Freeman Park: Property Owners Appeal Town's Notice of Violation

The Town of Carolina Beach reopened Freeman Park on Tuesday Feb. 20th. The following day they removed posts erected by a property owner that caused the closing earlier in the week. Now the property owner is appealing a Notice of Violation issued by the Town. The Town of Carolina Beach reopened Freeman Park on Tuesday Feb. 20th. The following day they removed posts erected by a property owner that caused the closing earlier in the week. Now the property owner is appealing a Notice of Violation issued by the Town.

Freeman Park: Property Owners Appeal Town's Notice of Violation Featured

By / Local News / Thursday, 22 February 2018 21:03

By WILLARD KILLOUGH III
Managing Editor

CAROLINA BEACH - The Town of Carolina Beach closed Freeman Park at 6pm, February 14th, due to a property owner erecting sand fencing and limiting the area of safe travel for vehicles driving on the public-trust dry sand beach.

The Town reopened the park Tuesday afternoon and notified the owners the fence must be removed by Wednesday afternoon.

Wednesday afternoon, the Town removed the posts and rope erected by the property owner. Now the property owner has notified the Town they will appeal to the Town’s Board of Adjustment regarding the Town Manager’s interpretation of Town Codes that he cited as the basis for removal of the posts and ropes.

On Thursday February 15th, Sarah Young with the North Carolina Division of Coastal Management explained, "The Division of Coastal Management has determined that the posts and rope fencing is unauthorized development on the public trust beach and is preparing to issue a Notice of Violation."

The State issued a Notice of Violation to the owner requiring the posts and rope to be removed by Monday afternoon, February 19th. The posts and rope were not removed by the Monday deadline.

On Tuesday February 20th, the Town notified representatives of the owner, Freeman Beach, LLC, that the materials were installed in violation of a number of Town ordinances and if the posts and rope were not removed by Wednesday afternoon, the Town would remove the items from the beach.

The owner had permission from the Division of Coastal Management to erect 1,800 linear feet of sand fencing along the dune line in the northern area of Freeman Park, but the posts and rope erected on February 14th, were not permitted under that permit.

Freeman Park, located beyond the end of Canal Drive on the Northern End of Pleasure Island, is largely outside of the Town's jurisdiction. The Town owns the first 1,000 feet beyond of the end of Canal Drive. After that, parcels are privately owned.

Private properties west of the front of the dune line are considered private while any portion of a property located east of the front of the dune line is open to public use under State Law as a public-trust area. That includes the dry sand beach east to the high water mark. The wet sand beach belongs to the State of North Carolina.

The Town has authority to manage the public-trust beach as a park. That was granted to them by the New Hanover County Board of Commissioners some years ago. There is a fee charged for vehicle access to drive on the beach front within the park. The Town doesn't charge people a fee to walk into the park. They can only charge for four-wheel drive vehicle access.

The Town has the authority under State Law to “regulate, restrict and prohibit” vehicles driving on the dry sand beach within the public-trust area.

In December of 2016, several property owners asked the Town of Carolina Beach to remove new campsites established on the beach in Freeman Park due to damage to the sand dunes and impacts causing erosion of their properties.

Elizabethtown, NC based Attorney H. Clifton Hester sent a letter to Carolina Beach Mayor Dan Wilcox dated December 5th, 2016 representing the concerns of his clients, Freeman Beach, LLC, Carolina Freeman, LLC, and B&F Enterprises of Calabash, LLC.

Hester wrote, "I am writing to you as attorney for the above-named entities who own the property located north of the City limits of Carolina Beach and bounded on the east by the mean high water line of the Atlantic Ocean and on the west by the Intracoastal Waterway. These owners have, for many years, appreciated the efforts of the Town to police this area and provide amenities to the public, all of which the owners felt were beneficial to their own interests, including their real property interests. The owners felt and still feel that the tradition and history of this area are to keep it open to those who enjoy the oceanside beauty and the beach."
He explained, "The actions of Carolina Beach in providing police services, trash bins/clean-up services and rest rooms has likewise been in keeping with this tradition. However recent developments have caused some concern to the owners. The Town has, in the last couple of years, established campgrounds on the property of the named entities as well as their neighbors. While none of the owners initially objected to this project, the results of this enterprise has been to significantly diminish the viability of the area as a beach resort. "

Hester wrote, "The campgrounds have caused an increasing amount of vehicular traffic on the privately-owned areas of the beach, leading to the destruction of some of the dunes as well as other areas which must be preserved in order to maintain the beauty and viability of the beach as a haven for tourists. The interests of my clients are to preserve the natural beauty and viability of this area. However, when the actions of the members of the public cause destruction to the natural beauty of the area, the owners feel that they have not only a right, but a duty to speak up and request that the Town take action to protect their property interests. Moreover, the actions of the public appear to be promoted by the Town which established the campgrounds on areas that are private property."

He explained, "Because of this, the owners are requesting that the Town take immediate action to close these campgrounds to the extent that they are located above the mean high water mark and to otherwise provide police protection to prevent further use by the public which may accelerate the erosion and diminution of the beach property. The attached copy of the survey map as well as the pictures depicting the damages caused by vehicular use to the area show the reasons for the owners concerns. I will be happy to appear at the Town meeting to answer questions the Board of Commissioners may have about these issues. Otherwise, I request that the Board take immediate action at the next meeting to address these issues and provide me with a copy of any resolution regarding the same. Please give us a response by December 30th. By copy of this letter to Noel Fox. I am advising your attorney of these concerns as well and trust that she will contact me with any questions that may be addressed in advance of your meeting."

Town Attorney Noel Fox responded to Hester on December 22nd, 2016. In a letter to Hester, Fox explained the correspondence wasn't received by the Town or herself until December 13th and, "I attempted to contact you on December 19th to discuss this matter. I have not yet received a return call from you. The purpose of my call was to inform you that there were no pictures depicting the damage caused by vehicular use enclosed in the letter received by the Town or me. I would appreciate receiving those photographs prior to discussing the matter further with the Town."

Fox wrote, "The Town will not be able to meet the December 30, 2016 deadline imposed in your letter due to the approaching holidays. I took forward to receiving the pictures and will contact you again upon receipt to discuss this matter further."

On March 14th, 2017, Fox explained that no further letters had been received and there was no litigation filed against the Town.

At the time, Town Manager Michael Cramer explained that, "With the recent dune erosion on Freemen Park we have noticed that vehicle tracks have been observed over the dunes. About a month or so ago we installed additional posts and rope to try to keep vehicles out of the area."

According to the Town's budget, Freeman Park generated $1,137,000.00 in revenue for fiscal year 2015-2016.

The properties owned by those parties represented by Hester encompass the largest stretch of the beach front within Freeman Park. The Town owns the first 1,000 feet after the end of Canal Drive. After that point, numerous tracts of land are under private ownership with the largest owned by Freeman Beach LLC of Clarkton, NC at 169.6 acres stretching from the ocean to the waterway including the land and marsh area west of the sand dunes.

The Town Council adopted new restrictions for camping within Freeman Park in 2015 as a way to address overcrowding within the park. Prior to the new camping rules, it was estimated that as many as 875 campsites would pop up near the water during busy summer weekends.

The new restrictions limited the number of campsites to 119 and they were positioned along the dune line. No camping was permitted towards the waters edge and the public is not permitted to walk or drive on the dunes.

Visitors planning to stay overnight at Freeman Park were required to purchase a camping permit for a specific campsite. Those permits were available on a first come first serve basis between April 1st and September 30th.

On February 14th, 2018, crews working for the property owner - Don Formyduval - began installing sand fencing approximately 50’ feet east of the dune line just beyond the boundary of the property owned by the Town. In addition to the fencing, sea oats were planted west of the sand fencing.

Town Manager Michael Cramer issued a statement Wednesday afternoon stating, “This morning (February 14, 2018), Town staff was alerted to activities on Freeman Park that have the potential to be a public safety hazard.  Representatives from the Freeman Beach LLC, who own private property on Freeman Park, have installed posts, rope and sea oats plantings, which encroach on the area of historical public beach.”

Cramer explained the Town alerted CAMA (North Carolina Division of Coastal Management) of the situation and, “CAMA will be discussing the property owners interpretation of the rules and regulations that govern the North Carolina Coast. Neither the town nor CAMA was consulted on this project and we were unaware of the activity until this morning. Due to the current beach obstructions and to preserve the public safety and reduce the likelihood of accidents at night, Freeman Park will close at 6:00 pm tonight. Freeman Park will remain closed until we receive direction from CAMA officials. We are sorry for this inconvenience and hope to resolve the issue quickly. Your cooperation is appreciated.”

On Tuesday February 20th, the Town Council held a closed session meeting. Following that meeting a letter was sent by Town Manager Michael Cramer to Freeman Beach, LLC in care of Clifton Hester, Esq., Registered Agent and to Woodrow W. Marlowe, Jr. the Manager. The tile of the of the letter was, "Notice of Violation Arising from Installation of Poles and Rope at Freeman Park."

Cramer wrote, "On 14 February 2018 while at the public beach commonly known as "Freeman Park", I met with your representative, Steve Fort, and observed unauthorized installation of wooden fence posts and rope fencing connected to and supported by the posts. The installation is located within the public trust beach on the eastern side of Freeman Park fronting the Atlantic Ocean and just north of the Town's property at the entrance of the Park."

Cramer explained, "I further observed plantings of American beach grass just landward of the roped-off/fenced-in area. Mr. Fort confirmed that the installation took place at the behest of the owner of the property located to the west of the installation and abutting the public trust beach. Public records on file at the New Hanover Registry indicate that Freeman Beach, LLC is the record owner of that property... and that the property is purportedly illustrated by a Boundary Survey" recorded at the register of deeds office.

He explained, "This letter giving Notice of Violation is sent to you in your capacity as representatives of Freeman Beach LLC as indicated by records of the N.C. Secretary of State. Freeman Park and all lands between its south entrance and Carolina Beach Inlet, including the public trust beach and the lands owned by Freeman Beach, LLC, are in the Town's Extraterritorial Jurisdiction ("ETJ"). Further, Freeman Park is a subject of an Interlocal Agreement between the Town and the County of New Hanover. This installation took place on the Freeman Park public trust lands without prior notice to the Town. Nor was a permit issued by the Town authorizing the installation."

Cramer explained, "I understand that the fence posts and the rope fencing were installed in an area measuring approximately 1,938 feet in length and varying in width from 50 to 150 feet waterward of the toe of the frontal dune, encompassing an area of approximately 193,800 square feet of public trust dry sand beach located within the Town's ETJ. The area is zoned "Natural Resources Conservation District."

In the Notice of Violation, Cramer explained the owners failed to obtain required permits to authorize the installation of the posts and rope. That includes failure to obtain the following permits required by Town Code:
1. A zoning permit.
2. A fence zoning permit.
3. A building permit.
4. A Flood Damage Prevention permit.
5. A permit to obstruct public place.

He explained, "Further, the installation violates a number of Town Ordinances, among them being the obstruction of a public right-of-way as prohibited by Town Code" and, "Under the circumstances, the Town has the authority to issue a Notice of Violation and direct removal of the installed fence posts and rope fencing."

Cramer wrote, "Accordingly, Freeman Beach LLC is given notice of the above referenced violations. Further, Freeman Beach LLC is ordered and directed to remove all fence posts and rope connected between and tied to the posts no later than 14:00 hours [2pm] on 21 February 2018. Should Freeman Beach, LLC fail to do so, the Town reserves the right to remove the material. Meanwhile, be advised the Town opened Freeman Park to vehicular traffic today at 14:00 hours. Thus, you may use vehicles in order to expedite removal of the material."
He wrote, "The Town reserves all rights to enforce its laws and waives no enforcement or cost recovery mechanism in consequence of the above referenced violations. Further, the Town does not conceded any position asserted by Freeman Beach, LLC with respect to the location of its boundaries and reserves all rights in connection with the same."

On the same day, Cramer informed Town employees, "Council has directed that Freeman Park be reopened to vehicle traffic effective 2:00 pm today. Operations staff have placed barrels in front of the posts and rope installed by the property owners of Freeman Beach, LLC.  These barrels have been placed to help identify the hazard to the driving public.  Police Department staff will be performing their normal patrols of the beach. If you observe anyone tampering with the posts and rope that were placed by the property owners on the “Dry Sand Beach” please alert the police department immediately."

Last week the NC Division of Coastal Management issued a Notice of Violation to the property owner, Don Formyduval of Whiteville, stating, "No person may undertake development in a designated Area of Environmental Concern (AEC) without first obtaining a permit or authorization in accordance with the Coastal Area Management Act (CAMA) from the North Carolina Department of Environmental Quality, per North Carolina General Statutes (N.C.G.S.) §113A-118. Furthermore, all development activities carried out in an AEC must be performed in accordance with the permitted plan of development and as described in the CAMA permit.Information gathered by DCM Staff shows the installation of an unauthorized post and rope fence in an area measuring approximately 1,938 feet in length and varying in width from 50 feet to 150 feet waterward from the toe of the frontal dune, encompassing a total area of approximately 193,800 ft² of the dry sand beach. This unauthorized development took place within the Ocean Hazard and Public Trust AECs, which are contiguous with the Atlantic Ocean."

The letter stated, " Sand fencing is allowed in accordance with 15ANCAC 07H.0308(b) and 7H.0309(a)(8); however, it must meet the standards set forth in 15A NCAC 07H.0311(b) and 15A NCAC 07K.0212(2) which state: “sand fencing shall not impede existing public access to the beach, recreational use of the beach, or emergency vehicle access. Sand fencing shall not be installed in a manner that impedes or restricts established common law and statutory right of public access and use of the public trust lands and waters.” Sand fencing is further limited under 07K.0212(c) to a maximum distance of 10 feet waterward of the toe of the frontal dune and should follow the other specifications within these regulations."

On February 18th, Steve Fort – representing Freeman Beach, LLC – replied to Debra D. Wilson -
District Manager, NC Division of Coastal Management – regarding the Notice of Violation sent on February 15th.

Fort wrote, “Your letter informing us that the protective roping with post we placed to protect our grass plantings was in violation for ‘Failure to Apply for CAMA Permit’ is contrary to earlier conversations and email confirmations with your office. Earlier communications and conversation established and confirmed that grass planting on the beach with a protective rope boundary was not considered development and did not require a CAMA permit. You specifically informed me, as a representative of Freeman Beach LLC that the public would probably tear down our fence, thus requiring subsequent repairs. Reference is made to my email written on behalf of Freeman Beach LLC to you dated Friday, November 17 @ 4:35 PM as a follow up to my meeting with you and Courtney Spears.”

Fort explained, “ No CAMA permit is required for grass planting and you informed me a protective roping was not development requiring CAMA approval” and, “Planting of plants (grass) and their protection is not considered development.”

He wrote, “A rope fence to protect non‐development grass planting is not ‘unauthorized development’ but is allowed to protect plantings. Our posts comply with the CAMA regulation of not exceeding 3 ½” in diameter. It has been my observation that the Town of Carolina Beach has installed numerous posts that exceed that diameter apparently without CAMA approval.”

Fort explained, “We did not conduct ‘unauthorized development’ for above stated reasons” and, “We did not conduct development nor did we alter or remove any primary dune.”

He explained the purpose of a section of State Law is to enhance the safety of life and property adding, “Our plantings only help in this regard. GS 113A‐102(b) speaks to preserving and managing the natural ecological condition of all the beach and our recent activities on Freeman Park are beneficial in this regard whereas the Carolina Beach condoned activities are very much at odds with this complete section. I do not understand how it pertains to our situation.”

Fort explained, “Freeman Beach, LLC is only adhering to the applicable rules” and “No sand fencing has been installed.”

He explained Freeman Beach, LLC is open to discussions with the Division of Coastal Management and, “I have tried to be very proactive in seeking your input as the owners of the property moved forward to protect it from further harm. I am more than willing to meet with you at your office at your earliest convenience. Freeman Beach, LLC has complied with my understanding of our conversations about planting grass and protecting it. We are willing to listen and explore other options in order to protect the grass plantings.”

On February 21st, Attorney H. Cliton Hester or Hester, Grady & Hester, PLLC, responded to the notice of violation issued by the Town of Carolina Beach on Tuesday February 20th.

Hester wrote a letter to Town Manager Michael Cramer stating, “I am writing to you to appeal to the Board of Adjustment the decision you have made regarding the planting of grass on the private property of Freeman Beach, LLC. This investment in preservation of the beach is an extensive and expensive investment in this area of my client’s property. We are asking for assistance from the Town in protecting this investment in the environment. While I received you email yesterday we have not been formally served with the Notice of Violation.”

He wrote, “I have reviewed the ordinances that you have cited. Because your letter alleges only that the installation of the posts and rope are our violation, I can only respond that my clients have not violated the cited Ordinances. The plantings made are part of my client’s efforts to preserve the environment and are not development nor structures under the CAMA regulations. The zoning Ordinance requires a “site plan” only in limited circumstances which do not appear to apply to our situation. The “fence” permit clearly is inapplicable to our case and the remaining Ordinances do not appear to apply either.”

Hester explained, “My client removed the rope this morning prior to my reading of your Ordinance. They did so because of a concern that the “fence” zoning applied to Freeman Beach property. I am requesting that the Town refrain from removing the posts which protect the plantings until these allegations have been reviewed by the Board of Adjustment or otherwise by the Board of Commissioners. This is the first alleged violation. I read your Ordinance to allow 15 days to comply or appeal the alleged violation. Even though my client has not been formally served please accept this as our Appeal.”

He explained, “I presume that there are no exigent circumstances that require the immediate removal of the posts which were placed there to protect the plantings. My clients are concerned that their posts and ropes, which they utilized because they are in the same method utilized by the Town to protect environmental areas, are being viewed as a “danger to the public” and as such, an excuse to allow the public access to their property to destroy the investment they have made to protect the beach area. If the Town removes the posts, then we expect the Town Police to provide protection to the planted Beach Grass. By copy of this letter to the Town Clerk, I am giving notice of our Appeal and the Chairman of the Board of Adjustment.”

Upon request, the Board of Adjustment will review Michael Cramer’s interpretation of the ordinances cited in the Notice of Violation sent to Freeman Beach, LLC.

Cramer explained Thursday afternoon the materials removed from the beach were placed at the Town's property off Bridge Barrier Road.

Comparison From 2002 to 2016:

Overhead photo of the North End in 2002 prior to the Town establishing Freeman Park with permission of the County Board of Commissioners and establishing a management plan. Also prior to installation of sand fencing.

Overhead photo of the North End in 2016. Photo shows several areas where sand fencing was originally installed by the Town and the current dune line farther east than what existed in 2002. The existing dune line was created due to sand fencing installed by the Town over the years.

 

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