Here's the latest "Map Act" case from North Carolina, one that touches a bit on the metaphysical side because it gets into the question of whether an ongoing inverse condemnation case in which the N.C. Supreme Court has already ruled that property was taken (although it did not determine the interest taken), prevents the government from instituting a direct condemnation lawsuit to short-circuit the case.
In Dep't of Transportation v. Stimpson, No. COA17-596 (Mar. 20, 2018), the N.C. Court of Appeals held that the DOT could not institute an eminent domain action to take land that it had already been deemed to have taken -- or be taking -- in an inverse condemnation action.
The facts of the case are pretty straightforward. North Carolina's Map Act (as we detailed here) allows the DOT to designate land for future highway acquisition and prohibits development in the interim. The N.C. Supreme Court held the restrictions constitute a taking of the owners' property, and that the taking in these cases occurred when the DOT recorded the corridor maps which restricted the owners' use of their land. Land banking doesn't cut it.
On remand, the trial court ordered the DOT to "comply with the requirements of Article 9, Chapter 136, 'Condemnation,' for all the plaintiffs, including filing plats, obtaining appraisals, and depositing good faith estimates of the value of the properties involved." Slip op. at 3. Although the relief the owners seek in the inverse case is compensation for the taking of their fee simple interests, the trial court reserved ruling on what property interests had been taken and the amount of compensation.
In response, the DOT appealed (and lost), and then filed a direct condemnation action to take the fee simple interest in the properties. It made a deposit, which normally would have vested title in the DOT under N.C.'s quick take procedure. You told us to take the property, so we did.
The court dismissed the condemnation, agreeing with the owners that the property had already been taken (or maybe more accurately, the Supreme Court had already held that property had been taken, and the trial court was in the process of determining exactly what property), and that you cannot have two ongoing cases in which the same property is being condemned. ("Abatement" for all you common law types.)
In his motion to dismiss, Defendant argued that, because he filed an action for inverse condemnation pursuant to N.C.G.S. § 136-111 on 9 May 2016, and because Defendant’s inverse condemnation action concerns substantially the same parties and subject matter as DOT’s 13 December 2016 direct condemnation action, DOT’s action must be abated.
Slip op. at 11.
The Court of Appeals affirmed, rejecting the DOT's argument that the property, issues, and relief are different in the two cases:
DOT fails to convey to this Court any utility in initiating a condemnation action concerning a property already subject to a condemnation action, nor how DOT’s action could result in anything other than confusion and delay – as is currently the situation for the Property, as well as the properties involved in the companion appeals. We hold that the prior pending action doctrine applies in this case, and on these facts Defendant’s Action served to prevent DOT from proceeding with a direct condemnation action pursuant to N.C.G.S. § 136-103.
Slip op. at 16.
The court held that the DOT can't use an eminent domain action to "derail" an ongoing inverse case (which was initiated precisely because the DOT did not condemn on its own). Responding to the DOT's argument that it is condemning fee simple title, but the trial court has not yet determined which property interests were inversely condemned, the court noted that the DOT could have brought a counterclaim in the inverse case to take whatever interests were not taken by the application of the Map Act:
However, DOT instead continues to seek to proceed by its own direct condemnation actions – actions it only decided to file after years of litigation involving hundreds of plaintiffs who have been seeking the same resolution through inverse condemnation actions, some of which were filed over seven years ago. We do not believe the General Assembly contemplated Article 9 to permit direct condemnation actions and inverse condemnation actions concerning the same property to be litigated simultaneously, and we find nothing in Article 9 or elsewhere granting DOT that right. We therefore affirm the 23 February 2017 order dismissing DOT’s 13 December 2016 action.
Slip op. at 19.
You say "taking," I say "taken." Either way, court says you can't have two.
Congratulations to our colleague Matthew Bryant for yet another win.
More on the case here from the Winston-Salem Journal, "Winston-Salem Northern Beltway landowners win N.C. Court of Appeals ruling that may speed settlements."
Will there be more? Who knows, but these Map Act cases just keep on giving, so we would not be surprised.
North Carolina Dep't of Transportation v. Stimpson, No. COA17-596-1 (N.C. App. Mar. 202, 2018)
