Memo-08-09-2016-Item 12

August 9, 2016

MEMO TO:           Mayor Barber and Board of Commissioners

FROM:                  Frank A. Rush, Jr., Town Manager

SUBJECT:           Resolution of Intent to Close a Segment of Crew Drive

                                (To Be Replaced with New Public Street Easement)                   

The Board of Commissioners is scheduled to consider the attached resolution at the August 9 meeting indicating the Town’s intent to legally close a segment of Crew Drive between its intersection with Emerald Landing Drive and its eastern terminus at Emerald Plantation Shopping Center.  If approved, the Board would provide appropriate public notice, conduct a public hearing on September 13, and then formally consider the closure of this segment of Crew Drive at the September 13 meeting or a subsequent meeting.  In this case, it is important to note that if the Board approves the legal closure of this segment of Crew Drive that it would be replaced with a new, perpetual public street easement and an improved roadway as part of a planned new grocery store project.  Although the Board will consider the formal legal closure of this segment of Crew Drive, the roadway would ultimately be improved and would continue to function in the same historical manner, and perhaps better.    

An excerpt from the Town’s 2015 Powell Bill (official street) map is attached, and identifies this segment of Crew Drive.  C4 Emerald Isle LLC, a developer currently proposing a new grocery store on both sides of Crew Drive in this area, is requesting the legal closure of this segment of Crew Drive in order to achieve the desired site layout for the new grocery store.  This segment of Crew Drive is approximately 510 linear feet, includes a 60 ft. public right of way, and the existing asphalt road surface is generally 20 - 23 feet wide, with grassy shoulders.  This segment of Crew Drive provides ingress and egress for the directly adjacent properties (4 parcels that total ~ 6 acres) that are the site of the proposed new grocery store, and also serves as a secondary entrance and exit for Emerald Plantation Shopping Center to the east.  I have attached a letter from C4 Emerald Isle LLC formally communicating their request to close Crew Drive, and 4 exhibits illustrating a conceptual plan for the new grocery store project, the properties to be acquired, the recombination plat showing the location of the replacement street easement, and a survey of the existing Crew Drive street right of way.

As noted, if this segment of Crew Drive is legally closed, C4 Emerald Isle LLC is proposing to replace it with a new public street easement that would be dedicated to the Town and that would allow vehicular and pedestrian use in perpetuity.  A copy of the easement is attached, and has been reviewed by Town Attorney Richard Stanley to insure that the public will continue to have unrestricted, perpetual use of the roadway in the future.  C4 Emerald Isle LLC proposes to construct the new roadway in essentially the same location.  The proposed new roadway will be approximately 28 feet wide with new asphalt surface, and will also include curb & gutter, a new 5 ft. wide sidewalk, and attractive landscaping.  The new roadway will serve the new grocery store and will also continue to provide a secondary entrance and exit for Emerald Plantation Shopping Center.  The new roadway would be maintained by C4 Emerald Isle LLC (or their successors or assigns), as outlined in the attached roadway agreement.  The attached roadway agreement formalizes C4 Emerald Isle LLC’s commitments to provide the new easement, construct the road, and maintain the road in the future.  This agreement has also been reviewed by Town Attorney Richard Stanley to protect the Town’s interests in the future.  The Board should note that the agreement requires the new roadway improvements to be constructed by December 31, 2018, and requires C4 Emerald Isle LLC to post a letter of credit for the completion of the improvements in the event they are not completed by January 1, 2019.  The estimated cost of the improvements is approximately $114,000, and the agreement requires a letter of credit equal to 1.5 times this amount, or approximately $171,000.  The Board should also note that the agreement includes a provision whereby the Town has the authority to complete required maintenance of the roadway in the future if C4 Emerald Isle LLC (or their successors or assigns) fails to do so, with reimbursement to the Town for such expense. 

The formal street closing procedure is outlined in NC General Statutes 160A-299 (copy attached). As noted in NCGS 160A-299, when the Town legally closes a street, the land area occupied by the street is returned to the directly adjacent property owners, with half of the street area returned to the property owners on one side, and the other half returned to the property owners on the other side.  In this case, the entire street area would become part of new, recombined parcels, and a portion of this area will be the area of the replacement street easement.  In order to legally close a public street, the Board of Commissioners must make two determinations:  1) that the closing of the street is not contrary to the public interest, and  2) that no individual owning property in the vicinity of the street would be deprived of reasonable ingress and egress to his / her property.  The Board should note that this is the same legal procedure utilized by the Town to close a portion of Woodpecker Lane in September and October 2015.  This same legal procedure was also utilized in October and November 2001 to close the Reed Drive Extension (current location of Bell Cove Village Shopping Center and Bell Cove Village residential subdivision).  In January 2005, the Town utilized an alternate legal procedure to abandon any claims to a portion of the Yaupon Drive street right of way between Reed Drive and NC 58 that had not been improved (current location of a single-family residential unit). 

C4 Emerald Isle LLC has submitted formal site plans and building plans for the new grocery store to the Town, and those plans are currently being reviewed by Town staff.  The Planning Board is scheduled to review the grocery store plans at its August 22 meeting, along with a requested sign ordinance amendment.  Assuming the Planning Board makes a recommendation at its August 22 meeting, the grocery store plans and sign ordinance amendment will be presented for formal consideration by the Board of Commissioners at the September 13 Town meeting.  If the Board approves the attached Resolution of Intent to Close a Portion of Crew Drive, a public hearing on the street closing will be held on September 13, and the Board will then potentially consider all 3 items (street closing, formal grocery store plans, and sign ordinance amendment) associated with the new grocery store at the September 13 meeting.    

If the Board does not approve the Resolution of Intent to Close a Portion of Crew Drive, C4 of Emerald Isle LLC will need to amend the formal site plan for the proposed grocery store or withdraw its application altogether.  In either event, it is likely that the Planning Board would not consider the grocery store plans and sign ordinance amendment at its August 22 meeting, nor would the Board of Commissioners consider these items at the September 13 meeting.

The Board should note that, in some respects, the attached Resolution of Intent to Close a Portion of Crew Drive is primarily a procedural action that simply schedules a formal public hearing for the September 13 meeting and directs the appropriate public notices.  The formal, binding decision on the street closure would then be made at the September 13 meeting.

Richard Stanley and I look forward to discussing this issue with the Board at the August 9 meeting.