07/28/13 — ATV trail use threatens Busco Beach lease

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ATV trail use threatens Busco Beach lease

By Matt Caulder
Published in News on July 28, 2013 1:50 AM

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ATV riders at Busco Beach head down a trail that runs through 1029 Bryan Blvd. The parcel is part of an area that, according to the Wayne County Planning Department, should not be open to riders due to the nature of the lease between the county and former owner Jack Bennett.

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This Google Maps image shows the areas along Bryan Boulevard that are in question due to the county's lease with former Busco Beach owner Jack Bennett. The highlighted parcels along Bryan Boulevard are, clockwise from top, 101-113 Smitty Lane, 1029 Bryan Blvd., 112 Smitty Lane, 943 Bryan Blvd., 923 Bryan Blvd. and 1052A Bryan Blvd. Two other addresses not highlighted are 919 and 921 Bryan Blvd.

The deadline has passed to end non-permitted activity on Wayne County-owned land leased to former Busco Beach & ATV Park owner Jack Bennett.

And if the violations are not fixed, the county could terminate the lease, putting the parcels back in the county's hands.

Officials say violations of the lease include allowing riding of all-terrain vehicles on the parcels of land, as well as conducting a commercial operation on the property.

Bennett was notified of the violations of the lease July 11 and was given 15 days to correct them. According to the terms of the lease, if he did not meet that deadline, the land would return to the county's control.

Bennett verified with the county Planning Department that he received the notice and said his lawyer would be in contact, County Planning Director Connie Price said.

County employees will inspect the properties this week to verify that the terms of the lease are being followed, Price said. If violations are found, the lease will be terminated, he said.

The parcels of land leased to Bennett from the county include 1052-A Bryan Boulevard, 1029 Bryan Boulevard, 943 Bryan Boulevard, 919 Bryan Boulevard, 921 Bryan Boulevard, 923 Bryan Boulevard, 101-113 Smitty Lane and 112 Smitty Lane.

The lease became active Sept. 1, 2008, for no monetary amount per year, with the cost being that the lessee, Bennett, maintain the property.

The lease automatically renews each year until either party chooses to terminate it.

Section 5 of the lease refers to rules governing the use of the premises. Under Clause J of the agreement, Bennett is not allowed to operate ATVs on the premises.

"Those trails aren't anything new," Price said. "(The Planning Department) didn't know that (Clause J) was in there until now."

Clause H of the same section also states, "No commercial operation or enterprise shall be conducted on or from the premises, including, without limitation, the growing of fruits, vegetables, or any like crop to sell."

Since a large part of the business of Busco Beach is ATV riding, allowing riding on these parcels of land would also be a violation of that clause, Price said.

Another section of the contract prohibits subleasing or assigning the leased property to anyone else.

Current Busco Beach owner, Jimmy Pierce, who is the sole member of Smart Investors, LLC, which formed in January 2012 before the purchase of Busco Beach from Jack Bennett in February of that same year, confirmed that he controls properties leased from the county.

Price said that is not allowed and would be a violation of the contract.

Price added Pierce is not legally at fault if he had the understanding from Bennett that he could use this property -- even if Bennett could not legally give that permission.

"If I owned a piece of land and told somebody they could use it, they would," Price said.

The lease further states that if the violations are not fixed within 15 days of the notification, then the lease automatically terminates.

The lease does allow the leasee, Bennett, to grow timber on the land.

If the lease is terminated, Bennett would have one year to harvest the trees.

Price said other county properties are leased for commercial timber farming

The parcels of land along Bryan Boulevard leased from the county to Bennett are Federal Emergency Management Agency buyout properties purchased through the county with federal dollars.

The Robert T. Stafford Disaster Relief and Emergency Assistance Act allows municipalities to purchase land in flood areas allowing residents to move out of the flood way, but strictly regulates the use of that property.

The FEMA buyout properties along Bryan Boulevard fall in the Neuse River Floodplain.

The Stafford Act severely limits new structures placed on the properties and requires existing structures to be torn down as part of the purchase.

The only structures allowed on the properties are public facilities open on all sides such as a picnic shelter, a restroom or a a structure that the FEMA administrator approves in writing before construction can begin.

The issue concerning the land around Busco Beach came to the forefront due to a re-zoning effort by the current owner to have the entire property, almost 680 acres, owned by Smart Investors, LLC and private lands leased to Smart Investors, LLC zoned as a General Business Special Use District.