News

Lawyers descend to harvest Ecusta Trail clients

By Bill Moss, Published: May 27, 2021

Attorneys seeking clients who could win compensation for right-of-way along the Ecusta Trail are parachuting in to harvest legal work.

Two lawyers with a St. Louis-based firm that specializes in rails-to-trails cases across the country are holding public meetings June 1 and 2 at Etowah Valley Golf & Resort to explain the process for making a claim and sign up clients.
“It’s really just an opportunity for us to explain what’s happening, the process for making a claim for compensation and then just to answer any questions,” said Lindsay S. Brinton. Brinton and another Lewis Rice attorney, Meghan S. Largent, will make a 30-minute presentation and respond to questions. The St. Louis firm is just one of several that have descended on Henderson and Transylvania counties to sign up clients.
In an interview, Brinton said the firm had identified 425 parcels that could be entitled to a claim for compensation for the taking of land for the public recreational trail. The national Trails Act allows the federal government to take rail corridors for recreational use in a process known as railbanking.
The attorneys’ involvement comes as Conserving Carolina closes in on the purchase of the 20-mile line from Hendersonville to Brevard, a pivotal milestone in a 11-year effort by the Friends of Ecusta Trail and others to achieve the bicycle-pedestrian greenway.
The number of claims and the amount the federal government pays the landowners won’t affect the price Conserving Carolina pays for the line. Nor do railroad right-of-way claims prevent the conversion of a rail line for recreational use under the Trails Act, which has been upheld by the U.S. Supreme Court.
“The railroad, the Friends of Ecusta Trail, Conserving Carolina — they’re all doing exactly what they’re entitled to do,” Brinton said. “This is part of the program and it’s all because the federal government basically preempts state law” and says, “We’re going to allow this taking to happen. We want to keep this corridor intact in case we ever want to use it in the future (as a rail line) and when they do that, that is the taking of the owners’ private property rights.” The Fifth Amendment of the U.S. Constitution requires the government to pay just compensation when it takes private land for public.
Through a mail solicitation to property owners abutting the tracks and an in-person visit here last month, Lewis Rice has secured around 100 clients.
“The government does not send notice to these individual landowners,” Brinton said. “A lot of times people say, ‘Why are these attorneys from Missouri contacting me?’ and it’s because that’s the only way they’re going to find out about this taking.”

Attorneys take cases on contingency

The Friends of Ecusta Trail has said its research shows 80-90 percent of the trackside land is owned by Blue Ridge Southern Railroad fee simple, meaning the private landowner would have no claim for compensation.
“I’m aware that they’ve made those statements,” Brinton said. “It seemed to be that if the railroad acquired the right of way by deed, they assumed the deed was fee simple. I did not see an analysis of each particular deed and whether it was fee or easement.”
Chris Burns, a founding member of the Friends of Ecusta Trail, stood by the legal research showing that the railroad owns around 90 percent of the right of way outright.
“Between Conserving Carolina and Friends of Ecusta Trail we invested about $250,000 in surveys and title work,” he said. “It’s taken six months.”
The railroad, Brinton said, may have acquired right of way by three means: by deed, by condemnation or by prescriptive easement, “which means they have no deed, no written conveyance,” she said. “So it’s not sufficient to say, ‘It’s a deed. It must be fee.’ You have to look at that deed and see what it says and reconcile it with North Carolina state law. … A deed doesn’t necessarily mean that they acquired it fee simple.”
Brinton and Largent sign up clients at no charge, taking a 33 percent contingency as payment.
“The owners don’t pay anything out of pocket,” Brinton said. “They never get an invoice. Their fee is deducted from their total award.”

Most claims are settled

Some businesses, restaurants and brewpubs that are open along the tracks say they chose the location because they expect the greenway to channel a steady flow of patrons to their door. But Brinton said homeowners often fear that the public trail will cause their property to depreciate.
“I would say a lot of folks are very upset about this,” she said. “For most people your home is your biggest asset and definitely financially but how you enjoy your property will be affected. Nobody knew when they bought this property that there would be a trail right next to their property.”
While claims must be filed formally with the federal Court of Claims, “the vast majority of our cases are resolved through settlement” without reaching a formal hearing, Brinton said.
The attorneys expect to rebut the argument from trail advocates that the greenway will boost real estate values.
“I’ve heard that argument that it’s going to increase property values,” she said. “I haven’t seen any evidence to that effect. Typically, properties off the trail sell for 15 to 20 percent more than an identical property on the trail. The idea is that, yes, trails generally are a good thing for the community, just like public schools, but not everyone wants one in their backyard.”
Burns said the anecdotal evidence suggests that the market is responding positively to the greenway’s potential.
“I probably get on average two phone calls a week from either Realtors or potential property owners that are looking to purchase property along that corridor because they want to live on the corridor or they want to own a business on the corridor,” he said. “If I’m getting two phone calls a week I’d say there’s pretty good demand.”
Listings, he added, are already promoting trail access.
“I find it very interesting that every single Realtor chooses to put, as a prominent point, the proximity to the Ecusta Trail,” he said. “I have a feeling that if Realtors that do that for a living are doing that, it’s not because it’s not adding value.”
Burns has heard from trail supporters of four or five law firms that are soliciting client. Some of those targets have called him and expressed alarm that the claims might stop the railbanking.
“I’ve had at least three landowners along that trail that have gotten these letters and said, ‘We’re going to listen to what these attorneys say and if we do get some compensation we’re going to donate our compensation to the construction of the trail.’”

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Attorneys Lindsay Brinton and Meghan Largent will host informational meetings at 5:30 p.m. Tuesday, June 1, and 9:30 a.m., noon and 5:30 p.m. Wednesday, June 2, at Chelsea’s Event Center at Etowah Valley Golf & Resort, 470 Brickyard Road, Etowah.