Merritt Crossing Redux

Yesterday I received a call from a woman who lives in a tent she assembled in the woods east of the railroad tracks near land that Chapel Hill purchased from the estate of Leo Merritt. I have known her for several years and she has been a part of the downtown Carrboro community for a long time. I had mixed emotions about what she had to say. She is moving next month to be with another member of her family in a nearby state. On the one hand, I am happy for her that she will (presumably) have more formal housing arrangements, but on the other hand I will miss seeing her around Carrboro.

But the reason she called me was to ask me to help her pull her U-Haul truck down as close as possible to her campsite. She’s no spring chicken and her camp is about half a mile from the nearest paved road; the closest way to get to her place by motor vehicle is by driving through the parking lot of Estes Park Apartments, down what was once Leo Merritt’s driveway and parking near where his house once stood. The problem is that in 2008, the owner of Estes Park Apartments built an 8’ chain link fence all along the railroad tracks, topped in barbed wire with a padlocked gate blocking a long standing public right-of-way that has connected Pleasant Drive in Carrboro to Village Drive/Jay Street in Chapel Hill.

I told her that neither the Town of Chapel Hill nor the Town of Carrboro has a key. That gate and its padlock belong to Estes Park Apartments.

I feel that this situation (both her immediate need to access Leo Merritt’s driveway and the general public being denied a traditional pedestrian connection) are a great local example of what the Occupy movement locally and nationally is all about: The abuse of purported private property rights by the 1% in derogation of the rights of the people in general and low-income people in particular. And on top of everything else, the result is a reduction in pedestrianism and an increase in air pollution and traffic on Estes Drive.

The Merritt Crossing

For extensive background on this issue, you can read this OrangePolitics.org blog post I wrote in 2008 shortly after the fence first went up:

http://orangepolitics.org/2008/07/the-merritt-railroad-crossing

To summarize: It is very clear to me that a public right-of-way has existed through the middle of the property that is now Estes Park Apartments for more than 70 years. Even after Estes Park was built in 1971, people continued to use this traditional right of way by beating a foot path which connects the end of Pleasant Drive through Estes Park over to Village West and the segregation-era West Chapel Hill Cemetery. Prior to Hurricane Hazel (1954) this right-of-way connected over to Sykes Street in the Northside neighborhood in Chapel Hill. But Hazel washed away the rickety bridge which formerly connected Jay Street to Sykes Street and it was never rebuilt. The right-of-way across the Estes Park property is plainly visible on maps and aerial photos at least as far back as 1938.

Estes Park management claims that there is no public right-of-way, however, and claims that the fence is needed to deal with crime problems at their apartment complex. Management says that criminals formerly robbed their tenants and fled across the tracks and into the woods. Some area residents have suggested that the fence is at some level intended to segregate the mostly African American residents of Northside from the mostly Hispanic residents of Estes Park.

Three years ago, I met with management about the issue and asked them to remove the lock both because the right-of-way is public and because it interferes with a clean form of sustainable transportation (walking). They refused. I offered to compromise by having the gate unlocked during the day and locked at night, but again they refused. Two years later we approached Estes Park management about formalizing the dirt path on the other side of Estes Parkf—rom the end of Pleasant Drive into Estes Park—so as to facilitate pedestrians and cyclists coming from Estes Park to downtown Carrboro the other way, but again we were rebuffed. The Board of Aldermen has discussed this situation a couple of times since then, but the prospect of potentially expensive litigation (at taxpayer expense) has deterred the Board from pursuing the matter in court. So there the situation remains. Gate locked.

Squatters Rights and Adverse Possession

I find it interesting to note that at the heart of the Yates and Norina occupations lies an apparent interest in the issue of squatters rights. I assume (perhaps at my peril) that at least some of those who occupied the buildings are partly inspired by squatter settlements in places like Caracas, Venezuela or squatter settlements on former Soviet military bases in Eastern Europe or more high-brow artists' squats in Paris or all three. Of these examples, perhaps the most interesting one is Caracas, where squatters have in some cases been on the land for decades and where President Hugo Chavez issued new land titles to squatters shortly after he was elected.

No doubt some will rush to condemn Chavez's Socialist expropriation of this land, but I have to point out that North Carolina's laws regarding the ancient Common Law legal doctrine of Adverse Possession have almost precisely the same effect (though the operational mechanics are different). In North Carolina, if you hold onto another person’s land for a number of years and your tenancy is HI-OCEAN (hostile, intentional, open, continuous, exclusive, actual and notorious) then the land becomes yours. If you are on the land by virtue of a faulty deed, this process can take as little as 7 years. If the land belongs to the government, adverse possession takes 40 years and if the land is a public right-of-way, the doctrine of adverse possession is completely barred by state statute.

So in my opinion, North Carolina adverse possession law means that the public right-of-way across Estes Park CANNOT be adversely possessed by Estes Park—no matter how long that gate remains locked. Also, NC law prescribes a detailed legal procedure for the formal abandonment of public rights-of-way. A careful search of Carrboro Board of Aldermen minutes has revealed that no such abandonment procedure ever occurred. Therefore, if I am right that this was a public right-of-way prior to the construction of Estes Park, then it is still a public right-of-way today, even though Estes Park management contends otherwise.

Furthermore, even if it was not a public right-of-way before 1971, I contend that it has since become one. Adverse Possession has a companion legal doctrine called Easement by Prescription, which essentially holds that if land is used by non-owners in a way that meets all of the HI-OCEAN criteria except for the “exclusive” element, then there is an easement created in favor of the parties who have been non-exclusively using the land. It is clear that the public has been walking across Estes Park from Pleasant Drive to Village Drive for 40+ years now and I believe there is therefore at least a public easement by prescription across Estes Park, even if somehow there was not a pre-existing public right-of-way.

Campus to Campus

This issue has languished for a while now because I have had plenty of other issues to work on, but in addition to the immediate issue of helping this woman move, other recent events bring this issue back to the fore. In 2011 the Carrboro Board of Aldermen and the Chapel Hill Town Council jointly decided upon a route for the Campus-to-Campus (C2C) bicycle route which will connect UNC’s main campus with Carolina North. This new bike route will (among other things) connect the end of Broad Street in Carrboro with Village Drive in Chapel Hill, creating an important new bicycle connection among several important areas of Chapel Hill and Carrboro and better connecting several low-income neighborhoods with our area’s largest employer (UNC).

But the C2C route runs on the east side of the railroad tracks and the Estes Park fence across the old right-of-way is on the west side. It will consequently block access to the C2C for not only Estes Park residents, but also several other neighborhoods in Carrboro. If the fence were abolished, then not only would the interconnection of several Carrboro and Chapel Hill neighborhoods be restored, but the entire community’s access to the C2C could be formalized as well.

I believe it’s time for us to revisit this issue. Estes Park management needs to open that gate and allow the people to use this long-standing public right-of-way. It will help promote healthier lifestyles, reduce air pollution, better connect low-income people to sources of employment and above all, it is quite simply our right to use the Merritt Crossing.