Monthly Archives: February 2015

UPDATE – TOWN OF MATTHEWS v. WRIGHT

Home Place picture sign court case listings Home Place picture 1

BRIEF HISTORY – Home Place is a quiet little dead end street that leads to the private drive of Lester and Virginia (Ginger) Wright.  For over twenty years the Wrights have been fighting the Town of Matthews for their property rights.  The town is claiming that Home Place was pulled into the town maintain-system from the NCDOT on March 25, 1985.  This was proven in 2006 Wright v. Town of Matthews – Wright 1 as void but Matthews continues to argue this issue.

***for complete article and documentation for Town of Matthews v. Wright please visit the archives for June 2014.

4/4/2006 WRIGHT 1 – “On 6 November 1992, Mr. Eugene Smith, Senior Deputy Attorney General at the North Carolina Department of Justice, on behalf of Attorney General Lacy Thornburg, sent a letter and affidavit to petitioners.  The affidavit, signed by Mr. L.C. Smith, Supervisor of the Road Inventory Section of the Geographic Information System Branch of the North Carolina Department of Transportation (“DOT”), stated that “the street in the Town of Matthews known as ‘Home Place’ as shown on the ‘Powell Bill Map’ submitted to the Department of Transportation on July 22, 1992, is not now on the State Highway System, nor has it ever been on the State Highway System.”

4/4/2006 WRIGHT 1 – “In a letter dated 14 January 1993, Mr. J.D. Goins (“Mr. Goins”), a division engineer at DOT, informed petitioners that according to our records, the road off Reverdy Lane in Matthews known as “Home Place” is not and never has been a part of the State Maintained System of Highways.  Therefore, normal routine maintenance would not have been performed on this roadway.”

4/4/2006 WRIGHT 1 CONCLUSION – “In conclusion, we determine that the findings made by the Board and the trial court do not support the conclusion that Home Place is a public street.  The Town of Matthews did not maintain Home Place for the requisite twenty-year time period to establish prescription.  Nor can the Town of Matthews’ reliance on an erroneous map create a dedication that was never made.  The Board and the trial court made no findings of fact or conclusions of law whether Home Place was impliedly dedicated to the public.  We therefore reverse the decision of the trial court and remand this case for further findings detailing whether  or not Home Place became a public street by means of implied dedication.  Reversed and remanded.  Judges TYSON and STEELMAN concur.”  

There are three ways a private street or right-of-way can become public: 1.Implied Dedication 2. Express Dedication and 3. Prescription.  If property is dedicated by implied or express dedication, it is essential that this was the property owner’s intent.  The Wrights never dedicated their property by express or implied dedication.  To establish prescription the Town of Matthews must show evidence that;  WRIGHT 1 “(1) the use is adverse, hostile or under claim of right; (2) the use has been open and notorious such that the true owner had notice of the claim; (3) the use has been continuous and uninterrupted for at least twenty years; and (4) there is substantial identity of the easement claimed throughout the prescriptive period.”  The Town of Matthews has not proven any of these requirements.

EXPRESS DEDICATION: listed in deed.                                                                                                      IMPLIED DEDICATION: property set aside by owner as a gift, dedication or sale.

On November 30, 2012 Honorable Judge Beverly Beal ruled in favor of the Wrights and also made a clear directive for the town:  “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff Town of Matthews, its officials, employees and agents, licensees and all who act by or through the authority of municipality of any right, title or interest in the roadway denominated “Home Place,” that lies upon the land of the Defendants as described in the deed recorded at Book 4850, page 0639, Mecklenburg County Registry and from entering theron for any purpose, including construction, repair, improvements or maintenance of the roadway or any fixtures, ditches, markers or signs thereon, without the express permission of the Defendants.”  The Town of Matthews did not appeal this ruling.

On April 8, 2013 Mayor Jim Taylor and Commissioners Jeff Miller, Paul Bailey, Suzanne Gulley, Nancy Moore, John Urban and Kress Query all voted in support of the condemnation of the Wrights private drive for the “opening, widening, extending or improving roads, streets, alleys, and sidewalks” when in fact there were no plans by the Town of Matthews for any improvements as stated by Town Manager Hazen Blodgett on October 17, 2013.

Hazen Blodgett Deposition pages 14-17

On March 11, 2014 Honorable Judge Donald Bridges ruled in favor of the Wrights stating “That this proposed taking should be found not to be fair for a public purpose or benefit, simply because it is predominantly to benefit private, well-connected individuals.” and  “Even when that proposed taking is for a “public use or benefit,” the power of condemnation may not be exercised in an arbitrary and capricious manner.”

3-11-2014 JUDMENT

BLACK’S LAW DICTIONARY – Arbitrary: (Of a judicial decision) founded on prejudice or preference rather than on reason of fact.  This type of decision is often termed arbitrary and capricious. 

Capricious: (Of a decree) contrary to the evidence or established rules of law.

CURRENT HISTORY –  In closed session it was decided to appeal Judge Donald Bridges decision.  In attendance were Town Attorney Charles Buckley, Town Manager Hazen Blodgett, Mayor Jim Taylor and Commissioners John Higdon, Chris Melton, Jeff Miler, John Ross, Joe Pata and Kress Query.  Because the decision to appeal was made during closed session and due to the current litigation the documentation is not currently available for public record.  As to who supported the vote is currently unknown but it had to be a majority to pass, so in due time this will be available for public record.

On April 3, 2014 the Town of Matthews filed an appeal to Judge Bridges ruling.  On October 17, 2014 Brief of Plaintiff – Appellant Town of Matthews was filed.  December 9, 2014 Brief of Defendant – Appellee Lester and Virginia Wright was filed.  After the Town of Matthews received copy of Appellee Brief of Lester & Virginia Wright the Town requested to file a reply brief which was granted.  On January 13, 2015 the towns reply brief was filed.

WHAT IS A BRIEF?  A Brief is a written argument in format for the courts.

BLACK’S LAW DICTIONARY – Brief: A written statement setting out the legal contentions of a party in litigation, esp. on appeals; a document prepared by council as the basis for arguing a case, consisting of legal and factual arguments and the authorities in support of them.

Appellate brief: A brief submitted to an appeals court; a brief filed by a party to an appeal pending in a court exercising appellate jurisdiction.

BRIEF OF PLAINTIFF – APPELLANT TOWN OF MATTHEWS – Brief of Plaintiff

BRIEF OF DEFENDANT – APPELLEES LESTER E. WRIGHT & VIRGINA J. WRIGHT – Brief of Defendant

REPLY BRIEF OF PLAINTIFF – APPELLANT TOWN OF MATTHEWS – Reply Brief  

On January 20, 2015 North Carolina Court of Appeals Judges Wanda G. Bryant, Robert N. Hunter, Jr. and Donna S. Stroud heard by oral argument Town of Matthews v. Wright.  Town Attorney Charles Buckley was not in attendance the town was represented by Benjamin Sullivan of Parker Poe Adams & Bernstein.

Meet the Judges –   Judges Biography

NORTH CAROLINA COURT OF APPEALS – “The Court of Appeals is North Carolina’s Intermediate appellate court.  Fifteen judges hear cases in panels of three.  The Court of Appeals reviews the proceedings that occurred in the trial courts for errors of law or legal procedure; it decides only questions of law – not questions of fact.  All cases appealed from the Superior and District courts in civil and criminal cases, except capital murder cases in which the Superior Court  pronounces a judgment imposing the death penalty, are heard by the Court of Appeals.  In addition, direct appeals from certain of the state’s administrative agencies are heard by the Court of Appeals.  In the 2011 calendar year, 1,615 appeals, 953 petitions, and 3,833 motions were filed in the Court of Appeals; during the same period the Court disposed of 1,835 appeals, and 4,301 petitions and motions.  If a member of the three-judge panel dissents from the decision of the majority, there is a right of appeal to the North Carolina Supreme court; otherwise, further review of a decision of the Court of Appeals is limited to those cases that the Supreme Court accepts in its discretion.  Judges of the Court of Appeals serve eight-year terms and are elected in a non-partisan election.”   ***information provided by the NC Court of Appeals**   

IN MY OPINION & A FEW QUESTIONS – 

The Town of Matthews continues to claim that “Home Place” was pulled into the town maintained-system on March 25, 1985 but, was ruled as invalid in 2008.  Excluding the Wrights property the homes along Home Place are part of the Davinmor Development.  According to all the deeds of the property owners they own fee simple center of Home Place.  If Home Place (except for the Wrights) is a public street as Matthews claims then why are the property owners paying property taxes on property center of Home Place?  And if the property owners own center of Home Place how can half an acre of the Wrights property only be condemned?  If the street needs to be public then wouldn’t Matthews need to condemn Home Place completely?

2014 deeds 1     2014 deeds 2

Vicus Builders Inc. submitted preliminary plans for a 12 lot subdivision on the southeast quadrant intersection of Reverdy Lane and Home Place.  On August 27, 2014 these plans were approved by the County and Town staff and on September 8, 2014 the Mayor and Commissioners unanimously approved the Reverdy Farms subdivision.  In the current plans it states “All area between the PL and the exist R/W will be dedicated to the Town of Matthews with the platting of the lots.”  If Home Place is owned by the town as claimed by Matthews from the resolution passed on March 25, 1985 they why is the town requiring the right-of-way along Home Place to be dedicated?  In Matthews and Mecklenburg County lots cannot be sold that do not abut a public street.  Being that Home Place has never been dedicated would this not create the same problem all over again?  And how can half a street only be dedicated?

Reverdy Farms

MATTHEWS WATCH has spent many hours of researching, reading documentation and learning the facts concerning Town of Matthews v. Wright.  I would like to thank everyone for the support and help.  The ruling for Town of Matthews v. Wright has yet to be decided and can take ninety days or longer for the opinion from the NC Court of Appeals.  Now all we can do is wait for the final outcome and only hope justice will prevail.

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