Hundreds of landowners in Forsyth County have been living under the cloud of eminent domain for almost two decades due to a variety of delays in the Winston Salem Northern Beltway. But they have received some cause for new hope from a surprising source – the seven justices of the North Carolina Supreme Court.


Even if the landowners are not successful, they will still be entitled to just compensation for the taking of their property by eminent domain. The big question remains – when? Make sure you read to the end of this blog post for an answer to that question!

Another Chance on Appeal


In a rather surprising move, the North Carolina Supreme Court has agreed to consider whether a case involving the Winston Salem Northern Beltway can proceed as a class action. The North Carolina Court of Appeals had previously denied class action status to the group of over 50 landowners, when it issued its decision in May 2012. The Court of Appeals decision can be found here.

After failing to persuade the Court of Appeals, the landowners petitioned for discretionary review to the state’s Supreme Court. The Supreme Court decided to consider the case even though the appellants did not have an absolute right to have the case heard before the highest court in North Carolina. Typically, the Supreme Court must consider cases only where there has been a dissenting opinion in the Court of Appeals. The Court of Appeals panel of the three judges were unanimous in deciding against the landowners’ attempts to move forward in a class action proceeding. It is the exception, not the rule, when the Supreme Court elects to hear an appeal that is sought on a purely discretionary basis.

Questions the Supreme Court will consider
Simply put, the Supreme Court will take up two basic questions: First, did the lower courts use the correct legal test to analyze whether the NC DOT has already taken the land on a de fact basis, even though it has not condemned or paid for the properties? Second, would individual or common issues predominate in determining whether or not the landowners could bring claims for inverse condemnation on a class action basis? For a description of

The case presents some important and interesting legal and factual issues for the Justices of the Supreme Court to decide. First, they must clarify whether a taking can occur by a substantial interference with the owner’s property rights where the government is not yet physically intruding on the land. The lower court found that NC DOT was merely regulating the property by restricting further improvements and development by designating lands as part of a Protected Transportation Corridor as provided for by the Map Act. See Map Act here. Also, the DOT procedures are here. 

The second major issue is whether a class action is the right procedure to consider the case, based upon whether individual or collective issues will predominate. The Court of Appeals had this to say on the issue:

“The question of whether NCDOT’s actions amount to a taking is a question of law common to all properties located within the protected corridor. … Because each individual parcel of land is unique, however, and because the owner’s expectations and interests in their individual properties vary, we must conclude that individual issues of fact will predominate in resolving Plaintiffs’ inverse condemnation claim. . . . Due to the unique nature of each individual parcel of land, and each individual property owner’s interest in and expectations relating to that particular parcel, these determinations cannot be applied to the class in a general, broad-brush manner. What might constitute a taking as to one parcel of land might not constitute a taking as to others, depending on the characteristics of the land and the purpose for which the land is being used. NCDOT’s actions in filing the corridor maps and acquiring properties through its Hardship Program may or may not qualify as a taking depending on a myriad of individualized evidentiary factors. While 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.”

Beroth Oil Co., v. N.C. DOT, 725 S.E.2d 651, 665 (N.C. App. 2012).

In emphasizing the individual nature of each parcel, the Court of Appeals was following the dominant trend in recent years, which has been to disfavor class action litigation, especially in real property cases. It will be very difficult for the landowners affected by the Winston Salem Northern Beltway to successfully prevail on both sets of questions being considered by the Supreme Court. Nevertheless, the fact that the high court even took the case gives them a chance, one that they did not have only days ago.

What this means to Winston Salem landowners
Perhaps the most important fact for landowners to know is that this decision does not automatically mean anything changes about their eminent domain case. Regardless of whether there is a class action, each property owner remains absolutely entitled to receive just compensation for the land taken by NC DOT for the Winston Salem Northern Beltway. The main impact of this suit will be whether or not the Court decides that property owners’ rights are interfered with substantially enough by the Map Act Corridor filings to allow an inverse condemnation case. This is potentially significant because North Carolina eminent domain law allows a landowner to recover attorneys’ fees in an inverse condemnation case but not in a conventional condemnation action.

The lawyers at Sever Storey have been monitoring these legal developments for years, and we are well versed in the complex cases and statutes that affect North Carolina landowners. We will be happy to discuss how the Winston Salem Northern Beltway is impacting your property and what your legal rights are. Call today to arrange a free consultation to learn more about the latest news.

You can also learn more about the Supreme Court’s decision to consider the class action case at other local news sources.

–Shiloh Daum, Attorney at Law