R4440 (14)

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] SOUTH PACK SQUARE, SUITE 700 Facsimile 828 -258 -2024
ASHEVILLE, NC 28801 -3494
November 22, 2013
Via Electronic Mail and U.S. Certified Mail
Ed Green, PE
828 -251 -6171 x208
Highway Division 14
253 Webster Road
Sylva, NC 28779
[e-mail]
Re: Needmore Road (SR 1364 and SR 1114) Improvements from SR 1369 in Macon County
to existing pavement in Swain County. T.I.P. No. R -4440
Dear Mr. Green:
On behalf of my client, the Wilderness Society, I write to share our concerns about the range of
alternatives considered by NCDOT for the proposed Needmore Road improvements in Swain
County, NC. I am informed that the 2010 Environmental Assessment prepared for this project
has been withdrawn with the intent of preparing a revised statement of purpose and need and
reinitiating an analysis and merger process, building from that new starting point.
We welcome NCDOT's commitment to giving this controversial project full and careful
evaluation required by state and federal environmental laws. As NCDOT turns its attention bask
to the purpose and need for the project and, critically, the range of practical alternatives that will
be considered, we call your attention to a limitation on NCDOT's right of way that has not been
addressed by the process to date.
The now abandoned draft EA for the project indicated a belief by NCDOT that it possesses a
right -of -way across the Needmore conservation lands of up to 50 feet in width, sufficient to
facilitate widening and straightening of the roadway as proposed by some alternatives under
consideration at that time. For example, the 2010 EA stated that "existing right of way along SR
1364 in Macon County and SE114 in Swain County ( Needmore Road) is 50 feet ...." (EA at
11) Further, the EA states that "Right of way agreements are currently in place which state that
NCDOT is entitled to right of way in the area of the proposed improvement that consists of a.
corridor of 25 feet to either side of the improved roadway's centerline." (EA at 19) Based on
that asserted right of way, the EA considered multiple alternatives that included widening the
Needmore Road outside of its current footprint with, in some locations, substantial grading and
other impacts.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington. DC
100% recycled paper

I believe NCDOT has already been advised that the deed conveying the Needmore conservation
lands from Crescent Development to the state of North Carolina imposes a 300 foot protective
riparian buffer on the tract. Specifically, the deed states:
The State of North Carolina has received payment from the Ecosystem
Enhancement Program for acquisition of the above - described property in
consideration of which the State of North Carolina has agreed to the establishment
of a perpetual riparian buffer extending three hundred (300) feet from the banks
of all blue line streams and tributaries. This three hundred (300) foot buffer will
forever be conserved and managed in a manner that will- protect the quality of the
waters mentioned above and otherwise promote the public purposes authorized
under the provisions of North Carolina General Statutes § 143 - 214.8, et. seq.
See Swain County, NC, Register of Deeds, Jan. 14, 2004, Book 285, Page 992 -995 (attached).
The "public purposes" served by the riparian buffer, as referenced by the deed, are dictated by
North Carolina statute. The Ecosystem Enhancement Program (EEP) may be used only for
limited, statutorily defined purposes. Funds from the EEP may be used for "acquisition,
perpetual maintenance, enhancement restoration, or creation of wetlands and riparian areas ...."
N.C.G.S. § 143- 214.12(a) (emphasis added). EEP regulations define riparian area as the land
"located within 300 feet of any perennial or intermittent water body ...." 15 NCAC 2R
.0102(3). North Carolina law mandates that recipients of EEP funds must "grant a conservation
easement in the real property or interest in real property acquired with the funds to the
Department ...." N.C.G.S. § 143- 214.12(a)(1).
Because the Army Corps of Engineers accepts NCDOT contributions to the EEP fund as
compensatory mitigation for impacts to waters of the United States, administration of the EEP
fund is regulated by a Memorandum of Agreement (MOA) with the Army Corps. That MOA
requires the EEP to ensure that all mitigation sites applied as compensatory mitigation "remain
within the public domain in fee simple title in perpetuity and/or that appropriate preservation
mechanisms, including conservation easements and deed restrictions, approved by the DE, are
- -placed on the sites." See Agreement to Continue the Operation of North Carolina's In -Lieu Fee
Programs, July 28, 2010, at 13. Under the MOA, such preservation mechanisms must
"prohibit ... any activity that would materially alter the biological integrity or functional or
educational value of the wetland or streams within the mitigation site." Id. Once established, the
preservation mechanism, in this case the riparian buffer imposed by the deed for the Needmore
conservation lands, cannot be modified without "written approval from the DE." Id.
Other state and federal laws similarly limit the state's authority to alter or abandon the 300 foot
right of way imposed by the deed conveying the Needmore tract to the state. For example, the
Needmore tract, which is managed by the North Carolina Wildlife Resources Commission, was,
in 2010, dedicated as the Needmore Game Land Dedicated Nature Preserve. Under North
Carolina law, such designated lands "are held in trust by the State for those uses and purposes,"
N.C. Gen. Stat. § I I3.A- 164.7, defined by the North Carolina Nature Preserves Act, including as
"habitats for plant and animal species and biotic communities [and] as living museums ...."
N.C. Gen. Stat. § 113A- 164.2(a). Such lands "may not be used for any purpose" inconsistent
with those purposes "or disposed of by the State without a finding by the Governor and the
2

Council of State that the other use or disposition is in the best interest of the State." N.C. Gen.
Stat. 6 113.A- 164.7.
It is my understanding that NCDOT has in the past cited a 1997 Right of Way Agreement it
executed with Nantahala Power & Light as a property right that takes precedence over this
subsequent deed restriction imposing a 300 -foot riparian buffer. I have obtained a copy of that
Right of Way Agreement, but can see no indication on the copy provided to me that the
agreement was recorded with Register of Deeds in Swain County or Macon County.
Furthermore, we have searched available property records and can find no evidence that the right
of way has been recorded.
If indeed, as appears to be the -case, the 1997 Right of Way Agreement has never been recorded,
it is void against all subsequent purchasers for value and is superseded by the terms of all
subsequent, properly recorded deeds. In particular, the 1999 Special Warranty Deed conveying
the land to Crescent Resources, LLC, for valuable consideration paid, is not subject to the
unrecorded Right of Way. Similarly, the 2004 Special Warranty Deed conveying the property
from Crescent to the State of North Carolina, for valuable consideration paid, is not subject to the
unrecorded Right of Way Agreement.
North Carolina law is explicit that, "[n]o deed, agreement for right -of -way, or easement of any
character shall be valid as against any creditor or purchaser for a valuable consideration but from
the registration thereof within the county where the land affected thereby lies." N.C. Gen. Stat.
Ann. § 47 -27. In a case with facts strikingly similar to these, the North Carolina Supreme Court
ruled that an NCDOT right of way agreement that was never recorded is void as against a
subsequent purchaser for value. Dept of Transp. v. Humphries, 496 S.E.2d 56.3, 565 (N.C.
1998).
This rule applies even to a subsequent purchaser who was not "innocent" and had actual
knowledge of an unrecorded right of way. "A `purchaser for value' or a `purchaser for valuable
consideration' is defined ... simply as one who has paid a valuable consideration for the
execution of an instrument of conveyance." Rowe v. Walker, 114 N.C. App. 36, 39, 441 S.E.2d
156, 158 (1994) affd, 340 N.C. 107, 455 S.E.2d 160 (1995); see also Hill v. Pinelawn Mem7
Park, Inc., 304 N.C. 159, 163, 282 S.E.2d 779, 782 (1981) ( "[A] purchaser must examine the
public registry" but absent record of a prior conveyance, "even if he knows there has been a prior
conveyance, he may record his deed with the assurance that his title will prevail. ")
NCDOT may enjoy a right of way for the actual footprint of the road as openly used throughout
this time. The properly recorded deed conveying the Needmore parcel to the state noted that the
conveyance was subject to "easements and rights -of -way as may be apparent from an inspection
of the property." But the boundaries and scope of any such right of way would be defined by the
existing footprint of the road and its current use, not by the 50 -foot right of way described by the
unrecorded 1997 Right of Way Agreement.
If, as appears to be the case, NCDOT has never recorded its 1997 Right of Way Agreement, that
document has no bearing on the scope of NCDOT's right of way across the Needmore
conservation lands, and in no way mitigates the explicit 300 foot riparian buffer imposed by the
most recent, properly recorded, deed as a condition of EEP funding.

We ask now, as NCDOT reevaluates the purpose and need for this project, that it consider only
alternatives that are feasible in light of its limited property interest in the Needmore Conservation
Lands and the mandate, imposed by deed restriction as well as state and federal statutes and
regulations, to conserve a permanent 300 -foot riparian buffer in the project area.
So that we can confirm NCDOT's position with respect to its asserted property interest in
the Needmore Conservation Lands, the Southern Environmental Law Center, on behalf of the
Wilderness Society ( "TWS ") requests, pursuant to the North Carolina Public Records Law, N.C.
Gen. Stat. § 132 -1 et seq., the right to inspect the following documents or other public records:
• Any deed, plat, or officially recorded document demonstrating the Department of
Transportation's Right of Way for the Needmore Road (SR 1114 and SR 1364).
• Any documentation, written, electronic, or otherwise relating to the Department of
Transportation's asserted Right of Way for the Needmore Road (SR 1114 and SR 1364).
This request specifically includes all reports, studies, correspondence, memoranda, e-
mails, analyses, meeting notes or other notes of any kind, drafts and working papers, and every
other document, recorded communication, or record of any kind (including records which exist
electronically). In addition, we request access to each version of a record or document, whether
it is a draft, has been electronically deleted, has attachments, bears annotations, etc.
If you have any questions, please do not hesitate to contact me. Thank you in advance
for your assistance.
Sincerely,
stin DJ Gerken
Senior Attorney
cc:
Lori Beckwith, U.S. Army Corps of Engineers
Marella Buncick, U.S. Fish and Wildlife Service
Chris Militscher, U.S. Environmental Protection Agency
Linda Pearsall, N.C. Natural Heritage Program
Elmo Vance, N.C. Department of Transportation
Amy Chapman, N.C. Department of Natural Resources
2

1 PF
SWAIN COUNTY
TAX A,SSE OR
STAMPS7 a j I
DATES, I - 16 - a
a7, 3178, rD
Excise Tax-$.17 97&.Qo —
�` Ply
A
dF
Xof
stets a
Nonfat Cvr41hs Catty
Gfsb Ead6a Tax
i1
S -Tract 7058
Recording Time, Book and Page
Tax Lot No.- Parcel Identifier No.
Verified by County on the day of 2004
by
Mail after recording to Crescent Resources LLC Attw S Seginson P.0 Box 1003 Charlotte NC 28201 -1003
This instrument was prepared by Parker Poe Adams & Bernstein L L P Three Wachovia Center, 00
Suite 30
ant Guth Tryon Street. Charlotte NC 28202 (BMW
Brief Description For The Index:
Approximately 3,422.30 Acres, Nantahala Township, Swam County, NC
NORTH CAROLINA SPECIAL WARRANTY DEED
THIS DEED made this day of January, 2004, by and between:
GRANTOR GRANTEE
CRESCENT RESOURCES, LLC, STATE OF NORTH CAROLINA
a Georgia limited liability company N. C. State Property Office
1321 Mail Service Center
Raleigh, NC 27699
Enter in appropnate block for each party: name, address, and, If appropriate, character of entity, e.g. corporation or partnership
The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and
assigns, and shall include singular, plural, masculine, feminine or neuter as required by context.
WITNESSETH, that Grantor, for a valuable consideration paid by Grantee, the receipt of whin] is
hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto Grantee in fee
simple, all that certain lot or parcel of land described in Exhibit A attached hereto ( "Property ").
CLT 742370v3
Page 1 of 4
�1

\,k
2W PAGE
TO HAVE AND TO HOLD the Property and all privileges and appurtenances thereto belonging to
Grantee in fee simple.
And Grantor covenants with Grantee, that Grantor, has done nothing to impair such title as Grantor
received, and Grantor will warrant and defend, the title against the lawful claims of all persons claiming
by, under or through Grantor, except for the exceptions hereinafter stated.
Tide to the Property is subject to the following exceptions:
(1) riparian rights of others;
(2) flood easements in favor of the United States of America;
(3) .transmission line and retail electric line rights -of -way of public, record reserved by or granted
to Duke Energy Corporation (formerly known as Duke Power Company);
(4) ad valorem taxes for the year 2.004 and subsequent years;
(5) matters affecting title to the Property as shown on the Plat or which would be shown on a
current and accurate survey of the Property (including any encroachments);
(6) easements, covenants, restrictions and conditions of public record, and rights -of -way of
public and private streets and roads;
(7) easements and rights-of -aay as
maybe apparent from an inspection of the Property; and
(8) zoning, subdivision, land use and other laws, regulations or ordinances applicable to the
Property.
CLT 742370v3
Page 2 of 4
QQ

r
BOOK 285 PAGE 994
IN WITNESS WHEREOF, Grantor has executed this deed as of the day and year first above written.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
CRESCENT RESOURCES, LLC,
a Georgia limited liability company
By:
err es M. t , Jr.
or Vice esident
I, a Notary Public of County and State of North Carolina, do hereby certify
that James M. Short, Jr., personally came before me this day and acknowledged that he is Senior Vice
President of CRESCENT RESOURCES, LLC, a Georgia limited liability company, and that he, as
Senior Vice President, being authorized to do so, executed the foregoing instrument on behalf of the
limited liability company.
Witness my hand and notarial sea], this the day of January, 2004.
Notary Public
My Commission Expires: o? 00
(NOTARIAL STAMP -SEAL)
�JSNOTA, oy
r
i
' COUNT
�',nwntnt�tt
State of North Carolina, County of Swain
Eac;hi the f=going ccr'urjrates, cf_._ _.
is hercby c�ertifiiedd et a correct. V41911 for registration on this the
20 4f.-
Register of Deeds By. Ass'
D,a= WluiaaiSoa I{irklmd
CLT 7423700
Page 3 of 4

8M 20. PAM 995
EXHIBIT A
Lying and being in the Township of Nantahala, County of Swain, State of North Carolina, and being
more particularly described as follows:
All portions lying in Swain County, of that'certatn tract or parcel of land containing 3,422.30 acres,
be the same more or less, as has been surveyed and platted by Lindsey & Associates, Inc., under date
of October 15, 2003, as revised, entitled "Property of Crescent Resources, LLC" Survey for N.C.
Nature Conservancy appearing on Sheets' i through 10 (a composite depicting all prior sheets
appearing on Sheet 15 thereof) as appear of recor in the office of the Register of Deeds for Swain
County, North Carolina, in Plat Cabinet,, Pages 1 535 through 1 5V4
(collectively, "Plat "), to which Plat as so- recorded reference is hereby had for a more complete and
particular description of the lands, rights, privileges and easements conveyed' hereby and the
exceptions and easements applicable thereto; and being all or a portion of the property conveyed to
Crescent Resources, Inc. (presently known as Crescent Resources, LLC) by deed from Duke Energy
Corporation recorded in Deed Book 230, Page 816, Swain County Public Records; and by deed to
Crescent Resources, LLC from Duke Energy Corporation recorded in Deed Book 278, Page 415, and
re- recorded in Deed Book 285, Page 617, all in the Swain County Public Records.
Together with the non - exclusive right of Grantor, if any, in and to any easements reserved by, or
granted to, Grantor over and across lands adjacent to the Property for the purposes of access to and
from the Property; provided, however, that Grantor makes no representation or warranty, express or
implied, regarding any such rights.
Less and except therefrom all those portions thereof identified and shown on the Plat as:
1. Exception #1 appearing on Sheet 6 of the Plat; being the land conveyed to The Land
" 'Trusi for the Little Tennes -see; Inc.'by deed recorded in Deed Book 8S , Page n1$O in the
Swain County Public Records;
2. Exception #2 appearing on Sheet 7 of the Plat; which includes the land conveyed to the
Trustees of Brush Creek Baptist Church by deed recorded in Deed Book A S rj , Page _q in
the Swain County Public Records;
3. Exception #3 appearing on Sheet 9 of the Plat; being the land conveyed to Wayne
Ammons, Melvin Jones and J.T. Ammons, as Trustees of Hightower Baptist Church by deed recorded
in Deed Book a1 �Jr , Page in the Swain County Public Records;
4. Exception #4 appearing on Sheet 4 of the Plat; being a graveyard located on a ridge
within the D.M. Slagle tract.
The State of North Carolina has received payment from the Ecosystem Enhancement Program for
acquisition of the above - described property in consideration of which the State of North Carolina has
agreed to the establishment of a perpetual riparian buffer extending three hundred (300) feet from the
banks of all blue line streams and tributaries. This three hundred (300) foot buffer will forever be
conserved and managed in a manner that ,will protect the " quality of the 'waters mentioned above and
otherwise promote the public purposes authorized under the provisions of North Carolina General
Statutes §143- 214.8, et. seq. This paragraph creates neither rights nor responsibilities on the part of the
Grantor, its successors and assigns.
CLT 742370v3
Page 4 of 4