Judge denies defendants' motions in Smith lawsuit

By Lynn Hotaling

Superior Court Judge Loto Caviness denied three defense motions Monday (Oct. 9) in Haywood County. All defendants had requested the court dismiss the Aug. 21 complaint filed by Sylva developer Wayne Smith that seeks to reopen Broad Street.

Judge Caviness did not hear Smith's motion for a temporary injunction that would allow Broad Street to remain open while the matter is litigated. Instead, the four lawyers and their clients worked out a six-month agreement that barricades the street but allows Smith to bring two additional mobile homes into a trailer park he intends to access via the contested street.

Smith's suit alleges that Sylva officials acted improperly last April when they closed Broad Street and is similar to a suit he filed in May and voluntarily withdrew in July. In addition to the town, Smith names as co-defendants two local corporations - Nuhart, owned by James and Marie Searcy, and Pameco, the corporate entity of P&M Automotive owners Larry Parris and James Messer.

Sylva attorneys Randy Seago, who represents the Searcys, and Tom Jones, who represents Parris and Messer, argued unsuccessfully Monday that state statutes relating to street closings do not grant authority to make adjoining landowners parties to ensuing lawsuits. "We don't need to be involved," Seago said. "This is a matter between Mr. Smith and the town of Sylva."

Attorney Bill Coward of Cashiers, who represents Smith, countered that the Searcys, Parris and Messer were properly named as defendants because they became "titled owners to property" once the town closed Broad Street. Statutes dictate that when a street is closed, its right of way reverts to the landowners on either side.

"Titled owners must be parties, or they are not subject to the court's ruling," Coward said. Eric Ridenour, attorney for the town of Sylva, based his motion to dismiss on procedural violations by Smith. He maintained that the town followed state statutes with regard to the closing of Broad Street. If Smith was dissatisfied, Ridenour said, he should have filed an administrative appeal within 30 days as statutes specify.

Instead of an appeal Smith filed a complaint, Ridenour said, and asked for a jury trial. Coward's response was that the town's action in closing the street and denying Smith access was similar to involuntary condemnation of Smith's property and therefore merited a jury trial. The 30-day rule does not apply, Coward said, because Smith took a voluntary dismissal of the earlier suit and re-filed well within the one-year period allowed.

Smith's lawsuit charges the town with taking Smith's property without just compensation. It further alleges that Sylva officials failed to follow "procedural requirements" listed in state statutes with regard to the public hearing and subsequent board action that closed Broad Street.

Smith's suit asks the court to declare the April closing of Broad Street "to be void and of no further force and effect."

The controversy involving Smith and the town of Sylva first surfaced during an October 1999 board meeting when Smith asked town officials for a ruling on Broad Street's status. Sylva Mayor Brenda Oliver postponed a decision pending the outcome of litigation between Smith and adjacent property owners Marie and James Searcy.

Though Broad Street historically was town-maintained only from its origin on West Main Street between Performance Motors and P&M Automotive to First Charter Bank, a right of way for the remainder of the street was platted about 1924. On some maps the Broad Street corridor is shown intersecting with Bridge Street, which leaves West Main between Taylor Auto Parts and the Merita Bread store.

The Searcys obtained a court order in September 1999 to prevent Smith from accessing his property from Broad Street. But Judge Richlyn Holt dissolved the restraining order in February and granted Smith access via Broad Street. Judge Holt's preliminary ruling stated that a town's acceptance and maintenance of a portion of a street constitutes acceptance of the street as it is fully platted.

The Searcys then dropped their lawsuit and Marie Searcy asked town board members in March to close Broad Street at First Charter Bank. Smith had previously requested that if Broad Street extended to his property, it be closed at that point.

At the town's public hearing prior to closing Broad Street, those in favor of the move included representatives of all affected businesses and property owners, with the exception of Smith.

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