11/18/23: GINGUITE SUBMITS NEW MATERIALS, RESPONSES TO PLANNING BOARD IN ADVANCE OF ITS 3rd PERMIT HEARING MONDAY; SAGA ATTORNEY SAYS QUESTIONS ABOUT TROUBLED WASTEWATER TREATMENT PLANT ARE ‘NOT RELEVANT.’  

Ginguite, LLC, last week submitted new materials with the Town of Southern Shores regarding its proposed mixed-use development at 6195 N. Croatan Hwy., which include a letter from the U.S. Army Corps of Engineers verifying wetlands on the property and a revised site plan with wider side-yard setbacks to Southern Shores Landing properties, and the Town has placed online documentation of the ownership and troubled operation of the wastewater treatment plant (WWTP) that would serve Ginguite’s luxury condominium/office/retail, restaurant complex.

Ginguite’s filings are in response to wide-ranging questions by the Planning Board at its Oct. 16 meeting, the second one the Board has held to review its application for a Special Use Permit (SUP). (Update: As we learned at the Monday Planning Board meeting, the extensive WWTP documents were obtained by Planning Board Member Ed Lawler during online research.)

The Planning Board will meet Monday at 5 p.m. in the Pitts Center for its third meeting about Ginguite’s application, known as SUP 23-01.

The Board’s hearings are preliminary to making a recommendation to the Town Council to either disapprove the SUP application or approve it with conditions, which Ginguite would have to fulfill before it may apply for and receive a Building Permit.

As Planning Board Chairman Andy Ward observed upon opening last month’s meeting, Ginguite would not need a special permit if it were to develop its commercially zoned property as exclusively commercial or (RS-8 multifamily) residential–land uses that are permitted as of right under the Town Code. Mixed-use developments, however, require an SUP. (See Town Code sec. 36-207(c)).

The Town Council will hold a quasi-judicial hearing on the merits of SUP 23-01 before it makes its decision on permit approval. The Council is not bound by the volunteer Planning Board’s recommendation or the conditions it proposes, but it usually gives deference to the Board.

26 QUESTIONS

In its materials, Ginguite, LLC, which is a subsidiary of SAGA Realty & Construction, submits answers to 26 questions that were raised by the Planning Board during its three-and-a-half-hour October meeting. SAGA attorney Jamie S. Schwedler, a Raleigh-based partner with the regional law firm of Parker Poe, provides the responses.

Attorney Ashley Honeycutt Terrazas, an associate at Parker Poe, represented Ginguite at the Oct. 16 meeting, along with Michael Strader, director of engineering at Quible & Associates of Kitty Hawk who is charge of the Ginguite project.

In her responses—to such issues as an independent traffic study, the operation and water quality at the WWTP, landscaping and lighting at the proposed project, and the use of Landing Trail, a road off of U.S. Hwy. 158 into the Southern Shores Landing that Ginguite, LLC owns—Ms. Schwedler clearly distinguishes those conditions that she deems appropriate for a Special Use Permit and those that she does not.

For example, while Ginguite has agreed to a traffic impact analysis (TIA) being done by the N.C. Dept. of Transportation before the Building Permit stage, Ms. Schwedler states that the Planning Board cannot require the TIA to be done before it makes its recommendation on the SUP, as proposed by Planning Board Alternate Michael Zehner, who asked for “a peer review of an independent [traffic] study,” before he casts his vote.

Ms. Schwedler further notes that NCDOT is an independent State agency. (Question One on “Responses to TOSS Planning Board Questions Received 11/1/23.)

(See https://www.southernshores-nc.gov/planning/page/planning-board-november-20-2023 for all new supporting documents, which are divided into two categories: 1. SUP 23-01 Documents and 2) SUP 23-01 Waste Water Treatment Plant documents. Ms. Schwedler’s responses are included in the first documents link.

(If you cannot access the material through this link, simply click on the Planning Board meeting notice under “Public Notices” on the TOSS website home page at https://www.southernshores-nc.gov/.)

She further states that Ginguite:

• “is not required” by Town ordinance to submit elevation drawings of its proposed buildings from the rear (north) of the site, as the Board requested, nor must it show building-mounted lights and wall signage until the Building Permit stage (Questions 14, 18, 21); 
• does not have to “submit a construction management plan for construction phases and a timeline” of the SAGA project, as the Board requested, because “That is not required for a site plan or a special use permit.” (Question 22);
• “has no intention of blocking Landing Trail [which Ginguite, LLC has allowed Southern Shores Landing residents and others to use],” but that “whether or not [SSL residents] have an access easement is irrelevant” to its SUP application (Question 25); and
• has not applied for a wastewater treatment plant and, therefore, all of the Planning Board’s questions about the existing WWTP, which is owned by GWWTP, LLC, another SAGA subsidiary, are not relevant to the SUP application (Questions 3, 4, 5, 6, 7, 8, 9).

Frustration clearly creeps into Ms. Schwedler’s response letter, as it did in Ms. Terrazas’s meeting comments last month.

“We look forward to wrapping up the discussion on SUP 23-01 [on Nov. 20] and receiving a recommendation” on the SUP and site plan, Ms. Schwedler concludes, noting “we have made extensive efforts to answer the Planning Board’s questions ….”

Similarly, when asked by Board Member Robert McClendon, whom Chairperson Ward supported, to submit renderings of the site buildings that show what they “will look like on that land,” not just flat drawings, Ms. Terrazas replied in a strained voice: “We’ve provided the typical renderings and elevations at this point. . . . We feel like we have [provided] all of the information that’s normally submitted at this time. We have been through everything. We need the Board to make a recommendation.”

Mr. McClendon told her that actual renderings of the two planned buildings, in context and perspective, are “absolutely essential for an approval recommendation from me.”    

“The citizens are concerned about how much view is being blocked from the highway,” he observed to applause from the audience.

Ms. Terrazas appeared resigned to accept whatever recommendation the Board makes, pro or con, in order to go forward to the Town Council.

In answering questions about the WWTP, which has a history of regulatory noncompliance, Ms. Schwedler repeatedly responds: “SUP 23-01 is not an application for a WWTP. GWWTP, while controlled by the Applicant, is not the applicant for this case, and the TOSS is not reviewing any permits or applications for the properties upon which the WWTP sits. The WWTP planned to serve the subject development is regulated by the [N.C. Dept. of Environmental Quality] and NCDEQ is responsible for determining whether the WWTP can serve the development. It will not issue the necessary permits otherwise.”

Ms. Terrazas also made this point repeatedly at the October meeting: Ginguite, LLC, must procure NCDEQ’s approval of the WWTP before it submits its Building Permit application. That is a condition of the SUP. (We discuss the WWTP below.)

Indeed, the developer must obtain a number of governmental permits before it can proceed to the next stage of the construction process. They are enumerated in Deputy Town Manager/Planning Director Wes Haskett’s Sept. 18 Staff Report on SUP 23-01.

Dominion Energy, with whom SAGA “has been in dialogues . . . from the outset,” Mr. Strader said Oct. 16, “will reserve its approval,” until after the Town has finished its review. The Planning Board has inquired about projected parking spaces being in a 70-foot Dominion power easement.

While the Planning Board’s probing questions have elicited a lot of information, as well as the support and enthusiasm of its community audiences, we agree that the time for a wrap-up has arrived. The Board’s earnest, thorough questioning is increasingly marked by redundancy and irrelevancy. Does the Board really need to know the details of Ginguite’s landscaping design, for example, before it rules on the Special Use Permit? (The ordinance pertaining to mixed-use group development addresses the issue of vegetative buffers. Sec. 36-207(c)(11).)

SAGA is many months removed from breaking ground at 6195 N. Croatan Hwy., if indeed, it receives the permits it needs to do so. The Planning Board may be “the first line of defense” in the SUP process, as Mr. Ward has noted, but its weapon should not be overkill.  

WETLANDS, BUFFERS

In an Oct. 27 email submitted by Ginguite to the Town, Shane F. Staples, a Regulatory Specialist with the U.S. Army Corps of Engineers’ Wilmington district, verifies the “delineation” of aquatic resources on Ginguite’s property: A half-acre area north of the pond that abuts property owned by All Saints’ Episcopal Church is delineated as wetlands, he instructs, while the creek basin and the remainder of the Ginguite site are non-wetlands, as shown on aerial imagery attached to the email text.

This delineation is not what Mr. Staples calls a “jurisdictional determination,” but it “may be relied upon for use in the permit evaluation process, including compensatory mitigation.”

At the Oct. 16 meeting, Mr. McClendon said a wetlands delineation would be sufficient at this stage. SAGA has not proposed construction on the wetlands area.

In public comments last month, Stephen Hotchkiss, who identified himself as the senior elected layperson at All Saints’, said that, after the Planning Board’s September meeting, church representatives contacted and met with SAGA representatives, walked the church’s property, and had “productive” discussions about the church’s concerns, chief among them “the privacy of our sacred grounds outdoors.”

Mr. Hotchkiss said he was confident that the parties would “make progress” to “meet our needs,” and encouraged residents of Southern Shores Landing to contact SAGA for “good neighbor” talks, as well.

Ginguite has revised its original site plan to incorporate a minimum 20-foot buffer (an increase of five feet) “with more natural existing vegetation and a retaining wall on the eastern property line,” next to the Landing; to shift its refuse area farther away from the Landing; and to preserve an existing soil pathway on the northeast corner of its property that Landing residents and churchgoers routinely use.

It also has eliminated a proposed marina, a land use that Mr. Haskett ruled in an interpretation is not allowed in the Town’s commercial district.    

Although Mr. Haskett suggested that the Planning Board condition its recommended approval of the SUP on Ginguite’s maintenance of a 50-foot setback from its eastern property line adjacent to the Landing, Ginguite has consistently contested this condition, finding it contrary to Town Code requirements.

The portion of SSL property that abuts Ginguite’s property is zoned commercial, and, as such, is entitled under the Code to only a 15-foot side setback from structures that SAGA might build. If it were in a residential district, like the church is, a 50-foot side setback would be mandated.

At the October meeting, Mr. Strader showed a graphic illustrating revised buffers between Ginguite and SSL that vary from 20 to 34 feet. Both he and Ms. Terrazas referred to the increased widths as “concesssions” by SAGA.

Mr. Ward intimated that the Board is inclined to accept Mr. Haskett’s 50-foot setback condition, which he justified as appropriate to mitigate the impact of Ginguite’s development on the Landing, transportation in and out of the community, stormwater runoff, sewage treatment, and noise, among other things.

Both Ms. Terrazas and Mr. Strader said Ginguite’s 20- to 34-foot setback is a “good compromise” and it cannot offer more.

WASTEWATER TREATMENT PLANT

After the Planning Board’s October meeting, the wastewater treatment plant that SAGA owns, but hasn’t operated properly, earning fines imposed by the NCDEQ for multiple violations, was all the buzz. That made the local news.

We found the facts about the WWTP unclear, however, and continue to find them so, despite the new documents on the Town website.

According to these materials, the N.C. Environmental Management Commission issued a permit on Oct. 3, 2018 to GWWTP, LLC, to operate a 32,500-gallon-per-day reclaimed water generation system, conjunctive reclaimed water utilization, and low-rate infiltration system at the plant, until Nov. 30, 2023—which is the end of this month.

GWWTP stands for Ginguite Woods Wastewater Treatment Plant. The plant is located to the east of the Ginguite property at 0 N. Croatan Hwy. on two parcels: One has equipment on it, the other has a pond, which Planning Board Member Ed Lawler said is rife with algae.

Since Nov. 20, 2009, an emergency operator appointed by the N.C. Utilities Commission (NCUC) has run the Ginguite Woods subdivision sewer utility system. The Commission took this action to protect against the “imminent danger” of the loss of the utility service, upon which SSL residents depend.  

That order is still in effect.

During its five-year permit period, GWWTP, LLC, has been cited for numerous violations, including exceeding daily maximums of fecal coliform bacteria, MFC broth, and turbidity, and exceeding nitrogen ammonia limits, as measured in plant water samples. As the owner of GWWTP, LLC, Prem Gupta, a SAGA partner and officer who, we believe, is Sumit Gupta’s father, received notices of these violations and unpaid civil penalties imposed by NCDEQ.

Sumit Gupta, who is the Chief Executive Officer of SAGA and a principal in Ginguite, LLC, did not attend the Oct. 16 meeting.

At the time of the 2009 emergency order, Ginguite Woods Water Reclamation Assn., which was owned by Neil Blenkin, owned the wastewater service franchise and had done so since 2003. For reasons unknown, GWWRA did not properly transfer control of the wastewater plant to Prem Gupta’s GWWTP.  

According to a July 25, 2023 letter sent to the NCUC chief clerk by an N.C. Public Staff Utilities Commission attorney, Ginguite Woods Water Reclamation Assn. sought in February of this year to transfer its Certificate of Public Convenience and Necessity to provide sewer utility service to GWWTP. The Public Staff found that the sewer system had been abandoned by both the GWWRA and the Commission-appointed emergency operator and that the land on which the system is located had been sold “multiple times without Commission approval.”

Although GWWTP stepped in and is currently operating the system to maintain service, the Public Staff recommended that the NCUC find the transfer application incomplete. Because of the number of irregularities, it issued what is called a deficiency letter.

Mr. Strader has said that Atlantic OBX is serving now as the contract operator of the wastewater treatment plant, but it is clear from the new documentation that, as GWWTP approaches the expiration date of its operating permit, the plant is out of compliance in many respects.

Although Ginguite, LLC, is not the legal entity that owns the wastewater treatment plant, its high-end mixed-use development will be dependent on its service.

“By law,” Ms. Terrazas said, “we will be required to take care of this” before the Town of Southern Shores will issue a Building Permit.

As reported on 10/17/23, the Planning Board took no action last month on SUP 23-01.

Ann G. Sjoerdsma, 11/18/23