Paul Newby & The Supremes give NCDOT a reality check

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Just in case you needed some evidence that elections MATTER, look no further than The North Carolina Supreme Court.  Justice Paul Newby, fresh off of a tough reelection fight, wrote the court’s majority opinion in High Rock Lake Partners v. NCDOT.   Tom Terrell chronicles this story in his excellent blog:

 […] High Rock Lake Partners’ predecessor purchased 188 acres on an attractive peninsula jutting into High Rock Lake in Davidson County.  To get on or off the peninsula you had to cross railroad tracks that separated the peninsula from the world beyond. The tracks were ¼ mile from the would-be subdivision’s entrance.

NCDOT, which already has broad powers to control most aspects of the state highway system, agreed to give the developer a driveway permit as long as the developer got permission from both Norfolk Southern and N.C. Railroad (which already had said “no”) AND built a bridge over the tracks (estimated to cost at least $3 million) to handle the traffic from the 60 planned homes.  To quote humorist Dave Barry, “I am NOT making this up.”

Initially the DOT District Engineer just denied the permit because the railroads protested.  The developer appealed that decision to the Division Engineer, who granted the permit but added the conditions that (1) the developer had to widen the railroad crossing by ten feet (2) acquire the necessary right of way (3) obtain all licenses and approvals from NCRR and NSR and (4) substantially widen one-quarter mile of the state road on the subdivision side of the tracks.

The developer then appealed to the “Driveway Permit Appeals Committee,” arguing that NCDOT lacked statutory authority to make these demands.  The Appeals Committee upheld the Division Engineer.  Rather than give up, the developer – whose legal counsel had an unwavering belief that such demands were beyond statutory authority – pursued the case into superior court, where, again, NCDOT prevailed.

The developer then appealed to the Court of Appeals, which upheld the superior court.  But they believed they were right and refused to give up.  The developer petitioned the Supreme Court for permission to climb the last rung of the judicial ladder. Permission was granted.


In short, my complaint with the COA opinion was this: when statutes provide both general and specific powers to engage in a certain activity, the specific delegation of power controls. Ignoring an honored canon of statutory construction, the COA chose the general power,proclaiming that NCDOT “shall exercise complete and permanent control over such roads and highways.” (The COA opinion’s italics, not mine).

Wrong choice, said the Supreme Court this past Friday. […]

So, in order to get permission for their project, the developer had to get an OK from the DOT, as well as from the North Carolina Railroad (owned by the state itself).  Yes, as I said before, it is hard to believe that the state is holding on to a railroad during these tough economic times.  Justice Newby spoke for the court in support of the developer’s position:

[…] Justice Newby described NCDOT’s broad powers but stated “The DOT is not, however, omnipotent; our General Assembly has extensively defined and limited DOT’s authority through the enactment of numerous other statutes.”

            He also wrote that the Driveway Permit Statute was written to balance an owner’s right of access and the public’s interest in a safe highway system (Quoting a 1964 case: “The owner of land abutting a highway has a right beyond that which is enjoyed by the general public, a special right of easement in the highway for access purposes.”)

The Court had limited patience (as I did) with the Court of Appeals’ decision to elevate the Driveway Statute’s general power provision over the section where the delegation of power was specifically enumerated.  Rather, it looked at the clear language of the specific delegation and held that this section did not authorize NCDOT to mandate substantial offsite improvements and require the applicant to seek the permission from a third party whose discretion was not checked by any governmental agency and who was free to make arbitrary decisions in the extension or withholding of its permission.

            “To do otherwise would harm the common law property rights that this Court has a duty to protect,” said the Court.

“In conclusion, the Driveway Permit Statute is a narrow grant of power under which NCDOT may regulate only certain aspects of driveway connections and require applicants to complete only certain improvements.  The conditions placed on High Rock’s driveway permit are not authorized under the plain language of that statute.  Thus we hold that DOT exceeded its statutory authority.  Accordingly, the decision of the Court of Appeals is reversed . . .”

Precisely.   THIS case is a prime example of why the average voter NEEDS to pay close attention to these judicial candidates.  We’ve got folks on the Appeals Court who believe it’s just great to get creative with state law and expand the bureaucracy’s powers.  Thank goodness we have Paul Newby & co. on The Supreme Court to toss a little reality into the discussion.