of property within the corridor. Instead DOT would be notified of any proposed zoning, subdivision, or building-permit requests. Notification would give DOT a chance to try to buy the land before new development takes place.
"This seems like a reasonable way to move forward,"
said Jon Guze, John Locke Foundation director of legal studies. "DOT would gather helpful information for its land acquisition process, without threatening private property rights."
The Map Act didn't occupy much time on this year's legislative calendar. But its repeal should have a lasting impact on the state's future approach to private property rights.
Mitch Kokai is senior political analyst for the John Locke Foundation.