2/17/21: CURIOSITIES ABOUND IN COUNCIL’S 19-MINUTE WORKSHOP; HOMEOWNER QUESTIONS WHY SHE RECEIVED EASEMENT REQUEST, BUT NEIGHBORING OCEANFRONT PROPERTY OWNER DID NOT.

Tasked with choosing a civil engineering firm to conduct a pavement condition survey of the town’s 37.6 miles of roads, the Town Council yesterday gave Town Manager Cliff Ogburn all of the authority he needs to negotiate and contract with a firm, without actually choosing one of the firms he recommended.

The Beacon found this odd. The oversight occurred because Mayor Tom Bennett said, after Mr. Ogburn’s report on the pavement study and the firms who applied for the job, “We need a motion,” and then explained the motion that was needed without actually making a motion.

We consider what the Mayor did a procedural irregularity. And it is not the first time he has done this.

The Mayor phrased the “needed” motion as “to authorize the Town Manager to enter negotiations for a scope of work and costs to perform a pavement condition study and capital improvement plan.” But he omitted the name of the civil engineering firm with which Mr. Ogburn would negotiate.

He then asked at the end of this non-motion: “Do we need to add any more to that?”

By the time the Council finished adding language about money to fund the pavement study and capital improvement plan, the Mayor was referring to his non-motion as a motion, and Councilman Jim Conners had seconded it. 

Mr. Ogburn, in consultation with a Town staff committee, recommended two engineering firms from among nine that applied to a Request for Qualifications proposal: SEPI Engineering & Construction, Inc. (“SEPI”) of Raleigh, which the committee ranked No. 1, and LaBella Associates, a Charlotte firm. (See The Beacon, 2/13/21, for background.)

Yesterday’s workshop was clearly held for the purpose of selecting an engineering firm.

We have blanched before when Mayor Bennett has said “We need a motion” and then read prepared language, telling the Town Council the content of the “needed” motion, instead of allowing a Council member to make a motion of his or her choosing.

This is simply not proper procedure. The Mayor’s request should be open-ended in the form of “Is there a motion?” He should not be telling the Council what motion to make. If he chooses to make his own motion, he can do so.   

Had Councilman Matt Neal, who said during discussion about Mr. Ogburn’s report that “I’m happy with staff’s recommendation”—meaning, with the selection of SEPI—made the motion, we believe he would have specified the firm.

Mr. Neal also pointed out after the Mayor’s non-motion that money for the survey could be taken out of the FY 2020-21 budget’s “line item for streets improvement.”

Eventually, the Mayor rephrased his non-motion—with help from his colleagues—as a motion, with all of the necessary instructions, except the name of the engineering firm, and Mr. Conners seconded it.

No one addressed the obvious gap, and the motion passed unanimously.

Presumably, Mr. Ogburn will contract with SEPI and report back to the Town Council. He was instructed by the Council not to exceed $35,000 in cost, a figure that he himself offered as a ceiling.

While we appreciate that Mayor Bennett may be experiencing memory difficulties, we urge him to leave complicated motions to the rest of the Town Council and to refrain from telling his colleagues what motion is “needed.” To do otherwise suggests undue influence, which we do not believe he intends.

UNEASE ABOUT EASEMENTS AND MUNICIPAL SERVICE DISTRICTS

This needed-motion “curiosity” was one of several that transpired yesterday during the Council’s 19-minute-long workshop session. 

In another, oceanfront property owner Lisa Emig, of 1 Mockingbird Lane, spoke during what amounted to a delayed public-comment period about the voluntary easement request that she had received from the Town for access during the 2022 beach-nourishment project and perpetually thereafter.

Ms. Emig started by saying that “It seems that my neighbor next to me did not receive an easement agreement, and I’m questioning why I was the only one within my area.”

Mayor Bennett responded by deferring to Mr. Ogburn and saying—unsatisfactorily, we believe—that he had nothing to do with the easement mailings. 

Are we to believe that the Mayor of Southern Shores does not know how beach-nourishment easements are being handled? How can that be? Why isn’t he informed?

Mr. Neal and Mayor Pro Tem Elizabeth Morey, who are the strongest proponents of townwide beach nourishment in 2022, quickly sought to discourage Ms. Emig from continuing with her questions, both of them asking whether she was going to make comments—which is a proper use of the public-comment period—or ask questions, which is an improper use.

Ms. Morey advised Ms. Emig firmly, but courteously, that she should direct any questions to Mr. Ogburn after the meeting.

Ms. Emig continued by saying that she had “concerns” about the wording of the easement, including the use of the word “perpetual”; about whether her grant of the easement entitles “access to my property by anybody”; and “if the construction will involve removal of my property line.”

The Mayor picked up on what the Mayor Pro Tem said and steered Ms. Emig to the Town Manager. He also referenced the March 16 public hearing on the proposed municipal service districts (“MSDs”), with which Ms. Emig indicated she was familiar.

The only Council member who showed any empathy for Ms. Emig—at least publicly during the meeting—was Councilman Conners, and we thank him for that.

Here was a confused, obviously worried, but respectful and well-intended Southern Shores property owner who had made a special effort to attend a 9 a.m. meeting, only to receive a cool reception from the elected board. The Dare County GIS listing for her property suggests that she also is likely a nonresident.

To his credit, Councilman Conners reached out to her, but what he said was curious.

“The whole MSD district is undergoing a legal process right now,” he said. “We’ve gotten emails on this . . . The whole thing, it could change.”

Seeking to communicate further with Ms. Emig, Mr. Conners continued: “I’m very hesitant to address too much your concerns right now because [of the MSD “legal process”]. Everything could change.

If there appears now to be a three-person majority on the Town Council that would vote to significantly change the scope of the 2022 beach nourishment project and/or alter the boundaries of the MSDs, then we strongly urge that majority to take that vote March 2.

Property owners should not have to be burdened by the stress and distress, inconvenience, time demands, and travel expenses involved in preparing for and attending the March 16 hearing, which is a major hearing with significant financial consequences for many.  

It may be easy for the Town Council to show up and listen to public speakers, but we can assure Council members that it is not easy for those of us who will speak. It is a hardship.

We also would speculate that it was a hardship for Ms. Emig to appear at the Council workshop and raise the questions she did. Confrontation is not easy for most people.

Speaking as a former attorney—my law license is active in Maryland, but no longer in North Carolina—I would advise all Southern Shores property owners that they should not sign a document that has language in it that makes them uncomfortable. The easements that the Town seeks—whether from selected oceanfront property owners or not—are strictly voluntary, not mandatory.

The Beacon found much to dislike in the draft perpetual easement that Town Attorney Ben Gallop prepared by culling language, he said, from easements used in other Dare County towns, as well as in Atlantic Beach, Emerald Isle, and Topsail Beach. (See The Beacon, 10/2/20; 7/26/20.)

The Town Council unanimously approved Mr. Gallop’s draft easement, with some modifications, on Oct. 6, 2020, but it did not sign off on a rewrite, and it never reviewed a rewrite at a subsequent meeting—presumably because it also unanimously gave Mr. Ogburn the authority to proceed with trying to procure easements from oceanfront property owners. (See The Beacon, 10/15/20.)

At the Council’s Feb. 2, 2021 meeting, Mr. Ogburn reported that 45 of the 185 easements required of oceanfront property owners for the Town’s 2022 beach-nourishment project had been mailed. (See The Beacon, 2/5/21.)

At no time has the Town Manager publicly explained that some oceanfront property owners will be receiving easement requests and others will not. If this is true, he should inform the public.

I also would advise property owners that the fact that other people in other Dare County towns have signed similar easements—a point brought up yesterday by Councilman Neal—is irrelevant. Their property situations are different—no town is like Southern Shores—and they may have been negligent in protecting their own interests or received poor advice.

We also wonder if there is a town in Dare County that Mr. Gallop and his legal colleagues at Hornthal, Riley, Ellis & Maland do not represent.

Property owners in other towns may perceive more benefit in granting an irrevocable and perpetual easement than a Southern Shores oceanfront property owner would. The beaches in Nags Head, for example, have experienced extensive erosion, unlike the beaches in Southern Shores, which are stable except at the southern end.

An easement conveys a legal right to use the property of another as specified in the granting document.  A property owner should understand the terms of the use before agreeing to such a conveyance; and a town governing board should want the constituent-owners it represents to have that understanding.

Ann G. Sjoerdsma, 2/17/21

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