[T]he North Carolina Supreme Court has issued an opinion in an important case we’ve been following for a long time, Kirby v. North Carolina Dep’t of Transportation.
This is the case about the “Map Act,” a statute which designates private property for future highway use, and “restricted plaintiffs’ fundamental rights to improve, develop, and subdivide their property for an unlimited period of time….” The court concluded that “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain….”
The North Carolina Court of Appeals earlier held the Act was a taking, and this resulted in a lot of shouting and gnashing of teeth that making the DOT actually pay just compensation would crash the system and cost the state a lot of money, so we were not terribly surprised when the DOT sought review by the N.C. Supreme Court….
[W]e predicted there was a “good chance” the court would affirm, especially after the DOT’s counsel conceded that one of the express purposes of the Act was to keep the eventual acquisition price of the designated properties low. Undeveloped property, after all, is usually cheaper to take than developed land. But an indefinite development moratorium — especially when its express purpose is to depress the eventual acquisition price — has real takings problems as the North Carolina courts recognized.
The Supreme Court started by noting “[t]he fundamental right to property is as old as our state,” and citing Locke and Madison, “[f]rom the very beginnings of our republic we have jealously guarded against the governmental taking of property….” The Act’s restrictions on the owners’ use and development was a taking:
“Property” clearly includes the rights to improve, develop, and subdivide, which were severely and indefinitely restricted here by the Map Act.