Southern Shores Police Chief David Kole will be proposing a new Town Code ordinance at the Town Council’s regular meeting on Tuesday that would exclude people who operate electric-assisted bicycles (E-bikes) from using town sidewalks and multi-use paths, according to the meeting materials posted online by the Town today.

The Chief also is expected to propose a revision of the Town’s ordinance that prohibits driving motor vehicles on Southern Shores beaches so that it is more comprehensive—including, for example, a listing of the prohibited vehicles, not all of which are motorized—and contemporary.

The meeting agenda and materials may be accessed at https://southernshores-nc.municodemeetings.com/sites/southernshores-nc.municodemeetings.com/files/fileattachments/town_council/meeting/packets/11992/town_council_regular_meeting_packet_document_2.pdf. The Police Chief’s presentation is on pages 14-24.

Tuesday’s meeting will be held at 5:30 p.m. in the Pitts Center behind Town Hall.

There will be two public-comment periods during the meeting, the first of which will be before the Chief’s presentation, and the second of which will be shortly afterward.

Neither of the ordinances that the Chief is expected to propose are currently in the form of Town Code Amendments to be voted upon for enactment, although the language of each is substantially established.

NEW TOWN E-BIKE ORDINANCE

The popularity of E-bikes has surged during the past three years, driven in part by the COVID-19 pandemic and technological innovation, as well as by the bikes’ affordability, environmental friendliness, and ease of use.  

But not everyone is thrilled by how some people operate their new electric-assisted bicycles.

During the Town Council’s Aug. 2 meeting, Councilman Mark Batenic brought up what he considers to be dangerous behavior by people riding E-bikes. He cited their excessive speed and disregard of traffic signage.

Town Councilman Leo Holland responded to these concerns by saying he had been approached from behind when he was walking on a multi-use pathway by E-bicyclists who do not announce that they are passing him.

Such comments likely influenced the drafting of the proposed E-bike ordinance, which would be codified as Town Code sec. 20-12, within Code Chap. 20, “Motor Vehicles and Traffic,” in Article I (“In General”), and now reads as follows:

“No person operating an electric assisted bicycle shall go or ride upon any town sidewalk or multi-use path, except to cross at a designated crosswalk or at a street intersection.”

The definition of “electric assisted bicycle” that Chief Kole proposes using is the one in the N.C. General Statutes, sec. 20-4.01(7a). According to N.C. state law, an electric assisted bicycle is:

“A bicycle with two or three wheels that is equipped with a seat or saddle for use by the rider, fully operable pedals for human propulsion, and an electric motor of no more than 750 watts, whose maximum speed on a level surface when powered solely by such a motor is no greater than 20 miles per hour.”

It appears from “People for Bikes” literature included in the Tuesday meeting package (p. 19) and from our own research that electric bicycles are permitted on N.C. state-maintained sidewalks and multi-use paths, which are along state roads, if human-powered bicycles are permitted.

This means that E-bicyclists would still be able to operate their vehicles legally on the pathways adjacent to Southern Shores’ sections of N.C. Hwy. 12 (Ocean Boulevard and Duck Road) and U.S. Hwy. 158, regardless of whether a local ordinance prohibiting them is enacted.

REVISED ORDINANCE PROHIBITING DRIVING ON BEACH

Southern Shores currently prohibits “driving or landing aircraft on beaches” in an ordinance that dates to the first Town Code enacted in 1982 and is codified at sec. 20-109, within Article III of Chap. 20, titled “Operation of Vehicles.”

The cumbersome sec. 20-109 is poorly organized in one bloated paragraph and reflects a bygone concern about aircraft taking off and landing on the beach. It also seeks to protect the private property rights of oceanfront owners, specifying—if we read it correctly—that the prohibition against operating a motor vehicle or aircraft on a Southern Shores beach does not extend west of the low tidewater line.

That the area of beach affected by the ordinance is unclear is one of the problems with the current ordinance.

The revision that Chief Kole is expected to propose reads as follows:

“Section 20-109. Driving on the Beach.

“It shall be unlawful for any person to operate any vehicle of any type, including but not limited to; motor vehicle, pickup truck, airplane/helicopter, beach buggy, jeep, motorcycle, bicycle, E-bicycle, any; one, two, three or four wheeled vehicles powered by any type of motor or physically propelled on the ocean beach area within the Town of Southern Shores.

“This shall not apply to Ocean Rescue, Fire, Police, USCG, Public Works or other town authorized entities such as beach survey/nourishment contractors, turtle (NEST) volunteers, Authorized Ocean/Sea mammal rescue/removal entities, authorized commercial fishing, or Extreme Emergency situation(s).”

We would clean up the punctuation in the language of the first paragraph, and also restructure its phrasing, if we could edit it. We have learned, however, that our editing suggestions are rarely appreciated by the Town, so we will not offer them here.

We do not support the driving of motorized vehicles on the Southern Shores beaches–with the exceptions noted.

***

RECOGNITION OF RESPONDERS: In other action scheduled during Tuesday’s meeting, the Town Council will recognize the responders who assisted with rescue efforts after an ultralight airplane crashed in the ocean Sept. 21 about a half-mile off of the Southern Shores beach.

The pilot of the privately owned airplane, who, Police Chief Kole previously announced, took off from First Flight Airport in Kill Devil Hills, was killed, but his passenger was rescued, thanks to extraordinary actions by responders, including local divers.   

SSVFD CONTRACT AMENDMENTS: The Council will consider amendments to the Town’s current services contract with the Southern Shores Volunteer Fire Dept. in order to accommodate planned “renovations” by Dare County of the Emergency Medical Services station at 28 East Dogwood Trail. The County proposes to demolish that station, which Fire Service Real Estate Inc. owns, and the SSFVD also uses, and build a new facility.

BEACH NOURISHMENT: And finally, Town Manager Cliff Ogburn will update the progress of the Town’s beach nourishment project.

Yesterday Mr. Ogburn announced on the Town website that Weeks Marine currently has two crews working in Southern Shores: One is pumping sand south from 164 Ocean Blvd. to 6 Bluefin Lane, and the other is pumping sand north from 58 Ocean Blvd. to 78 Ocean Blvd.

The contractor suspended operations yesterday in anticipation of inclement weather and is expected to resume on Tuesday.  

Ann G. Sjoerdsma, 10/28/22

Weeks Marine, the Town’s contractor for its beach nourishment project, has finished the first segment of replenishment from 60 Ocean Blvd. to the Kitty Hawk town line and is now working in two construction zones, one from 60 to 70 Ocean Blvd. and the other in the vicinity of 172 Ocean Blvd. to the oceanfront at Yellowfin Lane, according to an update yesterday by Town Manager Cliff Ogburn and observations by The Beacon today.

The first crew is pumping sand north of 60 Ocean Blvd., according to the Town Manager, while the second crew is working south from the Dolphin Run subline. This morning we observed that the Dolphin Run crew had progressed in its sand pumping—and beach widening—to 172 Ocean Blvd. If you access the beach at Dolphin Run or Trout Run, you will see a vastly expanded oceanfront.

Weeks Marine’s construction areas, which are cordoned off, move daily as crews, working 24/7, progress. We can attest that they move quickly so that a construction area is only in front of an oceanfront property for 24 to 48 hours—unless inclement weather stops work. You may access the beach around the zone by simply walking north or south of the designated area. We found the walk-around only slightly inconvenient.

Both dredgers (the ships, also called dredges) that are located offshore are scheduled for refueling in Norfolk tomorrow, the Town Manager reported. They are expected to work today until at least 6 p.m. After refueling, the dredgers are expected to be back on the Southern Shores jobsite by 6 p.m. Monday.

The dredger Magdalen will begin working on the beach nourishment project in Duck at “some point soon,” Mr. Ogburn said in his update. The other dredger, B.E. Lindholm, will continue working in Southern Shores.

“Barring any weather or mechanical delays,” Mr. Ogburn said, “the project should finish in Southern Shores around mid-December.”

There is no more detailed word yet on when the sand pumping will start north of Dolphin Run.

THE NEXT BIWEEKLY PUBLIC INFORMATION MEETING about the beach nourishment project will be held Wed., Oct. 26, at 1:30 p.m. in the Pitts Center. The Zoom link and the call-in number for this meeting will be available on the Town website under the Beach Nourishment tab on the home page. For all project updates, click on the BN tab.

Ann G. Sjoerdsma, 10/22/22

The videotape of last week’s Dare County Board of Education (BOE) candidates forum held in Nags Head and sponsored by the League of Women Voters of Dare is now available for viewing at https://lwvdarenc.org/candidate-forums-2022/. The four candidates who are running in contested races for district seats on the Board of Education participated in the nearly 90-minute session.

Marie Russell and Matt Brauer, both of Kitty Hawk, are vying for the BOE District 3 seat, which represents Southern Shores, Kitty Hawk, and Duck on the Board; and Jessica Fearns, of Kill Devil Hills, is opposing Ron Payne, of Nags Head, for the District 2 seat, which represents Kill Devil Hills, Nags Head, and Colington.

Barry Wickre is running unopposed for the District 1 seat, which represents the Dare Mainland and Roanoke Island, and did not appear at the forum.

Dare County voters may vote in all three BOE district races.

For an interview with BOE District 3 candidates Marie Russell and Matt Brauer by The Outer Banks Voice, see https://www.outerbanksvoice.com/2022/10/18/brauer-versus-russell-for-district-3-ed-board-seat/.

As we detailed on Monday, early voting for the Nov. 8 general election starts tomorrow and continues through Nov. 5, excluding the intervening weekends. The nearest early-voting polling location for Southern Shores voters is Kill Devil Hills Town Hall. (See The Beacon, 10/17/22, for more details.)

THE BEACON, 10/19/22  

Early voting in the Nov. 8 general election starts Thursday and continues through Nov. 5 at Kill Devil Hills Town Hall and two other Dare County sites.

The hours for early voting at the KDH Town Hall, the Dare County Administration Building in Manteo, and the Fessenden Center Annex in Buxton are as follows:

Thurs., Oct. 20, through Fri., Oct. 21: 8 a.m. to 7:30 p.m.

Mon., Oct. 24, through Fri., Oct. 28: 8 a.m. to 7:30 p.m.

Mon. Oct. 31, through Fri., Nov. 4: 8 a.m. to 7:30 p.m.

Sat., Nov. 5: 8 a.m. to 3 p.m.

The Nov. 8 polling location in Southern Shores is the Pitts Center. Polls will be open on Election Day from 6:30 a.m. to 7:30 p.m.

To view a sample ballot for voters who reside in Southern Shores, see:

https://www.darenc.com/home/showpublisheddocument/11455/637973818486600000

The only contested elections on the county level are between Democrat Heather Euler and Republican Ervin Bateman for the at-large seat on the Dare County Board of Commissioners, which Mr. Bateman currently holds; between Democrat Andrian (Sweet Pea) Tillett and Republican Cheryl House for Register of Deeds, a position currently held by Ms. House; and those pitting Dare County Board of Education candidates Marie Russell against Matt Brauer for the District 3 seat and Jessica Fearns against Ron Payne for the District 2 seat.

The District 3 Board of Education member represents Southern Shores, Kitty Hawk, and Duck; and the District 2 Board member represents Kill Devil Hills, Nags Head, and Colington.

For information about all Dare County candidates, as well as candidates for federal, state, and district office, see www.vote411.org, a website sponsored by the League of Women Voters.

Www.vote411.org provides biographical and political position/opinion information about all of the candidates on the ballot for Southern Shores voters, provided the candidate responded to the questions asked of him/her by the LWV.

The You Tube video of last week’s Dare County Board of Education candidates forum sponsored by the League of Women Voters of Dare is now available for viewing at https://lwvdarenc.org/candidate-forums-2022/.

YARD SIGNS: Political candidate yard signs are now permitted in the Town’s rights-of-way, with the permission of the property owner whose property abuts the right-of-way. They must be removed by 10 days after the election.

THE BEACON, 10/17/22

The next regular biweekly information and update meeting for the Four Towns Beach Nourishment Project will be held tomorrow, Wednesday, at 1:30 p.m. in the Pitts Center.

The Beacon reported yesterday that the meeting would be held today. An incorrect date was published on the Town of Southern Shores website.

Sorry, folks!

The next regular information and update meeting for the Four Towns Beach Nourishment Project will be held tomorrow at 1:30 p.m. in the Pitts Center. The public is invited to attend and ask questions of project principals.

Weeks Marine started pumping sand on the beach at 60 Ocean Blvd. in Southern Shores last Friday, after having to delay the dredging because of storm conditions, which necessitated new dredging surveys, according to an update by Town Manager Cliff Ogburn.

Weeks’ crews will work their way south to the Kitty Hawk line from 60 Ocean Blvd., Mr. Ogburn confirmed in the Town’s latest online report.

There is no word yet on when the dredging will begin in other sections of the Southern Shores oceanfront. On Oct. 4, when Mr. Ogburn gave an update on the project to the Town Council, he said Weeks still had work to do in Kitty Hawk.

The Southern Shores beach will be accessible during the construction process, which is expected to take about six weeks in toto.

The Four Towns Beach Nourishment Project, which unites the towns of Kill Devil Hills, Kitty Hawk, Duck, and Southern Shores, meets bi-weekly. Tomorrow’s meeting will be the second one held in Southern Shores.    

The Town of Nags Head contracted with the Great Lakes Dredge and Dock Co. for its 2022 beach restoration project, which involved just 4.45 miles of beach and 19 days of construction in July-August.

SCALING BACK . . . COMMUNITY INPUT IN LAND-USE PLAN UPDATE

The Beacon will be discontinuing its nuts-and-bolts reporting on Town Planning Board and Town Council meetings and only be publishing occasional special reports on town and county news. This action is being taken in response to readership interest, as well as our own interest and time limitations.  

The next community event of consequence to residents townwide is the first public workshop in the update process for the Southern Shores CAMA Land Use Plan, which has been tentatively scheduled on the evening of Nov. 15, according to Deputy Town Manager/Planning Director Wes Haskett’s report to the Town Council at its Oct. 4 meeting.

Mr. Haskett identified Nov. 15 as the “kickoff” day with the Town’s planning and design consultant, Stewart Inc., which is based in Raleigh. Stewart recently worked with the Towns of Duck and Manteo to coordinate comprehensive land-use plan updates that preserve the towns’ visions, identities, and unique coastal environments and meet all Coastal Area Management Act requirements.

Public engagement in the Southern Shores plan update is critical to determining future land use and policy in town.  

To understand better the role that Stewart will play in the update, please see the Request for Proposals that the Town issued for the plan update contract: https://www.southernshores-nc.gov/wp-content/uploads/2022/07/7-1-22-Town-of-Southern-Shores-2022-CAMA-Land-Use-Plan-Update-RFP-1.pdf.

Mr. Haskett also reported last week that the projected opening for the Marshalls department store in the Southern Shores Marketplace is March or April 2023.    

Ann G. Sjoerdsma, 10/10/22

The League of Women Voters of Dare County will host a forum for all Dare County Board of Education (BOE) candidates, followed by a meet-and-greet for all Dare County candidates running in the Nov. 8 election, next Wed., Oct. 12, at 7 p.m., in the Nags Head Elementary School Multipurpose Room.

Marie Russell and Matt Brauer, both of Kitty Hawk, are vying for the BOE District 3 seat, which represents Southern Shores, Kitty Hawk, and Duck; and Jessica Fearns, of Kill Devil Hills, is opposing Ron Payne, of Nags Head, for the District 2 seat, which represents Kill Devil Hills, Nags Head, and Colington.

Barry Wickre is running unopposed for the District 1 seat, which represents the Dare Mainland and Roanoke Island.   

You may submit questions for the BOE candidates, with your name, to lwvdare@gmail.com until Monday, Oct. 10. Forum audience members also will have an opportunity to submit questions during the event.

Immediately after the forum, other Dare County candidates will participate in a meet-and-greet during which audience members will hear brief statements from them and be able to speak with them informally.

The contested BOE elections are two of only four contested elections for Dare County office this General Election Day. The other contested Dare County races are between Democrat Heather Euler and Republican Ervin Bateman for the at-large seat on the Dare County Board of Commissioners, which Mr. Bateman currently holds; and between Democrat Andrian (Sweet Pea) Tillett and Republican Cheryl House for Register of Deeds, a position currently held by Ms. House. 

The LWV forum will be videotaped and available for viewing through the League of Women Voters of Dare YouTube page.

Ms. Russell and Ms. Fearns are running for the Board of Education as Unaffiliated candidates, having obtained the valid signatures of more than 1,200 registered Dare County voters (4 percent of the electorate) on petitions in order to qualify to have their names appear on the general election ballot.

All of the other BOE candidates are Republicans.

Dare County Board of Education elections became partisan in 2018 as the result of a “local bill” ratified by the two houses of the N.C. General Assembly. Because the bill applied to fewer than 15 counties in the state, it did not require Governor Roy Cooper’s signature and became law upon ratification.

In order for Unaffiliated candidates to have their names on the ballot in a partisan election, N.C. law requires them to secure nomination by petition. (See N.C. General Statutes sec. 163-122(a)(3).)

We refer you to the LWV’s website, www.vote411.org, for more information about the BOE candidates, all of whom have responded to questions about their backgrounds, qualifications, and positions on issues, except for Mr. Wickre. Www.vote411.org provides biographical and political issue information about all of the candidates on the ballot for Southern Shores voters, provided the candidate responded to the questions asked of him/her by the LWV.  

TWO CHICAHAUK HOMES IN PARADE OF HOMES

There are two houses in Chicahauk on the Outer Banks Home Builders Association’s 2022 Parade of Homes, which started yesterday and continues through tomorrow, for tours each day from 10 a.m. to 6 p.m.

Tour tickets cost $10 and are available for sale at the 11 houses on the parade or online at https://www.obhomebuilders.org/ 2022-parade-of-homes/.

A virtual tour is being offered by the OBHBA, in addition to the in-person tour.

The two houses in Chicahauk are at:

103 High Dune Loop, a 3,600-square-foot, 4 BR/5BA house with pool, priced at $1.4 million and built by David Buchanan of Compass Edge Construction, Inc.; and

73 Poteskeet Trail, a 3,007-square-foot, 4 BR/3½BA house priced at $875,000 and built by Croatan Custom Homes.

Of the other nine houses on the parade, three are in Corolla, one is in Powells Point, and the remainder are in Kitty Hawk and Kill Devil Hills.

We refer you to the website above for further information about the homes and the tour.

Ann G. Sjoerdsma, 10/7/22

Dear Beacon Readers:

We are unable to attend or to live-stream today’s Town Council meeting.

For the meeting agenda and materials, please see https://mccmeetings.blob.core.usgovcloudapi.net/soshoresnc-pubu/MEET-Packet-1c431a287a554b44a46b5b80c993864c.pdf.

For background on the meeting agenda, please see The Beacon, 10/2/22 and 9/29/22.

We will watch the meeting videotape as soon as we can and report on the meeting highlights.

Thank you.

THE BEACON

The Town Council will hold a public hearing on the much-discussed, much-analyzed, and much-revised rewrite of the Town’s regulations on signs of all types—known as Zoning Text Amendment (ZTA) 21-08—at its meeting Tuesday, which starts at 5:30 p.m. in the Pitts Center.

You may access the meeting agenda and materials here: https://mccmeetings.blob.core.usgovcloudapi.net/soshoresnc-pubu/MEET-Packet-1c431a287a554b44a46b5b80c993864c.pdf. The proposed new sign ordinance is on pages 24-39.

The hearing on ZTA 21-08 is one of three public hearings that the Town Council is scheduled to hold, but the other two are perfunctory and of little interest to the general public. One concerns a Council vote on a proposed final subdivision plat for 267 Hillcrest Drive, which has met with no opposition in its preliminary stage, and the other is a housekeeping measure to ensure that the method of calculating building height in the new mixed-use development district is the same method as employed in all other zoning districts. (ZTA 22-10)

Also on the Town Council’s agenda is a fiscal year 2021-22 audit presentation by accountant Teresa Osborne of Dowdy & Osborne, LLP, of Nags Head; consideration of two bid proposals by contractors on the Ginguite Trail Drainage Improvement Project; and discussion/approval of a Request for Qualifications from engineering/planning/design contractors for the Trinitie/Juniper Trail bridge replacement. (See The Beacon, 9/29/22, for background.)

The Ginguite Trail project is designed to “reduce the duration of time that stormwater is standing in the roadway after a rain event,” according to an agenda item summary by Town Manager Cliff Ogburn. The Town received two bids: $38,599.69 from Envirotech Unlimited Construction Services, and $101,800.00 from Fred Smith Co., the Town’s contractor for street pavement maintenance. There is already a budget amendment in the meeting package to authorize $42,000 in expenditures for the Ginguite project.

According to the meeting agenda, Mr. Ogburn will update the beach nourishment project and discuss uses of the Town-owned vacant lot on Skyline Road, next to the Pitts Center, in his administrative report.

BACKGROUND ON SIGN ORDINANCE REWRITE, FIRST AMENDMENT

The Town Planning Board unanimously recommended last month that ZTA 21-08 be approved and enacted by the Town Council. A year ago, it also unanimously recommended approval of an earlier version of ZTA 21-08, but the Town Council sent the measure back to the Planning Board and Town staff for further changes.

Some of the signage restrictions in ZTA 21-08 appear constitutionally suspect to us in that they infringe upon residents’ First Amendment rights of free speech or expression.

Although we believe that, we also empathize with Planning Board members. This is not an area of the law that laypeople can easily understand. Lawyers have a hard time, too.

The U.S. Supreme Court’s 2015 decision in Town of Gilbert v. Reed, which clarified when and how municipalities can legally restrict outdoor signs—the most sensitive being political signs—without violating individual free-speech rights, is the impetus for the Town’s overhaul of its sign regulations, which are in Town Code secs. 36-57 (definitions) and 36-165.

The bottom-line reading of the case is that municipal laws restricting signage must be “content-neutral” in order to survive a First Amendment challenge.

Chad Meadows of Codewright Planners, whom the Town hired to revise and update the Town Code—and most of whose work the Town did not use—provided a framework for the sign ordinance rewrite (sec. 36-165).  The ordinance is now largely graphic, as was Mr. Meadows’s penchant, with tables summarizing the restrictions on signage, according to whether the signage is permanent or temporary and whether it is found in the commercial district, the government/institutional district, or the residential district.

These new categories are an attempt to take the sign’s content–be it a “For Sale” sign or a political message sign or a sign of any other nature–out of the regulations.

We will focus here only on ZTA 21-08’s restrictions on temporary signage, especially those placed by residents in their yards to convey a message.

While the Reed decision highlights content neutrality, it does not stand for the proposition that sign ordinances that do not overtly discriminate on the basis of viewpoint or according to the type of communication on the sign always pass constitutional muster.

To survive a First Amendment challenge, regulations of temporary noncommercial signs on private property cannot be overly restrictive. They must further a substantial governmental interest, such as public safety or community aesthetics, and be no greater than is necessary to support that interest.  

“Message” signs, according to Reed, are “a venerable means of communication that is both unique and important.” The Court goes on to say:

“Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates, parties, or causes. . . . [R]esidential signs have long been an important and distinct medium of expression.”

We agree and believe that ZTA 21-08 goes too far in some of its restrictions in the interest of reducing what some members of the Planning Board have called visual “clutter” and “pollution.”

We also do not believe these restrictions, upon which we will elaborate, “promote traffic safety,” as the Town states in the ordinance that it proposes to do. The Town may legally protect its interest in public safety, but any claim that yard signs interfere with traffic safety is hardly realistic. Yard signs are not billboards that obscure motorists’ sight lines. They do not pose a physical danger to the public.

NUMBER AND DURATION OF TEMPORARY SIGNS; SIGNS IN THE RIGHT-OF-WAY

What is a “temporary” sign?

According to ZTA 21-08, it is a sign, typically constructed from nondurable materials, that is not permanently embedded in the ground or permanently affixed to a building or sign structure that is permanently embedded in the ground, that is “intended for a temporary period.”

And what is a “temporary period”?

According to ZTA 21-08, a temporary “freestanding sign” on private property in the residential district may be displayed for a maximum of 90 days. Temporary, therefore, equals an arbitrary 90 days, regardless of the reason for the sign being on display.

ZTA 21-08 also provides that no more than three of these signs may be displayed on one residential property at a time. The Planning Board apparently believes that if a temporary sign is displayed for more than 90 days or if more than three such signs appear on a property, an aesthetic eyesore will occur, and that the Town’s interest in aesthetics trumps residents’ interest in free speech—including their show of support for more than three candidates in an election.  

Signs have never been permitted in the Town’s rights-of-way, but ZTA 21-08, at the Town Council’s request, now permits temporary signs to be placed there “from 30 days before early voting begins and 10 days after an election.” Clearly this is a reference to political signs, even though the sign content is not specified. This duration restriction cannot be said to be content-neutral.  

ZTA 21-08 further requires that before a temporary election sign may be placed in the Town’s rights-of-way, the “adjacent property owner(s)” must consent to the placement.

The Town may legally regulate the size, shape, and location of yard signs, but when it imposes durational limits—especially for temporary signs tied to a specific election date—and establishes a maximum number of signs per residence, it runs afoul of the First Amendment, according to the overwhelming majority of lower courts, both federal and state, that have reviewed sign ordinances with such restrictions.

A municipality may enact so-called time, place, and manner restrictions on signage, but these restrictions, too, may be subject to constitutional challenge. Towns do not have free rein to decide how many signs they will tolerate and for how long they will tolerate them.

One First Amendment scholar whose work we read suggested that 10 signs on one property would be excessive, but short of 10, he wouldn’t speculate on a number.  

The Town modeled its restrictions on political signs in the municipal right-of-way on N.C. law, using the language from N.C. General Statutes 136-32, which regulates political signs in the rights-of-way of the State highway system. The N.C. statute is subject to constitutional challenge under the Reed decision, according to attorney Adam Lovelady of the UNC School of Government, but that challenge has not yet occurred.   

We believe that subjugating the free-speech rights of the person who would place a political sign in the right-of-way to the whims of an adjacent property owner, who simply might dislike the candidate being promoted and withhold consent for that reason, is simply wrong-headed.

We suggest that temporary signs be permissible in the public rights-of-way at all times and regardless of the adjacent property owners’ desires or opinions. The Town owns the rights-of-way. End of story.

At some point, the number of signs in a single yard or in a right-of-way might realistically impair the aesthetics of a neighborhood, but three is not the number.

Councilwoman Paula Sherlock has five political signs in the right-of-way in front of her residence now. (See photo above.) She is not the only one in town with so many candidate yard signs. But Ms. Sherlock lives on N.C. Hwy. 12 and is permitted to display five because N.C.G.S. 136-32 does not limit the number of political signs in a State road right-of-way.

How’s that for a logical conundrum?  

It is a shame that members of the Planning Board view the proliferation of candidate signs during election season as clutter and pollution, rather than as a statement of robust and vigorous civic engagement. To borrow the words of the Supreme Court, such signs “both reflect and animate” the life of a community, especially its public-spirited members. They also inform people.

We note that ZTA 21-08 does not limit the number of flags—considered temporary signage—a resident may fly on his/her property nor the duration of their display, but banners, which are also temporary and must be attached to “any structure, staff, pole, rope, wire or framing,” are limited to two per residence and to 90 days’ duration.

Why would flags be given preferential treatment over banners and signs, except for content-based reasons? Can the Town actually claim to be basing this restriction on aesthetics?

It is illogical that we can fly one flag—or five flags—on a pole or poles in our yard that say, “We Won’t Go Back,” which is Planned Parenthood’s rallying cry in the aftermath of the Supreme Court’s overruling of the abortion cases, for as long as we want, but we cannot do the same with signs or banners.

VEHICLE SIGNS

We could further parse provisions of ZTA 21-08 for First Amendment infringement, but will conclude with just one more suspect regulation: a prohibition of “vehicle signs,” which already exists in the Town Code and is perpetuated in the new Zoning Text Amendment.

The Code definition of “sign, vehicle” is an unwieldly run-on sentence of 115 words, which as best as we can discern differentiates between signs on parked vehicles whose purpose is to “attract the attention of the public rather than to serve the business of the owner thereof in the manner which is customary for said vehicle.” (sec. 36-57) Signs on parked vehicles that serve the business of the owner are permissible, but signs designed to attract the attention of the public, such as political vehicle signs, are not. This is another content-based discrimination.

Signage regulation is a murky area of the First Amendment, in part because the Reed case left many unanswered questions. It is easy to get swept away by the swift current in First Amendment waters if one is not an experienced swimmer, and experienced swimmers are few and far between. First Amendment experts tend to be found in academia.  

We believe the best way for the Town to keep its head above water is to think first of protecting citizens’ free-speech rights and secondly about preserving aesthetics. Regulate the size, shape, and location of signs, but tread very lightly on other time-place-manner restrictions.

***

A REMINDER: The bulk-waste pickup day is this Friday. For more details about the approved items, see the message atop the home page of the Town website.

Ann G. Sjoerdsma, 10/2/22

The Town Planning Board, sitting as the Town Board of Adjustment, will convene Wednesday, Oct. 5, at 1 p.m. in the Pitts Center to hear an appeal from the property owner of 55 Skyline Road of the Town’s decision to deny its application for a recombination of the 80,000-square-foot parcel.

Adam Ward, an architect with Moment Design PLLC in Raleigh, filed the appeal on behalf of Skyline Oaks Properties LLC (“Skyline Oaks”), the business entity owner of the vacant tract on Skyline Road, which consists of lots 8-11 of Block B, Section 1, as shown on the original subdivision plat of Southern Shores, and additional land. (See the aerial photograph, above, of the property, on Dare County gis.)

In its recombination—which is essentially a subdivision—Skyline Oaks proposes to create four different lots of varying dimensions, according to the file records that have been posted on the Town website.

Mr. Ward prepared a recombination plat for Skyline Oaks that shows the location and dimensions of the newly created lots. This plat and other graphic documents submitted by the appellant situate two of the proposed lots behind the other two, and, therefore, not fronting on Skyline Road.

The property is in the Town’s RS-1 single-family dwelling residential zoning district.  

To see all materials related to the hearing, go to https://www.dropbox.com/sh/54mt6u4pbed4k3l/AAB_EFUHE7kUMGZBX6u7tisTa?dl=0. (Click on the second item listed, “10-5-22 Special PB Meeting Request pdf.”)

Deputy Town Manager/Planning Director Wes Haskett, acting as Town Zoning Administrator, denied Skyline Oaks’ request on the grounds that the recombination would result in lot nonconformities, in particular, in a violation of the minimum required lot width in the RS-1 district of 100 feet. (See Town Code sec. 36-202(d)(2).) 

In his decision, Mr. Haskett explained how the 100-foot width is calculated, writing: “[A]ll of the proposed lots should have a minimum width of 100 feet measured at a line that is parallel to and 25 feet from the current right-of-way, Skyline Rd.”

According to North Carolina records, Skyline Oaks is a domestic limited liability company that was formed in July 2021, shortly before it purchased the Skyline Road property for $650,000.

Skyline Oaks’ registered agent is Robert McClendon, who is a member of the Planning Board, and its principal mailing address is Mr. McClendon’s home address in Chicahauk.

Clearly, Mr. McClendon will have to recuse himself from the Board of Adjustment’s decision-making, as will any other member who believes he or she cannot be impartial. The Board members are subject to challenge by the parties for bias.

We have read the documents in the record, including Mr. Haskett’s decision and Skyline Properties’ appeal, and have some questions regarding the focus of the appeal. It seems to us to respond to a comment that Mr. Haskett made in his decision about the Town’s required minimum front yard setback of 25 feet, rather than to the minimum required width of each proposed new lot.

The Board of Adjustment hears administrative appeal in a quasi-judicial proceeding, which is similar to a court proceeding, but less formal and governed by different rules and protocol. The rules of evidence, such as the prohibition against hearsay, apply; sworn witnesses testify; and attorneys typically represent the parties, conducting witness examinations, making objections, and arguing their case in opening and closing statements.

If Skyline Oaks is dissatisfied with the Board’s decision, it has a right to appeal the decision to the Superior Court of Dare County.

Attorney W. Jay Wheless of Manteo will represent the Board of Adjustment, advising its members–particularly, presiding Chairperson Andy Ward–as needed, during the hearing.

Louis Johny Hallow III of the Elizabeth City office of Hornthal, Riley, Ellis & Maland, the firm that represents the Town of Southern Shores, will appear on behalf of the Town, according to Mr. Haskett.

As of this writing, there is no attorney of record for Skyline Oaks. Mr. Adam Ward attached a legal opinion from attorney Casey Varnell of the Kitty Hawk firm of Sharp, Graham, Baker and Varnell to his notice of appeal, but it does not appear from filings that Mr. Varnell will represent Skyline Oaks at the hearing.  

[10/6/22 UPDATE: Mr. Varnell represented appellant Skyline Oaks at the Board of Adjustment hearing.]

We are reluctant to say more about the appeal because we respect the integrity of the quasi-judicial process, but we will say, nonetheless, that we do not understand why Skyline did not mediate this matter with Mr. Haskett.

The minimum 100-foot lot width is a clearcut dimensional standard in the RS-1 district. Had Skyline Oaks met with Mr. Haskett—assuming it did not—we are certain that he would have advised its representative(s) as to how to recombine the 80,000-square-foot vacant property at 55 Skyline Road to meet all required dimensional standards.

We are reporting on the Oct. 5 Board of Adjustment hearing because, although it may concern just this one property, we believe it may be instructive to other Southern Shores property owners who are contemplating or may later consider subdividing their properties.    

[10/6/22 UPDATE: We decided not to report on the BOA hearing, which we attended, because there is likely to be an appeal of the Board’s 3-2 decision in favor of the Town to the Dare County Superior Court.]       

Ann G. Sjoerdsma, 10/1/22