Town Manager Cliff Ogburn will “file” his proposed Town of Southern Shores’ operating budget for fiscal year 2021-22, which begins July 1, with the Town Council at its meeting next Tuesday, and “distribute” it then, too, according to the meeting agenda now on the Town website.
A date for a public hearing on the budget also will be announced at the meeting, according to the agenda, which you may access here, along with the meeting packet:
The Town Council will meet Tuesday at 5:30 p.m. in the Pitts Center. All attendees must wear masks and observe COVID-19 safety protocols. The meeting also will be live-streamed on the Town’s You Tube website. There will be two public-comment periods.
*Also scheduled on the Town Council’s agenda is a second vote on the proposed municipal service district ordinance, as amended and approved by the Council at its April 13 meeting.
In order to establish two MSDs for the purpose of generating revenue for the 2022 beach nourishment by levying higher tax-rate increases on property owners in those districts, a majority of the Town Council members present at two separate meetings must approve the ordinance.
The Town Council approved the amended MSD ordinance, 4-0, with Councilman Jim Conners absent, in April.
You will find the amended text of the ordinance on page 8 of the meeting packet.
*Before the discussion of any town business, according to the agenda, the Town Council will hear a “status update on the Mid-Currituck Bridge,” from Jennifer Harris, an engineer with the N.C. Dept. of Transportation’s Turnpike Authority.
According to the NCDOT’s website, the Mid-Currituck Bridge is a project “in development” that has been delayed “as efforts to fight COVID-19 have greatly impacted the N.C. Dept. of Transportation’s budget.”
The bridge construction, previously estimated to take more than two years, was initially scheduled to begin in summer 2022.
Ms. Harris and engineer Rodger Rochelle gave an update on the project in January 2020, which is available here:
The proposed FY 2021-22 budget is the first that Mr. Ogburn, who formerly served as Nags Head town manager, has prepared since he was hired by the Town last year.
In a break with the procedure observed by former Town Manager Peter Rascoe, Mr. Ogburn did not hold an item-by-item budget workshop in April with the Town Council. Instead, he held a workshop in March in which he sought the Council’s input on how to balance the budget, which, he said at the workshop, had a shortfall in revenues to cover expenses of more than $1 million.
If two-thirds of North Carolinians age 18 and older have been at least partially vaccinated against the coronavirus and the number of new COVID-19 cases, hospitalizations, and other telltale COVID-19 metrics statewide remain stable, Governor Roy Cooper will lift the indoor-mask mandate and all other public restrictions, including social distancing, on June 1.
If two-thirds of all adults in North Carolina are not partially vaccinated by June 1, but COVID-19 metrics are level, the Governor said he would end all current restrictions except for the indoor mask mandate.
Governor Cooper announced this commitment last week, and he reiterated it at a 10-minute briefing yesterday at which he also announced a new executive order that will lift the outdoor mask mandate and ease restrictions on mass-gathering capacity limits, starting at 5 p.m. tomorrow.
Although mask-wearing outdoors will no longer be required, both the Governor and Secretary of the N.C. Dept. of Health and Human Services (NCDHHS) Dr. Mandy Cohen recommended yesterday that people still wear masks when they are in crowded areas outdoors or in higher risk settings where six-foot social distancing is difficult.
EO 209 also raises mass-gathering capacity limits from 50 to 100 people indoors and from 100 to 200 people outdoors. Larger venues for live entertainment may be eligible to increase their guest capacity if they receive pre-approval of their health and safety plans from the NCDHHS. Business occupancy limits currently in effect will remain in place.
Governor Cooper asked North Carolinians to “work hard in May” so that he can safely lift all public social distancing and mass-gathering capacity and occupancy limits on June 1, in time for summer.
“The critical piece of our success,” he emphasized, “is getting vaccinated.”
To this end, Dr. Cohen announced that the NCDHHS will be launching a “Bringing Back Summer” initiative in May to encourage vaccinations.
A community-centered campaign, Bringing Back Summer will rely on local organizations to register with the NCDHHS to obtain communication toolkits for use in encouraging people to get vaccinated. See https://covid19.ncdhhs.gov/BringSummerBack for details.
As of yesterday, Dr. Cohen said, 48.7 percent of North Carolinians age 18 and older had received one dose of a COVID-19 vaccine, and 39.2 percent of such adults were fully vaccinated.
An impressive 70 percent of all North Carolinians age 65 and older are fully vaccinated, the Secretary said, a figure that she noted has translated to a reduction of COVID-19 cases among this age group.
Dr. Cohen also said that the “very, very rare blood clot disorder” associated with the administration of the one-shot Johnson & Johnson vaccine, which resulted in a “pause” in its use, occurred in only 15 cases out of 8 million doses. She expressed confidence in the J&J vaccine, which she herself received.
Vaccines are currently available to all North Carolina residents and property owners age 16 or older through the Dare County Dept. of Health and Human Services (DCDHHS).
You may register for vaccination online at www.darenc.com/covidvaccine or email the DCDHHS at firstname.lastname@example.org. If you register online, you should receive a call within 24 hours to schedule your appointment, according to the DCDHHS, which no longer has a waiting list.
Vaccines are also available through Walgreens, Sunshine Family Pharmacy, Island Pharmacy, Bear Drugs, and Beach Pharmacy. The DCDHHS advises that you should call the pharmacy directly to inquire about its vaccination protocols and to schedule an appointment.
I would like to extend a personal thank you to Bear Drugs pharmacist Laurie Graham, who came out to my car to vaccinate a member of my family who is mobility-challenged. For that reason—and out of an abundance of caution—I did not register her for vaccination through the county.
I am happy to report that this elder suffered no ill effects from the first dose of her Moderna vaccine and enjoyed being out of the house for a change.
How many seconds do you think a pedestrian walking with the crossing sign in the crosswalk at the intersection of Ocean Boulevard and Chicahauk Trail needs to get safely across Ocean Boulevard so he or she can use the beach access?
Suppose the pedestrian is mobility impaired and walks slowly, is hauling a lot of beach equipment, or is walking with small children. How many seconds do you think these variously situated pedestrians need?
How many seconds do you think the crossing sign at the most popular beach access in Southern Shores currently allows pedestrians to get safely across Ocean Boulevard at Chicahauk Trail?
A 65-year-old man from Connecticut who was in Southern Shores for the wedding of his son was struck by a vehicle 10 days ago while walking in this crosswalk and later died of his injuries at Sentara Norfolk General Hospital.
According to police and local media accounts, Robert Henry Ouellette, Jr., of Watertown, Conn., was trying to cross over to the Chicahauk beach access about 8:20 p.m. on Friday, April 16, with a group of family members and friends when he was hit by a vehicle heading north.
Mr. Ouelette was reportedly a longtime baseball and football coach at Watertown High School who had retired.
Southern Shores police reported that northbound traffic had been stopped at the red light when some members of Mr. Ouelette’s party crossed Ocean Boulevard safely. Mr. Ouelette and his wife, however, followed them after the traffic light turned green and the pedestrian sign signaled no crossing.
According to police, Mr. Ouelette waited for one car to pass, but was struck by the next car. His wife crossed safely ahead of him.
Police determined that the driver of the car that hit him, William Thomas King, Jr., 60, of Fort Washington, Md., was not speeding or impaired. No charges were filed or are expected to be filed against Mr. King.
This was a preventable tragedy—and not just because that Mr. King could have been more alert, ensuring that no one was in the intersection before he entered it, or that Mr. Ouelette could have observed the crossing sign and held back.
No, this tragedy could have been prevented if the crossing sign and the traffic light were timed to give pedestrians ample time to cross the busy thoroughfare safely.
How much time do you think is ample?
The State of North Carolina has jurisdiction over N.C. Hwy. 12, which runs through Southern Shores as Ocean Boulevard and Duck Road, and is in charge of maintaining the traffic signals and devices at the Ocean Boulevard-Chicahauk Trail intersection.
But the Town of Southern Shores also has responsibility for the road and the people who use it, as well as the traffic flow. Through its police department, it has on-the-ground oversight. It knows the road conditions and can assess whether public hazards exist that could be corrected and take measures to correct them. The N.C. Dept. of Transportation is not likely to deny a request by the Southern Shores police to make a change.
It is unquestionably foreseeable that people will be crossing to the beach at this well-used intersection at all hours of the day and night, and that some of them will cross against the traffic light and do exactly what Mr. Ouelette did.
The answer to how many seconds the crossing sign at this intersection currently allows for a pedestrian to walk across the road—at least today when we conducted an on-the-scene experiment—is no more than 15 seconds, if you’re quick off the starting block.
The answer to whether 15 seconds are ample is no. Emphatically no.
(Shockingly, we also discovered today that bicyclists and pedestrians who cross U.S. Hwy 158 at its intersection with Kitty Hawk Road near the Kitty Hawk Post Office have only 22 seconds to do so safely before the light changes! Nobody who is mobility-challenged should even attempt to cross.)
In our exercise in Southern Shores this afternoon, we pressed the button that a pedestrian must press at the Ocean Boulevard-Chicahauk Trail intersection just to get traffic to stop—the crossing sign did not work for us otherwise—waited for the sign to give us the go-ahead, and then counted the seconds.
Two to three seconds elapsed before the sign started counting down the seconds, and it started its count at 13. Thirteen. We were stunned. We thought we would get at least 20 seconds and considered 20 even insufficient. (That was before we knew about the 22-second hustle at Hwy. 158-Kitty Hawk Road.)
After the crossing sign reached zero, the traffic stopped at the red light had to wait about 4 seconds before the light turned green. Just four seconds.
Yes, it is still the shoulder-season; yes, fewer people are crossing the Ocean Boulevard thoroughfare to go to the beach than will be crossing during the summertime; and yes, most of these few are not loaded down with beach equipment or with babies and children.
Presumably the timing of the crossing sign will increase with the high season. But by how much? And will it be enough to ensure safety for the vacationing public, which tends to be more distracted, slower, and not as quick “on the gas” as the drivers waiting at the red light?
We wonder: Have there been other pedestrians struck in the crosswalk under circumstances similar to those that Mr. Ouelette experienced? What is the accident history at this intersection?
There are a number of ways to make the Ocean Boulevard-Chicahauk Trail intersection safer for pedestrians.
You can put up road signs before the intersection cautioning drivers to watch out for pedestrians.
You can lower the speed limit before the intersection so that drivers will have slowed down considerably from the 45 mph–or 35 mph in the summertime–that they can legally drive on this stretch of N.C. Hwy. 12.
You can put lights at the crosswalk, on either side of the road and in the crosswalk itself, so drivers will be more aware of pedestrians.
You also can time the crossing sign so that pedestrians have at least 60 seconds or longer to cross the road in the summertime and at least 30 seconds to cross it in the off- and shoulder-seasons. Further, you can increase the time lapse between the expiration of the crossing sign and the traffic light’s change from red to green to at least 10 seconds.
If it was not on notice before, the Town of Southern Shores certainly is on notice now about this intersection and the safety hazards it poses to pedestrians. The red flag is waving large.
The Beacon was surprised and, frankly, insulted when the Southern Shores Town Council took its first vote at its April 13 meeting to establish the two proposed municipal service districts for beach-nourishment funding and approved them, with a minor change, WITHOUT first:
having any discussion about any of the issues raised by Southern Shores property owners in written and verbal comments to the Council;
addressing the exclusion requests that were filed by three property owners—one of whom came from Richmond to present his case in person and was ignored—and were on the meeting agenda;
saying anything to the dozens of people who participated in the March 16 MSD public hearing; and
telling property owners when they will be setting the tax rates, assuming the MSDs are approved on the second vote.
Nobody on the Council even thought it appropriate to say a simple thank you to property owners: “Thank you, we appreciate the time you took and the effort you made to communicate with us. We respect your positions.”
Town Manager Cliff Ogburn referenced the fact that the Town Council had heard from numerous property owners, in emails and at the March 16 public hearing, and had had an opportunity to reflect on what it had heard. But no elected official spoke to any of the public comments.
We find ourselves asking of the Town Council: Who do they think they are, if they do not think of themselves first as public servants who represent the public’s interests and owe the public an explanation of all of their actions?
“Playing it close to the vest” is not an option here. Not when thousands of increased tax dollars every year are at stake, and people are worried.
Why did the Town Council reject the option of having one town-wide tax to pay for the 2022 beach nourishment project? It should tell us.
Councilman Jim Conners did not even bother to attend the meeting to cast a vote in the first of the two votes required to be taken on the proposed MSDs.
At the top of the meeting, Mayor Tom Bennett said: “Councilman Conners asked to be excused for this evening’s meeting, and I granted his request. He will not be here in person.”
In our recollection, Councilman Conners has never missed a Town Council meeting in his nearly four years on the Council. That he chose to skip this important meeting without offering a reason to the public, and that the Mayor also declined to explain his absence, is an insult to the Southern Shores public. Mr. Conners is an elected public official. He should feel a duty to explain his reasons for not appearing and casting a vote on this critical measure.
The Mayor’s peculiar phrasing, “He will not be here in person,” suggests that Mr. Conners may have been watching the meeting by livestream. If that was the case, that, too, should have been divulged to the public. If not, then the Mayor should have chosen better phrasing. Remote participation is an option for every Town Council member.
Believe it or not, we do not enjoy criticizing the Town Council—especially not after the Planning Board’s stumble last Monday. (The Planning Board, however, does not have seasoned lawmakers on it, and it is comprised of volunteers, not elected representatives.)
This Town Council is too often discussing important issues outside of a public forum and presenting their “consensus” as a done deal.
They may not be violating the letter of the N.C. open-meeting law—thanks to the wizardy of technology—but they are violating its spirit.
Cases in point:
1. Mayor Bennett expressed serious reservations at the Council’s Feb. 2 regular meeting about the scope of the 2022 beach nourishment project, and Councilman Leo Holland showed keen interest in what he was saying. The Mayor actually said he had been “agonizing” for months over how to handle the project. (See The Beacon, 2/5/21.)
No followup of these reservations ever occurred in public, however, because—poof!—they just disappeared. No more agony.
In the ensuing two-plus months, Mr. Bennett and Mr. Holland simply went along with the other Council members without saying a word to the public. They played no obvious role in the MSD discussion on April 13 other than to say “aye.”
Interestingly, the Town Clerk has not even posted minutes on the Town website for the Feb. 2 regular meeting, although she has posted minutes for two Council meetings that took place after the Feb. 2 meeting.
2. Councilman Matt Neal made it clear at a Council meeting in January that he was opposed to including “oceanside” properties that do not abut the beach in MSD-1 and that he would continue to voice his opposition, despite being in the minority.
Oceanside or eastside properties are those properties that are east of Ocean Boulevard, but do not have beach frontage. There are quite a few on or off of Ocean Boulevard between the Duck Road split and Hickory Trail.
Mr. Neal made a pitch early on for all of the properties on Purple Martin Lane, Mockingbird Lane, Sandpiper Lane, the end of Hickory Trail, and oceanside near the Duck Road split, being in MSD-2. (Full disclosure: Two of the oceanside properties near the split belong to family members of mine.)
Mayor Pro Tem Elizabeth Morey just as clearly told Mr. Neal that she saw no reason to differentiate such eastside properties from oceanfront properties. It appeared that he was going to have to do some serious convincing.
Thus, we were bemused when the Mayor Pro Tem led the charge at the April 13 meeting to amend the map of District 1 to exclude these properties, speaking in a halting fashion as if the exclusions were just occurring to her. (“If I remember correctly . . .”)
Are we to believe that Ms. Morey had no communication with Mr. Neal, and that they did not resolve their differences outside of public earshot?
Guess whom the Mayor Pro Tem asked to make the motion to effectuate this—along with a further change—and who seconded it? By April 13 Ms. Morey’s opposition to Mr. Neal’s position had transformed into fawning deference.
NO ONE SPOKE AT ONCE, AND NO ONE EVER SPOKE TO THE PUBLIC
Nearly 20 seconds passed after Town Manager Cliff Ogburn laid the foundation for the Town Council’s vote on the MSD ordinance before anyone spoke. It was the Mayor who broke the silence, but not to say anything substantive.
“Any thoughts on this, Council, that you want to share with us? Anyone?” the Mayor asked. “Elizabeth? Matt? Leo?”
Beat. Second beat.
“So, originally, um,” Ms. Morey began, haltingly, “MSD 1, um, I think, did not include some of those properties—ohhh (big sigh), let me see if I can get my geography straight . . .”
This “geography” is that small patch of land that includes the lanes we just mentioned.
If this uh-um-let-me-see-if-I-can-recall opening salvo by Ms. Morey and the exchange that she subsequently had with Mr. Neal were not planned, then Ms. Morey should see a neurologist about her memory.
Ms. Morey and Mr. Neal laid out exactly what the Town Council was going to do, and it coincided with what Mr. Neal had said all along. At least he was consistent and forthcoming.
Speaking personally, I found the discussion engineered by Ms. Morey, who could have plowed through the amendment, but insisted on deferring to Mr. Neal, Town Attorney Ben Gallop, and Mr. Ogburn, to be political theater. It offended me greatly, as an oceanfront property owner, as a voter, and as a longtime taxpayer and resident, who expects better from elected officials.
I expect elected officials to be directly responsive and accountable to property owners and to go on the record with their views. If I want to watch a staged production, I’ll go to an off-Broadway play and see trained actors.
Instead of asking for the Council’s “thoughts,” the Mayor might have taken the time to acknowledge Southern Shores property owners, especially those in MSD-1 who expect to take a big tax hit. But none of the four Council members was inclined to show any concern for property owners.
They were especially dismissive, we believe, of Tom Peabody, whose family first bought property in Sea Crest Village in 1959 and built a beach box on Sixth Avenue in 1984.
A non-resident property owner, Mr. Peabody came down from Richmond to plead his case in person for his property’s exclusion from MSD-2. He had a good argument that the northern section of the Southern Shores coastline does not need beach nourishment. That is what the Town’s coastal engineer said, and the Mayor pointed out at the Feb. 2 meeting. (But you cannot read the minutes yet.)
Unfortunately, Mr. Peabody labored under the misassumption that the Council would actually consider his request.
Before Mr. Peabody’s turn in public comments, Mayor Bennett reminded all speakers that they have only three minutes to speak and affirmed the “fact that this is not a question-and-answer period.”
Of course, the March 16 public hearing, over which Mr. Gallop presided, was handled the same way. No “Q and A.”
When does this Town Council ever engage the public in public?
At NO time during its discussion about changing the MSD-1 boundary—which was its only discussion about the MSDs before its vote—did the Town Council address Mr. Peabody’s request or those of two other applicants, who were homeowners on Ocean Boulevard and the Southern Shores Civic Assn.
The Beacon has confirmed with Mr. Peabody, who abruptly left the meeting in disgust after the MSD vote, that he has not heard anything from the Town about his request.
I am grateful that I did not waste my time writing an exclusion request, only to have it summarily dismissed by Mr. Ogburn who advised the Council if it made an exception for one property, then it would have to make an exception for others, and if it approved the ordinance, it would implicitly be rejecting the exclusion requests.
That does not cut it with us. Again, we ask: Who do they think they are if they are not public servants accountable to the public?
The Town has announced that the second vote on the ordinance establishing the two MSDs will be held at the Town Council’s May 4 meeting at 5:30 p.m. in the Pitts Center. The language defining District One now reads:
“All properties that abut the ocean beach of the Atlantic Ocean having an eastern boundary greater than or equal to 25 feet, beginning at the southern town limit and extending to the northern town limit.”
The new language exempts those eastside properties that Mr. Neal always wanted to exempt, as well as irregular “flat lots” with limited beach frontage.
Also disappointing to us was Town Manager Cliff Ogburn’s failure to say anything in his April 13 report about the filing of his recommended fiscal year 2021-22 budget and whether there will be a need for a general tax-rate increase. He also said nothing about cut-through traffic prevention.
Mr. Ogburn has previously said that he would submit his recommended budget to the Town Council at its May 4 meeting, but he did not confirm this, nor did he mention the scheduling of any budget workshops.
The two issues of most importance to most property owners in this town are taxes and traffic.
But no longer does the Town Council extend the public the courtesy of knowing well in advance when a budget workshop will be held and, therefore, when it is likely to discuss and vote upon tax rates and traffic mitigation. It changed the calendar this year, omitting workshop dates.
A preliminary budget workshop, purportedly designed to give Mr. Ogburn guidance, was held March 16, but there have been no public budgetary discussions since. By the time a “public hearing” is held on the FY 2021-22 budget, it likely will be the usual done deal.
We remind all Southern Shores voters that 2021 is an election year. We will be electing a new mayor and voting upon the seat currently held by Mr. Conners.
The Beacon asks you to cast about among the people you know to identify candidates who would serve the public in a forthright, honest, responsible, and transparent way.
Four years ago the voters rejected two candidates who were committed to conducting the people’s business in public. We should not make that mistake again.
If the proposed Zoning Text Amendment to add “temporary health-care structures” as a permitted accessory use to single-family homes in Southern Shores had simply reproduced the language of the N.C. statute it intends to implement, the Town Planning Board might not have gotten lost at its meeting yesterday in skepticism, confusion, and misunderstanding.
And it might not have appeared so unsympathetic.
But ZTA 21-02 does not—because CodeWright Planners’ principal Chad Meadows did not draft it that way—and Deputy Town Manager/Planning Director Wes Haskett did not introduce the ZTA with adequate background, so the Board floundered.
Only newly appointed full Board member Robert McClendon seemed to appreciate the point of ZTA 21-02, which is to give families caring for a mentally or physically impaired adult relative, who needs temporary help with TWO OR MORE “activities of daily living”—ADLs in caregiver parlance—a new, convenient, and desirable housing option.
The transportable residential structure would be a tiny house for Granny or a safe haven for a 21-year-old son recovering from a broken leg, not a trailer, as one Board member feared, and its zoning permit would have to be renewed annually.
Once it is no longer needed, it would have to be removed. These structures are not meant to be small, sustainable nursing homes.
“[We] are coming off as people who are not sympathetic” to family caregivers and their loved ones, Mr. McClendon perceptively said, after listening to his colleagues veer off-course into how these temporary 300-square-foot structures, which can only house the “impaired” adult and must meet all building code standards, will be secured to the ground, lest they take flight and cause damage, and what they will look like—because there are neighbors who will have to look at them.
“Trying to get around this legislation is pretty sad,” Mr. McClendon aptly said, emphasizing, but not loudly or often enough, that the ZTA is about a “very specific, narrow, temporary use.” It is about helping families.
The Board seems “more concerned about aesthetics,” he noted.
We believe that Planning Board members would have understood better what was supposed to be before them if they had read N.C. General Statutes sec. 160D-915, the statute upon which ZTA 21-02 is based.
CodeWright chose to incorporate this zoning change into the Town Code by simply amending Code sec. 36-168, which addresses “temporary uses.” Poor decision.
“Temporary health care structures” should be dealt with in a separate Code section, as it is in NCGS 160D-915, which starts with a definition section. The way CodeWright structures the text is confusing.
It most likely led to Vice Chairperson Tony DiBernardo insisting that all “licensed medical professionals”—a broad term he never limited—should be permitted to reside in the single-family home to which the temporary structure is an accessory.
At least that is the effect of what he argued, although he seemed not to understand that.
The N.C. statute makes it clear that the impaired person’s caregiver or legal guardian owns or occupies the single-family house on the property where the accessory structure is located. ZTA 21-02 muddies this requirement.
Mr. DiBernardo sought to include in the caregiver description those nurses, physical and occupational therapists, hospice workers, and any other health-care service providers who might visit a client with mental and/or physical impairment, but who would not typically live next door to him or her.
He seemed to believe, for reasons we could not figure out, that the ZTA would prohibit such people from caring for an impaired person, otherwise. But no zoning change could do that.
His confusion may have been the result of “intimidation by statute”—which other Board members, notably Chairperson Andy Ward (see below), also suffered from. Or perhaps it was because of Mr. Meadows’s poor draftsmanship.
Surprisingly, no one on the Board disagreed with him, not even Mr. McClendon.
Mr. DiBernardo specifically objected to the ZTA limiting the definition of a caregiver to “first- or second-degree relatives” of the impaired person, which would include a spouse, sibling, child, grandchild, parent, grandparent, uncle, aunt, niece, nephew, including half-, step-, and in-law relationships.
He seemed to miss the point that this is a caregiver who resides next door to the accessory structure, not all caregivers involved in the impaired person’s treatment plan.
He seemed especially bothered by the ZTA’s use of the terms “lineal descendant” (child, grandchild) and “lineal ascendant” (parent, grandparent), but these are the people who care every day for loved ones who cannot manage ADLs.
The Planning Board eventually voted unanimously to recommend the ZTA to the Town Council, with amendments that would require including licensed medical professionals among the permitted caregiver-residents and would clarify that such accessory structures must “meet all applicable state, local, and federal standards.” (Of course they must.)
Martin’s Point representative John Finelli voted with the Board.
The medical-professional amendment will not survive Town Council scrutiny, unless the Town Manager and the Council are not paying attention. Town Attorney Ben Gallop may step in before the Planning Board’s recommendation reaches the Council and delete it. The suggested change in caregiver definition actually opens up the installation and use of a temporary health-care structure to abuse.
As a lineal descendant (child) caregiver of a mentally and physically impaired person who needs assistance with all of her ADLs—bathing, dressing, ambulating, eating, toileting, transferring, etc.—I have considered the advantage of having a temporary structure in my back yard where my mother could live. (Or, vice versa, having a temporary structure in her back yard, where I could hang out.)
Of course, I knew the Code would not permit it.
I also am more fortunate than many adult children who are caregivers: I am able to care for my mother in her own home, which is where those of us who love our parents want them to live out their lives, if they can do so safely and with adequate care.
I also could not imagine moving my mother, who is still cognitively aware, although her memory and executive functioning are impaired, into an isolated and unfamiliar space the size of a bedroom where she would live alone. That would be devastating.
When the Planning Board discussion about ZTA 21-02 turned to consideration of a person with dementia living in a temporary health structure for as long as 10 years—and thus subjecting the neighbors to the unpleasant aesthetics of the tiny house—I knew that no one on the Board, either a regular or alternate member, had ever cared for a parent with Alzheimer’s disease or any other dementia.
Isolating the person from the rest of the household is not advisable.
I/we will stop our analysis here. The real culprit in this unfortunate episode involving seven well-meaning people—the five Board members, Mr. Finelli, and Board alternate Jan Collins, who participated from the audience—is Mr. Meadows, who showed once again how not to draft an ordinance. He could not even transcribe a State statute properly.
If Planning Board members were to read N.C. General Statutes sec. 160D-915, the statute upon which ZTA 21-02 is based, they would be astonished by how clearly it is written and organized. It is narrowly tailored to permit in a single-family residential district a “temporary family health care structure” that provides “an environment facilitating a caregiver’s provision of care for a mentally or physically impaired person.”
This structure must meet all building code and zoning requirements.
We strongly urge Mr. Haskett to provide the Planning Board with the original State statutory language of any zoning ordinance amendments that CodeWright drafts (and rewrites) to conform with that language. If Mr. Gallop is not going to review CodeWright’s language before a ZTA reaches the Board, it is imperative that he do so.
We also suggest that Mr. Haskett use the “whereas” purpose section of a proposed zoning ordinance to elucidate the intent and history of proposed ordinances that are coming from CodeWright. He did a better job in this respect on the manufactured homes ZTA, 21-03, which the Planning Board also took up yesterday.
MANUFACTURED HOMES ZTA UNNECESSARILY AMENDED, TOO
The Board clearly had its antennae up about the arrival of manufactured homes in Southern Shores and its role in circumscribing them. For that reason alone, it may have overreacted to the health-care structure ZTA, which would have been straightforward and less problematic, had Mr. Meadows done his job better.
Nonetheless, the Planning Board also unanimously recommended the proposed ZTA on manufactured homes with unnecessary and/or inappropriate amendments. This time it was Chairperson Ward, the most senior member of the regular Board, who went off-track.
Mr. Ward struggled throughout the meeting with understanding how to review the Code amendments that came through CodeWright’s “update,” especially when a change in State law was their impetus. At one point, he questioned whether the Board could discuss a proposed amendment without first making a motion to recommend its approval.
He was tentative and off his game, but he was not alone. In our opinion, no one on the Board showed a facility for reading and interpreting related State statutes. They all need help and should receive it before they convene again. They need to be prepped.
Mr. Ward seemed not to understand that the proposed manufactured homes ZTA was no different from any other proposed ZTA that the Town has drafted. It may have been compelled by a change in State law, but CodeWright—not the N.C. legislature—wrote it, with Town staff assistance, for application solely in Southern Shores.
It is a proposed local law. Period.
CodeWright prepared a fairly solid amendment to the Town zoning ordinance, allowing manufactured homes to be built as a conditional use in the Town’s R-1 low-density residential district and significantly restricting their appearance and dimensions.
Mr. Haskett described the aesthetic requirements as “fairly strong.” We agree.
Other conditional uses in the Town’s R-1 residential district include churches, country clubs, schools, and community recreation facilities. See Town Code sec. 36-205(c), which ZTA 21-03 amends by adding a section on manufactured homes.
According to Mr. Haskett, the only vacant land currently in the R-1 district is land owned by the Southern Shores Civic Assn. on either side of Duck Woods Drive, where the road meets U.S. Hwy. 158.
The lot to the west of Duck Woods Drive is 4.3 acres, and the lot to the east of the road is 3.4 acres, Mr. Haskett said.
Southern Shores currently excludes manufactured homes in its residential districts, although, strangely enough, they are mentioned in Town Code sec. 16-5, regarding “Provisions for flood hazard reduction.” (See below.)
In NCGS sec. 160D-910, which became law in 2019, the General Assembly found as a matter of policy that “manufactured housing offers affordable housing opportunities for low- and moderate-income residents who could not otherwise afford to own their own home” and prohibited local governments from “excluding manufactured homes from [an] entire zoning jurisdiction.”
Unlike the very specific “temporary health-care structures” statute that the General Assembly passed, NCGS sec. 160D-910 does not dictate to local governments how they must incorporate manufactured homes into their zoning scheme, giving them a lot of leeway in regulating such homes and where they may be located.
This broad discretion may have confused Mr. Ward, who started out thinking that the ZTA drafted by CodeWright and Town staff had been written by the State legislature. Instructed otherwise twice by Mr. Haskett, he still floundered, perhaps being unsure of how to read NCGS sec. 160D-910, a copy of which Mr. Haskett gave each Planning Board member.
Not being a lawyer, a regulator, or a professional planner, Mr. Ward’s unease is understandable. These zoning changes are a lot to take in.
A manufactured home, according to N.C. law, is “a structure, transportable in one or more sections, which in the traveling mode is eight body feet or more in width, or 40 body feet or more in length, or, when erected on site, is 320 or more square feet.” See NCGS sec. 143-145 (7), which contains other criteria for the definition.
A citation to this statutory section should be in the Southern Shores Town Code, but it was not included in any of the amendments that the Planning Board approved when it recommended ZTA 21-03. This is a major oversight that should be corrected.
While ZTA 21-03 specifies the requirements that all manufactured homes in Southern Shores must meet once they arrive, it does not define a manufactured home.
There is also language about manufactured homes in Town Code sec. 16-5, as noted above, that must be reconciled with the new ZTA. CodeWright should have uncovered it in a simple word-search of the Town Code.
In one of the ZTA amendments proposed by Mr. Ward, he deleted the word “firmly” from the following sentence: “They [meaning, stairs, porches, ramps, etc.] shall be attached firmly to the primary structure and anchored securely to the ground.”
“Firmly,” the Chairperson said, “is open to interpretation.”
He knows what “firmly” means in Southern Shores, Mr. Ward said, but he does not know what it means “out in Asheville.”
Not relevant. This is a Southern Shores ordinance, not an Asheville ordinance.
Similarly, Mr. Ward proposed replacing the word “securely” with language specifying “in accordance with local coastal building regulations.”
Unnecessary. This is a Southern Shores ordinance. Local building regulations will apply.
One sentence of the ZTA actually states that all manufactured homes must comply with the Southern Shores Code requirements about flood damage prevention.
Mr. Ward also amended a reference to the minimum projection of the homes’ eaves that needed no clarification. He added a qualification about the maximum eave projection, a qualification that exists nowhere else in the Town Code.
He and every other Board member, except Mr. Finelli, got confused about how eaves factor into setback and lot coverage calculations—a topic the Board intends to take up at its May 17 meeting. Mr. Finelli still voted in favor of the inapposite amendment.
And finally, an amendment to the ZTA that excepted temporary health-care structures from the language about attachment and anchoring was off the wall.
A temporary health-care structure is not a single-family dwelling, and the first requirement under the proposed zoning amendment for a manufactured home is that it “be occupied only as a single-family dwelling.”
The Planning Board needs your help, Mr. Haskett, Mr. Gallop, and Mr. Cliff Ogburn. It is in unfamiliar territory and needs guidance. Please extend your hands.
A Dare County resident who had been hospitalized with COVID-19 has died as a result of the infection, according to today’s Dare County Dept. of Health and Human Services dashboard report.
Since March 2020, 15 local residents have died from the disease caused by the severe acute respiratory syndrome coronavirus 2, aka SARS-CoV-2.
The DCDHHS reported a “status change” April 9 of two residents who tested positive for COVID-19 having to be hospitalized, but provided no demographic details about them.
One of the two was reported April 10 to have moved to home isolation, while no mention was made of the other until today’s announcement.
No other residents have been reported hospitalized in the past 10 days.
Forty-three people tested positive for COVID-19 in Dare County during the past seven days, 25 of them locals, according to the DCDHHS’s data. That is an increase of 11 over the preceding seven-day period.
Case totals were in the double digits on three of the past seven days: April 14, 16, and 17, all of which had 11 case reports. The cases range across all age groups, from young people under age 17 to people age 65 and over.
The DCDHHS continues to report that COVID-19 is predominantly being transmitted locally by close contact between family members, co-workers, and close friends.
As of yesterday, 13,149 Dare Countians were fully vaccinated, and 15,369 had received their first doses. Anyone age 16 or older can register with the DCDHHS for a vaccine. There is no waiting list.
The Beacon has learned that the N.C. Home Builders Assn.’s legislative team drafted the bills introduced March 24 by the N.C. General Assembly to eliminate exclusive single-family dwelling zoning statewide and to force municipalities to allow multi-family dwellings and other dense development in all residential zones within their limits.
See The Beacon, 4/17/21, for a report on the bills, Senate Bill 349 and its companion, House Bill 401, which should be titled “Increase Builders’ Opportunities,” rather than “Increase Housing Opportunities.”
According to news items on the NCHBA’s website, the association’s legislative team drafted this “cutting-edge” legislation and “worked with” Senators Chuck Edwards (R-Henderson), Paul Newton (R-Cabarrus), and Toby Fitch (D-Wilson) to introduce SB 349 and with Representatives Destin Hall (R-Caldwell), Tim Moffit (R-Henderson), Mark Brody (R-Union), and Billy Richardson (D-Cumberland) to sponsor HB 401.
To our knowledge, none of the areas represented by these legislators is a high-dollar area where housing costs would be prohibitive.
Addressing just the Democrats’ home turf: Wilson County, whose largest town is Wilson, is south of Rocky Mount, and Cumberland County is home to Fayetteville.
The bill, according to a March 29 NCHBA news item, “would make it easier for builders to build duplexes, triplexes, and quadplexes in residentially zoned areas.”
In a later news item posted April 5, the NCHBA amends this language to specify that the bill would “allow property owners” to build these multi-family dwellings in “areas zoned for single-family structure.”
The NCHBA apparently thought better of emphasizing how the bill would improve the home builder’s bottom line, rather than the property owner’s freedom of choice, but not enough to delete the first item.
Neither news item mentions townhouses, the fourth type of “middle housing use” that SB 349/HB 401 would require local governments to permit in areas zoned for residential use, including those that allow only detached single-family dwellings.
Southern Shores homeowner Mark Martin, who owns Sandmark Custom Homes, Inc., is immediate past president of the NCHBA and currently serves on its executive committee.
Before his election to the Southern Shores Town Council, builder Matt Neal was active with the Outer Banks Home Builders Assn. (OBHBA), serving as president for two years, and the NCHBA.
Southern Shores and all other Dare County towns should call upon the OBHBA to state its position on this legislation and to reveal its lobbying effort, if any, in support of it. Was anyone from the OBHBA “in the room” when this intrusive and self-serving legislation was being formulated and discussed?
The NCHBA has been a powerful force behind the State legislature’s chipping away in recent years of local governments’ land-use and zoning authority in order to benefit the home-building industry.
That includes passage of SB 25 in 2015, which resulted in the elimination of the bedroom restriction in Southern Shores and the threat of a 16-bedroom wedding-destination venue being built by SAGA at 64 Ocean Blvd. Only a 3-2 majority vote by the Town Council in favor of limiting house size to 6,000 square feet prevented that from happening. The dissenting votes were cast by Mayor Tom Bennett and former Town Councilman Chris Nason, an architect who had a client relationship with SAGA.
See yesterday’s Beacon for a brief recall of that legislation. Pat McCrory, a Republican, was governor of North Carolina then. Current Governor Roy Cooper is a Democrat.
Knowing its origins, The Beacon does not see this bill as a progressive strike for affordable housing, but rather as another means by which the heavy-handed, overreaching home-building industry can profit.
As we said yesterday, if the N.C. General Assembly truly wants to increase affordable housing, it should give municipalities–especially population-dense cities such as Raleigh and Charlotte, which is in Mecklenburg County, not Cabarrus–incentives to build that housing in a rational plan, not strip them of their control.
The N.C. General Assembly is again intent on usurping local zoning authority, this time by preventing municipalities from zoning exclusively for detached single-family dwellings.*
Because Southern Shores is a town zoned primarily for single-family dwellings and committed to low-density development, the Town Council unanimously approved at its Tuesday meeting a resolution in opposition to proposed State legislation that would eliminate exclusive single-family dwelling zoning.
House Bill 401/Senate Bill 349, which was introduced March 24, also requires municipalities to allow all detached single-family homes to have accessory units.
(Councilman Jim Conners did not participate in the vote because he did not attend the meeting or participate by Zoom.)
Town Manager Cliff Ogburn will finalize the wording of the resolution and submit it to Dare County’s representatives, Senator Bob Steinburg (R-1st) and House Representative Bobby Hanig (R-6th), and others for circulation to the General Assembly.
If the legislation becomes law, all locally zoned residential housing districts in North Carolina would have to permit “middle housing” dwellings, which the bill specifies include duplexes, triplexes, quadplexes, and townhouses.
A triplex is a building divided into three self-contained residences. A quadplex has four such residences.
According to the bill, a local government could regulate such middle housing only if its regulations “do not act to discourage development of middle housing types through unreasonable costs or delay.”
The proposed legislation also requires local governments to allow at least one “accessory dwelling unit” for each detached single-family dwelling in a residential housing zone. Such a unit is “an attached or detached residential structure that is used in connection with or that is accessory to a single family dwelling.”
According to HB 401/SB 349, municipalities may not require accessory dwelling units to have minimum parking requirements or other parking restrictions, conditional use zoning, or owner-occupancy of either the main dwelling unit or the accessory unit.
The only exceptions in the proposed legislation, which is being touted as a means to “increase housing opportunities” and has bipartisan sponsorship, are for areas designated as local historic districts or listed on the National Register of Historic Places.
Also, the middle-housing requirement would apply only to those areas that are served by a public water or sewer system or by a public wastewater collection or treatment works.
The bill also states that “private covenants or other contractual agreements among property owners relating to dwelling type restrictions” would still be valid and enforceable.
Southern Shores currently has a small multifamily residential district that permits detached single-family dwellings, duplexes, and “multifamily dwellings.” See Town Code sec. 36-203. No more than eight dwelling units may exist per net acre in this district.
A “multifamily dwelling” is defined elsewhere in the Town Code as a building, or portion of a building, that is used or designed as a “residence for three or more families living independently of each other and doing their own cooking therein.” Apartment houses and condominiums are included in this definition. See Town Code sec. 36-57.
The Town’s ordinances on accessory structures would have to be rewritten in order to conform to the demands of HB 401/SB 349.
The promise of federal government benefits would appear to be behind the General Assembly’s sweeping, one-size-fits-all legislation.
President Biden’s $2 trillion infrastructure plan reportedly calls for cities to limit single-family dwelling zoning, which has been criticized as “exclusionary zoning” that results in de facto redlining of low-income Americans and people of color, and to build more affordable housing.
The President’s proposal reportedly would award federal grants and tax credits to cities that change their zoning laws to increase access to affordable housing.
Multifamily zoning also has been promoted as a means to combat the impact of climate change (increased heat) on low-income residents, as well as a way to improve their quality of life and lower their utility costs.
During the Town Council’s discussion Tuesday, Mayor Pro Tem Elizabeth Morey said she would like to include a statement in the resolution that would show the Town’s support, in general, for increasing affordable housing opportunities.
None of the other three Council members thought it necessary to amend the resolution that Mr. Ogburn had prepared and that was in their packet of meeting materials, but not in the packet available online to the public.
The proposed State legislation was not an agenda item for the Council’s meeting. It came up in the “Town Manager’s Report,” which is never itemized on the agenda. We did not request the text of the resolution.
No one on the Town Council brought up the obvious objection to the legislation, although Ms. Morey indirectly referred to it: The N.C. General Assembly is intruding upon traditional local-government territory by using what Ms. Morey aptly called “a sledgehammer approach” to a legitimate problem.
Affordable housing is lacking in many areas in North Carolina, most notably in cities, but also on the Outer Banks.
How long have we been hearing that seasonal workers on the Outer Banks, as well as many members of the local year-round work force, cannot afford to live on the Outer Banks? And what have the Dare County Board of Commissioners and the mayors and town councils of Dare County towns done about this worsening problem? A united collective effort is necessary.
It is fair to question whether residential zoning is excessively restrictive and thereby making it difficult for developers to build new, more affordable housing, as well as driving up rents and housing prices, a trend that has a disparate impact on low- and moderate-income residents.
It is also important to understand how residential zoning in an area dependent on a beach tourist economy differs from zoning in any other area. Local governments in beach towns know better than the State how their land-use plans contribute to the appeal of their towns and thus drive their economies.
It is also beyond doubt that U.S. municipalities historically have used zoning to erect barriers to racial and ethnic minorities. Zoning was initially designed to exclude people who were viewed as undesirable from residing in neighborhoods that were viewed as desirable because of their price and exclusivity.
Many people would say that multifamily housing decreases property values, and that increased density strains existing infrastructures, including schools and public safety services, and diminishes residents’ quality of life.
We are not going to engage in a political discussion about zoning and individual property rights, or embark on a historic exploration of housing discrimination in this country.
We do believe, however, that if the N.C. General Assembly truly wants to resolve inequities in housing and increase housing opportunities, it should offer incentives to municipalities to make smart changes, not impose its will upon them with a sledgehammer that will cause more damage than is either foreseeable or acceptable.
You may access the bills and see their history at:
*You may recall that action taken previously by the N.C. legislature resulted in the invalidation of Southern Shores’ restriction on the number of bedrooms in a single-family dwelling, thus making the town vulnerable to the construction of wedding-destination and convention venues and other types of “mini-hotels.”
In response to the General Assembly’s action, the Town Council enacted in January 2016 a restriction on single-family house size, setting the maximum at 6,000 square feet.
The Council subsequently enacted limitations on overnight occupancy in vacation homes and septic-capacity requirements on all single-family dwellings.
PLANNING BOARD TO TACKLE PROPOSED TOWN CODE CHANGES
The Town Planning Board will consider six applications from the Town for proposed amendments to the Code of Ordinances at a 5 p.m. meeting Monday in the Pitts Center.
The meeting will be open to the public, subject to COVID-19 restrictions, and available for viewing live on the Southern Shores’ You Tube website.
The Planning Board’s role is strictly advisory. It will either recommend or not recommend to the Town Council each of the amendments. Only the Town Council can make law.
We regret that we do not have the time to detail all of the proposed amendments, which you may access here:
Among the concerns addressed are:
Performance guarantees and the procedure for establishing a “minor” subdivision, which consists of four or fewer lots
Construction of temporary health-care structures
Elimination of the ordinance regarding protests to zoning district changes
Elimination of the minimum size requirement for single-family dwellings (currently 1,000 square feet; the State of North Carolina is intruding here, too)
Construction of manufactured homes, which were previously prohibited (again, the State is requiring that manufactured homes be permitted)
Clarification that eaves on houses are not factored into setbacks
(For background, see The Beacon, 3/19/21.)
We were the most intrigued by a proposed new ordinance that enumerates all of the prohibited uses of land in all of the town’s districts.
Current Town Code sec. 36-89, which is titled “Use, occupancy and construction,” states that permitted and conditional uses are listed by zoning district, and that any use “not specifically designated as a permitted or conditional use shall be deemed to be prohibited.”
Proposed Town Code sec. 36-209 would appear to overrule this method, replacing it with a list of 49 specifically prohibited uses. They range broadly and include, for example:
Alcohol and drug detoxification, rehabilitation, and treatment facilities;
Bed and breakfasts;
Dormitories and residence halls;
Motor vehicle body and paint establishments;
Sexually oriented businesses;
Smoke and vapor shops;
Tattoo, body piercing, and body art establishments;
Use of a boat, houseboat, or other floating structure as a temporary or permanent residence.
We would like to know the impetus for this ordinance and who drafted it.
Retail stores that are currently permitted in Southern Shores’ commercial district include those that sell antiques, books, candy, clothing, craft goods, drugs (pharmacies), food, gifts, hardware, jewelry, office supplies, and other garden-variety, general-interest shops.
Curiously, Town Code sec. 36-207, which deals with the commercial district, allows funeral homes.
The prohibited uses defined by the proposed ordinance derive from the Town’s comprehensive zoning ordinance and land-use plan, which emphasize that Southern Shores is a town of detached single-family dwellings and low-density development.
Both the Town’s zoning ordinance and land-use plan would have to be revised substantially—a lengthy process—if H.B. 401/S.B. 349 were passed by the N.C. General Assembly and signed into law by the Governor. We would hazard a guess that hundreds of towns statewide would be in the same ridiculous predicament.
The Town Council voted unanimously last night to approve the two proposed municipal service districts, with a modification to MSD-1 so that it includes only those properties that abut the Southern Shores beach and have at least 25 feet of frontage.
The modification means that so-called oceanside properties, which are on the east side of Ocean Boulevard, but are not oceanfront, and those that are oceanfront but have an eastern boundary of less than 25 feet, are now exclusively in MSD-2, not MSD-1.
The vote was 4-0. Councilman Jim Conners did not attend the meeting.
The Town Council also tabled the proposed beekeeping ordinance—apparently having heard from the beekeeping community about its rigors—and delayed action on the noise ordinance until May 18, so that it could be revised.
The North Carolina statute on municipal service districts requires the Town Council to approve proposed districts by majority vote of those present in two votes held at two separate meetings before it can adopt an ordinance establishing them. The Council’s next vote will be at its May 4 regular meeting.
The Beacon will give a full report on last night’s meeting, with editorial commentary, later in the week.
On a personal note: I am moving today from my Hickory Trail home of the past 23 years and will write more when I have somewhat recovered from the experience. I am not leaving Southern Shores, just moving to a house that suits me better. When I hold my obligatory moving sale, I hope some of you will stop by and say hello.
I note in passing that the Titanic sank on this date 99 years ago. The Titanic’s sinking may be a fitting metaphor for my move, but I chose the date as my move day because I wanted to take advantage of the bulk-trash pickup on Friday.
The Southern Shores Town Council will take its first vote next Tuesday on whether to establish two proposed municipal service districts (“MSDs”) in town that would enable it to levy higher ad valorem taxes on properties on or near the oceanfront to pay for its $14.5 million beach nourishment project.
Before the Council votes, according to the meeting agenda. it will rule upon three written requests for exclusion from the proposed MSDs submitted by property owners, only two of which merit any real discussion. (See below.)
The Southern Shores Civic Association, which has substantial land holdings on the oceanfront—an area designated as MSD-1—has submitted a request for exclusion “out of an abundance of caution,” according to its cover letter to the Town Council.
The SSCA is a tax-exempt, non-profit corporation and will not bear any tax burden for the beach nourishment project, which is scheduled to occur from May to October 2022.
The Town Council’s meeting will be held at 5:30 p.m. Tuesday in the Pitts Center. Anyone who attends the meeting in person must wear a face covering and observe other COVID-19 safety protocol. The meeting will be live-streamed on the Town of Southern Shores’ You Tube website.
Before the Town Council can establish the proposed Southern Shores MSDs, North Carolina law requires it to approve them by a majority vote of the voting members present at two separate meetings. The MSDs would be effectuated by the adoption of a Town ordinance.
If the Council rejects the proposed MSDs on its first vote, it will not take a second vote.
While the process for creating MSDs is fairly well defined by N.C. statute, the process for evaluating requests for exclusion is not. Beyond what the exclusion claimant must include in his or her request, the State’s MSD statutory scheme is silent—leaving the municipality to decide how to proceed.
(N.C. General Statutes sec. 160A-536 through sec. 160A-544 deal with municipal service districts. NCGS sec. 160A-537 defines MSDs and outlines the process for establishing them. NCGS sec. 160A-537(c1) gives property owners the right to petition to have their properties excluded from a proposed MSD.)
We believe that in making a “staff recommendation” in his agenda item summary that the Town Council not exclude any properties from the MSDs, Town Manager Cliff Ogburn has exceeded his authority. The exclusion request is made of the “city council,” according to the statute, not the Town or the Manager.
We actually find Mr. Ogburn’s intervention in this matter one of a number of irregularities that occurred in the MSD-creation process in Southern Shores.
IRREGULARITIES IN THE PROCESS
The first such irregularity dates to a motion unanimously approved by the Town Council at its Jan. 21, 2020, workshop to have its financial consultant, DEC Associates, Inc., of Charlotte, work with Town staff to prepare actual beach-nourishment tax-rate increases, based on whether the Town levied a tax increase town-wide or used MSDs to fund the proposed 2022 project.
The problem that we have with this directive is that it was made without any reference to the legal standard imposed by N.C. statute for establishing an MSD, which requires the Town to find that a proposed MSD is in “need” of beach nourishment to a “demonstrably greater extent than the rest” of the districts in town. (See N.C. Gen. Stat. 160A-537(a).)
In January 2020, the Town Council had not yet approved a project and was considering four options presented by its coastal engineering consultant, Coastal Protection Engineering of North Carolina, Inc. (CPE), then known as APTIM.
Newly elected Councilman Matt Neal, who made the motion—which Mayor Pro Tem Elizabeth Morey seconded—set forth three tax assessment/MSD scenarios that he said the Council wanted DEC and Town staff to investigate and “price”:
1) A town-wide tax levy in which all property owners would pay the same amount;
2) A tax-increase levy on property owners in an oceanfront MSD, with a contribution made by the Town’s General Fund revenues; and
3) A tax-increase levy on property owners in three MSDs—the oceanfront and two more districts heading west from the oceanfront—with a contribution by the Town.
Both Mr. Neal and Ms. Morey said they wanted to get a sense of the “pain” that beach nourishment would cause taxpayers before they reached a final decision on doing the 2022 project.
(See The Beacon, 2/2/20.)
Less then two months later, Interim Town Manager Wes Haskett announced at the Council’s March 4, 2020 regular meeting, that “We have finalized a map showing proposed MSDs,” whose boundaries were drawn on the basis of property values provided by the Dare County Tax Dept.
These values, Mr. Haskett said, had been forwarded to DEC Associates so it could work up “models and funding options for the County to consider.” (See The Beacon, 3/8/20.)
Subsequently, Mr. Haskett presented to the Town, and disseminated to the public through online Town Council meeting materials, four “beach nourishment financial models,” one for each of CPE’s project options, prepared by DEC. Each showed a proposed town-wide tax rate and tax rates for three MSDs.
We have long maintained that this exercise in MSD definition and tax-rate assessment was improper and misleading.
In determining district boundaries, Mr. Haskett, who was assisted by Councilman Neal, did not apply the “need to a demonstrably greater extent than the rest” legal standard imposed by N.C. statute.
No, they formed the boundaries of the MSDs on the basis of mathematical calculations, looking at the sum of assessed values of properties on and proximate to the oceanfront—heading westward—proposing tax rates that were comparable to what other Dare County towns have used, and then multiplying the property values by the tax rates to arrive at the number of properties that would need to be in the various MSDs to pay for what was then presumed to be a $14 million to $16 million project.
Their method was a matter of number-crunching, not an assessment of need.
Mr. Neal has since characterized this exercise in a Town Council meeting as “ad hoc,” meaning, we suppose, that it was for discussion purposes only. But we do not believe that it was perceived that way by the public.
When Southern Shores property owners spoke at the June 16, 2020 public hearing on beach nourishment—before the Town Council voted on whether to move forward with a 2022 project—they did so with what they believed was knowledge of what their likely tax increase would be if the three MSDs were approved.
At the time, the proposed town-wide tax rate was 1.96 cents per $100 of property value.
In fact, Mr. Neal had paperwork with him at this meeting so that he could tell an individual property owner what the likely dollar-amount tax “hit” would be for him or her.
This Town Council-Town staff “ad-hoc” exercise served as the foundation for the two currently proposed MSDs and the statutorily mandated report, prepared by Mr. Ogburn, that demonstrates and justifies the proposed district boundaries.
We understand that Mr. Neal—and the rest of the Council, which backed him—had good intentions in doing these computations.
Nonetheless, we consider this “ad-hoc” exercise to be an irregularity that unduly influenced the June 16, 2020 public hearing on beach nourishment; the Town Council’s decision to pursue beach nourishment; and the creation of the two MSDs upon which the Council will vote on Tuesday.
It was a classic case of putting the cart before the horse. In this case, however, the horse was a well-established statutorily mandated legal process and a legal standard that was ignored.
THE EXCLUSION REQUESTS
In their request to exclude their property at 121 Ocean Blvd. from proposed municipal service district 2, Charles and Janan Usher contend that the Town’s proposed MSDs “were constructed without explicit criteria” and that, as a result, properties were not consistently classified.
The Ushers looked at Dare County’s assignment of oceanfront and ocean influence (OI) ratings to Southern Shores land parcels and determined that “significant groups of OI-rated parcels” in town were arbitrarily excluded from MSD-2, and that other parcels were inconsistently assigned to MSD-1 and -2.
They quite reasonably ask the Town Council to “clarify the criteria used to assign parcels to MSD-1 and -2 and to demonstrate that they were applied consistently across all parcels in the Town.”
The only criterion that the Town should apply is the one pronounced by the N.C. General Assembly: An MSD must “need” beach erosion control to a “demonstrably greater extent than the rest” of the districts in town.
This legal standard was not stated at a Town meeting until Mr. Ogburn presented his proposal and report for the two MSDs at the Council’s Feb. 2, 2021 meeting.
In a preview of this meeting, we wrote on 1/31/21 that the Town Manager had failed in his MSD report to meet the “need” standard:
“We believe the report that Mr. Ogburn has filed in support of these two MSDs, which are defined solely by their proximity to the ocean, is inadequate to meet the standard imposed by North Carolina law for such special tax districts . . .
“The law requires a showing of need, not benefit, and the Town Manager’s report contains no shoreline data supporting the need for a townwide sand fill. With the exception of the beach section south of Skyline Road, the 2022 project is specifically designed to limit future, speculative damage, not to address current need.”
Homeowner Thomas Peabody, of 13 Sixth Avenue, uses the critical need-benefit distinction to argue in his request for exclusion that the need for beach-erosion control at the Sixth Avenue oceanfront does not exist—and surveys done by the Town’s coastal-engineering consultant evidence the lack of need.
We would refer Mr. Peabody, whose property is in proposed MSD-2, to remarks made by Mayor Tom Bennett and other Town Council members at their Feb. 2 meeting about limiting the “scope” of the 2022 beach nourishment project to only those areas of the coastline that have a “critical need.”
The northern section of the town’s 3.7-mile-long coastline, which CPE defined as being from about Third Avenue north to the Southern Shores/Duck line, “has gained sand,” the Mayor said, and is “not as vulnerable as far as the dunes and the properties behind” them.
Addressing complaints last year by Seventh Avenue homeowners about the width of the northern beach, the Mayor said, the beach “is definitely wider this year than it was last year.”
Later in the meeting, he noted: “I don’t see the north beach in trouble.”
Even Councilman Neal, who has been a consistent proponent of beach nourishment, acknowledged at this meeting that Dare County’s 50-percent financial contribution, not the Southern Shores coastline’s need, “has been the driving force” for the Town’s 2022 project.
(See The Beacon, 2/5/21.)
In recommending that the Town Council not exclude Mr. Peabody’s or the Ushers’ properties from MSD-2, Mr. Ogburn says only that “Staff finds nothing unique about these properties that distinguishes [sic] them from the rest of the district. Granting these requests could imply that those adjacent to these properties were also not in need.”
All that is legally germane for purposes of evaluating an exclusion request is the “need . . . to a demonstrably greater extent” standard stated in the N.C. statute. “Uniqueness” need not be established. If granting these two exclusions would “imply” that adjacent or other properties “were also not in need,” so be it. The MSD boundaries should be changed.
‘FOR DISCUSSION PURPOSES ONLY’
The Ushers point out in their exclusion request that the maps of the proposed MSDs in Mr. Ogburn’s MSD report are labeled as “Conceptual Municipal Service Districts” and described as “preliminary and intended for discussion purposes only.”
The notice of the March 16 public hearing that was mailed four weeks in advance to property owners in the proposed MSDs specifically informed them that the outlined MSDs were preliminary and, therefore, subject to change.
But the proposed Town ordinance—upon which the Council will vote Tuesday—reproduces verbatim the language in Mr. Ogburn’s MSD report about the two proposed MSD boundaries. There has been no discussion. The preliminary “conceptual” MSD boundaries are, in fact, as the Ushers allege, the “final” MSD boundaries. It would seem that the Town has misled people.
Was the public hearing really nothing more than a pro forma exercise that the Town conducted only because the State required it to do so?
Like the Ushers, we had assumed that the “for discussion only” language meant the Town Council was actually going to listen to what property owners had to say and discuss what they had heard.
We were flummoxed when the Council adjourned the March 16 meeting—the hearing lasted only 70 minutes—without responding to, much less discussing, any of the public comments.
At the conclusion of the June 2020 beach nourishment public hearing, the Council conferred and unanimously voted to “pursue” beach nourishment. At the conclusion of the MSD hearing, it said nothing.
In his recommendation to the Council about the exclusion requests, Mr. Ogburn writes:
“An alternative to the maps as originally presented could be considered by the Council. However, some changes may be considered substantive and could require reinitiating the public hearing process.” (Our italics.)
Members of the Town Council have publicly stated that changes to the proposed MSDs could occur. But Mr. Ogburn’s latter statement clearly discourages members from making any changes—even though they have heard from dozens of property owners in Southern Shores who might have convinced them otherwise.
We don’t like it.
Further, if we are going to be advised about the possibility of “reinitiating” the public hearing process, we would like Town Attorney Ben Gallop to do the advising.
We also view as irregularities the fact that the notice mailed to property owners, many of whom are non-resident, failed to offer them the option of presenting their comments via Zoom—although the general public notice mentioned this option—and did not inform them that their written comments would not be read aloud at the hearing.
We do not believe that posting written comments on the Town website is an acceptable substitute for reading them into the public record and airing them at a public forum. We also wonder how many property owners who submitted written comments know where they ended up.
MISLEADING ‘NEXT DOOR’ THREAD
Finally, we find it inappropriate that on March 24, Town Councilman Jim Conners, who had been circumspect about not commenting publicly about the emails the Council had received regarding the MSDs because of the on-going “legal process,” participated in a comment thread on the social-networking service, Next Door, that was initiated with the misleading title of “New tax districts in Southern Shores.”
The Town Manager has proposed levying an additional ad varolem tax of 23.5 cents per $100 of property value on properties in MSD-1; an additional 9 cents per $100 of value on properties in MSD-2, and an additional 2.75 cents per $100 on remaining properties.
These are not definite tax rates. Only the Town Council can set tax rates, and it will set MSD tax rates only after it approves the MSDs and adopts a Town ordinance.
Unfortunately, a homeowner on South Dogwood Trail did not know this. Her “New tax districts” comment on Next Door, which we believe was posted in good faith, reminded people “to send in comments to the city of southern shores regarding the new districts 1 and 2.” She continued:
“The city is considering having Districts 1 and 2 pay a higher portion of the multi million beach nourishment project as they more directly reap the benefits. There have been a lot of comments from [these] owners . . . that everyone should share the cost equally. There are very few comments from residents outside of these two districts. If you have an opinion, please take the opportunity to read through the information on the city’s website and send in comments so that you can be heard.”
Although the Town gave ample notice of the March 16 public hearing, and no one was precluded from participating in the hearing, this homeowner was unaware of it.
In the conversation that ensued among her and others in Southern Shores, she stated that “I do not believe that a final determination of the increased tax rates for each of three areas has been finalized.”
Councilman Conners intervened in the thread here, replying to this post: “As an individual councilperson, I feel comfortable station [sic] that as of this date, you are absolutely correct.”
We find this comment troublesome. Despite the homeowner’s reference to “district 1 and 2 property owners,” Mr. Conners gave no indication that the municipal service districts had not yet been established. In not correcting this misconception, he perpetuated it.
Subsequently, the Councilman urged property owners to submit comments, writing:
“As an individual councilmember in SShores, I’d like to HIGHLY encourage everyone to relay your thoughts to the town of Southern Shores. Humongous decisions are being discussed and made on beach renourishment, but unfortunately, sites like this have little, if any, influence on those decisions. If you’re a resident or property owner in SShores, PLEASE send your thoughts to the Town.” (The capitalizations are Mr. Conners’s.)
Property owners are certainly free to email their comments to Town Council members at any time, but it seems to us to be both inappropriate and improper for a Council member to encourage people on a subscription social-media website to do so—especially after a duly noticed public hearing has been held and when they clearly are misinformed.
Mr. Conners went a step further when he expressed his belief that off-the-public-record Next Door chat should have more influence on the Town Council’s decision-making than he believes it currently does. Judging from how uninformed the participants in this Next Door thread were, one might more reasonably argue just the opposite.
At no point did the Councilman explain the legal process for establishing MSDs, including the “need to a demonstrably greater extent” standard, and reveal that the public hearing had been held. He also mistakenly implied that residents of Southern Shores who do not own property have a stake in the creation of the special districts.
We consider this social-media exchange both improper and prejudicial. Another irregularity.