Fifteen new COVID-19 cases were reported in Dare County yesterday—a single-day case total that matches the second highest case total previously reported by the county.
The 15 people range in age from “17 and under” to “65 or older,” according to the Dare County Department of Health and Human Services dashboard, and bring the total number of cases diagnosed locally to 292.
The number of COVID-19 cases in Dare County has exactly doubled since July 6, when it was 146.
The only other time Dare County has reported 15 cases in one day was July 9, when the overall case total was 171. The single-day record case total occurred on July 1, when 16 new cases were reported: The total number of cases then was 113.
Dr. Sheila Davies, director of the DCDHHS, attributed these previous single-day jumps in positive COVID-19 test results to direct contact among people in large gatherings.
In her update Tuesday on the 31 new COVID-19 cases diagnosed since last Friday, Dr. Davies said that 23 of the new cases acquired the virus by direct contact, including “close friends,” “close contacts,” and family members. Only eight—about 25 percent of them—were presumed to have acquired it by community spread.
“The majority of cases,” Dr. Davies reported, “continue to experience mild to moderate symptoms, however, there are cases [that] have experienced severe illness. Currently, two residents remain hospitalized in critical condition.”
The Beacon had planned to start reporting only on a weekly basis about new COVID-19 cases, but yesterday’s spike is compelling. Twelve new cases were reported on Tuesday, but only five cases were reported on each of the previous two days.
The spike involved eight Dare County residents and seven nonresidents, whose ages are as follows:
*Seven are 17 and under (for an overall total of 44; about 15 percent)
*Four are between ages 18 and 24 (for a total of 75; about 26 percent)
*Three are between ages 25 and 49 (for a total of 98; about 33 percent)
*Three are between ages 50 and 64 (for a total of 45; about 15 percent)
*Two are age 65 or older. (for a total of 30; about 10 percent)
The current breakdown between men and women is about 50-50, with 147 males and 145 females having tested positive locally for the disease caused by the new coronavirus.
All 15 new cases are reported to be in home isolation. Three of the nonresidents are isolating in Dare County, while the other four have transferred to their home counties.
Appointments remain for next Tuesday’s COVID-19 antibody and diagnostic testing clinic at the Dare County Center, 950 Marshall Collins Drive, in Manteo. The event will start at 1 p.m. You may register for either or both test by calling (252) 475-5008, Monday through Friday from 8:30 a.m. to 5 p.m.
TUESDAY’S TOWN COUNCIL MEETING: We regret that we have not been able yet to give you a report on Tuesday morning’s Town Council session. Such is the lot of an unpaid blogger that life intervenes to prevent us from writing. Also, the audio on the Zoom teleconference was awful, making it very difficult for us to hear what was being said by everyone and necessitating our review of the You Tube videotape, which we have not had time to do yet.
We hope some of you will look at the videotape. The Town Council is virtually meeting in secret these days. The Zoom audience Tuesday varied between four and six participants, and only one homeowner attended the meeting in person.
We plan to have a post up by Sunday, at the latest.
The quick-take resolution that The Beacon previewed on Monday (7/20/20) passed unanimously, after considerable discussion between the always-well-prepared, thoughtful, and smart Town Councilman Matt Neal and Town Attorney Ben Gallop. (Thank you, Mr. Neal. You are an oasis.)
Work is under way by Town Manager Cliff Ogburn and Mr. Gallop to prepare a template for an easement that oceanfront property owners will be asked to grant voluntarily. Mr. Ogburn also plans to prepare a set of frequently asked questions to give to property owners about the temporary easements and quick take.
The Town Council expressed an interest in making every effort to acquire the easements needed for the 2022 beach nourishment project voluntarily from property owners, not through the court quick-take condemnation process.
In point of fact, however, until the General Assembly changes the N.C. quick-take statutes to authorize Southern Shores to use this form of eminent domain for beach nourishment, it will not be available to the town.
DON’T FORGET: THIS WEEKEND IS A NO-LEFT-TURN WEEKEND.
The left turn from U.S. Hwy 158 east on to South Dogwood Trail will be prohibited from 11 a.m. to 8 p.m. this Saturday and Sunday.
Southern Shores police will be on the scene to ensure zero tolerance.
The Beacon will be seeking residents’ comments about the traffic in their stretch of Southern Shores on both days.
A view north from the Hillcrest Beach clearly shows the area of the beach between the high water mark and the dunes for which the Town would seek easements along the shoreline.
“Quick take” is back before the Town Council, in a slightly different form than it was presented to Southern Shores property owners more than six years ago—when they successfully lobbied their state legislators to nullify a unanimous decision by the Town Council in favor of it that ignored public opinion.
Unlike the quick-take resolution that the Town Council approved unanimously on Feb. 4, 2014—despite hearing nothing but opposition from angry and distressed homeowners—the newly proposed resolution eliminates the possibility that the Town will be able to quick-take/seize private property in order to “establish access for the public to public trust beaches and appurtenant parking areas.”
The possibility that the Town would use quick-take condemnation—which is an expedited eminent domain—to confiscate private property near beach accesses and build parking lots on them incited an outcry in 2014 from Southern Shores homeowners.
People also were not keen on supporting the Town’s ability to quick-take private property for the purpose of doing beach nourishment when the Town had never contemplated, nor done any beach studies suggesting the need for, a beach nourishment project.
Newly elected Mayor Tom Bennett initiated the 2014 resolution, upon which the new resolution, known as Resolution 2020-07-03, is based, and current Councilman Leo Holland was among the five Council members who approved it.
Times have changed, even though two-fifths of the Council membership has not. At its June 16 meeting, the current Town Council approved “pursuing” beach nourishment, although it has yet to define the project’s scope.
Resolution 2020-07-03, which the Town Council will consider at its workshop meeting tomorrow at 9 a.m., seeks to guarantee that the Town will be able to secure easements to private oceanfront properties that are necessary for it to do the 2022 beach-nourishment project, according to Town Manager Cliff Ogburn.
As Mr. Ogburn explained to The Beacon, the easements would cover the length of the Southern Shores coastline, north to south, and be in the beach area that is between the mean high-water mark and the dunes.
(The meeting will take place in the Pitts Center and also be available via Zoom.)
Just like the 2014 resolution, Resolution 2020-07-03 asks the N.C. General Assembly to add Southern Shores to a statutory list of municipalities that may exercise quick-take condemnation over private property for enumerated public purposes, one of which is “engaging in beach erosion control and flood and hurricane protection works.”
That list currently includes Dare County and the beach towns of Duck, Kitty Hawk, Kill Devil Hills, and Nags Head. Among them, Duck has excepted “establishing the access for the public to public trust beaches and appurtenant parking areas” as a public purpose for which it may employ quick-take condemnation. Southern Shores would do the same.
Ideally, Southern Shores oceanfront property owners would voluntarily grant temporary easements to the Town so that contractors can haul or store the necessary construction equipment and supplies across and on their property. The Town would not have to resort to the quick-take condemnation process to gain use of the privately owned oceanfront it needs to use.
But in the event that oceanfront property owners do not permit access and use, the Town would like the option of obtaining easements “for as long as needed,” Mr. Ogburn said, through the courts.
QUICK TAKE EXPOUNDED UPON
We confess that we were taken aback when we read Resolution 2020-07-03 and realized it was about quick take, so we reached out to Mr. Ogburn with our concerns.
Our new Town Manager was very responsive and generous with his time, for which we are grateful. He expressed a desire to be open, honest, and transparent in all Town matters.
“Quick take” is an accelerated eminent domain process that significantly differs from what is considered “standard” eminent domain in that the landowner has no right to a hearing.
Through quick-take eminent domain, the public condemnor—in this case, the Town of Southern Shores—automatically takes title and the right to immediate possession of private property it seeks to “take” as soon as it files a complaint in the local superior court and pays a deposit.
The town only has to give the property owner 30 days’ notice of its intent to file the complaint—also called a declaration of taking. That’s it.
The property owner is not entitled to the 120-day process outlined in N.C. law for standard eminent domain, which includes the right to a hearing. The only recourse a property owner subject to a quick-take complaint has is to seek an injunction, and its effect achieves little more than delay.
Although the private property owner is entitled to “just compensation” for the property seized, in either quick-take or standard eminent domain, the condemning authority’s notice need not include an estimate of how much compensation is due. In fact, when the taking happens during beach nourishment projects, authorities typically estimate zero compensation because they claim that the owners will benefit from the improvements.
The current quick-take option is necessary, according to Mr. Ogburn, in order for Southern Shores to obtain a permit under the N.C. Coastal Area Management Act for its 2022 beach nourishment project.
“It’s actually a condition of the CAMA permit,” he told us, “that we have permission to be on private property.”
Quick-take eminent domain is a matter of N.C. statutory law. It is elaborated upon in the North Carolina General Statutes—quite poorly, in our opinion.
Two subsections, relevant to quick take, seem particularly designed to confuse. We will only cite these subsections here, for the benefit of those inclined to do legal research—secs. 40A-3(b) and 40A-3(b1)—and say that, as we read these subsections in conjunction with another statute that describes quick-take right of possession, there are five public-use “purposes” for which quick-take condemnation may be employed.
To distinguish quick-take from standard eminent domain, you must read NCGS 40A-3(b1) in conjunction with NCGS 40A-42(a)(2).
Although the N.C. quick-take statute appears on its face to allow the Town to seize property permanently, Mr. Ogburn assured us that the Town would not seek to quick-take more than a temporary easement, and only then if it has to. He sent us a link to an easement form deed used by Nags Head during its beach nourishment. See:
Mr. Ogburn said this deed is similar to what the other beach towns and Dare County have used, and it “describes what rights the Town of Southern Shores needs to acquire for the nourishment project.”
The term of the easement used by the Town of Nags Head is a little more than 10 years. Rather than reprint the “terms, uses, conditions and restrictions” of the easement, we suggest that Southern Shores oceanfront property owners and other interested parties read the Nags Head deed.
Being a skeptical and, yes, suspicious former lawyer inclined toward “what-ifs,” we are never going to feel comfortable about asking the state legislature to extend quick-take condemnation to Southern Shores for all of the purposes mentioned in the N.C. general statutes, except for establishing “access for the public to public trust beaches and appurtenant parking areas.”
When we read the applicable N.C. general statutes in context, we can envision problems that are not readily apparent on the face of Resolution 2020-07-03 and that are difficult to discern unless you read and understand all of the relevant statutes. We are concerned about both unintended consequences and future abuse.
We think quick take is an undermining of due process, no matter what public use purpose a town invokes. All eminent domain takings should go through the standard 120-day condemnation process.
But we are not taking a position for or against the proposed resolution. It is too complicated, frankly, and we do not expect the Town Council to reject it.
We defer to Southern Shores property owners on this. The N.C. General Assembly, which must pass language specifically extending quick take to Southern Shores, reconvenes for a short session Sept. 2. If property owners object, they may call their representatives.
THE ROLE OF THE SSCA
When we first read Mr. Ogburn’s summary in the meeting packet, we did not understand that the Town seeks an easement from every oceanfront property owner. We thought all that was necessary was sufficient access to the beach, and we were confident that the Southern Shores Civic Assn., which owns a large tract of private oceanfront property, as well as the 33 beach accesses, would cooperate with the Town to provide it.
The SSCA owns all of the private oceanfront west of the public-trust beach from just north of the Hickory Trail beach access to the Duck-Southern Shores line, including the wide-open Hillcrest Beach.
SSCA President Rod McCaughey informed us that the SSCA already makes three beach locations available to the Town for emergency-vehicle access: the Hillcrest Beach and the accesses at 166A Ocean Blvd./Trout Run and 24A Ocean Blvd. He expressed a willingness to provide more access for the beach nourishment project, if needed.
Because of Southern Shores’ history and development, which gave rise to the formation and empowerment of the SSCA, Southern Shores is not like any other beach town in Dare County.
In arguing against the 2014 quick-take resolution, homeowners repeatedly pointed out that the SSCA and individual oceanfront property owners would gladly accommodate the Town’s request for temporary easements. There was no need to resort to quick take, which, because it is legal condemnation, is inherently hostile.
We asked Mr. Ogburn in an email: “Would you consider approaching oceanfront property owners and securing their permission for easements first without asking the General Assembly to change the statutory language?”
He replied: “I think the reason for moving forward now on the legislation is to make sure we give ourselves enough time to get the easements ahead of the project. . . . If Council doesn’t seek the legislative approval now and waits until January, it could start to push the calendar. . . . I guess it depends on how confident the Council is that there is time to attempt to get voluntary easements and still go through the process of being able to condemn them.”
We thank Mr. Ogburn for his courtesy and his candor in responding to us.
We hope the Town Council will give the timing and the procurement of voluntary easements some serious thought before it summarily approves quick take.
ALSO ON THE AGENDA TOMORROW . . . is a public hearing on Zoning Text Amendment 20-01, which is a response by the Town to shut-down conditions created by the coronavirus pandemic. It gives the Town the ability to act on zoning matters in an expedited fashion.
The ZTA eliminates the requirement that 30 days must elapse between the filing of a zoning proposal and the Planning Board’s consideration of it and between the Planning Board’s action on a proposal and submission of its recommendation to the Town Council (an amendment of Town Code sec. 36-416). It also authorizes the creation of a new Town Code section on “temporary emergency zoning accommodations.” (Town Code sec. 36-177).
The need for temporary emergency zoning accommodations arose in the context of creating outdoor seating in public parking lots for restaurant customers, so as to support struggling restaurant owners and the “economic prosperity of the community.”
The Planning Board unanimously recommended ZTA 20-01.
As noted above, you may attend the Tuesday’s Town Council meeting in person, if you observe infection-control measures, or you may join via Zoom. The meeting ID is 945 3998 0368; the password is 806770.
If you would like to submit a public comment to be read aloud at the meeting, email Town Clerk Sheila Kane at skane@southernshores-nc.gov. Be sure to note in your subject line, “Public comment for July 21 Town Council meeting.”
You also may speak during the public-comment period via Zoom if you press the chat button and ask Ms. Kane to reserve time for you. The public-comment period is scheduled before all other business. Comments will not be accepted later in the meeting.
A collision occurred this morning on the Wright Memorial Bridge, just short of the end of the eastbound span. This photo was taken by a passenger in a westbound vehicle.
In case you were wondering, as I was, why we had no traffic coming through on northbound N.C. Hwy. 12 or along the cut-through route in Southern Shores–after a dreadfully busy morning–it was because of a major wreck around 11 a.m. on the eastbound span of the Wright Memorial Bridge.
As you can probably tell, traffic is now getting through, after a three-hour stoppage.
It was lovely while it lasted, wasn’t it?
Fortunately, no one was hurt in the four-vehicle pileup on the bridge, which apparently started when a pick-up truck hauling a trailer rear-ended another pick-up truck.
For more details, we refer you to coverage by OBX Today. If you’d like to comment on today’s traffic conditions in Southern Shores, please feel free to do so here and on the Facebook page.
Dare County had reported a total of 246 COVID-19 cases when Dr. Sheila Davies, director of the health department, posted her videotaped update yesterday. Of those 246, 140 are Dare County residents, and 106 are nonresidents.
What we find most significant about the case reporting of the past week is that two more local people were hospitalized with the disease, bringing the total current hospitalizations among Dare County residents to three.
According to Dr. Davies, two of these residents are hospitalized outside of the area. One nonresident is also hospitalized.
There also was a 71-percent increase during the past week in the number of people age 65 and older who tested positive locally for COVID-19.
On Friday, July 10, the Dare County Dept. of Health and Human Services dashboard showed that 14 people in the higher-risk over-65 age group had contracted COVID-19. As of yesterday, the number was 24. Overall, the age breakdown in the 246 cases is as follows:
Ages 17 and under: 38
Ages 18 to 24: 70
Ages 25 to 49: 78
Ages 50 to 64: 36
Ages 65+: 24
Based on the dashboard data, we roughly estimate the average number of cases being reported each day in Dare County to be 10.
According to Dr. Davies’s detailing of COVID-19 transmission, the majority of the people who have tested positive are being infected by direct contact with a person who has the virus.
Although she drew attention in her report yesterday to “an increased trend over the past few days of individuals who are unaware how they acquired the virus”—an indication, she said, of “an increase in community spread”—Dr. Davies’s recent numbers show that spread allegedly accounted for a little more than a third of the cases.
Just because people do not know how they acquired the virus does not rule out infection by direct contact.
The COVID-19 antibody testing that the Dare County DHHS is doing in partnership with Mako Medical Laboratories of Raleigh, so far, is turning up few positives.
According to Dr. Davies, 194 antibody tests were conducted of people who participated in Tuesday’s testing event, and only five proved positive.
The next COVID-19 diagnostic and antibody testing clinic will be held Tuesday, July 28, starting at 1 p.m., at the Dare County Center, 950 Marshall Collins Drive, in Manteo. You may schedule an appointment for the clinic, for one or both tests, by calling 252 475-5008, Monday through Friday, from 8:30 a.m. to 5 p.m.
COVID-19 STATEWIDE: We continue to monitor the key COVID-19 metrics on the state level, which are still moving in the wrong direction. Single-day case reports and hospitalizations continue to be high, with single-day hospitalization records being set and then quickly broken.
Today’s single-day case report of 2,481 is a new record high. Yesterday’s reported 1,180 hospitalizations also marked a record. Today, hospitalizations have been reduced by 26, to 1,154.
The single-day case reports have hovered around 2,000 since July 9. Dr. Mandy Cohen, Secretary of the N.C. Dept. of Health and Human Services, has said at media briefings that increased testing alone cannot account for the increased number of cases.
The positivity test rate continues to be consistently below 10 percent, which is a good sign. But Dr. Cohen would like to see the rate of positive COVID-19 tests from among the number of tests completed to be 5 percent or lower. The last time this metric dipped to that level was June 30
The NCDHHS dashboard today reports 1,629 deaths statewide.
We do not usually comment on individual behavior, but today we will say that until people “get” that it is the spread of COVID-19 that must be slowed, if not stopped, before the country can reopen and begin to function normally again, we will be stuck on the “pause” button, and cases and deaths will continue to climb.
Those people who believe that having to wear a mask and to observe physical distancing infringes upon their constitutional rights do not understand public health or the U.S. Constitution, which does not afford them the protection they think. (Talk to the ACLU, not The Beacon.) They are just hurting themselves.
Taco Bell has moved into the former Nu-Quality ice cream shop on U.S. Hwy. 158 in Southern Shores, in front of the Marketplace.
Taco Bell in Southern Shores is now hiring!
The Nu-Quality ice cream shop on U.S. Hwy. 158 in front of the Marketplace has closed—after less than two years in business—and Taco Bell is opening in its space. Its name went up on the building just today.
Deputy Town Manager/Planning Director Wes Haskett announced at last week’s Town Council meeting that the Town issued building and zoning permits to Taco Bell June 29 for its remodel of the Nu-Quality facility, which, he said, will undergo no structural changes.
The sale to Restaurant Property Investors IV, LLC, of Virginia Beach occurred on June 30, according to a special warranty deed on file with the Dare County Register of Deeds.
The franchisee is only installing new kitchen equipment and replacing existing signage, Mr. Haskett said. You may have noticed that the building was re-painted recently in Taco Bell’s signature purple.
Nu-Quality is of interest to us because the Town Planning Board and Town Council bent over backwards to accommodate owner Spiros Giannakopoulos’s application to develop a drive-through ice cream business on the small vacant lot at 5415 N. Croatan Hwy.
When Mr. Giannakopoulos proposed his development, it was illegal under the Town’s zoning code, which then required drive-through businesses to be located on commercial sites that are at least 2.5 acres in size.
The Nu-Quality/Taco Bell site, which sits between two banks—one of which is a First National—is only 18,260 square feet, or 0.42 acres.
According to county records, Mr. Giannakopoulos’s limited liability company, “5415 OBX-LLC,” purchased the site in late 2017 from First National Bank of Pennsylvania for $275,000 and granted the bank an easement.
Longtime Planning Board Chairman Sam Williams ensured, however, that inconvenient town law did not hinder Mr. Giannakopoulos, whose proposed 910-square-foot, flat-top-style drive-through ice cream shop was designed by architect Christopher Nason, then serving on the Town Council.
We recount the story. It ends with quite a payday for Mr. Giannakopoulos and any investors he may have.
The Williams Rescue
Operating as “5415 OBX-LLC,” Mr. Giannakopoulos applied to the Planning Board on March 14, 2018 for its approval of a conditional use site plan and zoning text amendment (“ZTA”) “package.” The ZTA, known as ZTA 18-05, proposed changing the Town’s commercial zoning to grant a special exemption to drive-through ice cream shops, and ONLY drive-through ice cream shops.
Prepared by Mr. Giannakopoulos’s representative, Quible & Associates of Kitty Hawk, ZTA 18-05 was not very ingenious, but it did not need to be. It simply stated that “drive-through facilities . . . other than Ice Cream Shops shall be located on a lot greater than or equal to 2.5 acres within the principal structure.” It then defined what an “Ice Cream Shop” is.
(We have a copy of the original ZTA, which you will not find on the Town website.)
Mr. Giannakopoulos, who is the proprietor of a Nu-Quality ice cream shop in Elizabeth City, appeared before the Town Planning Board on April 16, 2018.
The late Glenn Wyder, a Planning Board alternate who had just been appointed to the regular Board, immediately challenged the rather clumsy zoning exemption at this meeting, opposing its obvious preferential treatment. It was then that Chairman Williams stepped up to say that he had already worked out a solution.
The Beacon had just started publishing two weeks earlier, and we were not yet savvy about examining applications in the Town’s Planning Department before attending Planning Board hearings. Had we done so, we likely would have discovered Mr. Giannakopoulos’s connection to Councilman Nason, whose name did not come up in any public hearings about the Nu-Quality project until the last possible date.
To get around the formidable zoning obstacle, Chairman Williams rewrote the key provision of ZTA 18-05, which is to say he rewrote the Town Code. He proposed changing the Town Code to distinguish between small and large drive-through facilities.
Under Mr. Williams’s plan, a “small” drive-through customer-service facility could be located on a lot less than 20,000 square feet provided it fronted on Hwy. 158 and met other building requirements, all based on Mr. Giannakopoulos’s ZTA and tailormade for his ice cream shop.
A small drive-through facility had to have a “principal structure” that served items over “a general service counter for the customer to carry to a small seating area, to a motor vehicle, or off-premises.” (Now Town Code sec. 36-57.)
Mr. Williams’s ZTA 18-05 also specified that one parking space had to exist for every three customer seats, and each employee had to have an additional space. (Town Code sec. 36-163(3)(c)(12).)
Further, the drive-through facility could not exceed 2,500 square feet or be closer than 100 feet to any residentially zoned property, and it must allow for stacking of a minimum of six cars. (Code sec. 36-207(c)(2))
A “large” drive-through facility, under Mr. Williams’s scheme, would conform to the requirement of a location size that is equal to or greater than 2.5 acres, the then-current requirement for all drive-through facilities.
A Meaningless ‘Public’ Hearing
Mr. Williams’s unilateral, behind-the-scenes rewrite struck us as questionable when we heard it for the first time on April 16, 2018, as well as unduly preferential. But even more disconcerting to us was the lack of a public hearing before the Planning Board about the revised ZTA.
The Town had given notice of a hearing about Mr. Giannakopolous’s ZTA 18-05, and provided its text, but it had not noticed Mr. Williams’s version, which significantly altered it.
After a discussion of his new zoning plan with his Planning Board colleagues, the Chairman moved toward taking a vote on recommending it to the Town Council for enactment.
As we reported more than two years ago, Planning Director Haskett intervened to remind Mr. Williams that he needed to entertain public comment before he could take a vote. The Chairman was prepared to skip over that legal necessity.
But how could any members of the public comment on a ZTA that they had not seen or even contemplated?
Regardless, the Planning Board voted on the Chairman’s ZTA, and it passed 4-1, with Elizabeth Morey, who now sits as Mayor Pro Tem on the Town Council, dissenting without comment.
When we later asked Town Attorney Ben Gallop about the propriety of voting on Mr. Williams’s substitute ZTA without first giving the public notice of it and an opportunity to be heard on its merits, Mr. Gallop did not see a problem. He described what happened as ZTA-editing by the Planning Board—which is perfectly permissible—before taking a vote.
We did not agree. Although it retained much of the language of Mr. Giannakopolous’s ZTA, the new ZTA replaced the former’s intent and meaning with a different concept altogether, and it had an effect on more than just Mr. Giannakopolous’s business.
Indeed, it has directly led to Taco Bell’s move into Southern Shores. We doubt Mr. Williams would have promoted a change in the zoning to welcome this national chain of franchised fast-food restaurants to town.
Much later, after the Town Council had acted, we arranged to meet with Mr. Haskett for an interview at Town Hall. Upon arriving, however, we discovered that Town Manager Peter Rascoe was going to sit in on the interview, uninvited.
Mr. Haskett was forthcoming about meetings with Mr. Williams, the applicant, Mr. Rascoe, and other interested parties after the filing of the proposed ZTA, all of which he said were standard procedure.
But when we pursued the impact that Mr. Nason’s involvement may have had on the Town’s treatment of the Nu-Quality package, or whether Mr. Nason himself had participated in discussions, Mr. Rascoe quickly inserted himself into the conversation to ask if we were accusing him of “collusion.”
We did not pursue this line of inquiry further. Even when he was not being defensive, Mr. Rascoe specialized in giving non-answers to straightforward questions that he did not want to answer. The Beacon was still getting its feet wet then, and we were not prepared to take on Town Hall.
John Finnelli, the Planning Board’s Martin’s Point representative, explained at the April 19 meeting that the Town enacted the 2.5-acre zoning restriction because it didn’t believe a drive-through business “was appropriate for every location,” and it was “trying to keep congestion off of Juniper Trail.”
At the same meeting, Mr. Williams explained that he and Mr. Haskett had spent time examining the physical space and needs of the drive-through fast-food businesses across from the Marketplace in Kitty Hawk. He was careful to explain that he did not want to open the door to “burger joints” in Southern Shores and seemed surprised when his Board colleagues pointed out that “junior” burger joints could operate on the site.
Taco Bell is a Mexican food joint, not a burger joint, but we believe it qualifies as the type of business that Mr. Williams said he was trying to avoid.
Even more important: Unlike the fast-food restaurants across the street, access to the drive-through line at the new Taco Bell or any business occupying 5415 N. Croatan Hwy is directly off of busy U.S. Hwy. 158. There is no side street diverting traffic. We perceived this then, and still do, as a problem.
Town Council Approval; Williams’s ‘Retirement’
On May 3, 2018, a first reading of Mr. Williams’s/now 5415 OBX-LLC’s ZTA 18-05 was held before the Town Council, with Mr. Nason inexplicably absent. No mention was made of his financial interest in the Nu-Quality project.
The measure failed by a 3-1 vote, because Town Councilman Fred Newberry dissented. To pass on first reading the vote on the measure needed to be unanimous.
In dissenting, Mr. Newberry said he was concerned about the “process” that resulted in the Planning Board’s new zoning proposal and about possible traffic congestion at 5415 N. Croatan Hwy. (See The Beacon, May 3, 2018)
At the second reading on June 7, 2018, Mr. Nason was actually present, but recused himself. This was the first time that any mention was made in a public forum about his involvement in the Nu-Quality development.
This time the Town Council unanimously approved the small-large distinction in drive-through businesses in Southern Shores, and Mr. Giannakopolous received the zoning green light he needed. (A simple majority was all that was needed for approval.)
Ironically, before the second reading of ZTA 18-05, Mr. Williams announced that he would not seek reappointment to the Planning Board.
Mr. Williams served for nine years as the Planning Board chairman—from July 1, 2009 to June 30, 2018—and it is safe to say that he exercised a tight grip.
The announcement that he was stepping aside caught us by surprise. The Beacon had argued that he should be reappointed to another three-year term when his then-current term expired, but we discouraged his selection as chairman for a 10th year.
The Planning Board, which also sits as the Board of Adjustment, elects a chairperson and vice-chairperson at the start of every new fiscal year. During the years in which it repeatedly returned Mr. Williams to the chairmanship, it got into what we consider an indefensible rut.
Mr. Williams said he wanted to spend more time with his family, especially his grandson, as we recall he told us.
Just like the hearing for the first reading, the public hearing for the second reading of ZTA 18-05 focused on the Nu-Quality business and the desirability of ice cream, not on the change in the Town Code.
In all of his public comments, Mr. Giannakopolous emphasized that he was desirous of becoming part of the Southern Shores community and preserving the town’s family atmosphere and architectural traditions. He expressed an interest in moving with his family to Southern Shores and becoming a longtime business fixture.
We do not recall hearing anything further from Mr. Giannakopolous after Nu-Quality opened for business. Neither he nor Nu-Quality ever seemed to have a presence in Southern Shores, although the ice cream shop had its fans. The increased traffic we feared never materialized.
Of course, The Beacon brought up in June 2018 the what-ifs of Nu-Quality’s closure and the ensuing commercial fallout. It was easy to foresee that a mini fast-food restaurant would one day be operating on the small site, but it was also safe to say that no one expected the changeover to happen so quickly.
In recent conversations with Southern Shores property owners, we have discovered that many people thought Nu-Quality did in fact receive a special zoning exemption, not that the Town Code was changed.
As you might surmise, The Beacon was not in favor of changing the Town zoning code to accommodate an individual business owner who knew, or should have known, that the commercial property he had purchased was too small to operate the drive-through facility he had in mind. We do not believe a decision made by five elected officials to restrict drive-through businesses to 2.5 acres should have been so easily set aside just to feather the cap of a businessperson who decides to come to town.
We also did not like the prospect of traffic tie-ups on Hwy. 158 in front of it, or sudden, un-signaled left or right turns of vehicles into it—a prospect whose likelihood increases with a Taco Bell.
That Mr. Nason had a financial stake in the outcome just made the deal a bit more fragrant for us.
When the mini-Taco Bell opens on the site—it has to be “mini” because of the “small drive-through facility” Code requirements—Southern Shores will have its first chain fast-food restaurant, drive-through or otherwise, because the Town’s planning watchdogs wanted to support a Mom ’n’ Pop ice cream shop.
Go figure.
For the Record: $1.2 Million
According to Dare County records, Restaurant Property Investors IV, LLC, of Virginia Beach, purchased the property from 5415 OBX, LLC for $1.2 million, an outlandish sum.
Mr. Giannakopolous could never sell that much ice cream, but thanks to Sam Williams’s zoning change, he did not have to. He pocketed a nice profit. We wonder who else did.
The latest assessed value of 5415 N. Croatan Hwy. for tax purposes, according to the Dare County GIS, is $710,900.
The sale did not occur through the multi-listing service, according to a local realtor we consulted.
W. Brock Mitchell, an Elizabeth City-based partner in the Outer Banks firm of Hornthal, Riley, Ellis, & Maland, which also employs Town Attorney Ben Gallop, prepared the deed.
But, according to the face of the deed available through the Dare County GIS, the Kill Devil Hills firm of Gray & Lloyd, LLP, electronically transmitted it to the Dare County Register of Deeds. Attorney E. Crouse Gray Jr. is well-known for representing SAGA.
All we can tell you about purchaser Restaurant Property Investors IV, LLC, is that its registered agent is Alan M. Frieden, a Virginia Beach tax attorney who has been in practice nearly 50 years. Mr. Frieden is RA for a number of limited liability companies, all of which use the same mailing address.
North Carolina “will continue to stay paused in safer-at-home Phase Two for another three weeks,” Governor Roy Cooper announced today in a media briefing in which he also advised that public schools will reopen in August under a plan that balances in-person and remote learning for children K-12.
“Our numbers are still troubling,” the Governor said about COVID-19 cases and hospitalizations statewide, in explaining why Phase Two will not expire Friday. Businesses that are currently shuttered will remain so until at least Aug. 7.
“We want to be done with the pandemic,” the Governor observed, “but it’s not done with us.”
Originally North Carolina’s Chief Executive was going to announce the school reopening plan on July 1—a deadline that he personally set and pledged to meet.
But that day the Governor chose instead to outline three reopening plans, known as Plans A, B, and C, which vary in personal restrictiveness, and then delayed choosing one, saying that he first needed a “buy-in across the board” from school districts.
Teachers and administrators were expressing concerns about their own health and safety, he said in explaining the delay.
Plan B, which the Governor chose, would “open our schools to balance both in-person and remote learning,” he said today, “with key safety precautions,” including limiting the number of people in a school building (“reduced density,” no more than 50 percent capacity); having fewer children in a classroom; and strictly observing social distancing.
Plan B also requires students to be screened daily for COVID-19 symptoms and everyone in the school to wear a face covering at all times and to wash their hands frequently.
Every student, teacher, and school staff member will be issued five free reusable face coverings, according to the Governor, “one for every day of the week.”
This marks the first time that the Governor has ordered children under the age of 11 to wear face coverings.
Although the State is encouraging Plan B and disallowing Plan A, which would have allowed all students back in the classroom with only “minimal distancing,” the Governor said that parents and school district may choose Plan C, which is all-remote learning.
A parent may even choose Plan C for his/her child in a district that supports Plan B.
Dr. Mandy Cohen, Secretary of the N.C. Dept. of Health and Human Services, called the Plan B-with-a-Plan-C-option a “balanced and flexible approach” to reopening schools that ensures “key safety precautions are in place.”
In her own pithy observation about the state’s COVID-19 metrics, she said, “We continue to simmer, but we’ve avoided boiling over,” as many other states have, such as Florida, Texas, and Arizona.
She also said about the public schools, which are considered a “lower transmission setting,” because children are less likely to get infected by the coronavirus and, when infected, to spread it, that “We can mitigate, but not eliminate the health risks of reopening.”
According to the Governor, Plan B sets the ‘baseline for health and safety” in the school environment.
Both the Governor and Secretary Cohen again stressed the importance of people observing infection-control measures, especially the wearing of a face mask or covering.
“If everyone would wear a mask for the next six weeks,” the Governor said in quoting CDC Director Robert Redfield, “we would drive this virus into the ground.”
UPDATE ON COVID-19 IN DARECOUNTY
The number of confirmed COVID-19 cases in Dare County reached 215 yesterday, with 124 being residents and 91 being nonresidents, according to the Dare County Dept. of Health and Human Services’ dashboard.
On Saturday, the dashboard expanded the age category of “17” to “17 and under.” Of the 215 cases, 31 are ages 17 and under; 70 are ages 18 to 24; 60 are ages 25 to 49; 34 are ages 50 to 64; and 20 are age 65 or older.
The number of COVID-19-positive higher-risk people ages 65+ has doubled in the past week. Between July 6 and July 13, 69 new cases were reported in Dare County..
Today, Dr. Sheila Davies, director of the DCDHHS, described some of the transmission details of the 35 people who have tested positive for COVID-19 since her Friday report.
Twenty-three of these 35 acquired the virus by direct contact, she said, and the other 12 presumably acquired it by community spread.
Coincidentally, 23 of the new cases are symptomatic, and 12 are not.
“We are seeing friends spreading the virus to friends, and then it spreading further to family members and close co-workers,” she said.
All of the new cases are isolating at home. No one was hospitalized.
Dr. Davies also reported on the results of last week’s antibody and diagnostic testing event in Buxton.
Of the 222 diagnostic tests conducted, seven were positive for COVID-19. Only two of the 127 antibody tests conducted were positive.
Results from today’s diagnostic and antibody testing event in Kill Devil Hills will be available starting July 24, Dr. Davies announced.
We will not be publishing today or over the weekend. We will resume reporting next week at a date to be determined.
Tropical Storm Fay is now soaking the mid-Atlantic coastline and expected to make landfall tonight in New Jersey. We should have a hot and mostly sunny weekend.
Fifteen people ranging in age from 17 to 65+ tested positive for COVID-19 today in Dare County, while a single-day record high 2,039 cases were reported in North Carolina, according to the dashboards of the respective departments of Health and Human Services.
Today’s staggering numbers locally and statewide attest to widespread prevalence of the new coronavirus. The 15 new COVID-19 cases reported today in Dare County represent the second highest single-day case total, after the 16 new cases reported on July 1.
It is hardly surprising that the NCDHHS also reported a record-high number of single-day hospitalizations of 1,034, an increase of 40 over yesterday’s total, which had broken the previous record for single-day hospitalizations.
Hospitalizations statewide have doubled in the past two months, according to NCDHHS dashboard records.
Of the 15 new cases in Dare County, 10 are residents and five are nonresidents. All of the residents are in home isolation, according to the DCDHHS dashboard, and it appears all of the nonresidents have transferred to isolation in their home counties.
Because some of the nonresidents who were previously in isolation, both in Dare County and in their home counties, have recovered from COVID-19, we cannot be certain by just looking at the dashboard numbers that all of the new cases are isolated outside of the area.
The 15 new cases—six men and nine women—range in age as follows:
*One is 17 years old
*Two are between ages 18 and 24
*Six are between ages 25 and 49 (the age group that is driving the case increase nationwide)
*Three are between ages 50 and 64
*Three are age 65 or older
The COVID-19 case total in Dare County is now 171.
Today’s 2,039 new cases at the statewide level are 8.1 percent of the 1,121,811 diagnostic tests that reportedly were completed. Twenty more people have died since yesterday in North Carolina because of COVID-19, bringing fatalities to 1,461.
Dare County Health Director Dr. Sheila Davies will give some details tomorrow about the COVID-19 cases that have been diagnosed locally since Tuesday. So far, there have been 21.
Five more Dare County residents and one nonresident have tested positive locally for COVID-19, according to today’s Dare County Dept. of Health and Human Services’ dashboard, bringing the case total to 156.
The six people vary widely in age, with two being 17-year-olds, one being between the ages of 18 and 24, one between the ages of 25 and 49, and two between 50 and 64. Three are males, three females, and all are in home isolation. The nonresident has transferred to his/her home county.
Statewide, the news is that hospitalizations continue to increase, reaching 994 during the last 24-hour reporting period, which is a single-day high.
The N.C. Dept. of Health and Human Services reports 1,435 new confirmed COVID-19 cases today, among 1,096,682 completed tests, for a positive-test rate of about 5.65 percent. Twenty-one more people died as a result of COVID-19, bringing fatalities in North Carolina to 1,441.
Twenty-eight minutes into its meeting last night, the Southern Shores Town Council adjourned to hold a closed session with Town Attorney Ben Gallop, the subject of which Mayor Tom Bennett described only in terms of a N.C. law that addresses attorney-client privileged consultations by public bodies.
Nearly an hour later—54 minutes to be precise (from 5:58 p.m. to 6:52 p.m.)—the five Council members returned, and the meeting resumed without any mention of the closed session, much less an apology to the viewing taxpayer/property-owner public who waited patiently in front of a blank Zoom screen for the continuation of what was supposed to be a routine Town Council meeting with a closed session at the end of the business agenda.
Those hardy few spectators who had shown up to attend the 5:30 p.m. meeting at the Pitts Center were no longer there. That I still was did not make me happy.
I am going to abandon my editorial “we” briefly to say that I was angry and offended by this unnecessary and inconsiderate hour-long delay. What were Council members thinking? . . . Indeed, were they thinking?
The disrespect the Council showed the public left me, as I said in an impromptu public comment during the second comment period, “flabbergasted.” Council members apparently thought nothing of wasting an hour of people’s time while they “consulted.” I think what they did was grossly inappropriate.
In nearly six years of regular attendance at Town Council meetings, I have only seen the Town Council adjourn into a closed session with Mr. Gallop once during the conduct of business, and that was to discuss a zoning text amendment about non-conforming lots that was scheduled for a vote. That contentious issue consumed maybe 30-40 minutes behind closed doors and resulted in the Council devising a plan of action.
Last night, Mayor Bennett made a motion early in the meeting to amend the agenda to hold a closed session “pursuant to N.C. General Statutes sec. 143-318.11(a)(3) to consult with” Mr. Gallop “to preserve the attorney-client privilege between the attorney and the public body,” after the first public comment period and before the business portion of the meeting. Such scheduling is unprecedented.
The other four Council members readily agreed, without question, suggesting that they had all discussed this move before the meeting.
Before the first public comment period, Police Chief David Kole and SSVFD Chief Ed Limbacher gave their monthly reports and thus were spared the inconvenience and aggravation of the long wait.
Deputy Town Manager/Planning Director Wes Haskett also gave a report, but he returned for the business meeting. I know this because I heard his voice, but I never actually saw him.
The Town Council persists in using technology with a stagnant camera that remains fixed on only one angle. Most prominent in the picture are the backs of the Finance Officer and the Town Manager. Mr. Haskett was off-camera in the invisible periphery.
My thought at home, seated in front of my laptop, was that perhaps Mr. Gallop had to leave early. Why else would the Council interrupt a business meeting to discuss the “handling or settlement of a claim, judicial action, mediation, arbitration, or administrative procedure,” all of which constitute the subject matter of a sec. 143-318.11(a)(3) closed session?
Mr. Gallop did not depart early.
If, in fact, the closed session concerned an “existing lawsuit,” the Mayor was required by state law to identify the parties in the lawsuit when he moved to adjourn. This is black-letter law in N.C.G.S. sec. 143-318.11(c).
Not only did he not give a case name, he offered no explanation for why he wanted to move the attorney-client privileged closed session that had been scheduled at the end of the meeting—notice of which was given to all members of the public for more than a week—to the middle of the meeting.
When the meeting did end, about 7:45 p.m., the Mayor moved to go into another closed session, this time for a “personnel matter,” pursuant to N.C.G.S. sec. 143-318.11(a)(6).
N.C. law requires a “public body’s” motion to hold a closed session to “cite one or more of the permissible purposes” listed in N.C. G.S. sec. 143-318.11(a).
Nowhere in the (a)(6) subsection do the words “personnel matter” appear.
The statutory language proffered there is “to consider the qualifications, competence, performance, character, fitness, conditions of employment . . . etc.” and other such specific issues that may be discussed outside of the public’s purview.
In fact, the statute specifically says that “general personnel policy issues” may not be considered in a closed session.
The Mayor’s sloppy motion shorthand is unacceptable. It is just another way to withhold from the public information—to which it is entitled—about town business.
I abhor both the intrusive closed session, which placed an undue burden on the public, and the Mayor’s lack of professionalism, regardless of why it occurred.
‘ELECTRONIC MEETINGS’
Speaking about sloppy, it is long past time for the Town Council to cease perpetuating the fiction that it is holding “electronic meetings.” None of the Town Council members or Town staff members appear by electronic means. The Council is holding in-person meetings and relegating the public to remote status.
In so doing, once again, it is the Council’s convenience that is being served before accommodation and consideration for the public.
That the Town Council, Town Finance Officer, and Town Manager again sat last night at folding tables arranged on the Pitts Center floor in a square-like configuration, rather than on the dais and on the sideline (for staff), with chairs set out at six-foot intervals for audience members, is astounding. They are discouraging public participation with their coffee klatch setup.
For an example of how the seating should be arranged, we refer them to videos of the June 17 and July 1 meetings of the Nags Head Board of Commissioners, with whom new Town Manager Cliff Ogburn is very familiar. There was ample space at both of these meetings for members of the public to attend and observe infection-control measures, such as safe physical distancing.
Nags Head also live-streams its meetings in real time. The camera moves with the speaker, who is not only visible, but clearly audible.
Southern Shores should consider doing the same. Last night again, four off-camera speakers—Mr. Haskett, Chiefs Kole and Limbacher, and a citizen speaker—were very difficult to hear. The audio on the meeting You Tube videotape, which has already been posted online, is not much better.
Nags Head’s commissioners also dress in business attire and are very mindful of their audience and of Robert’s Rules of Procedure.
I don’t recall a single time last evening when Mayor Bennett asked “All opposed?” after taking an “All in favor” vote and either hearing or assuming unanimity.
He also doesn’t bother to restate motions before calling for a vote.
Further, it would be a courtesy if the Mayor were to recognize at the start of the meeting who is present, inasmuch as the Zoom public cannot see everyone.
The Beacon has written before about what we call sloppiness in Town Council proceedings. Perhaps Mr. Ogburn, with the excellent experience he gained as town manager of Nags Head, can effect a change.
SOUTH DOGWOOD TRAIL CURBING AND WIDENING THE ROAD
Steve House, a member of the Dare County Board of Commissioners and a Southern Shores resident—although he did not state his address, and Mayor Bennett did not ask him to comply with this public-comment etiquette—complained last night about the new curbing on South Dogwood Trail that was installed because of the sidewalk design.
Mr. House described the new curbing as “very sharp” in areas and asked Town Council members to check out tire marks on the curbs for themselves.
(We have previously heard complaints from other property owners about the new narrowness of the road and scraps against the curbs.)
“I just replaced a rim on my truck,” Mr. House said, that was damaged when it came up against a new curb.
Unfortunately, Mr. House’s assumed answer to this problem created by Town Engineer Joe Anlauf, who recently had his contract extended two years, is not one that has enjoyed support among property owners.
“I know you’re looking at widening the road,” said Mr. House, when he put in a plug for fixing the curbs.
If that is the case, then Mr. House knows something the public does not know. The Town has never publicly said it would be widening South Dogwood Trail.
The Dogwood Trails Task Force, a Town Council-appointed committee that surveyed property owners about the possibility and design of sidewalks on the Dogwood trails, expressly concluded that the public opposes widening South Dogwood Trail. A wider road would encourage faster traffic and further nonresidents’ perception of the road as a thoroughfare.
That Mr. Anlauf could not figure out how to install curbs without narrowing the road is baffling to us. Couldn’t he have narrowed the five-foot-wide sidewalk, in certain locations, instead of the road?
(BTW, Mr. House is running against Democrat Kathy McCullough-Testa, also of Southern Shores, in November to retain his seat.)
RETURN OF CURBSIDE RECYCLING: On a positive note, Mr. Haskett reported that he expects to be able to deliver to the Town Council at its Aug. 4 meeting an amended contract with Bay Disposal & Recycling that would bring true recycling back to Southern Shores. The contract would provide for Bay Disposal’s collection of the Town’s curbside recyclables and their delivery to a recycling process center in Portsmouth owned by Recycling & Disposal Services, Inc.
Since last December, Bay Disposal has transported the Town’s recyclables to an incinerator at a waste-to-energy facility in Portsmouth, not to a recycling center. (The Beacon has written extensively about the recycling crisis in Southern Shores and on the Outer Banks, generally. Please scan the archives for background.)
We will elaborate in the days ahead about some of the business that arose last night after the closed session. As we predicted earlier, all budget amendments and resolutions passed unanimously.
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COMING UP SOON: “From Ice Cream to Tacos: How a Former Planning Board Chairman Opened the Door to Fast Food in Southern Shores.”
Yes, that really is a Taco Bell opening soon in front of the Marketplace.
The Southern Shores Beacon 