Appeals Court Upholds Ruling In Holden Beach Access Case
BY RAHN ADAMS
A four-year-old battle over public access to the
western end of Holden Beach came a step closer to
being resolved this week when the N.C. Court of Ap
peals affirmed a lower court ruling that Ocean View
Boulevard West is private through Holden Beach West
subdivision.
According to the appellate court clerk's office in
Raleigh, the unanimous decision was announced
Tuesday morning in an opinion written by Judge Sid
ney Eagles. A three-judge panel composed of Eagles,
Sarah Parker and Robert Orr heard the appeal May 17
in Wilmington.
Plaintiffs in the 1985 lawsuit are a group called
Concerned Citizens of Brunswick County Taxpayers
Association and the N.C. Department of Natural
Resources and Community Development Defendant
is Holden Beach Enterprises Inc., developer of Holden
Beach West.
Details of the appellate court opinion could not be
obtained by presstime. When contacted Tuesday after
noon, both Concerned Citizens attorney Jim Maxwell
of Durham and developer James Griffin said they
were unaware that the ruling had been announced.
Assistant Attorney General Allen jemigan, who repre
sented the state in the case, could not be reached
Tuesday.
Maxwell indicated that the N.C. Supreme Court
probably will be petitioned to review the case, even
though the appellate court decision was unanimous
and the high court may choose not to consider the
matter. He noted that the Supreme Court automatical
ly reviews split appellate court decisions.
Like Maxwell Griffin said Tuesday he could not
comment on the ruling since he had not read it yet.
However, he observed, "I just hope this would finally
put an end to it."
The suit involves the citizens group's and state's
contention that Ocean View Boulevard West through
the subdivision is a public right-of-way, even though
the development firm constructed a gate and guard
house at the Holden Beach West entrance to restrict
public traffic.
A fundamental issue in the case is the theory of
prescriptive easement; whether or not access rights
were established by what the plaintiffs maintain was a
continuous and uninterrupted use of a definite route
over at least a 20-year period. The plaintiffs have con
tended that the public used the road for up to 50 years.
The case was tried in November in Brunswick
County Superior Civil Court. Judge Bruce Briggs of
Madison County ruled that the public's used of the
road was interrupted, because the developer erected
various barriers beginning in 1963 to block the road.
Also, Briggs found that the route taken by the public
"has not been confined to a definite and specific line
of travel."
NiC, 6v
iOOK 81^31
Tiir .s/' 1
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(ICK ?BEACON
Twenty-seventh Year, Number 41 ciwwtwbiiuwwickbeacow Shallotte, North Carolina, Thursday, August 17, 1989 250 Per Copy 38 Pages, 3 Sections, Plus Inserts
What Next, Big Brother?'
Kighteen-month-old Cammie Anderson of Chapel Hill appears to be wondering what to do next after that
she and her brother, seven-year-old Luke, complete a major excavation project Sunday afternoon at
Ocean Isle Beach. The pair soon found their next job ? bailing out their hole, which was flooded by an
incoming wave.
Two Withdraw From Fall Election
BY DOUG RUTTER
Two persons have withdrawn as
candidates in the fall municipal
election, including one local may
oral candidate.
Marion Davis has withdrawn as a
candidate for mayor of
Vamamtown, and William White
has dccided not to seek election to
the Navassa Town Council, accord
ing to Brunswick County Board of
Elections Supervisor Lynda Britt.
Davis, who presently serves on
Uie varnamtown Board of
Aldermen, said Monday he with
drew as a candidate because he
does not want the mayor to be elect
ed with less than half of the votes.
Prior to his withdrawal, there were
three candidates for mayor.
The remaining two candidates for
the two-year mayor's post are Judy
Galloway and Barbara "Bobbie"
Varnam. Davis said both are quali
fied to hold office and that he will
support whomever is elected.
"If I won, the town would have
lost," he said. "If any other candi
date would have won, with three
people running, the town would
have lost."
Davis said he sent letters early
last week to the Brunswick County
Board ot klcctions otlice and to the
town clerk concerning his decision
not to seek office.
He said he had filed for the
mayor's post on the final day of the
filing period mainly because there
were no candidates for the office at
that point and bccausc he didn't
want the town to be without a can
didate for mayor. The other two
candidates filed for office after he
did, he said.
"I love the town and the people
too much to jeopardize what we
have," he said. "I just don't think it
would be in the best interest of the
town to have a mayor elected with
out the support of more than half of
the people."
Davis, who was heavily involved
in working toward incorporation ot
the community last September, will
continue to serve as aldeiman
through the end of November.
He said he hopes to stay active in
town affairs by serving on commit
tee WITHDRAW, Page 2-A)
District Attorney Easley Eying Senate Race
District Attorney Michael Easley
is uic uiik of liic iuwii uicac days ?
not just in Bolivia, but also in
Raleigh, where his name has been
mentioned as a possible Democratic
contender against U.S. Sen. Jesse
Helms next year.
Easley told the Beacon Tuesday
that certain Democratic leaders
across the state have asked him to
run in the 1990 U.S. Senate elec
tion. "I've just promised them that I
would not close the door to it,"
Easley said. "I promised to keep an
OpCu liiiiiu."
The district attorney S3id key fee
iui5 iii 1112 eveuiudi ucci^iuti will be
whether or not former Gov. Jim
Hunt decides to run again, as he did
unsuccessfully against Helms in
1984; and whether or not enough
financial backing appears to be
available for a "new face" in the
senate race.
"I wouldn't give it any considera
tion at all if he (Hunt) ran," Easley
said, then added about other poten
tial Democratic candidates, "When
you get past Hunt, you get into the
bauic of die midgets."
Easley cwnhssscd, however,
liiai iiis "primary cuiiccrn is liic job
I'm doing now." He said his inten
tions now are to run for re-election
next year. He has served as the 13th
District attorney since 1982.
He noted that word of his possi
ble Senate candidacy and also of a
possible run for state attorney gen
eral first surfaced in a political col
umn in the Raleigh News and
Observer. Easley commented with a
chuckle, "The N&O keeps putiing
me in these different races."
Neighboring Communities Will
Vote Tuesday On Consolidation
BY DOUG RUTTER
Registered voters from Calabash
and Carolina Shores will go to sep
arate polling places next Tuesday to
decide if the neighboring communi
ties will become one municipality.
Calabash voters wi!! go to their
normal polling place at the fire sta
tion, and eligible voters from
Carolina Shores will be able to cast
ballots at the property owners asso
ciation building. Polls in both
places will be open from 6:30 a.m.
until 7:30 p.m.
Rejection of the consolidation
plan by either group will cause the
proposal to die. As of Tuesday
morning, the Brunswick County
Board of Elections office could not
provide the number of residents
registered to vote in next week's
special election.
Following the referendum, there
will be a special filing period from
Aug. 25 through Sent. 8 for persons
interested in running in the fall
municipal election.
if the merger proposal fails, the
filing period will be for the existing
Town of Calabash. The mayor's
post and all five seats on the town
council are up for election this Nov
ember.
If both communities vote in favor
of consolidation, however, the spe
cial filing period will be held to
accommodate those who desire to
run for elected offices in the en
larged Town of Calabash, which
would include all 87S acres of the
Carolina Shores golf course com
munity.
Under the merger plan, there
I*/* ft ? >n PArt fo a1a/?*a/4 (<v\m
rVV'UlU l/V tl ? V kfVMtO VIVViVU ilVilt
Carolina Shores and two seats elect
ed from the existing Town of Cala
bash. The mayor could be elected
from either area, and all voters in
the town would vote for candidates
from both districts.
If residents of both areas vote in
favor of consolidation, it would
take effect Aug. 31. The election of
new officials would be held Nov. 7
at the same time as other municipal
elections. Tne state legislation al
lowing for consolidation features
provisions that would establish
staggered four-year terms on the
town board of commissioners.
Calabash Councilman John High,
the only town board member in
June to oppose sending the consoli
dation proposal to a referendum,
has said repeatedly that the voters
of Calabash will not accept the plan
because of the 5-to-2 split on the
town board.
However, Mayor Doug Simmons
said last week that the residents
with whom he has spoken seem to
be evenly split on the proposal.
Leaders from Carolina Shores
have said they do not have a good
idea how residents of the communi
ty feel about the issue and arc
unsure how the vote will turn out.
Next week's referendum on the
consolidation of Calabash and
Carolina Shores stems from the
work of a committee that organized
in March at the request of state rep
resentatives to work out differences
between the two areas.
Legislation introduced earlier this
year that would have allowed a vote
on the incorporation of Carolina
Shores as a separate municipality
drew opposition from Calabash of
ficials, who have said they would
like to have the option of annexing
the community into the town limits
(See NEIGHBORING, Page 2-A)
Drug Tax Bill Comes In
Under Legislative Wire
BY RAHN ADAMS
After pushing a controlled sub
stance tax bill for the past six
months. State Sen. Robert Shaw
breathed a little easier Friday at
2:15 p.m. That was when his legis
?? mn rntiftArl <Ia?? Urt fVirrt
utuv/ii nuo iuuiiwu vynv uaj i/vtv>v
the General Assembly adjourned its
longest session in history.
"The bill was kind of hung up in
committee on Thursday, and we
knew we'd be adjourning this
week," the Greensboro senator and
Holden Beach property owner told
the Beacon in a telephone interview
Sunday. "There was a lot of action
on it in 24 hours."
After being introduced by Shaw
in late March, the bill was reviewed
by seven committees in the Senate
and House, Shaw said. It received
unanimous support in the Senate,
and last week was approved unani
mously on second reading by the
House.
The only substantive change in
the legislation was the date it will
take effect; Jan. 1, 1990, instead of
Oct 1. Shaw noted that the change
was made to give the Department of
Revenue additional time to prepare
to handle the new tax.
"I think it was worth every
minute I spent in the General
Assembly iiiis year," Shaw said. "I
put in six months of hard work on
it." He also was gratified that fellow
legislators' response to the bill "was
in such accord and so favorable," he
added.
The new tax calls for levies of
approximately $100 per ounce of
marijuana and $200 per gram of
cocaine and other controlled sub
stances. Illegal drug dealers who do
not pay the tax within 48 hours of
obtaining the illegal drugs would be
subject to the tax, an additional
penalty equal to the tax, imprison
ment of up to five years and a fine.
While it isn't likely that many
drug dealers will pay the tax up
front, Shaw said the legislation will
give district attorney's a new "tool"
with which to fight drug trafficking.
Tjip Kj i j woe supported by 1 3 Lh
District Attorney Michael Easley.
When he introduced the legisla
tion in March, Shaw estimated that
the tax and non-payment penalties
would have raised about $400 mil
lion last year across the state.
Shaw reiterated Sunday that he
came up with the legislation, which
is modeled after similar taxes in
other states, after reading the Bea
con's accounts of drug trafficking
prosecutions in Brunswick County
over the past couple of years. He
noticed that very few defendants
here were being required to pay
mandatory minimum fines.
Under state law, a judge can
impose less than the mandatory
minimum fine ? and prison term ? if
he finds that a defendant has pro
vided "substantial assistance" to
investigators. In cocaine cases, for
example, the mandatory minimum
fines are $50,000 for charges
involving 28 grams of the con
trolled substance, $100,000 for 200
gram counts and $250,000 for 400
giaiu tAAUtia.
Be Prepared!
While a hurricane isn't any
thing to look forward to, it's
only smart to be prepared
should one threaten the Bruns
wick County coast. A guide for
riding out the storm safely is
inside this issue. Pages 5-B to
R-R
New Septic Tank Rules Could
Allow More Island Development
" These changes will not
allow every lot to be
approved for a septic tank,
but they will allow a greater
number to be approved ..."
? Michael Rhodes
County Health Director
dredge spoil taken from man-made canals and the
Atlantic Intracoastal Waterway. Lots Tilled prior to July
1, 1977, fall under this category. New fill is material
applied to the top of a lot after July 1, 1977.
The paragraph was inserted following three public
hearings statewide, at which a number of speakers said
they understood the issue would be addressed in the
new regulations. Speakers asked for grandfathering of
lots platted before changes in state septic tank regula
tions and for the ability to use fill to obtain required
separation from the water table.
Steven Berkowitz, an engineer with the division of
BY DOUG RUTTER
More owners of canal lots on the local barrier
islands and land bordering the intracoastal waterway
should qualify for septic tank permits under a new set
of suae regulations adopted last week by the N.C.
Commission for Health Services.
The new rules, which will take effect Jan. 1, 1990,
could allow development of more than half of the pre
viously unbuildable canal lots on Brunswick County's
barrier islands that were built up with dredge spoil
before 1977, according to local health director Michael
Rhodes.
These changes will not allow every lot to be
approved for a septic tank, but they will allow a greater
number to be approved depending on the size or the lot
and the type of soils that are there," said Rhodes.
The state health services board adopted the new
regulations last Thursday after about two years of work
by the N.C. Division of Health Services staff.
Rhodes said the changes with the biggest local
impact have to do with a new section dealing specifi
cally with "fill material" and a section on operations
and maintenance He said the section on fill dirt is
divided into two parts dealing with new fill and existing
fill.
Existing fill applies to lots created primarily with
hcaii.ii services, said the new ruie for existing fiil will
allow septic tanks to be permitted if there was a! least
24 inches of suitable sandy fill material placed on the
lot prior to 1977 and there is at least an 18-inch separa
tion between the surface or uie lui anu die waici tabic.
He said the 1977 cutoff date was chosen because
that is when the current state septic tank regulations
went into effect, and it is close to the time when North
Carolina stopped permitting dredge and fill operations.
Rhodes noted that each lot will still be considered
on a case-by-case basis and will still have to meet set
back regulations and other criteria that have limited
canal lot development in the past But generally speak
er , he said the new rules should allow more develop
r ont in areas uiat have been restricted over the past
three years.
Since local health officials reinterpreted state septic
tank regulations in 1987 to comply more closely with
the state's interpretation, a number of canal lots have
been turned down for septic tank permits because
because current regulations do not address fill material
and require at least one foot of natural soil above the
water table in order to permit the use of a septic tank.
Holdcn Beach Commissioner Georgia Langley, who
has been working for the past year on changing existing
state regulations that restrict development of canal lots.
saiu she was told by state officials thai the new regula
tions will allow the use of septic tanks on about 35 per
cent of the lots on the island that are now considered
unbuildable.
"From what I've been told, it's going to have a
great impact here at Holden Beach," she said Monday.
In addition to allowing the permitting of septic sys
tems in more areas, Rhodes said the new regulations
should also promote the use of alternative wastewater
treatment and disposal systems.
To ensure proper monitoring of those systems, he
said the new regulations require local health depart
ments to oversee a "management entity" that will be
responsible for the inspection of all non-conventional
systems. Tne oid ruies did not include any requirements
for continual inspections and maintenance of alternative
systems.
Rhodes said local health officials and the county
board of commissioners will have to decide within the
next year how management of alternative systems will
be handled. A system for inspections will have to be in
place prior to July 1990, he said.
The new regulations will have to pass through a
technical review board which ensures the health ser
vices commission has the authority to pass the rules
before they lake effect in January, said Rhodes.