Property considered surplus, to be marketed and sold.
At Monday's Franklin Board of Aldermen meeting, after having a closed session to consult with Town Attorney John Henning Jr., the board voted to settle a lawsuit waged by John W. Mitchell, Jr. Revocable Trust on April 2, 2012, and adopt a resolution to acquire the property in question.
Paperwork was filed on April 2, 2012, on behalf of John W. Mitchell Jr. Revocable Trust and lists Jones P. Byrd of Van Winkle Law Firm in Asheville as the legal representation for the plaintiff.
The complaint states that on or about Oct. 15, 2010, the Town of Franklin acquired by inverse condemnation interests in the land of the plaintiff. On April 2, 2012, a permanent sewer easement, including the right to install, operate, maintain, replace and repair the underground sewer line installed across the plaintiff's property “by inverse condemnation, and a trespass upon the property of the plaintiff.”
As Henning explains, the town arranged to replace a sewer line that roughly follows Crawford Branch from an area around Baird Cove on the west, through to the waste water treatment plant on the east bank of the Little Tennessee.
“As we always do, we attempted to get all easements for the sewer line before the project started (some sections of which were in new places and so required new easements), but we were not able to secure an easement for a 100-foot stretch between Mill Street and East Main Street. This section was required, according to the plan laid out by the town's engineers, and meant crossing property owned by the John W. Mitchell Jr. Revocable Trust, between the Junction Depot building and a string of buildings to the west of that property.
“We came to a point of either holding up the project in order to wait until we had the easement in hand, which would have been costly in terms of contractor/construction time, or pressing ahead without the easement. The town opted for the latter, attempting as it did so to place the line across the Mitchell property in such a way that it would minimally impact the value of that property – in a steel casement which is 7.5 to 8 feet deep, which was meant to allow construction on top of the line. The property owner felt that the value of the property had been impacted and filed the suit for an inverse condemnation - 12CVS228 - alleging that a government taking of the property had occurred, and asking for a jury to award just compensation.”
The document that was obtained by The Macon County News and printed in the Jan. 30, 2014, issue, justifies the complaint by pointing to N.C. General Statute 40A-5, the 5th Amendment of the Constitution of the United States of America and Article 1 of the Constitution of North Carolina.
According to Henning, the plaintiff offered to settle the matter by agreeing to sell the property to the town for its 2010 tax value, before the line was installed, plus the costs of filing the action. The town accepted, by way of resolution passed at the meeting and Henning is currently working on a consent judgement that will dismiss the claim and transfer the property in question to the town.
The total payment from the town is $180,300 and that will include the purchase of the property as well as the amount of money that was used to pursue litigation by the complainant. The funds will come from the retained earnings budget.
“While the cost of the settlement may seem to some to be excessive, the thing to keep in mind is that the town was facing the prospect of paying as much or more to go through a trial, and get out of it only a 7.5- foot deep easement with no right or ability to access it from above,” said Henning. “For approximately the same cost, the town gets an asset that it can sell, cutting its costs substantially, and reserving to itself an easement that will let it fully access the sewer line, should the need arise.”
The building that occupies the property is currently leased and thus will generate income. The resolution as adopted also designates the property as surplus so that it can be marketed and sold.