Dr. Michelle Flynn Osborne, Chief Deputy Commissioner of the N.C. Dept. of Insurance, will speak at a “community conversation” about property insurance Tuesday, 6-7:30 p.m., at First Flight High School Auditorium in Kill Devil Hills. The free event is sponsored by Dare County and the Outer Banks Assn. of REALTORS®.

Dr. Osborne’s topics will include types of coverage, limitations, and the importance of flood insurance, according to the sponsors.

You may access Dr. Osborne’s biography here: https://www.ncdoi.com/Leadership_-_Dr._Michelle_Osborne.aspx. She has both masters and doctoral degrees in business administration.

To get to First Flight High School, turn right off of U.S. Hwy. 158 at the Colington Road intersection, just south of the Wright Brothers Memorial; then turn left on Veterans Drive after you’ve passed the KDH government complex. You can’t miss the auditorium.

(Note: The first game of the World Series starts Tuesday at 8:08 p.m., so you can attend Dr. Osborne’s conversation and still catch the early innings. Go, Nats!)

***

PLANNING BOARD MEETS TOMORROW, 5:30 P.M., PITTS CENTER: The Town Planning Board will vote on ZTA 19-02, an amendment to the Town Code that attempts to fill gaps in regulations concerning building height and lot fill. See https://www.southernshores-nc.gov/wp-content/uploads/2019/10/10-9-19-ZTA-19-02-Building-Height-FIll.pdf.

The Planning Board has spent considerable time thinking about, researching, and drafting the proposed changes on height and fill, which are designed to help both property owners and the builders they hire, as well as neighboring property owners, and will likely approve ZTA 19-02 unanimously. The Beacon will cover the changes in detail when the amendment comes before the Town Council Nov. 6 for a vote.

The Planning Board also will entertain public comments at tomorrow’s meeting.

***

LIBRARY SURVEY ONLINE: The Southern Shores Exploratory Committee for Potential Branch Library has posted a short survey about the potential library’s use by residents at the top of the Town of Southern Shores website: https://www.southernshores-nc.gov/. The committee will meet next on Nov. 1, 2 p.m., in an upstairs room of the Pitts Center.

***

ELECTION DAY AND THE TOWN COUNCIL: Because the general Election Day is always the first Tuesday in November, and the Town Council usually meets on the first Tuesday of the month, the November Town Council meeting will be held on Wed., Nov. 6, instead.

Voting for the Southern Shores municipal election will take place Tuesday, Nov. 5, in the Pitts Center from 6:30 a.m. until 7:30 p.m. The Town Council meeting the next day will begin at 5:30 p.m. The newly elected Council members will be sworn into office at the Town Council’s Dec. 3 meeting.

POLL WORKERS NEEDED: The Dare County Board of Elections is accepting applications for poll workers. According to the BOE’s website, poll workers receive some compensation and must be able to work from 5:30 a.m. until at least 8:30 p.m. To apply for a position, go to https://www.darenc.com/departments/elections/about/poll-workers.

COUNCIL CANDIDATE WRITE-IN CAMPAIGN?: The Beacon has heard some rumors about a late write-in campaign for a fifth candidate for the three Southern Shores Town Council seats that are being contested in the election. If you are having trouble deciding to whom you should give your third vote, you may wish to delay voting for a few days. The Beacon will confirm or deny these rumors as soon as possible.

Ann G. Sjoerdsma, 10/20/19

 

At the Oct. 7 Town Council candidate forum, Southern Shores Civic Assn. president, Rod McCaughey, asked a comprehensive question about water—water, “as in,” he said:

• “stormwater runoff on our streets”
• “the health of our canals and Currituck Sound”
• “the health of the Southern Shores ponds”

“Do you see [water problems] as a serious issue?” Mr. McCaughey asked. “If yes, what should be done?”

All of the candidates expressed concern about water problems: Town Councilman Fred Newberry said they are of “critical importance.” But only Matt Neal, who, as a builder, has to consider stormwater runoff in his construction projects, offered possible solutions based on firsthand knowledge.

Mr. Neal joined the other three candidates, who also include Elizabeth Morey and Leo Holland, in suggesting that the N.C. Dept. of Environmental Quality could assist the Town in dealing with water quality in the Currituck Sound. He suggested making an “active request” for help. (No one mentioned the canals, per se.) Mr. Neal then addressed what he called “direct-impact” problems: flooding from the ponds and stormwater.

According to Mr. Neal, both Dare and Currituck counties are employing “groundwater lowering devices,” including “collection pipes or cisterns or pumps” to lower the water level in ponds.

Before a storm, he explained, the counties will “actively pump these [water] systems down and drain the ponds and provide collection holding pens within those ponds,” to prevent flooding.

This is an “achievable thing” for Southern Shores, Mr. Neal said. It’s a question of paying the money and making the commitment.

As for stormwater runoff, he said, the problem is “the streets can’t handle it.”

He spoke of “design parameters” to manage stormwater that builders must adhere to in constructing residential and commercial development. In the case of residences, he said, the design parameter is 1 1/2 inches of stormwater; for commercial buildings, it’s 4 inches.

“Nobody has a design parameter for 10 inches of rainfall,” he observed.

But, he said, the Town could target a different design parameter and apply an engineering solution to the stormwater that runs off driveways into the streets. He characterized both the pond flooding and the runoff as “low-hanging fruit” that the Town could “go after.”

Mr. Neal also shared a “model” that Kitty Hawk uses for its “bowl-like areas” where stormwater collects and flooding occurs: “Kitty Hawk pumps as soon as the storm has left,” he said. It acts “immediately.”

The new Council will have an opportunity to decide whether controlling pond flooding and stormwater runoff are priority issues for the Town and to take action.

WHO OWNS THE PONDS?

After the forum, The Beacon spoke with Mr. McCaughey in order to clarify a point that we have long wondered about: Who owns the ponds in Southern Shores?

It turns out that’s a tricky question to answer: The answer largely turns on whether the pond is natural or man-made.

Mr. McCaughey shared a legal opinion that he obtained about the ownership of the J-shaped Circle Pond, which is bounded by privately owned single-family homes and SSCA-owned common area fronting on Duck Road, Periwinkle Place, Ocean Boulevard, Hickory Trail, and Circle Drive.

According to this opinion, the Kitty Hawk Land Co.—which developed Southern Shores—conveyed to the SSCA in 1978 the “man-made lagoons, canals or waterways” that then existed within the boundaries of the Southern Shores Community.” (This conveyance explicitly excepted the Chicahauk subdivision.)

Were ponds included in this conveyance? Is a pond a lagoon?

Certainly common sense and dictionary meanings would lead you to believe that a pond is not a lagoon. You also could argue that if the KHLC had wanted to give the SSCA title to all then-existing man-made ponds, it could have so specified.

One thing is certain: The SSCA does not own any “naturally occurring” ponds, which, according to the SSCA’s attorney, Circle Pond is.

In October 2016, the combination of weeks of precipitation, water-saturated ground, and rains from Hurricane Matthew led to Circle Pond’s overflow. It was not the only pond that flooded, and rendered roadways impassable for weeks, but it did more damage than pond flooding elsewhere.

So who owns Circle Pond?

If the KHLC has not deeded it to the Town, and the SSCA’s attorney didn’t find that it had, the KHLC still does. This would seem to be the case with all naturally occurring ponds in Southern Shores.

What about the man-made ponds?

In 2005, the SSCA sold to the Town “all of the existing man-made lagoons, canals or waterways within the boundaries of the Town of Southern Shores as described in deed recorded in Book 31, Page 445, Dare County Registry,” except those in Chicahauk, which the 1978 deed excluded, and those lying on the boundaries of the lands of the Duck Woods Country Club. This conveyance covered substantively all of the same property that was covered in the 1978 conveyance.

The 2005 deed also excepted any “ponds or waterways” that are on SSCA-owned property—even though a pond, presumably, is not a lagoon, and the inclusion of ponds in the exception language wasn’t necessary.

It appears that if the SSCA owns the land around a man-made pond, it also owns the pond.

Generally speaking, therefore, the SSCA owns the man-made ponds in Southern Shores; but there is one noteworthy exception: Ginguite Pond, which sits behind single-family homes situated on Ginguite Trail and in the Mallard Cove community.

According to a 2017 written opinion provided to former Town Manager Peter Rascoe by an attorney representing the Town, Ginguite Pond, a/k/a Mallard Cove Pond, a/k/a Duck Woods Pond, which is man-made, is owned by the Kitty Hawk Land Co., not the SSCA or the Town.

In addition to the 1978 and 2005 deeds, attorney M.H. Hood Ellis of Hornthal, Riley, Ellis & Maland cited as support for his opinion 1) correspondence sent by former KHLC president Mickey Hayes to the Town in 2004 and 2006 reflecting his belief that the KHLC owns the pond, and 2) an “overflow device” that the KHLC “engineered, permitted and installed [at the pond] . . . at a cost of over $50,000.”

It appears to The Beacon that the Town Council should be talking with both the Kitty Hawk Land Co. and the SSCA about pond overflow.

PLANNING BOARD MEETS MONDAY, 5:30 P.M.: The Planning Board will vote on ZTA 19-02, an amendment to the Town Code that seeks to fill gaps in regulations concerning building height and lot fill. See https://www.southernshores-nc.gov/wp-content/uploads/2019/10/10-9-19-ZTA-19-02-Building-Height-FIll.pdf. The Board meets at 5:30 p.m. in the Pitts Center.

Ann G. Sjoerdsma, 10/17/19

 

 

About 140 people jammed into the Pitts Center Monday night for a Town Council candidate forum that played out as an affable, low-key affair among the four contenders—who elected not to accentuate their differences or to share many ideas.

The two-hour question-and-answer session, mediated by its sponsor, the League of Women Voters of Dare County, produced no break-out sound bites or rallying moments, although intermittent applause occurred.

The questions, chosen by the League from audience submissions, covered beach nourishment, the cut-through traffic, the Town’s land-use plan and its effectiveness, stormwater problems, the hiring of a new town manager, the candidates’ visions for Southern Shores’ future, the South Dogwood Trail sidewalk, Internet service in town, and more.

(You may view the forum videotape here: https://www.youtube.com/channel/UCN61Jac3lSen1L6m_560w7w.)

A question about the “deer problem” allowed the candidates either to profess their affection or respect for the wildlife, or to tell them to “scram,” as former Town Councilman Leo Holland did in recommending a product called Deer Scram.

Both Mr. Holland, a Chicahauk homeowner, and Matt Neal, a Southern Shores native and local builder (Neal Contracting Co.), warned of coyotes overtaking the town’s deer population. Mr. Neal also offered his 3-year-old daughter as an alternative to “Scram.”

Current Town Planning Board chairperson, Elizabeth Morey, took a gentler approach: “We live in nature. We live in their back yard,” she said. The deer are here to stay.

“I kinda like them,” incumbent Town Councilman Fred Newberry noted.

OVERVIEW OF CANDIDATE MESSAGES

The Beacon perceived no dominant personality among the candidates, although Mr. Neal impressed with his broad knowledge of the Town’s zoning code, the Southern Shores shoreline, options for stormwater management, and even information technology. We think he dropped the ball on cut-through traffic, however.

The 36-year-old Mr. Neal, who is currently serving as the president of the Outer Banks Home Builders Assn. (OBHBA), described himself as a research “nut” who does not form hasty opinions. Although he represented himself as a cooperative, open-minded problem solver, he didn’t take that approach in dealing with the traffic question, which is of concern to numerous residents. Mr. Neal lives on Wax Myrtle Trail

Questioned by a homeowner about possible conflicts of interest that he would have serving as both a Town Council member and the OBHBA president, Mr. Neal replied that he thought the roles would be more complementary than conflicting. He cited OBHBA’s critical input in the drafting of the Town’s new occupancy ordinance, which limits vacation cottages to 14 overnight occupants. Nonetheless, he said he would resign his OBHBA presidency, if he were elected.

Town Councilman Newberry, 71, said he would like to be “progressive and guide the town into the future while maintaining [its] ambiance.” He stressed careful planning and budgeting and “input” from the public about the issues the Council has to decide—so that “tax dollars are spent wisely.” He came out in his opening statement as being against “mini-hotels.”

Throughout his tenure, Mr. Newberry, who lives on North Dogwood Trail, has emphasized public involvement and public opinion in Town government decisions. He and Town Councilman Gary McDonald are responsible for there being two public-comment periods during Council meetings and for meeting packets being available to the public online.

Councilman Newberry also opposed the elimination of the Town’s standing committees on planning, finance, and public safety—a move proposed by Mayor Tom Bennett and supported by then-Councilman Holland and Councilman Christopher Nason. (The Mayor did not have to sit on every committee.)

Elizabeth Morey, 60, an eight-year Town Planning Board member who has been chairperson since January, stressed “collegiality and a sense of common purpose.” She said she would “seek to build consensus” and not have a “predetermined” agenda.

“I’m good at listening,” Ms. Morey said, characterizing herself as an “independent thinker.”

The Ginguite Trail homeowner also called herself “passionate about protecting and enhancing this unique place that we live in.”

Mr. Holland, 78, who has been active in the Southern Shores Civic Assn. and served on the Council from 2013-17, spoke of seeking a return to office because citizens “deserve good government,” as well as a Council whose “members seek to work together for the common good of the Town.”

But he offered no examples of when the current Town Council members, who definitely don’t agree with each other, often voting 3-2 on issues, didn’t put the “common good” first. (The Beacon will take up a question about civility on the Town Council in Part Two of our forum analysis.)

Mr. Holland cited “civility, common sense, and practicality” as hallmarks of his governing philosophy. He lives on Spindrift Trail.

PROFFERED IDEAS: DEALING WITH TRAFFIC, SUING THE STATE

The Beacon thought style largely trumped substance Monday night, as specific proposals were hard to come by. One exception was Councilman Newberry’s commitment to tackling seasonal cut-through traffic.

Saying it is “inexcusable” that the Council has not “addressed [the problem] properly,” Mr. Newberry declined to try to explain why the Mayor Bennett-led majority has failed to act during his four-year term (December 2015-November 2019).

“I don’t know,” he said simply.

The traffic problem arose in a question posed by Eleventh Avenue homeowner Greg Pensabene, who directed it to Mr. Holland and Mr. Newberry as “incumbents.” Mr. Holland’s “re-elect” signs that have been posted throughout town have led some people, especially newcomers, to believe that he is a Council incumbent.

Mr. Holland actually was on the Town Council that ignored the results of the paid-facilitator-led October 2014 public workshop on cut-through traffic, attended by upward of 150 people. After considering numerous options, including temporary speed humps and increased stop signs, workshop attendees reached a consensus in support of preventing a left turn on to South Dogwood Trail from U.S. Hwy. 158 on summertime weekends.

First to respond to Mr. Pensabene’s question, Mr. Holland stumbled, confusingly stating, “We tried the left-turn program. That is in the Kitty Hawk municipality, and you got the NC DOT [N.C. Dept. of Transportation] you have to live with and work with. We can do certain things within the town, but we also get some Pell grants that have an impact on that as well.”

N.C. DOT exercised its jurisdiction over U.S. Hwy. 158 to enable last year’s no-left-turn weekend trial, which Mr. Newberry and Councilman Gary McDonald spearheaded, and the Town didn’t have to ask twice. DOT, which sent two representatives to a Town Council meeting months ahead of the weekend trial, at which time it was discussed, was very accommodating. The Kitty Hawk police were not involved.

The Town receives an annual roads grant—known as the Powell grant, not Pell, which is a federal education grant—from the State, but, as Mr. Newberry observed, its amount is “not that significant.” In recent years, it has been $119,000.

“I wish I had an answer” to the cut-through traffic, Mr. Holland concluded, suggesting that maybe the Town should “look into employing a traffic engineer.”

Noting that last year’s no-left-turn weekend trial was “very successful”—despite “numbers” from the police department about traffic volume—Mr. Newberry said, “People have been complaining and speaking up for many years. This is nothing new. There are options. There are things that we can do”

Rather than mention any options, however—which was disappointing to The Beacon—Mr. Newberry cited his sponsorship of a Town Council-sanctioned citizens’ traffic committee, which he said Monday is expected to provide recommendations to the new Council in December.

Given an opportunity to comment, as well, Mr. Neal took a naysaying approach to cut-through traffic reduction, much to The Beacon’s surprise. Prefacing his remarks by saying he “spoke at length with the Police Chief about this last week,” he first dismissed the idea of having “[no] through-traffic signs,” which would be “difficult to enforce,” and then said that the “next step mechanically would be to gate the town, and we would have pass codes and key cards.”

There has never been a groundswell of public support for no through-traffic signs.

We believe Mr. Neal took a giant leap from installing roadside signs to gating the Town 24/7, 365 days a year—another idea that no one has seriously endorsed—and he needs to talk to people other than the Police Chief and those who have similar views in doing his research. He sounded very close-minded when he quoted exorbitant cost figures for year-round gating, which he presumably obtained from Chief Kole and which we remember as being prepared by former Town Manager Peter Rascoe. (Mr. Neal said he would supply The Beacon with documentation.)

Mayor Bennett is on the record as being opposed to impeding the flow of northbound tourist traffic on the cut-through route. He first stated his opposition in a Jan. 23, 2015 “Word from the Mayor” in the Town newsletter. See www.icontact-archive.com/vbh4RGfk5zTd6P1EhGEnwxgUIb2y1Z9h.

The only gating that has ever realistically been discussed by the public—for example, at the October 2014 workshop—has been gating during the heavy summertime weekends. If year-round gating is the direction in which Mr. Newberry’s committee is headed, it will encounter resistance.

Mr. Neal also suggested taking a “nuanced” approach to the traffic, but he didn’t elaborate  on what that might be.

Ms. Morey’s comments on cut-through traffic struck The Beacon as those of someone who is sympathetic to Town residents, but coming late to the issue. For example, she suggested staggering rental check-in days to alleviate congestion. Rental companies on the Outer Banks already stagger check-ins on Friday, Saturday, and Sunday and have for many years. Check-ins on other days—Ms. Morey mentioned Thursday—strike The Beacon as a tough sell.

***

The Beacon applauds Ms. Morey, however, on raising what we thought was the biggest idea of the forum: that of suing the State of North Carolina, in particular, its legislature, for usurping municipal power. Her idea came up in the context of a question about the Town’s land-use plan.

“The folks in Raleigh seem to think that they know better what’s good for us than what we know,” she said, and have diminished the ability of municipalities to “play the role that they should play,” which she described as chiefly to “manage density” and to “protect public health and safety.” She mentioned, in particular, the legislature’s decision to deprive the Town of its ability to restrict the number of bedrooms in a house.

“I say we take it [the legislature] to court. We’ll win, in my opinion,” Ms. Morey said, stating her belief that the Town would be on “solid ground.”

“I would welcome a lawsuit,” she confidently concluded.

While The Beacon would have liked Ms. Morey to elaborate on the specifics of her reasoning—Has she spoken with an attorney? Why does she think the Town has a case and that it would win?—we nonetheless applaud her bold outside-of-the-box stance.

We were less taken with her casual response to a question about the South Dogwood Trail sidewalk, which was simply: “I look forward to walking on the trail as soon as it’s completed . . . with my dog.”

Contractor bids on the sidewalk construction were opened Oct. 4—both Mr. Neal and Mr. Holland misstated the amount of the low bid, which was $623,839.35—and the lame-duck Town Council is expected to choose at its Nov. 6 meeting from among the three bidders. (See The Beacon, 10/5/19)

More important than the cost, we believe, is the considerable design work that the Town Engineer has left for the contractor to figure out—with oversight delegated by the Council to the “Town Manager.” Interim Town Manager Wes Haskett was not the town manager when the Council granted this authority.

With no mention made by the candidates of remaining sidewalk design issues, The Beacon is left wondering who, besides Mr. Newberry, has reviewed the engineer’s plans. We wish the candidates had told us if they have.

PRIORITIES AND BEACH NOURISHMENT

The first question posed by a Southern Shores homeowner at the forum asked the candidates to list what they believe are the top three “priorities” of Southern Shores residents? Residents, not candidates. Only Mr. Neal directly answered the question.

The other three office-seekers provided their own top-three issues—which the League had asked them about in its questionnaire—which are not necessarily, and indeed, are not in some cases, residents’ priorities. The candidates’ questionnaires are available through www.vote411.org. Mr. Neal’s responses are not yet online.

First to answer, Mr. Newberry elaborated upon his campaign’s issues: 1) better money management and planning; 2) the cut-through traffic; and 3) public input in governmental decision-making. (Mr. Newberry was later asked by a homeowner if he would continue to advocate for a five-year Town plan, with budgeting, as he has the past four years, and he said he would.)

Ms. Morey replied: 1) “protection and enhancement of the place we live in”; 2) “better communications between Town Council members”; and 3) “improved communications between the Council and the people who live here.” (Ms. Morey distinguished between a resident priority, which No. 1 represents, and her own priorities, in Nos. 2 and 3. In her forum remarks, she emphasized communication, but she never explained why she thought communication now was lacking.)

Mr. Holland said: 1) the traffic; 2) beach nourishment; and 3) hiring of the town manager. (He cited all three as “Town” priorities.)

Mr. Neal replied: 1) development, in particular, large houses, small lots, and stormwater runoff; 2) traffic; and 3) road improvements and beach management, which have raised cost concerns among residents.

These are the priorities, he said, “that most of you all are telling me when I knock on your door.”

(If you were to list your top three priorities, what would they be, and how closely do they match up with those expressed by the candidates?)

Non-answers also occurred to the second question, which Geri Sullivan, a candidate for Town Council in 2017, asked. Her inquiry was:

“Our town is considering approving a $14 million beach nourishment project, even though several experts from Duck [Research] Pier have questioned the data on which it was proposed. Where do you stand on beach nourishment and how do you think the Town should proceed?”

In their responses, only Mr. Neal and Mr. Newberry took serious note of Ms. Sullivan’s reference to the Field Research Facility oceanographers who questioned the “limited data” of the coastal engineering consultant’s (APTIM’s) most recent beach surveys at the Council’s Sept. 17 planning session.

Calling beach nourishment a “tough issue for me personally,” because he likes the coarse sand, the steep slope, and the natural contour of the Southern Shores beaches, Mr. Neal stated that there are “legitimate questions” about the methodology that APTIM used. He said he would like outside expertise in deciding how “best to interpret the knowledge that comes from APTIM.”

He said the Duck oceanographers, whom he knows personally, view beach nourishment as a “proactive choice” for the Town, but they question the methodology that led to APTIM’s conclusions. (In an interview that The Beacon had with two of them after the Town’s planning session, they scoffed at APTIM’s erosion rate, which is driving its recommendations.)

After the Ash Wednesday storm, which pounded the Outer Banks from March 6-8, 1962, and “knocked out the first flat tops,” Mr. Neal explained, then-unincorporated Southern Shores “created” a new artificial beach.

“We decided to hold our shoreline in 1963 when we built the dune,” Mr. Neal said. “We created that beach. . . . We’ve already impacted [the beach]”

Commenting that he has watched the beach “retreat and come back” at 176 Ocean Blvd., which is the site of a vintage flat top that happens to be next to my family’s 1970s-era cottage, Mr. Neal said, “We have already held our beach with our dune system.”

Despite giving a history lesson illustrating the smarts of the Town’s yesteryear elders, Mr. Neal concluded his wide-ranging remarks by observing that his primary issue with beach nourishment is its cost, not its need.

Mr. Newberry agreed with Mr. Neal’s comments and expressed a desire for “more data and more information,” including from the Duck Research Pier scientists, as well as more public input. “We can’t let emotion override clear reasoning,” he said.

Mr. Newberry said he prefers to view the beach on a “case-by-case basis,” inasmuch as the 3.7-mile-long shoreline differs from one “profile” point to another. The beach in front of Pelican Watch, next to the Kitty Hawk Pier, for example, has eroded much more than other areas. (It was destroyed in 1962.) In 2017, the Pelican Watch beach was renourished for more than $1 million, according to Mr. Newberry.

The Council, he said, informally calculated that the Town would have to pay $1.3 million annually just in interest on a five-year debt to finance a $14-million-plus project.

“We are the people who have to pay for it,” the Councilman said, asking “how are we going to finance it?” and “where is the money coming from?”

Although he mentioned tax increases, Mr. Newberry did not address municipal service districts (MSDs), nor did any of the other candidates. (See The Beacon, 10/2/19, for information about special-obligation bonds and MSDs.)

Calling himself a “proponent” of beach nourishment, Mr. Holland made no mention of the consultant’s data, saying only that we need to ask ourselves two questions: 1) “Is the beach an asset or a liability?” and 2) “Why do tourists come here?”

The Beacon does not consider these rhetorical questions dispositive of a decision on what Mr. Newberry stated will likely be a $16 million-plus project, which anyone who reads APTIM reports can recognize as being based on engineering, not science.

“We need to figure out how we can fund it,” Mr. Holland simply concluded, expressing no opinion on the financing models that have been discussed.

Although she characterized beach nourishment as a “complicated” issue, and made cogent observations about the westward migration of the Outer Banks, the rise in sea level, and the worsening nature of storms, Ms. Morey said she doesn’t view the beach nourishment question in terms of science. Rather, she asks: “What would happen if we don’t do beach nourishment?” and “Does it make sense to not do it at all?”

She cited the Town’s “window of opportunity” to do the project in 2022 with money from Dare County and with the cooperation of the other beach towns that are doing their five-year maintenance then. The next project, she observed, would not be until 2027.

Inasmuch as one obvious answer to Ms. Morey’s first question is “nothing” and another obvious answer is “we may be in an improved situation,” The Beacon was disappointed with her analysis.

“Does it make sense to not do it at all?” Yes, it just might. Before approving beach nourishment, Town Council members should find out.

We would have preferred that Ms. Morey analyze the data that we have now to analyze, including data available through the Duck Research Pier, talk to experts to obtain other opinions, and either challenge or substantiate her own view of inevitability. Once the Town buys into beach nourishment, it’s in a maintenance plan forever.

The Beacon will return on Sunday or Monday with Part Two of our forum analysis, which we promise will be much shorter. Early voting starts next Wednesday.

 Ann G. Sjoerdsma, 10/11/19

The Beacon is highly disappointed that SAGA’s “mini-hotel” at 134 Ocean Blvd., which is the subject of two pending lawsuits, is featured on this year’s Outer Banks Parade of Homes.

We also are chagrined to see that one of the other two Southern Shores houses on the tour is a three-story house built by Duck builder/developer/owner Olin Finch on a 50-foot-wide lot at 155 Ocean Blvd. that was once part of a developed 100-foot-wide parcel.

Surely there are other new or remodeled houses, and builders, in Southern Shores that are more deserving of exposure than these two.

The parade starts Thursday and continues through Sunday. We will not be attending.

SAGA Realty and Construction Inc. built the controversial 12-bedroom, 12-bathroom (and 3 half-baths), hotel-like structure at 134 Ocean Blvd. on the Southern Shores oceanfront at “its own risk,” as the Town warned in writing.

Rather than heed the warning, or try to negotiate with its opponents, the developer chose to ignore the legal challenges lodged against it by two Southern Shores property owners. (One challenge pertains to a permit decision related to SAGA’s other mini-hotel at 98 Ocean Blvd.)

That the Outer Banks Home Builders Assn. and the Outer Banks Assn. of REALTORS®, which sponsor the Parade of Homes, have given SAGA’s mini-hotel such high-profile publicity, despite the litigation and the community’s well-known opposition to their development, decidedly rubs The Beacon the wrong way.

According to Matt Neal, president of the OBHBA and a candidate for Southern Shores Town Council, there is no screening process for parade entrants. Any builder who pays the $600 entrance fee may enter a home, provided it is ready for showing.

(Mr. Neal announced at the Town Council candidates’ forum last night that, if he is elected, he will resign from his OBHBA office. The Beacon will cover the forum later this week.)

SAGA actually has three structures on the 17-house tour, giving it the highest profile of any builder, for which it paid $1800. The only other builder with more than one entry in the parade is Reliant Construction, LLC, with two houses.

Last year’s parade, which The Beacon promoted without reservation, featured 24 homes.

***

The Finch property, now known as 155A Ocean Blvd., was part of a deal that the builder arranged with real estate agent and former Planning Board member Gray Berryman, who owns an identical house at 155 Ocean Blvd. Mr. Berryman recently listed his westside property for sale at $1.2 million.

Until 2018, a modest bungalow built in the 1950s sat across the two 50-foot-wide lots that made up the 100-foot-wide tract at 155 Ocean Blvd. This structure, as well as an accessory building, were demolished by Mr. Finch and Mr. Berryman after the seller, James A. Miller, sold the two nonconforming lots separately.

Acting as the representative of Mr. Miller, Mr. Berryman succeeded in obtaining from the Town Board of Adjustment 12-foot-wide side-setback variances for both lots—before he and Mr. Finch had even bought them. They were well aware of the Town Code ordinance that prohibits development of nonconforming lots like theirs and exploited an apparent loophole to get around it.

At the Miller/Berryman Board of Adjustment (BOA) variance hearings, Town Attorney Ben Gallop complimented Mr. Berryman for thinking ahead and, in essence, evading the intent, if not the strict letter, of the Town ordinance.

Southern Shores property owners have legally challenged both the zoning permit that the Town issued to SAGA for 134 Ocean Blvd.—claiming that the then-proposed mini-hotel was not a “single-family residential dwelling”—and the State-issued CAMA permit, on the grounds that it was “inconsistent” with the Town’s land-use plan.

Although they lost their claims at the initial administrative level (in the zoning case, that’s the Town Planning Board sitting as the Board of Adjustment), they have appealed the unfavorable rulings in superior court: The zoning-permit appeal is in Dare County; the CAMA permit appeal is in Wake County. The petitioners are confident that sufficient errors were made at the lower levels to overturn the rulings or otherwise give them relief.

Before the March 19, 2018 BOA hearings about 155 Ocean Blvd., Planning Board Chairperson Sam Williams read a prepared written statement: He addressed the accelerating trend by landowner applicants to seek variances for 12-foot-wide side setbacks, a reduction from the 15-foot-wide standard, in order to build on nonconforming 50-foot-wide lots.

In the course of this statement, Mr. Williams said that the BOA had already approved three such variances and that “I don’t favor these variances as a matter of land-use planning and policy.”

Nonetheless, in voting in favor of the 155 Ocean Blvd. variances, Mr. Williams had to approve them as being in compliance with the Town’s Land-Use Plan. Only the Town’s CAMA-approved Land-Use Plan, not Mr. Williams’s own land-use planning, is relevant to a variance decision.

The Beacon not only disputes the BOA’s conclusion on Land-Use Plan compliance, but, as we’ve written on many occasions, we disagree with Mr. Gallop’s interpretation of the nonconforming lots ordinance then in effect. It is that interpretation of Town Code sec. 36-132(a) that convinced the BOA that the Town could not prevent Mr. Miller from selling his developed 100-foot-wide parcels as two 50-foot-wide lots—as long as he left the demolition to the buyers.

If you would like to read the minutes of the confusing variance hearings that occurred on March 19, 2018, you will find them here: https://www.southernshores-nc.gov/wp-content/uploads/2018/09/3-19-18-FINAL-PB-Meeting-Minutes.pdf.

Only the late Glenn Wyder, who was then serving as an alternate Planning Board member, voted against the variances. Mr. Williams, regular members Elizabeth Morey and David Neal, and alternate member Carlos Gomez voted in favor of them.

The BOA’s approval of these side-setback variances—which Mr. David Neal, Matt Neal’s father, later said he thought had been a “mistake”— finally compelled the Town to act by rewriting Code sec. 36-132, so that there would be no uncertainty about the ordinance’s meaning. Those of you who have followed the nonconforming-lots issue in town know how that rewrite turned out.

The price of a ticket for the 2019 Parade of Homes is $10. The Beacon asks you to consider making a $10 donation to the legal fund of the property owners who are fighting SAGA’s mini-hotels, instead.

You may donate here: https://www.gofundme.com/f/no-minihotels-in-southern-shores

Both SAGA’s unwelcome structure, which, practically speaking, has been enlarged beyond the maximum 6,000 square feet by a large unenclosed outdoor partying area on the ground floor that does not count toward house size, and Finch and Co.’s high-density-population structure, constructed on half the required lot size in the ocean district, defy the Town’s Land-Use Plan and its Code of Ordinances.

For the latest on SAGA’s scorched-earth approach to developing, and remaking, the Outer Banks, see https://outerbanksvoice.com/2019/10/04/saga-seeks-changes-for-marshes-light-hotel-project/.

Once again, the developer is pressuring a town to accept its rewriting of local zoning so it can build the hotel it would like to build, not the one that a community decided could be built. Hatteras Island was an earlier target. This time Manteo is in its cross-hairs.

SAGA is seeking to change the height and size restrictions established for a waterfront boutique hotel in Manteo’s Marshes Light community.

The Beacon stands with the people of Manteo who would like to preserve the small-town feel and look of their waterfront and insist that SAGA conform to the rules.

The Manteo Planning and Zoning Board will be taking up SAGA’s proposed zoning text  amendment today at its 6 p.m. meeting in Town Hall, 407 Budleigh St., downtown Manteo. Here is the Board’s agenda and accompanying documentation:

https://townofmanteo.com/vertical/sites/%7BFA5B00D1-7FF5-44C9-8717-2CCB2DD41EDC%7D/uploads/October_8_2019_Agenda.pdf

Ann G. Sjoerdsma, 10/8/19

 

 

The low bid submitted for the South Dogwood Trail sidewalk construction project came in nearly $400,000 below the $1 million appropriated for the capital expense by the Town Council and was one of three bids accepted by the Town last week.

A fourth bid, submitted by Barnhill Contracting Co., was disqualified because it was incomplete. The bids were opened on Oct. 3.

The three acceptable bids, which range from $623,839.35 to $975,862.80, will be considered by the Town Council at its Nov. 6 regular meeting.

Earlier this year, the Council voted 3-2 to appropriate $1 million from the Town’s undesignated fund balance for the sidewalk project because the capital improvement budget has insufficient funds to pay for it. The principal purpose of the undesignated fund balance is to serve as an emergency reserve in case of natural disaster.

It is expected that the Town will receive some funding from Dare County for the project, perhaps as much as 50 percent of the total cost, according to an informed source.

Hatchell Concrete, Inc., of Manteo—a family-owned business which, according to its website, has been operating since 1988—submitted the low base bid. RPC Contracting, Inc., a contractor that the Town has frequently hired for infrastructure projects, bid $819,710.00 on the project, and Belvin Built General Contracting, Inc., of Powells Point, submitted the high bid.

Town Engineer Joseph J. Anlauf estimated a base-bid range on the sidewalk project of between $862,127.19 and $1,034,552.62, according to the Town’s bid documentation.

See https://www.southernshores-nc.gov/wp-content/uploads/2019/10/Sealed-Bid-Tabulation-S-Dogwood-Path.pdf

Construction of the sidewalk has been conceptualized in two segments: one starting at the intersection of North, South, and East Dogwood trails and running to Fairway Drive, and the other starting at Fairway Drive and running to the Southern Shores Cemetery. Five pedestrian crossings have been planned: at Sassafras Lane, Yaupon Trail, Marina Circle, Osprey Lane, and Wild Swan Lane.

Each contractor’s proposal should be included in the meeting packet for the Nov. 6 Town Council meeting, so the public can see what each bidder has in mind.

PAST ELECTIONS IN SOUTHERN SHORES

In a 9/28/19 blog, The Beacon recalled recent history of Town Council elections in Southern Shores. We promised to fill in some blanks about the November 2011 election, when Jodi Hess, David Sanders, and Larry Lawhon were elected to the three open seats.

The Beacon has confirmed that the three ran unopposed. According to Dare County election records, only 240 votes were cast, reflecting a 9.23 percent turnout of the town’s 2600 registered voters. Both Mrs. Hess (2003, 2007) and Mr. Sanders (2003) had earlier been elected to the Town Council in contested elections, but Mr. Lawhon had not.

Two years later, incumbent Town Councilman George Kolwalski ran unsuccessfully for mayor, and Leo Holland ran unopposed for Mr. Kowalski’s Council seat.

Although Town Council elections have been contested before—e.g., in 2003, six candidates ran for three seats—the number of candidates vying in the November 2015 election for Mrs. Hess’s, Mr. Sanders’s, and Mr. Lawhon’s seats was unprecedented. Eight candidates ran, of whom current Town Councilmen Gary McDonald, Fred Newberry, and Christopher Nason were the top vote-getters. Only Mr. Newberry is running for re-election.

The Town Council election The Beacon finds the most intriguing was a November 2009 face-off between George Kowalski and Brian McDonald, who was then the incumbent. Mr. Kowalski beat Mr. McDonald by two votes! The tally was 495-493. Even more stunning: Mr. Kowalski was a write-in candidate.

Regretfully, I do not know the politics behind this election, although I voted in it. Can anyone fill in the blanks?

REMEMBER, the Town Council candidates’ forum sponsored by the League of Women Voters of Dare County is Monday, from 7 p.m. to 9 p.m., in the Pitts Center. You will be given an opportunity to submit questions that you’d like to ask the candidates. The candidates will answer selected questions and also be allotted time to give opening and closing statements.

Ann G. Sjoerdsma, 10/5/19

The usual Town Council majority voted last night to approve spending $35,000 to hire a beach-nourishment financial planner, even though the Council has not committed to doing a project and, as dissenting Councilman Gary McDonald said, “We can come up with [the] scenarios” for financing, without a consultant’s assistance.

Mayor Tom Bennett and Councilmen Jim Conners and Christopher Nason voted in favor of a budget amendment that was described in the meeting agenda as “half of the total amount due for financial planning from DEC Associates, Inc. for beach nourishment.” For some reason, the dollar amount of the amendment was not indicated on the agenda.

The Beacon erred in its report 9/30/19 in believing that the dollar amount had deliberately been left open-ended, to be decided at the meeting. When we looked in the 76-page meeting packet posted online, we did not see a page indicating that the amendment authorized the transfer of $35,000 out of the unassigned fund balance to expenditures.

The page was there. We apologize for our oversight.

As we wrote on Monday, the father-son team who owns DEC Associates, Inc., a Charlotte-based firm, told the Town Council seven months ago that it would charge the Town $35-$40,000 to develop a financial plan, set up a “beach fund,” and decide what monies would go into the beach fund (i.e., do the “planning”); and then another $30,000 to work on finding the financing.

According to Mayor Bennett, who spoke with The Beacon after the Council meeting, DEC Associates gave him a “worst-case scenario” for an up-front estimate now of its total services: $70,000. When asked if $70,000 represented a cap on costs that would be paid to DEC Associates, in the event the Town approves beach nourishment, the Mayor was noncommittal.

Earlier during the meeting, Mayor Bennett confirmed that all of the Dare County beach towns that have done beach nourishment—Duck, Southern Shores (for the Pelican Watch beaches), Kitty Hawk, Kill Devil Hills, and Nags Head—have used DEC Associates.

The Mayor further showed by his comments that, although he has not publicly shared what he knows, he is well-informed about the financing methods that are available for beach nourishment. He explained, for example, that Duck used special obligations bonds to pay for its 2017 beach nourishment, which will undergo “maintenance” in 2022.

He indicated that he has spoken with officials in the other towns about their projects.

SPECIAL OBLIGATION BONDS SIDESTEP VOTERS

Unlike general obligation bonds, special obligation bonds do not require approval by voter referendum. They are secured by a limited or specific revenue source: In the case of beach nourishment, those property owners who are presumed to benefit most directly from the project supply the revenue through increased real-estate taxes.

That means that oceanfront and oceanside property owners are taxed more than property owners who live farther away from the ocean, but who still benefit substantially from the beaches.

The truth is that Duck, Kitty Hawk, Kill Devil Hills, and Nags Head have all used special obligation bonds to raise the financing needed for their beach projects, and Mayor Bennett knows this.

For as long as The Beacon has heard the Town Council discuss beach nourishment, the majority has clearly stated its preference—we call it bias—for special obligation bonds and the creation of municipal service districts. We heard this bias again last night.

Mr. Nason even acknowledged that he didn’t know about other bonds and revenue-raising methods that could be used, even though DEC Associates went through them all at the Council’s February planning session, which Mr. Nason did not attend, but was videotaped.

The idea that DEA Associates is going to shed some great light on “how we finance this thing,” as Mayor Bennett said, i.e., provide insightful “recommendations” that the Town Council and staff cannot make on their own, strikes The Beacon as absurd.

In 2007, Nags Head voters rejected a general-bond referendum for a beach-nourishment project that was estimated to cost $32 million. Thereafter, the elected officials of Nags Head rejected the will of the voters and embraced special obligation bonds, and other officials in nearby towns have followed suit.

MSDs: TAXING OCEANFRONT PROPERTY OWNERS MORE

When a town pays for beach nourishment with special obligations bonds, it pays for the debt by sorting properties into “municipal service districts” and levying different tax rates on the owners, according to where the property is located relative to the beach. The same would be true for a special obligation bond that pays for “another improvement,” such as a highway, recreational park, or sidewalk.

The Town Council majority might have capitalized the $1.2 million South Dogwood Trail sidewalk with a special obligation bond and sought revenue from the homeowners along South Dogwood Trail, rather than appropriate the money from the Town’s unassigned fund balance, which is used principally for natural-disaster relief.

A sidewalk is arguably a “transit-oriented development project,” which, under N.C. law, can be paid for with a special obligation bond.

The same could be said for the multi-million-dollar canal dredging project, another “transit-oriented” project, which property owner Trish Farinholt pointed out in public comment last night, was capitalized through equal taxation on all property owners, not by taxing only those who own canal-front property or boat in the canals.

In 1974, North Carolina passed a law that allows municipalities to establish MSDs, which are commonly referred to as Business Improvement Districts, in order to raise capital to fund a project that is beneficial to the community. Through MSDs, towns can levy varying increments of taxes on property owners, based on who is presumed to benefit most directly from the improvement.

According to Mayor Bennett, Duck had two municipal services districts for its beach-nourishment tax funding: The “oceanfront” MSD picked up 50 percent of the cost of the fill project; and the “oceanside” MSD picked up 30 percent. The remaining 20 percent came from the Town, in general, which did not increase its tax rate.

Here is how the Town of Duck describes its project funding on its website:

“The project cost was approximately $14,057,929 and was funded through revenue derived from the Dare County Beach Nourishment Fund ($7,094,929), with the remaining $6,963,000 funded through a combination of General Fund appropriation of the Municipal Service Districts (MSD). That is, the Town’s portion of the cost of the project was funded by a contribution from all of the taxpayers in Duck (no tax increase occurred for this portion of the funding) with additional funding provided by property owners in the project area, both oceanfront and non-oceanfront (MSDs). The Town issued Special Obligation Bonds to pay its portion of the project cost with debt service for the bonds to be paid back over a five-year term, ending in FY 2022. The debt service cost to the Town is $1,221,390 per year for the five-year term with additional funding being provided from the Dare County Beach Nourishment Fund.”

See Duck Beach Nourishment Facts & FAQs: https://www.townofduck.com/beach-nourishment-project/faqs/.

(One way to look at the burden placed on Southern Shores property owners in an oceanfront MSD is to say that they are disadvantaged whenever a dollar is deducted from the Town’s General Fund for another high-priced project, such as the South Dogwood Trail sidewalk, that doesn’t benefit them at all. Pitting Us-vs.-Them is never a good idea in town government or community relations.)

Who doesn’t benefit from the beaches?

The Dare County Beach Nourishment Fund contains monies set aside by the county from the 6-percent occupancy tax that it levies. The set-aside is 2 percent of the total annual occupancy-tax revenue collected.

Ms. Farinholt, who owns a flattop at 69 Ocean Blvd., summarized the case for “general fairness” in funding, if a beach-fill project goes forward, when she said:

“All of the property owners should pay equally for the beach renourishment. There should not be any districts. There is one district, and it’s called Southern Shores, the town. Raise the taxes across-the-board.”

Whether you live near the corner of Hillcrest Drive and East Dogwood Trail, at the corner of Trinitie Trail and Gravey Pond Lane, or on Duck Woods Drive, you benefit from the ocean and the tourist dollars that both the ocean and oceanfront rental property owners bring in Your house would have considerably less value if it were in most any other non-coastal town in North Carolina. In fact, you probably wouldn’t be here.

CHANGES IN THE LAW THAT BENEFIT PROPERTY OWNERS

Since the Town of Duck approved its two MSDs in March 2015, the N.C. law about such entities has changed. In 2016, the N.C. General Assembly passed several significant amendments to the MSD statutes: MSDs are not without their detractors.

Two relevant changes include:

1)      Adding the requirement that all new MSDs must be created, modified, and/or abolished by ordinance.

To establish a new MSD, as the Southern Shores Town Council would be doing, the enabling ordinance must receive majority support of the voting members present at two consecutive meetings of the Council.

2)      Giving property owners more direct input in the MSD creation and modification process.

Property owners now may petition the Town Council to request:

i) The creation of a specific MSD;

ii) The exclusion of a property parcel from an MSD; and

iii) The removal of a property parcel from an MSD.

The N.C. statute directs a municipal governing board to adopt a process for considering all properly submitted petitions at regular intervals.

In the case of an exclusion request, the property owner must file his or her petition in writing within five days after the public hearing on a proposed municipal service district has been held.

For background on the statutory changes, see: https://canons.sog.unc.edu/2016-changes-municipal-service-district-msd-authority/

The Beacon believes the Southern Shores Town Council may have its hands full with petitions.

The Town could have prepared a report for all property owners that summarizes the coastal-engineering consultant’s reports in simpler, less obtuse terms—not the deadly prose they are in—and outlined the financing methods available, including special obligation bonds, but it didn’t.

It also could have reached out to property owners, both resident and non-resident, in its newsletter, but it hasn’t.

Ms. Farinholt aptly concluded the discussion about funding last night when she observed to the Council: “You’re much less likely to spend your own money than you are [the money of] all the folks who live out of town.”

You’re also much more likely to run into obstacles.

STORM DEBRIS REMOVAL DELAYED

 The removal of roadside storm debris started Sept. 24, Interim Town Manager Wes Haskett reported last night, but the work has been done by only two trucks.

Mr. Haskett explained that the two contractors hired by the Town underestimated the amount of debris and the time it would take them to pick up and dump that debris, choosing to disregard the Town’s more realistic estimates.

Truckloads of debris must be dumped in Mann’s Harbor, which is an hour-long round trip from Southern Shores, said Mr. Haskett, who added that additional trucks “will be working as soon as possible.”

Upon being asked by Councilman Newberry whether the contractors had a street schedule for roadside debris pickup, Mr. Haskett replied that he didn’t know.

Councilman McDonald then interjected that he had spoken with workers in the street near his home and been informed that the pickups are done “randomly,” with “large piles” being the priority, so that the workers are not continuously starting and stopping.

Mr. McDonald said he had been informed that six more trucks would soon be available.

Ann G. Sjoerdsma, 10/2/19