Mayor initiated city work on private property

Henderson City Council member Bobby Gupton reacquainted the council regarding the issue of the of the railroad tie being caught in a drainpipe on former railroad property running parallel to Dabney Drive.

Since the railroad was abandoned and the tracks taken up more than seven years ago, the property is now presumed to belong to the owners of the adjacent properties, according to City Attorney John Zollicoffer, interpreting North Carolina general statutes.

According to Gupton, when the property owner requested that the city remove the railroad tie from the drain, City Manager Jerry Moss, in consultation with Zollicoffer, determined that the area was private property and the city could not perform the requested work because of the problems associated with the assumption of liability for future problems.

Zollicoffer claimed not to specifically recall the conversation. He did note, however, that an exception could be made in the case of flooding.

Gupton emphatically stated that the situation did not result in street flooding.

Gupton asked why the homeowner was not charged. He also asked if the city would continue to do the maintenance. The council member also stated that other homeowners had asked the city to clear brush, and that he had said that the city could not do it because it could not work on private property, yet the city could do [the removal of the railroad tie from the drain].

Gupton stated that Acting City Manager Mark Warren was present when the work was done, but stated that he did not believe that it reflected badly on him. He called it a “bad decision”.

The chair of the Land Planning and Development Committee also stated that the problem was ongoing, and that the person requesting the work waited until a utility building was flooded to address the problem.

Council member Lynn Harper observed that the city was opening itself up to a lawsuit by working on private property.

Zollicoffer stated that when the city goes on private property, “it’s never-ending”.

Mary Emma Evans, chair of the Human Resources Committee, asked if the discussion was intended to expose someone for breaking a policy. Gupton replied that it was meant to show that [the city] does some things for some citizens and not for others. He also stated that he did not think the city should have to pay for it if the property owner initiated the work.

It was later stated that the owner, a Mr. Harris, approached four members of the council before getting the work done. The work was actually done on the property of a Mr. Stevenson.

Henderson Mayor Clem Seifert argued that the blocked drain was causing flooding on Dabney Drive. He and Gupton argued the point briefly. Gupton maintained that the level of flooding in the backyards of the properties in question was actually lower than Dabney Drive and therefore flooding was impossible.

Seifert then suggested that the council may want to adopt a policy where neither the council nor mayor can individually make a request of city staff without the approval of the entire council.

Gupton stated he would agree with Seifert’s suggestion “100 percent”.

“This particular request, they came to me,” Seifert said. “I asked Mr. Warren to look at it, he made a judgment, and, in my opinion, he made absolutely the right call.”

Gupton said that City Manager Jerry Moss had indicated that problems were to be reported to department heads. Seifert retorted that if Moss said that, he was “absolutely wrong”, and that problems should be reported to the city manager.

Council member Elissa Yount said there are worse cases of flooding due to private drains in the city, but that the city has been powerless to act because it cannot work on private property.

“Why do we do for some when we don’t do for others?” Yount asked.

Council member Ranger Wilkerson called the subject “an awful good subject for retreat”. Wilkerson referred to the retreat proposed by Evans last week.

Gupton stated that the requested report on the subject had been made, but that Warren preferred that Moss read it before submitting it to the council. Gupton indicated that he respected that wish.

Evans told the council that the city was being operated by emotion rather than policy. She said that the council needs to “stick to policy for everyone”.

Wilkerson indicated that Moss had told council members to notify department heads of problems. He stated that Moss had also said that if it was “really important” that it should be brought to the city manager, and that he would handle it. Seifert replied that if that is how the council wants to work, that’s fine, but that he does not think that council-employee relations should be “dictated” by Moss.

“I got news for you,” Seifert said to Wilkerson. “You call a city employee and say, ‘There’s a pothole on Oxford Road,’ you’re implying that you want that pothole fixed. There are potholes all over this city.”

Yount asked for a determination from the City Attorney regarding city work on private property. Zollicoffer replied that he had been saying the same thing for 35 years and never deviated.

A motion was introduced by council member Garry Daeke to uphold the determination of the city attorney, except where public safety is concerned.

Seifert stated a need to be careful. He said there are “implied accusations”. When asked to clarify, the mayor stated that the whole issue is an accusation against him that he could get something done that other people could not. He said that the council needs to make sure that the rally against favoritism applies to every member, not just a railroad tie in a ditch that was causing flooding in backyards. The mayor further defended his actions by stating that ownership of the property continues to be unclear to the residents.

“I think it’s a very dangerous area that you’re walking on,” Seifert said. “There’s clearly an undercurrent of mistrust.”

Gupton defended his actions, saying that he would not be able to redress every injustice done in Henderson, but he would address them as he came upon them, one at a time.

Daeke’s motion, seconded by Harper, passed without opposition.