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Downtown Airport panel seeks money in trail suit

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By Bill Poovey
bpoovey@gsabusiness.com
Published Nov. 17, 2015

The Greenville Airport Commission has joined a lineup of property owners suing the federal government to collect payouts from a planned 3.29-mile southern extension of the Greenville Health System Swamp Rabbit Trail. Greenville Downtown Airport Director Joe Frasher said the commissioners voted unanimously to join nine other plaintiffs in a U.S. Court of Federal Claims filing that seeks payment for former rail rights of way.

The suit aims to cash in on a U.S. Supreme Court decision that says the federal government has no claim to rights of way abandoned by railroads, as far back as the 1800s, when the land is transferred to entities for other uses such as the trail project planned by the Greenville Economic Development Corp.

A span of abandoned rail line that will become an extension of the Greenville Health System Swamp Rabbit Trail along the edge of the Greenville Downtown Airport. (Photo by Bill Poovey)
A span of abandoned rail line that will become an extension of the Greenville Health System Swamp Rabbit Trail along the edge of the Greenville Downtown Airport. (Photo by Bill Poovey)
Frasher said not accepting the attorney invitations to join the case is “just leaving good money on the table. The money comes from the federal government.”

“We are certainly for everything associated with the Swamp Rabbit Trail,” Frasher said. “It’s just the Supreme Court has held the federal government must compensate you for the taking.”

The commission and other property owners with stakes in the rights of way are being recruited by Clayton, Mo., attorney Mark F. “Thor” Hearne, who said there are 31 potential plaintiffs in Greenville. He said the rights of way are often 100 feet wide and the payouts are typically about $1 million per mile.

Local governments and agencies involved in developing the trail are not parties to the case. Emily Meeker, the U.S. Department of Justice attorney handling the case for the government, declined comment.

The proposal to extend the existing 20-mile recreation-transportation corridor in Greenville County has already received a $2.3 million commitment from Greenville City Council, contingent on the county building pedestrian bridges over Laurens and Haywood roads and Verdae Boulevard. An application for a U.S. Transportation Department Transportation Investment Generating Economic Recovery grant that would have provided funding for the greenway was recently turned down.

The trail’s planned “Greenlink Greenway” would span from Cleveland Park across Laurens Road at the intersection of Washington Street and continue parallel to Laurens to the Clemson University International Center for Automotive Research.

Hearne said his firm has about 40 similar “rails to trails” cases active. He said he has been very successful for 25 years collecting settlements and verdicts paid from the U.S. Department of Treasury’s Judgment Fund. His firm, Arent Fox LLP, has also handled three other cases in South Carolina, involving the abandoned Doodle Trail rail lines between Pickens and Easley, a rail span in Chesterfield and Darlington counties, and a Beaufort County case that paid landowners a total $40 million. The cases involve land appraisals, and the court decides disputes over appraised values.

Fred Payne, chairman of the development corporation, said it is a “frivolous lawsuit taking advantage of litigious opportunity.”

“We are not participating because it is taxpayer money,” Payne said. “It is my understanding that this lawsuit has nothing to do with our plans for developing” the trail.

Frasher said any property owner on either side of the rail right of way is eligible to get paid.

“We own the property on one side of the railroad, about 1,200 feet,” he said. Frasher said the commission has been paying the county development corporation about $1,000 a year for space where runway approach lights are spaced.

“I am surprised not more people joined the lawsuit,” Frasher said. “It’s a class action lawsuit. The lawyers will get a third of whatever is covered.”

Reach Bill Poovey at 864-235-5677, ext. 104

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