Less than six months after the N.C. Coastal Resources Commission (CRC) certified Southern Shores’ most recent land-use plan (LUP), Mayor Hal Denny and the then-Town Council replaced the plan’s vision statement with their own version. They sought to change the town’s character and access by making it less “exclusive” and more “public-friendly.”
The vision statement that these five elected officials directed Town Manager Peter Rascoe to draft on Feb. 19, 2013, and then unanimously adopted March 5, 2013, emphasized opening up the town to the “general public.” In order to do that, they committed the Town to taking any legal means available, including eminent domain, to acquire land to use for “public purposes.”
The vision statement is a key element of a N.C. coastal town’s CAMA-approved land-use plan. It reflects the community’ aspirations for the future, and the CRC must sign off on those aspirations. (See The Beacon, 9/25/19, for background on CAMA, land-use plans, and the CRC.)
But the replacement vision statement passed by former Mayor Denny and then-Council members Jodi Hess, George Kowalski, David Sanders, and Larry Lawhon did not emerge from a LUP-update process, nor did they seek public opinion or CRC approval. It came out of an annual Town Council retreat held Feb. 19, 2013, during which the five alone planned for “future land use, acquisition, and development.”
In so doing, these five individuals–three of whom ran unopposed for their seats in 2011– substituted their own judgment for that of the many people who had participated in the lengthy and comprehensive process that the Town underwent in 2005-07 to update its 1997 land-use plan.
The Beacon finds their audacity staggering.
In a detailed blog post 9/25/19 in which we called upon the current Council to update the 2008 LUP, after three members backed out nearly two years ago, The Beacon explained the Coastal Area Management Act (CAMA) and the value of land-use plans; outlined Southern Shores’ most recent LUP update process; and discussed some of the content in the Town’s 2008 LUP, which the CRC did not certify until Aug. 30, 2012.
The Town submitted its updated land-use plan to the N.C. Division of Coastal Management, which serves as staff to the CRC, in August 2008, but the Town delayed its certification by not responding promptly to questions raised by the DCM. Southern Shores has had a LUP since 1980 and has updated it four times.
Don Smith served as Southern Shores mayor from December 2005 through November 2009. Hal Denny succeeded him in December 2009 and served through November 2013.
Although the agenda published for the Feb. 19, 2013 retreat, which occurred after the Council held a full regular meeting, said only, “Annual Retreat—Various Topics for Discussion,” the minutes of the meeting reflect a wide-ranging discussion about how the Town could acquire property that it could develop for public use.
(There is no meeting videotape to know who said what.)
According to the minutes, which show that considerable planning went into identifying the “retreat agenda items,” Mayor Denny and the Town Council discussed the “Vision Statement to go forward? [i.e., Exclusivity v. Open to Public?]”
The minutes note in conclusion: “It was Council’s consensus to move toward a more ‘public-friendly’ town . …”
“Council’s consensus.” Council, not the land-use plan, not the Town’s property owners. “Council.”
See 2/19/13 minutes here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Minutes_2013-02-19.pdf
TOWN COUNCIL’S SUBSTITUTION OF PERSONAL AGENDA FOR LUP
The five elected officials who rewrote the Town’s vision statement promoted their judgment ahead of the well-researched conclusions of the Town Planning Board’s Long-Range Planning Committee, which identified a Town vision, issues, goals, and objectives in its January 2006 report. This report was one of several that factored into the LUP update.
They also subordinated the viewpoints expressed by both property owners who had responded to a 2005 town-wide survey and/or attended a 2007 “Speak Out” community workshop and by Town staff, to their own personal viewpoints.
The “consensus” that the team of Denny-Hess-Lawhon-Sanders-Kowalski derived became Resolution 2013-03-01, which was titled: “Resolution Adopting a Statement of Vision and Policy Regarding Use and Acquisition of Properties Owned, Controlled, Administered, or Maintained for Public Purposes.”
The Beacon views this resolution adopted by Mayor Denny’s Town Council as an abuse of power and authority. We consider these five citizens’ substitution of their judgment for that of the judgment expressed in the 2008 LUP illegitimate and undeserving of any deference or respect. That these five citizens, who were elected by the voters, decided they could overrule the voters, without any notice to the people they serve, much less a hearing, is both shocking and appalling.
When you hear “old-timers” talking about how the Town has changed, you have only to look back to the contrasting administrations of Mayor Smith and Mayor Denny. We will do that, but today, we look only at the “Denny” vision of how Southern Shores should be.
THE DENNY VISION OF OPENING UP TOWN TO PUBLIC
On 9/25/19, The Beacon published the current vision statement in the Town’s 2008 land-use plan. As you may recall, it begins with “The Town of Southern Shores is a quiet seaside community comprised primarily of small low density neighborhoods consisting of single family homes primarily on large lots . . . interspersed with recreational facilities . . . beach accesses, walkways and open spaces.” (LUP, p. 8)
We further observe that the first two land-use and development goals included in the LUP section, “Plan for the Future,” are:
1) “Encourage the maintenance and improvement of existing private access facilities to public trust waters and shorelines in order to improve recreational opportunities.”
2) “To protect, enhance and support land uses that are compatible with surrounding land uses and maintain the existing community character of Southern Shores.”
According to the LUP, these goals were formulated from “input through the public involvement process . . . and from the Town staff, the Steering Committee, Planning Board, and Town Council.” (LUP p. 51.) They are two of five goals listed.
We ask you to contrast this content about maintaining private-access facilities and the Town’s community character with the text of Resolution 2013-03-01, which purportedly represents a “consensus” reached “after thorough discussion by the [five] members of the Council” on a Tuesday afternoon in March 2013. (The minutes record that the retreat began at 12:30 p.m. and adjourned at 2:20 p.m.)
Although the “whereas”es of the resolution are revealing, we quote only the five officials’ “vision statement” and “policy statement,” which are:
The vision: The Town “shall be an inviting place to live and visit. Residents and the general public shall be encouraged to use and enjoy any resources, infrastructure, services, natural areas, recreation areas, public trust areas, and open spaces owned, controlled, administered, or maintained by [the Town. The Town] shall reserve the right to enact ordinances and policies regarding fees, licenses, or permits to ensure users of such facilities equitably contribute towards the cost of acquisition and maintenance.”
The policy: [The Town] is committed to ensuring that its residents and the general public, including citizens with disabilities, have reasonable access to natural areas, recreation areas, public trust areas, and open spaces which are now, or in the future, owned, controlled, administered or maintained by the Town . . .
“To ensure that the [Town] remains an inviting place to live and visit for its residents and the general public, the Town is committed to seek and act on any reasonable opportunity to acquire, in fee simple title or by easement, land to be used for public purposes described in these statements. [The Town] is committed to acquiring land for such public uses by gift, donation, negotiated sale, or imminent [sic] domain proceeding.”
The general public is not the vacation public renting properties in town.
While some of us may view Southern Shores as too exclusive, there has never been a groundswell of support among property owners for opening it up to the “general public.”
What’s more, there has never been community-wide discussion among property owners about why and how to do that.
When I first learned in 2014 about the Denny resolution, I questioned then-Town Manager Peter Rascoe about it.
He informed me that the 2013 vision statement “supersedes” the vision statement in the Town’s CAMA-approved land-use plan, but he had no answer for how the Town Council can do this without approval from the Coastal Resources Commission. Southern Shores is not just any small town with picket fences, ballparks, and sidewalks. It’s a State-protected coastal town with precious natural resources.
He also informed me, when I asked how many members of the public attended the February 2013 retreat, and, therefore, knew what the Council was doing, that there was only one present: Leo Holland, who did not comment.
If a Town government is not transparent about its intent, its goals, and its actions, and it is not solicitous of public opinion, policies, planning, and development can radically and quickly change. And that’s precisely what happened.
MOVE TO ACQUIRE PRIVATE PROPERTY BY ‘QUICK TAKE’
In one of his first official acts, Mayor Tom Bennett, who succeeded Mr. Denny in December 2013, sought to secure an accelerated right of eminent domain—known as “quick take”—for the Town in the event it:
1) decides to proceed with beach nourishment or take some other action to preserve the beach and quickly requires property title rights or
2) wants to establish “access for the public to public trust beaches and appurtenant parking areas.” (The language comes from N.C. General Statutes 40A-3(b1) 10-11. NCGS chapter 40A concerns eminent domain.)
At the beginning of a Feb. 4, 2014 Town Council hearing on quick take, Mayor Bennett assured the public that there was no beach-nourishment project planned.
Like all municipalities, the Town already has eminent-domain power. The resolution at issue in January-February 2014 would have added the two provisional cases—of access for beach renourishment and access for the public to the beaches, including the creation of nearby parking areas—to its existing authority and also enabled the Town to secure condemnation through an accelerated procedure.
Under quick-take eminent domain, a town can take title to private property with just 30 days of notice to the landowner and without giving the landowner a hearing. “Standard procedure” eminent domain requires the town to give the landowner 120 days of notice and afford him or her a hearing, if requested. Quick take gives a town a right of immediate possession.
Proposed Resolution 2014-02-01 was a statement by the Town of its desire for quick-take eminent domain under NCGS 40A-3(b1)(10)-(11) and a request that the N.C. General Assembly consider adopting legislation to enable this authorization. The other Dare County beach towns of Duck, Kitty Hawk, Kill Devil Hills, and Nags Head sought the same.
Quick-take authorization, thus, depended on the cooperation of the State legislature for fruition, especially then-State Senator Bill Cook and then-State Representative Paul Tine, who represented Dare County in the General Assembly.
The Southern Shores public reacted swiftly and furiously to the proposed resolution, strongly opposing quick take as unnecessary and potentially destructive of Southern Shores’ low-density character and privacy. The Southern Shores Civic Assn., which owns the beach accesses, and oceanfront property owners said they would readily consent to temporary easements, if beach nourishment were necessary.
No one supported publicly owned parking lots for beachgoers.
Despite hearing only opposition from the 14 residents who spoke during the Feb. 4, 2014 public hearing and receiving numerous emails against it, the Town Council unanimously voted to pass Resolution 2014-02-01, seeking quick-take authority through the N.C. General Assembly.
Leo Holland, who is running for Town Council now, voted with the Mayor and Council members Mrs. Hess, Mr. Lawhon, and Mr. Sanders—all of whom had embraced the Denny vision—in supporting quick take and rejecting overwhelming popular opinion.
Despite losing at the town level, Southern Shores property owners lobbied their representatives at the state level and prevailed.
According to homeowners involved in the quick-take fight, State Senator Cook was especially responsive to the people who emailed and called him. No legislation was introduced into the N.C. General Assembly to authorize quick-take eminent domain in Southern Shores. It exists in the other beach towns, but not in Southern Shores.
THE WATERSHED YEARS: WHEN THINGS CHANGED
Mayor Hal Denny first won a seat on the Town Council in the November 1999 election, at a time when the mayor was still elected by a vote of the Council, not by voters. The then-Town Council elected Paul Sutherland to serve as mayor, and he continued in the office until he resigned Oct. 5, 2004, a year ahead of his term expiration.
The Council then appointed Mr. Denny, who had won re-election to a two-year term, to be mayor until the first-ever popular election of the mayor was held in November 2005.
Ironically, Mr. Denny beat Don Smith in the 2003 election for the two-year term—which was implemented in order to stagger Town Council elections in different years—but then lost to Mr. Smith in the 2005 mayor’s race.
Both Mrs. Hess and Mr. Sanders had served on the Town Council from December 2003 until November 2007, at which time Mrs. Hess won re-election, and Mr. Sanders lost. Mr. Sanders regained a seat on the Council in the 2011 election, when Mr. Lawhon also won.
In 2011, Mrs. Hess, Mr. Lawhon, and Mr. Sanders ran unopposed for the three open seats. Only 240 votes were cast, reflecting a 9.23 percent turnout of the town’s 2600 registered voters.
Elected to the Town Council in 2009, Mr. Kowalski, the fifth person on Mayor Denny’s renegade Council, was a losing mayoral candidate in 2013.
Mr. Holland ran unopposed in the November 2013 election for Mr. Kowalski’s Town Council seat. The others who competed in 2013 for the mayor’s office were Gary McDonald, who was elected to the Town Council in 2015 and is not seeking re-election; Susan Dineen; and the victor, Tom Bennett.
Mr. Holland served four years and then did not seek re-election in 2017. Councilman McDonald ran against Mayor Bennett that same year and lost.
The 2009 contest between incumbent Mayor Smith and Mr. Denny, who had retired, was hotly contested. It turned out to be a watershed event for the Town.
Mayor Smith was under fire for not paying enough attention to deteriorating infrastructure. People still speak today about how he ignored road repairs.
But a cursory examination of the minutes of the Town meetings during Mayor Smith’s term reveals a different picture of his administration.
It was during his watch, for example, that the first-ever Capital Improvement Plan was adopted (2008). He also accepted the Long-Range Planning Committee’s 2006 report and arranged for joint meetings of the Planning Board and the Town Council, and he oversaw the LUP update.
The Town had both a Stormwater Management Committee, under the auspices of the Planning Board, and an independent Vegetation Management Advisory Board during Mayor Smith’s term.
The Town Planning Board actually believed (correctly) that it had Town Code authority to plan, and it did. It was proactive, not reactive, like it became under Sam Williams’s nine-year chairmanship (2009-18).
(Planning Board appointments by the Town Council are for three years, but the Board elects a new chair and vice-chair every year–choices that the Council must approve.)
The Planning Board also existed independently of the Town Board of Adjustment (BOA), which was comprised of five other people.
On April 1, 2014, the same Town Council consisting of Mayor Bennett and members Hess, Sanders, Lawhon, and Holland consolidated the two boards, so that Planning Board members started wearing two hats. The BOA reportedly had not convened to do business in years when it was merged with the Planning Board, but why that mattered to Planning Director Wes Haskett and Town Attorney Ben Gallop, who championed the consolidation, was not explained in the minutes that The Beacon has read.
Several Planning Board members, including current Chairperson Elizabeth Morey, who is running for Town Council, have publicly expressed their discomfort with serving as BOA “judges.”
The consolidation, which the Town Council unanimously approved, eliminated the Board of Adjustment as an independent quasi-judicial body that does not collaborate with Town staff and, therefore, can make decisions on variances and other zoning matters without undue influence by the Town’s judgment.
It also reduced the number of people involved with planning matters by five—five unique individuals with their own unique perspectives, backgrounds, experiences, knowledge etc., etc.—and increased the potential for the biases, ignorance, indifference, whatever, of just three people on the Planning Board to determine important Town planning matters.
The development of nonconforming 50-foot-wide lots on Ocean Boulevard was enabled by the Planning Board/Board of Adjustment.
Southern Shores is the only Dare County town that has a consolidated board. Duck, Kitty Hawk, Kill Devil Hills, Nags Head, and Manteo all have separate planning boards and boards of adjustment.
The Beacon will look next in this series about land use and the Town’s vision at the contrasting terms of Mayor Smith and Mayor Denny.
As I personally recall, and as other property owners have told me, Mayor Smith was disliked and soundly defeated largely because of his volatility and angry behavior at Town Council meetings, not because of his policies. By comparison, Mayor Denny, who acted more behind the scenes, appeared gentlemanly.
If you would like to be interviewed for this article and have factual information to share that can be independently verified, please contact The Beacon at firstname.lastname@example.org. We will follow up as soon as possible.
We will return Monday with commentary about the Town Council’s agenda for its Oct. 1 meeting.
You may access the meeting agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2019-10-01.pdf
Have a great weekend, everyone.
Ann G. Sjoerdsma, 9/28/19