Permit Dispute of Two Grocery Stores Appealed To State Court of Appeals

Plans were submitted to the Town of Carolina Beach in November for a new shopping center to replace the existing Federal Point Shopping Center at 1018 North Lake Park Blvd. The redevelopment plans show a new unnamed grocery store as well as other multi-tenant buildings. The Town Council voted to approve of a permit to build the new shopping center during their January 9th, meeting. Plans were submitted to the Town of Carolina Beach in November for a new shopping center to replace the existing Federal Point Shopping Center at 1018 North Lake Park Blvd. The redevelopment plans show a new unnamed grocery store as well as other multi-tenant buildings. The Town Council voted to approve of a permit to build the new shopping center during their January 9th, meeting.

Permit Dispute of Two Grocery Stores Appealed To State Court of Appeals Featured

By / Local News / الثلاثاء, 05 حزيران/يونيو 2018 01:13

 

CAROLINA BEACH – There’s a new development in a story of two grocery store developers planning to build in Carolina Beach. Representatives of Harris Teeter challenged a permit issued by the Town in January 2018 that would pave the way for another grocery store on adjacent property as part of a redevelopment project of the Federal Point Shopping Center. Harris Teeter challenged the permit for the adjacent Federal Point Shopping Center property earlier this year and a judge ruled against their challenge. Now Harris Teeter has filed an appeal with the NC Court of Appeals.

The Carolina Beach Town Council unanimously voted to approve a request for a Conditional Use Permit at their January 9th, 2018, meeting to redevelop the Federal Point Shopping Center located at 1018 N. Lake Park Blvd. The proposal calls for demolition of the existing shopping center and construction of a new 51,469 square foot grocery store with an attached 8,400 square foot multi-tenant building with a patio area. The plans show areas for two additional future multi-tenant buildings. Speculation is the major-name store will be a Publix.

On February 8th, the owners of neighboring property - Jubilee Carolina, LLC - filed in New Hanover County Superior Court to challenge the Council's decision to issue the permit for redevelopment of the Federal Point Shopping Center. Click here to view the Jubilee Carolina, LLC court filing…

A court hearing was held April 24th, in New Hanover County.

During the Town Council's May 8th, meeting, Town Attorney Noel Fox updated the Council and told them the judge ruled on May 3rd, in favor of the Town issuing the G.H.K permit to redevelop the Federal Point Shopping Center.

Fox explained, "I know Council is already aware of this but for those that are listening and have inquired in the recent weeks, a hearing was held in Superior Court on April 24th, and a court judge entered an order on May 3rd, finding that the Town Council's decision was affirmed. So that means that Jubilee has to appeal the judge's order in order to not have the CUP stand."

Jubilee Carolina LLC had 30 days from May 3rd, to appeal the judges decision.

On May 29th, Jubilee Carolina, LLC, filed an appeal to the May 3rd decision.

In their appeal, it was stated, “To the Honorable court of Appeals of North Carolina: Petitioner Jubilee Carolina, LLC, pursuant to Rule 3 of the North Carolina Rules of Appellate Procedure, hereby gives notice of appeal to the Court of Appeals of North Carolina from the order of the Honorable R. Kent Harrell, entered 3 May 2018, which upheld the grant of a conditional use permit by the Town of Carolina Beach to Carolina Beach Development Company 1, LLC for property owned by Wilmington Holding Corporation.”

No date had been set for arguments or a hearing before the NC Court of Appeals at press time on Tuesday June 5th.

Background:

In April of 2017, the Council unanimously approved a request from Jubilee Carolina, LLC to modify an existing Conditional Use Permit for a 53,000 square foot Harris Teeter Store and a gas station at 1000 North Lake Park Blvd immediately adjacent to the Federal Point Shopping Center property.

The Council first approved of a Conditional Use Permit (CUP) for the Harris Teeter development during their August 11th, 2015 meeting. The modification approved in April of 2017 was required to address traffic concerns on Lake Park Blvd.

The Harris Teeter project was based upon interconnectivity with the neighboring Federal Point Shopping Center.

During the January 2018, meeting, Gordon Cobb of GHK Development spoke to the Council about the proposed redevelopment of the Federal Point Shopping Center and addressed the issue of interconnectivity to adjacent properties. He said that connectivity would be included for some surrounding properties, but not for the proposed Harris Teeter location. He explained, "We do believe in interconnectivity from a planning purpose when it is feasible to do, but as I'm sure you can probably understand our tenant will not allow us to have cross access with a location that is a direct competitor such as a grocery store." He said if the adjacent property were developed as something other than a grocery store, they would allow interconnectivity adding, "It's nothing personal it is just business."

Cobb didn't indicate what grocery store chain would open in the new project but the Louisiana based G.H.K. Developments, Inc. is listed on the application and plans submitted to the Town. They completed construction of a new Publix located in Wilmington on College Road. Their website lists previous projects such as Walgreens and Publix stores.

Jubilee Carolina, LLC is challenging G.H.K's permit claiming that Council approved a project for a neighboring property with which they had a contractual agreement with for access easements for interconnectivity and the G.H.K. permit approved for redevelopment of the Federal Point Shopping Center eliminates that access.

In the court documents filed on February 8th, Jubilee Carolina, LLC explained to the court, "Julbilee also possesses a contractual right to construct and use a common access on the WHC Property to provide interconnectivity between the WHC Property and the Jubilee Property with respect to the Harris Teeter grocery store to be built on the Jubilee Property."

WHC is short for Wilmington Holding Corporation, owner of the Federal Point Shopping Center.

Jubilee stated in their challenge, "Consistent with that contractual right, the proposed site plan for the Jubilee Property included common access across the WHC Property for the use of both the Jubilee Property and the WHC Property."

Jubilee's challenge states, "The Challenged Permit is inconsistent with the previously granted Jubilee Permit, and therefore constitutes a violation of Jubilee's vested rights as provided in" North Carolina General Statutes and, "Jubilee has an interest in the WHC Property pursuant to an access agreement between the WHC Property and the Jubilee Property with respect to the grocery store to be built on the Jubilee Property, and, Jubilee will suffer special damages as a result of the granting of the Challenged Permit, including but not limited to damages from the delay in construction of its Harris Teeter grocery store project, costs and fees associated with creating a site plan, and seeking the approval of an amended conditional use permit for the Jubilee Property, as the current conditional use permit for the Jubilee Property is now inconsistent with the Challenged Permit; the expenditure of funds after April 11, 2017, in implementing the site plan approved as part of the Jubilee Permit; and/or the costs and fees associated with conducting traffic studies, designing a new site plan, and applying for a modification to the Jubilee Permit to make it consistent with the Challenged Permit."

Jubilee also pointed to an exchange during the January 9th, 2018 meeting prior to approving the permit for the Federal Point Shopping Center project stating in the filing, "Also at the hearing, a member of the Town Council asked if the WHC Property would require fill dirt, stated that the Town was in possession of approximately 70,000 cubic yards of fill dirt that the Town "would be getting rid of," and assured the representative of CBDC that the price for the fill dirt would be "very right" and would be an extreme cost savings to you and a benefit to the Town." The representative of CBDC responded by saying, "If it works, we would love that" and "that's excellent."

The Councilman that asked about the applicants need for fill dirt for the Federal Point project was Steve Shuttleworth.

CBDC stands for Carolina Beach Development Corporation, representing the Federal Point project.

In the filing, Jubilee Carolina, LLC stated, "The Town's decision was made in violation of Jubilee's constitutional due process rights, and specifically the constitutional right to an impartial decision maker pursuant to N.C. Gen. Stat. 160A-388(e)(2), because the Town Council was not sufficiently impartial in its decision as a result of the proposal for CBDC to purchase fill dirt from the Town for use in the proposed project, which according to a Town council member would provide "an extreme cost savings to [CBDC] and a benefit to the Town."

Among other claims made in the Jubilee Carolina, LLC filing, they request, "Upon hearing and review, Petitioner requests that the Court enter an order remanding the case to the Town Council with instructions that the Challenged Permit be revoked or, in the alternative, re-issued only upon provision in the site plan for the WHC Property for its interconnectivity with the Jubilee Property consistent with the site plan approved as part of the Jubilee Permit" for the Harris Teeter project.

On March 5th, Gordon H. Kolb, Jr.  - President of G.H.K Developments, Inc. - wrote to Town Manager Michael Cramer in an email, "I also received an email from one of the neighbors last week that stated the neighbors and the Council were disappointed to hear that we have not moved quicker and also why we haven’t reached out to the tenants yet to give them a timeline for when we are moving forward.  I explained to the neighbor that Harris Teeter has filed an appealed against the Towns CUP ruling and we need to get that resolved before we can move forward.  That is why I don’t have an accurate timeline yet.  I referred back to my presentation to the Council where I stated that we can't move forward if we have to give cross access to HT.  I was very clear about that.  H.T has had 12 years to do something on their site and now they are trying to stop another grocery store from wanting to enter Carolina Beach now.  That doesn’t seem fair to the Town, Citizens or our client.   I am sure you all will get a call from the press too."

Businesses are still open in the Federal Point Shopping Center including Carolina Beach Scuba, Tip Top Frame, Maxways and others.

 

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