The Overlook with Matt Peiken

Won't You Be My Neighbor? | One Couple's Path Through Eminent Domain

March 11, 2024 Matt Peiken Episode 138
Won't You Be My Neighbor? | One Couple's Path Through Eminent Domain
The Overlook with Matt Peiken
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The Overlook with Matt Peiken
Won't You Be My Neighbor? | One Couple's Path Through Eminent Domain
Mar 11, 2024 Episode 138
Matt Peiken

LISTENERS: Have thoughts about this episode? Send them my way!

Last year, the North Carolina Department of Transportation began the process of claiming properties through eminent domain for the widening of Interstate 240 and construction of the I-26 Connector. Rob and Sarah Shearan noticed the NCDOT offering their neighbors full replacement value on their properties. Not so for them.

While the project maps show construction and expansion happening within mere yards of their property, NCDOT right-of-way agents said they only need a “partial take," offering less than $100,000.

Rob and Sarah talk about their ongoing battle with NCDOT, their emotional and financial turmoil, what they see as the impersonal nature of the eminent domain process and the broader impacts on their community and quality of life.

The episode featuring my conversation with Nathan Moneyham of the NCDOT posted Dec. 4, 2023.

Wake Up, Asheville! and ¡Despierta Asheville!  (in Spanish) are new morning newscast podcasts that give you all the local news you need to know in under five minutes. Both are free to subscribe/follow wherever you get your podcasts!

SPONSOR: Asheville City Soccer Club home games run through June 29 for the women's team and July 13 for the men's team at Greenwood Field on the UNC-Asheville campus.

Support the Show.

Support The Overlook by joining our Patreon campaign!

Advertise your event on The Overlook.

Instagram: AVLoverlook | Facebook: AVLoverlook | Twitter: AVLoverlook

Listen and Subscribe: All episodes of The Overlook

The Overlook theme song, "Maker's Song," comes courtesy of the Asheville band The Resonant Rogues.

Podcast Asheville © 2023

Show Notes Transcript

LISTENERS: Have thoughts about this episode? Send them my way!

Last year, the North Carolina Department of Transportation began the process of claiming properties through eminent domain for the widening of Interstate 240 and construction of the I-26 Connector. Rob and Sarah Shearan noticed the NCDOT offering their neighbors full replacement value on their properties. Not so for them.

While the project maps show construction and expansion happening within mere yards of their property, NCDOT right-of-way agents said they only need a “partial take," offering less than $100,000.

Rob and Sarah talk about their ongoing battle with NCDOT, their emotional and financial turmoil, what they see as the impersonal nature of the eminent domain process and the broader impacts on their community and quality of life.

The episode featuring my conversation with Nathan Moneyham of the NCDOT posted Dec. 4, 2023.

Wake Up, Asheville! and ¡Despierta Asheville!  (in Spanish) are new morning newscast podcasts that give you all the local news you need to know in under five minutes. Both are free to subscribe/follow wherever you get your podcasts!

SPONSOR: Asheville City Soccer Club home games run through June 29 for the women's team and July 13 for the men's team at Greenwood Field on the UNC-Asheville campus.

Support the Show.

Support The Overlook by joining our Patreon campaign!

Advertise your event on The Overlook.

Instagram: AVLoverlook | Facebook: AVLoverlook | Twitter: AVLoverlook

Listen and Subscribe: All episodes of The Overlook

The Overlook theme song, "Maker's Song," comes courtesy of the Asheville band The Resonant Rogues.

Podcast Asheville © 2023

Rob Shearan: I lived in North Asheville in my first two rentals and then I was in a position to buy and West Asheville was it was the best price, you know for the size house you can get. They were giving out mortgages to anyone, And they gave me a lot more than I probably should have. But I bought the house anyway because it's a studio, because I'm an artist. And it was a new house. It was built in 04. 

Matt Peiken: So 20 years ago, this house was built, you bought it, you got a good price on it. And is your neighborhood very residential? Is it a mix of residential and commercial?

Rob Shearan: All residential until you get to Haywood road. And that's where it's commercial. And we're deep in the neighborhood. It's, it goes way back on Virginia Avenue.

Matt Peiken: Did that give you any pause, how close you were to the interstate, just as an aesthetic sense, or the noise or value of the house, did that concern you at all?

Rob Shearan: 20 years ago I knew that there was a possibility they could take my home, when I bought it. 

Matt Peiken: How did you know that? 

Rob Shearan: It was always talked about, because the project has been going on for a long time. Longer than before I bought the house. And there was always a chance that my house could be taken.

Matt Peiken: Given that chance, given the price, and I'm reading in this to tell me if this is accurate or not, but for the cost, you figured, okay, maybe they'll take it, maybe they won't, but I'm willing to roll the dice for this deal that I'm getting. 

Rob Shearan: When they say, Oh, it's going to be 25, 30 years.

Sure. For the house I had, I thought it was a good situation. 

Matt Peiken: And how old were you at the time? 

Rob Shearan: Mid twenties. 

Matt Peiken: That kind of makes sense, right? When you're in your twenties, you don't think far down the line. You just think, I've got the rest of my life, I'm going to live forever.

Rob Shearan: And this studio is killer. The basement's killer. I was like Oh, I'm, I've done thousands of paintings out of the studio. It's been a productive space. 

Matt Peiken: Describe your house to me. How many bedrooms?

Rob Shearan: Three bed, two bath. And one of the bedrooms is your studio. The basement 

is the basement. It's a thousand square feet with windows. It's great. Looks onto 11 acres of green space. It's, I guess, owned by the city. 

Sarah Marcink: Yes, city owned. I think it's like a sewer easement. 

Rob Shearan: So it's all these huge trees. It's cool. It's a cool space. 

Matt Peiken: You knew in the back of your head, it could be someday, maybe, that the Department of Transportation might want to take your house. Yes. When did this become, at least, more than a possibility? 

Sarah Marcink: I think 2008 is when we started seeing the public notifications for meetings, soliciting input about the project, and I remember going to one of those meetings, I think it was at the Crown Plaza, looking at all the maps that were put on the wall, and seeing Rob's name identified on that map, and seeing that there was an impact.

It wasn't clear to me at the time what the impact was, but I would say our awareness of the possibility of a project was 2008, and then it kept getting Delayed further and further until I think 2014 when there were additional meetings that we attended. And there were also community meetings that were arranged by certain neighborhoods.

Matt Peiken: What were the tenor and tone of these meetings? You said back in 2008 when you first got a whiff of this by looking at maps, you saw Rob's name on there. Were these just possibility maps, or were these presented as, okay, this is going to happen, these are the specific homes that are affected, or was it that This is maybe possibility A or possibility B and possibility C.

How was it presented to you back then? 

Sarah Marcink: Right. Well, back then there were lots of options on the table. So the section that we are impacted by is section A, which is the widening of 240 through West Asheville. And at that time, it was proposed to be eight lanes and through the community meetings and through DOT meeting with groups, it was reduced down to six lanes.

But when we looked at those maps, it seemed a little bit more broad. I don't think the specific impacts were outlined. It just looked like our property or part of our property was within the project area, but we didn't know at that time what exactly that meant. And then later, I think when we went to the 2014 meetings, I talked to one of the engineers there and it was our understanding at the time that the right of way of an off ramp As part of this project was going to cut across our driveway and take our legal access.

So our understanding at the time is that if they take our legal access, they have to take our home. So we were anticipating a full take. 

Matt Peiken: Would that have bothered you? Even with the possibility of a full take, what were your emotions and thoughts around that?

Sarah Marcink: When Rob bought this house back in 2004, I don't know if we envisioned it as our forever home. I think it was an opportunity, a financial opportunity, as you said, a smart investment at the time.

But as rising costs of living and the market increase in Asheville, we found ourselves Not able to sell sell the home or buy something else elsewhere in Asheville.

Matt Peiken: I would think that given the timeline that you were telling me about, You bought in 2004. The first inference of a take is 2008.

Six years later are the first meetings about this. You're living your lives. I can imagine this seems like it's abstract. Who knows if this will ever happen. Maybe we will outlive this project. And finally now, 8, 9, now 10 years later, things have gotten more real. Tell me about how the communication from D. O. T. to you around this project has taken shape just over the past few years. What happened after the meetings in 2014 to make this seem like it was really happening? 

Sarah Marcink: I think it was January Of last year, we received a letter that just notified us that there would be surveyors, engineers in our area and possibly on our property as part of the project.

But we still didn't know at that time what that meant for our particular property. And then we received. In February of last year, a letter, not from DOT, so this is a point I want to make, but from their contractor. So DOT didn't contact us directly. They hire contractors to facilitate this process for them.

Matt Peiken: What do you think is the difference to you in hearing from a contractor versus directly from DOT?

Sarah Marcink: I think it feels a little less personal, it feels that there is this intentional space created between a landowner and DOT and they're not DOT staff and, I listened to your podcast with Nathan Moneyham about how they spend quite a bit of time and energy in educating and training their contractors on the project, but in our experience, and we can only speak from our experience and with the D. O. T. right of way agent that was assigned to us. But it definitely felt impersonal. It felt that this right of way agent was really indifferent to our situation.

Matt Peiken: I would think that, it's like a project to them. They're not counselors, they're not trained in that. You said it was just about last year that you got this letter. Tell me about the contents of this letter. When did you learn that your property was not slated for what they call a full take? 

Sarah Marcink: So we received a letter In February of last year, just letting us know that DOT was planning to construct the I 26 project and that their records indicated that our property would be impacted.

But the specific details of that impact weren't communicated in the letter, so we ended up scheduling an on site meeting with their right of way agent who provided us with, I shared with you a copy, a very complicated Engineered drawing. 

Matt Peiken: You sent me this map of that I could not make heads or tails of. I

Sarah Marcink: don't think the average person can. 

Matt Peiken: Yeah, it just to be clear to illustrate to people, it's like an overhead view of a plat of land and there's interweaving lines, very small figures numbers.

It's really next to impossible to see what any of this means. You had color coded, or tell me if they color coded. They color coded it. So they color coded it, and was that really the only clue? Because wasn't the color coding differentiating between a full take and a partial take? 

Sarah Marcink: The color coding differentiates the different impacts to the property as a result of the project, and so on our map you see three colors. There's a green polygon that refers to the right of way That will cross our property and that is a full take. Then there's this pink Polygon that refers to a permanent utility easement, which is part of a permanent take but they don't pay you 100 of the value of the property that's impacted. And then there's this yellow which is a temporary construction easement and that is Essentially allowing DOT to use our property for construction purposes But that land will be returned to us upon completion of the project.

Matt Peiken: Correct me if I'm wrong on this, but that last part of it is what makes this a partial take. That if it wasn't going to be returned to you, it would be a full take, you would get full reimbursement value, supposedly, right? 

Sarah Marcink: As I understand it, unless your house is physically impacted, and I'm putting that impacted into quotes, unless your house is physically impacted, it is not a full take.

It is considered a partial take. 

Rob Shearan: The final line is approximately 8 to 10 feet from our house. It's that close. 

Sarah Marcink: For the temporary construction easement, it comes within 10 feet of our house. 

Matt Peiken: So they'll be right there. And it doesn't delineate, tell me if I'm wrong on this too. But they don't tell you how much construction is going to happen eight to ten feet from your house They could have bulldozers.

They could have jackhammers, Like cranes coming in eight to ten feet from your house.

Rob Shearan: The timeline also They've been two to seven years. I mean, I we have no 

Matt Peiken: idea What struck me is also the price that they were going to pay.

Sarah Marcink: It was approximately 92, 000.

Matt Peiken: It was 92, 000. Okay. So clearly that's not a full take. That is not an amount that would allow you to leave your house and then buy something else. Correct. Tell me your reactions when you saw that figure. 

Sarah Marcink: I think we were shocked and appalled And really confused. To back up the way the process worked is once we met with the right of way agent, she explained to us the impacts, although she was incorrect in her explanation in some of those things, then what happens next is then they submit a request and an appraisal.

And that appraisal Then determines what the offer will be that D. O. T. will offer you. And I think it was months after we met with D. O. T., right of way agent, that we just get an offer in the mail, or via email. And we didn't even see the appraisal. So we had to request the appraisal to find out what the basis for this offer was.

And this very complicated engineer drawing that we received, the appraisal's over a hundred pages long. 

Matt Peiken: Wait. This appraisal's over a hundred pages? What is it filled with? 

Sarah Marcink: Ha. It's filled with an analysis, a general analysis of real estate in the Asheville area, as well as comps that they used to determine the price of the house.

Rob Shearan: The comps were all from a different neighborhood. 

Sarah Marcink: Yeah, but the comps weren't even in our neighborhood. Not even in our neighborhood. 

Rob Shearan: They comped it from a neighborhood That's it. The prices are a lot lower 

Matt Peiken: I'm curious if it's not a full take, what are they appraising? Because it's not because This clearly a house in West Asheville.

I don't care where it is It's worth more than 92, 000 at this point. Are they appraising the impact of being on your property? You said that the agent was incorrect in some of the things she was telling you. What was she telling you that was incorrect?

Sarah Marcink: If you look at this map, it's really hard to determine, but we saw where surveyors had come out and put lines and paint and flags on our property. And those delineated these three different areas that I explained to you. We were standing on the line for what is the right of way. So it's basically the road maintenance width that will be as part of the off ramp to this new project.

We had the understanding that there would be like flyover bridges over top of our house connecting to this complicated traffic circle behind our house that's going to bring traffic on and off Interstate 240 as part of that connection between Amboy Road and Brevard Road.

And so here we thought we were essentially going to be living under an overpass. 

Matt Peiken: Were you the only house that you were aware of, were you the only house among your neighbors that was only a partial take? 

Sarah Marcink: We later learned that, yes. 

Rob Shearan: Two of our neighbors they're just doing the conditional where they're using it and then giving it back. Temporary construction. Temporary. We're the only ones that 

Matt Peiken: they're. Wait, they're using it and giving it back.

They were wanting to do that with you though, right? They wanted to use your land and then give it back, correct? 

Rob Shearan: Part, the lower part of it. 

Matt Peiken: So what's the difference between your neighbors? 

Sarah Marcink: It's the way the project is aligned. It cuts across our street and the properties on either side of the street are impacted a little bit differently.

So for many properties across the street, it's a full take because their house is within the project area, their house is going to be where future pavement is. And then on the other side of the street you have, for lack of a better word, a buffer to this project where DOT needs space for construction and maneuvering and for putting in their easements.

And so those are not full takes. That is a partial take. And so what they are appraising is for the portion of the property that is impacted. 

Matt Peiken: This seems A little bit. Maybe not arbitrary isn't the right word, but they are making a decision about livability for you.

Exactly. Yeah. So when you receive this 100 page appraisal with the 92, 000 valuation, how did you respond back to D. O. T. What was your formal response back? 

Sarah Marcink: So DOT portrays this as a negotiation process. And I'm sure that is true for other folks, But for us, when we saw the 92, 000 and we thought we were going to be living under a bridge and raising a family and uncomfortably close proximity to an active construction project, we balked at that number and reached back to the DOT right of way agent and really asked for what we wanted.

And that initial ask was, Can you just take the whole house? I mean, You are effectively condemning us by putting us in this position. We were in such close proximity to this project. 

Matt Peiken: Yeah, when Nathan Moneyham was on my show and he mentioned negotiation and I put it back to him. It's ultimately not a negotiation because a negotiation means that both sides have power of saying no, right? But you don't have a power to say no. You have to ultimately abide, And he did acquiesce and say that's true Ultimately if we can't reach an agreement on price, We will just basically in my word foist this price that we have deemed fair On you and you're going to have to evacuate. 

Sarah Marcink: So DOT came back and said that's too high, and we said OK, how about $400,000. I mean, we essentially found ourselves in a bidding war with ourselves. 

Matt Peiken: What was the initial ask? You said you came back with $400,000. What did you initially want? 

Sarah Marcink: We initially asked for a full take of the house. So a fair market value for the entire property, including the house. 

Matt Peiken: And how would you determine that? Like by Zillow or how did you? 

Sarah Marcink: Sure. The appraisal they give us, we'll say what they think, what the appraisal says the whole property is worth. And then they come up with an offer based on the portion of the property that is impacted.

But sure, zillow had her house a little bit higher, but then we watched these homes being bought by DOT next to us, and we saw what they were going for. 

Matt Peiken: That must have made you feel a range of emotions. Anger, dismay. Feeling left out. Like it's all the above. Yeah. Yeah. And individually, if not picked on, but why are they distinguishing your property, which is obviously deeply impacted. And it sounds like because of the technicality that the final project would not touch your house. They aren't going to require sidewalks on your property. Because of that.

Correct. Reason it technically they're saying we don't need the full use of your property. We are basically offering you ninety two thousand dollars to rent Your property for the easements and allow our equipment on there, right? 

Sarah Marcink: For renting the property and for permanently taking a portion of it. I mean the portion that's going to be taken for a right of way will no longer be our property, it will be DOTs domain 

Matt Peiken: Wow Okay, so which also dilutes the value of your property. 

Rob Shearan: That was a big one also because in the past the neighbors had sold their home, but it was a lot less because of the project. And so we're thinking, Oh, they're coming in with 92. They're just, they're giving us room to negotiate basically is what I thought.

Let's work from there. But that wasn't the case. But that was all those numbers are factored into the depreciation of our home with a interstate being right next to it. 

Matt Peiken: Right, so you came back with 400, 000. They said that's too high. 

Sarah Marcink: They said that's too high So we came back again. We said what about half the value of the house?

And this is a guess from Rob and I where we said, you know We think that living this close to an interstate is going to depreciate our property probably by half or more So we said 250 and they still said no and said at this point, I think we just need to go to condemnation. 

Matt Peiken: Okay, to condemn a house, what does that mean?

Sarah Marcink: I think, Nathan Moneyhan said, that sounds scary, and I'll say, it is scary. It is. It is scary, because that means, yes, they have to file that initial offer with the clerk of court, and that money is yours, but they will still take what they need to make this project happen. And because it goes to court, now the responsibility falls on the landowner to hire an attorney to navigate that process.

Matt Peiken: And you're going to court just to fight for more than 92, 000. Correct. Right? Right. So, the premise is, we DOT have offered ninety two thousand dollars Which we believe is fair for the portion of the property where you're taking and it's on you It's the burden is on you to show that The value that they're taking is far more And which I would think the challenge is there then It's how do you base that value?

It's forecasting. Okay, sure, there's not another square inch of property that's being taken, but the value of this land will be diminished. How can you know what that is? How can the court know? It seems like kind of guesswork at that point. And I could see where the burden would be on you when the court would just say, look, there's no concrete figures here. You're just throwing numbers at me. The DOT basis is on an engineered calculation. And short of you having your own engineers rebut what the DOT is telling you, which would cost you money. 

Sarah Marcink: Which it will cost you money because that is what an attorney will do for you.

And you're essentially demonstrating to the court what the property looks like and is valued at before construction, and then what does it look like after construction, and when the project is complete? 

There was a recent change in that the permanent utility easement and temporary construction easement changed slightly. And as a result, they had to update the appraisal and make us a new offer. And that change in acreage was maybe .01 acres. So their most recent offer to us is around 98, 000.

Matt Peiken: That's what I saw that and there was something on the letter that said this offer supersedes any previous offer. So it was about 6, 000 difference. 6, 000 difference. Negligible. Negligible. 

Sarah Marcink: Yes. That recent offer came to us in January of this year.

Matt Peiken: Oh, just January? Yes. Okay. Barring another appraisal, barring some other update, what are you being told in terms of a timeline of this actually starting? Spring? 

Sarah Marcink: June or summer? Yeah. This year. It actually has already started. 

Rob Shearan: They're already drilling holes right now.

Mineral checking the soil. 

Sarah Marcink: geotechnical engineers are out on the property drilling test sites because they're trying to determine, I think, weight bearing loads for this project and a potential retaining wall. I mean, There's all this infrastructure and lots of questions that we have about the proximity and what this looks like that we can't really get our questions answered.

As far as we know, they are moving forward with construction regardless of whether we reach a settlement by then. 

Matt Peiken: Yeah, the main point of contact sounds has been this agent working for the contractor. Is communication essentially? Have they said we're done communicating because you're not accepting our figure.

This is what's going to happen. You're not going along with it, so either take us to court or this is what's going to happen. End of story. 

Sarah Marcink: I would say that's pretty essential. We've had one in person meeting over the past year with our agent. Otherwise, it's all been through email and with this last offer attached are all these documents that they want us to sign permitting right of entry to DOT and moving forward with the condemnation process.

It feels like negotiations have effectively ended.

Matt Peiken: If you don't sign these documents. What happens? 

Sarah Marcink: That's a good question. I think I have to look through the old literature the little You know brochures when we went to those meetings that they handed out, but I think you have A timeline to where you have to respond and I think at that point we'll be turning it over to the attorneys. 

Matt Peiken: So do you have an attorney? 

Sarah Marcink: We have an attorney And the way we understand the process working is that if we reach any sort of negotiation or settlement above that final offer, then the attorney can receive 30 percent or 33%.

Matt Peiken: And is your attorney giving you hope that we can get a lot more for this? 

Sarah Marcink: I don't think they make any promises about what they can get you. 

Rob Shearan: They have a lot of experience doing this, but they haven't said oh, yeah, but they've all said wow I can't believe that

Sarah Marcink: this is so close to your house. 

Rob Shearan: They've all said that.

Matt Peiken: How strongly do you feel about staying in that house?

Rob Shearan: It's a quality of life thing. I mean I work from home. It's already noisy right now with drilling. I can't imagine when the bulldozers jackhammers anything like that's out there. We got kids How old are your kids? Nine and twelve. I think it's just going to be years of noise, strangers, equipment and I don't know.

I'm not looking forward to living there.

Matt Peiken: Look, I am not an attorney, I'm a journalist, but I would think if you make the arguments of the courts that this property, it's no longer a livable asset. We're going to have to sell it because of all this happening. And it's all the DOT making this happen.

Why can't you, the court, compel the DOT to do what they've done with all of our neighbors and take our house? I

Rob Shearan: always put it as they're over budget, that's how I always feel. 

Matt Peiken: It's funny. There was just an article about the, yeah, the I 26 connector all three bids came in well over a hundred million dollars over budget.

What would it take to buy your house? We're talking half a million or less. 

Sarah Marcink: And it seems like a drop in a bucket with a currently 1. 2 billion dollar project. 

Matt Peiken: Yeah. Is there anything we haven't talked about around what you're facing and what tomorrow and next month and the rest of this year looks like that you want to communicate?

Sarah Marcink: I think we just want to communicate the other side. So I listened to Nathan Moneyham's podcast with you and I agreed objectively with sort of the process, but I think that plays out very differently for landowners and I think the public, although I am seeing more press, thanks to this podcast and Asheville Watchdog, just about the I 26 project in general, but I think the time horizon has been so long that Because it's not directly in the majority of the public's face, it feels like something that's far off, but I think we want to communicate that it is happening right now, and it is having real impacts to property owners' values as well as the quality of life for individuals. 

Rob Shearan: And it's gonna have an impact just on the whole neighborhood. 

Sarah Marcink: And think about our neighbors down the street who currently they're not gonna face any impacts their property is not gonna have any sort Of DOT infrastructure over it, but maybe two doors down, they're now going to be looking at a massive traffic circle. I don't think DOT is compelled to notify those landowners. 

And I would say with, in our experience and talking to our neighbors who have had full takes they have the means now to relocate. Now having said that, They've moved to Weaverville, they've moved to Canton, they've moved to Candler. I haven't talked to someone who is able to afford a house in Asheville.

They didn't want to be forced out of their home, but they were compensated in a way that allowed them to relocate. We are in this position where we're not facing a full take. We're expected to have and live in this devalued asset, And the offer is not enough for us to relocate in Asheville, to say nothing of the fact that we refinanced our house in 2016 so that we could pay it off and then move on.

And that was at a 2. 9 interest rate. So here we are with interest rates 6, 7 percent and homes being Enormously more expensive than when Rob bought the house. And so we find ourselves this impossible situation.

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