Of the 17 non-resident cases of COVID-19 diagnosed in Dare County since last Friday, nine clearly acquired the virus by direct contact with an infected person outside of Dare County, while the other eight became infected by an “unclear” mode of transmission, according to the Dare County Dept. of Health and Human Services’ case update yesterday.
What do these numbers mean in terms of the threat of the disease caused by the novel coronavirus to Outer Bankers? We do not really know.
Of the 13 resident cases of COVID-19 diagnosed since DCDHHS’s Friday update, five acquired it by direct contact with an infected Dare County resident, and eight became infected by an “unclear” mode of transmission.
How thoroughly does the DCDHHS probe the recent actions of people who test positive with COVID-19? How does it decide that the mode of transmission could not have been by direct contact and is, therefore, “unclear”? We do not know.
Although DCDHHS Director Dr. Sheila Davies’s update yesterday says, as her many other updates have, that the inability to identify a direct source of virus transmission “indicates” a case acquired the virus by community spread, it does not confirm community spread.
Are there any common elements to these “unclear” cases other than a failure to identify known direct contacts? If so, the DCDHHS is not telling the public.
If the DCDHHS is relying solely on a patient’s self-reporting of possible direct contacts—reporting that depends upon the person’s memory, perceptiveness, and even truthfulness—then its conclusions about community spread are inherently biased and faulty. That is the nature of self-reporting.
It is also of little use to Dare County residents to be told that infected nonresidents likely acquired the virus by community spread, if the community in which the spread occurred is not identified. The DCDHHS never specifies in its updates if the presumed community spread that infected a nonresident is spread to which he/she was exposed outside or inside Dare County.
It may not always be possible to determine this, but in some cases, it should be. For example, a nonresident diagnosed with COVID-19 a day or two after arriving in Dare County certainly was infected outside of the area.
The incubation period for COVID-19–the time period between exposure to the virus and the appearance of symptoms–varies from person to person, but it is no less than two days. The average incubation time, according to medical experts, is five days.
Over the past week, according to Dr. Davies, about half of the 54 COVID-19 cases reported locally “acquired the virus by direct contact with known positive cases.” In the other half, she observes, “the individuals were not able to identify how they acquired the virus.” They, too, may have acquired the virus by direct contact of which they were unaware or which they were unwilling to disclose.
Fifty-three percent of the nonresidents who tested positive for COVID-19 in Dare County since Friday are known to have acquired the virus by direct contact before they arrived, and the other 47 percent may have done the same because the means of transmission is “unclear.” The DCDHHS’s public- information update says no more than that.
Likewise, 38 percent of the Dare County residents who tested positive for COVID-19 since Friday acquired the virus by a direct contact locally, and the other 62 percent may have done the same, without knowing it.
The Beacon believes it is long past time for the DCDHHS to do more to determine where and how COVID-19 is being transmitted—or, at least, to explain to the public the extent of its efforts—and then to communicate its findings.
We believe the DCDHHS’s lack of specificity in reporting details about diagnosed cases contributes to the public’s noncompliance with basic infection-control measures such as wearing a face covering, washing hands frequently, and social distancing.
For too many people, the public-health threat of COVID-19 is not real because it has not been brought home by public-health officials, on both the local and state level. To do so would not violate the privacy of people who have been diagnosed–they are mere case numbers–and do much to inform people about the safety of their community.
The number of COVID-19 cases diagnosed in Dare County is now 335. Four new cases—three residents and one nonresident—were added to the DCDHHS dashboard after Dr. Davies’s update. All are in home isolation in their respective home counties.
According to Dr. Davies, among the now-59 active cases in Dare County, three people remain hospitalized in critical condition.
ON THE STATE LEVEL, ALCOHOL SALES CURFEW: Governor Roy Cooper issued an executive order yesterday to stop all on-site alcoholic beverage sales statewide in restaurants, breweries, wineries, and distilleries at 11 p.m., starting at 11 p.m. Friday.
Bars statewide are currently closed, so they are not included in Executive Order 153.
The ban applies to alcoholic beverages sold at restaurants and the other target businesses from 11 p.m. until 7 a.m. The Executive Order will expire at 11 p.m. on Monday, Aug. 31, if it is not repealed, replaced, or rescinded earlier.
Executive Order 153 does not apply to grocery stores, convenience stores, or other entities that are permitted to sell alcohol for off-premises consumption. It is focused on discouraging social gatherings among people, especially young people, who do not take adequate precautions to prevent the spread of COVID-19.
The number of hospitalizations reported yesterday on the N.C. Dept. of Health and Human Services dashboard, was 1,244, a new single-day record high, but the State still has hospital capacity, Dr. Mandy Cohen, Secretary of the NCDHHS, announced.
Dr. Cohen also said that “glimmers of potential progress” have emerged in the other COVID-19 metrics that the State is following. In particular, the trajectory of lab-confirmed COVID-19 cases, although still high, is leveling. Also, the trajectory in the positivity rate of tests is declining, although it is still above 5 percent. The last time the positivity rate was above 10 percent was July 19.
Dare County reported a second single-day record 16 COVID-19 cases today, 10 of them nonresidents, according to the Dept. of Health and Human Services dashboard. The previous 16-case day was July 1.
There have been two days on which the DCDHHS reported 15 cases, both in July.
The total number of people who have tested positive for COVID-19 in Dare County is now 331, 184 residents and 147 nonresidents.
The latest 16 cases cover all age groups: one is age 17 or younger; four are between ages 18 and 24; five are between ages 25 and 49; three are between 50 and 64; and three are 65 or older.
According to the DCDHHS’s “July 2020 Numbers” for today, there is one Dare County resident in each age category, and all are female.
On Sunday, the DCDHHS reported two new COVID-19 cases, after a 12-case-report day on Saturday. One of the two Sunday cases is a female resident between the ages of 50 and 64 who is hospitalized.
Dr. Sheila Davies, director of the DCDHHS, has previously reported that most of the people diagnosed with COVID-19 locally have experienced only mild symptoms. It is rare that an infected person has been hospitalized, making Sunday’s case noteworthy.
Four of the people who tested positive for COVID-19 in Saturday’s report were age 17 or under. The majority of them—seven—were between the ages of 25 and 49. This is the age group that is driving the continued spread of the coronavirus in our country and preventing progress in our economic, educational, and social reopening.
The residents who tested positive today for COVID-19 are in home isolation, while all of the nonresidents transferred to their home counties for isolation.
The Beacon used to report individually on the transmission details of all COVID-19 cases, including how a person acquired the infection—whether by direct contact or by presumed community spread—and where a person acquired it. We decided recently to curtail such elaboration and give more general reports.
Over the weekend, however, a reader contacted us to inquire about how many of the nonresidents who tested positive for COVID-19 in Dare County acquired the virus outside of the area, then got diagnosed here. We will make a point of reporting on this occurrence in the future.
Dr. Davies always indicates in her Tuesday and Friday case updates whether people acquired the virus locally or outside of the area, but she does not name locations.
Since Dr. Davies’s Friday update, 30 new COVID-19 cases have been diagnosed in Dare County.
Homeowners have singled out the beach at Seventh Avenue as being in dire need of nourishment, although there is ample sand in the ecosystem there. The Seventh Avenue coastline area that would be subject to quick-take condemnation is owned by the Southern Shores Civic Assn.
Suppose 10 or a dozen oceanfront property owners do not want to give the Town of Southern Shores voluntary easements to facilitate its 2022 beach nourishment project, Town Councilman Matt Neal posited to Town Attorney Ben Gallop at the Council workshop meeting last Tuesday . . . what would happen?
As you will recall, the Town Council considered at its Tuesday meeting proposed Town Resolution 2020-07-03, which asks the N.C. General Assembly to add Southern Shores to a list of municipalities that may exercise quick-take condemnation over private property for certain public purposes, including “engaging in beach erosion control and flood and hurricane protection works.”
The General Assembly will have to adopt new language in two sections of the state eminent domain chapter in order to enable Southern Shores to use quick take—which is a form of accelerated eminent domain—for beach nourishment purposes, most significantly, N.C. General Statutes sec. 40A-3(b1). (See The Beacon, 7/20/20 for background.)
Ultimately, as we reported earlier, the Town Council unanimously approved the resolution. Mayor Tom Bennett said that he had spoken with N.C. House Delegate Bobby Hanig and someone in N.C. Senator Bob Steinburg’s office about moving the resolution forward to a General Assembly vote. He also said that he had received a “very clear message” that it would not be brought up until January.
Both Senator Steinburg and Representative Hanig are running for reelection in November. In fact, Mayor Pro Tem Elizabeth Morey’s husband, Tommy Fulcher, is opposing Mr. Hanig; Tess Judge is running against Mr.Steinburg. Come January, Southern Shores’ state legislative representatives may be Mr. Fulcher and Mrs. Judge.
During a wide-ranging discussion that occurred before Mr. Neal’s question about the noncompliant property owners in which the Councilman, Mr. Gallop, and I—as a public citizen, speaking via Zoom—addressed the implications of amending the relevant statutes, Mr. Gallop focused on acquiring easements.
But, we hasten to point out, there is nothing in N.C.G.S. sec.40A-3(b1) that limits a town’s condemnation/forced acquisition of private property for beach nourishment to just easements. The word easement does not appear anywhere in the statute. Certain Town Council members, however, appear to believe otherwise.
Town Manager Cliff Ogburn explained in background materials that the easements the Town would seek to acquire would cover the length of the Southern Shores coastline and be in the beach area that is between the mean high-water mark and the dunes.
“There’s a chance,” Mr. Gallop observed during the meeting, “that you don’t need easements to do beach nourishment” because this area is “subject to public trust and usage rights.” There is no definitive N.C. higher court ruling to this effect, however.
CONDEMNATION OF OCEANFRONT PROPERTY EASEMENTS
Returning to Mr. Neal’s question . . .
“Walk me through the process,” the Councilman asked Mr. Gallop, so he would know, Mr. Neal said, how the “authority we’re seeking” with the proposed quick-take Resolution 2020-07-03 would function in a “real-world” sense.
You gotta love Councilman Neal. Without him on the Council, the Southern Shores public would have no elected representative capable of—and committed to—reading and analyzing complicated North Carolina statutes and asking smart legal questions. If we did not know he was a builder, we would think he is a lawyer—he’s that good. Mr. Gallop does not need to belabor basics with him.
Here is how the Town Attorney answered Mr. Neal’s hypothetical:
“Ummmm, well, I think at some point there will be . . . [he restated Mr. Neal’s hypothetical] at some point, that will come back to the board and the question will be: What do you want to do? You’ll have to either balance . . . [trailed off]
“[Town Council members would ask themselves:] Do we want to modify the project? Do we want to file condemnations? Do we want to do the project anyway and deal with what could come of that? Or do we want to file a different kind of suit to confirm our right to do this [use the private oceanfront property] without condemnations?
“If the ultimate choice is to file condemnations [and here he stopped speaking, picked up some paperwork and said, “I was not completely prepared”] . . . you got to adopt a resolution authorizing the taking of the easements via condemnation. You got to mail notice . . .” and he proceeded to explain the basic legal procedure: giving the private landowner notice of the condemnation, filing a complaint in court with a “deposit for the estimated compensation” for the property taking, and going “to court.”
What Mr. Neal said in response to Mr. Gallop could not be understood because not only was the sound defective in the Zoom videoconference, in which we participated, and in the You Tube videotape, Mr. Neal was speaking through a face covering!
A good five to 10 minutes of discussion in the meeting toward the end are inaudible. Nonetheless, Mr. Gallop can clearly be heard saying the following about an easement obtained by condemnation, rather than granted voluntarily by a landowner:
“It probably would be even more limited than what you would ask for voluntarily.”
Easements obtained by quick-take eminent domain are “very, very narrowed easements,” Mr. Gallop said, and “voluntary easements are more broad.”
It seems both reasonable and natural to ask then: Why would an oceanfront property owner who is opposed to beach nourishment and/or to giving the Town an easement so construction equipment and supplies can cross his/her property do so voluntarily if a court will order a narrower easement and award “just compensation”?
Is the Town paying oceanfront property owners for voluntary easements or just depending on them to be cooperative while it also taxes them through the nose in their “municipal service district,” simply because their properties are closer to the beaches that everyone in town uses and depends upon for a flow of tax revenues?
So far, this Town Council has only said that it will “pursue” beach nourishment. It has not indicated by a public vote which nourishment option recommended by its coastal engineering consultant it will “pursue,” nor has it committed to the type of financing it will use. The memorandum of understanding that the Town is to have with Dare County about the county’s financial contribution has not been finalized–not as far as has been reported publicly.
All of the financing data that the Town and its loan consultants have presented in meeting packets have been described as “for discussion purposes,” nothing more.
Why should an oceanfront property owner—which I am, with co-owner siblings, and no one on the Town Council is—cooperate with a town that keeps the public so much in the dark?
QUICK-TAKE AUTHORITY IS NOT LIMITED TO EASEMENTS
Councilman Neal was the only one of the five Town Council members who showed any knowledge or understanding of the N.C. statutory framework for quick-take eminent domain that the resolution would change. His questions were extensive, and they were ours, as well. He was extremely and impressively well-prepared.
Mr. Neal was satisfied with Mr. Gallop’s often-confusing explanations. Questions remain for us.
During discussion of the resolution, Mayor Bennett, Mayor Pro Tem Morey, and Councilman Leo Holland said nothing substantive. They made no contributions.
Town Councilman Jim Conners expressed a wrongheaded interpretation, after he first took a veiled shot at The Beacon, saying accusingly, “The public is being grossly misled as to what this is all about.”
But it is Mr. Conners who is grossly misinformed.
The intent of Resolution 2020-07-03 may be to give the Town a means by which it can forcibly obtain an easement from oceanfront property owners “who won’t voluntarily give an easement,” as Mr. Conners stated, but that is not what its exclusive effect is.
The statute clearly says that a town may use the quick-take condemnation process to acquire “any property”—not just an easement—for the purpose of “building or improving beach erosion control or flood and hurricane protection works.” The words “building,” “improving,” and “protection works” are not defined.
We wonder if Councilman Conners heard Mr. Gallop’s response to his question about whether a taking by quick-take condemnation would give the town “Fee-simple title” to someone’s private property. In the asking of it, Mr. Conners showed his unfamiliarity with the common real estate term, fee-simple title.
Mr. Gallop succinctly responded: “It’s going to give you [the Town] the authority to condemn a fee-simple title, but that doesn’t mean you have to exercise that authority.”
Get it?
If implemented, the quick-take resolution would give the town much more legal authority than just the right to acquire an easement. It would give it the right to take title and possession to private property, permanently, forever. That the Town professes it will not exercise that authority is beside the point—at least it is for people who know how to think and can envision scenarios when the Town may seek more.
Fortunately, Town Councilman Matt Neal is such a person.
If the other four Council members even remotely followed all that Mr. Gallop said, they have to appreciate that North Carolina’s quick-take eminent domain statutory setup is—to quote the Town Attorney—“really painfully complicated,” “a puzzle,” and “an awful way for the General Assembly to do it.”
Mr. Gallop even admitted that defining exactly what land rights are granted in an easement is difficult, and that lawyers disagree.
The Town Council eventually voted to authorize Mr. Ogburn, Mr. Gallop, and Town staff to proceed with drafting an easement template, in preparation for trying to procure the necessary easements for the 2022 project voluntarily from oceanfront property owners.
A draft of such an easement may be ready as soon as the Aug. 4 Town Council meeting, said Mr. Ogburn, who also intends to prepare a list of frequently asked questions to have available for property owners.
By his remarks Tuesday, the new Town Manager showed he is concerned about informing the public and protecting homeowners’ interests.
WHO PULLED THE RUG OUT?
We were much chagrined to hear Councilman Holland say after the Council had approved the quick-take resolution that he was “gun-shy” and was eager to see the statutory change made by the General Assembly because of what happened when quick take came before the Town Council in February 2014.
As we explained on 7/20/20, Southern Shores property owners successfully lobbied their state legislators to nullify a unanimous decision by the Town Council in favor of a quick-take resolution that ignored overwhelming public opinion.
Despite hearing nothing but opposition from angry and distressed homeowners, the Town Council—that then included Mr. Holland and Mayor Bennett—approved a resolution that allowed for the possibility that the Town would be able to quick-take fee-simple title to private property in order to “establish access for the public to public trust beaches and appurtenant parking areas,” as well as to engage in “beach erosion control and flood and hurricane protection works.
Significantly, the so-called “beach access” purpose was eliminated from Resolution 2020-07-03.
Last Tuesday, Mr. Holland said about the 2014 experience: “The rug got pulled out from under us, and that’s what I don’t want to see happening again.”
We would like Mr. Holland to tell us exactly WHO “pulled the rug” out from under the Town Council: the constituents whom Council members like himself are elected to represent and whom he ignored in 2014 or the state legislators whom his constituents also elected to represent them and to whom they appealed in an exercise of their rights of representation in our three-level government?
The state legislators listened to the public; the Town Council, at the lowest level, did not.
THE CODEWRIGHT TOWN CODE FIASCO
Councilman Neal was knowledgeable and outstanding throughout Tuesday’s workshop meeting.
After seeking to clarify confusion created by poorly written Town Code language that is not improved by Zoning Text Amendment 20-01—which amends the Code to permit expedited zoning actions and temporary emergency accommodations—Mr. Neal turned to a long-ignored project, saying “I’m going to throw a bomb at Ben real quick.”
In the course of preparing for the hearing on ZTA 20-01, which the Council approved unanimously after Mr. Neal discussed it with Mr. Gallop, Mr. Neal had read some of the zoning ordinance changes proposed by Chad Meadows, owner of CodeWright Planners, LLC, of Durham, for the Town Code update/revision.
“Where are we at with CodeWright?” Mr. Neal asked of a disastrous project that dates to September 2015.
The Beacon can tell Mr. Neal exactly where “we” are: Since Jan. 31, 2019, CodeWright’s big, bloated, user-unfriendly 381-page “draft” of a new Town Code has been in Mr. Gallop’s lap, or his court, if you prefer.
At a public forum on Jan. 31, 2019—one of a number that he held in an exhaustive process—Mr. Meadows advised that Town Attorney Ben Gallop would review the draft in February (2019) and that the Town Planning Board would consider it in March and April, with an eye toward recommending those chapters that Mr. Meadows said the Board is required by North Carolina law to recommend. (See The Beacon, 2/1/19.)
That is where “we” still are 18 months later. Neither the Town Council nor the Town Manager followed up with Mr. Gallop and held him accountable—or, alternatively, gave him some assistance. If Mr. Gallop is too busy to do the job, why not outsource it to another attorney or permit a paralegal to do the work with oversight from Mr. Gallop?
The Beacon has spoken about the neglect of the CodeWright draft twice in public comments—once last year, during Deputy Town Manager/Planning Director Wes Haskett’s turn as interim town manager and again on Feb. 18, 2020.
In comments during a public hearing on Feb. 18 about the qualifications of the new town manager, we said we would like a manager who follows up on Town business, including the CodeWright project and the land-use plan revision.
”I have not put it as the priority that it’s needed to be,” Mr. Gallop said of his review of the CodeWright’s draft Town Code. Considering what a mess the draft is, we understand why he has avoided this work.
Mr. Gallop said it would take him “two non-stop days of work” to review the zoning chapter, but our understanding has always been that the Town Attorney would review the entire revision, all 381 bloated pages.
Being a nice guy, Councilman Neal told Mr. Gallop, “I didn’t mean to put you on the spot,” and “You can have until December, for all I care.”
But, truthfully, Mr.Gallop should be put on the spot. The Town Council represents a local government, a public entity, and needs to ask tough questions when public monies and public accountability are involved. Mr. Meadows has been extremely well-compensated, and many property owners and residents invested a substantial amount of time in participating in the Code revision draft-preparation process.
There was a public survey about various Town Code issues, with a ranking of priorities, for goodness sake!
Mr. Neal only asked the question that every other member of the Town Council should have asked and had satisfactorily answered some time during the past 18 months.
We believe it is time for the Town to cut its losses. We will pick up with this subject later in the week.
Thank you to everyone who reported on the traffic conditions yesterday during Day One of our third no-left-turn weekend experiment of the summer. We would appreciate hearing from those of you who live on Sea Oats Trail and on other residential streets that backed up yesterday as to when the traffic finally cleared.
Sunday summer cut-through traffic is usually lighter than Saturday summer cut-through traffic. We are hopeful that today no Southern Shores resident will have to contend with a backup on any of the residential streets.
The no-left-turn prohibition is in effect today from 11 a.m. to 8 p.m.
As always, we welcome your comments.
COVID-19 UPDATE: Dare County reported 12 new COVID-19 cases yesterday, bringing the total to 313, of whom 181 are Dare County residents, and 132 are nonresidents.
The age breakdown of the 313 cases is as follows, according to the Dare County Dept. of Health and Human Services dashboard:
*49 are age 17 and under (about 16 percent)
*75 are ages 18 to 24 (about 24 percent)
*111 are ages 25 to 49 (about 35 percent)
*47 are ages 50 to 64 (about 15 percent)
*31 are age 65 or older (about 10 percent)
Most people who test positive for COVID-19 tend to have minor symptoms, according to Dr. Sheila Davies, director of the DCDHHS. Regardless of their symptoms or lack thereof, people who test positive must isolate in their homes for as long as the DCDHHS–or their home county health department, if they are nonresidents transferred out of the area–tells them to remain in isolation.
Only two people with COVID-19 are currently hospitalized, and each is in critical condition, according to Dr. Davies. There have been fewer than five hospitalizations of locally diagnosed people since the pandemic began.
The issue remains stopping the spread of the virus, which people can do by wearing masks, observing social distancing, washing their hands often, avoiding large gatherings, and being cognizant of situations when spread may occur, such as inside a poorly ventilated restaurant.
Direct contact with infected persons remains the primary means of virus transmission, according to Dr. Davies.
A new warning sign for southbound users of the South Dogwood Trail sidewalk, near 134 S. Dogwood Trail. Notice that the sidewalk is adjacent to the roadway in this location.
Some homeowners on the east side of South Dogwood Trail have discovered that the new two-way, multi-use sidewalk poses a hazard that they may not have considered: that of a collision with a bicyclist or even a skateboarder or a jogger when they emerge in motor vehicles from their driveways.
This past week warning signs were erected in the right-of-way next to the new five-foot-wide concrete South Dogwood Trail sidewalk, cautioning bicyclists and other people who may be moving quickly on it—skateboarders, scooter riders, roller bladers, even joggers—to “Slow Down” because of a “Hidden Driveway.”
Motorists exiting driveways also must take greater care to account for, and anticipate, people on the sidewalk, traveling in both a southerly and northerly direction. Although driveways are not actually hidden, bicyclists, pedestrians, and other sidewalk users may overlook them and appear suddenly in motorists’ paths, giving drivers little time to react.
Ten warning signs like the one pictured above have been posted along the east side of South Dogwood Trail, five of them in each direction of the north-south residential road.
Although homeowners may not have considered this hazard—certainly none voiced a concern in public hearings about the design of the pathway—the potential for collisions at driveways was foreseeable.
“Multi-use pathways located adjacent to a highway may result in bicycle/motor vehicle conflicts at driveways and with turning traffic at intersections with roadways,” warns the the N.C. Dept. of Transportation in a public-information advisory about bicycle accommodations.
Of course, the major problem with the new sidewalk—or walking path/walking trail, as Town officials often reference it—is that, although it is being used as a two-way, multi-use pathway, it is half the width of a standard two-way, multi-use pathway.
According to the NCDOT, a minimum paved width for a two-way, multi-use pathway is 10 feet. The NCDOT advises that more space should be provided if the pathway will be used often by pedestrians, as the South Dogwood Trail path is.
Multi-use pathways, according to the NCDOT’s definition, are “physically separated from motor vehicle traffic,” which the South Dogwood Trail sidewalk is not in many areas. (See the photo above.) Even in areas where there is separation, the separation is inadequate to ensure safety of sidewalk users.
“Studies have shown,” the NCDOT states, that multi-use pathways that run parallel to roadways “are approximately twice as dangerous for bicyclists as riding in traffic with motor vehicles.”
We have not observed serious cyclists using the new South Dogwood Trail path, but we have seen many casual bicyclists using it, including families out together.
According to the NCDOT, “To be safe and enjoyable, multi-use pathways must be designed according to well-established design standards. These design standards include adequate width for two-directional use by both cyclists and pedestrians, provision of good sight distance, avoidance of steep grades and tight curves that force bicyclists to make awkward movements, and minimal cross-flow by motor vehicles [such as those exiting from driveways].”
The NCDOT recommends that a two-way, multi-use pathway be a 10-foot-wide asphalt path with two-foot crushed stone shoulders on either side.
In the interest of safety—their own, pedestrians’, and that of motorists emerging from driveways—The Beacon does not believe that swiftly moving bicyclists should use the new South Dogwood Trail sidewalk, and children riding their bicycles on it should be cautioned by their parents of the safety hazards.
The NCDOT is more blunt, stating in its advisory: “Sidewalks should never be designated as multi-use pathways.”
No matter what the Town calls the concrete path on South Dogwood Trail, it is still a sidewalk.
THE NO LEFT TURN WEEKEND STARTS AT 11 a.m. TODAY
This morning we have experienced on Hickory Trail a noisy, constant flow of departing traffic, since about 7:30 a.m., most of it traveling at an excessive speed. We look forward to relief.
Motorists will be prohibited from turning left on to South Dogwood Trail from U.S. Hwy. 158-east from 11 a.m. to 8 p.m. today and tomorrow.
Please feel free to comment below on the traffic conditions today in your stretch of Southern Shores. Thank you. Enjoy your day.
Fifteen new COVID-19 cases were reported in Dare County yesterday—a single-day case total that matches the second highest case total previously reported by the county.
The 15 people range in age from “17 and under” to “65 or older,” according to the Dare County Department of Health and Human Services dashboard, and bring the total number of cases diagnosed locally to 292.
The number of COVID-19 cases in Dare County has exactly doubled since July 6, when it was 146.
The only other time Dare County has reported 15 cases in one day was July 9, when the overall case total was 171. The single-day record case total occurred on July 1, when 16 new cases were reported: The total number of cases then was 113.
Dr. Sheila Davies, director of the DCDHHS, attributed these previous single-day jumps in positive COVID-19 test results to direct contact among people in large gatherings.
In her update Tuesday on the 31 new COVID-19 cases diagnosed since last Friday, Dr. Davies said that 23 of the new cases acquired the virus by direct contact, including “close friends,” “close contacts,” and family members. Only eight—about 25 percent of them—were presumed to have acquired it by community spread.
“The majority of cases,” Dr. Davies reported, “continue to experience mild to moderate symptoms, however, there are cases [that] have experienced severe illness. Currently, two residents remain hospitalized in critical condition.”
The Beacon had planned to start reporting only on a weekly basis about new COVID-19 cases, but yesterday’s spike is compelling. Twelve new cases were reported on Tuesday, but only five cases were reported on each of the previous two days.
The spike involved eight Dare County residents and seven nonresidents, whose ages are as follows:
*Seven are 17 and under (for an overall total of 44; about 15 percent)
*Four are between ages 18 and 24 (for a total of 75; about 26 percent)
*Three are between ages 25 and 49 (for a total of 98; about 33 percent)
*Three are between ages 50 and 64 (for a total of 45; about 15 percent)
*Two are age 65 or older. (for a total of 30; about 10 percent)
The current breakdown between men and women is about 50-50, with 147 males and 145 females having tested positive locally for the disease caused by the new coronavirus.
All 15 new cases are reported to be in home isolation. Three of the nonresidents are isolating in Dare County, while the other four have transferred to their home counties.
Appointments remain for next Tuesday’s COVID-19 antibody and diagnostic testing clinic at the Dare County Center, 950 Marshall Collins Drive, in Manteo. The event will start at 1 p.m. You may register for either or both test by calling (252) 475-5008, Monday through Friday from 8:30 a.m. to 5 p.m.
TUESDAY’S TOWN COUNCIL MEETING: We regret that we have not been able yet to give you a report on Tuesday morning’s Town Council session. Such is the lot of an unpaid blogger that life intervenes to prevent us from writing. Also, the audio on the Zoom teleconference was awful, making it very difficult for us to hear what was being said by everyone and necessitating our review of the You Tube videotape, which we have not had time to do yet.
We hope some of you will look at the videotape. The Town Council is virtually meeting in secret these days. The Zoom audience Tuesday varied between four and six participants, and only one homeowner attended the meeting in person.
We plan to have a post up by Sunday, at the latest.
The quick-take resolution that The Beacon previewed on Monday (7/20/20) passed unanimously, after considerable discussion between the always-well-prepared, thoughtful, and smart Town Councilman Matt Neal and Town Attorney Ben Gallop. (Thank you, Mr. Neal. You are an oasis.)
Work is under way by Town Manager Cliff Ogburn and Mr. Gallop to prepare a template for an easement that oceanfront property owners will be asked to grant voluntarily. Mr. Ogburn also plans to prepare a set of frequently asked questions to give to property owners about the temporary easements and quick take.
The Town Council expressed an interest in making every effort to acquire the easements needed for the 2022 beach nourishment project voluntarily from property owners, not through the court quick-take condemnation process.
In point of fact, however, until the General Assembly changes the N.C. quick-take statutes to authorize Southern Shores to use this form of eminent domain for beach nourishment, it will not be available to the town.
DON’T FORGET: THIS WEEKEND IS A NO-LEFT-TURN WEEKEND.
The left turn from U.S. Hwy 158 east on to South Dogwood Trail will be prohibited from 11 a.m. to 8 p.m. this Saturday and Sunday.
Southern Shores police will be on the scene to ensure zero tolerance.
The Beacon will be seeking residents’ comments about the traffic in their stretch of Southern Shores on both days.
A view north from the Hillcrest Beach clearly shows the area of the beach between the high water mark and the dunes for which the Town would seek easements along the shoreline.
“Quick take” is back before the Town Council, in a slightly different form than it was presented to Southern Shores property owners more than six years ago—when they successfully lobbied their state legislators to nullify a unanimous decision by the Town Council in favor of it that ignored public opinion.
Unlike the quick-take resolution that the Town Council approved unanimously on Feb. 4, 2014—despite hearing nothing but opposition from angry and distressed homeowners—the newly proposed resolution eliminates the possibility that the Town will be able to quick-take/seize private property in order to “establish access for the public to public trust beaches and appurtenant parking areas.”
The possibility that the Town would use quick-take condemnation—which is an expedited eminent domain—to confiscate private property near beach accesses and build parking lots on them incited an outcry in 2014 from Southern Shores homeowners.
People also were not keen on supporting the Town’s ability to quick-take private property for the purpose of doing beach nourishment when the Town had never contemplated, nor done any beach studies suggesting the need for, a beach nourishment project.
Newly elected Mayor Tom Bennett initiated the 2014 resolution, upon which the new resolution, known as Resolution 2020-07-03, is based, and current Councilman Leo Holland was among the five Council members who approved it.
Times have changed, even though two-fifths of the Council membership has not. At its June 16 meeting, the current Town Council approved “pursuing” beach nourishment, although it has yet to define the project’s scope.
Resolution 2020-07-03, which the Town Council will consider at its workshop meeting tomorrow at 9 a.m., seeks to guarantee that the Town will be able to secure easements to private oceanfront properties that are necessary for it to do the 2022 beach-nourishment project, according to Town Manager Cliff Ogburn.
As Mr. Ogburn explained to The Beacon, the easements would cover the length of the Southern Shores coastline, north to south, and be in the beach area that is between the mean high-water mark and the dunes.
(The meeting will take place in the Pitts Center and also be available via Zoom.)
Just like the 2014 resolution, Resolution 2020-07-03 asks the N.C. General Assembly to add Southern Shores to a statutory list of municipalities that may exercise quick-take condemnation over private property for enumerated public purposes, one of which is “engaging in beach erosion control and flood and hurricane protection works.”
That list currently includes Dare County and the beach towns of Duck, Kitty Hawk, Kill Devil Hills, and Nags Head. Among them, Duck has excepted “establishing the access for the public to public trust beaches and appurtenant parking areas” as a public purpose for which it may employ quick-take condemnation. Southern Shores would do the same.
Ideally, Southern Shores oceanfront property owners would voluntarily grant temporary easements to the Town so that contractors can haul or store the necessary construction equipment and supplies across and on their property. The Town would not have to resort to the quick-take condemnation process to gain use of the privately owned oceanfront it needs to use.
But in the event that oceanfront property owners do not permit access and use, the Town would like the option of obtaining easements “for as long as needed,” Mr. Ogburn said, through the courts.
QUICK TAKE EXPOUNDED UPON
We confess that we were taken aback when we read Resolution 2020-07-03 and realized it was about quick take, so we reached out to Mr. Ogburn with our concerns.
Our new Town Manager was very responsive and generous with his time, for which we are grateful. He expressed a desire to be open, honest, and transparent in all Town matters.
“Quick take” is an accelerated eminent domain process that significantly differs from what is considered “standard” eminent domain in that the landowner has no right to a hearing.
Through quick-take eminent domain, the public condemnor—in this case, the Town of Southern Shores—automatically takes title and the right to immediate possession of private property it seeks to “take” as soon as it files a complaint in the local superior court and pays a deposit.
The town only has to give the property owner 30 days’ notice of its intent to file the complaint—also called a declaration of taking. That’s it.
The property owner is not entitled to the 120-day process outlined in N.C. law for standard eminent domain, which includes the right to a hearing. The only recourse a property owner subject to a quick-take complaint has is to seek an injunction, and its effect achieves little more than delay.
Although the private property owner is entitled to “just compensation” for the property seized, in either quick-take or standard eminent domain, the condemning authority’s notice need not include an estimate of how much compensation is due. In fact, when the taking happens during beach nourishment projects, authorities typically estimate zero compensation because they claim that the owners will benefit from the improvements.
The current quick-take option is necessary, according to Mr. Ogburn, in order for Southern Shores to obtain a permit under the N.C. Coastal Area Management Act for its 2022 beach nourishment project.
“It’s actually a condition of the CAMA permit,” he told us, “that we have permission to be on private property.”
Quick-take eminent domain is a matter of N.C. statutory law. It is elaborated upon in the North Carolina General Statutes—quite poorly, in our opinion.
Two subsections, relevant to quick take, seem particularly designed to confuse. We will only cite these subsections here, for the benefit of those inclined to do legal research—secs. 40A-3(b) and 40A-3(b1)—and say that, as we read these subsections in conjunction with another statute that describes quick-take right of possession, there are five public-use “purposes” for which quick-take condemnation may be employed.
To distinguish quick-take from standard eminent domain, you must read NCGS 40A-3(b1) in conjunction with NCGS 40A-42(a)(2).
Although the N.C. quick-take statute appears on its face to allow the Town to seize property permanently, Mr. Ogburn assured us that the Town would not seek to quick-take more than a temporary easement, and only then if it has to. He sent us a link to an easement form deed used by Nags Head during its beach nourishment. See:
Mr. Ogburn said this deed is similar to what the other beach towns and Dare County have used, and it “describes what rights the Town of Southern Shores needs to acquire for the nourishment project.”
The term of the easement used by the Town of Nags Head is a little more than 10 years. Rather than reprint the “terms, uses, conditions and restrictions” of the easement, we suggest that Southern Shores oceanfront property owners and other interested parties read the Nags Head deed.
Being a skeptical and, yes, suspicious former lawyer inclined toward “what-ifs,” we are never going to feel comfortable about asking the state legislature to extend quick-take condemnation to Southern Shores for all of the purposes mentioned in the N.C. general statutes, except for establishing “access for the public to public trust beaches and appurtenant parking areas.”
When we read the applicable N.C. general statutes in context, we can envision problems that are not readily apparent on the face of Resolution 2020-07-03 and that are difficult to discern unless you read and understand all of the relevant statutes. We are concerned about both unintended consequences and future abuse.
We think quick take is an undermining of due process, no matter what public use purpose a town invokes. All eminent domain takings should go through the standard 120-day condemnation process.
But we are not taking a position for or against the proposed resolution. It is too complicated, frankly, and we do not expect the Town Council to reject it.
We defer to Southern Shores property owners on this. The N.C. General Assembly, which must pass language specifically extending quick take to Southern Shores, reconvenes for a short session Sept. 2. If property owners object, they may call their representatives.
THE ROLE OF THE SSCA
When we first read Mr. Ogburn’s summary in the meeting packet, we did not understand that the Town seeks an easement from every oceanfront property owner. We thought all that was necessary was sufficient access to the beach, and we were confident that the Southern Shores Civic Assn., which owns a large tract of private oceanfront property, as well as the 33 beach accesses, would cooperate with the Town to provide it.
The SSCA owns all of the private oceanfront west of the public-trust beach from just north of the Hickory Trail beach access to the Duck-Southern Shores line, including the wide-open Hillcrest Beach.
SSCA President Rod McCaughey informed us that the SSCA already makes three beach locations available to the Town for emergency-vehicle access: the Hillcrest Beach and the accesses at 166A Ocean Blvd./Trout Run and 24A Ocean Blvd. He expressed a willingness to provide more access for the beach nourishment project, if needed.
Because of Southern Shores’ history and development, which gave rise to the formation and empowerment of the SSCA, Southern Shores is not like any other beach town in Dare County.
In arguing against the 2014 quick-take resolution, homeowners repeatedly pointed out that the SSCA and individual oceanfront property owners would gladly accommodate the Town’s request for temporary easements. There was no need to resort to quick take, which, because it is legal condemnation, is inherently hostile.
We asked Mr. Ogburn in an email: “Would you consider approaching oceanfront property owners and securing their permission for easements first without asking the General Assembly to change the statutory language?”
He replied: “I think the reason for moving forward now on the legislation is to make sure we give ourselves enough time to get the easements ahead of the project. . . . If Council doesn’t seek the legislative approval now and waits until January, it could start to push the calendar. . . . I guess it depends on how confident the Council is that there is time to attempt to get voluntary easements and still go through the process of being able to condemn them.”
We thank Mr. Ogburn for his courtesy and his candor in responding to us.
We hope the Town Council will give the timing and the procurement of voluntary easements some serious thought before it summarily approves quick take.
ALSO ON THE AGENDA TOMORROW . . . is a public hearing on Zoning Text Amendment 20-01, which is a response by the Town to shut-down conditions created by the coronavirus pandemic. It gives the Town the ability to act on zoning matters in an expedited fashion.
The ZTA eliminates the requirement that 30 days must elapse between the filing of a zoning proposal and the Planning Board’s consideration of it and between the Planning Board’s action on a proposal and submission of its recommendation to the Town Council (an amendment of Town Code sec. 36-416). It also authorizes the creation of a new Town Code section on “temporary emergency zoning accommodations.” (Town Code sec. 36-177).
The need for temporary emergency zoning accommodations arose in the context of creating outdoor seating in public parking lots for restaurant customers, so as to support struggling restaurant owners and the “economic prosperity of the community.”
The Planning Board unanimously recommended ZTA 20-01.
As noted above, you may attend the Tuesday’s Town Council meeting in person, if you observe infection-control measures, or you may join via Zoom. The meeting ID is 945 3998 0368; the password is 806770.
If you would like to submit a public comment to be read aloud at the meeting, email Town Clerk Sheila Kane at skane@southernshores-nc.gov. Be sure to note in your subject line, “Public comment for July 21 Town Council meeting.”
You also may speak during the public-comment period via Zoom if you press the chat button and ask Ms. Kane to reserve time for you. The public-comment period is scheduled before all other business. Comments will not be accepted later in the meeting.
A collision occurred this morning on the Wright Memorial Bridge, just short of the end of the eastbound span. This photo was taken by a passenger in a westbound vehicle.
In case you were wondering, as I was, why we had no traffic coming through on northbound N.C. Hwy. 12 or along the cut-through route in Southern Shores–after a dreadfully busy morning–it was because of a major wreck around 11 a.m. on the eastbound span of the Wright Memorial Bridge.
As you can probably tell, traffic is now getting through, after a three-hour stoppage.
It was lovely while it lasted, wasn’t it?
Fortunately, no one was hurt in the four-vehicle pileup on the bridge, which apparently started when a pick-up truck hauling a trailer rear-ended another pick-up truck.
For more details, we refer you to coverage by OBX Today. If you’d like to comment on today’s traffic conditions in Southern Shores, please feel free to do so here and on the Facebook page.
Dare County had reported a total of 246 COVID-19 cases when Dr. Sheila Davies, director of the health department, posted her videotaped update yesterday. Of those 246, 140 are Dare County residents, and 106 are nonresidents.
What we find most significant about the case reporting of the past week is that two more local people were hospitalized with the disease, bringing the total current hospitalizations among Dare County residents to three.
According to Dr. Davies, two of these residents are hospitalized outside of the area. One nonresident is also hospitalized.
There also was a 71-percent increase during the past week in the number of people age 65 and older who tested positive locally for COVID-19.
On Friday, July 10, the Dare County Dept. of Health and Human Services dashboard showed that 14 people in the higher-risk over-65 age group had contracted COVID-19. As of yesterday, the number was 24. Overall, the age breakdown in the 246 cases is as follows:
Ages 17 and under: 38
Ages 18 to 24: 70
Ages 25 to 49: 78
Ages 50 to 64: 36
Ages 65+: 24
Based on the dashboard data, we roughly estimate the average number of cases being reported each day in Dare County to be 10.
According to Dr. Davies’s detailing of COVID-19 transmission, the majority of the people who have tested positive are being infected by direct contact with a person who has the virus.
Although she drew attention in her report yesterday to “an increased trend over the past few days of individuals who are unaware how they acquired the virus”—an indication, she said, of “an increase in community spread”—Dr. Davies’s recent numbers show that spread allegedly accounted for a little more than a third of the cases.
Just because people do not know how they acquired the virus does not rule out infection by direct contact.
The COVID-19 antibody testing that the Dare County DHHS is doing in partnership with Mako Medical Laboratories of Raleigh, so far, is turning up few positives.
According to Dr. Davies, 194 antibody tests were conducted of people who participated in Tuesday’s testing event, and only five proved positive.
The next COVID-19 diagnostic and antibody testing clinic will be held Tuesday, July 28, starting at 1 p.m., at the Dare County Center, 950 Marshall Collins Drive, in Manteo. You may schedule an appointment for the clinic, for one or both tests, by calling 252 475-5008, Monday through Friday, from 8:30 a.m. to 5 p.m.
COVID-19 STATEWIDE: We continue to monitor the key COVID-19 metrics on the state level, which are still moving in the wrong direction. Single-day case reports and hospitalizations continue to be high, with single-day hospitalization records being set and then quickly broken.
Today’s single-day case report of 2,481 is a new record high. Yesterday’s reported 1,180 hospitalizations also marked a record. Today, hospitalizations have been reduced by 26, to 1,154.
The single-day case reports have hovered around 2,000 since July 9. Dr. Mandy Cohen, Secretary of the N.C. Dept. of Health and Human Services, has said at media briefings that increased testing alone cannot account for the increased number of cases.
The positivity test rate continues to be consistently below 10 percent, which is a good sign. But Dr. Cohen would like to see the rate of positive COVID-19 tests from among the number of tests completed to be 5 percent or lower. The last time this metric dipped to that level was June 30
The NCDHHS dashboard today reports 1,629 deaths statewide.
We do not usually comment on individual behavior, but today we will say that until people “get” that it is the spread of COVID-19 that must be slowed, if not stopped, before the country can reopen and begin to function normally again, we will be stuck on the “pause” button, and cases and deaths will continue to climb.
Those people who believe that having to wear a mask and to observe physical distancing infringes upon their constitutional rights do not understand public health or the U.S. Constitution, which does not afford them the protection they think. (Talk to the ACLU, not The Beacon.) They are just hurting themselves.
Taco Bell has moved into the former Nu-Quality ice cream shop on U.S. Hwy. 158 in Southern Shores, in front of the Marketplace.
Taco Bell in Southern Shores is now hiring!
The Nu-Quality ice cream shop on U.S. Hwy. 158 in front of the Marketplace has closed—after less than two years in business—and Taco Bell is opening in its space. Its name went up on the building just today.
Deputy Town Manager/Planning Director Wes Haskett announced at last week’s Town Council meeting that the Town issued building and zoning permits to Taco Bell June 29 for its remodel of the Nu-Quality facility, which, he said, will undergo no structural changes.
The sale to Restaurant Property Investors IV, LLC, of Virginia Beach occurred on June 30, according to a special warranty deed on file with the Dare County Register of Deeds.
The franchisee is only installing new kitchen equipment and replacing existing signage, Mr. Haskett said. You may have noticed that the building was re-painted recently in Taco Bell’s signature purple.
Nu-Quality is of interest to us because the Town Planning Board and Town Council bent over backwards to accommodate owner Spiros Giannakopoulos’s application to develop a drive-through ice cream business on the small vacant lot at 5415 N. Croatan Hwy.
When Mr. Giannakopoulos proposed his development, it was illegal under the Town’s zoning code, which then required drive-through businesses to be located on commercial sites that are at least 2.5 acres in size.
The Nu-Quality/Taco Bell site, which sits between two banks—one of which is a First National—is only 18,260 square feet, or 0.42 acres.
According to county records, Mr. Giannakopoulos’s limited liability company, “5415 OBX-LLC,” purchased the site in late 2017 from First National Bank of Pennsylvania for $275,000 and granted the bank an easement.
Longtime Planning Board Chairman Sam Williams ensured, however, that inconvenient town law did not hinder Mr. Giannakopoulos, whose proposed 910-square-foot, flat-top-style drive-through ice cream shop was designed by architect Christopher Nason, then serving on the Town Council.
We recount the story. It ends with quite a payday for Mr. Giannakopoulos and any investors he may have.
The Williams Rescue
Operating as “5415 OBX-LLC,” Mr. Giannakopoulos applied to the Planning Board on March 14, 2018 for its approval of a conditional use site plan and zoning text amendment (“ZTA”) “package.” The ZTA, known as ZTA 18-05, proposed changing the Town’s commercial zoning to grant a special exemption to drive-through ice cream shops, and ONLY drive-through ice cream shops.
Prepared by Mr. Giannakopoulos’s representative, Quible & Associates of Kitty Hawk, ZTA 18-05 was not very ingenious, but it did not need to be. It simply stated that “drive-through facilities . . . other than Ice Cream Shops shall be located on a lot greater than or equal to 2.5 acres within the principal structure.” It then defined what an “Ice Cream Shop” is.
(We have a copy of the original ZTA, which you will not find on the Town website.)
Mr. Giannakopoulos, who is the proprietor of a Nu-Quality ice cream shop in Elizabeth City, appeared before the Town Planning Board on April 16, 2018.
The late Glenn Wyder, a Planning Board alternate who had just been appointed to the regular Board, immediately challenged the rather clumsy zoning exemption at this meeting, opposing its obvious preferential treatment. It was then that Chairman Williams stepped up to say that he had already worked out a solution.
The Beacon had just started publishing two weeks earlier, and we were not yet savvy about examining applications in the Town’s Planning Department before attending Planning Board hearings. Had we done so, we likely would have discovered Mr. Giannakopoulos’s connection to Councilman Nason, whose name did not come up in any public hearings about the Nu-Quality project until the last possible date.
To get around the formidable zoning obstacle, Chairman Williams rewrote the key provision of ZTA 18-05, which is to say he rewrote the Town Code. He proposed changing the Town Code to distinguish between small and large drive-through facilities.
Under Mr. Williams’s plan, a “small” drive-through customer-service facility could be located on a lot less than 20,000 square feet provided it fronted on Hwy. 158 and met other building requirements, all based on Mr. Giannakopoulos’s ZTA and tailormade for his ice cream shop.
A small drive-through facility had to have a “principal structure” that served items over “a general service counter for the customer to carry to a small seating area, to a motor vehicle, or off-premises.” (Now Town Code sec. 36-57.)
Mr. Williams’s ZTA 18-05 also specified that one parking space had to exist for every three customer seats, and each employee had to have an additional space. (Town Code sec. 36-163(3)(c)(12).)
Further, the drive-through facility could not exceed 2,500 square feet or be closer than 100 feet to any residentially zoned property, and it must allow for stacking of a minimum of six cars. (Code sec. 36-207(c)(2))
A “large” drive-through facility, under Mr. Williams’s scheme, would conform to the requirement of a location size that is equal to or greater than 2.5 acres, the then-current requirement for all drive-through facilities.
A Meaningless ‘Public’ Hearing
Mr. Williams’s unilateral, behind-the-scenes rewrite struck us as questionable when we heard it for the first time on April 16, 2018, as well as unduly preferential. But even more disconcerting to us was the lack of a public hearing before the Planning Board about the revised ZTA.
The Town had given notice of a hearing about Mr. Giannakopolous’s ZTA 18-05, and provided its text, but it had not noticed Mr. Williams’s version, which significantly altered it.
After a discussion of his new zoning plan with his Planning Board colleagues, the Chairman moved toward taking a vote on recommending it to the Town Council for enactment.
As we reported more than two years ago, Planning Director Haskett intervened to remind Mr. Williams that he needed to entertain public comment before he could take a vote. The Chairman was prepared to skip over that legal necessity.
But how could any members of the public comment on a ZTA that they had not seen or even contemplated?
Regardless, the Planning Board voted on the Chairman’s ZTA, and it passed 4-1, with Elizabeth Morey, who now sits as Mayor Pro Tem on the Town Council, dissenting without comment.
When we later asked Town Attorney Ben Gallop about the propriety of voting on Mr. Williams’s substitute ZTA without first giving the public notice of it and an opportunity to be heard on its merits, Mr. Gallop did not see a problem. He described what happened as ZTA-editing by the Planning Board—which is perfectly permissible—before taking a vote.
We did not agree. Although it retained much of the language of Mr. Giannakopolous’s ZTA, the new ZTA replaced the former’s intent and meaning with a different concept altogether, and it had an effect on more than just Mr. Giannakopolous’s business.
Indeed, it has directly led to Taco Bell’s move into Southern Shores. We doubt Mr. Williams would have promoted a change in the zoning to welcome this national chain of franchised fast-food restaurants to town.
Much later, after the Town Council had acted, we arranged to meet with Mr. Haskett for an interview at Town Hall. Upon arriving, however, we discovered that Town Manager Peter Rascoe was going to sit in on the interview, uninvited.
Mr. Haskett was forthcoming about meetings with Mr. Williams, the applicant, Mr. Rascoe, and other interested parties after the filing of the proposed ZTA, all of which he said were standard procedure.
But when we pursued the impact that Mr. Nason’s involvement may have had on the Town’s treatment of the Nu-Quality package, or whether Mr. Nason himself had participated in discussions, Mr. Rascoe quickly inserted himself into the conversation to ask if we were accusing him of “collusion.”
We did not pursue this line of inquiry further. Even when he was not being defensive, Mr. Rascoe specialized in giving non-answers to straightforward questions that he did not want to answer. The Beacon was still getting its feet wet then, and we were not prepared to take on Town Hall.
John Finnelli, the Planning Board’s Martin’s Point representative, explained at the April 19 meeting that the Town enacted the 2.5-acre zoning restriction because it didn’t believe a drive-through business “was appropriate for every location,” and it was “trying to keep congestion off of Juniper Trail.”
At the same meeting, Mr. Williams explained that he and Mr. Haskett had spent time examining the physical space and needs of the drive-through fast-food businesses across from the Marketplace in Kitty Hawk. He was careful to explain that he did not want to open the door to “burger joints” in Southern Shores and seemed surprised when his Board colleagues pointed out that “junior” burger joints could operate on the site.
Taco Bell is a Mexican food joint, not a burger joint, but we believe it qualifies as the type of business that Mr. Williams said he was trying to avoid.
Even more important: Unlike the fast-food restaurants across the street, access to the drive-through line at the new Taco Bell or any business occupying 5415 N. Croatan Hwy is directly off of busy U.S. Hwy. 158. There is no side street diverting traffic. We perceived this then, and still do, as a problem.
Town Council Approval; Williams’s ‘Retirement’
On May 3, 2018, a first reading of Mr. Williams’s/now 5415 OBX-LLC’s ZTA 18-05 was held before the Town Council, with Mr. Nason inexplicably absent. No mention was made of his financial interest in the Nu-Quality project.
The measure failed by a 3-1 vote, because Town Councilman Fred Newberry dissented. To pass on first reading the vote on the measure needed to be unanimous.
In dissenting, Mr. Newberry said he was concerned about the “process” that resulted in the Planning Board’s new zoning proposal and about possible traffic congestion at 5415 N. Croatan Hwy. (See The Beacon, May 3, 2018)
At the second reading on June 7, 2018, Mr. Nason was actually present, but recused himself. This was the first time that any mention was made in a public forum about his involvement in the Nu-Quality development.
This time the Town Council unanimously approved the small-large distinction in drive-through businesses in Southern Shores, and Mr. Giannakopolous received the zoning green light he needed. (A simple majority was all that was needed for approval.)
Ironically, before the second reading of ZTA 18-05, Mr. Williams announced that he would not seek reappointment to the Planning Board.
Mr. Williams served for nine years as the Planning Board chairman—from July 1, 2009 to June 30, 2018—and it is safe to say that he exercised a tight grip.
The announcement that he was stepping aside caught us by surprise. The Beacon had argued that he should be reappointed to another three-year term when his then-current term expired, but we discouraged his selection as chairman for a 10th year.
The Planning Board, which also sits as the Board of Adjustment, elects a chairperson and vice-chairperson at the start of every new fiscal year. During the years in which it repeatedly returned Mr. Williams to the chairmanship, it got into what we consider an indefensible rut.
Mr. Williams said he wanted to spend more time with his family, especially his grandson, as we recall he told us.
Just like the hearing for the first reading, the public hearing for the second reading of ZTA 18-05 focused on the Nu-Quality business and the desirability of ice cream, not on the change in the Town Code.
In all of his public comments, Mr. Giannakopolous emphasized that he was desirous of becoming part of the Southern Shores community and preserving the town’s family atmosphere and architectural traditions. He expressed an interest in moving with his family to Southern Shores and becoming a longtime business fixture.
We do not recall hearing anything further from Mr. Giannakopolous after Nu-Quality opened for business. Neither he nor Nu-Quality ever seemed to have a presence in Southern Shores, although the ice cream shop had its fans. The increased traffic we feared never materialized.
Of course, The Beacon brought up in June 2018 the what-ifs of Nu-Quality’s closure and the ensuing commercial fallout. It was easy to foresee that a mini fast-food restaurant would one day be operating on the small site, but it was also safe to say that no one expected the changeover to happen so quickly.
In recent conversations with Southern Shores property owners, we have discovered that many people thought Nu-Quality did in fact receive a special zoning exemption, not that the Town Code was changed.
As you might surmise, The Beacon was not in favor of changing the Town zoning code to accommodate an individual business owner who knew, or should have known, that the commercial property he had purchased was too small to operate the drive-through facility he had in mind. We do not believe a decision made by five elected officials to restrict drive-through businesses to 2.5 acres should have been so easily set aside just to feather the cap of a businessperson who decides to come to town.
We also did not like the prospect of traffic tie-ups on Hwy. 158 in front of it, or sudden, un-signaled left or right turns of vehicles into it—a prospect whose likelihood increases with a Taco Bell.
That Mr. Nason had a financial stake in the outcome just made the deal a bit more fragrant for us.
When the mini-Taco Bell opens on the site—it has to be “mini” because of the “small drive-through facility” Code requirements—Southern Shores will have its first chain fast-food restaurant, drive-through or otherwise, because the Town’s planning watchdogs wanted to support a Mom ’n’ Pop ice cream shop.
Go figure.
For the Record: $1.2 Million
According to Dare County records, Restaurant Property Investors IV, LLC, of Virginia Beach, purchased the property from 5415 OBX, LLC for $1.2 million, an outlandish sum.
Mr. Giannakopolous could never sell that much ice cream, but thanks to Sam Williams’s zoning change, he did not have to. He pocketed a nice profit. We wonder who else did.
The latest assessed value of 5415 N. Croatan Hwy. for tax purposes, according to the Dare County GIS, is $710,900.
The sale did not occur through the multi-listing service, according to a local realtor we consulted.
W. Brock Mitchell, an Elizabeth City-based partner in the Outer Banks firm of Hornthal, Riley, Ellis, & Maland, which also employs Town Attorney Ben Gallop, prepared the deed.
But, according to the face of the deed available through the Dare County GIS, the Kill Devil Hills firm of Gray & Lloyd, LLP, electronically transmitted it to the Dare County Register of Deeds. Attorney E. Crouse Gray Jr. is well-known for representing SAGA.
All we can tell you about purchaser Restaurant Property Investors IV, LLC, is that its registered agent is Alan M. Frieden, a Virginia Beach tax attorney who has been in practice nearly 50 years. Mr. Frieden is RA for a number of limited liability companies, all of which use the same mailing address.
The Southern Shores Beacon 