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HomeMy WebLinkAbout11-97 Renewal 2007 (Variance) Marsh Harbor Resorts LLCPermit Class 2nd RENEWAL (by CRC Variance) Permit Number 11-97 STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission Vermit for OX Major Development in an Area of Enviro ental 6ELtcen f 2007 pursuant to NCGS I I3A-118 X Excavation and/or filling pursuant to NCG3womed City L)CM Issued to Marsh Harbour Resorts, LLC,10155 Beach Drive, Calabash, NC 28467 Authorizing development in Brunswick County at Calabash River. Beach Drive of Hwy. 179 , as requested in the permittee's application dated letter dated 12/19/06 This permit, issued on October 26.2007 , is subject to compliance with the application (where consistent with the permit), all applicable regulations, special conditions and notes set forth below. Any vi6lation of these terms may uc suuJcci w canes, imprisonment or crvu action; or may cause me permit to De nun ana vota. 1) This renewal must be attached to the original of Permit No. I 1-97, which was transferred to Marsh Harbour Resorts LLC on 10/5/99, as well as the Major Modification of 7/31/00 and the renewal of 11/20/00 and 12/15/03, and all documents rre�sst be readily available on site when a Division of Coastal Management representative inspectslhe project for compliance. 2) All conditions and stipulations of the active permit remain in force under this renewal. 3) In accordance with the variances granted by the Coastal Resources Commission on 10/23/03 and 9/28/07, all walkways that are located within 30 feet of the normal high water line shall be constructed of pervious materials. The permittee should contact a representative of the Division of Coastal Management prior to initiation of walkway construction for a confirmation of appropriate pervious walkway materials and/or designs. This permit action may be appealed by the pennittee or other qualified persons within twenty (20) days of the issuing date. An appeal requires resolution prior to work initiation or continuance as the case may be. This permit must be accessible on -site to Department personnel when the project is inspected for compliance. Any maintenance work or project modification not covered hereunder requires further Division approval. All work must cease when the permit expires on December 31, 2009 In issuing this permit, the State of North Carolina agrees that your project is consistent with the North Carolina Coastal ' Management Program Signed by the authority of the Secretary of DENR and the Chairman of the Coastal Resources Commission. b�Jame regson D Director vision of Coastal Management This permit and its conditions are hereby accepted. . La r NCDENR North Carolina Department of Environment and Natural Resources Division of Coastal Management Michael F. Easley, Governor Charles S. Jones, Director William G. Ross Jr., Secretary April 19, 2007 CERTIFIED MAIL RETURN RECEIPT REQUESTED Marsh Harbour Resorts, LLC 10155 Beach Drive Calabash, NC 28467 Dear Sirs: This letter is in response to your December 19, 2006 request under the Coastal Area Management Act (CAMA) to renew CAMA Major Permit No. 11-97 for an additional two years. Permit No. 11-97, which authorized the construction of the Marsh Harbour Development adjacent to the waters of Calabash Creek, in the Town of Calabash in Brunswick County, was issued on June 13, 1997 and most recently renewed by way of a Coastal Resources Commission variance on December 15, 2003. The December 15, 2003 renewal extended the expiration date of the permit until December 31, 2006. Processing of the renewal request is now complete. Based on the state's review, the Division of Coastal Management has made the following findings: 1) On June 13, 1997, CAMA Major Permit No. 11-97 was issued to Marsh Harbour Marina authorizing construction of additional marina docks, nineteen multi -unit residential buildings, a seven -story hotel, and the associated infrastructure development. 2) On October 5, 1999, the permit was transferred to Marsh Harbor Resorts, LLC. 3) A major modification was issued on July 31, 2000, changing the scheme of high ground development to include a larger hotel and conference center, a parking deck, 266 condominium units and 80 townhomes. 4) The permit was renewed on November 20, 2000, with a new expiration date of December 31, 2002. 5) A request for an additional two-year extension was denied pursuant to 15A NCAC 07J .0404 on March 10, 2003 because no substantial development had taken place on the permitted project as of that date. 400 Commerce Avenue, Morehead City, North Carolina 28557 Phone: 252-808-28081 FAX: 252-247-33301 Internet: www.nccoastalmanagement.net An Equal Opportunity 1 Affirmative Action Employ Ier-50% Recycled 110% Post Consumer Paper Marsh Harbour Resorts, LLC Page 2 of 2 6) On October 23, 2003, the Coastal Resources Commission granted a variance, allowing for an additional extension of the permit to be granted. As a result of this variance, a renewal to Permit No. 11-97 was granted on December 15, 2003. The new expiration date of the permit was December 31, 2006. 7) Based upon coordination between Division staff and the applicant, it has been determined that no substantial development has taken place on the authorized project since Permit 11-97 was originally issued. 8) Based upon the findings outlined above, the proposed project has been determined to be inconsistent with 15A NCAC 07J .0404, which requires that in circumstances such as this, the Division of Coastal Management may only renew a permit upon finding that substantial development has begun and is continuing on the permitted project. Given the preceding findings, it is necessary that your request for an additional renewal of CAMA Major Permit No. 11-97 be denied. This denial is made pursuant to N.C.G.S. 113A- 120 (a)(8), which requires denial for projects inconsistent with state guidelines or local land use plans. If you wish to appeal this denial, you are entitled to a hearing. The hearing will involve appearing before an Administrative Law Judge who listens to evidence and arguments of both parties and then makes a recommendation to the Coastal Resources Commission. Your request for a hearing must be in the form of a written petition, complying with the requirements of §150B of the General Statutes of North Carolina, and must be filed with the office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, (919) 733-2698, within twenty (20) days from the date of this letter. A copy of this petition should also be filed with this office. Also, you should be advised that as long as this state permit renewal denial stands, your project must be deemed inconsistent with the N.C. Coastal Management Program, thereby precluding the issuance of federal permits for this project. The Federal Coastal Zone Management Act (CZMA) gives you the right to appeal this finding to the U.S. Secretary of Commerce within thirty (30) days of receipt of this letter. Your appeal must be on the grounds that the proposed activity is (1) consistent with the objectives or purposes of the CZMA, or (2) is necessary in the interest of national security, and thus, maybe federally approved. Members of my staff are available to assist you should you desire to apply for a new permit. If you have any questions concerning this matter, please contact Mr. Doug Huggett at (252) 808-2808. elyn G � S Charles S. Jones cc: Colonel John Pulliam - U.S. Army Corps of Engineers, Wilmington, NC Mr. David Kennedy, Director - OCRM/NOAA, Silver Spring, MD N.0 Division of Coastal Management -. 400 Commerce Avenue Morehead City. NC 28557 Tel.252-808-2808 Y NORENERD CITY (A NC 28557 � � 1iN $0.390 �0.390 $0.390 c) s $0.399 x METER J RPR 20 07 3812666 Marsh Harbour Resorts, LLC 10155 Beach Drive Calabash, N.C. 28467 NIXIE 203 1 Do 04/28/07 RETURN TO SENDER NO MAIL RECEPTACLE UNABLE TO FORWARD DC: 20.557042i00 + 2asa-ioaas-2o-77 205570Z4.21 Inl�llnln l�ln l�lil n�ln 11 ulnln l�l niilll nilln n�Il�l rhject: RE: Marsh Harbour om: "Laura Stasavich" <]stasavich@lmgroup.net> te: Thu, 6 Dec 2007 10:52:20 -0500 "Jason Dail" Qason.Dail@ncmail.net> a, .half of the applicant, Marsh Harbour Resorts, LLC, I am requesting that the express ication of CAMA Permit 11-97 be removed from hold and processing resume. you and please feel free to contact me if necessary. LP.asavich ,nagement Group, Inc. 38 2522 pghtsviIle Ave., Suite 15 whBen, NC 28402 911 0001(p) lstal@Imgmup.net 12/6/2007 1:01 PM 0 1 ,I i Permit Class 2nd RENEWAL (by CRC Variance) STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission Vertnit for X Major Development in an Area of Environmental Concern pursuant to NCGS I I3A-118 X Excavation and/or filling pursuant to NCGS 113-229 Permit Number 11-97 Issued to Marsh Harbour Resorts, LLC, 10155 Beach Drive, Calabash, NC 28467 Authorizing development in Brunswick County at Calabash River, Beach Drive of Hwv. 179 , as requested in the permittee's application dated letter dated 12/19/06 This permit, issued on October 26, 2007 , is subject to compliance with the application (where consistent with the permit), all applicable regulations, special conditions and notes set forth below. Any violation of these terms may be subject to tines, imprisonment or civil action; or may cause the permit to be null and void. 1) This renewal must be attached to the original of Permit No. 11-97, which was transferred to Marsh Harbour Resorts LLC on 10/5/99, as well as the Major Modification of 7/31/00 and the renewal of 11/20/00 and 12/15/03, and all documents must be readily available on site when a Division of Coastal Management representative inspects the project for compliance. 2) All conditions and stipulations of the active permit remain in force under this renewal. 3) In accordance with the variances granted by the Coastal Resources Commission on 10/23/03 and 9/28/07, all walkways that are located within 30 feet of the normal high water line shall be constructed of pervious materials. The permittee should contact a representative of the Division of Coastal Management prior to initiation of walkway construction for a confirmation of appropriate pervious walkway materials and/or designs. p�11111, aUtlun may oe appeaiea oy me permnree or Ither qualified persons within twenty (20) days of the issuing ate. An appeal requires resolution prior to work initiation or ntmuance as the case may be. ,his permit must be accessible on -site to Department onnel when the project is inspected forcompliance. y maintenance work or project modification not covered er requires further Division approval. ork must cease when the permit expires on December 31, 2009 1 ig this permit, the State of North Carolina agrees -oject is consistent with the North Carolina Coastal ,t Program. aignuu uy inu allLtIVLILY V, LUU 0cbIcLal] U1 v, Alk% uuu u— Chairman of the Coastal Resources Commission. Jame regson, Director vision of Coastal Management This permit and its conditions are hereby accepted. Signature of Permittee NCDENR North Carolina Department of Environment and Natural Resources Division of Coastal Management Michael F. Easley, Governor James H. Gregson, Director William G. Ross Jr., Secretary October 29, 2007 Marsh Harbour Resorts, LLC 10155 Beach Drive Calabash NC 29467 Dear Sir or Madam: The enclosed permit constitutes authorization under the Coastal Area Management Act, and where applicable, the State Dredge and Fill Law, for you to proceed with your project proposal. Please sign both the original (buff - colored form) and the Xerox stamped "Copy". Return the copy to this office in the enclosed envelope. Signing the permit and proceeding means you have waived your right of appeal described below. Please retain the original (buff -colored form), as it must be available on site when the project is inspected for compliance. If you object to the permit or any of the conditions, you may request a hearing pursuant to NCGS l 13A- 121.1 or 113-229. Your petition for a hearing must be filed in accordance with NCGS Chapter 150E with the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27611-6714, (919) 733-2698 within twenty (20) days of this decision on your permit. You should also be aware that if another qualified party submits a valid objection to the issuance of this permit within twenty (20) days, the matter must be resolved prior to work initiation. The Coastal Resources Commission makes the final decision on any appeal. The project plan is subject to those conditions appearing on the permit form. Otherwise, all work must be carried out in accordance with your application. Modifications, time extensions, and future maintenance require additional approval. Please read your permit carefully prior to 'starting work and review all project plans, as approved. If you are having the work done by a contractor, it is to your benefit to be sure that he fully understands all permit requirements. From time to time, Department personnel will visit the project site. However, if questions arise concerning permit conditions, environmental safeguards, or problem areas, you may contact Department personnel at any time for assistance. By working in accordance with the permit, you will be helping to protect our vitally important coastal resources. 'inc rely, I No k- \as V. Huggett �ermits and Consistency. Manager 400 Commerce Avenue, Morehead City, NC 28557 me: 252-808-28081 FAX: 252-247-33301 Intemet: www.nccoastalmanagement.net / An Equal Opportunity \Affirmative Action Employer- 50%h Recycled \ 10% Post Consumer Paper Message Confirmation Report Narre/Number Page Start Time Elapsed Time Mode Results 919193612262 2 OCT-29-2007 08:55AM MON 00'46" STD ECM [O.K] OCT-29-2007 08:55 AM MON Fax Number : 2522473330 Name DCM MHD DIVISION OF COASTAL NIANAGLN(ENT _AT�A r_ NCDENR mono- uno•w Duane.• e• OFFICE: ��yj .••� TELEPHONE: ( 1 _ FAX: ( ) �[ l"1 O I. o(por�' •FROM: v1�Q=_....==A,e� �•24 Morehead City Office 400 Commerce Avcnue Morehead City, NC 28557-3421 VoiCe:(252)508-2808 FAX: (252) 247-3330 Re: DATE SENT: b TOTAL PAGES INCLUDING COVER SHEET: Message Confirmation Report Name/Number WILM DCM / 919103953964 Page 2 Start Time OCT-29-2007 08:56AM MON Elapsed Time 00'24" Mode STD ECM Results [O.K] OCT-29-2007 08:56 AM MON Fax Number : 2522473330 Name DCM MHD DIVISION OF COASTAL MANAGEMENT �r NCDENR Cxv:nONxprtµDNNuuW gC]cygCCD TO: _ OFFICE: TELEPHONE: FROM: Morcbcad City Office 400 Conuncrce Avenue Morehead City, NC 28557-3421 Voice: (252) 808-2808 FAX: (252) 247-3330 Re: IATE SENT: OTAL PAGES INCLUDING COVER SHEET: cJ� DIVISION OF COASTAL MANAGEMENT A NCDENR NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NRURAL RE5OOROES TO: OFFICE: TELEPHONE: ( 1 FAX: ( • FROM: Morehead City Office 400 Commerce Avenue Morehead City, NC 28557-3421 Voice: (252) 808-2808 FAX: (252) 247-3330 Re: DATE SENT:I�I�LL Y� TOTAL PAGES INCLUDING COVER SHEET: CT� DIVISION OF COASTAL MANAGEMENT I r RCDENk H 7" CAAOUMA 0fP TMCNT Of ENVWONMCNT ANO Nl ll/ RCSOURC.. TO: OFFICE: TELEPHONE: FROM: Ol.lqugQ e-� T Morehead City Office 400 Commerce Avenue Morehead City, NC 28557-3421 Voice: (252) 808-2808 FAX: (252) 247-3330 Re: DATE SENT: TOTAL PAGES INCLUDING COVER SHEET: �L— f RM C(x)111'R State of North Carolina Dcpartmcm of Justice PO Box 629 Raldgsh, North Carolina 27602 October 24, 2007 CERTIFIED MAIL RETURN RECEIPT REQUESTED Marsh Harbour Resorts, LLC Athos C. Dawson, III Williams Mullen Maupin Taylor P.O. Box 19764 Raleigh, North Carolina 27619-9764 Re: Variance Request to Coastal Resources Commission By Marsh Harbour Resorts, LLC CRC-VR-07-15 Dear Mr. Dawson: r, r 2 5 ?00. Mwahead Gity DOM Edwin Lee Gavin Environmental Division Tel: (919)716-6600 Fax:(919)716-6767 egavin r@ncdoi.gov At its September 28, 2007 meeting, the Coastal Resources Commission voted to grant the above referenced variance request. Attached is a copy of the Amended Final Order, signed by the Chairman of the Coastal Resources Commission which supersedes the 15 October 2007 Order. Prior to undertaking the development for which you sought a variance, you must first obtain a CAMA permit from your local permitting authority or the Division of Coastal Management. Very truly yours, Edwin Lee Gavin H Assistant Attorney General Acting Counsel to the Commission c: Christine Anne Goebel, DOJ Angela Willis, DCM Morehead City Courtney Hackney, Chairman STATE OF NORTH CAROLINA COUNTY OF BRUNSWICK IN THE MATTER OF: ) PETITION FOR VARIANCE ) BY MARSH HARBOUR RESORTS, LLC ) BEFORE THE NORTH CAROLINA COASTAL RESOURCES COMMISSION CRC-VR-07-15 AMENDED FINAL ORDER This matter was heard on oral arguments and stipulated facts at the regularly scheduled meeting of the North Carolina Coastal Resources Commission (hereinafter CRC) on September 28, 2007, in Wilmington, North Carolina pursuant to N.C.G.S. § 113A-120.1 and T15A NCAC 7J.0700, et sea. Assistant Attorney General Christine A. Goebel, Esq. appeared for the Division of Coastal Management, Department of Environment and Natural Resources; Amos C. Dawson, III, Esq. Williams, Mullen, Maupin & Taylor appeared on behalf of Petitioners Marsh Harbour Resorts, LLC. Upon consideration of the record documents and the arguments of the parties, the CRC adopts the following: STIPULATED FACTS 1. Petitioner, Marsh Harbour Resorts, LLC ("Petitioner" or "Marsh Harbour") owns a tract of land in Calabash, with portions in both North Carolina and South Carolina. Petitioner LaDane Williamson ('Petitioner" or "Ms. Williamson") is the owner of the management oversight company for the development of the property. 2. The waters of Calabash Creek at this location are classified as SA by the Environmental Management Commission. The waters of Calabash Creek adjacent to the project area are closed to harvest of shellfish and are not designated as a Primary Nursery Area (PNA). 3. The project area was formerly a high ground coquina quarry that was converted to a marina basin in the late 70's and early 80's. 4. The existing tract has a highground marina with structural supports to accommodate 257 slips, with 120 slips completed. The basin is stabilized with rip rap and bulkhead structures. Also on the tract are a club house, tennis courts, a former 2-story restaurant building now used for office space, a ship's store, bathroom facilities and service roads. There is an existing golf course (Marsh Harbour Golf Links). 5. The tract is characterized by significant topographical relief, sloping down sharply toward the marina basin. Elevations on the tract range from 10 feet to 50 feet. This significant change in elevation made design of the stormwater management system complex. Because portions of the tract are located in two different states, Petitioners have to obtain permits and land use approvals from various agencies and local governments in both North and South Carolina. 6. On June 13, 1997, CAMA Major Permit No. 11-97 was issued to Marsh Harbour Marina authorizing construction of marina docks, nineteen multi unit residential buildings, and a seven -story hotel, as well as associated infrastructure development. None of these structures were built. 7. On October 5, 1999, the permit was transferred to Marsh Harbour Resorts, LLC. 8. A major modification was issued on July 31,_2000, changing the scheme of high ground development to include an expanded hotel complex and conference/meeting center (900 rooms), a parking structure, 266 condominium units, 80 town homes, restaurants, shops, a recreation center, office center, and associated infrastructure. The CRC's 30-foot buffer rule came into effect August 1, 2000. 10. The modified permit had an original expiration date of December 31, 2000, only 5 months following the modification. 11. The permit was renewed once on November 20, 2000, with a new expiration date of December 31, 2002. 12. Rule 15A NCAC 7J .0404 governs CAMA permit renewals and has been effective since 1985. It provides, "Where substantial development ... has begun and is continuing on a permitted project, the permitting authority shall grant as many two year extensions as necessary to complete the initial development." 13. Effective August 1, 2002, this rule governing the renewal of CAMA permits was modified by the Coastal Resources Commission to further define the term "substantial development." 14. The new language contained in the rule "deems" substantial development to have occurred on a project "if the permittee can show that development has progressed beyond basic site preparation, such as land clearing and grading, and construction has begun and is continuing under normal construction practices on the primary structure or structures authorized under the permit. For purposes of residential subdivision, installation of subdivision roads consistent with an approved subdivision plat shall constitute substantial development. Renewals for maintenance and repairs of previously approved projects may be granted for periods not to exceed 10 years." 15A NCAC 7J .0404. 15. On December 11, 2002 Petitioners submitted a renewal request for Pen -nit 11-97. The Division of Coastal Management determined the proposed renewal request to be inconsistent with 15A NCAC 7J .0404, which requires that after it granted an initial 2-year renewal, the Division can only issue additional renewals upon finding that substantial development has begun and is continuing on the permitted project. 16. Given the preceding findings the Division of Coastal Management denied Petitioners' request for the renewal of CAMA Major Permit No. 11-97 on March 10, 2003. 17. At the time of the first request for renewal, a series of four lawsuits were affecting the Marsh Harbour Resorts development and precluding financing and construction of the project: a. On September 14, 1999, Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty, Inc. filed a Complaint against The LaDane Williamson Company, LaDane Williamson of North Carolina, hic., LaDane Williamson Company, LLC ("Defendants Williamson") and The Town of Calabash, North Carolina, asserting procedural and substantive defects in the zoning ordinance. This case was dismissed on March 6, 2000. b. On July 3, 2000, Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty, Inc. filed another Complaint against Defendants, Williamson and the Town of Calabash, North Carolina asserting claims similar to the 1999 case. This case was dismissed on September 23, 2002. C. On December 28, 2000, Marsh Harbour Resorts, LLC filed a Complaint in Summary Ejectment against Marsh Harbour Marina, Inc. to terminate the lease and gain possession of the Marina, which is necessary for petitioners' development of the property. This case was resolved shortly after the Commission granted the 2003 Variance request discussed below. d. On February 2, 2001, Marsh Harbour Marina, Inc. filed a Complaint against Defendants Marsh Harbour Resorts, LLC and Inlet Harbor Marina, Inc. regarding the lease of the Marina and asserting claims for breach of the lease, breach of promises to make capital improvements, and failure of Lessor to make repairs, etc. This case was resolved shortly after the Commission granted the 2003 Variance request discussed below. 18. No new construction has taken place on the authorized project since the CAMA permit was issued. 19. Petitioners have expended substantial sums of money since the project's inception on land use planning and rezoning, surveying and engineering costs, architectural fees, development of resort development documents (such as Owners' Association Covenants, etc.) and legal expenses. 20. Petitioners' costs include over $350,000 on stormwater, water, and sewer design and permitting. 21. Development of the stormwater management plan required extensive engineering work, including design of building roofprints, parking configurations, streets and all other impervious surfaces. Preliminary design of sewer collection and water distribution systems have been prepared. Approximately 70% of the construction design work is complete. 22. A stormwater permit for the development was issued by the Division of Water Quality (SW8 920522) on September 13, 2001, and is effective until September 13, 2011. The stormwater management system is designed to contain the first inch and a half of stormwater runoff. 23. The Town of Calabash adopted a new Land Use Plan (LUP) in 1999 after the Marsh Harbour permit was issued. The project is consistent with that plan. The Town of Calabash is currently in the process of amending its LUP and has submitted the amended plan to the CRC for certification on September 28, 2007. The proposed amended plan, in Policy 22, limits building height to 35 feet (plus 10 feet for roof ornamental/architectural features). Petitioners' original Planned Use Development (PUD) site plans include buildings over 35 feet in height. 25. As permitted, the project is consistent with all of the Commission's current rules except for the buffer in some places. 26. The structures that are presently proposed to be located within the 30-foot buffer from the estuarine shoreline required by 15A NCAC 7H .0209(d) are as follows: a. Parkin : There are two parking areas that have intrusions into the buffer. The first parking area is located by the restaurant and intrudes 5 to 10 feet into the buffer for a distance of approximately 120 feet. Therefore, the total square footage for this buffer infringement is approximately 600-1,200 square feet. 2. The second parking area is located by the marina and has about 5 parking spaces in the buffer which total approximately 175 square feet. b. Pool: The pool and concrete decking around the pool represents a 550 square foot intrusion into the buffer. c. Recreation Center: There is a recreation center proposed that presently intrudes into the buffer approximately 250 square feet. d. Condominiums: There are 3 condominium units that intrude into the buffer. The first one is located at he head of the marina basin and intrudes into the buffer approximately 3 feet for a distance of 33 feet, totaling approximately 100 square feet in the buffer. 2. The second one is located four buildings south of the recreation center and intrudes into the buffer approximately 5 feet for a distance of 10 feet, totaling approximately 50 square feet in the buffer. The third one is located north of the pool and intrudes into the buffer approximately 4 feet for a distance of 60 feet, totaling 240 square feet in the buffer. e. Walkways: There are a total of 7 walkways from various structures that' go down to the water and are therefore located in the buffer. All of the proposed walkways are concrete. Three of the seven walkways range from 20 to 25 feet wide, and the remaining 4 range from 6 to 10 feet wide. Only 6-foot slatted wooden walkways are allowed in the buffer. 27. Petitioners filed a prior variance request on September 11, 2003 seeking relief from strict application of the "substantial development' rule in 15A NCAC 7J .0404 in order to obtain another permit renewal. 28. The 2003 variance request was granted by the commission on October 30, 2003, and permit 11-97 was renewed on December 15, 2003. As a condition of the 2003 renewal, Petitioners were required to construct all walkways located in the buffer of pervious materials. The renewal of this permit expired on December 31, 2006. 29. Since the granting of the 2003 variance request, Petitioners have been precluded from construction on the primary structures authorized under the permit by additional lawsuits. At the time of the permit renewal in 2003, Petitioners had become involved in two additional lawsuits with Marsh Harbour Golf and Yacht Club Interval Association styled as Marsh Harbour Resorts. LLC v. Marsh Harbour Golf and Yacht Club Interval Association, Inc., Brunswick County 04 CVS 236 and 04 CVS 237, which were not resolved until May 23, 2005. 30. On January 11, 2005, the Town of Calabash changed the zoning on the property from Planned Use Development ("PUD") to R-15, the most restrictive zoning possible. Petitioners filed a lawsuit styled as Marsh Harbour Resorts, LLC v. Town of Calabash North Carolina, Board of Commissioners, Town of Calabash, North Carolina and Curtis Keith Hardee, Brunswick County 05 CVS 448, demanding that the property be restored to the original zoning. On August 17, 2006, the Town of Calabash agreed to reinstate the property to the original PUD zoning. The Settlement Agreement with the Town provides that the Town recognizes the vested rights of Marsh Harbour to develop the property as a PUD district in accordance with the PUD Agreement initially entered into between the Town and Marsh Harbour and the 1999 Code. The Settlement Agreement also provides that any zoning change for the property or modification to the Code of Ordinances after July 26, 1999 shall not impact or preclude any development or improvement of the property in accordance with the PUD Agreement and the 1999 Code. (Settlement Agreement, Sec 1, pp 2-3) 31. Petitioners were unable to complete substantial work on the project from the time of the resolution of the above -referenced lawsuit in August 2006 and prior to the permit expiration in December 2006. 32. Since the approval of their 2003 variance request approved by the Commission, Petitioners have documented substantial additional sums of money spent on the project, including over $150,000 in legal expenses. 33. Petitioners filed a request for extension of the Permit on December 19, 2006. . This request was denied on April 19, 2007 because the Division of Coastal Management determined the proposed renewal request to be inconsistent with 15A NCAC 7J .0404, which requires that after it has granted an initial 2-year renewal, the Division can only issue additional renewals upon finding that substantial development has begun and is continuing on the permitted project. 33. If Petitioners obtain a permit renewal under rule 15A NCAC 7.I.0404, it would be valid for two years. Because of the size and complexity of the project, Petitioners are instead seeking a renewal for three years from the Commission. 34. Petitioners also filed a contested case with the Office of Administrative Hearings ("OAH") on May 9, 2007 to challenge the denial of the permit renewal request. Petitioners alleged that they have obtained common law vested rights in permit 11-97. The parties entered into a stay in that case pending the outcome of this variance request. 35. Pursuant to an agreement with the Division of Coastal Management, Petitioners withdrew their petition for a contested case hearing in OAH on August 20, 2007 in order to apply for a new permit under the express permit program. The new application involves moving the bulkhead waterward, thus eliminating buffer intrusions. The outcome of that application is unknown as of the completion of these stipulations. 36. The parties have stipulated to the inclusion of the Site Plan and Settlement Agreement. CONCLUSIONS OF LAW The CRC has jurisdiction over the parties and the subject matter. 2. The parties have been correctly designated. All notices for the proceeding were adequate and proper. 10 4. The Commission concludes that the Petitioners have demonstrated that strict application of Rule 15A NCAC U .0404(b) to their existing permit will result in unnecessary hardship. The Petitioners' variance request materials and the staff recommendation are incorporated by reference as support for this conclusion. However, the Commission does not adopt Petitioners' position on vested rights. The Commission concludes that the Petitioners have demonstrated that their hardship results from conditions peculiar to project property. The Petitioners' variance request materials and the staff recommendation are incorporated by reference as support for this conclusion. However, the Commission does not adopt Petitioners' position on vested rights. 6. The Commission concludes that the Petitioners have demonstrated that their hardship does not result from actions taken by Petitioners. The Petitioners' variance request materials and the staff recommendation are incorporated by reference as support for this conclusion. However, the Commission does not adopt Petitioners' position on vested rights. The Commission concludes that the Petitioners have demonstrated that their proposed development is within the spirit, purpose and intent of the Commission's rules; that it will secure public safety and welfare; and that it will preserve substantial justice. Petitioners' variance request materials and the staff recommendation are incorporated by reference as support for this conclusion. THEREFORE, the petition for variance from T15A NCAC U .0404(b) is GRANTED with the condition that: the permit is extended from 31 December 2006 and the period of this variance and 11 the resulting (or related) permit shall expire 31 December 2009. 2. all permit conditions from the prior permit variance apply, specifically all walkways in the buffer shall be pervious. The granting of this variance does not relieve Petitioner of the responsibility for obtaining a CAMA permit from the proper permitting authority. This variance is based upon the Stipulated Facts set forth above. The Commission reserves the right to reconsider the granting of this variance and to take any appropriate action should it be shown that any of the above Stipulated Facts is not true. This order revises and supersedes the Final Order of 15 October 2007, which erroneously stated the expiration date of the permit and variance, and omitted the Commission requirements for pervious walkways. This the day of October, 2007. Courtney ackr y Chairman Coastal Resources Commission 12 CERTIFICATE OF SERVICE This is to certify that I have caused the foregoing Final Order to be served upon the Petitioner by depositing a copy thereof in the U.S. Postal Service CERTIFIED MAIL, RETURN RECEIPT REQUESTED with sufficient postage for delivery and addressed to: Marsh Harbor Resorts, LLC Amos C. Dawson, III WILIAMS MULLEN MAUPIN TAYLOR P. 0. Box 19764 Raleigh, NC 27619-9764 Christine Anne Goebel Hand Delivery Assistant Attorney General N.C. Department of Justice This the 2'� day of October, 2007. Edwin Lee Gavin II Assistant Attorney General N.C. Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001 Acting Counsel to the Commission 13 Permit N DCM Coordinator: MARLING DISTRIBUTION: " Permitee: gent: _ C0IerhNrl 2gn'1Sey DCM Field Offices: Elizabeth City Morehead City . Washington' Wilmington US Army Corps of Engineers (USACE); Washington: .. .'Mike Bell (NCDOT) Bill Biddlecome (NCDOT) " Raleigh Bland Wilmingtoni: Dave Timpy Others: Cultural Resources: Renee Gledhill -Early Public Water Supply: Debra Benoy (WIRO) 1 I Co use Dr,, ve s � oseHn �s4 /3u.lr Fred Hill (WARD) Marine Fisheries: Mike Street NCDOT: Ken Pace Shellfish Sanitation:. Patty Fowler State Property Office: Tommy Cline Water Quality: Cyndi Karoly (for non -DOT) John Hennessy (NCDOT) Wildlife Resources: Maria Tripp Steve Everhart Travis Wilson (NCDOT) LPO: FAXING DISTRIBUTION: Permitee at Agent at DCM Field Offices: Elizabeth City (252-264-3723) Morehead City (252-247-3330) Washington (252-948-0478) W i l m i ngton ,(910-3 5 0-2004) US Army Corps of Engineers (USACE): Washington: Mike Bell (NCDOT) Bill Biddlecome (NCDOT) Raleigh Bland (252-975-1399) Wilmington: Dave Timpy (910-2514025) Major Permit Process Manual Page 70 of 76 Q�� r NCDENR North Carolina Department of Environment and Natural Resources Division of Coastal Management Michael F. Easley, Governor Charles S. Jones, Director William G. Ross Jr., Secretary April 19, 2007 CERTIFIED MAIL RETURN RECEIPT REQUESTED Marsh Harbour Resorts, LLC 10155 Beach Drive Calabash, NC 28467 Dear Sirs: This letter is in response to your December 19, 2006 request under the Coastal Area Management Act (CAMA) to renew CAMA Major Permit No. 11-97 for an additional two years. Permit No. 11-97, which authorized the construction of the Marsh Harbour Development adjacent to the waters of Calabash Creek, in the Town of Calabash in Brunswick County, was issued on June 13, 1997 and most recently renewed by way of a Coastal Resources Commission variance on December 15, 2003. The Decctnber 15, 2003 renewal extended the expiration date of the permit until December 31, 2006. Processing of the renewal request is now complete. Based on the state's review, the Division of Coastal Management has made the following findings: l) On June 13, 1997, CAMA Major Permit No. l 1-97 was issued to Marsh Harbour Marina authorizing construction of additional marina docks, nineteen multi -unit residential buildings, a seven -story hotel, and the associated infrastructure development. 2) On October 5, 1999, the permit was transferred to Marsh Harbor Resorts, LLC. 3) A major modification was issued on July 31, 2000, changing the scheme of high ground development to include a larger hotel and conference center, a parking deck, 266 condominium units and 80 townhomes. 4) The permit was renewed on November 20, 2000, with a new expiration date of December 3 l . 2002. 5) A request for an additional two-year extension was denied pursuant to I5A NCAC 07J .0404 on March 10, 2003 because no substantial development had taken place on the permitted project as of that date. 400 Commerce Avenue, Morehead City, North Carolina 28557 Phone: 252-808-28081 FAX: 252-247-33301 Internet: www.nccoastalmanagement.net An Equal Opportunity 1 Affirmative Action Employer — 50% Recycled 110% Post Consumer Paper Marsh Harbour Resorts, LLC Page 2 of 2 6) On October 23, 2003, the Coastal Resources Commission granted a variance, allowing for an additional extension of the permit to be granted. As a result of this variance, a renewal to Permit No. 11-97 was granted on December 15, 2003. The new expiration date of the permit was December 31, 2006. 7) Based upon coordination between Division staff and the applicant, it has been determined that no substantial development has taken place on the authorized project since Permit 11-97 was originally issued. 8) Based upon the findings outlined above, the proposed project has been determined to be inconsistent with 15A NCAC 07J .0404, which requires that in circumstances such as this, the Division of Coastal Management may only renew a permit upon finding that substantial development has begun and is continuing on the permitted project. Given the preceding findings, it is necessary that your request for an additional renewal of CAMA Major Permit No. 11-97 be denied. This denial is made pursuant to N.C.G.S. 1 I3A- I20 (a)(8), which requires denial for projects inconsistent with state guidelines or local land use plans. If you wish to appeal this denial, you are entitled to a hearing. The hearing will involve appearing before an Administrative Law Judge who listens to evidence and arguments of both parties and then makes a recommendation to the Coastal Resources Commission. Your request for a hearing must be in the form of a written petition, complying with the requirements of §I5013 of the General Statutes of North Carolina, and must be filed with the office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, (919) 733-2698, within twenty (20) days from the date of this letter. A copy of this petition should also be filed with this office. Also, you should be advised that as long as this state permit renewal denial stands, your project must be deemed inconsistent with the N.C. Coastal Management Program, thereby precluding the issuance of federal permits for this project. The Federal Coastal Zone Management Act (CZMA) gives you the right to appeal this finding to the U.S. Secretary of Commerce within thirty (30) days of receipt of this letter. Your appeal must be on the grounds that the proposed activity is (1) consistent with the objectives or purposes of the CZMA, or (2) is necessary in the interest of national security, and thus, may be federally approved. Members of my staff are available to assist you should you desire to apply for a new permit. If you have any questions concerning this matter, please contact Mr. Doug Haggett at (252) 808-2808. cerely,n C Charles S. Jones cc: Colonel John Pulliam - U.S. Army Corps of Engineers, Wilmington, NC Mr. David Kennedy, Director - OCRM/NOAA, Silver Spring, MD e�� r NCDENR North Carolina Department of Environment and Natural Resources Division of Coastal Management Michael F. Easley, Governor Charles S. Jones, Director William G. Ross Jr., Secretary April 19, 2007 CERTIFIED MAIL RETURN RECEIPT REQUESTED Marsh Harbour Resorts, LLC 10155 Beach Drive Calabash, NC 28467 Dear Sirs: This letter is in response to your December 19, 2006 request under the Coastal Area Management Act (CAMA) to renew CAMA Major Permit No. 11-97 for an additional two years. Permit No. I1-97, which authorized the construction of the Marsh Harbour Development adjacent to the waters of Calabash Creek, in the Town of Calabash in Brunswick County, was issued on June 13, 1997 and most recently renewed by way of a Coastal Resources Commission variance on December 15, 2003. The Deceliiber 15, 2003 renewal extended the expiration date of the permit until December 31, 2006. Processing of the renewal request is now complete. Based on the state's review, the Division of Coastal Management has made the following findings: 1) On June 13, 1997, CAMA Major Permit No. l 1-97 was issued to Marsh Harbour Marina authorizing construction of additional marina docks, nineteen multi -unit residential buildings, a seven -story hotel, and the associated infrastructure development. 2) On October 5, 1999, the permit was transferred to Marsh Harbor Resorts, LLC. 3) A major modification was issued on July 31, 2000, changing the scheme of high ground development to include a larger hotel and conference center, a parking deck, 266 condominium units and 80 townhomes. 4) The permit was renewed on November 20, 2000, with a new expiration date of December 31, 2002. 5) A request for an additional two-year extension was denied pursuant to 15A NCAC 07J .0404 on March 10, 2003 because no substantial development had taken place on the permitted project as of that date. 400 Commerce Avenue, Morehead City, North Carolina 28557 Phone: 252-808-28081 FAX: 252-247-33301 Internet: www.nccoastalmanagement.net An Equal Opportunity 1 Affirmative Action Employer — 50% Recycled 110% Post Consumer Paper Marsh Harbour Resorts, LLC Page 2 of 2 6) On October 23, 2003, the Coastal Resources Commission granted a variance, allowing for an additional extension of the permit to be granted. As a result of this variance, a renewal to Permit No. 11-97 was granted on December 15, 2003. The new expiration date of the permit was December 31, 2006. 7) Based upon coordination between Division staff and the applicant, it has been determined that no substantial development has taken place on the authorized project since Permit 11-97 was originally issued. 8) Based upon the findings outlined above, the proposed project has been determined to be inconsistent with 15A NCAC 07J .0404, which requires that in circumstances such as this, the Division of Coastal Management may only renew a permit upon finding that substantial development has begun and is continuing on the permitted project. Given the preceding findings, it is necessary that your request for an additional renewal of CAMA Major Permit No. 11-97 be denied. This denial is made pursuant to N.C.G.S. 113A- 120 (4)(8), which requires denial for projects inconsistent with state guidelines or local land use plans. If you wish to appeal this denial, you are entitled to a hearing. The hearing will involve appearing before an Administrative Law Judge who listens to evidence and arguments of both parties and then makes a recommendation to the Coastal Resources Commission. Your request for a hearing must be in the form of a written petition, complying with the requirements of §15013 of the General Statutes of North Carolina, and must be filed with the office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, (919) 733-2698, within twenty (20) days from the date of this letter. A copy of this petition should also be filed with this office. Also, you should be advised that as long as this state permit renewal denial stands, your project must be deemed inconsistent with the N.C. Coastal Management Program, thereby precluding the issuance of federal permits for this project. The Federal Coastal Zone Management Act (CZMA) gives you the right to appeal this finding to the U.S. Secretary of Commerce within thirty (30) days of receipt of this letter. Your appeal must be on the grounds that the proposed activity is (1) consistent with the objectives or purposes of the CZMA, or (2) is necessary in the interest of national security, and thus, may be federally approved. Members of my staff are available to assist you should you desire to apply for a new permit. If you have any questions concerning this matter, please contact Mr. Doug Huggett at (252)808-2808. cerely ool� Charles S. Jones cc: Colonel John Pulliam - U.S. Army Corps of Engineers, Wilmington, NC Mr. David Kennedy, Director - OCRM/NOAA, Silver Spring, MD EMA NCDENR North Carolina Department of Environment and Natural Resources Division of Coastal Management Michael F. Easley, Governor Charles S. Jones, Director William G. Ross Jr., Secretary April 19, 2007 CERTIFIED MAIL RETURN RECEIPT REQUESTED Marsh Harbour Resorts, LLC 10155 Beach Drive Calabash, NC 28467 Dear Sirs: This letter is in response to your December 19, 2006 request under the Coastal Area Management Act (LAMA) to renew CAMA Major Permit No. I 1-97 for an additional two years. Permit No. 11-97, which authorized the construction of the Marsh Harbour Development adjacent to the waters of Calabash Creek, in the Town of Calabash in Brunswick County, was issued on June 13, 1997 and most recently renewed by way of a Coastal Resources Commission variance on December 15, 2003. The December 15, 2003 renewal extended the expiration date of the permit until December 31, 2006. Processing of the renewal request is now complete. Based on the state's review, the Division of Coastal Management has made the following findings: 11 1) On June 13, 1997, CAMA Major Permit No. 11-97 was issued to Marsh Harbour Marina authorizing construction of additional marina docks, nineteen multi -unit residential buildings, a seven -story hotel, and the associated infrastructure development. 2) On October 5, 1999, the permit was transferred to Marsh Harbor Resorts, LLC. 3) A major modification was issued on July 31, 2000, changing the scheme of high ground development to include a larger hotel and conference center, a parking deck, 266 condominium units and 80 townhomes. 4) The permit was renewed on November 20, 2000, with a new expiration date of December 31, 2002. 5) A request for an additional two-year extension was denied pursuant to 15A NCAC 07J .0404 on March 10, 2003 because no substantial development had taken place on the permitted project as of that date. 400 Commerce Avenue, Morehead City, North Carolina 28557 Phone: 252-808-28081 FAX: 252-247-33301 Internet: www.nccoastalrhanagement.net An Equal Opportunity 1 Affirmative Action Employer — 50% Recycled 110% Post Consumer Paper Marsh Harbour Resorts, LLC Page 2 of 2 6) On October 23, 2003, the Coastal Resources Commission granted a variance, allowing for an additional extension of the permit to be granted. As a result of this variance, a renewal to Permit No. I1-97 was granted on December 15, 2003. The new expiration date of the permit was December 31, 2006. 7) Based upon coordination between Division staff and the applicant, it has been determined that no substantial development has taken place on the authorized project since Permit 11-97 was originally issued. 8) Based upon the findings outlined above, the proposed project has been determined to be inconsistent with 15A NCAC 07J .0404, which requires that in circumstances such as this, the Division of Coastal Management may only renew a permit upon finding that substantial development has begun and is continuing on the permitted project. Given the preceding findings, it is necessary that your request for an additional renewal of CAMA Major Permit No. 1 I-97 be denied. This denial is made pursuant to N.C.G.S. 113A- 120 (a)(8), which requires denial for projects inconsistent with state guidelines or local land use plans. If you wish to appeal this denial, you are entitled to a hearing. The hearing will involve appearing before an Administrative Law Judge who listens to evidence and arguments of both parties and then makes a recommendation to the Coastal Resources Commission. Your request for a hearing must be in the form of a written petition, complying with the requirements of § 150B of the General Statutes of North Carolina, and must be filed with the office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, (919) 733-2698, within twenty (20) days from the date of this letter. A copy of this petition should also be filed with this office. Also, you should be advised that as long as this state permit renewal denial stands, your project must be deemed inconsistent with the N.C. Coastal Management Program, thereby precluding the issuance of federal permits for this project. The Fedcral Coastal Zone Management Act (CZMA) gives you the right to appeal this finding to the U.S. Secretary of Commerce within thirty (30) days of receipt of this letter. Your appeal must be on the grounds that the proposed activity is (1) consistent with the objectives or purposes of the CZMA, or (2) is necessary in the interest of national security, and thus, may be federally approved. Members of my staff are available to assist you should you desire to apply for a new permit. If you have any questions concerning this matter, please contact Mr. Doug Fluggett at (252)808-2808. ely, oc� S Charles S. Jones cc: Colonel John Pulliam - U.S. Army Corps of Engineers, Wilmington, NC Mr. David Kennedy, Director - OCRM/NOAA, Silver Spring, MD it. r NCDENR North Carolina Department of Environment and Natural Resources Division of Coastal Management Michael F. Easley, Governor Charles S. Jones, Director William G. Ross Jr., Secretary MEMORANDUM 01 `.\�, TO: Doug Huggett V uU' n FROM: Jim Gre 8son S s?„ �,71 Y/ t District Manager, Wilmington DATE: December 28, 2006 JAN 0 4 2007 SUBJECT: Modification and Renewal Requests Morehead City DCM CAMA Major Permit No. 11-97 y Marsh Harbour Resorts, LLC Brunswick County Land Management Group, Inc., on behalf of Ms. LaDane Williamson has submitted a request to renew State Permit No. 11-97. State Permit No. 11-97 was issued to Marsh Harbour Marina, c/o Odell Williamson on June 13, 1997, for the addition of docks to the existing marina basin, construction of the remainder of the planned townhouse units and a hotel and recreational facilities. The permit was transferred to Marsh Horbour Resorts, LLC on October 5, 1999 and the seven -story hotel was deleted per permit condition due to the implementation of a 35 foot height limit by the Town of Calabash. A Major Modification to State Permit No. 11-97 was issued on July 31, 2000, for the replacement of existing bulkheads, the filling of a 0.68 acre portion of the marina basin, maintenance dredging and a revision of the upland development plan including the construction of a seven story, 900 room hotel, and convention center with swimming pools and associated parking deck, four mid - rise condominiums, twenty condominiums, a clubhouse, a shop, a restaurant and nine stormwater infiltration ponds. The permit was renewed on November 20, 2000. A second renewal was issued by CRC Variance on December 15, 2003. The second renewal was conditioned to require that all walkways located within 30 feet of mean high water be constructed of pervious materials. The permit will expire on December 31, 2007. Mr. Gary Green, on behalf of the owner submitted a modification request for State Permit No. 11-97 on December 14, 2006. The requested modification is to allow fill material to be placed in the 0.68 acre portion of the marina basin prior to installation of the bulkhead and to allow the use of an alternative method of shoreline protection in the area of the proposed fill, as well as, the remainder of the permitted bulkhead replacement areas. The alternative method of construction would consist of a combination of grouted mattress and concrete block segmental wall in lieu of a typical vertical bulkhead. A silt curtain would be placed across the basin in the area of the proposed fill to prevent suspended sediments from entering the remaining portions of the marina basin. Conversations with the applicant's representative (Mr. Coleman Ramsey) on December 27, 2006, indicated that no development has taken place on the property since the December 15, 2003 renewal. It is therefore very unlikely that "substantial development" required under 15A NCAC 07J .0404 could occur prior to the expiration of the permit. If the applicant can not demonstrate that substantial development has taken place during the last development period, this Office would recommend that the current renewal and modification requests be denied. 127 Cardinal Drive Extension, Wilmington, N.C. 28405-3845 • Telephone 910-796-7215 • Fax 910-350-2004 An Equal Opportunity Affirmative Action Employer Modification and Renewal Request CAMA Major Permit No. 11-97 Marsh Harbour Resorts, LLC Page Two The applicant has submitted two checks (check No. 1024 and check No. 29031) each in the amount of $100 for the modification and renewal request. cc: Wilmington Files Ted Tyndall (DCM) Debbie Wilson (DCM) Dave Timpy (COE) 127 Cardinal Drive Extension, Wilmington, N.C. 28405-3845 • Telephone 910-796-7215 • Fax 910-350-2004 An Equal Opportunity Affirmative Action Employer LAND MANAGEMENT GROUP, INC. ENVIRONMENTAL CONSULTANTS P.O. BOX 2522 PH. 910-452-0001 WILMINGTON, NC 28402 PAY TO THE ORDER OF NC DENR One Hundred and DENR 127 North Cardinal Drive Wilmington, NC 28405-3845 MEMO COASTAL FEDERAL The Rippht Bank For You WILMINGTON, NC 28403 67-723512532 29031 12/20/2006 $ `A100.00 � f L9e 3 � M IIB02903Lill I: 2532723551:31570002541I' ENV RONMENTAL CO SUPUO TANTS 29031 NC DENR 12/20/2006 Date Type Reference Original Amt. Balance Due Discount Payment 12/20/2006 Bill Permit Fee 100.00 100.00 100.00 1 Check Amount 100.00 q, (t�11�t1 G Nkavk 4\C.A0L,, �esor l LLG �WhSWI(��L �• Coastal Federal Bank Renewal CAMA Major Permit Fee O I 0 I —05? 100.00 COLEMAN B. RAMSEY 1024 PH. 910-279-6603 86-112/531 11 CAUSEWAY DR SW /` 66-112BRANCH B 31 OCEAN ISLE BEACH, NO 28469-7605 w% A ///n.o 71�Y7/ _ ,i- BB&1 SAANCH BANNIND AND MST COMPANY 1J 11ANNBBT BBWT.. b I:0531011211:000529451992 2n601024 GiARY GREENE E N G I N E E R S POST OFFICE Box 99213 RALEIGH, NORTH CAROLINA 27624-9213 USA 919.855-8488 FAX 919-855-8489 E-MAIL: GKGREENE@GARYGREENE-ENGINEERS.COhi CIVIL M NSPORTANON MMUM6 M December 14, 2006 Mr. Jim Gregson NC Division of Coastal Management 127 Cardinal Drive Extension Raleigh, North Carolina 27611-7687 Subject: Marina Construction Marsh Harbour Resorts Brunswick County CAMA Permit 11-97 Dear Mr Gregson: On behalf of the owner, we are requesting approval of two minor modifications to subject permit. The first is to allow fill material to be placed in an area of the harbor as allowed by existing permit prior to installation of a bulkhead / vertical wall. A silt curtain will be placed along the small cove to eliminate suspended sediments outside of the small cove. The second modification is to allow an alternate utilization of shore protection method incorporating a combination of grouted mattress and concrete block segmental wall in lieu of bulkhead construction. This change will be applicable to the all permitted shoreline locations of the project We have attached both a plan illustrating the phase of construction and typical section of the proposed shoreline structure modification for your review. The modification places a protected slope in front of the wall. Grouted mattress is a construction technique that utilizes two layers of geotextile fabric that are stitched together at intervals and is placed on a slope. Concrete is pumped into the fabric to create a concrete mat located between the fabric. Admixtures are added to the concrete to allow for placement underwater without degradation to the concrete mixture. Th is type of slope protection has been installed and performed successfully at various coastal locations in North Carolina. A segmental concrete block retaining wall will be constructed to the desired top of wall elevation. This type of construction has been utilized for retaining walls (Keystone, Versalock and other manufacturers) and we have successfully used the product for shore protection at other locations. We trust that this information is sufficient for your review and request any assistance in expediting this modification request. If you have any questions or need additional information, please advise. Sincerely, Gary K. Greene Attachments cc: Mr. Doug Huggett w/ attachments N N 0 O ra m o m F >a Z Z N I I O p O O " NOTE. SECOND WALL NOT REQUIRED m PLACE FILTER FABRIC ON CAN SLOPE ETHER 3.1 OR 4.1 AND N TOP OF STONE BACKFILL AT MIN PROVIDE SECOND WALL WHERE DESIRED 0 6' BELOW FINISHED GRADE. PLACE VARIES 8.5t Z TOPSOIL ON TOP OF FABRIC T 0 / 4' CAP UNIT / Fl FV 5.67 / D > m ELEV 3.38 MHHW KEYSTONE STANDARD UNIT CHOR FABRIC / C7 a D = G) m / M / CKFILL / i = Z TURN DOWN MAT AT WALL / JA4 CRUSHED �� ? m TD / - ELEV 0.0 NGVD DATUM ROCK OR STONE) Z o CD / SEPARATE BACKFILL FROM z A -1 33 - NATIVE SOIL w/ FILTER FABRIC m D Fl FV -1.79 MI I W � - . o � CO r •; . - - _ -. �"`�;% -1- ... APPROXIMATE -��'� a m C _ _ - - - 'o-3'-0'-I EXCAVATION UNE 0 o _ - 3000PSI CONCRETE a M AS MAT Z (� > Z ELE�-7 % BURY MAT 2'-0' MIN n 8 BELOW DREDGE SURFACE � o R m � rr N x� m ti m� S Nh1 N O A z O N'Z 0 o t4 T N N 10 INSTALL SILT CURTAIN SCALE 1"=300' DESIGN: gg DRAWN: gg CHECKED: — PROJ. d : — SCALE : AS NOTED 02 PLACE FILL IN AREA PER PERMIT I NC HWY 179 03 CONSTRUCT NEW VERTICAL WALL AROUND THE PERIMETER OF THE HARBOR INCLUDING NEWLY FILLED AREA. ALTERNATE WALL TO BE AS PER SECTION INDICATED ON SHEET 2 a v4 REVISION PHASING REVISION PLAN MARSH HARBOR BULKHEAD LADANE PROPERTIES, INC CALABASH, NORTH CAROLINA Iso.nL POST OERCE BOX 99213 RALEW. NC 29624 DATE:'12/06 SHEET 1 OF 2 LMG LAND MANAGEMENT GROUP INC. Environmental Consultants December 19, 2006 TO: Ms. Debbie Wilson Division of Coastal Management 127 Cardinal Drive Extension Wilmington, NC 28405 RE: Marsh Harbour Resorts; Brunswick County, NC CAMA Major Permit #11-97; Request for Renewal Dear Ms. Wilson: On behalf of Ms. LaDane Williamson, I am requesting a renewal of the CAMA Major Permit (#11-97) for the Marsh Harbour Resorts project in Brunswick County, NC. The original permit was significantly altered and the applicant was issued a Major Modification on July 31, 2000, which has been renewed twice by the applicant. The current expiration date for the permit is December 31, 2006. Although construction is underway, the applicant will not be able to complete all permitted activities and a third extension is requested. Enclosed are copies of the permits received in 1999, 2000 and 2003. I have also enclosed a permit renewal fee of $100. If you need any additional information, please do not hesitate to call. Thank you for your assistance with this project. Sincerely, fLwl" Kim Williams Wetlands Scientist Encl. RECEIVED C: Mr. Coleman Ramsey DCM '^111 MINGTON, NC DEC 2 2 2006 www.lmgroup.net • info@lmgroup.net • Phone: 910.452.0001 • Fax: 910.452.0060 3805 Wrightsville Ave., Suite 15, Wilmington, NC 28403 • P.O. Box 2522, Wilmington, NC 28402 IAN.15.2H14 5.1£F41 Permit Class 2nd RENEWAL (by CRC Variance) NC.1652 " 3 Permit Number 11-97 STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission 0 for X Major Development in an Area of Environmental Concern pursuant to NCGS 113A-I I & X Excavation and/or filling pursuant to NCGS 1.13-229 Issued to Marsb Harbour Resorts, LLC, 10155 Beach Drive, Calabash, NC 28467 Authorizing development in Brunswick County at Calabash River, Beach Drive of Hwy. 179 as requested in the permittee's application dried letter dated 12/11/02 This permit, issued on December 15, 2003 , is subject to compliance with the application (where consistent with the potmit), all applicable regulations, special eeeditlaaa and notes sat forth below. Any violation of these terms :nay be subject to fines, imprisonment or civil action; or may "use the permit to be null and void. 1) This renewal must be attached to the original of Permit No. 11-97, which was transferred to Marsh Harbour Resorts LLC on 101999, as well as the Major Modification of 7/31/00 and the renewal of 11/20/00, and all documents must be readily available on site when a Division of Coastal Management representative inspects the project for compliance. 2) All conditions and stipulations of tho active permit remain in force under this renewal except as altered berein.+ 3) In accordance with the variance granted by the Coastal Resources Commission on 10/23/03, all walkways that are located within 30 feet of the mean high water line shall be constructed of pervious materials. The permittee should contact a representative of the'Division of Coastal Management a wuw ouywiivaw pct•wuS wauway matcnals ancuor designs. This permit action hiay be appealed by the parmilwc or other quaiified petsors within twenty (20) days of the issuing date. An appeal requires resolution pnor to work initiation or continuance u the case may be. This permit mast be accessible on -site to Dwaremttt Personnel when the project is inspected for eomptiaecs. Any maintenance work or pmject modification not coveted he tvundar mquims further t]ivlsion approval. All work must cease when the permit expires on December 31, 2006 In issuing this permit, the State of North Carolina agrees that yaw project is consistant with the North Carolina Coastal Management Pmarsitt by the authority of the Secretary of DEAR and the m of tho Coastal, I eaeurcea Commission. �n`' /17�s7f` �— Donfik D. Moffitt, Director /'Division of Coasts Management Ibis pennit and Its conditions are hereby!Sc •34d, DCM WILMINGTON, NC DEC 2 2 2006 Signature of ?=.-. ittee ]h•J TM1-/T 'n cT upr lojta i)- Tr-XPJ -,,u , nip NnAT n>r = Permit Class RENEWAL Permit Number 11-97 STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission Permit for X_ Major Development in an Area of Environmental Concern pursuant to NCGS 113A-118 X Excavation and/or filling pursuant to NCGS 113-229 Issued to Marsh Harbour Resorts, LLC, 10155 Beach Drive, Calabash, NC 28467 Authorizing development in Brunswick County at Calabash River Beach Drive off of Hwy. 179, Calabash , as requested in the permittee's application dated letter dated 1111/00. This permit, issued on November 20, 2000 , is subject to compliance with the application (where consistent with the permit), all applicable regulations, special conditions and notes set fortb below. Any violation of these terms may :__, ._ a--- t ennmant nr rivil aetion_ or may cause the permit to be null and void. 1) This renewal must be attached to the original of Permit #11-97, which was transferred to Marsh Harbour Resorts, LLC on 10/5/99,.as well as the Major Modification which was issued on 7/31/00, and all documents must be readily available on site when Division personnel inspect the project for compliance. 2) All conditions and stipulations of the active permit remain in force under this renewal. This permit action may be appeateo oy me permtnec ur other qualified persons within twenty (20) days of the issuing date. An appeal requires resolution prior to work initiation or continuance as the case may be. This permit must be accessible on -site to Department personnel when the project is inspected for compliance. Any maintenance work or project modification notcovered hereunder requires further Division approval. All work must cease when the permit expires on December 31, 2002 In issuing this permit, the State of North Carolina agrees that your project is consistent with the North Carolina Coastal Management Program. RECEIVED DCM WILMINGTON, NC! DEC 2 2 2006 o....__,......i nI wl? and fhi u%g '..q ........-_...... __ _ Chairman of the Coastal Resources Commission. e onn . Moffitt, Director Division of Coastal Management This permit and its conditions are hereby accepted. ffil W Llc' Figo';4J, �i*jg auerren I�P:cn qn PT 0aR e�� , `M_ E`oclosure NCDENR JAMES B. HUNT JR. GOVERNOR BILL HOLMAN SECRETARY Marsh Harbour Resorts LLC 10155 Beach Drive Calabash, NC 28467 DONNA D. MOFFITT Dear Sir: DIRECTOR NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES Novwmber 20, 2000 DIVISION OFCOASTAE MANAGEMENT The enclosed permit constitutes authorization under the Coastal Area Management Act, and where applicable, the State Dredge and Fill law, for you to proceed with your project proposal. The original (buff -colored form) is retained by you and it must be available an site when the project is inspected for compliance. Please sign both the original and the copy and return the copy to this office in the enclosed envelope. Signing the permit and proceeding means you have waived your right of appeal described below. If you object to the permit or any of the conditions, you may request a hearing pursuant to NCGS 113A-121.1 or 113.229. Your petition for a hearing must be filed in accordance with NCGS Chapter 150B with the Office of Administrative Hearings, P.O. Drawer 11666, Raleigh, NC 27611, (919) 733-2698 within twenty (20) days of this decision on your permit. You should also be aware that if another qualified parry submits a valid objection to the issuance of this permit within twenty (20) days, the matter must be resolved prior to work initiation. The Coastal Resources Commission makes the final decision.on any appeal. The project plan is subject to those conditions appearing on the permit form. Otherwise, all work must be carried out in accordance with your application. Modifications, time extensions, and future maintenance require additional approval. Please read your permit carefully prior to starting work and review all project plans, as approved. If you are having the work done by a contractor, it would be to your benefit to be sure that he fully understands all permit requirements. From time to time, Department personnel will visit the project site. To facilitate this review, we request that you complete and mail the enclosed Notice Card just prior to work initiation. However, if questions arise concerning permit conditions, environmental safeguards, or problem areas, you may contact Department personnel at any time for assistance. By working in accordance with the permit, you will be helping to protect our vitally important coastal resources. Very sincerely, RECEIVEL DCM w1LhA1K1^Tr)N, NC DouglasHuggett DEC 2 2 2006 Major Permits/Consistency Manager DH/amw rb Enclosure MAILING: 1635 MAIL SERVICE CENTCR, RALEIGH, NORTH CAROLINA 17699-1638 PHYSICAL: 2726 CAPITAL BLVO., RALEIGH, Me 27604 PMONE: 919.733-2293 FAX: 919.733. 1495 AN EQUAL OPPORTUNITY / AFFIRMATIVE ACTION EMPLOYER - 50% RECYCLED / 10% POST -CONSUMER PAPER DENR TOLL FREE HOTLINE: 1-877-623-6748 •,Oc Ton On OT Dan Permit Class MODWICATION/MAJOR STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission permit for X Major Development in an Area of Environmental Concern pursuant to NCGS 113A-118 X Excavation and/or filling pursuant to NCGS 113-229 Issued to Marsh Harbour Resorts, LLC,10155 Beach Drive, Calabash, NC 28467 authorizing development in Calabash Permit Number 11-97 County at Calabash River, Beach Drive off of Hwy. 179, , as requested in the permiuee's application dated 5/8/00 including attached workplan drawings, 2, 3, 6-13, and 15A-B of 15, all dated 3/31/00, 4,5, 14 and 15 of 15, all dated 3/10/00. Brunswick /-11X0 L , is subject to compliance with the application (where consistent This permit, issued on j P PP with the permit), all applicable regulations, special conditions and notes set forth below. Any violation of these terms may he subiect to a fine, imprisonment or civil action; or may cause the permit to be null and void. Upland Development 1) 1n keeping with approvals granted by the Town of Calabash on 7/26199, the authorized hotel facility shall have a maximum of 900 rooms. 2) In no case may any structure exceed any height limits set by the Town of Calabash. 3) The 10' wide boardwalk around the edge of the bulkhead shall be wooden and elevated slightly above the adjacent substrate elevation. RECEIVED DCM WILMINGTON, NC_ DEC 2 2 2006 (See attached sheets for Additional Conditions) This pennit_action may be appealed by the permittee or other qualified persons within twenty (20) days of the issuing date. An appeal requires resolution prior to work initiation or continuance, as the case may be. This permit must be accessible on -site to DeparIInent personnel when the project is inspected for compliance. Any maintenance work or project modification not covered hereunder requires further Departmental approval. All work must cease when the ppermit expires on December 31 It 000 In issuing this permit, the State of North Carolina agrees that your project is consistent with the North Carolinas Coastal Management Program. Signed by the authority of the Secretary of DENR and the Chairman of the Coastal Resources Commission. nna D.Moffirt,Director Division of Coastal Management This pe 't and its conditions are hereby accepted. , Signature of Pemtittee o-o•o�c n ♦n u.in.l.,n� „rorto� ACDtCn on QT oarr Page 2 of 5 ADDITIONAL CONDITIONS Shoreline Stabilization 4) The authorized bulkhead alignment, as depicted in the attached workplan drawings, must be staked by a representative of the Division of Coastal Management within a maximum of 30 days prior to the start of construction. 5) The bulkhead must be constructed prior to any backfilling activities. 6) The bulkhead must be structurally tight so as to prevent seepage of backfill materials through the structure. 7) The bulkhead must be solid and constructed of treated wood, concrete slabs, metal sheet piles or other suitable materials approved by department personnel. 8) The backftll material will be clean and free of any pollutants except in trace quantities. Metal products, organic materials, or unsightly debris will not be used. Excavation and Fill 9) In order to protect juvenile shrimp and finfrsh populations, no excavation or filling will be permitted between April 1 and September 30 of any year without the prior approval of the Division of Coastal Management. 10) Excavation shall not exceed ten (10) feet below the elevation of mean low water in the access channel, and eight (8) feet below the elevation of mean low water in the canal and boat basin. In no case shall the depth of excavation exceed that of the connecting waters. 11) The Division of Coastal Management shall be notified in writing at least two (2) weeks in h..-d+. .hise...,it This, •...«e ^otifcation "]I . advance ofany maintenance' cxcava'c.: a... �.... ..y p.•... ••• •• include: A. The number of the original permit. B. A statement that no dimensional changes of the dredge area are proposed. C. A copy of the original permit plans with cross -hatching indicating the area to be excavated, the area to be used for spoil disposal, and the estimated amount of material to be removed. D. The date of map revision and the permittee's signature shown anew on the revised plan. NOTE: A determination by Division personnel that the spoil disposal site is inadequate to contain the material resulting from the requested maintenance dredging will require that either a) the amount of material proposed for removal be reduced to an amount equal to the holding capacity of the disposal site, or b) a new disposal site(s) be located and approved by Division personnel by way of a modification to this permit. RECEIVED DCM WILMINGTON, NC DEC 2 2 2006 _ , ...... ..... ,.... ­.,...e .n.A ins. 4,o!cn on or ❑an r — Permit #11-97 Marsh Harbour Resorts Page 3 of 5 ADDITIONAL CONDITIONS 12) All excavated materials will be confined above mean high water and landward of regularly or irregularly flooded marsh behind adequate dikes or other retaining structures to prevent spillover of solids into any marsh or surrounding waters. 13) The diked disposal area will be constructed a sufficient distance from the mean high water level or any marsh to eliminate the possibility of dike erosion into surrounding wetlands or waters. Marina Development and Operation 14) The existing marine pumpout sewage disposal facility shall be maintained and operable for the life of the marina. , 15) The marina will display a signs showing the location of the on -site pumpout facility, including other appropriate waste disposal information, at the entrance and exit from the main piers. 16) Into sewage, whether treated or untreated, shall be discharged at any time from any boats using the marina. Any sewage discharge at the marina shall be considered a violation of this permit for which the permitter is responsible. This prohibition shall be applied and enforced throughout the entire existence of the permitted structures. 17) This permit authorizes only the docks, piers, and other structures and uses located in or over the water that are expressly and specifically set forth in the permit application. No other structure, whether floating or stationary, may become a permanent part of this marina facility without permit modification. No non -water dependent uses of structures may be conducted on, in or over public trust waters without permit modification. ,: 1S) this perailt aU'JUUJt -e5 a ntaAnTF1i 1' VL LJ r m Sup.+. 19) No attempt will be made by the permittee to prevent the full and free use by the public of all navigable waters at or adjacent to the authorized work. 20) The authorized structure and associated activity must not cause an unacceptable interference with navigation. 21) The permittee will maintain the authorized work in good condition and in conformance with the terms and conditions of this permit. The permittee is not relieved of this requirement if he abandons the permitted activity without having it transferred to a third party. RECEIVED DCM WILMINGTON. NO DEC 2 2 2006 ..� iror_o,c_nrc uolaeuodjon auenel JiC:60 9D B1 oa0 Marsh Harbour Resorts Permit till-97 Page 4 of 5 ADDITIONAL CONDITIONS 22) The permittee understands and agrees that, if future operations by the United States requires the removal, relocation, or other alteration of the structure or work authorized by this permit, or if in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove relocate or alter the structural work or obstructions caused thereby, without expense to the United States or the state of North Carolina. No claim shall be made against the United States or the state of North Carolina on account of any such removal or alteration. Sedimentation and Erosion Control 23) All disturbed areas will be properly graded and provided a ground cover sufficient to restrain erosion within 30 working days of project completion. 24) The permitted activity will be conducted in such a manner as to prevent a significant increase in turbidity outside of the area of construction or construction -related discharge. Increases such that the turbidity in the waterbody is 25 NTU's or less in all saltwater classes are not considered significant. NOTE: An Erosion and Sedimentation Control Plan will be required for this project. This plan must be filed at least thirty (30) days prior to the beginning of any land disturbing activity. Submit this plan to the Department of Environment and Natural Resources, Land Quality Section, 127 Cardinal Drive Extension, Wilmington, NC 29405. NOTE: The permittee is advised to contact the Department of Environment and Natural Resources, Land Quality Section, 127 Cardinal Drive Extension, Wilmington, NC 28405, to determine if a modification to Mining Permit No. 10-07 is necessary. Stormwater Management 25) The Division of Water Quality approved this project under stormwater management rules of the Environmental Management Commission on 12/20/99 (Permit No. SW 8920522). Any violation of the permit approved by the DWQ will be considered a violation of this CAMA permit. VAr—t"CI V t_� DCM WILMINGTON. N( DEC 2 2 2006 a•d 4c4T-P1c-n TR uoczeuoduo� auene-) dbC:6o 90 BT aa❑ Marsh Harbour Resorts ADDITIONAL CONDITIONS Permit #11-97 Page 5 of 5 Endangered Species Protection 26) To avoid impacts to the federally -endangered red -cockaded woodpecker (Picoides borealis), prior to the removal of any pine trees greater than or equal to 10 inches dbh (diameter at breast height) or 30 years of age within the project boundary, surveys shall be conducted for active red - cockaded woodpecker cavity trees in appropriate habitat within a 1/2 mile radius of the project's boundary. The results of these surveys and a description of the tree removal must be coordinated with the Corps of Engineers and the US Fish and Wildlife Service. Only after receiving concurrence from the Corps that the proposed work will not impact the red -cockaded woodpecker may pine tree removal commence. 27) To avoid impacts to the federally -endangered wood stork (Mycteria americana), prior to the removal of any large trees in or within 500 feet of the normal high water mark of any water body, or prior to undertaking any impacts to waterbodies within the project boundaries, including the raising or lowering of water tables, the permittee shall coordinate with the Corps of Engineers and the US Fish and Wildlife Service. Only after receiving concurrence from the Corps that the Proposed work will not impact the wood stork may pine tree removal commence. General 28) No vegetated wetlands will be excavated or filled outside of the area indicated on the attached workplan drawings.. 29) The temporary placement or double handling of fill materials within waters or vegetated wetlands is not authorized. ,_ t'..-:--•^ -''.• _ .•A t6 �.'i:u n ary : d;*ie n'l Prmitn n„nrnyalc nr NOTE. This k1R��t uue3 nv� �.aiu uuw... �.u. ..wu u p"•"'"'"-� -�'r" authorizations that may be required. NOTE: The N.C. Division of Water Quality has authorized the proposed project General Water Quality Certification No. 3274 (DWQ Project No. 000822), which was issued on 7/21/00. NOTE: The U.S. Army Corps of Engineers has assigned the proposed project COE Action Id. No. 200001404. t'YCI.JGI V Cv DCM WILMINGTON, NC DEC 2 2 2006 a•d bg9i-6/.9-016 uoizeJ0dJ03 aueael dse:Eo 90 at oaQ Permit Class TRANSFER Issued to STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission vermit X for Major Development in an Area of Environmental Concern pursuanttoNCGS 113A-118 X Excavation and/or filling pursuant to NCGS 113-229 Marsh Harbour Resorts, LLC, 10155 Beach Drive, Calabash, NC 28467 authorizing development in Calabash Brunswick Permit Number 11-97 County at adj. Calabash Creek, 10155 Beach Drive, Town of as requested in the permittee's application dated 5/15/96 including attached workplan drawings, I dated 5/19/96, 1 dated received 8/12/96, and 2 (C-1 and C-2) dated existing as of July 1996. This permit, issued on IO/S/ 2 / , is subject to compliance with the application (where consistent with the permit), all applicable regulations, special conditions and notes set forth below. Any violation of these terms may t,> ," a fine imnrimriment or civil action; or may cause the permit to be null and void. 1) The Town of Calabash has implemented a 35 foot height limit on the construction of new structures. Therefore, in accordance with T15A:07H.0601 of the Rules of the Coastal Resources Commission, which states that "No development shall be allowed in any AEC which would result in contravention or violation of any rules, regulations, or laws of the State of North Carolina or of local government in which the development takes place", the proposed seven story hotel is not authorized under this permit. - NOTE: I.`, in the future, approval is received from the Town of Calabash to cons:; mac_ :�::.:..:--,•en story hotel, the permittee may request that this permit be modified to authorize RECEIVED construction o. rats st.—uctarc. DCM WILMINGTON, (See attached sheets for Additional Conditions) DEC 2 2 2006 This permit_action may be appealed by the permittee or other qualified persons within twenty (20) days of the issuing date. An appeal requires resolution prior to work initiation or continuance, as the case may be. This permit must be accessible on -site to Department personnel when the project is inspected for compliance. Any maintenance work or project modification not covered hereunder requires further Departmental approval. All work must cease when the�permit expires on December 31. 200 In issuing this permit, the State of North Carolina agrees that your project is consistent with the North Carolina Coastal Management Program. Signed by the authority of the Secretary of DENR and the Chairman of the Coastal Resources Commission. rma D.Moffttt,Director Division of Coastal Management This oerm.A and its conditions are hereby accepted. signature of Permittee nt •d bg9T-6/.9-016 uotZeuoduo3 aueael dSE:eo 90 ST oarl Marsh Harbour Resorts, LLC Permit 911-97 Page 2 of 4 ADDITIONAL CONDITIONS Excavation and Fill 2) In order to protect juvenile shrimp and fmfish populations, no excavation or filling will be permitted between April 1 and September 30 of any year without the prior approval of the Division of Coastal Management. 3) Excavation shall not exceed ten (10) feet below the elevation of mean low water in the access channel, and eight (8) feet below the elevation of mean low water in the canal and boat basin. 4) The Division of Coastal Management shall be notified in writing at least two (2) weeks in advance of any maintenance excavation authorized by this permit. This written notification shall include: A. The number of the original permit. B. A statement that no dimensional changes of the dredge area are proposed. C. A copy of the original permit plans with cross -hatching indicating the area to be excavated, the area to be used for spoil disposal, and the estimated amount of material to be removed. D. The date of map revision and the permittee's signature shown anew on the original plan. NOTE: A determination by Division personnel that the spoil disposal site is inadequate to contain the material resulting from the requested maintenance dredging will require that either a) the amount of material proposed for removal be reduced to an amount equal to the holding capacity of the disposal site, or b) a new disposal site(s) be located and approved by Division personnel. 5) All excavated materials will be confined above mean high water and landward of regularly or irregularly flooded marsh behind adequate dikes or other retaining structures to prevent spillover of solids into any marsh or surrounding waters. 6) The diked disposal area will be constructed a sufficient distance from the mean high water level or any marsh to eliminate the possibility of dike erosion into surrounding wetlands or waters. 7) No vegetated wetlands will be excavated or filled. 8) The temporary placement or double handling of fill materials within waters or vegetated wetlands is not authorized. Marina Development and Operation 9) The existing marine pumpout sewage disposal facility shall be maintained and operable for the life of the marina. rn cv , v G — DCM WILMINGTON, NC DEC 2 2 2006 TT•d bgRt-R/.q-niR uoTZeJoduoo aueae-1 d9E:E0 90 BT 08a Marsh Harbour Resorts, LLC Permit #11-97 Page 3 of 4 ADDITIONAL CONDITIONS 10) The marina will display a sign showing the location of the on -site ptttnpout facility, including other appropriate waste disposal information, at the entrance and exit from the main piers. 11) No sewage, whether treated or untreated, shall be discharged at any time from any boats using the marina. Any sewage discharge at the marina shall be considered a violation of this permit for which the permittee is responsible. This prohibition shall be applied and enforced throughout the entire existence of the permitted structures. 12) This permit authorizes only the docks, piers, and other structures and uses located in or over the water that are expressly and specifically set forth in the permit application. No other structure, whether floating or stationary, may become a permanent part of this marina facility without permit modification. No non -water dependent uses of structures may be conducted on, in or over public trust waters without permit modification. Stormwater Management 13) The Division of Water Quality approved this project under stormwater management rules of the Environmental Management Commission on 6110l97 (Permit No. SW8 920522). Any violation of or deviation from the plan approved by the DWQ will be considered a violation of this CAMA permit. Sedimentation and Erosion Control 1) All disturbed areas will be properly graded and provided a ground cover sufficient to restrain erosion within 30 working days of project completion. i5} The permitted aca::ty Wlll b.' condt:.-tzd in ��:-"1= ==='a.� .. fir .�C Ifl t�- mt o gignifirant inr•rracr. In turbidity outside of the area of construction or construction -related discharge. Increases such that the turbidity in the waterbody is 25 NTU's or less in all saltwater classes are not considered significant. NOTE: An Erosion and Sedimentation Control Plan will be required for this project. This plan must be filed at least thirty (30) days prior to the beginning of any land disturbing activity. Submit this plan to the Department of Environment and Natural Resources, Land Quality Section, 127 Cardinal Drive Extension, Wilmington, NC 29405. NOTE: The permittee is advised to contact the Department of Environment and Natural Resources, Land Quality Section, 127 Cardinal Drive Extension, Wilmington, NC 28405, to determine if a modification to Mining Permit No. 10-07 is necessary. RECEIVED DCM WILMINGTON, NC DEC 2 2 2006q 7T•d 4rS9T-6L9-n16 Ljo T2VJodJo3 auvael d9Ereo 90 at o8a Marsh Harbour Resorts, LLC Permit 411-97 Page 4 of 4 ' ADDITIONAL CONDITIONS 16) No attempt will be made by the permittee to prevent the free and full use by the public of all navigable waters at or adjacent to the authorized work. Use of the permitted activity must not interfere with the public's right to free navigation on all navigable waters of the United States. 17) The permittee will maintain the authorized work in good condition and in conformance with the terms and conditions of this permit. The permittee is not relieved of this requirement if he abandons the permitted activity without having it transferred to a third party. 19) This permit does not alleviate the need to obtain other Federal, State or local permits or authorizations that may be required. NOTE: If the permittee discovers any previously unknown historic or archaeological remains while accomplishing the authorized work, he will immediately notify the District Engineer, Wilmington Branch, U.S. Army Corps of Engineers at (910) 251-4511, who will initiate the required State and Federal coordination. NOTE: Future development of the permittee's property may require a modification of this permit. Contact a representative of the Division at (910) 395-3900 prior to the commencement of any such activity for this determination. NOTE: It is requested that the permittee contact the New Hanover Mosquito Control Office at (910) 253-2515 to discuss mosquito control measures. NOTE: The N.C. Division of Water Quality has authorized the proposed project under General Water Quality Certification No. 3025 (DWQ Project No. 961106), which was issued on 12/31/96. NOTE:- The U.S. Army Corps of Engineers has assigned the proposed project COE Action Id. 1'01AI CA L\V. JJIVIV IV. RECEIVE+_ DCM lent nAINC ` DEC 2 2 2006 CT•d bCgT-Fz/.G-nTF uoizeuoduo3 aueael d9E:E0 90 81 oa0 JAN.15.2004 5:18PM N0 7652 P ? Permit Class 2nd RENEWAL ry CRC Variance) RECEIVED Permit Number 11-97 STATE OF NORTH CAROLINA Deparbnent of Environment and Natural Resources Ina DCM WILMINGTON, NC DEC 2 0 2006 Coastal Resources Commission for —2L Major Development in an Area of Environmental Concern pursuant to NCGS 113A-118 X Excavation and/or filling pursuant to NCGS 1 13-229 Tssucd tc Xarsh Harbour Resorts, LLC, 10155 Beach Drive, Calabash, NC 28467 Authorizing development in Brunswick County at Calabash River Beach Drive ofHwy. 179 . as requested in the permittee's application data4 letter dated 12/11/02 This permit, issued on _ December 13 2003 is subject to compliance with the application (where consistent with the permit), all applicable regulations, special conditions and notes set forth below Any violation of these terms ma be subject to fines, imprisonment or civil action; or may tango the permit to be null and void, y r- 1) This renewal must be attached to the original of Permit No. 11-97, which was transferred to Marsh jor Modification of 7/31/00 and the renewal of Harbour Resorts LLC on 10/5/99, as well as the Ma 11/20/00, and all documents must be readily available on site when a Division of Coastal Management representative inspects the project for compliance. 2) All conditions and stipulations of the active permit remain in force under this altered herein.+ renewal except as 3) in accordance with the variance granted by the Coastal Resources Commission on 10/23/03, all walkways that are located within 30 feat of the mean high water line shall be constructed of pervious materials. The peratittee should contact a representative of tha Division of Coastal Management pnor to initiation of walkway constztetien for a confirmation of appropriate pervious walkway materials and/or designs. This permit action may be appealed by the permittee or Other qualified persons within twenty (20) days of the issuing date. Am appeal requires resolution pnor to work initiation or continuance as the case May be. This perrait mast be accessible on -site to Department personnel when the project is inspechtd for Compliance. Any maintenance work or project mod fication not covered hereuttdmr mquioas further Division approval. All work must cease when the pennit expires on December 31, 2006 In issuing this permit, the State of North Carolina agrees that your project is consistent with the North Carolina Coastal Management Program. Signed by the authority of the Secretary of DENR and the Chairman of the Coastal Resources Commisaien. �l Oonilh. D. Moffitt, Director Division of Coastal Management This permit and Its conditions are hereby accepted. Signature of Per:nittee 40 cn•� Tn-JT fill CT IAIr /0/0-Q7)- Ta„XPA -.N I N7.R0A7AK- ---- N.C. Division of Coastal Management 400 Commerce Avenue ImOR un CITY Morehead City, NC 28557 ;— W A=�-' NC 28557 u N1I1Lr:$0.L10 $0.410 $0.410 Tel. 252-808-2808 L- Q -�\ � $0,419 taMETER ___� ---- \ � li ^CT 'S 07 38121i86 Marsh Harbour Resorts, LLC 10155 Beach Drive ` Calabash NC Se,01 7*17f31-moo SIC11f) 2e55703560 NIXIE 203 4E 1 06 S1/05/07 RETURN TO SENDER NO MAIL RECEPTACLE UNABLE TO FORWARD SC: 20557356099 *2254-00920-30-43 I„I,IL,I,JJ„I,L1;)J„II,J,I)jILjIII 11LLIL6,,,,111 Y MARSH HARBOUR RESORTS, LLC 11 CAUSEWAY DRIVE OCEAN ISLE BEACH, NORTH CAROLINA 28469 January 26, 2007 Mr. Charles Jones, Director Coastal Area Management Agency JAN 2 9 2007 400 Commerce Avenue Morehead City, North Carolina 28557 Morehead City DCM RE: CAMA MAJOR PERMIT 11-97 Dear Mr. Jones; As you are aware Ms. LaDane Williamson, owner and president of Marsh Harbour Resorts, LLC, has applied to the Coastal Area Management Agency (CAMA) for renewal of the above referenced major permit for development of Marsh Harbour Resorts (hereafter referred to as The Property). The permit expired December 31, 2006. I want to take this opportunity to explain the chronology of events that prohibited Ms. Williamson from initiating the development of The Property. This permit was renewed and issued on January 15, 2004. At the time the permit was renewed, Ms. Williamson was involved in a lawsuit with Marsh Harbour Golf and Yacht Club Interval Association. The lawsuit was resolved on May 23, 2005. During the course of that lawsuit the Town of Calabash on January 11, 2005 changed the zoning on the property from a Planned Unit Development (PUD) to the most restrictive zoning of R-15. As a result of this rezoning change, Ms Williamson filed a lawsuit against the Town of Calabash, asking the court to recognize that she has vested rights in the PUD and requesting that the court restore The Property back to the original PUD. On August 16, 2006 the Town of Calabash settled the lawsuit by agreeing with Ms. Williamson and reinstating the property to the original approved PUD. Following the settlement of the lawsuit with the Town of Calabash, I had several meetings with Mr. Jim Gregson concerning obtaining two variances to the permit. The variances are necessary in order to begin development work in the marina portion of the property. After the meetings with Mr. Gregson, I obtained the engineering services of Gary Green Engineering in Raleigh to submit the necessary drawings to CAMA to obtain the requested variances. As you may be aware, with the amount of development in the Brunswick County area, the demand on engineering services is taxed to the limit. In obtaining the services of a Raleigh area engineer it was anticipated that the necessary drawings would have been submitted in early October 2006. This would have allowed adequate time for CAMA to review our request and for us to have made substantial progress in the development of The Property. This did not happen and our request was not submitted to CAMA until early December 2006. Obviously this did not Pagetwo Mr. Jones allow CAMA the time necessary to review the application or for us to make substantial progress toward development of The Property. For obvious business reasons Ms Williamson could not proceed with the development of The Property until the two lawsuits were settled. We feel that we made a good faith effort, once the lawsuits were settled, to move forward with the development of The Property. However, for reasons outside of our control we were unable to accomplish this goal. We respectfully request that you review our application for a renewal of the CAMA major permit utilizing the above detailed information and the attached court documents. We feel that we have vested rights in this permit and that it would be both unfair to the taxpayers of North Carolina and Ms Williamson to move this matter into the courts. As I have indicated to you in the past I greatly respect and appreciate the services of the men and women of CAMA. I am looking forward to working with CAMA on our many pending projects. Your review of this matter is greatly appreciated. If I may be of any assistance please telephone me at 910-279-6603. Cest regards, Coleman B, Ramsey Director of Operations cc: Jim Gregson LaDane Williamson Doug Hugget, Manager attachments: court documents STATE OF NORTH CAROLINA COUNTY OF BRUNS WICK pics'Za JAN29 2! Morehead City DCM SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS THIS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS (hereinafter, "Settlement Agreement") entered into On the date set forth below by and between MARSH HARBOR RESORTS, LLC (hereinafter, "MHR"). party of the first pan, am TOWN OF CALABASH, NORTH CAROLINA, a municipal corporation (hereinafter, "Town"); BOARD OF COMMISSIONERS, TOWN OF CALABASH, NORTH CAROLINA (Irtcmafter, "Board"); and CURTIS KEITH HARDEE (hereinafter, "Hardee"), parties of the second part; WITNESSETH. WHEREAS, MHR is the owner of two tracts of land situate in Brunswick County, North Carolina (hereinafter, the "Property"), which are within the zoning jurisdiction of the Town and are designated by Tax ID # 2540000101, consisting ofapproximately 168.42 acres, and Tax ID # 2540000102, consisting of approximately 45.34 acres. WHEREAS, since before 1999, MHR has planned to develop the Property as part of a mixed -use (recreational, commercial and residential) property; WHEREAS, on July 26, 1999, the Board and Town zoned the Property as a Planned Unit Development ("PUD") district under the Town's Zoning Code at that time to permit MHR to develop the Property as a mixed -rise properly. WHEREAS, the Town had a Code of Ordinances for the Town of Calabash in e$bct on July 26, 1999 C1999 Code") that included a PUD Planned Unit Development District ordinance. WHEREAS, on November 30, 1999, the Town and MHR entered into a Planned Unit Development Agreement (hereinafter, "PUD Agreement") for development of the Property; WHEREAS, on January 11, 2005, the Board and Town rezoned the Property to an R-I S residential zoning district. WHEREAS, a dispute bas arisen between MHR, on the first part, and the Towa, Hoard, and Hardee, on the Other part, concerning the actions of the Town and Board to change The zoning of the Property from a PUD district given the terms of the terms of the PUD Agreement; and WHEREAS, the parties have resolved all matters between Them and desire to settle all matters in controversy between and among them in regards to M[HR's vested rights to develop the Property pursuant to the PUD Agreement and in a PUD district in accordance with the Terms set forth in this Settlement Agreement; NOW, therefore, in consideration of the foregoing premises, the execution of this document, the acknowledgment of hMs vested rights in the PUD Agreement, the release as hereinafter set forth, the mutual promises set forth herein, and other good and valuable consideration, the sufficiency of which is acknowledged, the parties hereby agree as follows: 1. PIK'SUM to the provisions of N.C.C.S. 160A-385.1 of seq_, the Town and Hoard hereby acknowledge MIiR's vested rights to develop the Property as a PUD district in accordance with the PUD Agreement entered into by the Town and M M The PUD Agreement is attached, marked Exhibit 1 and incorporated. By acknowledging MHR's vested rights to develop the Property in accordance with site specific development plan contained in the PUD Agreement, the Town and Hoard acknowledge, covenant and agree that the property hereafter shall be treated as if it remained as a PUD district under the terms of the PUD Agreement and the 1999 Code, and the Town and Board covenant and agree to comply with and acknowledge hereafter these vested rights when MHR or its successors or assigns proceeds with development or improvement of the Property in accordance with the PUD Agreement and/or in accordance with the 1999 Code. The standards and parameters of development of the Property, including, bun not limited to, height restrictions, density limitations, and use restrictions, set forth its the PUD Agreement, including, but not limited to, the standards and parameters set forth in Exhibit A, Page C8, and Exhibit B of the PUD Agreement, and the 1999 Code, except as modified by the PUD Agreement, are hereafter the standards and parameters for development or improvement of the Property, such that any application or request made by MHR or its successors or assigns concerning development of the Property shall be considered for approval under the standards and parameters for development in the PUD Agroemcnt and the 1999 Code, regardless of whether MHR or its successors or assigns seek to change the site plan or make any other change, deletion, or addition to any prior plan to develop the Property. In the event MHR or its successors or assigns seek to change the site plan or make any other change, deletion, or addition to any prior plan to develop the Property, said entity shall be subject to approval pursuant to the standards and parameters for developmentr in the PUD Agreement and/or shall be subject to approval pursuant to the 1999 Code, a copy of which is attached hereto as Exhibit 2 and is incorporated herein by reference. Any zoning change for the Property or modification to the Code of Ordinances, including, but not limited to, the TowWs; Zoning Code, after July 26, 1999, shall not impact or preclude any development or improvement of the Property in accordance with standards and parameters for development or improvement of the Property in the PUD Agreement, Exhibit 1 hereto, and/or in accordance with the 1999 Code, Exhibit 2 hereto. 2_ The parties to this Settlement Agreement agree that MHR or its successors or assigns may present this Settlement Agreement to the Town or Board to demonstrate the vested rights to develop the Property m accordance with the terms and development standards and parameters of the PUD Agreement, and the Town and Board acknowledge that the vested rights to develop the Property in accordance with the terms of the PUD Agreement given to MHR or its successors or assigns shall be upheld and respected by the Town and its officers and employees for all purposes concerning the Property. 3. Upon the execution of this Settlement Agreement, MHR shall instruct its attorneys to file a Notice of Voluntary Dismissal with prejudice of the civil action pending in Brunswick County Civil Superior Court bearing File No. 05-CVS-448 ("Civil Action"). Each party shall bear its own costs in this action. 4. M M and its members, employees, and agents, do hereby fully and finally release, remise and acquit, and forever discharge the Town, Board, and Hardee, and their officers. members, employees, agents, attorneys, volunteers, heirs, successors and assigns, of and tom any and all actions, causes of action, claims for relief; monetary claims, damages, costs, liabilities, and any and all other claims and/or demands of whatsoever kind or nature, know and I nknown, suspected and unsuspected, based t pore, adshng out of or in any way connected with any zoning action taken by the Town and/or Board from January 1999 until the date of this Agreement or any and all matters referred to in the Civil Action. Provided, however, that MHR does not release any and all claims that may arise if the Town and/or Board fails to acknowledge MHR's vested rights as set forth in Paragraph Nos. 1 and 2 of this Settlement Agreetrtbnt. Specifically, if the Town, its Board, departments, committees, or any of its officers or employees fails to acknowledge the vested tights of M 4R in any application or request for ,development or improvement to the Property of any kind by MHR or its successors or assigns, hereafter, then the release by MM in this Settlement Agreement shall be deemed to have no force and effect, and the parties to this Settlement Agreement acknowledge and agree that the dismissal of the Civil Action pursuant to this Settlement Agreement shall not have any prejudicial impact or effect on M1iR or its successors or assigns reasserting the claim in the Civil Action. Further, and in such event, this Settlement Agreement shall be decreed a tolling agreement as to any and all statutes of limitation and repose provided that the vested rights as defined herein ate preserved pursuant toN.C.G.S. 16OA-385.1 erseg.. 5. The representative of the Town and representative of the Board signing this Settlement Agreement warrant and acknowledge that they have received vatid authorization to execute this Settlement Agreement on behalf ofthe Town and Board, such that their execution of this Settlement Agreement binds the Town and Board to this Settlement Agreement. 6. This Settlement Agreement and Release of All Claims constitutes the entire agreement between the parties pertaining to the subject matter contained herein, and its terms are contractual and not a mete recital. 7. The validity, construction, interpretation and administration of this Settlement Agreement and Release of all Claims shall be governed by the substantive laws ofthe State of North Carolina, and any action brought to enforce the same sbali be brought in Superior Court in Brunswick County, North Carolhm S. The parties hereto agree that all of the provisions of this Settlement Agteernent are inte'4gM dent and material to this Settlement Agreement, such that a breach of any provision of this Settlement Agreement by any parry to this Settlement Agreement Shan be substantial and material. 4 4. It is expressly understood and agreed that this is a full, final and complete Settlement Agreement and Release of all Claims and that the terns of this Settlement Agreement may not be amended orally. 10. All panics represent and state that they have fully and carefully read this Settlement Agreement and Release of all Claims and acknowledge that they lave had the advice of counsel and that no promise or representation of any kind, other than as contained herein, has been made by the parties hereby released or anyone acting for theta; that tbcy know the contents thereof, and that they have signed the same of their own free and voluntary act. [THE REMAINDER OF THIS PAGE LU7INTENTIONALLY BLANK] h3�44 This the Ides ofkw, 20M. 040555-000D9-001 WLMAIN1144835U MARSH HARBOR RESORTS, LLC (SEAL) A Limited Liability Company By; Manager TOWN OF CALABASH BOARD OF COMMISSIONERS, TOWN OF CALABAS I By: CQilmts (SEAL) Keith Hardee n 040555-MD9-001 WLMAAN14529111 A This the T T day of August, 2006. MARSH HARBOR RESORTS, LLC A Limited LAility Company TOWN OF CALABASH By: (SEAL) BOARD OF COMMISSIONERS, TOWN OF CALABASH 0 (SEAL) (SEAL) Curtis Keith Hardee 0 MARSH HARBOUR RESORTS, LLC 11 CAUSEWAY DRIVE OCEAN ISLE BEACH, NORTH CAROLINA 28469 January 26, 2007 Mr. Charles Jones, Director Coastal Area Management Agency 400 Commerce Avenue Morehead City, North Carolina 28557 RE: CAMA MAJOR PERMIT 11-97 Dear Mr. Jones; 1��d JqN 2 91D07 Mor�,he$a City O C/ej As you are aware Ms. LaDane Williamson, owner and president of Marsh Harbour Resorts, LLC, has applied to the Coastal Area Management Agency (CAMA) for renewal of the above referenced major permit for development of Marsh Harbour Resorts (hereafter referred to as The Property). The permit expired December 31, 2006. I want to take this opportunity to explain the chronology of events that prohibited Ms. Williamson from initiating the development of The Property. This permit was renewed and issued on January 15, 2004. At the time the permit was renewed, Ms. Williamson was involved in a lawsuit with Marsh Harbour Golf and Yacht Club Interval Association. The lawsuit was resolved on May 23, 2005. During the course of that lawsuit the Town of Calabash on January 11, 2005 changed the zoning on the property from a Planned Unit Development (PUD) to the most restrictive zoning of R-15. As a result of this rezoning change, Ms Williamson filed a lawsuit against the Town of Calabash, asking the court to recognize that she has vested rights in the PUD and requesting that the court restore The Property back to the original PUD. On August 16, 2006 the Town of Calabash settled the lawsuit by agreeing with Ms. Williamson and reinstating the property to the original approved PUD. Following the settlement of the lawsuit with the Town of Calabash, I had several meetings with Mr. Jim Gregson concerning obtaining two variances to the permit. The variances are necessary in order to begin development work in the marina portion of the property. After the meetings with Mr. Gregson, I obtained the engineering services of Gary Green Engineering in Raleigh to submit the necessary drawings to CAMA to obtain the requested variances. As you may be aware, with the amount of development in the Brunswick County area, the demand on engineering services is taxed to the limit. In obtaining the services of a Raleigh area engineer it was anticipated that the necessary drawings would have been submitted in early October 2006. This would have allowed adequate time for CAMA to review our request and for us to have made substantial progress in the development of The Property. This did not happen and our request was not submitted to CAMA until early December 2006. Obviously this did not Page two Mr. Jones allow CAMA the time necessary to review the application or for us to make substantial progress toward development of The Property. For obvious business reasons Ms Williamson could not proceed with the development of The Property until the two lawsuits were settled. We feel that we made a good faith effort, once the lawsuits were settled, to move forward with the development of The Property. However, for reasons outside of our control we were unable to accomplish this goal. We respectfully request that you review our application for a renewal of the CAMA major permit utilizing the above. detailed information and the attached court documents. We feel that we have vested rights in this permit and that it would be both unfair to the taxpayers of North Carolina and Ms Williamson to move this matter into the courts. As I have indicated to you in the past I greatly respect and appreciate the services of the men and women of CAMA. I am looking forward to working with CAMA on our many pending projects. Your review of this matter is greatly appreciated. If I may be of any assistance please telephone me at 910-279-6603. W� est regards, Coleman B, Ramsey Director of Operations cc: Jim Gregson LaDane Williamson Doug Hugget, Manager attachments: court documents STATE OF NORTH CAROLINA COUNTY OF BRUNS WICK SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMJC %0/[ / THIS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 'D% (hereinafter, "Settlement Agreement") entered into on The date set fottb below by and Gerween MARSH HARBOR RESORTS, 1_LC (hereinafter, "MHR"), party of the first pan, and TOWN OF CALABASH, NORTH CAROLINA, a municipal corporation (hereinafter, "Town"); BOARD OF COMMISSIONERS, TOWN OF CALABASH, NORTH CAROLINA (hereinafter, "Board"); and CURTIS KEITH HARDEE (hereinafter, "Hardee"), parties of the second part; WITNESSETH: WHEREAS, MHR is the owner of two tracts of land situate in Brunswick County, Noah Carolina (hereinafter, the "Property'), which are within the zoning jurisdiction of the Town and are designated by Tax ID # 2540000101, consisting of approximately 168.42 acres, and Tax ID # 2540000102, consisting of approximately 45.34 acres. WHEREAS, since before 1999, MHR has planned to develop the: Property as part of a mixed -use (recreational, commercial and residential) property; WHEREAS, on July 26, 1999, the Board and Town zoned the Property as a Planned Unit Development ("PUD") district under the Town's Zoning Code at that time to permit MHR to develop the Property as a mixed -use property. WHEREAS, the Town had a Code of Ordinances for the Town of Calabash in effect on July 26, 1999 ("1999 Code") that included a PUP Planned Unit Development District ordinance. WHEREAS, on November 30, 1999, the Town and MHR entered into a Planned Unit Development Agreement (hereinafter, "PUD Agreement") for development of the Property; WHEREAS, on January 11, 2005, the Board and Town rezoned the Property to an R-15 residential zoning district. WHEREAS, a dispute has arisen between NHR, on the first part, and the Town, Board, and Hardee, on the other part, concerning the actions of the Town and Board to change The zoning of the Property from a PUD district given the terms of the terms of the PUD Agreement; and WHEREAS, the parties have Molved all matters between them and desire to settle all matters in controversy between and among them in regards to MHR's vested rights to develop the Property pursuant to the PUD Agreement and in a PUD district in accordance with the terms set forth in this Settlement Agreement; .NOW, therefore, in consideration of the foregoing premises, the execution of this documem, the acknowledgmeut of NHR's vested rights in the PUD Agreement, the release as hereinafter set forth, the mutual promises set forth herein, and other good and valuable consideration, the sufficiency of which is acknowledged, the parties hereby agree as follows: 1. Puu>Zt = to the provisions ofN.C.C.S. 16QA-385_i ersel., the Town and Board hereby acknowledge MHR's vested rights to develop the Property as a PUD district in accordance with the PUD Agreement emered into by the Town and Wa The PUD Agreement is attached, marked Exhibit 1 and incorporated. By acknowledging MHR's vested rights to develop the Property in accordance with site specific development plan contained in the PUD Agreement, the Town and Board acknowledge, covenant and agree that the Property hereafter shall be treated as if it remained as a PUD district under the terms of the PUD Agreement and the 1999 Code, and the Town and Board covenant and agree to comply with and acknowledge hereafter these vested rights when MHR or its successors or assigns proceeds with development or improvement of the Property in accordance with the PUD Agreement and/or in accordance ' with the 1999 Code. The standards and parameters of development of the Property, including, but not limited to, height restrictions, density limitations, and use restrictions, set forth in the PUD Agreement, including, but not limited to, the standards and parameters set forth in Exhibit A. Page C8, and Exhibit B of the PUD Agreement, and the 1999 Code, except as modified by the PUD Agreement, are hereafter the standards and parameters for development or improvement of the Property, such that any application or request made by NHR or its successors or assigns concerning development of the Property shall be considered for approval under the standards and 2 parameters for development is the PUD Agreement and the 1999 Code, regardless of whether MHR or its successors or assigns seek to change the site plan or make any other change, deletion, or addition to any prior plan to develop the Property. In the event MHP or its successors or assigns seek to change the site plan or make any other change, deletion, or addition to any prior plan to develop the Property, said entity shall be subject to approval pursuant to the standards and parameters for development in the KM Agreement and/or shall be subject to approval pursuant to the 1999 Code, a Copy ofwhich is attached hereto as Exhibit 2 and is incorporated herein by reference. Any zoning change for the Property or modification to the Code of Ordinances, including, but not limited to, the ToWs Zoning Code, a11er July 26, 1999, shall not impact or preclude any development or improvement of the Property in accordance with standards and parameters for development or improvement of the property in the PUD Agreement, Exhibit 1 hereto, and/or in accordance with the 1999 Code, Exhibit 2 hereto. 2. The parties to this Setktnert Agreement agree that MHR or its successors or assigns may present this Scnlemem Agreement to the Town or Board to demonstrate the vested rights to develop the Property in accordance with the terms nod development standards and parameters of the PUD Agreement, and the Town and Hoard acknowledge that the vested rights to develop the Property in accordance with the terms of the PUD Agrt:eivart given to MHR or its successors or assigns shall be upheld and respected by the Town and its officers and employees for all purposes concerning the property. 3. Upon the execution of this Settlement Agreement, MHR shall instruct its attorneys to file a Notice of Voluntary Dismissal with prejudice of the civil action pending in Brunswick County Civil Superior Court bearing File No. 05-CVS-449 ("Civil Action"). Each Party shall bear its own cost in this action a. NW and its members, employees, and agents, do hereby fully and fmally release, remise aid acquit, and forever discharge the Town, Dowd, and Hardee, and their officers, members, employees, agents, attorneys, Volunteers, heirs, successors and assigns, of and from any and all actions, causes of action, claim4 for rebel, monetary claims, damages, costs, liabilities, and aiy and all other claims and/or demands of whatsoever kind or nature, know and unknown, suspected and Unsuspected, based Upon, arising out of or W any way connected with 3 any zoning action taken by the Town And/or Board from January 1999 until the date of this Agreement or any and all matters referred to in the Civil Action. Provided, however, that MHR does Blot release any and all claims that may arise if the Town an dlor Board fails to acknowledge MHR's vested rights as set forth in Paragraph Nos. 1 and 2 of this Settlement Agreeirletu. Specifically, if the Town, its Board, departments, committees, or any of its officers or employees fails to acknowledge the vested tights of NM in any application or request for development or improvement to the Property of any kind by MHR or its successors or assigns, hereafter, then the release by MHR in this Settlement Agreement sball be deemed to have no force and et%ct, and the panties to this Settlement Agreement acknowledge and agree that the dismissal of the Civil Action pursuant to this Settlement Agreement shall not have any prejudicial impact or effect on lV= or its successors or assigns reasserting the claims in the Civil Action Further, and in such event, this Settlement Agreement shall be decreed a tolling agreement as to any and all statutes of limitation and repose provided tbat The vested rights as defined herein are preserved pursuant to N.C.G.S. 16oA-385.1 er seg.. 5. The representative of the Town and representative of the Board signing this Settlement Agreement warrant and acknowledge that they have received valid authorization to execute this Settlement Agreement on behalf of the Town and Board, such that their execution of this Settlement Agreement binds the Town and Board to this Settlement Agreement, 6. This Settlement Agreement and Release of All Claims constitutes the entire agreement between the parties pertaining to the subject matter contained herein, and its terms am contractual and not a mere recital. 7. The validity, construction, interpretation and administration ofthis Settlement Agreement and Release of all Claims shall be governed by the substantive laws of the State of North Carolina, and any action brought to enforce the same sball be bro ught in S uperior Count in Brunswick County, North Carolina 8. The parties hereto agree that all of the provisions of this Settlement Agreement are interdependent and material to this Settlement Agreement, such that a breach of any provision of this Settlement Agreement by any party to this Settlement Agreement shall be substantial and material. 4 4. It is expressly understood and agreed that this is a full, final and complete Settlement Agreement and Release of all Claims and that the terms of this Settlement Agreement may not be amended orally. 10. All parties represent and state that they have fully and carefully read this Settlement Agreement and Rek*w ofall Claims and acknowledge that they have had the advice of counsel and that no promise or representation of any kind, other than as contained herein, has been made by the patties hereby released or anyone acting for them; that they know the contents thereof, and that they leave signed the same of their own free and voluntary act. ME REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 5 AlWSA This the day of4w. 2006. 040555.00009.001 WLMAtN%144835U MARSH HARBOR RESORTS, LLC (SEAL) A Limited Liability Company By: Manager TOWN OF CALABASH BOARD OF COMMISSIONERS, TOWN OF CALABASI I By: SEAL) Curds Keith Hardee 6 �J� This.the J day of August, 2006. MARSH HARBOR RESORTS, LLC A Limited Lppility Company TOWN OF CALABASH By. (SEAL) BOARD OF COMMISSIONERS, TOWN OF CALABASH 0 (SEAL) (SEAL) Curtis Keith Hardee 040555-MD9-001 WLMAtM145291\1 .tit Class RENEWAL ,CRC Variance) STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission Vermit for X Major Development in an Area of Environmental Concern pursuant to NCGS 113A-118 X Excavation and/or filling pursuant to NCGS 113-229 Issued to Marsh Harbour Resorts, LLC, 10155 Beach Drive, Calabash, NC 28467 Authorizing development in Brunswick Permit Number 11-97 County at Calabash River, Beach Drive of Hwy. 179 , as requested in the permittee's application dated letter dated 12/11/02 This permit, issued on December 15, 2003 , is subject to compliance with the application (where consistent with the permit), all applicable regulations, special conditions and notes set forth below. Any violation of these terms may be subject to fines, imprisonment or civil action; or may cause the permit to be null and void. 1) This renewal must be attached to the original of Permit No. 11-97, which was transferred to Marsh Harbour Resorts LLC on 10/5/99, as well as the Major Modification of 7/31/00 and the renewal of 11/20/00, and all documents must be readily available on site when a Division of Coastal Management representative inspects the project for compliance. 2) All conditions and stipulations of the active permit remain in force under this renewal except as altered herein.+ 3) In accordance with the variance granted by the Coastal Resources Commission on 10/23/03, all walkways that are located within 30 feet of the mean high water line shall be constructed of pervious materials. The permittee should contact a representative of the Division of Coastal Management prior to initiation of walkway construction for a confirmation of appropriate pervious walkway materials and/or designs. This permit action may be appealed by the permittee or other qualified persons within twenty (20) days of the issuing date. An appeal requires resolution prior to work initiation or continuance as the case may be. This permit must be accessible on -site to Department personnel when the project is inspected for compliance. Any maintenance work or project modification not covered hereunder requires further Division approval. All work must cease when the permit expires on December 31, 2006 In issuing this permit, the State of North Carolina agrees that your project is consistent with the North Carolina Coastal Management Program. Signed by the authority of the Secretary of DENR and the Chairman of the Coastal Resources Commission. Donda D. Moffitt, Director Division of Coastal Management This permit and its conditions are hereby accepted. Signature of Permittee Permit Class 2nd RENEWAL (by CRC Variance) STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission erne for X Major Development in an Area of Environmental Concern pursuant to NCGS 113A-118 X Excavation and/or filling pursuant to NCGS 113-229 Issued to Marsh Harbour Resorts, LLC,10155 Beach Drive, Calabash, NC 28467 Authorizing development in Brunswick Permit Number 11-97 County at Calabash River, Beach Drive of Hwy. 179 , as requested in the permittee's application dated letter dated 12/11/02 This permit, issued on December 15, 2003 , is subject to compliance with the application (where consistent with the permit), all applicable regulations, special conditions and notes set forth below. Any violation of these terms may be subject to fines, imprisonment or civil action; or may cause the permit to be null and void, 1) This renewal must be attached to the original of Permit No.-11-97, which was transferred to Marsh Harbour Resorts LLC on 10/5/99, as well as the Major Modification of 7/31/00 and the renewal of 11/20/00, and all documents must be readily available on site when a Division of Coastal Management representative inspects the project for compliance. i 2) All conditions and stipulations of the active permit remain in force under this renewal except as altered herein.+ 3) In accordance with the variance granted by the Coastal Resources Commission on 10/23/03, all walkways that are located within 30 feet of the mean high water line shall be constructed of pervious materials. The permittee should contact a representative of the Division of Coastal Management prior to initiation of walkway construction for a confirmation of appropriate pervious walkway materials and/or designs. This permit action may be appealed by the permittee or other qualified persons within twenty (20) days of the issuing date. An appeal requires resolution prior to work initiation or continuance as the case may be. This permit must be accessible on -site to Department personnel when the project is inspected for compliance. Any maintenance work or project modification not covered hereunder requires further Division approval. All work must cease when the permit expires on December 31, 2006 In issuing this permit, the State of North Carolina agrees that your project is consistent with the North Carolina Coastal Management Program. Signed by the authority of the Secretary of DENR and the Chairman of the Coastal Resources Commission. --- ::, G // -/ Donffa D. Moffitt, Director Division of Coastal Management This permit and its conditions are hereby accepted. Signature ofPermittee Permit Class 2nd RENEWAL Permit Number 11-97 )y CRC Variance) STATE OF NORTH CAROLINA Department of Environment and Natural Resources and Coastal Resources Commission it for X Major Development in an Area of Environmental Concern pursuant to NCGS 113A-118 X Excavation and/or filling pursuant to NCGS 113-229 Issued to Marsh Harbour Resorts, LLC,10155 Beach Drive, Calabash, NC 28467 Authorizing development in Brunswick County at Calabash River, Beach Drive of Hwy. 179 , as requested in the permittee's application dated letter dated 12/11/02 This permit, issued on December 15, 2003 , is subject to compliance with the application (where consistent with the permit), all applicable regulations, special conditions and notes set forth below. Any violation of these terms may be subject to fines, imprisonment or civil action; or may cause the permit to be null and void. 1) This renewal must be attached to the original of Permit No. 11-97, which was transferred to Marsh Harbour Resorts LLC on 10/5/99, as well as the Major Modification of 7/31/00 and the renewal of 11/20/00, and all documents must be readily available on site when a Division of Coastal Management representative inspects the project for compliance. 2) All conditions and stipulations of the active permit remain in force under this renewal except as altered herein.+ 3) In accordance with the variance granted by the Coastal Resources Commission on 10/23/03, all walkways that are located within 30 feet of the mean high water line shall be constructed of pervious materials. The permittee should contact a representative of the Division of Coastal Management prior to initiation of walkway construction for a confirmation of appropriate pervious walkway materials and/or designs. This permit action may be appealed by the permittee or other qualified persons within twenty (20) days of the issuing date. An appeal requires resolution prior to work initiation or continuance as the case may be. This permit must be accessible on -site to Department personnel when the project is inspected for compliance. Any maintenance work or project modification not covered hereunder requires further Division approval. All work must cease when the permit expires on December 31, 2006 In issuing this permit, the State of North Carolina agrees that your project is consistent with the North Carolina Coastal Management Program. Signed by the authority of the Secretary of DENR and the Chairman of the Coastal Resources Commission. Donda D. Moffitt, Director ell Division of Coastal Management This permit and its conditions are hereby accepted. Signature of Permittee ATTORNEYS AT LAW HIGHWOOOS TOWER ONE SUITE 500 3200 BEECHLEAF COURT RALEIGH, NORTH CAROLINA 27604-1064 TELEPHONE 919.981.4000 TELEFAX 919.981.4300 MAILING ADDRESS POST OFFICE DRAWER 19764 RALEIGH, NORTH CAROLINA 27619-9764 LANDFALL PARK NORTH 1985 EASTWOOD ROAD. SUITE 200 WILMINGTON, NORTH CAROLINA 28403 TELEPHONE 910,256.5135 TELEFAX 910.256.6451 W W W.MAUPINTAYLOR.COM AIAOB C. DAmON, III VIA HAND DELIVERY Kim Hausen Chief Hearing Clerk Office of Administrative Hearings 6714 Mail Service Center Raleigh, NC 27699-6714 CEIVED MAR 2 5 2003 oW, ()F COASTAL MA�NAUW pAteIy� March 24, 2003 C,P t �,��d.To S jiUeA J6E 2_0 P', Ta °. c_ ULAr f e-, 480 BETA BUILDING PO u HEADQUARTERS PARK q I 2222 CHAPEL HILL -NELSON HWY. DURHAM, NORTH CAROLINA 27713 TELEPHONE 919.361,4900 TELEFAX 90.361.2262 MAILING ADDRESS POST OFFICE BOX 13646 RESEARCH TRIANGLE PARK NORTH CAROLINA 27709-3646 WRITER'S DIRECT DIAL NUMBER (919)981.4010 adawson@maupintaylor.com Re: Marsh Harbour Resorts, LLC and LaDane Williamson Company, LLC v. Division of Coastal Management,Department of Environment and Natural Resources 03 EHR — Brunswick County Our File No. 15319.003 Dear Ms. Hausen: Enclosed for filing please find an original and 2 copies of a PETITION FOR CONTESTED CASE HEARING and of a NOTICE OF APPEARANCE in the above entitled action. Please file stamp a copy of each document and return them to our messenger The other copy is for your file. Please call if you have any questions. With best wishes, I am Enclosures cc w/encl.: LaDane Williamson Daniel C. Oakley, Esq., DENR, General Counsel Donna Moffitt, Esq., Director, Division of Coastal Management RALEIGHU70714_ 1 STATE OF NORTH CAROLINA BRUNSWICK COUNTY MARSH HARBOUR RESORTS, LLC, and LA DANE WILLIAMSON COMPANY, LLD, Petitioners, V. DIVISION OF COASTAL MANAGEMENT, DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES, Respondent. IN THE OFFICE OF ADMINISTRATIVE HEARINGS 03 EHR NOTICE OF APPEARANCE PLEASE TAKE NOTICE that the undersigned counsel hereby give notice of their appearance in this civil action as counsel of record for petitioners, Marsh Harbour Resorts, LLC and LaDane Williamson Company, LLC. All pleadings, notices, calendars, correspondence or other documents should be directed to the attention of the undersigned. This the 24� y of March, 2003. 6 State Bar No. 6584 3200 Beechleaf Court, Suite 500 Raleigh, NC 27604 Telephone: (919) 981-4000 Facsimile: (919) 981-4300 IWLEIGH\970711_ 1 CERTIFICATE OF SERVICE I, Amos C. Dawson, III, do hereby certify that the foregoing Notice of Appearance was served upon the Division of Coastal Management, N. C. Department of Environment and Natural Resources, by mailing a copy thereof to its Service Agent and Director at the addresses indicated below with the proper postage attached and deposited in an official depository under the exclusive care and custody of the United States Postal Service in Raleigh, North Carolina, on the a-Y day of March, 2003. MAUPIN 7AVLOR & ELLIS, P.A By: Amos C. D on, III Attorneys for Petitioners State Bar No. 6584 3200 Beechleaf Court, Suite 500 Raleigh, NC 27604 Telephone: (919) 981-4000 Facsimile: (919) 981-4300 Daniel C. Oakley, Esq. General Counsel Department of Environment & Natural Resources 1601 Mail Service Center Raleigh, NC 27699-1601 Donna D. Moffitt, Director NC DENR Division of Coastal Management 1638 Mail Service Center Raleigh, NC 27699-1638 . RALEIGH\370711_ 1 PLEASE PRINT CLEARLY OR TYPE STATE OF NORTH CAROLINA IN THE OFFICE OF COUNTY OF(1) BRUNWICK ADMINISTRATIVE HEARINGS (2) MARSH HARBOUR RESORTS, LLC and LA DANE WILLIAMSON COMPANY, LLC, Petitioners, V. (3) DIVISION OF COASTAL MANAGEMENT, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent. PETITION FOR A CONTESTED CASE HEARING We hereby ask for a contested case hearing as provided for by G.S. 15OB-23 because the: (4) DMSION OF COASTAL MANAGEMENT, DENR,has: denied Marsh Harbour Resorts, LLC's request for renewal of CAMA Major Development Permit No. 11-97. A copy of the DCM denial letter dated March 10,.2003 and signed by Director Donna Moffitt is attached as Exhibit A. (5) (Check all that apply) Because of these facts, the agency has: X_ deprived me of property; _X_ acted erroneously _ ordered me to pay a fine or civil penalty; _X_ failed to use proper procedure _X_ Otherwise substantially prejudiced my _X_ acted arbitrarily or capriciously; or rights; and based on these facts the agency _X_ failed to act as required by law or rule. has exceeded its authority and jurisdiction; (6) Date: MarchIl 2003 (7) Your Telephone Number: (919) 981-4000 (8) Print your address: Maupm lot & Ellis, P.A., P. O. Drawer 19764, Raleigh, NC 27619-9764 (9) Print your name: Da son, III, Attorney for Petitioners (10) Your signature: You must mail or deliver a COPY to the State Agency named on Line (3) of this form. Please indicate below. CERTIFICATE OF SERVICE I certify that this Petition has been served on the State Agency named below by depositing a copy of it with the United States Postal Service with sufficient postage OR by delivering it to the named agency. Served on: (11) Daniel C. Oakley, Esq. (12) General Counsel and Registered Agent (name) (agency) (13) Department of Environment and Natural Resources, Mail Service Center 1601, Raleigh, NC 27699-1601 (address) 4-C (14) This theZU day of March, 2003. (15) When you have completed this form you MUST snail or deliver the ORIGINAL and one COPY to the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, NC 27611-7447. A LTl . NCDENR North Carolina Department of Enviroament and Natural Division of Coastal Management Michael F. Easley, Governor Donna D. Moffitt, Director March 10, 2003 CERTIFIED MAIL RETURN RECEIPT REQUESTED Marsh HarbouQResorts, LLC 10155 Beach Drive Calabash, NC 28467 Dear Sirs: Resources William G. Ross Jr., Secretary This letter is in regard to your request under the Coastal Area Management Act (CAMA) to renew CAMA Major Permit No. 11-97 for an additional two years. Permit No. 11-97, which was issued on June 13, 1997 and modified on July 31, 2000, authorized the construction of the Marsh Harbour Development adjacent to the waters of Calabash Creek, in the Town of Calabash in Brunswick County. Processing of the renewal request, which was received as complete by the Division of Coastal Management on December 11, 2002, is now complete. Based on the state's review, the Division of Coastal Management has made the following findings: 1) On June 13, 1997, CAMA Major Permit No. 11-97 was issued to March Harbour Marina authorizing construction of additional marina docks, nineteen multi -unit residential buildings, and a seven -story hotel, as well as associated infrastructure development. 2) On October 5, 1999, the permit was transferred to Marsh Harbor Resorts, LLC. t 3) A major modification was issued on July 31, 2000, changing the scheme of high ground development to include a larger hotel and conference center, a parking deck, 266 condominium units and 80 town homes. 4) The permit was renewed on November 20, 2000, with a new expiration date of December 31, 2002. 5) Rules governing the renewal of CAMA permits were recently modified by the Coastal Resources Commission to further define substantial development. These modified rules became effective on August 1, 2002. 6) In the applicant's December 11, 2002 renewal request, it was acknowledged that no substantial development has taken place on the authorized project since Permit 11-97 was originally issued. 1638 Mail Service Center, Raleigh, North Carolina 27699-1638 Phone: 919-733-22931 FAX: 919-733-14951 Internet: hftp:lldcm2.enr.state.nc.us An Eoual 0000rtunity 1 Affirmative Action Employer— 50% Recycled 110% Post Consumer Paper EXHIBIT A 7) Based upon the findings outlined above, the proposed project has been determined to be inconsistent with 15A NCAC 07J .0404, which requires that in circumstances such as this, the Division of Coastal Management may only renew a permit upon frndin-g. that substantial development has begun and is continuing on the permitted project. Given the preceding findings, it is necessary that your request for the renewal of CAMA Major Permit No. 11-97 be denied. This denial is made pursuant to N.C.G.S. 113A-120 (a)(8), which requires denial for projects inconsistent with state guidelines or local land use plans. If you wish to appeal this denial, you are entitled to a hearing. The hearing will involve appearing before an Administrative Law Judge who listens to evidence and arguments of both parties and then makes a recommendation to the Coastal Resources Commission. Your request for a hearing must be in the form of a written petition, complying with the requirements of § 150B of the General Statutes of North Carolina, and must be filed with the office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699- 6714, (919) 733-2698, within twenty (20) days from the date of this letter. A copy of this petition should be filed with this office. Also, you should be advised that as long as this state permit renewal denial stands, your project must be deemed inconsistent with the N.C. Coastal Management Program, thereby precluding the issuance of federal permits for this project. The Federal Coastal Zone Management Act (CZMA) gives you the right to appeal this finding to the U.S. Secretary of Commerce within thirty (30) days of receipt of this letter. Your appeal must be on the grounds that the proposed activity is (1) consistent with the objectives or purposesof the CZMA, or (2) is necessary in the interest of national security, and thus, may be federally approved. Members of my staff are available to assist you should you desire to apply for a new. If you have any questions concerning this matter, please contact Mr. Doug Huggett at (919) 733-2293, extension 245. Sincerely, Donna D. Moffitt DM/dvh cc: Mr. Eldon Hout, Director - OCRM/NOAA, Silver Spring, MD Colonel Charles R. Alexander - U.S. Army Corps of Engineers, Wilmington, NC DCM - Morehead City DCM — Wilmington Amos Dawson, Maupin, Taylor and Ellis Kenneth Shanklin ems: w NCDENR North Carolina Department of Environment and Natural Resources Division of Coastal Management Michael F. Easley, Governor Donna D. Moffitt, Director William G. Ross Jr., Secretary January 9, 2003 MEMO TO: Jill Hickey Attorney Generals Office FROM: Doug Huggett Major Permits Coordinator SUBJECT: Renewal Request for Permit No. 11-97 (Marsh Harbor Resorts), Brunswick County Attached please find a copy of a permit renewal request package for the subject permit, which was submitted on behalf of the permittee by Amos Dawson. The issues surrounding this case can be summarized as follows: The CAMA permit for the project was originally issued to Odell Williamson on 6/13/97. The permit was set to expire on 12/31/00. The permit was transferred to Marsh Harbor Resorts in October of 1999. On 7/31/00 a Major Modification was issued for the project. The 12/31/00 expiration date of the permit remained unchanged under the major modification. On 11/20/00, the permit was granted a 2-year extension, with the new expiration date becoming 12/31/02. On 12/11/02, Mr. Dawson submitted a request to renew the permit for a second time. By Mr. Dawson's own admission, actual construction has not begun on the permitted project due to numerous outside factors. When considering the request for renewal, the following CRC rules apply: 15A NCAC V .0404DEVELOPMENT PERIOD EXTENSION (a) Where no development has been initiated during the development period, the permitting authority shall extend the authorized development period for no more than two years upon receipt of a signed and dated request from the applicant containing the following: (1) a statement of the intention of the applicant to complete the work within a reasonable time; (2) a statement of the reasons why the project will not be completed before the expiration of the current permit; (3) a statement that there has been no change of plans since the issuance of the original permit other than changes that would have the effect of reducing the scope of the project, or, previously approved permit modifications; (4) notice of any change in ownership of the property to be developed and a request for transfer of the permit if appropriate; and (5) a statement that the project is in compliance with all conditions of the current permit. 1638 Mail Service Center, Raleigh, North Carolina 27699-1638 Phone: 919-733-22931 FAX: 919-733-14951 Internet: http://dcm2.enr.state.nc.us An Equal Opportunity kAffirmative Action Employer-50% Recycled k 10% Post Consumer Paper Where substantial development, either within or outside the AEC, has begun and is continuing on a permitted project, the permitting authority shall grant as many two year extensions as necessary to complete the initial development. Renewals for maintenance and repairs of previously approved projects may be granted for periods not to exceed 10 years. (b) When an extension request has not met the criteria of Paragraph (a) of this Rule, the Department may circulate the request to the commenting state agencies along with a copy of the original permit application. Commenting agencies will be given three weeks in which to comment on the extension request. Upon the expiration of the commenting period the Department will notify the applicant promptly of its actions on the extension request. (c) Notwithstanding Paragraphs (a) and (b) of this Rule, an extension request may be denied on making findings as required in either G.S. 113A-120 or G.S. 113-229(e). Changes in circumstances or in development standards shall be considered and applied to the maximum extent practical by the permitting authority in making a decision on an extension request. (d) The applicant for a major development extension request must submit, with the request, a check or money order payable to the Department in the sum of one hundred dollars ($100.00). (c) Modifications to extended permits may be considered pursuant to 15A NCAC 7J .0405. History Note: Authority G.S. 113A-119, 113A-119.1; 113A-124(c)(8); Eff. March 15, 1978; Amended Eff. August 1, 2000; April 1, 1995; March 1, 1991; March 1, 1985; November 1, 1984. Upon a first reading of the information provided by Mr. Dawson, it does not appear that a second renewal is allowable under the above rule. (I Should also point out that it has been DCM;s position that the re -circulation provisions of item (b) above are no different than those required for a new permit. Thus we have chosen not to use the re -circulation process, and have opted to require that any such request undergo a new major permit review.) However, Mr. Dawson has provided an extensive argument that vested rights principles should be applied to this renewal request. This is an argument that the Division is unfamiliar with. Therefore, I would like to ask if you could examine the enclosed information, and whether you have an opinion on whether the requested permit renewal could in fact be issued. I am available to answer any questions that you might have concerning this matter. If you would like to discuss this with me further, please feel free to call me at 733-2293 ext. 244. Thanks in advance for your help. ArTORNETs AT LAW HIGHWOODS TOWER. ONE SUITE 500 3200 BEECHLEAF COURT RALEIGH, NORTH CAROLINA 27604.1064 TELEPHONE 919.981.4000 TELEFAX 9 i 9.981.4300 MAILING ADDRESS POST OFFICE DRAWER 19764 RALEIGH, NORTH CAROLINA 27619�9764 LANDFALL PARK NORTH 1985 EASTWOOO ROAD, SUITE 200 WILMINGTON. NORTH CAROLINA 28403 TELEPHONE 910.256.5135 TELEFAX 910.256.6451 W W W. MAUPINTAYLOR.COM Amos C. DAWSON, III December 11, 2002 Via Hand Delivery Mr. Doug Huggett Major Permits/Consistency Manager NC DENR Division of Coastal Management 1638 Mail Service Center Raleigh, NC 27699-1638 Re: Marsh Harbour Resorts, LLC CAMA Major Permit No. 11-97 Brunswick County Our File No. 15319.003 Dear Mr. Huggett: 480 BETA BUILDING HEADQUARTERS PARK 2222 CHAPEL HILL -NELSON HWY. DURHAM. NORTH CAROLINA 27713 TELEPHONE 919.361.4900 TELEFAX 919.361.2262 ,V, MAILING ADDRESS {l;kPOST OFFICE BOX 13646 .b,t]�6a, RESEARCH TRIANGLE PARK .R1 CAROLINA y� Dec Ga'cy"� .t-.71i61�M C,l q WRIT CT DIAL NUMBER (919)981-4010 adawson@maupintaylor.com Our firm represents Marsh Harbour Resorts, LLC ("Marsh Harbour Resorts") and Ms. LaDane Williamson with respect to the above referenced CAMA Major Development Permit No. 11-97. The subject permit was transferred to Marsh Harbour Resorts from Mr. Odell Williamson in October of 1999, and the permit was reissued on July 31, 2000 to reflect a major modification, including substantial changes to the previous plan for the development. These changes required many years of planning and coordination with the Town of Calabash and other interested parties. The project includes portions in both North and South Carolina. The plan for the North Carolina portion of the property includes a proposed 900 unit resort hotel and convention center; an existing high ground marina (257 slips permitted —120 slips existing); 80 townhome units; 66 mid -rise condominium units; an existing golf course (Marsh Harbour Golf Links); a proposed sports center; a proposed office center; and associated infra -structure for the development. The modified permit issued on July 31, 2000 had an RALEIGffi359469_ I Mr. Doug Huggett December 11, 2002 Page 2 expiration date of December 31, 2000. Accordingly, an extension request was submitted in November of 2000 requesting an extension of the development period for the permit. On November 20, 2000, the permit was renewed with an expiration date of December 31, 2002. Marsh Harbour Resorts and LaDane Williamson have in good faith and in reliance upon CAMA Permit 11-97 expended over $4.5 million on the permitted development. Extensive work has been completed on the planning, permitting and design of the project. This includes the expenditure of over $350,000 on stormwater, water and sewer design and permitting alone. Development of the permit applications required extensive engineering work, including the design of building roof prints, parking configurations, streets and all other impervious surfaces. A stormwater permit for the development has been issued by the Division of Water Quality. Preliminary designs of the sewer collection and water distribution systems have also been prepared. Hence, approximately 70% of the construction design of the project is completed. However, the construction financing and significant physical on -site construction have been rendered impossible due to a series of lawsuits which have precluded the financing and construction of the permitted development. Enclosed with this letter, you will find a copy of a December 4, 2002 letter to me from Kenneth Shanklin. Mr. Shanklin is an attorney in Wilmington, NC who is familiar with the litigation affecting Marsh Harbour Resorts and who is currently representing Marsh Harbour Resorts in the pending lawsuits. As you can see from an examination of the enclosed summary of the legal proceedings, and the case pleadings themselves, these lawsuits have made it impossible for Marsh Harbour Resorts to proceed with on -site development work for the permitted project. Nevertheless, through its expenditure of over $4.5 million on the permitted development in good faith and in reasonable reliance on CAMA Permit 11-97, Marsh Harbour Resorts and Ms. Williamson have obtained vested rights to construct the permitted development under CAMA Permit 11-97. Marsh Harbour Resorts would suffer significant detriment if required to apply for a new CAMA Permit under permitting guidelines and regulations which we understand have been subject to substantial amendments subsequent to the issuance of Permit No. 11-97. It is clear under both the North Carolina and United States Constitutions and controlling caselaw that Marsh Harbour Resorts and Ms. Williamson have obtained vested rights under the existing CAMA Permit No. 11-97 which allow them to proceed with the permitted development. Under the Doctrine of Vested Rights as applied in North Carolina, the government cannot prevent completion of a project by requiring compliance with newly adopted laws or regulations when the developer has made substantial expenditures in good faith reliance on valid governmental permits, with resulting detriment if he or she is required to comply with newly adopted requirements. Owens, David W.., Legislative Zoning Decisions, P. 98 (Institute of Government 1993). See e.g., Town of Hillsborough v. Smith, 276 N.C. 48,170 S.E.2d 904 RALEIGH'159469_ 1 Mr. Doug Huggett December 11, 2002 Page 3 (1969); Godfrey v. Zoning Board ofAdjustment, 317 N.C. 51, 344 S.E.2d 272 (1986); Transland Properties, Inc. v. Board ofAdjustment of the Town of Nags Head, 18 N.C. App. 712, 198 S.E.2d 1 (1973). In North Carolina, the vested rights doctrine is "rooted in the `due process of law' and the `law of the land' clauses of the federal and state constitutions .... it has been said that the solution to the `vest rights' question `has required the reconciliation of the Doctrine of Separation of Powers with the constitutional powers of substantive due process, a balancing of the interest of the public as a whole and those of the individual property owner, and, in many cases, the elements of good faith and bad faith, and resort to equity and equitable principles."' Godfrey v. Zoning Board ofAdjustment, supra, 344 S.E.2d at 274. Thus, while the vested rights doctrine has been applied primarily in zoning cases, it is clear the doctrine has broad constitutional and equitable underpinings in North Carolina. The State and DENR have recognized in other situations that the vested rights doctrine applies in the context of the issuance of environmental permits and certifications. In a December 19, 1997 letter to Mr. Steve W. Tedder, Chief of the Water Quality Section of the Division of Water Quality, members of the Attorney General's Environmental Division opined that the vested rights. doctrine was applicable to the issuance of 401 certification in the context of a federal 404 permit into which the State's 401 certification is incorporated. Citing Browning Ferris Industries v. Guilford County Board ofAdjustment, 126 N.C. App. 168, 484 S.E.2d 411 (1997), the Attorney General's Office stated that "a party's common law right to develop and/or construct vest when: (1) the party has made, prior to the amendment of a zoning ordinance, expenditures or incurred contractual obligations `substantial in amount, incidental to or as part of the acquisition of the building site or the construction or equipment of the proposed building' (citation omitted); (2) the obligations and/or expenditures are incurred in good faith, .....; (3) the obligations and/or expenditures were made in reasonable reliance on and after the issuance of a valid building permit, if such permit is required, authorizing the use requested by the party ....(citations omitted); and (4) the amended ordinance is a detriment to the party (citations omitted)." Marsh Harbour Resorts and Ms. Williamson have met each of the criteria enunciated by the courts to obtain vested rights under CAMA Permit 11-97. Their expenditure of over $4.5 million on the permitted project is clearly substantial. See Caldwell v. Smith, 106 N.C. App. 187, 415 S.E.2d 770 (1992) and Randolph County v. Coen, 99 N.C. App. 746, 394 S.E.2d 256 (1990). Furthermore, Marsh Harbour Resorts and Ms. Williamson have relied in good faith on CAMA Permit 11-97 as issued. However, due to circumstances beyond their control, Marsh Harbour Resorts and Ms. Williamson have been precluded from beginning significant physical on -site construction of the project. The detriment to them is manifest if the subject CAMA Permit is not re -issued. Having to obtain a new permit would in all likelihood require substantial modification RALEIGFN59469_ I Mr. Doug Huggett December 11, 2002 Page 4 of the overall design for the development, including revision of existing stormwater permits and the preliminary designs for the water and sewer distribution and collection systems. Furthermore, under North Carolina law, the fact that Permit 97-11 is subject to expiration before the project can be constructed does not preclude the vesting of their rights under existing Permit 11-97. It is well established under North Carolina law that the fact that a permit expires is of no legal significance if the developer has met the other criteria necessary for the creation of a vested right. Mays -Ott Co. v. Town of Nags Head, 751 F. Supp. 82 (E.D.N.C. 1990). See also Pardee Construction Co. v. California Coastal Commission, 95 Cal. App. 3`s 471 (1979). It is thus clear that once Marsh Harbour Resorts, LLC and Ms. Williamson obtained vested rights to proceed with their approved project under CAMA Permit 11-97, these rights cannot be taken from them due to their inability to construct the project because of litigation and circumstances beyond their control. Neither can their constitutionally protected vested rights be denied on the basis of new permitting guidelines established subsequent to the issuance of their permit. See also, Faymore Development Co., Inc. v. Board of Standards and Appeals of the City of New York, 383 N.E.2d 100 (N.Y. 1978); City of Atlanta v. Westinghouse Electric Corporation, 246 S.E.2d 678 (Ga. 1978). Because Marsh Harbour Resorts and Ms. Williamson have acquired vested rights in CAMA Permit 11-97, and because financing and construction of the project have been delayed due to circumstances beyond their control, we respectfully submit that Marsh Harbour Resorts, LLC is entitled to an extension of the development period for CAMA Permit 11-97. We respectfully request that the Division of Coastal Management extend the permit expiration date for an additional two year period. We are submitting. along with this request a check made payable to the Department in the sum of $50.00 to cover the fee for processing the extension request. We will be happy to meet with you or provide any additional information which you may require. If -you have any questions, please contact meat 919-981-4010. Thank you very much for your assistance in this matter. With best wishes, I am Enclosures cc w/encls.: Ms. Donna Moffitt, Director, DCM cc w/o encls.: Ms. LaDane Williamson RALEIGHV 59469-1 KENNETH A. SHANKLIN ATTORNEYAT LAW 214 MARKET STREET POST OFFICE Box 1347 ,WILMINGTON. NORTH CAROLINA 28402.1347 TELEPHONE (91 O) 762-9400 • TELEFAX (910) 251.1773 E-MAIL' SHANKLAW@WILMINGTON.NEf KENNETH A. SHANKLIN' - ABOARD CERTIFIED SPECIALIST IN PEAL PROPERTY LAW - RESIDENTIAL. MATTHEW A. NICHOLS - _ .. BUSINESS. COMMERCIAL AND IALSOADMRTEDINNEw YORIO - INDUSTRIAL TRANSACTIONS December 4, 2002 VIA FEDERAL EXPRESS AIRBILL NO.8358 2243 4790 AND VIA E-MAIL: adawsonRinaupintaylor.com • ' Amos C: Dawson; III, Esq. , MAUPIN, TAYLOR & ELLIS, PA Post Office Drawer 19764 Raleigh, NC 27604-1064 Re: Marsh Harbour Resorts, LLC Ms. LaDane Williamson Our File Nos. 02039.001, 02072.001 and 02105.001 Dear Amos: Pursuant to your request, I submit the following report regarding the litigation files we are handling on behalf of Marsh Harbour Resorts, LLC and LaDane Williamson. A synopsis and summary of each case follows with copies of pertinent pleadings attached and so marked. PENDING CASES INVOLVING THE MARSH HARBOUR RESORTS DEVELOPMENT A. Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty Inc., vs. The LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., LaDane Williamson Company, LLC and The Town of Calabash, North Carolina Brunswick County Superior Court File No. 99 CVS 1392 On September 14, 1999, Marsh Harbour Golf and Yacht Club. Interval Association, Inc. and Golf Coast Realty, Inc. filed ' a Complaint against The LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., LaDane Williamson Company, LLC and The Town of Calabash, North Carolina, asserting procedural and substantive defects in the Planned Unit Amos C. Dawson, III, Esq. MAUPIN, TAYLOR & ELLIS, PA ' December 4, 2002 Page -2- Development Zoning Ordinance adopted by the Town of Calabash in July of 1999. Ms. Williamson's companies were brought in as defendants because they were alleged to be affected property owners benefiting by the adoption of the subject zoning ordinance. Defendants filed an Answer asserting numerous defenses: Subsequently, Defendants filed Motions to Dismiss. After further .proceedings, Plaintiff filed a Notice of Voluntary Dismissal Without Prejudice on March 6, 2000. This case is no longer pending. Attached are copies of the following pleadings from Case No. 99 CVS 1372: 1. Complaint (Exhibit "A!) 2. Answer by LaDane Williamson Company (Exhibit "B') 3. Answer by The Town of Calabash (Exhibit "C") 4. Notice of Voluntary Dismissal Without Prejudice (Exhibit "D') B. Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty, Inc. vs. The LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., LaDane Williamson Company, LLC and The Town of Calabash, North Carolina Brunswick County Superior Court File No. 00 CVS 1033 On July 3, 2000, Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty, Inc. filed a Complaint against The LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., LaDane Williamson Company, LLC {"Defendants Williamson') and The Town of Calabash, North Carolina, asserting similar claims set forth in 99 CVS 1392 but with three additional claims for taking of private property, nuisance and trespass. Ms. Williamson's companies were brought in as defendants. because they were alleged to be affected property owners benefiting by the adoption of the subject zoning ordinance.: Defendants filed an Answer asserting numerous defenses. After theissues were joined, the parties conducted extensive discovery regarding the merits of the Complaint. On January 16, 2002, Defendants Williamson filed a Motion for Summary Judgment. The Motion ` was granted dismissing Defendants Williamson from the lawsuit on the basis that these entities did not own the Marsh Harbour Resort property that was affected by the rezoning. With leave of court, Plaintiff filed an Amended Complaint on May 6, 2002. The Amended Complaint asserted the same claims challenging the rezoning and the right of the owner of the Marsh Harbour Resort to develop its property. The Amended Complaint added new parties, Marsh Harbour Resort, LLC and Ocean Harbour Golf Links, Inc. Following service of the Amended Complaint and Summons, The. Town of Calabash filed responsive pleadings. On July 30, 2002, the Defendants Marsh Harbour Resorts, L.L.C. and Ocean Harbour Golf Links, Inc.. (hereinafter collectively referred to as "Corporate Defendants"), moved to dismiss the Amended Complaint pursuant to Rules 12(b)(1), 12(b)(2), 12(6)(6), 12(b)(7), 17(a) and 19 of the North Carolina Rules of Civil Procedure. The Motion to Dismiss attacked the Amended Complaint on jurisdictional basis (standing), statute of limitiations, failure to exhaust Amos C. Dawson, III, Esq. -MAUPIN, TAYLOR & ELLIS, PA December. 4, 2002 Page -3- administrative remedies, failure to state a justiciable claim and other grounds. The Motion was scheduled for hearing, and before the Motion to Dismiss was heard, the parties entered into a Stipulation of Dismissaldismissing the action with prejudice. The, Stipulation was filed on September 23, 2002. This case is no longer pending. Attached are copies of the following pleadings from Case No. 00 CV S 1033: ; 5. Complaint (Exhibit "E") 6. Answer by LaDane Williamson Company (Exhibit "F"). 7. Answer by The Town of Calabash (Exhibit "G") 8. Amended Complaint (Exhibit `.`H ) 9. Answer by The Town of Calabash to the Amended Complaint (Exhibit "I") 10. Motion to Dismiss filed by the Corporate Defendants (Exhibit "J") IL Stipulation of Dismissal (Exhibit "K") C. Marsh Harbour Resorts; LLC vs. Marsh Harbour Marina, Inc.. Brunswick County'District'Court File No, 01 CVD 156 On December 28, 2000, Marsh Harbour Resorts; LLC; filed a Complaint in .Summary Ejectment against Marsh Harbour Marina, Inc.. regarding the lease of the Marina. `After hearing before a Magistrate, Plaintiff filed Notice of Appeal to the District Court on January 22, 2001. Thereafter, numerous motions and hearings have transpired in this lease ejectment action. In April of 2001, Plaintiff moved for Summary Judgment.: On April 26, 2001, Defendant filed an Answer,. Counterclaim and Third -Party Complaint.' Numerous affidavits, motions and notices of hearings_. . were filed subsequent to the April 2001 pleadings by the parties. On May 1, 2001, Plaintiff moved to amend its Complaint.. Subsequently, .Third -Party Defendants were served.:. The Third Party . Defendants are: Inlet Harbor Marina,. Inc.; DeCarol Williamson; Odell Williamson; and Virginia Williamson. On June 1, 2001, Judge Nancy C. Phillips entered an Order allowing the Motion to Amend the .Complaint, "extending . discoverydeadlines and denying and striking Defendant's Counterclaim and Third -Party Complaint. On June 26, 2001, Defendant filed a Motion for Reconsideration of the June 1, M01 Order. Substantial discovery, ensued with 'depositions of parties and potential witnesses. Motions for protective orders were filed. Thereafter, various hearings were conducted, and Plaintiffs Motion for Summary Judgment was heard by Judge Phillips, but she never ruled on the Motion. Plaintiffs counsel withdrew early this year and then.we took over this file: Following the recommendations of Judge William Gore of the 13" Judicial District, Chief Justice Lake assigned this case and the following case to,the North Carolina Business Court, where it is pending at this time. The Business Court has prescribed a time schedule for discovery and motion practice before the Court. We expect a trial next summer. Amos C. Dawson, III;,Esq. MAUPIN, TAYLOR & ELLIS, PA December 4, 2002 Page -4- Attached are copies of the following pleadings for Case No. 01 CVD 156: 12. Complaint in Summary Ejectment (Exhibit "L") 13. Answer filed by Marsh Harbour Marina, Inc., (Exhibit "M") 14. Amended Complaint filed by Marsh Harbour Resorts, LLC (Exhibit "N') 15. Judge Phillips' Order dated June 7, 2001. (Exhibit "0") D. Marsh Harbour Marina, Inc. vs. Marsh Harbour Marina Resorts„LLC and Inlet Harbour Marina, Inc. Brunswick County Superior Court File.No. 01 CVS 225 On February 2, 2001, Marsh Harbour Marina, Inc. filed a Complaint against. Defendants Marsh Harbour Resorts, LLC and Inlet Harbor Marina; Inc. regarding the'lease of the Marina and asserting claims for breach of the lease, breach of promises to make capital improvements and failure of Lessor to make repairs, etc. .This lawsuit involves the. same lease that is the subject of Case No. 01 CVD 156. Since the filing of the Complaint and Answers, the parties have engaged in extensive discovery —depositions, interrogatories and requests for production of documents. On or about April 16, 2001, Defendant Marsh Harbour Resorts, LLC filed and served its Answer and Motion to Dismiss. Early this year, counsel for Defendant Marsh HarbourResort, LLC _ withdrew. My firm began representing Marsh Harbour Resorts, LLC in March of 2002: Upon our entry into this case, we noted a typographical error regarding responses to paragraphs 13, 14.and15 of the Complaint. Defendant's Answer inadvertently recites admissions to the allegations contained in the corresponding paragraphs to the Complaint, when it should have recited denials. Paragraphs 13 14, and 15 of the Complaint contain allegations that the parties have all along contested. This case was scheduled for trial in April of this year and, due to a number of facts, the parties and Judge William Gore of the 13°i Judicial District believed that this case and Case No. 01 CVD 156 should be deemed exceptional and transferred to the Business Court. Chief Justice Lake assigned this case. and Case. No. 01 CVD 156 to the North Carolina Business Court, where it is pending at this time. The. Business Court has prescribed a time schedule for discovery and motion practice before the Court. We expect a trial next summer.. Attached are copies of the following pleadings from Case No. 01 CVS 225: 16. Complaint (Exhibit "P") 17. Answer filed by Marsh Harbour Resorts, LLC (Exhibit "Q') 18. Answer filed by Inlet Harbor.Marina, Inc. (Exhibit "R") 19. Motion for Order Amending Answer Due to Typographical Error (Exhibit "S'� 20. Order Designating Case as Exceptional (Exhibit "T") Amos C. Dawson, III, Esq. MAUPIN, TAYLOR & ELLIS, PA December 4, 2002 Page -5- DISCUSSION REGARDING THE IMPACT OF THESE CASES UPON THE DEVELOPMENT OF MARSH HARBOUR RESORTS Although I have only been involved in these eases since March of this year, I am aware of the issues and consequences of these cases upon the development of Marsh Harbour Resorts. As an attorney extensively involved in:real.property and land use issues, I know that lawsuits challenging zoning decisions and leases pertaining to the development of real property will generally have an extreme adverse. impact upon the developer's ability to proceed under the sundry permits required from governmental agencies. Based upon my involvement in these cases and my knowledge of land use issues, funding requirements and construction, requirements, it is my, opinion that Ms. LaDane Williamson and Marsh Harbour Resorts, LLC cannot proceed with any development plans or improvements of the Marsh Harbour Resorts Project until these lawsuits are resolved. At this writing, I have successfully resolved the zoning and land use litigation. Next, I will turn my attention to resolving the. marina lease litigation. I expect the Business Court to resolve Case Nos. 01 CVS 225 and 01 CVD 156 by next summer: I trust this synopsis'addresses the lawsuits that have adversely impacted the development of Marsh Harbour Resorts. I welcome your comments and look forward to discussing the enclosed with you. With kind regards, I remain EXHIBIT " STATE OF NORTH CAR)11,Wft- I L j COUNTY OF BRUNSWICK ) 99 SEP 114 PM 1: 211 IN, THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISON- R GOL'llCit CQUId C.S.C. 5 7Z MARSH HARBOUR GOLF & YACHT CLUB INTE{jVAL ASSN., INC AND tP£pAST CASE NO.: t:/1J REALTY INC., ) Plaintiffs; COMPLAINT vs. , ) JURY TRIAL.DEMANDED LADANE WILLIAMSON COMPANY) LADANE WILLIAMSON OF NORTH) CAROLINA, INCORPORATED,,. ): LADANE WILLIAMSON COMPANY L.L.C., AND THE TOWN OF.. ) CALABASH, NORTH CAROLINA ) - Defendants. ) �. Plaintiffs, complaining of. Defendants herein would respectfully show unto this Honorable Court as follows: 1. Plaintiff, Marsh Harbour Golf & Yacht Club Interval Assn.;,Ind.,is an association of owners.of property located In the Town of Calabash, in the community.of Marsh.HarbourGolf & ' Yacht Club. Plaintiff Golf. Coast; Realty, Inc. is a corporation organized and existing under and . i by. virtue of the laws of the state of North Carolina. Plaintiffs have a specific and'IagaI in in the subject,matter affected by the Zoning Ordinance involved in this action and the Plaintiffs are directly and adversely affected'thereby and are aggrieved par6'esIJ 2. Defendant Town . of Calabash is a duly incorporated North Carolina Municipal Corporation .and Defendants LaDane . Williamson Company, L ibane Williamson of North Carolina, Incorporated and. LaDane Williamson Company, C.L:� ore, upon tnfgrmatiiqQn'an0 ` 11 belief, corporations organized and existing under the laws of the .State of North Carolina and doing business in Brunswick County, North Carolina. 3. This matter is within the jurisdiction of this Honorable Court, 4. On or about July 26, 1999 the Town of Calabash by and through the actions of the Board of Commissioners re -zoned 168.42 acres.of land, including lands comprising both Marsh Harbour Resort and Ocean Harbour Resort. This land had -been zoned P.U.D. and R-15 and was changed to a new Planned Unit Development: at the request of Defendant, The LaDane Williamson Company. Said Defendant intends to construct a development planned to include a luxury hotel containing 900 guest rooms, and a seven story, 75-foot high parking garage. Said Defendant intends to locate the parking garage immediately adjacent to Plaintiffs' property. - 5. The subject property was rezoned over the strong objections of community members, including owners of property in Marsh Harbour, and. particularly of the Plaintiffs herein. 6. Upon information .and belief, a majority of the Board of Commissions had. previously decided to'adopt the Ordinance prior to the final hearing. The public was not allowed in into the decision and was not allowed to make comments or voice concerns: during the final hearing, contrary to applicable law. 7. ThePlanned Unit Development Zoning Ordinance adopted,by the -Town of Calabash is oppressive and a:manifest abuse of discretion; further,'it.is arbitrary, unreasonable, capricious and in. `excess' of lawfully delegated.authodty based upon, but not limited to the following reasons and violations, to -wits a. It was adopted without proper study, planning or information; b. It includes maximum, building heights and setbacks,. which `are- arbitrary, capricious, inconsistent, irrational and: unreasonable, all to the detriment of Plaintiffs and similarly situated adjoining,; landowners: The unreasonable setback and height restrictions cause significant damage to. the property values and the quality. of the life of the adjacent property owners, particulariy.the Plamtiffs;. 2 - C. It fails to provided for adequate light, air and open space; d. It does not facilitate the creation of. a convenient, attractive and harmonious community by allowing a seven story high-rise parking garage to be located immediately adjacent to Plaintiffs' property without proper transitional zone; e. It fails to protect and preserve scenic and ecologically sensitive areas; f. It does not protect the character of.the community as it currently exists; g. It fails to demonstrate that the change is in accord with sound planning principals; h. It does not demonstrate that all uses would be in the general public interest not merely in the interest of an individual or small group; I. It fails to protect the safety and well-being of the community and will allow construction of a development that will greatly increase traffic and congestion in the area; j. It fails to ,be rationally related to any legitimate government objective. 8. Defendants failed to comply with the applicable Notice Requirements as imposed by the laws of _the Town of Calabash and of the State of North Carolina and in so doing precluded all citizens, property owners and concerned taxpayers from .having adequate opportunity to be advised of the exact nature of the plan and to voice their opinions and concerns regarding the same: 9. The Plaintiffs have suffered damages, as a result :of the .arbitrary, capricious, unreasonable and illegal actions of Defendants, Plaintiffs have been damaged in, but not limited to, the following: a. The value of their property has been diminished; b. They have lost future income from anticipated rentals and increased profits from re -sales and have adversely affected time share owners' ability to trade or bank time or weeks; 3 C. They have incurred costs in opposing this Ordinance including Attorney's Fees; d. The Plaintiffs have expended great and.vast amounts of their time which could have been devoted to other occupations or pursuits; and e. The reputation of the community, has been damaged. 10. That the Plaintiffs are informed and believe that they are entitled to have this Court issue its ruling that the Zoning Ordinance is in violation of applicable. Notice Requirements and that is unreasonable; arbitrary, oppressive, capricious, a manifest abuse of discretion. and therefore unlawful. Respectfully Submitted,. eDwililjht Hudson, Esq. ujdon, 8 Gentry 4 10 N Kings Highway, Ste l3 Myrtle Beach SC 29577 (843).692-9889; Fax 692.-9190 NC Bark 2234 ATTORNEY FOR PLAINTIFFS bated: September 10, 1999 _ 5' EXHIBIT b ,r I� STATE OF NORTH CAROLINA FRI.-EIDTHE GENERAL COURT OF SUPERIOR COURT DIVISION COUNTY OF BRUNSWICK 99 N'0V 22 PM 12: 10 99 CVS 1372 BRUiiSIrlCi( 1:00t; i'Y. C.S.C. MARSH HARBOUR GOLF & YACHT CLUB INTERVAL ASSN, INC., & GOLF COAST REALTY, INC. - Plaintiffs, ANSWER vs. LADANE WILLIAMSON COMPANY., LADANE WILLIAMSON OF NORTH CAROLINA, INCORPORATED, LADANE: WILLIAMSON COMPANY, L.L.C. AND THE TOWN OF CALABASH, NC Defendants. Defendants LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., and LaDane Williamson Co., L.L.C. (hereinafter "The LaDane Williamson Defendants"), answering :the complaint of the plaintiffs, allege and say as follows:. — a W1U iw.Lue1 umense,.me Lauane wwlamson Velendants respond to.the enumerated paragraphs of the plaintiffs' complaint as follows.. 1. It is admitted upon information and be lief that plamtiffMarsh Harbour Golf & Yacht Club Interval Assn., Inc. is an association of owners of property located in the Town of Calabash in the community of Marsh Harbour. Golf& Yacht Club. It is further admitted upon 16418 .. information and belief that plaintiff Golf Coast Realty, Inc. is a corporation organized and existing under and by virtue of the laws of the State of North Carolina. The:remaining allegations of paragraph 1 of the plaintiffs' complaint are denied. 2. It is admitted that defendant Town of Calabash is a duly incorporated municipal corporation, and that LaDane Williamson Company of North Carolina, Incorporated and LaDane Williamson Company, L.L.C. are corporations organized and existing pursuant to the laws of the State of North Carolina. The remaining allegations of paragraph 2 of the complaint are denied. 3. The allegations of paragraph 3 of the plaintiffs' complaint are denied. 4. It is admitted that on or about July 26, 1999 the Town of Calabash, acting by and through its Board of Commissioners, rezoned 168.42 acres of land which had previously been zoned P.U.D. and R-15 and the said land was changed to a new planned unit development. The remaining allegations of paragraph 4 of the complaint are, denied. 5. It is admitted that the subject property was rezoned; the LaDane Williamson Defendants are without information sufficient to form a belief as to whether community members, , including owners of property in Marsh Harbour, and the plaintiffs herein, strongly objected to such a rezoning and the same is therefore denied. 6. The allegations contained in paragraph 6 ofthe complaint are denied. 7. The allegations contained in paragraph 7 of the complaint and more particularly sub-paragraphs,a j are denied. ' 8. The allegations contained in paragraph 8.of the complaint are denied. 9. The allegations contained in paragraph 9 and more particularly sub -paragraphs a-e of the complaint are denied, 16419 10. Paragraph 10 of the complaint purports to state a legal conclusion and requires no response of the LaDane Williamson Defendants. To the extent a response is required, the allegations contained in paragraph 10 of the complaint are denied. As a third, and further defense, the LaDane Williamson Defendants are not state actors and, as such, are responsible for neither the decision giving rise to this action or any alleged due process violation. FOURTH DEFENSE As a fourth and further defense, the LaDane Williamson Defendants assert the plainfds' failure to proceed in the nature of certiorari to the Brunswick County Superior Court, in accordancewithN.C.G.S, § 160A381. FEW DEFENSE As a fifth and fiuther defense; plaintiffs are not aggrieved parties within the meaning of N.C.G.S. § 160A 381 inasmuch as they have not suffered special damage distinct from the rest of the community, and they therefore lack the standing necessary to prosecute their claim. SDCTH DEFENSE . As a sixth and further defense, plaintiffs' failed to exhaust their administrative remedies prior to commencing this action, no determination has been made as to how the plaintiffs will be affected by the ordinance, and the issues raised in plaintiffs' complaint are not ripe for review. . WHEREFORE, the LaDane Williamson Defendants, having answered the complaint; STATE OF NORTH CAROLINA F I L. F n a IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF BRUNSWICK y ) Dei 12• in 99 CVS 1372 99 td0 e 1 MARSH HARBOUR GOLF & BRUNSWICii f,0l�;lT'G C.S.C. YACHT. CLUB INTERVAL ASSN., ) INC. AND GOLF COAST INC., _• ) Plaintiffs, ) v. ) A N S W E R LADANE WILLIAMSON COMPANY, ) LADANE WILLIAMSON OF NORTH- ) CAROLINA, INCORPORATED, ). LADANE.WILLIAMSON COMPANY ) L.L.C. and THE TOWN OF ) CALABASH,.NORTH CAROLINA. ) Defendants. ) NOW COMES the defendant, TOWN OF CALABASH, by and through counsel of record.responding to the Complaint, of the plaintiffs' saying and alleging as, follows: FIRST DEFENSE. The Complaint of the plaintiffs.'-.fails.to .state .a.claim upon. which relief can,be granted and should be dismissed pursuant .to Rule;12'(b)(6) of the North. Carolina Rules.of Civil Procedure. "SECOND DEFENSE 1. Responding to the allegations contained'in Paragraph 1 of the plaintiffs' Complaint, it -is admitted upon information and ` belief that Marsh Harbour Golf & Yacht Club interval Association', Inc. is an association of owners of property located in -the Town'of Calabash',' in the community of Marsh Harbour Golf &Yacht Club'. It `I is further admitted upon information and belief that Golf Coast Realty, Inc., is a.corporation organized and existing under and by virtue of .the laws of the State of North Carolina. Any and all other allegations contained in any paragraph 1 of the Complaint not hereinabove specifically admitted are denied. 2. Responding to the allegations contained in Paragraph 2 of the plaintiffs' Complaint, it is admitted that defendant Town of Calabashis a duly incorporated, North .Carolina Municipal Corporation. Any .and all 'other allegations -contained `'in any. paragraph 2 of the Complaint not•hereinabove°specifically.admitted are denied. .3. Tte allegations contained .in paragraph 3 of the Complaint are admitted. 4. Responding to the allegations contained in Paragraph 4 of the plaintiffs' Complaint, it is.admitted'that,on July 26, 1999, the Board of Commissioners for the. Town of Calabash reconvened a,special meeting that was, continued from July 20,.1999. It is.further. admitted that the Motion to Rezone Marsh Harbour and Ocean Harbour from R15` to PUD.wasapproved. The remaining Allegations contained'in..said paragraph do not pertain .to this answering defendant and.are, therefore, -denied. 5. The allegations: contained in paragraph 5 of the.. Complaint are denied. 6. The allegations contained in paragraph 6 of the Complaint are denied. 7. The allegations contained .in paragraph 7 of Complaint including subparts A through.J are denied. 8. .. The allegations contained in ,paragraph S of the Complaint are denied. 9. The allegations contained in paragraph. 9 of the Complaint including subparts A through E are denied.. 10. The. allegations contained in .paragraph 10 of the Complaint.are denied. 11. Any and all other. allegations ,contained in any paragraph of the Complaint not,hereinabove specifically admitted are. denied:. THIRD DEFENSE _. (Sovereign Immunity) At., all times, applicable to plaintiff's Complaint,, the defendant,, Town of Calabash, was a. municipal body actingin the.< exercise .of a Governmental Functiom and hereby pleads any and all„ :applicable,Doctrines.of. Governmental. Immunity,in.bar of all.or any .part of the. plaintiffs' pendint.State,claims i WHEREFORE, having fully answered the' Complaint of the plaintiffs, the defendant, TOWN OF CALABASH respectfully prays the , Court for the following relief: 1. That plaintiffs' action against this answering defendant be dismissed; 2. Plaintiffs' have and recovery nothing of this answering defendant; 3. Costs of this action,, including reasonable attorneys fees be taxed against the. plaintiffs; 4. For such other and,further relief as the Court may deem just and proper; and 4. A TRIAL BY JURY is hereby respectfully demanded. . Respectfully, submitted this the IT day of November, 1999. RAMOS AND LEWIS, LLP Michael 'R.-'Ramos State. Bar No..; 10484: Attorney, for TOWN OF CALABASH Post Office Box.2109 Shallotte, NC' 28459 and CROSSLEY McINTOSH PRIOR &.COLLIER be Clay ollier State Bar No.: 13260 Brian-E.'Edes State Bar No.: 25415 1. Attorney .for Defendant TOWN OF CALABASH 616 Market Street P.''0.,Box 740 Wilmington, NC 28402 ` Telephoner, (910) 762-9711 4 EXHIBIT s. STATE OF NORTH CAROLINA �` — �''jN THE GENERAL COURT OF JUSTICE 1 COUNTY OF BRUNSWICK �O IjAR 6 P AAIOR COURT DIVISION pRUtiSYIICt; CI U-.I-, MARSH HARBOR GOLF & YACHT ) CASE NO.: 99 CVS 1372 CLUB INTERVAL ASSN, INC. GOLF COAST REALTY INC., ) ASSOCIATION, ) ) Plaintiff, ) VS. ) STIPULATION OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE BY PLAINTIFFS Pursuant to Rule 41 (a)(1), Rules of Civil Procedure THE LADANE WILLIAMSON COMPANY, ) LADANE WILLIAMSON OF NORTH ) CAROLIN& INCORPORATED, LADANE ) WILLIAMSON COMPANY, L.L.C., AND ) THE TOWN OF CALABASH, NORTH CAROLINA ) Defendants. ) Pursuant to Rule 41(a)(1) of the Rules of Civil Procedure,. the Plaintiffs hereby and herein give notice that it/they voluntarily dismiss this case without prejudice and file this notice of dismissal under and in compliance with Rule 41(a)(1) of. the Rules of Civil Procedure. J: DMght Hudson, Esquire Hudson & Gentry, L.LC. 1203 48th Avenue North Suite .111 Myrtle Beach, SC 29577 (843) 692-9889 NC BAR NO: 2234 ATTORNEY FOR PLAINTIFFS STATE OF NORTH CAROLINAF t(_)F-D IN THE GENERAL COURT OF JUSTICE SUPERIOR, COURT DIVISION COUNTY OF BR,UNSWIC G) !LIL _3 4M 12: 54SE NO: COC-t)S; C:S.C. MARSH HARBOR GOLF &X YACHT CLUE INTERVAL SAS ASSN., INC AND GOLF REALTY INC,, ) Plaintiffs, ) " ) vs. ) COMPLAINT (Jury Trial Demanded) LADANE WILLIAMSON COMPANY ) LADANE WILLIAMSON OF NORTH ) CAROLINA, INCORPORATED ) LADANE WILLIAMSON COMPANY L.LC. AND THE TOWN OF ) CALABASH, NORTH CAROLINA ) Defendants. ), Plaintiffs, complaining of Defendants herein would respectfully show unto this Honorable Court as follows: t. Plaintiff. Marsh Harbor Golf & Yacht Club Interval Assn., Inc. is an association of .owners of property located in the Town of Calabash, in the community of Marsh Harbor Golf & Yacht Club. Plaintiff Golf Coast Realty,.lnc. is a corporation organized and existing under and by virtue of the laws of the state.of North Carolina. 2. Defendant Town of Calabash is a duly incorporated North Carolina MunicipaIV Corporation and Defendants La Dane Williamson Company, LaDane Williamson of North,W ft: Carolina, Incorporated and LaDane Williamson Company, L.L.C. are, upon. information and`, belief corporations organized and existing under the laws of the State of North Carolina'and • ra•Pv doing business in Brunswick County, North Carolina. �t 3. The Plaintiffs represent the owners of property interests in the Marsh Harbor community. The owners of those interests are listed in the attached Exhibit A, which is incorporated herein by reference as fully as though repeated verbatim. 4. The land which comprises the Marsh Harbor community is more specifically described in the attached Exhibit B which is a zoning map for.Marsh Harbor Golf Links Which is incorporated herein by reference which is incorporated herein by reference as fully as though repeated verbatim. 5. Upon information and belief, Defendant Town of Calabash has insurance coverage applicable to this case and/or which provides coverage under the facts and circumstances stated herein. FOR A FIRST CAUSE OF ACTION (Declaratory Judgment) As to Defendant. Town of Calabash, and affecting property interests of All Defendants: 6. Each of.lhe foregoingallegations is incorporated herein by reference as fL* as though the same were repeated verbatim._ 7. This,is an action seeking to have this Court declare the rights, status and,othe4.legal.' .� relations of the parties and issues involved in this case This is an action.under and putt P to the Uniform Declaratory Judgment Act as codified in N.C. Gen. Stet: § 1-253, et sr 3 8. The.Plaintiffs are residents and/or property owners and/or adjoining land owrte s Qf the proposed development at issuein.this action, located in the Town of Calabash, North Carolina.and are interested parties pursuant to N:C'. Gen. Stat. § 1-254 whose rights, status or other legal .relations are affected by a municipal ordinance enacted by the Defendant 7 Calabash on or about July 26,1999. Therefore, the Plaintiffs have a specific, legal interest in the subject matter affected by the Zoning Ordinance involved in this action, and are aggrieved parties directly and adversely affected thereby. 9. The Plaintiffs have suffered / will suffer special damages distinct from the rest of the; •, community in that the rezoned building will [would cut off the light and air to their property, increase the danger of fire, increase the traffic congestion, increase the noise level, increase the level of pollutants and irritants in the air and the environment, will interfere with the right r to peaceful enjoyment of their property, with their right of privacy and will pose a dart the health and safety of residents of Marsh Harbor. !;'. ;+ 10. On or about July 26,1999 the Town of Calabash by and through the actions t�7e+'•=,, Board of Commissioners re -zoned 168.42 acres of land, including lands comprisin{};both Marsh Harbor Resort and Ocean Harbor Resort. This land had been zoned P.U.D. an R-15 and has changed to a new Planned Unit Development, at the request of Defendan(..The LaDane Williamson Company. Said Defendant intends to construct a development planned to include a luxury hotel accommodating 1,200 guests, condominiums, single family homes is and townhouses and.a seven story, 75 foot+iiah parkins garage: Said defendant intends =' to locate the parking garage immediately adjacent to plaintiffs' property 11. The subject property was re_ -zoned over the strong objections of community members, including .owners of property in Marsh Harbor, and particularly of the Plaintiffs In erein. Specifically, the seven story parking garage planned for the project is imme lately i and directly adjacent to the resort and residential *community of Marsh Harbor - �yTf l 12. Upon information and belief, 'a majority of the Board of Commissioners decided to Tlfi1 adopt the Ordinance prior to the final hearing. The public was not allowed input into the decision and was not allowed to make comments.or'voice concerns during the final hearing, - contrary to applicable law. The Plaintiffs. were, therefore, denied an opportunity mandated 1 by statute, to raise and have addressed their specific and urgent concerns about this proposed development in general and about the parking garage planned to be constricted immediately adjacent to their property. Plaintiffs, therefore; did not have the statutorily mandated opportunity to explore with the developers the possibility of changing the plains to relocate the parking garage to an alternate site, which would not pose such a direct and immediate threat and hazard to the safety, health, property and privacy rights of the Plaintiffs. 13. The Planned Unit Development Zoning Ordinance adopted by the Town of Calabash ' j, is oppressive and is.a manifest abuse of discretion; further, it is arbitrary, unreasonable, capricious and in excess of lawfully delegated authority based upon, but not limited to the following reasons and violations; to -wit: a. It was adopted without proper study, planning or information, including, but not limited to traffic congestion, fire protection -and ingress and egress; b. It includes maximum building heights and setbacks which are 'arbitrary, capricious, inconsistent, irrational and unreasonable, .all to the detriment of Plaintiffs. The unreasonable setback and height restrictions cause significant damage to the property values and the quality of the life of the Plaintiffs; It fails to provided for adequate light. air and open space; C. It does not facilitate the creation of a convenient, attractive and harmonious community by allowing a seven story high- rise parking garage to be located immediately. adjacent to Plaintiffs' property without a proper transitional zone; d. It fails to protect and preserve scenic and ecologically, sensitive areas; �,.x t •; r e. 11 does not protect the character of the community as it 1 ` currently exists; f. It 'fails to demonstrate that the change is in .accord with . sound planning principals; ., g: It does not demonstrate that all uses would be in the general public interest not merely in the interest of an individual or small group; 4 h. It fails to protect the safety and well-being of the community and will allow construction of a development that will greatly increase traffic and congestion in the area; i. It fails to be rationally related to any legitimate government objective. 14. In adopting the said ordinance, Defendant, Town of Calabash, failed to comply with the applicable Notice Requirements as imposed by the laws of the Town of Calabash and by the State of North Carolina and in so doing precluded all citizens, property owne ands' concerned taxpayers; including the Plaintiff(s) from having adequate opportunity jo be' advised of the exact nature of the plan and to voice their opinions and concerns regarding' the same. and to have their. elected officials answer those concerns. t t. 15. The Plaintiffs have suffered and will continue to suffer special damages, separaf4@ and•. distinct from the remainder of the community as a result of the arbitrary, capricious, t.: unreasonable and illegal actions of Defendants. plaintiffs have been damaged in, but not hinted to, the following; a. The value of their property has been diminished:. b. They have lost future income from anticipated rentals and increased profits from re -sales, and and the time share owners ability to trade or bank time, or weeks, has been adversely affected; C. They have incurred costs in opposing this ,Ordinance including Attorney's Fees; d. The Plaintiffs have expended great and vast amounts of . their time which could have been devoted to other . occupation's or pursuits; and e. The reputation of the community has been damaged. f. Their, peaceful enjoyment ,of their :property has been damaged. g. Their health and safety has been put at risk 16. Plaintiffs are informed and believe that they are entitled to have this Court issue its' ruling declaring the rights of the parties and declaring as follows: that the re -zoning property or land in question was not done in accordance with the requirements of the statutes, including the applicable Notice Requirements and that the re -zoning in this case is unreasonable, arbitrary, oppressive, capricious, a manifest abuse of discretion. FOR A SECOND CAUSE OF ACTION (For A Taking of Private Property) Against the Town of Calabash; North Carolina 17.. Each of the foregoing allegations is incorporated by reference herein as fully as though repeated verbatim. 18: Plaintiffs would allege that the zoning ordinance as adopted by the Town of Calabash, under the facts and circumstances stated herein drastically alters the property rights of the . Plaintiffs, decreases the value of their investment and property, and changes the nature and character of their investment in the Town of Calabash without allowing them a voice in that decision and constitutes a taking of private property for public use without payment 4fjust compensation and without adequate due process. r, 19. Plaintiffs would allege that as to their property, which will now be adjacent to a even .,. `. storyparking garage, a structure not allowed within the Town of Calabash at the time .61their investment, this zoning ordinance constitutes a taking of private property for public use without just compensation within the meaning of the law of the .land clause in ArgcIe 1, F:. 0 Section 19 of the Constitution of the Slate of North Carolina as interpreted by the Courts of this stale. Plaintiffs would further allege that this zoning statute constitutes a taking within the meaning of the Fifth Amendment to the Constitution of the United States of America. FOR A THIRD CAUSE OF ACTION (Nuisance) As to Defendants: LaDane Williamson Company, LaDane Williamson Of North Carolina, Incorporated, LaDane Williamson Company L.L.C. 20. Each of the foregoing allegations is incorporated by reference herein as fully as though repealed verbatim herein. 21 Plaintiffs would allege that the proposed seven story parking garage planned'to be constructed by Defendants LaDane Williamson Company, and/or LaDane Williamson of. North Carolina,. Incorporated and/or the LaDane Williamson_ Company, LLC will cause'noise and pollution and is therefore an improper use of the property which will result in injury to the land, property and rights of the Plaintiffs and, therefore, constitutes a private nuisance. 22. Plaintiffs would allege that the proposed parking garage, if, located immechatety" adjacent 'to their property as'planned, will constitute a nuisance per accidens. Further, Plaintiffs allege that said parking garage will necessarily become a nuisance due to the fad .that seven stories of cars will be parking upon the facility, that the facility is immepltely, '. adjacent to the Plaintiffs.properly, and that the volume of.noise and pollution which seven stories of cars will bring into the area will be immense. This harm is actually threatened and not merely probable. The harm is, in fact, certain or practically certain. 23. Plaintiffs would allege that the seven story parking garage, if constructed where it is planned, will create conditions rendering their enjoyment of their property impossible and it will invade their rights, including, but not limited to, their rights to peaceful enjoyment and to privacy. 24. The nuisance created by the parking garage will be continuous and recurrent and the injury or harm to the Plaintiffs will be irreparable as it is one to which the Plaintiffs should not be required to submit nor should Defendants be permitted to inflict the harm which is of such continuous, ongoing and frequent recurrence that no reasonable redress can be had in a Court of law. r 25. The Plaintiffs would be irreparably injured by the construction and operation or said:a parking garage and for such injuries and damages there would be no possibility of repair or compensation and there is no adequate remedy at law for the damages that the plaintiffs will inevitably suffer. 26 Plaintiffs are informed and believe that they are entitled to have this. Court permanently enjoin 'Defendants from constructing of said parking garage adjacent to Plaintiffs' property. 27. Alternatively, although there is no adequate remedy at law or in damages for the immense and irreparable harm that Plaintiffs will suffer if this Court should fail and refuse to issue the permanent injunction, then Plaintiffs only recourse will be in monetary: damages, which are not sufficient and could not repair the harin Plaintiffs will suffer, but if this Court will not permanently restrain Defendants as requested, then they ask that this Court award a sufficient amount of monetary damage to.compensate the Plaintiffs for the harm and inconvenience they will suffer now and in the future. g FOR A FOURTH CAUSE OF ACTION (Trespass) As to Defendants: LaDane Williamson Company, LaDane Williamson Of North Carolina, Incorporated, LaDane Williamson Company L.L.C. 28. Each of the foregoing allegations is incorporated by reference herein as fully as though the same were repeated verbatim. 29. Plaintiffs would allege that the parking garage will cause noise, and pollution to continuously trespass upon their property and to threaten their health and safety and they are informed and believe that they are entitled to have this Court issue its Order awarding them damages for the same. WHEREFORE, Plaintiffs pray that the Court inquire into the matter and issue its Order, granting them.relief as follows: . ai A luddment declaring that the Zoning Ordinance is unla'wfiil and in violation of the applicable Notice Requirements -and ') { w that the parking -garage be stopped and halted immediately and That the Town be ordered to comply with the statutes in any attempt to again change the zoning for the area- b. A judgment declaring that the Defendants':actions are arbitrary, unreasonable and are an abuse of discretion and authority.' and that the; zoning ordinance in question is i therefore void; C. Awarding actual and consequential damages;: d Awarding costsand •reasonable attorneys fees for the bringing of this action; e. Permanently- enjoining,any and all construction and the K S `parking garage and Ordering that neither a parking: garage nor.any similar facility be constructed on said site adjacent lo.Plaintiffs'.property; � T� l'v �[s EXHIBIT ILF !I STATE OF NORTH CARO]A . IN THE GENERAL COURT OF JUSTICE COUNTY OF BRUNSP f FIi.t)b SUPERIOR COURT DIVISION 00 CVS 1033 gaU►iS1tICY�CO'JiiTY C.S.C. MARSH HARBOR GOLF & YACHT CLUB INTERVAL ASS., Alit .and---- V GOLF COAST REALTY, INC., Plaintiffs, vs. ANSWER OF LADANE WILLIAMSON DEFENDANTS LADANE WILLIAMSON COMPANY; . LADANE WIMMMSON OF NORTH CAROLINA, INCORPORATED; LADANE WILLIAMSON COMPANY LI.C•, And THE TOWN OF CALABASH; NtIRTH CAROLINA,: a ,1 Defendants I Defendants LaDaue Williamson Cotitpany, LADMO WilliAih9on of North Carolina, Ineo Qrated.and LaDane Williamson Company, L.L.C. (hereinaler "the Labane F ... Williamson defendants'), answering the complaint of the plaintiffs, allege: nhd say as folloWt;;' FIRST DEFENSE: M01ION TO DISMISS The complaint fails to state a claim upon which relief may be granted as to the Labane Williamson defendants and the same should therefbte be dismissed as to those defendants pursuant to Rule 12(b)(6) of the North Carolina.Ruies of Civil Procedure. SECOND ANSWER AND DEFENSE.; As a second and farther defense, the Labane Williamson defendants respond, to the enumerated'paragraphs of the plaintiffs'•complaintas follows: 1.. .The allegations set forth in paragraph 1 of plaintiffs' complaint are admitted. i • 2. It is admitted that defendant Town of Calabash is a duly incorporated municipal corpgtation, and that LaDane Williamson Company of North Carolinas Incorporated and LaDane Williamson Company, L.L.C. are corporations organized and existing pursuant to the laws ofNorth. Carolina and doing business in 13ttmswick County, North Catolitia. Except as expressly admitted herein, the allegations set forth in paragraph 2 of plaititiffs' complaint ate t 4 ; dettied. w; is 3. Exhibit A to plaintiff's' complaint speaks for itself and requires no response of defendants. The remaining allegations Set forth in paragraph 3 Ofplaintiffs' complaint ate denied for lack of information and belief. =' 4. The allegations set forth itt paragraph 4 of plaintiffs' 'complaint are admitted. 5. The allegations set forth in paragraph 5 of plaintiffs', complaint are admitted upon ffiformation and belief, 6.. -The LaDane Williamson defendants repeat, reallege, and incorporate by . reference their responses to paragraphs 1 tliough 5 of plaintiffs' complaint: T. The allegations set forth in paragraph 7 of plaintiffs' complaint are admitted. . 8. The allegations set forth in paragraph 8.of plaintiffs' complaint:are denied:,.. 9.: The allegations set forth.in.paragraph 9 of plaintiffs' complaint are denied. 10. It is admitted that 168.42 acres which had previously been zoned P.U.D. and R-15 were re -zoned on or about July 26, 1999 by the Town of Calabash, through its $oard of Commissioners; and the said land was .changed to anew planned Unit DeVelopment. The remaining allegations set forth in paragraph 10 of plaintiffs' complaint ate denied. �ti 11, It is admitted that the subjeet ptoperty was rezoned. -The remaining allegations set forth in paragraph 11 of plaintiffs' complaint are denied. denied. 12. The allegations set forth in paragraph 12 of plaintiffs' complaint are 13. The allegations set forth in paragraph 13 of plaintiffs' complaint, and more particularly_subparagraphs (a) - (i), are denied. 14. The allegations set forth in paragraph 14 of plaintiffs' complaint are denied. 15. The allegations set forth in paragraph 15 of plaintiffs' complaint, and more Particularly subparagraphs (a) - (g) are denied. 16. The allegations set forth in paragraph 16 of plaintiffs' complaint are denied. l . - The LaDane Williamson defendants repeat, reallege and incorporate by reference their responses to paragraphs 1 though 16 of plaintiffs' complaint: 18. The allegations set forth in paragraph 18 of plaintifA' complaint ate denied. 19. The allegations set forth in paragraph 19 of plaintiff9'.complaint are { - denied. 20.The LaDane Williamson defendants repeat, reallege and incorporate by_ referencetheir responses to paragraphs 1 though 19 of plaintiffs' complaint, . 21. The allegations set forth in paragraph 21 of plaintiffs' complaint are . denied.. " denied. denied. 22. The allegations set forth in paragraph 22 of plaintiffs'. complaint are r 23. The allegations set forth in paragraph 23 of plaintiffs' complaint are 24. The allegations set forth in paragraph 24 of plaintiffs' complaint are denied: 25. The allegations set forth in paragraph 25 of plaintiffs' complaint are denied. 26. The allegations set forth in paragraph. 26 of plaintiffs' complaint ae denied. 27. The allegations set forth in patagraph.27'ofplaintiM' cotnplAtit dre denied. � a� i &; 2 . The LaDane Williamson defendants repeat, reallegb and incorporate by refetenee their responses to paragraphs 1 though 21ofplaintiffs' cottiplahit, 29. The allegations set forth in patagraph 29 ofplaintitia' complaint are denied. THIRD ANSWER AND DEFENSE As it third and further defense, inasmuch as plaintiffs have failed to exhaust their . administrative remedies, no determination has been made as to the effe&of the ordinance on plaintiffs, and the conduct of which they complain is merely prospective in, nature, the issues raised in plaintiffs' complaint are not ripe for review. FOURTH ANSWER AND DEFENSE The use the LaDane Williamson defendants intend to make of their property would not unreasonably interfere with plaintiffs'. quiet enjoyment of their own property. FIFTH ANSWER AND DEFENSE The manner in which the LaDane Williamson defendants itftend to use their property is lawful. CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Answer of LaDane Williamson Defendants was this day served upon the below. -named counsel and parties by�4 mailing, postage prepaid, first class mail, () personal delivery, of a copy of each of such instruments to such counsel at the address shown below: J. Dwight Hudson Hudson & Gentry, LLC 1203.48" Avenue N., Suite 111 . Myrtle Beach, SC 29577 - Attorneys for plaintiffs Brian E. Edes Crossley, McIntosh, Prior & Collier P. O. Drawer 740 Wimington, NC 28402 Attorneys for Town of Calabash, NC This —L4i�-day of September, 2000. Andrew K McVey MURCHISON, TAYLOR 8d.GIBSON, L.L.P. 16 North Fifth Avenue Wilmington, NC 28401' Attorneys for LaDane Williamson Defendants ' £WSJ .. "� � O • , .. STATE OF NORTH CAROLINA E I L. E R THE GENERAL COURT OF JUSTICE COUNTY OF BRUNSWICK PERIOR COURT DIVISION r 00 SEP 18 Ph 12 oo CvS 1' 033 BRUNSWICK COUNTY. C.S.C. is MARS1i HARBOUR GOLF & YAK INTERVAL ASSN., INC. and GOLF COAST ) h . REALTY INC.,. Plaintiffs ) Vs. ) ANSWER i LADANE WILLIAMSON COMPANY, LADANE ) WILLIAMSON OF NORTH CAROLINA, INC., ) LADANI; WILLIAMSON COMPANY L.L.C., and ) THE TOWN, OF CALABASH, NORTH CAROLINA ) Defendants. ) NOW COMES the defendant; TOWN OF CALABASH, by and through counsel of . record responding to the Complaint of the plaintiffs' paying and alleging as follows: FIRST DEFENSE The Complaint of the plaintiffs' fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Sy'COND JAPtNSE 1: Responding to the allegations contained in paragraph 1 of the plaintiffs' Complaint, it is.admitted upon information and belief that Marsh Harbour Golf & Association, luc .is an association of owners of properly located in the ToWn of Calabash in this eotrmiunity of Marsh 1 Harbour Golf &Yacht Club It is further admitted upon information and belief that Golf Coast T.Realty, Inc., is a corporation organised and existing under and.by. Virtue of the la*9 of the State of North Carolina. Any and all other allegations contained in Paragraph 1 of the Complaint not hereinabove specifically admitted are denied. . 2. Responding to the allegations contained in Paragraph 2 of the plaintiffs' Complaint, it . is admitted that defendant Town of Calabash is a duly incorporated North Carolina Municipal Corporation, Any and all other allegations contained in Paragraph 2 of the Complaint not hereinabove specifically admitted are denied. 3. The allegations contained in Paragraph 3 of the plaintiffs' Complaint are denied. 4. As to the allegations contained in Paragraph 4 of the plaintiffs' Complaint, the defendant, Town of Calabash, is without sufficient: information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 5. The allegations contained in Paragraph 5 of the plaintiffs' Complaint are denied. k. The allegations contained in Paragraph G are either admitted or denied as hereinabove ' t stated. `' y, The allegations contained in Paragraph.7 of the plaintiffs' First Cause of Action, putpott to be a statement of law and tegnires no respdnse,' To the extent the allegations x ,.• tontained in Paragraph 7 could be construed to assert lidbility on behalf d this ans*dring Y' defendant, those allegations are denied. g As to the allegations contained in Paragraph 8 of the plaintiffs' Vi tst Cause bf Actlbn, w the defendant, Town of Calabash, is Without sufficient information so as to form a belief in the �z truth or falsity.thereof and therefore' denies the same. 9. 'l'he allegations contained in Paragraph of the'plaintiffs' First Cause of Action are denied. 2` fir !' �i .1 , 10. Responding to the allegations contained in Paragraph 10 of the plaintiffs' First Cause of Action, it is admitted that on July 26, 1999, the Board of Commissioners for the Town of Calabash held a special meeting wherein Marsh Harbour and Ocean Harbour were rezoned from RI and PUD to PUD. The remaining allegations contained in said paragraph do not pertain to this answering defendant and are, therefore, denied: 11. The allegations contained in Paragraph 11 of the plaintiffs' First Cause of Action are denied. 1 2. The allegations contained in Paragraph 12 of the plaintiffs' First Cause of Action are denied. 13. The allegations contained in Paragraph 13 of the plaintiffs' First Cause ofActidtl including subparts A through I ate denied. 14, The allegations contained in Paragraph l4 of the plaintiffs' First Cause of Aetiott are s } denied. 15: The allegations contained in Paragraph 15 of the plaintiffs' First Cause of Action are denied. 20, Th"llegations contained in Paragraph 20 are either admitted or denied as hereinabove stated. 21. The allegations contained in Paragraph 21 of the.plaintiffs' Third Cause of Action are not applicable to defendant Town of Calabash and therefore are denied. 22, The allegations. contained in Paragraph 22 of the plaintiffs' Third Cause of Action are not applicable to defendant Town of Calabash and therefore are denied. 23. The allegations contained in Paragraph 23 of the plaintiffs' Third Cause of Action are not applicable to defendant Town of Calabash and therefore are denied. 24. The allegations contained in Paragraph 24 of the plaintiffs' Third Cause of Action are not applicable to defendant Town of Calabash and therefore are denied. 25. The allegations contained in Paragraph 25 of the plaintiffs' Third Cause of Action are not applicable to fiiefendant Town of Calabash and therefore are denied. 26. The allegations contained in Paragraph 26.of the plaintiffs' Third Cause of Action are not applicable to defendant Town of Calabash and therefore are denied. ' 27. The allegation contained in Paragraph 27 of the plaintiffs' Third Cause of Action are not applicable to defendant Town of Calabash and therefore are denied. 29. The allegations contained in Paragraph 28 ate either admitted or denied as hereinabove stated. 29. The allegations contained in Paragraph 29 of plaintiff's' 1:ourth Cause of Action ate f '£ Vt, i not applicable to defendant Town of Calabash and therefore are denied. i", a THIRD DEFENSE (Sovereign Immunity) p At all times applicable to plaintiffs' Complaint, the defendant, Town of Calabash, was a municipal body acting in the exercise of a_Governmental Function and hereby pleads any and all applicable Doctrines of Goveminental Immunity in bar of all or any part of the. plaintiffs' pendant State claims. FOURT14 DEFENSE' (Legislative Function) At all times applicable herein, defendant, Town of Calabash, was performing a legislative function pursuant to N.C.G.S. §. 168A-381. Defendant Town of Calabash asserts the petformance of the legislative_functi.oft as an affirmative defense in complete bar of plaintiffs' action. FIFT14 blJftXsE � (Staatling) r , h plaintiffs, have faded to: forecast any evidence, that they suffered distinct damages froth '. the rest of the community and therefore. lack the statiding necessary to bihig this claim. SIXTH MENSi♦; (Statute of timitntim6) i Defendant, Town of Calabash, assetts and pleads in bar to tws aetl& any and all applicable statutes of linntauons. WHEREFOO,"having fully answered the Complaint of the plaintiffs', the defendant, TOWN OF. CALABASH respectfully prays the Court for tho following relief ° 1. That the plaintiffs' action against this answering' defendant be dismissed; 2. Flaintiffs'.have and recover nothing of this answering defendant; S STATE OF NORTH CAROLINA COUNTY OF BRUNSWICK t VERIFICATION JON B. SANBORN, Administrator for the Town of Calabash, being first duly sworn, deposes and states that he is the defendant in the foregoing cause of action and knows the contents thereof, and that the same is true of his own knowledge except as to.those matters and things therein stated upon information and belief, and as to those matters and things he believes them to be true. This the L—q— day of _� 2600. ATTORNEYS AT LAW HIGHWOODS TOWER ONE SUITE 500 3200 BEECHLEAF COURT RALEIGH. NORTH CAROLINA 27604.1064 TELEPHONE 919.981.4000 TELEFAX 919.981.4300 MAILING ADDRESS POST OFFICE DRAWER 19764 RALEIGH. NORTH CAROLINA 27619.9764 LANDFALL PARK NORTH 1985 EASTWOOD ROAD. SUITE 2W WILMINGTON. NORTH CAROLINA 28403 TELEPHONE 910.256.5135 TELEFAX 910.256.6451 WWW. M AU P I N TAY LO R. C O M AMOS C. DAWSON, III 1,4 � NO, IrC04 A, 1 � 20p2 December 11, 2002 Via Hand Delivery Mr. Doug Huggett Major Permits/Consistency Manager NC DENR Division of Coastal Management 1638 Mail Service Center Raleigh, NC 27699-1638 Re: Marsh Harbour Resorts, LLC CAMA Major Permit No. 11-97 Brunswick County Our File No. 15319.003 Dear Mr. Huggett: 480 BETA BUILDING HEADQUARTERS PARK 2222 CHAPEL HILL -NELSON HWY. DURHAM. NORTH CAROLINA 27713 TELEPHONE 919,361,4900 TELEFAX 919.361.2262 MAILING ADDRESS POST OFFICE BOX 13646 RESEARCH TRIANGLE PARK NORTH CAROLINA 27709-3646 WRITER'S DIRECT DIAL NUMBER (919) 981-4010 adawson@maupintayfor.com Our firm represents Marsh Harbour Resorts, LLC ("Marsh Harbour Resorts") and Ms. LaDane Williamson with respect to the above referenced CAMA Major Development Permit No. 11-97. The subject permit was transferred to Marsh Harbour Resorts from Mr. Odell Williamson in October of 1999, and the permit was reissued on July 31, 2000 to reflect a major modification, including substantial changes to the previous plan for the development. These changes required many years of planning and coordination with the Town of Calabash and other interested parties. The project includes portions in both North and South Carolina. The plan for the North Carolina portion of the property includes a proposed 900 unit resort hotel and convention center; an existing high ground marina (257 slips permitted — 120 slips existing); 80 townhome units; 66 mid -rise condominium units; an existing golf course (Marsh Harbour Golf Links); a proposed sports center; a proposed office center; and associated infra -structure for the development. The modified permit issued on July 31, 2000 had an Rb\ RdFH01FTiP5, Mr. Doug Huggett December 11, 2002 Page 2 expiration date of December 31, 2000. Accordingly, an extension request was submitted in November of 2000 requesting an extension of the development period for the permit. On November 20, 2000, the permit was renewed with an expiration date of December 31, 2002. Marsh Harbour Resorts and LaDane Williamson have in good faith and in reliance upon CAMA Permit 11-97 expended over $4.5 million on the permitted development. Extensive work has been completed on the planning, permitting and design of the project. This includes the expenditure of over $350,000 on stormwater, water and sewer design and permitting alone. Development of the permit applications required extensive engineering work, including the design of building roof prints, parking configurations, streets and all other impervious surfaces. A stormwater permit for the development has been issued by the Division of Water Quality. Preliminary designs of the sewer collection and water distribution systems have also been prepared. Hence, approximately 70% of the construction design of the project is completed. However, the construction financing and significant physical on -site construction have been rendered impossible due to a series of lawsuits which have precluded the financing and construction of the permitted development. Enclosed with this letter, you will find a copy of a December 4, 2002 letter to me from Kenneth Shanklin. Mr. Shanklin is an attorney in Wilmington, NC who is familiar with the litigation affecting Marsh Harbour Resorts and who is currently representing Marsh Harbour Resorts in the pending lawsuits. As you can see from an examination of the enclosed summary of the legal proceedings, and the case pleadings themselves, these lawsuits have made it impossible for Marsh Harbour Resorts to proceed with on -site development work for the permitted project. Nevertheless, through its expenditure of over $4.5 million on the permitted development in good faith and in reasonable reliance on CAMA Permit 11-97, Marsh Harbour Resorts and Ms. Williamson have obtained vested rights to construct the permitted development under CAMA Permit I 1-97. Marsh Harbour Resorts would suffer significant detriment if required to apply for a new CAMA Permit under permitting guidelines and regulations which we understand have been subject to substantial amendments subsequent to the issuance of Permit No. 11-97. It is clear under both the North Carolina and United States Constitutions and controlling caselaw that Marsh Harbour Resorts and Ms. Williamson have obtained vested rights under the existing CAMA Permit No. 11-97 which allow them to proceed with the permitted development. Under the Doctrine of Vested Rights as applied in North Carolina, the government cannot prevent completion of a project by requiring compliance with newly adopted laws or regulations when the developer has made substantial expenditures in good faith reliance on valid governmental permits, with resulting detriment if he or she is required to comply with newly adopted requirements. Owens, David W.., Legislative Zoning Decisions, P. 98 (Institute of Government 1993). See e.g., Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904 RALEIGH\359469_ 1 Mr. Doug Huggett December 11, 2002 Page 3 (1969); Godfrey v. Zoning Board of Adjustment, 317 N.C. 51, 344 S.E.2d 272 (1986); Transland Properties, Inc. v. Board of Adjustment of the Town of Nags Head, 18 N.C. App. 712, 198 S.E.2d 1(1973). In North Carolina, the vested rights doctrine is "rooted in the `due process of law' and the `law of the land' clauses of the federal and state constitutions .... it has been said that the solution to the `vest rights' question `has required the reconciliation of the Doctrine of Separation of Powers with the constitutional powers of substantive due process, a balancing of the interest of the public as a whole and those of the individual property owner, and, in many cases, the elements of good faith and bad faith, and resort to equity and equitable principles."' Godfrey v. Zoning Board of Adjustment, supra, 344 S.E.2d at 274. Thus, while the vested rights doctrine has been applied primarily in zoning cases, it is clear the doctrine has broad constitutional and equitable underpinings in North Carolina. The State and DENR have recognized in other situations that the vested rights doctrine applies in the context of the issuance of environmental permits and certifications. In a December 19, 1997 letter to Mr. Steve W. Tedder, Chief of the Water Quality Section of the Division of Water Quality, members of the Attorney General's Environmental Division opined that the vested rights doctrine was applicable to the issuance of 401 certification in the context of a federal 404 permit into which the State's 401 certification is incorporated. Citing Browning Ferris Industries v. Guilford County Board of Adjustment, 126 N.C. App. 168, 484 S.E.2d 411 (1997), the Attorney General's Office stated that "a party's common law right to develop and/or construct vest when: (1) the party has made, prior to the amendment of a zoning ordinance, expenditures or incurred contractual obligations `substantial in amount, incidental to or as part of the acquisition of the building site or the construction or equipment of the proposed building' (citation omitted); (2) the obligations and/or expenditures are incurred in good faith, .....; (3) the obligations and/or expenditures were made in reasonable reliance on and after the issuance of a valid building permit, if such permit is required, authorizing the use requested by the party ....(citations omitted); and (4) the amended ordinance is a detriment to the party (citations omitted)." Marsh Harbour Resorts and Ms. Williamson have met each of the criteria enunciated by the courts to obtain vested rights under CAMA Permit 11-97. Their expenditure of over $4.5 million on the permitted project is clearly substantial. See Caldwell v. Smith, 106 N.C. App. 1871 415 S.E.2d 770 (1992) and Randolph County v. Coen, 99 N.C. App. 746, 394 S.E.2d 256 (1990). Furthermore, Marsh Harbour Resorts and Ms. Williamson have relied in good faith on CAMA Permit 11-97 as issued. However, due to circumstances beyond their control, Marsh Harbour Resorts and Ms. Williamson have been precluded from beginning significant physical on -site construction of the project. The detriment to them is manifest if the subject CAMA Permit is not re -issued. Having to obtain a new permit would in all likelihood require substantial modification RALEIGHl359469- 1 Mr. Doug Huggett December 11, 2002 Page 4 of the overall design for the development, including revision of existing stormwater permits and the preliminary designs for the water and sewer distribution and collection systems. Furthermore, under North Carolina law, the fact that Permit 97-11 is subject to expiration before the project can be constructed does not preclude the vesting of their rights under existing Permit 11-97. It is well established under North Carolina law that the fact that a permit expires is of no legal significance if the developer has met the other criteria necessary for the creation of a vested right. Mays -Ott Co. v. Town of Nags Head, 751 F. Supp. 82 (E.D.N.C. 1990). See also Pardee Construction Co. v. California Coastal Commission, 95 Cal. App. 3rd 471 (1979). It is thus clear that once Marsh Harbour Resorts, LLC and Ms. Williamson obtained vested rights to proceed with their approved project under CAMA Permit 11-97, these rights cannot be taken from them due to their inability to construct the project because of litigation and circumstances beyond their control. Neither can their constitutionally protected vested rights be denied on the basis of new permitting guidelines established subsequent to the issuance of their permit. See also, Faymore Development Co., Inc. v. Board of Standards and Appeals of the City of New York, 383 N.E.2d 100 (N.Y. 1978); City of Atlanta v. Westinghouse Electric Corporation, 246 S.E.2d 678 (Ga. 1978). Because Marsh Harbour Resorts and Ms. Williamson have acquired vested rights in CAMA Permit 11-97, and because financing and construction of the project have been delayed due to circumstances beyond their control, we respectfully submit that Marsh Harbour Resorts, LLC is entitled to an extension of the development period for CAMA Permit 11-97. We respectfully request that the Division of Coastal Management extend the permit expiration date for an additional two year period. We are submitting along with this request a check made payable to the Department in the sum of $50.00 to cover the fee for processing the extension request. We will be happy to meet with you or provide any additional information which you may require. If you have any questions, please contact me at 919-981-4010. Thank you very much for your assistance in this matter. With best wishes, I am Enclosures cc w/encls.: Ms. Donna Moffitt, Director, DCM cc w/o encls.: Ms. LaDane Williamson RALEIGFN59469_ 1 KENNETH A. SHANKLIN ATTORNEY AT LAW 214 MARKET STREET POST OFFICE Box 1347 WILMINGTON, NORTH CAROLINA 28402.1347 TELEPHONE (910) 762-9400 • TELEFAx (910) 251-1773 E-MAIL: SHANKLAW@WILMINGTON.NET KENNETH A. SHANKLIN MATTHEw A. NICHOLs !ALSO ADMIRED IN NEW YoRW December 4, 2002 VIA FEDERAL EXPRESS AIRBILL NO. 8358 2243 4790 AND VIA E-MAIL: adawson@maunintaylor.com Amos C. Dawson, III, Esq. MAUPIN, TAYLOR & ELLIS, PA Post Office Drawer 19764 Raleigh, NC 27604-1064 . Z 20Qz COASTAL MIJ BOARD CERTIFIED SPECIALIST IN REAL PROPERTY LAW - RESIDENTIAL, BUSINESS, COMMERCIAL AND INDUSTRIALTRANSACTIONS Re: Marsh Harbour Resorts, LLC Ms. LaDane Williamson Our File Nos. 02039.001, 02072.001 and 02105.001 IRTM,T: u . Pursuant to your request, I submit the following report regarding the litigation files we are handling on behalf of Marsh Harbour Resorts, LLC and LaDane Williamson. A synopsis and summary of each case follows with copies of pertinent pleadings attached and so marked. PENDING CASES INVOLVING THE MARSH HARBOUR RESORTS DEVELOPMENT A. Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty Inc., vs. The LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., LaDane Williamson Company, LLC and The Town of Calabash, North Carolina Brunswick County Superior Court File No. 99 CVS 1392 On September 14, 1999, Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty, Inc. filed a Complaint against The LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., LaDane Williamson Company, LLC and The Town of Calabash, North Carolina, asserting procedural and substantive defects in the Planned Unit Amos C. Dawson, III, Esq. MAUPIN, TAYLOR & ELLIS, PA December 4, 2002 Page -2- Development Zoning Ordinance adopted by the Town of Calabash in July of 1999. Ms. Williamson's companies were brought in as defendants because they were alleged to be affected property owners benefiting by the adoption of the subject zoning ordinance. Defendants filed an Answer asserting numerous defenses. Subsequently, Defendants filed Motions to Dismiss. After further proceedings, Plaintiff filed a Notice of Voluntary Dismissal Without Prejudice on March 6, 2000. This case is no longer pending. Attached are copies of the following pleadings from Case No. 99 CVS 1372: 1. Complaint (Exhibit "A") 2. Answer by LaDane Williamson Company (Exhibit "B") 3. Answer by The Town of Calabash (Exhibit "C') 4. Notice of Voluntary Dismissal Without Prejudice (Exhibit "D") B. Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty, Inc. vs. The LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., LaDane Williamson Company, LLC and The Town of Calabash, North Carolina Brunswick County Superior Court File No. 00 CVS 1033 On July 3, 2000, Marsh Harbour Golf and Yacht Club Interval Association, Inc. and Golf Coast Realty, Inc. filed a Complaint against The LaDane Williamson Company, LaDane Williamson of North Carolina, Inc., LaDane Williamson Company, LLC ("Defendants Williamson') and The Town of Calabash, North Carolina, asserting similar claims set forth in 99 CVS 1392 but with three additional claims for taking of private property, nuisance and trespass. Ms. Williamson's companies were brought in as defendants because they were alleged to be affected property owners benefiting by the adoption of the subject zoning ordinance. Defendants filed an Answer asserting numerous defenses. After the issues were joined, the parties conducted extensive discovery regarding the merits of the Complaint. On January 16, 2002, Defendants Williamson filed a Motion for Summary Judgment. The Motion was granted dismissing Defendants Williamson from the lawsuit on the basis that these entities did not own the Marsh Harbour Resort property that was affected by the rezoning. With leave of court, Plaintiff filed an Amended Complaint on May 6, 2002. The Amended Complaint asserted the same claims challenging the rezoning and the right of the owner of the Marsh Harbour Resort to develop its property. The Amended Complaint added new parties, Marsh Harbour Resort, LLC and Ocean Harbour Golf Links, Inc. Following service of the Amended Complaint and Summons, The Town of Calabash filed responsive pleadings. On July 30, 2002, the Defendants Marsh Harbour Resorts, L.L.C. and Ocean Harbour Golf Links, Inc. (hereinafter collectively referred to as "Corporate Defendants"), moved to dismiss the Amended Complaint pursuant to Rules 12(b)(1), 12(b)(2), 12(b)(6), 12(b)(7), 17(a) and 19 of the North Carolina Rules of Civil Procedure. The Motion to Dismiss attacked the Amended. Complaint on jurisdictional basis (standing), statute of limitiations, failure to exhaust Amos C. Dawson, III, Esq. . MAUPIN, TAYLOR & ELLIS, PA December 4, 2002 Page -3- administrative remedies, failure to state a justiciable claim and other grounds. The Motion was scheduled for hearing, and before the Motion to Dismiss was heard, the parties entered into a Stipulation of Dismissal dismissing the action with prejudice. The Stipulation was filed on September 23, 2002. This case is no longer pending. Attached are copies of the following pleadings from Case No. 00 CVS 1033: 5. Complaint (Exhibit "E") 6. Answer by LaDane Williamson Company (Exhibit "F") 7. Answer by The Town of Calabash (Exhibit "G") 8. Amended Complaint (Exhibit "H") 9. Answer by The Town of Calabash to the Amended Complaint (Exhibit "I") 10. Motion to Dismiss filed by the Corporate Defendants (Exhibit "J') 11. Stipulation of Dismissal (Exhibit "IC") C. Marsh Harbour Resorts, LLC vs. Marsh Harbour Marina, Inc. Brunswick County District Court File No. 01 CVD 156 On December 28, 2000, Marsh Harbour Resorts, LLC filed a Complaint in Summary Ejectment against Marsh Harbour Marina, Inc, regarding the lease of the Marina After hearing before a Magistrate, Plaintiff filed Notice of Appeal to the District Court on January 22, 2001. Thereafter, numerous motions and hearings have transpired in this lease ejectment action. In April of 2001, Plaintiff moved for Summary Judgment. On April 26, 2001, Defendant filed an Answer, Counterclaim and Third -Party Complaint. Numerous affidavits, motions and notices of hearings were filed subsequent to the April 2001 pleadings by the parties. On May 1, 2001, Plaintiff moved to amend its Complaint. Subsequently, Third -Party Defendants were served. The Third Party Defendants are: Inlet Harbor Marina, Inc.; DeCarol Williamson; Odell Williamson; and Virginia Williamson. On June 1, 2001, Judge Nancy C. Phillips entered an Order allowing the Motion to Amend the Complaint, extending discovery deadlines and denying and striking Defendant's Counterclaim and Third -Party Complaint. On June 26, 2001, Defendant filed a Motion for Reconsideration of the June 1, 2001 Order. Substantial discovery ensued with depositions of parties and potential witnesses. Motions for protective orders were filed. Thereafter, various hearings were conducted, and Plaintiffs Motion for Summary Judgment was heard by Judge Phillips, but she never ruled on the Motion. Plaintiff's counsel withdrew early this year and then we took over this file. Following the recommendations of Judge William Gore of the 13a' Judicial District, Chief Justice Lake assigned this case and the following case to the North Carolina Business Court, where it is pending at this time. The Business Court has prescribed a time schedule for discovery and motion practice before the Court. We expect a trial next summer. Amos C. Dawson, III, Esq. MAUPIN, TAYLOR & ELLIS, PA December 4, 2002 Page -4- Attached are copies of the following pleadings for Case No. 01 CVD 156: 12. Complaint in Summary Ejectment (Exhibit "L") 13. Answer filed by Marsh Harbour Marina, Inc., (Exhibit "M") 14. Amended Complaint filed by Marsh Harbour Resorts, LLC (Exhibit "N") 15. Judge Phillips' Order dated June 7, 2001 (Exhibit "O") D. Marsh Harbour Marina, Inc. vs. Marsh Harbour Marina Resorts, LLC and Inlet Harbour Marina, Inc. Brunswick County Superior Court File No. 01 CVS 225 On February 2, 2001, Marsh Harbour Marina, Inc. filed a Complaint against Defendants Marsh Harbour Resorts, LLC and Inlet Harbor Marina, Inc. regarding the lease of the Marina and asserting claims for breach of the lease, breach of promises to make capital improvements and failure of Lessor to make repairs, etc. This lawsuit involves the same lease that is the subject of Case No. 01 CVD 156. Since the filing of the Complaint and Answers, the parties have engaged in extensive discovery —depositions, interrogatories and requests for production of documents. On or about April 16, 2001, Defendant Marsh Harbour Resorts, LLC filed and served its Answer and Motion to Dismiss. Early this year, counsel for Defendant Marsh Harbour Resort, LLC withdrew. My firm began representing Marsh Harbour Resorts, LLC in March of 2002. Upon our entry into this case, we noted a typographical error regarding responses to paragraphs 13, 14 and 15 of the Complaint. Defendant's Answer inadvertently recites admissions to the allegations contained in the corresponding paragraphs to the Complaint, when it should have recited denials. Paragraphs 13, 14, and 15 of the Complaint contain allegations that the parties have all along contested. This case was scheduled for trial in April of this year and, due to a number of facts, the parties and Judge William Gore of the 13d' Judicial District believed that this case and Case No. 01 CVD 156 should be deemed exceptional and transferred to the Business Court. Chief Justice Lake assigned this case and Case No. 01 CVD 156 to the North Carolina Business Court, where it is pending at this time. The Business Court has prescribed a time schedule for discovery and motion practice before the Court. We expect a trial next summer. Attached are copies of the following pleadings from Case No. 01 CVS 225: 16. Complaint (Exhibit'7 17. Answer filed by Marsh Harbour Resorts, LLC (Exhibit "Q") 18. Answer filed by Inlet Harbor Marina, Inc. (Exhibit "R') 19. Motion for Order Amending Answer Due to Typographical Error (Exhibit "S") 20. Order Designating Case as Exceptional (Exhibit "T") Amos C. Dawson, III, Esq. MAUPIN, TAYLOR & ELLIS, PA December 4, 2002 Page -5- DISCUSSION REGARDING THE IMPACT OF THESE CASES UPON THE DEVELOPMENT OF MARSH HARBOUR RESORTS Although I have only been involved in these cases since March of this year, I am aware of the issues and consequences of these cases upon the development of Marsh Harbour Resorts., As an attorney extensively involved in real property and land use issues, I know that lawsuits challenging zoning decisions and leases pertaining to the development of real property will generally have an extreme adverse impact upon the developer's ability to proceed under the sundry permits required from governmental agencies. Based upon my involvement in these cases and my knowledge of land use issues, funding requirements and construction requirements, it is my opinion that Ms. LaDane Williamson and Marsh Harbour Resorts, LLC cannot proceed with any development plans or improvements of the Marsh Harbour Resorts Project until these lawsuits are resolved. At this writing, I have successfully resolved the zoning and land use litigation. Next, I will turn my attention to resolving the marina lease litigation. I expect the Business Court to resolve Case Nos. 01 CVS 225 and 01 CVD 156 by next summer. I trust this synopsis addresses the lawsuits that have adversely impacted the development of Marsh Harbour Resorts. I welcome your comments and look forward to discussing the enclosed with you. With kind regards, I remain Ve tul yours, AkliKenShn KAS/asm Enclosures cc: Ms. LaDane Williamson Marsh Harbour Resorts, LLC } li ATTORNEYS AT LAW HIGHWOODS TOWER. ONE SUITE 500 3200 BEECHLEAF COURT RALEIGH, NORTH CAROLINA 27604-1064 TELEPHONE 919,981.4000 TELEFAX 919981.4300 MAILING ADDRESS POST OFFICE DRAWER 19764 RALEIGH, NORTH CAROLINA 27619-9764 LANDFALL PARK NORTH 1985 EASTWOOD ROAD, SUITE 20D WILMINGTON, NORTH CAROLINA 28403 TELEPHONE 910.256,5135 TELEFAX 910.256,6451 W W W MAUPINTAYLOR,COM Amos C. DAWSON, III JAN 2 ? 2003 119, i�n�C4,1 ►n c IrC.....:nIgn�q�P_nlr January 17, 2003 VIA FACSIMILE (715-3060) AND U.S. MAIL Daniel C. Oakley, Esq. General Counsel Department of Environment and Natural Resources Mail Service Center 1601 Raleigh, NC 27699-1601 Re: Marsh Harbour Resorts, LLC CAMA Major Permit No. 11-97 Brunswick County Our File No. 15319.003 Dear Dan: 480 BETA BUILDING HEADQUARTERS PARR 2222 CHAPEL HILL -NELSON HWY. DURHAM, NORTH CAROLINA 27713 TELEPHONE 919.361,4900 TELEFAX 919,361,2262 MAILING ADDRESS POST OFFICE BOX 13646 RESEARCH TRIANGLE PARK NORTH CAROLINA 27709-3646 WRITER'S DIRECT DIAL NUMBER (919) 981-0010 adawson@maupintaylor.com Following up on our conversation from this morning, please find enclosed a copy of the Stormwater Permit for Marsh Harbour Resorts, SW8 920522 issued on September 13, 2001 and effective until September 13, 2011. As we discussed, this Stormwater Permit is a part of the "substantial development" begun and continuing by Marsh Harbour Resorts, LLC on the Marsh Harbour development project, which entitles Marsh Harbour Resorts to a CAMA development period extension under 15A NCAC 7J.0404. As stated in my December 11, 2002 letter to Doug Huggett at the Division of Coastal Management, the preparation of the CAMA and Stormwater RALEIGHI363296_ 1 '! Daniel C. Oakley, Esq. January 17, 2003 Page 2 Permit applications required extensive engineering work, including the design of building roofprints, parking configurations, streets, and all other impervious surfaces. Over $350,000.00 was spent on stormwater, water and sewer design and permitting. A substantial part of this work was performed and paid for in 1999, 2000, and 2001. Overall, Marsh Harbour Resorts and La Dane Williamson have expended over $4.5 million in good faith reliance on CAMA permit 11-97. We believe this clearly establishes their rights to proceed with the planned development under CAMA permit No. 11-97, and accordingly to an extension of the permit by the Division of Coastal Management. You suggested that a meeting with you and members of the Attorney General's staff might be helpful. I will be happy to meet with you to discuss this matter further at your convenience. Thank you very much for your attention to this matter. With best wishes, I am, Enclosure cc w/encls: Mr. Doug Huggett Ms. Donna Moffitt, Director, DCM Ruffin Poole, Esq. Ms. LaDane Williamson RALEIGH\363296- I Very C. Dawson, III 01/15/2003 00:57 9105796097 LADANE.WILLIAMSUN.UU NAtit by Michael F. Easley. Governor of W ATER �] 0 William G. Ross Jr Secretary G -North Carolina Department of Environment and Natural Resources Gregory J. Thorpe, Ph.D.. Acting Director . O <, AN 2 l ' 20�3 Division of Water Quality n r+ �n0.r, i ►AMMCT,pr�!r Wilmington Regional Office September 13, 2001 Ms. LaDane Williamson, Managing Member Marsh Harbour Resorts, LLC .9686 Scenic Drive Calabash, NC 28467 Subject: Permit No. SW8 920522 Modification Resort LaDaue - Marsh Harbour High Density Stormwater Project . Brunswick County Dear Ms. Williamson: The Wilmington; Regional Office received a complete modification to the Stormwater Management Permit Application for Resort LaDane -Marsh Harbour on September 5, 200 1. Staff review of the plans and specifications has determined that the project, as proposed, will comply with the Stonnwater Regulations set forth in Title 15A NCAC 2H.1000. We are forwarding Permit N6. SW8 920522 Modification dated September 13, 2001, for the construction of Resort LaDane - Marsh Harbour. This permit shall be effective from the date of issuance until September 13, 2011, and shall be subject to the conditions and limitations as specified therein. Please pay special attention to the Operation and Maintenance . requirements in this permit. Failure to establish an adequate system for operation and maintenance ofthe stormwater management system will result in fixture compliance problems - If any parts, requirements, or limitations contained in this permit are unacceptable, you have the right to request an. adjudicatory hearing upon written request within thirty (3 0) days following receipt ofthis permit. This request must' be in the form of a written petition, conforming to Chapter 150B of the North Carolina General Statutes, and filed with the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, NC 27611-7447. Unless such demands . are made this permit shall be final and binding. If you have any questions, or need additional information concerning this matter, please contact Linda Lewis, or . me at (910) 395-3900. sincerely, Rick Shiver Water Quality Regional Supervisor RSS/arl: S:\WQS\STORMWAnPERMIT\920522-SEP cc: Harlan Britt, P.B. Town of Calabash Building Inspections Division of Coastal Management •. Linda Lewis Wilmington Regional Office Central Files MrNR N.C. Division or water Quality127 Cardinal Drive Extension wdmington, N.C: 28405 (910) 395-3900 Fax is 10) 350-2004 .,customer Sewics " 01/15/2003 00-57 9105798097 LADANE WILLIAMSON CO PAGE 03 State Stormwater Management Systems Permit No. SW8 920,522M.odif Jcation STATE. OF NORTH CAROLINA DEPARTMENT OF, ENVIRONMENT AND NATURAL RESOURCES DIVISION OF WATER QUALITY STATE STORMWA.TER MANAGEMENT PERMIT HIGH. DENSITY DEVELOPMENT In accordance with the provisions of Article 21 of Chapter 143, General Statutes ofNorth Carolina as amended, and other applicable haws, Rules, and Regulations PERNIISSION IS HEREBY GRANTED TO Marsh Harbour Resorts, LLC Resort LaDane - Marsh Harbour Brunswick County . FOR THE construction, operation and maintenance of 15 infiltration basins in compliance with the provisions of 15A NCAC 2H .1000 (hereaftei referred to as the "storniwarer rules' and the approved stormwater management plans and specifications and other supporting data as attached and on file with and approved by.the Division of Water Quality and considered apart of this permit. This permit shall be effective from.the date of issuance until September 13, 2011 and shall be subject to the following specified conditions and limitations: I. DESIGN STANDARDS . 1: This permit is effective only with respect to the nature and .volume of stormwater described in the application and other supporting data-. 2. This stormwater system has been approved for the management of stormwater runoff as described on page 3 of this permit, the Project Data Sheet. The stormwater controls have been designed to handle the runoff from a total of 31.36 acres of impervious area. Each basin must be operated with a 50' vegetated filter. 3. Approved plans and specifications for this project are incorporated by reference and are enforceable parts of the permit. 4. - The tract will be limited to the amount of built -upon area indicated. on page, 3 of this permit, and per approved plans. . 5. The future development shown on the plans is not permitted and must submit for approval prior ro development, 6. The runoff from all built -upon area within the permitted drainage area of each basin shown on the approved e permitted stormwater control system. This is proposed to be plans must be directed into the appropriat accomplished through swales, pipes and pumps: 2 01/15/2003 .00:57 :' 9105798097 LADANE.WILLIAMSON CO PAGE 04 State Stormwater-Managemenf Systems PennitNo. SWS 920522 Modification DIVISION OF WATER QUALITY :. . PROJECT DESIGN DATA'SHEET Project Name: Resort LaDane - Marsh Harbour. Permit Numben. SW8 920522 Modification Location: Brunswick County Applicant: Ms. LaDane Williamson, Managing Member Mailing Address: Marsh Harbour Resorts, LLC 9686 Scenic Drive Calabash , NC 28467 Application Date: .', September 13, 2001 Name of Receiving Stream/Index #: Lumber / Calabash Creek / 15-25-5 Classification of Water Body: "SA" Basin Number: 1 ? 3 4 5 Basin Depth, feet: 2.5, 4 1.5 1.5 2 Bottom Elevation, FMSL: 40 21 10 46.5 46 Drainage Area, number/acres: A/2.96 B/2.84 F/4.75 K/2.07 L/4.9.4 Total Impervious Surfaces, f : 79,700 74,050 . 108,896 62,600 120;250 Offsite Area entering Pond, ft2: None, per Engineer Required Storage Volume, ft': 9,772 9,104 13,544 7,606 14,873 Provided Storage Volume, fO:. 10,541 112106 16,056 7,955 15,476, Temporary Storage Elevation, FMSL: 42.5 25 11.5 48 8 . Seasonal High Water Table Elevation: 37.7 18 7.7 44.5 43 Type of Soil: Tan siltysand, underlain by cemented coquina and silty clay. Expected Infiltration Rate:' 1.8 inches per hour Time to Drawdown, hours:. 28 118 11 12 16 3. 01/15/.2003 00:57. 9105798097, LADANE WILLIAMSON CO PAGE 05 State Stormwater-Management Systems Permit No. SW8 920522 Mgdiflcation . DMSION OF WATER QUALITY PROJECT DESIGN DATA SHEET. . Project Name: Resort LaDane - Marsh Harbour Pen -nit Number SW8.920522 Modification Location: Brunswick County Applicant: Ms. LaDane Williamson, Managing Member Mailing Address: Marsh Harbour Resorts, LLC 9686 Scenic Drive Calabash, NC 28467 . Application Date:. September 13, 2001 , Name of Receiving Stream/index #: Lumber / Calabash Creek./ 15-25-5 Classification of Water Body: "SA" Basin Number: 6 7 8 2 d4 Basin Depth, feet: 1.5 2.5 2.5 2.5 1 Bottom Elevation, FMSL: 48.5 20.5 20.5 20.5 47 Drainage Area, number/acres: _ J/4.01 G/4:83 G/4.3 H/4.26 . D/2.13 Total Impervious Surfaces, ft2: 100,190 147,260 - 138,541 128,077 92,800 Ofl'site Area entering Pond, ftz: None, per Engineer Required Storage Volume, ft': 12,363. 17,882 16,756 15,568 11,020 Provided Storage Volume,ft': 17,009 : 24,957 19,866 20,102 15,450 Temporary Storage Elevation, FMSL:. 50 22.5 22:5 22.5 48 Seasonal High Water Table Elevation: 46.5 18.5 18.5 I8.5 43 Typed Soil: Tan silty sand, underlain by cemented coquina and silty clay: Expected Infiltration Rate: 1.8 inches per, hour Time to Drawdown, hours: I 1 62 1'6 .16 35 01/15/2003 e0:57 *9105198097 ..'' LADANE WILLIAMSON CO. PAGE 06 ' State Stormwater Management Systems . Permit No. SW8 920522 Modification DIVISION OF WATER QUALITY . PROJECT DESIGN DATA SHEET Project Name: Resort LaDane - Marsh Harbour Permit Number: SW8 920522 Modification Location:., . Brunswick County Applicant: Ms. LaDane Williamson, Managing Member Mailing Address: Marsh Harbour. Resorts, LLC 9686 Scenic Drive Calabash , NC 28467 Application Date:. September *, 2001 Name of Receiving Stream/Index #: Lumber / Calabash Creek / 15-25-5 Classification of Water Body: "SA" ' B"inNumber: 11 12 - 33_ 3C 2D Basin Depth, feet: 1 1.5 1.5 .2.25 3 Bottom Elevation, FMSL: 47 41 ' 25.5 . 41.5 40 Drainage Area, number/acres: C&E/5.24 Y/1.88 V4.95 ZZ/1.68 YY/1.38 Total Impervious Surfaces, ft'. 171,718 31,150 118,500 25,000 60,000 Off'site Area entering Pond, W::, None, per Engineer Required Storage Volume, ft': 20,745 . 4,016 14,679 17,433 7,125 Provided Storage Volume, ft': 25,054 9,954 18,671 36,320 7,650 Temporary Storage Elevation, FMSL: 48 42.5 27 43,75 43 Seasonal High Water Table Elevation: 43 39 22.5 b, 37,5 37 Type of Soil: Tan silty sand, underlain by cemented coquina and silty clay. Expected Infiltration hate: 1.8'inches per hour Time to Drawdown, hours: 56 12 11 25 28 i 01/15/2003 00:57 9105799097 LADANE WILLIAMSON.CO PAGE 07 State Stormwater'Management Systems Permit No. SW8 920522 Modification H. SCHEDULE OF CONIPLIANC)E I. The stormwater management system shall be constructed in it's entirety, vegetated and operational for its intended use prior to the construction of any built -upon surface. 2. During construction, erosion shall be kept to aminimum and any eroded areas of the system will be repaired immediately. 3. The permittee shall at all times provide the operation and maintenance necessary to assure the permitted stormwater system functions at optimum efficiency. The approved Operation and Maintenance Plan must be followed in its entirety and maintenance must occur at the scheduled intervals including, but not limited to: a. Semiannual scheduled inspections (every 6 months). b. Sediment removal. C. Mowing and revegetation of side slopes. d. Immediate repair of eroded areas. e. Maintenance of side slopes in accordance with approved plans and specifications. f. Debris removal and unclogging of swales, bypass structures, catch basins and piping. g. Access to the bypass structures and pump stations must be available at all times. h. The vegetated filters will be kept grassed with no erosion. The spreader mechanism will be kept free of sediment and trash, and must distribute the runoff evenly over the width of the filter. 4. Records of maintenance activities must be kept and made available upon request to authorized personnel ofDWQ. The records will indicate the date, activity, name of person performing the work and what actions were taken. 5. The facilities shall be constructed as shown on the approved plans. This permit shall become voidable unless the facilities are constructed in accordance with the conditions of this permit, the approved plans and specifications, and other supporting data. 6.. Upon completion of construction, prior to issuance of a Certificate of occupancy, and prior to operation of this permitted facility, a certification must be received from an appropriate designer for the system installed certifying that the permitted facility has been installed in accordance with this permit, the approved plans and specifications, and other supporting documentation. Any deviations from the approved plans and specifications must be noted on the Certification. , 7. If the stormwater system was used as an Erosion Control device, itmust be restoredto design conditionprior to operation as a stormwater treatment device, and prior to occupancy of the facility. 8. Amodification mustbe permitted prior to any construction. The following items will require amodification to the permit. The Director may determine that other revisions to the project should require a modification to the permit: a. Any revision to the approved plans, regardless of size. b_.. Project name change. C. Transfer of ownership. d. Redesign or addition to the approved amount of built -upon area e. Further subdivision, acquisition, or sale ofthe project area. The project area is defined as all pzoperty owned by the permittee, for which Sedimentation and Erosion Control Plan approval was sought. f. Filling in, altering, or piping of any vegetative conveyance shown on the approved plan. 9. A copy of the approved plans and specifications.shall be maintained on file by the Permittee for a minimum . of ten years from the date of the completion of construction. 6 . 01/15/2003 00:57 9105798097 LADANE WILLIAMSON CO ''PAGE 08 State Stormwater-Management Systems Permit No SW8 920522 Modification 10. The permittee shall submit final site layout and grading plans for all unpermitted future areas shown on the approved plans, prior to construction_ If the proposed BUA exceeds the pemitted amount, a modification to the permit must be submitted and approved prior to construction. .11. Prior to the sale of any portion of the property, an access/maintenance easement to the stormwater facilities shall be granted in favor of the permittee if access to the stormwater facilities will be restricted by the sale of any portion of the property. 12. The permittee is responsible for verifying that the proposed built -upon area within any permitted drainage area, and on an overall basis, does not exceed the allowable built -upon area. 13. The Director may notify the permittee when the permitted site does not meet one or more of the minimum requirements ofthe permit. Within the time frame specified in the notice, the permittee shall submit a written time schedule to the Director for modifying the site to meet minimum requirements. The permittee shall provide copies of revised plans and certification in writing to the Director that the changes have been made. 14. The permittee shall notify the Division of any name, ownership or mailing address changes within 30 days III. GENERAL CONDITIONS I . This permit is not transferable. In the event there is a desire for the facilities to change ownership, or there is a name change of the Permittee, the name/ownership change form request must be submitted to the Division of Water Quality, along with legal documentation of the sale and other supporting materials such as recorded deed restrictions, and/or a signed operation and maintenance plan, as may be appropriate. The approval of this request will be considered on its merits and may or may not be approved. 2. _. Failure to abide by the conditions and limitations contained in this permit may subject the Permittee to enforcement action by the Division of Water Quality, in accordance with North Carolina General Statute 143-215.6A to 143-215.6C. 3. The issuance of this permit does not preclude the Permittee from complying with any and all statutes, rules, regulations, or ordinances which may be imposed by other government agencies (local, state, and federal) which have jurisdiction. 4. In the event that the facilities fail to perform satisfactorily, including the creation of nuisance conditions, the Permittee shall take immediate corrective action, including those as may be required by this Division, such as the construction of additional or replacement stormwater management systems. 5. The permittee grants DENR Staff permission to enter the property for the purpose of inspecting all components of the permitted stormwater management facility. 6. The permit may be modified, revoked and reissued or terminated for cause. The filing of a request for a permit modification, revocation and reissuance or termination does not stay any permit condition. 7. Unless specified elsewhere, permanent seeding requirements for the stormwater control,must follow the guidelines established in the North Carolina Erosion and Sediment Control Planning and Design Manual. Permit issued this the 13th day of September, 2001. NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION Gregory J. Thorpe, Ph. D., Acting Director Division of Water Quality By Authority of the Environmental Management Commission Permit Number.S'WS 920522 Modification 01/15/2003 00:57 9105798097, LADANE WILLIAMSON CO PAGE 09 State Stvrmwater Management Systems Permit No. SWS 920522 Modification Resort LaDane - Marsh Harbour Stornwater Permit No. SW8 920522 Modification Brunswick County Designer's Certification 1 as a duly registered in the State of North Carolina, having been authorized to observe (periodically/weekly/full time) the construction of the proj ect, (Project) for (Project Owner) hereby state that, to the best ofmy abilities, due care and diligence was used in the observation of the project construction such that the construction was observed to be built within substantial compliance and intent of the approved plans and specifications. The checklist of items on page 2 of this form is included in the Certification. Noted deviations from approved plans and specification: . SEAL Signature Registration Number Date 8 01/15/2003 00:57 9105798097 Certification Requirements: LADANE WILLL;MSON CO PAGE 10 State StormwatepManagement Systems Permit No. SW8 920521 Modification 1. The drainage area to the system contains approximately the permitted acreage. 2. The drainage area to the system contains no more than the permitted amount of built -upon area-, 3. All the built -upon area associated with the project is graded such thai the runoff drains to the system. 4. The outlet/bypass structure elevations are per the approved plan. 5. The outlet structure is located per the approved plans. 6. Trash rack is provided on the outlet/bypass structure. . 7. All slopes are grassed with permanent vegetation. 8. Vegetated slopes are no steeper than 3:1. 9. The inlets are located per the approved plans and do not cause short-circuiting of the system. 10. The permitted amounts of surface area and/or volume have been provided. 11. Required drawdown devices are correctly sized per the approved plans. 12. All required design depths are provided. 13. All required parts of the system are provided, such as a vegetated shelf, and a forebay. 14. The overall dimensions of the system, as shown on the approved plans, are provided. cc: NCDENR-DWQ Regional Office Town of Calabash Building Inspections EXHIBIT 2 tr H • y STATE OF NORTH CAROLINA ) FI � Q GENERAL COURT OF JUSTICE r U R�Q�� COUNTY OF BRUNSWICK Oj MAY - AJ190 gOURT DIVISION CVS 1372 MARSH HARBOUR GOLF & BRtSWICK COUNTY. C.S.C. YACHT CLUB INTERVAL ) ASSN., INC AND GOLF COAST BY ). REALTY INC., Plaintiffs, ) AMENDED COMPLAINT VS. ) ) THE TOWN OF CALABASH, j NORTH CAROLINA, MARSH ) HARBOUR RESORTS, LLC, ) OCEAN HARBOUR GOLF LINKS, ) INC., ) Defendants. ) Plaintiffs, complaining of Defendants herein, would respectfully show unto this Honorable Court as follows: I. Plaintiff, Marsh Harbor Golf & Yacht Club Interval Assn., Inc. is an association of owners of property located in the Town of calabash, in the community of Marsh Harbor Golf & Yacht Club. Plaintiff Golf Coast Realty, Inc. is a corporation organized and existing under and by virtue of the laws of the state of North Carolina. 2. Defendant, Town of I Calabash, is a duly incorporated North Carolina Municipal Corporation and Defendants, Marsh Harbour Resorts, L.L.C., Ocean Harbour Golf Links, Inc., are, upon information and belief, corporations organized and existing under the laws of the State of North Carolina or of some other state in the United States, and are doing business in Brunswick County, North Carolina. 1 3. The Plaintiffs represent the owners of property interests in the Marsh Harbor community. The owners of those interests are listed in the attached Exhibit A; which is incorporated herein by reference as fully as though repeated verbatim herein. 4. The land, which comprises the Marsh Harbor community, is more.specifically described in the attached Exhibit B, which is a zoning map for Marsh Harbor Golf Links, which is incorporated herein by reference as.fully as though repeated verbatim. Upon information and belief, the tract of land involved is owned by Defendants Marsh Harbour and Ocean Harbour., hereinafter referred to as 'the corporate Defendants" or "corporate Defendants". FOR A FIRST CAUSE OF ACTION (Declaratory Judgment) 5. Each of the foregoing allegations is incorporated herein by reference as fully as thought the same were repeated verbatim. 6. This is an action seeking to have this Court declare the rights, status, and other legal relations of the parties and issues involved in this case_ This is an action under and pursuant to the'Uniform Declaratory Judgment Act as coded in N.C. Gen.Stat §1-253, et seq. 7. The Plaintiffs are residents and/or property owners and/or adjoining land owners of the Proposed development at issue in this action, located in the Town of Calabash, North Carolina and are interested parties pursuant to N.C. Gen. State §1-254 whose rights, status or other legal relations are affected by a municipal ordinance enacted by the Defendant Calabash on or about July 26, 1999. Therefore, the Plaintiffs have a specific, legal interest in the subject matter affected by the Zoning Ordinance involved in this action, and are aggrieved parties directly and adversely affected thereby. 8. The Plaintiffs have suffered/will suffer special damages distinct from the rest of the community in that the rezoned building will/would cut off the light and air to their property, increase the danger of fire, increase the traffic congestion, increase the no level, increase the 2 level of pollutants and irritants in the air and in the environment, will interfere with their right to peaceful enjoyment of their property, and with their right of privacy and will pose a danger to the health and safety of residents of Marsh Harbor. 9. On or about July 26, 1999, the Town of Calabash, by and through the actions of the Board of Commissioners, re -zoned 168.42 acres of land, including lands comprising both Marsh Harbor Resort and Ocean Harbor Resort. This land had been zoned P.U.D. and R-15 and was changed to a new Planned Unit Development at the request of the corporate Defendants. The corporate Defendants intend to construct a development planned to include a luxury hotel accommodating 1,200 guests, condominiums, single family homes and townhouses and a seven story, 75-foot high parking garage. Corporate Defendants intend to locate the parking garage immediately adjacent to Plaintiffs' property. 10. The subject property was re -zoned over the strong objections of community members, including owners of property in Marsh Harbor, and particularly of the Plaintiffs herein. Specifically, the seven story parking garage planned,for the project is immediately and directly adjacent to the resort and residential community of Marsh Harbor. 11. Upon information and belief, a majority of the Board of Commissioners had. previously decided to adopt the Ordinance prior to the final hearing. The public was not allowed input into the decision and was hot allowed to make comments or to voice concerns during the final hearing, contrary to applicable law. The Plaintiffs were, therefore, denied an opportunity mandated by statute to raise and have addressed their specific and urgent concerns about this proposed development in general and about the parking garage planned to be constructed immediately adjacent to their property. Plaintiffs, therefore, did not have the statutorily mandated opportunity to explore with the developers the possibility of changing the plans to relocate the parking garage to an attemate site, which would not pose such a direct and immediate threat and hazard to the property and privacy rights of the Plaintiffs. 3 12. .. The Planned Unit Development Zoning Ordinance adopted by the Town of Calabash is oppressive and is a manifest abuse of discretion; further, it is arbitrary, unreasonable, capricious, and in excess of lawfully delegated authority based upon, but not limited to, the following reasons and violations, to -wit: a. It was adopted without proper study, planning or information; b. It includes maximum building heights and setbacks, which are arbitrary, capricious, inconsistent, irrational and unreasonable, all to the detriment of Plaintiffs and similarly situated adjoining landowners. The unreasonable setback and height restrictions cause significant damage to the property values and the quality of life of the adjacent property owners, particularly the Plaintiffs; C. It fails to provide for adequate light, air and open space; d. It does not facilitate the creation of a convenient, attractive and harmonious community by allowing a seven story high-rise parking garage to be located immediately adjacent to the Plaintiffs' property without a proper transitional zone; e. It fails to protect and preserve scenic and ecologically sensitive areas; f. It does not protect the character of the community as it currently exists; g. It fails to demonstrated that the change is in accord with sound planning principals; h. It does not demonstrate that all uses would be in the general public interest and not merely in the interest of an individual or small group; 2 It fails to protect the safety and well being, of the community and will allow construction of a development that will greatly increase traffic and congestion in the area; It fails to be rationally related to any legitimate government objective. 13. In adopting the said Ordinance, Defendant, Town of Calabash, failed to comply with the applicable Notice Requirements as imposed by the laws of the Town of Calabash and by the State of North Carolina and, in so doing, precluded all citizens, property owners and concerned taxpayers, including the Plaintiff(s) from having adequate opportunity to be advised of the exact nature of the plan and to voice their opinions and concerns regarding the same and to have their elected officials answer those concerns. 14. In adopting the said ordinance, Defendant, Town of Calabash, created a sweeping change in the Town and in the overall plan for the Town and did so„ as stated, without allowing Plaintiffs the statutorily mandated notice and opportunity to be heard. In so doing, the town of Calabash has changed the entire character of the Town, and has done so in direct violation of . the expectations of the Plaintiff landowners who purchased their property based upon their understanding of the character and qualify of life in the Town of Calabash. Making such a drastic and sweeping change in the entire character and way of life on an entire town requires that the Town make a special and concentrated effort to do so only after extensive and serious consideration of the concerns of residents. Moreover, Plaintiffs maintain that the mandated notice and hearing requirements are insufficient in this particular instance and Plaintiffs would allege that in creating such sweeping changes as this new development planned by co - Defendants should require additional notice and should require that the Town document all of its efforts to both hear and address fully the concerns of landowners. Further, the Town should document all of its reasons for changing the character of the Town without allowing residents to 5 vote as to the same and Plaintiffs contend that homeowners in Calabash should have the right to vote as to such sweeping and profound changes. 15. The Plaintiffs have suffered and will continue to suffer special damages, separate and distinct from the remainder of the community as a result of the arbitrary, capricious, unreasonable and illegal actions of Defendants. Plaintiffs have been damaged in, but not limited to, the following: a. The value of their property has been diminished; b. " They have lost future income from anticipated rentals and increased Profits from re -sales and have adversely affected time share owners' ability to trade or bank time or weeks; C. They have incurred costs in opposing this Ordinance including Attorney's fees; i d. The Plaintiffs have expended great and vast amounts of their time which could have been devoted to other occupations or pursuits; and e. The reputation of the community.has been damaged; f. Their peaceful enjoyment of their property has been damaged; g. Their health and safety has been put at risk. 16. Plaintiffs are informed and believe that they are entitled.to have this Court issue its ruling declaring the rights of the parties and declaring as follows: that the re -zoning, of the property or land in question was not done in accordance with the requirements of the statutes, including the applicable Notice Requirements and that the re -zoning in this case is unreasonable, arbitrary, oppressive, capricious, a manifest abuse of discretion and is therefore void. 6 FOR A SECOND CAUSE OF ACTION (Nuisance) 17. Each of the foregoing allegations is incorporated by reference herein as fully as though repeated verbatim. 18. Plaintiffs would allege that the traffic patterns at the planned resort and the proposed seven story parking garage planned and to be constructed by the corporate Defendants will cause noise and pollution and is therefore an improper and unreasonable use of the property which will result in injury to the land, property and rights of the Plaintiffs and constitutes a private nuisance. Further, the corporate Defendants know that a private nuisance will result from the said construction as planned or that it is substantially certain to result. 19. Plaintiffs would allege that the'traffic patterns and the proposed parking garage, if 1 located immediately adjacent to their property as planned, will constitute a nuisance per accidens. Further, Plaintiffs allege that the said parking garage will necessarily necessarily become a nuisance due to the fact that seven stories of cars will be parking upon the facility, that the facility is immediately adjacent to the Plaintiff's property and that the volume of noise and pollution which seven stories of cars will bring to the PlaintrfPs property is immense and unreasonable. This harm is actually threatened and not merely probably and is, in fact, certain. or practically certain to result. 20. The construction of the seven story parking garage, and planned road design and traffic patter's at the resort property, will create conditions which will render the enjoyment of their property impossible and it will invade their rights, including, but not limited to, their right to peaceful enjoyment of their property and their right to privacy. 21. Defendants allege that in light of all of the circumstances of this case, the corporate Defendants planned invasion into the property and property rights of the Plaintiffs is unreasonable and will cause Plaintiffs substantial damages. 22. The nuisance created by the parking garage will be continuous and recurrent and the injury or harm to the Plaintiffs will be. irreparable. The planned nuisance must necessarily result from the location of the parking garage and the harm from this invasion is substantially certain to result. This an injury or harm which is and which will be,real and immediate and is one to which the Plaintiffs should not be required to submit, nor should the said corporate Defendants be permitted to inflict the harts, which will be an occurrence so continuous, ongoing and frequent that no reasonable redress can be had in a Court of law. 23. The Plaintiffs will be irreparably injured by the construction and operation.of the said parking garage and for such injuries and damages there would be no possibility of repair or compensation and there is no adequate remedy at law for the damages that the Plaintiffs will inevitably suffer. 24. Therefore, the Plaintiffs are informed and believe that they are entitled to have this Court permanently enjoin the corporate Defendantsfrom constructing the said parking garage where it is planned, or in any location adjacent to Plaintiffs' property 25. Alternatively, although there is no adequate remedy at law or in damages for the substantial and irreparable harm that Plaintiffs.will suffer if this Court should fail and refuse to issue the permanent injunction, then Plaintiffs only recourse will be in monetary damages, which are insufficient to and could not repair the harm that the Plaintiffs will suffer. However, if the Court does not issue the injunction as requested herein, Plaintiffs ask that this Court award them a judgement against the corporate Defendants for such an amount of monetary damages as is found just and proper and such an amount as will compensate them for the substantial harm that they will suffer as a result of this continuous nuisance.' FOR A THIRD CAUSE OF ACTION . (Trespass) 26. Each of the foregoing allegations is incorporated by reference herein as fully as though repeated verbatim. 27. The construction.of the parking garage where it is planned, and the implementation of traffic patterns at the resort as planned will cause noise and pollution to continually trespass upon their property; to damage their right to peaceful enjoyment of the property; and will pose a hazard which will threaten their health and safety. 28. Plaintiffs allege as follows: (1) They are the owners and/or possessors of the Property and will be the owners and possessors -of the property at the time that the corporate Defendants Will trespass upon the said property;(2) the entry of the noise and pollution from the said Defendants conduct and planned nuisance will constitute an unauthorized entry by the said corporate Defendants; and (3) the unauthorized entry of corporate Defendants upon the. Plaintiffs property will cause substantial damages to the Plaintiffs, 29. Plaintiffs are informed and believe and hereby request an award of damages from the Court in a sum found just and proper and sufficient to compensate them For the real and substantial damages which the corporate Defendants planned trespass onto their property is substantially certain to cause and/or will cause. Dated: March 7, 2002 J. D&ig Hudson, Esq. Hudson & Gentry' 4810 N Kings Highway, Ste B Myrtle Beach SC 29577 (843) 692-9889; Fax 692-9190 NC Bar.#: 2234 ATTORNEY FOR PLAINTIFFS 9 STATE OF NORTH CAROLINA ) IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF BRUNSWICK ) CASE NO: MARSH HARBOUR GOLF & YACHT CLUB INTERVAL ASSN., INC AND GOLF COAST REALTY INC., Plaintiffs, vs. ) THE TOWN OF CALABASH, ) NORTH CAROLINA, MARSH ) HARBOUR RESORTS, LLC, AND ) OCEAN HARBOUR GOLF LINKS, ) INC. Defendants. EXHIBIT A Kirsh Barbour Golf 4 Yacht Club Owners as of-6128199 Sorted by OnitlVeek'Number RAKE --------------------- STREET ----------------------------- CITY STATE LIP OIIT/WEEK Gerald Bellisario 4231 Vest 50th Street --------------------- Cleveland OR 44144 01/01 Barry A Alicia Montt 10817 Vernon Ave. Garfield leights OR 44125 01/04 Phoebe May-Fletcber A Allen 41 lavajo Street Creston 01 14217 01/05 Fletcher Joe A Ernestine Perry Jr. 894 1. 150th Street Cleveland OB 44110 01J06 Donald Rework 4260 Americana Dr. Apt 124 Cuyahoga Falls 01 44223-0264 01/07 David C. Robertson 19606 Kewanee Cleveland OR 44119 01108 James A Susan Spett 29308 Atmadale Avenue Wickliffe OR 44092 ' 01/09 Saundra Redding 100 Voodcroft Partway 125-D Durham IC 27713 01/11 Beverly lathorn 9608 lager Avenue Cleveland OR 41104 01113 Alan Millar 2416 Ridge load Raleigh IC 21612 01/14 Alan I Shamda Koehler 900 Craobrook Ct. liamisburg 01 45342-6429 01/15 John leodelok C. Eugene A Martha Thrall 1924 Cook Avenue 194 Castle Blvd. Cleveland Akron Of 44109 01116 Colleen Stella 3290 1..Scarborough Road Cleveland leights 01 OR . 44313 44118 01/17 01118 Thomas A Lois !'$finer 10 Lisa Drive -lamilton 01 45013 01119 Paul A Janet Harris 3387 Iiigaro Street 'Cincinnati 01 45251 QV22 Richard A Eden Spotts 845 Colony Drive. ligbland leights OR 44143 01/23 Larry Patrick 11309 Feller load Sunman I1. 47041 01/25 Ronald I lobya Smith 24 Linkside Liao Taylors SC 29687 01/26 William A Cheryl Jones 9561 Svigert load Loveland OR 15140 01/27 .Gilbert and Sharlene Carpenter 6520 Rosetta Drive Burlington 11 41005Pru 01128 i i Joyce Petty 25830 Anhesley Id. Beachwood OR 44122 01129 Luka Leta Iatica Mejat 18391 Scheall Avenue Cleveland OT 14119 0113D Michael A Susan food 10450 lainview Court Dayton 01 45458 01131 Robert Dubek Robert I lebeeca Right 526 Beckley Court Henderson IV 89014-3801 01132 filliam A Jeanie Cunningham lost Office Box 156 17700 Chatfield Ave. Penney Farms Cleveland FL 01 32079-0156 44111 01/33 01134 Harris Silverman 7903 Tall Farm load Louisville If 40291 01135 Robert Cochran .20I Bloecrest Avenue Dayton 01 45127 01136 lichard Balzer, MD 3216 Mizzenmast Street laineville OI 45039 01138 Frank Levandovski i Deborah Boyer PO Box 119 Valley City - 01 44280 01/39 Patricia loads 3430 Lineoln Avenue Covington IT 41015 01140 Dr, John A Kathleen Locebrey 5642 Jalmar Drive Cincinnati, Of 45238 01/41 Daniel A Jamflyno Rudolph 1085 Fashion Avenue Cincinnati 01 45238 01142 Jonathan Vandertill 78 Ball Street Chagrin Falls 01. 44022 01143 Jack A Carol Duggan $139 Test liver Drive loyalty 01 14072 01/44 Charles Tamper 4813 lest 220th Street Fairview Park ' 01 14126 01145 Charles Carpenter 4002 Vaaqe load Moraine OR 45439 01146 Mark I Violeta luesman 4566 Glegcary Court Cincinnati 01 45248 01141 Edward L. I Daniel E. Tompkins 11800 lelson-Parkman load Garrettsville OR 44231 01/48 Edward A Prances Begalke 2114 Old fill load Madison 01 1 057 01/49 Glens S. Lust 1063D Cbestnat Road fillsboro 01 45133 01150 Reginald Evans 135 East 'Church Street Ienia OH " 15385 _ 01/52 Kevin BeCardy 5645 ?envoy Court Cincinnati 01 15221 02104 John Eldretb 3957 lower had loutstown Of 14272 02/05 Jeff and Cynthia Gundlach 733 Judson lent OR 14240 02/07 Springfield fireworks/Bill A Carol 490 State Route 103 Bluffton 01 45817 02108 Ruff Jeff and Debbie Koore 8 Sunmyslope Drive Cincinnati 01 45229 02/09 Robert I Beverly Whitehead 33270 Coaeheae Lane Solon OB 44139 02/10 Michael A Dorothy Tomcko 38435 Westminster Lane Willoughby OH MH, 02111 Bruce A Cynthia lensley 2516 Ranfield load 109adore, OB 44260 02112 Michael A Donna, Caster 926 Bristol Lane Streetsboro OR 112fl . .. 02113 Jon I Terri Veideling 5240 1. 229th Street Fairview Park 08 44126 02/11 William I DoloresKreetvfeser 1973 Meadovbrook.Avenue Youngstown OR 44514 02117 011ie I Betty Willoughby 700 Hanover Avenue Aurora II 47001 02/18 Shaun A largaret Kirk 8772 Tanavor rude nr;oe r:..:...,: Marsh Rarbour Coll 4 Yacht Club Owners ' as of• 6128199 Sorted by Unit/Veek lumber HER -------------------------- STRIET ----------------------------- CITY- STATE RIP UfITIVERK Patricia.Jenkins 2121 - 18th Street 5E ---------------------- Akron ----- OR ---------- 44314 02/23 Edison A Mary Yoder Jr. 5357 Cornwall Drive Dayton OR 45415 02124 Michael B Pamela Roberts 7746 Remark load Mount Vernon Of 43050 02/25 Jeffrey A Jennifer Leimberger 6099 Snowhill Drive Ramiltoo OR 45011 02/26 John A Elizabeth larper 31450 Miles load Solon OR 11139 02127 Villiae Runt 16734 lamilton Court Strongsville Of 44136 02/28 Sharon Phillips 21883 forth Park Drive Fairview Park OR 44126 02/29 Jeffrey 1 Shirley larwid 1719 Dafftoa Lane Painesville 01 1 077-4746 02/30 Leonard 1 Leah Smith 4181 Springwood Drive Brooklyn 01 44144 02/31 Charles Chambliss 4746 falford Road Unit 14 Varrencville 01 44128 02/32 Dennis L Day and laria E 10499 Sagardale Street larr3s6a 01 45030 02133 Day,Living Trust Linda Keighley 12515 Air Mill load Brookville 01 45309 02/34 Mart 1 Joan Alessandriai 1498 great Oak Drive Cincinnati 01 45255 02135 filliam L Blaine lerean Jr 11920 Sforybrook Lane Ckesterland OR 44026 02136 Martha Boyle 269 Delivare Place Akron 01 44303-1247 02/37 Roland Shadd 1 1. Tillman 11875 lelmshurg Court Cincinnati. 01 45240. 02/38 Thomas J. Morgan, Post Office 101 4011 Calabash IC 28467 02/39 Thomas (heeler 4713 iotdale Drive " lettering 01, 45429 02/40 Paul L Martha Iiklovic Jr. 1740 lerna load Akron " . 01 44312 02/41 Christopher loefting 3836 Silas Drive laeilton Of 4501) D2142 Jacqueline grinstead 1718 Brookwood Drive Akron OR 44313 02/43 Marilyn White 3228 Starlite Drive farren 01 44485 02144 Darlene THel Box 285 Edgerton 01 43517 02/45. Tieotby Kell 1204 Coral Blvd. IF forth Canton 01 14720-6166 02/46 John i Sandy Banner 1071 Arrovhead load Vermilion of 44099 02/47 Charles Edoisten 3206 Barnet Lane Cincinnati Of 45244 02/48 Christopher i Vicky O'Dell 5667 Cotton Yoe load Trenton Of 45067 02150 T. Plockter i Sean Pluckter 2733 Caliis . Stow - Of 44224 . 02151 Craig L. and Betty J. Shaffer i20 Lakebridge Plaza Dr t1306 Ormond Beack FL 32174 02152 Eizabeth 1. Vest (formerly ioiciai 503 1.. Rataaga Ave. Johnson City ` 01 37601 03101 James and Katy Jarrell PO Box 221; Mogadere 01 44260 03105 Jeffrey Barchae Post Office Boa 41 Tremont City . 01 45372 03106 David A Bernice Vargo 1641 loot load Lorain Of 44052 03107 Roy L. Riser 424 lordale Avenue . Dayton OR 45410 03108 John A Victoria Keehmen Jr. 1137 Deerhaven Ct. Loveland 01 45140-8107 03109 Betty Daniels 8909 11110rth Court Silver Spring 'ID 20910 03/11 Marren Carter 147 is Belle Street Dayton _ OR 45403 03/13 James B Terrie Lesley, 442 Oxford Avenue , Slyria OR 14035 031% . Lillian Jones 17300 Libby load liple leigbts -08 44137 03/15A Daniel A. lichols 5353 Chapel Ed lit. Madison 01 44057 031151 John Vogel I Court 10, WI Drive Carolina Shores Re 28467 03117 Debra D. Lysak 9335 Crestwood load Parma leigktc 01 44130 03/18 Stuart A Mary Kay Willa 7565 Dawes even Drive Pane' 01 11130-5965 03/19 Dwayne 11reada Griffin 801 forth ligh Street_ timing Sea" II 47040 03121 Edward 1. leotman . 104 Park Avenue dlsmere KY 4101H 03125 Julius i Cirlean"Jackson 5829 Sunset Drive Radford leightl. OR 44146 03/26 Richard 4 Mary Beth McGovan Jr. 2349 Vie Leunen , Cincinnati 01 45239 03/27 Eldon E. Kleinhean 4631 Swallow Court Lebanon OR 45036 03128 - Tammy R. Gibbs . 7377 forsythia Lane lorthfield OE 44067 03/29 Allen A Judith Aungst 34355 Sherwood Drive Solon 01 44139 03/30 Karen Dais -Parker It 13 Box 256 Butler KY 41006-9407 03131 Larry A Leona Gabbard 6990 Blackberry Court lamiltoo 01 45011 03I32 Wallace A lancella Barris 26260 Cambridge Drive Oakwood Village on f4146 0313 Patricia Ezelle 16732 Scottsdale glyd Shaker Beights ' 01 i4120 03/34 James A Vendela Rowell '7631 Dog Trot load Cincinnati OR 15248 03138 Clarence Courtney INN Tisbercreek Drive Union IF 41091 . 03139 Kenneth A glizabeth Lane 4234 Brandonenyp Brivo P;.,..;... oc ir,yy ,,.r .,... i Yacht Club Owners Marsh Barbour Golf as'of 6/28/99. Sorted by Unit/leek lumber WANE Charles Cobb Thomas i Judy Ponrurick Richard Deming Walter I Blaine Gray Anthony Farone Ralph i Kathleen Reese William Clarke Columbia Diane Carfolo Ira Felton, Jr, Imalie i Prank Johnson Fredrick I Alice Davis J. Wesley i Sharon Ernest Richard L. i Laura A. Ivancic Royal a Frances Reath Edward i Penny Jo Unkefer Timothy i Deborah Oblisk Paul i leveily Upton . Dr. Kenneth i Janie lamai, Jr Larry Cadwallader Paul 4 Carol louillion' Walter Cary Robert i Susan Payne Jr. Timothy Skeens Richard i Adele Belzer Stephen i Janet Jackson lobert i lancy Lind lobert Cornelius Kickers i Barlene lay". lichard i lancy Ann Zukovitz Gary L,Diana linnich Samuel 1 Jacqueline Darrell Ervin i Deana lorzelbacber James i lamcy Wiese William Douglas Steve George Androsky Richard 1 Denise Jennings - Killian i Nary Lou Petty Paula 1.1. Iric Penebaker Lei i Anna Prindle James I Nary Lou lertel lathleen i Robert Glaser Kim 1 Susan Gardner Joseph i Suzzane Levey Kent Bromagen Paul J. Walker Belly fly Cogan James blathers Victor 1 Sandra Gill Robert J. Ream LemOn i Olive Dailey Galen i Tikki NcKendry R. Rediger i Patrick Jones Peggy Van Yleet Ronald 1, lilderbrand Renee Brooks Cosworth Michael Di Nozic Tracy i Lisa Tacker Roy 1 Nary Patterson STIBST 20 fooderest Court 1864 Greea load Post Office Box III 7535 Iraevood Drive 5351 Lear lagle load 7935 South fampton Court 6993 Forma Park Blvd. 30403 Jeffersoa lay 1381 Carman load 2779 Brampton Drive 4239 Sibley Avenue . 412 Norris load 12144 Ridge load 3519 Ingleside 3502 favarre Road ST. 20574 Ihitebark Drive 80Z5 Spyglass Lane 4612 Dolois Creek Lane 3907 S. State loote 1133 5044 Bristol Court 13 lingfoot Court 4149 Seller laona Drive 46 Lakeview Drive 379 Mann Kills Road 21 Brandywine Court " 31218 Milliard Blvd 5331 Tork.lidge load 4417 Ingleside load 1034 laterptile load 42615 Russia load 13500 Fifth Avenue 964 Richmond Circle 2574 Oak Circle IB 6247 Sweet;Briar Court 6336 Saadfield Drive 7064 Brownell Drive 785 Deervalley Drive 9407 1. 49th Street ,ipt.103 813 Istber 1.1. 15025 D. S: 52 1100 iwatiagtoe 11710 Butternut load 131 Jubilee Circle 6833.filmingtom Pike P. 0. Box 4953 14 Ball [an 6816 Niami ,tills Drive 1255 Tetherafield Drive' 9410 Yvonne load 6224 Cook had 1198 Fullerton Drive 368 Loveland-ladeira load 6651 Ielvig Drive 1250 Clairmont Place 6784 Stanhope way 3435 Ileeman load 9077 losselville-linchester 4571 Luthet;Kiog Blvd. CITY Cincinnati ladisos Redina Independence forth Ridgeville Cincinnati Parma Weights . Westlake Akron Cincinnati Cincinnati Ft. Bright Forth Royalton Shaker leigbts Canton Strongsville Lander Iashiogton Williamsburg Loveland Simpsonville Brunswick Grafton Chardon lighland leigbts Westlake Guilford larrensville leights lest Alexandria Elyria Bast Cleveland' lamilton forth Liberty Loveland Brookpark Nestor Ciacionoti Milwaukee Warren Netaeora ' Cleveland Chardon Baytown Beach Dayton Calabash Oxford Cincinnati lest Chester, Cleveland Kilford ' Cincinnati Loveland Bober leigbts Macon Indianapolis Cincinnati . Winchester Garfield Weights Sun IIP OFITIIBBK --------------- --------- 01 OR OR OR 01 of OR 01 of Of 09 IT OR 01 OR 01 of NO 01 01 SC 01 01 01 BY Of 11 01 of 01 OR OR IA of 01 01 01 II 01 11 of 01 FL OR IC 0f 0f Of 01 Of 01 01 01 GA II 01 01 OR 45246 . 4f057. 14258 14131 44039 15231 14130 44145 4f313 45239 0236 f1011 41133 441I2 44706 44136 65039 63090 45176 MID 2996D 44212 44041 4f0I4 41076 44145 47022 " 44128 45381 44035-6877 44112 45013 52317-9376 45140 44142-3750 44060 45255 53223-6431 44483 47030 44115 . 44024 32124 45459 28467 0056 45243. 45069 44133-1234 45150 45240 45140 454I4 31201 0251 45211 45697 441oS 03141 03/42 03/43 03144 03145 03/46 03147 03/50 03/52 04101 04/03 Of105 04/07 04108 04/09 04110 04/11 04/12 04/13 04/14 04/15 04/16 04/17 04/18 04/19 04/20 04/21 04/22 04/23 04124 04/25 04126 04127 04/28 04129 04/30 04►31 04/32 04133 04134 04/35 04136 04/39 0114D 04/41 04142 04143 04144 04145 04/46 04147 04/48 04/49 04151 05101 05103 05/05 n9fnA .Marsh Barbour Golf A Yacht Club Owners ai of 6128/99 Sorted by Unit/leek lumber RARE ---------------------------------- STREET ----------------------------- CITY, STATE ZIP 01ITII911K Gary Anderson 1537 Beemon Lane ----------------------- Florence ----- IY ---------- 4104E-9204 --------- 05/07 John I Linda Little 350 Paradise Valley Peebles, OR 45660 05/08 Charles I Theresa loehlean 1891 lindhill Terrace Cincinnati OR 45255 05/09 Raymond Davis 7830 lormandie Blvd, 1-59 Middleburg Heights 01 44130 05110 Suzette Coning 4905 164th Averse lest Olive MI 49460 05111 Larry Sensesat 5848 Liberty load Solon 01 11139 05112 John peals 3910 Aunanson Street 1T Uniontown OR 44685 05/13 Vernon Cole 1120 Rustic Creek Drive Dayton OD 45458 05115 lilliae I Kathleen Martin 112E If 34b Street Oklahoma City OR 73118 05116 Robert Irwin P.O. Box 513 laynes►ille 01 45058-0533 05117 Dave I Deborah Morris 8929 Eagle Creek Court test Chester OH 45059 05118 Benjamin A Gloria Lewis II1 12139 Deer Chase Drive Cincinnati OR 45140 05119 Michael Eckstein 1920 Acorn Drive Cincinnati OR 45231 05/21 John 1. A Jane McMillan 10226 Wart load Kirtland OR 1 094 05122 Edward V. Lipp 790 Geddes Bluff Sagamore. Bills Of 1 067 05124 Edeoad I Salwa Sifri 469E Mission Lane Cincinnati OR 45213-1263 05125 William Abanto 2375 Fairgreen Drive Cincinnati 01 45E38-3230 05/26 Susan 1 Delay, Living Trust 1215 Queen Anne's Gate Iestlake OE 44145 05/E7 Cynthia Sieger 8184 lothport Drive Cincinnati 01 45255 05/28 Gregory Iocuba 809 last Drive Sheffield Lake OR 44054 05/29 Jeffrey A Patricia Plooski 1505 Andover Lane Borth Royalton 01 44133 05/30 Everett Brown 6451 lest Tell load 12085 Glendale AZ 85308-2085 05/11 Ronald I Sue Carey 7910 Laira Street I.T. Massillon 01 44646 05/32 Belinda lender (do not give Fort Office lox I084 Miamisburg 01 45353-1084 05/33 address oat( Roger I lie Kusser 14509 Plant load. lorvalk 01 44857 05134 Leonard A Donna lirscbman. 10064 Darrow load Twinsburg OE 44087 05/35 Louie and Marguerite Allen, 28941 Saylor Solon of 44129 D5/37 Mary Jeffries A Mande Skinner 7160 Creseat Drive lasoa OI 45040 05/38 Raymond A lite Deitsch 5366 Teri Id. 121 Cincinnati 01 45248 05/39 Raymond Deitseb 5366 Vert Rd. 121 Cincinnati Os 4514E 05140 Jeffrey Bath 512 Regent Drive Middletown OS 45044 05/41 lath Ann Freeman 7618 S. Tipp-Cowlesville Tipp City OI 45377 05/42 Joseph A Maureen Stahl 2173 Cliff load lorth Bend - 01 45052 05/43 Gregory i Betty Jackson 7 5pringside Drive Cold Spring IT 41076-1935 05/41 George I Bonnie Shane 3531 Gary Drive ' Kogadore 01 44260 05/45 Roy I Bala Harvey 675 Ardella Avenue Akron OI 44305 05/46 Carolyn Montgomery 20917 Clare,beeue Maple Heights 01 11137 05/49 Grades I Debi lagers 48 Elk load Richmond If 47374 05/50 Sheryl Boocatter I Iona Coat 2937 Overdale Drive Cincinnati OB 15251 05/51 Killian loss 1121 Melody Lane Medina 01 14256 05152 Frederick A Alice Spohr 6125 Grand Cypress lay Mason 01 4504D 06101 Paul I Louise Shannon 12031 Hitchcock Forest Park OR 45240-1816 06/03 Rosalind 1. Leagers 51 1 Shaker Ion load Lebanon OS 45036 06104 Robert lever 234 Probasco Greeodale II 47025 06/05 Gerald I Debbie Seeger 5311 lorth Ridge Seat Ashtabula 01 44001 06106 Gary I Carolyn Kidder 65801. Lawn Avenue 11' Louisville OR 44641 06/03 Rhonda A Sam Clark 10621 Timberview load lurora . 11 17001-803 06109 Thomas I Josie IcGuigan 10788 Carolina Trace goad Harrison . OE 45030-16% 06110 John and Angela lay 1743 Sig Creek Faraway Middleburg Heights OR 44130 06111 Brenda Tyson 7208 Stomebrook Court Middletown OE 45014 06/12 Leonard Fritz 15 Idaho Avenue Ft. Mitchell IT 41017 06113 larding I Brenda Kirtley,Jr. 145 Ridge Gate Court . Lewisville BC 21023 06J11 Charles L. Koashey A Joan S. 221 Maplewood Drive Alliance 01 44601 06/15 Dordea Teddfe I Patricia Kays 107 Glen Creek Road Georgetown KY 40324 06/16 Ted A Geraldine Morring 920 Broad Street ladsvorth Of 14281 06117 Lei ➢atebeson 200 As61ev Drivo 7.11,.._. .. ,,,.. .,,.. Narsh Harbour Golf as of 6/28/99 Sorted by Unit/Week Yacht Club Owners lumber IAMB STIBBT Jackie A Sally Wilson Belinda O'Duggaa Roger J. Manse John A Burneda gay Taylor Chester B Patricia Jones David Corsmeier Thomas.I Dorothy Silver. George A Linda Readrock James L Christine Smelko Daryl 4 Carol Price Pauline luoyan Donald A Beverly Gerth Harry 4 Linda Ritchey, Jr. Curtis Campbell Michael Demma lacon i Lynda louse Peter 4 Diane Foradas George A Florence Wills, Jr'. William Illiott Sally Sores Larry I Delora Davidson Clarence i Tvonae Brake Sandy A Larry Patrick largaret Davis Barry A Barbara Biller Jeffrey A Jean Lociau Robert and Carol Szabo Robert A Lillian lines Jobs A Phyliis Shushereba Robert A Frances Killen David B T. Gale Thomas Tina Leas Ilizabeth lenyi Ronald i Pamela Temple, Jr. Robert I Phyllis Petitjean Wilbert Probst Thomas A Pamela Steinbrumaer Willias A Lois Maas Jeffery Commons Jerrold A Linda Lozack David A Pauletta larp Brett A Berneda ley Anthony Grad4ber Jr. Dennis Crouch' Carl I inn Zietlow . Michael A Bonnie Phillips Sandra Silverman Maureen Dolan Schwab Howard i Angela Bash William 6. Sample Dick i Gail Sebaaerte James A Sharon Sticklen Laurette lavley S. grit A Cathy Pedersen Robert A Wary Lou Stein James i Debbie Sitko George Atbey Ineald navie - - CITY STATE ZIP OIIT/DEBT ------------- --------------- --------- 6370 Grand Via Drive, IB Rockford .11 49341 06/20 Post Office Box 533 Tryon IC 28782 06/22 6041 Stinewood Avenue SB Bast Sparta 08 44626 06123 359 Bayless, P.O. Box 138 Lynchburg OR 45142 06124 9575 leather Court Cincinnati 01 45212 06125 12130 Cedarbreaks Lane Cincinnati 01 45249-1204 06126 9615 lihdhar-Parkman Road Windham OR 14218 06129 2471 Laurel Road,. Bor 115 16 liackley - OR 44233 06130 3039 Farnham load Richfield 01 41286 06/31 4092 Jennifer Drive Tamilton OH 45013 06132 370 Jac6bs Street Hamilton OR 45011 06/33 4201 Brandonmore Drive -Cincinnati OR 45255 06/35 4580 Cynthia Drive forth Canton OM 14720-1208 06137 4216 laiiltoa-Cleves load lamiltoo OR 45014 06138 1561 Sheridan Drive Parma OH 14134 06'/39 1200 laipton Valley load Cary IC 27511 06141 5I41 3061y Avenue I.B. Canton 01 14714 06142 6641 falsetto Street Ciacinnati OR 45227 06/43 3105 podtano Avenue Lettering OR 45440 06145 778 lorthfield load Bedford OB 1110 06/46 1221 Valley Street Dayton OR 45404 06147 931 Maldtte Lane Gastonia, IC 28054 0614s 11309 Fdller load Sousse 11 41041 06149 15820 Van Aken, Apt. i08 Shaker leights OR 44120 06150 2520 Tod Avenue if Warren of- 41485 06/51 2639 Columbia load Westlake OR 44145 06A/19 8305 leatmrwood Drive seater 01 44060 061/19 2315 late Avenue ligbland.leigbts LT 4f076 06B/18 III Broadway Ave. Warren OB 44181 063/34 214l 1. Cedar Lane Atlanta CA 30311 061136 15932 Brewster load last Cleveland 01 4411Z 07/01 16431 Cyjrexs Avenue Strongsville 01 44136 07/03 Route 5 Box 402 Coffeeville IS 67337 07/04 251 Maple Drive Carlisle 01 45005 07/05 8463 Corlee Lane Middletown 01 45042 07/06 8709 lhisperimg Willows lay . West Chester 01 45069 07107 1123 Fergus Drive leavercreek OI 45430 07109 4187 McCleaa Drive Cincinnati OR 45255 07109 828 Towsship.Rd 179 Bellefoataine 01 43311-9407 0711D 2525 .Clearwater Lane Painesville- 01 44077-9020 07/11 20D Nation Drive Wilmington 01 45177 07/12 2965 Zehiing load Farmersville Of 45325 07113 1645 Garrett Drive gotten 01 41203 07/14 3069 lanchfield Drive. leovercreek 01 45432-2610 07/17 2414 Ashdale Drive Twinsburg .. 01 44087 07.118 7176 loneywood Court Cincinnati 01 45230 07/19 7903 Ball Farm load Louisville 17 40291- 07/22 6375 Rildearness Trail West Chester 01. 45069 07123 4873 Victoria Chase Court Jacksonville FL 31257 07/21 18 loith Street Treatox 01 45067 .07/25 3696 Vineyard Ridge Cincinnati 01 45241 07/26 3011, Iflton Road Middletown 01 4SO42 07127 26 Ironwood load, PO Box 157 Westfield Center, OB 44251 07128 31 Idge Wood Drive lorricine' IV Z5516-9218 07/29 3201 Cranwood Dorton 01 . 44203 07/30 15915 Chardoa Windsor load lontsbarg OR 44046 07/31 7599 Ridden Acres Drive Medina 0H 14256 07/32 197a7 ■-- a-_ n___. -. .. .._ Marsh Barbour Golf I Yacht Club Owners as of,6/28199 Sorted by OAit/leek lumber HANB ------------------------ STREIT ------- --------------------- CITY STATE ZIP OIIT/TREK Kenneth L. Putma.Jr. ' 9%►oodstock --------------------- Eastlake - ----- OR ---------- 44095 --------- 07134 Stan Dearing 1507 18th Street 11 Canton OB . 44703 07/35 Jack I Othadell Bigha 19381 Fairmount Boulevard Shaker leights Of 44118 07136 Darryl I Susan Gaines 7362 Derby Drive Hamilton ON 45011 07137 Janet likely 5806 Gander load last Dayton Of 45421 07138 Carlotta lailey-Worthy 2239 polo Park Drive Dayton 03 45439 07/39 Theodore Blathers 6011 Sierra Street Cincinnati Oh 45227 07140 Alice Martina 7171 losbrook load Cincinnati 01 45243 07/41 Clifford a Paola Singleton 374 Robert Simmons Drive Carlisle 01 45005-3140 07/44 Richard I Beverly lalthall - 1919 lolepafh Court Centerville, OR 45459 07145 Carlos Tipton 1276 Jeremy Court Forest Park Of 45240 07/46 George Kelly ledgeaaa 6142 byckenhar Drive Indianapolis II 46236 07/47 Emory i Regina Livers Jr. 1551 lorthwood Drive Cincinnati OR 45237-2722 07/48 Larry R Theresa Cornett 3055 Lytle load Waynesville OR 45068 07/49 Michael I Luana Ryan 51 Virginia Avenue Ft, litchell KY 41011 07150 Arthur Atkinson 506 Rdalbert Drive Cincinnati Oh. 45219 07/51 Lawrence A Donna Suter, Jr. 120 Market Street, Apt 3 law Richmond 01 45157 07152 Joan Gitffreda 4092 Isle Circle BI Massillon OB 46646 08/01 Kristine A. Rankin Brunk 1449 Alameda Avenue Lakewood 01 44101. 09103 Karen Bowling 338 Pagett Drive, Germantova 03 45327 08105 John I Shirley Ford 265 Tanyard lead Yellow Springs Oh 45387 09106 Ready Slabach A Brace Geiger 9573 Fair load Strongsville ' OB 44136 08/07 Dr. Robert Brooks . 6720 Sandy look Drive Parma ON 44134 08/08 Jesse I Carolyn Roberts 601 Rosamond Drive Dayton 01 15417 03109 Donald A Joyce laffenberger 16239 State load 148 Aurora If 470D1 08/10 .Ronald I Marjorie Van Aernea 2265 lenstemoa Wichita IS - 57226 08/11 Stephanie Penn 505 Franklin Avenue Realm OR 45385 08/12 Robert I Marilyn Roster 3741 V. 133rd Street Cleveland OR 44111 08/13 Kevin ]and Lisa I lenley SOD last ,page Street Orlando FL - 32806 03115 Anton I Susan Torsic 87 Maple fill Drive Chagrin Falls 01 44022 08/16 Scott littinger 16 South fail Street Camden 01 . 45311 08/17 C. 8ogene and Martha 1. Thrall 194 Cattle Blvd. Akron 01 1013 08/18 William I Joyce Vbite 11106 Maiden Drive Bowie- ID 20715 08/19 Victor J. i Anna Biro 6626 Deechwood Drive Independence OH 44131 08/23 Ralph I Beth Katerberg 1005 Imrbnq Drive Cincinnati OR 0221 09124 Robert A Diane Vorbroker_ 'Albert 4537 Vesley Court Mason Of 4i040 08/25 I Judith Beckman 6120 Sbadyglea• Cincinnati 01 45243 08/25 Edward I Mary Lou Flues 108 lotrsDame Circle Elyria OR 44035 08/27 Gregory Cecere 2389 Apricot Drive Beavercreek 01 45431 08128 Harold Crider 1425 leathrow Court Milford OR 45150 08/29 David I Christine Keller 4807 Chalet Irive Cincinnati Of 45217 08/30 Philip Stith I 1 13669 latnn Fart Iew,Lebance 01. • 45345 03131 Travis C. I Ellen looter 14365 Mayfield load luatsbarg 01 44046 08/32 Peter Mil I Nei lei Tang 2671 Greta load Shaker.leights 01 44122 03133 Charles A Barbara Sealer '" 239 Fraol@y Blvd. Jefferson 01 44047 08131 John S. Conner 9748 Brwahwood Lane Strongsville Of 44136 08135 Mark Eilermaa, it. Post Offfde Doi 451 Arcanum _ Oh 45304-0457 08/38 largiree I Avis Latimer 1413 Ckerry Street Etteasion Pendleton SC 29670 08/39 Niltoo A Faith Finkes 6040 Tyletsville load Vest Chester 01 45069 08140 Ralph levin I Linda Beetlestene Id 1 Box 206 - Nonangabela PA 15063 08/41 Arthar.A Frances Vogel 81 Castle Drive Munroe Falls 01 14262 08142 leari Batter 7016 lailey load Cincinnati 01 45244 08/43 Nary Louise [cloth 34565 Sherwood Drive Solon 01 44139 08144 Charles Loudermilk 3225 Brableaood Drive - Broadview [eights of 44141 08145 Joseph I Camelia Richardson 736 South State Street 741 _ Lebanon 01 45036 08116 .Chris Conner c/o lobert L. Seeley, 761 Niaisbarg-Centerville Rd Centerville OR 45459 08141 Esq James -I Salle araeatt 1191 ------ garsh Barbour Golf A Yacht Club Owners as oP6128/99 Sorted by Unit/Peek limber TANS STREET CITY STAYS 1U UIIY/TBBR Josef A Magdalena lagy 8791 Broadview load Broadview Heights . OR 44141 08/49 Christopher A Sharon Talker 622 les.lock Drive Coraopolis PA 15011 08/50 Villiam A leta Ann Pender 551 Deptford Avenue Dayton 01 45429 08/51 Salvador A letta Saucedo 6250 Paine load Leroy township_ 01 14077 .08152 Eleanor Smith 2361 last 76th Street Cleveland OR 44104 09101 James Carmigiano 7333 lodgson load Neater Oh 44060 09/03 Deborah Schultz Post Office Box 23005 Chagrin Falls OB 14023 09101 Douglas Dodge 5452 Voodside load Mentor - 01 44060 09105 James A Gwendolyn leeks 1530 labbitt load luelid OB 44132 09/06 Tillie A largarette loss - 611 Amos Street Daytoa 01 45407 09107 Blizabetb Vilson 5573 Calais Drive Springfield 01 45503 09/08 Cecil A Doris Van lore 2638 South Graham Circle Akroa 01 44312 09109 Dennis Conrad 6119 Pebblebrook Lane forth Olmsted 01 44070 09/10 G. J. Elliott P.O. Box 15252 Locust Pike Latunii NY 41015 09111 Linda A Pin Bottel 15970 I.ISt.1d. 84, Suite 205 sunrise FL 33326 09/12 Larry Cole 118 Idlesood Drive Covington KT 41017 09113 Vayne A Marie Graves 526 Stubbs mill load Lebanon 01 4SO36 09114 Prances Thite 608 Rise& Street Akron 01 44306 09115 Nike Stein A Thomas Rosenbaum 8555 Coolmood Court Cincinnati 01 45236 09116 Thomas S. Darns 1525 Inds Avenue Dayton 01 45410 09/17 Allan Cole 5207 Orchard Park Drive Parma Of 44134 09/19 Leroy A Boris Addis 10496 Woodville load Blanchester Of 45107-1212 09119 Michael A Sheila Connell 13870 Donald Drive Brookpark 01 4N42 09/21 Frederick Barley, Sr. 5146 Jacket Drive Dayton 01 45418 09125 Kehrgaa Sokbandan A Ali 3I Weatherby Drive Greenville SC 29615 09/26 Kirmiran-Yazdy Donee lolb A Richard Jones 20925 Byron load Cleveland 01 44122 09121 Peter lfbu 5276 Case Avenue Lymhurst of 44124 0912 James Brown 10708 Cooatry Talk Court Dayton 01 45458 09/30 James A Bonita laffit 7701 bills Drive lentor-DO-Tbe-Late 01 64060 09/31 Jessie A losenary Robinson 16608 Valdes Avenue Cleveland 01 44128 09/32 Patricia latter A Charles Kmkmla 6671 Shannon Lane mentor 01 14060 09/31 Kilos A Nariaafte ?Oskar 5970 Deering Avenue Paris Heights 01 14130 D9139 Lei A Lynn latchesoo 200 Ashley Drive' Tullahoma TV 37388 09/40 Grover A lelea Crayton `540 Douglas Drive Bay village ON 44140 DWI left and Joan Carlozzo 33511 Lisa Lane Solon 01 44139 09/42" Dorothy Thorne A Villiam D. 7622 Fars. View Circle, R Indianapolis II 46256-1991 09/43 Smitherman . Randy A Cynthia.laby 481 Dogwood Street, C-76-4 Hodson IC 28638 09/45 Villard A Joan Leforce 4621 Carr load lillsboro OR 4513378819 09/46. Villiam lobabiy 936 Sycamore Roods Drive Tipp City Of 45371 09/47 Grant A L. Sue Grundy 13321 Greenwich load Sullivan 01 . 14880 0914E Josh and Tilde Pine 12301 Ririe Avenue Cleveland of 44111 09/49 Bernadine lovalebia 215 17th Street IV Barberton. 08 44203 09/51 Frank aid Audrey Keleznik 9530 Cove Drive 129C forth Royalton -01 44I33 09/52 Kathleen Risen 9013 Oak Drive Loveland OR 45140 10101 Edward J. Hogan A June A. Hogan 14037 South Cheswick Drive Orland Park IL 60462 10/03 Henry A Judy Groves 3723 Rest lopevell Road Koltun 11 47023 10/04 Charlise C. Baker 19200 IeCracken load maple Beights 01 44137 10/05 Donald A Carole Shipps • 11650 Hanover load Cincinnati 01 .45240 10106 William A Norma layeout 6272 Doral Drive IV Canton 01 14718-4015 10/08 Robert A Patricia Morgan 245 Caledonia Avenue _ Fairlawn 01 4333 10/09 Ralph A laze] Russell 32SO Pebblebrook Line Cincinnati 01 45251 10112 Kirstiae Fugate 2 Pine Island load Myrtle Beach_ SC1- 45005 10/13 Jeff Brannick 4402 Towhee Drive IV. Gig larbour IA 98332 - 10114 Robert A Gladys Irvine 1191s Westgate Circle Overland Park NS 66213-2219 10/16 Peter P. and Lillian Tovtin 4574 Park Edge Drive . - Fairview Part OT 44126 10(17 . nanald x nln.ie Uhl �m e..Li-_ .._._.. _.. . . •Iarsb Iarbcur Golf A Yacht Club Owners as.of: 6/28199 Sorted by Unit/leek lumber BASE ------------------------------- STREET --------r-------------------- CITY STATE ZIP DillIVIBK William i Gail Snider 2399 Creednore Court ---------------------- Burlington ----- IT ---------- 41005 --------- 10119 Donald Lee & Carolyn Saber 6055 Taylor Ridge Drive Westchester OE 45069-1989 10130 Carl Gibson Jr. 245 layer Street Dayton 01 45407 10144 Michael & Sharon Donahoe 308 Wyndham Avenue High Point IC 21265 1045 Tay Schwithorst-Abbs i Janet 857 Cannes Court Loveland 01 45140 10146 Revlon Yvonne Leffingvell 539 1 5th Street Brookville 11 47012 10147 Glen B. 1 Lisa L. Varner 691 Clark Drive Talloadge 01 44278 10148 Timothy I Cecilia Ovens 185 Selair Circle Florence it 41042 10/19 Pinckney i Lyon Webber 3643 Janesville Lockhart ivy Voice SC 29379 10/50 Robert i Shavoa Lynch 5181 Brandywine Lane Milford 01 65150 10151 Robert i Mary Greene 5726 Iraqlble Cincinnati OR 45227 10/52 Henry i Barbara Villiams 1159 Crolden' Lyndhurst 01 44124 11106 Cords lie lose 8750 IT 45 Booth Orwell 01 44076 11/07 Kenneth & Dorothy Rullenix glee Creaser load Orwell 01 41076 11108 Charles lukola & Patricia letter 6671 Shannon Lane lector „ 0f 44060 11109 Robert A. Swats 6018 lea dov Vood Drive Madison 01 44051 11110 S.Piech�6, Caleman�6. lees 313 Kirkwood Drive Chapel Bill IC 27514 11/11 Darrell & Brenda Gray 8308 Chester Parkway Cleveland 01 44103 11112 lormaed A Maureen Richard 507 tower Drive Jacksonville IC 2B546 11/13 Charles Lytton 501 Baehtel Street BE Korth Canton Of 44720 11/14 George and Trudy leasell 4.Sue Asn Court Durban IC 27704 11144 Robert and Linda Gordon 141E Cleasiord Court Virginia Beach, VA 23456 11145 Karcia 1. ialata 14965 Royal Ridge Lane forth Royalton 01 14133 11/46 Anthony & Parthecia Powell 100 Dumas' load, PO Box 81 Granite Quarry RC 28072 11147 William Smith & lealie 3199 Vhithora load Cleveland Heights OR 44118 11/50 Mclaney-Saith Henry i lane? Sawyer 210 West Rollins Street Marion SC 29571 11152 Daniel lodgers i Hattie Tidmore 10515 Garfield Avenue Cleveland . OI 44108 12/01 James i Denice liebols 3716 Sugar Spring load Gastonia . IC 28054 12103 lugh G. Gainey 51945 Lake Knoll Court Cringer, II 46530 12104 Dennis L. Russell I Renee A. 10091 Elliman load Mantas - 01 44255 12106 Russell Sbirley Kitchell 1602 lynadotte Lakewood 01 44107 12i07 lick & Jane Columns 3468 Ialvero Drive Brunswick ON 44212-1308 12108 Louis i Carol Saying 419 Scorpio. Kissioe T1 . 78572 12/11" Bdvard S. lovalik 9945 Jo&sn Place Twinsburg 01 44087 12112 Andrew I Myrna Knell 305 Loeelind Court Fayetteville IC , 28311 12/13 Levi & Shelley Binds 725 Siady;Ford load It. lolly IC 28120 12/15 Richard G. Belzer 319 Wilson Rills Chardon 01 44024 . 12/19 Karen 1. lotbatein Love 6605 Nana Court hector Of 44060 12/25 Albert and Judith Beckman 6120 Shadyglen Cincinnati 01 45243 12J26 Richard & Barbara Terlep 9735 1. lortkwood Drive Olmsted 01 44138 12127 R/I Kirkpatrick/Peggy laesler 273 Sunrise Drive Amherst OR 44001 12/28 Albert & Gwendolyn Edwards 23500 Lawrence load Warrensville Heights Of 44128 12/30 Robert I Judith' Vellert . 7436 Sear Swamp load ladsworth of 41281 12131, Roger Manse 6041 Stieeirood Avenue SB last Sparta 01 . 14626 12132 James i Sheila Viggias 214 Chris Court Garaer IC 27529 12/42 Gordon i Linda Cook . 5045 Bavarian Circle Port Kill ' SC 29715 12/44 Douglas i Barbara Yochum 10150 Atchison load Dayton Of 45458 12147 Rochelle B. Iclorton 14304 Darvin Avenue Cleveland 01 44110 12149 Cleveland i Laurie lippons 153 West Cedar Street Jefferson Of 44047 12151 Edward & Katherine Stenger 9146 Doorel load , Brookville II 47012 13101 Larry Byers ". 4806 Stoneybrook load Cincinnati- 01 45244 11/03 David I Colombia Salinas 5508 Wellesley Avenue. forth Olmsted 01 44070 13/06 Diane Scott 25 Sigh Street Talton IT 41094 13/07 Thomas I Patricia Boland It 2 Box 89 Cynthiana ly 41031 13/08 Richard & Thalia Jnnes 7715 u.a, Marsh Harbour Golf I Yacht Club Owners as' of 6/28199 Sorted by 0ait/Yeek lumber IAKR STREIT CITY STATI ZIP UWITIVIIK James & Patricia Wagner 3339 Illem Avenue ------------- Hebron ----- BY --------•- 41048-9637 ------ 13111 John Trifilio P. 0. Box 31341 Cincinnati OB 45231 13111 .John Trifilio P. 0. Box 31341 Cincinnati 01 45231 13/11 Conrad & Wary Sutherland 4556 191PI Ridge Way Kettering OR 45429 13114 Fulton Barnett Jr. 25011 S; Woodland Beachwood 01 44122 13116 Joseph I Denise Hurosky 3389 Concord Drive Brunswick OI 44212 13119 David B Kathy Iby 3391 Gayheart Cincinnati 01 45239 13128 Robert. Davis 5625 last Dulles Tested AZ B5111 13/40 Vicki Butler 7752 lontgomery Rd. 123 Cincinnati 01 45236 13141 Kenneth B Julia Jenkins PO Box 404 Butler IF 41006 13144 Diana.WcGlone 2 Blue Ash Circle Dayton IT 41074 13/45 Gregg I Deborah Glaser 1413 Plait Drive Bamiltoo 01 45013 13/46 Coarade A Marion linds 1417 Glendale Avenue Dayton 01 45406 13147 Joseph I Shirley Powell: 4595 Todd load Franklin . 01 45005 13149 Robert B Loretta Jennings 20769 Boiling Green laple leights 01 44137 13/50 Daniel aad,lathleen Chapaaar. 3895 Swallea, Is Louisville OR 44641 13152 Joseph I.I. Philippon 40 Kinnear Avenue lemingtoo Cr 06111 14103 George A. & Margaret I. Sheba 6027 Bagel hvenue Cleveland 01 , 44127-1742 14104 Steven Farhat 1691 S. lain Street Akron Oh 44319 14105 Zella I Anthony Paiotti 4339 Ckuich load Urbana 01 43078 14/06 Alexander & Sherry gaeDonald Po Box 17 Guysboroogh, low. Scot Cl 109 110 14107 Dora"lonaker 11902 Leroy Avenue Cleveland OR 44135 14/08 Douglas I Susan Burbidge RI 1 sox'84 Toronto, Ontario Cl LOJ 1CO 14113 lark I fathleen Dove 1030 lest ?over Avenue Cincinnati 01 45236•, 14/15 Jerry & Judy Hudson ) Lake Street . ladin IC 28009 14/19 Ronald B Vanessa Obie 502 Korth Rotary Drive High Point IC 27262 14/26 Masao Berne B Janet Butler .351) lariick Drive Greenville IC 27858 14/27 Gradmon I largaret Boling 34171 Suimerset Drive Solon 01 44139 14130 Kichael i larilye lain 3612 leadow Avenue Cheviot 01 45211 14/32 John leery & Peggy Williamson It 2 loz 103 . Seagrove IC 27341 14/40 Bob Allen 409 Kaplevood Circle Trenton 01 45067-9703 14144 Barry Man 6300 S. Perkins load Bedford leights " 01 44146-3156 14/45 David 1. & Anna L. Smith .3506 Washington Blvd. University leights 01 46118-2611 14r46 Gordon & Patricia Surbidge 111 1 : Orangeville 01 L9WZYB 14/47 Lawrence & Gregg lartman 11776 tinkers Creed load Valley View 01 44125 14148 Larry i Deanna Stoffer 11581 State It 9 Kensington 01 44421 14/49 David & Slleo Domin 13609 falhleea Drive Brookpark 08 44142' 14/51 Timothy &-Sherry liederkorn 6988 Weatherby Drive lector 01 44060 15/01 John I Juanita Shimandle 2053 Galilee Oval liackley 01 44233 15/03 lark & Jacqueline lass 12223 Dorton Drive Chesterland 01 44026 15/04 Joyce Cyrus 3694 Sandhill Shaker ]eights OD 44122 15/05 Jane & Charles Hales 19204 layfair Lane Warrensville leights 01. 44128 15/07 Tim I Shelly TramplJaaette 5870 Uppef Finley load Dyersburg TI 38054 ISf08 Rumpolick Ronald I See Carey 7910 Laura Ave, IV lassillion " Of 44646 15/13 Dwight i Sandra Davis 923 Winona Rd Raleigh IC 27609 15/14 Garry I Linda Guard 31 Congress Green lorthbead OR 45052 15/22 Garry I Linda Guard 31 Congress Green lorthbead OB 45052 15124 Dennis & lita Waster 28130 Cannon load Solon OI 44139 15/29 Robert I Dianna Kanzig 6492 Fry load Brookpark Of' 44142 15132 Diana N. Redman, 494 Belmbright Drive Gabanna' 01 43230-4396 15144 Brian and Shannon Caxpoe 43749 Raleigh Place Ashburn VA 20147 15145 Robert 5 1 Lenore Lembo " 626 Gloucester Drive lighland leights 01 44143 15149 Shannon Lee Perry , : 1137 Country Club load Jackson • . 01 45640 16/01 Kidstar Tech Inc.►Kiroa'lalinar 3023 Russell Ave Cleveland 01 4AI34-1939 . 16107 . James"& Freda Idwards 102 lorth toy street Gastonia IC 28052 16108 George & Imogene Drake. 20615 Ialifax Rd larrensville OR 44122 16�1611 0 Rick and Victoria Carter sus Rv;.. �o.... ,:__ _ Marsh Harbour Golf 6 Yacht Club Owners as -of• k/28/99 - Sorted by Unit/leek lumber BARB ---------------------------------- ----------------------------- STtIBT CITY STATS LIP DNIT(168K Robert l Catherine Brocioos 8780 loivoad Drive ---------------------- lentor ----- OS ---------- k4060 --------- 16117 Regina Perrine 1507 18th Street 11, Apt 12 Canton 01 kk703 16/27 Joan Crayton/Archie Price 9011 Scott Street Springfield VA 22153 16132 C. Thomas B Nary Bell 580 lolfpee Pleasant Hill Rd Milford 01 45150 HAS Roberti Lunette Krivoi Jr 6607 Barton load Borth Olmsted ON 14070 16/50 Jongsak i June Lee Chay M.21 Oderaft Trail Lasriaborg IC 28352 16151 Covet: 516 ---------------------- ----- ---------- --------- STATE OF NORTH CAROLINA ) IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF BRUNSWICK ) CASE NO: MARSH HARBOUR GOLF & j YACHT CLUB INTERVAL ) ASSN., INC AND GOLF COAST ) REALTY INC., ) Plaintiffs, ) vs. ) THE TOWN OF CALABASH, ) NORTH CAROLINA" MARSH ) HARBOUR RESORTS, LLC, AND ) OCEAN HARBOUR GOLF LINKS, ) INC. j ) Defendants. ) r—Ls �IN(2 / c< �N v HOTEL/ CONVENTION CE R C PROPOSED POND STATE OF NORTH CAROLINA COUNTY OF BRUNSWICK EXHIBIT b r it IN THE GENERAL COURT O t i. 17c 3 VPERIOR COURT DIVISION 00 C,,S 1033 MARSH HARBOUR GOLF & YAK' j INTERVAL ASSN., INC. and GOLF COAST ) REALTY INC., 1 Plaintiffs ) Vs. ) ) THE TOWN OF CALABASH, NORTH CAROLINA, ) MARSH HARBOUR RESORTS, L.L.C., and OCEAN ) HARBOUR GOLF LINKS, INC., j Defendants. ) MOTIONS AND ANSWER TO PLAINTIFF'S AMENDED COMPLAINT NOW COMES the defendant, TOWN OF CALABASH, by and through counsel of record responding to the Amended Complaint of the plaintiffs' saying and alleging as follows FIRST DEFENSE The Amended Complaint of the plaintiffs' fails to state a claim upon utuch relief can'be granted and should be dismissed pursuant to Rule 12(bX6) of the North Carolina Rules of Civil Procedure. SECOND DEFENSE The Amended Complaint of the plaintiffs' should be dismissed pursuant to Rule 12(bX1)• . THIRD DEFENSE Defendant,- Tostin of Calabash, move to dismiss pursuant to Rule 17(a) of the Rules of Civil Procedure in that Plaintiff's are not the owners of the affected real propert) and not the real party in interest. FOURTH DEFENSE (Sovereign Immunity) At all times applicable to plaintiffs' Complaint, the defendant, Town of Calabash, Has a municipal body acting in the exercise of a Governmental Function and hereby pleads any and all applicable Doctrines of Governmental Immunity in bar of all or any part of the plaintiffs' pendant State claims. FIFTH DEFENSE (Legislative Function) At all times applicable herein, defendant,.Town of Calabash, was performing a legislative function pursuant to N.C.G.S. § 168A-381. Defendant Town of Calabash asserts the performance of the legislative function as an affirmative defense in complete bar of plaintiffs' action. SLITH DEFENSE . (Standing) Plaintiffs' have failed to forecast any evidence that they- suffered disttnct.damages from the rest of the community and therefore lack the standing necessary to bring this claim SEVENTH DEFENSE (Statute of Limitations). Defendant, 'town of Calabash, asserts and pleads in bar to this action and• and all applicable statutes of limitations. ANSR`ER 1.. Responding to the allegations contained in Paragraph 1 of the Plaintiffs' Amended Complaint, it is admitted upon information and belief that Marsh Harbour Golf c& Association, Inc. is an association of owners of property located in the Town of Calabash, in the community of Marsh Harbour Golf & Yacht Club. It is further admitted upon information and belief that Golf Coast Realty, Inc., is a corporation organized and existing under and by virtue of the laws of the State of North Carolina. Any and all other allegations contained in Paragraph 1 of the Complaint not herein above specifically admitted are denied 2. Responding to the allegations contained in Paragraph 2 of the Plaintiffs' Amended Complaint, it is admitted that Defendant Town of Calabash is a duly incorporated North Carolina Municipal Corporation. Any and all other allegations contained in Paragraph 2 of the Complaint not herein above specifically admitted are denied. denied. 3. The allegations contained in Paragraph 3 of the Plaintiffs' Amended Complaint are. 4. As to the allegations contained in Paragraph 4 of the Plaintiffs' Amended Complaint, the Defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. S. The allegations contained in Paragraph 5 of the.Plaintiffs Amended Complaint are either admitted or denied as herein above stated . 6. The allegations contained in Paragraph 6 of the Plaintiffs' First Cause of Action purport to be a statement of law and requires no response. To the extent the allegations contained in Paragraph 6 could be construed to assert liability on behalf of this answering defendant, those allegations are denied 7. As to the allegations contained in Paragraph 7 of the'Plaintiffs' First Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 3 denied. 8. The allegations contained in Paragraph 8 of the Plaintiffs' Frost Cause of Action are 9. Responding to the allegations contained in Paragraph 9 of the Plaintiffs' First Cause of Action, it is admitted that on July 26, 1999, the Board of Commissioners for the Town of Calabash held a special meeting wherein certain property was re -zoned from R15 and PUD to PUD. The remaining allegations contained in said paragraph do not pertain to this answering defendant and are, therefore, denied 10. The allegations contained in Paragraph 10 of the Plaintiffs' first Cause of Action are denied. denied: 11. The allegations. contained in Paragraph 11 of the Plaintiffs' First Cause of Action are 12. The allegations contained in Paragraph 12 of the Plaintiffs' First Cause of Action including subparts A through J are denied. denied. denied. 13. The allegations contained in Paragraph 13 of the Plaintiffs' First Cause of Action are 14. The allegations contained in Paragraph 14 of the Plaintiffs' First Cause of Action are 15. The allegations contained in Paragraph 15 of the Plaintiffs' First Cause of Action including subparts A thru G are denied_ denied. 16. The allegations contained in Paragraph 16 of'the Plaintiff's First Cause of Action are 17. The allegations contained in Paragraph 17 of the Plaintiff'sAmended Complaint are 4" either admitted or denied as herein above stated. 18. As to the allegations contained in Paragraph 18 of the Plainnffs' Second Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to foam a belief in the truth or falsity thereof and therefore, denies the same. 19. As to the allegations contained in Paragraph 19 of the Plaintiffs' Second Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 20. As to the allegations contained in Paragraph 20 of the Plaintiffs'. Second Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 21. As to the allegations contained in Paragraph 21 of the Plaintiffs' Second Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 2.2. As to the allegations contained in Paragraph 22 of the Plaintiffs' Second Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 23: The allegations contained in Paragraph 23 of the plaintiffs' Third Cause of Action are not applicable to defendant Town of Calabash and therefore are denied 24. As to the allegations contained in Paragraph 24 of the Plaintiffs' Second Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 25. As to the allegations contained in Paragraph 25 of the Plaintiffs' Second Cause of 5 Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 26. The allegations contained in Paragraph 26 are either admitted or denied as herein above stated. 27. As to the allegations contained in Paragraph 27 of the Plaintiffs'. Third Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 28. As to the allegations.eontained in Paragraph 28 of the Plaintiffs' Third Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity thereof and therefore, denies the same. 29. As to the allegations contained in Paragraph 29. of the Plaintiffs' Third Cause of Action, the defendant, Town of Calabash, is without sufficient information so as to form a belief in the truth or falsity.thereof and therefore, denies the same. WHEREFORE, having, fully answered the Amended Complaint of the Plaintiffs', the Defendant, TOWN OF CALABASH respectfully prays the Court for the following relief L . That the Plaintiffs' action against this answering Defendant be dismisses, 2. Plaintiffs' have and recover nothing of this answering Defendant; 3. Costs of this action, including reasonable attorneys fees be taxed against the Plaintiffs; and, 4. For such other and further relief as the court may deem just and proper Respectfully submitted this the day of 2W2. B. Iichael R. Ramos Attorney for the Defendant, Town of Calabash NC State Bar No. 10494 RAMOS AND LEWIS, L.L.P. Post Office Boa 2019 Shallotte, North Carolina 29459 (910) 75.1-7557 CERTIFICATE OF SERVICE This is to certify that I have this day served J. Dwight Hudson, Attorney for Plaintiffs, of 1203 48th Avenue North, Suite 111, Myrtle Beach, South Carolina, 29577 with a copy this Motions and Answer to Plaintiffs Amended Complaint by depositing in the United States Mail, a copy of the same in a properly addressed envelope with adequate postage thereon, in a manner prescribed byR ule5 of the Rules of Civil Procedure. This the of 2002 By: Michael R. Ramos 7 STATE OF NORTH CAROLINA COUNTY OF BRUNSWICK VERIFICATION JON B. SANBORN, Administrator for the Town of Calabash, being tint duly sworn, deposes and states that he is the plaintiff in the foregoing cause of action and knows the contents thereof, and that the same is true of his oWn knoWedge except as to those matters and things therein stated upon information and belief, and as to those matters and things he believes them to be true. This the /S day of i) I &d,G 2002 (SEAL) ON B. SANBORN, ADMINISTRATOR TOWN OF CALABASH L SWORN TO AND SUBSCRIBED before me this the - day of «� 2002. OFFEMSM Nor9 Cam- &wmick C0 "N ✓t[.,E c. ( SEAL) VICKI L. ARR NOTARY PUBNO ARY LIC LIC My Commission Expires: 031 3o / 6A F e r 6 ^ STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE 2002 JUL 3 0 A 110, 0 7 SUPERIOR COURT DIVISION COUNTY OF-BRUNSWICK 00 CVS 1033 MARSH HARBOR GOLF &YYACHiZ—)'_ CLUB INTERVAL ASSN., INC. ) and GOLF COAST REALTY INC. ) Plaintiffs, ) VS. ) THE TOWN OF CALA13SH, ) NORTH CAROLINA, MARSH ) HARBOUR RESORTS, L.L.C., and ) OCEAN HARBOUR GOLF LINKS, INC., ) - Defendants. ) MOTIONS TO DISMISS AMENDED COMPLAINT BY DEFENDANTS MARSH HARBOUR RESORTS, L.L.C. AND OCEAN HARBOUR GOLF LINKS, INC. NOW COME the Defendants Marsh Harbour Resorts, L.L.C. and Ocean Harbour Golf Links, Inc. (hereinafter collectively referred to as "Corporate Defendants'), by and through their undersigned counsel, and move to dismiss the Amended Complaint filed in this action pursuant to Rules 12(b)(1),_ 12(b)(2), 12(b)(6), 12(b)(7), 17(a) and 19 of the North Carolina Rules of Civil Procedure and upon the grounds set forth herein. MOTION TO DISMISS AMENDED COMPLAINT RULE 12(b)(1) AND RULE 12(b)(6). (PLAINTIFFS' LACK OF STANDING) The Amended Complaint fails to state a claim upon which relief may be granted as to the Corporate Defendants, and the same should therefore be dismissed as to the Corporate Defendants pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure. In Paragraphs 2 and 3 of the Amended Complaint, Plaintiffs allege that they "represent the owners of property interest in the Marsh Harbor community." (Am. Compl. 112, 3.) Further, they allege that the owners are listed in an Exhibit "A" to the Amended Complaint. By their Amended Complaint, Plaintiffs seek declaratory relief regarding the Town of Calabash's zoning ordinances, damages and injunctive relief based upon some type of anticipatory nuisance and anticipatory or "planned" trespass theories. Jurisdiction in North Carolina depends upon the existence of a justiciable case or controversy. Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 544 S.E.2d 821 (2001); Town of Pine Knoll Shores v. Carolina Water Service, 128 N.C. App. 321, 494 S.E.2d 618 (1998). Further, standing of the plaintiff to pursue any case or cause of action is a necessary prerequisite to the Court's proper exercise of subject matter jurisdiction. Peacock v. Shinn, 139 N.C. App. 487, 533 S.E.2d 842, disc. review denied, 353 N.C. 267 546 S.E.2d 110 (2000); Transcontinental Gas Pipe Line Corp. v. Calco Enter., 132 N.C. App. 237, 511 S.E.2d 671, disc. review denied, 351 N.C. 121, 540 S.E.2d 751 (1999). Standing of a plaintiff or petitioner is an absolute and necessary threshold inquiry for this Court "Standing" refers to the critical issue of whether a party plaintiff or petitioner has a sufficient stake in an otherwise justiciable controversy that he or she . may properly .seek adjudication of the matter. Sierra Club v. Morton, 405 U.S..727; 92 S. Ct. 1361, 31 L.Ed.2d 636 (1972). The relationship between standing and the requirement of.a justiciable controversy has been expressed as follows: "Judicial intervention in a dispute is normally contingent upon the presence of a justiciable controversy. Standing is that aspect of justiciability focusing on the party seeking a forum rather than on the issue he wants adjudicated." Bremner v. City &' County of Honolulu, 28. P.3d 350 (Hawaii App. 2001); see Texfi Industries v. City of Fayetteville, 44 N.C. App. 268, 269-70, 261 S.E.2d 21, 23 (1979), affd, 301 N.C. 1, 269 S.E.2d 142 (1980.) ("The gist -2- of standing is whether there is a justiciable controversy being litigated among adverse parties with substantial interest affected so as to bring forth a clear articulation of the issues before the court!). According to the allegations in the Amended Complaint, Plaintiff Marsh Harbor Golf & Yacht Club Interval Assn., Inc. is `.`an association of owners of property located in the Town of Calabash, in the community of Marsh Harbor Golf & Yacht Club." (See Am. Compl. 11.) Paragraph 3 of the Amended Complaint alleges that this association and the other Plaintiff "represent" the owners listed in Exhibit "A" to the Amended Complaint. In theory, an association may have standing to bring suit either as a plaintiff, to redress injury to the organization itself, or as a representative of injured members of the organization. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333,'97 S. Ct. 2434, 53 L.Ed.2d 383 (1977). , In Hunt, the United, States Supreme Court established three prerequisites for an association to sue in a representative capacity: [A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted, nor therelief requested, requires the participation of individual members in the lawsuit Hunt, 432 U.S. at 343, 97 S. Ct. at 2441, 53 L.Ed.2d at 394. The Court expanded on, the third requirement, addressing the significance of the type of relief sought as follows: [W]hether an association has standing to invoke.the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. Id The criteria articulated in Hunt have been applied in several important decisions of the North Carolina Supreme Court and Court of Appeals. See, e.g., River Birch Assoc. Y. City of Raleigh, -3- 326 N.C. 100, 388 S.E.2d 538 (1990) (applying Hunt to issue of whether homeowners' association had standing); Northeast Concerned Citizens, Inc. v. City of Hickory, 143 N.C. App. 272, 545 S.E.2d 768, disc. review denied, 353 N.C. 526, 549 S.E.2d 220 (2001) (citizens' association lacked standing to challenge zoning ordinance where not all members had individual standing to sue); Landfall Group v Landfall Club, Inc., 117 N.C.• App. 270, 450 S.E.2d 513 (1994) (association lacked standing to bring suit because one of its members would not have had standing as an individual to bring action). As applied by the Court, the third prerequisite or prong for representational standing is that "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.," In the Amended Complaint, Plaintiffs are seeking relief solely in a representative capacity and assert that they are "residents and/or property owners and/or adjoining land owners of the proposed development at issue in this action ...: ' (See Am. Compl. 17.) Plaintiffs' representative claims deal with zoning, nuisance and trespass. In evaluating Plaintiffs' claims and the remedies sought to determine whether any of the association's members are necessary parties to the suit, the Amended Complaint alleged that the Plaintiffs, apparently speaking of all of those parties listed in Exhibit "A" to the Amended Complaint, "have suffered and will continue to suffer special damages, separate and distinct from the remainder of the community" (Am. Compl. 115), "will be irreparably injured ... and.ask ... monetary damages ... as will compensate them for the substantial harm" (Am. Compl. ¶ 25), and "an award of damages ... to compensate them for the real and substantial damages which the corporate Defendants planned trespass onto their property ..." (Am. Compl. 129). Faced with an almost identical case in Creek Pointe Homeowner's Association, Inc. v. Rapp, 146 N.C. App. 159, 552 S.E.2d 220 (2001), the Court of Appeals stated: -4- the suit seeks th Hunt contemplated ated situations compensatory and punitive money d ages, while sou t. m which only injunctive or declarative relief was The calculation of damages would homeowners' individual circumstances. Plaintiff Kre consideration of the require actually Prevents access to part of his land- mer alleged that the fence the fence reduced the value of his ' another homeowner might or prevented the use of the road itself pew' spoiled the view from the Or Port rch, An organization generally lacks standing to sue for money behalf of its members if the membershi damage claims are damages on p, not shared equally, so that the fact and not common to the entire individualized 197). proof. Warth v. Seldin, 422 U.S. 490, 95 Snt of injury nju 45 L ld.re uir (1 mbe `[Mhere an association seeks members43 , the extent of in' to recover damages on behalf of its the distribution of anJurY to individual members and the burden of supervising association.' Y recovery mitigates against ��g standing ther S.E.2d 538, 5 5l (1990) (� Associatesrch v City of Raleigh 326 N.C. 100, g 30, 388 lacked standing wham it sought for its holding that homeowners' gh money es associiaahison `Indeed, courts have routinely held that associations or some f i s members). monetary relief on behalf of thee members.' Green Spring Health Services,- Inc, bring claims for Pennsylvania Psychiatric Society v (W.D.Pa. 24 March 2000 . F.Supp• 2000 WL 33365907 plaintiffs would call for 'individualized case d proof any monetary damages owed to common to all. The financial ualized Proof, and would not necessarily be association could v Pact of the fence upon various members of the vary from significant to minimal. Therefore, we find that the necessary to' the suit Consequently Participation of individual homed lacked standing, ria;, We hold that the homeowners' wheat LS g, under the criteria articulated in Hunt and followed in association cases; to bring suit as the representative of individual m subsequent Creek Pointe Homeowner'stlss' embers °f the association. Inc, v. HaPP. 146 N.C. A Based upon the foregoing authori Amended Complaint pursuant to Rulty, Co rporate Defendants move for dismissal of -the es 12(b)(1) and Procedure. -5- 12(b)(6) of the North Carolina Rules of Civil MOTION TO DISMISS AMENDED COMPLAINT RULE 12(b)(1) AND RULE 12(b)(6) (PLAINTIFFS' LACK OF STANDING To INVOKE POLICE POWER OF THE CITY) Plaintiffs have no authority and no standing to enforce the Town of Calabash Zoning Ordinance and/or Subdivision Regulations (hereinafter "Calabash Ordinances'), and Plaintiffs' attempts to do so through this lawsuit must be dismissed by the Court for lack of subject matter jurisdiction to hear such claims, and due to the Plaintiffs' inability to assert such claims. The power to zone is vested in the North Carolina Legislature as the supreme legislative body of this State under Article 11, Section 1 of the North Carolina Constitution.. See Redevelopment Comm'n V. Security Nat? Bank 252 N.C. 595, 114 S.E.2d 688 (1960). The power to zone is the power . originally vested in the General Assembly to legislate with reference to the use which may be made Of land and the structures which may be erected or located thereon. Keiger v. Winston-Salem Bd of Adjustment, 278 N.C. 17,179 S.E.2d 616 (1971). Municipalities and counties have been delegated the police power to zone. See In re Ellis, 277 N.C. 419,178 S.E.2d 77 (1970). A city is entitled to all of the remedies authorized by the enabling statutes and implemented in its ordinances. See Town of Pine Knoll Shores a Evans, 104 N.C. App. 79, 407 S.E.2d 895 (1991), modified, 331 N.C. 361, 416 S.E.2d 4 (1992). The general population is not granted the right to enforce the police power of the State; only government entities have such powers. See Raleigh V. Fisher, 232.N.C. 629, 61 S.E.2d 897 (1950). Accordingly, assuming there is a violation of the Zoning Ordinance and/or Subdivision Regulations, which Defendants deny herein, it is the province of the City to enforce its ordinances. If the City does not do so, Plaintiffs' remedy would be to seek a writ of mandamus against the City to enforce rts Zonng Ordinance and Subdivision Regulations. S.E.2d 572 (1989). F-1 See Midgette v. Pate, 94 N.C. App, 498,380 L- Accordingly, the Plaintiffs cannot maintain a direct action against the Corporate Defendants for enforcement or challenge to Calabash Ordinances, and this Court does not have subject matter jurisdiction to entertain the Plaintiffs' suit for injunctive relief regarding the ' enforcement of Calabash's Ordinance against the Corporate Defendants. "Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction." Aubin v. Susi, 2002 N.C. App. LEMS 190, at * 8 (Mar. 19, 2002). Therefore, Defendants move for dismissal pursuant to North Carolina Rules of Civil Procedure 12(b)(1) and 12(b)(6). MOTION TO DISMISS RULE 12(b)(1) AND RULE 12(b)(6) (PLAINTIFFS' LACK OF STANDING TO ENFORCE COVENANTS) Plaintiffs have no standing to enforce the covenants or homeowners documents applicable to the time share project known as the Marsh Harbor Golf & yacht Club Interval Time Share because . neither Plaintiff is the master association of the project under the Condominium documents. There is no allegation in the Amended Complaint. that the Corporate Defendants are subject to any covenant or condition of the association of which the Plaintiffs allege the persons and entities named in Exhibit "A" to the Amended Complaint are supposedly members. So, - Corporate Defendants cannot be subject to any covenants or rules of the Plaintiffs. See Runyon x Paley, 331 N.C. 293, 301, 416 S.E.2d 177 (1992) ("In order to enforce a restrictive covenant as one running -with the land at law, the party seeking to enforce the covenant must also show that he is in privity of estate with the party against whom he seeks to enforce the covenant'D: Therefore, Defendants move for dismissal pursuant to North Carolina Rules of Civil Procedure 12(b)(1) and 12(b)(6). -7- MOTION TO DISMISS RULE 17(a) AND RULE 19(b) (PLAINTIFFS NOT REAL PARTY IN INTEREST) Consistent with the foregoing issues raised related to Plaintiffs' lack of standing, based upon the nature of the allegations in the Complaint —which allegations Defendants maintain are deficient as a matter of law--4he Plaintiffs are also not the real party in interest to bring such an action against Defendants. North Carolina Rule of Civil Procedure 17(a) provides that "every claim shall be prosecuted in the name of the real party in interest[.]" N.C. GEN. STAT. § 1A-1, Rule 17(a). "The real party in interest is the party who by substantive law has the legal right to enforce the claim in question. More specifically, a real party in interest is `... a party who is benefited or injured by the judgment in the case."' Whittaker v Furniture Factory Outlet Shops, 145 N.C. App. 169, 175, 550 S.E.2d 822, 825 (2001) (citations omitted); see also N.C. GEN. STAT. § 1-57 ("every action must be prosecuted in the name of the real party in interest'). Further, "[t]he court may determine any claim before it when it can do so without prejudice to the rights of any party or to the rights of others not before the court; but when a complete determination of such claim cannot be made without the presence of other parties, the court shall order such other parties summoned to appear in the action." N.C. GEN. STAT. § IA-1, Rule 19(b). The named Plaintiffs cannot possibly suffer any legally recognizable injury as a result of the Corporate Defendants proposed development. See, e.g., Wil-Hol Corp. Y. Marshall, 71 N.C. App. . 611, 322 S.E.2d 655 (1984) (holding that an "aggrieved person" for purposes of standing in a zoning proceeding is one who either owns the affected property or has some interest in such property). Accordingly, Plaintiffs' Amended Complaint should be dismissed under Rules 17(a) and 19(b) of the North Carolina Rules of Civil Procedure. -8- MOTION TO DISMISS RULE 12(b)(7) (PLAINTIFFS' FAILURE To BRING IN NECESSARY AND INDISPENSABLE PARTIES) For reasons citied above with respect to the Motion to Dismiss under Rules 17(a) and 19(b) of the North Carolina Rules of Civil Procedure, the Corporate Defendants move to dismiss the Amended Complaint under Rule 12(b)(7) for failure of the Plaintiffs to bring in necessary and indispensable parties. See Karner v. White, 351 N.C. 433, 440, 527 S.E.2d 40, 44 (2000) ("An adjudication that extinguishes property rights without giving the property owner an opportunity to be heard cannot yield a `valid judgment"); Mize v. County of Mecklenburg, 80 N.C. App. 279,341 S.E.2d 767 (1986) (addressing the real parties in interest in zoning cases): MOTION TO DISMISS RULE 12(b)(1) AND RULE 12(b)(6) (JURISDICTION BAR TO CERTloRARiREvIEw) To the extent that the actions of the Town of Calabash's Board of Commissioners were subject to certiorari review by this Court, the Corporate Defendants move to dismiss the Amended. Complaint under Rule 12(b)(1) and Rules 12(b)(6) of the North Carolina Rules of Civil Procedure. N.C. GEN. STAT. § 160A-381, et seq. See Batch v. Town of Chapel Hill, 326 N:C. 1, 11, 387 S.E.2d 655, 662 (1990). To the extent that any issue in the Amended Complaint is subject to certiorari review, it cannot be heard by this Court in an original jurisdiction --not appellate —action. Plaintiffs have not filed any certiorari proceedings regarding the facts of this case. MOTION TO DISMISS RULE 12(b)(6) (STATUTE OF LEwATIONS) Corporate Defendants move to dismiss the Amended Complaint predicated upon the defense that the issues and objections to the Town of Calabash's Board of Commissioners' rezoning action are barred by the applicable statute of limitations, which includes, inter alia, applicable Town of -9- Calabash Zoning Ordinance and Subdivision Regulations, N.C. GEN. STAT. §§ 160A-364.1 and 1- 54.1, and the common law requirement that review must be made within a reasonable time on certiorari, generally thirty (30) days from the event, approval or actions of the local zoning authority or board. MOTION TO DISMISS RULE 12(b)(1) AND RULE 12(b)(6) (PLAINTuTs CANNOT FILE THEIR INSTANT ACTION IN AN EFFORT TO CIRCUMVENT THE CITY'S STATUTORILY CREATED ADMINISTRATIVE PROCEDURES FOR ZONING AND PLANNING, AND APPEALS THEREFROM) To the extent that Plaintiffs have failed to follow the administrative appeals process for challenging Corporate Defendants' proposed projects, Plaintiffs cannot try to circumvent the City's administrative procedures for zoning and planning —which are prescribed by statute —and bring an ancillary challenge to Defendants' project by seeking an injunction from this Court. See Wil-Hol Corp. v Marshall, 71 N.C. App. 611, 322 S.E.2d 655 (1984); Shell Island Homeowners Assoc. v Tomlinson, 134 N.C. App. 217, 220, 517 S.E.2d 406, 410 (1999) ("An action is properly dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction where the plaintiff has failed to exhaust administrative remedies.'). Case law makes clear that a party cannot combine zoning challenges in the nature of certiorari with other or ancillary claims. In Batch v Town of Chapel Hill, 326 N.C. 1, 1, 387 S.E.2d 655, 656 (1990), the Supreme Court clearly held that it is improper to join certiorari proceedings with a complaint for constitutional' violations and attorney's fees pursuant to 42 U.S.C. §§ 1983 and 1988 and N.C..GEN. STAT. § 40A-8. Accordingly, Plaintiffs' Amended Complaint should be dismissed in its entirety under Rule 12(b)(1) and Rule 12(b)(6). -10- MOTION TO DISMISS RULE 12(b)(1) AND RULE 12(b)(6) (PLAINTIFFS CANNOT MAINTAIN THEIR INSTANT ACTION FOR NUISANCE) Plaintiffs allege that the Corporate Defendants' proposed ,use of, their land under the subject PUD zoning district to construct a hotel complex and parking garage would be an "improper and unreasonable use of the property which will result in injury to the land, property and rights of the Plaintiffs and constitutes a public nuisance." (See Am. Compl. 118.) In the next sentence, Plaintiffs allege that such project will constitute a "private nuisance." Additionally, Plaintiffs allege that the proposed development will constitute a "nuisance per accidens." (Am. Compl. 119.) The general rule in North Carolina is that a plaintiff complaining and bringing an action to enjoin the establishment of ,a lawful business or activity in a proper location within a municipality because plaintiff fears: that it might become a nuisance will ordinarily not be enjoined.. Hooky v. International Speedways, Inc., 263 N.C. 686,140 S.E.2d 387 (1965). Plaintiffs have not alleged any fact or assertion that the proposed development'will be a nuisance per, se. In law, Corporate Defendants' proposed use of their property cannot be a nuisance per se. This issue was answered by North Carolina's Supreme Court during the 1930s. In Holton v. Northwestern Oil Company, Inc., 201,'N.C. 744; 161 S.E. 391 (1931), the Supreme Court stated:, Automobiles are here to stay, and are now generally used for business and . ,pleasure, and it is necessary for the convenience of the public that filling stations and garages be established and "even, in residential , sections of cities and towns they are•held not to be nuisances per se. Hanes v. Carolina Cadillac Co., 176 N.C. p. 351; Brizzell v. Goldsboro, 192 N.C. 348; Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183. In every civilized country it is well settled, with rare. exceptions, that private .property cannot be taken for private purposes and private property can only' be taken for public purposes upork the payment of just compensation. A gasoline station is not, under the law, per sea `hazard.' It -11- might be to some an `eye -sore,' but the law does not allow aesthetic taste to control private property, under the guise of police power." MacRae v. Fayetteville, 198 N.C. at p. 54. The law only deals with real, substantial injuries —De minimus non curat lex. The law does not recognize nervous particularity. Holton, 201 N.C. at 747-48. "The distinction between a.public and a private nuisance is not in the character of the conduct involved but rather the nature of the interest affected." Professors Charles E. Daye and Mark W. Moms, North Carolina Law of Torts, 2°d Ed. § 25.40, p. 420 ("Daye's Law of Torts'). "Conduct that creates a public nuisance affects the rights that a person enjoys as a member of the public, affects the public at large, those members of the public who are exposed to the nuisance, the community as a whole, or a significant segment of the community." Id at 420-21. "In contrast, a private nuisance affects an individual in the use and enjoyment of his private property." Id at 421. "A private nuisance is an act done, unaccompanied by an act of trespass, which causes a substantial prejudice to the hereditaments, corporeal or incorporeal, of another." Holton v. Northwestern Oil Company, Inc., 201 N.C. at 747 (citing Burdick's Law of Torts, 4th ed. sec. 420; Bigelow on Torts, 8th e&, 445). . "An -individual may maintain an action for a public nuisance only if he can establish some damage or injury special and peculiar to himself that differs in kind from that suffered in common with the general pubic." Daye's Law of Torts, supra, at 521. "The type of activity that may be determined to be a public nuisance is anything that threatens life, promotes disease, affects the health of the community, or shocks the. public morals or` religious feelings of a community." Daye's Law of Torts, supra, at 522. Unless otherwise authorized by statute, a public nuisance can only be abated by a proper party. Id. -12, There is no case or statute that provides relief for the Plaintiffs either separately or in a "representative capacity" to abate any alleged or supposed "public nuisance," or private nuisance for that matter, based upon the pleadings —even liberally constructed. There is no statement of facts under the circumstances of this case that gives the Plaintiffs either separately or in an representative capacity any claim for anticipatory damages or injunctive relief for a legitimate, proper and legally permitted use of their land by the Corporate Defendants. Accordingly, the Corporate Defendants are entitled to a dismissal of the Second Claim for Relief of the Amended Complaint predicated upon the tort of nuisance. MOTION TO DISMISS RULE 12(b)(1) AND RULE 121bx6) (PLAINTIFFS CANNOT MAINTAIN THEIR INSTANT ACTION FOR TRESPASS) Plaintiffs allege that the Corporate Defendants' proposed use of their land to construct a 'hotel complex and parking garage in the subject PUD zoning district will be a trespass by virtue of the future "entry, of the noise and pollution." (See Am. Compl. 128.) Such "planned trespass," according to Plaintiffs' allegations, will result "in substantial damages to Plaintiffs and their property, and they, as the Amended Complaint goes, should be entitled to "substantial . damages." Under North Carolina law, the elements of trespass are: 1. Plaintiff was in [actual or constructive] possession of the land at the time of the alleged trespass; 2. Defendant made an unauthorized, and therefore unlawful "entry on the land; and 3. Plaintiff was damaged by the alleged invasion of his rights " of possession [emphasis added]. -13 See Jordan v. Foust Oil Co., Inc., 116 N.C. App. 155, 166, 447 S.E.2d 491, 498 (1994) [citing Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952)]. For a claim of trespass to be actionable, there must be a past trespass event, not an alleged "planned trespass." Where "acts of trespass" are to be redressed, compensation is awarded up to the time of the trial, "but in no case in the one action are they to be recovered after final judgment. Such trespasses are continuous and separate, and no court can look into the future and determine how long they may be repeated or when they will cease." Pearson v. Carr, 97 N.C. 194, 1 S.E. 916 (1887) [citing Whissenhunt v. Jones, 78 N.C. 361 (1878)] (emphasis added). MOTION TO DISMISS RULE 12(b)(2) (PLAINTIFFS' FAILURE To OBTAIN CIVIL SUMMONS FROM THE CLERK) As the record reflects, Plaintiffs' counsel signed his own civil summons to the Corporate Defendants. A civil summons issues only from the Clerk. See Rule 4(b) of the North Carolina Rules of Civil Procedure. By reason of this, this Court lacks personal jurisdiction over the . Corporate Defendants. SUMMARY In summary, the Amended Complaint must be dismissed under the sundry theories, rules of Civil Procedure and citations of authority above discussed. The Plaintiffs as representative parties are not entitled to maintain this action or any stated or unstated claim for relief based upon the facts alleged in the Amended Complaint. -14- PRAYER FOR RELIEF WWMREFORE, the Corporate Defendants pray for relief as follows: 1. That the Court dismiss the Amended Complaint and each cause of action against the responding Corporate Defendants with prejudice; and 2. For such other and further relief as the Court deems just and proper in the premises. Respectfully submitted, This the 29th day of July, 2002. A Attorney for Marsh Harbour Resorts, L.L:C. and Ocean Harbour Golf Links, Inc. 214 Market Street P. O. Box 1347 Wilmington, NC 28402 Telephone: (910) 726-9400 Telefax: (910)251-1773. F CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing MOTIONS TO DISMISS, ANSWER, HARBOR RESORTS, LLC AND OCEAN HARBOR GOLF LINKS, INC. was this day served upon the below -named counsel and parties by mailing, postage prepaid, first class mail, a copy of this pleading to such counsel at the address(es) shown below: J. Dwight Hudson, Esq. HUDSON & GENTRY, LLC 1203 48th Avenue N., Ste. 111 Myrtle Beach, SC 29572 Michael R. Ramos, Esq. ; RAMOS & LEWIS P. O. Box 2019 Shallotte, NC 28459-2019 rL This is the ` 'day of July 2002. I KENNETH A. SHANKLIN, NCSB # 5826 Attorney for Marsh Harbour Resorts, L.L.C. and . Ocean Harbour Golf Links, Inc. 214 Market Street P. O. Box 1347 Wihnington, NC 28402 Telephone: (910) 726-9400 Telefax: (910) 251-1773.; SEP-23-2002 08:52 FROM:RAMOS AND LEWIS 9107546229 TU:9192511773 EXHIBIT 9 STATE OF NORTH CAROA P IN THE GENERAL COURT OF JUSTICE COUNTY OF BRUNSWI K ' 2005Y SEP 23 A%1)8 43 SUPERIOR COURT DIVISION . BRUIt5'v.i. C'.S.C. MARSH HARBOR GOLF & YACHT CASE NO.: 00 CVS 1033 CLUB INTERVAL ASSNJNC. AND ' GOLF COAST REALT)BINe , —• — Plaintiff, vs. I) STIPULATION OF DISMISSAL THE TOWN OF CALABASH, NORTH ) CAROLINA, MARSH HARBOR ) RESORTS, L.L.C., and OCEAN ) HARBOR GOLF LINKS, INC. 1 Defendants. Having been made to appear to the Court that the parties hereto have settled their differences, this matter is no longer at issue. With all counsel of record in this case, consenting IT IS HEREBY STIPULATED by and be the parties that the above -captioned case be, and hereby is, dismissed with prejudice pursuant to Rule 41(a)(1), North Carolina Rules of Civil Procedure, and that this dismissal be and is without costs to any party. fight Hudson, Esq. Attorney for Plaintiffs, Dated: I -12-0Z WE SO STIPULATE: Michael A. Ramos, Esq. Attorney for The Town of Calabash Dated: 9Jao/26- Attorney for Defendants Marsh Harbor Resorts & Ocean Harbor Golf Links Dated: 7 1 9—O L C_\r ry-),. COMPLAINT IN SUMMARY EJECTMENT STATE OF NORTH CAROLINA Brunswick County 1. The defendant is a resident of the county named above. G.S. 7A-216, 7A-232; Ch. 42. Art. 3 and 7 1 2. The defendant entered into Marsh Harbour Resorts,,.LLC Brunswick Marsh Harbour Marina, by serving, Charles E President P 0 Box 4100 Calabash, NC 28467 runswick Inc. Kronenwetter, Andrew K. McVey Murchison, Taylor & Gibson, L.L.P. 16 North Fifth Avenue Wilmington, NC 28401 (910) 763-2426 AOC-CVM-201, Rev. 10199 01999 Adminiv -Ive, of lice of the Courts In The General Court Of .itlstice _ District Court Division-Sinall Claims of premises described below as a lessee.of plaintiff Property known as Marsh Harbour Marina, Inc.er Month Dare Rent Due Date tease Ended R ta ay .. $ per ❑ Week . ❑Oral 0 It'ritren 3. El The defendant failed to pay the'rent due on the above date and the plaintiff made demand for lire rent and waited the 10-day grace period before filing the complaint. ❑ The lease period ended on the above date and the defendant is holding over after the end of the lease period. ® The defendant breached the condition of the lease described below for which re-entry is specified. ❑ Criminal activity or other activity has occurred in violation of G.S. 42.63 as specified below. lesnipt/an 0I 8ieac/r/Giminpl Aetivi ) !give names, dates, places and J/egat activity) - Defendant has breached the lease by failure to pay property taxes as section 7 of the lease and by; failure to properly maintain tiaag prop under section 6:-of the lease. -< 4. The plaintiff has demanded possession of the premises from the defendant, surrender it, and the plaintiff is entitled to immediate possession. •5. The defendant owes the plaintiff the following: S t: F required under rty as requited ca t� •elRed tol N OJ 6. 1 demand to be put in possession of the premises and to recover the total amount listed above and daily rental until.entry of judgment plus interest and reimbursement for court costs. • tI I certify that I am an agent of the plaintiff and have actual knowledge of the facts alleged in thi Complaint. 0 X S W STATE OF NORTH CAROLINA COUNTY OF BRUNSWICK Marsh Harbour Resorts, LLC, Plaintiff, VS. Marsh Harbour Marina, Inc., Defendant & Third, Party Plaintiff . VS. Inlet Harbor Marina, Inc., DeCarol Williamson, Individually and as surviving shareholder, director, officer and agent of and for Inlet Harbor Marina, Inc., Odell Williamson and Virginia Williamson, Third Party Defendants. IN THE GENERAL COURT.OF JUSTICE 9 ; ^',DI$TRl♦ 7=URT DIVISION - SMALL CLAIMS FILE NO: 0Q CVD 156 r )' — --- . ANSWER, COUNTERCLAIM AND THIRD PARTY COMPLAINT JURY TRIAL DEMANDED EXHIBIT . M Defendant, Marsh Harbour Marina, Inc. answering the Complaint of Plaintiff herein, would show unto this Honorable Court as follows: 1. Each allegation of the Complaint not hereinafter admitted, qualified or otherwise explained is deemed denied and strict proof demanded thereof. 2. Defendant denies that it is in default of any terms of the lease as alleged by Plaintiff. FOR A FIRST DEFENSE (Failure to Present or Demand) 3. Each of the foregoing allegations is incorporated herein by reference as fully as though the same were repeated verbatim herein. 4. Defendant and Third Party Plaintiff (Hereinafter, MH Marina) would allege that to the best of its knowledge, information and belief, that the tract leased by it from the Plaintiff is a r portion of a much larger tract and that the Plaintiff has never presented any tax bills to MH Marina showing taxed due for the leased tract. All tax bills for the land are forwarded to the Plaintiff, and no accounting for the said taxes has ever been presented. Further, MH Marina would allege that the Plaintiff has never demanded payment from it of the taxes it alleges to be Past due. MH Marina has demanded presentment of and accounting for the taxes owed and the Plaintiff has failed and refused to comply with this demand. MH Marina stands ready to pay one half of the property taxes Incurred during the term of its lease. 5. MH Marina pleads the failure of the Plaintiff to present tax bills showing the amount due for the leased tract and the refusal of the Plaintiff to present any figures or to demand payment of the same as a full and.complete defense to the action. FOR A SECOND DEFENSE AND A FIRST MOTION TO DISMISS 1 (Failure to State a Claim) 6. Each of the foregoing allegations is incorporated herein by reference as fully as though the same were repeated verbatim herein M.H. Marina alleges that the Plaintiffs Complaint fails to state a cause of action for which relief can be granted under and/or through the Summary Ejectment procedures of the State of North Carolina Inasmuch as the Complaint does not allege a failure to pay rent, nor that the lease term has ended and that MH Marina is holding over, nor that criminal activity has occurred in violation of G.S. 42-63. Plaintiff alleges that MH Marina has breached the conditions of the lease by failing to pay taxes and by failing to properly maintain the premises and alleges that a right of re-entry Is specified by the terms of the lease for these alleged breaches. B. The lease between the parties was attached to the Complaint filed by the Plaintiff and is attached hereto as Exhibit A and Is incorporated herein by reference. The terms of this 2 lease do not provide a right of re-entry for either the failure to pay taxes or the failure to maintain. 9. MH Marina is informed and believes that it is entitled town Order of this Court dismissing the Plaintiffs Complaint for its failure to state a cause of action for which relief could be granted. FOR A THIRD DEFENSE AND A SECOND MOTION TO DISMISS (Lack of Subject Matter Jurisdiction) 10. Each of the foregoing allegations is incorporated herein by reference as fully as though the same were repeated verbatim herein 11. The Complaint does not allege any grounds for Summary Ejectment. It does not allege a failure to pay rent, nor that the lease term has ended and that MH Marina is holding over, nor that criminal. activity has occurred in violation of G.S. 42-63 and, as stated herein, does not state 1 any violations of the lease for which a right of re-entry is specified. Since the Complaint does not state one of the grounds provided by statute as a basis for Summary Ejectment, this Court does not have subject matter jurisdiction over this case. 12. MH Marina is informed and believes that it is entitled to an Order of this Court dismissing this action on the grounds that it does not have Subject Matter jurisdiction to hear the same. FOR A FOURTH DEFENSE, A FIRST COUNTERCLAIM AND A FIRST THIRD PARTY COMPLAINT 13. Each of the foregoing allegations Is incorporated herein by reference as fully as though. the same were repeated verbatim herein 14. Defendant and Third Party Plaintiff would allege that this attempt to evict them from this property is retaliatory in nature, that this summary ejectment does not meet the statutory requirements for a summary proceeding and was not filed for a proper purpose. 3 15. Defendant and Third Party Plaintiff would allege that it is entitled to damages in an amount deemed proper by the finder of fact as a result of this retaliatory attempt at eviction. FOR A FIFTH DEFENSE, A SECOND COUNTERCLAIM AND A SECOND THIRD PARTY COMPLAINT 16. MH Marina is a Corporation; licensed to do business and doing business in the State of North Carolina, County of Brunswick. 17. Upon information and belief, Plaintiff Marsh Harbour Resorts, LLC is a limited liability company, organized and existing under and by virtue of the laws of one of the states of the United States, and the owns real property leased by the Plaintiff, which is located in the County of Brunswick, State of North Carolina. _ 18. Upon Information and belief, Third Party Defendants, Inlet Harbor Marina, Inc, is or was a corporation, organized and existing under and by virtue of the laws of the State of North Carolina. This corporation was dissolved by Administrative Dissolution and Odell DeCarol Williamson is therefore also a party individually, and as surviving shareholder, Director, officer and agent of and for the said Corporation. This/these Defendant(s) was/were the landlord who leased the property involved herein to MH Marina. 19. Upon information and belief, Third Party Defendant Odell DeCarol Williamson is a citizen and resident of the County of Pander, State of North Carolina. 20. Upon information and belief, Odell Williamson and Virginia Williamson are citizens and residents of the County of Brunswick, State of North Carolina and were the owners of the real property involved in this action until they conveyed the property to Marsh Harbour Resorts, LLC by deed dated December 31, 1998 and recorded January 14, 1999. 21. This Court has jurisdiction over these parties and this subject matter. 4 22. On or about February 1,,1995, Inlet Harbor Marina Inc., the landlord, pursuant to permission from Odell Williamson' owner of the property, entered into a lease whereby the MH Marina leased from Inlet Harbor the premises it now occupies as a marina, as more particularly shown and described in the Lease, attached hereto and incorporated by reference herein. 23. ' The term of the aforesaid lease was for five (5) years, with two five-year options to renew. 24. The lease required MH Marina to "maintain" said premises during the term of the lease, including the (a) docks; (b) roads; (c) buildings;' and (d) septic holding tanks. The Plaintiff has full and completely performed maintenance upon the said premises. 25. Although MH Marina has fully and faithfully performed its obligations under the lease, the Plaintiff and the Third Party Defendants have failed and refused to do so and/or have performed their obligations in a negligent manner and has breached its responsibilities under the lease din question. 26. The property has been damaged by several Hurricanes and other storms, which have caused damage to the docks, extensive enough to require the landlord to perform capital Improvements upon the property. 27. The Plaintiff and the Third Party Defendants have failed to make necessary capital Improvements to the property and has failed to rebuild and/or repair structures that were seriously damaged by storms and/or the tidal forces intensified by the lack of dredging. 28. The Plaintiff and the Third Party Defendants have recognized their obligation to make capital improvements, and have in the past undertaken to do so. MH Marina has discussed in the past with Odell Williamson and/or the Plaintiff and/or the other Third Party Defendant(s) on several occasions the need for capital improvements and Odell Williamson and/or the Plaintiff and/or the Third Party Defendants responded by stating that it/he/they would "self -insure" for these repairs; that is, that it/he/they would personally assume these obligations. The Plaintiff and the Third Party Defendants did assume the obligations, and did replace several of the docks on OCR dock that were destroyed or seriously damaged. Additionally, Plaintiff and/or Third Party Defendants own and/or control adjacent property, which also fronts the creek, and have, on several past occasions, dredged the area as required. The Plaintiffs are therefore estopped and have waived any right to claim that it/they were not obligated to make such capital improvements and/or to dredge as required At all times prior to the conveyance to Marsh Harbour Resorts, LLC, Odell and/or Virginia Williamson were the real parties in interest and in control and were the de facto landlords as to all matters relating to the lease of this property to the Plaintiffs and all duties and obligations relating thereto. 29. All of this property was effectively controlled by Third Party Defendant Odell Williamson and his was the decisive word as to all of the property in which he held an interest. Upon information and belief, Defendant Marsh Harbour Resorts, LLC is owned and controlled, or partially owned and controlled by Ladane Williamson and this property was deeded to her by her parents, Odell and Virginia Williamson, as a gift. Prior to that deed, Defendant Odell Williamson had entered into an agreement allowing his son and or his son's companies) and/or the Defendant, Inlet Harbor Marina, Inc to lease the said property to the Plaintiff. The lease agreement at issue was made between MH Marina and Odell DeCarol Williamson, but was negotiated and prepared by and entered into pursuant to authorization from Odell Williamson. As stated, the said Odell Williamson and Odell DeCarol Williamson, the owner of the real property and the landlord, respectively, recognized his/their responsibilities under this lease agreement, and/or assumed voluntarily the responsibility under the lease agreement for capital improvements, including the dredging of the creekfront and marina area. This marina area was previously dredged by the landlord, but after MH Resorts, LLC (Ladane Williamson's company) assumed control of the property and made certain other plans to develop the area it became apparent that the said company, then the owner of the real property, planned to terminate the lease of MH Marina, and that MH Resorts, LLC deliberately, willfully and intentionally failed to make needed improvements to the property, and failed to dredge this property as needed and requested. Further, the said Ladane Williamson and/or Marsh Harbour Resorts, LLC contributed funds to dredge the river which feeds into the property, but did not dredge the marina property at the same time, causing a further and increased buildup of silt in the marina area and thereby further damaging the property interests of MH Marina. 30. MH Marina alleges that the actions of Odell Williamson and Odell DeCarol Williamson demonstrate that the Plaintiff and the Third Party Defendants have assumed the obligation to make capital repairs to the property and/or that it has recognized and affirmed its obligation to make capital improvements to the property. Nevertheless, MH Resorts, LLC has not'performed these repairs properly or reasonably, but has in fact, performed the same and/or failed to perform necessary repairs in a manner that is and was negligent, reckless, willful and wanton and intentional. Moreover, the said MH Resorts, LLC has engaged in a pattern or course of conduct designed to °force" MH Marina to terminate or end the lease, and said pattern or course of conduct has damaged MH Marina's property interests and business, and has been done recklessly, willfully, intentionally and wantonly. 31. As a direct and proximate result of Plaintiff and Third Party Defendants failure to make necessary capital improvements, and/ortheirfailure to repair and/or its having assumed the obligation to repair but having done so negligently, recklessly, willfully and wantonly, MH Marina's property and business have been damaged and MH Marina has lost income and the rental of available slots along the marina. 32. As a result of the foregoing, Third Party Plaintiff MH Marina is informed and believes that it is entitled to a judgment against the Plaintiff and the Third Party Defendants, jointly and severally; for actual and punitive damages in an amount alleged to be well in excess of ten thousand and no/100 ($10,000.00) Dollars. h 1. That this lawsuit be dismissed; 2. That the DefendanVThird Party Plaintiff be awarded the following: a. jointly and severally, actual and punitive damages in an amount which is alleged to be in excess of $10,000.00; b. damages for this attempted retaliatory eviction; C. Interest from the date this action is filed; d. costs of this action to be taxed to Plaintiff and Third Party Defendants; e. Attorney's fees as allowed by law; f. ' a trial by a jury for all issues of fact; g. That the Plaintiff be granted such other, further and different relief as the Court may deem just and proper. Respectfully submitted this the 25th day of April, 2001. ileuw1ght Hu n NC Bar # 2234 HUDSON & GENTRY, L.L.0 1203 4WhAvenue N, Ste 111 Myrtle Beach SC 29577 (843) 692-9889; Fax (843) 692-9190 Attorney for Defendant April 25, 2001 i I STATE OF NORTH 'CAROLINA ) IN THE GENERAL COURT OF JUSTICE, COUNTY OF BRUNSWICK ) DISTRICT COURT DIVISION FILE NO: 01 CVD 156 Marsh Harbour Resorts, LLC, ) Plaintiff, ) Vs. ) CERTIFICATE OF SERVICE (VIA U.S. MAIL & FACSIMILE) Marsh Harbour Marina, Inc., ) . Defendant ) t This is to certify that I, Mary Anne Graham, an employee of Hudson & Gentry did -on. April 25, 2001 serve a copy of the foregoing ANSWER, COUNTERCLAIM AND THIRD PARTY COMPLAINT in connection with this case by via facsimile and via placing the same in the first class mail, with sufficidnt postage affixed thereto and addressed as follows: Andrew K. McVey Esq. . Attorney at Law 16 N. 5th Avenue Wilmington, North Carolina 28401. Facsimile: (910) 763-6561 EXHIBIT A y� STATE OF NORTH MUNA COUNTY of BRUNBWICX post -do -FIX Note 7671 11'aft /_da %wN► / Ta , Fir cu0ep. co. OPWNd vnon.• _p7,j3 FO b ,iris u. S->0—o-7 MASS ACRBCttatrr• This agreement made and entered into this the L day of ilsS by and 'borwoon Inlet Harbor Marine, Inc., parties of the first part, hereinafter referred to as Lessor, and Marsh Harbour Marinalne., parties of the second park, herrinaftor referred to as Lessooi Witnsssethr Whereas, Lessor agrees to Lease to Lessee said property known es Marsh Harbour marina in calabash, NC,for the sole purpose of operating the property as a wet slip marina;(Ses exhibit A for description of propertYJ• Lessor has permission frvm owner of property. Odell ifiMemson. to sub -lease property to lessee. And whereas the partied are setting forth the terms and conditions of the Lease. In consideration of the mutual promises and covenants contained herein to be kept and performed the parties do herebY egret as lollewsr I. LL'ASL' 4�BAM. Lessor agrees to lease said promises to Lessee for a term of Five (5) roars from that date of this contract. Lease payments for the Five (S) Year term WN be as fOJlowrr Flrst year S1,S00.W per month; with the tceal yenta Lease of Sis,es0.ee to be paid upon execution of this Contract. The second thru fifth velar Lease payments wig be R'SW.00 per month due on the first of ovary month. Lessor agrees to Vivo Lessoe twa(2) F)ve year options to ronew Lease. The Lease payments for the first Five (5) year option will be S2,20a" per month, second Five M Year option wig be S 2,400.00 per month. 2. Mlyfi H E. Lessee agrees to carry and maintain Commercial General Liability Insurance on said premises throughout the term of this eproement, with a minimum badt of dabiiity of S40tV,0ee. E0 (one Million Dollars). Lessee shag provide Lessor with a current Certificate of Insurance through out the term of this agreement, showing Inlet Harbor Marina, Ine. and Odell and virginla Williamson as additional named insured. Losses agrees to hold lessor harmless of any liability from the operations of the marina. .i. jpERMITB OA FEES. Lessee sprees to purchase and maintain all permits, License, etc. for the operation of the business Including but not limiting the fogawingr a) Lioanse fee for underground fuel tanks. b) Rdtail license roqulred by the State of NC. c) Any Stott or Faderal fees that may be imposed upon the marine, d) Any Inspection ties or permits required. e, jLVySHrORi;. Lessor'aprees to sell Lessee current inventory at said 'premises based on the following terms! a) Losses will PAY for dny fuels in the tank at time of Lease based upon the invoice price paid by the Lrsror to the supplier; b) All other inventory Including furniture, cash register, eredlt card prveessoretc. will be listed and Lessor and Lessee will agree on a price for sell and purchaser U no price can be agreed upon on any item, 0 b�n ..nrr�rrine Mthr Item. giving all Jnfori 'ash Lessor has on renters. Any' Vkage rents paid in advance NO remain the property of Lessor and Lessee Will not bill slip renter for rents until such month their rent would currently come due. 6. Mintenanee nl lmoerty. During the arm or this agrrrmene, Lessor agrees to maintain said premises including •but not limited for a) Docks, Woods el Buildings d) Septic Holding Tanks :f.' TM& During the period of this agreement; Lessee agrees to pay 112 property laces and assessments on said premises. ®: Right of Refusal. Less*e shall have first right of refusal If Lessor or otiner has an alter of purchase on said promises. Sale of property wi11 hereby esuss•this agreement to become pall and void. Any rents will be pro- rated at the time Of sale. A sub-Lesawa, Lessee does not have the right to sub -lease said premises. 1R Aurvivataty, Thls agreement shall be binding upon and shall inure a the benefit of the parties hereto, their lawful heirs, administrators, er- ecutora, omarsors and assigns. La Witness Nhereol, the parties have hereunto set their hands and seals the day and year first above written. 10 Harbor l� (seal)' INC. �' Masbout Narina,ln{p {wed/ �n4 Harbour Marina l , State of Norm Carolina County of Brunswick ! Hotfry Public for said County and State, do hereby c that ( ,personalty appeared before ma this day and stated that (s)ha is Secretary of Inlet Harbor Narina,rne.,a corporation and that by authaxlty duly given and as the act of the corporation, the fore ng�lnt�ument was Signed in Its name by Its President, sealed with its ` �oAti'S1eeL''Idgd attested by him(her)self as its Secret Y. �1�5ds my d official Seel, this the day ol;A (/ 995. !t'L•�e..��'% Noeary pubLc - -- S une olNom Cai '% � -• tp Of )r)..__ rJIF ma at Bath u ,P rS �a[d county and Stage. do A��bY Chet pea by aut/!erlCY deny es gl�earr of N� heH lVdrb ur h re me e a y eto h/a d P'/I!$ maat and as ar/ea,tneie trot ® waa alQned in Iti tAe act of the MrporoG'e Potation d atee+red b name by /er Pre n. tAe Y otlicia!l�lharJ=Wit as 1 +/dint; sea Jed Z tAe S`'cnt+ry ed wlu+ its fl �e� Ye =CI �19�5 h.4frw _sC�' Notary Pub/! wo (NYW L LMllLlft[ J41 K &KL Mw=r aey - rww.ti r r SILL L� . CIO OCR f D o - m •r Tatpholw; ae�:mis�r FteRr:IDtfl S Ocean Isle malty Co. Ocean Ide Beach Shdbtte, North Carlin 2W9 F. January 19, 1995 I. Odell Williamson, hereby authorise inlet Harbor Hanna. Inc. to lease Mush Harbour Marina for the . tern of five (S) years with two (2) five year options. The first year the lease well be $700.00 per month. the neat. -four years the lease will be S1,200.00 per month. Option rate would be at a Increase -of: S3 400.00 per month for the Second five year optibn; .000.00 per•mlonth'for the third five year.option. Leaser Shall have first right of refusal if owner, Odell Williamson has offer for purchase of Marsh Harbour Marina. Sate of property will cause this agreement to become null end void. c ODELL MILLIANSON Detaral Williamson INC. ODELL WILLIAMSON Ormv I Danbp*r n January 12. 1995 N To. Odell Williamson From C�•KtUACAWCtter RE: •Marsh Harbour Marina Lease ienr S Years With two (2) five year options 500 t Month - Rate Armed is a month, heck four 1119,000, firs[ year payist year at ment iA advance. Option rate would be at a 10% increase; $2,200 per month for the second five year option; $2,400 per montb for tba third five year option. pu ase Option, or First RiRbt of Refusal: At pdee to be agreed upon if this lease proposal is acceptable. - ._. ,,, V" *rein e rn~atm OM-r (919) 679-30M ram 8) ASIX MC AND QUA'CLA1M ad bwNYbar Mubu f�eedo�R IM l dn' 19, 1995 gsanb by Odell WIIILauaa PaChM Marsh ftubeut Mfrbu; red latrt Htuhet Marina, Inc, bolds a Sm Ntht of m mul m OVMRFU. LINO Wpliuman has enured late a eootrset to purehue Manh Harbour' Matins: NOW, TBMVM, Ida Sabar Marion, fae. dons hrasby alcm and gWtelalm its ngbt K am M&W M 9otdm Mani Rarb= Matica to L41u to WiWamm, ma Harbor Marlon, Toe. Qutbrr AdWWWta that, epee Iha dmpet of rbe rAVhau by LADaao itbt Na►iamtoa la rto nsaea Math Rwbom hfadm is and and Vold to anordattes with the Amaty 19. 1993 dots mar. [seu[ l A , ➢'aua9' NORTH CAROURA. COUNTY .arm ._//i fad 9om do a Notary Public of the afonuaid Ccuery . y i!1 t sally Emoted before me thin day tad sdmowledyed that Whe is tha S Maim fee, a NoNr Camllna eotpotatlem and that by atMo:i ""`Ory of leki Nub= M imwttmeat wu rl lY drily Alves and ar an actor the eotpmdoa, the foretopat imo in ks mtn by pu Pretidaat. and Noted by Mml&Wmreif as 8cerst". utd ruled with ilk toaaaw cowtm nal. Kimm my band and aaWld red twQjdj6W of Decamber, 1993. My Cemmtadom Expins: ?'Jod.9 aW_IVIY0OWY{Ira(eafrllrrMr I ED STATE OF 14ORTH CAROL A BRUNSWICK COUNTY . l 9 ii11= 34 BRUNSV11M COUNTY. C.&C. MARSH HARBOR RESORTS, LLC, ), OY r Plaintiff, ) . V. ) MARSH HARBOUR MARINA, INC., ) Defendant, ) IN THE GENERAL COURT OF JUSTICE DISTRICT COURT DIVISION 0LCVD 156 AMENDED COMPLAINT NOW COMES Plaintiff, pursuant to North Carolina Rule of. Civil Procedure 15 and with leave of Court granted by Order dated June 12, 2001, amends its Complaint in this matter so that the Complaint reads as follows: 1. Plaintiff Marsh Harbor Resorts, LLC ("Resorts') is .a limited liability company formed and existing under the laws of North Carolina 2. Upon information and belief, defendant Marsh Harbour Marina, Inc. ("Marina') is a South Carolina corporation that is doing business in Brunswick County, North Carolina 3. Resorts is the current owner of atract of land (the "Marsh Harbour Property') located in Brunswick County consisting of approximately 43.78 acres, which Marsh Harbour Property is more specifically identified as Tract 3 on a survey prepared. by Jan K. Dale, RLS entitled "Composites Survey of Marsh Harbour Lands for LaDane Williamson," dated December 29, 1998 and a copy of which is "recorded in Map Cabinet 26, page 463, Brunswick County Registry, together with an easement appurtenant over that 20=foot wide right of way granted to Odell Williamson by Deed recorded in Book 403, page 903, Brunswick County Registry. Resorts acquired this property, 62662.1 for valuable consideration, from Odell Williamson and Virginia Williamson (the "Williamson"). The Deed through which the Williamson sold and transferred, without limitation, the Marsh Harbour Property to Resorts in December, 1998 is recorded in Deed Book 1274, Pages 138-141 of the Bnmswick County Registry, 4. Defendant Marina is currently operating a wet -slip marina on aportion of the Marsh Harbour Property. There is no written lease agreement, orother agreement, existing between Resorts and Marinathat allows Marina to possess and use a portion ofthe Marsh Harbour Property- Further, there is no privity of contract or estate between plaintiff Resorts and defendant Marina 5. In 1995, the Marsh Harbour Property was still owned by the Williamson. 6. On or about January 19, 1995, Odell Williamson entered into a written instrument with a company known as Inlet Harbor Marina, Inca ("hilet') under which Odell Williamson purportedly leased "Marsh Harbour Marina" to Inlet Harbor. A copy of this written instrument is attached and incorporated by reference as Exhibit A. Upon information and belief;, this written instrument was never recorded with the Brunswick County Register of Deeds. This instrument also did not specify what property within the Marsh Harbour Property was being leased to Inlet. Upon information and belief, only aportion ofthe MarshHarbour Property has been utilized by either Inlet or defendant for the operation of the "Marsh Harbour Marina" 7. On or about February 1, 1905,.Inlet entered into a document entitled "Lease Agreement" with defendant. Upon information and belief, this Agreement constituted a sublease under which Inlet, as the lessee/subleasor, sublet the "Marsh Harbour Marina" to defendant, as the subleasee. A copy of this Agreement (the "Sublease") is attached and incorporated by reference as Exhibit B. 62662.1 2 8. Upon information and belief, at the time Inlet entered into this Sublease with defendant, Inlet had been administratively dissolved by the North Carolina Secretary of State. 9. On or about December 24, 1995, Inlet, through its President DeCarol Williamson, released and quitclaimed its alleged right of first refusal to purchase the "Marsh Harbour Marina" to LaDane Williamson, who is the managing member of Resorts. At that time, Inlet, through its President, also acknowledged and recognized that its right to lease the "MarshHarbour Marina" was null andvoid in accordance with the terms ofthe instrument entered into between Odell Williamson and Inlet. A copy of this Release and Quitclaim is attached and incorporated by reference as Exhibit C. 10. At no time during the period between January 19,1995 and January 19, 2000 did Inlet or DeCarol Williamson exercise its right to extend the term of the alleged lease of the "Marsh Harbour Marina." Accordingly, even if Inlet entered into a valid lease agreement with Odell Williamson, the term of that lease expired on December 24, 1995 or, in the alternative, on January 19, 2000. 11. Since December 24,1995 or, alternatively, January 19, 2000, defendant has been a tenant at will, a tenant at sufferance, or a month -to -month tenant of the "Marsh Harbour Marina" on the Marsh Harbor Property. 12. On or about May 18, 2000, Resorts gave defendant notice that it must surrender, leave, and vacant any and all property it was occupying within the Marsh Harbour Property on or before August 1, 2000. Despite this notice, defendant has failed and refused, and continues to fail and refuse, to vacate and leave the premises within the Marsh Harbour Property that it is occupying. 62662.1 3 FIRST CLAIM FOR SUMMARY EJECTMENT 13. The allegations of paragraph I through 12 are reaLeged and incorporated by reference. 14. Defendant Marina has been givenproper notice to vacate andsurreader the premises itis occupyingodthe Marsh Harbour Property, and its continued occupation and possession ofthose premises is wrongful and unwarranted. 15. Pursuant to, without limitation, N.C.G.S. § 42-26, plaintiff Resorts is entitled to an order summarily ejecting defendant from any and all premises it is occupying within the Marsh Harbour Property. SECOND ALTERNATIVE CLAIM - 16. The allegations of paragraphs 1 through 15 are realleged and incorporated by reference. 17. In the alternative to its first claim for summary ejectment, in the event the Court determines that there is privity ofcontract or privity ofestate between Resorts and defendant —which plaintiff otherwise denies —defendant has materially and repeatedly breached the terms ofits written Lease Agreement, and therefore Resorts is entitled to an order of summary ejectment 18. Defendanthas breached its written Lease Agreement because it has failed to pay one- half of the property taxes and assessments, as they came due, on the Marsh Harbour Property. Therefore, defendant's lease term, if any, has been forfeited and it is a mere hold -over tenant. 19. Defendant Marina has also breached its written Lease Agreement by failing to maintain the premises it has been occupying including, without limitation, the docks of the marina. 62662.1 4 20... Resorts has given defendant notice of its default and demanded that defendant surrender and vacate the premises it is occupying within the Marsh Harbour Property, but defendant has failed and refused to vacate those premises. WHEREFORE, plaintiff prays that this Court award it a judgement summarily ejecting defendant from the premises defendant is occupying on plaintiffs property, and rehuning possession, and control of all such premises to plaintiff, and that the Court also award plaintiff the costs of this action from defendant Respectfully submitted, this the 18th day of June, 2001. N �� 1 OF COUNSEL: Andrew K. McVey MURCHISON TAYLOR & GIBSON,.LLP 16 North 5" Avenue ' Wilmington, North Carolina 28401 Telephone: (910) 763-2426 62662.1 5 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing AMENDED COMPLAINT was served upon counsel for the Defendant by facsimile and by depositing a copy thereof in the U.S. Mail, postage prepaid, first-class, addressed as follows: J. Dwight Hudson Hudson & Gentry, LLC 1203 48th Avenue North, Suite 111 Myrtle Beach, SC 29577 Facsimile No. 843-692-9190 This the 18th day of June, 2001. 62662.1 7%Zo01 11:05 FAX 3781001 BROOKS PIERCE LL Ocean life 7saCty Co. 0a= Isle Beach Shallotte, North Carolina 2M9 cc J9193 579-6272 ne: 019) 579-655S . January 19, 1995 I, Odell Williamson, hereby authorize Inlet Harbor Marina, Inc. to lease Marsh Harbour Marina for the. term of five (5) years with two (2) five year options. -The first year the lease will be $700.00-per month. -fhe nett four years the lease will be 11,200-00 per month. Option rate would be at a increase'of:- $1 400.00 per month fot•the second five year option; 91.600.00 per -month for the third five year -option. Leaser shall have first right of refusal if owner, Odell Williamson has offer for purchase of Marsh Harbour Marina. Sale of property will cause this agreement to become null and .void. BY: ODELL WILLIAMSON DeCarol Williamson INC: ODELL 1NLLUAMSOK 0Wner/ Davetope, REAL ESTATE • SALES • RF-NrrATS . nrpAW /f AVAT ANn uiA Ir 511u. ...,......_-. :.: TRUE COPY �• 5 SOU,. OlI 9 PAGE 1 OS 3 OATE 10' 91001 FC STC 0 DEEDS goor, _PAGE _-., ' STATE OF NORTM CAROL7NA RE1? VJtA va COONTY OF ERVNSMCX I O I S 1 7 5 3 ERED FOR i MUMATlaH ToiALLU',% t•_v_ EOGKJQl9�i'AG:Jffi.} Tow r0 , ceJ?gd 95FO 10 AMIOt50 CRAi.iT 104.50 1It(Ea_ LEASE AGREEMENT tL' s J. ROEIHSGH ►�' CASH--zI[li.egr"ment made and entered Into this [ha,L, day of EO ' BY +e4S ku by ou4 "^•veen Jrdet Harbor Manna, Inc., parties of the SdOH61Hf9ffOt001I1BN.C�. ..hereina!ter referred to esLessor, and hush MarDear Maulna,Ino., portico , of the second pars, hereinafter referred to as Lessee MNnessath, •• Whereas, Lossor agrees to Lease to Lassee said property known as Marsh Marbour Marine In Calabesh, NC for the sole purpose of operating the ptcpesty an a wet slip marinat(sw erhlbit A far description olprapartyJ. Lower has permission Lrnm owner ofpropetty, Odell Miamon, to sub -lease property to knew. And whereas the pandas ara setting forth the terms and conditions at the Lease, In consideration of the mutual promises and covenants eontalnad.herda to be kept and parfanned the pardon do hereby agree as loilows; I. LEASE TEAM. Lessor agrees to Jame add promises to Less" for a rum of Five (5) Years from the data of due watraeb Lease payments fur the•FJvs 15) Year term will be an fotiows, First year S3,MM00 par, montht with the total year's Loose of Sld,VW.ea to be paid upon ereoudan of this Contract, Thu Second thru Mob year's Lease payments weld be 52,0moo per month due on the LEW of every month, Lancer agrees to give Lowee,wo(T) FJve Year options to ranaw Lea". The Lease payments for the firs! FJvs (5) year option wID be $2,200.00 per month, second Five (a) year option will be $ 2,4MW per munch. - Z INSURANCE. Losses agrew to carzy and maintain Commercial General Mabidty Insurance an said premtves throughout the term of this agreement, with a minimum Nm(t of Mobility, of y2,0 ON.00 /One )Jlg(on Dollars). Lessee shall provide Lessor with a current CortWoala of insurance through tint the term of this agreement, showing Inlet Narbar)laulna, Inc. and adult and VIrgWe wllMaasson as additional nomad insured. Losses agrees to held Jessar harmless of any JLLb=y Item the operations of the marina, ]. pERF➢TS OR FEES. Lessee agrees to purchase and maintain all permlty, LJeenss, u= for the operation of the business Jactuding but not Balling the following, a) License foe Jor underground fuel Make. b) AetaM ➢Gonna ragutred by the Santa of NC. at Any State or Fadaral fees that may be Imposed uponthemadna. dl Any inspection few orpermits, required. 4. INVENTORY. Lessor agrees d ssli Lessee current Jnvantory a[ said , premises based on the following termat a) Lassen will pay for any Iueis Ja the tank at time of Lease based upon the Invoice price paid by the Lossar to the suppliut b) All ofharinvwcaryineludingfutai[umr"h mgivear. 'oradit card proeesseretc. will be listed and Lessor and Lessee wig agree on a price for sell and purchaser If no pulse can be agreed upon an any.(" 01� Lessar WX keep possession of the Adm. J c pn�rtanr• feAsar roil Omvlde Lossar with a rinrtwnt lint of -fin 'rentpi m, TRUE COPY door, Ib19 PACE I —GI DATE _ l4-ll64a00l - l�FCISTER.OFlOEf9S ! r 0 }� r: i<fOt. o� lq 04CE to:µ) giving all I &Motion I.asaor J1 +op ra r�►,tAnY daakage rants Judd In advance will remain the PrpPartj ffte dr�Xd$7aseo will not bill Mfg ranter for Cents unto aueti month their rent would currently come due. & J/alntsnahee of Pm..-.+.- epypg the term of this agradmentl Lessoe agar to avtstats said pramlaealocluding but nor Jhowed to. aJ JMcAw, b)Roada a/ Suddings d! Sepdp Holding Tanks' 7axea• l arlog the pesfod of We agr =mcp Ussee agrees to pay 112 property tares and aseeasasats an said promises, & Rlohe or Sen.car r-Wee Shan have arst J1ght at refusal it Leaser or owner has an offer of perebasa an said pfemisex Sole of property'M hereby ofeea thlo agreamant to become nun and Vold. Any rents win be pro- ratsdat the, thnr of sate. - A S h-Z "arse' does not have the right W sub -lease said 1& $urvivabuity, Ms agreement shall be hindln inure rx to the benefit of the g upon and ahaL inure Parties gnu, theirlawlW hobs, adafNsemton, aa• 'eeutsrs suocessora and asalgnx In Mcness Nhazee4 the parties have tha day and yearllrst above State of North Carollna County Of awick No P AMC for sold County and State, do hereby e d st that .personany Wooled before au this day end stated that fS)ha Ja Secratsry of inlet Jf rbcrwariea.7np„a corgMtIon sand that by authority duly given and as the act of the eorjo bom the mreawngoA, uI fnc was signed in its name by its preeldent, sealed with its eo ad'= b d atteatad by Afa(har/self as tv Seer' wi a�5e ofNelal aealiS the IY f %o�TAAh wo jV 2y d BL1C � N{otruyy , 'TRUE Copy JOUi, IOI��pAC b55' DATE SE ISiFR DF DFF➢S -T scat. olxorth calmuna star. ;�I•Lae 'county of nawfck I at pab)!e lot Bald County and Stator do hereby ea that jmmna0y appeased borone me thta day and sued that Whe Seatetatp of Hush Xarbo"Am'ne lne„a ootperat)onr and that by authority duly given and as the act of tha 00rporad0n, the lcregoinglnstrument was.slgnod In It& name by Its pxastdanq saaled with Its coxporaM aL and athatad by himlhor)solt aP Its SECtatary HJ 'JO` V}pAVdLLdnd aflltfa! saa7, tALs Ne d Y v.OTAR► tery publta (/ XLY�QJb STATE OF NORTH C. ARO COUNTY OF BRUNSWICKUNA M1 The Forcroing (or annesW) Cenifiute(s) s 4udi- Y • " 1 Napre(ies) pab(IC (isXarc) Cenirltd to be Corrcet Thh IwnumeN was Ned [oYHetbvasian oath, Dayand Houriatbe Bookand PaaeshewnantbeFint PAPbINOL ti0a TLAM 0a.1agb9nw uca. ^_ II I I I HUL UUFY _ DOOn I D14 PAGE 66 I• I _ DATE RfGUHU t. • Our: yvAu'r Jut rG RECISTER.OP. EWS _ y• •6%ul ULCMII LJLL M1CIILII .L�•L �YLYi.y „ ..alp � • •(• ' I.O.W3 r.Vl aQnr �P40i •,� r Tn x I RELEASE AND QMCLAM WFIMMAS. poxsti = to the document dated Iamiary I9, 1995 executed by Odell Williamson and. Wet Harbor Marim, Inc, Inlet Harbor Marina, Inc. holds a fast right of refusal ro purchase Marsh Harbour Marina; and WAIMPS. LxDane lPdliemwo has entered into a cantr= to putrhasa Marsh Herboue Manta; NOW. THMMFORH, klet Harbor Marina, iac_ does hereby release and gaitelaim its tight oEi'irst sefusal to purchase Marsh Harbmer Marina to LaDaae Williamson. Inks Harbor Marina; Inc fnrdter arl nnwkdges rbar upon Ilse closing of the p.fR� by LIDane Williamson, its light m lease Mash Harbour Marina is MM and void in accordance with the Ianuary 19. 1995 doeitmem. iSEPl.) Secretary NORTH CARO1i1YA COUNTY II1I.Er Hy: DeCarol Williamson, Ptesideoc I' ' • • ' t' ` ` �^ a Notary public of the aforesaid County -and State, do he y c�ta$. uu_4 lo,�(� . oc`sort IY appeared before me this des and aclmoWedged that (s)he is the Secretary of Inlet Harbour Marina, Inc., a North Carolina mrporatloa, and that by authority duly given and as an act. of the cotporaton, the foregoing 1'1SLI'=^uc Was signed in its name by its Ptaideac. and attested by betselfiUraself as Smrc any. and sealed with its common corporate sea. Witness my band and notarial seal f day of December. 1995. I t_ �• My Commission Expires: -9 our_tssttaaesWAU%AEtrEStajtaar5s t STATEOFNORTHCAROLINA R_,En. COUNTY OF BRUNSWICK 01 JUN 12 P11 It: 51 Marsh Harbour Resorts,LLl , gRUIIS';Ili 0CLUir f'i. C.S.C. DISTRICT COURT DIVISION" File No. 01 CVD 156 Plaintiff, Vs. p�C• ORDER Marsh Harbour Marina, Inc., Defendant b: 9 This matter coming on to be heard and being heard by the undersigned Judge at the May, 17, 2001. Civil Session of the District Court of Brunswick County, Bolivia, North Carolina on Plaintiffs Motion to Amend Complaint and Defendant's Motion to File Additional Pleadings and to Allow Discovery and the Plaintiff being represented by John W. Ormond III and Andrew K. McVey and Defendant being represented by J. Dwight Hudson and Attorney George L. Fletcher being also present before the court on behalf of the potential Third Party Defendants, and,the Court having reviewed the File and Pleadings and having heard'the arguments of counsel and considering the existing law and memorandum and brief of counsel, and it therefore appearing to the Court as follows: 1. That Plaintiff originally filed this action for Summary Ejectment in the Small Claims Division on December 12, 2000, using the standard AOC form Complaint and Defendant thereafter filed an Answer to the Complaint. On or about January 10, 2001 the matter was heard by the Magistrate who determined that this case should be heard in District Court and dismissed the case without prejudice: Plaintiff thereafter filed a timely Appeal. 2. That after filing its Appeal, Plaintiff filed the Motion now before the Court requesting leave to amend its Complaint by the filing of a narrative Complaint which*would more clearly set out its contentions. 3. That subsequently Defendant filed a Motion to File Pleading, that being an Answer, Counterclaim and Third Party Complaint and seeking the award of damages, interest, costs and attorneys fees, .which matters are already the subject of Superior Court Case filed by Defendant herein against Plaintiff herein and now pending in the Superior Court Division. 4. That the subject of this action is a commercial lease having a substantial value and the issues for trial are complex. 5. That counsel for Plaintiff and Defendant have engaged in a great deal of dialog concerning the issues in this case and it is unlikely that either would be unduly surprised or prejudiced by the filing of additional pleadings and engaging in discovery and the same should be beneficial to the eventual trial of this matter Based on the foregoing, this Court therefore ORDERS as follows* . 1. The Plaintiffs Motion to Amend Complaint is allowed. 2. The Defendant's Motion to File Pleadings is allowed to the extent that Defendant shall file Answer to the Amended Complaint setting out such responses and raising such defenses as are allowed by law. 3. The Defendant's Motion to file Counterclaim and Third Party Complaint is denied and the same are hereby stricken. 4. Plaintiff and Defendant shall be allowed to engage in such Discovery as is allowed by the North Carolina Rules of Civil Procedure, said Discovery to be completed prior to the July 30,2001 session of this court, at which time this case shall he called for trial by jury. This the?" day of June,2001 a llipS� — District o Judge Presiding EXHIBIT STATE OF NORTH CAROLINA ) ,._ IN T{iE GENERAL COURT OF JUST ) :' --SUPERIOR COURT DIVISION COUNTY OF BRUNSWICK FILE NO: O/ C V S r--u-2 AEI't: II} S.C. MARSH HARBOUR MARINA, INC. ) f PLAINTIFF, ) - ) VS. ) COMPLAINT ) (Jury Trial Demanded) MARSH HARBOUR RESORTS, ) LLC, AND INLET HARBOR. ) MARINA, INC. ) DEFENDANT. ) The Plaintiff, complaining of the Defendant herein would show unto this Honorable Court as follows: 1. The Plaintiff is a Corporation, organized and existing under and by virtue of the laws of, - the State of North Carolina, and does business in the State of North Carolina, County of Brunswick as a marina. 2. Upon information and belief, the Defendant; Marsh Harbour Resorts, LLC is a limited liability company, organized and existing under and by virtue of the laws of one of the states of the United States, and the owns real property leased by the Plaintiff, which is located in the County of Brunswick, State of North Carolina. 3. Upon information and belief, the Defendant, Inlet Harbor Marina, Inc. is or was a corporation, organized and existing under and by virtue of the laws of one of the states of the United States, and was the landlord who leased the premises involved in this matter to the Plaintiff. 4. This Court has jurisdiction over these parties and this subject matter. 5. On or about February 1, 1995, Inlet Harbor Marina Inc., the landlord, pursuant to permission from Odell Williamson, owner of the property, entered into a lease whereby the Plaintiff leased from the said Defendant the premises it now occupies as a marina, as more particularly shown and described in the Lease,. attached hereto and incorporated by reference herein. 6. The term of the aforesaid lease was for five (5) years, with two five-year options to renew. 7. The lease required the Plaintiff to "maintain" said premises during the term of the lease, including the (a) docks; (b) roads; (c) buildings; and (d) septic holding tanks. The Plaintiff has full and completely performed maintenance upon the said premises. 6. Although the Plaintiff has fully and faithfully performed its obligations under the lease, the Defendants have failed and refused to do so and/or have performed their obligations in a negligent manner and has breached its responsibilities under the lease in question. 9. _ The property has been damaged by. several Hurricanes and other storms, which have caused damage to the docks, extensive enough to require the landlord to perform capital improvements upon the property. 10. The Defendants have failed to make necessary capital improvements to the property and has failed to rebuild and/or repair structures that were seriously damaged by storms and/or the tidal forces intensified by the lack of dredging. 11. The Defendants have recognized its obligation to make capital improvements, and have in the past undertaken to do so. Plaintiff has discussed in the past with.Odell Williamson and/or the Defendant(s) on several occasions the need for capital improvements and Odell Williamson and/or the Defendants responded by stating that it/he/they would "self -insure" for these repairs; that is, that it would personally assume these obligations. Defendants did assume the obligations, and did replace several of the docks on "C" dock that were destroyed or seriously damaged. Additionally, Defendants own and/or control adjacent property, which also fronts the creek, and has, on several past occasions, dredged the area. 12. All of this property was effectively controlled by Odell Williamson and his was the decisive word as to all of the property in which he held an interest. Upon information and belief, Defendant Marsh Harbour Resorts, LLC is owned and controlled, or partially owned and controlled by Ladane Williamson and this property was deeded to the Defendant by her parents, Odell and Virginia Williamson, as a gift. Prior to that deed, Odell Williamson had entered into an agreement allowing his son's company, the Defendant, Inlet Harbor Marina, Inc to lease the said property to the Plaintiff. The lease agreement at issue was made between the Plaintiff and Odell DeCarol Williamson, but was negotiated and prepared by and entered into pursuant to authorization from Odell Williamson. As stated, the said Odell Williamson and Odell DeCarol Williamson, the owner of the real property and the landlord, respectively, recognized his/their responsibilities under this lease agreement, and/or assumed voluntarily the responsibility under the lease agreement for capital improvements, including the dredging of the creekfront and marina area. This marina area was previously dredged by the landlord, but after the Defendant Marsh Harbour Resorts, LLC (Ladane Williamson's company) assumed control of the property and made certain other plans to develop the area it became apparent that the said Defendant, then the owner of the real property, planned to terminate the lease of the Plaintiff, and that Marsh Harbour Resorts, LLC deliberately, willfully and intentionally failed to make needed improvements to the property, and failed to dredge this property as needed and requested. Further, the said Ladane Williamson and/or Marsh Harbour Resorts, LLC contributed funds to dredge the river which feeds into the property, but did not dredge the marina property at the same time, causing a further and increased buildup of silt in the marina area and thereby further damaging the property interests of the Plaintiff. 13. Plaintiff alleges that the actions of Odell Williamson and Odell DeCarol Williamson demonstrate that the Defendants have assumed the obligation to make capital repairs to the property and/or that it has recognized and affirmed its obligation to make capital improvements to the property. Nevertheless, Plaintiff alleges that Marsh Harbour Resorts, LLC have not performed these repairs properly or reasonably, but have in fact, performed the same and/or failed to perform necessary repairs in a manner that is and was negligent, reckless, willful and wanton and intentional. Moreover, the said Marsh Harbour Resorts, LLC have engaged in a pattern or course of conduct designed to "force" the Plaintiff to terminate or end the lease, and said pattern or course of conduct has damaged the Plaintiffs property interests and business, and has been done recklessly, willfully; intentionally and wantonly. 14. As a direct and proximate result of Defendants, particularly Marsh Harbour Resorts, LLC's failure to make necessary capital improvements, and/or their failure to repair and/or its having assumed the obligation to repair but having done so negligently, recklessly, willfully and wantonly, the Plaintiff's property and business have been damaged and the Plaintiff has lost income and the rental of available slots along the marina. 15. As a result of the foregoing, the. Plaintiff is informed and believes that it is entitled to a judgment against the Defendants, jointly and severally, for actual and punitive damages in an amount alleged to be in excess often thousand and no/100 ($10,000.00) Dollars. WHEREFORE, the Plaintiff prays the Court for the Following relief: A. That the Plaintiff have and recover of the Defendants, jointly and severally, actual and punitive damages in an amount which is alleged to be in excess of $10,000.00; B. That the Plaintiff have and recover interest from the date this action is filed; C. That the Defendants be taxed with the costs of this action; D. That Plaintiff have and recover Attorney's fees as allowed by law; 4 n E. That all issues of fact be tried by a jury; R That the Plaintiff be granted such other, further and different relief as the Court may deem just and proper. Respectfully submitted this the 2nd day of February, 2001. J. Might HV6son NC Bar # 2234 HUDSON & GENTRY, L.L.0 1203 480'Avenue N, Ste 111 Myrtle Beach SC 29577 (843) 692-9889; Fax (843) 692-9190 Attorney for Plaintiff Dated: February 1, 2001 5 STATE OF NORTH CA�R�OAL�NA COUNTY OF BRUNSAVECI� Q I MARSH HARBOUR MARINA, INC., Plaintiff, vs. MARSH HARBOUR RESORTS, LLC and INLET HARBOR MARINA, INC., Defendants. I. EXHIBIT a— 9 INTHE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 01 CVS 225 ANSWER AND MOTION TO DISMISS NOW COMES Marsh Harbour Resorts,. LLC ("IvIHR" herein) and responds to the plaintiffs complaint as follows: FIRST ANSWER AND MOTION TO DISMISS Plaintiffs complaint fails to state a claim upon which relief may be granted as to this defendant and, as such, the same must be dismissed pursuant to Rule 12(b)(6) of the Arorth Carolina Rules of Civil Procedure. SECOND AND FURTHER ANSWER AND DEFENSE MHR responds more particularly to the enumerated allegations set forth in plaintiffs complaint as follows: 1. The allegations set forth in paragraph 1 of plaintiffs complaint are admitted. 2 It is admitted that MHR is a limited liability company organized and existing under and by virtue of the laws of one of the states of the United States (more particularly North Carolina). It is denied that MHR owns real property leased by the plaintiff inasmuch as plaintiff's lease agreement was with Inlet Harbour Marina, Inc., assignee of plaintiff's predecessor in interest (which had no authority to lease the real property after, the sale of the property to MHR), the lease Nvas terminated, and plaintiff became a holdover tenant. Except as expressly admitted herein, the allegations set forth in paragraph 2 of plaintiffs complaint are denied. admitted. admitted. 3. The allegations set forth in paragraph 3 of plaintiff's complaint are 4. The allegations set forth in paragraph 4 of plaintiff's complaint are The allegations set forth in paragraph 5 of plaintiff's complaint are admitted, except inasmuch as no copy of the lease was attached to the complaint served on MHR. admitted. 6. The allegations set forth in paragraph 6 of plaintiffs complaint are It is admitted that among plaintiff s responsibilities under the lease, plaintiff was to maintain the premises during the term of the lease, including (a) the docks, (b) roads, (c) buildings, and (d) septic holding tanks. Except as expressly admitted herein, the allegations set forth in paragraph 7 of plaintiffs complaint are denied. 8. The allegations set forth in paragraph 8 of plaintiffs complaint are denied. 9. • It is admitted that the property has been damaged by hurricane. Except as expressly admitted herein, the allegations set forth in paragraph 9 of plaintiffs complaint are denied. 10. The allegations set forth in paragraph 10 of plaintiffs complaint are denied. 26371 11. NIHR is without information and belief as to plaintiff's discussions with Odell Williamson, and the allegations pertaining to same are therefore denied. The remaining allegations set forth in paragraph 11 of plaintiffs complaint are denied. 12. It is admitted that Odell and Virginia Williamson deeded the subject property to MHR. It is further admitted that Odell Williamson purported to enter into an agreement authorizing Inlet Harbour Marina, Inc. to lease the property (although, notably, Virginia Williamson was not a party to such agreement and, further, Inlet Harbour Marina's authority to lease the property terminated expressly upon the sale of the properly). Except as expressly admitted herein, the allegations set forth in paragraph 12 of plaintiff s complaint are denied. admitted. admitted. admitted. 13. The allegations set forth in paragraph 13 of plaintiff's complaint are 14. The allegations set forth in paragraph 14 of plaintiff's complaint are 15. The allegations set forth in paragraph 15 of plaintiffs complaint are THIRD AND FURTHER ANSWER AND DEFENSE MHR asserts the parol evidence rule and the applicable statute of frauds as a bar to plaintiff s claim and its attempt to shift responsibility for maintenance and/or to make MHR responsible for capital.improvements. FOURTH AND FURTHER ANSWER AND DEFENSE MHR asserts all applicable statutes of limitations as a bar to plaintiff's claim. 26371 FIFTH AND FURTHER ANSWER AND DEFENSE MHR asserts the doctrine of laches as a bar to plaintiff's claim. SIXTH AND FURTHER ANSWER AND DEFENSE MHR asserts the doctrine of unclean hands as a bar to plaintiff's claim. SEVENTH AND FURTHER ANSWER AND DEFENSE MHR asserts the failure of Virginia Williamson to join in the agreement authorizing the leasing of the premises as a bar to plaintiffs claims. r** COUNTERCLAIM As a counterclaim against plaintiff, MHR asserts and alleges that: FIRST CLAIM FOR RELIEF MHR is a limited liability company organized and existing pursuant to the laws of the state of North Carolina and has, as its principal place of business, an office located in Brunswick County, North Carolina. Upon information and belief, plaintiff is a corporation organized and existing pursuant to the laws of the state of North Carolina. In 1995, plaintiff entered into a lease agreement with hmlet Harbour Marina, Inc., pursuant to which plaintiff agreed to lease, for an initial period of five years, a tract of land owned by Odell and Virginia Williamson, known as the Marsh Harbour Marina tract. A copy of the lease agreement is attached hereto as Exhibit A and incorporated as if fully set forth herein. 4. By agreement with Odell Williamson, Inlet Harbour Marina's authority to lease the property was to expire upon the sale of the property. 26371 �. Pursuant to the lease agreement, plaintiff obligated itself to pay 54 of the. property taxes on the premises. Further, plaintiff agreed to maintain the premises, including without limitation the a) docks, b) roads, c) buildings, and d) septic holding tanks located thereon. 6. In early 1999, iViHR purchased the property, in fee simple, from Odell and Virginia Williamson, as reflected by a general warranty deed on record with the office of the Brunswick County Register of Deeds. Notwithstanding 1NIHR's repeated demands, plaintiff has failed and refused to maintain the premises as required by the lease, and has failed and refused to pay its share of the property taxes as required by the lease. Its failures in these respects are breaches of the lease agreement. 8. As a direct and proximate result of plaintiff's breach of the lease agreement, MHR has sustained incidental and consequential damages (including the cost of maintenance and sums paid to local and count), tax authorities) in an amount in excess of S 10,000.00, the exact amount to be established at the trial of this matter. SECOND CLAIM FOR RELIEF 9. The allegations set forth in paragraphs 1 through 8 of MHR's counterclaim are repeated, realleged, and incorporated by reference herein. 10. A genuine controversy has arisen as to the rights and liabilities of the parties under the above -referenced lease agreement. 11. bIHR is entitled to an order declaring the rights and liabilities of the parties which more particularly divests plaintiff of possession and states that plaintiff is a holdover tenant which has no rights in the real property due to the express limitation upon Inlet 26371 Harbour ivlarina's authority to lease the premises and the subsequent sale of the property to MHR. WHEREFORE, MHR respectfully prays the Court as follows: 1. That plaintiff have and recover nothing of MHR; 2. That plaintiffs complaint against MHR be.dismissed with prejudice; 3. That MHR have and recover incidental and consequential damages in an amount in excess of S 10,000.00 from plaintiff on MHR's counterclaim; 4. For an order declaring the rights and liabilities of the parties, as described herein; and 5. For such other and further relief as the Court deems just and appropriate. This the 16"' day of April, 2001. MURCHISON, TAYLOR & GIBSON, L.L.P. By: C. Andrew K. McVey State Bar # 20217 16 North Fifth Avenue Wilmington, NC 28401 (910)763-2426 26371 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Answer and Motion to Dismiss . was this day served upon the below -named counsel and parties by mailing, postage prepaid, first class mail, ( ) personal delivery, of a copy of each of such instruments'to such counsel at the address shown below: J. Dwight Hudson Hudson & Gentry, LLC 1203 48a Avenue N, Suite I I I Myrtle Beach, SC 29577 Attorneys for plaintiff George Fletcher Fletcher Ray & Satterfield 130 North Front St., Suite 300 Wilmington, NC 28401-3972 This JGAL day of April,2001. Andrew K. McVey MURCHISON, TAYLOR & GQON, L.L.P. 16 North Fifth Avenue Wilmington, NC 28401 Attorneys for defendant Marsh Harbour Resorts, LLC 26371 MURCHISON, TAYLOR & GIBSON, L.L.P. ATTORNEYS AT LAW 16 NORTH FIFTH AVENUE �IINGT NORTH CAROLINA 28401 WALUXE C. 31URCHISON ` + , 7*1 hone 910 :63-2426 A W. BERRY TRICE Retired - ` Fe -IT. 910 :63-6561 G. STEPHEN DIAB "' JANIES W. LATSHAW JOSEPH O. TAILOR. JR. 1 FRANCES Y. TRASK FRANK B. GIBSON. JR. CHRISTOPHER J. LEONARD 5IICHAEL MURCHISON -- ANDREW IL \ICVET PETER A. RYNUN April 16, 2001 Clerk of Superior Court Brunswick County P.O. Box 127 Bolivia, NC 28422 Re: Marsh Harbour Marina, Inc. v. Marsh Harbour Resorts, LLC, et al Brunswick County File No. 01 CVS 225 Dear Clerk: I enclose original and copy of defendant Marsh Harbour Resorts, LLC's Answer and Motion to Dismiss in the above matter, together with cover sheet and stamped, self- addressed envelope. After tiling, please return a copy to us in the enclosed envelope. If you have any questions, please call my assistant, Joyce Bonessi. Sincerely yours; 1IURCHISON, TAYLOR & GIBSON, LLP h hic-0 Andrew K. McVey I AKNI EXHIBIT a� 9. STATE OF NORTH CAROLINA 1' •• t- ! IN THE GENERAL COURT COUNTY OF BRUNSWICK 0+ �U i _cd P7 SUPERIOR OI CVST DIVISION 3T LiE 0i\t111J,i\., 1\�"� i i •Y. C.S.C. . Marsh Harbour Marina, Inc. Plaintiff, V. Marsh Harbour Resorts, LLC, and Inlet Harbor Marina, Inc. Defendants. ANSWER Now, comes, Inlet Harbor Marina, Inc. ("Inlet Harbor") and,responds to the individually numbered paragraphs of Plaintiff's Complaint as follows: 1. Admitted 2. Admitted 3: Admitted 4. The allegations of Paragraph 4 Plaintiffs Complaint require a legal conclusion and therefore, no response is required by Inlet Harbor. 5. Admitted, except that no copy of the Lease was attached to the Complaint nor was a copy of the Lease served upon Inlet Harbor. 6. Admitted 7. Inlet Harbor is without sufficient information to respond to Plaintiff's allegations in Paragraph 7 of Plaintiff s Complaint that it has "full (sic) and completely performed maintenance upon the said premises". Therefore, such allegations are denied. The remainder of Plaintiffs Allegations in Paragraph 7 are admitted. 1 8. Denied 9. Inlet Harbor is without sufficient information to respond to the allegations in Paragraph 9 of the Plaintiffs Complaint and therefore, such allegations are denied. 10. Inlet Harbor is without sufficient information to respond to the allegations in Paragraph 10 of the Plaintiffs Complaint and therefore, such allegations are denied. it. Inlet Harbor is without sufficient information to respond to the allegations in Paragraph 11 of the Plaintiffs Complaint and therefore, such allegations are denied. 12. Inlet Harbor is without sufficient information to respond to the allegations in Paragraph 12 of the Plaintiffs Complaint and therefore, such allegations are denied. 13. Inlet Harbor is without sufficient information to respond to the allegations in Paragraph 13 of the Plaintiffs Complaint and therefore, such allegations are denied. 14. Denied 15. Denied WHEREFORE, Inlet Harbor respectfully prays the Court as follows: That the Plaintiff have and recover nothing of Inlet Harbor. 2. For such other relief as Court deems just and appropriate. This the 8' day of June, 2001. FLETCHER, RAY c SATTERFIELD, L.L.P. George L. Fletcher, State Bar # 08267 Attorneys for Defendant Inlet Harbor Marina, Inc. 130 North Front Street, Suite 300 Wilmington, NC 28401 (910)251-9900 CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that he has this day served a copy of the foregoing Answer upon all parties in this action by depositing the same in the exclusive care, custody and control of the United States Postal Service, in a postpaid, properly addressed wrapper addressed to: Andrew K. McVey, Attorney at Law 16 North 5ih Avenue Wilmington, NC 28401 J. Dwight Hudson, Attorney at Law 1203 48' Avenue North, Suite I I I Myrtle Beach, SC 29577 John W. Ormand, Attorney at Law 150 Fayetteville Street Mall Suite 1600 Raleigh, NC 27602 This the 8ih day of June, 2001.. FLETCHER, RAY & SATTERFIELD, L. P. By: eorge . F etcher, State Bar # 08267 Attorneys for Defendant Inlet Harbor Marina, Inc. 130 North Front Street, Suite 300 Wilmington, NC 28401 (910)251-9900 i,.!wi •,w.v. xn wwwu.n .a.,m of EXHIBIT g' 9 . n STATE OF NORTH CAROLIW` 16 A i I01* THE GENERAL COURT OF JUSTICE BRUNSWICK COUNTY. C.S.C. SUPERIOR COURT DIVISION COUNTY OF BRUNSWICK 01 CVS 225 BY MARSH HARBOUR MARINA, INC., Plaintiff, ) VS. ) ) MARSH HARBOUR RESORTS, LLC ) and INLET HARBOR MARINA, INC., ) Defendants. ) MOTION FOR ORDER AMENDING ANSWER DUE TO ule 1 NOW COMES Defendant, Marsh Harbour Resorts, LLC ("Defendant" or "Marsh Harbour Resorts'), by and through its undersigned counsel, and respectfully moves the Court for an Order amending the Answer filed by Marsh Harbour Resorts to convect a typographical error. As grounds therefor, Marsh Harbour Resorts states as follows. On or about April 16, 2001, Defendant filed and served its Answer and Motion to Dismiss in the above -captioned action. Defendant now seeks an Order from the Court amending its Answer on the basis that an obvious typographical error has only recently come to light. At paragraphs 13, 14 and 15, Defendant's Answer inadvertently recites admissions to the allegations contained in the corresponding paragraphs to the Complaint, when it should have recited denials. Paragraphs 13, 14, and 15 of the Complaint contain allegations that the parties have all along contested. These erroneous responses are contradicted by the rest of the Answer and Case No.: O1 CVS 225 Motion to Dismiss and the counterclaims Defendant asserts against Plaintiff. Furthermore, these erroneous responses directly contradict Defendant's prayer for relief, wherein Defendant states: WHEREFORE, MHR respectfully prays the Court as follows: 1. That plaintiff have and recover nothing of MHR; 2. That plaintiff's complaint against MHR be dismissed with prejudice; 3. That MHR have and recover incidental and consequential damages in an amount in excess of $10,000 from plaintiff on MHWs counterclaim; 4. For an order declaring the rights and liabilities of the parties, as described herein; and 5. For such other and further relief as the Court deems just and appropriate. As set forth in the attached 'Affidavit of Andrew K. McVey, counsel of record for Defendant at the time the Answer and Motion to Dismiss was served and filed, the erroneous admissions are typographical errors. (Affidavit of Andrew K. McVey, attached hereto as Exhibit "A," 16.) Mr. McVey intended to deny each of the allegations. (Affidavit of Andrew K. McVey, 16). Mr. McVey himself was first made aware of the errors when he received a,= telephone call from Kenneth A. Shanklin, Esq., who has only recently (April 4, 2002) filed his Notice of Appearance on behalf of Defendant in this action. (Affidavit of Andrew K. McVey, ¶ 7 ). Mr. Shanklin had noticed the error in his initial review of the pleadings. (Affidavit of Andrew K. McVey, 17). Upon learning of the error on March 28, 2002, Mr. McVey immediately telephoned counsel for the Plaintiff, Mr. I Dwight Hudson and informed him of the error. (Affidavit of Andrew K. McVey, ¶ 8). As Mr. McVey testifies, Mr. Hudson was genuinely surprised by the news of the erroneous admissions when Mr. McVey informed him of them. (Affidavit of Andrew K. McVey, ¶ 8). After consulting with his client, Mr. Hudson informed Mr. McVey that he would not consent to the amendment. (Affidavit of Andrew K. McVey, ¶ 8). As Mr. McVey further testifies, the error went completely unnoticed during the 2 Case No.: 01 CVS 225 course of the litigation, by both Mr. McVey and Mr. Hudson. (Affidavit of Andrew K. McVey, ¶ 9). The issue of liability, and the facts as set forth in paragraphs 13, 14, and 15, have been hotly contested by the parties in this action, as well as in a companion case pending in Brunswick County District Court in which Defendant seeks to .summarily eject the Plaintiff from the property. (Affidavit of Andrew K. McVey, ¶ 11). At no point in time did Defendant instruct Mr. McVey to admit the allegations in paragraphs 13, 14 and 15. (Affidavit of Andrew K. McVey, ¶ 12). Under Rule,15(a): A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall he freely given when justice so requires.... N.C. GEN. STAT. § IA -I, R. 15(a) (emphasis added). North Carolina's Rules of Civil Procedure contemplate liberality on the part of the Court in allowing amendments to the pleadings. See, � Performance Motors, Inc. v. Allen, 20 N.C. App. 445, 201 S.E.2d 513-(1974); Goodrich v. Rice, 75 N.C. App. 530, 33.1 S.E.2d 195 (1985). In fact, amendments should always be freely allowed unless the party objecting to the amendment can demonstrate some material prejudice. Phillips v. Phillips, 46 N.C. App. 558, 265 S.E.2d 441 (1980); Mauney v. Morris, 316 N.C. 67, 340 S.E. 2d 397 (1986). In this case, Plaintiff cannot meet its burden of demonstrating prejudice. Plaintiff has conducted itself throughout this litigation as if the Answer had recited denials to paragraphs 13, 14, and IS. The issues raised in Plaintiff s Complaint at paragraphs 13, 14 and 15 have been contested vigorously 3 Case No.: 01 CVS 225 by the parties. Neither counsel for Plaintiff or Defendant learned of the errors until March 27, 2002. Furthermore, as Defendant has raised the Statute of Frauds as an affirmative defense in its Answer, even if Defendant admitted the existence of a purported oral amendment to the alleged lease, any oral testimony offered to prove the promise is incompetent as a matter of law. See, e.Q., Balentine v. Gill, 218 N.C. 496, 500, 11 S.E.2d 456; 458-59 (1940). ("The rule is, however, that where the plaintiff declares on a verbal promise, unenforceable under the statute of frauds, and the defendant either denies that he made the promise or sets up another and different contract, or admits the promise and invokes the protection of the statute by special plea or answer, testimony offered to prove the promise is incompetent and should be excluded."). WHEREFORE, Defendant Marsh Harbour Resorts, LLC, respectfully requests that the Court issue an Order amending its Answer so that Defendant's responses to the allegations in paragraphs 13, 14 and 15 of the Complaint are deemed denied, not admitted. Respectfully submitted, This the 15t1i day of April, 2002. KENNETH A. SHANKLIN, NCSB #5826 MATTHEW A. NICHOLS, NCSB #23403 Law Office of Kenneth A. Shanklin Attorneys for Marsh Harbour Resorts, LLC Post Office Box 1347 214 Market Street Wilmington, NC 28402 Telephone: (910) 726-9400 Telefsx:(910) 251-1773 4 Case No.: 01 CVS 225 CERTIFICATE OF SERVICE The undersigned do hereby certify that a copy of the foregoing Motion for Order Amending Answer Due to Typographical Error was this date served by facsimile and by depositing said copy in the United States Mail, postage prepaid, to the following facsimile numbers and addresses: L Dwight Hudson Hudson & Gentry, LLC 1203 48 h Avenue N, Suite 111 Myrtle Beach, SC 29577 Facsimile: (843) 692-9190 George Fletcher Fletcher Ray & Satterfield 130 North Front St, Suite 300 Wilmington, NC 28401-3972 Facsimile: (910) 251-9667 This 15th day of April, 2002. MATHEW A. NICHOLS, NCSB #23403 Law Office of Kenneth A. Shan1din Attorneys for Marsh Harbour Resorts, LLC Post Office Box 1347 214 Market Street Wihnington, NC 28402 Telephone: (910) 726-9400 Telefax: (910) 251-1773 5 ::00MAT000CSVA AO005V40103U �€tiilBi r� STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF BRUNSWICK 01 CVS 225 MARSH HARBOR MARINA, INC., ) Plaintiff, ) VS. ) } MARSH HARBOR RESORTS, LLC ) and INLET HARBOR MARINA, INC., ) Defendants. ) AFFIDAVIT OF ANDREW K. MCVEY STATE OF NORTH CAROLINA ) COUNTY OF NEW HANOVER ) BEFORE ME, the undersigned authority, personally appeared, who by me being first duly swom, deposes and says that: 1. I am Andrew K. McVey. I am over the age of eighteen and make this affidavit based upon personal knowledge. 2. I am a member of good standing with the Bar of the State of North Carolina. 3. I practice law at the firm of Murchison, Taylor & Gibson, L.L.P., 16 North Fifth Avenue, Wilmington, NC 28401 4. I represented Defendant Marsh Harbor Resorts, LLC ("Marsh Harbor Resorts") in the above -captioned action until the Order allowing my withdrawal was signed on January 22, 2002. 5. On or about April 16, 2001, I served and filed for Marsh Harbor Resorts an unverified Answer and Motion to Dismiss, a copy of which is attached hereto as Exhibit "A". 6. The Answer at paragraphs 13, 14, and 15 contains typographical errors. Each of these paragraphs recites that `Me allegations set forth in paragraph ... of Plaintiff's Complaint are admitted." The Answer at paragraphs 13, 14 and 15 should instead recite: "The allegations set forth in paragraph ... of Plaintiff's Complaint are denied." I intended to deny, each of these allegations. 7. I was first made aware of this typographical error, by a telephone call from Kenneth A. Shanklin, Esq., on March 28, 2002. Mr. Shanklin has entered his appearance in the action as of April 4, 2002, as replacement counsel for Marsh Harbor Resorts. Mr. Shanklin noticed the error in his initial review of the pleadings. 8. Upon learning, of the typographical error, on March 28, 2002, I immediately i telephoned counsel for Plaintiff Marsh Harbor Marina, Inc., Mr. J. Dwight Hudson. I informed Mr. Hudson of the error and requested that he consent to an amendment to the Answer and Motion to Dismiss. Mr. Hudson was genuinely surprised by the news of the typographical error when I told him about it. Mr. Hudson indicated that he would need to confer with his client before consenting to the amendment. Over the next several days, I left multiple telephone messages with Mr. Hudson, who apparently had been unable to make immediate contact with his client. On Wednesday, April 3, 2002, Mr. Hudson telephoned and stated that his client would not allow him to consent. 9. In the course of my representation of Marsh Harbor Resorts, the typographical error went completely unnoticed, both by Mr. Hudson and myself. -2- 10. The, inadvertently "admitted" responses to paragraphs 13, 14 and 15 are entirely inconsistent with, and are directly contradicted by, the rest of the responses and affirmative defenses raised in the Answer and Motion to Dismiss. Furthermore, these typographical errors are completely inconsistent with, and are directly contradicted by, Defendant Marsh Harbour Resorts' prayer for relief and counterclaim against Plaintiff. 11. The corresponding allegations in Plaintiff's Complaint have been hotly contested in connection with the motion arguments in this and a companion case presently pending in Brunswick County District Court. In that case, Marsh Harbor Resorts seeks to summarily eject had x" Marsh Harbor Marina, Inc., from the premises which are the subject of the instant action. I have appeared for Marsh Harbor Resorts in that matter; and Mr. Hudson is counsel for Marsh Harbor Marina in that matter., 12. 'At no point in time did Defendant Marsh Harbor Resorts instruct me to admit these allegations. . AFFIANT FURTHER SAYETH NOT tX�w� f . 111L Andrew K. McVey SWORN TO AND SUBS�iBED REME THIS DAY OF •.•�yr,OEH(�9+,,��,, APO 02. .` �O+• s : p'pA1tY i ci P o�d���`� y�C p�JB ? tary Public �2�•t� •.� r� ,4NpyEp,CO••••` M Commission Expires a �lJ a&d5 -3- OFFICE OF THE CHIEF JUSTICE OF THE SUPREME COURT OF THE STATE OF NORTH CAROLINA Re: Marsh Harbour Marina, Inc. V. Marsh Harbour Resorts and Inlet Harbour Marina File No. 01-CVS--225 And Marsh Harbour Resorts, LLC V. Marsh Harbour Marina, Inc. File No. 00-CVD-156 Brunswick County File Numbers: 01-CYS-225, 00-CVD-156 Tl The Honorable William C. Gore, Jr., one of the Senior Regular Resident Judges of the Superior Court of North Carolina, Greeting: As Chief Justice of the Supreme Court of North Carolina, by virtue of authority vested in me by the Constitution of North Carolina, and in accordance with the laws of North Carolina, the Rules of the Supreme Court and, specifically, Rule 2.1 of the General Rules of Practice for the Superior and District Courts, 1 hereby designate the above-styled.case(s)' as exceptional. Therefore, i hereby assign The Honorable Ben F. Tennille, one of the Special Judges of the Superior Court of North Carolina, to hold such sessions of court as may be set and to attend to such in -chambers matters and other business as may be necessary and proper for the orderly disposition of the case(s) until otherwise ordered. In Witness Whereof, I have hereunto signed my name as Chief Justice of the Supreme Court of North Carolina, on this day, July 18, 2002. Chief Justice ofthe CgL urtofNorthC,aroba /:Dv-/ . T o� Administrative Assistant to the Chief Justice