Will the Monroe Bypass Really Happen?
A Recap of Our Free Seminars
"Winning is the science of being totally prepared." - George Allen, Sr.
That was the theme of our latest free eminent domain seminars on the Monroe Bypass project, which were held in Matthews and Monroe North Carolina. We were honored to have three television stations and two newspapers attend.
Since the project has been very "stop and go," most attendees weren't sure if it was even going to happen. We gave our opinions, as former attorneys for the North Carolina Department of Transportation, on how the project might proceed and what property owners can do to prepare.
If you missed it, we've included a synopsis below.
You can learn more (and have your own questions answered) at one of our next free Monroe Bypass seminars - Sept. 25th or Oct 16th in Monroe, NC.
Call us for more information at 877-393-4990.
Former NCDOT Attorney Jason Campbell's Analysis of the Monroe Bypass Project
The Monroe Bypass has been one of the NCDOT Turnpike Authority's most important projects for many years. It was a major initiative when I worked for them on their other huge project (NC-540) years ago, and it has advanced fairly far down the administrative process.
Environmental impact statements
But before a major road can be built, the Turnpike Authority (or any other agency), has to perform a study, an "environmental impact statement," and get it approved by various federal oversight agencies.
This statement, as many of the people who attended the seminar were surprised to discover, is not simply a study of the bugs and bogs impacted by the proposed road. Instead it is a combination study, covering the economic, social, and environmental impacts (such as pollution). These approval processes generally occur well in advance of the start of right-of-way acquisition (when the state starts buying people's property).
In the present case, most of the people who attended the seminar, including most of the reporters, were surprised that the project is really moving forward at this time. This may be for two reasons:
1) People often prefer not to have change and may engage in wishful thinking
2) The project has been stopped before because of an overturned environmental impact statement and the Southern Environmental Law Center is trying to stop it again.
Consequently, people felt safe - secure in their homes and properties. They'd received notifications before that their property would be taken, but had been met with delay or stoppage at every stage. So the property owners and news media in attendance felt that this was just another round in the cycle of "announcement, delay, lawsuit and eventual stoppage of the Monroe Bypass."
Why it IS likely the Monroe Bypass will be built this time
As I explained to those in attendance, another stoppage is probably not likely at the present time. While I am not, and have never been, involved in any of the litigation, I did follow the initial Monroe Bypass lawsuit.
In 2010, the Department of Transportation Turnpike Authority received approval from the federal government for their first environmental impact statement. The Southern Environmental Law Center filed a lawsuit overturning this approval. The Turnpike Authority had to redo the environmental impact statement and now the Southern Environmental Law Center has filed another lawsuit, essentially trying to overturn their second approval.
But here's why it might not work:
Generally, federal oversight agencies give state agencies (like the Turnpike Authority) wide latitude to decide which projects should be built, and where, how and when they should be built. The environmental impact statement is, in large part, just a requirement that the Turnpike Authority study the effects of various different designs, to determine which would be the least impactful on the environmental, social, and economic environment. It is an exercise designed to give the public and political leaders the information they need to decide whether it is in their best interest to build a new road.
It is rare for a permit, once granted, to be withdrawn. Consequently, people who are relying on the fact that the first permit was overturned, and expect the second permit to be overturned, are probably engaging in wishful thinking.
How the first environmental impact statement got overturned
The environmental impact statement requires agencies to determine the economic, social, and environmental impacts of not building a road, and then compare these to the impacts the alternative versions for building the road might have. The no-build option functions as a baseline - to determine whether the road should be built at all or which alternative design might have fewer negative impacts.
The DOT had a study in their environmental impact statement that purported to be a "no-build" study. But it included the economic, social, and environmental impacts of the Monroe Bypass, as if it had been built. Effectively, this made it appear that building the new bypass would cause little or no additional harm to the social, economic, and physical environment.
In the words of the court, the Department of Transportation's "mischaracterization related to a critical aspect of the NEPA process - the accuracy of the 'no build' baseline." The Department also admitted they knew of this flaw in their methodology while assembling the report. And, the court found that the Department misled the public by continuing to assert publically that the "no build" study was correct.
Consequently, the federal court concluded that the environmental impact statement needed to be done again.
Why it's unlikely the second environmental statement will be overturned
The Turnpike Authority has already redone the environmental impact statement and gotten permits, again, from the certifying agencies (this time presumably using the correct methodology). So the Southern Environmental Law Center will likely not be able to present the same previously successful complaints.
Further, if the Southern Environmental Law Center truly wanted to stop the project and thought they had a good chance of doing so, they could seek another injunction. However, as far as I am aware, the Environmental Law Center has not sought an injunction, which, as an outsider, leads me to conclude that the evidence the Center has against the DOT is not as substantial, and will likely not be able to stop the project.
Essentially it seems they're just fishing for information, hoping to discover something that will stop the project, but are unaware of any information that would do so at the present.
In summary? Make way for the Monroe Bypass
Unless the Environmental Law Center has new evidence, this leads us back to the original conclusion/assumption: that the desire and wisdom to build the Monroe Bypass is largely in the hands of the Turnpike Authority. The federal reviewing agencies simply make sure the Turnpike Authority considered options and thought through the process properly.
The courts, knowing that the federal authorities are deferential to a state government, will likely not overturn the permit. And consequently this time the Monroe Bypass will probably be built.
How this confusion has hurt property owners
This "stop and go" confusion, has led people to make decisions that, in the long run, have hurt them. One of the people who attended the seminar complained that when it was announced that the government would be taking his business, he went ahead and closed it - only to have the project stopped, only to have gone through another environmental impact statement, and only to have it re-announced.
He has lost over a year of his income from this property, and was concerned that the process was just going to continue to be drug out and his day of just compensation would never arrive.
To people like that, I would suggest that the time has come to seek compensation now. Then, within the next couple of years, their land will have been bought, they will have the opportunity to have a trial, and the opportunity to get the just compensation they deserve.
Payment for damaged value? Another valid concern
Other people at the seminar were concerned because the Turnpike Authority is doing things that led them to believe the agency is trying to minimize the impacts on their property in an attempt to pay them as little as possible for what, in their opinion, is a dramatic impact.
For instance, right-of-way lines have been scooted back so that only the bare minimum land will be acquired from people's residences and business. However, now their house or business will now sit next to a controlled-access freeway that, in some instances, will be as high as 30 feet in the air.
They were concerned that the DOT will attempt to pay them just for the small portions taken and not for the impact this proximity to the new freeway will have on their property. We assured them, we can help with those problems. We know the DOT has to pay, not only for the land taken, but for the damages the project causes to the remaining land - the land left in the hands of the client.
If you will be affected by the Monroe Bypass and would like one of our NC land condemnation attorneys to evaluate your situation (for free), please call us toll free at 1-877-393-4990 or click here.
Remember, it's better to be prepared than caught off guard when you get that knock on your door.