In Carova, a battle rages over commercial development

By on January 30, 2017

Carova is accessible only by 4-wheel drive. (Coastal Review Online)

By Kip Tabb
Coastal Review Online

In a 1973 speech, author David Stick posed a question. “In our quest for growth and so-called progress, is it possible that we are gradually destroying the very things which make us love the Outer Banks and attracted us here in the first place?”

Best known as the author of “Graveyard of the Atlantic,” Stick was also a successful developer and real estate agent.

Now, in the remote Carova area north of Corolla, the outcome of an ongoing legal battle could affect the balance between development and quality of life to which Stick referred.

This area is home for the Corolla wild horses, descendants of the Spanish mustangs brought to the New World in the 16th century. There are no paved roadsand the only access is by way of the beach.

The first two miles run through the Currituck Banks Estuarine Reserve, a state- and federally managed reserve. Off the beach, the inner dune area is interspersed with narrow sand roads suitable only for four-wheel-drive vehicles. Although traffic has been increasing, the lack of infrastructure and paved roads has kept visitation modest compared to other parts of the Outer Banks.

Currituck County officials have long said they want development in the Carova area limited to residential, and zoning restrictions were enacted accordingly.

The Friedman family, the property owners and plaintiffs in a case against the county, and the companies in which members of the family are principals, including Swan Beach Corolla LLC and others, have tried unsuccessfully for years to develop their land for commercial use. Charles “Chip” Friedman, Gerald Friedman and Nancy Friedman say they have a vested right to build on their land and maintain that they have acted in good faith in their dealings with the county going back decades.

Chip Friedman.

“The Friedmans look forward to moving on with the development of their property as they have long sought …” said Mitch Armbruster, the Friedmans’ attorney.

The Friedmans, originally of Virginia, bought large swaths of land on the Currituck Outer Banks in the 1960s, including a 36-acre parcel in the Carova Beach area planned for “business lots,” according to court documents. The Friedmans say that since 1969, there have been discussions and an understanding with county officials that the family would build on the property when the population became large enough to support commercial development.

Based on these verbal communications, the Friedmans spent hundreds of thousands of dollars for engineering studies on their development plans. Discussions with the county continued over the years, the Friedmans maintain, even as zoning laws were changed.

In 1989, Currituck County enacted a unified development ordinance, with zoning that essentially allowed only residential development in the Carova area and specifically prohibited large-scale commercial construction. The zoning is still in effect.

Around 2004, the Friedmans sought to move forward with development, with plans for a convenience store, real estate offices, a post office and other uses, including a restaurant and a 300-unit lodge. But county officials said zoning would not allow the project.

In 2006, the Friedmans’ attorney informed the county that the owners had constitutionally protected, or vested, rights regardless of zoning regulations. But rather than proceed with a legal fight, the family sought to resolve the dispute with a proposed commercial overlay district. County commissioners denied the request in 2008.

Then in 2010, the Friedmans submitted plans for a 294-room inn with an adjacent retail development. Carova residents objected to the plan, and the county Planning Board, citing incompatible land use, an influx of visitors that could overwhelm services and possible damage to protected next to the property, rejected the Friedmans’ plan.

The Friedmans sued the county and the Board of Commissioners in 2012. The Friedmans again claimed they had vested interest based on their discussions with county officials during the previous 40-45 years and because they had paid for the engineering studies. They also claimed discrimination based on their Jewish faith and because they do not live in the county.

In April 2016, a judge issued a default judgment of more than $39.1 million against the county in the case, known as Swan Beach Corolla LLC vs. Currituck County. Judge Milton F. Fitch Jr. cited a failure on the part of county officials to file appropriate documents in a timely manner but did not address the issues of vested rights or discrimination.

The county failed in December 2016 to have the judgment overturned, and the case is now before the state appellate court, although no date has been set.

Ike McRee, the county attorney, said the verbal communications the Friedmans cite in the case are not sufficient. “A verbal assurance is not something someone can use to make a legal argument,” McRee said.

Armbruster, the Friedmans’ attorney, disagrees.

“Their property was platted and approved for development before zoning was in place in the four-wheel-drive area …” Armbruster said.

Ben Woody, the county planner, explained that creating a plat does not mean a permit has been issued. Woody said no approval was ever issued for the Friedmans’ 36 acres.

“On the plats, it says ‘business blocks,’ but they never got any permits,” Woody said.

Aside from the legal issues, many say commercial development is not possible in Carova. One reason cited is that the area is a designated Coastal Barrier Resources Act, or CBRA, zone. Enacted in 1982, the act was passed to address problems with development in sensitive coastal areas. Designated CBRA zones are ineligible for federal expenditures or financial assistance for utilities, such as electricity, water and sewer and roads, which could encourage development in ecologically sensitive areas.

“It is the opinion of the Planning Department that the project as proposed in the lawsuit is most likely unbuildable,” Woody, the county planner, wrote in an e-mail. “It is proposed at a density more similar to that of an urban center.

“Beyond the fact there is no public infrastructure to support this scale of proposed development, it doesn’t appear to incorporate any elements of environmental stewardship. Considering the uniqueness and fragile nature of the off-road area, the development proposed in the Friedman lawsuit is out of scale and not appropriate.”

Woody said the county had never developed commercial standards for the Carova area because it has been classified as residential since it was first zoned for development.

County officials are also worried that the project, if allowed, could be the first of many large-scale developments.

“The county’s longstanding policy position for the off-road area is to not allow commercial development or the expansion of infrastructure that may have the effect of inducing new development,” Woody wrote.

Environmental consultant George Wood has been working with Outer Banks contractors for years, and he knows the Carova area.

“Environmentally speaking, these large structures bring more and more people to that area and more people demand more services,” he said. “And they impact the natural biology that is there by virtue of the fact that they’re there: tromping over the dunes, scaring the heck out of the horses and impacting all the way down the biological chain.”

Wood is not, however, opposed to all development in sensitive areas. He said it’s important to understand the surrounding environment and how development will affect it.

“It doesn’t have to be yes or no. It just has to be well-thought out,” he said. “When you develop on someplace like a barrier island, you have to adopt a different approach that recognizes the nature of the area that you’re building on.”

The Friedmans’ 36 acres are part of the Corolla wild horses’ range.

The Corolla Wild Horse Fund has managed the Corolla herd for years and, until recently, Karen McCalpin was the organization’s director. McCalpin retired in December 2016 after 10 years. To her, the Friedmans’ proposed development would lead to the destruction of a piece of living history.

“It would be devastating to the herd,” McCalpin said. “I don’t know if they could survive this.”


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See what people are saying:

  • PT

    As the Northern Outer Banks (Carova) continues to be developed, there is going to be a need for some commercial development. The shops in Corolla do not have the capacity to service all that area. Be careful what you wish for and don’t complain when you cant get groceries.

    Wednesday, Jul 26 @ 1:02 pm