Currituck presses for court rule on Swan Beach case
By William F. West
Sunday, March 19, 2017
CURRITUCK – Any chance of an out-of-court mediation to resolve the long-running Swan Beach Corolla lawsuit against Currituck County appears over, with the county's legal counsel urging the matter proceed to the N.C. Court of Appeals.
In a blistering two-and-a-half page letter recently sent to an attorney for Swan Beach Corolla, the county claimed Swan Beach Corolla, led by the Friedman family, has been engaging in “unwarranted gamesmanship,” “bluster” and “misplaced bravado demonstrated in hollow offers to mediate” at this stage of the dispute.
In the letter, dated March 6, Currituck's legal team, comprised of County Attorney Ike McRee and attorney Nick Herman of Chapel Hill, told Swan Beach Corolla attorney Lacy Reaves of Raleigh, “In sum, we believe that this case should properly proceed in the Court of Appeals so that it can render a just decision.”
Reaves, reached by email on Tuesday, said he and his clients don’t have any comment about the county’s latest letter, “other than we were disappointed that its tone was negative, accusatory and aggressive.”
The county is appealing a more than $39 million award of civil damages to Swan Beach Corolla by Superior Court Judge Milton “Toby” Fitch, who in December made clear to the county he stands by his April 2016 ruling.
The Friedmans, in a lawsuit filed in July 2012, have claimed the county denied them their legal rights to develop property for commercial usage on the Currituck Outer Banks.
In recent weeks, the Friedmans, through attorney Reaves, have written letters to the county to try to seek a new round of settlement discussions, to be overseen by an independent third person.
McRee and Herman, in their letter earlier this month, blasted Reaves' most recent letter to the county, which he wrote on Feb. 20.
McRee and Herman argue Reaves' latest letter “is yet another attempt to repeat baseless allegations against the county in language plainly calculated for dissemination to the public and to bully the county into mediation when the case is pending for decision in the Court of Appeals.”
“This unseemly and transparent motivation is hardly useful for seeking a mediated resolution at this time,” McRee and Herman added.
McRee and Herman claim Reaves, in his letter late last month, foolishly and falsely stated the county has never indicated any willingness to agree to any of the many settlement proposals which the Friedmans have made in the past.
McRee and Herman argue that, to the contrary, Currituck's government “has always been fully and actively responsive to numerous settlement inquiries during the past four years” of the legal dispute.
McRee and Herman go on to argue they believe Swan Beach Corolla took advantage of the county's consistent willingness to engage in settlement discussions “by duping the county into fake settlement talks” one week in the summer of 2014.
McRee and Herman argue they believe Swan Beach Corolla did this so they could hatch, without the county's knowledge, “a nefarious plan and scheme to covertly obtain an improper default in the case before the county could act to protect its legal rights.”
The two were referring to the Currituck Superior Court Clerk’s Office entering a default document against the county, on grounds the county was allegedly late in responding to Swan Beach Corolla having successfully won in the N.C. Court of Appeals. The appellate court had ordered the case back to the lower court for further proceedings. The county’s legal counsel has argued they were never tardy in answering.
McRee and Herman also state they believe Reaves is foolish in asserting the county never authorized any member or members of the Board of Commissioners to discuss a settlement with the Friedmans.
“As is the routine practice in all other counties in this state, the board has properly delegated the coordination of settlement discussions to its legal counsel and not to individual members of the board, which would be completely inappropriate,” McRee and Herman said.
The Friedmans have claimed they were discriminated against because of their being of the Jewish faith.
McRee and Herman, in their March 6 letter, reiterated Currituck's government strongly takes issue with such allegations.
McRee and Herman told Reaves they believe his letter late last month to the county reiterates “the baseless accusation” by Friedman family patriarch Charles Friedman that the Board of Commissioners declined allowing commercial development by Swan Beach Corolla because he had been the subject of “anti-Semitic slurs and discrimination based on his faith.”
“Based on the voluminous public records of the numerous planning board meetings and Board of Commissioners' hearings on these rezoning requests (all of which have long been provided to plaintiffs and to the court), there is not a shred of evidence of any religious discrimination or any unfair or arbitrary treatment in this case,” McRee and Herman said.
“Indeed, the allegations of discrimination themselves constitute the true 'slur' in this case – a slur upon the good names of the commissioners as individuals, the reputation of the board as the governing body of the people and the reputation of the county as a whole,” McRee and Herman said.
McRee and Herman go on to take issue with Reaves, in his letter late last month, having noted that editorial commentators expressed an opinion in favor of the need for settlement talks and with Reaves having pointed out that his correspondence with the county is public record.
The county's legal counsel argues they believe Reaves' observations confirms Swan Beach Corolla's motivations “have little to do with promoting settlement but instead are aimed at publicly disparaging and bullying the county through the media with a story peddled by the plaintiffs.”
The county's legal counsel did indicate that, after the case goes through the appellate process, settlement talks will continue to be available, but under the rules of Superior Court.
“At the appropriate time, the county will willingly engage in this mediation process in good faith, free from the unwarranted gamesmanship, bluster and misplaced bravado demonstrated in hollow offers to mediate at this stage of the litigation,” McRee and Herman said.
County Manager Dan Scanlon co-signed the March 6 letter with McRee and Herman.