Above is the link to the video of the 1 hour oral arguments before the N.C. Supreme Court in the Kirby inverse condemnation appeal. The North Carolina Department of Transportation appealed the NC Court of Appeals unanimous decision in favor of property owners.
On Tuesday, February 16, 2016, Matthew Bryant, NC Emininent Domain Attorney with Hendrick Bryant Nerhood Sanders & Otis argued for the property owners in Forsyth County, NC. The ramifications though of this case affect property owners in Wake County, Cumberland County, Cleveland County, Guilford County, and Pender County.
This case boils down to NCDOT’s position that the Map Act recordings and restrictions were “Police Powers” and to regulate vs. Property owners’ position that it was a taking and requires just compensation.
The Attorney General’s Mr. Maddrey argued on behalf of the NCDOT and alleged the NC Map Act served a public purpose. The NCDOT wants the idea of a taking to be a case-by-case (owner by owner) matter. This would put the burden of each owner trying to prove the NCDOT took their property without compensating them when the NCDOT filed the restrictions with the Register of Deeds. The AG said this was a regulatory matter with a lower constitutional test, that being rational basis. He was interrupted in 30 minute argument by the 2nd minute by Justice Newby.
Justice Newby asked him if there was a difference in value before vs. after the recording of the Map Act.
Jusice Ervin asked if there could be a partial taking. The AG admitted that it is no longer required to be a physical taking to be deemed substantial interferences (think: cutting of trees on your property). The AG thought there needs to be a substantial ousting. Justice Ervin followed up with a question about twhether the actions were sufficient to cause a dimunition in value. If so shouldn’t the public, the State, bear the costs.
Justice Jackson asked the AG that wouldn’t a partial taking still be a taking. The AG said this is a new issue before the Supreme Court. He mentioned that the Map Act is supposed to be quick.
End of Part 1. More to be continued from the hearing.