7/26/20:  QUICK-TAKE CONDEMNATION EXPOUNDED UPON: WITHOUT COUNCILMAN NEAL, THERE IS NO STATUTORY ANALYSIS OR THOUGHTFUL DISCUSSION BY THE COUNCIL. Plus, What Happened to CodeWright’s Revision of the Town Code?

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Homeowners have singled out the beach at Seventh Avenue as being in dire need of nourishment, although there is ample sand in the ecosystem there. The Seventh Avenue coastline area that would be subject to quick-take condemnation is owned by the Southern Shores Civic Assn.

Suppose 10 or a dozen oceanfront property owners do not want to give the Town of Southern Shores voluntary easements to facilitate its 2022 beach nourishment project, Town Councilman Matt Neal posited to Town Attorney Ben Gallop at the Council workshop meeting last Tuesday . . . what would happen?

As you will recall, the Town Council considered at its Tuesday meeting proposed Town Resolution 2020-07-03, which asks the N.C. General Assembly to add Southern Shores to a list of municipalities that may exercise quick-take condemnation over private property for certain public purposes, including “engaging in beach erosion control and flood and hurricane protection works.”

The General Assembly will have to adopt new language in two sections of the state eminent domain chapter in order to enable Southern Shores to use quick take—which is a form of accelerated eminent domain—for beach nourishment purposes, most significantly, N.C. General Statutes sec. 40A-3(b1). (See The Beacon, 7/20/20 for background.)

Ultimately, as we reported earlier, the Town Council unanimously approved the resolution. Mayor Tom Bennett said that he had spoken with N.C. House Delegate Bobby Hanig and someone in N.C. Senator Bob Steinburg’s office about moving the resolution forward to a General Assembly vote.  He also said that he had received a “very clear message” that it would not be brought up until January.

Both Senator Steinburg and Representative Hanig are running for reelection in November. In fact, Mayor Pro Tem Elizabeth Morey’s husband, Tommy Fulcher, is opposing Mr. Hanig; Tess Judge is running against Mr.Steinburg. Come January, Southern Shores’ state legislative representatives may be Mr. Fulcher and Mrs. Judge.

During a wide-ranging discussion that occurred before Mr. Neal’s question about the noncompliant property owners in which the Councilman, Mr. Gallop, and I—as a public citizen, speaking via Zoom—addressed the implications of amending the relevant statutes, Mr. Gallop focused on acquiring easements.

But, we hasten to point out, there is nothing in N.C.G.S. sec.40A-3(b1) that limits a town’s condemnation/forced acquisition of private property for beach nourishment to just easements. The word easement does not appear anywhere in the statute. Certain Town Council members, however, appear to believe otherwise.

Town Manager Cliff Ogburn explained in background materials that the easements the Town would seek to acquire would cover the length of the Southern Shores coastline and be in the beach area that is between the mean high-water mark and the dunes.

“There’s a chance,” Mr. Gallop observed during the meeting, “that you don’t need easements to do beach nourishment” because this area is “subject to public trust and usage rights.” There is no definitive N.C. higher court ruling to this effect, however.

CONDEMNATION OF OCEANFRONT PROPERTY EASEMENTS

Returning to Mr. Neal’s question . . .

“Walk me through the process,” the Councilman asked Mr. Gallop, so he would know, Mr. Neal said, how the “authority we’re seeking” with the proposed quick-take Resolution 2020-07-03 would function in a “real-world” sense.

You gotta love Councilman Neal. Without him on the Council, the Southern Shores public would have no elected representative capable of—and committed to—reading and analyzing complicated North Carolina statutes and asking smart legal questions. If we did not know he was a builder, we would think he is a lawyer—he’s that good. Mr. Gallop does not need to belabor basics with him.

Here is how the Town Attorney answered Mr. Neal’s hypothetical:

“Ummmm, well, I think at some point there will be . . . [he restated Mr. Neal’s hypothetical] at some point, that will come back to the board and the question will be: What do you want to do? You’ll have to either balance . . . [trailed off]

“[Town Council members would ask themselves:] Do we want to modify the project? Do we want to file condemnations? Do we want to do the project anyway and deal with what could come of that? Or do we want to file a different kind of suit to confirm our right to do this [use the private oceanfront property] without condemnations?

“If the ultimate choice is to file condemnations [and here he stopped speaking, picked up some paperwork and said, “I was not completely prepared”] . . . you got to adopt a resolution authorizing the taking of the easements via condemnation. You got to mail notice . . .” and he proceeded to explain the basic legal procedure: giving the private landowner notice of the condemnation, filing a complaint in court with a “deposit for the estimated compensation” for the property taking, and going “to court.”

What Mr. Neal said in response to Mr. Gallop could not be understood because not only was the sound defective in the Zoom videoconference, in which we participated, and in the You Tube videotape, Mr. Neal was speaking through a face covering!

A good five to 10 minutes of discussion in the meeting toward the end are inaudible. Nonetheless, Mr. Gallop can clearly be heard saying the following about an easement obtained by condemnation, rather than granted voluntarily by a landowner:

“It probably would be even more limited than what you would ask for voluntarily.”

Easements obtained by quick-take eminent domain are “very, very narrowed easements,” Mr. Gallop said, and “voluntary easements are more broad.”

It seems both reasonable and natural to ask then: Why would an oceanfront property owner who is opposed to beach nourishment and/or to giving the Town an easement so construction equipment and supplies can cross his/her property do so voluntarily if a court will order a narrower easement and award “just compensation”?

Is the Town paying oceanfront property owners for voluntary easements or just depending on them to be cooperative while it also taxes them through the nose in their “municipal service district,” simply because their properties are closer to the beaches that everyone in town uses and depends upon for a flow of tax revenues?

So far, this Town Council has only said that it will “pursue” beach nourishment. It has not indicated by a public vote which nourishment option recommended by its coastal engineering consultant it will “pursue,” nor has it committed to the type of financing it will use. The memorandum of understanding that the Town is to have with Dare County about the county’s financial contribution has not been finalized–not as far as has been reported publicly.

All of the financing data that the Town and its loan consultants have presented in meeting packets have been described as “for discussion purposes,” nothing more.

Why should an oceanfront property owner—which I am, with co-owner siblings, and no one on the Town Council is—cooperate with a town that keeps the public so much in the dark?

QUICK-TAKE AUTHORITY IS NOT LIMITED TO EASEMENTS

Councilman Neal was the only one of the five Town Council members who showed any knowledge or understanding of the N.C. statutory framework for quick-take eminent domain that the resolution would change. His questions were extensive, and they were ours, as well. He was extremely and impressively well-prepared.

Mr. Neal was satisfied with Mr. Gallop’s often-confusing explanations. Questions remain for us.

During discussion of the resolution, Mayor Bennett, Mayor Pro Tem Morey, and Councilman Leo Holland said nothing substantive. They made no contributions.

Town Councilman Jim Conners expressed a wrongheaded interpretation, after he first took a veiled shot at The Beacon, saying accusingly, “The public is being grossly misled as to what this is all about.”

But it is Mr. Conners who is grossly misinformed.

The intent of Resolution 2020-07-03 may be to give the Town a means by which it can forcibly obtain an easement from oceanfront property owners “who won’t voluntarily give an easement,” as Mr. Conners stated, but that is not what its exclusive effect is.

The statute clearly says that a town may use the quick-take condemnation process to acquire “any property”—not just an easement—for the purpose of “building or improving beach erosion control or flood and hurricane protection works.” The words “building,” “improving,” and “protection works” are not defined.

We wonder if Councilman Conners heard Mr. Gallop’s response to his question about whether a taking by quick-take condemnation would give the town “Fee-simple title” to someone’s private property. In the asking of it, Mr. Conners showed his unfamiliarity with the common real estate term, fee-simple title.

Mr. Gallop succinctly responded: “It’s going to give you [the Town] the authority to condemn a fee-simple title, but that doesn’t mean you have to exercise that authority.”

Get it?

If implemented, the quick-take resolution would give the town much more legal authority than just the right to acquire an easement. It would give it the right to take title and possession to private property, permanently, forever. That the Town professes it will not exercise that authority is beside the point—at least it is for people who know how to think and can envision scenarios when the Town may seek more.

Fortunately, Town Councilman Matt Neal is such a person.

If the other four Council members even remotely followed all that Mr. Gallop said, they have to appreciate that North Carolina’s quick-take eminent domain statutory setup is—to quote the Town Attorney—“really painfully complicated,” “a puzzle,” and “an awful way for the General Assembly to do it.”

Mr. Gallop even admitted that defining exactly what land rights are granted in an easement is difficult, and that lawyers disagree.

The Town Council eventually voted to authorize Mr. Ogburn, Mr. Gallop, and Town staff to proceed with drafting an easement template, in preparation for trying to procure the necessary easements for the 2022 project voluntarily from oceanfront property owners.

A draft of such an easement may be ready as soon as the Aug. 4 Town Council meeting, said Mr. Ogburn, who also intends to prepare a list of frequently asked questions to have available for property owners.

By his remarks Tuesday, the new Town Manager showed he is concerned about informing the public and protecting homeowners’ interests.

WHO PULLED THE RUG OUT?

We were much chagrined to hear Councilman Holland say after the Council had approved the quick-take resolution that he was “gun-shy” and was eager to see the statutory change made by the General Assembly because of what happened when quick take came before the Town Council in  February 2014.

As we explained on 7/20/20, Southern Shores property owners successfully lobbied their state legislators to nullify a unanimous decision by the Town Council in favor of a quick-take resolution that ignored overwhelming public opinion.

Despite hearing nothing but opposition from angry and distressed homeowners, the Town Council—that then included Mr. Holland and Mayor Bennett—approved a resolution that allowed for the possibility that the Town would be able to quick-take fee-simple title to private property in order to “establish access for the public to public trust beaches and appurtenant parking areas,” as well as to engage in “beach erosion control and flood and hurricane protection works.

Significantly, the so-called “beach access” purpose was eliminated from Resolution 2020-07-03.

Last Tuesday, Mr. Holland said about the 2014 experience: “The rug got pulled out from under us, and that’s what I don’t want to see happening again.”

We would like Mr. Holland to tell us exactly WHO “pulled the rug” out from under the Town Council: the constituents whom Council members like himself are elected to represent and whom he ignored in 2014 or the state legislators whom his constituents also elected to represent them and to whom they appealed in an exercise of their rights of representation in our three-level government?

The state legislators listened to the public; the Town Council, at the lowest level, did not.

THE CODEWRIGHT TOWN CODE FIASCO

Councilman Neal was knowledgeable and outstanding throughout Tuesday’s workshop meeting.

After seeking to clarify confusion created by poorly written Town Code language that is not improved by Zoning Text Amendment 20-01—which amends the Code to permit expedited zoning actions and temporary emergency accommodations—Mr. Neal turned to a long-ignored project, saying “I’m going to throw a bomb at Ben real quick.”

In the course of preparing for the hearing on ZTA 20-01, which the Council approved unanimously after Mr. Neal discussed it with Mr. Gallop, Mr. Neal had read some of the zoning ordinance changes proposed by Chad Meadows, owner of CodeWright Planners, LLC, of Durham, for the Town Code update/revision.

“Where are we at with CodeWright?” Mr. Neal asked of a disastrous project that dates to September 2015.

The Beacon can tell Mr. Neal exactly where “we” are: Since Jan. 31, 2019, CodeWright’s big, bloated, user-unfriendly 381-page “draft” of a new Town Code has been in Mr. Gallop’s lap, or his court, if you prefer.

At a public forum on Jan. 31, 2019—one of a number that he held in an exhaustive process—Mr. Meadows advised that Town Attorney Ben Gallop would review the draft in February (2019) and that the Town Planning Board would consider it in March and April, with an eye toward recommending those chapters that Mr. Meadows said the Board is required by North Carolina law to recommend. (See The Beacon, 2/1/19.)

That is where “we” still are 18 months later. Neither the Town Council nor the Town Manager followed up with Mr. Gallop and held him accountable—or, alternatively, gave him some assistance. If Mr. Gallop is too busy to do the job, why not outsource it to another attorney or permit a paralegal to do the work with oversight from Mr. Gallop?

The Beacon has spoken about the neglect of the CodeWright draft twice in public comments—once last year, during Deputy Town Manager/Planning Director Wes Haskett’s turn as interim town manager and again on Feb. 18, 2020.

In comments during a public hearing on Feb. 18 about the qualifications of the new town manager, we said we would like a manager who follows up on Town business, including the CodeWright project and the land-use plan revision.

”I have not put it as the priority that it’s needed to be,” Mr. Gallop said of his review of the CodeWright’s draft Town Code. Considering what a mess the draft is, we understand why he has avoided this work.

Mr. Gallop said it would take him “two non-stop days of work” to review the zoning chapter, but our understanding has always been that the Town Attorney would review the entire revision, all 381 bloated pages.

Being a nice guy, Councilman Neal told Mr. Gallop, “I didn’t mean to put you on the spot,” and “You can have until December, for all I care.”

But, truthfully, Mr.Gallop should be put on the spot. The Town Council represents a local government, a public entity, and needs to ask tough questions when public monies and public accountability are involved. Mr. Meadows has been extremely well-compensated, and many property owners and residents invested a substantial amount of time in participating in the Code revision draft-preparation process.

There was a public survey about various Town Code issues, with a ranking of priorities, for goodness sake!

Mr. Neal only asked the question that every other member of the Town Council should have asked and had satisfactorily answered some time during the past 18 months.

We believe it is time for the Town to cut its losses. We will pick up with this subject later in the week.

Ann G. Sjoerdsma, 7/26/20

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