In land use, few things merit a news “flash.”  However, you should know that in a statement signed by Justice Barbara Jackson the N.C. Supreme Court decided last Friday that it would accept for review a case I recently blogged about involving the vaguely worded and expansive statutory powers of the N.C. Department of Transportation.  

             This case is critical for those of us in the land development business – whether we work for developers or for governments – because road networks and road improvements and driveway permits are involved in almost every development in the state.  The NCDOT has purposes and mandates that make North Carolina a better state, that provide infrastructure that makes growth possible, and that protect citizens from unwise developments. 

             But the NCDOT does not have unbridled power.  Nor do we want a single agency to have discretionary powers that are, for practical purposes, unchecked.

             If the decision is broadly written, this case could delineate what the NCDOT’s statutory powers are and are not.  If narrowly written, the case’s impact could be limited to the parties and controversy before the Court.  In either case, few issues are more important to a democratic society than the limits we place on governmental powers.

             For readers who aren’t attorneys, here’s all you need to know about getting a case to the state Supreme Court: it’s hard at best, sometime impossible, and always expensive.

             When a case is completed at the trial court level, the losing party can appeal the decision to the N.C. Court of Appeals.  Although I disagree with the Court of Appeals on occasion, you should know that North Carolina has historically attracted talented and bright attorneys to this Court.  If the three-judge panel decides a case by a 2-1 vote, then the losing party can automatically appeal yet again to the state Supreme Court.

             But if the three-judge panel is unanimous, then you have to petition the high court to hear the case, and it only accepts a very small percentage of such requests.

             As soon as this case is decided, I’ll provide the insights and commentary here.


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