By By JONATHAN CLAYBORNE
Staff Writer
The complex legal agreements that hatched The Marina at Moss Landing might cause some seasoned attorneys and municipal officials to scratch their heads in confusion.
One official who isn’t confused is Washington’s mayor pro tempore, Bobby Roberson, who retired as Washington’s city planner before being elected to the City Council.
“It’s pretty complicated,” Roberson said of the marina compact.
The setup is legal, Roberson said, adding, “It took a long time to do it.”
So, why is this marina unusual?
“It’s unusual because the actual boat slips abut property that’s owned by a municipality, and it doesn’t have direct frontage on the land,” Roberson answered.
If the marina arrangements weren’t legal, the state would withdraw a permit issued under the Coastal Area Management Act, Roberson said.
“So far, they haven’t done that,” he said.
The permit was issued June 28, 2006, under the authority of the N.C. Department of Environment and Natural Resources and the Coastal Resources Commission. The permit spells out what can and cannot be built at the marina site, and it details conditions over everything from an easement to shoreline stabilization.
The permit was set to expire Dec. 31, 2009, but it was extended to Dec. 31, 2012, under a law signed by Gov. Beverly Perdue.
The measure applied to projects statewide.
The N.C. General Assembly action to which Perdue affixed her signature was intended to “prevent the abandonment of approved projects and activities due to the unfavorable economic conditions by adding additional time to certain permits,” reads a letter from Doug Huggett, major-permits coordinator for DENR.
The letter, dated Oct. 12, 2009, was addressed to Moss Property Partners.
A long journey
The marina is a stone’s throw from Moss Landing, a condominium community located off Water Street.
The condos stand on the former Moss Planing Mill property, which was acquired by the city around 10 years ago. The Washington City Council targeted the land for residential development.
The city sold the property for $1.565 million, entering into an original agreement with Moss Property Partners on May 28, 2003.
A summary of events preceding construction of the marina was provided to local media by City Attorney Franz Holscher.
In his summary, Holscher says that in the original, 2003 purchase agreement between the city and Moss Property Partners, “the City committed itself to assist Moss in its development of a marina in conjunction with the development of the upland residential condominium development by Moss.”
In 2005, the city amended the agreement to allow for a property exchange with the understanding that a “narrow strip of property from Water Street to the marina received by Moss … would give Moss a sufficient legal interest to develop the marina and convey good title to the actual boat slips.”
One fly in the ointment was that the condos and the marina were — and are — divided by a city-owned boardwalk that extends over publicly owned, created wetlands.
When the city sold the old Moss Planing Mill land, it, in essence, said it would allow the Moss developers to use the city’s riparian rights adjacent to the created wetland, according to Roberson.
“At some point,” the summary continues, “the upland residential condominium development ownership separated from the marina development ownership, with Moss retaining its original rights in the marina development.”
Moss hired a condo-specialist lawyer who found that the developers “required an additional interest in the property in order to convey good legal title to the boat slips,” Holscher writes.
In other words, Moss needed to own land alongside the marina, and along the water, in order to build the boat slips.
Having an insufficient interest in waterfront property would have ushered in questions about riparian rights, or the right of a landowner to use the water.
“Normally, only riparian owners have and can exercise riparian rights,” reads an online article by Joseph Kalo, a Graham Kenan professor of law at the University of North Carolina at Chapel Hill.
Kalo is also co-director of the North Carolina Coastal Resources, Law, Planning and Policy Center.
According to Kalo, “the sale of a dockominium slip without a grant of some title to adjacent riparian land would present the question — may the right be severed and transferred in whole or part to someone who does not own any riparian land?”
In an interview about the Moss marina, Kalo said, “It’s kind of interesting when you look at this. If you carve a little sliver of land along the waterfront, you’re purporting to give them the right to occupy a marina area that is probably a hundred times or more larger than the strip of land.”
After reviewing Holscher’s summary, Kalo added, “It seems to me what they’re doing, it’s permissible.”
To address the quandary of riparian rights, the city conveyed to Moss a 5-foot-wide strip of land that “consists essentially of the stone rip rap that runs along the marina and which forms part of the outer barrier of the ‘man-made’ wetlands that were constructed in 2001,” Holscher’s summary shows.
A sliver of land, located alongside the N.C. Estuarium, ties into the marina, which allows the boat slip owners to sell access to each slip because it establishes sufficient riparian rights, Roberson related.
The developers bought this strip because they had to have upland property adjoining the marina strip, he said.
“Moss also reconveyed to the City a portion of the property exchanged with Moss in 2007 that was not necessary for the marina,” Holscher writes. “Moss, and in turn the (condo owners’) Association, will be responsible for maintaining the portion of rip rap dedicated by the City to the Association with its present state.”
It’s obvious the marina will have a significant revenue impact on the city and county because the marina is taxable, as is each of the boats moored there, noted Doug Mercer, a Washington councilman.
Mercer was told that the county tax assessor’s office had some trouble determining how to tax the marina because it was connected to the city-owned boardwalk.
The boardwalk gives access to the private marina, even though it crosses city property, Mercer said.
“There may be some cloudiness about those specific walkways, but once you get to the water’s edge the marina belongs to the group,” he concluded.