MEMO TO: Mayor Barber and Board of Commissioners
FROM: Frank A. Rush, Jr., Town Manager
SUBJECT: Closing, Redesignation, and Improvement of Crew Drive Between Emerald Landing Drive and Emerald Plantation Shopping Center
The Board of Commissioners is scheduled to consider the formal legal closure and associated redesignation and improvement of a segment of Crew Drive at the October 11 meeting. The Board will first conduct a public hearing, and then consider 3 items that would change the legal status of this segment of Crew Drive, but that would retain the public’s right to use the roadway in perpetuity, with significant road improvements. It is important for the Board and the public to note that the proposed actions are primarily a legal exercise, and from a practical standpoint, the roadway would continue to function in the same historical manner. The proposed actions will NOT prevent vehicles or pedestrians from using this road segment to access areas to the east and west of this segment of Crew Drive.
An excerpt from the Town’s 2015 Powell Bill (official street) map is attached, and identifies this segment of Crew Drive, which is located between Emerald Landing Drive and Emerald Plantation Shopping Center. 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 a 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, the developer of the proposed new grocery store, formally communicating their request to close Crew Drive, and 4 exhibits illustrating the proposed site 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 road easement that would be dedicated to the Town and that would allow vehicular and pedestrian use in perpetuity. A copy of the road easement agreement 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 road improvement / maintenance agreement. The attached agreement formalizes C4 Emerald Isle LLC’s commitments to provide the new easement, finance and 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. Additionally, in order to address concerns expressed by Emerald Plantation Shopping Center (see attached letter from Emerald Plantation attorney), the agreement also now includes a provision whereby the Town may at any time in the future fully assume maintenance responsibilities for the roadway. I envision that the Town would only exercise this option if C4 Emerald Isle LLC (or their successors or assigns) fails to maintain the road adequately in the future.
C4 Emerald Isle LLC is requesting the legal closure of this segment of Crew Drive in order to achieve the desired site layout for the proposed new grocery store. C4 Emerald Isle LLC seeks to locate the new grocery store in the same general line with the adjacent Emerald Plantation Shopping Center building, and seeks to utilize a preferred location for the wastewater treatment system to achieve a more desirable parking configuration and maintain a wider, natural buffer on the north side of the new grocery store abutting the Emerald Landing subdivision. In addition to the proposed site plan for the new grocery store, I have also attached an alternative site plan for the new grocery store that maintains the current legal status of Crew Drive. As indicated on the alternative site plan, the new grocery store would be required to meet a building setback from Crew Drive, which would require the building to be located farther north and would decrease the width of the natural buffer. The alternative site plan also includes a vehicle travel lane along the rear of the building, along with placement of the loading dock and emergency generators along the rear. The drain field for the wastewater treatment system would also be adjusted to meet the required setbacks from Crew Drive, and would result in a different configuration for the proposed parking lots.
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 road 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. In this case, because C4 Emerald Isle LLC is proposing a new public street easement and roadway improvements that will continue to function in the historical manner, and perhaps better, the Board of Commissioners would appear to have the ability to make the necessary determinations, if desired.
The Board should note that this is the same legal procedure utilized by the Town to close a portion of Woodpecker Lane in October 2015. This same legal procedure was also utilized in 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). In all 3 previous cases, these actions were taken by the Town to promote and foster new, quality development in Emerald Isle. In all 3 previous cases, the Town did not receive any replacement easements or other public improvements in conjunction with the legal street closures.
As you know, the Board of Commissioners approved a Resolution of Intent for these actions at the August 9 meeting, and originally scheduled a formal public hearing for September 13. After the August 9 meeting, Town staff advertised the potential road closure and public hearing, posted multiple signs along this segment of Crew Drive, and mailed notices to the immediately adjacent property owners to inform them about the potential road closure and September 13 public hearing. At the September 13 meeting, an attorney representing Emerald Plantation Shopping Center asserted that his client had not received sufficient notice of the potential road closure and public hearing, and the Board of Commissioners prudently continued the public hearing until the October 11 meeting. Although likely not legally required, Town staff have re-advertised the potential road closure and public hearing, have posted amended signs along this segment of Crew Drive, and have again mailed notices to the immediately adjacent property owners (also including Food Lion, a tenant in the Emerald Plantation Shopping Center). Documentation of these efforts is attached for the Board’s review. (Attachment 1, Attachment 2)
After the October 11 public hearing, the Board may formally consider the following items:
The Board should note that the formal Order is expressly contingent upon the associated road improvement / maintenance agreement, and directs the Town Manager and Town Attorney to delay the recording of this Order until all conditions outlined in the associated road improvement / maintenance agreement have been satisfied.
The Board of Commissioners will formally consider other actions associated with the proposed new grocery store as separate agenda items at the October 11 meeting.
Richard Stanley and I look forward to discussing this issue with the Board at the October 11 meeting.