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On Leviathan’s Trail

09/12/2012

            LeviathanLi-VAYH-uh thuhn – (1) “Anything of immense size and power, as a huge, oceangoing ship. (2) The title of Thomas Hobbes’ 1651 philosophical work which asserts that a strong central government is the only means of averting social chaos and civil war.”

            Thomas Hobbes, meet the North Carolina Supreme Court, which heard arguments last week on whether NCDOT – one of our strong, central agencies with immense size and power – has plenary powers to control not only roadways but also who can develop land, and to exercise those expansive powers without practical limitation or appeal, including the right to delegate its powers to third parties who answer to nobody.

            I’ve written about High Rock Lake Partners v. NCDOT on two occasions.  The facts, distilled, are these.  A developer wanted to build a mere 60 homes at the tip of a peninsula along High Rock Lake in Davidson County.  There were no safety issues related to traffic entering the state road on the peninsula.  Zero.

             But one-quarter mile away, far from the entrance governed by the NCDOT driveway permit, the state road crossed railroad tracks.  NCDOT essentially delegated its permit approval powers to Norfolk Southern and North Carolina Railroad – third parties who do not answer to the citizens of this state – to decide whether these 60 homes could be built.  Actually, the railroads didn’t say the homes could not be built.  Rather, they said the developer would have to build a bridge estimated to cost at least $3 million for the privilege of crossing their tracks.

             For a 60-home development, I call that a veto.

             Rather than looking to the specific powers delegated to this agency, the Court of Appeals referred to the general powers of the agency, which are expansive and seemingly without check.

             In my first blog post I wrote this:

             “The developer pointed out that N.C. Gen. Stat. §136-18(29) (the statute that allows NCDOT to establish its own policies and adopt rules concerning driveway connections and the conditions that can be imposed) was not written broadly enough to encompass this situation where third parties are allowed to require $3 million in off-site improvements.  The developer broke down each phrase of this statute and pointed out that none of them applied.

             The court’s reply, boiled to its essence, was that the developer was right about the specific powers enumerated in N.C. Gen. Stat. §136-18(29).  It did not govern this situation.  But instead of finding for the developer the court determined that the appropriate way to resolve the issue was to look to the “general powers” sections in the statute. (And general powers are always broadly defined).

             One of those general powers is listed in N.C. Gen. Stat. §136-93 (“No opening . . . shall be made in any State Road . . . except with . . . a written permit from [NCDOT] or its duly authorized officers, who shall exercise complete and permanent control over such roads and highways . . .”

             “Complete . . . control.”  This stings.  Instead of looking for a way to carefully delineate the power of one of the state’s largest agencies, the court found, instead, a way to bless the agency’s unbridled power.  And the emphasis in the quote above?  It’s not mine.  It was done by the court.”

            So the question remains.  Will NCDOT’s powers become even broader and more expansive, interpreted to allow it to delegate its powers to non-governmental entities?  Or will Leviathan’s size be limited to what the General Assembly specifically enabled it to do?

             NCDOT is a good agency.  I support it. We need it.  But abused power is abused power.  The agency should be careful about what is asks the court to do.  The prevailing political zeitgeist, as embodied in the current General Assembly, could lead to numerous revisions of NCDOT’s enabling legislation.

             Stay tuned for more.

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