News

Advisory committee tackles policy on trail encroachment

By Bill Moss, Published: January 27, 2022

Now that the Ecusta Trail is progressing into the design and engineering phase, with construction not too far behind, the committee guiding the project is taking up the “what ifs.”

During its regular meeting last month the Henderson County Rail-Trail Advisory Committee began to talk about how to handle requests for encroachment onto the trail right of way and heard that it will need to draft a memorandum of understanding to spell out responsibility and authority for trail maintenance, policing, management and other tasks.

The rail corridor is now owned by Conserving Carolina and managed by Henderson County under a long-term lease. It’s expected, however, that the city of Hendersonville and town of Laurel Park will take some responsibility for policing and possibly maintenance and that a volunteer corps made up of trail supporters will take an active role in upkeep. It’s also known that public entities such as the NCDOT, Duke Energy and water and sewer providers need the right to cross the greenway.

“Encroachment is any time something other than Conserving Carolina or the county does something inside of our right of way,” county engineer Marcus Jones explained to the advisory board.

Dealing with requests from a public utility is common and widely understood by all parties. The situation gets thornier when a request comes from a private property owner along the rail corridor. Jones used the example of a homeowner wanting to locate a shed inside the trail right-of-way.

“There are some things we would want to accommodate and some are things we would not want to accommodate,” he said. Cases that are legally controlled by the federal Rail to Trail Act won’t be in the county’s authority anyway.

“We need to have a policy how we accept, approve and inspect the encroachment,” he said. Among the questions the rail-trail committee, Conserving Carolina and the Board of Commissioners need to answer is how an encroachment would be granted and what kind of licensing and insurance would be required. It’s possible that public utility encroachment requests could be granted at the staff level, Jones said, while requests from businesses and private landowners would be evaluated by the advisory committee and decided by the county commissioners.

Jones has already been fielding questions and receiving requests. One example is a trailside strawberry farm in Etowah that wants to replace an irrigation line. “I just have a feeling he is going to get overrun with customers when this trail goes by his farm,” Jones said. “He’s very supportive of the trail.”

On the other hand, a landowner who wants to erect a privacy fence inside the right-of-way is likely to be told no.

“It really is like having neighbors,” Jones said. “You don’t go put a fence on your neighbor’s property. You put it on your property.”

“We have a trail that runs all the way from Hendersonville to Brevard,” he added. “Encroachments are necessary things. It’s not a bad thing for the trail but it could be if it’s not done right.”

Keeping the process collegial

Christopher Todd, the county’s director of business and community development, said the committee needs to begin work on drafting a memorandum of understanding to spell out who is in charge of what along the trail.

“My goal for this board would be to have that in place by the time construction begins,” Todd said. “If any section opens that MoU would be in place.”

Examples of work or management to clarify include law enforcement, approval and management of special events, liability and insurance issues, even who empties trash cans.

“We have a lot of moving parts and a lot of pieces getting this document in place,” he said.

Committee Chair Chuck McGrady said it’s important to keep communications open as the spirit of cooperation moves into the specifics of a legal agreement.

“The process up to this point has been very much collegial in all ways,” he said. The MoU is critical, he said, “so at some point in the future you don’t inadvertently have some disagreement.”