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.
Ann G. Sjoerdsma, 11/25/18