Lawyers: Landowners Along Trail Entitled To Compensation


Last updated 6/2/2021 at 2:58pm

According to a St. Louis law firm, Lewis Rice, the majority of landowners adjacent to the proposed Ecusta Trail rail corridor qualify for compensation from the federal government.

In a meeting for around 10 interested landowners Tuesday night at the Etowah Valley Golf Club and Lodge, lawyers Lindsay S.C. Brinton and Meghan S. Largent held an educational meeting to discuss compensation claims for landowners along the corridor in Henderson and Transylvania counties. Brinton and Largent also held two additional meetings on Wednesday.

According to Brinton, it’s Lewis Rice’s opinion the majority of the land the rail corridor runs through was given right-of-way through easements, an opinion that is not shared by the trail group that will eventually purchase the line.

Conserving Carolina, the trail group responsible for overseeing the Ecusta Trail, was told the railroad company owned the majority of the line in “fee simple,” or permanently with freedom to dispose of it at will.

“The railroad told us that they owned a significant majority of the line in fee simple and our legal work to date supports that statement,” said Rebekah Robinson, Ecusta Trail project lead with Conserving Carolina. “It is uncommon for the railroad to own significant fee simple ownership but that is the case for this line, as we understand it.”

If the railroad had owned the land under the line in fee simple, or permanently with freedom to dispose of it at will, then the adjacent landowners would not have rights to file a claim for compensation, but Lewis Rice believes that is not the case for most of the line.

“It all goes back to what rights the railroad acquired when the railroad originally acquired this line,” Brinton said in a separate interview with The Transylvania Times. “Back in the 1890s, the railroad acquired this line through a series of different means.”

Brinton said some of the line was acquired by deed or “written conveyance,” some of it was acquired by condemnation through the power of imminent domain and some of it was acquired by prescriptive easement. Each of these different means is evaluated differently, Brinton said.

“It’s our understanding and belief that the majority of this line was acquired by just an easement,” she said. “So, those owners gave the rights to the railroad to run trails up and down this line. But under North Carolina law, just like every other state, an easement is just a limited right for a limited purpose. So, once that purpose was no longer necessary that easement is extinguished.”

Whether each segment of the railroad was owned in fee simple or through an easement will determine which cases get brought to federal court for compensation, and Brinton said they would not bring any case that they didn’t think they would win.

Though landowners may want to get their easement back, now that the line is no longer in use as a railroad, federal law gives trail groups the authority to establish the line as a linear park, as a way to keep the rail corridor intact in case another railroad wanted to use the line again – a process known as rail banking.

The Federal Trails Act supersedes state law and allows a trail group to purchase rights-of-way for the corridor to establish a linear park.

“The federal law is preempting state law. That is certainly constitutional,” Brinton said. “The federal government can do that, but this is a form of eminent domain, where if they are going to do that, then they have to pay owners their just compensation.”

Brinton and Largent specialize in these kinds of rails-to-trails land-use cases, and according to Brinton the firm has handled nearly 100 across the country.

Along the 19-mile Ecusta Trail corridor, Lewis Rice currently represents around 110 landowners out of about 400.

“These cases are what they call inverse condemnation,” Brinton said. “The taking occurs first, and then if an owner wants to be paid, they have to bring a case for compensation. The federal government won’t come to you and say, ‘Hey, we’re going to take your property, how does 10k sound?’ They will never come to you and tell you about this taking.

“We, as attorneys, notify landowners and let you know that this taking is going to happen, and it would be your right to determine whether or not you want to be paid for the taking. We assemble the claims of our client in the area and then we bring these claims for compensation against the federal government.”

Throughout Tuesday’s meeting, Brinton went through the case law established in Trails Act cases.

She said that it is rare for a landowner to stop a rails-to-trails project from coming through their property due to the constitutionality of the Trails Act.

In April 2021, Blue Ridge Southern Railroad, LLC filed to abandoned the corridor, but as of June 2, Conserving Carolina (the trail group interested in purchasing the right-of-way) has not yet asked the Surface Transportation Bureau to issue a notice of abandonment for the purchase of the trail.

According to Robinson, Conserving Carolina expects to file within the next two months.

This notice of abandonment, officially called a Notice of Interim Trail Use or Abandonment, or NITU, is what triggers the taking of the land on the corridor and also the six-year statute of limitations in which landowners are able to file a claim for compensation if they are entitled to it.

As previously reported, Henderson County has secured funding for the construction of the first three phases of the trail – from downtown Hendersonville to the French Broad River near the county line.

Transylvania County, however, has not yet made any promises to finalize the trail’s construction on the Transylvania portion of the corridor.

A handful of Transylvania County residents who own land adjacent to the corridor were present at Tuesday night’s meeting and say they oppose the trail’s construction through their property.

One landowner, who wished to remain anonymous, said he was concerned about how the trail’s construction would impact his farm.

“At this point it’s become a source of pain and frustration,” he said. “In Transylvania County, where it’s going through, is heavy crop production. How is this going to be negatively impacting crop production and livestock? How is it going to impact livestock crossing back and forth? How is it going to impact crop production on corn, getting equipment back and forth?”

He also estimated his insurance costs would increase $900 a month once the trail comes through his land.

Local landowner Derek Wilbanks was also present at Tuesday’s meeting and said he hopes the trail doesn’t end up bisecting his property.

“My hope is it doesn’t happen,” he said. “We don’t have a right-of-way across our property. It’s an easement. If you look at the other side of Everett Road, there is an actual right-of-way across the track. I’m hoping if this goes through…that the trail stops right at Everett Road and that (trail users) have got to use the road to get to Oskar Blues to do the drinking.”

Wilbank’s property is right up against the rail line and he also services a food truck on his land next to the trail.

He said is worried about trespassers coming onto his land and whether his access to the road will be blocked.

“We cannot serve food from where we service the food truck,” he said. “That’s a big misconception about people telling us, ‘Oh well, you’re going to have a trail going through your yard. You can sell food.’ We can’t do that. State law does not allow us to serve from where we service. You’re talking about people walking through my yard on the trail feet from my business, feet from my house, and feet from my four daughters and my cattle in the back. I don’t like it.”

In the meeting, one landowner asked how the trail would impact their property values, and Brinton said usually rails-to-trails projects devalue adjacent property.

“Meghan and I have been doing these cases collectively 30 years, and so we’ve seen lots of trail sponsors come in and say this is going to make your property great and this is going to be great,” she said. “Maybe a handful of people want to be on the trail, but the reality is most people, while trails might be nice for the community, not everyone wants to host them on their property. Consistently, time and time again, when we have experts run these reports, and they’ve done sales analysis, consistently the studies have shown people pay less for property on the trail as opposed to off the trail. So, not only is it taking a portion of your property but your hosting a public thoroughfare on your property.”

This position is also in opposition with statements from trail supporters.

In a 2012 economic impact study, Friends of the Ecusta Trail estimated the trail’s construction would indeed raise property values.

In the report, it states that a more extensive and direct calculation on property value impact of the proposed trail is beyond the scope of the report, but that there is extensive literature and analysis that can offer the property value impact of the trail.

“To be conservative, it is assumed that the implementation of the Ecusta Rail Trail will result in a one-time 4% increase in the value of properties located within a quarter mile of the trail,” the report states.

In the report, four studies on the property value impact of the trail were presented: “A Dynamic Approach to Estimating Hedonic Prices for Environmental Goods: An Application to Open Space Purchase,” Riddel (2001); “Quantifying the Economic Value of Protected Open Space in Southeastern Pennsylvania,” Econsult Corporation (2010), “The Economic Impact of the Catawba Regional Trail,” Campbell and Monroe (2004), “The Potential Economic Impacts of the Proposed Carolina Thread Trail,” Econsult Corporation (2007); and “Valuing the Conversion of Urban Green Space,” Econsult Corporation (2010). Each study represented an increase in estimated property value impact, according to the report.

Brinton said Lewis Rice’s only goal is to help adjacent landowners get just compensation and that they are a “trail-neutral” organization.


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