Developer, hog farmers spar over buffer

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Shown is a map of Elan Vacations' University Park townhomes (right) and the neighboring McMillen farm (left) that has been a focus of a buffer dispute in Currituck County. Currituck commissioners recently concluded Elan cannot go in and clean or upgrade the buffer because it's supposed to remain "undisturbed."

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By William F. West
Staff Writer

Friday, December 8, 2017

CURRITUCK — Currituck commissioners have rejected a real estate developer’s request to alter the “undisturbed buffer” dividing his property from that of his hog-farming neighbors.

Commissioners voted 5-1 last month to deny Norman Bibeau’s request to amend the terms and conditions of his use permit to remove dead and fallen trees from the buffer between his townhouses at University Park and the property of his neighbor, the McMillen family farm. 

The buffer is a 25-foot wide area on the west side of University Park in the Harbinger area. Under the terms Bibeau agreed to when he received approval from a previous board of commissioners to build the housing project in September 2015, the buffer is supposed to be left “undisturbed.”

In May 2016, however, Bibeau’s company, Elan Vacations, was issued a notice of violation after county planning and community development officials received complaints that the buffer had been disturbed. Bibeau later appealed the notice of violation to the Currituck Board of Adjustment, but the board upheld the notice.

County Planning and Community Development Director Laurie LoCicero told commissioners at their Nov. 20 meeting that the buffer has been a point of contention ever since.

"We're kind of at a quandary of how to maintain the health of this buffer and not have code violations," she told commissioners.

Bibeau and his attorney, Greg Wills of Grandy, claimed at the Nov. 20 meeting that Bibeau’s request to remove fallen trees and dead underbrush from the buffer was only designed to improve it. He said the buffer had lost 28 trees as a result of several storms, including Hurricane Matthew. He also said N.C. Forestry Service officials had written him letters encouraging him to remove fallen and dead trees from the buffer.

Bibeau also claimed the words "undisturbed buffer" were never used by the previous commission when it signed off on his permit to build University Park. The commission only recommended he divide his property from his neighbor’s with a 25-foot buffer, he said.

Bibeau said his engineer for the University Park project only used the word "undisturbed" in his permit request because the county had instructed him to do so. He described what he’s now requesting to do — clean up the buffer — is “just pure common sense.”

He said he wasn’t trying to "get one over" on the county or the McMillen family.

"I pay a lot of taxes — and all I'm getting is pooped on," he said. "And I don't know what you guys want from me, I really don't."

Representing the McMillen family at the Nov. 20 commission meeting was attorney Crouse Gray of Kill Devil Hills.

Gray told commissioners that, contrary to what Bibeau has said, the county’s understanding was that area dividing the two property lines would remain “a 25-foot undisturbed buffer." 

"He (Bibeau) has already been found guilty (of violating the buffer) — and he has admitted here before you that he went into that undisturbed buffer," Gray said.

Claiming that a number of trees in the buffer have already been cut down, Gray said his clients are concerned about the buffer being degraded further.

"And now we have the developer coming in and telling you, 'Well, let me go in and remove what I did. Reward me,’" he said.

Wills countered that Bibeau presumed he had a right to remove trees knocked down by a storm. He said no trees were cut down in an attempt to change the terms of his use permit.

Wills also argued that Currituck’s Unified Development Ordinance specifies if there are dead or diseased trees on any lot, the owner doesn’t need a permit to remove them.

He said it was also his understanding the McMillens acquired their property not long before the previous commission approved Bibeau's residential project.

Commission Chairman Bobby Hanig asked LoCicero for the county’s timeline about the buffer violation.

LoCicero said the violation was reported in April 2016 and the notice of violation was issued the following month.

Given Hurricane Matthew didn’t hit Currituck until October, Hanig asked if the buffer had been disturbed prior to then.

"Yes," LoCicero replied.

Hanig also asked Gray if a McMillen family member had testified at Bibeau’s permit hearing about their intention to raise hogs next door.

"That was my understanding, yes," Gray responded.

Commissioner Mike Hall made a motion supporting Bibeau's request to alter the buffer but didn’t receive a second.

Commissioner Mike Payment then made a motion to deny Bibeau's request. He was joined in the vote by Hanig and Commissioners Kitty Etheridge, Marion Gilbert and Bob White. Hall cast the lone “no” vote.