WILMINGTON — It has been two weeks since city officials were made aware that an agreement requiring the construction of public bathrooms had apparently passed its deadline. The developer has since admitted missing the deadline, but city officials have not taken action, saying, instead, it will take weeks to get a full understanding of their contract with Northern Riverfront Marina and Hotel.
Why are public bathrooms required?
The agreement between the Northern Riverfront Marina and Hotel (NRMH) and the City of Wilmington dates back to 2009. As part of that development deal, the city agreed to reimburse NRMH for as much as $5 million for construction of a northern extension of the Riverwalk, which was part of the developer’s master plan for the northern riverfront area.
Then, in 2013, developer Chuck Schoninger approached the city with a request: move the Riverwalk from along the water’s edge – where it had initially been planned in 2009 – and re-position it behind two planned restaurants, BlackFinn and Vida. The city would thus not reimburse Schoninger for the walkway around the restaurants, but instead reimburse the less costly path behind the restaurants.
The city agreed to Schoninger’s plan, with several caveats. Those included the sale of land for the city’s planned North Riverfront Park, and also the construction of permanent public bathrooms, something Deputy City Manager Tony Caudle called “a long term (City) Council priority.”
While the city would not pay directly for what is now The Shell and the private walkway around the restaurants, it had still invested heavily in the overall development project — enough that City Councilman Kevin O’Grady said he felt Schoninger “owed us public bathrooms” as part of the agreement.
“When (Schoninger) came to us, and asked us to move the Riverwalk, I said, ‘this looks like it will be very good for you, what will the city get?’ And he said, ‘what do you want?’ I told him, ‘I want public bathrooms.'” O’Grady said.
In April 2017, with construction of permanent facilities lagging years behind, Schoninger requested that the city allow him to open his restaurants in time for the Wells Fargo Championship. The city agreed, giving Schoninger 90 days to set up temporary facilities. According to the agreement, the penalty for failure to set up bathrooms was $250,000, which NRHM would pay to the city; the city would then build temporary facilities.
That 90 days came and went on July 17, with no public facilities built. NRHM has not paid the city $250,000. The city has not constructed public bathrooms.
So what happened?
Schoninger said the delay stems from New Hanover County’s permitting process. Schoninger, who has purchased two trailer-style temporary bathrooms, has yet to install them permanently on the site adjacent to Blackfinn and Avida as required by the city. According to Schoninger, NRHM is waiting for county approval of the bathrooms.
But, New Hanover County said they are still waiting for Schoninger to get the bathrooms inspected.
Jessica Loeper, speaking on behalf of the county’s Building Safety Department, said even temporary structures must meet certain requirements, including modifications for high-wind situations and handicap accessibility.
“The developer was informed by the NHC Building Safety of this requirement, and was given the names of third-party inspectors,” Loeper said. “So, it is the responsibility of the developer to contact a third-party inspector for an inspection. Once the county receives information that the third-party inspector has inspected and approved the modular structure, the county will be able to issue approvals contingent upon the developers installing ‘foundation tie-downs’ for resisting high wind uplifts, and the ramp that is required by code for accessibility.”
In a conversation on Tuesday, Aug. 15, Schoninger said NRHM was “doing its absolute best” to comply with the city’s requirements and had every intention of building public bathrooms, but admitted at the time the facilities were “about 10 days past the deadline” — according to the April agreement with the city, the bathrooms are now one month and 11 days overdue.
Contract Confusion
It is city officials – not Schoninger – who appear uncertain about whether or not the deadline has passed.
When first questioned about the public bathroom deadline, city officials initially seemed unaware the deadline had actually passed and claimed NRMH was “in compliance.” But, on Aug. 14, the matter was turned over to office of the city attorney, according to Dylan Lee, spokesman for the Wilmington.
According to Caudle, the City Attorney’s Office was brought in because the April 18 agreement with NRMH is subject to interpretation.
“The City Attorney’s Office is evaluating the agreement in order to best advise us of remedies that may be available to the City should we believe that Mr. Schoninger is in violation of his agreement. Once they complete that review, appropriate action may be taken. We anticipate their review to be complete in the coming weeks,” Caudle said.
Councilman O’Grady said the issue is complicated by whether or not the measures already taken by Schoninger constitute part of the “install” process mandated in the agreement. O’Grady echoed Caudle in saying the city would have to assess its legal standing, but he suggested the city’s goal was not to extract the $250,000 penalty from NRHM — or, by extension, to build temporary bathrooms instead of having NRHM do it.
“The point of having a penalty is not to get the penalty, the goal is to induce the desired behavior — to get bathrooms built,” O’Grady said.
O’Grady said he expects the City Council will get a briefing on the issue at its next meeting, Sept. 5, though it is unclear what action, if any, the council will take at that time.
Send comments and tips to Benjamin Schachtman at ben@localvoicemedia.com, @pcdben on Twitter, and (910) 538-2001.
