The State's Domain, Part 2: North Carolina's Map Act
Eminent domain is one of the most powerful tools of government. It allows state and local governments to force the sale of private land for anything deemed of public use or benefit. In return, however, the state is required to pay just compensation.
North Carolina is one of 13 states that allow its Department of Transportation to effectively control private property that may be turned into a road. This means that just compensation may take years, or in some cases, decades. Part 2 of our series, The State's Domain, examines what's known as the Map Act.
To build or expand roads, rail lines or bridges, the DOT needs land. They can use eminent domain to force individuals to sell all or part of the land the state needs. But for big projects, like beltways around cities, the sheer amount of land needed, and the cost of acquiring that land, can bust the DOT’s budget. Thus, in 1987, the Map Act was born.
"It’s a law to allow DOT to establish maps of future road corridors," says Representative Rayne Brown, a Republican from Davidson County.
In essence, all the DOT has to do to mark a future road corridor is grab their official map, draw what looks like a thick black line along the route of where they think a road will be needed someday, and file that with a county registrar. And that they do, says Brown.
"Official maps have been used or are being used in at least 2 dozen projects statewide."
North Carolina’s Map Act is used to do one thing: Make buying the land claimed in eminent domain cases as cheap as possible for the DOT, the state and, therefore, taxpayers. And no one argues the Map Act is effective at doing just that. But that doesn’t make it good policy, Brown says, adding, "It is one of the most abusive, abusive bills on our books."
"The Map Act is a wonderful narcotic for the Department of Transportation," says Matthew Bryant, an attorney who represents land owners in a high-profile case. "It’s just a bad law that allows both our legislative branch and executive branch to act badly."
When the NCDOT draws that thick black line for a future road, what's officially called a "protected corridor," the rules for every piece of private property touched by that line change. Gone are the rights of property owners to build improvements on their land regardless of how their property is zoned. So is building an addition on your home, or developing a subdivision. All these restrictions make selling an affected property on the open market difficult. And all this is how the Map Act saves the state and the DOT money.
"The state is buying unimproved property or property that has not been upgraded such as a shopping mall or a gas station or a house for that matter," Bryant says, making it cheaper to buy the land through eminent domain when the DOT decides to build a road by artificially depressing the value of private property.
This was a concern for lawmakers who passed the Map Act in 1987, so they wrote in a timeframe to try to minimize the economic damages suffered by landowners. But their language is incomplete. Here’s an example:
(d) Within one year following the establishment of a transportation corridor official map or amendment, work shall begin on an environmental impact statement or preliminary engineering.
Note the law only states when an environmental impact statement must begin, but nothing more. Which leads to examples like the planned Southern Wake (County) Expressway.
"They (DOT) filed the maps in the 1996, '97 time period," Bryant says. "They have yet to finish the draft environmental study"
And it’s not just in Wake County. In Mecklenburg County, the first protected corridors for the I-485 outer loop were filed in 1989. The final segment of that road is due to be completed this June.
Some may wait for more than half a century for a road to be built.
That estimate comes from the Department of Transportation itself. After attending a public meeting on beltway and loop highway projects in 2010, the DOT's chief operating officer wrote a frank letter to a member of the public. Here's an excerpt (the full letter can be found here):
The DOT says it doesn’t keep a statewide tally of how many properties are affected by the Map Act, but estimates the number to be around 4,100.
Nick Tennyson, the chief deputy secretary of the NCDOT, also estimates, "if we had to buy every property affected by the Map Act today it would be over $600 million." That's what he said at a recent House Transportation Committee meeting to discuss a bill sponsored Representative Rayne Brown and eight others that would repeal the Map Act. She says the bill is needed because "the state cannot save money on the backs of a few thousand citizens."
At the meeting, Representative Nelson Dollar said he too thinks the Map Act needs changes, but he’s not sure how.
"We could say we’re not going to do anything to protect corridors, and people build in all these corridors, the overall cost of acquiring that land in the future is going to be far, far more," Dollar said. He worries that could make some road projects too expensive to build.
As for the DOT’s Tennyson, he couldn’t say much. "We’re not really in a position to comment very much on that particular statute," he told the committee, because of the Southern Wake Expressway case in which Matthew Bryant represents plaintiffs who sued the state.
The U.S. Constitution requires just compensation be paid to landowners when the state uses eminent domain to take their property. The DOT interprets that to be when the state actually condemns property and takes possession of the title. Bryant says the DOT won’t do until that it gets around to building a particular stretch of road.
The state's defense, says Bryant, is basically "so long as you can flush your toilets and cook breakfast in your house, sit down and be quiet, we’ll condemn you when we condemn you."
Bryant sued the DOT, claiming those restrictions meant his client’s properties had effectively been taken by the state years ago and the DOT had to pay up. Bryant lost at trial. But in February, an appellate court overturned that ruling. The DOT has now appealed the case to the North Carolina Supreme Court.