20110410 Ver 3_DENR COR - from Town of Wrightsville Beach_20160812

WESSELL & RANEY, L.L.P.
ATTORNEYS AT LAPP
POST OFFICE Box 1049
WTUIINGTON, NORTH CAROLINA 28402-1049
JOHN C. WESSET'l, III
[e-mail]
Wn,Luaf A. RAxEy, JR.
[e-mail]
Mr. Braxton Davis
400 Commerce Avenue
Morehead City, NC 28557
Mr. Doug Huggett
400 Commerce Avenue
Morehead City, NC 28557
Mr. Robb Mairs
127 Cardinal Dr. Ext.
Wilmington, NC 28405
Ms. Karen A. Higgins
N.C. Dept. of Envirom-nental Quality
512 N. Salisbury St., 9h Floor, Suite 942d
Raleigh, NC 27604
Re: CAMA Major Permit Application
Bailey & Associates, Inc., Applicant
Grand View Community Boating Facility
202 Summer Rest Road, Wilmington, NC
Dear Ms. Higgins and Messrs. Davis, Huggett and Mairs:
STREET AiDDREss:
107-B NoRTu 2" STREET
WMMOZOTON, NO 28401
TKLEPno,N= 910-762-7475
FACS MILE: 910-762-7557
I am the Town Attorney for the Town of Wrightsville Beach ("Town"). The Town has obtained a
copy of correspondence from Matthew Nichols to you dated July 28, 2016 in -which he responded to
comments made by the Town regarding the above -referenced CAMA permit application. Please consider
the following responses to the comments of Matt Nichols when considering the application by Bailey &
Associates, Inc, ("Bailey") to enlarge its docks near the Wrightsville Beach drawbridge.
1. The casement from the State to the Town need not be recorded to be valid as between
the State and the Town. "As between a grantor and grantee, a deed of conveyance is valid and is of no
consequence whether it is registered at all." Vol. 2, Patrick K. Hedrick and James B. McLaughlin, Jr.,
Webster's Real Estate Law in North Carolina, § 17.02[3].

Mr. Braxton Davis, et al
August 12, 2016
Page Two
2. The easement from the State to the Town is superior to the easement from the State
to Bailey. A grantee in a deed given without consideration, a donee, does not come under the protection
of the recordation statute because the grantee is not a purchaser for value. Ibid., § 17.02[3]; § 17.03[1].
The easement obtained by Bailey for its existing pier was granted without valuable consideration being
paid by Bailey.
3. The easement granted by the State to Bailey is subject to the easement granted by the
State to the Town. Both N.C.G.S. § 146-12(8)(4) and paragraph 4 of the easement from the State to
Bailey make the easement to Bailey subject to rights conferred by previous conveyances by the State for
the same property. When a grantor accepts a conveyance subject to an outstanding claim or interest
evidenced by an unrecorded instrument executed by the grantor, the grantee takes the property subject to
the claim or interest. Ibid., § 17.02[1]. Paragraph 4 of the Bailey easement states: "This Easement is
subject to all rights conferred in previous conveyances by Grantor in and. to the Easement Area."
4. The Town's easement is adequately described. "The majority of North Carolina cases
seem to allow the parties to locate the easement by'practical location'." Ibid. , § 15.07(B). In this case,
the actual location of the sewer force main identifies the location of the easement. See Builder's Supply v.
Gainey, 282 N.C. 261, 192 S.E.2d 449 (1972). The width of the Town's easement is that which can be
inferred from its use and from extrinsic evidence such as the engineering drawings attached to the
easement. The drawing showing the dimensions and location of the "silt retention" shows an area 70 feet
wide for the initial construction area. A similar width or greater would likely be needed for maintenance
and repair. Please refer to the easement from the State to the Town, attachment, Sheet 3A of 3.
5. The easement granted to Bailey is inconsistent with the prior easement granted to the
Town. The Town's responsibility for maintenance and repair of its sewer force main is inconsistent with
the presence of a marina. The opinion of Greg Thompson, P.E., submitted by the Town to DCM
describes the inconsistency. The letter from Charles Crazier, P.E., the applicant's engineer, to Karen
Higgins dated July 28, 2016 opines that the construction of the proposed docks and the dredging will not
damage the sewer force main. However, Crazier does not address the issue of the delay in emergency
response in the event of a failure of the line in the vicinity of the marina. The provisions of G.S. § 146-
12(g)(4) and the provisions of paragraph 4 of the Bailey easement make the Bailey easement void or
inapplicable to the area within the Town's easement.
6. The, easement granted by the State to Bailey does not include most of the area where
Bailey is seeking to construct new structures. The Bailey easement is described as a 10' wide strip
"located 5 feet on each side of and parallel to the center of the existing pier and to extend 5 feet beyond
the end of the pier." Virtually all of the modifications requested in the Bailey application are outside of
the 10' strip.

Mr. Braxton Davis, et al
August 12, 2016
Page Three
7. The Town reiterates its position that the existing Bailey pier and the proposed
modifications to create the Grand View Marina are not within the riparian corridor of the
applicant. The applicant has used the channel of Motts Creek near the Summer Rest bridge as the point
from which to draw a perpendicular line to the west end of the applicant's waterfront property. Yet, on
the east end of the applicant's tract where the channel of Motts Creek is deeper and more navigable, the
applicant inexplicably uses the Intracoastal Waterway rather than Motts Creek as the channel from which
it draws a perpendicular line as a boundary of its riparian area. The State should recognize its mistake in
the issuance of the 2001 permit to CGRS Enterprises, and should, at a minimum, deny Bailey's
application for further development within an area that is not within Bailey's riparian corridor.
There is one additional point for your consideration. In the correspondence from Gregory R.
Thompson, P.E. with SEPI Engineering & Construction, Inc. to Tim Owens, the Town Manager of
Wrightsville Beach, dated July 28, 2016 (a copy of which has previously been provided to you), Mr.
Thompson outlined the difficulties that the existing pier as well as any extensions to the existing pier
would create in the event a new force main is installed to serve the Town of Wrightsville Beach. The
Board of Aldermen of the Town of Wrightsville Beach at their meeting on August 11, 2016 authorized
the Town Manage to begin the process of installation of a second force main at this location. The obvious
reason for this second force main is to create redundancy in the event of a problem with the existing force
main. As Mr. Thompson noted in his letter, any expansion of the existing pier will only make the
installation of the second force main more difficult than it already will be in view of the fact that a pier
currently blocks the only likely route for location of the new force main.
Thank you for your consideration of these comments. Please contact me if I may be of further
assistance in helping you to understand the Towns position.
Yours very truly,
WESSELL & RANEY, L.L.P.
L
John C. essell, III
JCW:ktw
JCW\WRBCH\W08-097-C 102