NO. 56PA14-2 TWENTY FIRST DISTRICT SUPREME COURT OF … · NO. 56PA14-2 TWENTY FIRST DISTRICT...

i

INDEX

TABLE OF CASES AND AUTHORITIES ................ iv

STATEMENT OF FACTS ............................. 1

A. NCDOT’S ROADWAY CORRIDOR OFFICIAL MAP AND

THE BELTWAY ................................ 1

1. The Recording and Restrictions of the

Map Act ................................. 2

2. The Purpose of the Map Act .............. 3

3. No Improvements Built; No Variances

Approved ................................ 5

4. Economic Activity Does Not Exist In The

Beltway ................................. 6

a. NCDOT Owns over 454 Beltway

Properties ......................... 6

b. De Minimus Sales / Market Activity . 7

5. NCDOT’s Timeline for Acquisition ......... 8

6. NCDOT’s Failure to Properly Perform the

Environmental Survey and the Injunction

“Myth” ................................... 9

B. NCDOT’S HARDSHIP PROGRAM .................. 10

1. NCDOT’s Administration of the Hardship

Program ................................ 10

2. Hardship Program Is Discretionary, To

A Single NCDOT Employee, Random In

Application With No Right To Appeal .... 10

3. NCDOT’s Makes Non-Negotiable Offers

to Owners .............................. 11

C. THE APPELLEES .............................. 12

1. Eugene and Martha Kirby ................ 12

2. Harris Triad Homes ..................... 12

3. Michael Hendrix ........................ 13

4. Engelkemier, Hutagalung, Maendl & Stept 14 5. James and Phyllis Nelson ............... 15

6. Republic Properties .................... 15

ARGUMENT ...................................... 16

ii

I. THE COURT OF APPEALS’ OPINION SHOULD

BE AFFIRMED AS IT CORRECTLY DETERMINED

THAT THE MAP ACT IS AN EXERCISE OF THE

STATE’S EMINENT DOMAIN POWER REQUIRING

JUST COMPENSATION TO BE PAID TO

APPELLEES ................................. 18

A. The Map Act Is Only Concerned With

Lower Future Acquisition Prices, Not

Public Health, Safety, Morals or

General Welfare ........................ 18

B. Court of Appeals Decision Is Consistent

With Beroth ............................ 22

C. NCDOT Relies On Cases That Concern

Public Health And Safety, Not

Situations Where The State

Intends To Purchase The Subject Properties For Public Use .............. 23

D. Protecting Property For A Future

Roadway Is Not A Police Power

Concerning“General Welfare” ............ 25

E. Appellees Different Uses of Their

Property Does Not Absolve NCDOT From

Taking of Property Rights Or Mitigate

The Taking ............................. 27

II. THE MAP ACT’S RESERVATION PERIOD

IS UNREASONABLE AS TO TIME, IS UNLIKE

OTHER STATES’ RESERVATION STATUTES,

AND SIMILAR LAWS HAVE BEEN FOUND TO BE

TAKINGS THROUGHOUT THE UNITED STATES ...... 30

A. The Map Act Restrictions Conflict

With North Carolina’s Own

Moratorium Statutes .................... 30

B. The Map Act’s Restrictions Are Far

Greater Than Other States’

Reservation Statutes ................... 31

C. Statutes Used to Control Future Acquisition Costs Have All Been

Determined to be Takings ............... 35

iii

III. NCDOT’S MAP CASES PRE-DATE THE MAP ACT AND ARE NOT FACTUALLY SIMILAR ............ 42

A. NCDOT Cases Deal With Mere Maps ........ 42 B. The Florida Cases and Batch Do Not

Have Similar Facts ..................... 44

IV. APPELLEES NEED NOT APPLY FOR BUILDING

PERMITS OR VARIANCES TO HAVE

STANDING TO ASSERT A TAKING .............. 46

V. THE COURT OF APPEALS PROPERLY REMANDED

THE CASES FOR TRIALS ON DAMAGES BECAUSE

NCDOT KNOWS THE BOUNDARIES OF ITS TAKING

AND THE INTEREST TAKEN IS FEE SIMPLE ..... 48

VI. THE MAP ACT IS UNCONSTITUTIONAL .......... 53

A. The Map Act Violates the Fifth

Amendment and Due Process .............. 53

B. Equal Protection under the Fourteenth

Amendment and the Hardship Program ..... 55

VII. AFFIRMING KIRBY WILL NOT CURTAIL NCDOT’S PREROGATIVE TO PLAN AND

PRIORITIZE ............................... 57

CONCLUSION .................................... 58

CERTIFICATE OF SERVICE ........................ 60

APPENDIX:

Project Impacts Winston-Salem

Northern Beltway ....................... App. 1

Public Hearing Brochure ................. App. 2

Jim Trodgon Letter to Owner (8/20/2010) . App. 4

Asst. Atty General Letter (3/3/2006) .... App. 6

Official Maps (eastern loop) ............ App. 7

Official Maps (western loop) ............ App.19

Right of Way Maps ....................... App.29

NCDOT offers to Appellees ............... App.35

NCDOT Purchases w/ Right of Way Maps .... App.38

Deeds to NCDOT .......................... App.48

NCDOT Consent Judgment .................. App.55

NCDOT Cross Appeal to Court of Appeals .. App.57

Saunders Letter (Ex 106) to NCDOT ....... App.58

iv

TABLE OF CASES AND AUTHORITIES

North Carolina Cases

Affordable Care, Inc. v. North Carolina

State Bd. of Dental Examiners, 153 N.C.App.

527, 571 S.E.2d 52 (2002) ...................... 4

A-S-P Associates v. Raleigh, 298 N.C.

207, 258 S.E.2d 444(1979) .................... 26

Beaufort County Bd. of Educ. v. Beaufort

County Bd. of Comm'rs, 363 N.C. 500, 681

S.E.2d 278(2009) .............................. 49

Beroth Oil v. NCDOT, 367 N.C. 333, 757

S.E.2d 466 (2014) ............................. 18

Blankenship v. Bartlett, 363 N.C. 518,

681 S.E.2d 759 (2009) ......................... 55

Browning v. Highway Comm’n, 263 N.C. 130

(1964) ................................ 42, 43, 44

Carolina Mills v. Catawba County Board of

Education, 27 N.C. App. 524,

219 S.E.2d 509, (1975)) ....................... 23

Corum v. University of North Carolina,

330 N.C. 761, 413 S.E.2d 276 (1992) ....... 54, 55

De Bruhl v. State Highway & Public Works

Com., 247 N.C. 671, 102 S.E.2d 229 (1958) ..... 53

Department of Transp. v. Rowe, 353 N.C.

671, 549 S.E.2d 203, (2001) ............... 18, 56

Drewry v. NCDOT, 168 N.C. App. 332, 607

S.E.2d 342(2005) .............................. 57

Durham v. Cotton Mills, 141 N.C. 615,

54 S.E. 453 (1906) ........................ 20, 21

Finch v. City of Durham, 325 N.C. 352, 384

S.E.2d 8 (1989) ........................... 23, 27

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v

Hildebrand v. S. Bell Tel. & Tel. Co.,

219 N.C. 402, 14 S.E.2d 252 (1941) ........ 18, 56

In re Application of Ellis, 277 N.C. 419,

178 S.E. 2d 77(1970) .......................... 18

Long v. City of Charlotte, 306 N.C.

187, 293 S.E.2d 101 (1982) ............ 18, 28, 54

Orange County v. NCDOT, 46 N.C. App.

350, 265 S.E.2d 890, (1980) ................. 48

Penn v. Carolina Virginia Coastal Corp.

231 N.C. 481 (1950) ....................... 42, 43

S. S. Kresge Co. v. Tomlinson, 275

N.C. 1, 165 S.E.2d 236 (1969) ................. 26

Shell Island Homeowners Ass’n, Inc. v.

Tomlinson, 134 N.C. App. 217, 517

S.E.2d 406 (1999) ............................. 47

Stanley v. Department of Conservation &

Dev., 284 N.C. 15,199 S.E.2d 641 (1973) ....... 26

State v. Jones, 305 N.C. 520,

290 S.E.2d 675 (1982) ......................... 26

State v. Warren, 252 N.C. 690,

114 S.E.2d 660 (1960) ......................... 20

Swan Beach Corolla, LLC v. County of

Currituck, 760 S.E.2d 302 (N.C. Ct. App.

2014) ......................................... 47

Treants Enterprises, Inc. v. Onslow

Cnty., 83 N.C. App. 345,352 S.E.2d

365 (1986) ................................ 21, 24

Utilities Commission v. Southern Bell Tel.

& Tel. Co., 93 N.C. App. 260, 377 S.E.2d

772 (1989) .................................... 47

Weeks v. N. Carolina Dep't of Natural

Res. & Cmty. Dev., 97 N.C. App. 215,

388 S.E.2d 228 (1990) ..................... 25, 45

vi

Federal Cases - United States Supreme Court

Armstrong v. United States, 364 U.S.

40 (1960) ................................. 17, 54

Berman v. Parker, 348 U.S. 26 (1954) .......... 26

PruneYard Shopping Center v. Robins,

447 U.S. 74, 83 (1980) ........................ 54

Circuit and District Courts

BFI Waste Sys. of N. Am. v. Dekalb Cnty.,

Georgia, 303 F. Supp. 2d 1335

(N.D. Ga. 2004) ............................... 21

N.C. Alliance for Transp. Reform, Inc.

v. U.S. Dept. of Transp., 151 F. Supp.

2d 661 (M.D.N.C. 2001) ......................... 9

N. C. Alliance v. U.S. Dept. of Trans.,

713 F. Supp. 2d 491 (M.D.N.C. 2010) ............ 9

Smoke Rise, Inc. v. Washington Suburban

San. Comm'n, 400 F. Supp. 1369

(D.Md. 1975) .................................. 22

State Court Cases

Arkansas State Highway Com. v. Anderson,

43 S.W.2d 356(Ark. 1931) ...................... 42

Best v. Zoning Bd. of Adjustment,

141 A.2d 606 (Pa. 1958) ....................... 26

City of Des Moines v. Gray Businesses,

LLC, 124 P.3d 324 (Wash. Ct. App. 2005) ....... 22

Commonwealth v. Alger,

61 Mass. 53, 7 Cush. 53 (Ma. 1851) ............ 21

vii

Edwards v. Bruorton,

69 N.E. 328(Mass. 1904) ....................... 42

Eggleston v. Pierce County,

64 P.3d 618 (Wash. 2003) ...................... 22

Forster v. Scott,

32 N.E. 976 (N.Y. 1893) ................... 35, 36

Galt v. Cook Cnty.,

91 N.E.2d 395, 399 (Ill. 1950) ................ 41

Ghaster Properties, Inc. v. Preston,

200 N.E.2d 328 (Ohio 1964) .................... 26

Gordon v. City of Warren Urban Renewal

Comm'n, 185 N.W.2d 61 (Mich. Ct. App.

1971), aff'd, 199 N.W.2d 465 .................. 39

Graham v. Estuary Properties, Inc.,

399 So.2d 1374, 1380 (Fla. 1981) .......... 21, 41

Grosso v. Board of Adjustment of Millburn

Tp. in Essex County, 61 A.2d 167

(N.J. 1948) ................................... 40

Henle v. City of Euclid,

125 N.E.2d 355(Ohio Ct. App. 1954) ............ 40

Howard County v. JJM, Inc.,

482 A.2d 908 (Md. 1984) ....................... 38

Independence v. Richards,

666 S.W.2d 1 (Mo. Ct. App. 1983) .............. 27

Jefferson Street Ventures, LLC v. City of

Indio 236 Cal.App.4th 1175 (2015) ......... 35, 38

Jensen v. New York,

42 N.Y.2d 1079 (N.Y. 1977) .................... 36

Joint Ventures, Inc. v. Dept. of

Transportation, 563 So.2d 622

(Fla. 1990) ............................... 35, 43

Keystone Associates v. Moerdler,

19 N.Y.2d 78, 224 N.E.2d 700 (1966) ........... 36

viii

Kroner v. Portland,

240 P. 536(Or. 1925) .......................... 27

Lackman v. Hall,

364 A.2d 1244 (Del. Ch Ct 1976) ........... 39, 43

Lomarch Corp. v. Mayor & Common

Council of City Of Englewood,

237 A.2d 881 (N.J. 1968) ...................... 41

Manufactured Hous. Communities of Washington

v. State, 13 P.3d 183 (Wash. 2000) ............ 18

Matter of Recycling & Salvage Corp.,

586 A.2d 1300 (N.J. App. Div. 1991) ........... 22

Miller v. City of Beaver Falls,

82 A.2d 34 (Pa. 1951) ......................... 37

Petersen v. City of Decorah,

259 N.W.2d 553, (Iowa Ct. App. 1977) .......... 41

Roer Constr. Corp. v. New Rochelle,

136 N.Y.S.2d 414 (N.Y. Sup. Ct. 1954) ......... 36

San Antonio River Auth. v. Garrett

Bros., 528 S.W.2d 266

(Tex. Civ. App. 1975) ................. 24, 40, 58

State ex rel. Carpenter v. St. Louis,

2 S.W.2d 713 (Mo. 1928) ....................... 27

State ex rel. Willey v. Griggs,

358 P.2d 174 (Ariz. 1960) ..................... 37

Tighe v. Osborne,

131 A. 801 (Md. 1925) ......................... 26

The Maryland-National Capital Park and

Planning Commission v. George A.

Chadwick, 405 A.2d 241 (Md. Ct. App. 1979) .... 38

Ventures In Property I v. The City Of

Wichita, 594 P.2d 671 (Kan. 1979) ............ 40

ix

North Carolina Statutes and Regulations

N. C. Const. Art. IV, § 12(1) ................. 48

N.C.G.S. §136-18 .............................. 25

N.C.G.S. § 136-19 ............................. 49

N.C.G.S. § 136 – 44.50 ........................ 2

N.C.G.S. § 136 – 44.51 ..................... 2, 6

N.C.G.S. § 136 - 44.53 ........................ 10

N.C.G.S. § 136 – 111 ...................... passim

N.C.G.S. § 153A-340(h) ........................ 30

N.C.G.S. § 160A-381(e) ....................... 30

23 C.F.R. § 710.503 ........................... 10

OTHER JURISDICTIONS STATUTES

Florida:

Fla. Stat. Ann. § 337.243 ................ 31

§ 337.2735 .............................. 31

Illinois:

605 ILCS § 5/4-510 ....................... 31

Indiana:

Ind. Code Ann. § 8-23-5-9 ................ 32

Iowa:

I.C.A. § 306.19 .......................... 33

Missouri:

R.S. Mo. §§ 226.955, 226.961 & 226.967 .... 33

Nebraska:

Neb. Rev. St. § 39-1311.03 ............... 33

New Hampshire:

N.H. Rev. Stat. § 230-A:1 § 230-A:9 ...... 33

New Jersey:

N.J.S.A. § 27:7-67 ...................... 33

x

Ohio:

Ohio R.C. § 5511.01 ...................... 34

South Carolina:

S.C. Stat. § 6-7-1270 .................... 33

Tennessee:

Tenn. Code Ann. § 54-18-208 et seq ....... 34

Utah:

Utah Code Ann. § 72-5-405 ................ 34

Black's Law Dictionary (8th Ed. Rev.) ......... 26

STATEMENT OF FACTS

A. NCDOT’S ROADWAY CORRIDOR OFFICIAL MAP AND THE BELTWAY.

The Winston-Salem Northern Beltway is a twenty-five year

old NCDOT project that when someday completed will be a thirty-

four (34) mile loop around Winston-Salem (the “Beltway”). R.p

17-18, Ex. 3. p. 24.1 The Beltway has been planned since 1965,

and shown on planning maps since at least 1987 with the route

determined by the early 1990s. Joyner Aff. Ex A. p. 2745; K.

Lasley Aff. p. 2460-62. NCDOT has published numerous

construction start dates: 1994, 2006, 2008, 2011, 2012. Id., Ex.

72-79, p. 2180-2233. Each of these announced project start

dates passed without construction.2 The Beltway covers 2,593

acres impacting no fewer than 728 residences, 38 businesses, and

five churches. Ex. 76 p. 2206; App. p. 1. Detailed Right of Way

maps are published and available to the public on the internet.

Exs. 45-46 p. 1525 (e.g. www.ncdot.gov/projects/wsnb/download/

maps/EasternSection1.pdf; www.ncdot.gov/projects/wsnb/download/

maps/ WesternSection4.pdf.)

1 References to an Exhibit and page (“Ex. p.#”) are to Appellees Rule 9(d)

Exhibits Books 1-4. Reference to Affidavits and page (“Aff. P.#”) are to

Appellees’ Rule 9(d) affidavits in Book 5 & 6. Reference to “Depo.” are to

the Rule 9(c) transcripts. 2 The four mile segment U-2579B in Kernersville had acquisitions authorized in

2013 and 2014. No other sections have start dates.

2

1. The Recording and Restrictions of the Map Act.

N.C. Gen. Stat. § 136-44.50 et. seq. (the “Map Act”)

authorizes NCDOT to file official roadway maps listing

properties in a proposed roadway. This map creates a protected

corridor. R. p. 17-19. The map is filed with the Register of

Deeds, cross-indexed, and depicted on tax maps. N.C. Gen. Stat.

§ 136-44.50(b)(3)&(4); Ex. 4,4A, 5 and 6. The filed map never

expires and the Map Act mandates no required action by NCDOT.

Property owners in the protected corridor are prohibited from

obtaining building permits or sub-dividing their property for

three years after application. N.C. Gen. Stat. § 136-44.51.

Three years after application, a permit may be issued; however,

NCDOT has no obligation to purchase or condemn and the

restrictions will remain upon all other properties in the

protected corridor.

On 6 October 1997, NCDOT recorded the Roadway Corridor

Official Map for R-2247 listing 578 parcels (the “Western

Loop”). Ex. 5 p. 176-219. On 26 November 2008, NCDOT recorded

the Official Map for Project U-2579 (the “Eastern Loop”) listing

1,929 parcels. Ex.4-4A p. 25-175 Both documents state:

The Official Map has been prepared for the

purpose of setting forth the location of

portions of the proposed Western (Eastern)

Loop. Any property included in the Roadway

Corridor shown on the Official Map is

subject to restrictions on issuance of

building permits and subdivision...” Id.

3

2. The Purpose of the Map Act.

NCDOT testimony and documents confirm that the Map Act’s

purpose is to restrict owners’ right to develop or improve

property so that NCDOT’s future acquisition costs are lower. In

official literature distributed to owners in August 2008, NCDOT

explained the purpose of the Map Act:

TRANSPORTATION CORRIDOR OFFICIAL MAP ACT

.... Therefore, planning done now can reduce

confusion, disruption and certainly

expenditures in the future. The use of the

Transportation Corridor Official Map Act

prevents additional development in an area

set aside for a future roadway. When

construction of the roadway takes place,

fewer buildings have to be purchased; fewer

homes and families have to be disrupted,

therefore reducing the cost of the roadway

substantially.

The law does not allow building permits to be

issued or properties subdivided within the

boundaries of the corridor for a period of

three years after the application for the

permit is submitted. This is applied to the

properties on an individual basis. (emphasis

added)

Depo. Ex. 72 p. 2186-2187, App. p. 2-3.

NCDOT published a document entitled “Protected Corridor:

What That Really Means To You” stating that:

“it is highly unlikely that property owners will

be allowed to do things that will increase the

cost of building the road (by dramatically

increasing the cost of buying the property)”;

4

“How long can a property be in the ‘protected

corridor’: For as long as it takes for North

Carolina to get enough money to build the road.”

“Why: This protection is designed to protect

North Carolina taxpayers from excessive increases

in expense when the State starts to buy property

to build the road.”

“Sometimes, a potential route becomes a

‘protected corridor’ because the area is growing

so quickly it is important to limit new buildings

to help save taxpayers money” and

“The following is a list of things that are

typically NOT approved: subdividing property to

build more houses, add square footage to a

building, develop land.” R. pp. 19-20. [Emphasis

in original]

James Trogdon (NCDOT Chief of Operations) testified:

Q. (Mr. Bryant)...is this a true statement:

The protected corridor is designed to save the

State of North Carolina money when it

ultimately acquires the property?

A. (Trogdon) I would say that's -- I mean,

certainly, one of the objections (sic) is to

limit future development within the corridor

to reduce the impact, so that would save

money. But the number one priority would be

to reduce the development. (emphasis added)

Q. Which saves the state money?

A. And in the end would save the state – the

taxpayers' funds in the end. (Trogdon depo.

p. 56 lines 14-25).

See also Trogdon depo. pp. 7, 58; V. Pridemore depo. pp. 77-80

(Right of way manager; depo of 23 March 2012). Calvin Leggett’s

5

affidavit confirms that the Map Act is used to control the

State’s future acquisition costs at the time of eventual

condemnation by preventing owners’ free use of their land.

Leggett Aff. p. 2806-2809 ¶¶ 8-13.

3. No Improvements Built; No Variances Approved.

None of the Appellees have applied for a building permit or

variance. Owners are expressly told not to apply for building

permits. R. p. 19. On 29 July 2010 NCDOT’s James Trogdon told

owners they would not be permitted to make improvements or

subdivide their property and no funds existed to buy property

for ten years. Affidavits of Clapp ¶8 p. 2420, Reynolds ¶11 p.

2523, Hriniak ¶16 p. 2555, Smith ¶8 p. 2494. NCDOT testified it

will not allow variances that increase its acquisition costs. M.

Stanley depo. pp. 31-36. NCDOT’s Mike Stanley could not recall

any variance or permit that had been allowed that would increase

NCDOT’s acquisition costs. Id. p. 35-36. He knows of no

appeals for variance denials. Id. p. 33. Since 2005, he has

had 25 variance requests in all his protected corridors and none

was for improvements inside the boundaries of the corridors. Id.

NCDOT’s assertion that 184 improvements were permitted in

the Beltway in its footnote 4 is inaccurate. NCDOT produces no

photographs of any of these supposed 184 Beltway improvements.

No Owner has applied for a building permit since the maps were

filed. Rule 9(d) pp. 2624-108 ¶9. NCDOT answered the specific

6

interrogatory on permit applications stating that no permit

application has been forwarded to NCDOT as required by N.C. Gen.

Stat. § 136-44.51 (Secretary... shall be notified within 10 days

of all requests for building permits or subdivision approval

within the transportation corridor.) Id. When deposed, NCDOT

was unaware of building permits being issued or any improvements

being built or subdivisions in the Beltway. Ivey depo. pp. 67-70

87; Hatton depo. p. 54. NCDOT knows of only two notable

variances being approved, one for a shed and another for

enclosing a garage. Ivey depo. pp. 67-70.

NCDOT relies on a table provided by Forsyth County

Inspections with the permits that are coded as “Beltway.” When

examined these permits are not for structures in the Beltway;

they are for sign permits, 74 demolition permits and upfits.

Aff. Robertson p. 2557. The table confirms NCDOT’s testimony

that nothing gets built.

4. Economic Activity Does Not Exist In The Beltway.

a. NCDOT Owns Over 454 Beltway Properties.

NCDOT began purchasing Beltway property in 1996 and has so

far purchased (as of late 2012) over 454 properties under its

early acquisition hardship program. Exs. 7&9, pp. 221-231, 253-

254; Pridemore depo. p. 66 ln 7, Ex. 23 p. 628 ¶15; Yancy depo.

p. 28 ln 21. NCDOT nets over $700,000 annually on the renting

of the homes it owns in the Beltway. Ex. 31 p. 1013. Exhibit 7

7

lists NCDOT properties. NCDOT has been buying property in the

Western Loop since 1996 and Eastern Loop since 2006. Since

Beroth was filed in September 2010, NCDOT has purchased about 75

more properties. Ex. 25 pp. 676-874.3

Exhibit 9 illustrates that NCDOT is present in all parts of

the Beltway (NCDOT parcels in red). Ex.9 pp. 253-254. The

Beltway is full of “NCDOT no trespassing” signs, torn down

homes, shoddy properties, and vandalism. Exs. 17-21, 44. pp.

500-604, 1519-1525; Pegram Aff. p. 2503-2521; Hatton depo. pp.

185-186 (NCDOT acknowledges increased vandalism); Barrett Aff.

p. 2410 ¶ 12, Whitaker Aff. p. 2615 ¶9-10.

William Saunder’s handwritten letter to NCDOT in August

2008 begging to be bought expresses the unease, insecurity and

discomfort felt by owners in NCDOT neighborhoods. Ex. 106, App.

p. 58. (Oak Tree is the subdivision of Appellees Maendl et al).

b. De Minimus Sales / Market Activity.

Since the maps were filed, there have been 16,162 qualified

sales within a one-mile radius along the Beltway. Joyce Aff. p.

2591-2592. So, a market does exist near the Beltway.4

In contrast, there is no market for property actually in

the Beltway. NCDOT hired McCracken & Associates to examine the

market for Beltway properties. McCracken Depo. pp. 15-16. After

3 NCDOT has continued to purchase Beltway properties since the summary

judgment hearing in February 2013. 4 These figures are as of the summary judgment hearing in February 2013.

8

a yearlong effort, McCracken found thirty-nine qualified Beltway

sales5; however, these sales are only slightly in the Beltway or

not actually in the Beltway at all. Id. pp. 13, 29, 60, and Rule

9(d) pp. 2624-42 to 2624-93 (green=Beltway). Only nine sales

are actually in the Beltway and of those, only five are possibly

qualified sales (several owners purchased at foreclosure, were

uninformed of the Beltway, or were renting the houses before

buying). Rule 9(d) pp. 2624-42 to 2624-93. NCDOT’s McCracken

study confirmed there is no market for unimproved Beltway land.

McCracken Depo. pp. 18-19.

5. NCDOT’s Timeline For Acquisition.

NCDOT has given numerous dates for the beginning of

property acquisition and now has no date. Lasley Aff., Exs. 72

to 79 pp. 2180-2234, Ivey depo. pp. 70-83. NCDOT cannot give a

date acquisitions may commence. Ivey depo pp. 70-83. NCDOT’s

James Trogdon warned owners in August 2010 that “[NCDOT] will be

constructing urban loops in our state for at least 60 years. I do

not believe...living within a protected corridor for 60 years or

greater is desirable.” Rule 9(d)pp. 2624-1 to 2624-2(App.pp.4-5).

5 A qualified sale is an arm’s length transaction, exposed to the market, no

duress and informed buyer. Foreclosure sales, inter-family sales, and

uninformed buyers are not qualified sales. McCracken p. 16-18.

9

6. NCDOT’s Failure To Properly Perform The

Environmental Survey And The “Injunction” Myth.

In its footnote 3, NCDOT obliquely references a 1999

injunction regarding the Beltway. This “injunction” is not pled

as a defense in its answers. More importantly, NCDOT’s Drew

Joyner affidavit states that that the case ended not with an

injunction but with a “settlement.” Joyner Aff. Ex. A p. 2746

(“June 1999 Order of Dismissal...specifying terms of

settlement…”). During this settlement the map’s restrictions

stayed in place and NCDOT continued purchasing Beltway land. Ex.

7. The former U.S. Attorney for the Middle District of North

Carolina testified that the Beltway was stopped because federal

funds were curtailed due to non-conformity in the environmental

study caused by the agencies’ improper actions and NCDOT

negotiated and agreed to the settlement. Holton Aff. pp. 2601-

2609; See N.C. Alliance for Transp. Reform, Inc. v. U.S. Dept.

of Transp., 151 F. Supp. 2d 661 (M.D.N.C. 2001) (agencies acted

in bad faith approving ROD in one day); N. C. Alliance, 713 F.

Supp. 2d 491 (M.D.N.C. 2010). This issue is not before the

court as it is not raised in the pleadings nor asserted on

appeal.

10

B. NCDOT’S HARDSHIP PROGRAM.

1. NCDOT’s Administration Of The Hardship Program.

The Legislature provided for advance acquisitions of

property in protected corridors. N.C. Gen. Stat. § 136-44.53.

NCDOT’s 454+ Beltway acquisitions have been almost exclusively

under the “Advanced Acquisition Due to Hardship” program

(“Hardship Program”). Ex. 8 p. 240. The Hardship Program is

administered under 23 CFR § 710.503(c). NCDOT must concur with

the owner’s submissions that there is a health, safety or

financial reason that poses an undue hardship and the property

is unmarketable. Ex. 8 pp. 241, 251. In acquiring these 454+

properties, NCDOT has determined that the design for the project

is sufficiently complete to determine that the property is

needed for the proposed right of way. 23 CFR § 710.503(c)(2).

Hundreds of brokers’ letters submitted to NCDOT confirm that the

Beltway renders property unmarketable. Ex. 59 pp. 1742-2004.

2. Hardship Program Is Discretionary To A

Single NCDOT Employee, Random In Application

With No Right To Appeal.

The Hardship Program is a discretionary, case-by-case

program with approval or denial being made solely by the Right

of Way Manager. Ex. 100 p. 2391 ¶ 14-16; Joines depo. pp. 22-23.

No appeal exists for owners denied Hardship; NCDOT’s decision is

final. Joines depo. p. 29. Some criteria for Hardship are

11

unwritten. Pridemore depo. p. 82. Businesses do not typically

qualify for Hardship. Pridemore depo. pp. 71-73. However, in

2010 and 2011, NCDOT paid $1.6 million to buy a church and $1.2

million for a junkyard. Ex. 25, pp. 684, 783. The church needed

to expand to minister to its congregation. Ex. 14, p. 396-397.

NCDOT’s reason for buying the junkyard is unexplained. Reynolds

Aff. p. 2524 ¶ 13-17.

3. NCDOT Makes Non-Negotiable Offers to Owners.

If Hardship is approved, NCDOT informs owners that price is

not negotiable and that if agreement on price is not reached,

NCDOT will cease discussions with the Owner and return when

acquisition is programmed (which is an unknown date). Ex. 8 p.

253; Barr depo. pp. 30-33; Williams depo. pp. 8-11, Lambert

depo. p. 100, Affs. Bowen ¶10-14, Barrett ¶17-22, Reynolds ¶20-

24, Hendrix ¶5-11, Hriniak ¶11-15. Owners have little option but

to capitulate to NCDOT’s offers. Appellee Michael Hendrix (he

died on 15 November 2013 at age 71) had a $1.2mm contract for 8

of his 24 acres in 1999, which fell through due to the Beltway.

In January 2007, NCDOT offered a hardship purchase for $530,700

for all 24 acres. Hendrix Aff. p. 2431. Mr. Hendrix rejected

the offer. He reapplied for hardship in July 2012 advising

NCDOT of his two strokes. Ex. 48 p. 1568. It went unanswered.

In contrast to Hardship sellers, the very few Beltway

owners actually condemned (way back in 1998) received an

12

additional 33% to 150% over NCDOT’s deposit. Ex. 24 pp. 635-675.

The differentials between deposit and settlement highlight the

different bargain owners’ receive with hardship acquisitions and

why NCDOT refuses to condemn properties.

C. THE APPELLEES.

1. Eugene & Martha Kirby (Kirby Depo. pp. 8,17-18,22,47,91)

NCDOT admits that the Kirby’s property is in the Beltway

and subject to the Map Act. R. p. 179 & 193 ¶¶13-15. The

official map listing the property and showing its location is

attached as Appendix pages 11, 17-18, 29.

Mr. Kirby is an 82-year-old former real estate developer;

his wife is 85. He owns 41 acres in the Eastern Loop with 1000

feet of road frontage leased to a kennel for $21,000 per year.

In the late 1990s, Kirby was told by Forsyth County planning

staff that he could not get a permit because his property was

located in the Beltway. He did not want to spend $30,000 on

plans if he could not obtain a permit.

2. Harris Triad Homes (Ex. 49,50&103; Harris Aff. p.

2422)

NCDOT admits that the Harris Triad property is in the

Beltway and subject to the Map Act. R. p. 207 ¶ 15-16. See

Appendix pages 20, 24, 27, 30. Harris Triad, owned by Ben

Harris (63 years old), has five rental properties in the Western

13

Loop on McGregor Park Drive and Bluffridge Trail.6 In October

1991, Mr. Harris was issued building permits that noted these

properties were in the Beltway. Aff. ¶7. He was unable to sell

the houses that are presently rental homes. Harris competes

against NCDOT which rents fifteen homes nearby and already owns

most of the properties nearby. Ex. 7.

Harris Triad made two requests for Hardship purchase. A

2004 Hardship request was approved, but NCDOT did not make an

offer. Ex. 104 p. 2404; Tornow Aff. p. 2489. Harris re-applied

in 2010 providing his tax returns to show financial need. Ex 50.

This request was also approved by NCDOT (p. 1578) but then

disapproved.

3. Michael Hendrix (Ex. 48; Hendrix Aff. p. 2431-2440).

NCDOT admits that the Hendrix property is in the Beltway.

R. p. 223 ¶ 18-19. See Appendix page 7, 12, 33. Mr. Hendrix

passed away on 15 November 2013 from a stroke. His estate owns

24 acres at Old Hollow and Germanton Road in the Eastern Loop.

The property has been “at the mercy of DOT” since 1997. Id. p.

2439. In January 1998, eight acres were under contract for

$1,230,000 but the Beltway killed the deal. Hendrix Aff. ¶5. On

26 January 2007, NCDOT offered a non-negotiable $530,700 for the

6 Mr. Harris’ ex-wife is plaintiff N&G Properties in Beroth.

14

entire 24 acres. Id., App. p. 35. In July 2012, he re-requested

hardship because of his health. NCDOT never replied.

4. Engelkemier, Hutagalung, Maendl & Stept.

NCDOT admits that the Engelkemier, Hutagalung, Maendl, and

Stept property is in the Beltway. R. p. 239 ¶ 19, p. 255 ¶ 19,

271 ¶ 19 and p. 287 ¶19. Engelkemier, Hutagalung, Maendl, and

Stept are California residents who purchased investment rental

homes in the Oak Hill subdivision in the Eastern Loop in 2005

understanding that the Beltway was to come through the

subdivision and that NCDOT would buy their properties. Maendl

depo. pp. 15-20. NCDOT ridicules these Appellees for their

purchases. However, ridicule was absent for a similar local

rental investor Chris Blocker, who built two rental houses in

the same Oak Hill subdivision knowing about the Beltway, because

NCDOT purchased his properties. Ex. 29 pp. 897-921; App. p. 46-

47. Id. p. 907; Yancey depo. p. 85.

NCDOT began acquiring homes in 2005 through Hardship. Ex.

15 p. 489 (NCDOT letter); App. 6. NCDOT owns at least 94 homes

in the vicinity, 84 acres immediately south. Ex. 7. NCDOT rents

21 houses in Oak Hill. Ex. 31 (Acorn, Oak Tree, Fiddlers’ Way).

Engelkemier attempted to refinance his property but was denied

because it was “unacceptable” as collateral as it was in the

Beltway. Rule 9(d) pp. 2624-37.

15

5. James and Phyllis Nelson (J. Nelson depo. pp. 5,

27, 37-39, 53, 78, 93-101).

NCDOT admits the Nelson property is in the Beltway. R. p.

304 ¶18-19; Ex. 5 p 182, App. p. 25, 28, 31. The Nelsons

residence is on 2.43 acres with an additional 5.43 acres

adjacent intended for building homes for retirement income. Mr.

Nelson was told not to improve his property, and he cannot

develop his land when there is no market in the Beltway. They

forego home repairs. NCDOT owns 51 of the 79 beltway properties

south of Nelson. R.p. 360. NCDOT has had traverse stakes in the

Nelson’s property for fifteen years. NCDOT has torn down homes

near the Nelsons, burned one down, and not maintained others.

Lawson Aff. p. 2526.

6. Republic Properties (Rule 9(d) pp. 2624-40 – 2624-41).

NCDOT admits that the Republic property is in the Beltway.

R. p. 320 ¶ 17-18; Ex. 4 p. 98, App. p. 8, 14-16, 32. Republic

owns 190 acres in the Eastern Loop. NCDOT in its brief states

that only 39 acres is impacted by the Beltway. However, on 9

March 2006 (30 months before the Protected Corridor was filed),

NCDOT began efforts for acquisition of Republic’s property after

it learned of Republic’s subdivision plans. In February 2007,

NCDOT made a written offer to Republic for 183.93 acres in fee

simple. Republic rejected the offer. App. p. 36.

16

ARGUMENT

The State of North Carolina has placed the burden of the

Winston-Salem Northern Beltway solely upon several hundred

property owners for nearly twenty years and counting. NCDOT has

frozen their properties from development indefinitely and

decimated the market for their properties. The General Assembly

has avoided the politically unpleasant task of raising money

from all taxpayers necessary to pay for the properties of these

unfortunate few. This is the result of the Map Act which

permits, indefinitely, the protection of the public purse at the

cost of depriving some North Carolina citizens of the their full

property rights. NCDOT’s practices are now institutionalized and

our Legislature indifferent. NCDOT contends that it can subject

Appellees to the Map Act’s restrictions and mark the property

for condemnation for perhaps sixty (60) more years without

liability because the owners can use their property as they have

before. This is the “you can still make breakfast in your

kitchen and flush your toilets” defense.

All NCDOT offers Appellees and the owners in return is

either the discriminatory and discretionary Hardship Program

with its “take it or leave it” prices or untold years of more

waiting on NCDOT. Mr. Hendrix, like so many others, could

17

neither wait out NCDOT nor depend upon its discretion. Time is

an adversary for owners but an ally to NCDOT.

Fortunately, NCDOT’s priorities, discretion, and practices

are governed by our State and Federal constitutions. Appellees’

have a fundamental right to receive just compensation for the

State’s taking their right to freely use and dispose of their

property. If the State wants to curtail development in future

roadways to save money, it has the power to achieve that end:

condemn the property through eminent domain. NCDOT avoids

condemnation because it requires owners’ be paid just

compensation. NCDOT has an appetite for buying Beltway property

and wants to buy Appellees’ properties. The irony here is that

NCDOT must purchase these properties but has an aversion to

paying just compensation to all affected. See, Exhibit 9

illustrating NCDOT’s purchases both in numbers and acreage (red

= NCDOT owned parcels). Some win and many lose in the Beltway

roulette of acquisitions; a game where NCDOT sets all the rules.

The Court of Appeals’ decision means that the Appellees

will no longer sacrifice their property rights for the public’s

benefit without just compensation. The decision properly places

the burden of the Beltway on the public as the Fifth Amendment

requires. Armstrong v. United States, 364 U.S. 40, 49 (1960).

18

I. THE COURT OF APPEALS’ OPINION SHOULD BE AFFIRMED AS IT

CORRECTLY DETERMINED THAT THE MAP ACT IS AN EXERCISE

OF THE STATE’S EMINEMT DOMAIN POWER REQUIRING JUST

COMPENSATION TO BE PAID TO APPELLEES.

A. The Map Act Is Only Concerned With Lower

Future Acquisition Prices, Not Public

Health, Safety, Morals or General Welfare.

The Appellees’ have a fundamental right to just

compensation and to freely use, dispose, and enjoy their

property. Hildebrand v. S. Bell Tel. & Tel. Co., 219 N.C. 402,

14 S.E.2d 252, 256 (1941) (“property” extends to every aspect of

right and interest capable of being enjoyed; property means land

owners right to possess, use, enjoy, and dispose of it);

Department of Transp. v. Rowe, 353 N.C. 671, 675, 549 S.E.2d

203, 207 (2001); Long v. City of Charlotte, 306 N.C. 187, 293

S.E.2d 101 (1982); Manufactured Hous. Communities of Washington

v. State, 13 P.3d 183, 191 (Wash. 2000)(anything destroying

one’s unrestricted right to use, enjoy, or dispose of property,

to any extent, destroys the property). The Legislature may not

“arbitrarily or capriciously restrict an owner's right to use

his property for a lawful purpose." In re Application of Ellis,

277 N.C. 419, 424, 178 S.E. 2d 77, 80 (1970).

This Court recognized in Beroth that there may be one test

that applies to all owners. Beroth Oil v. NCDOT, 367 N.C. 333,

344, 757 S.E.2d 466, 475 (2014)(“it may be most appropriate to

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1982132187&pubNum=711&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_711_107

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1982132187&pubNum=711&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_711_107

19

utilize the same test to determine the takings issue, depending

upon the facts and circumstances of the subject property”). With

that statement before it, and with the benefit of a voluminous

record not available to this Court in Beroth, the Court of

Appeals undertook the required meticulous examination of NCDOT’s

testimony, sworn statements, publications, actions, briefing7 and

the resulting impact on each property as instructed by this

Court. The Court of Appeals found NCDOT’s repeated

justification for the Map Act was to control the State’s future

acquisition costs for State roadways so that the State obtains

lower prices when it ultimately condemns the properties. The

Court of Appeals found that the Legislature’s own expression was

that the law was for cost control: “the enabling legislation was

‘an act to control the cost of acquiring rights-of-way for the

State's highway system.’" 1987 N.C. Sess. Laws 1520, 1520, 1538-

42, ch. 747, § 19. This cost control concern is broadcast to

owners at NCDOT’s earliest informational meetings and by NCDOT’s

Jim Trogdon in 2010 just before Beroth was filed. Ex. 72. App.

p. 2-3; Ex. 71; Rule 9(d) pp. 2624-1 to 2624-2; Affidavits of

Clapp ¶8 p. 2420, Reynolds ¶11 p. 2523, Hriniak ¶16 p. 2555,

Smith ¶8 p. 2494. NCDOT’s solitary concern for cost control is

7 NCDOT stated to the Court of Appeals that building roads would be “fiscally

impossible” if all State roadway property was acquired so it must be “spaced

out over years.” App. p. 57 (NCDOT Cross-Appeal Brief p. 47). In North

Carolina that means spaced out over 60 years.

20

universal to each Beltway Property no matter its location,

varying use or character.

The Court of Appeals properly concluded that the Map Act

had no relationship with the State’s exercise of its police

power for protection of the public health, safety, morals and

general welfare. State v. Warren, 252 N.C. 690, 694, 114 S.E.2d

660, 664 (1960). Appellees have never contested the government’s

right to restrict property use to prevent public harms, such as

in the customary application of zoning restrictions. However,

NCDOT is not restricting the Appellees’ properties from

development because of a concern that the properties are in a

flood zone and risk destruction, or create a community nuisance

if used as a firing range, go-cart track or adult night club, or

place mobile homes next to single family homes, or will dump

sediment into wetlands, or emit noxious fumes or loud noises

from incinerators. NCDOT does not offer any example of an

owners’ harmful use of their property. As this Court said long

ago: “[The police power] is intended to restrain and regulate

the use of private property so as to protect the common right of

all the citizens of the State. Such acts are plainly within the

police power of the Legislature, which power is the mere

application to the whole community of the maxim, ‘sic utere tuo,

21

ut alienum non laedas.8’” Durham v. Cotton Mills, 141 N.C. 615,

635, 54 S.E. 453, 460 (1906); Commonwealth v. Alger, 61 Mass.

53, 7 Cush. 53, 84 (Ma. 1851)(use of property may be so

regulated, that it shall not be injurious to the equal enjoyment

of others having an equal right to the enjoyment of their

property, nor injurious to the rights of the community).

Lacking any concern with protecting community health,

safety, morals and welfare, the Map Act cannot be a legitimate

exercise of the State’s police powers as NCDOT asserts.

A single standard has traditionally determined

whether legislation constitutes an improper

exercise of the police power so as to violate

the “law of the land” clause: the law must

have a rational, real and substantial relation

to a valid governmental objective (i.e., the

protection of the public health, morals,

order, safety, or general welfare). The

inquiry is thus two-fold: (1) Does the

regulation have a legitimate objective? and

(2) If so, are the means chosen to implement

that objective reasonable? (emphasis added)

Treants Enterprises, Inc. v. Onslow Cnty., 83 N.C. App. 345,

352, 350 S.E.2d 365, 369-70 (1986) aff'd, 320 N.C. 776, 360

S.E.2d 783 (1987)(internal cites omitted); See also BFI Waste

Sys. of N. Am. v. Dekalb Cnty., Georgia, 303 F. Supp. 2d 1335,

1349 (N.D. Ga. 2004) Graham v. Estuary Properties, Inc., 399

So.2d 1374, 1380 (Fla.1981).

8 "So use your own property as not to injure your neighbor."

22

The Map Act is concerned with obtaining lower prices when

it condemns Appellees’ property through its power of eminent

domain. The Map Act is not regulatory in any way whatsoever.

It is solely confiscatory.

B. Court of Appeals Decision Is Consistent With Beroth.

In Beroth, this Court refrained from articulating a test

for Map Act properties. The record supports a single test: does

the Map Act substantially interfere with owners’ property rights

at the time of filing the map in order to obtain a public

benefit? The Court of Appeals determined that the Map Act was

obtaining a public benefit from each of the Appellees because

NCDOT’s testimony and pronouncements confirmed that it was only

using the Map Act to save taxpayers’ money on future acquisition

costs when NCDOT eventually, at some unspecified future date,

condemns the property. There is no error in this conclusion.

The State exercises its power of eminent domain when it

obtains public benefits from property owners. Smoke Rise, Inc.

v. Washington Suburban San. Comm'n, 400 F.Supp. 1369 (D.Md.

1975)(police powers deal with public harms versus eminent domain

conferring public benefits); Matter of Recycling & Salvage

Corp., 586 A.2d 1300, 1313-14 (N.J. App. Div. 1991); City of Des

Moines v. Gray Businesses, LLC, 124 P.3d 324, 328-329 (Wash. Ct.

App. 2005), Eggleston v. Pierce County, 64 P.3d 618 (Wash. 2003)

Here, the State is obtaining a public benefit by doing the same,

23

singular thing to each and every Beltway property: marking it

for condemnation by restricting its use in order to lower future

acquisition costs and taking away its market value. While each

Beltway property is different and is impacted in varying degrees

by the map, the restrictions on each benefit the public. Just

compensation is therefore due on all property within the map.

The Court of Appeals properly determined that it is the

purpose of the appraisal to value that area taken by the map and

assess the damages to the remainder, if any, to each individual

parcel. The appraisal process accounts for differences in each

individual property.

The State does not and cannot purchase roadway property

through its police powers. As NCDOT has correctly noted to a

Beltway owner in March 2006, “[T]he power to purchase is

tantamount to the power of eminent domain.” Ex. 16 p. 489

(citing Carolina Mills v. Catawba County Board of Education, 27

N.C. App. 524, 527, 219 S.E.2d 509, 511 (1975)). NCDOT has

repeatedly exercised its power of eminent domain in the Beltway.

C. NCDOT Relies On Cases That Concern Public

Health And Safety, Not Situations Where The

State Intends To Purchase The Subject

Properties For Public Use.

NCDOT’s “New Brief” repeats its old refrain that the

appropriate test in this case is the “ends-means” test that

looks to whether the owners can make reasonable use of their

24

property. See Responsible Citizens and Finch v. City of Durham.

NCDOT cites cases dealing with zoning or flood plains that do

not have the government as the ultimate purchaser of the

property at issue. See San Antonio River Auth. v. Garrett Bros.,

528 S.W.2d 266 (Tex.Civ App. 1975)(government, as an ultimate

acquirer of property, cannot pass laws to advantage itself over

its citizens). The NCDOT cases involve the use of property in a

manner that would be injurious to community health, safety, or

morals not ultimate acquisition of future roadways. The Lucas,

Penn Central and Tahoe-Sierra cases did not involve the

government imposing restrictions on property rights for the

purpose of lowering its acquisition costs on properties it

intended to purchase. Therefore, the tests and analyses

emanating from these police powers cases have no bearing on

cases where the State is burdening its citizens to get lower

condemnation prices.

While persistently advocating for the “ends-means” test (or

a Penn-Central based analysis), NCDOT never addresses the “ends”

prong of the test which requires that the “object of the

legislation” be within the scope of the police power. NCDOT

ignores the “ends” issue to get to the prong it champions:

“deprived of all practical use of the property and the property

was rendered of no reasonable value.” It must avoid discussing

the “ends” prong because the “object of the legislation” has

25

been and can only be expressed as cost control for the State’s

future acquisition of right-of-way; there is no concern with

public health or safety. Treants supra; Weeks v. N.C. Dep't of

Natural Res., 97 N.C. App. 215, 225, 388 S.E.2d 228, 234, cert.

denied 326 N.C. 601, 393 S.E.2d 890 (1990).

Even under NCDOT’s endorsed “ends-means” test, the failure

of the “ends” - the illegitimate exercise of police powers -

results in a taking of each owners’ property. Weeks supra

(“failure in either ‘ends’ or ‘means’ results in a taking”). The

Court of Appeals properly rejected the “ends-means” test and

focused on NCDOT’s substantial interference with property rights

to obtain a public benefit.

D. Protecting Property For A Future Roadway Is Not

A Police Power Concerning “General Welfare”.

NCDOT attempts to expand the police powers’ “general

welfare” component beyond its boundaries to encompass its

mission of providing roads to the public. Appellees agree that

building roads is a necessary and good thing. We all want to

drive to and from safely, quickly and comfortably on our State’s

roads. Indeed, NCDOT has been empowered under Section 136-18 to

design roads with medians, access points, driveway cuts,

interchanges, signage, speed limits and signage restrictions.

NCDOT exercises these powers in or near its acquired right of

way, not over private property.

26

North Carolina has never held building roads is a general

welfare police power and no such expansion of general welfare

has been endorsed by other courts. General welfare means "the

public's health, peace, morals, and safety." Black's Law

Dictionary (8th Ed. Rev.); See, State v. Jones, 305 N.C. 520,

523, 290 S.E.2d 675, 677 (1982) (general welfare is the taking

of reasonable measures to minimize discordant, unsightly and

offensive surroundings; preserving the beauty and the usefulness

of the environment); A-S-P Associates v. Raleigh, 298 N.C. 207,

214, 258 S.E.2d 444, 449 (1979)(historic preservation); Stanley

v. Department of Conservation & Dev., 284 N.C. 15, 37, 199

S.E.2d 641, 655 (1973)(noise and environmental pollution); S.

S. Kresge Co. v. Tomlinson, 275 N.C. 1, 8, 165 S.E.2d 236, 240

(1969)(Sunday closing regulations valid); see also, Tighe v.

Osborne, 131 A. 801, 803, (Md. 1925)(“general welfare” cannot

enlarge the scope of the police power to an infinite variety of

objects; general welfare is synonymous with and referable to the

specific terms health, safety and morals); Berman v. Parker, 348

U.S. 26, 33 (1954)(public welfare encompasses that the

community should be beautiful, healthy, spacious, clean, well-

balanced, carefully patrolled); Ghaster Properties, Inc. v.

Preston, 200 N.E.2d 328, 336, (Ohio 1964) (prohibiting

billboards); Best v. Zoning Bd. of Adjustment, 141 A.2d 606,

611(Pa. 1958)(single family density regulations for community);

27

State ex rel. Carpenter v. St. Louis, 2 S.W.2d 713, 715 (Mo.

1928) (education); Independence v. Richards, 666 S.W.2d 1, 7

(Mo. Ct. App. 1983) (unsightliness).

To expand general welfare beyond public health and safety

to encompass the Map Act’s restrictions over future roadways

that provide a public benefit of lower prices would mean the

police powers have no boundaries. See, Kroner v. Portland, 240

P. 536, 542 (Or. 1925), C.J. McBride dissenting.

E. Appellees Different Uses of Their Property

Does Not Absolve NCDOT From Taking of

Property Rights Or Mitigate the Taking.

From the onset of the Beroth-Kirby litigation NCDOT has

stressed that the Appellees have retained reasonable use of

their property. Appellees do still live in their homes, rent

their properties, operate their businesses and harvest their

crops. “Reasonable use” would be an availing test if the State

was indeed using its legitimate police powers.

The Court of Appeals’ opinion exposes the fallacy in

NCDOT’s “reasonable use” idea. “Use” in any measure is an

irrelevant factor when the State interferes with property rights

to obtain a public benefit. Appellees expand on an automobile

analogy used by Chief Justice Exum in Finch v. City of Durham to

28

illustrate why any consideration of “use” is inappropriate when

property rights are taken for public benefit.9

Imagine NCDOT tells a group of automobile owners that they

are prohibited from putting gasoline in their fuel tanks or

places a boot on the wheels because the State intends to buy

their vehicles in the future so the State can have them for

public transportation. NCDOT will allow these automobile owners

to hold the title, sit or sleep in their vehicles, roll the

windows up and down, listen to the radio, store their golf clubs

in the trunk and turn on the lights, heat and A/C. The

automobiles can be used. But with locked wheels or no gas to

power the engine, the automobiles cannot be used as vehicles.

They have no value as automobiles. Owners don’t have cars

anymore. NCDOT has taken those vehicles and the owners are owed

compensation.

The fact that these automobiles are different in a variety

of ways does not change the outcome. NCDOT has taken them

whether they are Fords, Chevrolets, VWs, BMWs, trucks, vans,

RVs, buses, 2-door, 4-door, old, new, low mileage, high mileage,

9 “If plaintiffs’ evidence is believed, the rezoned property is analogous to

an automobile which has been completely destroyed, ‘totaled’ in the

vernacular, in a collision. Although the automobile has some value as junk,

its owner has been deprived of all practical use of the automobile so that it

has no reasonable value as an automobile.” Finch at 386-387.

29

fast or slow, diesel or electric. The State’s purchase price

will simply vary from vehicle to vehicle.10

Substantial interference with any property right is a

taking. Long v. Charlotte, 306 N.C. 187, 200, 293 S.E.2d 101,

110 (1982). The destruction of any attribute of property

destroys the property. Property is no longer property if it

cannot be freely used or sold. The Court of Appeals, following

the instructions from this Court, determined that the Map Act

impacted all Beltway properties in the same way whether large or

small, used as a field, a farm, a forest, a house, a vacant lot,

a store or an apartment. Rights have been taken so the public

gets lower prices. Just compensation is owed.

Finally, NCDOT has never placed a deposit with the clerk as

required by N.C. Gen. Stat. § 136-111 or N.C. Gen. Stat. § 136-

104. Absent a deposit, NCDOT has no right to possession, the

owners have no funds to relocate and thus they are left with no

option but to remain on the property and use it as always.

Again, use is an immaterial consideration for the takings issue.

10 Under the police power NCDOT could restrict the use of these automobiles

because the cars were unsafe to drive, emitted harmful pollutants, were too

heavy for the roads or were so loud as to disrupt the community.

30

II. THE MAP ACT’S RESERVATION PERIOD IS UNREASONABLE AS TO

TIME, IS UNLIKE OTHER STATES’ RESERVATION STATUTES,

AND SIMILAR LAWS HAVE BEEN FOUND TO BE TAKINGS

THROUGHOUT THE UNITED STATES.

In defending the Map Act, NCDOT never explains how or why a

three year delay on issuing permits is a constitutionally

reasonable period of time or why it can impose restrictions that

never expire. North Carolina stands alone with such a scheme.

A. The Map Act Restrictions Conflict With North

Carolina’s Own Moratorium Statutes.

Our State’s own development moratorium statutes indicate

that the Map Act is not a proper exercise of police powers and

is unreasonable as to duration and purpose. N.C. Gen. Stat. §§

153A-340(h) and 160A-381(e) restrain our cities and counties’

ability to curtail development through the use of moratoria. Our

Legislature determined that a governing body cannot interfere

with owners’ property rights for more than sixty (60) days, the

moratorium “may not exceed the period of time necessary to

correct, modify, or resolve such conditions” absent some

imminent threats to public health and safety. Even then, the

zoning authority must provide clear statements of the problems

or conditions necessitating the moratorium, how the moratorium

addresses these concerns, have a reasonable date for the

termination of the moratorium and the schedule of actions the

city/county will take to address the concerns of the moratorium.

These statutes demonstrate that a legitimate exercise of police

31

powers to impose development restrictions must deal with

perceived potential harms to the community in a reasonable time

and set forth a clear course of action.

But when the Legislature wants a better price for land the

State intends to someday purchase, it goes far astray. The only

problem the Appellees and all other owners pose to the public is

that their property is in the path of the State’s roads. The

Map Act’s indefinite duration, its failure to mandate any action

by the State and its three (3) year “sunset” for permits (that

no owners want and that are economically infeasible) are

drastically more oppressive than what our Legislature recognizes

as reasonable in a proper regulatory context. The Map Act and

its indefinite time periods are not regulatory and have

absolutely no concern with community harms.

B. The Map Act’s Restrictions Are Far Greater

Than Other States’ Reservation Statutes.

Only a few states appear to have roadway reservation

statutes. North Carolina’s scheme is uniquely oppressive in

duration and open-endedness when compared with all other states

that have enacted such laws. In contrast to North Carolina’s

Map Act these other state statutes restrict issuing of building

permits at a maximum of 180 days and require the government to

purchase the property in short order or allow development:

Florida: Fla. Stat. Ann. § 337.243 & § 337.2735

32

o owner can challenge the corridor and FDOT has 180 days

from a negative finding to acquire such property, to

amend the map, to withdraw the map, to issue the

permit, or to file appropriate proceedings.

Illinois: 605 ILCS § 5/4-510

o owner must provide sixty (60) days’ notice to the

Department of any new improvements;

o Department has forty-five (45) days after notice to

inform the owner of the Department's intention to

acquire the land involved;

o Department has additional 120 days to acquire such

land by purchase or to initiate action to acquire said

land through the exercise of the right of eminent

domain.

Indiana: Ind. Code Ann. § 8-23-5-9

o owner of property to be acquired for a right-of-way

must give at least sixty (60) days’ notice before

improving the property;

o Within forty-five (45) days after owner’s notice, the

department shall notice to owner of the department's

intent to acquire the property;

o Department must purchase or condemn property within

one hundred eighty (180) days.

33

Iowa: I.C.A. § 306.19

o Map lasts three (3) years, can be renewed

o Thirty (30) day delay for permit for State to decide

to acquire,

o IDOT must begin acquisition process within ten (10)

days of stopping permit.

Missouri: R.S. Mo. §§ 226.955, 226.961 & 226.967.

o Local entity has forty-five (45) days to delay a

building permit, and notice the highway commission

o Commission then has 120 days to buy / condemn

Nebraska: Neb. Rev. St. § 39-1311.03

o NDOT has sixty (60) days once an owner applies for a

permit for property in a corridor, to alert local

planning that it will negotiate with the owner

involved and

o NDOT has six (6) months to negotiate or condemn the

land; otherwise the permit issues.

New Hampshire: N.H. Rev. Stat. § 230-A:1 § 230-A:9 –

o Sixty (60) days to review permit;

o Must buy property in 180 days or permit issues;

o Map ends after ten (10) years.

New Jersey: N.J.S.A. § 27:7-67

34

o Forty-five (45) days to review permit, or decide to

buy / condemn;

o 120 days to buy or condemn property, or permit shall

issue.

Ohio: Ohio R.C. § 5511.01

o If zoning change or permit applied for within 300 feet

of proposed road, local planning must put permit on

hold for 120 days and notify Ohio DOT ;

o ODOT can decide to buy or condemn the property within

the 120 days or permit or zoning change will issue.

South Carolina: S.C. Stat. § 6-7-1270.

o a landowner may appeal being in the map,

o the local authority has thirty (30) days to remove the

property, allow the permit or commence condemnation;

o failure to act within 100 days means the permit shall

issue.

Tennessee: Tenn. Code Ann. § 54-18-208 et seq.

o permit delayed for 40 days during which time highway

officials negotiate with the owner, condemn the

property or allow the permit to issue.

o Once mapped, advance acquisition of property “shall

proceed as expeditiously as feasible.”

Utah: Utah Code Ann. § 72-5-405

35

o Owner may petition government to purchase fee simple

interest of land in corridor and if government does

not acquire the interest in the property then

government may not restrict the property.

C. Statutes Used to Control Future Acquisition Costs

Have All Been Determined to be Takings.

The Court of Appeals’ opinion places North Carolina in

accord with all other courts reviewing the use of reservation

statutes for controlling future acquisition costs. Reservation

statutes have universally been found to take owner’s property

rights, with Joint Ventures, v. Dept. of Transportation, 563

So.2d 622 (Fla. 1990) being a seminal ruling. In April of this

year California found that cost control restrictions take the

property. Jefferson Street Ventures, LLC v. City of Indio 236

Cal.App.4th 1175 (2015). The list of cases finding reservation

statutes to affect a taking is long, dating back over 120 years

to 1893 with Forster v. Scott.

Whenever a law deprives the owner of the

beneficial use and free enjoyment of his

property, or imposes restraints upon such use

and enjoyment, that materially affect its

value, without legal process or compensation,

it deprives him of his property within the

meaning of the Constitution. All that is

beneficial in property arises from its use

and the fruits of that use, and whatever

deprives a person of them deprives him of all

that is desirable or valuable in the title

and possession. It is not necessary, in order

36

to render a statute obnoxious to the

restraints of the Constitution, that it must

in terms or in effect authorize an actual

physical taking of the property or the thing

itself, so long as it affects its free use

and enjoyment, or the power of disposition at

the will of the owner.

Forster v. Scott, 136 N.Y. 577, 584, 32 N.E. 976 (N.Y. 1893). A

list of cases from states that have found reservation and land

banking statutes to be unconstitutional takings, and that

address the improper use of zoning and police powers to control

acquisition prices are provided:

New York: Keystone Associates v. Moerdler, 19 N.Y.2d 78,

88, 224 N.E.2d 700, 703 (1966): 180 day reservation that

allowed government to search for acquisition funding was a

taking. “The deprivation here, not being incidental to a

lawful exercise of the police power, is equally

unreasonable and constitutes a taking of property for which

just compensation must be paid if the statute is to be

upheld.... In any event, where the restriction itself

cannot be justified, the period of time during which it

operates is of no relevance. The longer in duration, the

greater the damage is likely to be.” (emphasis added)

New York: Roer Constr. Corp. v. New Rochelle, 136 N.Y.S.2d

414, 416, (N.Y. Sup. Ct. 1954) and Jensen v. New York, 42

N.Y.2d 1079 (N.Y. 1977). No permit could then be issued

37

for any building to be erected on the plaintiff's property

in official map of future highway unless such permit be

granted by the zoning board of appeals. No date was set for

the acquisition of plaintiff's lands or the construction of

proposed highway. Official map affected a deprivation to

constitute an unconstitutional interference with vested

rights of property. In Jensen, the plaintiff did not apply

for a building permit but the case was ripe.

Arizona: State ex rel. Willey v. Griggs, 358 P.2d 174, 175

(Ariz. 1960): two year restriction on property for

government to make an acquisition decision too long. A law

enacted in the exercise of the police power must, in fact,

be a police law. The means adopted must have a real and

substantial relation to their purpose, and must not

interfere with private rights beyond the necessities of the

situation.

Pennsylvania: Miller v. City of Beaver Falls, 82 A.2d 34

(Pa. 1951): three (3) year restrictions on property to

allow city to someday acquire property as a park was a

taking of property by “possibility, contingency, blockage,

and subterfuge in violation of the Constitution that

property cannot be taken or injured or applied to public

use without just compensation.”

38

California: Jefferson Street Ventures, LLC v. City of Indio

236 Cal.App.4th 1175 (2015). City development restrictions

constituted an uncompensated taking of property. Owner

submitted a development proposal to construct a shopping

center. The proposal affected property on which Interstate

interchange projects were contemplated. Restrictions were

placed on the plaintiff's development proposal that reduced

the developable area. Restrictions constituted an

uncompensated taking of the property by the city and

damages were to be paid

Maryland: The Maryland-National Capital Park and Planning

Commission v. George A. Chadwick, 405 A.2d 241 (Md. Ct.

App. 1979) three (3) year restriction equated to a taking.

When restrictions are placed on private property in order

to create a public benefit rather than to prevent a public

harm, a compensable “taking” has occurred.

Maryland: Howard County v. JJM, Inc., 482 A.2d 908 (Md.

1984): development restriction without time limitation

meant there was a taking of property without compensation.

Because regulation was determined not to be a valid

exercise of the police power, there was a taking of the

property. County had no right to require the reservation

39

for the proposed highway absent compensation.11

Delaware: Lackman v. Hall 364 A.2d 1244 (Del. Ch Ct 1976):

180 day delay in issuing a permit invalid for state to

condemn or issue permit not valid. Zoning cannot be used as

a substitute for eminent domain proceedings to defeat the

payment of just compensation by depressing (property)

values and so reducing the amount of damages to be paid

when private property is to be taken for public use. The

Corridor Route legislation has this unacceptable regulation

of property values as its primary purpose, but it goes even

further by virtue of the ax it hands the State to hold over

the head of selected property owners. While it is

11 Howard goes on to cite Nichols’ The Law of Eminent Domain § 1.42[2] (Rev. 3d ed. by J. Sackman, 1973 Recompilation by P. Rohan 1981) states:

“It has been held ... that where the need for a road is substantially

generated by public traffic demands, rather than by the proposed

development, eminent domain must be used rather than the police power.

“One of the tests requires the establishment of a reasonable relationship

between the approval of the subdivision and the municipality’s need for

land.” Id. at 1-186-88.

The latter work goes on in § 1.42[9] to state:

“The mapping out of streets upon vacant land near large and growing cities

has often been provided for, so that a systematic plan for the gradual

enlargement of the city can be followed. A mere provision that after the

recording of the map no streets shall be laid out which are not in

accordance therewith is unobjectionable; but it is sometimes enacted that if

the owner builds upon the land marked out for a street, when the street is

actually laid out he shall receive no compensation for his building. As the

plotting of a street under such a statute substantially amounts to depriving

the owner of the use of the land within the limits of the projected street

for any but temporary purposes, it is generally held that such statutes are

unconstitutional unless the owner is given compensation for his loss.” Id.

at 1-277-79.

40

undoubtedly an administrative planning act, it is also one

which contemplates condemnation.

Texas: San Antonio River Auth. v. Garrett Bros., 528 S.W.2d

266 (Tex.Civ App. 1975): government cannot pass laws that

advantage itself over its citizens to obtain a more

favorable price in the future for the property. “The

prohibition against uncompensated takings was ‘designed to

bar Government from forcing some people alone to bear

public burdens which, in all fairness and justice, should

be borne by the public as a whole.’”

Michigan: Gordon v. City of Warren Urban Renewal Comm'n,

185 N.W.2d 61 (Mich. Ct. App. 1971), aff'd, 199 N.W.2d 465:

owners' land could not be set aside without compensation

for possible future condemnation to avoid increased costs

of condemning the land in the future. “[P]rivate property

cannot be appropriated without compensation under the

police power”; “so too the State may not, in the name of

the police power, require a property owner to refrain

indefinitely and without payment from using and enjoying

his property.”

Kansas: Ventures In Property I v. The City Of Wichita, 594

P.2d 671 (Kan. 1979): governing body took property from

landowner and was required to respond in damages by inverse

condemnation when it required a portion of land in a

41

defined highway corridor be reserved in its undeveloped

state for possible highway purposes at some indefinite date

in distant future.

New Jersey: Lomarch Corp. v. Mayor & Common Council of City

of Englewood, 237 A.2d 881 (N.J. 1968): one (1) year

development restriction was constitutional because by

implication the restriction required just compensation.

New Jersey: Grosso v. Board of Adjustment of Millburn Tp.

in Essex County, 61 A.2d 167(N.J. 1948): Private property

may not be confiscated under the guise of police

regulations.

Ohio: Henle v. City of Euclid, 125 N.E.2d 355, 358 (Ohio

Ct. App. 1954): cannot "freeze" property to prevent the

owner from improving it so that he may only enjoy a

beneficial use because the city may someday need property

in constructing a freeway;

Iowa: Petersen v. City of Decorah, 259 N.W.2d 553, 554

(Iowa Ct. App. 1977): exercise of a land banking

classification under the guise of the pubic good was

unconstitutional.

Illinois: Galt v. Cook Cnty., 91 N.E.2d 395, 399 (Ill.

1950), a valid zoning ordinance must have a real and

substantial relation to the public health, safety, morals

42

or general welfare; restriction designed to conserve public

funds in the purchase of land was invalid.

Massachusetts: Edwards v. Bruorton, 69 N.E. 328, 329,

(Mass. 1904), statute unconstitutional that declared that

property could be taken without compensation if it was used

otherwise than in accordance with the plans of the

commissioners because statute attempted to exempt owner

from the general rule in regard to the taking of property

under the right of eminent domain.

Arkansas: Arkansas State Highway Com. v. Anderson, 43

S.W.2d 356(Ark. 1931). State Highway Commission not

permitted to keep a landowner from constructing a building

on land within the extended boundaries of a highway by

virtue of a town ordinance preventing adjoining property

owners from constructing buildings within such boundaries

where no compensation had been provided for the land so

attempted to be taken for highway purposes.

III. NCDOT’S MAP CASES PRE-DATE THE MAP ACT AND ARE NOT FACTUALLY SIMILAR.

A. NCDOT Cases Deal With Mere Maps.

NCDOT relies on mapping cases pre-dating the Map Act to

justify its use of the Protected Corridor. Browning v. Highway

Commission, 263 N.C. 130 (1964), Penn v. Carolina Virginia

43

Coastal Corp., 231 N.C. 481 (1950). These cases deal with

ordinary planning maps with no development restrictions or

seventeen-year delays or recordation or acquisition of 454

properties. In contrast, Beltway maps are not for mere planning

but for restrictive cost control. Exs. 4A, 5, 45, 46. NCDOT’s

map cases are irrelevant to the Act, the Protected Corridor, and

Appellees’ case. Browning and Penn pre-date the Map Act by

nearly three and four decades. In those intervening decades the

concept of a “taking” of property rights has evolved from the

need for physical invasion, to the current generalized

definition of “an impermissible encroachment on private property

rights.” Graham v. Estuary Properties, Inc., supra at 1380. “The

modern, prevailing view is that any substantial interference

with private property which destroys or lessens its value ...

is, in fact and in law, a ‘taking’ in a constitutional sense.”

Joint Ventures, supra. See, Lackman, supra (in striking down

reservation statute as a taking, court rejected DOT’s position

that there can be no "taking" of property if the property is

never actually disturbed).

Penn is a 1950 case involving a 1949 statute that allowed

the construction of toll roads by municipal corporations, in

this case the Carolina Virginia Coastal Corporation. The

landowners complained “That the engineers of the corporations

have surveyed the proposed right-of-way along the Outer Banks of

44

the said counties, and have set their survey marks and stakes

thereon.” The Penn owners sought to have the surveyed and staked

right of way purchased. Appellees agree that the placing of

stakes and survey markers in Penn, especially in the nascent

stage of planning (within one year of the statute being passed

and the road being marked) is routine planning and does not

implicate eminent domain activity. But the Penn case did not

involve development restrictions nor did the State in passing

the legislation have any future acquisition cost control

motivations. NCDOT’s reliance on Penn is misplaced.

NCDOT fails to explain to the Court that the Browning case,

aside from predating the Map Act by nearly thirty years and not

involving restrictions, actually had the government arguing that

the mere filing of a map was sufficient to cause a taking of the

owner’s property. The only reason there was not a taking was

because the owner never had notice of the map filing! Browning

v. Highway Comm’n, 263 N.C. 130 (1964).

B. The Florida Cases and Batch Do Not Have

Similar Facts.

NCDOT cites three cases to counterbalance the nearly two

dozen cases cited above finding reservations for cost control to

be takings. The Tampa-Hillsborough County case cited by NCDOT

does not have similar facts as this case. Tampa-Hillsborough

County, 640 So.2d 54 (1994). The Hillsborough case lacks

45

destruction of market value over a broad swath of property,

explicit and repeated statements by DOT that there is NO concern

with public health or safety but only lower prices condemnation

prices, hundreds of property acquisitions within the protected

corridor, active warnings by NCDOT not to improve property,

numerous years in the protected corridor, and never ending

development restrictions. Moreover, the Tampa-Hillsborough

decision lacks the rigorous examination of the police powers

versus eminent domain powers performed by Judge McGee and fails

to explain how the restriction is a legitimate exercise of

police powers over the subject properties. As our Weeks case

holds, a failure of the “ends” results in a taking regardless of

use.

Palm Beach County v. Wright from Florida and Batch v. Town

of Chapel Hill involved municipal development plans for the

growth of the city. Neither case had lower future acquisition

costs for the city as its primary purpose. Both cases involve

local governments that are involved in zoning and land use

planning – not DOTs. Palm Beach’s overlay offered sufficient

flexibility to the planners to adjust the development and mostly

involved set back lines. Batch had no map with restrictions

filed in the owner’s chain of title or surrounding acquisitions

by the City evidencing the intent to condemn.

46

IV. APPELLEES NEED NOT APPLY FOR BUILDING PERMITS OR

VARIANCES TO HAVE STANDING TO ASSERT A TAKING.

NCDOT expressly and explicitly tells owners that they will

not be approved for building permits. R. p. 19, Affs. Clapp ¶8

p. 2420, Reynolds ¶11 p.2523, Hriniak ¶16 p. 2555, Smith ¶8 p.

2494. No owner has built an improvement in the Beltway and no

permit applications have been forwarded to NCDOT. Rule 9(d) pp.

2624-108 ¶9; Ivey Depo. pp. 67-70 87; Hatton depo. p. 54. NCDOT

will not allow variances that increase acquisition costs. Stanly

depo pp. 31-36. NCDOT produces no photographs of new structures

in the Beltway. The Map Act works. Nothing gets built.

As North Carolina’s moratorium statutes, and other state’s

statutes and case law discussed above show, three years is an

unconstitutional duration. Furthermore, during that three year

wait an owner’s economic plans will change, financing will be

lost, the building codes change, buyers move on to other

projects, builders build elsewhere. Three years is a self-

enforcing prohibition on improvements because the restrictions

will remain on all the other Beltway properties. Most owners do

not have the requisite funds needed to develop their own

subdivision in the first instance absent a buyer. Yet, NCDOT

thinks owners must engage in economic folly by investing in

47

improvements that have no market.12 The fact that no owner of

the 2300 parcels has seen fit to invest in Beltway improvements

illustrates that capital investment avoids the Beltway. There

is no “sunset” in the Beltway. Even if issued a building permit,

the Map Act takes the owner’s right to freely dispose of the

property at fair market prices and will continue to do so for

perhaps another 30, 40 or 60 years.

Constitutional claims are not subject to administrative

remedies, so failure to pursue such remedies is not fatal to

those claims. See Swan Beach Corolla, LLC v. County of

Currituck, 760 S.E.2d 302, 308 (N.C. Ct. App. 2014). Plaintiffs

are not required to exhaust administrative remedies where

pursuing the administrative remedies is futile or inadequate.

Id; State ex rel. Utilities Commission v. Southern Bell Tel. &

Tel. Co., 93 N.C.App. 260, 268, 377 S.E.2d 772, 776 (1989),

rev'd on other grounds, 326 N.C. 522, 391 S.E.2d 487 (1990);

Affordable Care, Inc. v. North Carolina State Bd. of Dental

Examiners, 153 N.C.App. 527, 534, 571 S.E.2d 52, 58 (2002)(a

party need not exhaust an administrative remedy where the remedy

is inadequate). Pursuing an administrative remedy is “futile”

when it is useless to do so as a legal or practical matter.

12 The 454 hardship sellers had no desire for a permit or variance,

recognizing, as does NCDOT, that the Map destroys the marketplace for their

properties. See Ex. 12 p. 330: “I can’t do anything with these lots.”; Ex.

65 p. 2079.

48

Orange County v. NCDOT, 46 N.C.App. 350, 376, 265 S.E.2d 890,

908 (1980)(failure to exhaust administrative remedy will not bar

judicial review if remedy is inadequate). A remedy is

inadequate unless it is “calculated to give relief more or less

commensurate with the claim.” Shell Island Homeowners Ass'n,

Inc. v. Tomlinson, 134 N.C. App. 217, 222, 517 S.E.2d 406,

411 (1999).

Exhaustion is excused in this case. Applying for a

building permit or variance, futile and economically nonsensical

in the first instance, is an inadequate remedy for a taking. The

remedy is just compensation which is not offered to Appellees.

V. THE COURT OF APPEALS PROPERLY REMANDED THE CASES FOR

TRIALS ON DAMAGES BECAUSE NCDOT KNOWS THE BOUNDARIES

OF ITS TAKING AND THE INTEREST TAKEN IS FEE SIMPLE.

NCDOT argues that remand is improper because the nature of

the property interest and area taken was not determined.

Whether this issue is properly before the Court or not, the

Appellees call upon the Court to exercise its general

supervisory powers granted to it to address this important issue

of the property interest taken. N. C. Const. Art. IV, § 12(1).

This Court is empowered to “promote the expeditious

administration of justice, and may do so to consider questions

which are not properly presented according to [its] rules.”

49

Beaufort County Bd. of Educ. v. Beaufort County Bd. of Comm'rs,

363 N.C. 500, 506-507, 681 S.E.2d 278, 283 (2009).

In its petition for discretionary review, brief in chief

and in conferences with some of the 2.1 judges, NCDOT has

professed to not understand what type of property interest has

been taken. NCDOT will use this issue to possibly obtain

different rulings in different counties resulting in similar

owners getting different outcomes. Fortunately, our general

statutes, the Kirby record and case law demonstrates NCDOT is

being disingenuous in its confusion. NCDOT knows what has been

taken, the interest taken, how to value that interest and when

that interest was taken.

Some Appellees did testify that they believed they were

damaged before the maps were filed. Appellees Republic and

Hendrix were made written purchase offers by NCDOT before the

maps were filed. Nelson had NCDOT traverse stakes in his

property before the map was filed. Harris had his building

permits stamped with warnings about the Beltway in 1991. But the

legal date of taken is clearly stated by each Appellee in their

Memorandums of Action as the date of filing the map. R. p. 158-

173 ¶ 5 (6 October 1997 or 8 November 2008).

NCDOT has filed and produced extremely detailed right of

way maps for the Beltway. These maps provide the limits of

controlled access and the boundaries of the right of way. Ex.

50

4, 4A, 5, 45 and 46. The Beltway’s impact on every Appellee’s

(and every owner’s) parcel is known and defined by NCDOT. NCDOT

has managed to purchase over 454 pieces of Beltway property

since 1996 spending millions of dollars with only the maps to

direct its purchases. Exs. 4, 4A, 5, 45, 46; App. pp 7-47. NCDOT

has obtained appraisals for all these acquisitions. See Ex. 30

p. 923 (appraisal). NCDOT paid $1.6 million for a church and

$1.2 million for a junkyard. Ex. 25, pp. 684, 783. NCDOT

appears comfortable with the right of way plans to guide its

acquisitions and appraisals.

As to the interest taken, N.C. Gen. Stat. § 136-19 vests

NCDOT “with the power to acquire either in the nature of an

appropriate easement or in fee simple such rights-of-way and

title to such land ... as it may deem necessary and suitable for

transportation infrastructure construction, including road

construction ....” Each of the 454 NCDOT purchase was for a fee

simple interest for right of way, including the 70+ properties

bought since the Map Act litigation started. Exs. 25, 28, 29,

62, 63, 64 & 68; App. p. 48-54. The ten direct condemnations

were fee simple purchases. Ex. 24; App. p. 55-56. The Assistant

Attorney General told a Beltway owner “[b]y definition eminent

domain represents the power of the state to acquire all private

property rights for a public purpose.” Ex. 16 p. 489 App. p. 6.

51

NCDOT’s purchase offers to Republic and Hendrix were for

fee simple interests and NCDOT used the recorded map to

determine the area taken. The offers are on the DOT appraisal /

offer form. Hendrix Aff. p. 2440 App. 35; N.C.G.S. § 136-112(1).

NCDOT told Hendrix the interest directly taken, the damages to

the remainder, the price for the uneconomic remainder and what

area was not being taken. Id. NCDOT determined that the Harris

Triad properties were total takes by referring to the protected

corridor maps. Ex. 49 p. 1571; App. p. 38-39.

NCDOT’s statements in its brief about uncertainty over the

area taken are misleading. On page 40 of its brief NCDOT says

that 139 acres of Appellee Republic’s 188 acre tract are outside

the protected corridor. True, but NCDOT neglects to inform the

Court that NCDOT made a written offer to purchase 184 acres in

fee simple for $1,100,000 because the map’s right of way

boundaries leave 139 acres to the east with no access. Rule

9(d) pp. 2624-40 – 2624-41; App. p. 36-37.

As a result of the Map Act’s indeterminate restrictions on

Beltway property, the Appellees’ properties must be condemned in

fee simple. If anything less than fee simple is proposed by

NCDOT, the owners will receive lesser treatment than afforded to

the 454+ owners whose property was purchased in fee simple.

The legal conclusion for valuing each owner’s property as a

fee simple taking is found in Rogers v. U.S., 101 Fed. Cl. 287

52

(2011) and Childers. V. U.S., 116 Fed. Cl. 486 (2013). In these

two inverse condemnation cases the United States took permanent

easements across owners’ property for recreational trails. The

Court of Federal Claims agreed that the permanent easement

interest is considered as taking 99% of the fee. Whatever name is

given to the Map Act taking, the effect of the restrictions is the

same. NCDOT has taken all of the fee interest by its interference

with owners’ property rights.

Appellees (and owners) are concerned that if this Court

affirms Kirby, NCDOT will procrastinate, delay, frustrate and

appeal at every opportunity. Whereas NCDOT answered the nine

Appellees’ complaints (and the dozens of other complaints filed

prior to the Kirby ruling) admitting the properties are in the

map (R. pp. 176-315), in the 150 newly filed cases NCDOT makes

blanket denials of all previously admitted allegations.

Appellees suggest that this change of position is done to avoid

N.C. Gen. Stat. § 136-111’s requirement for NCDOT to make a

deposit.

Appellees and owners are generally elderly and all are

exhausted. Owners are entitled to expeditious resolution of

their claims so they may receive just compensation. Likewise,

all taxpayers deserve expeditious resolution to limit

prejudgment interest and attorneys’ fees. 2.1 judges assigned

to Map Act cases need clear instruction from the Court to assure

53

consistency in their treatment of owners and timely resolution

of their dockets.

Since the Kirby ruling, Appellees counsel has filed motions

for deposit pursuant Section 136-111 in all 240+ Map Act cases.

Section 136-111 requires NCDOT to file a good faith deposit upon

admitting at taking. NCDOT has yet to deposit any sums in any

case or conduct any appraisals. Appellees contend that the

deposit must be an amount of just compensation for the area

taken, the damage to the remainder (if any) plus pre-judgment

interest on that amount from the date of filing the map. De

Bruhl v. State Highway & Public Works Com., 247 N.C. 671, 102

S.E.2d 229 (1958) (the interest thereon was an element of the

just compensation guaranteed to them by the state constitution.)

VI. THE MAP ACT IS UNCONSTITUTIONAL.

A. The Map Act Violates the Fifth Amendment and

Due Process.

Appellees agree with the Court of Appeals that it did not

need to reach the Appellees’ State or Federal constitutional

claims because the Appellees are provided an adequate remedy of

inverse condemnation under N.C. Gen. Stat. § 136-111. The Court

of Appeals’ holding that the Map Act requires the State to

compensate the Appellees is grounded upon the Fifth Amendment’s

requirement, as applied to the State’s by the Fourteenth

Amendment, that just compensation is due for a taking.

54

However, if this Court sees that inverse condemnation is

not an available remedy, the Appellees’ constitutional claims

should be granted. Justice Black succinctly expressed the crux

of the Appellees’ complaint with the Map Act and his instruction

confirms that the Court of Appeals’ outcome is correct:

The Fifth Amendment's guarantee that private

property shall not be taken for a public use

without just compensation was designed to

bar Government from forcing some people

alone to bear public burdens which, in all

fairness and justice, should be borne by the

public as a whole.

Armstrong v. United States, 364 U.S. 40, 49 (1960)(J. Black);

PruneYard Shopping Center v. Robins, 447 U.S. 74, 83

(1980)(Governmental action which places a burden on an

individual's property which in fairness the entire community

should share constitutes a taking and the government must

compensate the property owner for the loss). This Court has

recognized that “just compensation as so grounded in natural law

and justice that it is part of the fundamental law of this

State, and imposes upon a governmental agency taking private

property for public use a correlative duty to make just

compensation to the owner of the property taken.” Long v.

Charlotte, supra. at 196, S.E.2d at 107.

Appellees are no less protected by our State constitution.

In Corum v. University of North Carolina, 330 N.C. 761, 783

(1992), the Court reaffirmed North Carolina’s jealous protection








55

of its citizens’ fundamental rights by stating that the Court

gives our North Carolina Constitution:

a liberal interpretation in favor of its

citizens with respect to those provisions

which were designed to safeguard the liberty

and security of the citizens in regard to

both person and property

. . .

A constitutional prohibition against taking

or damaging private property for public use

without just compensation is self-executing,

and neither requires any law for its

enforcement nor is susceptible of impairment

by legislation. And where the Constitution

points out no remedy and no statute affords

an adequate remedy under a particular fact

situation, the common law will furnish the

appropriate action for adequate redress of

such grievance. Corum at 782-783.

The Map Act is unconstitutional, both facially and as-

applied. The State’s imposition of restrictions on property

rights that have no date by which the State must act or release

the property provides a benefit to the State at the expense of a

few citizens. Without defining the duration of the restrictions,

the State’s benefit becomes unlimited. In application, NCDOT has

placed the Map Act restrictions on owners since 1997 and 2008.

This violates the Appellees’ due process rights under the

Fourteenth Amendment. Just compensation is required under the

Fifth Amendment and our Law of the Land clause.

B. Equal Protection under the Fourteenth

Amendment and the Hardship Program.

NCDOT has likewise violated Appellees’ right to equal

56

protection under the law which “requires that all persons

similarly situated be treated alike.” Blankenship v. Bartlett,

363 N.C. 518, 521, 681 S.E.2d 759, 762 (2009). Some North

Carolina citizens get the benefit of direct condemnation which

affords procedural due process: a jury to determine just

compensation and a judge to determine the interest taken. But in

the Beltway, the State has refused to initiate condemnation and

thus deprives these unfortunate citizens of due process. All

NCDOT offers these owners is a Hardship Program administered by

a single NCDOT bureaucrat without a process for appeal or access

to condemnation. Some of the Hardship rules are unwritten.

The Hardship Program contravenes owners’ fundamental right

to freely use and dispose of their property or receive just

compensation. Rowe, supra, Long, supra; Hildebrand supra. As

fundamental rights of owners are affected, the Hardship Program

must be viewed with strict scrutiny. Rowe, supra. The random

manner of NCDOT’s 454 acquisitions where some owners with real

or feigned medical or financial conditions get purchased while

other owners do not strikes at the heart of the Fourteenth

Amendment’s equal protection concerns. The Appellees have

frequently pointed to NCDOT’s acquisition of a church and a

junkyard to illustrate the arbitrary application of NCDOT’s

Hardship criteria between owners. Equally offensive to the

constitution is NCDOT’s “take it or leave” purchase price

57

decrees to those owners who somehow get through NCDOT’s Hardship

approval process. Equal protection violations are unavoidable

where NCDOT has spent twenty years buying whenever it wants,

whoever it wants and at whatever price it wants, in its sole,

unappealable discretion.

VII. AFFIRMING KIRBY WILL NOT CURTAIL NCDOT’S PREROGATIVE

TO PLAN AND PRIORITIZE.

Our Highway Commission functioned for almost one hundred

years and built thousands of miles of road before Beroth and

this case without constitutional contests or resort to the Map

Act. Appellees’ have never contested NCDOT’s prerogative to

plan North Carolina’s roads and exercise its discretion in doing

so. Appellees’ inverse claims do not turn all planning or

delays into takings. This has not happened in the states that

have ruled reservation statutes to be takings. However, NCDOT

has forfeited the privilege of discretion. Drewry v. NCDOT, 168

N.C. App. 332, 338, 607 S.E.2d 342, 346-47 (2005) (NCDOT vested

with broad discretion in carrying out its duties ...“unless

[its] action is so clearly unreasonable as to amount to

oppressive and manifest abuse”). NCDOT has enjoyed great

benefits while abusively using the Map Act. NCDOT will still be

able to function if Kirby is affirmed:

To hold a governmental agency liable under

the facts of this case will not cause the

heavens to fall, nor will it transform

government into a giant shackled into

58

inactivity by the fear of potential

liability.... The only result will be that it

will not be able to ‘rig’ the market in its

favor. That is, government will merely be

discouraged from giving itself, under the

guise of governing, an economic advantage

over those whom it is pretending to govern.

San Antonio River Auth., supra at 274.

Eventually, NCDOT must buy the property it needs for

highways. Owners, however, must be paid just compensation

timely. This is an even and fair exchange of value mandated by

the State and Federal Constitutions and our inverse condemnation

statute. NCDOT has bought hundreds of properties in Forsyth

County to build the Beltway, and it someday will presumably buy

these Appellees’ properties. With this case, that day has

arrived for Appellees, and all other owners asserting their

rights, who had their properties taken long ago.

CONCLUSION

NCDOT’s use of the Map Act is an exercise of the State’s

eminent domain power resulting in a taking of Appellees’

property requiring just compensation. The Court of Appeals’

opinion should be affirmed without modification, and the Court

should exercise its supervisory powers to instruct the 2.1

judges the interest taken from the owners is a fee simple

interest with damages to any remainder as in a direct

59

condemnation. These cases should be remanded for a trial on

damages for each Appellee from the date of filing the maps.

This the 6th day of November 2015.

/s/electronically submitted

Matthew H. Bryant

N.C. Bar No. 21947

N.C.App.R. 33(b) Certification:

I certify that the attorneys

listed below have authorized me to

list their names on this document

as if personally signed.

T. Paul Hendrick

N.C. Bar No. 5656

Timothy Nerhood

N.C. Bar No. 25432

Kenneth C. Otis III

N.C. Bar No. 28005

W. Kirk Sanders

N.C. Bar No. 22305

Attorneys for Appellees.

Of Counsel:

Hendrick Bryant Nerhood Sanders & Otis, LLP

723 Coliseum Drive, Suite 101

Winston Salem, NC 27106

Telephone: (336) 723-7200

Facsimile: (336) 723-7201

www.hendricklawfirm.com

http://www.hendricklawfirm.com/

60

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he is the attorney for the

Plaintiffs/Appellees herein, and that on the date stated below,

he served a copy of the Plaintiff / Appellees Brief upon

Defendant / Appellant by placing said copy in an envelope,

first-class postage prepaid, addressed to the persons

hereinafter named at the address stated below, in the U.S. Mail

and UPS overnight and by transmitting a copy to said party via

e-mail:

John F. Maddrey

Solicitor General

P.O. Box 629

114 West Edenton Street

Raleigh, North Carolina 27603

[email protected]

Dahr Joseph Tanoury

Assistant Attorney General

N.C. Department of Justice

1505 Mail Service Center

Raleigh, North Carolina 27699

[email protected]

This the 6th day of November, 2015.

__________________________

Matthew H. Bryant

N.C. Bar No. 21947

Hendrick Bryant Nerhood Sanders

& Otis, LLP.

723 Coliseum Drive, Suite 101

Winston-Salem, N.C. 27106

(336) 723-7200

[email protected]

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