08/01/13 — Owner will seek lease for property

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Owner will seek lease for property

By Matt Caulder
Published in News on August 1, 2013 1:46 PM

Busco Beach and ATV Park owner Smart Investors, LLC wants a new lease to allow the business to continue to use county-owned federal buyout land.

Former Busco Beach owner Jack Bennett terminated his lease for use of the land through his lawyer, Glen Barfield, on Monday after receiving notification of several ongoing violations of the conditions of the agreement he held with the county.

Bennett sold out of the ATV park business in 2012.

The lots in question are located in the Neuse River floodway off Bryan Boulevard.

Officials say violations of the lease included allowing the riding of all-terrain vehicles on the parcels of land, conducting a commercial operation on the property and assigning control of the leased properties to another party.

Bennett had 15 days to fix the violations before the lease would automatically terminate, according to the terms of the agreement.

County Planning Director Connie Price said county employees would be assessing whether the violations were corrected this week before Bennett voluntarily terminated his lease.

Jimmy Pierce is the sole member of Smart Investors, which formed in January 2012 before the purchase of Busco Beach from Bennett in February of that same year.

Pierce, through his lawyer, also Barfield, delivered a proposed lease to the county on Monday for the properties formerly leased by Bennett, although without the limitation prohibiting ATV riding, among other propositions.

Barfield would not go into detail about the proposed terms of the lease.

The county does not plan to make any decisions about a new lease until the city of Goldsboro decides what restrictions to put on the Busco Beach properties seeking rezoning to a General Business Special Use District, Price said.

The rezoning effort by Pierce to have almost 680 acres of land owned by Smart Investors and private lands leased to Smart Investors zoned as a General Business Use Special District brought the issue of land surrounding the ATV park to the forefront.

At a city Planning Commission meeting on Monday, the commission deferred discussion on a recommendation to send to the Goldsboro City Council on the re-zoning for a second time, this time at the request of Pierce.

The commission will meet Aug. 26.

Barfield said Bennett was not aware of the clauses he was in violation of in the lease that he signed in September 2008.

The lease automatically renewed each year until either party chose to terminate the agreement.

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.

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."

The lease says that the county and Bennett had the understanding that the properties would be used for growing timber, which superseded the clause prohibiting commercial farming, Price said.

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

Barfield said Bennett included a general assignment of leases in the sale of Busco Beach to transfer privately leased properties to Pierce and believed that control of the county-owned properties had been transferred to him.

Price confirmed that now that the parcels of land have returned to the control of the county, riding on them would be trespassing, but added that the county does not plan to direct Busco Beach management to stop riders from traveling across the properties or parking on them.

"From what we can tell, the dangerous riding, the jumps and high-speed stuff, doesn't happen on those properties," Price said. "It looks like they just ride across it to get from Point A to Point B."

The properties in question, 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, are Federal Emergence Management Buyout properties bought through the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

Municipalities purchase land through the act in flood areas allowing residents to move out of the flood way, but strictly regulates the use of that property.

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.