In North Carolina, a property owner has a right to direct access to adjacent highways, and "[i]f the State's action eliminates all direct access to the abutting road, then the action is 'a taking as a matter of law.'" Dep't of Transportation v. Harkey, 301 S.E.2d 64, 71 (N.C. 1983). And it doesn't matter if the parcel has alternative access to the road. Id. at 65.
Unless the abutting highway moves, according to the North Carolina Court of Appeals in Dep't of Transportation v. BB&R, LLC, No. 14-1185 (July 7, 2015).
In that case, there was no dispute that the DOT's road project took a portion of BB&R's land on which a convenience store/gas station was located, and that before the taking, the property enjoyed direct access to Dowdle Mountain Road along the property's northern side.
However, the court concluded the DOT was not liable for a taking of BB&R's northern Dowdle Mountain Road access because after the taking, it had access from the eastern side of the parcel. But wait, you say, what about the rule in Harkey that alternative access in the after condition doesn't matter? Not applicable, held the court, because Dowdle Mountain Road was rerouted, and the parcel now enjoys direct access to the road from its eastern side:
Here, however, DOT’s closure of the section of Dowdle Mountain Road that abutted the northern frontage of defendant’s property did not eliminate all direct access from defendant’s property to Dowdle Mountain Road. There is direct access to the re-routed Dowdle Mountain Road at the eastern boundary of defendant’s property.
Slip op. at 9. According to the court, the property owner didn't really lose anything: before the taking, it had two access points, and after the taking it had two. Never mind that Dowdle Mountain Road was in a different location after the taking, and "[a]t most, the re-routed road results in a vehicle having to travel a maximum of 650 feet more than it had to travel before to access defendant's property from the highway." Slip op.a t 10.
The court rejected the owner's contention that its access was substantially interfered with, concluding that in the after condition, it "still has 'reasonable means of ingress and egress' from Dowdle Mountain Road to the property. Defendant's access to Dowdle Mountain Road was simply re-located to the eastern section of its property due to the re-routing of Dowdle Mountain Road." Slip op. at 11-12. Which sounds an awful lot like alternate access.
A case about direct vs indirect access is currently pending in the Oregon Supreme Court.
Dep't of Transportation v. BB&R, LLC, No. 14-1185 (N.C. App. July 7, 2015)
