12/13/18: ‘LARGE HOUSE’ ISSUE REFERRED TO PLANNING BOARD; COUNCILMAN NASON ACKNOWLEDGES SAGA AS CLIENT, OFFERS RECUSAL WITHOUT DISCLOSING BUSINESS DEALINGS; GRAPHIC GRAFFITI USED AS POLITICAL TOOL

In the interest of time, which I have less of this week than usual, I will report on the Dec. 11, 2018 Town Council meeting by category, hitting the highlights. (Paragraphs that appear in boldface were added 12/14/18.) But, first, I must print a retraction.

CORRECTION: I erred in my description of the Mediterranean-style house at 64A Ocean Blvd. as being a 10-bedroom house. I looked at Councilman Christopher Nason’s architectural drawings that are on file in the Town Planning Dept. and wrote down that the house has 10 bedrooms. That was a mistake. Brain fog, perhaps. The house has only seven bedrooms. I regret the error and apologize.

Now, the Town’s Tuesday night meeting:

DRAFT “LARGE HOUSE” ZTA: The Town Council did not discuss the content of the Town staff-prepared draft zoning text amendment (ZTA) to regulate high-occupancy houses. This draft came out of Councilman Jim Conners’s motion at the Nov. 7 special meeting.

Instead, after hearing public comment on the draft and considering a motion by Mr. Nason to recuse himself (see below), Mayor Tom Bennett swiftly moved to refer the draft ZTA to the Town Planning Board, with further instructions. (See The Beacon, 11/7/18 and 12/9/18 for background.)

The Mayor’s motion, which passed unanimously, read as follows:

“. . . to refer the draft ZTA-‘Large Homes’ to the Planning Board with instructions to also consider additional zoning requirements for 1) regulating waste-water treatment capacity; 2) regulating use of residential properties for rental; 3) regulating number of water use fixtures in a residence (using water conversion measures to control occupancy).”

(My thanks to Town Clerk Sheila Kane, who provided me with the text.)

During public comment, two Southern Shores resident-builders offered the Town Council an alternative approach to the ocean overlay district in the draft ZTA. Matt Neal, of Neal Contracting Group, Inc., and Mark Martin, of Sandmark Custom Homes, Inc., focused on the use of a single-family dwelling, rather than on building restrictions.

Mr. Neal, who is 2018 president of the Outer Banks Home Builders Assn., proposed curtailing “large” houses through what he called a use-based “High Occupancy Dwelling Option.” He gave Council members a written outline of it, which you may access here: nealoption. The site plan attached to Mr. Neal’s proposal depicts an 11-bedroom, 5600-square-foot house that, he said, could be built in conformance with the draft ZTA requirements—producing an undesired result.

Mr. Neal’s approach calls for creating a zoning definition for “high-occupancy dwelling” and for designating such a dwelling as a “conditional use” in the RS-1 residential district, which encompasses the oceanfront and most of the residential areas in Southern Shores. It also differentiates between the use of such a dwelling as a residence versus its use as a rental. Mr. Neal proposes prohibiting the use of a high-occupancy dwelling as a rental in the RS-1 district.

Mark Martin told the Council that he and Mr. Neal had discussed the draft ZTA and decided that a focus on the “use issue has a lot of traction.” If the Council were to go in the direction of the draft ZTA, Mr. Martin said, you would end up with “a town that’s full of nonconformities,” and the new structures that would be built would be very narrow because of increased side-yard setbacks and have large parking lots in front.

Mr. Neal characterized the building restrictions imposed by the draft ZTA as “onerous.”

The Planning Board meets Dec. 17 at 5:30 p.m. in the Pitts Center. According to Deputy Town Manager/Planning Director Wes Haskett, the draft large-house ZTA is not on the board’s agenda, but he feels certain that the Planning Board will discuss high-occupancy houses, in general.

The late Glenn Wyder, who assumed the Board’s chairpersonship last summer, indicated at the Nov. 7 special meeting and earlier that he supported “regulating waste-water treatment capacity,” i.e., septic capacity, to control occupancy. Planning Board member Andy Ward has endorsed this approach in many hearings, dating back to January 2016.

MY OPINION: While I am pleased that the Town Council referred the large-house/occupancy issue to the Planning Board, I wish it had done so two months ago. I also wish it had called a special meeting in mid-October—in the evening, when daytime working people could attend—after news of SAGA’s proposed developments surfaced, so that ideas such as Mr. Neal’s and Mr. Martin’s could have been heard and discussed. I, too, have thought about carving out an exception for rental houses, but the idea of a conditional use would never have occurred to me.

Mr. Conners’s prepared motion at the Nov. 7 meeting preempted any genuine discussion about various approaches. In fact, the Town Council rejected, by a 3-2 vote, a motion by Councilman Gary McDonald that morning to draft a different ZTA that would have looked at septic capacity, parking, and the definition of “enclosed living space.” Only Councilman Fred Newberry supported this alternative.

It came out later in the Town Council meeting Tuesday night that Councilmen McDonald and Newberry had requested a special meeting in October and had been denied by the Mayor, who scheduled the Nov. 7 morning meeting. “You blew us off,” Mr. Newberry said. (I will have to clarify when this request was made. The videotape did not clear up the matter.)

According to section 6 of the Southern Shores Town Council Rules of Procedure, “any two members of the Council may at any time call” either a special meeting or an emergency meeting of the Council, but they must observe specific written notice requirements to do so. If Mr. Newberry and Mr. McDonald did no more than ask the Mayor to schedule an October special or emergency meeting, then they did not follow proper protocol, as outlined in the rule. (The Beacon will follow this up.)

PROFFERRED RECUSAL BY COUNCILMAN CHRIS NASON/and my opinion of how things went wrong: Before the Town Council took up the draft large-house ZTA, Councilman Nason read a brief statement, in which he noted that, when he first took office, on Dec. 1, 2015, he asked Town Attorney Ben Gallop if he should recuse himself from voting on the large-house matter, which was before the Council then because of SAGA’s threatened 16-bedroom wedding-destination structure.

“I once again ask Mr. Gallop,” Mr. Nason said Tuesday night, “if I should recuse myself from any further votes on this matter.”

MY OPINION: The discussion about Mr. Nason’s recusal went wrong because of a lack of information and understanding by both the Town Attorney, who determined that the relevant State statutes did not require the architect-councilman to recuse himself, and by Town Council members.

Mr. Gallop’s decision, which he based on a reading of North Carolina General Statutes sec. 160A-75 and 160A-381(d), was prefaced by his statement that “the only issue I’m aware of is that Mr. Nason does work for SAGA outside of Southern Shores.”

Mr. Gallop’s lack of awareness caused problems. It was not Mr. Nason’s business association with SAGA Construction and Development that appeared to disqualify him from voting on large-house matters, but rather his current architectural project at 64 Ocean Blvd., and the ongoing construction of 64A Ocean Blvd., which he designed.

I also question whether Mr. Nason has any other clients who intend to build on the Southern Shores oceanfront, whom he has not disclosed. Mr. Gallop might have asked him that question, but he didn’t.

Mr. Nason’s known projects, and any others like them, constitute Mr. Nason’s “financial interest,” for purposes of evaluating his conflict of interest. (sec. 160A-75)

It is in light of these projects that Mr. Nason’s vote on any zoning map or text amendment must be evaluated. Is the outcome of a ZTA vote “reasonably likely to have a direct, substantial, and readily identifiable financial impact” on Mr. Nason? That’s the standard applied in sec. 160A-381(d), which is part of the State zoning statute. That question cannot be answered until Mr. Nason fully discloses who his current Southern Shores oceanfront clients are and what he is doing for them.

That Mr. Gallop failed to recognize this and assumed that the conflict challenge was based only on Mr. Nason’s business association with SAGA was a disappointment to me. That he later admitted that he could be wrong was equally disappointing.

Mr. Nason’s motion to recuse himself was defeated 3-2, with Mr. Nason and Mayor Bennett supporting it.

On Dec. 1, 2015, Mr. Nason disclosed that he was designing a seven-bedroom home for Steve Love and Kathleen Gorman at 62 Ocean Blvd. Mr. Love and Ms. Gorman subsequently bought a 50-foot-wide lot adjoining their property to the north on Jan. 25, 2015, after the Town Council enacted the 6,000-square-foot maximum house size on Jan. 22, 2015. SAGA split this nonconforming lot off from the larger land parcel on which it had proposed to build the 16-bedroom structure and sold it to them. (See The Beacon, 12/7/18.)

Mr. Nason has designed a five-bedroom, 3,606-square-foot house, with 980 more “unconditioned” square feet on the ground floor, for Love/Gorman at 64 Ocean Blvd. Mr. Nason should have disclosed this. He also should have disclosed what, if any, involvement he currently has with the house construction at 64A Ocean Blvd.

Instead, he stated that “the condition when I entered office is unchanged.” That is clearly untrue. His design work at 64 and 64A Ocean Blvd. attests to that.

After Mr. Gallop relieved Mr. Nason of a statutory conflict of interest and impressed upon the Town Council that a Council member has a “duty” to vote, Mr. Nason was able to shift into talking about “a perception of a conflict of interest” in the community, rather than any actual financial interests that he has.

What seemed to sway Councilmen Newberry and McDonald into voting against the recusal motion was Mr. Gallop’s opinion that the following statement in N.C. General Statute 160A-381(d) imposes a “duty” to vote upon Council members:

“A city council member shall not vote on any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member.”

I do not agree with Mr. Gallop’s interpretation. It does not follow logically that simply because a city council member shall not vote on a zoning text amendment if he/she has a conflict, that the negative is true: he/she has a legal “duty” to vote. Obviously, members can abstain. But this is what Mr. Gallop told Town Council members, none of whom is a lawyer.

The N.C. General Assembly knows how to impose affirmative duties if that is what it intends. It doesn’t need to imply a duty through negative phrasing.

‘PERCEPTION OF A CONFLICT’/MR. NASON SAYS FAMILY FEELS UNSAFE

Once Mr. Gallop misstated the issue, he opened the door to Mr. Nason steering clear of his own business dealings—which he never discussed—and talking broadly about a “perception of a conflict of interest.” From that point, in my opinion, he seemed to cast himself as a party injured by all of the factual reporting that I’ve done—none of which he challenged or disputed.

“Continued discussions have become quite a distraction for the town,” he said, urging his colleagues to vote to recuse him.

“It is not worth risking the safety of my home, my family, for an issue that I feel ultimately will be resolved at the state level,” he elaborated.

 “This is tearing the town apart,” he claimed, referencing the “vitriol” and the “animus focused on me,” without giving any examples.

“I do not want my children to feel unsafe in this community,” he implored; but when Councilman Newberry asked for “direct evidence” of his children’s lack of safety, he said, “I’m not going into it.” At no time did he offer any evidence of the claims he made.

This lack of evidence did not stop Councilman Conners from jumping in with yet another attack on “social media,” which, incidentally, he exploited during his 2017 campaign for office when he created a fake persona and set up a fictitious Facebook page. Mr. Conners has admitted perpetuating misinformation through social media and email.

Tuesday night again, Mr. Conners condemned “social media” for the “[negative] attitude within the community” toward Mr. Nason, even though Mr. Nason clearly denied a business association with SAGA, which he, in fact, has and had; did not inform the Town of SAGA’s intentions to build the two 12-bedroom houses on the Southern Shores oceanfront, even though he knew about the plans months in advance; and failed to disclose his business dealings on the oceanfront, despite promoting and voting on changes to the Town lot-coverage ordinance and voting on the nonconforming lots ZTA.

“It has nothing to do with you,” Mr. Conners told Mr. Nason.

Come again?

In the course of his own vitriolic venting, Mr. Conners implied that social-media-generated hostility had led to “drawing phallic symbols on people’s homes.”

He was referring to vandalism at 62 Ocean Blvd. on a house that Mr. Nason designed. I reported on this crime in a Dec. 6, 2018 blog.

But he didn’t get that phallic-symbol stuff from me, folks. In my report, I described a graphic drawing of “male genitalia,” not a phallic symbol. Maybe I’m playing semantics, but it also may be true that Mr. Conners saw the graffiti before it was removed.

According to the police incident report, which I obtained from the investigating officer, similar obscene graffiti was spray-painted on the concrete walkway at the Southern Shores Civic Assn.’s beach access, which adjoins 62 Ocean Blvd. to the south. The officer did not give me photographs, but he described the drawings as “crude.”

Also, according to the police report, builder Allan Hutton, who built the house at 62 Ocean Blvd. and has a crew working on the house at 64A Ocean Blvd., discovered the vandalism the morning of Dec. 5, 2018, and reported it first to Town Manager Peter Rascoe, who, in turn, notified Police Chief David Kole. The time indicated on the police report for Mr. Hutton’s notification is 7:45 a.m., before Town Hall opens.

The estimated value of the damage on the report is $4,500, not $20-$25,000, as Mr. Hutton’s worker, Chris Smith, told me, and I reported Dec. 6. 

TOWN COUNCIL MEETING SCHEDULE: After considerable discussion, the Town Council voted unanimously to eliminate the provision that the Mayor may unilaterally cancel a meeting for “lack of agenda items” and to add a budget planning session on April 30 at 9 a.m. It also approved the dates for the monthly meetings in 2019. The Town Council’s next meeting will be Jan. 8 at 5:30 p.m. in the Pitts Center.

APPOINTMENTS: The Town Council unanimously reappointed three members of the Historic Landmarks Commission, whose terms are expiring, to new two-year terms. They are Lorelei Costa, Richard Perkins, and Tony DiBernardo. The Council also unanimously voted to re-nominate Councilman Nason as the primary Southern Shores representative to the Dare County Tourism Board, starting in January 2019, with Mayor Bennett and Councilman Conners as additional candidates, one of whom the Board may choose, if it wishes.

TIDINGS TO ALL . . .  EXCEPT SOCIAL-MEDIA PROPONENTS, AND MORE GRAFFITI:

Mayor Bennett ended the meeting with some good news and kind thoughts. Thank you, Mr. Mayor.

Mr. Bennett spoke of Southern Shores being debt-free, having the lowest tax rate of all towns on the Outer Banks, boasting a large undesignated-fund balance, and building new homes and welcoming new families. He graciously recognized and thanked a great many people, including the Town staff and many dedicated volunteers in area organizations. He concluded by wishing everyone a merry Christmas and a happy new year.

Councilman Nason echoed these sentiments and then paid tribute to Glenn Wyder, noting that he was a leader who could bridge ideological gaps and bring people together. Mr. Nason spoke of continuing in Mr. Wyder’s spirit to “reach out” to each other. Mr. McDonald also recognized Mr. Wyder.

Mr. Newberry spoke of the positive value of social media, of the ability of bloggers like myself to “tell it like it is so people know.” He emphasized that social media “has a way of spreading the word quickly,” of getting information out. He also asked that the Town newsletter have more news in it.

Only Mr. Conners, who spoke last, sounded a sour note. He returned to “social media” once again, to attack bloggers and people on Facebook who make “allegations and insinuations” and pass along “inaccurate information.” He stressed the damage that social media can do, when opinions are “way over the top,” rather than the benefits of free and open communication.

It’s a marketplace of ideas, as I call it, and no one is forcing anyone to shop there.

I feel compelled to quote Mr. Conners’s own allegations and misinformation from his remarks. He said:

“Is that graffiti on that house directly related to [social media]? I don’t know. But the coincidence—is it a coincidence? It’s an awfully strong coincidence.

“. . . If it talks like a duck, quacks like a duck, flies like a duck, it’s a duck, and I don’t need a police investigation to tell me that it’s a duck.”

Fortunately, the rest of us do put our faith and trust in a criminal investigation conducted by the police, and we don’t jump to biased, unsubstantiated conclusions.

Here’s the link to the meeting videotape: https://www.youtube.com/watch?v=SGNMjhAMnaA&feature=youtu.be

Ann G. Sjoerdsma, Dec. 13, 2018; additions made 12/14/18