6/4/19: BUDGET HEARING, CUT-THROUGH TRAFFIC, SPECIAL EVENTS TOP TOWN COUNCIL MEETING AGENDA TONIGHT; Plus a Look at Legal Expenses

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Come in from the beach and join your neighbors for the Town Council’s meeting today at 5:30 p.m. in the Kern Pitts Center behind Town Hall.

A public hearing on the Town’s proposed fiscal year 2019-20 operating budget and consideration of a citizens’ cut-through traffic committee and further regulations of special events in residences top an unusually varied agenda for the Town Council meeting today, which will be held at 5:30 p.m. in the Kern Pitts Center.

Also on the agenda are announcement of the road projects that the Capital Infrastructure Improvement Planning (CIIP) Committee recommends for FY 2019-20 and appointment of members to an advisory committee to explore opening a Dare County branch library in Southern Shores.

On May 30, the CIIP Committee unanimously approved recommending as its first priority “target” the repair and makeover of Hillcrest Drive, from the road’s intersection with Hickory Trail to the SSCA tennis courts, a length of about 3,700 linear feet. This project, which Mayor Tom Bennett said would cost between $500-$550,000, also would reduce the width at the hilltop once known as Lookout Point.

Rounding out the committee’s top-four recommended projects are 2) East Dogwood Trail, from N.C. Hwy. 12 to Ocean Boulevard, with stormwater improvements; 3) Sea Oats Trail, from Eleventh Avenue north to N.C. Hwy. 12; and 4) Dewberry Lane.

The Council will conclude its new business tonight with a public hearing to consider a 20-foot extension of the cell tower in the SSCA’s Triangle Park, at the Ocean Boulevard-Duck Road split. The Planning Board unanimously approved the extension at its May 20 meeting, subject to explicit conditions. (See The Beacon, 5/21/19.)

American Towers LLC and Verizon Wireless have applied to amend a conditional use permit that the Town issued in November 2013 for the flagpole-style monopole tower, which is currently 130 feet. The extension is being proposed to improve cell-phone coverage and capacity by Verizon, which is not currently on the tower.

If you wish to speak at the meeting, be sure to arrive before 5:30 p.m. to sign up. You will find sign-up sheets on a table in the back of the room, near the entry door. There will be opportunities to speak during both public hearings as well as during two public-comment periods.

(See The Beacon, 5/29/19, for background on issues.)

PROPOSED $1 MILLION APPROPRIATION FOR SIDEWALK

The most controversial proposed appropriation in the $7,450,846 FY 2019-20 budget submitted May 7 by Town Manager/Budget Officer Peter Rascoe is a transfer of $1 million from the Town’s undesignated funds balance (reserves) to pay for construction of a five-foot-wide concrete sidewalk on South Dogwood Trail. (As of June 30, 2018, this fund had $4,752,187 in it.)

A simple majority of Mayor Tom Bennett and Councilmen Jim Conners and Christopher Nason voted at the Town Council’s April 23 budget work session to appropriate these monies from reserves that are maintained principally for natural-disaster relief. The same three Council members rejected an attempt by Councilman Gary McDonald to increase the capital-improvements budget, which is used to pay for all other infrastructure projects. Councilman Fred Newberry supported Mr. McDonald.

Currently, five cents out of every 22 cents per $100 of property value collected in Town real-estate taxes is set aside for the capital-improvements budget. Councilman McDonald proposed increasing that amount to seven cents out of every 22 cents.

In FY 2019-20, the capital budget is projected to be $662,340, which will not go far if a half-million dollars are spent on a portion of Hillcrest Drive. The proposed South Dogwood Trail sidewalk, which has been designed to run along the east side of the road, would have consumed that amount and an additional $300,000-plus.

The Beacon does not support the design of the sidewalk proposed by the Town Engineer, which is on the Town’s website and does not comport with the recommendation of the Dogwood Trails Task Force; nor do we support funding a non-emergency infrastructure project with monies from what is essentially an emergency fund. A simple majority of the Town Council should not be allowed to cherrypick projects it favors for such sizeable funding from the Town reserves.

The Beacon also believes the Town Council should thoroughly explore restricting access to South Dogwood Trail by cut-through drivers and using other traffic-reduction methods before it decides to take $1 million from the emergency reserve fund for a sidewalk that ostensibly would be built for the public’s safety.

The Beacon also questions the wisdom of repairing the section of Hillcrest Drive that is subject to the most wear-and-tear by cut-through traffic without also implementing traffic-reduction methods to protect the finished product.

How the Bennett-Conners-Nason majority can ignore the obvious adverse consequences of cut-through traffic to the health, safety, welfare, and quality of life of hundreds of homeowners on the streets involved—as well as the road damage such traffic causes—eludes The Beacon. It would cost far less than $1 million to erect gates and control access to South Dogwood Trail and Juniper Trail (and perhaps Porpoise Run) on summertime weekends. Controlled access also would be more respectful of the natural environment.

TOWN LEGAL EXPENSES

I conclude with a word (actually many words) about legal expenses.

In the proposed FY 2019-20 operating budget that Mr. Rascoe presented to the Town Council April 23, he highlighted in yellow only one figure among the dozens that comprised expenses that then added up to $6,220,846: that of the $100,000 budgeted for legal expenses.

Legal fees, the Town Manager/Budget Officer told the Council at its April budget work session, had “drastically increased” from “last year’s original approved appropriation in the [FY 2018-19] budget.”

As of April 23, the proposed $100,000 appropriation for legal services represented 0.016 percent of the overall proposed budget. Now that the proposed budget has grown to $7,450,846, it represents just 0.013 percent.

During the 2018-19 fiscal year, Mr. Rascoe explained at the budget session, the Council increased the “line” for legal fees by $50,000 “due to the number of permit appeals” at the level of the town permit officer “and other legal matters” in which the town was involved. (The original budgeted amount was $61,500.)

It bothered me a lot that Mr. Rascoe singled out “permit appeals,” but failed to identify any other “legal matters.”

It also bothered me that he spoke about “the number” of appeals.

There has been only one appeal of a zoning permit in which the Town was a party.

I would like very much to see Town Attorney Ben Gallop’s time sheets for the past fiscal year. Perhaps the Town Council, which is Mr. Gallop’s client, could release the hourly accounting he submitted with his invoices so that the people who pay for all of the legal services that his firm provides could see where their money is going.

In FY 2018-19, Mr. Gallop spent an inordinate number of hours on drafting, redrafting, and redrafting yet again the zoning text amendment to regulate nonconforming lots, which the Town Council spent months trying to understand and still has not completely signed off on.

Mr. Gallop also spent numerous hours consulting with town officials—elected, hired, and appointed—about regulatory options to restrict large, high-occupancy dwellings in town and then countless more on drafting and redrafting proposed zoning text amendments, a process that just concluded May 7 with enactment of the new limitations on septic capacity and occupancy.

As someone who has been involved in the nominihotels.com movement to stop SAGA Construction Inc.’s structures at 98 and 134 Ocean Blvd., I know that the Town is not a party to the appeals filed by two homeowner-property owners of the CAMA (Coastal Area Management Act) permits that the State of North Carolina issued to SAGA.

Town Permit Officer Dabni Shelton conducted a local review of SAGA’s CAMA-permit applications, but the permits are State-issued. The N.C. Dept. of Environmental Quality, which is represented by the N.C. Attorney General’s Office, is a party in this consolidated case, not the Town.

Perhaps Mr. Rascoe could enlighten Southern Shores taxpayers as to the role the Town Attorney has played in this litigation and how much he has charged the Town for this role. According to James L. Conner II, the Durham attorney who represents the two property owners, Mr. Gallop’s name has not appeared on any of the case pleadings or correspondence.

Pursuant to the proposed FY 2019-20 budget presented April 23, an amount of $95,614 was transferred from the undesignated fund balance in order to balance the budget.

In an email yesterday, Mr. Rascoe confirmed that “increases in legal service costs, mandated increases in solid waste tipping fees, and a previous Council directed fence at the new fire department site resulted in the April 23 work-session draft-proposed transfer to balance the budget.”

I frankly do not understand this thinking. Other expenses in the proposed budget, for example, those for computer services in the administration and police departments and for equipment purchases by the public works department, also increased. So why single out legal services? (The solid-waste tipping fee and the fence combine for only $20,000 in expense, and the tipping fee was only a matter of discussion on April 23.)

The proposed FY 2019-20 budget also includes 2.5 percent cost-of-living raises for administration, planning and code enforcement, and public works employees. Why isn’t the $95,614 seen as going toward paying for increased salaries, and increased benefits, rather than for increased legal services?

Expenses do go up.

Why isn’t the additional $23,000 requested next fiscal year by the public works department for equipment purchases implicated in the $95,614 shortfall between projected revenues and expenses?

I’m still trying to figure out a $35,000 request for financial planning, which is included in the budget for streets, bridges, and canals.

In his May 7 budget message, which he filed in writing and read to the Town Council at its last meeting, Mr. Rascoe explains that the proposed FY 2019-20 operating budget shows a transfer of $1,325,614 from the Town’s undesignated fund balance to cover:

1)      Approximately $1 million for construction of the South Dogwood Trail sidewalk;

2)      $220,000 for “Town-owned building updates to meet current building code minimums” [at the April 23 meeting, the Town Council approved “around $200,000” for building improvements]; and

3)      The remainder ($105,614) for “ongoing increased legal costs due to increased Town land-use permit challenges by Town property owners”

See p. 3 of proposed budget at https://www.southernshores-nc.gov/wp-content/uploads/2019/05/FY-19-20-MANAGERS-PROPOSED-OPERATING-BUDGET-1.pdf.

He doesn’t mention any other increased expenses. The Town Manager’s focus on increased legal costs incident to “challenges” by property owners shows a harmful bias that makes my former-practicing-attorney antennae tingle.

Property owners have a legal right to appeal permit decisions, if they have been injured, and the Town should not burden or in any way chill the exercise of this right by suggesting that they hurt the Town financially in doing so. This language about “increased challenges” supports that interpretation and is bullying and offensive.

A Town property owner should not be chastened for “increased legal costs.” You might just as easily say that poor decisions by Town staff have led to permit appeals (the appropriate legal term) and increased legal costs. You also might question Town Attorney Ben Gallop’s competence, efficiency, and work product. I’m not saying I do, but it is certainly reasonable to do so.

NEW LEGAL SERVICES CONTRACT

As it happens, renewal of the Town’s contract with Mr. Gallop’s firm is on the consent agenda for the Town Council’s meeting tonight, as is renewal of its contract with Deel Engineering, PLLC. (Deel’s contract, which originally was for a three-year term, can be canceled by the Town without cause, provided it gives 30 days’ written notice.)

Both of these contracts are patently inappropriate for disposition by “consent,” which should be used only to dispose of routine business that does not merit discussion.

The Beacon would like to know how the Town Council is protecting Town interests by not considering other contractual offers from other legal and engineering professionals.

In an April 16, 2019 memorandum to the Town Council, Mr. Gallop describes changes in the legal fees that his firm, Hornthal, Riley, Ellis & Maland of Nags Head, will charge if the Council renews its contract, effective July 1.

Although he has had the firm’s proposed new legal services contract since April 16, Mr. Rascoe made no mention of fee increases at the April 23 budget meeting or at the May 7 Town Council meeting. In fact, his projected $100,000 factors in the old fee rates.

According to its proposed contract, Hornthal, Riley, Ellis & Maland’s non-refundable monthly retainer would increase to $3,000, from $2,500, and the Town Attorney’s hourly rate for legal services would increase to $195, from $185. As of June 1, 2020, the hourly rate for legal services would go up to $200, and as of June 1, 2021, increase to $205.

Paralegal and law-clerk services are to be compensated, respectively, at $105 per hour and at $115 per hour. Mr. Gallop’s memorandum, which you’ll find in the packet for the Town Council’s meeting, indicates that as of July 1, 2015, when the Town first entered into a contract with Hornthal, Riley, Ellis & Maland, the fees for paralegal and law-clerk services were $105/hour and $95/hour, respectively.

You may access the meeting packet, which contains the contracts, as well many more documents, here: https://www.southernshores-nc.gov/wp-content/uploads/2019/05/6.4.19-Meeting-Packet.pdf.

See you tonight.

Ann G. Sjoerdsma, 6/4/19

 

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