The N.C. Court of Appeals Tuesday placed a temporary hold on the Perdue administration’s attempt to take without compensation nearly 300 acres of coastal property that was intended for use as a beach and resort for black teachers and their families during the era of racial segregation.
The appeals court stayed a Jan. 12 order by Superior Court Judge Carl Fox denying title to property in Onslow County to Harriet Turner Hurst and John H. Hurst, the grandchildren of John L. and Gertrude Hurst. The court wants to hear from Attorney General Roy Cooper, who is seeking to acquire the property on behalf of the state. The Hursts asked for the immediate stay, fearing that the state might claim title to the property and start making modifications to it before their appeals are exhausted. Carolina Journal reported on the Hursts’ four-year legal battle in January.
The land has been under the control of Hammocks Beach Corp., a trust established in 1950, when the Hursts’ grandparents were alive, to develop the land. The original deed stated that if the trust could not maintain the property, the State Board of Education could seek title to it. If the board did not want the land, it would revert to the Hurst heirs.
The Hursts argue that during separate legal proceedings in 1987 and 2007, the Board of Education denied any interest in the property, which is near Bear Island and Hammocks Beach State Park. The 1987 agreement was signed by then-Attorney General Lacy Thornburg; in 2007, Cooper’s office filed a motion affirming that the Board of Education had renounced any claim to the land and Superior Court Judge Allen Baddour granted the motion.
As recently as Sept. 30, 2010, the Hursts’ motion states, Special Deputy Attorney General Thomas Ziko, who represents the Board of Education, told the Hursts’ attorneys the board “could not serve as successor trustee and that the Board would not attempt to do so.” In October, a jury decided that the trust could not live up to the original terms of the inheritance and the Hursts retained a legitimate claim to the property.
Fox ordered the Hammocks Beach Corp. removed as trustee, naming the Board of Education as its successor. If the board didn’t want the property, the heirs would receive it. Since the board formally had rejected any claim to the property several times, the Hursts thought they were in the clear.
But as CJ reported in January, Ziko made a closed-door presentation to the Board of Education on Nov. 4 and it approved a resolution accepting appointment as successor trustee, subject to the approval of the Council of State. (The council, comprising all North Carolina government officials elected statewide, must approve all land acquisitions by the state.) Fox’s Jan. 12 order OK’d the board’s change of heart.
In their filing to the Court of Appeals, Raleigh attorneys Charles Francis and Michael Weisel, who represent the Hursts, called the result “an outrageous, unlawful, and inequitable land grab by the Board.” Citing decisions from the U.S. and North Carolina supreme courts, the attorneys noted that the doctrine of judicial estoppel “prohibit[s] parties from deliberately changing positions according to the exigencies of the moment.”
The state could not say it had no interest in the land during one stage of the court proceedings, the filing said, and suddenly decide it wanted the property later on.
Last fall, the Hursts’ attorneys asked to depose Ziko and state Parks Director Lewis Ledford. They also tried to subpoena documents from Ledford “to establish an evidentiary record of the Board’s repeated disclaiming interest in the Trust” and learn what plans, if any, the Division of Parks and Recreation had for the coastal property. Fox denied that request.
The Council of State met most recently March 8. It has not discussed the Hammocks Beach proceeding since Fox’s Jan. 12 order.
As CJ reported, Hammocks Beach Corp. received the property on the condition it would maintain it as a segregated beach for members of the North Carolina Teachers Association — the membership organization for black teachers. When the Civil Rights Act of 1964 ended segregation, the NCTA ceased to exist and blacks gained access to a wider variety of recreational facilities. Since then, the property has fallen into disrepair and the trust has been unable to raise enough money to keep it up.
Tuesday’s order states that the Court of Appeals will decide whether to issue a permanent stay of Fox’s ruling either after the state responds to the Hursts’ motion, “or upon the expiration of the time allowed for a response.”
Rick Henderson is managing editor of Carolina Journal.