Tuesday, January 18, 2022

The latest in Wrightsville Beach’s pattern of using zoning against unwanted businesses

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The former Scotchman property on West Salisbury Street in Wrightsville Beach (Port City Daily/Mark Darrough)

WRIGHTSVILLE BEACH — A pattern is emerging in the Town of Wrightsville Beach. 

It typically begins with a business that residents and/or elected leaders have been vocally opposed to; these range from jet ski rentals to a long-standing bar with history in the community, to the latest — a proposed nine-slip commercial dock attached to a restaurant.

Next comes the citations or notifications that the business is not in zoning compliance and needs a certificate of zoning compliance or a conditional use permit to operate the intended business. 

Then, the business owner appeals the decision of the town to the Board of Adjustment, a process that costs at least $500 — that is just the appeal fee and goes to to the town. It does not include the cost of hiring an attorney which, in these cases, property and business owners have had to do. 

Typically, after hours of discussion, the board sides with the previous decision. 

The next step for the business owner is to take his or her appeal to court. 

The entire process is cumbersome and expensive — and it is happening repeatedly. 

So far Port City Daily has found at least three instances of this pattern — and that is only in the past three years. 

In the latest lawsuit, WB Watermen LLC., a company started by Reggie Barnes of Eastern Skateboard Supply, is petitioning the courts for a writ of certiorari. This type of lawsuit allows a plaintiff to ask a higher court to review the decision of a lower judicial body to make sure it did not err in its decision. 

In the case of WB Watermen LLC. vs Town of Wrightsville Beach, the Board of Adjustment upheld the decision that WB Watermen was appealing. 

So what was being appealed?

Background

The property at 100 W. Salisbury Street in Wrightsville Beach has sat vacant for years. It is the former home to a Scotchman store and sits just before drivers cross the Intracoastal Waterway and head to the beach. There have been plans for the property in the past but ultimately, nothing has come to fruition. 

The latest plan for the property by WB Watermen was for a small restaurant and two private piers extending from the back of the property. 

After facing criticism from residents and the town itself the business pulled its application for a conditional use permit for the restaurant. Residents spoke out against what they perceived to be a ‘bar’ that would bring noise issues, litter, and more to the mostly residential area. 

But it was not the restaurant’s application that was in question — instead, it was the installation of the private docks. 

After withdrawing the conditional use permit application in April of 2018, the property owners then submitted a zoning compliance application to install a private pier with nine boat slips and a private dock. 

The owners were denied the zoning compliance application after Tony Wilson, Planning and Parks Director, determined “that the request for 2 commercial piers and parking, as submitted, is not a permitted use and that the project constitutes a marina as defined Exhibit A — Definitions of the Town’s UDO.” 

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Despite telling the Planning Board the docks were permitted without town approval, Planning and Parks Director Tony Wilson later testified at a quasi-judicial hearing claiming the opposite. (Port City Daily/File)

Interestingly though, during a planning commission meeting for the request, Wilson said the applicants did not need the town’s permission for the docks. 

The Board of Adjustment

When the property owners took their complaint to the Board of Adjustment, attorneys made it clear that the docks were not in any way related to the previous request for a conditional use permit. 

This was simply a request to construct a commercial pier, as granted by right, by the town’s own Unified Development Ordinance. 

But a transcript of the Board of Adjustment meeting shows attorney Brian Edes questioning Wilson on the actual zoning districts the property is located in. 

Through the questioning, Edes leads Wilson to the argument that technically, a part of the pier would be located in a C-3 district and commercial piers are not permitted either by right or through conditional use. 

WB Watermen LLC. appealed the decision to the town’s Board of Adjustment where they upheld the decision of town staff. That is when the property owners filed the petition in court. 

Tricky zoning districts

One of the more confusing aspects of the town’s zoning districts relates to waterfront property, generally zoned as a P-1 district or ‘conservation zone.’ 

According to the town’s Unified Development Ordinance (UDO), “Within the conservation zone, designated as P-1 on the official zoning map, no lot or parcel of land may be developed for any purpose except commercial piers (where the P-1 Zone adjoins a zone permitting a marina).”

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This graph from the Town of Wrightsville Beach’s UDO shows commercial piers are permitted in the P-1 district by right (Port City Daily/Courtesy Town of Wrightsville Beach)

As it turns out, the town’s UDO does permit marinas (with conditions) in the C-3 district and commercial piers are permitted by right in the P-1 District. 

So it would seem that since the waterfront part of the property is zoned P-1, and the adjoining property is zoned C-3 (which allows marinas), then commercial piers are permitted by right. But according to the town, what the property owners are proposing is, in fact, a ‘marina’ and requires a conditional use permit. 

Marina or dock?

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The property behind 100 W. Sailsbury backs up to the Intracoastal Waterway (Port City Daily/Mark Darrough)

At the crux of the lawsuit is a simple definition. The town claims what the owners want to build is a marina while Barnes and his attorney claim their plans are for commercial piers. 

The town’s own definition of docks and piers reads, “Platforms that extend into public waters for purposes such as mooring watercraft, loading and unloading watercraft, water access, seating areas … Commerical docks and piers are those structures associated with commercially zoned areas or for which rents or other fees are charged for use, or for which membership is required for use, such as private clubs.” 

So what is a marina then? 

“A place where boats are stores, serviced, or supplied with any type of marine and service a contiguous group of two or more boat slips, each of which is or may be separately owned and with common ownership of the land, piers, walkways, and any other structures necessary for service of the slips,” according to the town. 

It does appear to be ambiguous and there could be some crossover between a “marina” and “commercial docks and piers.” 

But Matthew Nichols, the attorney representing WB Watermen LLC. was adamant his clients had no intention of building a marina. 

“My client does not intend to offer or permit any marine services on the property, such as boat repair or maintenance, inspections, boat storage, boat rentals/sales/brokerage, fuel sales or any other sales or marine services typically found at a marina,” Nichols wrote in response to the town’s initial determination of the request.

Not the first time

Apparently the town has had issues with this property and its use in the past. 

In 1990, then-attorney John Wessell sent a letter to property owners at the time who wanted to construct a pier behind the Scotchman store. 

Food and drink stores were only permitted as conditional uses in the C-3 districts, Wessell stated, citing town ordinances. 

But then Wessell cited the town’s history of dealing with similar circumstances — but offered no tangible evidence. 

“Should it ultimately be concluded by a court that this property is conforming, you would still need to secure a conditional use permit for the construction of the pier since food and drink stores are only permitted pursuant to a conditional use permit. Apparently, when this building was constructed, such uses were permitted as a matter of right and there was no requirement for a conditional use permit. That situation obviously has changed,” Wessell wrote. 

“Since the owners would be adding to the existing use, the town would require a conditional use permit. If the owners held a conditional use permit at this time, they would be required to secure an amended conditional use permit before the pier could be constructed. Such requirements are consistent with our practices in the past in similar circumstances,” Wessell concluded.

While adding a new use to a conditional use permit might require an updated and amended CUP, it does not change the fact that commercial piers are permitted, per town code, by right in the P-1 district when it is abutting a C-3 district.

The court case will go into 2020 with a mediated settlement conference ordered between the two parties. According to the N.C. Judicial Branch, this is a tool to help settle cases outside of trials.

“The Mediated Settlement Conference Program is designed to offer parties, with the help of their attorneys and a mediator, an opportunity and the support they need to settle their cases earlier. During a mediated settlement conference, the parties, their attorneys, and a mediator are required to sit down together to discuss the matters in dispute and to try and resolve them. The conference will typically occur relatively early in the litigation process, but after parties have had time to conduct discovery and learn about the case,” according to the website.


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