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Defendants ask court to dismiss Smith's suit

Plaintiff intentionally landlocked himself by deeding away access, Sylva answer says

By Lynn Hotaling
Attorneys for the town of Sylva and other defendants named in a lawsuit filed by a Sylva businessman have petitioned the court to dismiss the complaint.

All three motions to dismiss - filed by town attorney Eric Ridenour and lawyers for the other defendants named in a May lawsuit brought by Wayne Smith - ask that the suit be dismissed because it fails to "state a claim upon which relief can be granted."

Those motions are expected to be heard July 31 by Judge Loto Caviness, Ridenour said.

Smith's suit, filed in May by attorney Bill Coward of Cashiers, claims the Sylva Town Board's April order to close Broad Street before it reaches his boundary deprived him of access and effectively destroyed his plans to build a trailer park near First Charter (formerly Community) Bank.

In addition to the town, Smith's suit named Sylva business owners Marie Searcy, Larry Parris and James Messer, and their corporations - Nuhart and Pameco - as defendants and states Searcy, Messer and Parris, along with town officials, "conspired to close Broad Street... to obtain the relief that [Searcy] could not obtain" through the courts.

Attorney Tom Jones of Sylva, who represents Messer and Parris, said the Smith suit "alleges a blanket conspiracy," and said he didn't think that was sufficient. "I think you have to allege facts of how the conspiracy was carried out to the detriment of the plaintiff," Jones said. Attorney Randy Seago of Sylva is representing Searcy.

Ridenour's answer on behalf of the town, filed July 6, denies that town officials conspired with other defendants with regard to the street's closing. According to the suit, Smith "expended a very substantial sum of money for improvements to [his] property."

"The actions of the defendants... have deprived [Smith] of all reasonable use of [his] property and therefore such actions constitute a taking of [his] property without just compensation, in violation of the constitutions of the United States... and North Carolina," the suit says.

The town's answer denies this charge and alleges that Smith in fact deprived himself of access.

"That in an effort to intentionally landlock himself, [Smith] deeded away another means of access to his property just one week prior to the public hearing that was held to determine whether or not the area would be closed as a road; [Smith] has failed in his attempt to landlock himself even though he intentionally did not reserve a right of way over the conveyed lands...," the town's answer states.

Smith has failed, the answer says, because his property borders a state-maintained highway (Business 23), and because Smith still has an implied access over the land he "conveyed to landlock himself." Also, Smith conveyed the land to "his friend and employee, Bobby Steele, and no consideration was paid by Steele to validate the transfer," the answer states. Finally, Smith cannot "deed away his legal access in an attempt to obtain legal access across the lands of another," the town's answer says.

Smith said in May that the town's closing of Broad Street has cost him in excess of $10,000, for which he is seeking relief.

The town's answer denies that claim as well.

Among defenses listed in the town's answer is an allegation that Smith has told defendants that he hopes he loses in court so he can make a claim against his title insurance company after administrative remedies have been exhausted. That statement is supported, the town's answer says, by Smith's "attempts to landlock himself" by transferring property to Steele without reserving a right of way.

Other defenses allege that Smith attempted to open a road that was "previously abandoned within the meaning of N.C. General Statute 136-96 and [Smith] had no authority to attempt to open the same," and that Smith violated a town of Sylva ordinance when he "bulldozed onto Defendants Searcy and Nuhart Corp.'s land." According to Town Ordinance Sec. 15-5, it's unlawful for an individual to construct or maintain a culvert or street crossing without obtaining written permission from the town clerk.

In addition to punitive damages, Smith's suit requests that the court declare the town's order to close Broad Street be null and void.

Smith declined to address the answer filed by the town. He referred questions to his attorney, Coward, who was unavailable for comment.

The Smith/Searcy/Broad Street controversy first surfaced during an October Sylva board meeting when Smith asked town officials for a ruling on Broad Street's status.

Sylva Mayor Brenda Oliver postponed any decision pending the outcome of litigation between Smith and adjacent property owners Marie and James Searcy.

Though Broad Street historically has been 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 store.

The Searcys obtained a court order in September that prevented Smith from accessing his property from Broad Street.

Judge Richlyn Holt dissolved the restraining order in February and granted Smith access to his property 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's 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 to take comment on closing Broad Street, those in favor of the move included representatives of First Charter (then Community) Bank, O'Malley's, Searcy Accounting, Performance Motors, Tim Green Excavating, Green's Auto Service, Donaldson's Roofing and P&M Automotive. An area resident also favored closing the road.

Besides needing Broad Street to access his rental property, Smith said at the hearing, he had an agreement with Waffle House to locate on Business 23 between McDonald's and Green's Auto Service that indicated the national chain's preference to access their restaurant from Broad Street.

Using Bridge Street to access his property is no longer an option, Smith said in May, because he sold property at the end of Bridge Street and has no access from that side.

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