Sunset Beach Taxpayers Association
Legal Challenges to the Sunset Beach West Development
The proposed Sunset Beach West Development is still "out there." The fight to prevent this development is not over yet.
SBTA has been active in two of the three challenges opposing the development called Sunset Beach West -- de-annexation and the CAMA Permit challenge. The three challenges are listed below just above a timeline that contains links to more information about each step.
The support that SBTA has received from the North Carolina Coastal Federation and the Southern Environmental Law Center is heartening and substantial. We could not have better partners in the opposition to this development. Please consider supporting these outstanding organizations.
Three Challenges to Sunset Beach West Development
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De-annexation Bill SB 875 by Senator Rabon - NC Legislature
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Legal Challenge by the Town Asserting Ownership of Development Property
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Challenge to the CAMA permit by SBTA and the North Carolina Coastal Federation (NCCF) with the Southern Environmental Law Center (SELC) as Attorneys
Timeline
You may want to read up from the bottom of the timeline.
November 21, 2017: The Town signed a Memorandum of Agreement (MOA) with the defendants in the suit in which the Town asserts ownership of part of the proposed Sunset Beach West property. The Memorandum tentatively settles the fate of this property.
Basically, the agreement says that provided the State buys the property
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the Town and the defendants both relinquish ownership claims to the property,
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the defendants will be paid for the property, and
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best of all, the property will be preserved in its current state and will never be developed.
If you want to read the MOA, go to the "Sunset West - Saved?" page.
November 15, 2017: The ownership suit is currently scheduled for December. The SBTA/NCCF/SELC challenge to the CAMA permit for Sunset Beach West will not proceed unless the Town loses the ownership suit.
March 6, 2017: Town Council made more deals with developers. De-annexation is no longer an issue. Now we're fighting on only two fronts - land ownership and the CAMA permit.
Coming soon: What happened between August, 2016 and March, 2017?
August 11, 2016: SELC files the challenge to the CAMA permit for Sunset West.
July 25, 2016: The Division of Coastal Management grants SELC, NCCF, and SBTA the requested hearing on the right to challenge the CAMA permit.
July 11, 2016: The Southern Environmental Law Center, on behalf of SBTA and North Carolina Coastal Federation, asks the Division of Coastal Management for a hearing to establish the right to challenge the CAMA permit issued for Sunset Beach West.
June 29, 2016: SB 875 miraculously died in the Finance Committee of the House. Representative Iler threatened to refile in January, 2017 if developers' concerns are not addressed.
June 21, 2016 Town Council Meeting: In addition to authorizing the ownership lawsuit described below, the Council approved a "compromise" with Palm Cove that allows swimming pools as big as 20'x40' in the development. The rationale for the "compromise" is that as a result, Palm Cove and Sunset Creek Commons will withdraw from SB875, and Representative Iler will table it.
June 21, 2016: The Town of Sunset Beach authorizes a lawsuit to assert ownership of a part of the Sunset West property
June 20, 2016 Sunset West received approval of a CAMA permit to proceed with the Sunset West development. You can read the CAMA permit here. The actual permit is long but worth reading to learn about this kind of process.
May 11, 2016: Senator Rabon files SB 875 which would, if passed in the Senate and the House, de-annex Palm Cove, Sunset West, and Sunset Commons and place those areas under the County's jurisdiction.
The postings in the section below are arranged in three parts:
Each part begins with the latest update. To read the earliest posting first, scroll to the bottom of the part. Then scroll up to read subsequent postings.
CAMA STUFF
The two remaining challenges are the question of legal ownership and the potential challenge to the CAMA permit. The question of legal ownership is preeminent.
July 25, 2016 - September 29, 2016
NCCF and SBTA were granted a hearing and filed a challenge to the CAMA permit through SELC, acting as our attorney.
The white page below is a copy of the 9/29/2016 Blog post that describes where the challenge to the Sunset West CAMA permit effort stands.
Other blog posts previous to 9/29/2016
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announce the granting of the right to challenge the CAMA permit (July 25th) and
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the actual filing of the challenge (August 11th).
After that, SELC on our behalf agreed to a stay of appeal because of the ongoing litigation in which the Town of Sunset Beach claims ownership of part of the Sunset West property.
7/21/2016
The Coastal Review Online below summarizes where we were on 7/21/2016 with respect to the request for a hearing on the CAMA permit.
Update July 11, 2016
Southern Environmental Law Center, on behalf of SBTA and North Carolina Coastal Federation, asks the Division of Coastal Management for a hearing to challenge the CAMA permit issued for Sunset Beach West: Press Release below.
From: Kathleen Sullivan [mailto:ksullivan@selcnc.org]
Sent: Monday, July 11, 2016 10:57 AM
To: Kathleen Sullivan
Subject: Local Groups Move to Protect Sunset Beach and Bird Island
Press Release from the Southern Environmental Law Center
For Immediate Release: July 11, 2016
Contact: Kathleen Sullivan, 919-945-7106 or ksullivan@selcnc.org
Local Groups Move to Protect Sunset Beach and Bird Island
CHAPEL HILL, N.C.--On behalf of the Sunset Beach Taxpayers Association and North Carolina Coastal Federation, the Southern Environmental Law Center filed a request for a hearing with the N.C. Division of Coastal Management as the required first step in challenging the state permit for a private developer to bulldoze 15 acres of protective dunes along the Sunset Beach, N.C., oceanfront to allow for building 21 houses. The request was filed Friday, July 8.
“This permit threatens what makes Sunset Beach unique,” said Geoff Gisler, senior attorney, Southern Environmental Law Center. “It would not only allow the destruction of dunes that buffer the community from storms and hurricanes, it also jeopardizes the integrity of Bird Island—which draws thousands of people a year to the island’s beaches.”
The developer failed to provide proof of ownership of the oceanfront land it seeks to develop as required for a permit under state law, according to the documents filed. The town of Sunset Beach is also pursuing claims to the oceanfront land in a separate state court filing.
"More than a decade ago, the Federation joined with the people of Sunset Beach and the state to protect the Bird Island Reserve," said Mike Giles, North Carolina Coastal Federation's Coastal Advocate in Wrightsville Beach. "The environmental effect of this permit not only threatens to undermine that effort, the developer has not even demonstrated that it owns the property."
Another violation outlined in today’s filings is that the state’s permit illegally allows the developer to bulldoze 15 acres of protective dunes at Sunset Beach. Dunes serve as critical habitat for wildlife and vital protection to beach communities like Sunset Beach faced with the threats of hurricanes and storms. The development would also destroy an area enjoyed by residents and visitors who fish, bird watch and enjoy the sunsets at the same location.
“Over the years, science has demonstrated the importance of sand dunes and marshes in protecting property from flooding due to tidal water surges from strong storms and hurricanes,” said Richard Hilderman, Ph.D, vice president of the Sunset Beach Taxpayers Association. “Marshes are also important because most of the seafood we eat spends at least part of its life cycle in the marshes. This development would significantly degrade the dunes and marshes we depend on.”
Public sewer utilities cannot be extended due to the hazardous location where the permit allows the developer to build. The developer’s current plan includes septic systems, which are prohibited under the Sunset Beach land use plan due to the accompanying groundwater pollution and threat of flooding.
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The Southern Environmental Law Center is a regional nonprofit using the power of the law to protect the health and environment of the Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC's team of more than 60 legal and policy experts represent more than 100 partner groups on issues of climate change and energy, air and water quality, forests, the coast and wetlands, transportation, and land use.
www.SouthernEnvironment.org
SBTA: A few typos have been corrected.
Town Claims Ownership of Sunset West Land
This is the predominant legal or administrative challenge.
Update: 6/23/2016
Something new almost every day
Coastal Review Online:
About the town's decision to go to court.
Coastal Review Online is published by the NC Coastal Federation.
View the original posting: http://www.coastalreview.org/2016/06/15064/
Sunset Beach West is a proposed 21-lot development for a roughly 25-acre tract on the oceanfront at the west end of Sunset Beach, accessed by a private wooden bridge to be built by the developer at the end of Main Street. Plat: Town of Sunset Beach
SUNSET BEACH – The Sunset Beach Town Council voted Tuesday to file a lawsuit against the company planning to build an upscale development on a portion of land that the town says it owns.
The board made the unanimous decision one day after the North Carolina Division of Coastal Management granted a permit for a major development to Sunset Beach West LLC. The company wants to build 21 homes in a federally designated high risk area.
The developers received a permit from the Army Corps of Engineers on June 15 and now have all the state and federal permits needed to move ahead with the controversial project. They will still need local permits.
Town officials say the town owns a portion of nearly 25 acres of pristine oceanfront land that stretches between the last developed lots on the west end of Sunset Beach and the Bird Island Reserve. Developer Sammy Varnam contends his company owns all of the land.
Town Attorney Grady Richardson Jr. said Tuesday that he will file a lawsuit by week’s end in Brunswick County Superior Court.
“We’re going to move forward with a lawsuit seeking a judgment that upholds the town’s ownership of the land in question,” he said.
The Coastal Area Management Act, or CAMA, major permit was issued Monday, five days after the Army Corps of Engineers granted Varnam federal permits to build a bridge and docking facility on the property. The Coast Guard in late May determined Varnam does not have to obtain a formal Coast Guard permit to build the bridge.
The CAMA permit and federal permits outline conditions by which the developer must abide when building a series of structures on the property, including a bulkhead, kayak and docking facility, boardwalk and gazebo, dune walkovers and a vehicular bridge that would link the subdivision to the island’s main thoroughfare.
Ron Watts
Condition 39 of the CAMA major permit states that if a court determines any portion of the property is owned by anyone other than the applicant, the permit will be null and void “to the area the court determines is not owned by the permittee.”
“The town continues to believe we still own it,” Mayor Ron Watts said.
Varnam disagrees. “I guess the ball’s in their court now,” he said. “If they want to waste taxpayers’ money and pursue a lawsuit that they can’t win then that’s their choice. If they decide to go down that road then we are prepared. Our hope all along has been to work together with the town. We hope in the future the council feels the same towards our company. We own the property and we have legal rights that we will defend.”
Officials with the state Division of Coastal Management, which issued the CAMA permit, have maintained that the agency is not responsible for determining land ownership.
Doug Huggett, the agency’s major permit manager, did not respond to a call seeking comment, but Michele Walker, a spokeswoman for the North Carolina Department of Environmental Quality, stated in an email that, “it’s not the Division of Coastal Management’s job to determine property ownership.”
Proof of ownership was provided by way of a deed to the property, she wrote. “Any dispute about the validity of that deed is not up to us to decide, but must be decided by a court of law,” Walker said. “Beyond that, since we are anticipating appeals to this permit, I don’t think I want to comment further.”
According to state statute, a CAMA major permit application must include a copy of the deed “or other instrument” claiming title to the property.
Developer Sammy Varnam
speaks during a legislative hearing in Raleigh about a bill to de-annex his land. Photo: Kirk Ross
In April 2014 Varnam submitted a general warranty deed, a document that was prepared without an opinion of title, according to Geoff Gisler, a senior attorney with the Southern Environmental Law Center.
“I think it’s somewhat shocking that the state would issue a permit when the only documents before them do not meet the statutory requirements,” Gisler said. “You would think that the permitting agencies would satisfy that basic requirement that that entity actually own the property. The state can’t shirk their responsibilities. It is a remarkable decision and we’ll be seeking records and trying to understand what led the state to reach that decision.”
Mike Giles, a coastal advocate with the North Carolina Coastal Federation, said the state permit abdicates DCM’s responsibility.
“It states in the CAMA regulations that the applicant has to have legal right to the property,” Giles said. “How can you issue a permit to develop a piece of property when the ownership is in question? If there’s a question they shouldn’t be issuing the permit. They’re passing it off to someone else. That someone else is most likely citizens that are going to have to challenge this permit.”
An appeal must be filed within 20 days from the time a permit is issued. “I feel pretty safe to say that an appeal will be filed,” Giles said.
Town officials and the law center initially raised the question last fall of whether the limited liability company owns all of the property.
The debate goes back to 1987, when Edward Mannon “Ed” Gore Sr., a well-known Sunset Beach developer and businessman, deeded a portion of the land to the town on condition the town use it to build a public parking lot within three years. The parking lot was never built.
Mike Giles
In 2004, four years after Gore’s death, the town council passed a resolution declaring that a parking lot would be too expensive because the town would have to either buy the last developed, oceanfront lot at the west end of West Main Street or build a bridge to access the land on which a parking lot could be paved. The town board decided then to turn the deed back over to the Gore family.
The town, however, never prepared the deed and the family did not request it. Meanwhile, the Gores continued to pay taxes on the land.
The town council earlier this year rescinded the 2004 vote.
The portion of land in question is where Varnam needs to build a bridge across Bull Creek to connect the development to the main road on the island.
Asked whether he will begin construction on the bridge and other amenities on the property, he said, “We are taking it day by day. Our plans are to move forward one step at a time.”
Richardson said he will file an injunction, if necessary, to stop building.
“If it’s necessary to seek an injunction to protect the town’s interest in this land from being disturbed I’m prepared to do so,” he said. “My mission is to maintain the status quo of the parties, which means no disturbing of the land until there is determination of the titleship of this property. There’s been no permits issued by the town of Sunset Beach approving this development. That’s key.”
In addition to the CAMA major and federal permits, Varnam will have to obtain permits from the town and county. Varnam said he has not yet applied for those permits.
Geoff Gisler
If a judge rules in the town’s favor, the state and federal permits would be invalid, Richardson said.
Generally speaking, he said, a lawsuit in superior court can take up to a year before a judgment is rendered. If the losing party files an appeal in the North Carolina Court of Appeals, that could take another 12 to 15 months.
Varnam has enlisted the support of Sen. Bill Rabon, R-Brunswick, who, on May 11, filed Senate Bill 875. The bill calls for the removal of three separate parcels from Sunset Beach’s town limits, including Sunset Beach West.
The de-annexation bill is on hold in the House’s Rules, Calendar and Operations committee.
Watts said he hopes that’s where it stays. Earlier this month the town hired a lobbyist to fight the proposed bill.
The proposed Sunset Beach West development has been contentious from the start. It would be built on land that was once Mad Inlet, a shallow channel that opened and closed over the centuries, separating the west end of Sunset Beach from what is now the Bird Island Reserve. It dried up in the mid-1990s.
In February 2014 the North Carolina Coastal Resources Commission removed it from the inlet hazard area designation.
Varnam has said he will provide private utilities to the development, a decision that came after Brunswick County commissioners reversed an offer to allow him to tap into the county’s public utilities for water and sewer service. County commissioners backed away from their offer after the county received a letter from the U.S. Fish and Wildlife Service warning that if utilities were provided to the land, which is in a federally designated Coastal Barrier Resources Act or CBRA (pronounced “cobra”) zone, the county could be cut off from future federal funding.
Building is allowed in CBRA zones, but, in an effort to discourage development in these areas, the government restricts federal subsidies, including flood insurance and Federal Emergency Management Agency aid.
De-annexation SB875: Summary of Actions the Legislature Took and Our Responses
The two remaining challenges are the question of legal ownership and the potential challenge to the CAMA permit.
After May 11, 2016 - Actions Taken:
SBTA and citizens wrote to NC legislators, General Assembly (GA) committee chairmen, and committee members. The Town also wrote the GA opposing the bill. Jan Harris organized a petition drive that resulted in over 7000 signatures opposing the de-annexation.
The bill passed committees in the Senate and then passed the full Senate. In the House, the bill passed the State and Local Government Committee and moved to the Finance Committee. Miraculously, the bill died on 6/29/2016 in that committee near the end of the legislative session.
Those of you who wrote letters and signed petitions can claim credit for the progress made in opposing this bill. The public (you!) spoke, and some legislators listened. Committee members asked questions about the number of people who had written and signed petitions. Take a bow, folks!
Caveat: Note that last June, the bill could have been reintroduced in January, so Jan hung onto the petitions. She will probably hold onto them for a long time.
May 11, 2016:
Mayor Ron Watts announced May 11 that Senator Rabon had called him to announce that he had filed a bill in the Senate to de-annex three parts of Sunset Beach: Sunset West, Palm Cove, and Sunset Creek Commons.
If the bill had passed both the House and the Senate, jurisdiction of these three developments or potential developments would have been transferred to the County. Future tax revenues would be lost. Worse than that, the Town would no longer have had any control over these properties. The loss of control over permits alone could result in a high rise hotel at one end of the island. Developers would be able to ignore ordinances related to destruction of sand dunes. The list goes on.
If you like to read legislative and deed jargon, go to the bill itself.
March 6th, 2017: Town Council voted to enter into agreements with the developers of Ocean Club Estates, et al. and the developers of Sunset Beach West. Under the agreements, the Council voted to approve the rezoning of a number of lots in Ocean Club Estates (aka Riverside Drive) that were previously partially zoned CR‐1 to BR‐2. The change is consistent with the previous plans and with the CAMA Land Use Plan. In return the developers agreed 1)not to pursue a high density development (known as Sunset Crest) on the vacant lots on the west side of Sunset Boulevard South for which they had vested rights and 2)not to seek de-annexation of Sunset Beach West. The Town will also allow some changes to the Sunset Beach West preliminary plat plan requested by the developers to proceed. The Town attorney assured that the agreements have no effect on pending litigation and cannot be used against the town in any proceedings. The net effect is that de‐annexation is no longer an issue.
Ray Puknys reported this in the March, 2017 SBTA Newsletter (slightly edited here)