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 blog post I wrote in 2008 shortly after the fence first went up:

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.



I'm a former Estes Park resident and spoke about this issue at an Aldermen meeting a couple years ago.  Not only would removing the fence and formalizing the currently informal pedestrian routes make bike/ped travel safer and faster for Estes Park, it would have the same effect on nearby neighborhoods and vastly improve connectivity in that area.

And as a Village West resident whose auto-dependency was drastically increased by this idiotic fence, I also couldn't agree more. Maybe now the time is right for the community to recognize and put some pressure on this issue. Our small area has thousands of residents in walking distance of dpwnfown Chapel Hill and Carrboro, and we're all trapped between Estes Drive and Bolin Creek.

There's some good comments and discussion happening on this over on Facebook:

Can we move the fence from Estes Park to CVS?

<blockquote>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).</blockquote>That's really exciting news, Mark! I'm glad to hear it. I also live in Village West and agree that the lack of safe access has definitely increased our dependency on motor vehicles.

It will take a while to get it funded and built, but with support from Friends of Bolin Creek and others, both Carrboro and Chapel Hill have designated the Campus to Campus Bicycle Route as our #1 unfunded priority and applied to NCDOT to use our share of the State Transportation Improvement Program funding for this purpose.  The question is now whether NCDOT will fund it (and when).

I lived in Village West 79-84 and it was certainly nice to be able to get to downtown Carrboro cutting across Estes Park.

For the record neither Mark Chilton nor the person requesting assistance with getting a moving truck to her living area adjacent to Estes Park has contacted us. The gate was installed so that the Railroad Company and Duke Energy would have access for maintenance purposes.  In fact at the time we were considering a fence, a railroad company representative informed us that this area is not considered an official pedestrian crossing and those who do so could be charged for trespassing. The sole purpose behind the fence was for the safety of our residents, not create a hardship for anyone. It was also made clear that the railroad company was equally concerned about the safety of the public as well. But the most disturbing vision that any parent like myself could witness is a speeding train barreling down the tracks with children playing within feet as it passed by.  A real estate/business owner with that kind of devotion to his residents is someone that should be commended for his acts and not persecuted. Also since the fence has been installed there has been a drastic decrease in the crime on my property and there have been many times that police officers coming into our neighborhood have stated that putting the fence up was one of the best things we could have done on the property. We will never know how many people and especially children this fence prevented from being harmed.   We have no problem opening the gate to allow access for this resident to retrieve her personal affects, but I would urge her to go through the proper channels and seek approval from the railroad company and work our a schedule so that she is not placed in harms way during the moving process or cited for trespassing. Anything we can do to ensure her experience goes as smoothly as possible we are more then willing to do.  We have been and remain a good longstanding business, offering affordable housing to the residents of Carrboro and the Triangle.

Do you have any evidence for your claim that there has been a drastic decrease in crime? I would like to hear from the Carrboro and Chapel Hill police departments about whether they see any significant statistical trends toward less crime, based on their reports and records, since the fence was imposed on the community.James Coley

The Daily Tar Heel has an article on the fence, erected in 2008, which I have called Brummett's Folly. The DTH reports that  " ... Carrboro police crime statistics for the apartments indicate that there hasn’t been a significant reduction in burglary, larceny or motor vehicle theft since 2008." I would like for the Estes Park Apartments manager to explain here on the blog how there could have been a "drastic" decrease in crime there, when this has not been reflected in these statistics. The representatives of that business are not interested in the truth, and they believe what they perceive to be in their interests to believe. James Coley

Patrick DayI have been bicycle commuting to Airport Drive from Carrboro for over 15 years. The pedestrain/bicycle lane on Estes is welcome, but it is not as user friendly as the cut through. Traffic on Estes is heavy and for novice and experienced cyclists it is a harrowing commute. I rarely use it at 5pm prefering to go through Chapel Hill to get back to Carrboro. If I do use it during heavy traffic I usually bail at the Estes Apartments where the pedestrian/bike lane ends before N. Greensboro and use the dirt path to Pleasant. I would welcome the gate being removed and the cut through becoming usable again because I would have an alternative to battling the traffic on Estes. In light of the Broad St. connection, not being able to use the cut through will be a glaring obstacle for people including children having oppourtunites to avoid being in traffic. To my knowledge no children or adults were ever hit by a train when the gate didn't exist, and as far as crime at Estes Apartments at what point to we decide the need to move people is out weighed by the need to fence the bad few out? Gasoline is predicted to reach $4 a gallon this summer, more people are going to be looking for alternatives to driving and making this connection usable again surely would be more benficial to the resident of Estes Apartments and the community than not.  

Are you really willing to put the children at harms way to make your travels more convenient??? Why should I wait until a child gets hurt to be proactive about the situation??? It is the matter of going around a corner not going a few blocks out of the way!!

Estes Park Manager, your logic is absurd. I could wrap my son in bubble wrap to ensure he never gets a scrape or cut, but we don't choose to live our lives that way. (Thank goodness.)  My son would greatly benefit if he could walk 1 mile with me to downtown Carrboro instead of being strapped into a carseat for the 2 mile drive around Estes Drive.  


Patrick DayNo one ever got hurt at that railroad crossing, child or adult. The type of access opening this path would afford would be a safer option to children than sending them out onto Estes to navigate that traffic. You don't want to open the gate and allow this access so your "for the children" argument sounds disengenuous. Residents of your apartments would welcome this access, it could even be an attractive recruiting tool, "Live at Estes, bicycle or walk to town without having to get on major roads." Frankly I can ride on about any road and do, I'm advocating for people who are afraid of bicycling  close to so many motorists. This access would make cycling a lot more attractive to many people looking for alternatives to some of the major roads a cyclist or pedestrain currently has available to them. 

I have no reason to believe that the fence has made anyone safer. In fact, it has probably had the opposite effect, since some people who used to use the Merritt Crossing now go to Estes. The argument from child safety is, as Ruby points out, and always was, bogus. The imposition of the fence was an abuse of property "rights" that has hurt the community. The fence should be destroyed.James Coley

Mark,Thank you for posting this and keeping this alive.   My backyard is the path that connects Pleasant street with Estes apartments.  It is amazing the number of people who use this path, probably more then the Libba Cotton bike-way.  Not so long ago the Board of Aldermen received plans from staff, and we had money to allocate at the time, to improve the rut that this path has become but unfortunately Estes Apartments refused to collaborate with the town.  (I know for a fact that there is no train crossing this path that could serve as an excuse by Estes apartment management for not allowing a proper connection).Hopefully the same state laws that you cite that apply to the railroad crossing apply to this path and the many other paths throughout town that connect to low-income parts of town (i.e. paths that connect various apartments off of Barnes street). I look forward to working on and supporting the effort to open the railroad crossing and making other connections in town formal.

OK, now we have a mayor and at least one alderman on board with reopening the public right-of-way at the Merritt crossing. How do the rest of us help you make it happen? Chapel Hill. You would think that owning property on the wrong side of a locked gate would motivate the town to do... Anything. But this was not the case when Mayor Chilton contacted them a few years ago. Maybe we'll have more receptive ears there now, I don't know.

Town Council? Not that that will necessarily accomplish anything in and of itself, but it could get the issue noticed.

I'm not someone who walks in this area, though I know several who do.  I would strongly recommend that as people work towards any solution to improve this situation, that any proposed solution to Chapel Hill Town Council or Estes Park Management should not include doing anything that would require you to get permission from the railroad to implement that strategy.All the freight rail stakeholders involved in this line have considerable incentives to say no to any change in policy regarding pedestrians in this area.Strategies that incorporate changes to non-railroad property are far more likely to be successful.

Thanks to Carrboro mayor Mark Chilton for reopening the issue of the Merritt Crossing. The imposition of the fence on the community has exacted a significant cost in walkability and bike access. It is a good example of how some businesses operate as though their property titles give them the right to do whatever they want. As has been noted before, this is an extreme and inaccurate conception of property rights that lies at the heart of much of what is wrong in American society. Mark: Given that the Merritt Crossing has legitimacy under our legal traditions, can't the Carrboro board simply pass an ordinance to protect the crossing, forbidding impediments, and then send the police out there with bolt-cutters if Estes Park Apartments does not comply by permanently opening the gate? James Coley

Megan Scmelzle wrote an article titled Fence Blocking Path in Carrboro Disputed  in the City section of the Daily Tar Heel on 2/23. I could not link the article for unknown reasons, but check it out and leave a comment.

Thanks, Pat. This is the same article I mentioned in my 2/25 post, which has the link. James Coley


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