Non-Possessory Takings: North Carolina Supreme Court to Consider Inverse Condemnation in Future Highway Development Case

In a case that has garnered national attention, the North Carolina Supreme Court has agreed to review a court of appeals decision holding that a state statute effected a taking – and thereby implicated the property owners’ Constitutional rights. It is an interesting case — one that could have significant implications for property owners across the country.

State Objects to Protection of Property Owners’ Rights

The case is Kirby v. North Carolina Department of Transportation, No. OA14-184 (Feb. 17, 2015), and it arose out of a use of the North Carolina Map Act. Enacted in 1987, the Map Act allows the North Carolina Department of Transportation (DOT) to freeze development of private property that it has designated for possible future highway development. Effectively, the law allows the DOT to draw up future highway corridors, designate private property for future highway use and prevent the owner from developing the land if the improvements would get in the way of a tentatively-planned highway.

In Kirby, several landowners challenged the Map Act as a violation of their Constitutional rights. Specifically, they argued that the Act allowed the DOT to effect a non-possessory taking of their property rights without payment of just compensation.

After losing at trial, the landowners filed an appeal. On appeal, North Carolina’s intermediate court held that the DOT could reserve or “land bank” private property under the Map Act, but also said that it must pay the property owners just compensation. The court reversed the trial court ruling and remanded the case for further proceedings to determine the amount of compensation owed to each owner. This was an important win for the property owners.

NCDOT subsequently asked the North Carolina Supreme Court to review the appellate decision, which it has agreed to do. As a result, it remains to be seen whether the landowners will be compensated for the restrictions placed on their property. At Owners’ Counsel of America, we will be monitoring the case closely for further developments.

More on Inverse Condemnation and Eminent Domain

The government does not have to physically take your property nor go through the eminent domain process in order to invoke the Constitutional protections provided by the Fifth Amendment. As argued by the landowners in the Kirby case, various forms of regulatory “non-possessory” or inverse takings can invoke these protections as well.

Under the law of eminent domain, the government can only claim rights in private property for certain, well-defined public purposes. Then, when it acquires such rights in privately-owned land, it is required to compensate the owner for the “taking” of the property. When the government fails to satisfy these requirements, the remedy for affected property owners is to file suit to protect their constitutional rights and demand just compensation or remedies available under the law. The Fifth and Fourteenth Amendments protects against not only the dispossession of private land, but also against government -imposed infringements and restrictions on private property.

Read more about how property owners can protect their Constitutional rights.

The Inverse Condemnation Attorneys at Owners’ Counsel of America Can Help

If you think the government may be violating your private property rights, we want to hear from you. Owners’ Counsel of America is a network of the nation’s leading eminent domain and inverse condemnation attorneys, and we are dedicated to using our collective knowledge and experience to defend private property ownership across the country. To speak with an experienced attorney in your state, call (877) 367-6963 or contact us online today.

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