MATTHEWS – The state Court of Appeals has ruled against the town in a two-decade legal battle over a portion of a street easement on Home Place, which connects to Reverdy Lane south of Providence High School in south Charlotte.
The dispute, wrote Judge Robert N. Hunter Jr. in the court’s April 21 decision, likely arose from personal animosity between the property owners and some of the town’s elected officials.
“The evidence shows that the Town was motivated by considerations irrelevant to the public benefit,” Hunter wrote. “The evidence shows that Mayor (Jim) Taylor and some of the Commissioners considered personal conflicts between the Town and the Wrights in making the decision to condemn – rather than considering the public use or benefit of the condemnation.”
The town has 30 days in which to petition for a discretionary review by the state Supreme Court. Matthews Communication Director Jen Thompson said in an email Wednesday that the town commissioners had not discussed whether to petition the high court.
The span of Home Place being litigated runs east from Reverdy and originally was a private, dead-end gravel road with six homes. Lester and Virginia Wright bought their property in June 1984 and built their house near the dead-end.
“The Wrights bought their house many years ago, on a gravel road, and they have horses,” said Peter J. Juran, an attorney with Blanco Tackabery in Winston-Salem, who handled the Wrights case. “When it was paved, that started raising the questions that led to this series of lawsuits. They prefer to be in a bucolic setting,” he said when asked why the Wrights have continued to oppose dedicating the right-of-way to the town.
In March 1985, the town enacted a resolution adopting Home Place as a public road, without giving notice to the Wrights.
“The town believes it is necessary to maintain the integrity of (the) 1985 resolution adopted by the Board of Commissioners to have Home Place transferred from N.C. DOT’s maintenance system to the town,” said Thompson in an email. “The town continues to maintain that Home Place is a public road that receives the benefit of town services like solid waste removal, response from emergency services and routine road maintenance.”
Thompson said that the town has spent about $96,000 on the litigation since fiscal year 2011, and that records from the time before that were not easily accessible.
After the Wrights disputed the designation, the town’s Zoning Board of Adjustment determined in February 2004 that Home Place was a public street, based on the 1985 resolution and the fact that in 1991 the town paved the street. The Wrights appealed to Mecklenburg County Superior Court, which affirmed the board’s decision. The Wrights then appealed that decision to the North Carolina Court of Appeals.
The appeals court ruled in 2006 that the town failed to prove the road was public in one of the three ways it could do so: by prescription, which required the town to have maintained the road for 20 years, which it hadn’t; or through condemnation, which the town did not do. The court sent the matter back to the Superior Court to determine whether the third alternative was satisfied: implied dedication by the property owner.
The trial court remanded the case back to the town’s Zoning Board of Adjustment, which determined that implied dedication was no longer an issue, because the town Board of Commissioners in October 2006 adopted a resolution adding Home Place as a public street, retroactive to 1985.
In spring 2007, the town filed a complaint alleging that the Wrights had erected two signs and a fence on a public street and that they failed to comply with an order to remove the obstructions, which did not prohibit vehicles from using the road. The Wrights counterclaimed that the town was trespassing.
The trial court granted summary judgment in favor of the Wrights, finding that Home Place was a private road, and dismissed the town’s complaint. The town appealed.
The appeals court invalidated the board’s resolution, but declined to agree with the trial court’s finding that the road was private, saying that the issue of whether there was implied dedication of the easement had not yet been resolved.
Back in the trial court to determine whether the road was private, a judge in August 2010 ruled in favor of the town, because the Wrights didn’t bring an action for inverse condemnation or refuse city services on the street since the resolution was passed. The Wrights again appealed, and again the appeals court reversed the decision and remanded the case for a determination on implied dedication.
In a bench trial in September 2012, Judge Beverly T. Beal ordered that the road was a private right-of-way, saying that the deed’s language does not describe the right-of-way as having been conveyed, nor did it imply the Wrights’ intent to dedicate it.
In 2013, the town sought to condemn the property through eminent domain after the Wrights had erected a fence, bordering Home Place but not blocking access, prompting concerns from neighbors that the couple would, in the future, block the road.
The appeals court decision notes a flurry of emails from Taylor and Commissioners Nancy Moore and Suzanne Gulley urging concerned neighbors to attend a March 2013 meeting to voice their opinions and help convince other commissioners that the action should be taken. The board unanimously approved a resolution to condemn the property in April 2013.
The town’s stated purpose in condemning the property is widely accepted by the courts in eminent domain cases: “for the opening, widening, extending, or improving roads, streets, alley, and sidewalks and more particularly described as Home Place.” The town estimated the Wrights’ compensation at $1,500.
However, of the Wrights’ five Home Place neighbors, only one had dedicated the easement to the town, and the status of the other four neighbor’s easements had not been established.
In fighting the condemnation, the Wrights asserted that the taking was not for public use or benefit and that the compensation was inadequate.
In March 2014, Judge F. Donald Bridges ruled that the town’s action was “simply an attempt to accomplish, through other means, what was originally intended by its actions on March 25, 1985, February 5, 2004, and October 9, 2006, rather than constituting a taking of property for some recently realized new need for a public purpose or benefit.”
A taking for the public benefit, he said, requires “more than the Plaintiff simply reiterating its previous position, without any plans whatsoever for construction, improvements or alterations to the property being taken.”
The town appealed.
The appeals court ruled that the action failed the public benefit test: “whether some benefit accrues to the public as a result of the desired condemnation.”
However, “not just any benefit to the general public will suffice under this test. Rather, the taking must furnish the public with some necessity or convenience which cannot readily be furnished without the aid of some governmental power.”
The court cited the fact that the four other landowners’ portions of the easement have never been dedicated: “It defies reason that the Town would need to condemn only the Wrights’ portion of Home Place in order to ‘open’ the street.”
Further, the court wrote, neighbors, fire fighters and utility providers would continue to have access to the road.
Juran said he is waiting to see if the town petitions the Supreme Court, and will ask that the town reimburse the Wrights for attorney’s fees and litigation costs.
He said the Wrights have no intention of blocking access to the road, and have sent a letter to that effect to the town.
The Wrights’ “preference would be for it to remain private,” he said.