- Published on Thursday, 23 August 2012 22:33
- Written by Super User
You're in violation of your lease. Comply now or suffer the consequences. That's the message from the U.S. Army to the Town of Carolina Beach. They have to move the majority of their Operations Department elsewhere after the Army notified them land leased on Dow Road was only meant for a sewer treatment plant.
By WILLARD KILLOUGH III
CAROLINA BEACH - The Town of Carolina Beach may have to move the majority of their Operations Department off military land. One option recently discussed by the Town Council is renting space in the old Food Lion shopping center just south of Town Hall on North Lake Park Blvd.
Decades ago the Town of Carolina Beach leased land from the U.S. Army to construct a wastewater treatment plant. Earlier this year the Town was notified they are in violation of the lease terms by using the land for uses not permitted in the lease. They have until the end of the year to comply.
The Town of Carolina Beach "Operations Yard" is located off Dow Road on land leased decades ago from the U.S. Army.
Following an inspection last year, the military informed the Town in April their use of that land was largely in violation of the 1972 lease.
That lease only permitted a wastewater treatment plant, a storage building and related uses. At their June 12, meeting the Council approved $100,000 to fund efforts to comply with the original conditions of the lease. The property currently houses the Town's Operations Department including public works, public utilities, storm water department and the Town's garage. Additionally, it's home to a greenhouse and various office and storage areas.
The Army is demanding the Town comply by the end of 2012. The "buffer zone" is land owned by the U.S. Army for the Military Ocean Terminal at Sunny Point (MOTSU) across the Cape Fear River in Brunswick County. The port deals in ammunition and the buffer zone serves as a "blast zone" in the event of an incident. The zone covers the largest area of land west of Dow Road in Carolina Beach, Kure Beach and Fort Fisher.
On November 7, 2011, Sunny Point officials inspected the Operation's yard and other areas of the buffer zone used by the Town. A letter date January 19, 2012 was sent to Carolina Beach Town Manager Tim Owens providing a copy of the inspection report.
The Town sent a letter back outlining improvements noted in the Army's inspection report.
On April 13, Cindy B. Turner, Savannah District, Deputy Chief, Real Estate Division for the Army Corp of Engineers wrote to the Town, "Pursuant to Condition No. 6 of the subject lease, compliance inspections of the leased premises were conducted on November 7, 2011 with a follow-up inspection on March 22, 2012, by my staff and Mr. Michael Fuller of Military Ocean Terminal, Sunny Point. Both inspections identified deficiencies regarding the use of the leased premises. During the follow-up inspection the recent construction of a water retention pond to collect contaminated water runoff adjacent to the dumpsters was noted. It is evident that the lease site is being utilized for operations that do not comply with the terms and conditions of our lease."
Turner explained the 1972 lease states, "The area will be used for construction and operation of a sewage treatment facility and necessary appurtenances and the construction and maintenance of a 40' x 100' storage building and fenced outside storage area."
She explained, "A review of our files shows multiple requests by the Town of Carolina Beach and subsequent denials for permission to relocate the town's public works area, utilities equipment, parking area, supplies and materials to this lease site."
The Town was given until the end of June to present a plan for compliance to remove items stored for auction, multiple storage buildings, FEMA trailer, marine vessels, generators, undercarriage water station, maintenance shop and multiple dumpsters and retention pond. That must be finished by the end of the year. That plan was submitted to the Army by the June deadline including a resolution adopted by the Council at their June 22, meeting to send along with the corrective action plan.
That resolution stated the Town will spend around $200,000 to make corrections and comply. It stated, "The Town contends that it has historically and with the knowledge by leaders at the Military Ocean Terminal, Sunny Point, operated all aspects of a public works, storm water, waste water treatment plant, water and waste water collections operation."
In the resolution the Town claims limited funds and limited options for relocating to other land suitable for construction of public works facilities, and have limited potential to rent available space for the operation of a public works facility.
The Town requested that officials at Sunny Point consider approving a lease amendment for the "historical uses that have been permitted in the leased area" and, "An amended lease is extremely important to the Town given limited availability of tracts large enough to accommodate a public works facility in Carolina Beach and the cost of acquiring the land."
According to the plan submitted to the Army, the Town will take corrective actions requesting progress meetings at regular intervals and be finished by December 31, as ordered. They will also request a 50-year extension to the original lease.
Town Manager Tim Owens indicated to Council the difficulty of meeting the December 31, time-line and the expense of obtaining various permits required to relocated various operations from that property.
A Sunny Point official informed the Town they are 18 months away from the lease expiring and the way the Town is currently using the leased land does not appear to be an activity that will be favorably considered either locally or up the chain at the Pentagon or the Secretary of the Army's level. They cannot modify that activity to allow renewal of the lease at this point and have not researched other requirements concerning military buffer zones.
On July 6, after receiving the corrective action plan from the Town, Ralph Werthmann, Chief of the U.S. Army Corp of Engineers, Savannah District, explained in a letter to the Town they had received the Corrective Action Plan and, "I am returning your submission without action. The submitted plan does not adequately address the primary reason for non-compliance which is, use of the leased premises for activities not authorized by the lease. Any increase in the currently approved use within the lease area is prohibited. Carolina Beach's proposal to pursue and/or correct all deficiencies only after a response to the Corrective Action Plan is provided is in violation of the terms and conditions of the current lease document as supplemented."
Werthmann explained, "During the telephone conference of May 31, 2012, town representatives were made aware that any activities outside those authorized could not be favorably considered. Over the past thirty years, the Government has received and disapproved multiple requests from the Town of Carolina Beach for additions to the lease area. As one example, I have enclosed a copy of a letter dated, January 28, 1987, from the Deputy Secretary of the Army for Environment, Safety and Occupational Health to Congressman Charles Rose in response to a similar request from the Town of Carolina Beach."
Werthmann explained, "You will note in the response that Title 10 U.S. Code 172 sets legal requirement for the Armed Forces regarding ammunition supplies. Various implementing regulations and guidelines require these restrictions to ensure that known hazardous conditions, endangerment of life and property inside and outside of military installations are avoided."
He explained, "I therefore urge your immediate action to remove all unauthorized structures and cease all unauthorized activities and occupancy in and upon the leased premises. I also request correction of all deficiencies as noted during the compliance inspections. It remains my expectation that removal of all items not specifically authorized for the operation and maintenance of the sewage treatment facility be accomplished by December 31, 2012."
Werthmann repeated the specific restrictions contained in the lease and explained, "Items that require corrective action and/or removal include, but are not limited to; items stored for auction, multiple storage buildings, FEMA trailer, marine vessels, generators, undercarriage water station, maintenance shop, multiple dumpsters and retention pond."
Werthmann provided proof of the Government's stance on such uses on their property in a letter dated January 1987 to then Congressman Charles Rose from Lewis D. Walker, Deputy for Environment, Safety and Occupational Health for the U.S. Army. That letter stated, "The Sunny Point buffer zone is prescribed by the Department of Defenses' Explosives Safety Standards based on the maximum anticipated quantity of explosives to be handled at the terminal. Personnel and property outside the buffer zone are therefore not in danger of serious injury or damage. Likewise, the prohibition on non-Department of Defense buildings within the buffer zone is prescribed by Department of Defense policy and can not be modified or set aside without jeopardy to public safety or constraint of the terminal's essential defense mission."
The letter states, "While I appreciate the real estate constraints of the peninsula beach communities, I am enjoined by law to deny construction within the buffer zone. Under 10 U.S. Code 172, the Armed Forces are required to keep supplies of ammunition and components properly dispersed and stored to prevent hazardous conditions from arising to endanger life and property inside or outside of military reservations. The Department of Defense Explosives Safety Standards implement this statutory responsibility and were derived from standards used by Federal, state and local agencies."
Town Manager Tim Owens said that indicated, "There doesn't seem to be a lot of flexibility."
Council member Sarah Friede commented last month her impression was Army officials have a problem with human occpancy of land saying, "I also got the feeling from that call that they really thought the waste water treatment plant could be operated without human beings there" and, "I think we are already, in their opinion, pushing the limits by having people at the wastewater treatment plant. I don't think that's reasonable of them to expect the plant can run itself and that we somehow can run it remotely."
Faced with having to find alternate locations for much of their Operations Department and some thirty employees, the Council directed Owens to examine all available options.
On August 16, the Council discussed several options to reply to the Army. Town Manager Tim Owens said after researching minutes of Council meetings in 1972 when the lease was last amended, "Between 1971 and 1973, the records reflect that Town leaders had approval from the Department of the Army to construct a storage building and open storage area that would serve the Public Works Department which included equipment, vehicles, materials, personnel and garage."
Owens said one option is to show that research and request the Army allow the Town to continue to, "Perform the typical finctions of a Public Works Department within the approved 40' x 100' building and open storage space."
He also spelled out the other actions the Town would take to pull back such operations to that building and open storage area. Owens said one option would be to get a permit from the Town under zoning regulations to relocate a "lay-down" storage area near Greenville and Spartanburg Avenues on residential property currently owned by the Town.
Other locations include adjacent to Town Hall or by renovating a small building behind the recreation center for Operations employees. Another option discussed was to alter the layout of offices within Town Hall to accommodate Operations employees entering and existing offices in the rear of the building. That would shift administrative offices into an open atrium in the center of Town Hall that could be modified for additional office space.
For example, they could move a modular office to the grassy area behind Town Hall near 7th Street.
Another option is to convert the Council's conference meeting room into space for Operations employees to clock in and out each day and other related uses.
Owens said due to limited time, even moving the trailer behind town hall would require a couple of months to get zoning approval and that leaves little time before the end of the year deadline.
Owens said if he could, he'd find an acre of land to purchase and relocate the Operations Department.
Owens said renting space in Federal Point Shopping Center is a better location. He said that could be a viable option for two years to give the Town more time to figure out a long term solution if the Army isn't flexible on allowing some limited uses per his research of the lease in 1972.
Councilman Steve Shuttleworth said a two year lease with the shopping center would provide ample space for employees, parking, and avoid controversy with residential neighbors at several locations in town including behind Town Hall, and infrastructure is already in place. He said that would give the Town time to find a long term solution.