The chief reason cited by The Planning Board for its “rejection”—which is actually a recommendation to the decision-making Town Council to deny approval of SUP 23-01—is the deplorable state and operation of the on-site wastewater treatment plant (WWTP) owned by the Gupta family.
The WWTP that would serve the proposed Ginguite, LLC, development at 6195 N. Croatan Hwy. has been serving the residences at Southern Shores Landing (SSL). It is currently in noncompliance with utility regulations and has been cited for numerous violations.
Planning Board Member Ed Lawler painstakingly went through documentation that he had obtained from online research into the websites of the N.C. Dept. of Environmental Quality and the N.C. Utilities Commission to show the incredible dysfunctionality of the WWTP, which has not worked as it should and has been operated on an emergency basis since 2009.
“There is no treatment occurring there,” said Mr. Lawler, who noted that “the water never gets to the area where it should go,” going instead into the infiltration pond.
“The level of equipment that’s not operational is phenomenal,” he said.
Mr. Lawler’s research resulted in the documentation that the Town posted last week and we highlighted in our 11/18/23 blog. We were unaware that these documents came from a search by the Planning Board because the source was not identified by the Town.
In a letter to the Town Attorney in which she responds to questions about the SUP from the Planning Board, SAGA attorney Jamie S. Schwedler repeatedly states that the operation of the WWTP is not an appropriate subject for a Special Use Permit request. (See The Beacon, 11/18/23.)
Mr. Ward read aloud Ms. Schwedler’s letter and noted that her objections to the attention paid by the Board to the WWTP were a matter for the Town’s lawyers to address. Although the WWTP is owned by GWWTP, LLC, a different SAGA subsidiary than SUP applicant Ginguite, LLC, Mr. Ward treated them as one in the same, referring to the plant owner as the “Gupta-managed LLC.”
“The Gupta-managed LLC has operated the wastewater treatment plant in a manner that is detrimental to the health, safety, and welfare” of the community, he concluded.
The disastrous state of the WWTP, which poses water-quality and environmental hazards, “trumps everything,” he said, in the Planning Board’s decision-making.
(See The Beacon, 11/18/23, for more details about the WWTP.)
Among the other reasons cited by the Board for denying approval was its insistence that Ginguite, LLC, maintain a 50-foot setback from the eastern line of its property adjacent to Southern Shores Landing.
Although Ginguite expanded its original 15-foot setbacks between its property and SSL to setbacks that varied along the boundary from 20 feet to 34 feet, the developer said it could not accommodate wider setbacks.
At the first Board hearing of the SUP in September, SAGA CEO and Ginguite, LLC, principal Sumit Gupta said 50-foot setbacks caused him “heartburn.” He attended tonight’s meeting, but did not speak and was not permitted to comment after the Board’s decision, had he chosen to.
Both Planning Board members Tony DiBernardo and Robert McClendon cited the Town Land Use Plan as authority for their votes. Mr. McClendon said that the Ginguite project “is not compatible with the area in which it is located,” a provision that is contained within the LUP Vision Statement, but is rarely invoked.
Chairperson Ward referred to the Town Code extensively to buttress the Planning Board’s decision with legal authority, citing for the first time a section dedicated to the Town’s management of wastewater systems and the oversight role that the Planning Board plays. (See Sec. 32, et seq.; in particular, Sec. 32-4.)
At its meeting last month, Katie Morgan of Colington, who used derogatory words to describe SAGA and its development practices, passionately told the Planning Board that if it denied approval to SAGA’s permit, “You all would be heroes on the beach.”
The Ginguite Woods Wastewater Treatment Plant is located on N. Croatan Hwy. to the right of Landing Trail (east) above and consists of two parcels, one of which has a large pond on it. (Photo courtesy of Dare County GIS.)
Ginguite, LLC, last week submitted new materials with the Town of Southern Shores regarding its proposed mixed-use development at 6195 N. Croatan Hwy., which include a letter from the U.S. Army Corps of Engineers verifying wetlands on the property and a revised site plan with wider side-yard setbacks to Southern Shores Landing properties, and the Town has placed online documentation of the ownership and troubled operation of the wastewater treatment plant (WWTP) that would serve Ginguite’s luxury condominium/office/retail, restaurant complex.
Ginguite’s filings are in response to wide-ranging questions by the Planning Board at its Oct. 16 meeting, the second one the Board has held to review its application for a Special Use Permit (SUP). (Update: As we learned at the Monday Planning Board meeting, the extensive WWTP documents were obtained by Planning Board Member Ed Lawler during online research.)
The Planning Board will meet Monday at 5 p.m. in the Pitts Center for its third meeting about Ginguite’s application, known as SUP 23-01.
The Board’s hearings are preliminary to making a recommendation to the Town Council to either disapprove the SUP application or approve it with conditions, which Ginguite would have to fulfill before it may apply for and receive a Building Permit.
As Planning Board Chairman Andy Ward observed upon opening last month’s meeting, Ginguite would not need a special permit if it were to develop its commercially zoned property as exclusively commercial or (RS-8 multifamily) residential–land uses that are permitted as of right under the Town Code. Mixed-use developments, however, require an SUP. (See Town Code sec. 36-207(c)).
The Town Council will hold a quasi-judicial hearing on the merits of SUP 23-01 before it makes its decision on permit approval. The Council is not bound by the volunteer Planning Board’s recommendation or the conditions it proposes, but it usually gives deference to the Board.
26 QUESTIONS
In its materials, Ginguite, LLC, which is a subsidiary of SAGA Realty & Construction, submits answers to 26 questions that were raised by the Planning Board during its three-and-a-half-hour October meeting. SAGA attorney Jamie S. Schwedler, a Raleigh-based partner with the regional law firm of Parker Poe, provides the responses.
Attorney Ashley Honeycutt Terrazas, an associate at Parker Poe, represented Ginguite at the Oct. 16 meeting, along with Michael Strader, director of engineering at Quible & Associates of Kitty Hawk who is charge of the Ginguite project.
In her responses—to such issues as an independent traffic study, the operation and water quality at the WWTP, landscaping and lighting at the proposed project, and the use of Landing Trail, a road off of U.S. Hwy. 158 into the Southern Shores Landing that Ginguite, LLC owns—Ms. Schwedler clearly distinguishes those conditions that she deems appropriate for a Special Use Permit and those that she does not.
For example, while Ginguite has agreed to a traffic impact analysis (TIA) being done by the N.C. Dept. of Transportation before the Building Permit stage, Ms. Schwedler states that the Planning Board cannot require the TIA to be done before it makes its recommendation on the SUP, as proposed by Planning Board Alternate Michael Zehner, who asked for “a peer review of an independent [traffic] study,” before he casts his vote.
Ms. Schwedler further notes that NCDOT is an independent State agency. (Question One on “Responses to TOSS Planning Board Questions Received 11/1/23.)
(See https://www.southernshores-nc.gov/planning/page/planning-board-november-20-2023 for all new supporting documents, which are divided into two categories: 1. SUP 23-01 Documents and 2) SUP 23-01 Waste Water Treatment Plant documents. Ms. Schwedler’s responses are included in the first documents link.
(If you cannot access the material through this link, simply click on the Planning Board meeting notice under “Public Notices” on the TOSS website home page at https://www.southernshores-nc.gov/.)
She further states that Ginguite:
“is not required” by Town ordinance to submit elevation drawings of its proposed buildings from the rear (north) of the site, as the Board requested, nor must it show building-mounted lights and wall signage until the Building Permit stage (Questions 14, 18, 21);
does not have to “submit a construction management plan for construction phases and a timeline” of the SAGA project, as the Board requested, because “That is not required for a site plan or a special use permit.” (Question 22);
“has no intention of blocking Landing Trail [which Ginguite, LLC has allowed Southern Shores Landing residents and others to use],” but that “whether or not [SSL residents] have an access easement is irrelevant” to its SUP application (Question 25); and
has not applied for a wastewater treatment plant and, therefore, all of the Planning Board’s questions about the existing WWTP, which is owned by GWWTP, LLC, another SAGA subsidiary, are not relevant to the SUP application (Questions 3, 4, 5, 6, 7, 8, 9).
Frustration clearly creeps into Ms. Schwedler’s response letter, as it did in Ms. Terrazas’s meeting comments last month.
“We look forward to wrapping up the discussion on SUP 23-01 [on Nov. 20] and receiving a recommendation” on the SUP and site plan, Ms. Schwedler concludes, noting “we have made extensive efforts to answer the Planning Board’s questions ….”
Similarly, when asked by Board Member Robert McClendon, whom Chairperson Ward supported, to submit renderings of the site buildings that show what they “will look like on that land,” not just flat drawings, Ms. Terrazas replied in a strained voice: “We’ve provided the typical renderings and elevations at this point. . . . We feel like we have [provided] all of the information that’s normally submitted at this time. We have been through everything. We need the Board to make a recommendation.”
Mr. McClendon told her that actual renderings of the two planned buildings, in context and perspective, are “absolutely essential for an approval recommendation from me.”
“The citizens are concerned about how much view is being blocked from the highway,” he observed to applause from the audience.
Ms. Terrazas appeared resigned to accept whatever recommendation the Board makes, pro or con, in order to go forward to the Town Council.
In answering questions about the WWTP, which has a history of regulatory noncompliance, Ms. Schwedler repeatedly responds: “SUP 23-01 is not an application for a WWTP. GWWTP, while controlled by the Applicant, is not the applicant for this case, and the TOSS is not reviewing any permits or applications for the properties upon which the WWTP sits. The WWTP planned to serve the subject development is regulated by the [N.C. Dept. of Environmental Quality] and NCDEQ is responsible for determining whether the WWTP can serve the development. It will not issue the necessary permits otherwise.”
Ms. Terrazas also made this point repeatedly at the October meeting: Ginguite, LLC, must procure NCDEQ’s approval of the WWTP before it submits its Building Permit application. That is a condition of the SUP. (We discuss the WWTP below.)
Indeed, the developer must obtain a number of governmental permits before it can proceed to the next stage of the construction process. They are enumerated in Deputy Town Manager/Planning Director Wes Haskett’s Sept. 18 Staff Report on SUP 23-01.
Dominion Energy, with whom SAGA “has been in dialogues . . . from the outset,” Mr. Strader said Oct. 16, “will reserve its approval,” until after the Town has finished its review. The Planning Board has inquired about projected parking spaces being in a 70-foot Dominion power easement.
While the Planning Board’s probing questions have elicited a lot of information, as well as the support and enthusiasm of its community audiences, we agree that the time for a wrap-up has arrived. The Board’s earnest, thorough questioning is increasingly marked by redundancy and irrelevancy. Does the Board really need to know the details of Ginguite’s landscaping design, for example, before it rules on the Special Use Permit? (The ordinance pertaining to mixed-use group development addresses the issue of vegetative buffers. Sec. 36-207(c)(11).)
SAGA is many months removed from breaking ground at 6195 N. Croatan Hwy., if indeed, it receives the permits it needs to do so. The Planning Board may be “the first line of defense” in the SUP process, as Mr. Ward has noted, but its weapon should not be overkill.
WETLANDS, BUFFERS
In an Oct. 27 email submitted by Ginguite to the Town, Shane F. Staples, a Regulatory Specialist with the U.S. Army Corps of Engineers’ Wilmington district, verifies the “delineation” of aquatic resources on Ginguite’s property: A half-acre area north of the pond that abuts property owned by All Saints’ Episcopal Church is delineated as wetlands, he instructs, while the creek basin and the remainder of the Ginguite site are non-wetlands, as shown on aerial imagery attached to the email text.
This delineation is not what Mr. Staples calls a “jurisdictional determination,” but it “may be relied upon for use in the permit evaluation process, including compensatory mitigation.”
At the Oct. 16 meeting, Mr. McClendon said a wetlands delineation would be sufficient at this stage. SAGA has not proposed construction on the wetlands area.
In public comments last month, Stephen Hotchkiss, who identified himself as the senior elected layperson at All Saints’, said that, after the Planning Board’s September meeting, church representatives contacted and met with SAGA representatives, walked the church’s property, and had “productive” discussions about the church’s concerns, chief among them “the privacy of our sacred grounds outdoors.”
Mr. Hotchkiss said he was confident that the parties would “make progress” to “meet our needs,” and encouraged residents of Southern Shores Landing to contact SAGA for “good neighbor” talks, as well.
Ginguite has revised its original site plan to incorporate a minimum 20-foot buffer (an increase of five feet) “with more natural existing vegetation and a retaining wall on the eastern property line,” next to the Landing; to shift its refuse area farther away from the Landing; and to preserve an existing soil pathway on the northeast corner of its property that Landing residents and churchgoers routinely use.
It also has eliminated a proposed marina, a land use that Mr. Haskett ruled in an interpretation is not allowed in the Town’s commercial district.
Although Mr. Haskett suggested that the Planning Board condition its recommended approval of the SUP on Ginguite’s maintenance of a 50-foot setback from its eastern property line adjacent to the Landing, Ginguite has consistently contested this condition, finding it contrary to Town Code requirements.
The portion of SSL property that abuts Ginguite’s property is zoned commercial, and, as such, is entitled under the Code to only a 15-foot side setback from structures that SAGA might build. If it were in a residential district, like the church is, a 50-foot side setback would be mandated.
At the October meeting, Mr. Strader showed a graphic illustrating revised buffers between Ginguite and SSL that vary from 20 to 34 feet. Both he and Ms. Terrazas referred to the increased widths as “concesssions” by SAGA.
Mr. Ward intimated that the Board is inclined to accept Mr. Haskett’s 50-foot setback condition, which he justified as appropriate to mitigate the impact of Ginguite’s development on the Landing, transportation in and out of the community, stormwater runoff, sewage treatment, and noise, among other things.
Both Ms. Terrazas and Mr. Strader said Ginguite’s 20- to 34-foot setback is a “good compromise” and it cannot offer more.
WASTEWATER TREATMENT PLANT
After the Planning Board’s October meeting, the wastewater treatment plant that SAGA owns, but hasn’t operated properly, earning fines imposed by the NCDEQ for multiple violations, was all the buzz. That made the local news.
We found the facts about the WWTP unclear, however, and continue to find them so, despite the new documents on the Town website.
According to these materials, the N.C. Environmental Management Commission issued a permit on Oct. 3, 2018 to GWWTP, LLC, to operate a 32,500-gallon-per-day reclaimed water generation system, conjunctive reclaimed water utilization, and low-rate infiltration system at the plant, until Nov. 30, 2023—which is the end of this month.
GWWTP stands for Ginguite Woods Wastewater Treatment Plant. The plant is located to the east of the Ginguite property at 0 N. Croatan Hwy. on two parcels: One has equipment on it, the other has a pond, which Planning Board Member Ed Lawler said is rife with algae.
Since Nov. 20, 2009, an emergency operator appointed by the N.C. Utilities Commission (NCUC) has run the Ginguite Woods subdivision sewer utility system. The Commission took this action to protect against the “imminent danger” of the loss of the utility service, upon which SSL residents depend.
That order is still in effect.
During its five-year permit period, GWWTP, LLC, has been cited for numerous violations, including exceeding daily maximums of fecal coliform bacteria, MFC broth, and turbidity, and exceeding nitrogen ammonia limits, as measured in plant water samples. As the owner of GWWTP, LLC, Prem Gupta, a SAGA partner and officer who, we believe, is Sumit Gupta’s father, received notices of these violations and unpaid civil penalties imposed by NCDEQ.
Sumit Gupta, who is the Chief Executive Officer of SAGA and a principal in Ginguite, LLC, did not attend the Oct. 16 meeting.
At the time of the 2009 emergency order, Ginguite Woods Water Reclamation Assn., which was owned by Neil Blenkin, owned the wastewater service franchise and had done so since 2003. For reasons unknown, GWWRA did not properly transfer control of the wastewater plant to Prem Gupta’s GWWTP.
According to a July 25, 2023 letter sent to the NCUC chief clerk by an N.C. Public Staff Utilities Commission attorney, Ginguite Woods Water Reclamation Assn. sought in February of this year to transfer its Certificate of Public Convenience and Necessity to provide sewer utility service to GWWTP. The Public Staff found that the sewer system had been abandoned by both the GWWRA and the Commission-appointed emergency operator and that the land on which the system is located had been sold “multiple times without Commission approval.”
Although GWWTP stepped in and is currently operating the system to maintain service, the Public Staff recommended that the NCUC find the transfer application incomplete. Because of the number of irregularities, it issued what is called a deficiency letter.
Mr. Strader has said that Atlantic OBX is serving now as the contract operator of the wastewater treatment plant, but it is clear from the new documentation that, as GWWTP approaches the expiration date of its operating permit, the plant is out of compliance in many respects.
Although Ginguite, LLC, is not the legal entity that owns the wastewater treatment plant, its high-end mixed-use development will be dependent on its service.
“By law,” Ms. Terrazas said, “we will be required to take care of this” before the Town of Southern Shores will issue a Building Permit.
As reported on 10/17/23, the Planning Board took no action last month on SUP 23-01.
The Southern Shores Town Council will meet Tuesday at 5:30 p.m. in the Pitts Center for its regular monthly meeting. This will be Town Councilman Leo Holland’s last full regular meeting before stepping down.
The swearing-in ceremony for the three election victors—new Town Council member Robert E. Neilson and incumbents Matt Neal and Mark Batenic—will take place at the Town Council’s December meeting. (See The Beacon, 11/7/23, for an election report.)
The most significant item on the Council’s agenda is the authorization of a new position in the Police Department known as “Police Recruit.”
As outlined in the packet materials, including a proposed contract between the Town and the Police Recruit, the Recruit would be a full-time employee whom the Town pays, at a salary “25 percent below the base starting pay for a fully qualified police office,” to attend and successfully complete the N.C. Basic Law Enforcement Training Academy (BLET) offered at the College of the Albemarle.
Upon meeting all of the qualifications for a police officer, the Recruit would be sworn into office, promoted to the appropriate pay grade, and serve on a probationary basis for one year.
Police Chief David Kole has requested the creation of this position because he has been unable to fill three longtime officer vacancies in his department. The Recruit would fill one of these vacancies.
Chief Kole writes in a memorandum to the Town Council that he contacted “Town Attorney John Leidy for his assistance in helping me develop a new policy, contract and a new classification position ‘Recruit’ including a new pay grade.” He states his goal as being to enroll the Recruit in the BLET in January.
We refer you to the meeting packet for more details about this proposed position and the respective contractual obligations between the Recruit and the Town.
PLANNING BOARD CONTINUES REVIEW OF SAGA PERMIT NOV. 20
We still aspire to post another blog about the Planning Board’s Oct. 16 meeting review of Ginguite, LLC/SAGA’s request for a Special Use Permit (SUP) for its proposed condo/retail/office development at 6195 N. Croatan Hwy. before the Board meets again. Our posting may not be as lengthy as we had originally envisioned, but we expect to publish by next weekend. (See The Beacon, 10/17/23.)
The Planning Board will continue its review of SUP 23-01 on Nov. 20 at 5 p.m. in the Pitts Center.
Challenger Robert E. Neilson joined incumbents Matt Neal and Mark Batenic in victory in today’s Town Council election, according to unofficial results posted by the N.C. State Board of Elections.
The NCSBE reported the following vote totals, with 100 percent of the vote in:
We do not yet know how many registered voters in Southern Shores cast ballots and what percentage of the electorate that number constituted.
ELSEWHERE IN DARE COUNTY . . . Incumbent mayors in Kill Devil Hills and Manteo lost, and challenger Kevin Lingard was the top vote getter in Duck, where all five seats on the Town Council were being contested.
A Friend in Duck? Mr. Lingard spoke at the League of Women Voters of Dare County’s candidates forum in Duck about cooperating with Southern Shores to improve the northbound summertime traffic flow on weekends. He even suggested controlling the pedestrian crosswalks in downtown Duck with volunteer or police monitors to limit traffic interruptions.
For a full report of the election results in Dare County, see The Outer Banks Voice.
Sample ballot provided by Dare County Board of Elections, photographed by The Beacon.
The Southern Shores election for three Town Council members will be held tomorrow at the Kern C. Pitts Center, behind Town Hall, from 6:30 a.m. to 7:30 p.m.
For the first time in North Carolina, all registered voters will be required to show an acceptable photo ID, examples of which are provided below. Voters who arrive at the polls without an acceptable photo ID may still vote with a provisional ballot, as we explain.
The four candidates vying for three four-year positions on the Town Council are incumbents Matt Neal and Mark Batenic and challengers Robert E. Neilson and Michael Guarracino.
The Town pays each Town Council member an annual stipend of $3600. The mayor receives $4200.
The Beacon hasbeen quiet about the Town Council election because the candidates have been quiet. We cannot recall in recent memory a more low-key election for the most important offices in town than this election for three Council members, who represent a majority of the board.
In light of the candidates’ election strategy, we have decided to let them introduce themselves to you, without comment from us.
You may access the candidates’ responses to questions posed by the League of Women Voters at https://www.vote411.org/ballot. Simply enter your address, then click on “Show My Races.”
You may vote for three of the four candidates on the ballot. No write-in candidates have been authorized.
Unofficial election results will be available on the N.C. State Board of Elections website the night of the election. Go to https://er.ncsbe.gov for results.
PLEASE NOTE: Election Day is not a federal or State of North Carolina holiday.
PHOTO IDS REQUIRED
All of the following documents are acceptable photo IDs, provided they are unexpired or expired for one year or less:
N.C. driver’s license
U.S. passport book/U.S. passport card
State ID from the N.C. Dept. of Motor Vehicles (“non-operator ID”)
N.C. voter photo ID card, issued by a county board of elections (free)
College/university student ID approved by the N.C. State Board of Elections
State/local government employee ID approved by the N.C. State Board of Elections
Driver’s license/non-driver ID from another state, D.C., or U.S. territory, provided the voter registered in N.C. within 90 days of the election
Any of the following are acceptable photo IDs, regardless of whether the ID contains an expiration or issuance date:
Military or veteran ID card issued by the U.S. government
Tribal enrollment card issued by a State or federally recognized tribe
ID card issued by a U.S. government agency or the State of N.C. for a public assistance program
To see the complete list of acceptable photo IDs and details on how to request State Board of Elections approval for student and employee IDs, see ncsbe.gov/voter-ID.
You may obtain a free photo ID from the Dare County Board of Elections, which is located at 954 Marshall Collins Drive in the Dare County Administrative Offices complex in Manteo and open from 8:30 a.m. to 5 p.m. M-F; phone: (252) 475-5631,
PLEASE NOTE: Voters age 65 and older may use an expired photo ID if it was unexpired on their 65th birthday.
Registered voters who arrive at the polls without an acceptable photo ID may vote with a provisional ballot if they:
1) complete a Photo ID Exception Form, which asks them to choose from among a number of “reasonable impediments”* that prevent them from showing an ID; OR
2) bring an acceptable photo ID to the Dare County Board of Elections office in Manteo by 5 p.m. on Nov. 16.
All provisional ballots submitted with properly completed ID exception forms must be counted.
*Reasonable impediments listed on the ID Exception Form include:
Lack of transportation
Disability or illness
Lack of birth certificate or other documents needed to obtain ID
Work or school schedule
Family responsibilities
Photo ID lost, stolen, or misplaced
Photo ID pending; have applied for it, but have not received it yet
Religious objection to being photographed
Victim of a natural disaster within 100 days before Election Day that resulted in a disaster declaration by the President of the United State of the Governor of North Carolina.
There is no way to predict delays on Election Day related to implementation/management of the photo ID requirement. Please let us know if you run into any snags at the polls because of the new procedure. You may email us at ssbeaconeditor@gmail.com.
The Town Planning Board adjourned last night after a 3 ½-hour meeting without taking any action on the special use permit (SUP) application submitted by Ginguite, LLC/SAGA for its proposed creekfront condo-retail-office-restaurant development at 6195 N. Croatan Hwy.
The Board will continue its review of Ginguite’s SUP 23-01 at its Nov. 20 meeting. In the interim, the Town will prepare a list of further information items identified during the meeting that the Board needs in order to make a recommendation to the Town Council and give it to SAGA’s representatives to fulfill. The Board may recommend approval of the SUP, with conditions, or denial of the SUP.
Among the many concerns addressed by the Board yesterday were the functionality and capacity of the wastewater treatment plant that would serve the development; the impact that the development would have on traffic in the area; the location and any adverse effects on wetlands on the property; the building setback and vegetative buffer between the east boundary of Ginguite’s property and the Southern Shores Landing community; and the appearance of the development, once constructed.
Board Alternate Michael Zehner drew enthusiastic applause from residents in the audience when he said that the Planning Board should not take any action until a traffic impact study is done and its results are reviewed by an independent expert. The conduct of a traffic study is one of the conditions of the permit’s approval.
Calling the Board “the first line of defense in a process,” Chairperson Andy Ward observed approvingly at the end of the meeting discussion that “We’re moving the process forward.”
He declined to schedule a special meeting to resume the Board’s review before Nov. 20.
(Please Note: We are in transit today and tomorrow and do not know yet when we will be able to expound upon our report. We will do our best to provide further details about the Board meeting before the next meeting. You may view a videotape of the meeting through the Town of Southern Shores You Tube website. Thank you.)
The Town Planning Board will continue its review of Ginguite, LLC’s special use permit application for its proposed condo-retail-office-restaurant development at 6195 N. Croatan Hwy. on Monday at 5 p.m. in the Pitts Center.
Ginguite, LLC, is a subsidiary of SAGA Realty & Construction. Its application, SUP 23-01, is the first invocation of the Town’s ordinance authorizing “mixed-use” group developments of residential and commercial buildings as a conditional or special use in the commercial district. New Town Code sec. 36-207(c)(11) was passed unanimously by the Town Council in June 2022 with the SAGA project in mind.
For previous articles about SAGA’s proposed creekfront development, which has aroused considerable public opposition, see The Beacon, 9/19/23 and 9/29/23.
The Planning Board questioned Ginguite representatives about SUP 23-01 at its Sept. 18 meeting, but adjourned without taking any action. Appearing on behalf of the applicant were Sumit Gupta, Co-Founder, Partner, and Chief Executive Officer of SAGA and engineer Michael Strader of Quible & Associates.
Ginguite, LLC, is proposing to build two three-story wood framed buildings, 200 parking spaces, a marina, and associated infrastructure on what it represents is about 4.55 acres of a 6.96-acre property. The Town has already advised the applicant that marinas, both commercial and recreational, are not permitted in the commercial district.
Unfortunately, we are unable to attend Monday’s Board meeting in person, but we will live-stream it and report on its outcome as soon as we can.
JUST A REMINDER . . . Early voting for the Nov. 7 municipal election starts Thurs., Oct. 19, and runs through Sat., Nov. 4. See https://www.darenc.gov/departments/elections/voting for details. Four candidates are vying for three seats on the Southern Shores Town Council. There are no other races for public office on the ballot.
Incumbent Matt Neal is one of four candidates running for three positions on the Southern Shores Town Council.
The Beacon will only be publishing this post this week. We encourage you to view the videotape of Monday night’s Town Council candidates’ forum, hosted by the League of Women Voters of Dare, which you may access at https://www.ywatch?v=mOkCDKGozAgoutube.com/.
There was considerable discussion among the candidates about a controversial housing provision just passed in the N.C. General Assembly’s 2023 appropriations bill that restricts the authority and governance Dare County towns have over State-financed affordable housing projects within their limits.
Most of the candidates’ discussion was not about the provision itself, however, but about who had authored the provision and arranged to insert it in the budget, questions that remain unresolved. We would have liked to have known more about the provision.
The N.C. General Assembly allocated $35 million to Dare County in 2021 to construct “affordable,” aka essential workforce, housing. The Dare County Board of Commissioners thereafter partnered with Coastal Affordable Housing, Inc., a newly created, North Carolina-based consortium, to build workforce housing using these nonrecurring funds.
Dare County also partnered separately with the Ohio-based Woda Cooper Cos. to build other workforce/affordable housing initially just on Roanoke Island; later, Woda Cooper identified a Nags Head site. Dare County has reportedly committed $12 million to Woda Cooper projects.
No State- or Dare County-funded housing project has been greenlighted on Roanoke Island or the beach because of local resistance.
The Outer Banks Voice has done an excellent job of reporting on these developments, and we refer you to their coverage, which includes an article yesterday about the Dare County Board of Commissioners’ decision on Monday night to form an affordable housing task force made up of representatives from the county and all six of its municipalities.
All six towns, including Southern Shores, have officially protested the N.C. legislature’s budgetary provision as an encroachment of their powers and control—i.e., a heavy-handed usurpation of local authority by a State legislature increasingly inclined to usurp such authority.
We were curious about what the provision actually says and looked it up online.
Titled “Dare County Affordable Housing,” it is section 24.8 of the “Current Operations Appropriations Act of 2023” (House Bill 259) and consists of just three subsections. We quote:
“SECTION 24.8(a) The following shall apply to all construction of buildings and infrastructure under the agreement or series of agreements entered into pursuant to Section 24.1 of S.L. [Session Laws] 2022-74 to construct affordable housing units in accordance with Dare County’s longstanding master development plan to increase workforce housing:
“(1) With respect to building permits and inspections of the new construction, the State of North Carolina and any local government with jurisdiction over the new construction shall expedite the issuance of permits and prioritizing the conduct of all necessary inspections.
“(2) With respect to development regulations:
(a) “Articles 6 and 7 of Chapter 160D of the General Statutes shall not apply to the new construction under the agreement or series of agreements.
(b) “Approval under Article 8 of Chapter 160D of the General Statutes shall not be required for the new construction under the agreement or series of agreements; however, a plat of any subdivided land shall be recorded by a selected qualified private partner.
“(3) With respect to utilities, and provided that the local government has sufficient capacity, any local government within a 1-mile radius of the new construction under the agreement or series of agreements shall provide all utilities in the same manner as that local government provides utilities to all other new construction in that jurisdiction.
“SECTION 24.8(b) This section is effective when it becomes law.”
Chapter 160D is the “Local Planning and Development Regulation.” Article 6 pertains to development regulations; Article 7 to zoning regulations, and Article 8 to subdivision regulations.
This is, indeed, a sweeping usurpation of municipal powers by an autocratic legislature whose intentions we will not speculate upon. We do think that the formation of a task force is a positive step, provided its membership is not too unwieldly. Affordable workforce housing is a county-wide issue that should be approached by the towns and county acting in concert. It’s one for all and all for one. We all can benefit.
Four candidates running for three positions on the Southern Shores Town Council will meet for a Q&A forum hosted by the League of Women Voters of Dare County (LWV) tomorrow, from 7 p.m. to 8:30 p.m., in the Pitts Center.
The LWV moderator will pose questions to the candidates submitted by the public on site or in advance in email sent to LWVdare@gmail.com. The LWV asks that you include your name and your town with your emailed question(s).
The four candidates vying for Town Council office are incumbents Matt Neal, who was elected in 2019 and has served as mayor pro tem for two years during his term, and Mark Batenic, who was appointed in January 2022 to fill the vacancy created when then-Councilwoman Elizabeth Morey was elected mayor, and challengers Robert E. Neilson and Michael Guarracino.
We have neither seen nor heard of any door-to-door campaigning occurring in town, which is highly unusual for grass-roots electioneering, nor have we learned of any meet-and-greets being held or scheduled or received any mailers. With just 18 days remaining before the early voting period begins, the candidates have been very subdued.
Please see The Beacon, 9/10/23, for more details about the general municipal election, which will be held Nov. 7 in the Pitts Center, not the Kitty Hawk Elementary School.
TOWN COUNCIL MEETING FEATURES AUDIT and ETJ CHANGE
The Town Council will meet Tuesday at 5:30 p.m. for its regular monthly meeting. Mayor Elizabeth Morey announced at the last Council meeting that the Mayor Pro Tem will preside over the meeting in her absence.
Included on the meeting agenda are an audit report by the Town’s new accounting firm, Carr, Riggs & Ingram, and a public hearing on Town Code Amendment (TCA) 23-02, whose purpose is to relinquish Southern Shores’ Extraterritorial Jurisdiction (ETJ) over commercial properties in Martin’s Point.
If the Town Council votes to adopt TCA 23-02, and relinquishes the Town’s ETJ, Martin’s Point commercial properties will no longer be subject to the Town’s development regulations, including zoning, and will become a part of Dare County’s jurisdiction.
ETJ Representative John Finelli requested the relinquishment in August 2022, and the Planning Board unanimously recommended in December that the relinquishment occur. The Town Council directed Town staff in February to prepare an ordinance to effectuate this action, and the Planning Board unanimously recommended in August that the Council adopt TCA 23-02.
Carr, Riggs & Ingram is a top-25 nationally ranked, Alabama-based accounting firm that serves clients nationwide, according to its website, https://cricpa.com.
Tuesday’s meeting agenda does not note any topics that Town Manager Cliff Ogburn plans to bring up in his staff report. The Council will be taking up in “new business” tasks associated with replacing the culvert at the Trinitie Trail bridge.
PARADE OF HOMES: 2 SOUTHERN SHORES-BASED BUILDERS ON TOUR
Southern Shores-based builders, Sandmark Custom Homes, Inc., and Neal Contracting Co., each have examples of their craftsmanship in this year’s Outer Banks Home Builders Assn.’s Parade of Homes, which starts Thursday and runs through Saturday, from 10 a.m. to 6 p.m.
The OBHBA also will host a Trade Expo for businesses and vendors who support the Outer Banks building industry on Sunday from 10 a.m. to 3 p.m. at the Ramada Plaza Oceanfront in Nags Head.
Neal Contracting built a new seven-bedroom, 2,926-square-foot house in Southern Shores at 8 Fifth Ave., and Sandmark remodeled a five-bedroom, 3,059-square-foot house in Duck at 107 Canvas Bank Drive.
These houses are two of nine featured in the 31st annual Parade of Homes, three of which are only available for viewing online in a “Virtual Parade”—a new twist to this annual showcase of home design and construction.
Croatan Custom Homes of Kitty Hawk built three of the nine featured homes, including two on the Virtual Parade, which according to FAQ on the OBHBA website will remain online for one year.
The six “in-person” homes range in location from Corolla to Salvo and include one in Manteo.
The largest and most expensive “home” on the tour is a wedding venue in Corolla known as “OBX One” that was built by CMI Design Studio, a custom builder based in Washington, D.C.
The $12.5 million, 14,500-square-foot venue has 12 bedrooms, 19 full baths, 3 half-baths, a swimming pool, an elevator, “state-of-the-art technology,” and a boatload of other luxuries, as you can imagine, and is located “semi-oceanfront” at 890 Lighthouse Drive, meaning it is across the street from the beach.
Tickets are $20 per person and include access to the nine houses and the Trade Expo.
For more information about the homes, the Trade Expo, and advance ticket sales, see https://www.obhomebuilders org/2023-homes/.
Tickets also may be purchased at the entrance to one of the “in-person” homes.
This design drawing of the 30-unit residential building was included in Ginguite, LLC’s SUP application.
Ginguite, LLC, has proposed constructing a “mixed-use group development” consisting of 36 “multifamily” dwellings and space for retail, offices, and restaurants in two buildings on 4.55 acres of vacant property on Ginguite Creek at 6195 N. Croatan Hwy. (U.S. Hwy. 158).
One building would be strictly residential and contain 30 dwellings with ground-floor parking, according to Ginguite, while the other building would house a mix of six dwellings and the various commercial uses.
In order to proceed, Ginguite must receive a special use permit from the Town of Southern Shores because its development is not one that is permitted “as of right” in the Town’s C General Commercial District.
According to Ginguite LLC, which is a subsidiary of SAGA Realty & Construction, the property is predominantly in the Town’s C General Commercial District, but a small portion of land north of the Ginguite Creek basin is in the R-1 (low-density) residential district.
The Town may require SAGA/Ginguite to meet explicit conditions before it approves its permit.
(Zoning districts are defined in Article IX of the Town Code, which begins with section 36-202.)
Before June 7, 2022, when the Town Council unanimously voted to add the “mixed-use” of residential and commercial buildings on one property as a “conditional” or “special” use in the commercial district and specified the requirements for such developments, projects like SAGA’s were prohibited in Southern Shores. (See Town Code 36-207(c)(11) for the mixed-use provisions enacted by Zoning Text Amendment 22-06, a ZTA that was introduced by SAGA/Ginguite.)
The SAGA/Ginguite proposal is the first mixed-use development to be considered by the Town.
This is the basic factual premise that was before the Town Planning Board for its Sept. 18 review of Ginguite’s permit application, known as SUP 23-01. The subsidiary was represented at the Board meeting by Sumit Gupta, Co-Founder, Partner, and Chief Executive Officer of SAGA, and engineer Michael Strader of Quible & Associates.
We went over the salient details of SUP 23-01 in our first part of this meeting report, posted 9/19/23 and titled “After Homeowners’ Objections, Planning Board Painstakingly Begins Review of Special Use Permit for SAGA’s Ginguite Creek Project.”
The Planning Board will make a recommendation about the SUP to the Town Council, which will hold a public hearing and make the final decision.
Today we consider only one significant issue, which was a major sticking point last year between SAGA/Ginguite LLC and the Planning Board, when ZTA 22-06 was being analyzed and revised, and between the Planning Board and the Town Council, which disagreed on it: the maximum allowable lot coverage.
LOT COVERAGE NUMBERS
According to SAGA/Ginguite’s SUP application materials, the Ginguite Creek parcel is 6.96 acres, including the creek basin, which Mr. Strader told Planning Board Chairperson Andy Ward, upon his inquiry, Ginguite LLC owns.
“The owner does have deed to the bottom of Ginguite Creek basin,” the Quible engineer advised a skeptical Mr. Ward.
An acre of land is 43,560 square feet, so the entire parcel area is 303,177.6 square feet (“SF”). SAGA/Ginguite also cited the following other measurements with its application:
The area of the parcel without “surface water” and without the northern portion of R-1 property is 5.19 acres or 226,076.4 SF.
The “net acreage” of the parcel, which Town Code sec. 36-57 defines as “total area to be developed minus any areas covered by waterways, marshes, or wetlands,” is 4.55 acres or 198,177.73 SF, according to SAGA’s calculation .
SAGA further represents that its development would have the following lot coverage:
2,115 SF for existing asphalt
41,158 SF for buildings
7,075.8 SF for permeable pavers (developers who incorporate the use of permeable pavement may be accorded a higher maximum lot coverage, as we explain below)
24,272.3 SF for decking and walks
46,852.2 SF for new asphalt (this includes 200 parking spaces)
5,885.0 SF for concrete
TOTAL = 127,358.3 SF
This total lot coverage covers 64.26 percent of the net area of the parcel (SAGA calls it 64.2 percent); 56.3 percent of the total area without surface water and the R-1 property; and 42 percent of the total 303,177.6-square-foot parcel.
SAGA also represents that the total residential building and parking coverage is 54,313.4 SF, a figure derived by adding 41,158 SF for buildings and 13,155.4 SF for parking. This is important because the Town’s mixed-use ordinance requires a minimum of 25 percent and no more than 40 percent lot coverage of the net parcel area associated with the residential building and parking footprints. See Code section 36-207(c)(11)(e).
SAGA’s proposed residential coverage is 27.4 percent of the net area, well within the range.
A DISCONNECT
In his “Cliff’s Notes” column for the Sept. 25 newsletter, Town Manager Cliff Ogburn appears to respond to comments that we made at the Sept. 18 meeting in the second comment period regarding a disagreement between the Planning Board and the Town Council about the mixed-use ordinance. We address that disagreement here and refer you to The Beacon’s coverage on 5/26/22, 6/10/22, 6/20/22, and 7/19/22.
The Planning Board spent months last year, talking, deliberating, and negotiating with Mr. Gupta over ZTA 22-06. The Beacon took a post-election months-long hiatus and did not create a paper trail documenting these meeting exchanges. We had to catch up in May.
At the Board’s May 19, 2022 meeting, Mr. Ward said it was reviewing the fourth version of the proposed mixed-used ordinance. At that meeting, the Planning Board voted to recommend denial of ZTA 22-06, as it then existed, but to recommend approval of it with additional conditions, the majority of which already were in the Town Code standards for the commercial district and the R-8 (high-density) multifamily residential district.
The Planning Board essentially favored a “blending” of district standards to arrive at a new hybrid commercial district. The rub in its blending was arriving at the maximum allowable lot coverage restriction for the hybrid district: Lot coverage permitted in the commercial district is considerably more than that permitted in any residential district, where there are density concerns associated with occupancy. (See The Beacon, 5/26/22.)
The Board opted to blend the maximums allowed in the RS-8 residential district (40 percent) and the commercial district (60 percent) and recommend a 50 percent maximum lot coverage—a figure that Mr. Ward thought was “a pretty good average.”
Because the maximum 60 percent lot coverage in the commercial district can be increased to 67 percent with the use of permeable pavers in excess of 5 percent of the total lot coverage, the Board also recommended an increase in the mixed-use property zone from 50 percent to 55 percent with pavers at 5 percent. (See Code sec. 207(d)(5)).
The Planning Board further recommended calculating all mixed-use lot coverage according to the “net” parcel area, the standard used in the RS-8 residential district, in contrast with the “total” parcel area standard applied in the commercial district.
Not surprisingly, Mr. Gupta opposed a lot-coverage limitation of 50 percent, viewing it as a penalty for including residential uses in any development it might propose.
Mayor Elizabeth Morey and Mayor Pro Tem Mattew Neal agreed at the Town Council’s June 7, 2022 meeting with Mr. Gupta. They thought that mixed-use lot coverage should be calculated just as it is on other commercial property, as 60 to 67 percent, depending on pavers, and on the basis of the total parcel area, and that is what the Council unanimously decided to do.
Mayor Morey led off the Council’s discussion about ZTA 22-06 with the pronouncement: “This is a commercial development, and we’re pulling in dense residential into it.” There would be no blending.
She then framed, and limited, the choices before the Town Council by saying either it should vote to 1) impose the 60 percent maximum lot coverage standard applied in the commercial district or 2) use total parcel area in calculating a maximum lot coverage below 60 percent.
The Town Council accepted the Planning Board’s recommendation that a minimum lot coverage of 25 percent should be established for the residential area of a mixed-use development.
Mr. Ward spoke in the public hearing for ZTA 22-06 against the lot-coverage provisions that the Town Council adopted. He later sent an email to the Mayor and Town Council, which he read at the Planning Board’s July 19, 2022 meeting, expressing his extreme disappointment with the Council’s decision.
In his June 8 email, Mr. Ward said that the mixed-use maximum lot coverage that the Council approved allows SAGA/Ginguite, whose property includes “more than an acre of marsh and wetlands,” an additional 27,182 square feet of “hard structure lot coverage” than the Planning Board recommended and Mr. Gupta was “amenable to accepting.”
“Given the fragility of this particular parcel and the gateway into our town,” he wrote, “I feel we have strayed from our founders’ original vision of Southern Shores which speaks to ‘land use that naturally protects environmental resources and fragile areas by limiting development and growth.’”
He concluded his letter by saying that “Allowing 27,182 sq. feet of lot coverage over-and-beyond what the applicant stated he would accept, is a giveaway I find hard to reckon with. Sometimes, less is more.”
(See The Beacon, July 19, 2022.)
A public workshop that Mr. Ward said the Mayor proposed to discuss the “disconnect” between the two governing bodies was never held, and no other public followup occurred.
HOW MUCH DIFFERENCE DOES IT MAKE?
OK, let’s crunch the numbers, as SAGA/Ginguite represented them to be, and, we presume, the Southern Shores Planning Department verified. Mr. Ward arrived at his 27,182 SF by using the 5.2-acre total parcel area in the Dare County GIS listing for 6195 N. Croatan Hwy.
As noted above, SAGA/Ginguite derived a net parcel area of 4.55 acres and proposed a 64.26 percent lot coverage, covering 127,358.3 SF of 198,177.73 SF.
If the Town Council had accepted the Planning Board’s recommendation of a 50 percent maximum lot coverage, with a possible increase to 55 percent with pavers, SAGA/Ginguite would only be able to build on 108,997.75 SF, a deduction of 18,360.55, or a little less than a half-acre.
Mr. Ward’s point is best made by comparing 55 percent and 67 percent of the total area figures of 5.19 acres (226,076.4 SF) and 6.96 acres (303,177.6 SF): They would be 124,342 SF versus 151,471.2 SF and 166,747.7 SF versus 203,129 SF, respectively.
SAGA’s proposed coverage is well shy of 67 percent of either total, but it runs afoul of the 55 percent maximum that the Planning Board recommended when applied to the 5.19-acre total, for a difference of about 2,939 SF.
Bottom line: The Ginguite Creek project could cover much more ground than has been proposed.
If there is a different way to calculate the total area of this property, it was not presented at the Sept. 18 meeting. Planning Board member Ed Lawler asked about the Army Corps of Engineers’ assessment of the wetlands on the site and requested proof that the Corps “has signed off” on the parcel.
Mr. Strader referred to local environmental scientist George Wood as having “worked things out” with the Corps some years ago, but he did not specify what may have occurred officially.
He further said that “There are no proposed wetland impacts associated with the development,” a comment that drew a stir from the audience.
“We want to build [the project] so that it meets all rules and is environmentally sensitive,” Mr. Gupta said, while also acknowledging that there will undoubtedly be “some impact on the environment.”
Until Sept. 18, Mr. Gupta spoke openly in public meetings about aspiring to build high-end condos or “luxury multifamily” dwellings, similar to the Run Hill Luxury Apartment Villas owned by SAGA in Kill Devil Hills.
“Affordable, workforce housing,” he said at the May 19, 2022 Planning Board meeting, “is not [our] focus.” (See The Beacon, May 26, 2022.) He said the same at the Town Council’s June 7, 2022 public hearing.
Mr. Gupta was considerably less adamant last week about his desire for a luxury-condominium community, although he did say that he wanted to “condominize” all dwelling units.
The SAGA project is limited to a maximum of eight dwelling units per net acre, which is the standard in the R-8 residential district, and allegedly has 7.91 units per net acre.
Mr. Gupta said the 30 units in the residential building will have two or three bedrooms, and the six units in the residential/commercial building will have three or four bedrooms. He did not provide a unit size or sales price.
RECOMMENDED CONDITIONAL APPROVAL
Deputy Town Manager/Planning Director Wes Haskett has recommended that the Planning Board recommend to the Town Council conditional approval of SUP 23-01. In his staff report, he enumerates eight conditions, the most important of which to neighbors and other members of the public are probably the following:
The elimination of a proposed marina, dock/picnic area/kayak storage, and proposed dock extending into Ginguite Creek, because the Town Code does not permit such structures in the commercial district.
The maintenance of a 50-foot setback from the eastern property line shared with the Southern Shores Landing to any buildings, parking spaces, incinerators, trash collection areas, etc., on the SAGA property and the preservation of the existing vegetative buffer.
The maintenance of a 50-foot setback from the northern property line shared with All Saints’ Episcopal Church to buildings, parking spaces, etc., on the SAGA property, and the preservation of the existing vegetative buffer.
The italicized language above is from the Town Code section that regulates the C General Commercial district. A 50-foot setback is required in the commercial district from boundaries of “residential districts.” See sec. 36-207(d)(7).
Mr. Gupta said last week that he has no issue with the SUP approval conditions suggested by Mr. Haskett, except for the 50-foot setback with the Landing. He said he had arranged for a 34-foot setback from this shared boundary and is only required by the Town Code to observe a 15-foot setback because the Landing is in a commercial district, not a residential district.
In support of this contention, the SAGA CEO said that the Landing is a Planned Unit Development (PUD), which is only “allowed under a commercial designation.”
Indeed, the Town Code specifies that PUDs are permitted uses in the commercial district. (See sec. 36-207(b)(6)). The zoning status of the Landing has been a matter of much confusion and dispute: Mr. Ogburn has said that it is commercial.
“We submitted something [a site plan] that we thought had some consideration for the neighbors,” Mr. Gupta observed. “We did increase setbacks,” but he said he was “having heartburn about” the Landing setback.
***
Folks, we apologize for writing so much in this post, but editing time has not been afforded to us this week. We may post a Part Three to this report, but it will not be before the week of Oct. 9.
The Planning Board will continue its review of SUP 23-01 on Monday, Oct. 16, at 5 p.m. in the Pitts Center.
The Southern Shores Beacon 