February 17, 2015
EVERETTE E. KIRBY and Wife, MARTHA KIRBY; HARRIS TRIAD HOMES, INC.; MICHAEL HENDRIX, as Executor of the Estate of Frances Hendrix; DARREN ENGELKEMIER; IAN HUTAGALUNG; SYLVIA MAENDL; STEVEN DAVID STEPT; JAMES W. NELSON and wife, PHYLLIS H. NELSON; and REPUBLIC PROPERTIES, LLC, a North Carolina company (Group 1 Plaintiffs), Plaintiffs,
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant
Heard in the Court of Appeals: August 12, 2014.
[Copyrighted Material Omitted]
Hendrick Bryant Nerhood & Otis, LLP, by Matthew H. Bryant, T. Paul Hendrick, Timothy Nerhood, and Kenneth C. Otis, III, for Plaintiffs.
Attorney General Roy Cooper, by Special Deputy Attorney General Dahr Joseph Tanoury and Assistant Attorney General John F. Oates, Jr., for Defendant.
McGEE, Chief Judge. Judges BRYANT and STROUD concur.
Appeal by Plaintiffs and Cross-Appeal by Defendant from orders entered 8 January 2013 and 20 June 2013 by Judge John O. Craig, III in Superior Court, Forsyth County,
Nos. 11 CVS 7119-20, 11 CVS 8170-74, 8338, 12 CVS 2898. Rule 2.1 Cases.
McGEE, Chief Judge.
Everette E. and Martha Kirby (" Mr. and Mrs. Kirby" ), Harris Triad Homes, Inc. (" Harris Triad" ), Michael Hendrix, as Executor of the Estate of Frances Hendrix (" the Hendrix Estate" ), Darren Engelkemier (" Mr. Engelkemier" ), Ian Hutagalung (" Mr. Hutagalung" ), Sylvia Maendl (" Ms. Maendl" ), Steven David Stept (" Mr. Stept" ), James W. and Phyllis H. Nelson (" Mr. and Mrs. Nelson" ), and Republic Properties, LLC (" Republic" ) (collectively " Plaintiffs" ) appeal from: (1) the trial court's 8 January 2013 order granting Defendant North Carolina Department of Transportation's (" NCDOT" ) motions to dismiss Plaintiffs' claims alleging violations of the Constitutions of the United States and of the State of North Carolina; and (2) the trial court's 20 June 2013 order granting NCDOT's summary judgment motion on (a)
Plaintiffs' inverse condemnation claims under N.C. Gen. Stat. § 136-111, and (b) Plaintiffs' -- excluding Harris Triad's -- claims seeking declaratory judgments. NCDOT cross-appeals from the same orders. For the reasons stated, we reverse the orders of the trial court and remand this matter for further proceedings consistent with this opinion.
I. Factual Background and Procedural History
This case concerns, in broad terms, challenges to the constitutionality and propriety of legislation related to the proposed development of a thirty-four-mile highway that would loop around the northern part of the City of Winston-Salem (" the Northern Beltway" or " the Northern Beltway Project" ) in Forsyth County, North Carolina. Plaintiffs Mr. and Mrs. Kirby, the Hendrix Estate, Mr. Engelkemier, Mr. Hutagalung, Ms. Maendl, Mr. Stept, and Republic own real property located in the section of the Northern Beltway that would extend from U.S. Highway 52 to U.S. Highway 311 in eastern Forsyth County (" the Eastern Loop" ). Plaintiffs Harris Triad and Mr. and Mrs. Nelson own real property located in the section of the Northern Beltway that would extend from U.S. Highway 158 to U.S. Highway 52 in western Forsyth County (" the Western Loop" ).
Before Plaintiffs filed their respective complaints with the trial court, our Court considered a separate case brought by several plaintiffs who owned real property in both sections of the proposed Northern Beltway Project, and who alleged almost identical claims against NCDOT as those alleged by Plaintiffs in the present case. See Beroth Oil Co. v. N.C. Dep't of Transp. ( Beroth I ), 220 N.C.App. 419, 420, 423-24, 725 S.E.2d 651, 653, 655 (2012), aff'd in part, vacated in part, and remanded, 367 N.C. 333, 757 S.E.2d 466 (2014). Because the challenged legislation and general factual background of the present case are the same as those underlying this Court's and our Supreme Court's respective decisions in the Beroth case -- which we will discuss in further detail later in this opinion -- we rely on those decisions to recount the relevant background of the case now before us.
In Beroth I, this Court stated: " In 1989, our General Assembly established the North Carolina Highway Trust Fund to finance the construction of 'urban loops' around designated urban areas." Id. at 420 n.1, 725 S.E.2d at 653 n.1. " The Northern Beltway Project has been in the works for more than two decades," id., and " [t]he area encompassed by the Northern Beltway Project was and remains designated for development." Id. Pursuant to the Transportation Corridor Official Map Act (" the Map Act" ), see N.C. Gen. Stat. § § 136-44.50 to -44.54 (2013), NCDOT " recorded corridor maps with the Forsyth County Register of Deeds on 6 October 1997 and 26 November 2008 identifying transportation corridors for the construction of . . . the Northern Beltway." Beroth Oil Co. v. N.C. Dep't of Transp. ( Beroth II ), 367 N.C. 333, 334, 757 S.E.2d 466, 468 (2014).
Pursuant to the Map Act, after a transportation corridor official map is filed with the register of deeds and other notice provisions are met, see N.C. Gen. Stat. § § 136-44.50(a1), 136-44.51(a) (2013), " the Map Act imposes certain statutory restrictions on landowners within the corridor." Beroth I, 220 N.C.App. at 421, 725 S.E.2d at 654. Specifically, N.C. Gen. Stat. § 136-44.51(a) provides that " no building permit shall be issued for any building or structure or part thereof located within the transportation corridor, nor shall approval of a subdivision . . . be granted with respect to property within the transportation corridor." N.C. Gen. Stat. § 136-44.51(a).
The Map Act provides three potential avenues of relief from the statutory restrictions imposed upon affected property located within a transportation corridor. First, as we said in Beroth I, the Map Act provides a maximum three-year limit on the building permit issuance restrictions set forth in N.C. Gen. Stat. § 136-44.51(a). See id. § 136-44.51(b). If an application for a building permit is still being reviewed three years after the date of the original submittal to the appropriate local jurisdiction, the entity responsible for adopting the transportation corridor official map affecting the issuance of building permits or subdivision plat approval " shall issue approval for an otherwise eligible request or initiate acquisition proceedings on
the affected properties," id., or " an applicant within the corridor may treat the real property as unencumbered and free of any restriction on sale, transfer, or use established by [the Map Act]." Id.
Second, in accordance with the procedures set forth in N.C. Gen. Stat. § 136-44.52, the Map Act allows property owners within the transportation corridor to petition for a variance from the Map Act's restrictions, which may be granted upon a showing that, as a result of the Map Act's restrictions, " no reasonable return may be earned from the land," N.C. Gen. Stat. § 136-44.52(d)(1) (2013), and such requirements " result in practical difficulties or unnecessary hardships." Id. § 136-44.52(d)(2).
Finally, the Map Act provides that, once a transportation corridor official map is filed, a property owner " has the right of petition to the filer of the map for acquisition of the property due to an imposed hardship [('the Hardship Program')]." N.C. Gen. Stat. § 136-44.53(a) (2013). Upon such petition, the entity that initiated the transportation corridor official map " may make advanced acquisition of specific parcels of property when that acquisition is determined by the respective governing board to be in the best public interest to protect the transportation corridor from development or when the transportation corridor official map creates an undue hardship on the affected property owner." Id. The Map Act further provides that this same entity is tasked with the responsibility of " develop[ing] and adopt[ing] appropriate policies and procedures to govern the advanced acquisition of right-of-way and . . . assur[ing] that the advanced acquisition is in the best overall public interest." Id. § 136-44.53(b).
According to an affidavit by NCDOT's Right-of-Way Branch Manager, Virgil Ray Pridemore, Jr. (" Mr. Pridemore" ) -- who is responsible for the implementation of right-of-way policies and administration of all phases of NCDOT acquisition work in the NCDOT Raleigh central office -- he makes his decisions with respect to the Hardship Program applications by relying on " the criteria and regulations in the NCDOT Right[-]of[-]Way Manual, the [Code of Federal Regulations], and input and recommendations from various NCDOT staff members from the preconstruction and roadway design branches, NCDOT Advance Acquisition Review Committee members, and representatives from [the Federal Highway Administration]." The Map Act further provides that " [a]ny decision" made with respect to a Hardship Program petition " shall be final and binding." Id. § 136-44.53(a).
Between October 2011 and April 2012, Plaintiffs separately filed complaints against NCDOT alleging that NCDOT's actions " placed a cloud upon title" to Plaintiffs' respective properties, rendered Plaintiffs' properties " unmarketable at fair market value, economically undevelopable, and depressed Plaintiff[s'] property values." Plaintiffs' complaints also alleged that NCDOT treated similarly situated property owners differently by " depriving Plaintiff[s] of the value of their Properties, . . . substantially interfering with the Plaintiff[s'] elemental and constitutional rights growing out of the ownership of the Properties, and . . . restricting the Plaintiff[s'] capacity to freely sell their Properties." Plaintiffs further alleged that the administrative remedies offered by NCDOT were " inadequate and unconstitutional," and, thus, " futile" and not subject to exhaustion. Finally, Plaintiffs alleged that the Hardship Program was " unequal in its treatment of similarly situated persons in the Northern Beltway in that physically unhealthy or financially distressed owners are considered for acquisition yet healthy and financially stable owners are not."
Plaintiffs' complaints set forth the following claims for relief: a taking through inverse condemnation pursuant to N.C. Gen. Stat. § 136-111; a taking in violation of the Fifth Amendment of the United States Constitution, as applied to NCDOT through the Fourteenth Amendment; a violation of the Equal Protection Clause of the Fourteenth Amendment; a taking in violation of Article I, Section 19 (the " Law of the Land" Clause) of the North Carolina Constitution; and a declaration that the Map Act and, specifically, the Map Act's Hardship Program are unconstitutional and " invalid exercises of legislative power as they affect a taking by the
NCDOT without just compensation and are unequal in their application to property owners." NCDOT answered and moved to dismiss each of Plaintiffs' respective complaints with prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(1), (b)(2), and (b)(6), asserting various affirmative defenses, including sovereign immunity, statutes of limitation and repose, failure to exhaust administrative remedies, and lack of standing and ripeness.
Given " the identical nature of the causes of action and legal theories, similarity of the subject matter, need for similar discovery, expert testimony, and other factual issues" of the parties in the present action and in a series of companion cases that were or were soon-to-be filed, counsel for Plaintiffs and NCDOT filed a joint motion pursuant to Rule 2.1 of North Carolina's General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure on 27 July 2012. In this joint motion, the parties requested that the trial court recommend to the Chief Justice of our State's Supreme Court that these cases be designated as " exceptional." In an order entered 31 July 2012, the Chief Justice granted the parties' joint motion pursuant to Rule 2.1. For case management purposes, in a subsequent order entered 8 January 2013, the trial court ordered that these exceptional cases be split into three groups. Plaintiffs in the present case were designated by the trial court as " Group 1" Plaintiffs and are the only plaintiffs who are parties to this appeal.
The trial court heard NCDOT's motions to dismiss the complaints of Group 1, Group 2, and Group 3 Plaintiffs, and entered an order on 8 January 2013 disposing of the motions concerning all three groups as follows:
1. Defendant's motions to dismiss with prejudice are DENIED regarding the claims for inverse condemnation, under N.C. Gen. Stat. § 136-111; . . . and claims seeking Declaratory Judgments as to the constitutionality of the Hardship Program and the " Map Act," statutes N.C. Gen. Stat. § § 136-44.50, 136-44.51, 136-44.52 and 136-44.53.
2. Defendant's motions to dismiss with prejudice are GRANTED regarding all remaining claims, including a taking under N.C. Const. art. I, § 19, Law of the Land; a taking under the Fifth Amendment of the United States Constitution, as applied to Defendant through the Fourteenth Amendment; and claims for Equal Protection violations under the Fourteenth Amendment of the United States Constitution.
Group 1 Plaintiffs -- who are Plaintiffs in the present case -- and NCDOT filed cross-motions for summary judgment with respect to the remaining claims for inverse condemnation under N.C. Gen. Stat. § 136-111 and for declaratory judgments as to the constitutionality of the Map Act and the Map Act's Hardship Program; NCDOT additionally moved to exclude Plaintiffs' affidavits and exhibits submitted in support of Plaintiffs' motion for summary judgment. Over NCDOT's objections, Plaintiffs also moved to amend their complaints, pursuant to N.C. Gen. Stat. § 1A-1, Rule 15, to include allegations in support of Plaintiffs' contention that " the taking is presently occurring and did occur at an earlier date upon any of the events in time" that Plaintiffs sought to incorporate into their respective complaints.
The trial court entered its order on the parties' cross-motions for summary judgment on 20 June 2013. With respect to Plaintiffs' inverse condemnation claims, the trial court first concluded that Plaintiffs' claims were not yet ripe. Citing Beroth I, the trial court determined that the purported takings at issue were exercises of the State's police power rather than exercises of the State's power of eminent domain, and that an " ends-means" analysis was the proper method to determine whether the exercise of that police power, in fact, resulted in the purported takings.
The trial court reasoned that, in their original complaints, Plaintiffs alleged only that the effective dates of NCDOT's purported takings occurred when the transportation corridor maps for the Western and Eastern Loops were recorded in the Forsyth County Register of Deeds in 1997 and 2008, respectively. The trial court stated that " it is established North Carolina law that mere recording of project maps do not constitute a
taking," and found that all Plaintiffs " claim the date of the taking occurred when the maps were published, and do not claim the taking took place on any other dates." Thus, the trial court granted NCDOT's motion for summary judgment with respect to Plaintiffs' inverse condemnation claims, and denied Plaintiffs' motion for the same.
With respect to Plaintiffs' claims for declaratory judgments as to the constitutionality of the Map Act and the Map Act's Hardship Program, the trial court determined that all such claims, except for those by Harris Triad, were not ripe and were " subject to dismissal due to a lack of standing to bring a declaratory action." The trial court noted that, with the exception of Harris Triad, no Group 1 Plaintiffs applied for variances, permits, or the Hardship Program, or accepted any offers from NCDOT to purchase their respective properties. Although Plaintiffs in the present case asserted that such applications would be futile, the trial court reasoned that challenges under the Declaratory Judgment Act necessitated a showing that each Plaintiff did, or soon would, sustain an injury as a result of a final determination by NCDOT concerning how each may " be permitted" to use his or her own property. Thus, the trial court granted NCDOT's motion for summary judgment with respect to all Plaintiffs' equal protection claims, except for those brought by Harris Triad, and denied those Plaintiffs' motion for the same.
With respect to Harris Triad's claim for a declaratory judgment as to the constitutionality of the Map Act and the Map Act's Hardship Program, because Harris Triad had applied for the Hardship Program and was denied, the trial court determined that Harris Triad was " cur[ed]" of the " standing problems that beset the remaining Plaintiffs." The trial court then undertook a rational basis review of Harris Triad's equal protection claim and, after finding that the evidence showed " unequal application of the [H]ardship [P]rogram" and " puzzling decisions that emanated from the NCDOT regional office regarding the [P]rogram," the trial court concluded that Harris Triad " successfully presented evidence that [its] company was denied a [H]ardship [P]rogram offer while other similarly-situated parties were accepted and were paid a fair price for their land and improvements." Thus, the trial court denied NCDOT's motion for summary judgment with respect to Harris Triad's equal protection claim, and concluded that Harris Triad could " go forward in an attempt to prove [an as-applied] claim that [the] company's rights ha[d] been violated," and that the scope of such review " must encompass the entire history of hardship purchases for this particular Forsyth County project," and should not be limited by time or geography -- i.e., the review should examine " the entire history of" NCDOT's Hardship Program decisions as to both Western and Eastern Loop purchases.
Plaintiffs appealed from the trial court's 8 January 2013 order granting NCDOT's motions to dismiss Plaintiffs' claims, and from the trial court's 20 June 2013 order on the cross-motions for summary judgment. NCDOT cross-appealed from the same orders.
Because all parties urge this Court to examine the Beroth I and Beroth II decisions as we undertake our analysis of the issues presented on appeal in the present case, we first examine the questions presented and answered by our appellate Courts' decisions in Beroth I and Beroth II. In Beroth I, as in the present case, the trial court had entered an order denying NCDOT's motion to dismiss the plaintiffs' claims for inverse condemnation and the plaintiffs' requests for a declaratory judgment that the Map Act and the Map Act's Hardship Program were unconstitutional. See Beroth I, 220 N.C.App. at 424, 725 S.E.2d at 656. However, unlike the present case, the Beroth I plaintiffs did not appeal from that order. See id. at 425, 725 S.E.2d at 656. Instead, in Beroth I, the question before this Court was whether the
trial court had erred by entering a separate order denying the plaintiffs' motion for class certification of their inverse condemnation claims. Id. at 425-26, 725 S.E.2d at 656-57. Although this Court did declare that the plaintiffs and " all owners of real property located within the corridor have sustained the effects of government action," id. at 430, 725 S.E.2d at 659, we maintained that " [w]hether this action constitutes a taking . . . [wa]s not the question before this Court," id., and that we were not expressing any opinion on that issue. See id.
Nevertheless, to answer the question presented, this Court undertook an extensive review of " takings" law and examined whether the trial court erred by employing an ends-means analysis to conclude that the plaintiffs' individual issues would predominate over their common issues, if any. See id. at 431-37, 725 S.E.2d at 660-63. This Court then concluded that " the distinguishing element in determining the proper takings analysis [wa]s not whether police power or eminent domain power [wa]s at issue, but whether the government act physically interfere[d] with or merely regulate[d] the affected property," id. at 437, 725 S.E.2d at 663, and determined that the trial court correctly relied on the ends-means analysis because the alleged takings were " regulatory in nature." Id. This Court also determined that the property interest at issue was " in the nature of an easement right," id. at 438, 725 S.E.2d at 664, because the plaintiffs had " relinquished their right to develop their property without restriction." Id. This Court then upheld the trial court's denial of the plaintiffs' request for class certification because we determined: " [w]hile the Map Act's restrictions may be common to all prospective class members, liability can be established only after extensive examination of the circumstances surrounding each of the affected properties," id. at 438-39, 725 S.E.2d at 664; and " [w]hether a particular property owner has been deprived of all practical use of his property and whether the property has been deprived of all reasonable value require case-by-case, fact-specific examinations regarding the affected property owner's interests and expectations with respect to his or her particular property." Id. at 439, 725 S.E.2d at 664. Finally, although this Court " stress[ed]" that our holding had " no bearing on [the plaintiffs'] declaratory judgment claim[s]," id. at 442, 725 S.E.2d at 666, we recognized that the plaintiffs did not need to be members of a class in order to obtain a declaration that the Hardship Program and the Map Act were unconstitutional and invalid exercises of legislative power and were unequal in their application to property owners, because " [i]f the Map Act [wa]s declared unconstitutional to one, it [wa]s unconstitutional to all." Id.
Our Supreme Court later affirmed this Court's holding in Beroth I that the trial court " did not abuse its discretion in denying plaintiffs' motion for class certification because individual issues predominate over common issues." Beroth II, 367 N.C. at 347, 757 S.E.2d at 477. However, our Supreme Court also determined that the trial court and our Court " improperly engaged in a substantive analysis of plaintiffs' arguments with regard to the nature of NCDOT's actions and the impairment of their properties." Id. at 342, 757 S.E.2d at 474. Our Supreme Court then " expressly disavow[ed]" the portion of this Court's opinion that stated: " '[t]he trial court correctly relied upon the ends[-]means test in the instant case, as the alleged taking is regulatory in nature and as [the trial court] ha[s] specifically held this analysis applicable outside the context of zoning-based regulatory takings.'" Id. at 342-43, 757 S.E.2d at 474 (first and fourth alterations in original) (quoting Beroth I, 220 N.C.App. at 437, 725 S.E.2d at 663).
As we noted above, in the present case, the trial court's 20 June 2013 summary judgment order determined all of Plaintiffs' claims, except for Harris Triad's declaratory judgment claim, which renders the appeals before us interlocutory. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2013) (" [A]ny order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes." ); Veazey v.
City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (" An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." ), reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). " Generally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Amer. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, " [n]otwithstanding this cardinal tenet of appellate practice, . . . immediate appeal is available from an interlocutory order or judgment which affects a 'substantial right.'" Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999) (citations omitted); see N.C. Gen. Stat. § 1-277(a) (2013) (" An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding[.]" ); N.C. Gen. Stat. § 7A-27(b)(3)(a) (2013) (" Appeal lies of right directly to the Court of Appeals . . . [f]rom any interlocutory order or judgment of a superior court or district court in a civil action or proceeding which . . . [a]ffects a substantial right." ). Because this Court has previously held that an order granting partial summary judgment on the issue of NCDOT's liability to pay just compensation for a claim for inverse condemnation is an immediately appealable interlocutory order affecting a substantial right, see Nat'l Adver. Co. v. N.C. Dep't of Transp., 124 N.C.App. 620, 623, 478 S.E.2d 248, 249 (1996) (citing City of Winston-Salem v. Ferrell, 79 N.C.App. 103, 106-07, 338 S.E.2d 794, 797 (1986)), we will consider the merits of the issues on appeal that are properly before us.
A. Power of Eminent Domain and Police Powers
Plaintiffs first contend the trial court erred when it determined their claims for inverse condemnation were not yet ripe because Plaintiffs' respective properties had not yet been taken. Plaintiffs assert the trial court erred because the takings occurred when the transportation corridor maps for the Western and Eastern Loops were recorded in 1997 and 2008, respectively. Plaintiffs further urge that the takings were either an exercise of the State's power of eminent domain, for which they are due just compensation, or were an improper exercise of the State's police powers.
" [A]lthough the North Carolina Constitution does not contain an express provision prohibiting the taking of private property for public use without payment of just compensation," Finch v. City of Durham, 325 N.C. 352, 362-63, 384 S.E.2d 8, 14, reh'g denied, 325 N.C. 714, 388 S.E.2d 452 (1989), our Supreme Court has " inferred such a provision as a fundamental right integral to the 'law of the land' clause in article I, section 19 of our Constitution." Id. at 363, 384 S.E.2d at 14.
" The legal doctrine indicated by the term, 'inverse condemnation,' is well established in this jurisdiction," City of Charlotte v. Spratt, 263 N.C. 656, 663, 140 S.E.2d 341, 346 (1965), and provides that, where private property is " taken for a public purpose by a[n] . . . agency having the power of eminent domain under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor." Id. Inverse condemnation is " a term often used to designate a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency." Id. at 662-63, 140 S.E.2d at 346 (internal quotation marks omitted); see Ferrell, 79 N.C.App. at 108, 338 S.E.2d at 798 (" Inverse condemnation is a device which forces a governmental body to exercise its power of condemnation, even though it may have no desire to do so." (internal quotation marks omitted)). The remedy allowed by inverse condemnation, which is now codified in N.C. Gen. Stat. § 136-111, see Ferrell, 79 N.C.App. at 108, 338 S.E.2d at 798, provides, in relevant part:
Any person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the Department of Transportation and no complaint and declaration of taking has been filed by said Department of Transportation may, within 24 months of the date of the taking of the affected property or interest therein or the completion of the project involving the taking, whichever shall occur later, file a complaint in the superior court . . . alleg[ing] with particularity the facts which constitute said taking together with the dates that they allegedly occurred; said complaint shall describe the property allegedly owned by said parties and shall describe the area and interests allegedly taken.
N.C. Gen. Stat. § 136-111 (2013).
" An action in inverse condemnation must show (1) a taking (2) of private property (3) for a public use or purpose." Adams Outdoor Adver. of Charlotte v. N.C. Dep't of Transp., 112 N.C.App. 120, 122, 434 S.E.2d 666, 667 (1993). " In order to recover for inverse condemnation, a plaintiff must show an actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental[.]" Long v. City of Charlotte, 306 N.C. 187, 199, 293 S.E.2d 101, 109 (1982). Because " [t]he question of what constitutes a taking is often interwoven with the question of whether a particular act is an exercise of the police power or of the power of eminent domain," see Barnes v. N.C. State Highway Comm'n, 257 N.C. 507, 514, 126 S.E.2d 732, 737-38 (1962) (internal quotation marks omitted), in order to address whether Plaintiffs' respective properties have been taken pursuant to the Map Act, and, thus, whether the trial court erred by dismissing as unripe Plaintiffs' claims for inverse condemnation, we consider whether the Map Act confers upon the State the right to exercise its power of eminent domain or to exercise its police power.
" Eminent domain means the right of the [S]tate or of the person acting for the [S]tate to use, alienate, or destroy property of a citizen for the ends of public utility or necessity." Griffith v. S. Ry. Co., 191 N.C. 84, 89, 131 S.E. 413, 416 (1926). " This power is one of the highest attributes of sovereignty, and the extent of its exercise is limited to the express terms or necessary implication of the statute delegating the power." Id.; Town of Morganton v. Hutton & Bourbonnais Co., 251 N.C. 531, 533, 112 S.E.2d 111, 113 (1960) (" The power of eminent domain, that is, the right to take private property for public use, is inherent in sovereignty." ). " The right of eminent domain which resides in the State is defined to be [t]he rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common," Spencer v. R.R., 137 N.C. 107, 121, 49 S.E. 96, 101 (1904) (internal quotation marks omitted), " and to appropriate and control individual property for the public benefit as the public safety, necessity, convenience or welfare may demand." Id. at 121-22, 49 S.E. at 101 (internal quotation marks omitted). " This right or power is said to have originated in State necessity, and is inherent in sovereignty and inseparable from it." Id. at 122, 49 S.E. at 101.
In Wissler v. Yadkin River Power Co., 158 N.C. 465, 74 S.E. 460 (1912), our Supreme Court recognized that the phrase " eminent domain" " originated in the writings of an eminent publicist, Grotius, in 1625," id. at 466, 74 S.E. at 460, who wrote:
The property of subjects is under the eminent domain of the State, so that the State, or he who acts for it, may use and even alienate and destroy such property, not only in case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way.
Id. (internal quotation marks omitted). Thus, " [t]he right of the public to private property, to the extent that the use of it is needful and advantageous to the public, must, we think, be universally acknowledged." Raleigh & Gaston R.R. Co. v. Davis, 19 N.C. 451, 455-56 (2 Dev. & Bat.) (1837) (per curiam).
[W]hen the use is in truth a public one, when it is of a nature calculated to promote the general welfare, or is necessary to the common convenience, and the public is, in fact, to have the enjoyment of the property or of an easement in it, it cannot be denied, that the power to have things before appropriated to individuals again dedicated to the service of the [S]tate, is a power useful and necessary to every body politic.
Id. at 456.
" A familiar instance of the exercise of th[is] power . . . is that of devoting private property to public use as a highway. A nation could not exist without these powers, and they involve also the welfare of each citizen individually." Id.; see Nichols on Eminent Domain § 1.22, at 1-78 (rev. 3d ed. 2013) [hereinafter Nichols] (" The primary object for the exercise of eminent domain in any community is the establishment of roads." ). " An associated people cannot be conceived, without avenues of intercommunication, and therefore the public must have the right to make them without, or against, the consent of individuals." Raleigh & Gaston R.R. Co., 19 N.C. at 456. " [I]t is a power founded on necessity. But it is a necessity that varies in urgency with a population and production increasing or diminishing, and demanding channels of communication, more or less numerous and improved, and therefore to be exercised according to circumstances, from time to time." Id. at 458.
However, " [o]ur Constitution, Art. I, sec. 17, requires payment of fair compensation for the property so taken [pursuant to the State's power of eminent domain]. This is the only limitation imposed on sovereignty with respect to taking." Hutton & Bourbonnais Co., 251 N.C. at 533, 112 S.E.2d at 113. " The taking must, of course, be for a public purpose, but the sovereign determines the nature and extent of the property required for that purpose." Id. " It may take for a limited period of time or in perpetuity." Id. " It may take an easement, a mere limited use, leaving the owner with the right to use in any manner he may desire so long as such use does not interfere with the use by the sovereign for the purpose for which it takes," id., " or it may take an absolute, unqualified fee, terminating all of defendant's property rights in the land taken." Id.
" What distinguishes eminent domain from the police power is that the former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent its use thereof in a manner that is detrimental to the public interest." Nichols § 1.42, at 1-132 to 1-133 (footnote omitted). " The police power may be loosely described as the power of the sovereign to prevent persons under its jurisdiction from conducting themselves or using their property to the detriment of the general welfare." Id. § 1.42, at 1-133, 1-142. " The police power is inherent in the sovereignty of the State. It is as extensive as may be required for the protection of the public health, safety, morals and general welfare." A-S-P Assocs. v. City of Raleigh, 298 N.C. 207, 213, 258 S.E.2d 444, 448 (1979) (citation omitted); Skinner v. Thomas, 171 N.C. 98, 100-01, 87 S.E. 976, 977 (1916) (" It is the power to protect the public health and the public safety, to preserve good order and the public morals, to protect the lives and property of the citizens, the power to govern men and things by any legislation appropriate to that end." (internal quotation marks omitted)). " Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly-populated community, the enjoyment of private and social life, and the beneficial use of property." Skinner, 171 N.C. at 101, 87 S.E. at 977 (internal quotation marks omitted).
[T]he police power [is] the power vested in the Legislature by the Constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same.
Durham v. Cotton Mills, 141 N.C. 615, 639-40, 54 S.E. 453, 462 (1906).
" Laws and regulations of a police nature . . . do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner." Nichols § 1.42, at 1-145 to 1-146, 1-148. " 'Regulation' implies a degree of control according to certain prescribed rules, usually in the form of restrictions imposed on a person's otherwise free use of the property subject to the regulation." Id. § 1.42, at 1-145.
" [T]here is a considerable resemblance between the police power and the power of eminent domain in that each power recognizes the superior right of the community against . . . individuals," id. § 1.42, at 1-153, " the one preventing the use by an individual of his own property in his own way as against the general comfort and protection of the public," id., " and the other depriving him of the right to obstruct the public necessity and convenience by obstinately refusing to part with his property when it is needed for the public use." Id. § 1.42, at 1-153 to 1-154. " Not only is an actual physical appropriation, under an attempted exercise of the police power, in practical effect an exercise of the power of eminent domain," id. § 1.42, at 1-157, " but if regulative legislation is so unreasonable or arbitrary as virtually to deprive a person of the complete use and enjoyment of his property, it comes within the purview of the law of eminent domain." Id.
" In the exercise of eminent domain[,] property or an easement therein is taken from the owner and applied to public use because the use or enjoyment of such property or easement therein is beneficial to the public." Id. § 1.42, at 1-203. " In the exercise of the police power[,] the owner is denied the unrestricted use or enjoyment of his property, or his property is taken from him because his use or enjoyment of such property is injurious to the public welfare." Id. " Under the police power the property is not generally appropriated to another use, but is destroyed or its value impaired, while under the power of eminent domain it is transferred to the [S]tate to be enjoyed and used by it as its own." Id. § 1.42, at 1-203, 1-212, 1-214 (footnote omitted).
Police powers are " established for the prevention of pauperism and crime, for the abatement of nuisances, and the promotion of public health and safety." Cotton Mills, 141 N.C. at 638-39, 54 S.E. at 461. " They are a just restraint of an injurious use of property, which the Legislature has authority to impose, and the extent to which such interference may be carried must rest exclusively in legislative wisdom, where it is not controlled by fundamental law." Id. at 639, 54 S.E. at 461.
It is a settled principle, essential to the right of self-preservation in every organized community, that however absolute may be the owner's title to his property, he holds it under the implied condition that its use shall not work injury to the equal enjoyment and safety of others, who have an equal right to the enjoyment of their property, nor be injurious to the community.
Id. (internal quotation marks omitted). " Rights of property are subject to such limitations as are demanded by the common welfare of society, and it is within the range and scope of legislative action to declare what general regulations shall be deemed expedient." Id. " This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor." Id. at 639-40, 54 S.E. at 461-62.
The State's police power " prescribe[s] regulations to promote the health, peace, morals, education, and good order of the people, and . . . legislate[s] so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity." Id. at 641, 54 S.E. at 462 (internal quotation marks omitted). " A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit." Id. at 642, 54 S.E. at 462 (internal quotation marks omitted); Brewer v. Valk, 204 N.C. 186, 189-90, 167 S.E. 638, 639-40 (1933) (" The police power is an attribute of sovereignty, possessed
by every sovereign state, . . . [whereby e]ach State has the power . . . to regulate the relative rights and duties of all persons, individuals and corporations, within its jurisdiction, for the public convenience and the public good." ). Such legislation " does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests." Cotton Mills, 141 N.C. at 642, 54 S.E. at 462 (internal quotation marks omitted).
In order to determine whether the Map Act in the present case is an exercise of the State's power of eminent domain or police powers, we find persuasive and instructive the Florida Supreme Court's approach to a comparable question concerning the constitutionality of a similar state statute in Joint Ventures, Inc. v. Department of Transportation, 563 So.2d 622 (Fla. 1990). In Joint Ventures, the court considered the constitutionality of a Florida statute that prohibited the development of property subject to a map of reservation recorded by the Florida Department of Transportation (" the Florida DOT" ). Joint Ventures, 563 So.2d at 623. The Florida statute provided that, with limited exception, properties subject to the map of reservation could not develop the land for a minimum of five years, which period could be extended for an additional five years. Id. The Florida DOT, like NCDOT in the present case, argued that the legislature " did not 'take' but merely 'regulated'" the plaintiff's property " in a valid exercise of the police power." Id. at 624. The court's inquiry thus concerned whether the statute was " an appropriate regulation under the police power, as [the Florida] DOT assert[ed], or whether the statute [wa]s merely an attempt to circumvent the constitutional and statutory protections afforded private property ownership under the principles of eminent domain." Id. at 625.
The Florida DOT suggested that the statute was " a permissible regulatory exercise of the state's police power because it was necessary for various economic reasons." Id. (" [W]ithout a development moratorium, land acquisition costs could become financially infeasible. If landowners were permitted to build in a transportation corridor during the period of [the Florida] DOT's preacquisition planning, the cost of acquisition might be increased." ). However, the Florida Supreme Court determined that, " [r]ather than supporting a 'regulatory' characterization," id., the circumstances showed the statutory scheme to be an attempt to acquire land by sidestepping the protections of eminent domain. See id. The court reasoned: " [T]he legislative staff analysis candidly indicate[d] that the statute's purpose [wa]s not to prevent an injurious use of private property, but rather to reduce the cost of acquisition should the state later decide to condemn the property." Id. at 626. Because the court " perceive[d] no valid distinction between 'freezing' property in this fashion and deliberately attempting to depress land values in anticipation of eminent domain proceedings," id., the court determined that " the state exercised its police power with a mind toward property acquisition." Id. at 627 (emphasis added). Thus, although the court " d[id] not question the reasonableness of the state's goal to facilitate the general welfare," id. at 626, it was concerned " with the means by which the legislature attempt[ed] to achieve that goal," id., when such means were " not consistent with the constitution." Id. Because " [a]ssuring highway safety and acquiring land for highway construction are discrete state functions," id. at 627, the court held that the statute was unconstitutional, since it permitted the Florida DOT to take the plaintiff's private property without just compensation or the procedural protections of eminent domain. See id. at 627-28.
In the present case, when the General Assembly enacted the Map Act, it stated that the enabling legislation was " an act to control the cost of acquiring rights-of-way for the State's highway system." 1987 N.C. Sess. Laws 1520, 1520, 1538-42, ch. 747, § 19 (emphasis added). NCDOT argues that its use of the Map Act is for " corridor protection," which is " a planning tool NCDOT uses in designing and building highways because it allows the highway's proposed location to fit into the long-range plans a community has for its future development," and that corridor
protection " accomplish[es] more than merely 'saving taxpayers money.'"
According to an affidavit from Calvin William Leggett (" Mr. Leggett" ) -- the manager of NCDOT's Program Development Branch who is responsible for managing the official transportation corridor map program and is " familiar with NCDOT's corridor protection process and why NCDOT utilizes the Map Act to accomplish corridor protection" -- corridor protection generally, and the Map Act specifically: " facilitate orderly and predictable development; " " enable NCDOT to preserve the ability to build a road in a location that has the least impact on the natural and human environments; " " can minimize the number of businesses, homeowners, and renters who will have to be relocated once the project is authorized for right[-]of[-]way acquisition and construction; " and " protect the planned highway alignment by limiting future development within the corridor" and, thus, " reduc[e] future right[-]of[-]way acquisition costs for the proposed highway," which " represent the single largest expenditure for a transportation improvement, particularly in growing urbanized areas where transportation improvements needs are the greatest." In other words, NCDOT asserts that the restrictions of the Map Act are intended to facilitate a less disruptive and lower cost migration of residents and businesses " if or when" the Northern Beltway Project is sufficiently funded and is under construction, and that, without such restrictions, " proposed urban loop routes could be jeopardized due to increased development, disruption related to relocations, property access issues, and future right[-]of[-]way acquisition costs."
Nonetheless, these detriments or harms to the public welfare that are purportedly prevented or averted as a result of the Map Act's restrictions are only injurious to the public welfare if the Northern Beltway Project is constructed and NCDOT condemns the properties within the transportation corridor. Effectively, NCDOT urges that " proposed urban loop routes could be jeopardized" due to these " harms," but none of these issues cause harm to the public welfare unless the Northern Beltway Project is built and unless NCDOT has to acquire the affected properties. Thus, there is no detriment to the public interest that the Map Act's purported " regulations" will prevent unless NCDOT needs to condemn Plaintiffs' respective properties to build the Northern Beltway. Therefore, we conclude that the Map Act is a cost-controlling mechanism, and, " [b]y recording a corridor map, [NCDOT] is able to foreshadow which properties will eventually be taken for roadway projects and in turn, decrease the future price the State must pay to obtain those affected parcels." See Beroth II, 367 N.C. at 349, 757 S.E.2d at 478 (Newby, J., dissenting in part and concurring in part). Because the power exercised through this legislation is one " with a mind toward property acquisition," see Joint Ventures, 563 So.2d at 627, we conclude that the Map Act empowers NCDOT with the right to exercise the State's power of eminent domain to take private property of property owners affected by, and properly noticed of, a transportation corridor official map that was recorded in accordance with the procedures set forth in N.C. Gen. Stat. § 136-44.50, which power, when exercised, requires the payment of just compensation. See, e.g., Hildebrand v. S. Bell Tel. & Tel. Co., 219 N.C. 402, 407, 14 S.E.2d 252, 256 (1941) (" If the land is needed for a public use, the law provides a way for acquiring it, and the Constitution prohibits its appropriation for such a use without compensation." (internal quotation marks omitted)).
B. Filing of Transportation Corridor Maps as an Exercise of Power of Eminent Domain
We next examine whether NCDOT exercised its power of eminent domain by filing the transportation corridor maps in accordance with the provisions of the Map Act. Specifically, we consider whether NCDOT exercised its powers of eminent domain under the Map Act against Plaintiffs' respective properties located in the Western Loop when it filed the transportation corridor map for the Western Loop in 1997, and against Plaintiffs' respective properties located in the Eastern Loop when it filed the transportation corridor map for the Eastern Loop in 2008, and whether the filing of these
transportation corridor maps provide the basis for Plaintiffs' takings claims. We begin where the trial court ended, by considering whether Plaintiffs' claims for inverse condemnation were not yet ripe because Plaintiffs " claim[ed] the date of the taking occurred when the maps were published," Plaintiffs " d[id] not claim the taking took place on any other dates,"  and " it is established North Carolina law that mere recording of project maps do not constitute a taking."
" The United States Supreme Court has recognized that a 'nearly infinite variety of ways [exist] in which government actions or regulations can affect property interests.'" Beroth II, 367 N.C. at 341, 757 S.E.2d at 473 (alteration in original) (quoting Ark. Game & Fish Comm'n v. United States, __ U.S. __,, 184 L.Ed.2d 417, 426, 133 S.Ct. 511 (2012)). " Short of a permanent physical intrusion, . . . no set formula exist[s] to determine, in all cases, whether compensation is constitutionally due for a government restriction of property." Beroth II, 367 N.C. at 341, 757 S.E.2d at 473 (alteration in original) (internal quotation marks omitted). Thus, while our Supreme Court recognized that " the goal of inverse condemnation here is relatively straightforward: to compensate at fair market value those property owners whose property interests have been taken by the development of the Northern Beltway," id., " [d]etermining whether there has been a taking in the first place . . . is much more complicated." Id.
" The word 'property' extends to every aspect of right and interest capable of being enjoyed as such upon which it is practicable to place a money value." Long, 306 N.C. at 201, 293 S.E.2d at 110 (internal quotation marks omitted). " The term comprehends not only the thing possessed but also, in strict legal parlance, means the right of the owner to the land; the right to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from its use." Id. (internal quotation marks omitted).
A " taking" has been defined as " 'entering upon private property for more than a momentary period, and under warrant or color of legal authority,'" id. at 199, 293 S.E.2d at 109 (quoting Penn v. Carolina Va. Coastal Corp., 231 N.C. 481, 484, 57 S.E.2d 817, 819 (1950)), " 'devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.'" Id. (quoting Penn, 231 N.C. at 484, 57 S.E.2d at 819). " Modern construction of the 'taking' requirement is that an actual occupation of the land, dispossession of the landowner or even a physical touching of the land is not necessary; there need only be a substantial interference with elemental rights growing out of the ownership of the property." Id. at 198-99, 293 S.E.2d at 109. Thus, " 'taking' means the taking of something, whether it is the actual physical property or merely the right of ownership, use or enjoyment." Tel. Co. v. Hous. Auth., 38 N.C.App. 172, 174, 247 S.E.2d 663, 666 (1978) (" [P]roperty itself need not be taken in order for there to be a compensable taking." ), disc. review denied, 296 N.C. 414 (1979); see also Beroth II, 367 N.C. at 351-52, 757 S.E.2d at 479 (Newby, J., dissenting in part and concurring in part) (" A substantial interference with a single fundamental right inherent with property ownership may be sufficient to sustain a takings action; wholesale deprivation of all rights is not required." ). " [T]here is a taking when the act involves an actual interference with, or disturbance of property rights, resulting in injuries which are not merely consequential or incidental." Penn, 231 N.C. at 484-85, 57 S.E.2d at 820 (internal quotation marks omitted). " The courts have held that the
deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking." United States v. Gen. Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311, 318 (1945). " [N]o magic formula enables a court to judge, in every case, whether a given government interference with property is a taking." Ark. Game & Fish Comm'n,
__ U.S. at __, 184 L.Ed.2d at 426. Nonetheless, the Supreme Court " has recognized few invariable rules in this area." Id. at __, 184 L.Ed.2d at 426. Aside from the cases that involve " a permanent physical occupation of property authorized by government" or " a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land, . . . most takings claims turn on situation-specific factual inquiries." Id. at __, 184 L.Ed.2d at 426 (citation omitted).
" It is the general rule that a mere plotting or planning in anticipation of a public improvement is not a taking or damaging of the property affected." Browning v. N.C. State Highway Comm'n, 263 N.C. 130, 135, 139 S.E.2d 227, 230 (1964) (internal quotation marks omitted). " Thus, the recording of a map showing proposed highways, without any provision for compensation to the landowners until future proceedings of condemnation are taken to obtain the land, does not constitute a taking of the land, or interfere with the owner's use and enjoyment thereof." Id. at 135-36, 139 S.E.2d at 230-31 (internal quotation marks omitted); id. at 138, 139 S.E.2d at 232 (" [T]he mere laying out of a right[-]of[-]way is not in contemplation of law a full appropriation of the property within the lines." (internal quotation marks omitted)). " No damages are collectible until a legal opening occurs by the actual taking of the land. When the appropriation takes place, any impairment of value from such preliminary steps becomes merged, it is said, in the damages then payable." Browning, 263 N.C. at 136, 139 S.E.2d at 231 (internal quotation marks omitted); id. at 138, 139 S.E.2d at 232 (" Complete appropriation occurs when the property is actually taken for the specified purpose after due notice to the owner; and the owner's right to compensation arises only from the actual taking or occupation of the property by the Highway Commission. When such appropriation takes place, the remedy prescribed by the statute is equally available to both parties." (internal quotation marks omitted)). " A threat to take, and preliminary surveys, are insufficient to constitute a taking on which a cause of action for a taking would arise in favor of the owner of the land." Penn, 231 N.C. at 485, 57 S.E.2d at 820 (citation omitted).
In the present case, this Court must consider whether the restrictions of the Map Act that were applicable to Plaintiffs at the time the maps were filed substantially interfered with the elemental rights growing out of Plaintiffs' ownership of their properties so as to have effected a taking and provided grounds for the trial court to consider Plaintiffs' claims for inverse condemnation as ripe.
Upon the filing with the register of deeds of a permanent, certified copy of the transportation corridor official map and the filing of " [t]he names of all property owners affected by the corridor," see N.C. Gen. Stat. § 136-44.50(a1)(2), (a1)(3), the statutory restrictions of N.C. Gen. Stat. § 136-44.51(a) are applicable to each " affected" owner noticed pursuant to N.C. Gen. Stat. § 136-44.50(a1). These restrictions prohibit the issuance of building permits " for any building or structure or part thereof located within the transportation corridor," N.C. Gen. Stat. § 136-44.51(a), and " the[se] restrictions imposed by [S]tate law never expire," Beroth II, 367 N.C. at 349, 757 S.E.2d at 478 (Newby, J., dissenting in part and concurring in part), and are absolute. NCDOT urges that the statutory restrictions of the Map Act cannot be deemed a taking because the Map Act merely " creates a temporary three-year restriction on new improvements to properties located within the mapped corridor," (emphasis in original omitted), which restrictions " are lifted, i.e. sunset, three years from when the property owner first submits a permit request to the local government," and that such restrictions " do not affect current property uses." However, the restrictive
provisions of the Map Act do not independently or uniformly " sunset" at any time following the date of the filing of a transportation corridor map pursuant to the Map Act. Rather, as the Map Act was written and enacted by the General Assembly, NCDOT was granted the right to exercise its power of eminent domain at any time after the transportation corridor maps for the Northern Beltway Project were filed and the environmental impact statements were completed in accordance with N.C. Gen. Stat. § 136-44.50(d). See N.C. Gen. Stat. § 136-44.51(a).
Further, the record includes a letter sent by NCDOT's Chief Operating Officer Jim Trogdon (" Mr. Trogdon" ) in response to a request for information following a 2010 public meeting concerning the status of the Northern Beltway Project. In the course of his effort to " improve communication regarding advanced acquisition hardship requests and procedures for requesting property improvements within the protected corridor," Mr. Trogdon indicated that NCDOT " will still be constructing existing urban loops in our [S]tate for at least 60 years." Thus, based on our review of the statutory language and based on the evidence in the record before us, the restrictions of the Map Act could quite possibly continue to bind " affected" property owners for " at least 60 years," if the Northern Beltway Project is not completed before then.
Therefore, with potentially long-lasting statutory restrictions that constrain Plaintiffs' ability to freely improve, develop, and dispose of their own property, we must conclude that the Map Act is distinguishable from the cases that established the rule that " the recording of a map showing proposed highways, without any provision for compensation to the landowners until future proceedings of condemnation are taken to obtain the land, does not constitute a taking of the land, or interfere with the owner's use and enjoyment thereof." See Browning, 263 N.C. at 135-36, 139 S.E.2d at 230-31 (internal quotation marks omitted). In the case before us, NCDOT has not merely " made initial alternative planning proposals" that " contemplate ultimate acquisition of certain lands" owned by Plaintiffs for the purpose of constructing the Northern Beltway. Cf. Barbour v. Little, 37 N.C.App. 686, 691, 247 S.E.2d 252, 255, disc. review denied, 295 N.C. 733, 248 S.E.2d 862 (1978). Rather, between 1996 and 2012, NCDOT acquired at least 454 properties located in the transportation corridor for the Northern Beltway Project. This Court understands that NCDOT's acquisition of these and other properties located within the Western and Eastern Loops of the Northern Beltway Project does not guarantee that the State has the funds necessary to begin or complete construction of the Northern Beltway. However, this has no bearing on the perpetual applicability of the restrictions of the Map Act upon Plaintiffs' properties, or upon our determination that, without a specified end to the restrictions on development or improvement, NCDOT exercised its power of eminent domain when it filed the transportation corridor maps for the Western and Eastern Loops. Since " [t]he courts have no jurisdiction to determine matters purely speculative, . . . deal with theoretical problems, give advisory opinions, . . . adjudicate academic matters, . . . or give abstract opinions," see Little v. Wachovia Bank & Tr. Co., 252 N.C. 229, 243, 113 S.E.2d 689, 700 (1960), we decline to consider whether our holding would have been different had the General Assembly imposed time limitations upon the restrictions affecting Plaintiffs' properties pursuant to N.C. Gen. Stat. § 136-44.51.
Further, " [w]hile NCDOT's generalized actions [pursuant to the Map Act] may be common to all, . . . liability can be established only after extensive examination of the circumstances surrounding each of the affected properties." See Beroth II, 367 N.C. at 343, 757 S.E.2d at 474 (internal quotation marks omitted). " This discrete fact-specific inquiry is required because each individual parcel is uniquely affected by NCDOT's actions. The appraisal process contemplated in condemnation actions recognizes this uniqueness and allows the parties to present to the fact finder a comprehensive analysis of the value of the land subject to the condemnation." See id. These issues should be among the trial court's considerations on remand.
Accordingly, we hold the trial court erred when it concluded Plaintiffs' claims for inverse condemnation were not yet ripe based on its determination that Plaintiffs did not suffer a taking at the time NCDOT filed the transportation corridor maps for the Western and Eastern Loops. We remand this matter to the trial court to consider evidence concerning the extent of the damage suffered by each Plaintiff as a result of the respective takings and concerning the amount of compensation due to each Plaintiff for such takings. In light of our disposition that the trial court erred by dismissing Plaintiffs' claims for inverse condemnation, we need not consider NCDOT's issue on appeal concerning whether the trial court erred by failing to dismiss Plaintiffs' claims for inverse condemnation with prejudice, rather than without prejudice.
Additionally, we note that the relief sought by Plaintiffs in their respective complaints was: for the recovery of damages suffered when NCDOT exercised its power of eminent domain against their properties by recording the transportation corridor maps pursuant to the Map Act; for NCDOT to be compelled to purchase Plaintiffs' properties; and for recovery of fees, costs, taxes, and interest. Plaintiffs' challenge to the constitutionality of the Hardship Program was one of five alternative claims alleged in order to obtain this relief. Because our disposition allows the trial court, upon consideration of evidence to be presented by Plaintiffs, to award Plaintiffs the relief they sought in their respective complaints, we decline to consider the arguments presented on appeal concerning the constitutionality of the Hardship Program as applied to Plaintiffs. Therefore, we decline to further address the arguments presented for this issue on appeal. We also decline to address NCDOT's suggestion that Plaintiffs' claims for inverse condemnation are barred by the statute of limitations because, as NCDOT concedes, construction on the Northern Beltway Project has not been completed. See N.C. Gen. Stat. § 136-111 (" Any person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the [NCDOT] and no complaint and declaration of taking has been filed by [NCDOT] may, within 24 months of the date of the taking of the affected property or interest therein or the completion of the project involving the taking, whichever shall occur later, file a complaint[.]" (emphases added)). We further decline to address any remaining assertions for which Plaintiffs and NCDOT -- as appellants and cross-appellants, respectively -- have failed to present argument supported by persuasive or binding legal authority.
Reversed and remanded.
Judges BRYANT and STROUD concur.