7/20/20:  TOWN COUNCIL MEETING TOMORROW: QUICK-TAKE SEIZURE OF OCEANFRONT PROPERTY IS BACK. Proposed Resolution Seeks Option to Resort to Court for Easements Needed For Beach Nourishment.

Hillcrestbeach
A view north from the Hillcrest Beach clearly shows the area of the beach between the high water mark and the dunes for which the Town would seek easements along the shoreline.

“Quick take” is back before the Town Council, in a slightly different form than it was presented to Southern Shores property owners more than six years ago—when they successfully lobbied their state legislators to nullify a unanimous decision by the Town Council in favor of it that ignored public opinion.

Unlike the quick-take resolution that the Town Council approved unanimously on Feb. 4, 2014—despite hearing nothing but opposition from angry and distressed homeowners—the newly proposed resolution eliminates the possibility that the Town will be able to quick-take/seize private property in order to “establish access for the public to public trust beaches and appurtenant parking areas.”

The possibility that the Town would use quick-take condemnation—which is an expedited eminent domain—to confiscate private property near beach accesses and build parking lots on them incited an outcry in 2014 from Southern Shores homeowners.

People also were not keen on supporting the Town’s ability to quick-take private property for the purpose of doing beach nourishment when the Town had never contemplated, nor done any beach studies suggesting the need for, a beach nourishment project.

Newly elected Mayor Tom Bennett initiated the 2014 resolution, upon which the new resolution, known as Resolution 2020-07-03, is based, and current Councilman Leo Holland was among the five Council members who approved it.

Times have changed, even though two-fifths of the Council membership has not. At its June 16 meeting, the current Town Council approved “pursuing” beach nourishment, although it has yet to define the project’s scope.

Resolution 2020-07-03, which the Town Council will consider at its workshop meeting tomorrow at 9 a.m., seeks to guarantee that the Town will be able to secure easements to private oceanfront properties that are necessary for it to do the 2022 beach-nourishment project, according to Town Manager Cliff Ogburn.

As Mr. Ogburn explained to The Beacon, the easements would cover the length of the Southern Shores coastline, north to south, and be in the beach area that is between the mean high-water mark and the dunes.

For a diagram of the targeted easement area, as well as the text of the resolution and a summary explanation by Mr. Ogburn, see pages 25 to 28 of tomorrow’s meeting packet: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2020-07-21.pdf

(The meeting will take place in the Pitts Center and also be available via Zoom.)

Just like the 2014 resolution, Resolution 2020-07-03 asks the N.C. General Assembly to add Southern Shores to a statutory list of municipalities that may exercise quick-take condemnation over private property for enumerated public purposes, one of which is “engaging in beach erosion control and flood and hurricane protection works.”

That list currently includes Dare County and the beach towns of Duck, Kitty Hawk, Kill Devil Hills, and Nags Head. Among them, Duck has excepted “establishing the access for the public to public trust beaches and appurtenant parking areas” as a public purpose for which it may employ quick-take condemnation. Southern Shores would do the same.

Ideally, Southern Shores oceanfront property owners would voluntarily grant temporary easements to the Town so that contractors can haul or store the necessary construction equipment and supplies across and on their property. The Town would not have to resort to the quick-take condemnation process to gain use of the privately owned oceanfront it needs to use.

But in the event that oceanfront property owners do not permit access and use, the Town would like the option of obtaining easements “for as long as needed,” Mr. Ogburn said, through the courts.

QUICK TAKE EXPOUNDED UPON 

We confess that we were taken aback when we read Resolution 2020-07-03 and realized it was about quick take, so we reached out to Mr. Ogburn with our concerns.

Our new Town Manager was very responsive and generous with his time, for which we are grateful. He expressed a desire to be open, honest, and transparent in all Town matters.

“Quick take” is an accelerated eminent domain process that significantly differs from what is considered “standard” eminent domain in that the landowner has no right to a hearing.

Through quick-take eminent domain, the public condemnor—in this case, the Town of Southern Shores—automatically takes title and the right to immediate possession of private property it seeks to “take” as soon as it files a complaint in the local superior court and pays a deposit.

The town only has to give the property owner 30 days’ notice of its intent to file the complaint—also called a declaration of taking. That’s it.

The property owner is not entitled to the 120-day process outlined in N.C. law for standard eminent domain, which includes the right to a hearing. The only recourse a property owner subject to a quick-take complaint has is to seek an injunction, and its effect achieves little more than delay.

Although the private property owner is entitled to “just compensation” for the property seized, in either quick-take or standard eminent domain, the condemning authority’s notice need not include an estimate of how much compensation is due. In fact, when the taking happens during beach nourishment projects, authorities typically estimate zero compensation because they claim that the owners will benefit from the improvements.

The current quick-take option is necessary, according to Mr. Ogburn, in order for Southern Shores to obtain a permit under the N.C. Coastal Area Management Act for its 2022 beach nourishment project.

“It’s actually a condition of the CAMA permit,” he told us, “that we have permission to be on private property.”

Quick-take eminent domain is a matter of N.C. statutory law. It is elaborated upon in the North Carolina General Statutes—quite poorly, in our opinion.

Two subsections, relevant to quick take, seem particularly designed to confuse. We will only cite these subsections here, for the benefit of those inclined to do legal research—secs. 40A-3(b) and 40A-3(b1)—and say that, as we read these subsections in conjunction with another statute that describes quick-take right of possession, there are five public-use “purposes” for which quick-take condemnation may be employed.

To distinguish quick-take from standard eminent domain, you must read NCGS 40A-3(b1) in conjunction with NCGS 40A-42(a)(2).

Although the N.C. quick-take statute appears on its face to allow the Town to seize property permanently, Mr. Ogburn assured us that the Town would not seek to quick-take more than a temporary easement, and only then if it has to. He sent us a link to an easement form deed used by Nags Head during its beach nourishment. See:

http://72.15.246.185/darencnw/application.asp?cmd=image_link&image_link_book=1860&image_link_page=84&image_link_booktype=Deed&tif2pdf=true

Mr. Ogburn said this deed is similar to what the other beach towns and Dare County have used, and it “describes what rights the Town of Southern Shores needs to acquire for the nourishment project.”

The term of the easement used by the Town of Nags Head is a little more than 10 years. Rather than reprint the “terms, uses, conditions and restrictions” of the easement, we suggest that Southern Shores oceanfront property owners and other interested parties read the Nags Head deed.

Being a skeptical and, yes, suspicious former lawyer inclined toward “what-ifs,” we are never going to feel comfortable about asking the state legislature to extend quick-take condemnation to Southern Shores for all of the purposes mentioned in the N.C. general statutes, except for establishing “access for the public to public trust beaches and appurtenant parking areas.”

When we read the applicable N.C. general statutes in context, we can envision problems that are not readily apparent on the face of Resolution 2020-07-03 and that are difficult to discern unless you read and understand all of the relevant statutes. We are concerned about both unintended consequences and future abuse.

We think quick take is an undermining of due process, no matter what public use purpose a town invokes. All eminent domain takings should go through the standard 120-day condemnation process.

But we are not taking a position for or against the proposed resolution. It is too complicated, frankly, and we do not expect the Town Council to reject it.

We defer to Southern Shores property owners on this. The N.C. General Assembly, which must pass language specifically extending quick take to Southern Shores, reconvenes for a short session Sept. 2. If property owners object, they may call their representatives.

THE ROLE OF THE SSCA

When we first read Mr. Ogburn’s summary in the meeting packet, we did not understand that the Town seeks an easement from every oceanfront property owner. We thought all that was necessary was sufficient access to the beach, and we were confident that the Southern Shores Civic Assn., which owns a large tract of private oceanfront property, as well as the 33 beach accesses, would cooperate with the Town to provide it.

The SSCA owns all of the private oceanfront west of the public-trust beach from just north of the Hickory Trail beach access to the Duck-Southern Shores line, including the wide-open Hillcrest Beach.

SSCA President Rod McCaughey informed us that the SSCA already makes three beach locations available to the Town for emergency-vehicle access: the Hillcrest Beach and the accesses at 166A Ocean Blvd./Trout Run and 24A Ocean Blvd. He expressed a willingness to provide more access for the beach nourishment project, if needed.

Because of Southern Shores’ history and development, which gave rise to the formation and empowerment of the SSCA, Southern Shores is not like any other beach town in Dare County.

In arguing against the 2014 quick-take resolution, homeowners repeatedly pointed out that the SSCA and individual oceanfront property owners would gladly accommodate the Town’s request for temporary easements. There was no need to resort to quick take, which, because it is legal condemnation, is inherently hostile.

We asked Mr. Ogburn in an email: “Would you consider approaching oceanfront property owners and securing their permission for easements first without asking the General Assembly to change the statutory language?”

He replied: “I think the reason for moving forward now on the legislation is to make sure we give ourselves enough time to get the easements ahead of the project.  . . . If Council doesn’t seek the legislative approval now and waits until January, it could start to push the calendar.  . . . I guess it depends on how confident the Council is that there is time to attempt to get voluntary easements and still go through the process of being able to condemn them.”

We thank Mr. Ogburn for his courtesy and his candor in responding to us.

We hope the Town Council will give the timing and the procurement of voluntary easements some serious thought before it summarily approves quick take.

ALSO ON THE AGENDA TOMORROW . . . is a public hearing on Zoning Text Amendment 20-01, which is a response by the Town to shut-down conditions created by the coronavirus pandemic. It gives the Town the ability to act on zoning matters in an expedited fashion.

The ZTA eliminates the requirement that 30 days must elapse between the filing of a zoning proposal and the Planning Board’s consideration of it and between the Planning Board’s action on a proposal and submission of its recommendation to the Town Council (an amendment of Town Code sec. 36-416). It also authorizes the creation of a new Town Code section on “temporary emergency zoning accommodations.” (Town Code sec. 36-177).

The need for temporary emergency zoning accommodations arose in the context of creating outdoor seating in public parking lots for restaurant customers, so as to support struggling restaurant owners and the “economic prosperity of the community.”

The Planning Board unanimously recommended ZTA 20-01.

You may read the ZTA here: https://www.southernshores-nc.gov/public-hearing-zta-20-01-temporary-emergency-zoning-accommodations/zta-20-01-emergencyaccommodations-2/

***

As noted above, you may attend the Tuesday’s Town Council meeting in person, if you observe infection-control measures, or you may join via Zoom. The meeting ID is 945 3998 0368; the password is 806770.

You may access the agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2020-07-21.pdf

If you would like to submit a public comment to be read aloud at the meeting, email Town Clerk Sheila Kane at skane@southernshores-nc.gov. Be sure to note in your subject line, “Public comment for July 21 Town Council meeting.”

You also may speak during the public-comment period via Zoom if you press the chat button and ask Ms. Kane to reserve time for you. The public-comment period is scheduled before all other business. Comments will not be accepted later in the meeting.

Ann G. Sjoerdsma, 7/20/20

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