Whose line is it, anyway?

When the patent-medicine magnate E.W. Grove laid out his Grove Park subdivision at the foot of Asheville’s Sunset Mountain in 1916, he carved 5-foot-wide paths — “rights of way” is the legal term — between several of the lots.

Over the years those paths were treated more or less indifferently: seldom maintained, occasionally destroyed. The development grew in the woods. Sunset mountaineers lived a bit of an idyll, with nice houses, ample shade and winding roads.

But if they are mostly out of sight, Grove’s rights of way are patently not out of mind in this historic neighborhood. When, last winter, developer Chad Rundell purchased two parcels within the subdivision along Fairmont Road, he believed that the right of way that ran between them had been abandoned and would belong to him as well. He planned to recombine the small lots, which border Fairmont Road, and create the necessary setbacks for two new homes there.

The right of way, it turned out, was not abandoned, and so, Rundell says, he went about obtaining it by contacting one of Grove’s heirs. Twice, the matter of who owns the rights of way came before City Council — on April 25 and May 9 — and both times the question was postponed.

Meanwhile, Rundell continued clearing trees and doing excavation work at the property — none of which endeared him to his neighbors. His activities on the Fairmont Road property — from site clearing to ground breaking to construction itself — have all stirred the ire of neighbors who hold their wooded slopes dear. Now they hope to stop him, and they are using the right-of-way issue as their legal toehold.

“These rights of way are an asset to the city,” says Scott Riviere, a nearby neighbor.

Riviere says the rights of way are a public resource deserving protection. “They’re not being used by the public right now, but the potential is there. We’re paying for greenways in other parts of the city, while right here they’re being destroyed. It doesn’t make sense.”

Beyond the neighbors’ dissatisfaction — with what they call Rundell’s “clear-cutting,” his alleged unwillingness to talk with them, and the noise and erosion that goes along with site work — is the disputed matter of who, exactly, owns the right of way that crosses the land. If it is owned by Grove Park — an unwieldy mix of Grove’s heirs and residents of the subdivision — the neighbors would have some say-so in its disposal. If owned by the city, then approval by City Council would be required to hand it over to Rundell.

Yet, despite the neighbors’ clamor and lingering questions about the ownership of the right of way, on May 26 the city approved a plat of Rundell’s recombined lots.

Sunset Drive resident Ann McMartin, who lives uphill from the Grove subdivision, calls the city’s handling of Rundell’s request “sloppy.”

“We’re making a point here,” McMartin said. “With Asheville coming under more and more pressure from developers, we can’t afford to have this level of irresponsibility going on in city government. Not if this is going to continue to be a city worth living in.”

On June 23, a dozen Grove Park residents, represented by attorney Clifford Marshall, filed an appeal to the city’s Board of Adjustment, citing an illegal combination of the lots “in violation of the original plat.” Because the 5-foot right of way, according to the appeal, “is not owned” by Rundell and his wife, they “simply do not have a right to recombine their lots. The recombination cannot be approved.”

Meanwhile, Asheville Planning and Development Director Scott Shuford says that nothing illegal has taken place.

“The right of way is still there; it’s still intact,” Shuford elaborated in a phone message to Xpress. “It’s still in its original location. It does contain a water line and the public’s right of access to the right of way is there as well.”

Driveways put in by Rundell cross the right of way at both ends of the property, but again Shuford says everything is above board.

“That’s not an unusual circumstance,” he says. “If you think about it, if your house has a driveway, typically that driveway crosses at least a portion of a city right of way.”

The lots are small, the houses are big, Rundell concedes. One house stands on a quarter-acre and measures 3,200 square feet. The house on the adjoining 0.3-acre lot is planned at 3,000 square feet. “They are tight fits on small lots,” the developer says. But, he adds, “I’m not putting a Wal-Mart up there.”

Rundell insists he’s done nothing wrong. “I’ve complied with the city,” he says. Furthermore, he points out that he has, since the discovery of the water line, granted the city a 20-foot easement along the right of way to allow maintenance of the utility.

“I’ve had people come up to me and say ‘You’re the reason property values are going to go down,'” Rundell says. “I feel like I’m being harassed. These are people who clearly do not want any new houses up there.”

At City Hall, Shuford agrees that the dispute might boil down to the discomfort that sometimes comes with change.

“I think there’s some dissatisfaction with having two new homes there,” he said.

McMartin, though, sees things differently. “We’re not opposed to change,” she says. “We’re just trying to point out the inconsistencies here, so that this kind of thing doesn’t happen again.”

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