As The Beacon reported 11/7/18, Town Attorney Ben Gallop enumerated at last week’s special meeting 12 legal options for preventing high-occupancy houses in Southern Shores—such as the two 12-bedroom, 17-parking-space structures with septic capacity for 24 people that SAGA proposes to build on the oceanfront—that he did not recommend. Among them were limitations on septic-use capacity.

In his “risk-reward analysis,” Mr. Gallop supported the position that the Senate Bill 25 amendments to N.C. General Statute §160A-381, which took effect in 2015, prohibit towns from regulating septic-use capacity because such a limitation would be an “indirect” application of a regulation on the number of bedrooms. He essentially argued in favor of the Outer Banks Home Builders Assn.’s interpretation of NCGS §160A-381(h).

But not all land-use lawyers agree with this interpretation. Among them is Professor David W. Owens, of the University of North Carolina School of Government, whose Oct. 30, 2018 letter to Mayor Tom Bennett, expressing a different view, was read aloud by the Mayor at the Nov. 7 special meeting.

Professor Owens, who lives part-time in Southern Shores, is the author of the basic legal reference, “Land Use Law in North Carolina.” Before joining UNC’s faculty in 1989, he spent 10 years with the N.C. Division of Coastal Management, according to his profile on the UNC School of Government’s website.

Mr. Gallop acknowledged Professor Owens as a foremost authority on N.C. land-use law and even held up the professor’s textbook as a go-to source for him.

This time, however, the Town Attorney disagrees with the expert.

The new state law, NCGS §160A-381(h), lists those building-design elements that counties and towns cannot regulate, and one of them is “the number and types of rooms.” Hence, the invalidation of the seven-bedroom restriction in Southern Shores that kept occupancy in check since its enactment in 2001. [See The Beacon’s blog, 10/11/18.]

The new statutory subsection further specifies that:

“Regulations prohibited by [160A-381(h)] may not be applied, directly or indirectly, in any zoning district . . . unless voluntarily consented to by the owners of all the property to which those regulations may be applied . . . ”

Mr. Gallop said that a limit on the septic-use capacity of single-family dwellings would be an “indirect” application of a regulation on the number of bedrooms. In other words, it’s another way of restricting the number of bedrooms without restricting the number of bedrooms.

In his letter to the Mayor, Professor Owens notes that another subsection of the law, NCGS §160A-381(a) “expressly allows the town to regulate both the size of buildings and the density of population. . . . [The town may] regulate the density of population by setting maximum septic and parking capacity for residential lots.”

Professor Owens then cites a 2014 N.C. Court of Appeals’ case upholding a Chapel Hill zoning restriction that limited the number of cars that could be parked at residences in a particular zoning district as a “good illustration of this authority.” At the Nov. 7 special meeting, Mr. Gallop disagreed with Professor Owens’s reading of the legal holding (outcome) of this case, Patmore v. Town of Chapel Hill, but I don’t believe that Patmore need come into the septic-use capacity question.

The most relevant section of Professor Owens’s letter is his conclusion that:

“If the town elects to include [a septic-use capacity] restriction in your ordinance, it should be based on regulating maximum occupancy by limiting the total septic capacity allowed per lot, setting a maximum daily flow rate, or using a similar measure based on occupancy and density, not the number of bedrooms in the structure. It should be the maximum number of occupants of a residence that is regulated, not how many rooms are used to house those occupants.”

I agree. As Professor Owens describes the “land use and zoning concern,” it is “having twenty-four occupants of a single-family home, whether they are all in a single bunkroom or are in twelve bedrooms.” It’s occupancy, not bedrooms.

I have attached a copy of Professor Owens’s letter to the Mayor here: Large house

It is part of the public record.

The Southern Shores Town Code used to limit occupancy with an ordinance that defined a single-family dwelling as “consisting of no more than seven bedrooms or septic capacity for more than 14 people.”

I see no reason why the Town couldn’t resurrect the provision limiting septic capacity to no more than 14 people, using ordinance language that stays steer of any reference to the number of bedrooms as the means by which septic capacity is determined. How the Dare County health department determines septic capacity is not directly the Town’s concern.

Members of the Town Planning Board indicated at their Oct. 15 meeting that they were interested in pursuing occupancy control via a restriction on septic capacity.

Member Andy Ward, a longtime Southern Shores homeowner and builder, said then that he believes such a restriction “is very feasible to do. We just have to figure out how to do it. As a town, we have to figure out how to regulate septic capacity.” [See The Beacon’s blog, 10/16/18.]

Mr. Ward spoke at the special meeting in his capacity as a private citizen and renewed this appeal. After Mr. Gallop opposed such a septic-capacity restriction, however, only two of the five Town Council members showed an interest in pursuing one. They were Councilmen Gary McDonald, who made a motion to have Town staff prepare a zoning-text amendment that included a septic-capacity limit, and Fred Newberry.

Mr. McDonald’s motion was defeated, 3-2, with the Mayor and Councilmen Jim Conners and Chris Nason voting against it. [See The Beacon’s blog, 11/7/18.]

I welcome your comments on this issue.

Ann G. Sjoerdsma, 11/13/18

 

Did Southern Shores homeowner and SSCA board member Rod McCaughey emerge victorious in his write-in campaign for a seat on the Dare County Soil and Water Conservation District Board of Supervisors? Inquiring minds want to know.

Answer: We’ll know on Nov. 16 at 11 a.m. That’s when the Dare County Board of Elections will canvass the results for all of the local elections held on Nov. 6, according to a DCBOE spokeswoman.

The DCBOE will upload all of the county results on canvassing day to the N.C. State Board of Elections and Ethics Enforcement, which will post them on its website.

Mr. McCaughey worked the polls in Southern Shores on Election Tuesday for nine hours, he told The Beacon, an experience that he found both rewarding and educational.

If elected, Mr. McCaughey would succeed one of the three elected members of the five-member nonpartisan Soil and Water Conservation District Board of Supervisors, whose terms are staggered with those of two supervisors appointed by the county Soil and Water Commission. The supervisors serve for four years. Mr. McCaughey’s term would begin in December. More than 2,000 write-in votes were cast for the two vacancies on the board.

I assume all of you know who won the other county elections and all of the state seats, both judicial and legislative, that were being contested. The Outer Banks Voice, the Outer Banks Sentinel, and other local media have covered all of the results. The State Board of Elections’ canvassing of statewide elections occurs on Nov. 27 at 11 a.m.

CAPITAL IMPROVEMENT PLANS

The Town’s Capital Improvement Plan Committee, which is chaired by Mayor Tom Bennett and Town Councilman Jim Conners, will meet Thurs., Nov. 15, at 2 p.m., in the Pitts Center, to discuss ongoing FY 2018-19 projects and to review the list of needed street improvements recommended for this fiscal year.

According to the committee agenda posted on the Town’s website, the seven committeemen also will consider recommending to the Town Council that two large trees along the new East Dogwood Trail sidewalk be removed: one at 63 E. Dogwood Trail and the other at 57 E. Dogwood Trail. Plans for the sidewalk called for no trees greater than 8 inches in diameter to be removed; hence, the need for approval from the Council.

The committee also will address possible needed improvements that “have emerged for discussion,” according to the agenda, including action on South Dogwood Trail.

You will find the committee’s agenda here:

https://www.southernshores-nc.gov/wp-content/uploads/2018/11/CIP-Committee-Agenda-for-Public-Notice-11-15-18.pdf.

The CIP committee meeting is public, of course, but no time is set aside for public comment. Typically, members of the public have the opportunity to speak at the conclusion of the meeting, if they wish.

Ann G. Sjoerdsma, 11/9/18

 

Before I delve into the details of yesterday’s surprise motion, I’d like to return to a question that all interested Southern Shores property owners have, but wasn’t adequately answered by the Town Council during the special meeting: Can the Town stop the two proposed SAGA houses?

The Mayor said at the beginning of yesterday’s meeting that the Town could not deny the two CAMA permits that were issued. It had no choice. I dispute this, and I, along with at least six other property owners, have filed with the N.C. Division of Coastal Management petitions for third-party hearings on appeals of these permits. Our goal, albeit a long shot, is to secure a suspension of the permits first, and then a rescission.

The process we have invoked is a State administrative process, and it has no bearing on the local-permitting process. No “stay” (stoppage) in the local process has occurred because of our petitions.

When SAGA’s proposed 16-bedroom wedding-destination structure at 64 Ocean Blvd. became public knowledge, the developer was not in the permitting process. According to Town Attorney Ben Gallop, whom I asked yesterday after the morning meeting, SAGA had not filed an application for any permits, so it was in a different legal position than it is now with the properties at 98 Ocean Blvd. and 134 Ocean Blvd.

SAGA has received one local lot-disturbance permit for 98 Ocean Blvd., allowing it to do demolition. I am not aware if it has filed an application for the building permit.

SAGA does not yet own 134 Ocean Blvd., so it cannot apply for any Town permits.

Can the Town stop either or both of these proposed mega-houses? This is something that I adamantly believe the Town Attorney should have directly addressed yesterday. Instead, he told us what he did not recommend. If there is a slim possibility of legally stopping either or both of these mega-houses, he should have told the public how. Mayor Tom Bennett should have instructed him to do so, and, in the absence of such an instruction, one of the Town Council members should have specifically asked Mr. Gallop.

The question to ask a lawyer is not, can we stop these houses, but HOW do we stop these houses? Mr. Gallop is risk-averse. I say, let’s roll the dice.

I am not a land-use lawyer. I do not know zoning law, like the back of my hand. But I am adept at legal research, and I believe I could have come up with an option that gives the Town a fighting chance to stop the construction of SAGA’s proposed houses. There are always “legal hurdles to overcome,” as Mr. Gallop said before enumerating the options that he did not recommend. But sometimes it’s worth the time and money spent trying to hurdle them.

As I said in an earlier blog this week, the Town Attorney works for us. We are the Town, and we have spoken out loudly against these structures. It would appear that we were heard, but not listened to.

THE MOTION

As The Beacon reported yesterday, the Southern Shores Town Council unanimously passed a motion at the special meeting on high-occupancy houses to direct Town staff to work with the Town Planning Board to draft a zoning text amendment (ZTA) that it believes would prevent future developments like the 12-bedroom structures that SAGA Construction proposes to build at 98 Ocean Blvd. and 134 Ocean Blvd. The ZTA would do two things:

1)      create an “overlay” zoning district that would consist of properties east of N.C. Hwy. 12 and properties that abut the west side of Hwy. 12 and

2)      set forth zoning regulations, such as building height, lot coverage, and parking restrictions, etc. (see below), for properties in the overlay district that would depend upon whether the houses on these properties were 4,000 square feet or smaller or between 4,000 and 6,000 square feet.

Councilman Jim Conners made the motion, and Councilman Chris Nason seconded it. The following is the text of the motion that Mr. Conners submitted to Town Clerk Sheila Kane yesterday, and she kindly forwarded to me, at my request:

“I MOVE that Council direct Town staff to draft a proposed zoning text amendment to the existing Town Code, for Council’s review at its December meeting, proposing an oceanfront area residential overlay district to encompass all properties east of N.C. Hwy. 12 and those properties abutting the west side of N.C. Hwy. 12, as well as development standards for this overlay district that will include the following:

“1. Setbacks: side setbacks of 20 feet for structures up to 4,000 square feet (“SF”);

side setbacks of 25 feet for structures over 4,000 SF and not greater than 6,000 SF;

front setback of 25 feet for structures up to 4,000 SF;

front setback of 50 feet for structures over 4,000 SF and no greater than 6,000 SF;

rear setback of 25 feet for all structures or as established by CAMA regulations;

impervious paving setback of 10 feet from side property line for structures up to 4000 SF;

impervious paving setback of 15 feet from side property line for structures over 4,000 SF and no greater than 6,000 SF

“2.  Building height:  35 feet for structures up to 4,000 SF; 28 feet for structures over 4,000 SF and no greater than 6,000 SF

“3.  Lot coverage: 30 percent for structures up to 4,000 SF; 25 percent for structures over 4,000 SF and no greater than 6,000 SF

“4.  Refuse/recycling: a number recommended by Town staff of trash receptacles required for all structures up to 4,000 SF; a number recommended by Town staff of trash receptacles required for all structures over 4000 SF and no greater than 6,000 SF.

“5. Landscape buffer: 10 foot-wide single row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) for structures up to 4,000 SF along the side property lines; 15 foot-wide, double-staggered row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) for structures over 4,000 SF and no greater than 6,000 SF along the side property lines; 10-foot-wide single row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) along the front property line for all structures no greater than 6,000 SF. [Mr. Conners underlined these phrases.]

“6. Parking: all parking spaces to be 10-feet-by-20-feet; all parking spaces to be adjacent to a two-way, 18-foot-wide (minimum) drive aisle; no stacked parking allowed.”

When I heard this motion yesterday, my thoughts were, in order:

Setbacks: How do these requirements square with the setback requirements in restrictive covenants of deeds? I know they’re there because I’ve seen them. The covenants differ by blocks, but a setback from the road (Ocean Blvd.) of 25 feet was standard in many deeds of oceanfront properties. Side setbacks were typically 10 feet.

Height and lot coverage: Wow, they’re looking to lower the height restriction and lot coverage on houses between 4,000 and 6,000 square feet. Thank you! And good luck.

Trashcans: OK. No big deal, but a permissible regulation.

Landscape buffers: You must be kidding. So now my siblings and I, who own a 1,700-square-foot oceanfront cottage that our parents built in 1971, have to plant landscape buffers, which we don’t like, don’t need, and have no interest in paying someone to tend, or—what?— we’ll be fined? The landscape police will be after us? We don’t care for landscaping and lawns. We like the wild, natural, untended look. So, not only would we be coerced into planting vegetation that we don’t like and we don’t want, we would be coerced into planting vegetation buffers 10 and 15 feet wide!! That’s huge and expensive, especially on deep land parcels, like the one we own.

Frankly, when compared to such governmental overreaching, SAGA starts to look good. Is it a coincidence that Mr. Conners is in the landscaping business?

I know that the “use of buffering or screening to minimize visual impacts, to mitigate the impacts of light and noise, or to protect the privacy of neighbors” is permitted under N.C. General Statute §160A-381, the building designs law that the State Legislature amended in 2015, resulting in the bedroom restriction being invalidated, but this is ridiculous.

Parking: How large is the standard parking space? Ten-by-20 seems large to me. I like the idea of prohibiting “stacked” parking, but how is that defined?

My bottom-line assessment, without doing a lot of thinking, is that while I generally like the overlay district concept, as framed in the motion, it seems way too complicated to establish and administer. I also envision many challenges to it. The arbitrary differentiation of house sizes is especially problematic. And, when questioned by Councilman Gary McDonald yesterday about the area covered by the district, Mr. Conners defined a very broad area that includes all west-side properties along Duck Road and along Ocean Boulevard in the 25-mph zone, north of the fork in the road. There is considerable diversity in the size of lots in this broadly defined area.

Would all existing developed properties be “grandfathered” in? If so, what happens when they’re sold and houses are torn down?

I am in Mr. McDonald’s camp about new regulations to control high-occupancy houses: Make them simple. I was disappointed yesterday that his ideas were summarily dismissed by Councilman Conners, Mayor Tom Bennett, and Councilman Chris Nason. These three had clearly conferred before the meeting and settled on the overlay district/regulations within the district as the way to go. I believe more open-ended discussion in a public forum should have occurred before yesterday and before a motion was prepared.

The State’s open meeting law exists for a reason, and that is to ensure that government officials do the public’s business in the open and on the record. When members of public bodies, such as the Town Council and the Planning Board, arrange to have no more than two of their members sitting down in the same room for a meeting—but then later call, email, or text a third member, thus involving a majority of that body—they may not violate the letter of the open meeting law, but they tamper with its spirit and intent. Such public-body members should seriously think about holding more public meetings.

Two meeting scheduling changes made since yesterday morning’s meeting affect the progress of the proposed ZTA: First, Planning Director Wes Haskett announced last night that the Planning Board’s Nov. 26 meeting, which was a rescheduling of its Nov. 19 meeting, has been canceled because no applications have been received. Why the Planning Board needs to receive applications in order to meet and continue its ongoing business eludes me. Second, the December meeting of the Town Council has been rescheduled from Dec. 4 to Dec. 11, at Councilman Fred Newberry’s request. Mr. Newberry is having knee surgery earlier in December.

***

FIRE STATION APPROVED, FUNDED

As I reported late yesterday, the Town Council unanimously voted to approve construction of the new $5.4 million SSVFD fire station and to fund it. It also unanimously approved the new 10-year fire services (FY 2019-2029) contract with the SSVFD.

As The Beacon reported 11/5/18, A.R. Chesson Construction Co. of Elizabeth City submitted the winning bid for the fire-station project of $5,409,223. The SSVFD selected United Financial of Asheville to service the debt. United Financial offered financing over a 25-year term of $5,419,223, at an initial interest rate of 3.71 percent. The interest rate would be fixed for the first 10 years and reviewed at the end of the 10th year. The mortgage amount includes $10,000 over Chesson’s bid to cover “regulatory inspections as required by code,” according to SSVFD Chief Edward Limbacher.

Town Manager Peter Rascoe informed the Town Council last night, as he did in a Nov. 1 memo, that if the Town Council took on this debt, the impact on the Town’s annual budget, starting in FY 2019-2020 and continuing for at least nine fiscal years thereafter, would be an additional annual expense of $333,551.96, if the debt were paid in quarterly payments, or $334,484.78, if it were paid in two semi-annual payments.

I leave more numbers about where this money would come from—a point thoroughly discussed at last night’s meeting—for another day.

Ann G. Sjoerdsma, 11/8/18

[The following blog replaces one that I posted earlier today, before I could reach some of my sources.]

The Southern Shores Town Council unanimously passed a lengthy motion at this morning’s special meeting on high-occupancy houses to direct Town staff to work with the Town Planning Board to draft a zoning text amendment (ZTA) that would do two things:

1)      create an “overlay” zoning district that would consist of properties east of N.C. Hwy. 12 and properties that abut the west side of Hwy. 12 and

2)      set forth zoning regulations, such as building height, lot coverage, and parking restrictions, for properties in the overlay district that would depend upon whether the houses on these properties were 4,000 square feet or smaller or between 4,000 and 6,000 square feet.

Councilman Jim Conners made the motion, reading from a prepared document that Town Attorney Ben Gallop most likely drafted. The creation of the overlay zoning district was one of three options discussed by the Town Council to address property owners’ concerns about SAGA’s proposed plans to build 12-bedroom, 12-bathroom, nearly 6,000-square foot structures with 17 parking spaces and septic capacity of 24 people at 98 Ocean Blvd. and 134 Ocean Blvd. The Council did not take any action that would prevent these two developments from going forward; it focused instead on preventing future similar structures.

After reading his motion, Mr. Conners said he wanted “to get a concept out there,” the concept being that of an overlay district for oceanfront and oceanside properties, which often are improved with rental houses. Houses in this new zoning district, according to Mr. Conners’s motion, would be specially regulated according to setbacks, building height, lot coverage, number of trash receptacles, landscape buffers, and parking-space size, all zoning matters that the Town has the legal authority to regulate.

Mr. Conners also included in his motion that Town staff would report back to the Town Council at its December meeting, which was changed from Dec. 4 to Dec. 11, at Councilman Fred Newberry’s request (he is having knee-replacement surgery), at tonight’s Council meeting.

Town Councilman Chris Nason quickly seconded Mr. Conners’s motion.

(Note: I did not specifically confirm that Mr. Gallop authored the motion, but after the meeting, the Town Attorney informed me that the language would be easy to transfer to a proposed ZTA. According to Town Clerk Sheila Kane, the motion will be publicly available tomorrow; I will publish it as soon as possible. Ms. Kane also said that the videotape of the meeting may not be online for another week.)

Councilman Gary McDonald suggested another “option” that he thought could be explored simultaneously with the overlay district concept and which he said could have a “more immediate” impact than the comprehensive plan proposed by Mr. Conners. Mr. McDonald suggested that the Town Planning Board look into amending the Town zoning ordinances to redefine the living space considered in evaluating house size as “total enclosed area,” a definition used in CAMA, rather than “enclosed living space,” and to put restrictions on septic capacity and parking spaces.

Mr. McDonald’s motion, which would have benefited from a prepared text, was defeated 2-3, with Councilman Fred Newberry supporting it.

In an earlier blog that I posted before I could speak with Councilman McDonald, I objected to how Councilman Conners summarily dismissed Councilman McDonald’s motion as counter-productive. I suggested that the lengthy motion presented by Mr. Conners was the work of 3/5 of the Town Council: Mayor Bennett, Councilman Chris Nason, and Councilman Conners, meeting or talking during the past three weeks with Mr. Gallop, Town Manager Peter Rascoe, Town Planning Director Wes Haskett, and others who are privy to their confidences.

After tonight’s Town Council meeting, I confirmed that Mr. McDonald was unaware of the content of the motion until he heard it read this morning and that he did not participate in any meetings with any of the people I just mentioned. Councilman Fred Newberry told me that he knew about the motion, but not the details.

I strongly object to a cabal-like form of Town government. There should be both transparency and inclusion in Town government–among elected officials and with the public. I grow weary of the three-person majority of Bennett-Conners-Nason excluding the other two Council members we elected from participation in important decision-making.

Mayor Bennett presented a different option that was better received and did not need a vote, that of lobbying the N.C. General Assembly to undo the damage that it did in 2015 when it took away from towns the authority to restrict the number of (bed)rooms in houses. The State legislature passed a substantial change to N.C. General Statute §160A-381, which deals with zoning power, by adding a section (h) that substantially restricts what towns and counties can do to regulate “building design elements.”

[See the Beacon’s 10/11/18 blog: PROPOSED 12-BEDROOM SAGA HOUSE: WHAT HAPPENED TO THE 7-BEDROOM RESTRICTION IN SOUTHERN SHORES? CAN THE TOWN LEGALLY LIMIT OCCUPANCY?]

“I have strong reason to believe it [lobbying for a change in the law that would restore the town’s authority to limit bedrooms] would work,” the Mayor said.

Mr. Bennett also said he had spoken with “every mayor” in nearby beach towns and that each “will get re-involved.” He characterized the mayors of Duck and Nags Head as having a particularly “strong interest” in undoing the 2015 statutory change and said that the N.C. League of Municipalities is willing to “lobby on our behalf.”

The Mayor asked for property owners’ help in this effort and concluded by saying, “I guarantee I’ll work hard to make it work.”

PUBLIC HEARING, LEGAL ANALYSIS

Fourteen property owners spoke in the public hearing portion of the meeting, which preceded a presentation by Mr. Gallop of his legal analysis, which, in turn, preceded Mr. Conners’s motion. To a person, each speaker was articulate and passionate about the town he or she loves and very thoughtful about the solutions he/she offered to prevent high-occupancy structures such as SAGA’s two proposed “mega”-houses.

Several people found it difficult to speak because they were so emotional about Southern Shores and the history that their family has with the town. I found their tears to be touching, and I congratulate them for getting up, composing themselves, and speaking. Public speaking is never easy, even for those of us who have done it more often than we can remember.

The motion that Mr. Conners read was not knocked out this morning. It was three weeks in the making, and it was an effort that clearly involved Mayor Bennett, Mr. Gallop, Mr. Rascoe, Mr. Haskett, and, most likely, Mr. Nason, and some Planning Board members.

I believe the text of the motion, or Mr. Gallop’s legal analysis, should have been in the meeting packet for the special meeting, instead of all of the irrelevant reference materials that were there.

Property owners should have been advised before this morning of the direction the Town Council, with advice from the Town Attorney, had decided to go in. If they had been, they could have addressed the “concept” Mr. Conners introduced, rather than advocating for zoning restrictions that Mr. Gallop would later dispose of by including them on his list of controls that he could not recommend.

After the public hearing. Mr. Gallop enumerated, by my count, 12 possible actions that people might think could be taken, such as restricting the number of vehicles that can be parked at a house, limiting septic-use capacity per house, and even treating SAGA’s mini-hotels as commercial properties, but that he could not recommend. He then listed six areas that the Town clearly has authority to regulate: They include building height; the number of stories of a structure; density of population in a location; house size; the percentage of lot coverage; and yard setbacks.

Besides Mr. McDonald’s alternative option, Planning Board member Andy Ward spoke publicly in his capacity as a private property owner to advocate for restricting septic capacity. He offered the opinion of David Owens, a prominent N.C. land-use attorney who lives part-time in Southern Shores, as legal authority for this approach. Mr. Gallop offered a rebuttal to Mr. Owens’s opinion, and the septic-capacity issue went no further.

It seems to me that both Mr. McDonald’s and Mr. Ward’s suggestions were worth exploring and neither was a “quick fix.” They were simply different approaches. The Town Attorney and Town staff could prepare more than one ZTA and offer the public and the Planning Board a choice. In January 2016, when the Town Council passed the ZTA that established the maximum house size of 6,000 square feet, it chose from three zoning text amendments before it. Mr. Gallop is quite capable of preparing multiple ZTAs.

It was troubling to me that, through Mr. Conners’s motion, the Town Council presented a “done deal,” even though I think the deal, i.e., the concept, is an excellent one. Process is everything, and the process employed to arrive at the lengthy motion leaves me uncomfortable and disappointed.

Other points to report:

• Councilman Nason, a local architect with his own company, addressed the suggestion that he had a financial interest in SAGA’s proposed developments and that, indeed, he had designed them. He said that he had “the opportunity” to design these houses, but he declined. He also said that he has worked with SAGA in the past, but that he has never worked with the Kill Devil Hills-based developer in Southern Shores.
• Mr. Gallop confirmed for me after the meeting that the Town cannot deny issuance of the building permit for the 98 Ocean Blvd. development unless there is something wrong with SAGA’s application. As I reported yesterday, the Town on Monday issued the lot disturbance-stormwater management permit for demolition on the site. (See photo above.)
• As for the proposed development at 134 Ocean Blvd., SAGA still does not own that property. The settlement has been postponed and is now set to occur Nov. 14, according to my sources. I asked Mr. Gallop if, theoretically speaking, the Town could stop this development by enacting a change in the maximum house size ordinance today, tomorrow, i.e., very soon—decreasing it to 5,000-square-feet—and he replied yes. Although SAGA has received a CAMA permit for this property, it has not filed a local building application yet. This is just theoretical. As a practical matter, the Town would have to expedite action, and provisions of the Town Code would hinder such expedition.
• The Mayor also reported that he had met with the owners of SAGA and told them to “expect a lot of negative feedback.” He said he asked them if they would sell their properties to the Town, and they replied they would not. He also asked them if they would reduce the number of bedrooms and bathrooms, in order to conform with Southern Shores’ “low-density, family character,” and they said they would not.

****

LATE-BREAKING NEWS: Tonight the Town Council voted unanimously to approve the conditional use permit application submitted by the Southern Shores Volunteer Fire Dept. to build a new fire station at 15 Dogwood Trail and to fund the $5,419,223 station, whose construction will begin Jan. 2, 2019. More details tomorrow.

Ann G. Sjoerdsma, 11/7/18

With all of the talk lately about SAGA’s proposed 12-bedroom, 12-bathroom, 17-parking space, 24-person occupancy, nearly 6,000-square-foot houses at 98 Ocean Blvd. and 134 Ocean Blvd. on the Southern Shores oceanfront, the very important matter of approving and funding a new fire station has been neglected. That will change on Wednesday, when both mega/event houses and the proposed new $5.4 million fire station will command the Town Council’s and property owners’ attentions during a very busy day at the Pitts Center.

The Town Council will finally decide during its regular meeting Wednesday at 5:30 p.m. whether it will approve the conditional use permit (CUP) application submitted by the Southern Shores Volunteer Fire Dept. (SSVFD) for construction of a new fire station at 15 S. Dogwood Trail—the site of the current station. The Town Planning Board already has recommended approval, with conditions. If the Town Council approves the CUP, it will then discuss the Town’s contribution to the financing of the construction project.

According to correspondence from SSFVD Fire Chief Edward Limbacher, which you can find online in the Nov. 7 regular meeting packet, the SSVFD has selected a contractor for the construction job and a lender for the financing. Chief Limbacher is recommending A.R. Chesson Construction Co. of Elizabeth City as general contractor. Among three bids received on the project, Chesson submitted the lowest bid at $5,409,223.

You will find the meeting packet here: https://www.southernshores-nc.gov/wp-content/uploads/2018/11/November-Regular-Meeting-Packet.pdf. (See pages 12-13 for key memoranda.)

SPECIAL MEETING AGENDA

I’ll give you more details about the fire station project, below. First, however, I’d like to share the agenda that was posted on the Town’s website for Wednesday morning’s “special meeting” about high-occupancy houses, which is scheduled at 10 a.m. in the Pitts Center. It is as follows:

Opening—Mayor Bennett

Call Meeting to Order

Pledge of Allegiance

Moment of Silence

Purpose of Special Meeting–Mayor Bennett

The specific purpose of the Special Meeting is for the Town Council to (1) consider all available options, if there are any, to further limit occupancy of single-family dwellings in Southern Shores, and, (2) provide opportunity for any Council member to seek Council approval to initiate the process of adopting a specific option, if available, to further limit the occupancy of single-family dwellings, and (3) allow a period of public comment on the purpose of the special meeting, subject to the Town’s rules for public comment.

General Public Comment (Limit: 3 minutes per speaker)

Town Attorney

Available Legal Options for Town Council to Consider for Possible Further Amendment to the Town Code to Address Future Large Single-Family Dwellings

Council Deliberation (Council may take action on matters within the purview of the Purpose of the Special Meeting.)

Adjourn

This is verbatim from the website posting. See https://www.southernshores-nc.gov/wp-content/uploads/2018/10/Special-Meeting-November-7-2018.pdf.

Why, The Beacon asks, is the Town Attorney enlightening the assemblage about the “available legal options . . . to consider for possible . . . amendment to the Town Code” after the public has spoken? Why cannot we, the tax-paying “public,” hear what the Town Attorney has most certainly advised Mayor Tom Bennett, Town Manager Peter Rascoe, Deputy Town Manager/Planning Director Wes Haskett, and members of the Town Council and the Planning Board about what he believes are legally feasible means to prevent future oversized single-family dwellings, such as those proposed by SAGA Construction at 98 Ocean Blvd. and 134 Ocean Blvd., before we speak?

In the Oct. 26, 2018 Town of Southern Shores newsletter, Town staff announced that the Town Attorney was working with staff to develop some “legal options for consideration.” So the staff knows what Town Attorney Ben Gallop is going to say . . . and don’t they work for us?

I would like very much for Mr. Gallop to give his legal opinion before Southern Shores land- and homeowners give their opinions. It would serve to direct and focus public comments and eliminate redundancy. I’m not going to even mention that our property taxes pay for the Town Attorney’s services, and that he, too, works for us, because that would be rude. Bottom line, the order of the agenda is not going to change.

So, if you plan to comment on Wednesday about the high-occupancy houses, bear in mind that a legal discussion will ensue after you’ve spoken. The Town Council would like to hear what you think about the houses that SAGA has proposed, whether you are for or against them, how you regard their presence in Southern Shores, what effect you believe they will have on the town’s appeal and character, on property values, on trash collection and traffic congestion, on your use and enjoyment of the beaches, etc., etc.

If you also choose to address legal options, please remember: The Town cannot restrict the number of bedrooms. It seems that some people still believe that the Town has the power to limit the number of bedrooms, as it did from 2001 to 2015, but it does not. The N.C. State Legislature took that power away in June 2015.

Please think instead about further restricting maximum house size or parking spaces or “living” space or regulating septic capacity per house. The Town Council replaced the bedroom restriction, which the legislature invalidated, in January 2016 with a maximum house size limit of 6,000 square feet of enclosed living space. It also considered a septic-capacity limit, an idea that was floated by the Planning Board at its October meeting. The Town of Duck is currently considering such a control, as well.

I have been asked repeatedly by property owners, both resident and non-resident, what they can expect from the special meeting. I hesitate to answer that. All of my sources have talked to me off-the-record. I think it’s safe to say that property owners who oppose development like SAGA’s houses will find their viewpoint supported by a majority of the Town Council. I think it’s also safe to say that amendments to the Town Code of Ordinances to curtail such development will be discussed.

You can expect the “powers-that-be” in Town Hall to have done their due diligence and to be prepared. If the Town’s CAMA-approved land-use plan has any meaning and influence, the Town Council will be compelled to take action.

APPROVING AND FINANCING THE NEW FIRE STATION

Although the proposed new 14,000-square-foot fire station has been a topic of discussion for months, the conditional use permit for its construction has not yet been approved by the Town Council. That is a major order of business for the Town on Wednesday night. Assuming the Town Council approves the CUP, which it undoubtedly will, members will then discuss the more contentious issue of funding “debt service” for the construction.

In a Nov. 1 memo to Town Manager Rascoe, SSVFD Chief Limbacher said that he and Kenneth C. Newell, the SSVFD’s architect, recommend A.R. Chesson Construction Co. as general contractor for the new fire station project, and United Financial, of Asheville, to service the debt. The Chief said that Chesson has “done many major projects here in Dare County, including a few for the NC Aquarium.”

As noted above, A.R. Chesson’s winning bid was $5,409,223. According to an Oct. 30 proposal sent to the Fire Chief, United Financial, which is a division of Home Trust Bank, has offered financing over a 25-year term of $5,419,223, at an initial interest rate of 3.71 percent. The interest rate would be fixed for the first 10 years and reviewed at the end of the 10th year. The mortgage amount includes $10,000 over Chesson’s bid to cover “regulatory inspections as required by code,” according to Chief Limbacher.

Town Manager Rascoe forwarded Chief Limbacher’s memorandum to the Town Council. In his Nov. 1 memo to Council members, Mr. Rascoe noted that if the Town Council accepts Chief Limbacher’s recommendations, the impact on the Town’s annual budget, starting in FY 2019-2020 and continuing for at least nine fiscal years thereafter, will be an additional annual expense of $333,551.96, if the debt is paid in quarterly payments, or $334,484.78, if it is paid in two semi-annual payments.

There has been no publicly issued analysis by the Town Manager of how the Town could/would cover this additional expense. The obvious question is whether the Town would raise property taxes to cover it or trim the budget elsewhere, for example, by cutting back on capital improvements, beach nourishment, or other projects. The Beacon sees the cart coming before the horse here. It is disconcerting that the Town Council will be considering a commitment of funds without knowing where the monies will come from and without giving the public an opportunity to comment on the sourcing.

United Financial’s payment terms are good through Nov. 15, according to its proposal.

Chief Limbacher told Mr. Rascoe that he sent a Request for Proposal out to five lending institutions, but there are only two financing proposals in the meeting packet materials. PNC Bank of Raleigh proposed a 10-year loan with payments based on an amortization of 25 years.

The other construction companies that bid on the fire station project and their bids are:

McKenzie Construction Corp.: $5,499,772

Swimme & Son Building Contractors: $6,207,967

Also Wednesday evening, the Town Council will consider the SSVFD’s fire services contract for the next 10 years, from 2019-2029.

In FY 2018-2019, the Town appropriated $545,914 to the SSFVD for provision of fire protection services. This amount, according to the proposed FY 2019-2029 contract, shall be considered the “Base Compensation” for FY 2018-2019. In subsequent years, the amount of funding appropriated by the Town shall be referred to as “Base Compensation.” The contract further specifies:

“No annual total compensation shall ever be less than the Base Compensation, plus annual debt service expenses, which have been specifically approved by the Town Council.”

The SSVFD will be submitting an annual budget each fiscal year for the next 10 fiscal years to the Town Council for its approval. Chief Limbacher said at a Town Council meeting earlier this year that he does not anticipate requesting more in base compensation in FY 2019-20 than was appropriated for the current fiscal year.

Here is the agenda for the evening meeting on Nov. 7: https://www.southernshores-nc.gov/wp-content/uploads/2018/10/Nov-7-2018.pdf.

See everyone on Wednesday. It’s going to be a long day!

Ann G. Sjoerdsma, 11/5/18

 

You have until this Saturday to cast your ballot in the Nov. 6 general election by early voting. The polls will be open from 7 a.m. to 7 p.m. today, tomorrow, and Friday, and from 8 a.m. to 1 p.m. on Saturday. There are only three polling stations open for early voting, and they are:

DARE COUNTY ADMIN. BLDG., 954 Marshall C. Collins Drive, Manteo

KILL DEVIL HILLS TOWN HALL, 102 Town Hall Drive, KDH

FESSENDEN CENTER ANNEX, Buxton

As I already told Beacon Facebook readers, I voted yesterday in Kill Devil Hills around 1:30 p.m. and had to wait about 20 minutes in a short line. A wait is seemingly inevitable: You have to fill out your ballot by hand—there are no computers—and the ballot is lengthy. It will take time for voters who do not know the candidates and are unfamiliar with the six proposed N.C. Constitutional amendments to read and complete it.

You will find a sample copy of the ballot, courtesy of The Outer Banks Sentinel, here: https://bloximages.chicago2.vip.townnews.com/obsentinel.com/content/tncms/assets/v3/editorial/0/c0/0c010b2c-d1af-11e8-b195-932b01b7544b/5bc6959b950fb.pdf.pdf.

On Election Day, many more precincts/polling stations will be open, including the Pitts Center in Southern Shores. Voting hours will be 6:30 a.m. until 7:30 p.m. The Sentinel published a list of all the polling stations here:

https://www.obsentinel.com/news/where-to-vote-on-election-day-nov/article_77dd8938-d1af-11e8-af03-4fb25056c448.html.

Early voting in our area has reportedly been brisk, even though North Carolina does not have a U.S. Senate race this year and Congressman Walter B. Jones is running unopposed for his U.S. District 3 House seat. Dare Board of Elections Director Michele Barnes told The Sentinel that 5,524 votes had been cast through Oct. 29, not counting absentee votes.

I strongly urge you to take advantage of early voting in the remaining days. Don’t be discouraged if you arrive and the line is out into the parking lot. I believe the lines on Election Day are going to be FAR worse.

ROD MCCAUGHEY RUNNING WRITE-IN FOR SOIL/WATER SUPERVISOR

The Beacon has learned that Rod McCaughey, a Southern Shores resident homeowner, is running a write-in campaign for a seat on the Soil and Water Conservation District Board of Supervisors, a nonpartisan office. There are two seats open on the five-member Board of Supervisors, each of which has a term of four years. These offices appear on your ballot after all of the judicial offices. You may write in two names.

Mr. McCaughey is active in the Southern Shores Civic Assn. He serves on the SSCA Board of Directors and is chairperson of the Bylaws/Long-range Planning/Architectural Review Board committee. Now that his and his wife’s children are grown and he is retired, Mr. McCaughey told The Beacon that he would like to participate actively in civic and municipal activities that he didn’t have time for earlier.

According to the Dare County website, “protecting and enhancing water and soil quality is the mission of the Dare Soil and Water Conservation District.” For more info about the Conservation District, see https://www.darenc.com/departments/soil-and-water.

A REFRESHER ON THE CANDIDATES

I previously covered the election races in a blog posted 9/26/18, but it doesn’t hurt to publish a refresher.

N.C. GENERAL ASSEMBLY

In N.C. Senate district one, which includes Dare County, Democrat D. Cole Phelps is running against Republican Bob Steinburg to succeed Republican Bill Cook, who decided not to run for re-election. Mr. Steinburg currently represents House district one in the General Assembly. Dare County is in House district six.*

Running to succeed Representative Beverly Boswell in House district six are Democrat Tess Judge and Republican Bobby Hanig. Ms. Boswell was defeated earlier this year in the Republican primary.

Each of these offices is for a term of two years.

DARE COUNTY BOARD OF COMMISSIONERS

There are two contested races for seats on the seven-member Dare County Board of Commissioners: Republican Anne P. Petera is running against Democrat Ervin Bateman for the at-large seat held by retiring Commissioner Jack Shea, a Repubican and Southern Shores resident; and Democrat Rosemarie Doshier is challenging incumbent Commissioner Jim Tobin, a Republican, for the district one seat. District one covers Roanoke Island and the Dare County mainland.

Incumbent Commissioner Rob Ross, a Republican, is running unopposed in district two, which includes Nags Head, Colington, and Kill Devil Hills. Southern Shores is in district three with Kitty Hawk and Duck. Steve House, a Republican elected in 2016, represents our district.

Each of the commissioners’ terms is for four years.

DARE COUNTY BOARD OF EDUCATION

Democrat Jen Alexander is challenging Republican incumbent Joe Tauber in BOE district two (NH, Colington, KDH), and Democrat Margaret Lawler, a Southern Shores resident, is running unopposed in district three (TOSS, KH, Duck). Ms. Lawler is vice-chairperson of the Board.

OTHER DARE COUNTY OFFICES

Current Register of Deeds Vanzolla McMurran, a Democrat, faces a challenge from Republican Cheryl House; and Republicans Dean Martin Tolson and J.D. (Doug) Doughtie are running unopposed for their respective offices of Clerk of the Dare County Superior Court and Dare County Sheriff.

All of the Dare County Superior and District Court judges, whose four-year terms are expiring, are running unopposed. They include:

Superior Court: J.C. Cole, Democrat; and Jerry R. Tillett, Republican

District Court: Robert Parks Trivette, Democrat; Eula E. Reid, Democrat; and Meader Harriss, Republican.

Incumbent District Attorney R. Andrew Womble, a Republican, is also running unopposed.

JUDICIAL OFFICES

On 10/20/18, I posted a blog about the judicial candidates. On Nov. 6, N.C. voters will be electing one N.C. Supreme Court justice and three justices to the N.C. Court of Appeals, or 1/7 of the State’s highest court and 1/5 of the intermediate appellate court. If you read the N.C. Judicial Voter Guide 2018, you know a little about who the candidates are.

The candidates for the Supreme Court are sitting Associate Justice Barbara Jackson, a Republican; self-employed Raleigh general practitioner Christopher Anglin, also a Republican; and self-employed Durham civil rights attorney Anita Earls, a Democrat.

Here is how the seats up for election in the Court of Appeals break down:

• Sitting Court of Appeals Judge John S. Arrowood, a Democrat who was appointed by Governor Roy Cooper, is running against Andrew T. Heath, a Republican who was a budget director under former Governor Pat McCrory, for re-election to his seat. This seat was expected to be eliminated by the Republican-controlled General Assembly in its campaign to shrink the Court of Appeals, but when Judge Douglas McCullough, a Republican, resigned, the seat survived, and Governor Cooper appointed Judge Arrowood, of Charlotte, to it.
• Wake County District Court Judge Jefferson G. Griffin, a Republican; Democrat Tobias Hampson, a general practitioner and partner with a Raleigh law firm; and New Hanover/Pender County District Court Judge Sandra Alice Ray, a Republican, are vying for seat 2.
• The election for seat 3 also has three candidates: Republican Chuck Kitchen, an attorney and former county attorney (Durham, Alamance) with 38 years of experience; Democrat Allegra Katherine Collins, a Campbell Law School professor and appellate attorney; and Libertarian Michael Monaco, Sr., a former general practitioner who now lists his occupation as product development.

Ann G. Sjoerdsma, 10/31/18

* District one in the N.C. Senate includes Dare, Beaufort, Camden, Currituck, Gates, Hyde, Pasquotank, and Perquimans counties. District six in the N.C. House of Representatives encompasses Dare, Beaufort, Hyde, and Washington counties. Camden, Currituck, Pasquotank, and Perquimans counties are in House district one, which Mr. Steinburg currently represents, along with Chowan and Tyrell counties.  

As we wind down to the special meeting on Nov. 7 about the intrusion in Southern Shores of 12-bedroom, 12-bathroom, 17-parking space houses that “sleep” 24 people—and the Town’s movers and shakers wind up their meetings, consultations, research, and other preparation about how to legally stop such high-occupancy housing—I thought I would share with you my perspective from 20 years ago about the same nuisance.

On April 27, 1998, a column that I wrote titled “In Corolla, people in big houses kick up a lot of sand,” appeared in The Virginian-Pilot, my then-employer. I was a provocative weekly op-ed columnist who tried to focus attention on the Outer Banks, my home and my passion. This column got a lot of attention.

Before I share it with you, I would like to point out that Southern Shores’ seven-bedroom restriction was in response to the rapidly accelerating trend of building so-called “McMansions” in Corolla. Southern Shores property owners were concerned that it would spread south and ruin our pristine oceanfront and family-beach atmosphere.

On Oct. 2, 2001, Mayor Paul Sutherland and four Town Council members unanimously adopted a definition of a “detached single-family dwelling,” in all of the Town’s residential districts, as “consisting of no more than seven bedrooms or septic system capacity for more than 14 people.” The minutes of their meeting reveal a clear intent by elected officials to “allow no more than 14 people in a rental house.” The ordinance they approved was #01-08-014. (We now call proposed new ordinances zoning text amendments or ZTAs.)

Unfortunately, then-Town Councilman Hal Denny, in a motion to rewrite the bedroom-limit part of  #01-08-014, also moved to strike a part of the proposed ordinance that dealt with recombination of lots. His motion passed unanimously. Had this Town Council or a later Town Council dealt with recombination, we wouldn’t have had the fiasco with nonconforming lots that emerged in recent years, resulting in the creation and development of 50-foot-wide lots.

According to the minutes, Mayor Sutherland explained that the recombination issue “needs further discussion.”

Seventeen years later, the Town Council, encouraged by the Town Planning Board, finally dealt with the problem.

As you all know, the bedroom-septic-capacity restriction operated until 2015, when the N.C. General Assembly, in its zeal to protect and profit members of the N.C. Home Builders Assn., which operates a powerful political action committee (PAC), deprived towns and counties of the power to regulate certain building “elements,” including the number and types of rooms. Senate Bill 25, which became law, was another example of overreaching by a bullying State legislature that doesn’t have respect for a separation of powers within government.

On that note—remember to vote!—I print below my column from April 1998 and hope you enjoy it:

“Just 15 years ago, Corolla, N.C., in the northern Outer Banks, was an isolated sanctuary for wild horses and waterfowl, an untouched canvas of windswept dunes that no road had yet reached.

“Today, the horses, those fenced in north of Corolla and not carted away to farms, wander into Virginia Beach; oversized, luxury homes cover the dunes from the ocean to the Currituck Sound, and this upscale North Carolina beach resort ranks among The Wall Street Journal’s top five U.S. towns for attracting second-home owners and the ‘new crop’ of younger retirees.

“Corolla just received this dubious distinction.

“I say dubious because of the crop: Financially flush baby boomers, and their older brothers and sisters, who can think of no better way to enjoy their riches than by indulging in ostentatious displays of home ownership and parking their minds in recreational pursuits.

“Golf is their favorite four-letter word.

“Of course, The Journal didn’t say this. It talked about the ‘fit and fashionable.’ About educated, active people who appreciate the finer things in life, such as a ‘good, expensive restaurant.’

“But my own take on many of the middle-aged retirees who choose the lifestyle that the newspaper touts in Corolla; Petoskey/Harbor Springs, Mich.’ Kailua-Kona, Hawaii; San Juan Island, Wash. And Destin/South Walton Beach, Fla., is that they’re witless and pampered. Take away their online stock reports and their golf clubs, and where would they be?

“Certainly not on the Currituck County Outer Banks.

“In today’s Corolla, though, ‘out of the way’ has come to mean ‘in the way.’ The once-thrilling landscape, imbued with a wild abandon that lured people there in the first place, has become a backdrop to the tiresome human drama of excessive self-indulgence, greed and material consumption.

“Only now, the houses are even bigger than ever. Exhibitionistic.

“Just what is with all this bigness? How many square feet does a person need? Bigness is huge in Corolla, home to just 300 year-round residents, but a road-clogging 25,000 people in the summertime.

“One former New York banker, who retired to Corolla four years ago at age 53, told The Journal that he and his wife had built an eight-bedroom home with an indoor racquetball court. On this narrow, 12-mile-long stretch of barrier island, it might as well be a skyscraper.

“Another new retiree, a 42-year-old investment banker from Philadelphia, who compares Corolla to the hoity-toity Hamptons on Long Island, plans to build a 5,000-square-foot home in its swanky Currituck Club development.

“I don’t begrudge people wealth or luxury. But I can’t fathom how people can usurp the grace and beauty of a diminishing resource like an oceanfront resort by erecting (or buying) massive monuments to self-importance or greed. Seaside mausoleums. The ‘do your own thing’ baby boomers have responded to the boom economy of the 1980s and ’90s by becoming poster children for bad taste and a loss of proportion.

“But they couldn’t have done it in Corolla without robber baron Bob DeGarbrielle, an omnipresent developer-builder who never saw a rolling sand dune or an ocean view he didn’t want to spoil. His multifamily houses give new meaning to gargantuan and obscene.

“Thanks to DeGabrielle, $1 million mansions line the rugged oceanfront, like so many empty shells, in a subdivision called Pine Island. (It has its own airstrip.) Cavernous, cookie-cutter hulks, usually with swimming pools, they blot the beach and are so close they seem to stumble over one another.

“Up the two-land road from Pine Island, the opulent model homes at the soundside Currituck Club look like they should have moats around them. The houses and ‘golf villas’ at this elite, planned and eventually gated golf-course community range from $200,000 to well over $1 million. Future plans for the large tract, owned by a private hunting club until it was taxed into submission, call for a 100-plus-room hotel and designer shops.

“Currituck Club has been getting raves for its parklike environment of live oaks, wetlands, marshes and dunes, through which roads, and golfers, meander. But it’s all carefully controlled—manicured—for aesthetic effect. Because, you know, nature can be messy.

“I well understand the need to claim and control some space, space that is all your own, in this overpopulated, sprawling country where many people operate on overdrive. But enough is enough. Seeing so much wealth go into the procurement of big hideaway space and big creature comforts is demoralizing. Life-distorting.

“I miss the horses.”

POST-SCRIPT: I told you I was provocative! This column was extremely popular when it appeared. It represented the first time that a local journalist remarked upon the big transformation going on in Corolla. I received a lot of fan mail, and I saw the column posted in many Outer Banks restaurants and other public gathering places. That certainly would not be the case today. The ship has sailed.

Still, I have to say, the more things change, the more they stay the same.

Ann G. Sjoerdsma, 10/30/18

 

The N.C. Division of Coastal Management (DCM) has issued CAMA minor permits to SAGA Construction for both of its proposed demolition-and-“mega-house” construction projects on the Southern Shores oceanfront, The Beacon learned today.

According to Town Permit Officer Dabni Shelton, the permits for SAGA’s development of 98 Ocean Blvd. and 134 Ocean Blvd., issued Oct. 19 and Oct. 22, respectively.

The Kill Devil Hills-based developer proposes building 12-bedroom, 12-bathroom, nearly 6,000 square-foot houses with swimming pools, 17 parking spaces, and septic capacity for 24 people at both sites. At 98 Ocean Blvd., it will demolish an original Frank Stick-design flattop (see photos); and at 134 Ocean Blvd., it will destroy a modified vintage flattop.

The Southern Shores Civic Assn., which owns a beach access to the south of each property, opposed SAGA’s development plans on both.

Rod McCaughey, an SSCA Board member and chairperson of the Bylaws/Long-Range Planning/Architectural Review Board Committee, wrote the SSCA’s letters of objection to SAGA’s demolition-and-building plans, arguing that its proposed houses do not meet the Town Code’s definition of “single family dwelling.” Both of the oceanfront properties are in the Town’s RS-1 single-family residential district.

According to Town Planning Dept. records, Herman and Bell Sadler, who own the house at 136 Ocean Blvd. and live in Emporia, Va., objected to SAGA’s proposal for 134 Ocean Blvd., without elaborating upon their position.

“They checked the [objection] box” on the notice form they received, Ms. Shelton said.

In the opinion of both State and local permit officers, neither the SSCA nor the Sadlers cited a State “rule regulation” whose violation could underlie a decision to deny the CAMA minor permit, Ms. Shelton explained. Objections were principally to “aesthetics,” she said. “There were no public safety and environmental concerns [raised].”

The SSCA and the Sadlers have 20 days after the date of permit issuance in which to file a “third-party appeal” to the Director of the DCM. Within 15 days after the DCM receives the appeal, according to information on the N.C. Dept. of Environmental Quality’s website, confirmed by Ms. Shelton, the Chairman of the Coastal Resources Commission (CRC) decides whether the appeal merits a hearing. (See https://deq.nc.gov/about/divisions/coastal-management/coastal-management-permits/variances-appeals.)

Reached this afternoon, Mr. McCaughey said the SSCA “is not considering an appeal,” to his knowledge. He framed the issue as whether the civic association has a “legitimate legal reason” on which to appeal.

Ms. Shelton said she hand-delivered to staff at the SSCA office copies of the two CAMA permits on the dates they issued. She also provided the SSCA with State regulations pertaining to the “Ocean Hazard Area of Environmental Concern” and information about the permit appeal process. She mailed the same materials today to the Sadlers, by regular mail, so they presumably will not receive notice until Thursday.

Through research on the NCDEQ website, The Beacon has learned that other “directly affected” people, such as property owners in the “vicinity of the proposed development who can show that it is likely to have a significant adverse effect on the value and enjoyment of their property, or persons who can demonstrate a history of substantial use of public resources in the area directly affected by the development,” also may file a third-party appeal within the 20-day period, requesting a hearing. Such petitioners must be able to cite a State statute or regulation that is “allegedly violated by the permit decision.”

(See https://files.nc.gov/ncdeq/Coastal%20Management/documents/PDF/thirdparty.pdf.)

During the 20-day CAMA permit appeal period, there is no stay of the local permitting process, Ms. Shelton said. Indeed, if SAGA were to file a Lot Disturbance-Demolition permit application tomorrow with the Town—this permit is the first that it must request locally, after which it would file a permit application for Lot Disturbance-Stormwater Management—it may receive such a permit on Thursday. (As of 2:30 p.m. today, when I spoke with Ms. Shelton, SAGA had not filed a permit application.)

“We try to accommodate [applicants] fairly quickly,” Ms. Shelton said, explaining that if the Town has all it needs to conduct a review, it acts.

Deputy Town Manager/Planning Director Wes Haskett has previously explained to The Beacon, and Ms. Shelton confirmed today, that Mr. Haskett initiates contact with an applicant on the same day that he receives a lot-disturbance permit application and meets on-site with the applicant the next day. He routinely gives the SSCA notice of these on-site meetings, so that a member of the ARB committee may attend.

Mr. McCaughey left little doubt in his comments today that the SSCA is opposed to the multiple-bedroom, hotel-like rental machines that SAGA builds. The question is how does the Town prevent such development? he asked. The mega-houses at 98 and 134 Ocean Blvd. may be inevitable: “Can you stop this process for the future?” he asked.

“We’re trying to be creative,” Mr. McCaughey said. “The question is does the Town want to be creative?”

We will find out at the special meeting on Nov. 7, 10 a.m., in the Pitts Center.

Are the Mayor and Town Council, presumably advised by the Town Attorney, going to present feasible ideas for how SAGA-type development can be stopped in the future, and initiate quick action on these ideas? Or are they going to punt, stall, or otherwise “kick the can down the road,” as I characterized their approach on the nonconforming lots ZTA this past summer? (The Planning Board stepped up in that instance.)

My sources indicate, in off-the-record conversations, that members of the Planning Board and the Town Council are doing what Planning Board Chairperson Glenn Wyder called at the last Board meeting their “due diligence.”

This much we know: SAGA Construction now has a successful blueprint.

***

ELECTION ADDENDUM: WHO’S WHO OF CONCERNED LAWYERS OPPOSE 2 CONSTITUTIONAL AMENDMENTS RELEVANT TO JUDICIAL BRANCH

After I posted my blog yesterday about the six constitutional amendments on the November election ballot, I received a statement from “Concerned Lawyers” of North Carolina, urging opposition to the two amendments that pertain to the judicial system: the one amendment that would strip the Governor of the authority to appoint judges when vacancies arise between elections, which the Concerned Lawyers label the Judicial Selections Amendment, and the other amendment that would remove the politically unaffiliated member from the nine-member Bipartisan Board of Elections and Ethics, which Concerned Lawyers call the Separation of Powers amendment.

I received this statement and an analysis attached as an addendum because I’m a member in good standing of the N.C. bar, albeit an inactive one. According to “Concerned Lawyers”: “All living former Governors, N.C. Supreme Court Chief Justices, N.C. Court of Appeals Chief Judges, and many former Associate Justices and Associate Judges of those two courts, both Democrats and Republicans,” oppose passage of these two amendments.

The names listed at the end of their statement are those of well-known and highly respected North Carolina jurists. They make up a veritable Who’s Who of North Carolina attorneys.

You may access the statement of Concerned Lawyers here:

https://gallery.mailchimp.com/7561bdb5cbcb4ffb052424a48/files/4ec0ce28-f16f-4a1d-af44-b37f1d9710eb/Further_Statement.01.pdf.

And the group’s analysis of the two amendments here:

https://gallery.mailchimp.com/7561bdb5cbcb4ffb052424a48/files/3fa306e2-3e0d-4ba3-8a96-5d3e37f86270/Addendum.pdf.

Ann G. Sjoerdsma, Oct. 23, 2018

The current version of the N.C. Constitution was ratified in 1971 and has 14 articles. It is the third Constitution in state history, the first of which was created in 1776 after the Declaration of Independence.

Before continuing the discussion I began 10/20/18 about the six proposed constitutional amendments on your November election ballot, I’d like to provide some background on our Constitution.

Article I of the N.C. Constitution, known as the Declaration of Rights, is similar to the Bill of Rights of the U.S. Constitution, which consists of the first 10 amendments. Some of the other articles in the N.C. Constitution, such as the articles dedicated to each branch of government (legislative, executive, judicial), are comparable to the U.S. Constitution’s seven articles, but the N.C. Constitution is much more extensive.

Since 1971, there have been more than 20 amendments to the N.C. Constitution, the majority of which extend the rights of N.C. citizens or extend the government’s ability to issue bond. One notable exception, which you will recall, is the amendment added in 2012 to limit citizens’ rights by preventing recognition of same-sex marriage. That amendment defines a marriage between one man and one woman as the only legal domestic union that North Carolina will recognize.

Some of the other significant amendments made since 1971 include:

*Prohibition of all capitation and poll taxes.

*The grant of veto power to the Governor.

*The requirement that the State run a balanced budget.

*The allowance of the Governor and Lieutenant Governor to serve two consecutive terms (previously, like Virginia, North Carolina limited these office holders to one term).

*The deletion of a property-tax limit on $100 valuation of $0.20 (Wouldn’t that be nice?).

And, relevant to the proposed constitutional amendments on the 2018 election ballot:

*The addition of a Victims’ Rights Bill to the Declaration of Rights.

*The creation of a State income tax to be computed on the same basis as the federal income tax.

Because of the Supremacy Clause in the U.S. Constitution, all federal law, including the U.S. Constitution, overrules the N.C. Constitution. So, an amendment to the N.C. Constitution can be challenged and struck down as violative of U.S. law.

SIX PROPOSED AMENDMENTS

The six proposed N.C. Constitution amendments are “legislatively referred” amendments that are on the ballot because a 60 percent supermajority of the members of both State houses approved them. They did not come out of a constitutional-convention process. A simple majority of voters is needed to pass the amendments, which the Governor cannot veto–which, of course, is the point. I consider all of these amendments to be back-door legislating and worse.

The remainder of this blog is an editorial, suitable for the op-ed page of your local newspaper. I will express my opinion.

The six amendments would stamp what is currently, not historically, considered “Republican” philosophies on state spending, elections, and governance. If the Democrats held a supermajority in the State legislature and referred these amendments, I would be equally opposed to them. The legislature should pass either new statutes or statutory amendments and leave the Constitution alone, except when a constitutional amendment is necessary and essential. The Constitution should not be used as a political football.

In the order that the amendments appear on the ballot, they are:

1. RIGHT TO HUNT: An amendment “protecting the right of the people to hunt, fish, and harvest wildlife.”

As I mentioned in my 10/20/18 blog, North Carolinians already have this right secured in Art. 1 of the N.C. Constitution, aka the Declaration of Rights, and it does not need protecting.

What the amendment actually does is 1) to acknowledge that this right may be exercised by the use of “traditional methods,” a term that is not defined, and 2) to limit the N.C. General Assembly’s ability to regulate hunting and fishing. The amendment also makes “public hunting and fishing” the “preferred means of managing and controlling wildlife.” A controlled hunt, therefore, would seem to trump other legislative efforts at control.

Finally, as the Judicial Voter Guide 2018 points out, the amendment says nothing about its effect on local laws that regulate public safety or commercial hunting and fishing.

2. MARSY’S LAW/VICTIMS’ RIGHTS: An amendment “to strengthen protections for victims of crime; to establish certain basic rights for victims; and to ensure the enforcement of these rights.”

Known politically as Marsy’s Law, this amendment would add a SECOND bill of victims’ rights to the N.C. Constitution, which the State budget office estimates in a public fiscal note accompanying the legislation would cost about $11 million per year to implement. The N.C. Administrative Office of the Courts reportedly has said that implementation would cost more than $30 million annually.

In 2009, Broadcom co-founder and billionaire Henry Nicholas III founded “Marsy’s Law for All,” in memory of his sister, who was murdered, in order to lobby for passage of victims’ rights amendments to state constitutions and the U.S. Constitution.

Marsalee (Marsy) Nicholas was killed by an ex-boyfriend in 1983. Mr. Nicholas and his mother were not informed of the killer’s release on bail, a week after his arrest, and unexpectedly encountered him in public. They were understandably shocked and appalled.

The N.C. Constitution already encompasses the right of victims to be informed of, and present at, proceedings (such as bail hearings) related to the accused; to be heard at sentencing; to be informed about the crime, the criminal justice system, and rights and services available to victims; to confer with the prosecutor, and much more if the crime is a major felony, a domestic violence case, or one of several other kinds of serious crimes.

If passed, the Marsy’s Law amendment would expand these rights to victims of all crimes against the person (including misdemeanors) and felony property crimes and all crimes (“delinquent” acts) committed by juveniles. It would guarantee all victims the rights of reasonable and timely notice of any court proceeding, upon request; to be present at any proceeding, upon request; to be reasonably heard at more court hearings, etc.

The amendment directs the General Assembly to create a procedure, by motion to the court, for a victim to assert all of his or her rights.

I am 100 percent in support of victims’ rights, but I do not support a legislative expansion of the excellent victims’ rights bill that currently exists by bamboozling the public with emotional appeal and vague representations. I am also concerned about the rights of juveniles, many of whom are not hardened criminals.

If the General Assembly wants to give crime victims more rights than they currently enjoy in North Carolina, it should amend the statutory provisions that currently exist under the victims’ bill of rights. It should go through the regular lawmaking process.

3. INCOME TAX CAP: An amendment “to reduce the income tax rate in North Carolina to a maximum allowable rate of seven percent (7%).”

The current maximum allowable income-tax rate in our state, as specified in the Constitution, is 10 percent (10%). The individual income tax rate is currently 5.499 percent, and the corporate tax rate is 3 percent. In North Carolina, income taxes historically fund services related to public health, education, and safety.

I put this amendment in the “if it ain’t broke, don’t fix it” category. The proposed amendment, as the Judicial Voter Guide 2018 notes, does not include any exceptions. In times of recession or disaster, the State may need to raise money for core services. I would rather see a temporary spike in the tax rate to 7.00001 percent than an increase in sales taxes or borrowing. Sales-tax increases historically harm middle- and low-income people more than high-income people.

4. VOTER PHOTO ID: An amendment to “require voters to provide photo identification before voting in person.”

As I said 10/20/18, this vague amendment leaves requirements up to the General Assembly to figure out after the election. There are no details in the amendment about which types of identification will be permitted or whether any exceptions will be made.

You may recall that the Republican legislature’s previous attempt to require a photo ID—known as the Voter Information Verification Act—was struck down by the U.S. Court of Appeals for the Fourth Circuit in 2016 as unconstitutional racial discrimination. That law required voters to have a photo ID when casting a ballot and also reduced the days for early voting, eliminated same-day voter registration, and prohibited county elections officials from counting out-of-precinct ballots. These latter practices are used disproportionately by black residents.

The N.C. General Assembly pushed through the Voter Information Verification Act in three days in July 2013, a month after the U.S. Supreme Court invalidated Section 5 of the Voting Rights Act. Section 5 required states and communities that have a history of racial discrimination to seek federal approval (“preclearance”) before making changes to their election laws. Forty of North Carolina’s 100 counties were under this requirement.

Although there is reportedly evidence of alleged voter fraud in absentee voting, N.C. legislators did not require photo IDs for absentee voters. According to the Fourth Circuit’s opinion, white residents are more likely to vote absentee than black residents.

If the proposed amendment passes, it will assuredly be challenged in the courts.

5. LEGISLATIVE CONTROL OF JUDICIAL APPOINTMENTS: An amendment to “change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches, etc., etc., etc.”

The bottom line here is it’s a power play by the General Assembly to control judicial appointments that occur when a judge leaves office before the end of his or her term.

If the amendment passes, the legislature also could use its newly granted power to choose unelected N.C. Supreme Court justices for two vacant seats that it would create under its constitutional authority. These legislatively chosen judges would serve for up to four years before voters could elect or replace them.

As I earlier mentioned, the General Assembly could alter the current seven-member N.C. Supreme Court, which has a 4-3, Democrat-Republican, majority to a 5-4, Republican-Democrat, majority. Associate Justice Barbara Jackson, who is running for re-election, is a Republican, so the GOP does not gain a seat by her victory.

Currently, the Governor appoints an interim judge, who, in most instances, according to the Judicial Voter Guide, holds office for less than two years, until voters get to decide the seat at the next general election. The constitutional amendment would take this authority away and give it to the General Assembly, which would choose two or more finalists for the appointment from among those reviewed by a “nonpartisan” commission comprised of appointees. The Governor would then choose one of the prescreened and approved finalists. If he/she did not appoint someone from the legislature’s list within 10 days, the legislative would elect someone to fill the judicial vacancy.

The “judicial merit” commissions at the state and local level that would be created if this amendment passes would evaluate the qualifications of judicial nominees for the Supreme Court, the Court of Appeals, and the county superior courts. The local district courts have a different system in place. Nominees would be considered “qualified” if they were licensed to practice law in North Carolina; registered to vote; and not of mandatory retirement age. That’s it.

The proposed amendment does not include details about how the commission members would be selected or how many from each branch of government would be appointed, nor does it address how individuals would be nominated to the commissions for consideration.

I say: NO WAY. That we have elected officials who actually believe this premeditated legislative takeover of judgeships and the N.C. Supreme Court is a legitimate exercise of authority in our constitutional republic disgusts me. I don’t care what political-party affiliation they claim.

6. LEGISLATIVE TAKEOVER OF ETHICS AND ELECTIONS BOARD: An amendment to “establish an eight-member Bipartisan Board of Ethics and Elections Enforcement in the Constitution to administer ethics and elections law.”

Please note: There already is a Bipartisan Board of Ethics and Elections Enforcement.

Please note again: The board, which administers ethics, elections, and lobbying law, is already bipartisan.

The truncated language on your election ballot is misleading. It suggests that you are voting to create a new board.

This proposed amendment is the General Assembly’s attempt to overturn a N.C. Supreme Court decision that prevented it from reducing the current nine-member Bipartisan Board of Ethics and Elections to eight members. The GA passed a law establishing an eight-member board in 2017, which the Supreme Court struck down as unconstitutional because it usurped executive authority.

This is yet another power grab by the Republican General Assembly.

Currently, the Governor appoints eight of the nine members of the Bipartisan Board of Ethics and Elections Enforcement, based on nominees submitted by the State chairs of the two political parties with the highest number of registered affiliates (Republican, Democrat). The ninth member represents unaffiliated voters and is nonpartisan. The Governor appoints him/her from nominations provided by the other eight members.

The proposed amendment would eliminate the unaffiliated seat, as the 2017 law sought to do, and direct that all nominations to the board come from the General Assembly, thus, bypassing the Governor. The leaders of the two N.C. Senate political party caucuses with the most members would recommend two members each, and the leaders of the two N.C. House political party caucuses with the most members would do the same. The Governor would then have to appoint the eight members that these leaders selected. It is unclear whether nominated members could include legislators themselves.

Removing the ninth board member obviously permits a 4-4 partisan deadlock vote on important issues, such as early-voting opportunities.

If this amendment passes, according to the Judicial Voter Guide, the Constitution would authorize only the second board in its history. That’s going back to 1776. The other is the State Board of Education.

NO WAY.

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CORRECTION: In my 10/20/18 blog, I incorrectly said that N.C. Supreme Court Associate Justice Sam J. Ervin IV is the son of former U.S. Senator Sam Ervin, who presided over the Watergate hearings. In fact, Justice Ervin is Senator Sam’s grandson. I apologize for the error.

Ann G. Sjoerdsma, 10/22/18