HomeMy WebLinkAboutLGL Settlement Agreement Executed 7-6-2021777
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WITNESSETH,
WHEREAS 9 in 2019 Logan Developers, i Inc. brought a pettion to rezone 53.29 acres
located near the 8300 block of Old Market Street and the 8300 block of Shiraz Way in New
Hanover County (the "Property") from R-20 and R- 15 to Conditional Zonm*g District Residential
Multi -Family Low Density, which request was designated by the New Hanover County Planning
Department as Z 19-014 (the "Rezoning h
WHEREAS, Plaintiffs are ]odividual property owners and homeowners associations who
objected to the Rezoning's
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WHEREAS, the County approved the Rezoning at the June 1, 2020 hearing of the New
Hanover County Board of Commissioners';
WHEREASPlaintiffs filed sUit against the County *in New Hanover County Superi
,or
Court, which matter was designated as 20-CVS-2282 (the "Civil Action') challenging lots approval
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of the Rezon' ,
WHEREAS, upon motion made by the County in the Ci*vi*l Action, the Honorable Phyllis
Gorham on 16 March 2021 ordered Logan be added to the Civil Action as a necessary party;
WHEREAS Murray Farm Developers, LLC 'is the current owner of the aforement ioned the
Property and intends to develop it in material accordance with the plan for the Reserve at Beaumont
Oaks (hereinafter the "Reserve") attached hereto as Exhibit "A" (Exhibit A is referred to herem" as
the "'Plaif
WHEREAS, Defendants deny and reject all claims made by Plaintiffs in the Civil Action-,
WHEREAS, it is the desire of the Parties to settle all matters in controversy in the CiA
NOW, THERFFORF, *in cons ideration of the promises and other consideration described
below, the sufficiency of which is hereby acknowledged, the Parties do hereby agree as follows:
1. STUB ROADS. The portions of Plan which.-
- connects Rosemary Lane to Whitehall LP ("Rosemary
- connects Yearling Lane to Beaumont Oaks Drive ("Yearling Stub"), and
- connects Peppermint Drive to Summer Wind Drive ("Peppermint Stub"),
are hereinafter collectively referred to as the "Logan -Side Stubs." The Logan -Side
Stubs are crosshatched on the Plan for clarity of description.
A. Logan Developers Will cause the Rosemary Lane Stub and the Yearling 'Lane Stub
to be designated as emergency access easements and without any designation or
reference in any plans or plats to them being or becoming rights of way or roads.
B. Logan Developers Will not pave any portion of the Logan -Side Stubs and Will
landscape each to the fullest extent possible to avoid the appearance of a road or
right of way except that Logan Developers may install such improvements as are
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required to satisfy the County's requirements for access by emergency response
vehicles. Such improvements Will be constructed to maintain a vegetated
appearance to the fullest extent possible.
Logan Developers will provide in the restrictive covenants for the Reserve or a
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separate restrictive covenant document recorded with the New Hanover County
Re. ister of Deeds that no attempt to transform the Rosemary Stub or Yearling Stub
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emergency access easements into public or private rights of way or to otherwise
connect any roadway withi the Reserve, including but not limited to the
Peppermint Stub, to any roadway within the Re istry or Vineyard Plantation shall
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be allowed without the approval of both the Registry and Vineyard Plantation. This
covenant shall be written to inure to the benefit of, and may be enforced by, the
Vineyard Planation Homeowners Association and the Registry at Vineyard
Plantation Homeowners Association. The proposed final language of the covenant
will be submitted to those associations for review and approval -prior to recordation
and prior to the conveyance of any lot shown on the Plan or otherwise within the
Reserve by Logan Developers to non-affiliated third parties, which approval shall
not be unreasonably withheld, conditioned or delayed.
D. The emergency access gates shown on the Plan will remain.
E. New Hanover County accepts the aforementioned changes tothe Logan -Side Stubs.
2. BUFFERS.
A. Logan Developers will not remove any trees, shrubs, or other vegetation
existing as of the date hereof, that are within (i) twenty-four (2) feet of the
northernmost boundary of Lots 1- 15 and Lots 22-24 and (ii) twenty (2) feet of
the northernmost boundary of Lots 16, 17, 18, 19, 20, 21, and 2.5 of the single-
family home section of the Reserve as shown on the Plan. This includes the
entire length of that boundary running from Shiraz Way to westernmost end of
Lot 25 shown on the Plan. Howeven, Logan Developers may remove any
invasive species or dead vegetation found in that twenty -four -foot buffer so
long as it is replaced with vegetation of a similar size and density as what is
removed. Logan iievelopers will also add such other vegetation as may be
necessary to fill in the entire applicable buffer area with vegetation designed to
achieve opacity along the boundary between Vineyard Plantation and the
Reserve to the extent not already existing.
B. Logan Developers will designate the buffers described in Paragraph 2(A) above
on the final plat(s) as a "24' Vegetated Buffer" or "20' Vegetated. Buffer" as
applicable and provide in the covenants forte Reserve that no vegetation may
be removed from those buffers without approval of the Reserve's homeowners'
association.
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northernmost side to the extent not already existing. At least one row of any
added vegetation will be at least six feet tall at the time of planting.
E. Logan Developers will designate that buffer describedin Paragraph 2(D) above
on the final plat(s) as a "24' Vegetated Buffer" and provide in the covenants for
the Reserve that no vegetation may be removed from that buffer without
approval of the Reserve's homeowners' association.
F. Logan Developers will construct an eight -foot (8') fence running the entire
length of boundary between the Reserve and the Tibby's Branch community
and along the line on the Plans designating the northernmost extent of the
"Twenty -Foot Vegetated Buffer Behind Duplexes." Logan Developers will not
remove any trees or other vegetation existing as of the date hereof, that are
between the location of the to -be -constructed fence and the southernmost
boundary the Reserve shown on the Plan. However, Logan Developers may
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remove any invasive species or dead vegetation found *in that twenty -foot buffer
so long 'it 'is replaced with vegetation of a similar density to what was removed
and of a type that deters pedestrian access across the buffer. Logan Developers
w ill also add such other vegetation as may be necessary to fill in the entire
twenty -foot buffer with vegetation designed to achieve opacity between the
Reserve and the Tibby's Branch community to the extent not already existing.
Any added vegetations shall be of a type designed to deter pedestrian access
across the buffer, and at least one row of any added vegetation Will be at least
s * feet tall as of the time of planting -
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3. TRAFFIC CONTROL AND PATTERN.
A. Logan Developers will not install or cause to be 'installed, nor will the County
require,, any stop signs, speed humps, "eye -brows" or any other such traffic
calming devices or measures on Beaumont Oaks Drive or any other roadway or
roadways running through the Reserve and which connect Shiraz Way to Old
Market Street except for stop signs at the intersections of Beaumont Oaks Drive
and Shu*az Way and Beaumont Oaks Drive and Old Market Street.,
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shown on the Plan without the approval of the Vineyard Planation Homeowners
Association and the Registry at Vineyard Plantation Homeowners Association,
which approval shall not be unreasonably withheld, conditioned or delayed so
long as it meets with the intent of this Paragraphs 3.
4. TIBBYS BRANCH CULVERTS AND ROAD REPAIRS.
A. Logan Developers will cause to be repaired damage to Vowel Avenue and
Tibby's Drive caused by or during the clearing of the ad 0 acent operty by
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Logan Developers or anyone acting on its behalf or at its c®
B. Logan Developers will replace the three existing storm water culverts M*
Tibby's Branch. The culverts are located (1) under Vowel Avenue between
Porters Neck Road and Tibby's Drive; (2) on Tibby's Drive between Vowel
Avenue and the cul-de-sac at the westernmost end of Tibby's Drive, and (3) at
the mouth of the cul-de-sac located on the westermuost end of Tibby's Drive.
The new culverts Will be of the same size as the existing culverts, comprised of
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HDPE pipe as used *in various sections under the roadways of the Reserve, and
r ' forced on each end with appro *ate erosion control measurel
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5. CONSTRUCTION TRAFFIC ACCESS. Logan Developers shall ensure that n4,,
traffic related to the development of the Reserve or the original construction of improvements
iherein shall utilize any roadways *in Vineyard Plantation, the Registry at Vineyard Plantation, or
Tibby's Branch except as strictly necessary to perform work contemplated under Paragraph 4,
above.
6. VOLUNTARY DISMISSAL WITH PREJUDICE. Plaintiffs shall file a voluntary
dismissal, with prejudice, of the Civil Action on or before July 2, 202 1.
7. COVENANT OF NON -ASSIGNMENT. The Parties hereby warrant that they
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have not assigned, transferred, or conveyed at any time to any individual or entity any alleged or
unalleged right, claim, or cause of action that they have or may have against any other Party, and
they have the full right and authority to enter into this Agreement.
8. NO ADMISSION OF LIABILITY. The Parties hereby acknowledge and agree that
nothing herein 'is to be construed as an admission of liability or obligation or an admission as to
any of the claims, duties or obligations set forth *in the Civil Action but are made solely in order to
compromise disputed claims for the purpose of avoiding further litigation.
COSTS AND ATTORNEYS'FEES. All Parties hereto shall bear their own cost,,*i
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?-,nd attorneys' fees in connection with the disputes, claims, and defenses raised in the Civil Action
and/or that are the subject of this Agreement. Notwithstanding the foregoing, should any Party
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institute an action to enforce the to of this Agreement and prevail on such action, then the Party
a * t whom such action is brought shall be liable for the attorneys' fees of the party bringing the
gains
action.
10. ENTIRE UNDERSTANDING. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter contained herein. The terms of this Agreement
are contractual and not a mere recital, and any Party hereto shall have the right to enforce the terms
of this Agreement, including but not limited to the right to specific performance. This Agreement
may -not be altered, amended, or revoked except by a written agreement signed by the Parties.
GENERAL MUTUAL RELEASE. The Parties acknowledge and agree that the
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Parties' release one another generally, unequivocally, and forever for any claims made, or could
have been made, in the Civil Action arising out of or related to the Rezoning, except as stated and
controlled *in this Agreement.
ies
12. CAREFUL READING AND VOLUNTARY EXECUTION. The Part
acknowledge:
AThe terms of thi's Agreement are the product of mutual negotiati
.ons and
compromise between each of the Parties-,
ity consider
B4
Each has been afforded a reasonable opportunto
. the meaning
and effect of this Agreement, and has had sufficient time to read and consider its
terms and provisions, and each 'in fact has read the Agreement in 'Its entirety and
has considered its terms and provisionsEach has had the opportunity
. to comment
upon, request interpretation of, and make or suggest changes to the Agreement, and
each has been represented by counsel of its/his/her own choice throughout the
negotiations and settlement of thi's matter,; and,
C. Each executes this Agreement freely and voluntarily, and has relied on
its/his/her own attorney for advice and has not been induced or influenced in any
way to enter into or execute this Agreement.
13. MUTUAL DRAFTING. This Agreement shall be construed asif drafted Jointly by
the Parties, and no presumption or burden of proof will arise favoring or disfavoning any Party by
virtue of the authorship of any provision *in this Agreement.
14. BINDING EFFECT. This Agreement shall be bincting on the undersigned and their
successors, heis and assigns.
15. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of North Carolina.
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16MULTIPLE COUNTERPARTS. This Agreement may be executed
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counterparts which, when taken together, shall form the entire Agreement. Photocopied, scanned,
or otherwise reproduced images of this original executed Agreement shall be binding to tne same
extent as the original.
The Vineyard Plantation Homeowners Association, Inc.
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Robert ffi.tt,..,, Board Member, Authorized Signer
jonadian McCarthy
-8rittany KnAtel
Robert
YN101mle spencler
. Laurel Onate
Developers,Logan
Date.
Date
Date
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Date
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'Printer', Name WT ate
By* -
The Registry at Vineyard Plantation Homeowner's Association, Inc,
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YN4oAne Spencer
Laurel Onate
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Trevor Mathes, President
Date:
The Registry at Vineyard Plantation Homeowner's Association, Inc.
By:
Robert Hiatt, Board Member, Authorized Signer Date:
Jonathan McCarthy Date
Brittany Knittel Date
Robert Hiatt Date
Yvain-ie Spencer Date
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Laurel Onate Date
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FINAL DESIGN NOT RELEASED FOR CONSTRUCTION
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PROJECT STATUS
CONCEPTUAL LAYOUT
SETTLEMENT EXHIBIT
PA RA.
CLIENT INFORMATION:
REVISIONS:
PRELIMINARY LAYOUT
FINAL DE81GN
RELEASED FOR CONS1
— -R
RESERVE AT BEAUMONT OAKS
6NMINUM KING, N4
122 Cinema Drive
MURRAY FARM DEVE1,0PERS, 11C
DRAWING INFORMATION
m
DATE OW30 21
SERE1* = 200'
NEW HANOVER COUNTY
Wilmington, North Carobna 28403
60 GREGORY ROAD
DESIGNED Al -la
DRAW N JRC
CHECKED AHE
NORTH CAROLINA
(910) 791-6707 (0) (910) 791-6760
NC I�ccnse #: C-2846
BELVILLE, NC 28451
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
The Vineyard Plantation Homeowners
Association, Inc., The Registry at Vineyard
Plantation Homeowners Association, Inc.,
Jonathan McCarthy, Brittany Knittel,
Robert Hiatt, Yvonne Spencer, and Laurel
Onate,
Plaintiffs,
V.
New Hanover County, North Carolina, and
Logan Developers, Inc., a North Carolina
Corporation.
Defendant.
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
20 CvS 2282
VOLUNTARY DISMISSAL WITH
PREJUDICE
Now comes the The Vineyard Plantation Homeowners Association, Inc., The Registry at Vineyard
Plantation Homeowners Association, Inc., Jonathan McCarthy, Brittany Knittel, Robert Hiatt, Yvonne
Spence, and Laurel Onate, by and through the undersigned counsel and pursuant to Rule 41 of the North
Carolina Rules of Civil Procedure, and dismiss their claims against all Defendants in this matter with
prejudice. Each party shall bear their own costs.
This the 2nd day of July 2021.
THE REGAN LAW , PLLC
By:
CONOR`P. REGAN
NC State Bar No. 43150
Attorney for Plaintiffs
1213 Culbreth Drive
Wilmington, NC 28405
(910) 344-0137 (o)
(910 939-1498 (f)
conor@thereganlawfirm.com
CERTIFICATE OF SERVICE
This is to certify that the undersigned has this day served the foregoing Voluntary
Dismissal with Prejudice on all of the parties to this cause via facsimile and email address as
follows:
Sharon Huffman
Attorney for New Hanover County, North Carolina
910-798-7157 (t)
shuffman@nhcgov.com
Amy Schaeffer
Michael Lee
Attorneys for Logan Developers, Inc.
910-338-9162 (f)
amy@leekaess.com
michael@leekaess. com
This the 2"d day of July, 2021
Con r P. Regan
N.C. Bar No. 43150
2