Off Limits: No Public Access Allowed on Proposed Trail Route

The public is prohibited from access to the north side of South Fork Peachtree Creek between Lenox Road and the Morningside Nature Preserve.  A public record contract between the City of Atlanta and the property owner forbids any public access to the trail easement’s narrow corridor until (1) a detailed trail proposal has been reviewed and approved by both the property owner and the City, with input from EPD and EPA, and (2) that trail is completed according to the approved specifications.  Protect Morningside Greenspaces (PMG) reviewed the contract in question after reports of trespassers trying to reach the proposed trail route and evidence of clearing along the route.

Some persons mistakenly think that any public easement allows the public access to the land.  This is wrong.  Easements provide access only where, when and for the purpose specifically described in documents recorded at the Fulton County Courthouse.  Contractual requirements that must be met before any public access in the present case are quite stringent:

“[N]o public access to the Grantor Tract shall be permitted prior to the completion of construction of such trail system. . . . Prior to commencing any land disturbance on the Grantor Tract . . . Grantee [City of Atlanta] shall first provide to Grantor [property owner] the plans and specifications for the trail system for review, comment and approval. . . . Grantee shall not commence any work on the Grantor Tract without first confirming for itself . . . that the plans and specifications as submitted comply with the terms of the Consent Decree, dated September 24, 1998, by and among [EPA, EPD, et al.] . . . and the Greenway Acquisition Plan . . ..”

PMG has called upon the City to honor its contractual obligations and to take actions as needed to prevent illegal public access to the proposed trail route.  PMG looks forward to a full and transparent public review of detailed plans and specifications for any trail proposal if any such proposal is submitted.

PMG believes that some segments of proposed connected trails along South Fork Peachtree Creek should be left undeveloped.  Informal trail blazing before a full public process damages the watershed and wildlife habitat that will remain if trail proposals are denied.  If a trail proponent seeks to make it easier to gain approval of a formal trail proposal by improperly creating an informal trail, proof of that action should be grounds for denial of that group’s formal proposal.

Public record documents mentioned here can be viewed at “Sources.”

Protect Morningside Greenspaces is is a group of concerned neighbors dedicated to promoting a clear and transparent process for evaluating recreational connected trail plans for South Fork Peachtree Creek – a process that must take into account neighborhood issues and concerns, and rely on fact-based decision-making.  All the members of Protect Morningside Greenspaces are residents of Morningside Lenox Park.

Morningside Place public easement documents

Morningside Place Sewer Easement of 2002:

MPHOA Perman Sewer Easemt 2002

Morningside Place Conservation Easement of 2007:

Easements 2007 Mside Pl to Atl

Map excerpt showing conservation and trail easements:

Morningside Pl Conserv Easement Map 2

 

PMG Discussion of the documents

The following comments are PMG's reading of these public record documents.  You may form your own view by reading the documents above.

The map excerpt shows our reading of the legal descriptions in the Conservation Easement of 2007 granted by Morningside Place condominiums (MPHOA) to the City of Atlanta.  We added the colored borders.

• Conservation: the yellow bordered area is the conservation easement, the purpose of which is to prevent the property owner from developing the area and thus preserving the watershed.


• Trail: the red hatched strip is the trail easement, which is subject to many conditions as explained in part in the post Off Limits.  Note the strip does not extend to the centerline of the creek, leaving a gap in trail rights if the City should ever decide it would like to build a bridge across the creek here.  The trail easement area is exactly the same as the permanent sewer easement, and is much smaller than the area of the conservation easement.  We see the narrow easement for possible trail development as a carefully restricted exception to the "no-development" status of the conservation easement area.

The Permanent Sewer Easement of 2002 (2002 PSE) granted by Morningside Place condominiums (MPHOA) to the City of Atlanta (copy attached as recorded at the Fulton County Courthouse) describes a narrow strip of land in which the City built a relatively new sewer line north of the Creek.   The PSE document contains Exhibit A, a legal description of this strip in which the MPHOA granted to the City a permanent easement to “construct and maintain a sewer line only”; Exhibit B, which lists matters to which the easement is subject; and a survey map.  Significantly, the temporary sewer easement also shown on the survey map does not fall within the legal description of PSE Exhibit A.

The MPHOA's 2007 Deed of Conservation Easement (DCE) (copy attached as recorded at the Fulton County Courthouse) provides use restrictions in an area described in DCE Exhibit A and shown on DCE Exhibit B (a survey map to which we added a yellow boundary representing our reading of the attached legal description in DCE Exhibit A).  The DCE legal description is different from that of PSE Exhibit A.

Please note that Exhibit B shows how the private property lines of both the MPHOA and the Robin Lane homeowners all extend to the centerline of the Creek.

DCE Exhibit D is the Trail Easement Agreement (TEA) which grants to the City an easement for a trail limited to a “Grantor Tract” defined with reference to the PSE (that is, the permanent sewer easement strip described in PSE Exhibit A, which is consistent with the red hatching we added to DCE Exhibit B).  The Grantor Tract, along its entire length, is located away from the centerline of the Creek.  Across from the former Cornish property, the edge of the trail easement is away from  the northern bank of the Creek for all practical purposes.

We do not see in the TEA any grant to the City of a trail easement that would allow building a trail or bridge across MPHOA property outside of the Grantor Tract (permanent sewer easement); in fact, access to the conservation easement area outside the Grantor Tract is expressly prohibited.   Thus, the TEA grants no trail easement that would allow the City to approve a trail between the Grantor Tract and the Creek to link to the former Cornish property by a bridge or otherwise.

We note that the trail easement was acquired after the Cornish property was purchased, without allowing a trail from the Grantor Tract to the bank (or to the centerline) of the Creek.    Of course, keeping a trail away from the bank of the Creek is consistent with the important anti-pollution and anti-erosion goals of the Greenways Acquisition Plan.