CAROLINA BEACH — The building that is currently Hurricane Alley’s has changed dramatically over the past few years after being redeveloped by new business owners. With a rooftop patio, the restaurant has offered visitors a unique view of the town’s iconic boardwalk and now, thanks to a conditional use permit, the restaurant and bar will be permitted to expand that elevated area.
The Town Council along with staff and the Planning and Zoning Board were already approving of the plans, as it was decided that the addition would meet all the requirements necessary for a conditional use permit.
But a revelation regarding the installation of the town-maintained sidewalk also played a role in the decision.
Related: Hurricane Alley’s hopes to expand its rooftop seating and to construct a new rooftop bar
The boardwalk is probably the town’s most popular area. With sidewalks along the oceanfront and restaurants, shops, and bars, most people assume that the area is public property and maintained by the town and for the most part, they would be correct.
But it turns out the town actually installed the sidewalk that goes in front of Hurricane Alleys on private property, without the approval of the business owner.
The owners have chosen not to utilize the additional 5 feet of property for dining purposes, though, in theory, they could – which could cause some problems.
No permission, no easement
According to Planning Director Jeremey Hardison, back in 2012 when the owner of the building asked permission to construct the upper level a survey was completed of the property.
Once completed, it became obvious that the town had constructed the sidewalk on private land without an easement. The town did try at that time to obtain a 5-foot easement, however, that did not happen.
Hardison explained that one of the proposed conditions if the Town Council granted approval of the permit to expand, was to get the owners to approve the easement for the sidewalk — however, that condition was not added to the final motion to approve.
At that time [in 2012], Council said, ‘We would like to obtain a 5-foot easement on the sidewalk because this is a major corridor … it was a different property owner in 2012 and staff was unable to execute that agreement,” he said.
No tit-for-tat
The town’s planning staff suggested that the applicant relinquish the rights to the property and allow the town the 5-foot easement. But according to Ned Barnes, an attorney representing the business owners, granting the easement is just not necessary.
“With respect to the 5-foot easement … we had a good bit of discussion at Planning and Zoning and the final consensus of Planning and Zoning was that there was just no need for that easement. Obviously it would be extremely detrimental to him [the property owner] to in any way cut off or block that access for patrons that are coming to his business, and he has no intent of doing so,” he said.
David Cole, the owner of the property, said the whole thing started back in 2011 or 2012 when he first took control of the building from previous owners and wanted to build the upper deck.
According to Cole, there were discussions by the mayor at the time to simply take the property from him (presumably through eminent domain). That did not go over too well with him and it never happened, he said.
Since property on the small island town is at a premium, most owners utilize all the space they can get, but in an effort to not impede the public flow on the sidewalk, Cole has tried to avoid that area.
He has even tried to set up games across the sidewalk for customers to play on the grass to avoid the sidewalk — he was fined for doing so.
“I have no outside space, none, except for that [the sidewalk area], and I haven’t done anything with it. Just for simple little corn hole games or something I tried to do it on the grass and was given citations for that. Everything that I’ve done down there has been pretty much harassed and I have never done anything to stop anybody from using the area,” Cole said.
Cole said this tacit agreement to not utilize the sidewalk has cost him revenue by not putting out tables for customers. But he did challenge the calls for him to agree to the easement or hold up his request to expand the upper deck.
“So to hold up the CUP unless I sign anything over, I don’t get that,” he said.
Carolina Beach Mayor Joe Benson agreed that the property was his Cole’s and that if he chooses down the road to set up outdoor seating for customers on the sidewalk it would be no different than other restaurants doing the same thing on the Boardwalk. Councilwoman Leanne Pierce echoed that sentiment and said that she appreciates the understanding that the restaurant has had with the town and hopes that they will continue to allow pedestrian access.
“I have no plans to do anything, but it is my property,” Cole responded.
Since it appeared the town was at an impasse with Cole regarding the easement talks, it was suggested that the town perhaps move the sidewalk east — something that staff will look into. However, with the location of the sidewalk being so close to the beach, it could present some challenges with obtaining Coastal Area Management Act (CAMA) permits to do so.
Ultimately, the permit to expand the rooftop was approved unanimously and no easement agreement was reached.
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