Freeman Park Property Owner BOA Appeal Postponed Until Later Date

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 Owner BOA Appeal Postponed Until Later Date Featured

By / Local News / Wednesday, 11 April 2018 16:37

By WILLARD KILLOUGH III
Managing Editor

CAROLINA BEACH - Owners of property at Freeman Park on the North End of Pleasure Island filed an appeal last month after the Town of Carolina Beach removed posts and rope they erected in February to protect beach grass planted on the beach front.

The Town's Board of Adjustment was scheduled hear the appeal from Freeman Beach, LLC during their April 16th, meeting. That hearing has been postponed until a later date.

Town Senior Planner Jeremy Hardison said Tuesday morning that the attorney for Freeman Beach, LLC has asked to postpone their appeal to a later date. He has a schedule conflict. They have not established a meeting date that they would like to reschedule to yet.

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 February 20th 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 are appealing 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, Elizabethtown, NC based Attorney H. Clifton Hester wrote to the Town representing several property owners and asked the Town 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.

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, "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.”

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."

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.”

On February 23rd, Debra D. Wilson - District Manager, NC Division of Coastal Management – responded to Freeman Beach, LLC and repeated the violation must not occur again writing, "Provided there is continued compliance with DCM’s Stop Work Order, there will be no assessment levied against Freeman Beach, LLC. Each day that any unauthorized development in any Area of Environmental Concern is repeated or continued may constitute a separate violation that is subject to an additional civil penalty assessment up to $10,000.  An injunction or criminal penalty may also be sought to enforce any violation in accordance with N.C.G.S. §113A-126."
On February 21st, Attorney H. Clifton Hester of 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.

An application for appeal  dated March 1st, and the $450 application fee shown as paid on March 12th, was filed with the Town by Attorney H. Clifton Hester representing Freeman Beach, LLC.

Town Purchases Adjacent Property

The Carolina Beach Town Council unanimously voted to purchase 13.17 acres of land at Freeman Park during their Tuesday March 13th, meeting for $500,000. The property address is 0 Freeman Park (Lot 6-B) and is currently owned by Richard Burnette, Jr. of Jacksonville, FL

The Town also recently announced they have initiated a process to, "Obtain Title to Eight “Freeman Park Area” Tracts by Either Voluntary Acquisition or Condemnation." That includes property owned by Freeman Beach, LLC.

"Eminent domain" means the power to divest right, title or interest from the current owner of property and vest it in the possessor - in this case the Town - of the power against the will of the owner upon the payment of just compensation for the right, title or interest divested. The terms "Just compensation" generally mean the fair market value of the land to be taken using the powers of Eminent domain.

The Town has stated a desire to acquire all of the parcels along Freeman Park for open space to serve as a larger park.

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