BALD HEAD ISLAND — The Superior Court of Brunswick County found the Village of Bald Head Island’s right-of-first-refusal agreement to acquire the ferry transportation system invalid on Thursday.
After announcing the sale of the ferry system — which also includes the barge, parking and tram — to a private company in May 2022, owner Bald Head Island Limited gave the Village of Bald Head Island a chance to purchase the transportation service four months later — and the village turned it down.
However, the village has maintained it still has the right to purchase the ferry under the 1999 right-of-first-refusal agreement. Bald Head Island Limited, the ferry system owner, disputed this. It maintained the agreement was never valid and its offer was a “good faith” measure, rather than a necessity.
The court ruled in BHIL’s favor.
The ruling states the right-of-first-refusal is “void, invalid and of no legal effect” because it was never approved by the North Carolina Utilities Commission, which regulates rates and services of public utilities.
The ROFR was drafted, signed and delivered to Brunswick County Register of Deeds in 1999. In the event BHIL was to sell the ferry, it granted the village 60 days to purchase it, along with supplemental assets unrelated to the ferry. The price would be set at the same rate as a third-party buyer.
One stipulation mandated the contract be approved by the utilities commission. In May 2021, the NCUC confirmed it had no record of signing off on the agreement.
Still, BHIL agreed to allow the village to buy the ferry system, notifying them of this on Sept. 6, 2021. However, BHIL excluded the supplemental assets unrelated to the ferry system, that were included in the from the ROFR, and said the agreement would still need NCUC approval.
The village maintained it had a right to all the assets BHIL was selling. It declined to accept BHIL’s offer, though issued the lawsuit anyway saying the ROFR was not being honored.
The court also ruled the ROFR invalid on the grounds that the village was afforded “any benefits it might have had under the ROFR and failed to exercise those rights.”
“Although this is not the decision it sought, the Village appreciates the Trial Court’s consideration of the matter,” the village wrote in a press release. “The Village will consider whether there are next steps to be taken in the public interest.”
The conclusion of the lawsuit brings to end a long and litigious saga over the private sale of the ferry system.
The ferry transfer to SharpVue Capital still had to be approved by the utilities commission; it gave said approval in August 2023, despite objections from the village. However, BHI did win on one front when the commission decided to regulate the entire ferry system. Previously, only the ferry and tram were regulated.
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