"Spitting Mad," "Super-Stoked" or Neither? Landowners Talk about the Ecusta Trail
Interviews with owners of property near the proposed trail reveal a range of opinions and help provide details on objections from some County Commissioners.
PISGAH FOREST — John Wayne Hardison and Donald Austin both own land that extends into the right of way of the planned Ecusta Trail.
They have both joined one of the lawsuits filed on behalf of about 200 such property owners that will compensate them for the trail’s use of that land.
They both know bikes. Hardison still rides, and Austin, 63, said he was once an avid cyclist and might buy a comfort bicycle if the trail is built so he can enjoy it in his “golden years.”
But Austin, standing with his wife, Denise, on the front porch of their house on Old Hendersonville Highway, said they agreed to the suit only after being contacted by lawyers and only as a protest against the trail’s construction.
“We didn’t enter into it expecting to get a dime out of it,” Donald Austin said of the suit. “It was more or less just to let the powers that be know that we aren’t in favor of it.”
On the other hand, Hardison said he is “super-stoked” about the prospect of the trail crossing near the Old Hendersonville entrance to his parcel, the site of Bartlett Tree Experts.
He might have to pay for a fence to separate the trail from the business, where he works as an arborist representative, he said. (Some fencing will be built as part of the trail construction, said Brevard Mayor Maureen Copelof.)
But he also wants to invest in a shaded water station for future trail users.
“I could not be more excited about the trail, 100 percent,” he said.
The rights and opinions of such landowners — long an obstacle to the Ecusta’s construction — is once again front and center in discussions about its future.
Since Copelof criticized the Transylvania County Commission last month for failing to support the city’s application for a federal, trail-construction grant, commissioners Emmett Casciato, Teresa McCall and Vice Chair Jake Dalton have devoted chunks of their end-of-meeting comments to affirming their opposition to the trail — and their support of nearby property owners.
“I talk to people along there, and they have legitimate gripes about the trail. I’m really looking at those people there,” Casciato said Monday. “Don’t take my word for it. Go ask them.”
Ownership? It’s Complicated
Some of the half dozen property owners NewsBeat interviewed do have gripes about the prospect of trail construction. But, along with Hardison, who’s all for it, others are either conflicted or indifferent.
“If they do it, fine,” said Ralph Donato, owner of Coachworks Auto Body, which borders the old rail line on Ecusta Road. “If they don’t, that’s fine too.”
These interviews, along with property records and input from lawyers, also provided more detail about both the commissioners’ objections to the trail and a response from Mark Tooley, president of the nonprofit Friends of the Ecusta Trail, published in the Transylvania Times.
These objections include a statement from Casciato about ownership of the 19.4-mile-long former rail right of way on which the trail will be built.
“The railroad never owned that land,” Casciato said. “The people did.”
That’s not true of the whole right of way, but while some of it was originally purchased outright for the railroad, some was acquired as an easement — the right to use the land, not the land itself.
How much of the trail’s future path falls in each category?
Conserving Carolina, a subsidiary of which acquired the right of way in 2021, conducted a title search before the purchase that “indicated almost all the rail line in Transylvania County was owned by the railroad company,” Tooley wrote.
Rebekah Robinson, the Conservancy’s assistant director of programs, said in a follow-up email that the title search focused on deeds from the railroad’s original acquisition of properties, not the smaller parcels created since.
That search did, as Tooley said, show the outright purchase of most of the right of way in Transylvania, while in Henderson County ownership is “more of a mixture,” Robinson wrote.
For perspective, she pointed out, the right of way is bordered by more than 600 properties while about 200 owners have joined lawsuits claiming proprietary rights.
Still, it’s not hard to find documentation of property in Transylvania that extends either halfway or all the way across the easement. In fact, that’s true of the land owned by all the people interviewed.
Typical is the 1988 deed for one of two parcels the Austins own next to the old rail line. It states that the land extends to “the center of the 100 foot right of way of Southern Railway.”
Which leads to the next question: Does the construction of the trail violate the rights of these owners?
McCall certainly thinks so.
“There are people there whose families have lived on that land for generations,” she said. “If you think I’m going to screw them over — no, I’m not, and neither should you. If it were your property you would be spitting mad.”
Tooley responded that these owners haven’t had the right to use that property since it was acquired for the railroad more than 100 years ago.
“The only thing that has changed . . . is the ownership and the use of the rail line.”
He also wrote that, except maybe during construction, the trail won’t block any current right-of-way crossings.
Donato brought up a related concern.
“I’m not against the trail,” he said. “But I’m against them putting the right of way through my existing business which supports a half dozen families.”
His shop is currently separated from the old trail line by a chain link fence. And “if there’s an encroachment that does not hamper the trail, we’ll be issuing an agreement to basically grandfather it in,” Copelof said of the city, which has taken the lead on building the trail in Transylvania. “The last thing we want to do is impact anyone’s existing business.”
And to the extent the trail does result in additional loss of rights, there’s a legal remedy, said attorney Meghan Largent of the St. Louis law firm, LewisRice.
The firm, which specializes in such cases across the country, has filed three suits on behalf of property owners.
One of them remains open to landowners who want to explore a claim, she said. Two others, including one naming the Austins as lead plaintiffs, have been consolidated into an action that, a court document shows, has led to an agreement in principle between the firm and the federal government — and to the subsequent hiring of appraisers.
“The government has agreed they owe these folks just compensation,” Largent said, “but we need to determine what that just compensation is.”
The issue in these suits is not, as some assume, the much-discussed reversion clauses included in a small number of deeds, she said.
Those clauses merely state “definitively” what North Carolina law already guarantees, Largent said — that the property be returned to owners once the railroad has been abandoned.
That hasn’t happened because of 1983 federal law designed to preserve historic right of ways for possible future use as railroads. Conserving Carolina’s purchase didn’t result in the right of way being abandoned, Largent said, but “railbanked.”
Still, the suit says that state law entitles these owners to compensation and backs it up with citations of court rulings and, among other laws, the Fifth Amendment of the U.S. Constitution, which forbids the taking of private property “for public use, without just compensation.”
Largent said she can’t estimate the amount plaintiffs will receive but did say that compensation will take into account several issues that opponents have raised, including loss of access to roads, the French Broad River or chunks of farmland isolated by the trail.
“It’s not just about this strip of dirt that you own,” she said, “but how it devalues the rest of the dirt you own.”
Will it be enough?
“To say fair compensation, that’s a big-boy question I haven’t thought about enough or investigated,” Hardison said.
He said he joined the suit only after receiving assurances that payments would come from the federal government, not from local sources, and that it wouldn’t “hinder or stop” construction of the Ecusta.
And considering the benefits of such trails, which he has seen during, for example, family outings to the Prisma Health Swamp Rabbit Trail in South Carolina, “I don’t know that I deserve anything,” he said.
Though Donald Austin sounded more measured than “spitting mad,” he disagrees.
Unlike some of the other right of way’s neighbors, he doesn’t know of any thefts of his property by unauthorized users of the trail’s path. He expects the Ecusta to built, he said, and that “a large majority of (trail users) won’t be a problem.”
But some of them will almost certainly, for example, throw trash on his land, which is one reason he says the trail does indeed change owners’ relationship to the right of way.
The occasional trains that passed were needed to supply the Ecusta Mill paper manufacturer, once a major employer and the “economic lifeblood of this county,” he said.
The trail, on the other hand, will funnel a stream of walkers and cyclists across the rear of their property.
“It’s just the idea of a constant flow of traffic,” he said. “I don’t think anybody wants that close to their house.”
The Question of Taxes
How about another of Casciato’s claims?
People with ownership of the right of way, he said at a recent meeting, “paid tax on that land and they are still paying taxes on that land. If I paid tax on that land, I'd expect I owned it.”
Certainly they shouldn’t be paying, said Christopher McLaughlin, a professor of public law and government at the University of North Carolina Chapel Hill’s School of Government.
Though state law covering tax assessments doesn’t mention easements by name, he said, it does require that land be assessed at “true market value,” which is the “North Star, the goal, the legal requirement.”
Easements that detract from that value, therefore, should be factored into assessments.
“I’ve given away some of those rights,” he said, adopting the perspective of a land owner, “so presumably it would be worth less.”
That’s how it works in Henderson, that county’s tax administrator, Darlene Burgess, wrote in an email.
“Taxpayers in Henderson County who own property along the Ecusta Trail right of way (formerly the railroad right of way) do not pay tax on the portion of property located within the right of way,” she wrote in an email.
Transylvania Tax Administrator Jessica McCall’s response was less direct. She wrote that, when it comes to the rail/trail easements, “the owner of record would be required to pay taxes.”
But she also wrote that the amount of those taxes would be calculated according to the county’s published Schedule of Values, which states “adjustments are then made to each individual parcel for factors such as access, topography, location, shape, easements (and) right of ways . . .”
Addressing another part of Casciato’s statement, McLaughlin said a history of paying taxes does not necessarily confer ownership, which is determined by legal and property records.
“Two separate issues,” he said.
And if landowners aren’t sure whether they are being taxed for land they can’t use, Tooley wrote, that “is a question they should investigate with the tax office.”
Making Money on the Trail?
Tooley also addressed skepticism about the trail’s power to drive economic development.
A 2012 economic impact analysis of the trail, he wrote, “estimated a one-time financial impact of $42 million and an annual financial impact of $9.4 million with a nearly $2 million increase in visitor spending.”
Those numbers are dated and, probably, far too low, trail advocates have previously said, pointing to communities such as Traveler’s Rest, S.C., which has boomed since the first stretch of the Swamp Rabbit was completed in 2009.
More recently, in Henderson, several residents eagerly discussed plans for building or expanding businesses to capitalize on the construction of the Ecusta in that county, which is scheduled to start later this year.
But the path of the Ecusta in Transylvania is different, McCall said.
“Let me remind you, there’s not infrastructure there. It’s flood plain. It’s farmland. It’s pasture. It’s hunting land,” she said last month. “I’m not sure what economic development there is.”
Derek Wilbanks, whose family owns 19 acres that crosses the easement near Old Hendersonville, agrees.
He opposes the trail.
“Dude, I’m way against it,” he said, citing reasons similar to Donald Austin’s. The train ran on a regular schedule, he said, while trail users will cross his land at all hours.
Some people have suggested his family’s food truck, Mama Bear’s, could be set up permanently on the land to serve trail users, he said. But state requirements would then prohibit his family from moving it to other locations, he said, and “on top of that, there won’t be enough (trail) traffic for me to serve food and make money.”
But Jessica Leonard does see potential economic opportunity in the trail.
Her mother, Linda Hall, owns three acres off Old Hendersonville that includes the rail line.
Leonard, who lives in a mobile home on the property, said it caused her to scrap a plan, hatched when she first heard the rail line would be purchased, to build a modular home on the elevated land near the old tracks.
Also, she said, “my dog has kind of had free range of the property his whole life, and now I’m going to have to figure out fencing and all kinds of crap.”
But now that she knows the land has been acquired for the trail, she’s “not dead set” against its construction, which she said may open up another option.
“If I had the money to do it, I’d say bring it on and I’d just put cabins on it,” she said, “because I’m in a prime location.”
What a great article! Gives great perspective on the issues from both sides. The first articles i have read on the trail made the commissioners seem very opposed to it but now I can see they have very valid concerns from property owners affected by it. One thing that I see about the trail is that the land that would be used for it has always been there for the property owners. Going from used railroad tracks, to not used railroad tracks, and now to a proposed bike trail. From an environmental and economical perspective, the latter ( bike trail ) seems best alternative to them all. But to make it happen and number one in my book, is that every property owner affected needs to have their concerns addressed. As example, the property owner who would now require a fence for her dog to roam her property, should be compensated for having a fence installed. Personally, I hope the trail gets done. My number one destination would be to Mills River Creamery for a large chocolate malt. It would be great to pickup some local eggs and honey on the way back if there are owners making it available. I guess a stop with pizza slices and a beer might be too much to ask for though.
People who have lived on this land for several generations and are hopping mad about the Ecusta Trail do not seem bothered by the fact that native peoples were here many generations before all the white folks arrived, and were unceremoniously ousted from their land, to put it mildly.