Monday, June 27, 2022

Future of major Hampstead development waiting on Map Act case in NC Supreme Court

An NCDOT land survey map shows the planned path of the future Hampstead Bypass cutting through a 676-acre property owned by national developer Jamestown. It also shows marked wetlands and protected foraging areas for the red-cockaded woodpecker. (Map courtesy Pender County Superior Court)

HAMPSTEAD — A long-awaited trial to determine how much the state owes national developer Jamestown for taking a portion of its 676-acre Hampstead property awaits a ruling from the North Carolina Supreme Court on a similar case in Cumberland County.

Jamestown has been involved in a litigation battle since 2014 against the state’s Department of Transportation and the Wilmington Urban Area Metropolitan Organization (WMPO) after the latter filed a “protected corridor” map to make way for the future Hampstead Bypass. The map restricted Jamestown’s rights to develop a portion of its property and effected its resale potential.

READ MORE: An overview of the long legal saga surrounding Hampstead’s potential ‘The Preserve’ development

The N.C. Department of Transportation is battling eminent domain cases all over the state after the North Carolina Supreme Court’s 2016 ruling found that the Map Act — a law that allowed the state to restrict development in corridors of land reserved for future highways without compensating landowners — to be unconstitutional. The DOT announced in September that projects across the state would be delayed due to financial distress caused in large part by these lawsuits.

By July the state had paid $290 million in settlements involving roughly 360 Map Act cases, according to the News and Observer, with about 260 cases unresolved. The previous month, NCDOT’s chief operating officer said total settlements could eventually exceed $1 billion.

Regarding the Jamestown case, a Pender County Superior Court judge set a trial for May 18, 2020, but only if the Supreme Court issued its written opinion on the Chappell v. NCDOT case before the end of February. That case involves a Cumberland County couple whose property was located on the path of a planned loop highway around Fayetteville. They were subjected to the Map Act in 1992, and their case could impact hundreds of other Map Act cases throughout the state, according to the News and Observer.

During the Jamestown trial, expert witnesses will be called by both sides to help determine the valuation of the taken property and the amount owed to developers. Jamestown is looking to develop a massive mixed-use development called The Preserve, proposing 255,000 square feet of commercial space and nearly 900 single-family residential units.

READ MORE: Larger than Wilmington’s The Avenue, massive development ‘The Preserve’ could be coming to Hampstead

‘An ongoing fishing expedition’

The court has yet to make a decision on a protective order sought by Jamestown, which originally filed suit against NCDOT and WMPO in the summer of 2014 on the grounds of an inverse condemnation claim — when the government takes property but fails to provide just compensation.

Jamestown attorneys argued that NCDOT’s most recent request for documents and information last summer was “unreasonable, and will cause oppression and an undue burden” and would not lead to the discovery of admissible evidence. The plaintiff’s motion for a protective order cites three separate document requests totaling more than 6,700 pages, ten subpoenas served by NCDOT, and seven depositions.

“NDOT’s abusive discovery tactics are nothing new,” Jamestown attorneys argued in November. “In 2017, the [N.C. Court of Appeals] described NCDOT’s litigation strategy, saying that it appeared ‘to be for no reason but either delay or distraction’ … So, too, here … The Court should not allow NCDOT to engage in an ongoing fishing expedition of material outside the scope of the remaining matters at issue in this lawsuit.”

An aerial view of the Jamestown property. (Courtesy Google Earth)

In NCDOT’s November motion to compel Jamestown to respond to its document requests, its attorneys argued that prior responses were deficient and that its requests pertained to documents “believed to exist and are reasonably calculated to lead to the discovery of admissible evidence.”

“More specifically, the document requests are intended to lead to the discovery of evidence which is probative of the highest and best use of the property both before and after the filing of the official corridor protection map,” attorneys argued.

One request called for emails relating to the feasibility of the development and the most productive use of the property, based in part on the deposition of former Jamestown executive Molly Mackenzie, who testified that “hundreds of such emails existed,” attorneys argued.

In a letter to Jamestown attorney Ryal Tayloe in October, Matthew Skidmore of Raleigh law firm Teague Campbell said Jamestown’s responses contained blanket objections to all three requests, especially concerning documents that would shed light upon the financial feasibility of the development. He also said there were excessive redactions in the documents produced.

“[A]fter comparing the redacted portions … to other documents which are not redacted, it appears that information which is not privileged has been redacted,” Skidmore wrote.

If he did not receive a response within fourteen days of the letter, he said he would file a motion to compel, “an option which I’d prefer to avoid.” A motion to compel was filed on November 20. Two days later Tayloe filed a protective order.

The remaining issue: just compensation

A judge ruled last July that the NCDOT had taken a “perpetual negative easement” across the property, but like other decisions before it, left open the “valuation issue — the value of the property immediately before the taking compared to immediately after,” according to Jamestown attorneys.

In early 2018, NCDOT delivered its appraisal of the property and paid $135,000 as its estimate of just compensation, based primarily on the depositions of three consultants who alleged “developability issues” on the property concerning wetlands, protected species, bad soil, and sewer access.

In July, Judge Harrell of the Pender County Superior Court dismissed four of Jamestown’s claims, including those alleging an unconstitutional taking and a negative easement, but only to “the extent those claims sound under the Federal Constitution.” Conversely, he denied NCDOT’s request for judgment on those same claims as they “sound under the State Constitution.”

Judge Harrell also ruled against NCDOT’s attempt to assert the defense of judicial estoppel — when a court may prevent a person from making assertions or from going back on his or her word.

He then ruled that an appropriate measure of damages be submitted to a jury and judgment reserved for the upcoming trial, of which he would not likely preside over.

When reached by email, a spokesperson for the NCDOT said it does not comment on ongoing litigation. An attorney for WMPO said the organization would also not comment on active legislation. Fallon McLoughlin, a Jamestown spokesperson, echoed the same.

“We are still in litigation,” Fallon McLoughlin said. “The case is being held up until the North Carolina Supreme Court makes a ruling on Chappell vs. NCDOT.”

Pender County Planning Director Kyle Breuer said an updated status to Jamestown’s proposed development may be available in the coming weeks.


Mark Darrough can be reached at Mark@Localvoicemedia.com or (970) 413-3815

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