Glenn R. Wyder, a good friend to so many in Southern Shores and an important voice in our town’s preservation and growth, died suddenly Sunday night. He was 61.
As many of you know, Glenn, who lived with his wife Florence in Chicahauk, moved here from New Jersey–realizing their dream–and quickly became involved in the community.
At the time of his death, Glenn was chairperson of the Southern Shores Planning Board and president of the Chicahauk Property Owners Assn. He was an invaluable public servant, hard-working, dedicated, and smart. He deeply cared about Southern Shores and its future.
As Planning Board chair, Glenn was ready to assume a major role in tackling the development issues that have arisen in town recently—just as he did over the summer in resolving conflicts over lot coverage and the sale and development of 100-foot-wide land parcels as two 50-foot-wide lots. I felt confident that as long as Glenn was doing his “due diligence,” as he called it, all opinions on an issue would be considered, and reasoned, methodical decision-making would occur.
After his election to the chairpersonship of the Planning Board, Glenn made it clear that he would run no-nonsense and focused meetings that ended at a reasonable time. He was quick to notice when discussion on the board had become “circular,” as he said, and he would rein it in. Glenn also made it clear that he would always be prepared and would listen to people—until they started repeating themselves.
In short, Glenn was a leader.
He also had an abundance of energy. Although living in Chicahauk, Glenn continued to work full-time as general manager of Mediterranean Tile and Marble in Bernardsville, N.J. (The photo above is from Mediterranean’s website.) He was able to telecommute successfully, driving back to New Jersey periodically.
Glenn sought me out soon after I started publishing The Beacon, and we developed a mutual respect and understanding. I considered him a trusted friend—a straight shooter with heart— and I grieve his loss today. Glenn never failed to ask about my 94-year-old mother whenever we saw each other. He understood what it means to be a caregiver, and he knew how important it is to caregivers to have others reach out to them.
Besides his wife, Glenn is survived by his two sons, his daughter, and a granddaughter upon whom he doted. He was very proud of his family. I think I learned about all of them in the first telephone conversation I had with Glenn. They were his joy.
Gallop Funeral Services is handling arrangements for the Wyder (pronounced Wee-der)family. Here is a link to Gallop’s Facebook page, which has a notice of Glenn’s death: https://www.facebook.com/pg/gallopfuneralservices/posts/.
According to Gallop, Glenn’s wish was to be cremated and to have his ashes scattered at sea. Gallop will be publishing a detailed obituary soon.
The Town of Southern Shores issued building and zoning permits to SAGA Construction and Development for 98 Ocean Blvd. on Nov. 20, according to Deputy Town Manager/Planning Director Wes Haskett.
I thought the activity I saw on-site yesterday looked suspiciously like the early phase of building, but, inasmuch as SAGA had not posted its building permit on-site, as required, I was hopeful.
I went by Town Hall last Wednesday afternoon to inquire about the permit status, and to do other research, but it had already closed for Thanksgiving.
SAGA is assuming the risk of its CAMA permit for the property’s development being suspended or rescinded as the result of an administrative hearing granted to a third-party property owner who appealed its issuance. (See yesterday’s “Good News.)
I regret that I posted erroneous information in yesterday’s blog about the building permit status. Thank you.
SAGA’s cleared lot at 98 Ocean Blvd. as it appeared this morning. The shadow in the foreground was cast by a street fixture.
Three of the seven property owners who contested the issuance of CAMA minor permits for SAGA Construction and Development’s proposed 12-bedroom, 17-parking-space “mega” houses on the Southern Shores oceanfront have been granted hearings on their claims.
Coastal Resources Commission Chair M. Renee Cahoon, a current and longtime member of the Nags Head Board of Commissioners and a former Nags Head mayor, granted the hearings to the three property owners, over the recommendation of staff counsel that they be denied. Her decision was issued Nov. 19.
Each of the three homeowners has property either adjacent to or across the street from the structure planned for 98 Ocean Blvd. or for 134 Ocean Blvd.
The limited legal question in the hearings, which will be held before a North Carolina administrative law judge (ALJ) in Raleigh, will be whether or not the permits’ issuance was consistent with Southern Shores’ CAMA land-use plan, which was adopted in 2012.
FULL DISCLOSURE: I was one of the seven contesting property owners, but I was not granted a hearing. I played a crucial role in the preparation of the third-party appeal petitions for the other six property owners, whose names are part of the public record, but which I will not provide here in order to protect their privacy. Each had to file a request for a hearing, with a written argument about their standing to contest the permits’ issuance and the legal basis for their claim, with the N.C. Division of Coastal Management and the Environmental Division of the N.C. Attorney General’s Office.
I will play a role as these claims go forward, but it will not be as the attorney of record. As I have disclosed before, I am licensed to practice law in North Carolina, but my license is “inactive,” at my request, so I cannot represent clients. The three property owners will have their own counsel. I will assume a non-legal advisory role.
Administrative hearings are quasi-judicial, meaning that ALJs have powers to investigate and evaluate facts and to make legal findings, just like trial court judges do, but their procedures are less formal and their decisions are subject to court appeal. The rules of evidence applied in an administrative hearing are more relaxed than they are in a court trial. Like a court trial, administrative hearings are public.
To assist the property owners with legal fees, a GoFundMe campaign may be established. I will pass along details about this fund, when and if they become available.
Pursuant to North Carolina statute, the three property owner/petitioners have 20 days after the date of Ms. Cahoon’s decision in which to file a form petition for a contested case hearing with the Office of Administrative Hearings (OAH) in Raleigh. After that, the OAH will assign hearing dates. State statute requires that the petitioners receive at least 15 days’ notice of their hearings.
This state administrative process does not stop the local permitting process from going forward. No “stay” has been issued to the Town of Southern Shores to prevent it from issuing a building permit to SAGA for 98 Ocean Blvd. The Town has already issued a lot-disturbance permit that allowed the developer to demolish the flattop on the site and prepare it for construction. As of this writing, however, it has not issued a building permit, although SAGA has applied for one. [11/26 UPDATE: The Town issued building and zoning permits to SAGA on Nov. 20. I went by Town Hall last Wed. afternoon, 11/21, to inquire, but it was closed. SAGA has not yet posted the new permits on-site.]
The Beacon has learned that SAGA’s settlement on 134 Ocean Blvd. has been delayed again. The developer still does not own that property and cannot request a Town permit until it does.
Governor Roy Cooper appointed former Nags Head Mayor Cahoon in 2017 as CRC chair. She served on the CRC for 15 years before her appointment.
The Swan Quarter native, who owns Cahoon’s (Market &) Cottages in Nags Head, a family-run business established in 1962, has a long history of public service in Dare County. Besides serving on the Nags Head Board of Commissioners, Ms. Cahoon has been a member of the Dare County Board of Commissioners. The name Cahoon is synonymous with Nags Head, and that’s good for Southern Shores.
PRIMER ON N.C. COASTAL MANAGEMENT: WHO’S WHO?
When you talk about coastal management in North Carolina, you toss around initials: CAMA, DCM, CRC, and others. I have discovered that most people refer to CAMA when they really mean the DCM, and the DCM when they mean the CRC. Here is an explanation of who’s who:
In 1974, the N.C. General Assembly (i.e., the state legislature) adopted the Coastal Area Management Act, also known as CAMA. Many people believe that CAMA is an agency, but it is actually a legal act made up of statutes. You will find it in chapter 113A, article 7 of the North Carolina General Statutes.
The Coastal Resources Commission (CRC), of which Ms. Cahoon is now chair, was created at the same time as CAMA. The CRC establishes policies for the N.C. Coastal Management Program and adopts rules for both CAMA and the N.C. Dredge and Fill Act. It also designates areas of environmental concern (known as AEC), adopts rules and policies for coastal development within the AECs, and certifies local land-use plans.
SAGA had to obtain CAMA permits for its two proposed oceanfront projects because the properties are located in the “ocean hazard” AEC, where the risk of flooding and beach erosion is great.
The Division of Coastal Management (DCM) provides staffing services to the CRC, including legal services; implements the CRC rules; and issues CAMA permits. The DCM is a division of the N.C. Dept. of Environmental Quality (DEQ). According to the DEQ website, the DCM “works to protect, conserve, and manage North Carolina’s coastal resources through an integrated program of planning, permitting, education, and research.”
People who work for the DCM are staff hires. The CRC consists of 13 members appointed by the Governor, the Speaker of the House, and the Senate President Pro Tempore. It has not been spared by the Republican takeover of the legislature.
Eleven of the 13 appointees must have experience in “a particular area of expertise,” according to the DEQ website, “including land development, coastal engineering, marine science, coastal-related business, local government, coastal agriculture, commercial fishing, coastal forestry, sports fishing, and wildlife.” Two of the 13 may be at-large.
CAMA also created a 20-member Coastal Resources Advisory Council (CRAC), made up of appointees and designees, many of whom are elected officials. The CRAC provides the CRC with local-government perspectives and advice.
As The Beacon reported earlier this month, the Southern Shores Town Council unanimously voted at its Nov. 7 regular meeting to approve construction of the new $5.4 million SSVFD fire station and to fund it, according to mortgage terms secured by SSVFD Chief Edward Limbacher.
It also unanimously approved the new 10-year fire services (FY 2019-2029) contract with the Southern Shores Volunteer Fire Dept., which is expected to have a base annual compensation in its first fiscal year of $545,914. (See The Beacon’s blogs, Nov. 7-8.)
The new fire station will be built on the site of the current station at 15 S. Dogwood Trail. According to Chief Limbacher, construction is expected to begin Jan. 2, 2019 and to take 12 months to complete. The mortgage on the project is for 25 years.
During its displacement, the SSVFD will be based in a temporary structure in the back of the Kitty Hawk Elementary School, the Chief told the Council, “right next to the batting cages.”
Work on setting up this site began two years ago, he said, and involved the approval of the Dare County Board of Education. (Protecting the fire trucks is vitally important. “They have to stay warm,” the Chief said.) The SSVFD’s administrative headquarters relocated roughly two months ago to the Southern Shores Crossing.
“It’s going to be rough next year,” the Chief acknowledged.
How will the Town cover the new fire-station costs, along with expenses for fire services, continuing infrastructure improvements, and maintenance of other Town services? Is a property-tax increase inevitable? Or, as Town Manager Peter Rascoe would say, will “revenues” have to be increased?
Before answering these questions, I would like to review some background on the new station. I will say, however, that I was pleased by the numbers that accountant Teresa Osborne gave in her fiscal year 2017-18 audit report, which she presented at the Council’s meeting, and by Mr. Rascoe’s “fiscal note” about the new station.
A COLLABORATION OF NEARLY FIVE YEARS
The new fire station, according to the SSVFD Chief, is the result of “five years of effort.” It is the culmination of a lot of “hard work,” he said, involving a collaboration of many people in Town Hall, the Southern Shores community, the SSVFD, and elsewhere in Dare County.
Whether or not you believe the Town should be footing the entire bill for the new fire station, I believe you can feel confident that the considerable planning involved in taking it from a vision to a near-reality has been competent, smart, and highly professional.
“The Town and the fire department need each other,” Chief Limbacher said in his presentation to the Town Council, in which he emphasized the cooperation and good feeling between TOSS and the SSVFD. The fire station “is an investment in our town.”
After the Town Council had green-lighted the new fire station and its funding, the Chief gave a prepared thank-you speech with many names in it. The speech was one of two speeches he had at the ready to deliver and certainly was the one he had hoped to give.
Upon leaving the lectern, at which he had stood for a slide presentation and lengthy discussions concerning the fire station’s conditional use permit and the debt funding, the Chief gave a thumbs-up sign to the many volunteer firefighters who had filled chairs in the Pitts Center.
It was definitely a happy moment for the SSVFD’s 53-member firefighting force.
NOW, THE BACKGROUND
The Town Council unanimously accepted Chief Limbacher’s choices of A.R. Chesson Construction Co. of Elizabeth City for construction of the new 14,000-square-foot fire station and United Financial of Asheville to service the debt.
Project architect Kenneth C. Newell, who is a partner in the Gastonia, N.C.-based firm of Stewart, Cooper, Newell, PA, participated in this decision-making.
Chesson was the winning bidder out of three companies that bid on the fire-station project; it submitted the lowest qualified bid of $5,409,223. Chief Limbacher said that this amount represents $376 per square foot, which is within the range of between $325 and $425 per square foot that Mr. Newell gave the Town Council at its Sept. 5 meeting. (If you do the math, you’ll figure out that either the fire station will be larger than 14,000 square feet or the cost per square foot is slightly more.)
United Financial offered financing over a 25-year term of $5,419,223, at an initial interest rate of 3.71 percent. The interest rate would be fixed for the first 10 years and reviewed at the end of the 10th year. Any adjustment to the rate would be based on the interest rate for a 10-year Treasury bill, according to a bank official.
The Chief sent a Request for Proposal to five lending institutions. The second best proposal that he received, he said, came from PNC Bank of Raleigh, which proposed a 10-year loan with payments based on an amortization of 25 years.
The mortgage amount includes $10,000 over Chesson’s bid because it covers “regulatory inspections as required by code,” according to Chief Limbacher. (See The Beacon’s report, Nov. 5.)
The Town Council decided to add another cost to the fire-station construction after hearing from several homeowners in Southern Shores Landing that they would like a barrier erected. The Landing is the housing development that borders the south side of the fire-station property.
The homeowners requested a noise buffer, as well as a fire-retardant barrier that would reduce the effect on their homes of the heat emitted by training exercises performed by the volunteer firefighters.
The Council ultimately framed a somewhat protracted motion to approve the conditional use permit with the Planning Board’s conditions and with the further condition that a vegetative buffer and/or a fence or “a combination thereof” be constructed between the fire station and the adjacent Landing properties. The motion specified that no barrier be constructed of masonry, the cost of which greatly concerned Councilman Jim Conners.
PAYING THE DEBT
Mr. Rascoe informed the Town Council that the impact of the 25-year fire-station mortgage on the Town’s budget, starting in FY 2019-2020 and continuing for at least nine fiscal years thereafter, would be an additional annual expense of $333,551.96, if the debt were paid in quarterly payments. He also made a point of saying that the financing did not require a guarantee from the Town.
The Town Council has already appropriated $267,700 in FY 2018-19 toward the debt service, he observed, so that interest payments during the next two quarters can be paid from this amount.
According to Mr. Rascoe, if the Town Council keeps in FY 2019-20 its “current level of services” to Southern Shores citizens and appropriates the same amount for infrastructure improvements as it did in FY 2018-19—that being $654,870—then:
“The cost of funding the Fire Department’s debt service of $333,551.96 can be absorbed into your balanced general operating budget for next year with no or little use of the fund balance. That would negate the necessity of having to increase your revenues [i.e., raise taxes] otherwise.”
This additional cost, Mr. Rascoe clearly told the Council, “can be absorbed into the operating budget. . . . It would represent 2.55 cents of the town’s current 22 cents of ad valorem tax rate.”
The rub is the “what-if” of new projects or unanticipated expenses for FY 2019-20.
Say, for example, the Town Council voted to take on building a sidewalk along the east side of South Dogwood Trail, as the Capital Infrastructure Improvement Planning (CIIP) Committee discussed doing at its Nov. 15 meeting. With only $654,870 appropriated for “infrastructure improvements,” the Town would be lacking in necessary funds.
Mr. Rascoe responded to speculation like this from Town Councilman Fred Newberry that, if Council, indeed, proposed new projects for 2019-20, “You would certainly have to also consider increasing revenues [i.e., raising taxes] for your increased budget or using the town’s undesignated fund balance at that time.”
As of June 30, 2018, according to Ms. Osborne’s audit, the Town had an unassigned fund balance of $4,752,187, of which $1,750,000 must be maintained as “working capital.”
She also said that the $4,752,187 is about 80 percent of the Town’s “annual general fund expenditures.”
Ms. Osborne, a CPA who is owner of Dowdy & Osborne, LLP, in Nags Head, reported that the Town is in “great financial condition.” In FY 2017-18, revenues exceeded expenses by $617,759, she said. Revenues from land-use, occupancy, and sales taxes were all up, as were investment earnings.
CIIP COMMITTEE
The discussion among Council members about absorbing the debt service into the general operating budget was a thoughtful one. Councilman Conners, who is a co-chair of the CIIP Committee, with Mayor Tom Bennett, said he would consider transferring some of the $654,870 annual appropriation for infrastructure “back to the general budget,” if it was needed.
“I’m just feeling very cautious here,” Mr. Conners said during deliberation over the fire-station debt.
At the CIIP meeting a week later, however, Mr. Conners expressed an interest in building sidewalks throughout Southern Shores, especially on South Dogwood Trail, which he called a “thoroughfare,” according to a Beacon correspondent who attended the meeting.
Mayor Bennett, the correspondent reported, expressed an interest in widening and straightening South Dogwood Trail. Generally speaking, Mr. Conners and the Mayor agree with each other and obtain a majority of three on the five-man Council with Councilman Chris Nason’s vote.
In fact, Mr. Nason’s suggestion that the word infrastructure be added to what was once just the capital improvements committee resulted in the committee’s current name, which I’ve seen in various word combinations. He wanted “to include paths,” Mr. Nason said, at the Nov. 7 Council meeting.
But 5-foot-wide concrete sidewalks—which, incidentally, are not every property owner’s preference in a beach and maritime forest environment—are not part of a town’s “infrastructure.” Roads, bridges, water supply, and other services and facilities necessary for an economy to function constitute infrastructure.
According to the correspondent’s report, Town Engineer Joe Anlauf of Deel Engineering recommended dividing South Dogwood Trail into three sections/phases, for purposes of building a sidewalk, similar to the one that was built recently on East Dogwood Trail. Mr. Anlauf designated the first section/phase as being from the three-way stop at East Dogwood Trail south to the Tall Pine Bridge, a relatively easy project.
Mr. Anlauf reportedly is already at work designing the sidewalk with the existing road footprint, not with a wider one, as suggested by the Mayor. He recommended starting with an easy section and leaving other sections that have more curves and hills, and the need for more tree removal, for later.
According to The Beacon’s correspondent, Mayor Bennett suggested an FY 2019-20 budgetary allocation of $250,000 for the first sidewalk section on South Dogwood Trail.
Line items for the Town’s FY 2019-20 budget will come together in April and May next year, and budget approval will occur in June. The designation of infrastructure projects for the fiscal year, however, does not occur until July and is based on recommendations from the CIIP Committee.
So, can the Town pay for the new fire station debt without raising property taxes? The answer depends on what other projects a majority of the Town Council decides to tackle and whether unanticipated expenses, such as those related to a severe storm, arise.
There is always the possibility, as Town Councilman Newberry suggested, that current budgetary expenses could be reduced, but I have not seen majority support for that strategy in budget-planning sessions held by the Council during the past few years.
The property at 98 Ocean Boulevard as it appears today.
During the Nov. 7 Town Council special meeting, Councilman Christopher Nason addressed the suggestion that he had a financial interest in SAGA Construction & Development’s proposed 12-bedroom “mega”-houses on the Southern Shores oceanfront and that, indeed, he or his architectural firm had designed them.
In setting the record straight, The Beacon believes that Mr. Nason, an architect who owns Beacon Architecture & Design in Kill Devil Hills, raised some serious questions about whether he is serving the public interest, as his elected office compels, before his own.
All Town Council members are governed by a town code of ethics, whose content is largely based on North Carolina statute. The code requires Town Council members, in significant part, to be “independent, impartial and responsible to the people.” Council members must “uphold the integrity and independence” of their office; “always avoid any impropriety or the appearance of impropriety” in all of their activities; and “always minimize the risk of conflict of [their] private life dealings with [their] official duties.”
Did Councilman Nason do so? You can decide for yourself.
I have not concluded that he violated the code of ethics–ethics is a gray area–but I find some of his actions troubling, in light of the public office he holds.
***
During the public-hearing portion of the special meeting, Chicahauk homeowner, Shelley Tarleton, pointedly questioned whether someone on the Town Council, whom she did not name, would benefit financially from SAGA’s proposed projects at 98 Ocean Blvd. and 134 Ocean Blvd.
Mr. Nason decided to respond to Ms. Tarleton’s charge, acknowledging that he knew she was speaking about him. Mr. Nason noted that Gard Skinner, another Chicahauk property owner, had asked him in an email “during the deliberation process” before the special meeting if he or someone in his firm was the architect on the SAGA projects. Mr. Nason said he called Mr. Skinner and assured him that “We did not design these structures.”
“In fact,” he elaborated at the meeting, “we had the opportunity to design them, but very honestly, did not feel it was appropriate for the Town of Southern Shores; it wasn’t a good fit for us. Realistically, it probably wasn’t a good fit for them either.
“So, on a personal level,” he continued, “I just didn’t think it was appropriate to this area. That doesn’t mean they can’t do it—there’s other folks out there who can perform these services for them.”
Mr. Nason concluded his remarks about a potential conflict of interest by acknowledging: “. . . I have worked for SAGA in the past, but I’ve never worked for them in the Town of Southern Shores.”
He then addressed the appropriateness of SAGA building its mega-houses in Southern Shores.
“As an architect,” he said, “I am acutely aware of the surroundings. Our town isn’t like all the other towns.”
There “are a ton of these [SAGA] houses,” he said, in Corolla, which he characterized as a “whole different ball game” from Southern Shores. In Corolla, he said, “the cat’s already out of that bag.”
But, The Beacon wonders, won’t the cat be out of the bag in Southern Shores when SAGA builds its 5,981-square-foot, 12-bedroom, 12-bathroom, 17-parking-space house with septic capacity for 24 people at 98 Ocean Blvd., where it last week demolished a vintage flattop?
According to Planning Director Wes Haskett, SAGA filed its building-permit application for 98 Ocean Blvd. on Nov. 5, and it is currently under review. The photo above depicts the property as it appeared the morning of Nov. 17.
I find it troubling, first, that SAGA approached Mr. Nason for these jobs, even though, as he told me in a subsequent telephone call (see below), that there are only a few architects on the beach. That action implies that SAGA perceived little or no risk in contacting Mr. Nason, even though he is a Town Council member in a town that repelled the Kill Devil Hills-based developer less than three years ago and could initiate action to do so again.
The Town’s 6,000-square-foot maximum house size ordinance was enacted Jan. 22, 2016, in direct response to SAGA’s plan to build a 16-bedroom wedding-destination/ “event” house at 64 Ocean Blvd. The opposition from Southern Shores property owners at that time was intense, and Mr. Nason was in the thick of it, his business relationship with SAGA being hotly called into question then. SAGA corporate officials, who were seen at the Jan. 22 hearing, experienced community outrage firsthand.
Mr. Nason and Mayor Tom Bennett voted against the 6,000-square-foot limitation, but it passed 3-2, with Town Councilmen Leo Holland, Gary McDonald, and Fred Newsberry in the majority. Mr. McDonald, who made the motion to approve the zoning text amendment that changed maximum house size, is on record as having favored a 5,000-square-foot limit.
I also find it troubling that Mr. Nason admits that, “on a personal level,” he did not think SAGA’s proposed houses were “appropriate” for Southern Shores, but he apparently did not consider his responsibilities as a public official.
Question: As a public official, and therefore, a steward of the public’s trust, should Mr. Nason have reported his contact with SAGA about designing the two houses, knowing that the public he serves doesn’t want the Corolla cat out of the bag in Southern Shores?
That was abundantly clear in January 2016.
Question: Should Mr. Nason have participated in any debate, discussion, or deliberation that concerned the Town Council’s response to the proposed SAGA developments?
The Town Council had the option of fast-tracking an amendment to the Town zoning code that would have prevented at least one of the two proposed SAGA houses, from going forward—lowering the maximum house size from 6,000 square feet to 5,500 or 5,000 square feet, for example—but it did not explore any such options.
SAGA still does not own 134 Ocean Blvd. and cannot apply for local permits until it does. More than a month has passed since SAGA’s plans for 134 Ocean Blvd. became public knowledge, ample time to take preventive action.
***
As I reported 11/7/18, the special meeting initially troubled me because the majority bloc of Mayor Bennett, Councilman Nason, and Councilman Jim Conners rallied around the lengthy motion made by Mr. Conners to create an overlay zoning district and to regulate new construction within it. I felt that the majority had made up its collective mind and would not entertain other viable options, which were offered by Councilman McDonald. The public was force-fed a “done deal.”
After my reporting, I got to thinking about Mr. Nason’s disclosures. On Nov. 9, I emailed him, asking: “When did SAGA approach you with this opportunity?”
When he had not responded by Tuesday, Nov. 13, I called him at his office and asked him again: When had SAGA contacted him? I caught him by surprise.
He replied: “About a month or two ago.”
When I suggested that didn’t seem possible, and I pressed for a more precise answer, Mr. Nason said, “I don’t know the exact dates.” More persistence from me drew the response: “I’m not sure.”
Chris is an acquaintance of mine. We are friendly. He and I have spoken many times in the Pitts Center—always cordially, never with anger or rancor. Full disclosure: I lost to him in the 2015 election for Town Council. I have not taken down my campaign website, which is www.vote4ann.com, because I want Beacon readers to know who I am, not because I plan to run again.
I was not when I called him, nor am I now, out to “get” Chris. I just wanted to know how long he had known about SAGA’s plans and what his business association is with the developer. I think such information falls within the purview of the public’s right to know.
It has long been said in ethics law that a public official “cannot serve two masters,” and the one he/she must serve is the public.
Chris quickly became uncomfortable with my questions, saying, “I’m not prepared to give an interview,” and “I’m not going to get grilled on this stuff.”
When I asked him to tell me about the work he has done with SAGA, he replied: “No comment.”
When I asked if he has any ongoing projects with SAGA, he also replied: “No comment.”
I asked him if he had told anyone, such as the Mayor, about SAGA giving him the opportunity to design these houses: “No comment.”
I suggested to Councilman Nason that he fully disclose to the Southern Shores public his past, current, and anticipated relationship and projects with SAGA. I believe that the integrity of his elected office demands such transparency. If he didn’t want to be in a position of revealing details about his business dealings and his clients, he shouldn’t have run for Town Council.
***
My telephone messages to Amit Gupta, president of SAGA, and Gracelyn Mirick, the developer’s assistant construction manager—whose extension number is included on CAMA permit applications—went unanswered last week.
I did manage Friday to reach Ralph Lasater, the architect with Community Planning and Architectural Associates who designed the houses for SAGA, in his Kitty Hawk office. I identified myself as a blogger, with The Beacon. I don’t do “gotcha.”
Like Mr. Nason, Mr. Lasater was caught off-guard by my call. He was reluctant to say much without talking with his client first. He did tell me, however, that he had been working on the SAGA projects “about four months now” and that he had put “more effort” into them, in order “to meet [SAGA’s] goals and the goals of the town.”
According to the public record, the construction plans for the CAMA permit at 98 Ocean Blvd. were submitted by SAGA on Aug. 13, 2018. Mr. Lasater’s time frame of four months fits with this date.
SAGA’s contact with Councilman Nason, therefore, appears to date back to July or earlier. It was on July 10 that Mr. Nason made an impassioned argument at a Town Council meeting in favor of a zoning text amendment (ZTA 18-04) that would have changed the calculation of the 30-percent lot coverage limit in town.
Had Mr. Nason been successful in getting the ZTA passed, as written, up to 500 square feet of the water area of a swimming pool and 50 percent of the area consumed by pervious materials and turfstone/pavers for driveways and parking areas would have been eliminated from the building footprint, i.e., the 30-percent lot coverage. Unquestionably, SAGA would have directly benefited from these changes.
I am not suggesting that Mr. Nason was doing SAGA’s bidding here. I certainly have no evidence of that. I am suggesting, however, that knowing that Mr. Nason has a business association with SAGA and was offered the design work at 98 and 134 Ocean Blvd. casts a different light on his previous actions. How can it not? That’s the premise behind the phrase, “appearance of impropriety.”
Doubt creeps in: Can he be impartial?
Mr. Nason tried to get the lot-coverage changes enacted in 2017 in the form of ZTA 17-03, which a majority comprised of Councilmen Newberry, McDonald, and Holland defeated in September 2017. The ZTA was resurrected, with only a minor change, by the Mayor and Councilmen Conners and Nason at the Feb. 6 Town Council meeting—just three months after Mr. Conners’s election—in the form of ZTA 18-04.
***
Does it matter that Town Councilman Christopher Nason knew about the SAGA houses months ago, and kept this knowledge secret from the public that he was elected to service, if he has no financial or personal interest in them?
If disclosure was not incumbent on Mr. Nason earlier, should he have disclosed “the opportunity” that SAGA extended to him to design these houses as soon as the news of the developments broke in October?
Should he have disclosed the nature of his relationship with SAGA and any ongoing projects that he may have with the developer?
Does it matter that Mr. Nason participated in Town Council’s deliberations, discussions, and decision-making—outside and within a public forum—precipitated by the SAGA developments? And that, perhaps, as a consequence, there was no movement within the Council to take preventive action? To stop the development at 134 Ocean Blvd.?
I spoke with Mayor Bennett shortly after my telephone call with Mr. Nason. He said he first learned about the SAGA houses in early October and that Chris was approached by SAGA “some time ago.”
He saw no problem with Councilman Nason’s actions. He characterized the architect as “forthright” about his business dealings, noting that he has recused himself before.
(I remember only one recusal since his 2015 election: Mr. Nason was the architect of a project upon which the Town Council was directly voting, that of the drive-through Nu-Quality Ice Cream shop at 5415 N. Croatan Hwy., between the banks in front of the Marketplace. The property owner, Spiros Giannakopoulos, was/is Mr. Nason’s client.
(But it was not until late in the approval process—which began with a Planning Board hearing on April 16 and concluded June 5 in the Town Council, with a vote on the second reading of a zoning text amendment that former Planning Board Chairman Sam Williams wrote in order to change the town’s drive-through ordinance to accommodate Mr. Nason’s client—that Mr. Nason’s professional association was publicly and openly revealed. It was on June 5. Mr. Nason was absent for the first reading of the ZTA in May.)
“Chris is trying to maintain relationships with developers and builders,” Mr. Bennett told me on the telephone, something the Mayor views as understandable, considering his profession.
I certainly don’t begrudge Mr. Nason a livelihood.
But I invite Mayor Bennett to tell his constituents about the process—the who, what, when, where, why, and how—that led to the Town Council’s lengthy motion, which Mr. Conners read and Mr. Nason seconded, at the special meeting, and to its decision not to act quickly to stop the SAGA developments, at least the one, when there was still time.
The public’s business should be conducted in public.
The appearance of impropriety, even if no impropriety occurred, always undermines the public’s faith that a process is fair. Full disclosure should be every mayor’s mantra.
It may well be that the issues I’m raising here are better resolved at the ballot box. Architects, builders, and other development and construction professionals may simply be poor choices for public office in a town that is being transformed, and with opposition from property owners, by the building industry. One sure way to resolve any concerns about conflicts of interest is to elect people who won’t have them.
It’s difficult to find free clip art to illustrate a story about septic capacity.
As The Beacon reported 11/7/18, Town Attorney Ben Gallop enumerated at last week’s special meeting 12 legal options for preventing high-occupancy houses in Southern Shores—such as the two 12-bedroom, 17-parking-space structures with septic capacity for 24 people that SAGA proposes to build on the oceanfront—that he did not recommend. Among them were limitations on septic-use capacity.
In his “risk-reward analysis,” Mr. Gallop supported the position that the Senate Bill 25 amendments to N.C. General Statute §160A-381, which took effect in 2015, prohibit towns from regulating septic-use capacity because such a limitation would be an “indirect” application of a regulation on the number of bedrooms. He essentially argued in favor of the Outer Banks Home Builders Assn.’s interpretation of NCGS §160A-381(h).
But not all land-use lawyers agree with this interpretation. Among them is Professor David W. Owens, of the University of North Carolina School of Government, whose Oct. 30, 2018 letter to Mayor Tom Bennett, expressing a different view, was read aloud by the Mayor at the Nov. 7 special meeting.
Professor Owens, who lives part-time in Southern Shores, is the author of the basic legal reference, “Land Use Law in North Carolina.” Before joining UNC’s faculty in 1989, he spent 10 years with the N.C. Division of Coastal Management, according to his profile on the UNC School of Government’s website.
Mr. Gallop acknowledged Professor Owens as a foremost authority on N.C. land-use law and even held up the professor’s textbook as a go-to source for him.
This time, however, the Town Attorney disagrees with the expert.
The new state law, 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 that kept occupancy in check since its enactment in 2001. [See The Beacon’s blog, 10/11/18.]
The new statutory subsection further specifies that:
“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 . . . ”
Mr. Gallop said that a limit on the septic-use capacity of single-family dwellings would be an “indirect” application of a regulation on the number of bedrooms. In other words, it’s another way of restricting the number of bedrooms without restricting the number of bedrooms.
In his letter to the Mayor, Professor Owens notes that another subsection of the law, NCGS §160A-381(a) “expressly allows the town to regulate both the size of buildings and the density of population. . . . [The town may] regulate the density of population by setting maximum septic and parking capacity for residential lots.”
Professor Owens then cites a 2014 N.C. Court of Appeals’ case upholding a Chapel Hill zoning restriction that limited the number of cars that could be parked at residences in a particular zoning district as a “good illustration of this authority.” At the Nov. 7 special meeting, Mr. Gallop disagreed with Professor Owens’s reading of the legal holding (outcome) of this case, Patmore v. Town of Chapel Hill, but I don’t believe that Patmore need come into the septic-use capacity question.
The most relevant section of Professor Owens’s letter is his conclusion that:
“If the town elects to include [a septic-use capacity] restriction in your ordinance, it should be based on regulating maximum occupancy by limiting the total septic capacity allowed per lot, setting a maximum daily flow rate, or using a similar measure based on occupancy and density, not the number of bedrooms in the structure. It should be the maximum number of occupants of a residence that is regulated, not how many rooms are used to house those occupants.”
I agree. As Professor Owens describes the “land use and zoning concern,” it is “having twenty-four occupants of a single-family home, whether they are all in a single bunkroom or are in twelve bedrooms.” It’s occupancy, not bedrooms.
I have attached a copy of Professor Owens’s letter to the Mayor here: Large house
It is part of the public record.
The Southern Shores Town Code used to limit occupancy with an ordinance that defined a single-family dwelling as “consisting of no more than seven bedrooms or septic capacity for more than 14 people.”
I see no reason why the Town couldn’t resurrect the provision limiting septic capacity to no more than 14 people, using ordinance language that stays steer of any reference to the number of bedrooms as the means by which septic capacity is determined. How the Dare County health department determines septic capacity is not directly the Town’s concern.
Members of the Town Planning Board indicated at their Oct. 15 meeting that they were interested in pursuing occupancy control via a restriction on septic capacity.
Member Andy Ward, a longtime Southern Shores homeowner and builder, said then that he believes such a restriction “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.” [See The Beacon’s blog, 10/16/18.]
Mr. Ward spoke at the special meeting in his capacity as a private citizen and renewed this appeal. After Mr. Gallop opposed such a septic-capacity restriction, however, only two of the five Town Council members showed an interest in pursuing one. They were Councilmen Gary McDonald, who made a motion to have Town staff prepare a zoning-text amendment that included a septic-capacity limit, and Fred Newberry.
Mr. McDonald’s motion was defeated, 3-2, with the Mayor and Councilmen Jim Conners and Chris Nason voting against it. [See The Beacon’s blog, 11/7/18.]
Did Southern Shores homeowner and SSCA board member Rod McCaughey emerge victorious in his write-in campaign for a seat on the Dare County Soil and Water Conservation District Board of Supervisors? Inquiring minds want to know.
Answer: We’ll know on Nov. 16 at 11 a.m. That’s when the Dare County Board of Elections will canvass the results for all of the local elections held on Nov. 6, according to a DCBOE spokeswoman.
The DCBOE will upload all of the county results on canvassing day to the N.C. State Board of Elections and Ethics Enforcement, which will post them on its website.
Mr. McCaughey worked the polls in Southern Shores on Election Tuesday for nine hours, he told The Beacon, an experience that he found both rewarding and educational.
If elected, Mr. McCaughey would succeed one of the three elected members of the five-member nonpartisan Soil and Water Conservation District Board of Supervisors, whose terms are staggered with those of two supervisors appointed by the county Soil and Water Commission. The supervisors serve for four years. Mr. McCaughey’s term would begin in December. More than 2,000 write-in votes were cast for the two vacancies on the board.
I assume all of you know who won the other county elections and all of the state seats, both judicial and legislative, that were being contested. The Outer Banks Voice, the Outer Banks Sentinel, and other local media have covered all of the results. The State Board of Elections’ canvassing of statewide elections occurs on Nov. 27 at 11 a.m.
CAPITAL IMPROVEMENT PLANS
The Town’s Capital Improvement Plan Committee, which is chaired by Mayor Tom Bennett and Town Councilman Jim Conners, will meet Thurs., Nov. 15, at 2 p.m., in the Pitts Center, to discuss ongoing FY 2018-19 projects and to review the list of needed street improvements recommended for this fiscal year.
According to the committee agenda posted on the Town’s website, the seven committeemen also will consider recommending to the Town Council that two large trees along the new East Dogwood Trail sidewalk be removed: one at 63 E. Dogwood Trail and the other at 57 E. Dogwood Trail. Plans for the sidewalk called for no trees greater than 8 inches in diameter to be removed; hence, the need for approval from the Council.
The committee also will address possible needed improvements that “have emerged for discussion,” according to the agenda, including action on South Dogwood Trail.
The CIP committee meeting is public, of course, but no time is set aside for public comment. Typically, members of the public have the opportunity to speak at the conclusion of the meeting, if they wish.
Before I delve into the details of yesterday’s surprise motion, I’d like to return to a question that all interested Southern Shores property owners have, but wasn’t adequately answered by the Town Council during the special meeting: Can the Town stop the two proposed SAGA houses?
The Mayor said at the beginning of yesterday’s meeting that the Town could not deny the two CAMA permits that were issued. It had no choice. I dispute this, and I, along with at least six other property owners, have filed with the N.C. Division of Coastal Management petitions for third-party hearings on appeals of these permits. Our goal, albeit a long shot, is to secure a suspension of the permits first, and then a rescission.
The process we have invoked is a State administrative process, and it has no bearing on the local-permitting process. No “stay” (stoppage) in the local process has occurred because of our petitions.
When SAGA’s proposed 16-bedroom wedding-destination structure at 64 Ocean Blvd. became public knowledge, the developer was not in the permitting process. According to Town Attorney Ben Gallop, whom I asked yesterday after the morning meeting, SAGA had not filed an application for any permits, so it was in a different legal position than it is now with the properties at 98 Ocean Blvd. and 134 Ocean Blvd.
SAGA has received one local lot-disturbance permit for 98 Ocean Blvd., allowing it to do demolition. I am not aware if it has filed an application for the building permit.
SAGA does not yet own 134 Ocean Blvd., so it cannot apply for any Town permits.
Can the Town stop either or both of these proposed mega-houses? This is something that I adamantly believe the Town Attorney should have directly addressed yesterday. Instead, he told us what he did not recommend. If there is a slim possibility of legally stopping either or both of these mega-houses, he should have told the public how. Mayor Tom Bennett should have instructed him to do so, and, in the absence of such an instruction, one of the Town Council members should have specifically asked Mr. Gallop.
The question to ask a lawyer is not, can we stop these houses, but HOW do we stop these houses? Mr. Gallop is risk-averse. I say, let’s roll the dice.
I am not a land-use lawyer. I do not know zoning law, like the back of my hand. But I am adept at legal research, and I believe I could have come up with an option that gives the Town a fighting chance to stop the construction of SAGA’s proposed houses. There are always “legal hurdles to overcome,” as Mr. Gallop said before enumerating the options that he did not recommend. But sometimes it’s worth the time and money spent trying to hurdle them.
As I said in an earlier blog this week, the Town Attorney works for us. We are the Town, and we have spoken out loudly against these structures. It would appear that we were heard, but not listened to.
THE MOTION
As The Beacon reported yesterday, the Southern Shores Town Council unanimously passed a motion at the special meeting on high-occupancy houses to direct Town staff to work with the Town Planning Board to draft a zoning text amendment (ZTA) that it believes would prevent future developments like the 12-bedroom structures that SAGA Construction proposes to build at 98 Ocean Blvd. and 134 Ocean Blvd. The ZTA would do two things:
1) create an “overlay” zoning district that would consist of properties east of N.C. Hwy. 12 and properties that abut the west side of Hwy. 12 and
2) set forth zoning regulations, such as building height, lot coverage, and parking restrictions, etc. (see below), for properties in the overlay district that would depend upon whether the houses on these properties were 4,000 square feet or smaller or between 4,000 and 6,000 square feet.
Councilman Jim Conners made the motion, and Councilman Chris Nason seconded it. The following is the text of the motion that Mr. Conners submitted to Town Clerk Sheila Kane yesterday, and she kindly forwarded to me, at my request:
“I MOVE that Council direct Town staff to draft a proposed zoning text amendment to the existing Town Code, for Council’s review at its December meeting, proposing an oceanfront area residential overlay district to encompass all properties east of N.C. Hwy. 12 and those properties abutting the west side of N.C. Hwy. 12, as well as development standards for this overlay district that will include the following:
“1. Setbacks: side setbacks of 20 feet for structures up to 4,000 square feet (“SF”);
side setbacks of 25 feet for structures over 4,000 SF and not greater than 6,000 SF;
front setback of 25 feet for structures up to 4,000 SF;
front setback of 50 feet for structures over 4,000 SF and no greater than 6,000 SF;
rear setback of 25 feet for all structures or as established by CAMA regulations;
impervious paving setback of 10 feet from side property line for structures up to 4000 SF;
impervious paving setback of 15 feet from side property line for structures over 4,000 SF and no greater than 6,000 SF
“2. Building height: 35 feet for structures up to 4,000 SF; 28 feet for structures over 4,000 SF and no greater than 6,000 SF
“3. Lot coverage: 30 percent for structures up to 4,000 SF; 25 percent for structures over 4,000 SF and no greater than 6,000 SF
“4. Refuse/recycling: a number recommended by Town staff of trash receptacles required for all structures up to 4,000 SF; a number recommended by Town staff of trash receptacles required for all structures over 4000 SF and no greater than 6,000 SF.
“5. Landscape buffer: 10 foot-wide single row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) for structures up to 4,000 SF along the side property lines; 15 foot-wide, double-staggered row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) for structures over 4,000 SF and no greater than 6,000 SF along the side property lines; 10-foot-wide single row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) along the front property line for all structures no greater than 6,000 SF. [Mr. Conners underlined these phrases.]
“6. Parking: all parking spaces to be 10-feet-by-20-feet; all parking spaces to be adjacent to a two-way, 18-foot-wide (minimum) drive aisle; no stacked parking allowed.”
When I heard this motion yesterday, my thoughts were, in order:
Setbacks: How do these requirements square with the setback requirements in restrictive covenants of deeds? I know they’re there because I’ve seen them. The covenants differ by blocks, but a setback from the road (Ocean Blvd.) of 25 feet was standard in many deeds of oceanfront properties. Side setbacks were typically 10 feet.
Height and lot coverage: Wow, they’re looking to lower the height restriction and lot coverage on houses between 4,000 and 6,000 square feet. Thank you! And good luck.
Trashcans: OK. No big deal, but a permissible regulation.
Landscape buffers: You must be kidding. So now my siblings and I, who own a 1,700-square-foot oceanfront cottage that our parents built in 1971, have to plant landscape buffers, which we don’t like, don’t need, and have no interest in paying someone to tend, or—what?— we’ll be fined? The landscape police will be after us? We don’t care for landscaping and lawns. We like the wild, natural, untended look. So, not only would we be coerced into planting vegetation that we don’t like and we don’t want, we would be coerced into planting vegetation buffers 10 and 15 feet wide!! That’s huge and expensive, especially on deep land parcels, like the one we own.
Frankly, when compared to such governmental overreaching, SAGA starts to look good. Is it a coincidence that Mr. Conners is in the landscaping business?
I know that 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” is permitted under N.C. General Statute §160A-381, the building designs law that the State Legislature amended in 2015, resulting in the bedroom restriction being invalidated, but this is ridiculous.
Parking: How large is the standard parking space? Ten-by-20 seems large to me. I like the idea of prohibiting “stacked” parking, but how is that defined?
My bottom-line assessment, without doing a lot of thinking, is that while I generally like the overlay district concept, as framed in the motion, it seems way too complicated to establish and administer. I also envision many challenges to it. The arbitrary differentiation of house sizes is especially problematic. And, when questioned by Councilman Gary McDonald yesterday about the area covered by the district, Mr. Conners defined a very broad area that includes all west-side properties along Duck Road and along Ocean Boulevard in the 25-mph zone, north of the fork in the road. There is considerable diversity in the size of lots in this broadly defined area.
Would all existing developed properties be “grandfathered” in? If so, what happens when they’re sold and houses are torn down?
I am in Mr. McDonald’s camp about new regulations to control high-occupancy houses: Make them simple. I was disappointed yesterday that his ideas were summarily dismissed by Councilman Conners, Mayor Tom Bennett, and Councilman Chris Nason. These three had clearly conferred before the meeting and settled on the overlay district/regulations within the district as the way to go. I believe more open-ended discussion in a public forum should have occurred before yesterday and before a motion was prepared.
The State’s open meeting law exists for a reason, and that is to ensure that government officials do the public’s business in the open and on the record. When members of public bodies, such as the Town Council and the Planning Board, arrange to have no more than two of their members sitting down in the same room for a meeting—but then later call, email, or text a third member, thus involving a majority of that body—they may not violate the letter of the open meeting law, but they tamper with its spirit and intent. Such public-body members should seriously think about holding more public meetings.
Two meeting scheduling changes made since yesterday morning’s meeting affect the progress of the proposed ZTA: First, Planning Director Wes Haskett announced last night that the Planning Board’s Nov. 26 meeting, which was a rescheduling of its Nov. 19 meeting, has been canceled because no applications have been received. Why the Planning Board needs to receive applications in order to meet and continue its ongoing business eludes me. Second, the December meeting of the Town Council has been rescheduled from Dec. 4 to Dec. 11, at Councilman Fred Newberry’s request. Mr. Newberry is having knee surgery earlier in December.
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FIRE STATION APPROVED, FUNDED
As I reported late yesterday, the Town Council unanimously voted to approve construction of the new $5.4 million SSVFD fire station and to fund it. It also unanimously approved the new 10-year fire services (FY 2019-2029) contract with the SSVFD.
As The Beacon reported 11/5/18, A.R. Chesson Construction Co. of Elizabeth City submitted the winning bid for the fire-station project of $5,409,223. The SSVFD selected United Financial of Asheville to service the debt. United Financial offered financing over a 25-year term of $5,419,223, at an initial interest rate of 3.71 percent. The interest rate would be fixed for the first 10 years and reviewed at the end of the 10th year. The mortgage amount includes $10,000 over Chesson’s bid to cover “regulatory inspections as required by code,” according to SSVFD Chief Edward Limbacher.
Town Manager Peter Rascoe informed the Town Council last night, as he did in a Nov. 1 memo, that if the Town Council took on this debt, the impact on the Town’s annual budget, starting in FY 2019-2020 and continuing for at least nine fiscal years thereafter, would be an additional annual expense of $333,551.96, if the debt were paid in quarterly payments, or $334,484.78, if it were paid in two semi-annual payments.
I leave more numbers about where this money would come from—a point thoroughly discussed at last night’s meeting—for another day.
[The following blog replaces one that I posted earlier today, before I could reach some of my sources.]
The Southern Shores Town Council unanimously passed a lengthy motion at this morning’s special meeting on high-occupancy houses to direct Town staff to work with the Town Planning Board to draft a zoning text amendment (ZTA) that would do two things:
1) create an “overlay” zoning district that would consist of properties east of N.C. Hwy. 12 and properties that abut the west side of Hwy. 12 and
2) set forth zoning regulations, such as building height, lot coverage, and parking restrictions, for properties in the overlay district that would depend upon whether the houses on these properties were 4,000 square feet or smaller or between 4,000 and 6,000 square feet.
Councilman Jim Conners made the motion, reading from a prepared document that Town Attorney Ben Gallop most likely drafted. The creation of the overlay zoning district was one of three options discussed by the Town Council to address property owners’ concerns about SAGA’s proposed plans to build 12-bedroom, 12-bathroom, nearly 6,000-square foot structures with 17 parking spaces and septic capacity of 24 people at 98 Ocean Blvd. and 134 Ocean Blvd. The Council did not take any action that would prevent these two developments from going forward; it focused instead on preventing future similar structures.
After reading his motion, Mr. Conners said he wanted “to get a concept out there,” the concept being that of an overlay district for oceanfront and oceanside properties, which often are improved with rental houses. Houses in this new zoning district, according to Mr. Conners’s motion, would be specially regulated according to setbacks, building height, lot coverage, number of trash receptacles, landscape buffers, and parking-space size, all zoning matters that the Town has the legal authority to regulate.
Mr. Conners also included in his motion that Town staff would report back to the Town Council at its December meeting, which was changed from Dec. 4 to Dec. 11, at Councilman Fred Newberry’s request (he is having knee-replacement surgery), at tonight’s Council meeting.
Town Councilman Chris Nason quickly seconded Mr. Conners’s motion.
(Note: I did not specifically confirm that Mr. Gallop authored the motion, but after the meeting, the Town Attorney informed me that the language would be easy to transfer to a proposed ZTA. According to Town Clerk Sheila Kane, the motion will be publicly available tomorrow; I will publish it as soon as possible. Ms. Kane also said that the videotape of the meeting may not be online for another week.)
Councilman Gary McDonald suggested another “option” that he thought could be explored simultaneously with the overlay district concept and which he said could have a “more immediate” impact than the comprehensive plan proposed by Mr. Conners. Mr. McDonald suggested that the Town Planning Board look into amending the Town zoning ordinances to redefine the living space considered in evaluating house size as “total enclosed area,” a definition used in CAMA, rather than “enclosed living space,” and to put restrictions on septic capacity and parking spaces.
Mr. McDonald’s motion, which would have benefited from a prepared text, was defeated 2-3, with Councilman Fred Newberry supporting it.
In an earlier blog that I posted before I could speak with Councilman McDonald, I objected to how Councilman Conners summarily dismissed Councilman McDonald’s motion as counter-productive. I suggested that the lengthy motion presented by Mr. Conners was the work of 3/5 of the Town Council: Mayor Bennett, Councilman Chris Nason, and Councilman Conners, meeting or talking during the past three weeks with Mr. Gallop, Town Manager Peter Rascoe, Town Planning Director Wes Haskett, and others who are privy to their confidences.
After tonight’s Town Council meeting, I confirmed that Mr. McDonald was unaware of the content of the motion until he heard it read this morning and that he did not participate in any meetings with any of the people I just mentioned. Councilman Fred Newberry told me that he knew about the motion, but not the details.
I strongly object to a cabal-like form of Town government. There should be both transparency and inclusion in Town government–among elected officials and with the public. I grow weary of the three-person majority of Bennett-Conners-Nason excluding the other two Council members we elected from participation in important decision-making.
Mayor Bennett presented a different option that was better received and did not need a vote, that of lobbying the N.C. General Assembly to undo the damage that it did in 2015 when it took away from towns the authority to restrict the number of (bed)rooms in houses. The State legislature passed a substantial change to N.C. General Statute §160A-381, which deals with zoning power, by adding a section (h) that substantially restricts what towns and counties can do to regulate “building design elements.”
[See the Beacon’s 10/11/18 blog: PROPOSED 12-BEDROOM SAGA HOUSE: WHAT HAPPENED TO THE 7-BEDROOM RESTRICTION IN SOUTHERN SHORES? CAN THE TOWN LEGALLY LIMIT OCCUPANCY?]
“I have strong reason to believe it [lobbying for a change in the law that would restore the town’s authority to limit bedrooms] would work,” the Mayor said.
Mr. Bennett also said he had spoken with “every mayor” in nearby beach towns and that each “will get re-involved.” He characterized the mayors of Duck and Nags Head as having a particularly “strong interest” in undoing the 2015 statutory change and said that the N.C. League of Municipalities is willing to “lobby on our behalf.”
The Mayor asked for property owners’ help in this effort and concluded by saying, “I guarantee I’ll work hard to make it work.”
PUBLIC HEARING, LEGAL ANALYSIS
Fourteen property owners spoke in the public hearing portion of the meeting, which preceded a presentation by Mr. Gallop of his legal analysis, which, in turn, preceded Mr. Conners’s motion. To a person, each speaker was articulate and passionate about the town he or she loves and very thoughtful about the solutions he/she offered to prevent high-occupancy structures such as SAGA’s two proposed “mega”-houses.
Several people found it difficult to speak because they were so emotional about Southern Shores and the history that their family has with the town. I found their tears to be touching, and I congratulate them for getting up, composing themselves, and speaking. Public speaking is never easy, even for those of us who have done it more often than we can remember.
The motion that Mr. Conners read was not knocked out this morning. It was three weeks in the making, and it was an effort that clearly involved Mayor Bennett, Mr. Gallop, Mr. Rascoe, Mr. Haskett, and, most likely, Mr. Nason, and some Planning Board members.
I believe the text of the motion, or Mr. Gallop’s legal analysis, should have been in the meeting packet for the special meeting, instead of all of the irrelevant reference materials that were there.
Property owners should have been advised before this morning of the direction the Town Council, with advice from the Town Attorney, had decided to go in. If they had been, they could have addressed the “concept” Mr. Conners introduced, rather than advocating for zoning restrictions that Mr. Gallop would later dispose of by including them on his list of controls that he could not recommend.
After the public hearing. Mr. Gallop enumerated, by my count, 12 possible actions that people might think could be taken, such as restricting the number of vehicles that can be parked at a house, limiting septic-use capacity per house, and even treating SAGA’s mini-hotels as commercial properties, but that he could not recommend. He then listed six areas that the Town clearly has authority to regulate: They include building height; the number of stories of a structure; density of population in a location; house size; the percentage of lot coverage; and yard setbacks.
Besides Mr. McDonald’s alternative option, Planning Board member Andy Ward spoke publicly in his capacity as a private property owner to advocate for restricting septic capacity. He offered the opinion of David Owens, a prominent N.C. land-use attorney who lives part-time in Southern Shores, as legal authority for this approach. Mr. Gallop offered a rebuttal to Mr. Owens’s opinion, and the septic-capacity issue went no further.
It seems to me that both Mr. McDonald’s and Mr. Ward’s suggestions were worth exploring and neither was a “quick fix.” They were simply different approaches. The Town Attorney and Town staff could prepare more than one ZTA and offer the public and the Planning Board a choice. In January 2016, when the Town Council passed the ZTA that established the maximum house size of 6,000 square feet, it chose from three zoning text amendments before it. Mr. Gallop is quite capable of preparing multiple ZTAs.
It was troubling to me that, through Mr. Conners’s motion, the Town Council presented a “done deal,” even though I think the deal, i.e., the concept, is an excellent one. Process is everything, and the process employed to arrive at the lengthy motion leaves me uncomfortable and disappointed.
Other points to report:
Councilman Nason, a local architect with his own company, addressed the suggestion that he had a financial interest in SAGA’s proposed developments and that, indeed, he had designed them. He said that he had “the opportunity” to design these houses, but he declined. He also said that he has worked with SAGA in the past, but that he has never worked with the Kill Devil Hills-based developer in Southern Shores.
Mr. Gallop confirmed for me after the meeting that the Town cannot deny issuance of the building permit for the 98 Ocean Blvd. development unless there is something wrong with SAGA’s application. As I reported yesterday, the Town on Monday issued the lot disturbance-stormwater management permit for demolition on the site. (See photo above.)
As for the proposed development at 134 Ocean Blvd., SAGA still does not own that property. The settlement has been postponed and is now set to occur Nov. 14, according to my sources. I asked Mr. Gallop if, theoretically speaking, the Town could stop this development by enacting a change in the maximum house size ordinance today, tomorrow, i.e., very soon—decreasing it to 5,000-square-feet—and he replied yes. Although SAGA has received a CAMA permit for this property, it has not filed a local building application yet. This is just theoretical. As a practical matter, the Town would have to expedite action, and provisions of the Town Code would hinder such expedition.
The Mayor also reported that he had met with the owners of SAGA and told them to “expect a lot of negative feedback.” He said he asked them if they would sell their properties to the Town, and they replied they would not. He also asked them if they would reduce the number of bedrooms and bathrooms, in order to conform with Southern Shores’ “low-density, family character,” and they said they would not.
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LATE-BREAKING NEWS: Tonight the Town Council voted unanimously to approve the conditional use permit application submitted by the Southern Shores Volunteer Fire Dept. to build a new fire station at 15 Dogwood Trail and to fund the $5,419,223 station, whose construction will begin Jan. 2, 2019. More details tomorrow.
The Town of Southern Shores issued a lot disturbance-stormwater management permit yesterday to SAGA Construction to demolish the structure and foundation of the historic flattop at 98 Ocean Blvd., as well as the driveway, deck-ramp, and septic system on the property.
SAGA intends to build a 12-bedroom, 12-bathroom, 5,981-square foot house with a swimming pool, tiki bar, parking spaces for 17 vehicles, and septic capacity for 24 people on the site—a plan that has aroused outrage and protest from hundreds of resident and non-resident Southern Shores property owners, who have made their views known through social media, emails to the Mayor and Town Council, and an online petition.
SAGA secured CAMA permits last month for 98 Ocean Blvd. and 134 Ocean Blvd., another oceanfront property on which the Kill Devil Hills developer proposes to build a nearly identical high-occupancy structure. The Beacon has learned, however, that SAGA does not yet own 134 Ocean Blvd. According to an informed source who prefers to remain anonymous, the real estate sale is scheduled to close Nov. 14.
Each of SAGA’s proposed structures would be adjacent to popular beach-access properties owned by the Southern Shores Civic Assn., which objected to their characterization as “single-family dwellings.” The residential district in which the developments would be located is for single-family dwellings only.
The Beacon also is aware that seven property owners who own property in the vicinity of one or both of SAGA’s developments have filed timely CAMA third-party hearing requests, seeking permission to appeal the issuance of the two CAMA permits. The property owners allege that SAGA’s developments are inconsistent with the Town of Southern Shores’ land-use plan and, therefore, that State and local permit officials should have denied the developer’s permit applications.
The SSCA did not file a hearing request.
N.C. General Statute §113A-120(a)(8), which is part of the N.C. Coastal Area Management Act (CAMA), requires a proposed development in an area of environmental concern, such as the Southern Shores oceanfront, to be consistent with the local land-use plan before a CAMA permit may be issued.
The chairman of the Coastal Resources Commission reviews all third-party requests for hearings and decides if a hearing should be granted.
The Southern Shores Beacon 