Tomorrow is the deadline for submitting your comments by email or U.S. mail in the Town Council’s beach nourishment survey. The Town Council will hold a public hearing during its workshop meeting next Tuesday on whether or not to move forward with a beach nourishment project in 2022.
The Tuesday, June 16, meeting will be held at 9 a.m. in the Pitts Center and will be open to attendance by the public, who will be required to comply with social-distancing guidelines for mitigating the potential spread of COVID-19. Seating will be limited.
You also may participate in the meeting via Zoom.
Please send your email comments to info@southernshores-nc.gov or mail them to the Town of Southern Shores, 5375 N. Virginia Dare Trail, Southern Shores, NC 27949. Make sure you include your property address(es) with your written remarks.
According to the Tuesday meeting agenda, emails will be forwarded to Town Council members at the close of business tomorrow:
The Beacon has been reporting on the continuing beach nourishment story for more than 15 months. For background, we refer you to blogs posted 2/28/19, 9/17/19, 9/20/19 (in this report, local oceanographers question the Town’s coastal engineering consultant’s “limited data”), and 1/19/20.
In a notice mailed to all Southern Shores property owners, the Town described a potential 2022 beach nourishment project as being funded possibly “through tax assessments which may include Municipal Service Districts and/or a Town-wide assessment that could potentially range from an additional $100 to around $3,000 to your tax bill depending on the value of your property, the location of your property, and its proximity to the ocean.”
What this means is that the Town is considering paying for its share of the estimated $14-$16.5 million project—Dare County would contribute monies, as well—through a special property tax assessment that imposes different rates on properties according to where they are located. The town would be divided into different designated “municipal service districts” for this assessment.
No formal analysis or report of the Town’s MSDs and tax rates has been done. The financial data upon which the Town is currently relying is strictly preliminary and for “discussion purposes only.” The Town cannot know how much your annual tax bill would increase.
The Beacon does not support the beach nourishment project, as proposed. We do not believe that all—or even most of the—3.7 miles of the Southern Shores coastline need additional sand fill.
We also believe that Southern Shores, which differs substantially from other beach towns because of its strong dune system, its lack of commercial property on the oceanfront, and its layout, should settle the beach nourishment question by referendum and its funding by a general obligation bond.
Much of Southern Shores is “proximate” to the oceanfront. That is a primary reason why people bought land here and built homes.
TRAFFIC COUNT DATA FROM APRIL, MAY, AND LAST WEEKEND
In addition to the public hearing on beach nourishment Tuesday, the Town Council will resume its discussion of the three no-left-turn weekends this summer that it approved, 4-1, at its June 1 regular meeting.
You may find of interest traffic-count data compiled in weekly increments by Police Chief David Kole from March 30 to June 7, and included in the Council’s meeting packet.
Until the week of May 25-31, vehicles on N.C. Hwy. 12 and the South Dogwood Trail cut-through route apparently were being counted at 12 different locations. During the June 1-7 week, a thirteenth location on Juniper Trail was added.
We believe the data, if accurate, speak for themselves. Assumptions as to why traffic may have increased on a given Saturday are not evidence-based and should not be made. There is no way for Chief Kole or anyone else to know why people come to, and leave the Outer Banks when they do. Speculation is inappropriate.
The Chief highlights in red on his data sheets those traffic-count numbers that may be erroneous because of a problem with the counter. While they are not many, they do call into question the reliability of this technology.
You may be interested to know that last Saturday, when the cut-through traffic was hideous, 10,002 vehicles were counted traveling north on N.C. 12 at the Skyline Road counter; 2,121 were counted going north at the South Dogwood Trail counter; and 2,472 were counted, going north on Seat Oats Trail, at 332 Sea Oats Trail, which is just north of the Hillcrest Drive-Sea Oats Trail intersection.
It would appear that Sea Oats Trail is the convergence point for traffic because the count last Saturday at 55 Hickory Trail (going north) was just 1,284, nearly 50 percent fewer vehicles than those counted at 332 Sea Oats Trail. Drivers appear to be jumping off of Wax Myrtle Trail, Hillcrest Drive, and Sea Oats Trail between East Dogwood Trail and Hillcrest Drive.
More counters are necessary to get a full picture of the traffic flow.
The data, as presented, do not distinguish between northbound and southbound traffic on the dunes roads or on Juniper Trail. So we checked the roadside counters themselves, which also register the speed of the passing vehicles. They are all positioned to count northbound traffic.
Of the seven people who tested positive for COVID-19 in Dare County between last Friday and yesterday, six acquired the virus by “direct contact with a family member or household contact,” according to a report by the Dare Co. Dept. of Health and Human Services.
Of these six, “some” of them acquired the virus by direct contact with an “asymptomatic positive case,” Dr. Sheila Davies, DCDHHS director, said in a videotaped message posted yesterday to the health department’s COVID-19 website.
The remaining case is deemed to be “community acquired,” Dr. Davies said, because no cause can be determined. This person is a non-resident who contracted the virus before coming to Dare County, she noted.
Four of the seven people are non-residents, of whom three are asymptomatic and in home isolation outside of Dare County. The fourth is hospitalized outside of the area.
As you may recall, three of the non-residents are young people under age 24, two of them just 17 years old. The fourth non-resident is between the ages of 50 and 64. (See The Beacon’s posts on 6/7/20.)
The three Dare County residents who tested positive for COVID-19 are all symptomatic, Dr. Davies said, and are recovering in home isolation.
Dr. Davies stressed three “takeaways” from a review of the seven positive cases in her message:
Acquisition of the virus by direct contact with an asymptomatic case “reinforces the importance of wearing masks and maintaining social distancing.”
The spread of the virus occurs “quickly among family members and members within the same household.”
The number of direct contacts associated with the latest positive cases is greater than previously seen with positive cases, an increase that Dr. Davies attributes to a relaxation of infection-control restrictions in phases one and two of the economic reopening.
The increase in the number of direct contacts means the the DCDHHS’s job of contact tracing is more time-intensive.
“From family gatherings to social parties and backyard barbecues, the number of direct contacts individuals have is on the rise,” Dr. Davies said. “While this is to be expected, please note this increases your risk of exposure.”
Dr. Davies said she is continuing to work on plans for the “next community testing clinic,” which will involve both diagnostic and antibody testing for COVID-19. An antibody test requires a blood sample to be drawn indoors.
The DCDHHS director will announce details of the testing clinic as soon as they are available. The next COVID-19 update on the website will be Friday.
The early stages of the South Dogwood Trail sidewalk project, which Anlauf/Deel designed.
Kitty Hawk engineer Joe Anlauf has worked for the Town of Southern Shores for more than 20 years, according to the man himself.
It is time for a change. The Town Council needs to hire a different engineer.
It actually is long past time for a change. The Town should have ceased working with Mr. Anlauf after the canal dredging project fiasco, which now-Mayor Tom Bennett oversaw as the contractual project manager.
Mr. Anlauf, who operates a sole proprietorship, does not mention the troubled canal project, in which he played a critical design role, in the professional experience he includes in a Statement of Qualifications (SOQ) that he recently submitted to the Town.
On April 27, thanks to the three new Town Council members, the Town issued a Request for Qualifications (RFQ) to find a “qualified N.C. licensed professional engineer” to provide “ongoing general professional engineering, environmental, surveying and related services” upon demand.
Four engineering firms, including Mr. Anlauf’s firm, which has a “supporting engineering” arrangement with Deel Engineering, PLLC of Kitty Hawk, replied by submitting statements of qualifications.
The consensus at the Town Council’s June 1 meeting, during which the hiring of a new engineer was discussed, seemed to be that the applicants are all equally qualified. Town Councilman Matt Neal, a builder, said he knew them all.
Mr. Anlauf’s qualifications and interpersonal communication style have been called into question since the canal-dredging project was completed in 2014, as we will explain below.
In 2015, Mr. Anlauf was one of the defendants, along with the Town, who settled a lawsuit filed against them by the original dredging contractor for a wrongful discharge.
Nonetheless Mr. Anlauf has been rubberstamped by a Town Council that has preferred the comfort of cronyism over an expansion of opportunity to other qualified candidates, including those that are minority-owned.
It is time for a change.
ENGINEERING CONTRACT AND RFQ
Southern Shores has a contract until June 30 with Deel Engineering, not with Mr. Anlauf. The contract dates to June 2016 and was originally for three years. A simple majority of the Town Council extended it last June for a year.
Although he is not a contractual party, Mr. Anlauf is often referred to by Town staff and Town Council members as the “Town Engineer.” In fact, that is how he refers to himself in his SOQ. Mr. Anlauf typically runs the Town’s Capital Infrastructure Improvements Planning (CIIP) Committee meetings.
Mr. Neal and Mayor Pro Tem Elizabeth Morey sought at last week’s meeting to postpone a decision on the new engineer until new town manager Cliff Ogburn could weigh in.
As the longtime town manager of Nags Head, Mr. Ogburn—whose starting date, Mr. Neal said, is June 22—has worked with both a staff and contractual engineers and would have the experience and knowledge to distinguish among the applicants, something the Town Council, other than Mr. Neal, cannot do.
But Councilmen Leo Holland and Jim Conners thought it was imperative that an engineer be hired by the Council’s June 16 meeting, even though there is no engineering design work to be done immediately after the June 30 expiration of the Deel/Anlauf contract.
The Beacon questions this rush to hire an engineer. We also question the Town’s imposition of a ridiculously short amount of time to reply to the RFQ, which seems onerous to us in the detail it required. The applicants’ qualification packages were due within 24 days of the RFQ’s issuance.
We would like to ask Mr. Ogburn if the Town’s RFQ contains standard requirements and if the 24-day deadline is typical of similar RFQs that he has issued.
“I would like to hear his opinion,” Mr. Neal said at the meeting about Mr. Ogburn evaluating the applicants.
Said Ms. Morey: “Me, too.”
It is Mr. Ogburn, not the Town Council, who will have “direct interface,” as Mr. Neal said, with the new engineer.
We agree.
Ms. Morey also said she had not had time to do her “due diligence” and carefully evaluate the applicants. The new flood ordinance had consumed much of her time.
Small wonder. We obtained the four SOQs pursuant to a public records request. The Council had about a week to read and process 140 pages. That Mr. Holland referred at the meeting to the written “presentations” by the applicants, rather than to their qualifications and project experience, is not surprising, either. Visuals can be eyeballed.
As The Beacon reported 6/2/20, Councilman Conners shockingly interrupted Mr. Neal with a motion to approve “Deel/Anlauf”—as he referred to Anlauf Engineering’s SOQ— when Mr. Neal was in the middle of making a motion to table a decision on the engineer RFP until a later date.
Mayor Bennett seconded Mr. Conners’s blunt and inappropriate motion—supporting his former canal dredging partner—after what may have been a withdrawal by Mr. Neal of his motion.
We could not hear a withdrawal in real time during the Zoom videoconference, and we cannot definitely hear one on the meeting videotape. All we know is that the Mr. Conners’s breach in protocol was eventually “cured” by a unanimous tabling of Mr. Conners’s motion until the Council’s June 16 workshop meeting.
QUALIFICATIONS THAT CAN BE CONSIDERED
Mr. Neal pointedly asked Mr. Conners when the latter made his motion what makes the Anlauf/Deel application “superior” to the other three applicants, which include Coastal Engineering & Surveying, Inc., of Kitty Hawk; Albemarle & Associates, LTD., of Kill Devil Hills; and American Engineering Associates, a Pennsylvania-based firm that has an office in Kill Devil Hills.
Carlos Gomez, the president and owner of Coastal Engineering & Surveying, is a Southern Shores homeowner who has served on the CIIP Committee, as well as the Town Planning Board.
Mr. Conners replied that “they’re all very qualified,” but he likes the engineering team’s “fees” and “the history that the Anlauf/Deel firm is offering.”
Mayor Bennett actually referred to the applicants as candidates who have submitted “quotes.” But fees and quotes are not what an RFQ is about. An RFQ is not about the “low bidder.”
In fact, N.C. law specifically prohibits local governments from taking fees into consideration as part of their selection process for engineers, architects, and other construction contractors. While towns may request “unit price information,” they may not make their choice of a contractor on the basis of “costs or fees.” (N.C. General Statutes sec. 143-64.31(f).)
The Town’s RFQ (in paragraph 4(t)) requires applicants to submit a “proposed unit price,” which it defines as an “hourly rate,” for “design, bidding and contracting, and monitoring and inspecting infrastructure construction projects.” We believe this requirement contravenes state law.
An hourly rate is clearly a “fee,” not a unit price. The Town Council’s choice of its next engineer cannot depend on hourly rates. The choice must be based on demonstrated competence and qualifications.
Mr. Gomez certainly has history with Southern Shores and its road system, as may some of the other team members of the applicants’ firms.
Let’s look further at some of Mr. Anlauf’s “history.”
THE ANLAUF HISTORY
Mr. Anlauf’s insistence upon a defective design of a hydroclonic dewatering system for the Southern Shores canal dredging project resulted in substantial delay and added to an accumulation of costs that doubled the price tag for the $1.7 million canal project.
Mr. Anlauf prepared this design with his former employer, Quible and Associates, P.C.
We are not saying that Mr. Anlauf and Quible are solely responsible for the additional costs and delay of the 7.5-mile canal project, but they significantly contributed to both.
The Town Council started planning the canal-dredging project in 2003 and hired Quible and Mr. Anlauf as the design engineers and now-Mayor Bennett as contractual manager of the project. Dredging should have started in 2006-2007, but it was 2009 before it finally did, and the project did not wrap until February 2014.
One key reason was that the dewatering design upon which both Mr. Anlauf and Mr. Bennett insisted was unworkable, and it had to be replaced. Other problems, including those in the permitting process, also occurred.
The original dredging contractor, Sampson Contracting, Inc., sued the Town, Quible, Mr. Bennett, Mr. Anlauf, and others in 2013 over what it alleged was a wrongful termination by the Town.
The final cost of what was envisioned to be a maximum $2 million canal-dredging project was $3,465,377, according to a report by former Town Manager Peter Rascoe.
The Town also paid costs related to the litigation, including $123,500 of a $248,000 settlement that the defendants paid to Sampson. The Beacon does not know how much of the settlement Mr. Anlauf paid.
More recently, Mr. Anlauf announced at a Town CIIP Committee meeting that a section of Chicahauk Trail that was repaved just 10 years ago is already showing “alligator cracking” and will need to be replaced much earlier than contemplated. Mr. Anlauf designed this rebuild; he is in charge of all of the Town’s road engineering work.
While Mr. Anlauf sought at the December meeting to attribute the failures in asphalt to an asphalt mix standard “mandated” by the federal government, known as the Superpave system, The Beacon learned in subsequent research that engineers and road contractors have to adjust Superpave to the specific environmental conditions of their geographic areas. They also must consider, and allow for, the type and amount of traffic to which a pavement will be subjected. (See The Beacon, 12/21/19.)
Mr. Anlauf’s professional assessments and decision-making regarding this road rebuild should be scrutinized, as a matter of quality control, but the members of the committee—including co-chairpersons Mayor Bennett and Councilman Conners—showed no inclination to do so.
The Beacon believes that other road rebuilds Mr. Anlauf has designed and overseen should be evaluated for their sustainability, as well. The “new” Hickory Trail between Hillcrest Drive and East Dogwood Trail is not in very good shape after just 10 years, either. (A Chicahauk resident reminds us of the “over-engineered” rebuild of Gravey Pond. We have lost track of how many times the dipsy-doodle Chicahauk bridge has been corrected.)
We further question why Mr. Anlauf designed curbs in conjunction with the South Dogwood Trail sidewalk that have narrowed the road in a number of locations, making traffic flow more hazardous. The curbs are not adjacent to the walkway.
Since December, Councilman Neal has served as co-chairperson of the CIIP Committee, replacing Mayor Bennett. We are hopeful that he will push for a professional review of the Chicahauk Trail paving project. Roads should last longer than 10 years.
INTERPERSONAL RELATIONS
Four years ago, when Mr. Anlauf’s previous contract expired, then-Town Council members Gary McDonald and Fred Newberry sought to replace him as “Town Engineer.”
They strongly objected to what they saw as Mr. Anlauf’s hard-nosed tactics with homeowners over tree removals on Fairway Drive and South Dogwood Trail and his arrogant demeanor. The 2016 contract presented to the Town Council for approval appeared to be with Deel, not with Anlauf, which satisfied Mr. McDonald and Mr. Newberry, who voted to approve it.
They were unaware that Deel and Anlauf came as a package deal and felt circumvented.
Mr. Anlauf’s name only appears in an hourly rate schedule for 2016-17 that was appended to the contract. It states: “The rates reflected hereon describe the current billing rates for Deel Engineering, PLLC and Anlauf Engineering, PLLC to perform work in the Town of Southern Shores.” It also refers to the entity, “Deel/Anlauf Engineering, PLLC,” but the only contracting party is Deel.
The Town Council extended the Town’s three-year contract with Deel and Anlauf last June for one year—this time over a strong objection by Mr. McDonald and Mr. Newberry. Although interested in considering other local engineers, former Councilman Chris Nason, an architect, voted with the Mayor and Mr. Conners for the extension.
The Mayor and Mr. Conners tried again recently to extend the contract for another year, but this time they did not have a third Council vote to give them a majority.
To their credit, Mr. Neal, Ms. Morey, and Mr. Holland opposed the extension.
Like Mr. McDonald and Mr. Newberry, The Beacon not only objects to Mr. Anlauf having such a tight grip on the Town’s engineering projects for such a long time—especially in light of the canal-dredging fiasco and, more recently, the failed asphalt in Chicahauk—we also take issue with Mr. Anlauf’s treatment of, and attitude toward homeowners.
Mr. Anlauf has been described by members of the public—including myself, in full disclosure—as rude, arrogant, and condescending.
South Dogwood Trail homeowner Paulette Jones found him to be just that when she called Town Hall to complain about a large camellia bush in her front yard being removed during the sidewalk construction, without notice, and was referred to Mr. Anlauf.
Mrs. Jones should not have been subjected to Mr. Anlauf’s rudeness and condescending manner. When she spoke with The Beacon later about the incident, she was furious.
The Southern Shores Town Engineer should treat homeowners with respect and courtesy, regardless of what he thinks about a complaint. Anything less is unacceptable. He represents the Town, not himself, in dealings with the public.
It is time for a change.
THE CANAL DREDGING LAWSUIT
Dredging contractor Sampson Contracting, Inc., contended in its lawsuit that it was “scapegoated” for the flawed Quible-Anlauf dewatering design that was never going to work, but upon which Mr. Bennett and Mr. Anlauf insisted.
Sampson alleged that the Town required the dredging contractor to use Mr. Anlauf’s unworkable design, after more traditional dewatering methods had been permitted.
The Town acknowledged no error in judgment or design on the record–not of which we are aware.
Emergency Town Council meetings were held in January and February 2010 to address the struggling canal-dredging project. After a closed session held during an emergency meeting on Feb. 6, 2010, the Town Council—led by Mayor Hal Denny—declared Sampson in default of the dredging contract.
Mr. Bennett, who attended the privileged session between the Council and the Town Attorney, had sought the default declaration. Mayor Denny also invited Mr. Anlauf and a third contractual party to attend the closed session.
Previously, in the January meeting, the Council had authorized using geotubes, instead of a hydrocyclone machine, to dewater the canals.
In its lawsuit, Sampson called the Quible-Anlauf hydrocyclonic dewatering system “a catastrophic failure of epic proportion.”
A geotube-based dewatering system, which was the method that Sampson claimed it wanted, and it expected to use, effectively finished the job.
The Town Council emergency meeting minutes are inadequate to determine exactly what occurred among the contracting parties, and The Beacon has no intention of launching an investigation now.
We did come across a Feb. 1, 2010 Outer Banks Voice article in which Mr. Bennett said, “[The hydrocyclone gets] most of the heavier spoil, but leaves fine silt in the water that needs to be cleared out in a settling pond before it can be returned to the canals.”
The Voice reported in the same article that “[Joe] Anlauf said he still believed the hydrocyclone method would work and would like to attempt it again before looking into other solutions.”
The Town hired Byrd Brothers Emergency Services of Wilson to step in after Sampson.
The hydrocyclone machine was not a feasible method of dewatering dredged material. Mr. Anlauf’s insistence that it was cost Southern Shores dearly.
It is a shame that an independent investigation of the handling of this project was never done. There should have been accountability to the public.
TIME FOR A CHANGE
In expressing some preference for “Deel/Anlauf” last week, Councilman Holland said, “I’d just as soon dance with the person I know,” to which Mr. Neal quickly replied: “That’s boring.”
Mr. Holland is a well-intentioned person who seeks to do the right thing, but we disagree with him in this instance. How “comfortable” he feels with Joe Anlauf is not relevant to the decision-making process. When a government contractor becomes a familiar favorite, it is past time for a change.
The Town is not, and should never be run as, a private club. It should have an open door of opportunity to people in the business community. It should not show biases.
Being “comfortable” with someone because of familiarity is a bias that predisposes an elected official to a candidate for subjective reasons and discourages newcomers from knocking on the door.
Contractors should never have a lock—exclusive control—over governmental business for 10 years, much less 20. Competition and change are healthy. Different professionals with their own fresh perspectives, talents, and skills should be welcome and encouraged to participate in the operations of a town run openly and democratically.
While we would prefer to leave the decision to Mr. Ogburn, we would approve the Town Council’s qualifications-based choice of any engineer other than the current one.
“Continued discussion of Town Engineer Contract” is the second item of business on the Town Council’s agenda for next Tuesday’s workshop meeting at 9 a.m. in the Pitts Center. The public hearing on beach nourishment is the fourth and last item.
Dare County has reported three more COVID-19 cases today, bringing the day’s total to six cases, and the overall total to 32 cases, according to the Dare County Dept. of Health and Human Services’ dashboard.
Unlike the three earlier reported cases—all of whom were young, with two being just 17 years old—all three new patients are between the ages of 50 and 64, the dashboard reports.
Two of the new patients are Dare County residents and are currently in home isolation. The third patient has been transferred to his/her home county for isolation.
Two of the newly recorded cases are women, and one is a man. The three cases reported earlier today were those of two males and one female. (See The Beacon’s preceding post.)
We hope that Dr. Sheila Davies, the director of DCDHHS, will provide more details during her videotaped update Tuesday about the means of viral transmission and the testing circumstances of each case.
Ten people have tested positive for COVID-19 in Dare County during the past week–more than 50 percent of the total number of positive tests during the previous three months.
Three new COVID-19 cases have been added to the Dare County Dept. of Health and Human Services’ dashboard since yesterday, all of them young non-residents who have been transferred to their home counties for isolation.
Two of the three non-residents who tested positive locally for COVID-19 are male, and two of them are 17 years old, according to today’s dashboard data. One is between the ages of 18 and 24.
The total number of cases in Dare County is now 29.
Seven people tested positive for COVID-19 in Dare County during the past week. Of the seven, five were non-residents. Four were female, and three were male.
Dr. Sheila Davies, director of the DCDHHS, announced last week that a third local testing event would be held soon and would include antibody testing, as well as testing for COVID-19 infection.
Dr. Davies will post a videotaped message update about COVID-19 in Dare on Tuesday.
The cut-through traffic flowing through Southern Shores from South Dogwood Trail to East Dogwood Trail to Hickory Trail has been continuous for hours now, with nary a driver stopping at the stop sign at the East Dogwood-Hickory intersection. I could not walk my dog because he was terrified by the unceasing onslaught of vehicles.
Please let me know what has been happening, and still is happening, on the roads north of Hickory Trail. With the volume of traffic I am seeing, there must be long backups.
The cut-through traffic today is reminiscent of traffic we usually see later in June after the kids are out of school. I am seeing plenty of young children in the vehicles passing through.
It would be encouraging to see a police vehicle somewhere near the East Dogwood-Hickory intersection to remind drivers that “STOP” does not mean run the sign.
***
UPDATE AT 7 p.m. SUBMITTED BY A BEACON READER: “At this time, WAZE shows traffic backed up on Hillcrest by the hill near the tennis court to the Hillcrest/Sea Oats stop signs and again on Sea Oats from 11th to Rte. 12. Rte. 12 is backed up from Chichahauk north to Duck.”
Please read the other comments that came in from readers after 7 p.m. Clearly, we experienced a lot of gridlock yesterday in the residential areas from the afternoon until darkness.
My thanks to everyone who reported on conditions they observed.
A Dare County woman between the ages of 25 and 49 has tested positive for COVID-19 and is the 26th case reported locally, according to today’s Dare County Dept. of Health and Human Services’ dashboard update.
The young woman is classified in the dashboard as having an “active” case and is reported to be in home isolation. She is the second female Dare County resident between the ages of 25 and 49 to test positive for COVID-19 in the past two days. The other, Case No. 25, is also in home isolation.
Dr. Sheila Davies, the director of DCDHHS, gives a videotaped message update on COVID-19 in Dare County each week. We expect Dr. Davies to comment on Case No. 26 next Tuesday.
Although The Beacon has not been reporting daily the number of statewide laboratory-confirmed COVID-19 cases, completed tests, hospitalizations, and deaths recorded on the N.C. Dept. of Health and Human Services’ dashboard, we have been monitoring these statistics.
In general, the number of confirmed cases has increased substantially, with an increase in the number of tests being performed. In the past three days, for example, more than 1,100 cases have been reported statewide: 1,189 on Thursday; 1,289 on Friday; and 1,370 today. The positive-test result rate for the respective days was 6.2 percent; 9.3 percent; and 9.0 percent.
The State recorded its highest positive-test rate in months on June 1 when 12 percent of the completed tests were confirmed to be COVID-19-positive.
Hospitalizations for COVID-19 patients have steadily increased in recent weeks and are today at a high of 708, according to the NCDHHS dashboard.
More than 992 people have died in North Carolina of the novel coronavirus’s severe respiratory disease. That’s more than double the number of people who had died just a month ago.
Phase Two of Governor Roy Cooper’s reopening expires at 5 p.m. on Friday, June 26.
OPEN MEETING; BEACH NOURISHMENT HEARING JUNE 16: Please note that the Southern Shores Town Council is opening its 9 a.m. June 16 workshop meeting, during which a public hearing on beach nourishment will be held, to the general public, after months of exclusion because of the Governor’s restrictions on mass gatherings.
The Town announced in its newsletter yesterday that the seating in the Pitts Center will be arranged at the workshop meeting to accommodate six-foot distancing between attendees and that public seating will be limited.
When the number of staff and Council members at the June 1 meeting clearly exceeded 10 people, Interim Town Manager Wes Haskett announced at the meeting that the Governor’s Executive Order 141, which took effect May 20, excludes municipal governments from a mass-gathering limit.
The Beacon would have preferred that the Town had implemented social-distancing accommodations for members of the public at its June 1 meeting, when the Council considered the no-left-turn initiative. There are no adequate substitutes for an in-person audience and speakers.
We also weary of the poor sound quality of the Zoom videoconferences. Neither Police Chief David Kole nor Fire Chief Ed Limbacher–or whoever substituted for him on June 1; the Mayor did not introduce the speaker–has been visible or clearly audible during the Zoom meetings. They have been consistently off-camera and out of the effective reach of microphones.
Non-resident Dare County property owners Joseph and Linda Blackburn of Richmond, Va. claim in the class-action complaint they filed May 15 against Dare County and the county’s six beach towns, including Southern Shores, that they “lost the fair market rental value and value of use of [their Dare County] property” during the 45 or more days that they were prohibited from accessing the Outer Banks because of the COVID-19 emergency.
These are the financial damages they claim: the loss of “fair market rental value” and the loss of use value. They are not claiming specific rental income losses.
If the Blackburns, who own a home in Frisco, or any “similarly situated individuals” in the class of plaintiffs—which has not yet been certified by the federal court—suffered any income loss, it was more likely due to the County’s two-month-long visitor ban, not the access restriction on non-resident property owners.
The Beacon has finally obtained, and perused, a copy of the complaint filed in the U.S. District Court for the Eastern District of North Carolina by the Blackburns’ attorney, Lloyd C. (“Clif”) Smith, Jr., of Pritchett & Burch, PLLC, of Windsor.
According to the complaint in Blackburn et al v. Dare County and the towns of Duck, Southern Shores, Kitty Hawk, Kill Devil Hills, Nags Head and Manteo, the plaintiffs allege that the County’s ban on non-resident property owners’ access between March 20 and May 4-8 constitutes:
“a temporary complete taking by regulation by the governmental units, which are the Defendants herein, of the Plaintiffs’ property rights as the Plaintiffs had no rights whatsoever to and in their real property in Dare County but were subjected to continual [sic] taxes and such utilities bills as may be required.” (Paragraph 17 of the complaint)
How do you quantify in dollars the value of “a temporary complete taking” of property?
The complaint suggests that you look at property taxes and utilities paid by the plaintiffs during the period of access denial.
In a Pritchard & Burch intake form titled, “New Client Questionnaire Dare County Temporary Taking,” which The Beacon also obtained, Mr. Smith seeks the amount potential plaintiffs paid in 2019 Dare County property taxes and their average monthly income for renting their properties, as well as their water and utility bill payments for March, April, and May.
The suggestion is that the value of what the Blackburns and “similarly situated individuals” lost when they could not access their properties would be the sum of a prorated amount of annual property tax, water and utility bills for the six weeks, plus such other damages as may be determined. (“Similarly situated” is a standard legal definition for plaintiffs in a class.)
Mr. Smith asserts in the complaint that the matter in controversy exceeds $5 million.
Dare County has insurance in the amount of $2 million, according to an informed Beacon source who requested anonymity because of potential personal consequences. The County also has a substantial reserve fund, the amount of which we will not cite without official Dare County corroboration.
The Blackburns’ lawsuit is what all attorneys recognize as a “1983” claim, which is brought pursuant to title 42 of the United States Code, chapter 21, section 1983. (The U.S. Code codifies all federal statutes.) Section 1983 is invoked in federal court for alleged violations of constitutional rights by States, including local governments and their officials.
The specific violation alleged here is a governmental taking of private property—albeit a temporary taking—without due process of law.
The Beacon has learned that personal-injury litigators, Corey Ann Finn and Stuart Wade H. (“Wade”) Yeoman, of the Louisville, Ky. firm of Finn & Yeoman, will be working with Pritchard & Burch on the case.
Litigators Christopher Geis and Brian F. Castro, who are in the Winston-Salem office of the national law firm of Womble Bond Dickinson, have entered appearances in the lawsuit on behalf of Dare County.
The case, no. 2:20-cv-00027, was assigned to U.S. District Court Judge Louise Wood Flanagan and referred to mediation on May 19.
According to Pritchard & Burch’s and Finn & Yeoman’s client retainer agreement, the attorneys are to be compensated for their services by the greater dollar amount of one of the following two methods, and we quote:
“The attorneys will diligently seek reimbursement and apply to the court for an award of fees and costs to be paid by defendants, and attorneys will further seek such reimbursement of costs and attorneys’ fees by way of any settlement. Client understands that such an award of attorneys’ fees and costs may be dependent upon the contingencies of the settlement process, court approval, and various methods of calculation including hours expended, costs advanced, etc. and that the final amount is within the discretion of the court and/or the defendant for approval.” OR
“Attorneys will be compensated on a contingent fee basis calculated as follows: “A maximum of thirty-three and one-third percent (33 1/3%) of the gross amount of the recovery made on behalf of the client by way of settlement, verdict, or other form of recovery.”
The retainer contract also specifies that any settlement, verdict, or judgment on behalf of the plaintiff class will first be reduced by “costs” that have been advanced by the plaintiffs’ attorneys and have not been paid by the defendant(s). These costs are not spelled out in the contract.
IN OTHER NEWS ABOUT LITIGATION STEMMING FROM THE COUNTY’S ACCESS PROHIBITIONS . . .
OBX Today reports today that a group of vacation-home renters “signed a retainer” yesterday with a Greenville law firm to represent them in a class-action lawsuit against Surf or Sound Realty of Hatteras Island for its failure to refund security deposits and other monies they paid for rentals that were canceled because of Dare County’s ban on visitor access during the COVID-19 emergency.
The group reportedly has hired the personal-injury firm of the Law Offices of James Scott Farrin of Greenville to help them obtain the refunds that Surf or Sound has withheld.
Surf or Sound’s refusal to return monies to the thwarted vacationers contravenes an opinion issued earlier this year by the N.C. Real Estate Commission, which said that vacation property owners must return funds to lessees who could not access their vacation homes.
Clif Smith, who is representing the non-resident property owners in the Blackburn lawsuit, is representing Surf or Sound Realty. According to OBX Today’s report, Mr. Smith contends that Dare County and the Outer Banks’ town governments should refund any monies advanced, not Surf or Sound and the homeowners it represents.
According to OBX Today, Surf or Sound originally told canceled vacation renters that they would be receiving refunds, but then it reversed its decision in May, offering to book later alternative vacation weeks instead.
The N.C. Real Estate Commission ruled March 19 that the N.C. Vacation Rental Act mandates the return of monies to visitors for vacations to be held in houses that cannot be “provided.” But we could not find a provision in the statute that requires a landlord to do more than provide “fit and habitable” premises.
N.C. Attorney General Josh Stein supported the Real Estate Commission’s ruling.
The Commission is an independent state agency that licenses and regulates N.C. real estate agents.
A court may give deference to an opinion by the N.C. Attorney General and/or the N.C. Real Estate Commission, but it is not bound by it.
Of the 205 people tested for COVID-19 this week during the drive-thru event in Nags Head, 204 received negative results, and one had an invalid specimen that was inadequate for testing, according to an update posted today on the Dare County Dept. of Health and Human Services’ website.
The DCDHHS also reported that planning for a third testing event, which will include both diagnostic and antibody testing, is under way. It said information will be released later this month.
Earlier this week the DCDHHS reported upon the positive test results of a non-resident male, between the ages of 50 and 64, and a resident female, between ages 25 and 49, as COVID-19 cases no. 24 and 25 on the DCDHHS’s newly expanded dashboard.
The man “is currently asymptomatic and remains in home isolation in Dare County,” the DCDHHS confirmed in its update today. “This individual acquired the virus through direct contract with a family member.” (One can surmise that he has family living in Dare County.)
The woman, who is also recovering in home isolation, is considered to have acquired the coronavirus through community spread, the DCDHHS said, because “it cannot be determined how [she] acquired the virus” otherwise.
The health department has identified and notified all direct contacts associated with both of these cases.
The good news is that the person who tested positive for COVID-19 last month and has been in the hospital for more than three weeks has now recovered, according to DCDHHS’s update.
The DCDHHS’s new data dashboard, which gives demographic and isolation details for all 25 COVID-19 cases in Dare, is available at www.darenc.com/covid19.
A 25th person has tested positive for COVID-19 in Dare County, according to today’s Dare Co. Dept. of Health and Human Services’ dashboard.
This individual is a female resident of Dare County who is between the ages of 25 and 49 and is in isolation at home, according to dashboard data.
This young woman’s case brings the total number of active COVID-19 cases in Dare County to three. The two others have had active cases for more than three weeks: One is in isolation in a hospital; the other is in home isolation. (See The Beacon, 6/3/20.)
Overall, 19 Dare County residents and six non-residents have tested positive for COVID-19 in Dare County.
Dr. Sheila Davies, the director of the DCDHHS, provides videotaped updates about COVID-19 locally on the health department’s website every Tuesday. The Beacon anticipates that Dr. Davies will provide more details next Tuesday about the two people who tested positive this week—as well as others who may test positive in the interim.
As more people arrive on the Outer Banks for vacations, and more interaction occurs among people who are not members of the same household, it becomes even more important for people to observe infection-control measures such as distancing themselves by six feet from others and wearing face coverings.
Please observe the three W’s of wash your hands frequently; wait six feet; and wear a face covering.
Reducing COVID-19 transmission is so simple to accomplish that the State of North Carolina has reduced the process to monosyllabic words that a kindergartener can understand.
And yet, I find myself often walking into a store and walking right out again because people don’t care about waiting and wearing. Even employees aren’t taking precautions.
Those people who are throwing caution to the wind should understand that the damage this new coronavirus can cause is not yet fully known.
Contrary to what too many people say, it is not a “bad cold” or “another flu.” It is a distinct strain of coronavirus–not an influenza virus–that does not have a sufficient enough history yet for a person to fully evaluate the risks it presents.
The Southern Shores Beacon 