10/17/19: COUNCIL CANDIDATES ON STORMWATER RUNOFF . . . AND WHO OWNS THE PONDS IN SOUTHERN SHORES? GOOD QUESTION! (Town Planning Board Meets Monday)

circlepond
Pictured above is a view of Circle Pond from the bridge along the pathway that leads from/to Circle Drive to/from  Ocean Boulevard. The pathway and bridge are two of the quaint tucked-away features of Southern Shores.

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

 

 

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