You have until this Saturday to cast your ballot in the Nov. 6 general election by early voting. The polls will be open from 7 a.m. to 7 p.m. today, tomorrow, and Friday, and from 8 a.m. to 1 p.m. on Saturday. There are only three polling stations open for early voting, and they are:

DARE COUNTY ADMIN. BLDG., 954 Marshall C. Collins Drive, Manteo

KILL DEVIL HILLS TOWN HALL, 102 Town Hall Drive, KDH

FESSENDEN CENTER ANNEX, Buxton

As I already told Beacon Facebook readers, I voted yesterday in Kill Devil Hills around 1:30 p.m. and had to wait about 20 minutes in a short line. A wait is seemingly inevitable: You have to fill out your ballot by hand—there are no computers—and the ballot is lengthy. It will take time for voters who do not know the candidates and are unfamiliar with the six proposed N.C. Constitutional amendments to read and complete it.

You will find a sample copy of the ballot, courtesy of The Outer Banks Sentinel, here: https://bloximages.chicago2.vip.townnews.com/obsentinel.com/content/tncms/assets/v3/editorial/0/c0/0c010b2c-d1af-11e8-b195-932b01b7544b/5bc6959b950fb.pdf.pdf.

On Election Day, many more precincts/polling stations will be open, including the Pitts Center in Southern Shores. Voting hours will be 6:30 a.m. until 7:30 p.m. The Sentinel published a list of all the polling stations here:

https://www.obsentinel.com/news/where-to-vote-on-election-day-nov/article_77dd8938-d1af-11e8-af03-4fb25056c448.html.

Early voting in our area has reportedly been brisk, even though North Carolina does not have a U.S. Senate race this year and Congressman Walter B. Jones is running unopposed for his U.S. District 3 House seat. Dare Board of Elections Director Michele Barnes told The Sentinel that 5,524 votes had been cast through Oct. 29, not counting absentee votes.

I strongly urge you to take advantage of early voting in the remaining days. Don’t be discouraged if you arrive and the line is out into the parking lot. I believe the lines on Election Day are going to be FAR worse.

ROD MCCAUGHEY RUNNING WRITE-IN FOR SOIL/WATER SUPERVISOR

The Beacon has learned that Rod McCaughey, a Southern Shores resident homeowner, is running a write-in campaign for a seat on the Soil and Water Conservation District Board of Supervisors, a nonpartisan office. There are two seats open on the five-member Board of Supervisors, each of which has a term of four years. These offices appear on your ballot after all of the judicial offices. You may write in two names.

Mr. McCaughey is active in the Southern Shores Civic Assn. He serves on the SSCA Board of Directors and is chairperson of the Bylaws/Long-range Planning/Architectural Review Board committee. Now that his and his wife’s children are grown and he is retired, Mr. McCaughey told The Beacon that he would like to participate actively in civic and municipal activities that he didn’t have time for earlier.

According to the Dare County website, “protecting and enhancing water and soil quality is the mission of the Dare Soil and Water Conservation District.” For more info about the Conservation District, see https://www.darenc.com/departments/soil-and-water.

A REFRESHER ON THE CANDIDATES

I previously covered the election races in a blog posted 9/26/18, but it doesn’t hurt to publish a refresher.

N.C. GENERAL ASSEMBLY

In N.C. Senate district one, which includes Dare County, Democrat D. Cole Phelps is running against Republican Bob Steinburg to succeed Republican Bill Cook, who decided not to run for re-election. Mr. Steinburg currently represents House district one in the General Assembly. Dare County is in House district six.*

Running to succeed Representative Beverly Boswell in House district six are Democrat Tess Judge and Republican Bobby Hanig. Ms. Boswell was defeated earlier this year in the Republican primary.

Each of these offices is for a term of two years.

DARE COUNTY BOARD OF COMMISSIONERS

There are two contested races for seats on the seven-member Dare County Board of Commissioners: Republican Anne P. Petera is running against Democrat Ervin Bateman for the at-large seat held by retiring Commissioner Jack Shea, a Repubican and Southern Shores resident; and Democrat Rosemarie Doshier is challenging incumbent Commissioner Jim Tobin, a Republican, for the district one seat. District one covers Roanoke Island and the Dare County mainland.

Incumbent Commissioner Rob Ross, a Republican, is running unopposed in district two, which includes Nags Head, Colington, and Kill Devil Hills. Southern Shores is in district three with Kitty Hawk and Duck. Steve House, a Republican elected in 2016, represents our district.

Each of the commissioners’ terms is for four years.

DARE COUNTY BOARD OF EDUCATION

Democrat Jen Alexander is challenging Republican incumbent Joe Tauber in BOE district two (NH, Colington, KDH), and Democrat Margaret Lawler, a Southern Shores resident, is running unopposed in district three (TOSS, KH, Duck). Ms. Lawler is vice-chairperson of the Board.

OTHER DARE COUNTY OFFICES

Current Register of Deeds Vanzolla McMurran, a Democrat, faces a challenge from Republican Cheryl House; and Republicans Dean Martin Tolson and J.D. (Doug) Doughtie are running unopposed for their respective offices of Clerk of the Dare County Superior Court and Dare County Sheriff.

All of the Dare County Superior and District Court judges, whose four-year terms are expiring, are running unopposed. They include:

Superior Court: J.C. Cole, Democrat; and Jerry R. Tillett, Republican

District Court: Robert Parks Trivette, Democrat; Eula E. Reid, Democrat; and Meader Harriss, Republican.

Incumbent District Attorney R. Andrew Womble, a Republican, is also running unopposed.

JUDICIAL OFFICES

On 10/20/18, I posted a blog about the judicial candidates. On Nov. 6, N.C. voters will be electing one N.C. Supreme Court justice and three justices to the N.C. Court of Appeals, or 1/7 of the State’s highest court and 1/5 of the intermediate appellate court. If you read the N.C. Judicial Voter Guide 2018, you know a little about who the candidates are.

The candidates for the Supreme Court are sitting Associate Justice Barbara Jackson, a Republican; self-employed Raleigh general practitioner Christopher Anglin, also a Republican; and self-employed Durham civil rights attorney Anita Earls, a Democrat.

Here is how the seats up for election in the Court of Appeals break down:

• Sitting Court of Appeals Judge John S. Arrowood, a Democrat who was appointed by Governor Roy Cooper, is running against Andrew T. Heath, a Republican who was a budget director under former Governor Pat McCrory, for re-election to his seat. This seat was expected to be eliminated by the Republican-controlled General Assembly in its campaign to shrink the Court of Appeals, but when Judge Douglas McCullough, a Republican, resigned, the seat survived, and Governor Cooper appointed Judge Arrowood, of Charlotte, to it.
• Wake County District Court Judge Jefferson G. Griffin, a Republican; Democrat Tobias Hampson, a general practitioner and partner with a Raleigh law firm; and New Hanover/Pender County District Court Judge Sandra Alice Ray, a Republican, are vying for seat 2.
• The election for seat 3 also has three candidates: Republican Chuck Kitchen, an attorney and former county attorney (Durham, Alamance) with 38 years of experience; Democrat Allegra Katherine Collins, a Campbell Law School professor and appellate attorney; and Libertarian Michael Monaco, Sr., a former general practitioner who now lists his occupation as product development.

Ann G. Sjoerdsma, 10/31/18

* District one in the N.C. Senate includes Dare, Beaufort, Camden, Currituck, Gates, Hyde, Pasquotank, and Perquimans counties. District six in the N.C. House of Representatives encompasses Dare, Beaufort, Hyde, and Washington counties. Camden, Currituck, Pasquotank, and Perquimans counties are in House district one, which Mr. Steinburg currently represents, along with Chowan and Tyrell counties.  

As we wind down to the special meeting on Nov. 7 about the intrusion in Southern Shores of 12-bedroom, 12-bathroom, 17-parking space houses that “sleep” 24 people—and the Town’s movers and shakers wind up their meetings, consultations, research, and other preparation about how to legally stop such high-occupancy housing—I thought I would share with you my perspective from 20 years ago about the same nuisance.

On April 27, 1998, a column that I wrote titled “In Corolla, people in big houses kick up a lot of sand,” appeared in The Virginian-Pilot, my then-employer. I was a provocative weekly op-ed columnist who tried to focus attention on the Outer Banks, my home and my passion. This column got a lot of attention.

Before I share it with you, I would like to point out that Southern Shores’ seven-bedroom restriction was in response to the rapidly accelerating trend of building so-called “McMansions” in Corolla. Southern Shores property owners were concerned that it would spread south and ruin our pristine oceanfront and family-beach atmosphere.

On Oct. 2, 2001, Mayor Paul Sutherland and four Town Council members unanimously adopted a definition of a “detached single-family dwelling,” in all of the Town’s residential districts, as “consisting of no more than seven bedrooms or septic system capacity for more than 14 people.” The minutes of their meeting reveal a clear intent by elected officials to “allow no more than 14 people in a rental house.” The ordinance they approved was #01-08-014. (We now call proposed new ordinances zoning text amendments or ZTAs.)

Unfortunately, then-Town Councilman Hal Denny, in a motion to rewrite the bedroom-limit part of  #01-08-014, also moved to strike a part of the proposed ordinance that dealt with recombination of lots. His motion passed unanimously. Had this Town Council or a later Town Council dealt with recombination, we wouldn’t have had the fiasco with nonconforming lots that emerged in recent years, resulting in the creation and development of 50-foot-wide lots.

According to the minutes, Mayor Sutherland explained that the recombination issue “needs further discussion.”

Seventeen years later, the Town Council, encouraged by the Town Planning Board, finally dealt with the problem.

As you all know, the bedroom-septic-capacity restriction operated until 2015, when the N.C. General Assembly, in its zeal to protect and profit members of the N.C. Home Builders Assn., which operates a powerful political action committee (PAC), deprived towns and counties of the power to regulate certain building “elements,” including the number and types of rooms. Senate Bill 25, which became law, was another example of overreaching by a bullying State legislature that doesn’t have respect for a separation of powers within government.

On that note—remember to vote!—I print below my column from April 1998 and hope you enjoy it:

“Just 15 years ago, Corolla, N.C., in the northern Outer Banks, was an isolated sanctuary for wild horses and waterfowl, an untouched canvas of windswept dunes that no road had yet reached.

“Today, the horses, those fenced in north of Corolla and not carted away to farms, wander into Virginia Beach; oversized, luxury homes cover the dunes from the ocean to the Currituck Sound, and this upscale North Carolina beach resort ranks among The Wall Street Journal’s top five U.S. towns for attracting second-home owners and the ‘new crop’ of younger retirees.

“Corolla just received this dubious distinction.

“I say dubious because of the crop: Financially flush baby boomers, and their older brothers and sisters, who can think of no better way to enjoy their riches than by indulging in ostentatious displays of home ownership and parking their minds in recreational pursuits.

“Golf is their favorite four-letter word.

“Of course, The Journal didn’t say this. It talked about the ‘fit and fashionable.’ About educated, active people who appreciate the finer things in life, such as a ‘good, expensive restaurant.’

“But my own take on many of the middle-aged retirees who choose the lifestyle that the newspaper touts in Corolla; Petoskey/Harbor Springs, Mich.’ Kailua-Kona, Hawaii; San Juan Island, Wash. And Destin/South Walton Beach, Fla., is that they’re witless and pampered. Take away their online stock reports and their golf clubs, and where would they be?

“Certainly not on the Currituck County Outer Banks.

“In today’s Corolla, though, ‘out of the way’ has come to mean ‘in the way.’ The once-thrilling landscape, imbued with a wild abandon that lured people there in the first place, has become a backdrop to the tiresome human drama of excessive self-indulgence, greed and material consumption.

“Only now, the houses are even bigger than ever. Exhibitionistic.

“Just what is with all this bigness? How many square feet does a person need? Bigness is huge in Corolla, home to just 300 year-round residents, but a road-clogging 25,000 people in the summertime.

“One former New York banker, who retired to Corolla four years ago at age 53, told The Journal that he and his wife had built an eight-bedroom home with an indoor racquetball court. On this narrow, 12-mile-long stretch of barrier island, it might as well be a skyscraper.

“Another new retiree, a 42-year-old investment banker from Philadelphia, who compares Corolla to the hoity-toity Hamptons on Long Island, plans to build a 5,000-square-foot home in its swanky Currituck Club development.

“I don’t begrudge people wealth or luxury. But I can’t fathom how people can usurp the grace and beauty of a diminishing resource like an oceanfront resort by erecting (or buying) massive monuments to self-importance or greed. Seaside mausoleums. The ‘do your own thing’ baby boomers have responded to the boom economy of the 1980s and ’90s by becoming poster children for bad taste and a loss of proportion.

“But they couldn’t have done it in Corolla without robber baron Bob DeGarbrielle, an omnipresent developer-builder who never saw a rolling sand dune or an ocean view he didn’t want to spoil. His multifamily houses give new meaning to gargantuan and obscene.

“Thanks to DeGabrielle, $1 million mansions line the rugged oceanfront, like so many empty shells, in a subdivision called Pine Island. (It has its own airstrip.) Cavernous, cookie-cutter hulks, usually with swimming pools, they blot the beach and are so close they seem to stumble over one another.

“Up the two-land road from Pine Island, the opulent model homes at the soundside Currituck Club look like they should have moats around them. The houses and ‘golf villas’ at this elite, planned and eventually gated golf-course community range from $200,000 to well over $1 million. Future plans for the large tract, owned by a private hunting club until it was taxed into submission, call for a 100-plus-room hotel and designer shops.

“Currituck Club has been getting raves for its parklike environment of live oaks, wetlands, marshes and dunes, through which roads, and golfers, meander. But it’s all carefully controlled—manicured—for aesthetic effect. Because, you know, nature can be messy.

“I well understand the need to claim and control some space, space that is all your own, in this overpopulated, sprawling country where many people operate on overdrive. But enough is enough. Seeing so much wealth go into the procurement of big hideaway space and big creature comforts is demoralizing. Life-distorting.

“I miss the horses.”

POST-SCRIPT: I told you I was provocative! This column was extremely popular when it appeared. It represented the first time that a local journalist remarked upon the big transformation going on in Corolla. I received a lot of fan mail, and I saw the column posted in many Outer Banks restaurants and other public gathering places. That certainly would not be the case today. The ship has sailed.

Still, I have to say, the more things change, the more they stay the same.

Ann G. Sjoerdsma, 10/30/18

 

The N.C. Division of Coastal Management (DCM) has issued CAMA minor permits to SAGA Construction for both of its proposed demolition-and-“mega-house” construction projects on the Southern Shores oceanfront, The Beacon learned today.

According to Town Permit Officer Dabni Shelton, the permits for SAGA’s development of 98 Ocean Blvd. and 134 Ocean Blvd., issued Oct. 19 and Oct. 22, respectively.

The Kill Devil Hills-based developer proposes building 12-bedroom, 12-bathroom, nearly 6,000 square-foot houses with swimming pools, 17 parking spaces, and septic capacity for 24 people at both sites. At 98 Ocean Blvd., it will demolish an original Frank Stick-design flattop (see photos); and at 134 Ocean Blvd., it will destroy a modified vintage flattop.

The Southern Shores Civic Assn., which owns a beach access to the south of each property, opposed SAGA’s development plans on both.

Rod McCaughey, an SSCA Board member and chairperson of the Bylaws/Long-Range Planning/Architectural Review Board Committee, wrote the SSCA’s letters of objection to SAGA’s demolition-and-building plans, arguing that its proposed houses do not meet the Town Code’s definition of “single family dwelling.” Both of the oceanfront properties are in the Town’s RS-1 single-family residential district.

According to Town Planning Dept. records, Herman and Bell Sadler, who own the house at 136 Ocean Blvd. and live in Emporia, Va., objected to SAGA’s proposal for 134 Ocean Blvd., without elaborating upon their position.

“They checked the [objection] box” on the notice form they received, Ms. Shelton said.

In the opinion of both State and local permit officers, neither the SSCA nor the Sadlers cited a State “rule regulation” whose violation could underlie a decision to deny the CAMA minor permit, Ms. Shelton explained. Objections were principally to “aesthetics,” she said. “There were no public safety and environmental concerns [raised].”

The SSCA and the Sadlers have 20 days after the date of permit issuance in which to file a “third-party appeal” to the Director of the DCM. Within 15 days after the DCM receives the appeal, according to information on the N.C. Dept. of Environmental Quality’s website, confirmed by Ms. Shelton, the Chairman of the Coastal Resources Commission (CRC) decides whether the appeal merits a hearing. (See https://deq.nc.gov/about/divisions/coastal-management/coastal-management-permits/variances-appeals.)

Reached this afternoon, Mr. McCaughey said the SSCA “is not considering an appeal,” to his knowledge. He framed the issue as whether the civic association has a “legitimate legal reason” on which to appeal.

Ms. Shelton said she hand-delivered to staff at the SSCA office copies of the two CAMA permits on the dates they issued. She also provided the SSCA with State regulations pertaining to the “Ocean Hazard Area of Environmental Concern” and information about the permit appeal process. She mailed the same materials today to the Sadlers, by regular mail, so they presumably will not receive notice until Thursday.

Through research on the NCDEQ website, The Beacon has learned that other “directly affected” people, such as property owners in the “vicinity of the proposed development who can show that it is likely to have a significant adverse effect on the value and enjoyment of their property, or persons who can demonstrate a history of substantial use of public resources in the area directly affected by the development,” also may file a third-party appeal within the 20-day period, requesting a hearing. Such petitioners must be able to cite a State statute or regulation that is “allegedly violated by the permit decision.”

(See https://files.nc.gov/ncdeq/Coastal%20Management/documents/PDF/thirdparty.pdf.)

During the 20-day CAMA permit appeal period, there is no stay of the local permitting process, Ms. Shelton said. Indeed, if SAGA were to file a Lot Disturbance-Demolition permit application tomorrow with the Town—this permit is the first that it must request locally, after which it would file a permit application for Lot Disturbance-Stormwater Management—it may receive such a permit on Thursday. (As of 2:30 p.m. today, when I spoke with Ms. Shelton, SAGA had not filed a permit application.)

“We try to accommodate [applicants] fairly quickly,” Ms. Shelton said, explaining that if the Town has all it needs to conduct a review, it acts.

Deputy Town Manager/Planning Director Wes Haskett has previously explained to The Beacon, and Ms. Shelton confirmed today, that Mr. Haskett initiates contact with an applicant on the same day that he receives a lot-disturbance permit application and meets on-site with the applicant the next day. He routinely gives the SSCA notice of these on-site meetings, so that a member of the ARB committee may attend.

Mr. McCaughey left little doubt in his comments today that the SSCA is opposed to the multiple-bedroom, hotel-like rental machines that SAGA builds. The question is how does the Town prevent such development? he asked. The mega-houses at 98 and 134 Ocean Blvd. may be inevitable: “Can you stop this process for the future?” he asked.

“We’re trying to be creative,” Mr. McCaughey said. “The question is does the Town want to be creative?”

We will find out at the special meeting on Nov. 7, 10 a.m., in the Pitts Center.

Are the Mayor and Town Council, presumably advised by the Town Attorney, going to present feasible ideas for how SAGA-type development can be stopped in the future, and initiate quick action on these ideas? Or are they going to punt, stall, or otherwise “kick the can down the road,” as I characterized their approach on the nonconforming lots ZTA this past summer? (The Planning Board stepped up in that instance.)

My sources indicate, in off-the-record conversations, that members of the Planning Board and the Town Council are doing what Planning Board Chairperson Glenn Wyder called at the last Board meeting their “due diligence.”

This much we know: SAGA Construction now has a successful blueprint.

***

ELECTION ADDENDUM: WHO’S WHO OF CONCERNED LAWYERS OPPOSE 2 CONSTITUTIONAL AMENDMENTS RELEVANT TO JUDICIAL BRANCH

After I posted my blog yesterday about the six constitutional amendments on the November election ballot, I received a statement from “Concerned Lawyers” of North Carolina, urging opposition to the two amendments that pertain to the judicial system: the one amendment that would strip the Governor of the authority to appoint judges when vacancies arise between elections, which the Concerned Lawyers label the Judicial Selections Amendment, and the other amendment that would remove the politically unaffiliated member from the nine-member Bipartisan Board of Elections and Ethics, which Concerned Lawyers call the Separation of Powers amendment.

I received this statement and an analysis attached as an addendum because I’m a member in good standing of the N.C. bar, albeit an inactive one. According to “Concerned Lawyers”: “All living former Governors, N.C. Supreme Court Chief Justices, N.C. Court of Appeals Chief Judges, and many former Associate Justices and Associate Judges of those two courts, both Democrats and Republicans,” oppose passage of these two amendments.

The names listed at the end of their statement are those of well-known and highly respected North Carolina jurists. They make up a veritable Who’s Who of North Carolina attorneys.

You may access the statement of Concerned Lawyers here:

https://gallery.mailchimp.com/7561bdb5cbcb4ffb052424a48/files/4ec0ce28-f16f-4a1d-af44-b37f1d9710eb/Further_Statement.01.pdf.

And the group’s analysis of the two amendments here:

https://gallery.mailchimp.com/7561bdb5cbcb4ffb052424a48/files/3fa306e2-3e0d-4ba3-8a96-5d3e37f86270/Addendum.pdf.

Ann G. Sjoerdsma, Oct. 23, 2018

The current version of the N.C. Constitution was ratified in 1971 and has 14 articles. It is the third Constitution in state history, the first of which was created in 1776 after the Declaration of Independence.

Before continuing the discussion I began 10/20/18 about the six proposed constitutional amendments on your November election ballot, I’d like to provide some background on our Constitution.

Article I of the N.C. Constitution, known as the Declaration of Rights, is similar to the Bill of Rights of the U.S. Constitution, which consists of the first 10 amendments. Some of the other articles in the N.C. Constitution, such as the articles dedicated to each branch of government (legislative, executive, judicial), are comparable to the U.S. Constitution’s seven articles, but the N.C. Constitution is much more extensive.

Since 1971, there have been more than 20 amendments to the N.C. Constitution, the majority of which extend the rights of N.C. citizens or extend the government’s ability to issue bond. One notable exception, which you will recall, is the amendment added in 2012 to limit citizens’ rights by preventing recognition of same-sex marriage. That amendment defines a marriage between one man and one woman as the only legal domestic union that North Carolina will recognize.

Some of the other significant amendments made since 1971 include:

*Prohibition of all capitation and poll taxes.

*The grant of veto power to the Governor.

*The requirement that the State run a balanced budget.

*The allowance of the Governor and Lieutenant Governor to serve two consecutive terms (previously, like Virginia, North Carolina limited these office holders to one term).

*The deletion of a property-tax limit on $100 valuation of $0.20 (Wouldn’t that be nice?).

And, relevant to the proposed constitutional amendments on the 2018 election ballot:

*The addition of a Victims’ Rights Bill to the Declaration of Rights.

*The creation of a State income tax to be computed on the same basis as the federal income tax.

Because of the Supremacy Clause in the U.S. Constitution, all federal law, including the U.S. Constitution, overrules the N.C. Constitution. So, an amendment to the N.C. Constitution can be challenged and struck down as violative of U.S. law.

SIX PROPOSED AMENDMENTS

The six proposed N.C. Constitution amendments are “legislatively referred” amendments that are on the ballot because a 60 percent supermajority of the members of both State houses approved them. They did not come out of a constitutional-convention process. A simple majority of voters is needed to pass the amendments, which the Governor cannot veto–which, of course, is the point. I consider all of these amendments to be back-door legislating and worse.

The remainder of this blog is an editorial, suitable for the op-ed page of your local newspaper. I will express my opinion.

The six amendments would stamp what is currently, not historically, considered “Republican” philosophies on state spending, elections, and governance. If the Democrats held a supermajority in the State legislature and referred these amendments, I would be equally opposed to them. The legislature should pass either new statutes or statutory amendments and leave the Constitution alone, except when a constitutional amendment is necessary and essential. The Constitution should not be used as a political football.

In the order that the amendments appear on the ballot, they are:

1. RIGHT TO HUNT: An amendment “protecting the right of the people to hunt, fish, and harvest wildlife.”

As I mentioned in my 10/20/18 blog, North Carolinians already have this right secured in Art. 1 of the N.C. Constitution, aka the Declaration of Rights, and it does not need protecting.

What the amendment actually does is 1) to acknowledge that this right may be exercised by the use of “traditional methods,” a term that is not defined, and 2) to limit the N.C. General Assembly’s ability to regulate hunting and fishing. The amendment also makes “public hunting and fishing” the “preferred means of managing and controlling wildlife.” A controlled hunt, therefore, would seem to trump other legislative efforts at control.

Finally, as the Judicial Voter Guide 2018 points out, the amendment says nothing about its effect on local laws that regulate public safety or commercial hunting and fishing.

2. MARSY’S LAW/VICTIMS’ RIGHTS: An amendment “to strengthen protections for victims of crime; to establish certain basic rights for victims; and to ensure the enforcement of these rights.”

Known politically as Marsy’s Law, this amendment would add a SECOND bill of victims’ rights to the N.C. Constitution, which the State budget office estimates in a public fiscal note accompanying the legislation would cost about $11 million per year to implement. The N.C. Administrative Office of the Courts reportedly has said that implementation would cost more than $30 million annually.

In 2009, Broadcom co-founder and billionaire Henry Nicholas III founded “Marsy’s Law for All,” in memory of his sister, who was murdered, in order to lobby for passage of victims’ rights amendments to state constitutions and the U.S. Constitution.

Marsalee (Marsy) Nicholas was killed by an ex-boyfriend in 1983. Mr. Nicholas and his mother were not informed of the killer’s release on bail, a week after his arrest, and unexpectedly encountered him in public. They were understandably shocked and appalled.

The N.C. Constitution already encompasses the right of victims to be informed of, and present at, proceedings (such as bail hearings) related to the accused; to be heard at sentencing; to be informed about the crime, the criminal justice system, and rights and services available to victims; to confer with the prosecutor, and much more if the crime is a major felony, a domestic violence case, or one of several other kinds of serious crimes.

If passed, the Marsy’s Law amendment would expand these rights to victims of all crimes against the person (including misdemeanors) and felony property crimes and all crimes (“delinquent” acts) committed by juveniles. It would guarantee all victims the rights of reasonable and timely notice of any court proceeding, upon request; to be present at any proceeding, upon request; to be reasonably heard at more court hearings, etc.

The amendment directs the General Assembly to create a procedure, by motion to the court, for a victim to assert all of his or her rights.

I am 100 percent in support of victims’ rights, but I do not support a legislative expansion of the excellent victims’ rights bill that currently exists by bamboozling the public with emotional appeal and vague representations. I am also concerned about the rights of juveniles, many of whom are not hardened criminals.

If the General Assembly wants to give crime victims more rights than they currently enjoy in North Carolina, it should amend the statutory provisions that currently exist under the victims’ bill of rights. It should go through the regular lawmaking process.

3. INCOME TAX CAP: An amendment “to reduce the income tax rate in North Carolina to a maximum allowable rate of seven percent (7%).”

The current maximum allowable income-tax rate in our state, as specified in the Constitution, is 10 percent (10%). The individual income tax rate is currently 5.499 percent, and the corporate tax rate is 3 percent. In North Carolina, income taxes historically fund services related to public health, education, and safety.

I put this amendment in the “if it ain’t broke, don’t fix it” category. The proposed amendment, as the Judicial Voter Guide 2018 notes, does not include any exceptions. In times of recession or disaster, the State may need to raise money for core services. I would rather see a temporary spike in the tax rate to 7.00001 percent than an increase in sales taxes or borrowing. Sales-tax increases historically harm middle- and low-income people more than high-income people.

4. VOTER PHOTO ID: An amendment to “require voters to provide photo identification before voting in person.”

As I said 10/20/18, this vague amendment leaves requirements up to the General Assembly to figure out after the election. There are no details in the amendment about which types of identification will be permitted or whether any exceptions will be made.

You may recall that the Republican legislature’s previous attempt to require a photo ID—known as the Voter Information Verification Act—was struck down by the U.S. Court of Appeals for the Fourth Circuit in 2016 as unconstitutional racial discrimination. That law required voters to have a photo ID when casting a ballot and also reduced the days for early voting, eliminated same-day voter registration, and prohibited county elections officials from counting out-of-precinct ballots. These latter practices are used disproportionately by black residents.

The N.C. General Assembly pushed through the Voter Information Verification Act in three days in July 2013, a month after the U.S. Supreme Court invalidated Section 5 of the Voting Rights Act. Section 5 required states and communities that have a history of racial discrimination to seek federal approval (“preclearance”) before making changes to their election laws. Forty of North Carolina’s 100 counties were under this requirement.

Although there is reportedly evidence of alleged voter fraud in absentee voting, N.C. legislators did not require photo IDs for absentee voters. According to the Fourth Circuit’s opinion, white residents are more likely to vote absentee than black residents.

If the proposed amendment passes, it will assuredly be challenged in the courts.

5. LEGISLATIVE CONTROL OF JUDICIAL APPOINTMENTS: An amendment to “change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches, etc., etc., etc.”

The bottom line here is it’s a power play by the General Assembly to control judicial appointments that occur when a judge leaves office before the end of his or her term.

If the amendment passes, the legislature also could use its newly granted power to choose unelected N.C. Supreme Court justices for two vacant seats that it would create under its constitutional authority. These legislatively chosen judges would serve for up to four years before voters could elect or replace them.

As I earlier mentioned, the General Assembly could alter the current seven-member N.C. Supreme Court, which has a 4-3, Democrat-Republican, majority to a 5-4, Republican-Democrat, majority. Associate Justice Barbara Jackson, who is running for re-election, is a Republican, so the GOP does not gain a seat by her victory.

Currently, the Governor appoints an interim judge, who, in most instances, according to the Judicial Voter Guide, holds office for less than two years, until voters get to decide the seat at the next general election. The constitutional amendment would take this authority away and give it to the General Assembly, which would choose two or more finalists for the appointment from among those reviewed by a “nonpartisan” commission comprised of appointees. The Governor would then choose one of the prescreened and approved finalists. If he/she did not appoint someone from the legislature’s list within 10 days, the legislative would elect someone to fill the judicial vacancy.

The “judicial merit” commissions at the state and local level that would be created if this amendment passes would evaluate the qualifications of judicial nominees for the Supreme Court, the Court of Appeals, and the county superior courts. The local district courts have a different system in place. Nominees would be considered “qualified” if they were licensed to practice law in North Carolina; registered to vote; and not of mandatory retirement age. That’s it.

The proposed amendment does not include details about how the commission members would be selected or how many from each branch of government would be appointed, nor does it address how individuals would be nominated to the commissions for consideration.

I say: NO WAY. That we have elected officials who actually believe this premeditated legislative takeover of judgeships and the N.C. Supreme Court is a legitimate exercise of authority in our constitutional republic disgusts me. I don’t care what political-party affiliation they claim.

6. LEGISLATIVE TAKEOVER OF ETHICS AND ELECTIONS BOARD: An amendment to “establish an eight-member Bipartisan Board of Ethics and Elections Enforcement in the Constitution to administer ethics and elections law.”

Please note: There already is a Bipartisan Board of Ethics and Elections Enforcement.

Please note again: The board, which administers ethics, elections, and lobbying law, is already bipartisan.

The truncated language on your election ballot is misleading. It suggests that you are voting to create a new board.

This proposed amendment is the General Assembly’s attempt to overturn a N.C. Supreme Court decision that prevented it from reducing the current nine-member Bipartisan Board of Ethics and Elections to eight members. The GA passed a law establishing an eight-member board in 2017, which the Supreme Court struck down as unconstitutional because it usurped executive authority.

This is yet another power grab by the Republican General Assembly.

Currently, the Governor appoints eight of the nine members of the Bipartisan Board of Ethics and Elections Enforcement, based on nominees submitted by the State chairs of the two political parties with the highest number of registered affiliates (Republican, Democrat). The ninth member represents unaffiliated voters and is nonpartisan. The Governor appoints him/her from nominations provided by the other eight members.

The proposed amendment would eliminate the unaffiliated seat, as the 2017 law sought to do, and direct that all nominations to the board come from the General Assembly, thus, bypassing the Governor. The leaders of the two N.C. Senate political party caucuses with the most members would recommend two members each, and the leaders of the two N.C. House political party caucuses with the most members would do the same. The Governor would then have to appoint the eight members that these leaders selected. It is unclear whether nominated members could include legislators themselves.

Removing the ninth board member obviously permits a 4-4 partisan deadlock vote on important issues, such as early-voting opportunities.

If this amendment passes, according to the Judicial Voter Guide, the Constitution would authorize only the second board in its history. That’s going back to 1776. The other is the State Board of Education.

NO WAY.

****

CORRECTION: In my 10/20/18 blog, I incorrectly said that N.C. Supreme Court Associate Justice Sam J. Ervin IV is the son of former U.S. Senator Sam Ervin, who presided over the Watergate hearings. In fact, Justice Ervin is Senator Sam’s grandson. I apologize for the error.

Ann G. Sjoerdsma, 10/22/18

 

 

Early voting for the Nov. 6 elections started Oct. 17 and continues through Sat., Nov. 3, except for today and tomorrow and Oct. 27, when the polls will be closed.

The closest polling station for Southern Shores voters is Kill Devil Hills Town Hall, at 102 Town Hall Drive in KDH. You also may vote at the Dare County Administration Building in the government complex at 954 Marshall C. Collins Drive in Manteo and at the Fessenden Center Annex in Buxton.

Today I’d like to focus on the appellate courts, the judicial candidates, and the six proposed N.C. Constitutional amendments. In a 9/26/18 blog, I provided an overview of the N.C. legislative, the Dare County Commission, and other local elections.

Neither of North Carolina’s two U.S. Senate seats is among the 35 Senate seats that are up for election next month, and longtime U.S. Representative Walter B. Jones is running unopposed in Congressional district three, which represents Dare County.

APPELLATE COURTS: A Look

For better or for worse, N.C. appellate judges are subject to election. The seven justices on the N.C. Supreme Court, which is the highest state court, and the 15 justices on the N.C. Court of Appeals, which is the intermediate appellate court, have eight-year terms.

Just like on the U.S. Supreme Court, one of the N.C. Supreme justices serves as chief justice: He is Mark Martin, who became upon his election to the high court in 1998 at age 35, the youngest Supreme Court justice ever elected in North Carolina. The most familiar name on the court may be Sam J. Ervin IV, whose U.S. Senator grandfather, Sam Jr., famously presided over the Watergate hearings. Associate Justice Ervin is the only Ivy Leaguer (Harvard) on the Supreme Court; the other justices graduated from North Carolina law schools.

Chief Judge Linda McGee presides over the Court of Appeals. According to her online biography, Judge McGee and her husband live in Corolla. If you would like to read the biographies of the other Court of Appeals judges, you may find them here: https://www.nccourts.gov/courts/court-of-appeals/biographies-of-the-judges.

I cannot advise you from professional experience about the makeup of either appellate court. I do know that there are four Democrats and three Republicans on the Supreme Court, and that the Republican-led legislature wants to add two new seats in order to gain a Republican majority. It could do this if the constitutional amendment about changing “the process for filling judicial vacancies” is approved by the voters.

You didn’t know that was possible, did you? How could you? Unless you pored over the actual language of the proposed amendments in your Judicial Voter Guide 2018, you wouldn’t know. The amendment text printed on your election ballot is truncated. Only in the case of the amendment that reduces the maximum allowable income tax rate from 10 percent to 7 percent do you even know what you’re actually voting for or against.

The N.C. General Assembly has a recent history of being hostile to the independent “checks-and-balances” power of the executive and judicial branches. These amendments are an outgrowth of that hostility.

Returning to the courts . . . Appellate courts deal with law, not facts. The local superior and district courts, with which you are probably more familiar, are trial courts where judges and juries determine facts. There are no trials in appellate courts, only a lot of case-record review and arguments, both written (briefs) and oral, by attorneys.

In state appellate courts, the judges are in the business of determining whether an error of law or legal procedure occurred in a lower trial court and of interpreting state law.

Appeals “of right” from North Carolina’s lower trial courts go to the intermediate appellate court, which is why it has 15 members, more than twice as many as the Supreme Court. Its caseload is enormous and backlogged. The Supreme Court can be largely selective about the cases it hears and maintain a much more manageable caseload.

The Court of Appeals sits in panels of three judges to hear appeals and decide if the trial court correctly applied the law. Cases are supposed to be randomly assigned to panels, and judges rotate panels frequently. In contrast, the Supreme Court justices hear cases en banc, meaning as a bench (of seven), not in panels. The Court of Appeals may sit en banc for a case review, but the when, why, etc., are beyond the scope of this article. In both courts, the final disposition is usually a written opinion.

If a Court of Appeals judge on a panel dissents, so that the ruling is 2-1, the losing party has the right to appeal to the Supreme Court for review. Death-penalty cases go directly on appeal from a local superior court to the Supreme Court, bypassing the Court of Appeals, but the vast majority of cases in the Supreme Court come by way of a petition for certiorari. The Supreme Court decides whether or not to grant review to a petitioning party. When the Court grants “cert,” as lawyer say, it applies its discretion to decide that it wants to review the question of law that the case presents.    

Demographically speaking, four men and three women serve on the N.C. Supreme Court. One of the women and one of the men are African Americans; the others are white.

Six women and nine men serve on the Court of Appeals. One woman is black, the remaining 14 justices are white.

JUDICIAL CANDIDATES

On Nov. 6, N.C. voters will be electing one N.C. Supreme Court justice and three justices to the N.C. Court of Appeals, or 1/7 of the high court and 1/5 of the intermediate court. If you read the Judicial Voter Guide 2018, you know a little about who the candidates are.

The candidates for the Supreme Court are sitting Associate Justice Barbara Jackson, a Republican; self-employed Raleigh general practitioner Christopher Anglin, also a Republican; and self-employed Durham civil rights attorney Anita Earls, a Democrat.

Here is how the seats up for election in the Court of Appeals break down:

*Sitting Court of Appeals Judge John S. Arrowood, a Democrat who was appointed by Governor Roy Cooper, is running against Andrew T. Heath, a Republican who was a budget director under former Governor Pat McCrory, for re-election to his seat. This seat was expected to be eliminated by the Republican-controlled General Assembly in its campaign to shrink the Court of Appeals, but when Judge Douglas McCullough, a Republican, resigned, the seat survived, and Governor Cooper appointed Judge Arrowood, of Charlotte, to it.

*Wake County District Court Judge Jefferson G. Griffin, a Republican; Democrat Tobias Hampson, a general practitioner and partner with a Raleigh law firm; and New Hanover/Pender County District Court Judge Sandra Alice Ray, a Republican, are vying for seat 2.

*The election for seat 3 also has three candidates: Republican Chuck Kitchen, an attorney and former county attorney (Durham, Alamance) with 38 years of experience; Democrat Allegra Katherine Collins, a Campbell Law School professor and appellate attorney; and Libertarian Michael Monaco, Sr., a former general practitioner who now lists his occupation as product development.

I elaborated upon the composition and rules of the two courts to illustrate how different the stakes are at the two appellate levels. Judges in the Court of Appeals tend to do mostly bread-and-butter appeals, whereas justices in the Supreme Court settle and make state law. A judge’s “judicial philosophy” matters more at the high-court level than in the Court of Appeals. By judicial philosophy, I mean how a justice understands and interprets the law and then applies it to unique factual circumstances.

I would hope that N.C. voters want fair-minded, independent judges who are committed to the rule of law and equal justice for all, regardless of their political party affiliation. I am not going to endorse particular candidates here, but rather make some general observations.

I believe a seat on the N.C. Supreme Court is a high honor, the culmination of a distinguished legal career that, preferably, has involved substantial trial experience. Supreme Court justices need not have previous judicial experience, but, as a practical matter, they often do. A Supreme Court justice should be a seasoned attorney and/or judge, not a politically motivated millennial admitted to the bar just seven years ago. That description applies to Mr. Anglin.

Speaking of “seasoning,” Court of Appeals Judge John S. Arrowood was admitted to the N.C. bar in 1982 and has a long employment record of varied legal experience; whereas his opponent, Mr. Heath, achieved admission in 2006 and has done scant trial work, instead serving in politically appointed positions. After he lost the 2016 election to Gov. Cooper, former Gov. McCrory appointed Mr. Heath to a special superior court judgeship.

I don’t believe a superior court judgeship should be created and treated as a political stepping stone. I find both Mr. Heath’s appointment and his desire to vacate his judgeship after less than two years offensive.

Among the other candidates, I can report that progressive lawyer friends of mine who litigate in Wake County support both Judge Griffin, who is also a JAG officer in the N.C. Army National Guard, and Mr. Hampson, who specializes in appellate practice. The race for the third Court of Appeals seat is between Mr. Kitchen and Ms. Collins. The Libertarian IT specialist is not a true contender.

TAMPERING WITH THE N.C. CONSTITUTION

When attorneys take their oath of office in North Carolina, they solemnly swear to support the United States and the N.C. Constitutions “to the best of [their] knowledge and ability.” Attorneys often get a bum rap, but the vast majority do not take these governing documents lightly. In my opinion, both constitutions are sacred to our republic and should only be amended when justice demands—cries out for—amendment. The principles of equal protection, due process, and individual liberty should underlie constitutional amendments, not partisan preferences and/or biases.

This year, the N.C. legislature approved six proposed amendments to the N.C. Constitution, which will appear at the end of your election ballot, after all of the candidates’ names. You will be asked to vote “for” or “against” each one.

I consider each one of these amendments overreaching, a blatant power grab, by an agenda-driven N.C. General Assembly that has so little respect for the N.C. Constitution that it didn’t even bother to put implementing language in five of the six amendments. Implementing language tells HOW an amendment will work. There’s also the issue of HOW MUCH implementation of each amendment would cost. The legislature doesn’t care about that, either.

For example, the amendment to require photographic identification to vote provides no details about which types of identification will be permitted or whether any exceptions will be made to accommodate people who are unable to meet the yet-to-be-determined requirements. The General Assembly plans to reconvene after Election Day to draft the requirements. I repeat: It will reconvene after Election Day. It just couldn’t be bothered to inform voters now what it plans to do.

You may well ask: What are acceptable and unacceptable forms of photographic ID? How much will this ID program cost taxpayers? Who knows?

Similarly, the benign-looking amendment to “protect the right to hunt, fish, and harvest wildlife” uses vague and undefined terms and limits the General Assembly’s authority to manage and control wildlife and promote conservation. The amendment gives the “people” the “right” to use “traditional methods,” whatever they are, to “hunt, fish, and harvest wildlife.” It also states that “public hunting and fishing shall be a preferred means of managing and controlling wildlife,” whatever that means.

North Carolinians ALREADY have a right to hunt and fish. There’s no need to sully and abuse the Constitution with potentially damaging new language.

I could go on, and will tomorrow or Monday, with more exposure of what these amendments truly accomplish: The Republican majority wants N.C. voters to sign a blank check over so it can fill in the details later. That’s insulting, beyond the pale.

If the N.C. General Assembly wants to change state law, it should pass statutes, openly and honestly, not seek to execute back-door maneuvers by exploiting the public.

I guess you can tell how I’m voting.

Ann G. Sjoerdsma, 10/20/18

 

 

The 5,945-square-foot house that SAGA Construction proposes to build at 134 Ocean Blvd., on the Southern Shores oceanfront, is virtually identical to the 5,981-square-foot house it proposes to construct at 98 Ocean Blvd., after demolishing an original Frank Stick-designed flattop, The Beacon has confirmed. The demolition at 134 would be of “Higgins’ Haven,” a modified flattop that was #014 in Southern Shores Realty’s rental program this year.

According to documents submitted by SAGA for its CAMA minor permit, the house proposed at 134 Ocean Blvd., which is just south of the Duck Road split, would have 12 bedrooms and 12 bathrooms in “suites,” a 14-seat home theater, an elevator, a swimming pool, hot tub, tiki bar, large game/recreation room, and interior bar. It also would have 11 parking spaces on the driveway and six spaces underneath the house and septic capacity for 24 people.

The Dare County Dept. of Public Health Improvement Permit in the Town Planning Dept’s. file for 134, which issued Oct. 4, shows a septic tank size of 2,500 gallons and a per-day capacity of 1,440 gallons. It also shows seller Clay E. Higgins, in his capacity as a trustee, as the property owner, not SAGA.

According to the purchase offer and acceptance on file, settlement on the 134 sale was to occur Sept. 28. Property owners Mr. Higgins and his wife, Franca B. Higgins, also a trustee, live in Harbinger.

Comparable paperwork for 98 Ocean Blvd. shows a 3,500-gallon septic tank and a 1,440-gallon-per-day capacity, and SAGA as the property owner. That permit issued Oct. 2.

Although the parking lot and swimming pool layouts at 134 differ from those at 98, the house designs are essentially the same. The architect for both is Community Planning and Architectural Associates (CPAA) of Kitty Hawk. Judging by CPAA’s plans, the bedrooms appear to be about 13-feet-by-11-feet, and their layout suggests a dormitory.

MY OPINION: This is cookie-cutter construction and development, which is SAGA’s goal. One need only look at the Nags Head oceanfront to see one identical, indistinguishable SAGA mega-house after another on the oceanfront.

For background on SAGA’s proposed projects in Southern Shores, see The Beacon’s blogs on 10/10, 10/11, and 10/16/18.

134 OCEAN BLVD. BY THE NUMBERS

Here are the numbers that SAGA provides in its building plans for lot-coverage purposes:

Proposed residence: 3,900 sq. ft.

Concrete parking and drives: 4,284 sq. ft.

Pool and concrete decks: 2,079 sq. ft.

Wood beach walkway and deck: 344 sq. ft.

The total coverage adds up to 10,607 sq. ft.

SAGA claims a lot area to the first line of stable natural vegetation (FLSNV) of 36,925 sq. ft., and, therefore, lot coverage of 28.7 percent. The Town limits lot coverage to 30 percent.

Elsewhere in its documentation, SAGA reports a lot size of 46,702 sq. ft., or 1.07 acres.

SAGA’s numbers for “enclosed living space” for purposes of calculating house size are as follows:

Ground level: 301 sq. ft.

First floor:  2,822 sq. ft. (enclosed); 865 sq. ft. deck area

Second floor: 2,822 sq. ft. (enclosed): 865 sq. ft. deck area (Notice the identical floors.)

The total enclosed area adds up to 5,945 sq. ft., and the deck area is 1,730 sq. ft.

In addition, SAGA’s plans show an unenclosed area below the enclosed area of 2,517 sq. ft., where six vehicles can be parked.

The maximum house size permitted by ordinance in Southern Shores is 6,000 square feet of enclosed living space, which is further defined as habitable space. In its plans for 98 Ocean Blvd., SAGA exempts from its size calculation a 124-square-foot, “unconditioned” enclosed space that serves as a storage area.

I have to wonder if such an exemption should be allowed by the Town. A 124-square-foot space easily could be converted into a thirteenth bedroom. I am aware of a permitted garage addition to a house on North Dogwood Trail that, despite being done after the 6,000-square-foot maximum went effect, brought the total size of the house to over 6,000 square feet. Why wasn’t this violation prevented?

As previously reported, the adjacent property owners to the north of 134 Ocean Blvd. have objected to SAGA’s project. They live in Emporia, Va. The Southern Shores Civic Assn., which owns a beach access that adjoins the property to the south, filed its written objection yesterday.

The CAMA permit for 98 Ocean Blvd. could issue any day. When it does, the SSCA will receive notification and instructions on the appeal process for the denial of its objection.

MORNING MEETING ON NOV. 7 BURDENSOME AND EXCLUSIONARY

I am hearing from property owners that they object to the timing of the special meeting to consider occupancy limits for single-family dwellings in Southern Shores, scheduled by the Town at 10 a.m. on Wed., Nov. 7, in the Pitts Center. I agree with these property owners’ concerns.

A morning week-day meeting excludes property owners who work daytime hours, both inside and outside the home, residents say. In addition, scheduling the meeting on the same day as the Town Council’s regular evening meeting—which will be unusually agenda-heavy because the Town Council voted, 3-2, to cancel its October meeting—AND on the day after national midterm elections, is unduly burdensome.

How many members of the public will be inclined to attend both meetings? And aren’t public meetings for the benefit of the public? The public is entitled to a realistic opportunity to be heard.

Mayor Tom Bennett is responsible for the scheduling of the Nov. 7 morning meeting. Any objections by Town Council members to this scheduling have not been persuasive. You may reach Mayor Bennett at tbennett@southernshores-nc.gov.

I am also hearing residents criticize the Town Council, which has made no public statement since the SSCA announced SAGA’s 98 Ocean Blvd. plans, at its Oct. 8 meeting, as a “do-nothing” Council. In fact, I heard that term just this morning when I was out walking my dog. This particular resident and fellow dogwalker, whom I do not know personally, said “do nothing” is what she has come to expect of this Town Council in terms of limiting development.

I do not believe it is correct or fair to impute the Mayor’s reasoning and actions to any Town Council members. It is the Mayor who decided the date and time of the special meeting, not the Town Council. And it is the Mayor who could change the date and time, if he chose to do so.

NO DUCK PLANNING BOARD MEETING – MEA CULPA – BUT IT LEADS TO AN UNEXPECTED ENCOUNTER

Contrary to what I reported on Tuesday the Duck Planning Board did not hold a meeting last night. Mea culpa. I misread the Town of Duck’s calendar on its website. In fact, the Duck Planning Board met on Oct. 10 and will next meet on Nov. 14. Duck is also grappling with how to limit occupancy in “single-family” dwellings.

My trip to Duck last evening was not wasted, however, because I met and chatted with a longtime Dare County resident who showed up at the town meeting hall because he had seen my post about a Planning Board meeting. I will not name him because I did not inform him that we were “on the record,” and I have no desire to ambush people!

This gentleman, whom I’ll call Mac, is of the opinion that the Senate Bill 25 amendments to N.C. General Statute 160A-381, which took effect in 2015, prohibit towns from regulating septic capacity. Mac referred to the following language in the law for his argument:

“Regulations prohibited by [160A-381(h)] may not be applied, directly or indirectly, in any zoning district . . . unless voluntarily consented to by the owners of all the property to which those regulations may be applied . . . ”

Mac believes a limit on the septic capacity of single-family dwellings would be an “indirect” application of a regulation on the number of bedrooms. He asserts that this is what the N.C. General Assembly intended.

NCGS 160A-381(h) lists those building-design elements that counties and towns cannot regulate, and one of them is “the number and types of rooms.” Hence, the invalidation of the seven-bedroom restriction in Southern Shores.

When I practiced law in Maryland, I did a fair number of “statutory-construction” cases on appeal, where the question was: What does the state statute mean?

It is not unusual for state legislatures to approve unclear or ambiguous statutory language or language that is subject to multiple interpretations. The overriding legal principle that I applied in my analyses was “the plain meaning of the language.” What does the statute plainly mean, on its face? One shouldn’t have to delve into legislative history in order to discern what words are supposed to mean, although where several meanings are reasonably possible, legislative intent may come into play.

I argued with Mac that the plain meaning of the word “indirectly” did not support his interpretation, and that a court would have to render the definitive judgment in a legal dispute. IMO, it requires a contortion of words to arrive at Mac’s interpretation, despite what legislators might have said in committee hearings or elsewhere.

If the General Assembly wanted to prohibit regulations restricting septic capacity, it should have clearly said so.

EARLY VOTING IN THE NOV. 6 GENERAL ELECTION STARTED YESTERDAY. I will post my analysis of judicial candidates and the proposed constitutional amendments by the weekend, at the latest.

REMEMBER: The Pitts Center is not a polling station for early voting, aka one-stop absentee voting, in this election. The polling stations are as follows:

DARE COUNTY ADMIN. BLDG., 954 Marshall C. Collins Drive, Manteo

KDH TOWN HALL, 102 Town Hall Drive, KDH

FESSENDEN CENTER ANNEX, Buxton

For more election details, see The Beacon’s 9/26/18 post.

Ann G. Sjoerdsma, 10/18/18

The Town of Southern Shores announced yesterday that it will hold a special meeting Wed., Nov. 7, 10 a.m., in the Pitts Center to consider all options “to further limit occupancy of single-family dwellings in Southern Shores.” Currently, the Town seeks to preserve its traditional open-space, low-density neighborhoods by restricting single-family house size to 6000 square feet of “enclosed living space.”

The Town’s meeting notice, posted on the front page of its website, cites “alarm” voiced by “some property owners” over the ability of a “party requesting [a] permit . . . to design 12 bedrooms within” the “maximum allowable 6,000 square feet of living space for a single-family dwelling,” as the reason for the meeting.

The notice makes no mention of the SAGA Construction building project at 98 Ocean Blvd. and its various features (e.g., 17 parking spaces) that have aroused “alarm”—and outrage—among “some” property owners—do dozens or hundreds qualify as “some”?—nor does it fairly represent those Town Council members who have expressed their opposition to the SAGA projects in informal discussions. The Beacon is aware that at least one Town Council member wanted to hold a special meeting well before Nov. 7, the same day that the Council meets in the evening for its regular monthly meeting.

And why has the Town scheduled a meeting on a week-day morning when daytime working people cannot attend?

I say SAGA projects, plural, because The Beacon has confirmed that, in addition to the 12-bedroom, 12-bathroom, 5981-square-foot rental house proposed by the Kill Devil Hills-based developer at 98 Ocean Blvd., as reported in this blog 10/10/18, SAGA also proposes to demolish a flattop and build a similar structure at 134 Ocean Blvd. (See photo above.)

According to Town Permit Officer Dabni Shelton, “134 Ocean Blvd., LLC,” whose agent is SAGA Construction, filed a CAMA permit application for that property, which is just south of the Duck Road split, on Oct. 11. In a telephone conversation I had with Ms. Shelton this morning, she characterized the proposed project at 134 Ocean Blvd. as “substantially different in parking and location of the pool,” from the one proposed at 98 Ocean Blvd.

Ms. Shelton said the “layouts” for the two projects differ, and that the “total floor area” claimed by SAGA for the proposed structure at 134 Ocean Blvd. is 5945 square feet, whereas the total floor area at 98 Ocean Blvd. is 6105 square feet. Total floor area is a measurement considered under CAMA. The Town’s calculation for living space is different. (I will review the permit file on 134 Ocean Blvd. at Town Hall as soon as I can. BLOG POST COMING 10/18/18 ABOUT THE PROPOSED STRUCTURE AT 134 OCEAN BLVD., WHICH IS VIRTUALLY IDENTICAL TO 98 OCEAN BLVD.)

The adjacent riparian property owners (homeowners) to the north of 134 Ocean Blvd.—at 136 Ocean Blvd.—have objected in writing to SAGA’s project, according to Ms. Shelton. This SAGA property, like the property at 98 Ocean Blvd., adjoins a beach access owned by the Southern Shores Civic Assn. The SSCA has objected to the proposal for 98 Ocean Blvd. (see The Beacon, 10/10/18), but not yet filed its response for 134 Ocean Blvd. (UPDATE: SSCA OBJECTION FILED 10/17/18.)

Ms. Shelton told me that the SSCA received delivery of the certified-mail notice of SAGA’s proposed project at 134 Ocean Blvd. on Oct. 9, according to U.S. Postal Service records. The civic association has 10 days after receipt of this notice in which to reply.

MY OPINION: The SSCA should wait until the last day of the 10-day period to file its letter of objection. Until this period lapses, and the SSCA either objects or accedes, 134 Ocean Blvd. LLC’s CAMA application is not complete.

Ms. Shelton said she is planning to do site visits at both properties tomorrow. The CAMA permit for 98 Ocean Blvd. could then issue “any time,” she explained, although “typically, there is a window of eight to nine days” after an application is complete before a permit issues. In the case of 98 Ocean Blvd., that window would expire Oct. 19.

I also asked Ms. Shelton how objections from adjacent riparian property owners are handled.

As a Local Permit Officer (LPO), she said, she “takes the nature of the objection” into consideration and has a “conversation with the [Division of Coastal Management] field representative” about it. The field rep will advise her as to whether a “state rule regulation” has been violated and whether the objecting party has standing to challenge the permit applicant over this violation. If both are the case, then a permit will not issue. An objecting property owner receives notification of both the permit and standing decisions.

Standing is a legal requirement, typically considered before a lawsuit is initiated. In order to file a lawsuit or otherwise to legally challenge an action, such as SAGA’s proposed project, a party (person, corporation, or other legal entity) must have legally protected interests at stake and be at risk of suffering, or already have suffered, harm (an “injury”). There are standard factual elements that are taken into consideration in determining whether standing exists. Adjudicators, such as courts, make rulings on standing.

In the event a CAMA permit issues and the SSCA is viewed as lacking standing, Ms. Shelton said, the SSCA will have 20 days in which to appeal the standing decision to the Coastal Resources Commission. I will explore the appellate process if and when this scenario occurs.

PLANNING BOARD’S RESPONSE

With the Town Council’s meeting more than three weeks away, members of the Town Planning Board, which met last night, made it clear in their comments that they would consider holding a special meeting on large-house controls, if they deemed such action desirable and necessary. The question of large houses and occupancy limits was not on the Planning Board’s agenda.

“What’s at stake is the character of the town,” said Planning Board Chairperson Glenn Wyder. “… We will do our due diligence, and our Town Council will do its due diligence. . . . We can get a grip on this.”

Planning Board member David Neal, a longtime Southern Shores resident and builder, described the Town as being at a “crossroads” in terms of its character, quality of life, and development. Mr. Neal said that if SAGA’s proposed 12-bedroom rental house—which, at 98 Ocean Blvd., purportedly would have parking for 17 vehicles and septic capacity for 24 people—were to become the standard in Southern Shores housing, he would move.

As the Beacon explained on 10/11/18, until the N.C. General Assembly passed in 2015 new statutory language that appears to make a bedroom restriction illegal, the Town Code of Southern Shores defined a detached single-family dwelling in the R-1 residential district, which covers 98 and 134 Ocean Blvd., as:

“consisting of no more than seven bedrooms or septic capacity for more than 14 people.” (Sec. 36-205(b)(1).

It further defined a large home dwelling as “any home containing more than seven bedrooms (or rooms that could be considered as bedrooms using the county criteria for determining septic system design) or septic system capacity for more than 14 people.” (Sec. 36-57).

Senate Bill 25, which amended N.C. General Statutes sec. 160A-381, prohibits counties and municipalities from regulating “building design elements” and “aesthetic controls,” most of them having to do with the exterior appearance of a structure. Among the bill’s prohibitions, it bars towns from restricting the “number and type of rooms” in single-family and two-family dwellings. (For the text of the amended statute, see https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S25v3.pdf.)

SB 25 became state law on June 19, 2015. Although it appeared to invalidate the Town of Southern Shores’ bedroom limit, it did not prohibit its 14-person occupancy/septic capacity restriction.

On Jan. 22, 2016, when the Town Council held a special meeting in order to enact an ordinance that would limit occupancy in single-family homes and, thereby, prevent SAGA from building a 25-bedroom wedding destination home on the oceanfront, it considered three zoning text amendments: One of them restricted occupancy by septic capacity, and the other two sought to limit occupancy by house size. (See The Beacon, 10/11/18)

“I fought hard to keep the septic capacity in the [Town] ordinance,” said Planning Board member Andy Ward, who spoke during the January 2016 meeting. But, he acknowledged, “people were in favor of smaller house sizes.”

The Town Council’s decision to approve the maximum house size restriction, instead of a 14-person occupancy/septic capacity restriction, left him “with a lump in my throat,” said Mr. Ward, another longtime Southern Shores homeowner and builder.

“I still think,” he said last night, “that [restricting occupancy through septic capacity] is very feasible to do. We just have to figure out how to do it. As a town, we have to figure out how to regulate septic capacity.”

The Beacon has learned that members of the Planning Board have been in touch with members of Duck’s Planning Board, which is also grappling with large houses and occupancy limits. The Duck board meets tomorrow at 6:30 p.m. When it does, the Beacon will be there. [Mea culpa, folks. I erred when I confirmed this meeting on the Town of Duck website calendar. In fact, the Duck Planning Board met Oct. 10 and will next meet on Nov. 14.]

CONDITIONAL USE PERMIT GRANTED FOR NEW FIRE STATION

In other action at last night’s Planning Board meeting, the five-member Board voted unanimously to recommend to the Town Council that a conditional use permit be granted to the Southern Shores Volunteer Fire Dept. to build a new fire station at 15 South Dogwood Trail and Pintail Trail, the site of the current station, subject to two conditions:

1. Before it submits an application for a Town building permit, SSVFD must have received a) a stormwater general permit, as required by NCDEQ; b) erosion control approval, as required by NCDEQ; and c) an improvement permit and authorization to construct a new wastewater collection, treatment, and disposal system as issued by the DCHD and reviewed and approved by the NCDHHS (if applicable); and
2. SSVFD must strictly abide by all requirements of the Town Code and must strictly comply with all other applicable local, state, and federal requirements.

Before taking its vote, the Board questioned the SSFVD’s engineer, Joseph C. Avolis of New Bern, N.C., about stormwater management plans. All members were sensitive to the problems of stormwater runoff and flooding. Mr. Avolis said that, “on balance, I think we’ve pretty much covered [stormwater], 100 percent.”

I briefly interviewed Kenneth C. Newell, the SSVFD’s architect, on Sept. 5, when he came to Southern Shores for a public information meeting and a Town Council meeting.

According to Mr. Newell, who is a partner in the Gastonia, N.C.-based firm of Stewart, Cooper, Newell, PA, the N.C. State Building Code requires fire stations to last between 50 and 75 years. Planning Board Vice Chairperson Elizabeth Morey asked last night about the building’s life span.

FEMA requires the station to be designed as an “essential facility,” Mr. Newell also told me, and the National Fire Protection Assn.’s minimum response times for firefighters necessitate “immediate egress” from the station.

“We worked with the department to meet its minimum needs” and to be “cost-effective” on a site that poses constraints, Mr. Newell said. “There’s not a lot of fluff in the building,” which, if built, will be a single-level, 14,000-square-foot station equipped with four “double-loaded drive-through bays.”

The architect also noted that the “look” of the station “must reflect local character and local color. It must blend in and look like a civic building.”

Mr. Newell said he has designed 400 fire stations across the country, in 26 different states.

When asked by Councilman Fred Newberry at the September Town Council meeting what the anticipated cost of the project is, Mr. Newell cited the volatility of market prices and gave a range of between $325 and $425 per square foot. Thus, the cost for a 14,000-square-foot station would be between an estimated $4.6 million and $6 million.

The Town Council is expected to vote on whether or not Southern Shores will financially participate in the station’s construction at its Nov. 7 meeting.

Ms. Morey expressed concern last night about the size of the Town’s capital expenditure and the “green” standards that the architect observed in the station’s design. Mr. Newell did not attend the meeting.

“It’s a missed opportunity if the Town does not require the building to be forward-thinking,” she said, built to the “highest possible standards” for environmental responsibility and resource efficiency.

Mr. Neal concurred, saying, “The firehouse needs to be modern and efficient.”

AND FINALLY . . . The Planning Board unanimously voted to table its consideration of ZTA 18-08, an effort by builder Olin Finch to amend the fill section of the building height ordinance, which pertains to properties in the AE flood zone. (Code sec. 36-202(d)(7)(b).) It boils down to a question of how elevation is measured.

Mr. Finch, who lives in Duck, would like to use and distribute more fill in his lot at 237 Woodland Drive, where he is building a multi-story house, than the Town Code currently would permit him to do. Deputy Town Manager/Planning Director Wes Haskett advised Mr. Finch’s site manager, Marc Murray, who represented him last night, that he had to remove two feet of fill that had been unloaded and distributed. Mr. Murray referred in discussions with the Planning Board to a client, but Mr. Finch owns the property.

The Planning Board revised the building height ordinance in August 2017, and the Town Council passed its recommended rewrite on Sept. 5, 2017. Planning Board member Joe McGraw, a builder, and Ms. Morey, both of whom were on the Board in 2017, acknowledged that they gave short shrift to the provision on the use of fill in the AE flood zone—spending most of their time on changing how building height is measured in the X flood zone—and agreed that it needs revision.     

 

NO NONCONFORMING LOTS DISCUSSION; RESCHEDULING OF NOV. MEETING

. . . The Board elected not to discuss the new nonconforming lots ordinance last night. Chairperson Wyder said the Board is “still gathering information about nonconforming lots and waiting for recommendations from the Town Attorney and the Town staff.”

The Board also voted, 5-0, to reschedule its regularly scheduled November meeting from Nov. 19 to Nov. 26.

(Believe it or not, whenever I start one of these blogs, I think it’s going to be short! Sorry for the technical difficulties.)

Ann G. Sjoerdsma, 10/16/18

 

Since I posted my blog yesterday about SAGA Construction’s proposal to demolish a historic flattop at 98 Ocean Blvd. and build a 12-bedroom, 5981-square foot, three-story house with parking for 17 vehicles on the oceanfront site, people have been asking about the seven-bedroom restriction that Southern Shores used to impose on single-family dwellings.

What happened to it?

The short answer is: It no longer exists.

While I briefly answered this question in yesterday’s blog, I did not detail the history underlying the answer, which is: The bedroom restriction appeared to be illegal after the N.C. General Assembly in 2015 passed Senate Bill 25, which, among many other prohibitions, bars municipalities from restricting the “number and type of rooms” in single-family and two-family dwellings.

SB 25 deals with “building design elements” and “aesthetic controls,” most of them having to do with the exterior appearance of a structure, such as with the design of roofs or garages. The legislation arose in the context of suburban and urban housing developments, not in a coastal development area. (For the text of the bill, see https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S25v3.pdf.)

SB 25, which became Session Law 2015-86, also has some exceptions. The prohibitions do not apply to structures that are located in local or national historic districts or that are individually designated historic landmarks. Where municipal regulations are “directly and substantially related” to applicable safety codes adopted under the N.C. State Building Code or where they are adopted as a condition of participation in the National Flood Insurance Program, SB 25 does not apply.

SB 25 became state law on June 19, 2015. At that time, the Town Code of Southern Shores defined a detached single-family dwelling in the R-1 residential district, which covers 98 Ocean Blvd., as:

“consisting of no more than seven bedrooms or septic capacity for more than 14 people.” (Sec. 36-205(b)(1).

It further defined a large home dwelling as “any home containing more than seven bedrooms (or rooms that could be considered as bedrooms using the county criteria for determining septic system design) or septic system capacity for more than 14 people.” (Sec. 36-57).

It is important to note that although SB 25 appears to invalidate the bedroom limit, it did not prohibit the 14-person occupancy/septic capacity restriction.

Sometime after SB 25 took effect, SAGA Construction proposed to build a 25-bedroom “wedding destination” or “event” house at 64 Ocean Blvd, in the middle of what was once visionary founder Frank Stick’s housing compound. SAGA destroyed a historic structure on this oceanfront site, as did the homeowners at 62 Ocean Blvd., but it was prevented from building the event house when the Town Council passed a size limit on single-family dwellings of 6,000 square feet of “enclosed living space.”

The Council’s action occurred seven months after SB 25 took effect. Unfortunately, I recall a long, well-aware delay by the Town before it responded to the new law, about which all Planning Board and Town Council members knew. Although there was considerable buzz surrounding SB 25, and beach towns to the south changed their zoning ordinances, it was not until SAGA’s development proposal for 64 Ocean Blvd. became known that Southern Shores acted. (You may recall that a Town Council election occurred in November 2015, resulting in the arrival of three new Council members. It was the former Council that ignored SB 25.)

PLANNING BOARD AND TOWN COUNCIL RESPONSE TO SB 25

On Jan. 22, 2016, the Town Council considered three zoning text amendments, prepared by Town Attorney Ben Gallop and Town Planner Wes Haskett, to ensure both that the Town Code conformed to SB 25 and that the SAGA 25-bedroom “event house” would not be built. I recall the hearing on these ZTAs as being somewhat confusing and overwhelming. Each ZTA contained a lot of verbiage to process.

The previous evening, the Town Planning Board had met and unanimously recommended approval of ZTA 16-02, which restricted occupancy in large structures, but not maximum building size. The Planning Board did not reject the other ZTAs; it just favored ZTA 16-02 over the others. I detail the ZTAs that the Town Council considered below:

ZTA 16-02: “Large structures, 14-person occupancy limit”

The crux of this ZTA was a new definition for “large-home dwelling” under Code sec. 36-57. Large homes were redefined as “any residential structure designed or constructed to have septic capacity for more than 14 people. Large home dwellings are not a permitted use in any zoning district unless expressly authorized by that district’s regulations.” (I added the italics.)

This ZTA, like all of the proposed ZTAs, elaborated on the definition of “event facility,” which constitutes a restaurant under the Town Code and requires a conditional use permit. Much effort was put into drafting new Code language that would define and control “event facilities.”

ZTA 16-03: “Large structures, maximum square footage”

This amendment established a “maximum size” for a single-family dwelling within the different residential districts of not more than “6,000 sq. ft. of enclosed living space.” Living space is defined in the Town Code as habitable space.

Significantly, ZTA 16-03 also eliminated the 14-person septic system capacity limit on detached single-family dwellings, and, in my opinion, amended the definition of the term “family” in an awkward, unfortunate, and, most likely unintended, manner. I will not get into the “family” point now, but it figures into an analysis of what is a family insofar as a vacation rental house occupancy is concerned.

ZTA 16-04: “Large structures, graduated square feet”

This ZTA sought to define the maximum size of a large-home dwelling according to the zoning district in which it is located. But it also specified that such dwellings “are not a permitted use in any zoning district.”

The way this ZTA worked is that dwelling size was determined by the square footage of the lot on which it was built:

On lots with square footage up to 10,000 square feet, a single-family dwelling could not exceed 2,000 square feet of enclosed living space. If the lot were between 10,0001 and 20,000 square feet, the size limit would be 4,000 square feet; on lots between 20,001 and 35,000 square feet, the limit would be 6,000 square feet; and on lots greater than 35,001 square feet, the maximum house size could not exceed 8,600 square feet of enclosed living space.

Remember, any lot under 20,000 square feet is still nonconforming.

If this ZTA had been passed by the Town Council, instead of ZTA 16-03, SAGA would be able to build an 8,600-square foot house at 98 Ocean Blvd., provided the building did not exceed the 30 percent lot coverage restriction. SAGA claims in its CAMA application that the lot size is 35,262 square feet.

ZTA 16-04 also sought to alter the meaning of “family.”

You will find links to all of the ZTAs at this link: https://www.southernshores-nc.gov/?s=16-03.

I am simplifying the proposed ZTAs as much as possible. I do think it’s important to mention, however, that each one proposed a change to off-street parking requirements for single-family dwellings, which had been based on the number of bedrooms in a dwelling. Instead of using bedrooms, the Town conditioned the minimum number of requisite parking spaces on septic capacity, which is determined by the county health department.

The Jan. 22 meeting minutes reflect, and I recall, that the Town Council zeroed in on ZTAs 16-02 and 16-03. The graduated square-foot scheme and its consequences were difficult to comprehend quickly. It seemed unduly complicated.

According to the minutes, Mr. Gallop stated that he was more confident about defending ZTA 16-03 from legal challenge than he was ZTA 16-02 or 16-04. He also said that ZTA 16-02, which would restrict septic capacity, would be harder to enforce.

See the minutes here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Minutes_2016-01-22.pdf.

According to the minutes, Councilman Christopher Nason asked Mr. Haskett what was meant by “enclosed living space,” and he replied that it is space that is heated and cooled. Hence, a detached garage would not be included.

Eventually, the Town Council approved the maximum size limit of 6,000 square feet by a 3-2 vote, with Mayor Tom Bennett and Councilman Nason opposing it. Councilman Leo Holland joined Councilmen Fred Newberry and Gary McDonald in supporting ZTA 16-03.

WHAT ABOUT NOW?

An obvious question, in hindsight, is why didn’t the Town Council combine ZTA 16-02 and 16-03, and restrict both maximum building size and maximum occupancy, according to septic capacity? The answer, I believe, is that it could have, but it didn’t because a ZTA incorporating both approaches wasn’t drafted, and it was under the gun with the SAGA development looming.

Could the Town Council seek to limit occupancy now in single-family dwellings by reference to septic capacity? Yes. Could it limit occupancy in single-family rental dwellings without reference to septic capacity? I would like the opinion of an expert land-use attorney on this matter. The definition of family, as it pertains to vacation rentals, would definitely come into play.

Whether or not the Town could enforce an occupancy limit is a different question from whether or not it has the authority to impose a limit. Enforcement is a practical how-to matter. How does the Town enforce maximum building height or maximum lot coverage or other limits now?

I have long  believed that there is can-do government, and there is can’t-do government. The same can be said of attorneys. I stand with those who believe they can and figure out how.

Ann G. Sjoerdsma, 10/11/18; revised, 10/12/18

If SAGA Construction secures the CAMA and town permits it needs to develop 98 Ocean Blvd. on the Southern Shores oceanfront, an original Frank Stick design will be destroyed and a 12-bedroom, 12-bathroom, 5981-square foot, three-story house with a claimed septic capacity of up to 24 people and parking for 17 vehicles will be built in its place.

“98 Ocean Blvd. LLC,” the legal identity that SAGA has used as purchaser, reportedly settled on the property, identified as lots 1-2 of block 17, last Friday, buying it from three sisters who live in Virginia and acquired it, in large part, from their parents.

This summer, the flattop at 98 Ocean Blvd., known as the Brooks house, was still in the rental program at Southern Shores Realty. See https://www.southernshores.com/outer-banks-rentals/brooks/081.

According to Town Permit Officer Dabni Shelton, 98 Ocean Blvd. LLC’s application to CAMA (Coastal Area Management Act) for a development permit was filed Oct. 2 and sent to the N.C. Division of Coastal Management the next day. CAMA regulations require a “minor” permit to be issued within 25 days after an application is in hand–therefore, in this case, by Oct. 27. Permits customarily issue well before the 25-day period elapses, Ms. Shelton said. (See below.)

Amit Gupta of SAGA is acting as 98 Ocean Blvd. LLC’s agent.

A SLAP IN THE FACE

SAGA’s plan is a “slap in the face to the vision of Frank Stick, the developer of Southern Shores,” said Sally Gudas, who, with her husband Steve, owns a 1950s-era flat top on Wax Myrtle Trail and has actively sought to preserve flat tops and arrange tours of them.

Building a “12-bedroom structure,” which may be an “event house,” in place of the historic flattop now at 98 Ocean Blvd. (see photo above), Ms. Gudas told me this morning, “is antithetical to the goals of Frank Stick’s original development.”

I will tell you, in full candor, that I agree. It is also antithetical to Southern Shores’ current land-use plan, which endorses a vision of a “quiet seaside residential community comprised primarily of small low density neighborhoods,” not a high-density, congested seaside community with 17 SUVs parked in front of three-story houses.

SAGA’s proposed demolition and construction project at 98 Ocean Blvd. became public Monday when Board member Rod McCaughey announced it at the Southern Shores Civic Assn.’s general membership meeting. Mr. McCaughey called it “bad news.” I have yet to speak to anyone in Southern Shores who feels differently.

Mr. McCaughey reported that the SSCA had received notice last Friday from SAGA of its application for a permit. The CAMA permit system is divided into major and minor permits based on the size and environmental impact of a development project. SAGA’s project is considered minor.

Because the SSCA’s Chicahauk Trail beach access adjoins 98 Ocean Blvd., to the south, the civic association is an adjacent riparian owner entitled to notice and an opportunity to comment or object to SAGA’s application. The Kill Devil Hills-based developer erred in sending certified-mail notice of its application to the landowner on the other side of the beach access, skipping over the SSCA. (An agent for the homeowner at 100 Ocean Blvd. accepted delivery of SAGA’s certified letter notice on Sept. 19. That homeowner did not file comments or objections within the requisite 10-day period after receipt.)

FULL DISCLOSURE: I attended the SSCA meeting and stood up to ask questions of Mr. McCaughey. As I have at other public meetings, I raised the issue of whether the proposed SAGA house qualifies as a “single family dwelling.” Ninety-eight Ocean Blvd. lies within the Southern Shores’ RS-1 residential district, which is zoned for single family dwellings only. I also suggested that the SSCA use some “legal firepower” in opposing this project.

Immediately after the meeting, I circulated among SSCA members who lingered and heard only negative comments about the SAGA project. I spoke with Mayor Tom Bennett that night, as well as two Town Council members. All Town Council members attended the SSCA meeting, except Councilman Christopher Nason. Yesterday, while researching the Town permit file on 98 Ocean Blvd., I spoke further with Mayor Bennett, who happened to stop by Town Hall, and Councilman Jim Conners, with whom he was meeting, as well as at length with Ms. Shelton. Deputy Town Manager/Planning Director Wes Haskett is out of town.

I can confidently say that none of the elected officials with whom I spoke wholeheartedly supports SAGA’s project. But that does not mean that any of them are prepared or eager to fight, through legal means—including via amendments to the Southern Shores Town Code—this project and future projects like it. At least, not yet.

SSCA OBJECTS TO SAGA HOUSE

Yesterday, Mr. McCaughey, who heads the SSCA’s bylaws/long range planning/architectural review board committee, submitted a letter of objection to Mr. Haskett and Ms. Shelton, who are the local permit officers (LPOs), writing, in significant part:

“The characterization/classification of a 12-bedroom structure as a single-family dwelling is improper and misleading. A structure with that number of bedrooms surely seems designed to accommodate large numbers of people along the lines of other event houses built in Dare County. [The SSCA] feels strongly that such a structure is out of character with all of the existing single fairly dwellings in Southern Shores and raises concerns with accommodating large numbers of vehicles associated with use of the structure.”

I thank Mr. McCaughey and the SSCA for their opposition. I believe they are representing a majority view of the civic association’s 1802 members. I only wish the SSCA had withheld its response until the end of the 10-day period. 

According to Ms. Shelton, “The first day to issue [a CAMA permit] is customarily eight to 10 days from the date of a complete application, which in this case was Oct 9th, when the SSCA submitted their Adjacent Riparian Property Owner notice and letter.” [Content in boldface added 10/12/18.]

MY OPINION: To call SAGA’s proposed structure a single family dwelling or “home” is to distort the common meaning of this term. That the new property owner is identified as a corporation, rather than as an individual, further defies application of this description to SAGA’s project. This is a luxurious rental-house machine—each of the 12 bedrooms is conceptualized as a “suite”—being built on speculation, not a dream house being built by a wealthy individual for personal use.

I am reluctant to say more now about the single family dwelling status of this controversial project and how relevant existing law may or may not apply to it. I have more research that I would like to do, and the project is early in the permitting process.

Ms. Shelton said that the Town is “reviewing” SAGA’s CAMA application. She has not received any applications from SAGA for local permits. A building-permit application requires proof of ownership, and, so far, only SAGA’s purchase offer, accepted by the three sisters in March 2018, is on file.

Rather than talk about legalities, I would like to share with you SAGA’s numbers.

LOT COVERAGE, HOUSE SQUARE FOOTAGE

I asked Ms. Shelton about the proposed SAGA house’s lot coverage, and she said that, when assessing an oceanfront building, it is calculated from the first line of stable natural vegetation (FLSNV). CAMA will make its determination of FLSNV, she explained, and then she will visit the property and make her own independent determination.

According to SAGA’s building plans on file, the developer calculated square-foot coverage of the project as follows:

Proposed residence: 4,435 square feet, a calculation that excludes a 165-square-foot interior garden that is open to the sky.

Proposed concrete parking and driveways: 3,732 square feet. (The plans indicate that six parking spaces will be under the house; 11 will be on the driveway.)

Proposed swimming pool and concrete decking: 1,724 square feet (The project also has a hot tub and tiki bar.)

Proposed wood beach walkway and deck: 416 square feet

The total of these measurements is 10,307 square feet.

SAGA has calculated the lot area to FLSNV as 35,262 square feet, or .81 acres. By SAGA’s calculations, its project would cover 29.2 percent of the lot.

Ms. Shelton pointed out that when determining the size of a structure, CAMA calculates “total floor area,” whereas the Town, in deciding whether a house exceeds the 6,000-square-foot cap imposed by zoning ordinance, takes account only of “enclosed living space.” The Town Code requires living space to be habitable.

According to SAGA’s CAMA application, the “total floor area” for its proposed house is 6105 square feet, whereas the total enclosed living space is 5981 square feet. The developer’s  building plans show the following square-footage calculations:

GROUND FLOOR LEVEL

Enclosed area: 265

Storage (non-conditioned): 124

Covered area (non-conditioned): 3443

FIRST FLOOR

Enclosed area: 2958

Deck area: 1261

SECOND FLOOR

Enclosed area: 2758

Deck area: 888

To arrive at 5981 square feet, SAGA added the enclosed areas of 265, 2958, and 2758 square feet.

As many of you know, the Town enacted the 6,000-square-foot size limit on single family houses when Senate Bill 25 became law in 2015, and it lost the authority to restrict the number and type of rooms. Before then, Southern Shores imposed a seven-bedroom limit on single family dwellings.

SB 25 dealt with many “building design elements” and “aesthetic controls,” most of them having to do with the exterior appearance of a structure. It arose in the context of suburban and urban housing developments. (See https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S25v3.pdf.)

It may be advantageous to revisit this law after the November election with General Assembly members from Dare County. In the meantime, it is worth noting that the 2015 law allows municipalities to enact zoning regulations pertaining to “the use of buffering or screening to minimize visual impacts, to mitigate the impacts of light and noise, or to protect the privacy of neighbors.”

A PERSONAL NOTE

I join Ms. Gudas in believing, as she told me, that the demolition of the flat top at 98 Ocean Blvd. “will be a huge loss to the essence of Southern Shores.” It will be a loss of history. That such demolition may be an inevitability does not lessen the loss.

I also agree with her that “even more troubling” is the size, scope, and commercial intent of the proposed structure that will replace it. That it is proposed to be located next to the main beach access used by Chicahauk residents and vacationers is also troubling.

On a personal note, I would like to say that I am one of three sisters—I also have a brother—who acquired an oceanfront house in Southern Shores that my parents built. My family’s cottage is historic only in the sense that it was the first house built on pilings, and the flat top contingent wasn’t happy about it. Now it is a dwarf among giants.

The cottage that I own with my siblings sits between two flat tops and always has. This year the flat top to the north of our rental home was for sale, and I couldn’t convince my siblings to buy the property in order to protect our home and the town. Too much money, too much hassle, etc., etc.

I was greatly relieved when an Ohio couple bought the property, not SAGA or another developer of event “homes.” I was then, and am still, prepared to litigate if I have to. I hope the SSCA is, as well.

CELL TOWER EXPANSION

Speaking of money . . . It was also announced at the SSCA meeting that American Tower Corp. will be extending the cell tower at the Duck Road/Ocean Blvd. fork by 20 feet in order to accommodate Verizon Wireless, which is not now on the tower, and to expand AT&T’s cellular capacity.

The current “straight pole-like structure,” American Tower representative Mark Landers explained to the SSCA audience, “will look exactly the same on the outside.” He also said that the expansion is being done to “accommodate” the explosion in cell-phone traffic, which he described as a 40-percent annual increase in data. Too many people are trying to use the network at the same time.

The expansion will take about five months and bring in $5400 more in rent for the SSCA, bringing the total income from the cell tower to just under $40,000. The cell tower will be 150 feet high when it is done.

***PLEASE NOTE***

THE NEXT PLANNING BOARD MEETING IS 5:30 p.m., OCT. 15, in the Pitts Center. On the agenda are consideration of the Southern Shores Volunteer Fire Dept.’s application for a conditional use permit to construct the new fire station at 15 S. Dogwood Trail and a hearing on proposed ZTA 18-08, concerning a change in the maximum building height ordinance, sec. 36-202(d) of the Town Code.

Before the SSCA’s meeting Monday, I thought I would be writing a blog this week about the SSVFD’s new station and ZTA 18-08, which arose, literally, from a situation in my back yard.

Duck-based builder Olin Finch bought the lot behind my residence at 237 Woodland Drive, a once-forested irregular lot in an AE flood zone. I have met on-site with manager Marc Murray, who will be representing Mr. Finch at the Planning Board hearing, and have monitored the development. I had setback concerns.

I was not in town, however, when a convoy of dump trucks traveled down South Dogwood Trail, arriving before 7 one morning, and unloaded fill in the Woodland lot, which Mr. Haskett has aptly described as a “bowl.” I subsequently learned from a neighbor and Mr. Haskett that the added fill exceeded the amount permitted by the Town Code by two feet and had to be removed. Hence, ZTA 18-08.

Section 36-202(d)(7)(b) currently permits “the use of fill or redistribution of fill” for properties in the AE flood zone up to “7 feet above mean sea level.” The amendment would delete that phrase and replace it with up to “the regulatory flood protection elevation.” That brings FEMA into the definition.

I have been advised by informed sources that this is a good change, one that will bring consistency to Code sections and protect homes in the AE flood zone. My own house sits on a ridge, not in a bowl. I will listen carefully to what Mr. Haskett and Mr. Murray say. But what I mostly would like is for Finch and Co. to fill in the trench–a three-foot-high dropoff–that was created between our lots when the trucks brought in the fill.

The Planning Board may or not take up the new nonconforming lots law again. It also may take up the SAGA project. Certainly, property owners and others are free to bring up the project to the Board in public comments.

I encourage the Planning Board and the Town Council to fight the SAGA project. This is not a time for “What can we do?” shoulder-shrugging and delay. This is a time for swift, preventive action.

Ann G. Sjoerdsma, 10/10/18; revised slightly 10/11/18