Tuesday, May 21, 2024

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City of Burlington sued for allegedly taking private land for public walking path


A couple in Burlington is suing the city of Burlington for allegedly taking a “dead-end alleyway” in March 2020 to build a paved public walking path on land they insist they and their ancestors had owned for 60 years.

In their suit, John and Cindy Lackey, of 1332 Ridgecrest Avenue in Burlington, claim the city unlawfully took their land, which backs up to their home in the Rockwood Acres subdivision and had been used for years as an annual garden and orchard.

Otis and Barbara Lackey had purchased a plot of land described as a “dead-end alleyway,” originally owned by Carlton and Etta Day, that backed up to the house they built at 1332 Ridgecrest Avenue in Burlington from W.L. Rudd in 1963, according to the court file. The Days had initially extended an “offer of dedication,” or an easement for land, but the city never acted upon the offer until last year, according to the court file.

The “dead-end alleyway” is described as abutting the house, now owned by John and Cindy Lackey, and running about 170 feet wide. While Otis and Barbara Lackey initially had planned to build a horse stable on it, they began planting a yearly garden and an orchard, for which they later installed a drainage ditch, fencing, and performed routine upkeep over the next several decades.

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In addition to the two lots their house was built on, Otis and Barbara Lackey eventually purchased two other lots: one described as the “Pony Lot,” from Rudd in 1963. In 1978, the Lackeys bought another lot, referred to as “Lot 25,” within the Oak Forest subdivision, located to the west of Rockwood Acres, the suit describes. The developer for Oak Forest, Collins & Young, built a sewer line beneath “the proposed” Hawthorne Lane and granted a utility easement to the city of Burlington in 1978, in exchange for the city agreeing to maintain the sewer line.

Inadequate drainage and runoff from the construction of the Oak Forest subdivision caused Otis and Barbara Lackey’s home to flood, prompting the couple in 2003 to contact city officials, who insisted that the city “had no right to the property and therefore was not responsible for the flooding,” the complaint notes. Otis and Barbara Lackey also approached the city council in 2004 to request a public discussion about problems caused by runoff from Oak Forest, but based on assurances they were given at the time,
“began cultivating a garden and orchard on the contested land,” where they also erected a small wooden fence and wire to protect the garden and orchard.

Otis and Barbara Lackey deeded their home and land to John and Cindy Lackey in two separate transactions, in 2002 and 2012, according to the court file.

John and Cindy Lackey contend in their suit that, in 2012, the year the property was deeded to them by Otis and Barbara Lackey, a title search was performed on the property, and they were assured “that the city did not own it or have a right to it.” They said Burlington city staff had confirmed at the time that only they, or perhaps the 17 other property owners within Rockwood Acres “could tell them what to do with” the dead-end alleyway, providing the sewer line was not disturbed.

The other property owners within Rockwood Acres subsequently agreed to “relinquish” any interest in the “dead-end alleyway” where John and Cindy Lackey had continued to use as a garden for “200 large plants,” in addition to providing upkeep for the perimeter of the land.
However, on March 5, 2020, the Burlington city council “purported to accept both the Days’ sixty-five-year-old offer of dedication in the [original plat for Rockwood Acres] from 1956 and the twenty-three-year-old reference to dedication” in a final plat that Otis and Barbara Lackey had recorded for their property in 1997, according to the suit.

John and Cindy Lackey contend that, since March of last year, the city has made numerous modifications, including paving a walking path, through the property, destroying their garden and orchard in the process.

Moreover, they insist that the city had not opened up the dead-end alleyway for the public; nor was it used by the public. “The only request that the city had made to the Lackeys regarding the contested land was that they not block access for utility maintenance,” the complaint asserts.

John and Cindy Lackey claim ownership of the land because they and their predecessors continuously used and maintained it from 1960 until 2020, and that they obtained the title to the land “against the city and the other Rockwood Acres owners.” Additionally, the city insisted on multiple occasions that it had no claim to the land, according to the couple’s lawsuit.

The couple is seeking multiple claims for relief, including a judgment declaring them as the rightful owners of the property and a judgment affirming that the city had previously abandoned its right to accept the 1956 “offer of dedication.”

The couple contends that the amount of time elapsed since the original offer and when the city converted the land for a public walking path “was so great as to cause the Lackeys to believe the city had abandoned any right it had to the contested land.”

The Lackeys are also seeking a preliminary and permanent injunction that would prevent the city from making any further modifications to the property; recovery of their costs for 200 large plants; an order requiring the city to restore the property to its previous condition; and an award for court costs and attorneys’ fees. The couple is being represented by Peter J. Juran and Henry O. Hilston of the Blanco Tackaberry & Matamoros law firm in Winston-Salem.

The city of Burlington had not filed a response by press time.

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