The draft fiscal year 2020-21 budget that the Town Council will consider at its workshop session next Tuesday is unbalanced, showing a shortfall in projected revenues over projected expenses during an uncertain financial time of about $350,000.

Projected revenues for next year are $5,953,243, and expenses are $6,302,096.

For the proposed FY 2020-21 budget, see pages of: 3-17 of the April 21 budget workshop packet: https://www.southernshores-nc.gov/

Interim Town Manager/Budget Officer Wes Haskett and Finance Officer Bonnie Swain have submitted a budget with “minimal increases” in expenses to “keep services running at the current level,” they write in a memorandum to the Town Council, and have reduced revenues in occupancy taxes (by an overall 20 percent); sales taxes (5 percent); and land- transfer taxes (2.5 percent).

The projected occupancy-tax revenue assumes receipts in July of 50 percent of last July’s receipts; 30 percent in August, 20 percent in September, and 10 percent in October, according to the memorandum. The two staff members assume all other occupancy-tax receipts will be “flat as compared to last year’s numbers.”

They are also assuming that “travel patterns will return to normal.”

Mr. Haskett and Ms. Swain project a slight increase in real-estate property (aka ad valorem) tax revenue, based on a revenue neutral tax rate (RNTR) of 0.1958, which towns are required by state law to calculate, but not adopt, after a countywide property reappraisal like the one Dare just performed.

The Town’s current tax rate is 0.22, or 22 cents per $100 of property value.

For an explanation about the confusing RNTR, see: https://canons.sog.unc.edu/the-revenue-neutral-tax-rate/

Rather than recommend to the Town Council a preliminary budget that is balanced, Mr. Haskett apparently has left to the Council the tough decision-making about how that can be achieved. In the joint memorandum, he offers the following options:

• Cutting expenditures/services
• Using monies from the Town’s unassigned fund balance
• Increasing taxes (by keeping the current 0.22 tax rate)
• Using a combination of the above three options

The current balance in the undesignated fund balance, which was depleted in this fiscal year by $1,406,411–some of which will be reimbursed by grant money–is not indicated in the memo.

North Carolina town managers are tasked by state law with preparing and submitting the budget and capital program to a town council. (See N.C. General Statutes 160A-148(5)). They are in the best position to analyze and consider carefully all departmental requests. A town council serves only in an advisory role, offering guidance.

The Beacon believes that Mr. Haskett should have dug deeper for cuts in expenses, not only to balance the budget now as he and Ms. Swain have projected it, but to anticipate further revenue reductions. We believe Mr. Haskett should be suggesting potential cost-saving measures—per a town manager’s budgetary duty and power—and we can readily offer some obvious ones:

1) Asking all department heads to cut their budgets by a mandatory 10 to 15 percent;

2) Eliminating all external contracts (engineering, beach nourishment studies, etc.);

3) Reducing or eliminating capital expenditures.

Employee salary cuts should be considered, too, in case the local economy fares far worse than currently anticipated.

We also believe the timing of this draft budget is unfortunate. In a month, we will know much more about what the “new normal” in North Carolina will look like and how the tourism and construction industries will be affected. The Town can be flexible in the next two months about when it workshops the budget; when Mr. Haskett submits a balanced budget; and when the public hearing on the proposed balanced budget is held.

The usual budgetary deadlines need not be rigidly observed, as long as an FY 2020-21 budget is approved by June 30 and the public has had an opportunity to be heard.

THE GOVERNOR’S PLAN: TESTING, TRACING, TRENDS

Governor Roy Cooper started discussing life in North Carolina after COVID-19-related restrictions are lifted yesterday at a news conference at the state’s Emergency Operations Center in Raleigh.

“This virus is going to be with us until there is a vaccine, which may be a year or more away,” the Governor said, cautiously. “That means as we ease restrictions, we are going to enter a new normal.”

Governor Cooper seeks to ensure that when people go back to work, and businesses and schools reopen, public-health measures are still in place to protect the most vulnerable people. He is cognizant of guarding against a spike in COVID-19 cases that could overwhelm hospitals and cause widespread casualties.

“We now need to look ahead at how we stay ahead of the curve,” said Dr. Mandy Cohen, secretary of the N.C. Dept. of Health and Human Services, a chief adviser to the Governor.

The plan that the Governor proposes to initiate gradually consists of three components:

• Widespread testing, so infected people can be identified, isolated, and tracked;
• Aggressive contact tracing, so that people who came in contact with individuals who test positive for COVID-19 can be identified and tested, and, if necessary, isolated and tracked;
• Detection of “trends” that will influence policy decisions.

In order to ease restrictions, there needs to be an increase in testing capabilities over what is currently possible in the state, and more public-health personnel need to be hired in order to do aggressive contact tracing, according to the Governor’s Office.

See press release, “Governor Cooper Shares Path Forward for North Carolina”: https://governor.nc.gov/news/governor-cooper-shares-path-forward-north-carolina

By trends, Governor Cooper means data showing changes in the number of new positive COVID-19 test results; the number of COVID-19-related hospitalizations and deaths; the number of available hospital beds and ICU capacity; and the number of available supplies of personal protective equipment. Any worrisome trends that emerge will have to be addressed by public-health safeguards, such as social distancing, face masks, and limited gatherings.

Invoking the now common light-switch analogy, the Governor said he prefers to use “a dimmer switch that can be adjusted incrementally.”

Until state and county restrictions are gradually lifted, we will not know how the Outer Banks will “trend.”

RECYCLING CONTRACT

Returning to the draft Southern Shores FY 2020-21 budget, we were glad to see that the town has been offered a recycling contract by Recycling & Disposal Solutions (“RSD”) of Virginia with a fixed price of $57.50/ton for processing single-stream recycling with glass; or $49/ton for single stream recycling without glass.

RSD, which operates a materials recovery facility in Portsmouth, is assuming the market risk should the price of commodities drop—which is what Bay Disposal & Recycling should have done, instead of requesting a price hike from the Town Council, when the processing fees it was paying increased.

The Beacon previewed RSD’s proposed contract with Nags Head on 4/14/20, expecting it to be much like the one the recycling company would offer Southern Shores, and it is, with the significant exception of the price. (See pp. 18-48 of the meeting packet.)

RSD’s contract only concerns the disposal of the Town’s curbside recyclables once they arrive at its facility. Bay Disposal would charge the Town separately for collecting the recyclables and hauling them to Portsmouth. As of yesterday, Mr. Haskett did not have a price quote from Joshua Smaltz, who is Outer Banks Site Manager for Bay Disposal.

A big advantage that RSD offers over the previous processing arrangement that Bay Disposal had with a Chesapeake recycling center is that it will handle sorting all recyclables so that any contamination does not adversely affect the Town.

Facing what Nags Head Town Manager Cliff Ogburn believes might be a $1.5 million budgetary shortfall in the next fiscal year, the Nags Head Board of Commissioners, which met yesterday, decided to postpone a decision on its RSD contract until its May 6 meeting. The larger town was not offered a fixed price like Southern Shores was.

The Beacon would like to see the Town Council approve an arrangement with RSD and do some good for the planet, while also supporting the recycling market. If the Council decides to continue to allow Bay Disposal to haul our recyclables to the Wheelabrator incinerator in Portmouth, it will do neither.

The Beacon has lost track of the figures, since the Town Council gave Bay Disposal a price increase to transport the Town’s recyclables to Wheelabrator, but it may be that the arrangement with RDS is also more cost-effective.

ZOOM AND PUBLIC COMMENT

The Town has given notice that next Tuesday’s 9 a.m. budget workshop will be held in the Pitts Center, “utilizing the Zoom platform/app.” Details about who will be present at the Pitts Center would be welcome, but the Town does not provide them. We will never understand why the Town is not more forthcoming with basic information.

We suggest that you do a trial run with Zoom before Tuesday, if you have not used it before. The Town’s instructions, via the link below, might confuse you:

https://www.southernshores-nc.gov/wp-content/uploads/2020/04/Southern-Shores-Notice-Electronic-Participation-April-21-2020.pdf

The bottom line is that, once you have downloaded the Zoom software and can join a meeting, all you need to participate in the budget workshop is the meeting ID, which is 952 9642 3158.

You also may listen to the meeting on the telephone. The link above gives telephone numbers that you may use.

You may email public comments to Town Clerk Sheila Kane before the meeting at skane@southernshores-nc.gov, with the subject line, “Public Comment April 21, 2020,” or you may comment live via the chat feature on Zoom.

If you do email your comments, someone will read them into the record on your behalf. The Beacon advises you to be mindful that the person who reads them might be a slow and stumbling reader. You are limited to three minutes, which may be shortened when read by a hesitant reader.

The Beacon will write again about the draft budget before next Tuesday’s workshop.

Ann G. Sjoerdsma, 4/16/20

 

 

Dare County reminds area residents in its COVID-19 bulletin today of a report by the U.S. Centers for Disease Control and Prevention that about 25 percent of patients with the new coronavirus do not show symptoms. Thus, although the County has not received any positive COVID-19 test results during the past three days, that does not that mean that the respiratory illness “is not in our community.”

See Bulletin No. 43: https://www.darenc.com/Home/Components/News/News/6137/1483

COVID-19 Bulletin No. 43 also reports that of the 14 surviving Dare County residents who previously tested positive for COVID-19, 11 have recovered or are asymptomatically cleared, and three are asymptomatic. A 15^th person died.

“Every day,” the bulletin says, “healthcare providers in Dare County are testing individuals they believe are in need of COVID-19 testing and meet the following criteria: fever of 100.4 or higher, cough, and respiratory illness.” Asymptomatic people are not tested unless they are known to have been exposed to an infected person; then they are tested as a part of “contact tracing.”

Dr. Sheila Davies, director of the Dare County Dept. of Health and Human Services, credits the low incidence of COVID-19 in the county to “good public health practice,” including social distancing and proper hand-washing and hygiene. The message of the bulletin is to stay the course and not ease up on mitigation measures now.

ERROR REPEALS SPECIAL BONDS FOR BEACH NOURISHMENT

In other Dare County news, Kirk Ross of The Coastal Review Online reported yesterday that an “error” by the N.C. General Assembly “eliminated a key funding mechanism for beach nourishment and other public projects.”

As Mr. Ross reported, the General Assembly unanimously voted last June to pass Senate Bill 381, which he described as a “rewrite of laws for a handful of state boards and commissions.” Included in the 14-page bill, however, was a single-sentence repeal of Chapter 159I of the N.C. General Statutes, which authorizes municipalities to use special obligations to finance projects in specific categories, including for beach nourishment.

(It is on page six of the bill.) See the article at https://www.coastalreview.org/2020/04/legislative-error-wipes-out-bond-program/

All Dare County beach nourishment to date has been financed in part by special obligation bonds, which do not require a public referendum and allow for very short short-term borrowing.

Senator Mike Woodard, D-Durham, one of the sponsors of SB 381, which took effect July 1, 2019, told the Coastal Review Online that a “repeal of special obligation bonds was not my intent . . . I will work with our local governments to fix this situation when the short session begins.”

The legislature is scheduled to convene April 28.

SOUTHERN SHORES IS CONSIDERING A $14-$16 MILLION COASTLINE NOURISHMENT PROJECT that would be financed through special obligation bonds and Dare County monies. Approval of such a project may finally occur at the Town Council’s budget workshop on April 21.

The Town has preliminarily proposed three “municipal service districts” to fund the debt through varied tax increases—oceanfront property owners would pay the highest tax rate increase—but it has yet to prepare a report that demonstrates and justifies the proposed district boundaries. All it has done is provide financial data, not a coherent report.

For a municipal service district to be designated and the property owners within it to be taxed more than other property owners in the town, N.C. law requires Southern Shores to attest that the proposed district—such as the oceanfront—is in need of beach nourishment to a “demonstrably greater extent than the rest” of the districts in town.

Inasmuch as Southern Shores is a town of rental homes whose occupants visit because of the oceanfront, and the beaches are held in trust for the public and not privately owned, The Beacon questions the districts the Town has proposed. They are based solely on proximity to the oceanfront, not on the “demonstrably greater extent” standard.

It seems more reasonable to The Beacon either to designate two MSDs, one of which starts at the oceanfront and goes west to the year-round neighborhoods in the maritime forest, and the other of which includes the year-round neighborhoods; or to make the town one single district, acknowledging that all property owners benefit equally from a beach nourishment project. There are seasonal rentals in the year-round neighborhoods, too, including airbnb.com rentals.

The layout of Southern Shores does not resemble any of the other beach towns that have secured special-obligation funding and created MSDs. There is a short mile between the ocean and the Currituck Sound in Southern Shores, and vacationer foot traffic from rental homes west of Ocean Boulevard and Duck Road to the oceanfront is heavy and easy to track.

The Town Council should give more consideration to Southern Shores’ uniqueness and not simply apply a one-size-fits-all plan for MSDs that may work for Kill Devil Hills and Nags Head, but not Southern Shores.

The ocean is proximate to most of the homes in Southern Shores, rental and otherwise. The Council needs to think more about the “demonstrably greater than” standard and apply it judiciously to all property in town.

Ann G. Sjoerdsma, 4/15/20

(Dear Readers: I should have made it clear in my earlier post today that I am a client of Southern Shores Realty. My family has used the company as our rental agent since 1971. This afternoon, I received an email from Mike Stone, the owner of SSR, that I would like to share with you. Any words you see in brackets are mine. –Ann)

Dear Southern Shores Realty Homeowners –

4 weeks ago the local county leaders made the decision to restrict access to the Outer Banks. The restrictions were placed in an effort to not overwhelm our limited health care services with impacts from the coronavirus. We are reaching out to you today regarding the impacts to our marketplace.

For Southern Shores Realty, this impact is profound. Our business is based on welcoming visitors to your homes, and our tourism industry is based on customer service. Many of us have chosen to work in this industry based on the experiences we had coming here to enjoy vacation rentals in this idyllic location.

We are here to [look out] for you and to look after your homes while helping guests achieve their vacation dreams. We look forward to your return to your homes and beach. Restricted access and unavailability of homes is counter to our way of life. We want you to be here, joining with us in preparing your homes for the strong rental season that we planned.

Southern Shores Realty has stood strong through many storms, and we are doing our best in navigating this one. We ask you to join us in reaching out to county leaders to be sure they lift the access restrictions, in a manner that allows you to access your homes, and guests can arrive once properties are ready for occupancy. We are prepared to get your house ready for the season if you would prefer to have us take care of it.

Members of our management team have been in contact regularly with the other property management companies on this beach, and attending meetings for local businesses regarding this pandemic. Earlier today a few members of our management team attended a meeting with the Dare County Board of Commissioners Chairman Bob Woodard. Here are some takeaways from today’s meeting:

-The County Commissioners are trying to get us back to normal as soon as possible.

-There is a control group working on a plan for re-opening. A major question is will we have the supplies to do so (restaurants will need 2 weeks to build up food inventory, etc.). They are meeting with suppliers to make sure.

-They are awaiting the Governor’s plan to allow businesses, etc. to re-open. That is out of their control.

-They are looking at a slow entry once the restrictions are lifted.

-The [Dare County] Control Group is open to any suggestions and welcomes our input. An advisory committee of local businesses has formed to represent different needs to be addressed in the plan to re-open this area.

We have loved receiving the outpouring of support from owners who know the struggles we are facing and see that we are all in this together as none of us [is] untouched by the impacts. Your patience and understanding strengthen us.

At the same time, we understand the frustration we are hearing from others, who want the access restrictions currently in place from Dare and Currituck County lifted. We hear your concerns and understand fully the economic impacts and hardships, as well as the loss of good will from some locals on social media. To be clear, Southern Shores Realty supports you. We see the difficulties you are experiencing, and we are following the local and NCREC [N.C. Real Estate Comm.] guidelines in doing all we can, within the law, to best serve you.

For every week that has gone by where guests were unable to access their vacation rentals due to Dare County and Currituck County current access restrictions, Southern Shores Realty is joining you in fully refunding the guests. We are continuing to do so each week that goes by in accordance with the guidelines set forth by the NC Real Estate Commission and other state authorities.

Our reservationists are continuing to take both the kind and the angry phone calls from guests. It is not easy to be on the receiving end of the angry, scared and frightened phone calls. Our reservationists are truly exemplary, as they listen to the concerns of the guests and work toward solutions. They explain that we cannot refund July reservations today because we do not know if access restrictions will be lifted then. The reservationists are working with the callers individually offering options that are in line with our cancellation policies. The reservationists are reminding guests that you, the property owners, have had to return funds to visitors, funds that you use to pay the mortgages, the high cost of insurance, the maintenance costs, etc. on your beach homes. Our reservationists focus first on moving guests to later dates, to minimize the financial losses we are both taking in this crisis.

The reservationists are also encouraging guests who have experienced job loss, pay cuts, illness in the family, etc. to reach out to their travel insurance provider. The insurance providers are adjusting their statements as the impacts change.

Please know that we are here, working hard for you. To stay in line with social distancing guidelines, some of us have changed our hours, others are working from home. While some of us are working from the offices, our offices are locked and visitors can call us should they need access to the building or staff members. We welcome your input, feel free to call with questions or concerns.

We are your partner, and we thank you for your continued patience and understanding. We look forward to seeing you here at the beach!

Sincerely,

Mike Stone and
The Staff of Southern Shores Realty

Patrina Chappelle, rental manager at Southern Shores Realty, advises non-resident property owners to email Dare County officials, asking them to “stagger” reentry to the county after access restrictions are lifted “like you do for a hurricane evacuation order”—with non-resident homeowners being given priority over visitors.

Non-resident property owners need time, Ms. Chappelle explained, “to be able to prep and get their homes ready”—or “as ready as possible,” considering the loss of weeks they would usually spend doing spring cleaning, maintenance, repairs, shopping for supplies, etc., etc.

It’s a long list. I know from experience.

Southern Shores Realty (“SSR”) is a rental agent for more than 400 properties, the majority located in Southern Shores. Ms. Chappelle herself is a resident of Chicahauk.

In a telephone conversation yesterday with The Beacon, Ms. Chappelle said that SSR is viewing the current shut-down situation “a week at a time.” Refunds to renters who cannot access Dare County and do not choose to book a later vacation time are being processed on that basis.

So, if the visitor entry restriction is lifted on May 16, for example, renters who have booked the vacation week of May 23-30 can take occupancy, regardless of the condition of the house they will occupy.

“We would ask them to please bear with us,” Ms. Chappelle said, just like after a hurricane evacuation, and to report any problems with the rental property.

Governor Cooper’s stay-at-home order is in effect until April 30, but he has already given indications in public remarks that he may extend the order to mid-May.

The number of COVID-19 cases in North Carolina during the past 24 hours grew by fewer than 100, according to the N.C. Dept. of Health and Human Services, marking the first time in a week that the increase was not in the triple digits.

NCDHHS watches the “doubling rate,” which is how quickly the total number of COVID-19 cases statewide doubles. N.C. public-health officials believe the rate is slowing in large part because of the stay-at-home guidelines that are in place.

The peak case count in North Carolina has been projected to be around April 23.

Whatever occurs, Ms. Chappelle said she and the SSR staff, who are working fewer hours and often from home, are doing their best to be on top of a “fluid situation” that is likely to leave them scrambling at the last minute to prepare houses for renters.

SSR has expressed its “concerns,” she said, about the pressure-filled situation the company will be in once the entry restrictions are rescinded to the Dare County Control Group, which is chaired by Bob Woodard, chairperson of the Dare County Board of Commissioners.

Ms. Chappelle suggests that non-resident property owners email Mr. Woodard and/or Dare County Manager Bobby Outten about receiving a priority reentry.

The Beacon notes further that the mayors of all Dare County towns are members of the Control Group. You may reach Southern Shores Mayor Tom Bennett at tbennett@southernshores-nc.gov.

ON A PERSONAL NOTE, I would like to express my empathy for non-resident rental-property owners, who undergo anxiety enough during the spring reopening crush without having to contend with being barred from the county.

As a local homeowner who also owns one rental home, and manages another that I own with (non-resident) family, I appreciate both “sides” of the entry restriction, but I believe, as time passes, that the scales of justice tilt more in favor of the non-resident rental-property owners, who drive the Dare County economy.

They are essential workers on the Outer Banks.

I am less supportive of non-resident owners who use their properties exclusively as second homes. Unless they live in Nebraska, Arkansas, North Dakota, South Dakota, or Iowa, they are living in states whose governors have imposed stay-at-home orders that I believe they should observe. We are all experiencing a national emergency.

Unfortunately, the reality is that we may be dealing with this new coronavirus for at least another two years, until a vaccine is developed and distributed. We are likely to be subject to intermittent social-distancing advisories and will need to rely on mitigation efforts, not containment by exclusion.

My first rental is not until May 23 (hence my hypothetical) because I have scaled back my summer season, and I am here to arrange repairs and maintenance, to purchase furniture and needed supplies, and to do the myriad other tasks that are required to prepare a rental for the season; but I am still anxious. And all I have is a modest three-bedroom beach box with no bells and whistles, like so many Southern Shores rental homeowners offer.

The uncertainty of this summer season, and the possible loss of anticipated income, can generate feelings of unease and tension in the coolest of rental property owners. I am not sure how well our elected officials understand this.

66 APPLICANTS FOR TOWN MANAGER’S JOB

In a late post yesterday, The Beacon reported that 66 applicants, from 19 states, have applied for the position of Southern Shores town manager, according to search consultant Ellis Hankins of The Mercer Group in Raleigh.

The number of applications exceeds the projection that Mr. Hankins gave the Town Council in February of 40 to 50 applicants. We believe this success is a testament to Mr. Hankins’s considerable expertise, as well as to the appeal of Southern Shores.

“The Town Council has a good number of very well-qualified candidates to consider at their meeting on April 20,” Mr. Hankins told The Beacon.

We will be eager to learn from the Town Council generally—without it violating confidentiality—about the search progress that it makes in Monday’s closed session.

Ann G. Sjoerdsma, 4/15/20

 

 

Sixty-six applicants, from 19 states, have applied for the position of Southern Shores town manager, search consultant Ellis Hankins told The Beacon today.

“We are very pleased with the quality of the candidate field,” Mr. Hankins said in an email. “The Town Council has a good number of very well-qualified candidates to consider at their meeting on April 20.”

Earlier today The Beacon reported that the Town Council has scheduled a closed session at 1 p.m. Monday in the Pitts Center to discuss “the on-going town manager selection process.”

The notice of the meeting posted on the Town website says no more than that, and, as The Beacon observed, the Town Council has given no updates about the search, which was officially launched on Feb. 20 when the first job advertisements were placed.

Planning Director Wes Haskett, who formerly served as deputy town manager, has been serving as an interim manager since Sept. 1, the date of former Town Manager Peter Rascoe’s official retirement. Mr. Haskett became acting town manager in mid-August when Mr. Rascoe left on two weeks’ leave.

By a vote of 3-2, the former Town Council refused to take any action to move the job search forward after Mr. Rascoe’s July resignation notice by identifying and hiring a qualified search firm. The majority deferred to the soon-to-be newly constituted Town Council that would take office in early December.

The Town contracted with Mr. Hankins, who is senior vice president of The Mercer Group in Raleigh, in February.

According to Mr. Hankins, “The search process is still on schedule, despite the recent challenges.”

The original search timeline called for the Town Council to meet in closed session in mid-April to consider candidates recommended by Mr. Hankins and to select five to seven semifinalists from among them to interview.

The Town Council voted to postpone this closed session to accommodate a family vacation Councilman Matt Neal had planned to take. It now will be held on April 20.

The Beacon does not understand why the Town could not have informed the public of the specific reason for Monday’s closed session, as well as give an idea as to how successful the search has been. With the current COVID-19 crisis, it is reasonable to wonder if the job search has been delayed.

Too often notices of Town meetings are insufficient in detail. Case in point: The agenda for next week’s budget workshop lists a number of topics for discussion, without giving any indication as to the Council’s intentions. Other towns are far more forthcoming.

According to Mr. Hankins, “The Council will discuss [on Monday] whether to proceed soon with remote initial interviews with selected semifinalists by electronic means, or postpone the interviews in hopes of being able to talk with candidates face to face. In any event, the Council can invite one or two finalists for face to face interviews later, if conditions allow.”

The Beacon appreciates the update.

THE WASHINGTON POST TAKES UP NON-RESIDENT PROPERTY OWNERS’ PLIGHT

Dare County’s March 19 order barring non-resident property owners from entry is questioned in an article in today’s The Washington Post about border checkpoints established by states and counties nationwide during the COVID-19 crisis.

See https://www.washingtonpost.com/local/trafficandcommuting/covid-19-checkpoints-targeting-out-of-state-residents-draw-complaints-and-legal-scrutiny/2020/04/14/3fc0ed42-774e-11ea-b6ff-597f170df8f8_story.html

The article by Luz Lazo and Katherine Shaver mentions the lawsuit filed last week against Dare County by six non-resident property owners and quotes the plaintiffs’ attorney, Chuck Kitchen, as saying, “Just because you have a state of emergency does not mean that the government can suspend all your constitutional rights.”

Dare County Manager/Attorney Bobby Outten defends the entry restriction, purportedly saying: “We certainly want to keep the virus from spreading, but as important, if we do get it, we want to be sure we can take care of whoever gets sick. . . . We can’t do that with hundreds of thousands of people here.”

According to Mr. Outten, in The Post’s account, the “barrier islands” share 15 ambulances, and the Outer Banks Hospital does not have an intensive care unit.

On the matter of constitutional rights, the journalists write:

“Legal experts say state governments and police have broad power in a public health emergency, including the authority to order a quarantine. But some say some checkpoints appear to violate constitutional protections of free travel.

“Meryl Chertoff, an attorney and law professor leading the Georgetown Project on State and Local Government Policy and Law, said the Constitution prohibits state from discriminating against residents of another unless there is no less restrictive means to accomplish a legitimate goal. [This is the standard that The Beacon has cited.]

“‘The problem here is that you don’t know who is infected,’ Chertoff said. ‘If we get to the point where there’s rapid testing, then they could set up road blocks and run a spot test and turn around people who are sick. But in the absence of that, these roadblocks are way overbroad and are interfering with the right to travel.”

The Post did not quote a legal expert with a differing opinion, and certainly they exist. This is not a slam-dunk legal decision.

The article further quotes Boris Lushniak, dean of the University of Maryland School of Public Health in College Park, as saying: “If states with police checkpoints think they’re going to stop the disease, that’s not going to work. . . . But what may work is if I get pulled over . . .  someone tells me what the rules are” to self-quarantine. And he does.

But following up with someone who has agreed to self-quarantine, ret. USPHS Rear Admiral Lushniak says, is “a waste of time.”

Admiral Lushniak served as acting U.S. Surgeon General for 17 months during President Obama’s second term. A medical school graduate whose biography does not include medical practice, he also has worked at the U.S. Centers for Disease Control and the Food and Drug Administration.

Instead of staffing labor-intensive checkpoints, police should focus on patrolling communities to prevent people from congregating and to urge them to stay home, according to Scott Burris, an attorney and director of the Center for Public Health Law Research at Temple University’s school of law.

“We’re all exposed now—that’s how we have to think about it,” Professor Burris says. “There’s no geography to this now. It’s a national problem.

The Post reporters claim in their article that “deputies” in the Outer Banks “have ticketed four people who tried to get around the checkpoints and turned around about three dozen who tried to cross the Currituck Sound by boat. Officers also found one nonresident who tried to sneak in on a tow truck and another hidden in the trunk of a car.”

Without citing sources for these claims, The Post is passing along the same anecdotal evidence that stay-at-home locals have heard. The Beacon expected more.

Ann G. Sjoerdsma, 4/14/20

The Nags Head Board of Commissioners is expected to consider at its meeting tomorrow morning a draft contract with a Virginia recycling company with whom the Town of Southern Shores also could partner.

The Nags Head Board will meet at 9 a.m. by electronic means. The public may “attend” the meeting by registering for a webinar or viewing it by live stream on the town website. (See links below.)

The discussion among the commissioners about whether or not to do business with Recycling & Disposal Solutions (“RSD”), which operates a materials recovery facility (“MRF”) in Portsmouth, should be a preview for the Southern Shores Town Council.

The Nags Head Board will have before it a draft of RSD’s 32-page “single-stream recyclables processing agreement,” which the Town Council will likely scrutinize at a future meeting.

Interim Town Manager Wes Haskett told The Beacon by email today that he will “provide Council with an update on the RDS proposal” at its April 21 budget workshop when he presents proposed expenses for fiscal year 2020-21. But RSD’s draft agreement is not listed as an agenda item for the Town Council.

In an April 6 email, the N.C. Dept. of Environmental Quality’s (“N.C. DEQ”) solid waste division informed the counties and towns that use the Powells Point-based Bay Disposal & Recycling to haul recyclables about the availability of RSD’s MRF. Mr. Haskett informed the Town Council at its April 7 meeting about this option.

Since last December, Bay Disposal has been hauling Southern Shores’ curbside recyclables to an incinerator operated by a waste-to-energy facility in Portsmouth, not to a recycling center. Such disposal does not conform with N.C. law. In the interim, N.C. DEQ has been looking for a long-term legal solution for Outer Banks recyclables.

RDS proposes to contract with municipalities separately from Bay Disposal, which, heretofore, has subsumed a recycling facility’s per-tonnage processing costs in the fees it charges.

Mr. Haskett told The Beacon that he has not yet received a price quote from Joshua Smaltz, Outer Banks Site Manager for Bay Disposal, for its services, in the event that the Town contracts with RDS. He reported the same a week ago.

“If I have received a quote from Josh Smaltz with Bay Disposal for their services to collect and transport our recyclables to the RDS facility prior to the [April 21] meeting,” Mr. Haskett emailed today, “Council could direct Town Staff to include that cost in addition to the cost for processing at the RDS facility in the proposed [FY 2020-21] budget.”

The Beacon believes Southern Shores should capitalize immediately on the opportunity presented by RDS.

THE DRAFT CONTRACT NAGS HEAD WILL CONSIDER 

The RDS contract Nags Head will consider tomorrow covers a five-year term. RDS proposes to accept at its MRF all single-stream, co-mingled “recoverable materials,” which the agreement defines as materials that can be processed and used again.

Those materials that are considered recoverable are listed in an appended table that the parties may modify later, depending on prevailing recycling market conditions.

These materials are categorized by the following commodities: fiber, glass, plastics, metals, and clean separate cardboard, which is cardboard that has less than 2 percent contamination.

Another attached table lists RDS’s processing fees and rebates, according to whether the single-stream recyclables include glass or not. (See pp. 30-31 for the tables. The link to the contract is published below.)

The monthly processing fee fluctuates according to what is known as the Average Commodity Revenue Price Index (“ACR Price Index”). The highest processing fee/rebate listed in RDS’s table is $94/ton for a single stream with glass, and $74/ton for a single stream with no glass.

Inasmuch as glass can be recycled for free in Dare County’s fabulous glass crusher at its recycling facility in Manteo, there is incentive for towns to arrange glass-free processing.

(See The Beacon’s 3/12/20 post about the glass crusher, the only county-owned crusher in the State of North Carolina.)

The Beacon will not pore over RDS’s proposed contract terms—that is what town managers and town attorneys do—but we will note that RDS is responsible for promptly containing all “unacceptable material” that it receives and notifying the town of the problem, so that it can correct the problem before receiving any “chargebacks.”

RDS states in its draft contract that it seeks to achieve “as high a level of recovery” of recoverable material “as is possible,” using the machinery it has to sort the recyclables; and, if a town chooses not to handle unacceptable material itself, RDS will remove, transport, and dispose of it, and bill back any fees to the town. (Some of this contract language could be made more clear.)

The contract also specifies that if RDS should open a MRF in North Carolina that is closer to the Outer Banks than its Portsmouth MRF is, the town agrees to have its recyclables delivered to this facility instead. The N.C. DEQ had hoped that RDS would open a facility in Elizabeth City.

For links to all of the above, see:

Draft contract with RDS: http://www.nagsheadnc.gov/AgendaCenter/ViewFile/Item/2250?fileID=3859

Nags Head Board of Commissioners’ agenda: http://www.nagsheadnc.gov/AgendaCenter/ViewFile/Agenda/_04152020-258

Letter from the N.C. DEQ re RDS’s facility in Portsmouth: http://www.nagsheadnc.gov/AgendaCenter/ViewFile/Item/2250?fileID=3852

Registration for the webinar of the commissioners’ meeting: https://zoom.us/webinar/register/WN_YjqmiLnuR-CUDH5LI0svCg

UPCOMING SOUTHERN SHORES TOWN COUNCIL MEETINGS

The Southern Shores Town Council will hold its first, and quite possibly, its only budget workshop at 9 a.m. April 21 by Zoom videoconferencing. You may access the agenda here:

https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2020-04-21.pdf

Mr. Haskett advised The Beacon by email today that “Unless Council directs Town Staff otherwise, this will be the only work session between the April 21st meeting and the May 5th meeting at which time I will present a balanced budget.”

The Beacon will write more about this workshop after the meeting packet is posted on the Town website.

The Town Council has scheduled a closed session next Monday, 1 p.m., at the Pitts Center, to discuss the on-going town manager selection process.

See https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2020-04-20.pdf

The Beacon believes that the Town Council should already have given an update about the town manager search on the Town website or at its April 7 meeting, at the latest.

A majority of the Town Council has said publicly that the selection of the new town manager is the most “critical” issue facing the town, but not a word has been spoken or written officially about the search in almost two months.

Under the original timeline, the Town Council would soon be considering recommended candidates and selecting five to seven people to interview.

TODAY’S DARE COUNTY BULLETIN

Today’s Dare County Emergency Management bulletin reports no change in the number of positive COVID-19 cases.

Of the five people associated with Peak Resources who tested positive after a resident there died, two have been asymptomatically cleared and the other three remain asymptomatic, according to the bulletin.

Peak is now checking the temperatures of all staff members upon their arrival to work and before starting their shifts, and doing twice-a-day temperature checks of all residents, Bulletin No. 41 states.

See Bulletin No. 41 at https://www.darenc.com/Home/Components/News/News/6131/1483

Ann G. Sjoerdsma, 4/14/20

 

The attorney who sued last week in federal court on behalf of six non-resident Dare County property owners who have been prohibited from entering the county since March 19 expects to file a motion for preliminary injunction this week.

Attorney S.C. (Chuck) Kitchen of Kitchen & Turrentine, PLLC in Raleigh told The Beacon this afternoon that he plans to file a motion for what is known as a “PI” this week and that it will be up to the judge to set a hearing date. He would not speculate on when the hearing might be scheduled.

Mr. Kitchen filed the nonresidents’ complaint in Bailey et al v. County of Dare, N.C., in the U.S. District Court for the Eastern District of North Carolina on April 7.

The complaint alleges that Dare County’s March 19 decision to bar entry by non-resident property owners during the COVID-19 emergency violates the plaintiffs’ constitutional rights as guaranteed by the Privileges and Immunities Clause in Art. IV, sec. 2, clause 1, of the U.S. Constitution.

The case has been assigned to U.S. District Court Judge Louise W. Flanagan, Mr. Kitchen said. Judge Flanagan, 57, was appointed to the federal bench in 2003 by President George W. Bush. She is located in New Bern.

Mr. Kitchen said he has not been contacted by a representative of Dare County since he filed the lawsuit last Tuesday.

Dare County will have an opportunity to respond to the PI motion and its accompanying brief before a hearing on the merits.

A preliminary injunction is not a temporary restraining order (TRO), which a court may issue on an expedited basis—and even “ex parte,” meaning one-sided, without hearing from the defendant—in order to prevent immediate irreparable harm from occurring to the moving party before a decision on the case merits is made.

In elaborating upon the constitutional rights violated, the complaint cites the plaintiffs’ right “to travel, to engage in a common calling or occupation, and to obtain medical treatment.” The “common calling” alleged in the complaint is that of renting property.

Plaintiffs John P. Bailey, a resident of South Carolina; E. Thompson Brown, a Virginia resident; and Todd A. and Babette S. Edgar, a married couple from Maryland, will be “unable to prepare their [rental] properties for the spring and summer rental season if they are unable to enter Dare County,” according to the complaint.

The Edgars own an oceanfront home in Southern Shores, as well as two rental homes in Duck.

Plaintiffs Paul and Sheryl Michael of Virginia allegedly use their Dare County property as a second home. Mr. Brown also has a property that he uses as a second home.

You may access the complaint in Bailey v. County of Dare here: file:///C:/Users/Annsj/Pictures/BaileyvDare.pdf.

The plaintiffs seek relief in the form of a declaratory judgment from the court stating that Dare County’s entry prohibition is unconstitutional as applied to them and preliminary and permanent injunctions against Dare County that would prevent it from enforcing the prohibition. They also seek nominal damages and attorneys’ fees.

Another claim raised by the complaint challenges the means and authority by which Dare County enacted the entry restriction. The plaintiffs claim that N.C. law requires the county to adopt an ordinance before it can impose prohibitions and restrictions in an emergency.

According to the American Bar Assn., the test applied by a court in evaluating a motion for a preliminary injunction is generally four-factored: “1) that he or she is likely to succeed on the merits of his claims; 2) that he or she is likely to suffer irreparable harm without preliminary relief; 3) the balance of equities between the parties support an injunction; and 4) the injunction is in the public interest.” (“Irreparable harm” is a big hurdle.)

See ABA: https://www.americanbar.org/groups/litigation/committees/woman-advocate/practice/2018/preliminary-injuction-relief/

During the COVID-19 emergency, individual judges of the U.S. District Court for the Eastern District of North Carolina are permitted to hold in-person hearings and proceedings, but they are encouraged by a standing order issued March 18 by Chief Judge Terrence Boyle to conduct such hearings by telephone or video.

See http://www.nced.uscourts.gov/data/StandingOrders/20-S0-5.pdf

 DARE COUNTY BULLETIN NO. 41

 In today’s Emergency Management bulletin, Dare County announces that nine of the 15 people who have tested positive locally for COVID-19 have recovered or have been asymptomatically cleared—an increase of one person over yesterday’s update.

The County also calls the social-distancing measures of the past three weeks “effective” and thanks all residents for “doing [their] part to help keep our community safe.”

Today’s message is simple: “Please continue to hang in there.”

See Bulletin No. 41 at https://www.darenc.com/Home/Components/News/News/6127/398

***

The Beacon also would like to note that a violation of the mandatory restrictions that the Governor has imposed on retail establishments, as of 5 p.m. today, and skilled nursing facilities is a Class 2 misdemeanor, punishable by up to 60 days in jail and $1,000. We earlier omitted this detail.

Please let us know about your shopping experiences this week:  You may email ssbeaconeditor@gmail.com.

Ann G. Sjoerdsma, 4/13/20

Two more people associated with the Peak Resources nursing/rehab facility in Nags Head have tested positive for COVID-19, according to today’s Dare Emergency Management bulletin.

Both of these people are asymptomatic, the bulletin states, but that does not mean that they are not infectious. Bulletin No. 40 gives no other details about the individuals’ situations, however.

Of the 15 Dare County residents who have tested positive for the novel coronavirus, Bulletin No. 40 recaps, eight have recovered or been asymptomatically cleared; five are asymptomatic; one is recovering at home; and one has died

See COVID-19 Bulletin No. 40 at https://www.darenc.com/Home/Components/News/News/6121/1483

Test results from the state lab for the mass testing last week of staff and residents at Peak Resources were sent to the Dare County Division of Public Health earlier than anticipated. Family members of Peak residents were told to expect results tomorrow.

Bulletin No. 40 does indicate, however, that the Division of Public Health has received “the majority” of these results, not all.

For the first time in its COVID-19 case-reporting process, Dare County did not lead off a daily bulletin with breaking news of more positive test results. Today’s Bulletin No. 40 buries the report of the two additional Peak Resources cases beneath Easter greetings, a reminder about the guidelines in place for slowing the spread of COVID-19, and an updated accounting of cases and fatalities statewide.

AROUND TOWN

While out earlier today on my essential once-a-week spin through Southern Shores, I received greetings on Ocean Boulevard at the Chicahauk Trail intersection from the Easter Bunny and a female companion, who looked like Little Bo Peep with a face mask. They waved feverishly at all passersby.

I regret that I did not immediately pull over and take their photograph because about 12 minutes later when I drove past again, they were gone. An opportunity missed.

Little else caught my eye:

The unleaded regular gas at Han-Dee Hugo’s BP (and the Mobil station down the bypass in Kitty Hawk) is selling for $1.95.99 per gallon—about 50 cents less than it would be if vacationers were here, I would imagine.

The Home Depot and Walmart were doing a brisk business, but Harris Teeter and Food Lion were relatively quiet.

The Governor’s rules on maximum occupancy in retail establishments take effect tomorrow at 5 p.m.

All retailers who have permission to continue operating during the statewide stay-at-home order must observe an “emergency maximum occupancy” of either 20 percent of the state fire capacity or five persons per 1,000 square feet of building space, whichever is less.

Whatever the maximum number of occupants is, retailers must post it “in a conspicuous place,” according to the Governor’s Executive Order No. 131.

The majority of the customers in area stores are not wearing face masks, nor are the store employees. I would attribute this differential to a perceived lack of risk of COVID-19 transmission in Dare County, not to partisan politics, as a recent ABC/Ipsos poll would seem to suggest. (The message: More Democrats than Republicans and Independents wear face masks–apparently true among the 512 adults who were “randomly” sampled and self-reported their political-party affiliation.)

The U.S. Centers for Disease Control and Protection recommends wearing cloth face coverings in public settings when other social distancing measures are difficult to maintain, such as a grocery store or pharmacy, especially in areas of significant community-based transmission of the virus. That is not Dare County.

See CDC’s use of cloth face coverings: https://www.cdc.gov/coronavirus/2019-ncov/downloads/DIY-cloth-face-covering-instructions.pdf

I wear a cotton face covering, as well as gloves, mostly out of respect and concern for other customers and store employees–although I do have a nearly 96-year-old mother whom I would not wish to infect with the coronavirus nor stop seeing. If my wearing a mask makes other people more comfortable, I figure it is a small price to pay.

There will be more hard news developments next week about the COVID-19 spread in this county and the state and national response to it. (How and when does the country “reopen”?) I welcome a respite today.

It is a beautiful day in Southern Shores. Enjoy the springtime. It will be a stormy Monday.

Ann G. Sjoerdsma, 4/12/20

 

COVID-19 test results for nearly half of the staff and residents at Peak Resources nursing facility in Nags Head were received last week, and a “round of mass testing” of that population was completed Thursday afternoon, according to today’s Dare County Emergency Management bulletin.

A source/acquaintance of The Beacon’s who has a family member residing at Peak Resources told us she was informed by the facility that the test results of the latest specimens should be available Monday. The DCEM bulletin says only that “Those specimens arrived at the state lab Friday morning for processing and testing” and that another update on Peak “will be provided as soon as the test results are received.”

See Bulletin No. 39: https://www.darenc.com/Home/Components/News/News/6117/1483

Peak Resources, which is located at the end of Barnes Street in Nags Head, has 126 skilled nursing beds, according to its website. See http://peakresourcesinc.com/our-locations/outer-banks/.

Dare County previously announced three positive test results associated with Peak Resources and said all three persons are asymptomatic.

According to The Beacon’s source, whom we gave anonymity at her request, the facility told family members of residents that the three people were staff members and that they are in isolation. The source also reported her understanding that the person who died as a result of a COVID-19 infection was a resident of the facility who may have contracted the virus when he was treated at a hospital. She had no knowledge of the hospital to which the resident might have been taken.

Ann G. Sjoerdsma, 4/11/20

“To date, Dare County has reported 13 positive test results for COVID-19,” today’s Dare County Emergency Management bulletin tells us.

See Bulletin No. 38: https://www.darenc.com/Home/Components/News/News/6111/398

Of the 13 confirmed COVID-19 cases, the bulletin states, eight have recovered or have been “asymptomatically cleared”; three are asymptomatic (with no COVID-19 symptoms); one is recovering at home; and one has died. To be asymptomatically cleared is to exhibit no symptoms seven days after testing.

In the remainder of the bulletin, the County repeats the guidelines that are in effect during the Stay Home-Stay Healthy order for “slowing” the spread of the virus and the resources that are available through the N.C. Dept. of Health and Human Services’ website.

(The Beacon apologizes for the false start to this post that we originally published. Please delete.)

GOVERNOR LIMITS MAXIMUM STORE OCCUPANCY . . .

Retail establishments that have permission to continue operating during the statewide stay-at-home order will be required to observe an “emergency maximum occupancy,” starting Monday at 5 p.m., according to an executive order issued yesterday by Governor Roy Cooper.

The order specifies that all such retailers must limit their maximum occupancy to “no more than”:

*Twenty percent of the state fire capacity; OR

*Five customers for every 1,000 square feet of the “retail location’s total square footage, including non-customer-facing portions.”

The five-customers-per-1,000-square feet restriction will have a profound effect on how Outer Banks supermarkets do business.

Executive Order No. 131 further requires retailers to post this emergency maximum occupancy “in a conspicuous place,” and to assign “sufficient” staff members to monitor the store entrances and exits in order to enforce the limit.

See Executive Order No. 131: https://files.nc.gov/governor/documents/files/EO131-Retail-Long-Term-Care-Unemployment-Insurance.pdf

The retail establishments that are covered by the order are described as including “any business in which customers enter to purchase goods or services, including but not limited to grocery stores, convenience stores, large-format retail stores, pharmacies, banks, ABC stores, hardware stores, and vehicle dealerships.”

The new order also requires retailers to observe the minimum social/physical distancing recommended by the U.S. Centers for Disease Control and Prevention by clearly marking six feet of spacing “in lines at cash registers” and “in other high-traffic areas for customers, such as at deli counters and near high-volume products,” inside their stores.

If a retailer reaches or expects to reach its “Emergency Maximum Occupancy” at any time, it must “clearly mark six feet of spacing in a designated line outside the establishment,” according to the order.

Further, all operating retail establishments must “perform frequent and routine environmental cleaning and disinfection of high touch areas” with a disinfectant approved by the U.S. Environmental Protection Agency for SARS-CoV-2.

Executive Order 131 encourages retailers to take voluntary steps, as well, including:

*to reduce viral transmission among employees (through suggested means);

*to place hand sanitizer prominently at entry and exit points and to have disinfecting EPA-approved wipes and/or sprays available for shopping carts and baskets;

*to post signage that reminds customers and employees about required six-foot physical distancing; and

*to designate exclusive shopping times for “seniors and other at-risk groups as defined by the CDC.”

The Kitty Hawk Harris Teeter has set aside exclusive shopping times for customers age 60 and older on Monday and Thursday, from 6 a.m. to 8 a.m. It also will accept online orders from the same age group, and deliver the groceries, on Thursday between 9 a.m. to 2 p.m.

Walmart has an exclusive shopping hour for customers age 60 and older every Tuesday from 6 a.m. to 7 a.m.—which is an hour before it opens to all customers.

See Walmart: https://corporate.walmart.com/newsroom/2020/03/18/latest-walmart-store-changes-to-support-associates-and-customers

Food Lion in the Marketplace has online shopping and on-site pickup of orders available, but it has not set aside exclusive shopping hours for customers viewed as more vulnerable to the COVID-19 threat.

Although Governor Cooper considered requiring one-way aisles in retail establishments in order to reduce interpersonal contact, the order only recommends that retailers “provide assistance with routing through aisles in the store.”

The new occupancy controls will remain in effect for 30 days after their April 13 imposition, unless they are repealed, replaced, or rescinded.

. . . AND IMPOSES RULES ON SKILLED NURSING FACILITIES (SNFs)

In light of the numerous COVID-19 outbreaks in nursing homes in North Carolina, Governor Cooper also ordered yesterday that so-called skilled nursing facilities take mandatory mitigation actions, including:

*screening all staff at the beginning of their shifts for fever and respiratory symptoms, which means actively taking staff members’ temperatures and documenting the absence or presence of shortness of breath (aka dyspnea), a cough, and sore throat;

*canceling “communal dining and all group activities, including internal and external activities”;

*implementing “universal” use of facemasks for all staff members while they are in the facility, “assuming supplies are available”;

*actively monitoring all residents upon admission, and at least daily, for fever and respiratory symptoms (dyspnea, cough, sore throat), and continued monitoring during their stay; and

*notifying the local health department immediately about 1) any resident with new, confirmed, or suspected COVID-19; or 2) a “cluster” of residents or staff with symptoms of respiratory illness.

A cluster is defined as three or more people with new-onset respiratory symptoms in a period of 72 hours.

Executive Order 131 stops short of requiring adult-care homes, family-care homes, mental health-group homes, and intermediate-care facilities for individuals with intellectual disability to observe the same mitigation rules. It only encourages them to do so.

The new restrictions on skilled nursing facilities take effect today at 5 p.m.

Ann G. Sjoerdsma, 4/10/20