Agenda 03-19-24; 5-a - Zoning Atlas Amendment – 6915-UT Millhouse Road, Chapel Hill

Browse Search

126 To Whom it May Concern: Orange County has asked Mr. Nishimoto to obtain a document in which Crown Castle confirms that it has no objection to Mr. Nishimoto's plans to improve and to use the access road to Millhouse Rd. Crown Castle, however, is not available to weigh in on this matter.' We therefore ask the County to accept this letter as a substitute. This letter directly addresses what we take to be the County's grounds for concern about potential conflict between Crown Castle's recorded rights to the access easement and Mr. Nishimoto's planned usage. You will additionally find a listing of the available documents related to the access road. You will also find a summary of Mr. Nishimoto's attempts to contact Crown Castle. We understand that the County's concern arises over language in the 2008 Grant of Easement (Record Book 4683, page 157) in which Julia Blackwood, then owner of 6915-UT Millhouse Rd, granted to Crown Castle "an exclusive, perpetual right-of-way" to the existing access and utility easement from Millhouse Rd. The concern, we take it, is that Crown Castle's "exclusive" right to the access road may be thought to exclude Mr. Nishimoto, the present owner of 6915-UT Millhouse Rd, from using the same access road. In relation to land access rights, this interpretation of"exclusive" was rejected by the NC Court of Appeals in Hundley v. Michael, 413 S.E.2d 296 (N.C. Ct. App. 1992). Since such an interpretation of"exclusive" would "produce an unusual and unjust result," the Court ruled "that the term `exclusive'...cannot be interpreted so as to exclude the owner of the servient tenement from using the property within the easement consistent with the purpose of the easement." Even when another party has been given an "exclusive" right to use an easement, the Court has ruled that "[a]bsent explicit language to the contrary, the owner of land subject to an easement has the right to continue to use his land in any manner and for any purpose which is not inconsistent with the reasonable use and enjoyment of the easement." Interpreting "exclusive" as excluding Mr. Nishimoto from using the access road to 6915-UT Millhouse Road yields an unusual and unjust result, one which would not be, in the language of the 1992 ruling, "consistent with reason and common sense." It would mean that Mr. Nishimoto can no longer access his land by foot or by vehicle, as the parcel would be landlocked. Such an interpretation would also conflict with the earlier 1978 deed of easement in which the access road is confirmed as "a perpetual right and easement...that is appurtenant to and runs with the land" (Deed Book 311, page 84). When the owner of 6915-UT Millhouse gave Crown Castle the right to use the access road to 6915-UT Millhouse, the owner did not thereby forfeit the right to use that access road, regardless of the "exclusive" language that was used. As the original deed of easement puts it, the right and easement to the access road is perpetual and runs with the land, thereby ' More specifically, the Crown Castle representatives who can be reached do not have authority to make decisions on behalf of Crown Castle on these matters, nor have they been able to directly connect Mr. Nishimoto to anyone who can make such a decision.