After speaking with Dare County Manager and Attorney Robert (“Bobby”) Outten by telephone late yesterday afternoon, I would like to take another stab at explaining the mathematics of beach nourishment funding. I also would like a clean slate:
$7.5 million is currently available in Dare County BNF for project(s)
Currently, Mr. Outten explained, there is $7.5 million in the Dare County Beach Nourishment Fund (BNF) that has not been allocated for other purposes, such as paying debt service and covering maintenance of the projects that have been completed. Part or all of this money is available to be given to a town for its beach-nourishment project.
As The Beacon explained yesterday (11/8/19), the county’s occupancy tax is 6 percent. One-third of the occupancy taxes collected is set aside for beach nourishment. This amount is often referred to as “2 percent,” but it’s actually one-third of the 6 percent. These “2 percent” monies can be used for no other purpose, but to “put sand on our beaches,” Mr. Outten said, and to maintain that sand fill.
The county puts a premium on maintaining beach nourishment, thereby protecting its investment, and anticipates, for planning purposes, that maintenance will occur every five years. In a given beach town, however, maintenance may not be necessary that frequently. Nags Head performed maintenance just this year of its 2011 beach nourishment project.
The occupancy tax money comes into the county as it is collected, according to Mr. Outten, so the BNF “grows and grows, then we spend it down.” What this means is that the unallocated amount can be expected to increase.
Formula for determining how much each town should pay for nourishment
As Mr. Outten explained at the Wednesday Town Council meeting, Dare County paid about 50 percent of the costs for Nags Head’s 2011 nourishment project, which was the first one on the Outer Banks. According to online reporting by the Town of Nags Head, the project’s total cost was $37 million.
When Kill Devil Hills, Duck, and Kitty Hawk subsequently came to the county to ask about funding for nourishment of their beaches, Mr. Outten said he had to figure out “how to fairly allocate county funds” among them. The BNF had insufficient funds to support a 50-50 split for each town, as was done in Nags Head.
What the County Manager eventually did was ask: “How much did Nags Head tax its taxpayers” in order to pay its share of the beach-nourishment project? Mr. Outten said he looked at how much Nags Head “spent out of its coffers,” and divided that number by its tax base, to arrive at a tax rate paid by “everybody” in town. It was about 7.85 cents, as he recalled, or 0.0785 per $100 of property valuation.
When each of the three towns applied that formula—i.e., multiplied their tax bases by the 7.85 factor—they all could afford a nourishment project, Mr. Outten said. The county intended to make up the difference in the costs of each town’s project, as I understand it.
Because its tax base is so large, however, when Kill Devil Hills applied the 7.85-factor formula, it “got virtually none of the occupancy-tax money”—because it could afford to do without it—“and that didn’t seem fair,” Mr. Outten said.
KDH and the county negotiated, arriving at a 5.2 factor instead, Mr. Outten said, so “they had skin in the game at some level, and we put some skin in, too, to make it fair.”
Of course, like Nags Head, the three towns didn’t actually apply the 0.0785 tax rate to every property because they used municipal service districts to tax oceanfront and oceanside property owners at a higher rate than other property owners.
It seems to me—and I defer to accountants and other numbers people—that if the Town of Southern Shores applied the 0.0785 tax rate to its tax base, it could estimate how much Dare County would expect it to contribute to its estimated $16 million beach nourishment project. It also would discover just how far short it falls.
$250,000 awarded for Southern Shores beach nourishment study
As The Beacon reported yesterday, Chairman Robert Woodard told the Town Council Wednesday that the County Board of Commissioners had unanimously voted Monday, at its monthly meeting, to give Southern Shores $250,000 to pay consultants for a beach-nourishment study. The county has done the same for other towns.
Southern Shores has spent considerably less than $250,000 for the survey work that its engineering consultant, APTIM Coastal Planning & Engineering of North Carolina, has performed on the town’s 3.7-mile shoreline in the past two years.
When I asked Mr. Outten in our telephone call yesterday if Southern Shores could use this money for other purposes, he said no. When I asked him if Dare County might reimburse the Town for money it has spent on coastal engineering surveys—another of which is scheduled for next spring—he replied that he was not sure.
“I hadn’t thought about that,” he said.
The Board of Commissioners’ action came as a surprise to Town Council members and Interim Town Manager Wes Haskett. Although Mr. Outten mentioned such study funding in his Jan. 3, 2017 talk with the Town Council, which was referenced in yesterday’s blog, its availability was never brought up by former Town Manager Peter Rascoe or the Town Council in any public meetings in which beach nourishment and/or APTIM’s surveys were discussed.
It is abundantly clear that, since APTIM submitted its beach-nourishment study last December, which it called a “vulnerability assessment” and updated this year, the Town has not conferred with Dare County Manager Bobby Outten–who lives in Chicahauk.
[PLEASE NOTE: This article has been updated since 5 p.m. Friday.]
Dare County Manager and Attorney Robert (“Bobby”) Outten gave the Town Council a course in what he called “Beach Nourishment 101 for Dare County” at its Wednesday meeting, tracing the history of the county’s involvement in local beach-town nourishment projects and clarifying how the county manages its financial contribution.
Mr. Outten’s talk was an expanded version of one that he gave the Town Council Jan. 3, 2017, when it was considering the Pelican Watch nourishment project. This time Robert Woodard, chairman of the Dare County Board of Commissioners, accompanied Mr. Outten, and spoke briefly about the county’s commitment to “nourishing our beaches.”
The decline of local beaches, the Chairman said, is something “we cannot, under any circumstances, afford.”
“Our economic engine is beach nourishment,” he said.
Dare County maintains a beach nourishment fund that annually receives one-third of the occupancy taxes it collects. The occupancy tax, which is 6 percent, is applied to gross receipts derived from the rental of rooms, hotels, motels, campsites, private residences, cottages, and other similar types of accommodations.
In fiscal year 2018-19, gross occupancy taxes totaled $30,678,036, of which the beach nourishment fund (“BNF”) received $10,214,436. Mr. Outten indicated that the fund currently has $7.5 million in it that has not been allocated and that this amount will “grow.”
Funding one of the two beach-nourishment plan options recommended in September by the Town’s engineering consultant, APTIM Coastal Planning & Engineering of North Carolina, is very much on the minds of Town Council members. If Southern Shores proceeds with a plan, it would benefit financially from coordinating the timing of its sand dredging with the maintenance cycle of Duck, Kitty Hawk, and Kill Devil Hills, which expect to add fill to their 2017 projects in 2022.
Beach nourishment, a salvage technique used to combat erosion and to widen the beach, involves dredging large amounts of sand from offshore sand sources and placing this sand on eroded, narrowed beaches.
Equipment mobilization costs, which Mr. Woodard described as “humongous,” would be saved if the towns worked together. When Mr. Outten spoke to the Council in 2017, he estimated that such costs accounted for more for 10 percent of a project’s total.
The projected costs in September for APTIM’s two recommended options, each of which would place sand on the southernmost 15,500 feet of the Town’s 3.7-mile shoreline—from Fourth Avenue south to the Kitty Hawk line—are $14,026,800 and $16,749,900. The cost difference is attributable to sand fill density and volume.
Chairman Woodard told the Town Council that Dare County has spent $100 million on beach nourishment in the past nine years. As Mr. Outten explained, the county manages the BNF so as to assure that sufficient monies exist to cover both debt service and the maintenance costs of all projects “going forward.”
Nags Head, KDH, Kitty Hawk, Duck, the Pelican Watch beachfront in Southern Shores, and Buxton have all received monies from the county’s beach nourishment fund. In his January 2017 talk, Mr. Outten said that Kitty Hawk intended to nourish all 4 miles of its coastline; Duck, Kill Devil Hills, and Buxton all planned partial nourishment of 2-2 ½ miles of oceanfront; and Nags Head had already nourished 10 of its 11-mile shoreline.
The goal of the Kitty Hawk project, Mr. Outten said Wednesday, was to prevent flooding on the side streets between the beach road and U.S. Hwy. 158, not to build up the dune.
Nags Head was the first Dare beach town to undertake beach nourishment.
According to Mr. Outten, Nags Head considered a nourishment project as early as the late 1980s and expected federal funds to pay for 75 percent of the costs, but those monies never came through. In 2011, when the town finally implemented its project, the total cost was $37 million, $18 million of which came from the Dare BNF. The town also borrowed $18 million and used $1 million from its general fund.
According to its online records, Nags Head covered much of its debt by adopting a town-wide tax increase of 2 cents (on $100 of property value) and a tax increase of an additional 16 cents on property owners in two municipal service districts on the oceanside.
For its 2019 nourishment maintenance project, Nags Head assessed a town-wide tax increase of 2.7 cents and an increase of 17.5 cents on all property owners in its two service districts, which are east of South Virginia Dare Trail and South Old Oregon Inlet Road. It also was able to take advantage of state and federal disaster-relief funds distributed after Hurricane Matthew.
Federal Emergency Management Agency (FEMA) monies are available, Mr. Outten explained, after a “declared storm,” but only then. “FEMA looks at a beach like infrastructure,” he said.
As Mr. Outten explained Wednesday, and The Beacon clarified in a telephone conversation late this afternoon, Dare County had a formula for determining how much it gave each town in BNF monies, so as to make contributions fair. The formula is based on the town’s tax base. [More on this tomorrow.]
The Town of Southern Shores has hired DEC Associates, Inc., a Charlotte-based financial planning firm that also works with Dare County, to advise it on funding options for its anticipated beach nourishment project. Southern Shores’ current tax rate is 22 cents per $100 of property value.
AVON’S REQUEST AND BNF PRIORITIZATION
According to Mr. Outten, citizens who live in Avon, the unincorporated community on Hatteras Island that was hit hard by Hurricane Dorian, have already submitted a request for Dare County BNF monies. If Southern Shores were to submit a request, it would essentially be competing with Avon, whose interest Mr. Outten also mentioned in his 2017 talk.
As Mr. Outten explained by telephone today, Dare County would do the study for the village of Avon, and then work with citizens to determine what a project would cost them and whether they can afford it.
“We haven’t ever had to prioritize projects,” the County Manager said Wednesday, suggesting that if prioritization of two requests were necessary to determine fund allocation, he would look at the cost-benefit equation of each and “who’s imminently threatened.”
A beach-nourishment study, like the one APTIM has done, is a prerequisite to any request by a town for BNF funds.
“We have to know how much the project is going to cost and how much the town can raise,” Mr. Outten said.
Chairman Woodard told the Town Council that the County Board of Commissioners unanimously voted Monday, at its monthly meeting, to give Southern Shores $250,000 to pay for such a study. The county has done the same for other towns.
Southern Shores has spent considerably less than $250,000 for the survey work that APTIM has performed in the past two years.
When The Beacon asked Mr. Outten in our telephone call today if Southern Shores could use those monies for other purposes, he said no. When asked whether the county might reimburse the Town for monies it has spent on coastal engineering surveys, he said he was not sure: “I hadn’t thought about that,” he replied.
The Board of Commissioners’ action Monday came as a surprise to Town Council members and Interim Town Manager Wes Haskett. Mr. Outten did mention the availability of such funding, however, in his Jan. 3, 2017 talk.
Noting that the Town is “short on survey data,” Mayor Tom Bennett asked Mr. Outten if Southern Shores has until Christmas to submit a request. The County Manager told him that Southern Shores can take the time it needs.
But, he noted, “We don’t sit on the money waiting” for requests. The point of the beach nourishment fund is to “put sand on the beaches.”
ANNUAL TOWN AUDIT: STRONG FINANCIAL CONDITION
Also Wednesday, Teresa Osborne, a CPA with Dowdy & Osborne, LLP of Nags Head, presented a brief overview of her firm’s independent audit of the Town’s financial statements for fiscal year 2018-19, reporting that the Town ended the fiscal year in “strong financial condition.”
According to Ms. Osborne, revenues in FY 2018-19 exceeded expenses by $344,361. At the close of the fiscal year, she reported, the unassigned fund balance for the General Fund contained $4,173,321, or 70 percent of annual General Fund expenses. Inasmuch as the Town requires $1.75 million of this balance to be maintained for emergency relief (“working capital”), $2,423,371 may be viewed as unrestricted.
Ad valorem taxes increased by 1 percent, bringing in $34,000 of revenue.
OTHER GOINGS-ON: ZTA 19-02, S. Dogwood Trail Sidewalk Contract
The Town Council unanimously voted to approve those sections of Zoning Text Amendment 19-02, which deals with building height and lot fill, that the Planning Board recommended and to let the Board continue to “work to refine” section 6(b) of the ZTA, as Planning Board Chairperson Elizabeth Morey requested.
Please see The Beacon, 11/4/19, for more background on ZTA 19-02.
Section 6(b) of the ZTA grants an exception to banks that front on U.S. Hwy. 158 for “decorative cupolas or ornamental watch towers” that extend up to 15 feet above the 35-foot height restriction.
“We really don’t want any more banks with cupolas,” said Ms. Morey, who was elected to the Town Council on Nov. 5, in presenting the Planning Board’s position Wednesday.
Local general contractor Matt Neal, who also won election to the Town Council Tuesday, spoke in support of passing ZTA 19-02, with the exception of the bank cupola exception.
THE PLANNING BOARD WILL MEET NOV. 18, 5:30 p.m., in the Pitts Center, to continue its discussion on Town Code requirements for retaining walls—a topic that came up during its ZTA 19-02 discussions—and on bank cupolas. This will be the last meeting that Ms. Morey chairs.
It is standard procedure, when a Planning Board vacancy occurs, for the Town Council to ask the Board’s first alternate, who is now Tony DiBernardo, if he or she would like to be appointed to a regular Board membership. If the first alternate declines, it is customary for the second alternate, who is now Michael Basilone, to be offered the appointment. If this procedure is followed, there is likely to be an alternate’s seat available.
SOUTH DOGWOOD TRAIL SIDEWALK CONTRACT: The Town Council unanimously approved awarding the construction contract for the South Dogwood Trail sidewalk project to Hatchell Concrete, Inc., of Manteo, which submitted the lowest bid among three bids that the Town received.
Council members did not engage in any discussions about the relative merits and reputation of Hatchell Concrete or its proposal. RPC Contracting, Inc., with whom the Town has often worked, came in with the second lowest bid.
According to Mayor Bennett, the total cost of the contract with Hatchell is $645,280.10: $623,839.35 for the base amount and $21,440.75 for pedestrian crossovers on the street.
Mr. Fletcher said he would present a library site proposal to the Town Council at its Dec. 3 meeting.
VETERANS DAY, NOV. 11: The Town Hall offices will be closed Monday, Nov. 11, in observance of Veterans Day. Trash collection will occur as usual.
THE AUTUMN BULK-TRASH PICKUP IS FRI., NOV. 15. As of today, you legitimately may put your large-item garbage in the roadside right-of-way.
THE EXPLORATORY COMMITTEE TO ADDRESS CUT-THROUGH TRAFFIC will hold a public forum on Nov. 19, 5:30 p.m., in the Pitts Center. The Beacon will furnish the committee’s membership and agenda, when we have received a release from committee chair Tommy Karole.
Town Councilman Fred Newberry, who had been serving as the committee’s Town Council sponsor and lost his seat in Tuesday’s election, made a motion at the Council meeting to place on the Council’s Dec. 3 meeting agenda the matter of appointing a new sponsor. This motion carried 4-1, with the Mayor dissenting. The Mayor’s dissent may indicate his desire to eliminate this committee. The Beacon urges you to turn out for the Nov. 19 meeting if you would like to see the committee continue.
(Please forgive my technical snafus today. I was trying to link this blog to The Beacon’s Facebook page, but was unable to do so after repeated attempts.)
Town Council newcomers Matthew Neal and Elizabeth Morey won resounding victories in yesterday’s election of three Council seats, receiving nearly 900 votes each.
Former Town Councilman Leo Holland, with 625 votes, won the third seat.
Incumbent Councilman Fred Newberry placed fourth with 508 places. Thirty-four write-in votes were also cast.
Mr. Neal is a Southern Shores native and local builder, and Ms. Morey is a self-employed political consultant who has been a member of the Town Planning Board for eight years. She currently serves as Board chairperson.
The percentage of the total votes cast and the number of votes received by each candidate were as follows:
Neal: 30.39% (896 votes)
Morey: 30.023% (885 votes)
Holland: 21.20% (625 votes)
Newberry: 17.23% (508 votes)
Write-in: 1.15% (34 votes)
By now all of you probably know the election results. I was victimized by a computer crash and other IT problems last night–during and after an election party–and could not post the vote totals last night, as promised. I apologize. The results were available within minutes after the polls closed at 7:30 p.m.
According to the N.C. State Board of Elections, the voter turnout in Dare County was 26 percent. As soon as I know the turnout in Southern Shores, I will publish it.
The State Board did report that of Mr. Neal’s 896 votes, 637 were cast on Election Day; 255 were cast in one-stop “early” voting; and four arrived by mailed-in absentee ballots. The comparable figures for the other three candidates are as follows:
Morey: 885; 612 (Election Day); 269 (early); four (by mail);
Holland: 625; 434 (Election Day); 191 (early); zero (by mail);
Newberry: 508; 386 (Election Day); 116 (early); six (by mail);
Write-in: 34; 26 (Election Day); seven (early); one (by mail).
No candidates running in a contested Southern Shores Town Council election have ever polled numbers as high as Mr. Neal and Ms. Morey did. The vote totals for all of the candidates were unusually high.
I would guesstimate that the turnout, counting all methods of voting, was somewhere in the neighborhood of 1,050 to 1,100 people. When I obtained a count about 3:30 p.m. on Election Day, 617 people had voted on-site. That number, combined with the 304 people reported to have voted early, brought the turnout total to over 900. According to two of the candidates, voters trickled off in the late hours after the rains arrived.
Everyone on The Beacon advisory board and I congratulate the three winners and wish them well during their four-year terms, which start in December.
DON’T FORGET: The Town Council will meet today, 5:30 p.m., in the Pitts Center for its regularly scheduled monthly meeting. See The Beacon’s report on 11/4/19 for a preview of the agenda.
Dare County Manager and Attorney Bobby Outten and Dare County Board of Commissioners Chairman Bob Woodard will speak to the Town Council Wednesday about their first-hand experience with beach nourishment on the Dare beaches, as Council members again consider whether to commit Southern Shores to an estimated $14 to $16 million nourishment project that would occur in 2022.
The Town Council will meet for its regular monthly meeting Wednesday, 5:30 p.m., at the Pitts Center—the day after three Council members are elected to serve from 2019 to 2023. The new Council will take office in December.
Check with The Beacon for election returns on Tuesday night. The polls will be open from 6:30 a.m. to 7:30 p.m.
Mr. Outten and Mr. Woodard headline a top-heavy Town Council agenda that also features the presentation of the 2018-19 audit by Teresa Osborne of Dowdy and Osborne; consideration of the three bids submitted by contractors for the construction of the South Dogwood Trail sidewalk project; and a public hearing on Zoning Text Amendment 19-02, which proposes changes in the Town Code building height and fill requirements.
Because the contract bids are included, the packet for Wednesday’s meeting is voluminous. It does not include Ms. Osborne’s audit, however, which is being submitted to Council members in paper form only. You may access the meeting packet here:
The invitation to Mr. Outten and Mr. Woodard to appear Wednesday for what has been described as an information session arose out of a discussion that the Town Council had at its October meeting. Councilman Gary McDonald, in particular, expressed an interest in knowing more about the process involved in a beach-nourishment project, including how the County determines which towns receive available county monies that are set aside from collected occupancy taxes in a beach nourishment fund.
The Town opened all contractors’ bids on the South Dogwood Trail sidewalk construction project Oct. 3. They include:
$623,839.35, from Hatchell Concrete, Inc., of Manteo, which is a family-owned business
$819,710.00, from RPC Contracting, Inc., a contractor that the Town has frequently hired for infrastructure projects
$975,862.80, from Belvin Built General Contracting, Inc., of Powells Point
A fourth bid, submitted by Barnhill Contracting Co., was disqualified because it was incomplete.
Earlier this year, the Council voted 3-2 to appropriate $1 million from the Town’s undesignated fund balance for the sidewalk project because the capital improvement budget has insufficient funds to pay for it. Town Engineer Joseph J. Anlauf estimated a base-bid range on the project of between $862,127.19 and $1,034,552.62, according to the Town’s bid documentation.
Regardless of which contractor the Town Council chooses for the job, it is expected that the Town will receive some funding from Dare County for the project—perhaps as much as 50 percent of the total cost. (The Beacon has not perused the contractors’ proposals.)
The Beacon covered the opening of the bids in a post 10/5/19. In that same post, we recalled some of the Town’s past municipal elections and wrote the following:
“The Town Council election The Beacon finds the most intriguing was a November 2009 face-off between George Kowalski and Brian McDonald, who was then the incumbent. Mr. Kowalski beat Mr. McDonald by two votes! Even more stunning: Mr. Kowalski was a write-in candidate.”
We asked a month ago if anyone could “fill in the blanks” on this election, and several people did contact The Beacon. What we were told is that Mr. McDonald was allegedly targeted for defeat because he aligned himself with controversial former Mayor Don Smith, and that Mr. Kowalski had the strong backing of the Southern Shores Volunteer Fire Dept., which has long been a player in municipal elections.
Mr. Kowalski’s write-in victory is all the more astonishing to us because it occurred in the era of one-stop, no-excuse absentee voting, now known simply as “early voting.” For a history of absentee voting in North Carolina, see https://canons.sog.unc.edu/early-voting-in-north-carolina/. Early voting has been available in North Carolina in all elections since 2001.
A write-in campaign would have to be extremely well-organized to get a jump on early voting, which started Oct. 16 for the Nov. 5 municipal elections.
ZTA 19-02: HEIGHT AND FILL
Local builder and Town Council candidate Matt Neal has referred often in his public comments before both the Council and the Planning Board to Southern Shores being “90 percent built out.” Many of the undeveloped lots that are left, Mr. Neal has said, are the dregs—our word—that is, irregular lots that often defy flatness or are bowl-like and are not easily built upon.
It is largely for this reason that the Planning Board decided to research and discuss “potential amendments to the Town’s current building height and fill requirements,” as Interim Town Manager/Planning Director Wes Haskett explains in an Oct. 29, 2019 staff report to the Town Council that is included in Wednesday’s meeting packet.
Zoning Text Amendment 19-02 comes out of the Board’s research and discussions. The ZTA leaves intact the Town’s 35-foot building height restriction—which applies to all uses except for country clubs, churches, and school facilities—but changes the means by which it is calculated so as to help owners of low-lying properties and to simplify and clarify requirements. The ZTA also defines what material may be used as lot fill, among other Code refinements.
Currently, the Town Code addresses building height and the use of fill for elevation in the RS-1 single-family residential district, where most of us live, according to the property’s flood zone. Proposed ZTA 19-02 eliminates these provisions, which are in 36-202(d)(7), replacing them with the following language:
“Maximum building height shall be 35 feet, measured from the average of the existing, undisturbed grade at the building corners. If the average of the existing, undisturbed grade at the corners of the building is less than 8 feet above mean sea level, the maximum building height may be measured from up to 8 feet above mean sea level.”
The current Code regulation uses seven feet MSL as a standard and speaks of the use of fill or the redistribution of fill for bolstering elevation. ZTA 19-02 deals with fill separately in Code sec. 36-171(1). It also adds to the Code zoning definitions, in sec. 36-57, the following definition for “fill material”:
“. . . material that is of substantially similar composition to the soils present on the lot being filled and shall not include debris, organic material, or be finished with soils or materials that will adversely affect the absorption of precipitation. Materials for landscaping shall not be included in this definition.”
Currently, the Town Code specifies top-plate height restrictions in all of the other zoned residential districts, which include RS-8 multifamily; RS-10 (high-density); and R-1 low density, and in the commercial district. Proposed ZTA 19-02 eliminates the top-plate and lowest-corner requirements from all of these districts, replacing them with the maximum building height calculation language quoted above—except for country clubs, churches, and schools, where the building height, but not its calculation, differs.
The maximum building height for principal buildings that make up country clubs and churches is 65 feet. For school facilities, the maximum height is 55 feet.
ZTA 19-02 also contains a height exemption—from the 35-foot building maximum—for “decorative cupolas” and “ornamental watch towers” atop banks that have street frontage on U.S. Hwy. 158, but are not in the Martin’s Point area.
This exemption is expressly designed to address the existing cupola at TowneBank’s branch building at 1 Juniper Trail, which the Town previously granted an exception, according to Mr. Haskett.
Section 6(b)(1) of ZTA 19-02 would allow banks fronting on Hwy. 158 in Southern Shores to have cupolas or water towers extending up to 15 feet above their rooflines, which must peak at 35 feet.
TowneBank abuts an RS-1 single-family residential district. The other banks in Southern Shores along Hwy. 158—Wells Fargo and First National Bank—are exclusively in the Town’s commercial district.
After Planning Board first alternate Tony DiBernardo, who was serving in place of absent regular Board member Ed Lawler, raised an objection to this exemption at the Board’s Oct. 21 meeting, the Board voted unanimously to recommend ZTA 19-02 without section 6(b)(1).
The Beacon missed an earlier Planning Board meeting during which ZTA 19-02 was discussed, and the topic of retaining walls came up. The topic came up again at the Board’s October meeting, and the Board decided to consider amending the current retaining wall regulation, Town Code sec. 36-97, to address walls constructed for the exclusive purpose of retaining fill material above naturally occurring grades.
Town Code sec. 36-97, provides that “within or abutting any residential district,” a retaining wall “shall” not exceed six feet in height.
The Board will begin its discussion of retaining walls at its Nov. 18 meeting.
PUBLIC FORUM ON TRAFFIC . . . The Exploratory Committee to Address Cut-Through Traffic will hold a public forum on Tues., Nov. 19, at 5:30 p.m., in the PittsCenter. Town Councilman Fred Newberry is the Town Council’s sponsor of this committee, and homeowner Tommy Karole is the committee chairperson.
The Southern Shores Beacon endorses Matt Neal, co-owner of Neal Contracting LLC, and Town Councilman Fred Newberry for election to the Town Council on Nov. 5. We believe both are outstanding candidates who will lead the town forward, decisively and intelligently, and with equanimity and fairness.
Both Mr. Neal and Mr. Newberry care deeply about the town and the people who live here and will work together to serve both well.
MATTHEW NEAL, 36, is a Southern Shores native—third generation, he says—who has shown in numerous public comments before the Southern Shores Planning Board and the Town Council that he is committed to environmental and historic preservation and smart growth. In fact, he played a critical role in formulating the new Town ordinance that limits overnight occupancy and septic capacity in vacation cottages to 14 persons.
Mr. Neal is very familiar with the letter and application of the Town zoning code: Had the Planning Board and Council listened to him, The Beacon believes the nonconforming lots imbroglio, which has yet to be fully resolved, may not have occurred. Even now he can offer a solution that will protect both the Town and those property owners who did not benefit from the Council’s recently enacted zoning amendment.
Mr. Neal and his wife and business partner, Rachel Neal, and two small children live in a modernized flat top on Wax Myrtle Trail.
We have been very impressed with Mr. Neal’s wealth of knowledge about zoning, stormwater problems, and other development issues of concern to Southern Shores property owners, and with his quick thinking. He is well-informed and prepared to address any matter that comes before the Town Council with thoughtfulness and practical reason. He also has leadership skills.
In truth, Mr. Neal, who has been the president of the Outer Banks Home Builders Assn. for the past two years, had to win us over. We were skeptical about having an active builder on the Town Council, especially one who has participated in the OBHBA’s legislative lobbying efforts. But Mr. Neal’s devotion to his hometown, his knowledge of seemingly every inch of Southern Shores, and his balanced viewpoints have convinced us that he would be a tremendous asset on the Council.
As Mr. Neal said at the Oct. 7 candidate forum, he has “a lot to offer.”
His term as OBHBA president expires in December.
Mr. Neal’s campaign is hosting a candidate meet-and-greet tomorrow night (Oct. 30) from 5 to 7 p.m. at the Duck Woods Country Club. You do not need an invitation to attend, but Mr. Neal asks that you RSVP at firstname.lastname@example.org, so that the club will have an accurate guest count for the drinks and light refreshments being served.
COUNCILMAN FRED NEWBERRY, 71, who was first elected in 2015, has made and is making inroads on the Town Council in terms of dealing with the cut-through traffic, which is a top priority of residents, and of planning and budgeting for the town’s future. Mr. Newberry is seeking to ensure that all necessary projects–especially infrastructure projects–get done without the need to raise real-estate taxes.
We believe that Councilman Newberry, whose campaign slogan is “I work for you,” should be returned to office so that he may continue his progressive efforts.
Mr. Newberry is very much of a democrat—with a small “d”—not an autocrat. He is committed to giving the public, his constituents, a strong voice in the Town Council’s decision-making.
Mr. Newberry and his wife, Debbie Newberry, live on North Dogwood Trail and own a modest rental house on Ocean Boulevard.
Councilman Newberry has made reducing the cut-through traffic a primary goal of his campaign. He currently is sponsoring a citizens’ committee to study the problem and to recommend solutions that “work for everyone,” he said. Mr. Newberry expects the committee’s conclusions to be presented to the new Town Council in December.
Councilman Newberry spearheaded with Councilman Gary McDonald, who decided not to run for re-election, the no-left-turn (NLT) weekend trial that was held in June 2018 and was largely viewed as a success by Southern Shores residents, even those who live on Duck Road.
Both councilmen considered the NLT trial an opportunity for an assessment of the effects that the restriction would have on traffic cutting through on residential streets in town, including in Chicahauk, over one June weekend, not as a “one-and-done” experiment.
Councilman Newberry also has come out in favor of a case-by-case approach to doing beach nourishment in Southern Shores, as was done in 2017 when the beach in front of Pelican Watch, next to the Kitty Hawk Pier, was re-nourished.
The Committee to Elect Fred Newberry is holding a candidate meet-and-greet on Sunday, Nov. 3, from noon to 3 p.m., at 148 Ocean Blvd., which is just north of the cell tower on the beach road. The event is open to the public. Drinks and light refreshments will be served.
THIRD COUNCIL SEAT: The Beacon is aware, of course, that voters will be electing three people to the Town Council on Nov. 5, and that candidates Leo Holland, 78, and Elizabeth Morey, 60, also are vying for a seat. Mr. Holland served on the Town Council from 2013-17 and elected not to run for re-election two years ago. Ms. Morey has served on the Planning Board for eight years and has been its chairperson since January. She has only recently started attending Town Council meetings.
Ms. Morey is an effective communicator and dedicated public servant whom The Beacon likes, but currently cannot support.
Mr. Holland is a nice man who has not displayed the independent-mindedness and preparation that The Beacon considers essential to its candidate endorsements.
For more on both candidates, see The Beacon’s reports on 10/11/19 and 10/13/19 about the Oct. 7 candidate forum sponsored by the League of Women Voters of Dare County. You may watch a video of the event here: https://www.youtube.com/watch?v=_N6ukMB8l1Y&t=4814s.)
WRITE-IN CANDIDATE: Earlier The Beacon reported hearing rumors that a grass-roots write-in campaign had formed. Although some voters have urged a write-in vote to re-elect Councilman Gary McDonald, who initially filed for re-election, but then withdrew, Mr. McDonald has informed The Beacon that he personally has not launched a campaign. When we asked if he would serve if he were to be elected by write-in, Mr. McDonald said he would.
ELECTION DAY: The polls will be open at the Kern Pitts Center on Nov. 5, from 6:30 a.m. until 7:30 p.m.
EARLY VOTING continues today through Friday, from 8 a.m. to 5 p.m., at the Kill Devil Hills Town Hall and the Dare County Administration Building in Manteo.
Planning Board Unanimously Approves Amended ZTA on Lot Fill, Building Height, Rejecting Bank Cupola Exemption; Will Look at Retaining Walls
As expected, the Town Planning Board unanimously approved on Oct. 21 proposed Zoning Text Amendment 19-02, which changes the means by which the 35-foot maximum building height is calculated and defines what material may be used as lot fill—among other Town Code refinements—but only after recommending that a section of the ZTA concerning banks fronting on U.S. Hwy. 158 be stricken.
The proposed height-calculation change reflects a recognition that many of the remaining undeveloped lots in town are irregular in topography.
Planning Board First Alternate Tony DiBernardo, serving in place of absent regular Board member Ed Lawler, objected to a height exemption in ZTA 19-02 for “decorative cupolas” and “ornamental watch towers” atop banks that have street frontage on U.S. Hwy. 158, but are not in the Martin’s Point area.
John Finelli represents the extraterritorial jurisdiction, aka ETJ, of Martin’s Point, on the Planning Board. Over the summer Mr. Finelli submitted to the Board written comments about changes to the Town’s building height and lot fill requirements that its members were discussing. His comments included a recommendation that banks not be given special treatment.
Section 6(b)(1) of ZTA 19-02 would allow banks fronting on Hwy. 158 in Southern Shores to have cupolas or water towers extending up to 15 feet above their rooflines, which must peak at 35 feet. This provision is expressly designed to accommodate the existing cupola at TowneBank’s branch building at 1 Juniper Trail.
TowneBank abuts an RS-1 single-family residential district. The other banks in Southern Shores along Hwy. 158—Wells Fargo and First National Bank—are exclusively in the Town’s commercial district.
After first inquiring whether TowneBank’s cupola could be “grandfathered in,” rather than accorded a Code exemption that would apply to all banks fronting on Hwy. 158, Mr. DiBernardo stated that he could see no reason why a bank should be permitted to exceed the 35-foot height limit.
“There’s no function to [the height extension] other than decorative,” he said. “I don’t understand the purpose to it.”
Interim Town Manager and Planning Director Wes Haskett replied that the purpose was “purely aesthetic” and said that he would speak with the Town Attorney if “you want to explore grandfathering.” The Board indicated it did.
“Do we want more banks with cupolas or do we not?” asked Board Chairperson Elizabeth Morey.
Envisioning a cupola atop each of the other two banks in Southern Shores that currently front on Hwy. 158 and atop other future banks that may be built in the commercial area, Planning Board members made it clear that they do not.
The Beacon missed an earlier Planning Board meeting during which ZTA 19-02 was discussed, and the topic of retaining walls came up. In his written comments, Mr. Finelli recommended that retaining walls constructed “for the exclusive purpose of retaining fill material above naturally occurring grades” be limited to two feet in height.
Southern Shores homeowner Doug Boulter sparked a renewal of the Board’s discussion about retaining walls when he addressed them in his public comments. He said he thought a 30-inch retaining wall “in the setback area” was “more than reasonable.” Mr. Finelli also prefers a 30-inch wall, according to his comments.
The current retaining wall regulation, Town Code sec. 36-97, provides that “within or abutting any residential district,” a retaining wall “shall” not exceed six feet in height.
“I know what the back lot of a six-foot retaining wall looks like,” said Planning Board Vice-Chairperson Andy Ward, “and it’s not pretty.”
The Board agreed to “revisit” the subject of retaining walls, starting at its Nov. 18 meeting. Town Council candidate Matt Neal suggested to the Board that the subject merited many meetings because of the possibility of causing “unintended consequences” if a proposed amendment to sec. 36-97 is not carefully considered and drafted.
THE TOWN COUNCIL MEETS NOV. 6, 5:30 P.M., IN PITTSCENTER
The Town Council will hold a public hearing on ZTA 19-02 at its Nov. 6 meeting, which features several important items on the agenda, including a presentation of the annual Town audit, possible selection of a contractor for the South Dogwood Trail sidewalk project, and a discussion about the beach nourishment process with Dare County Manager Bobby Outten and Dare County Board of Commissioners Chairman Bob Woodward.
The Beacon will preview the meeting in more detail in a blog over the weekend or next Monday. Newly elected Town Council representatives will not be sworn in until Dec. 3.
CORRECTION, THIS JUST IN . . . SSCA President Rod McCaughey has called a special general membership meeting on Nov. 21, 7 p.m., at the Pitts Center, for the purpose of finalizing the votes on the 2020 SSCA budget and the proposed changes to the bylaws. Both of these items were tabled at the SSCA’s Oct. 14 general membership meeting.
Dr. Michelle Flynn Osborne, Chief Deputy Commissioner of the N.C. Dept. of Insurance, will speak at a “community conversation” about property insurance Tuesday, 6-7:30 p.m., at First Flight High School Auditorium in Kill Devil Hills. The free event is sponsored by Dare County and the Outer Banks Assn. of REALTORS®.
Dr. Osborne’s topics will include types of coverage, limitations, and the importance of flood insurance, according to the sponsors.
To get to First Flight High School, turn right off of U.S. Hwy. 158 at the Colington Road intersection, just south of the Wright Brothers Memorial; then turn left on Veterans Drive after you’ve passed the KDH government complex. You can’t miss the auditorium.
(Note: The first game of the World Series starts Tuesday at 8:08 p.m., so you can attend Dr. Osborne’s conversation and still catch the early innings. Go, Nats!)
The Planning Board has spent considerable time thinking about, researching, and drafting the proposed changes on height and fill, which are designed to help both property owners and the builders they hire, as well as neighboring property owners, and will likely approve ZTA 19-02 unanimously. The Beacon will cover the changes in detail when the amendment comes before the Town Council Nov. 6 for a vote.
The Planning Board also will entertain public comments at tomorrow’s meeting.
LIBRARY SURVEY ONLINE: The Southern Shores Exploratory Committee for Potential Branch Library has posted a short survey about the potential library’s use by residents at the top of the Town of Southern Shores website: https://www.southernshores-nc.gov/. The committee will meet next on Nov. 1, 2 p.m., in an upstairs room of the Pitts Center.
ELECTION DAY AND THE TOWN COUNCIL: Because the general Election Day is always the first Tuesday in November, and the Town Council usually meets on the first Tuesday of the month, the November Town Council meeting will be held on Wed., Nov. 6, instead.
Voting for the Southern Shores municipal election will take place Tuesday, Nov. 5, in the Pitts Center from 6:30 a.m. until 7:30 p.m. The Town Council meeting the next day will begin at 5:30 p.m. The newly elected Council members will be sworn into office at the Town Council’s Dec. 3 meeting.
POLL WORKERS NEEDED: The Dare County Board of Elections is accepting applications for poll workers. According to the BOE’s website, poll workers receive some compensation and must be able to work from 5:30 a.m. until at least 8:30 p.m. To apply for a position, go to https://www.darenc.com/departments/elections/about/poll-workers.
COUNCIL CANDIDATE WRITE-IN CAMPAIGN?: The Beacon has heard some rumors about a late write-in campaign for a fifth candidate for the three Southern Shores Town Council seats that are being contested in the election. If you are having trouble deciding to whom you should give your third vote, you may wish to delay voting for a few days. The Beacon will confirm or deny these rumors as soon as possible.
At the Oct. 7 Town Council candidate forum, Southern Shores Civic Assn. president, Rod McCaughey, asked a comprehensive question about water—water, “as in,” he said:
“stormwater runoff on our streets”
“the health of our canals and Currituck Sound”
“the health of the Southern Shores ponds”
“Do you see [water problems] as a serious issue?” Mr. McCaughey asked. “If yes, what should be done?”
All of the candidates expressed concern about water problems: Town Councilman Fred Newberry said they are of “critical importance.” But only Matt Neal, who, as a builder, has to consider stormwater runoff in his construction projects, offered possible solutions based on firsthand knowledge.
Mr. Neal joined the other three candidates, who also include Elizabeth Morey and Leo Holland, in suggesting that the N.C. Dept. of Environmental Quality could assist the Town in dealing with water quality in the Currituck Sound. He suggested making an “active request” for help. (No one mentioned the canals, per se.) Mr. Neal then addressed what he called “direct-impact” problems: flooding from the ponds and stormwater.
According to Mr. Neal, both Dare and Currituck counties are employing “groundwater lowering devices,” including “collection pipes or cisterns or pumps” to lower the water level in ponds.
Before a storm, he explained, the counties will “actively pump these [water] systems down and drain the ponds and provide collection holding pens within those ponds,” to prevent flooding.
This is an “achievable thing” for Southern Shores, Mr. Neal said. It’s a question of paying the money and making the commitment.
As for stormwater runoff, he said, the problem is “the streets can’t handle it.”
He spoke of “design parameters” to manage stormwater that builders must adhere to in constructing residential and commercial development. In the case of residences, he said, the design parameter is 1 1/2 inches of stormwater; for commercial buildings, it’s 4 inches.
“Nobody has a design parameter for 10 inches of rainfall,” he observed.
But, he said, the Town could target a different design parameter and apply an engineering solution to the stormwater that runs off driveways into the streets. He characterized both the pond flooding and the runoff as “low-hanging fruit” that the Town could “go after.”
Mr. Neal also shared a “model” that Kitty Hawk uses for its “bowl-like areas” where stormwater collects and flooding occurs: “Kitty Hawk pumps as soon as the storm has left,” he said. It acts “immediately.”
The new Council will have an opportunity to decide whether controlling pond flooding and stormwater runoff are priority issues for the Town and to take action.
WHO OWNS THE PONDS?
After the forum, The Beacon spoke with Mr. McCaughey in order to clarify a point that we have long wondered about: Who owns the ponds in Southern Shores?
It turns out that’s a tricky question to answer: The answer largely turns on whether the pond is natural or man-made.
Mr. McCaughey shared a legal opinion that he obtained about the ownership of the J-shaped Circle Pond, which is bounded by privately owned single-family homes and SSCA-owned common area fronting on Duck Road, Periwinkle Place, Ocean Boulevard, Hickory Trail, and Circle Drive.
According to this opinion, the Kitty Hawk Land Co.—which developed Southern Shores—conveyed to the SSCA in 1978 the “man-made lagoons, canals or waterways” that then existed within the boundaries of the Southern Shores Community.” (This conveyance explicitly excepted the Chicahauk subdivision.)
Were ponds included in this conveyance? Is a pond a lagoon?
Certainly common sense and dictionary meanings would lead you to believe that a pond is not a lagoon. You also could argue that if the KHLC had wanted to give the SSCA title to all then-existing man-made ponds, it could have so specified.
One thing is certain: The SSCA does not own any “naturally occurring” ponds, which, according to the SSCA’s attorney, Circle Pond is.
In October 2016, the combination of weeks of precipitation, water-saturated ground, and rains from Hurricane Matthew led to Circle Pond’s overflow. It was not the only pond that flooded, and rendered roadways impassable for weeks, but it did more damage than pond flooding elsewhere.
So who owns Circle Pond?
If the KHLC has not deeded it to the Town, and the SSCA’s attorney didn’t find that it had, the KHLC still does. This would seem to be the case with all naturally occurring ponds in Southern Shores.
What about the man-made ponds?
In 2005, the SSCA sold to the Town “all of the existing man-made lagoons, canals or waterways within the boundaries of the Town of Southern Shores as described in deed recorded in Book 31, Page 445, Dare County Registry,” except those in Chicahauk, which the 1978 deed excluded, and those lying on the boundaries of the lands of the Duck Woods Country Club. This conveyance covered substantively all of the same property that was covered in the 1978 conveyance.
The 2005 deed also excepted any “ponds or waterways” that are on SSCA-owned property—even though a pond, presumably, is not a lagoon, and the inclusion of ponds in the exception language wasn’t necessary.
It appears that if the SSCA owns the land around a man-made pond, it also owns the pond.
Generally speaking, therefore, the SSCA owns the man-made ponds in Southern Shores; but there is one noteworthy exception: Ginguite Pond, which sits behind single-family homes situated on Ginguite Trail and in the Mallard Cove community.
According to a 2017 written opinion provided to former Town Manager Peter Rascoe by an attorney representing the Town, Ginguite Pond, a/k/a Mallard Cove Pond, a/k/a Duck Woods Pond, which is man-made, is owned by the Kitty Hawk Land Co., not the SSCA or the Town.
In addition to the 1978 and 2005 deeds, attorney M.H. Hood Ellis of Hornthal, Riley, Ellis & Maland cited as support for his opinion 1) correspondence sent by former KHLC president Mickey Hayes to the Town in 2004 and 2006 reflecting his belief that the KHLC owns the pond, and 2) an “overflow device” that the KHLC “engineered, permitted and installed [at the pond] . . . at a cost of over $50,000.”
It appears to The Beacon that the Town Council should be talking with both the Kitty Hawk Land Co. and the SSCA about pond overflow.