Fixing Map Act's Key Problems Requires Repeal
Publisher's note: This article was created by the CJ Staff of the Carolina Journal, John Hood Publisher.
New JLF report pans inefficient, unfair, unconstitutional law
RALEIGH Full-scale repeal offers the only solution for N.C. legislators to fix all problems tied to the state's Map Act. That's the conclusion of a new John Locke Foundation Spotlight report.
The report arrives as the General Assembly considers multiple bills targeting the Map Act. Approved in 1987, the act allows the N.C. Department of Transportation to place a development moratorium on any land designated as part of a "transportation corridor" for future road projects.
"The Map Act is economically inefficient, it is unfair, it is unconstitutional, and it is unnecessary," said report author Jon Guze, JLF Director of Legal Studies. "Making piecemeal statutory changes cannot solve these problems. It is time to repeal the Map Act."
No building permits are permitted for property covered in a Map Act corridor. No subdivisions can be approved. "There are no time limits on these development moratoria, and the DOT has been using them to control large tracts of land for years, without initiating condemnation proceedings and without compensating the land's owners," Guze said.
Imposing a long-term development moratorium represents a "crude and inefficient" approach to transportation planning, Guze said. "Given rapid economic, demographic, and technological change, it is far from clear that the DOT, or any central planner, can accurately project, decades in advance, what North Carolina's transportation needs will be."
Even if accurate projections were possible, that does not mean that the land should remain completely undeveloped before it's needed for the transportation project, Guze added.
"There will almost always be productive interim uses to which the land could be put," he said. "Forbidding those deprives the public of the goods and services that would have been produced, places an unnecessary barrier in the way of economic growth, and makes everyone poorer."
In addition to efficiency problems, Guze's report explains why the Map Act is unfair to affected property owners. "Because it cannot be improved in any way, land within a transportation corridor loses value and becomes difficult to sell, and that is precisely the point," he said. "The Map Act was enacted to reduce the amount the DOT has to pay for such land when it eventually takes it."
Lower costs for the DOT do not mean lower costs for right-of-way acquisition, Guze said. "Rather than reducing costs, the Map Act shifts the cost from those who ought to bear it — the citizenry as a whole — to a small number of citizens whose property happens to lie in the path of a corridor."
A recent N.C. Court of Appeals ruling also points out the Map Act's constitutional problems, Guze said. In a case involving Forsyth County property owners with Map Act restrictions dating back to the late 1990s, appellate judges ruled that the Map Act represents use of the state's power of eminent domain.
"That means compensation must be paid, which is a major victory for the long-suffering property owners," Guze said. "The N.C. DOT has appealed the ruling, but the state Supreme Court is unlikely to rule in a way that will be favorable to the Map Act. The Appeals Court ruling followed the Supreme Court's own guidance from a previous Map Act case."
Legislators have pursued three different approaches this year to address Map Act issues. While one Senate bill makes minor clarifications and another proposes several "significant modifications," neither represents a "satisfactory response" to the Court of Appeals' decision, Guze said. "What is needed is a completely different approach to transportation planning."
House Bill 183 calls for complete repeal of the Map Act and instructs the DOT to develop a new process for acquiring land. The House approved the bill, 114-0, in April. Eleven state senators sponsored similar legislation in their chamber.
Guze's report lists three lessons from the "Map Act debacle" that should guide deliberations about a new land-acquisition process. "First, any regulation of land use within projected transportation corridors should be applied as lightly and briefly as possible, avoiding blanket development moratoria."
"Second, owners of regulated property should be promptly and fully compensated for any significant losses they incur," Guze said. "Third, the task of regulation should probably be assigned, not to the N.C. DOT, but to the appropriate local authorities."
Only 13 states have a law like the Map Act, Guze said. "In the other 37 states, the transportation department designs and builds the roads, and local authorities provide whatever is required in the way of land-use regulation," he said. "Those 37 states seem able to provide for their transportation needs without difficulty. There is no reason why North Carolina could not do so as well. The Map Act is unnecessary."
"Repealing the Map Act should pave the way for developing a new approach to transportation planning in North Carolina — one that delivers the roads and other transportation infrastructure we need, while simultaneously protecting our rights and promoting our economic well-being."