This past week the N.C. Supreme Court issued a long-awaited opinion in which basic property rights prevailed over a state agency with seemingly unlimited authority. The case is High Rock Lake Partners v. NCDOT.  Justice Paul Newby’s concise opinion is easy to follow and worth the read.

 The Facts

             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.

             For more detailed facts and commentary on why the Court of Appeals opinion was in error, you can read my previous blog post, which was aptly titled “At the Intersection of Arrogance and Unbridled Power.” (Railroads = arrogance; NCDOT = unbridled power). And also this post, titled “On Leviathan’s Trail.”

             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.

 The Supreme Court Opinion

             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 . . .”

             When I announced in this blog that the Supreme Court had agreed to hear this case, I said this:

        “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.”

            I appreciate Justice Newby’s chastisement of the unlimited powers bestowed upon NCDOT by the Court of Appeals panel below: “not omnipotent.” How often must we relearn the same lesson: the unchecked power of government anywhere and by anybody can and will be abused?

 Prediction:  Because this opinion was broadly written, you will soon see this case cited many times in a variety of contexts as citizens battle governmental agencies over the use of statutory powers.

             Sidebar: A special comment for the many non-attorneys who have become regular readers of this blog.  This opinion is a textbook example of clear, concise and logical legal writing.  My third time through I read it solely to study the prose.  End sidebar.

 Who Has to Pay the Lawyer?

             Litigation isn’t about debating abstract principles of law, although such occurs in the process.  Litigation is an expensive, time-consuming and often grueling way to resolve disputes that have no other resolution. In this case, the high court did High Rock Lake Partners a favor.  It found that NCDOT violated the “plain language” of the statute. 

             Why is that important? Because G.S. 6-19.1 opens a pathway back into court for the prevailing party in an agency appeal to request attorneys fees.  Under the statute, the fees must be paid from the agency’s operating budget, and this is only fair.  Citizens have to dig deep into personal fortunes to cover the costs of litigation.  Agency heads deciding whether to appeal have no disincentive.  Their attorneys’ fees are paid for by you and me.

             I assume High Rock Lake Partners will seek full reimbursement. Its attorney, Craig Justus, did an outstanding job. 

 Postscript – How Did this Case Reach the N.C. Supreme Court?

             No litigant can appeal to the highest court just because he, she or it wants to. Getting there requires a combination of good lawyering, a client with patience and an ability to pay legal fees, an interesting case that lower courts have handled questionably, and luck.

             Let’s focus for a moment on where High Rock Lake Partners was lucky.

             Appellants who lose in the Court of Appeals on a split (2-1) decision can appeal to the N.C. Supreme Court by right.  But if the COA three-judge panel is unanimous, then the appellant must seek permission to be heard by the high court through what is called a “petition for discretionary review.”  And the Supreme Court is quite stingy on which cases it decides to hear.

             Petitions for Discretionary Review are randomly assigned to each of the Court’s six associate justices.  Each justice reads the assigned petition, determines whether it meets specific statutory criteria for a second appellate review, and returns to the Court to make a case for which decisions need further consideration. 

             In this case, by luck, the justice who received the random assignment was Barbara Jackson.  Justice Jackson has a real estate background and has already authored several opinions as a COA judge and Supreme Court justice establishing her as anything but an apologist for broad and expansive governmental power.  Two cases come quickly to mind, both involving APFOs (Union Landowners and Lanvale, which I promise I will eventually write about).

             If you enter Justice Jackson’s courtroom representing a governmental entity whose authority has been challenged, you can rely on her to ask you a simple and polite question: “can you please show me where the legislature granted this power?”

             I’ve never been privy to internal court memos or discussions involving discretionary review.  But I am sure that there was a point in that process when Justice Jackson explained to her colleagues why they should review this case further.

 And a Post-Post Script

             Before publishing this post I spent my early Sunday morning communicating with editors of the Land Use Law Quarterly about an article that discusses the “free use of land” principle adopted in many cases (including this one).  Summarized, the principle is this: if the ordinance is ambiguous, you interpret it in favor of the free use of property.

             In my email this morning, I noted that this theory had origins in decades when most counties were not zoned and we were just getting used to zoning in cities. If you read High Rock, you’ll notice that the cases Justice Newby cites which discuss this principle are early 20th century cases.

             I also added this point in my morning’s email, and it’s a point I don’t recall seeing in a published opinion. Before a court adopts a “free use of land” posture, the plaintiff must first establish a plausible argument that the statute or ordinance could reasonably be interpreted to include the use proposed.  Somewhere, sometime, someday I hope that a court will articulate what I believe is an obvious but unstated point.

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at

Mr. Terrell can be contacted at