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.

****

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

 

 

Early voting for the Nov. 6 elections started Oct. 17 and continues through Sat., Nov. 3, except for today and tomorrow and Oct. 27, when the polls will be closed.

The closest polling station for Southern Shores voters is Kill Devil Hills Town Hall, at 102 Town Hall Drive in KDH. You also may vote at the Dare County Administration Building in the government complex at 954 Marshall C. Collins Drive in Manteo and at the Fessenden Center Annex in Buxton.

Today I’d like to focus on the appellate courts, the judicial candidates, and the six proposed N.C. Constitutional amendments. In a 9/26/18 blog, I provided an overview of the N.C. legislative, the Dare County Commission, and other local elections.

Neither of North Carolina’s two U.S. Senate seats is among the 35 Senate seats that are up for election next month, and longtime U.S. Representative Walter B. Jones is running unopposed in Congressional district three, which represents Dare County.

APPELLATE COURTS: A Look

For better or for worse, N.C. appellate judges are subject to election. The seven justices on the N.C. Supreme Court, which is the highest state court, and the 15 justices on the N.C. Court of Appeals, which is the intermediate appellate court, have eight-year terms.

Just like on the U.S. Supreme Court, one of the N.C. Supreme justices serves as chief justice: He is Mark Martin, who became upon his election to the high court in 1998 at age 35, the youngest Supreme Court justice ever elected in North Carolina. The most familiar name on the court may be Sam J. Ervin IV, whose U.S. Senator grandfather, Sam Jr., famously presided over the Watergate hearings. Associate Justice Ervin is the only Ivy Leaguer (Harvard) on the Supreme Court; the other justices graduated from North Carolina law schools.

Chief Judge Linda McGee presides over the Court of Appeals. According to her online biography, Judge McGee and her husband live in Corolla. If you would like to read the biographies of the other Court of Appeals judges, you may find them here: https://www.nccourts.gov/courts/court-of-appeals/biographies-of-the-judges.

I cannot advise you from professional experience about the makeup of either appellate court. I do know that there are four Democrats and three Republicans on the Supreme Court, and that the Republican-led legislature wants to add two new seats in order to gain a Republican majority. It could do this if the constitutional amendment about changing “the process for filling judicial vacancies” is approved by the voters.

You didn’t know that was possible, did you? How could you? Unless you pored over the actual language of the proposed amendments in your Judicial Voter Guide 2018, you wouldn’t know. The amendment text printed on your election ballot is truncated. Only in the case of the amendment that reduces the maximum allowable income tax rate from 10 percent to 7 percent do you even know what you’re actually voting for or against.

The N.C. General Assembly has a recent history of being hostile to the independent “checks-and-balances” power of the executive and judicial branches. These amendments are an outgrowth of that hostility.

Returning to the courts . . . Appellate courts deal with law, not facts. The local superior and district courts, with which you are probably more familiar, are trial courts where judges and juries determine facts. There are no trials in appellate courts, only a lot of case-record review and arguments, both written (briefs) and oral, by attorneys.

In state appellate courts, the judges are in the business of determining whether an error of law or legal procedure occurred in a lower trial court and of interpreting state law.

Appeals “of right” from North Carolina’s lower trial courts go to the intermediate appellate court, which is why it has 15 members, more than twice as many as the Supreme Court. Its caseload is enormous and backlogged. The Supreme Court can be largely selective about the cases it hears and maintain a much more manageable caseload.

The Court of Appeals sits in panels of three judges to hear appeals and decide if the trial court correctly applied the law. Cases are supposed to be randomly assigned to panels, and judges rotate panels frequently. In contrast, the Supreme Court justices hear cases en banc, meaning as a bench (of seven), not in panels. The Court of Appeals may sit en banc for a case review, but the when, why, etc., are beyond the scope of this article. In both courts, the final disposition is usually a written opinion.

If a Court of Appeals judge on a panel dissents, so that the ruling is 2-1, the losing party has the right to appeal to the Supreme Court for review. Death-penalty cases go directly on appeal from a local superior court to the Supreme Court, bypassing the Court of Appeals, but the vast majority of cases in the Supreme Court come by way of a petition for certiorari. The Supreme Court decides whether or not to grant review to a petitioning party. When the Court grants “cert,” as lawyer say, it applies its discretion to decide that it wants to review the question of law that the case presents.    

Demographically speaking, four men and three women serve on the N.C. Supreme Court. One of the women and one of the men are African Americans; the others are white.

Six women and nine men serve on the Court of Appeals. One woman is black, the remaining 14 justices are white.

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 high court and 1/5 of the intermediate court. If you read the 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.

I elaborated upon the composition and rules of the two courts to illustrate how different the stakes are at the two appellate levels. Judges in the Court of Appeals tend to do mostly bread-and-butter appeals, whereas justices in the Supreme Court settle and make state law. A judge’s “judicial philosophy” matters more at the high-court level than in the Court of Appeals. By judicial philosophy, I mean how a justice understands and interprets the law and then applies it to unique factual circumstances.

I would hope that N.C. voters want fair-minded, independent judges who are committed to the rule of law and equal justice for all, regardless of their political party affiliation. I am not going to endorse particular candidates here, but rather make some general observations.

I believe a seat on the N.C. Supreme Court is a high honor, the culmination of a distinguished legal career that, preferably, has involved substantial trial experience. Supreme Court justices need not have previous judicial experience, but, as a practical matter, they often do. A Supreme Court justice should be a seasoned attorney and/or judge, not a politically motivated millennial admitted to the bar just seven years ago. That description applies to Mr. Anglin.

Speaking of “seasoning,” Court of Appeals Judge John S. Arrowood was admitted to the N.C. bar in 1982 and has a long employment record of varied legal experience; whereas his opponent, Mr. Heath, achieved admission in 2006 and has done scant trial work, instead serving in politically appointed positions. After he lost the 2016 election to Gov. Cooper, former Gov. McCrory appointed Mr. Heath to a special superior court judgeship.

I don’t believe a superior court judgeship should be created and treated as a political stepping stone. I find both Mr. Heath’s appointment and his desire to vacate his judgeship after less than two years offensive.

Among the other candidates, I can report that progressive lawyer friends of mine who litigate in Wake County support both Judge Griffin, who is also a JAG officer in the N.C. Army National Guard, and Mr. Hampson, who specializes in appellate practice. The race for the third Court of Appeals seat is between Mr. Kitchen and Ms. Collins. The Libertarian IT specialist is not a true contender.

TAMPERING WITH THE N.C. CONSTITUTION

When attorneys take their oath of office in North Carolina, they solemnly swear to support the United States and the N.C. Constitutions “to the best of [their] knowledge and ability.” Attorneys often get a bum rap, but the vast majority do not take these governing documents lightly. In my opinion, both constitutions are sacred to our republic and should only be amended when justice demands—cries out for—amendment. The principles of equal protection, due process, and individual liberty should underlie constitutional amendments, not partisan preferences and/or biases.

This year, the N.C. legislature approved six proposed amendments to the N.C. Constitution, which will appear at the end of your election ballot, after all of the candidates’ names. You will be asked to vote “for” or “against” each one.

I consider each one of these amendments overreaching, a blatant power grab, by an agenda-driven N.C. General Assembly that has so little respect for the N.C. Constitution that it didn’t even bother to put implementing language in five of the six amendments. Implementing language tells HOW an amendment will work. There’s also the issue of HOW MUCH implementation of each amendment would cost. The legislature doesn’t care about that, either.

For example, the amendment to require photographic identification to vote provides no details about which types of identification will be permitted or whether any exceptions will be made to accommodate people who are unable to meet the yet-to-be-determined requirements. The General Assembly plans to reconvene after Election Day to draft the requirements. I repeat: It will reconvene after Election Day. It just couldn’t be bothered to inform voters now what it plans to do.

You may well ask: What are acceptable and unacceptable forms of photographic ID? How much will this ID program cost taxpayers? Who knows?

Similarly, the benign-looking amendment to “protect the right to hunt, fish, and harvest wildlife” uses vague and undefined terms and limits the General Assembly’s authority to manage and control wildlife and promote conservation. The amendment gives the “people” the “right” to use “traditional methods,” whatever they are, to “hunt, fish, and harvest wildlife.” It also states that “public hunting and fishing shall be a preferred means of managing and controlling wildlife,” whatever that means.

North Carolinians ALREADY have a right to hunt and fish. There’s no need to sully and abuse the Constitution with potentially damaging new language.

I could go on, and will tomorrow or Monday, with more exposure of what these amendments truly accomplish: The Republican majority wants N.C. voters to sign a blank check over so it can fill in the details later. That’s insulting, beyond the pale.

If the N.C. General Assembly wants to change state law, it should pass statutes, openly and honestly, not seek to execute back-door maneuvers by exploiting the public.

I guess you can tell how I’m voting.

Ann G. Sjoerdsma, 10/20/18

 

 

The 5,945-square-foot house that SAGA Construction proposes to build at 134 Ocean Blvd., on the Southern Shores oceanfront, is virtually identical to the 5,981-square-foot house it proposes to construct at 98 Ocean Blvd., after demolishing an original Frank Stick-designed flattop, The Beacon has confirmed. The demolition at 134 would be of “Higgins’ Haven,” a modified flattop that was #014 in Southern Shores Realty’s rental program this year.

According to documents submitted by SAGA for its CAMA minor permit, the house proposed at 134 Ocean Blvd., which is just south of the Duck Road split, would have 12 bedrooms and 12 bathrooms in “suites,” a 14-seat home theater, an elevator, a swimming pool, hot tub, tiki bar, large game/recreation room, and interior bar. It also would have 11 parking spaces on the driveway and six spaces underneath the house and septic capacity for 24 people.

The Dare County Dept. of Public Health Improvement Permit in the Town Planning Dept’s. file for 134, which issued Oct. 4, shows a septic tank size of 2,500 gallons and a per-day capacity of 1,440 gallons. It also shows seller Clay E. Higgins, in his capacity as a trustee, as the property owner, not SAGA.

According to the purchase offer and acceptance on file, settlement on the 134 sale was to occur Sept. 28. Property owners Mr. Higgins and his wife, Franca B. Higgins, also a trustee, live in Harbinger.

Comparable paperwork for 98 Ocean Blvd. shows a 3,500-gallon septic tank and a 1,440-gallon-per-day capacity, and SAGA as the property owner. That permit issued Oct. 2.

Although the parking lot and swimming pool layouts at 134 differ from those at 98, the house designs are essentially the same. The architect for both is Community Planning and Architectural Associates (CPAA) of Kitty Hawk. Judging by CPAA’s plans, the bedrooms appear to be about 13-feet-by-11-feet, and their layout suggests a dormitory.

MY OPINION: This is cookie-cutter construction and development, which is SAGA’s goal. One need only look at the Nags Head oceanfront to see one identical, indistinguishable SAGA mega-house after another on the oceanfront.

For background on SAGA’s proposed projects in Southern Shores, see The Beacon’s blogs on 10/10, 10/11, and 10/16/18.

134 OCEAN BLVD. BY THE NUMBERS

Here are the numbers that SAGA provides in its building plans for lot-coverage purposes:

Proposed residence: 3,900 sq. ft.

Concrete parking and drives: 4,284 sq. ft.

Pool and concrete decks: 2,079 sq. ft.

Wood beach walkway and deck: 344 sq. ft.

The total coverage adds up to 10,607 sq. ft.

SAGA claims a lot area to the first line of stable natural vegetation (FLSNV) of 36,925 sq. ft., and, therefore, lot coverage of 28.7 percent. The Town limits lot coverage to 30 percent.

Elsewhere in its documentation, SAGA reports a lot size of 46,702 sq. ft., or 1.07 acres.

SAGA’s numbers for “enclosed living space” for purposes of calculating house size are as follows:

Ground level: 301 sq. ft.

First floor:  2,822 sq. ft. (enclosed); 865 sq. ft. deck area

Second floor: 2,822 sq. ft. (enclosed): 865 sq. ft. deck area (Notice the identical floors.)

The total enclosed area adds up to 5,945 sq. ft., and the deck area is 1,730 sq. ft.

In addition, SAGA’s plans show an unenclosed area below the enclosed area of 2,517 sq. ft., where six vehicles can be parked.

The maximum house size permitted by ordinance in Southern Shores is 6,000 square feet of enclosed living space, which is further defined as habitable space. In its plans for 98 Ocean Blvd., SAGA exempts from its size calculation a 124-square-foot, “unconditioned” enclosed space that serves as a storage area.

I have to wonder if such an exemption should be allowed by the Town. A 124-square-foot space easily could be converted into a thirteenth bedroom. I am aware of a permitted garage addition to a house on North Dogwood Trail that, despite being done after the 6,000-square-foot maximum went effect, brought the total size of the house to over 6,000 square feet. Why wasn’t this violation prevented?

As previously reported, the adjacent property owners to the north of 134 Ocean Blvd. have objected to SAGA’s project. They live in Emporia, Va. The Southern Shores Civic Assn., which owns a beach access that adjoins the property to the south, filed its written objection yesterday.

The CAMA permit for 98 Ocean Blvd. could issue any day. When it does, the SSCA will receive notification and instructions on the appeal process for the denial of its objection.

MORNING MEETING ON NOV. 7 BURDENSOME AND EXCLUSIONARY

I am hearing from property owners that they object to the timing of the special meeting to consider occupancy limits for single-family dwellings in Southern Shores, scheduled by the Town at 10 a.m. on Wed., Nov. 7, in the Pitts Center. I agree with these property owners’ concerns.

A morning week-day meeting excludes property owners who work daytime hours, both inside and outside the home, residents say. In addition, scheduling the meeting on the same day as the Town Council’s regular evening meeting—which will be unusually agenda-heavy because the Town Council voted, 3-2, to cancel its October meeting—AND on the day after national midterm elections, is unduly burdensome.

How many members of the public will be inclined to attend both meetings? And aren’t public meetings for the benefit of the public? The public is entitled to a realistic opportunity to be heard.

Mayor Tom Bennett is responsible for the scheduling of the Nov. 7 morning meeting. Any objections by Town Council members to this scheduling have not been persuasive. You may reach Mayor Bennett at tbennett@southernshores-nc.gov.

I am also hearing residents criticize the Town Council, which has made no public statement since the SSCA announced SAGA’s 98 Ocean Blvd. plans, at its Oct. 8 meeting, as a “do-nothing” Council. In fact, I heard that term just this morning when I was out walking my dog. This particular resident and fellow dogwalker, whom I do not know personally, said “do nothing” is what she has come to expect of this Town Council in terms of limiting development.

I do not believe it is correct or fair to impute the Mayor’s reasoning and actions to any Town Council members. It is the Mayor who decided the date and time of the special meeting, not the Town Council. And it is the Mayor who could change the date and time, if he chose to do so.

NO DUCK PLANNING BOARD MEETING – MEA CULPA – BUT IT LEADS TO AN UNEXPECTED ENCOUNTER

Contrary to what I reported on Tuesday the Duck Planning Board did not hold a meeting last night. Mea culpa. I misread the Town of Duck’s calendar on its website. In fact, the Duck Planning Board met on Oct. 10 and will next meet on Nov. 14. Duck is also grappling with how to limit occupancy in “single-family” dwellings.

My trip to Duck last evening was not wasted, however, because I met and chatted with a longtime Dare County resident who showed up at the town meeting hall because he had seen my post about a Planning Board meeting. I will not name him because I did not inform him that we were “on the record,” and I have no desire to ambush people!

This gentleman, whom I’ll call Mac, is of the opinion that the Senate Bill 25 amendments to N.C. General Statute 160A-381, which took effect in 2015, prohibit towns from regulating septic capacity. Mac referred to the following language in the law for his argument:

“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 . . . ”

Mac believes a limit on the septic capacity of single-family dwellings would be an “indirect” application of a regulation on the number of bedrooms. He asserts that this is what the N.C. General Assembly intended.

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.

When I practiced law in Maryland, I did a fair number of “statutory-construction” cases on appeal, where the question was: What does the state statute mean?

It is not unusual for state legislatures to approve unclear or ambiguous statutory language or language that is subject to multiple interpretations. The overriding legal principle that I applied in my analyses was “the plain meaning of the language.” What does the statute plainly mean, on its face? One shouldn’t have to delve into legislative history in order to discern what words are supposed to mean, although where several meanings are reasonably possible, legislative intent may come into play.

I argued with Mac that the plain meaning of the word “indirectly” did not support his interpretation, and that a court would have to render the definitive judgment in a legal dispute. IMO, it requires a contortion of words to arrive at Mac’s interpretation, despite what legislators might have said in committee hearings or elsewhere.

If the General Assembly wanted to prohibit regulations restricting septic capacity, it should have clearly said so.

EARLY VOTING IN THE NOV. 6 GENERAL ELECTION STARTED YESTERDAY. I will post my analysis of judicial candidates and the proposed constitutional amendments by the weekend, at the latest.

REMEMBER: The Pitts Center is not a polling station for early voting, aka one-stop absentee voting, in this election. The polling stations are as follows:

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

KDH TOWN HALL, 102 Town Hall Drive, KDH

FESSENDEN CENTER ANNEX, Buxton

For more election details, see The Beacon’s 9/26/18 post.

Ann G. Sjoerdsma, 10/18/18

The Town of Southern Shores announced yesterday that it will hold a special meeting Wed., Nov. 7, 10 a.m., in the Pitts Center to consider all options “to further limit occupancy of single-family dwellings in Southern Shores.” Currently, the Town seeks to preserve its traditional open-space, low-density neighborhoods by restricting single-family house size to 6000 square feet of “enclosed living space.”

The Town’s meeting notice, posted on the front page of its website, cites “alarm” voiced by “some property owners” over the ability of a “party requesting [a] permit . . . to design 12 bedrooms within” the “maximum allowable 6,000 square feet of living space for a single-family dwelling,” as the reason for the meeting.

The notice makes no mention of the SAGA Construction building project at 98 Ocean Blvd. and its various features (e.g., 17 parking spaces) that have aroused “alarm”—and outrage—among “some” property owners—do dozens or hundreds qualify as “some”?—nor does it fairly represent those Town Council members who have expressed their opposition to the SAGA projects in informal discussions. The Beacon is aware that at least one Town Council member wanted to hold a special meeting well before Nov. 7, the same day that the Council meets in the evening for its regular monthly meeting.

And why has the Town scheduled a meeting on a week-day morning when daytime working people cannot attend?

I say SAGA projects, plural, because The Beacon has confirmed that, in addition to the 12-bedroom, 12-bathroom, 5981-square-foot rental house proposed by the Kill Devil Hills-based developer at 98 Ocean Blvd., as reported in this blog 10/10/18, SAGA also proposes to demolish a flattop and build a similar structure at 134 Ocean Blvd. (See photo above.)

According to Town Permit Officer Dabni Shelton, “134 Ocean Blvd., LLC,” whose agent is SAGA Construction, filed a CAMA permit application for that property, which is just south of the Duck Road split, on Oct. 11. In a telephone conversation I had with Ms. Shelton this morning, she characterized the proposed project at 134 Ocean Blvd. as “substantially different in parking and location of the pool,” from the one proposed at 98 Ocean Blvd.

Ms. Shelton said the “layouts” for the two projects differ, and that the “total floor area” claimed by SAGA for the proposed structure at 134 Ocean Blvd. is 5945 square feet, whereas the total floor area at 98 Ocean Blvd. is 6105 square feet. Total floor area is a measurement considered under CAMA. The Town’s calculation for living space is different. (I will review the permit file on 134 Ocean Blvd. at Town Hall as soon as I can. BLOG POST COMING 10/18/18 ABOUT THE PROPOSED STRUCTURE AT 134 OCEAN BLVD., WHICH IS VIRTUALLY IDENTICAL TO 98 OCEAN BLVD.)

The adjacent riparian property owners (homeowners) to the north of 134 Ocean Blvd.—at 136 Ocean Blvd.—have objected in writing to SAGA’s project, according to Ms. Shelton. This SAGA property, like the property at 98 Ocean Blvd., adjoins a beach access owned by the Southern Shores Civic Assn. The SSCA has objected to the proposal for 98 Ocean Blvd. (see The Beacon, 10/10/18), but not yet filed its response for 134 Ocean Blvd. (UPDATE: SSCA OBJECTION FILED 10/17/18.)

Ms. Shelton told me that the SSCA received delivery of the certified-mail notice of SAGA’s proposed project at 134 Ocean Blvd. on Oct. 9, according to U.S. Postal Service records. The civic association has 10 days after receipt of this notice in which to reply.

MY OPINION: The SSCA should wait until the last day of the 10-day period to file its letter of objection. Until this period lapses, and the SSCA either objects or accedes, 134 Ocean Blvd. LLC’s CAMA application is not complete.

Ms. Shelton said she is planning to do site visits at both properties tomorrow. The CAMA permit for 98 Ocean Blvd. could then issue “any time,” she explained, although “typically, there is a window of eight to nine days” after an application is complete before a permit issues. In the case of 98 Ocean Blvd., that window would expire Oct. 19.

I also asked Ms. Shelton how objections from adjacent riparian property owners are handled.

As a Local Permit Officer (LPO), she said, she “takes the nature of the objection” into consideration and has a “conversation with the [Division of Coastal Management] field representative” about it. The field rep will advise her as to whether a “state rule regulation” has been violated and whether the objecting party has standing to challenge the permit applicant over this violation. If both are the case, then a permit will not issue. An objecting property owner receives notification of both the permit and standing decisions.

Standing is a legal requirement, typically considered before a lawsuit is initiated. In order to file a lawsuit or otherwise to legally challenge an action, such as SAGA’s proposed project, a party (person, corporation, or other legal entity) must have legally protected interests at stake and be at risk of suffering, or already have suffered, harm (an “injury”). There are standard factual elements that are taken into consideration in determining whether standing exists. Adjudicators, such as courts, make rulings on standing.

In the event a CAMA permit issues and the SSCA is viewed as lacking standing, Ms. Shelton said, the SSCA will have 20 days in which to appeal the standing decision to the Coastal Resources Commission. I will explore the appellate process if and when this scenario occurs.

PLANNING BOARD’S RESPONSE

With the Town Council’s meeting more than three weeks away, members of the Town Planning Board, which met last night, made it clear in their comments that they would consider holding a special meeting on large-house controls, if they deemed such action desirable and necessary. The question of large houses and occupancy limits was not on the Planning Board’s agenda.

“What’s at stake is the character of the town,” said Planning Board Chairperson Glenn Wyder. “… We will do our due diligence, and our Town Council will do its due diligence. . . . We can get a grip on this.”

Planning Board member David Neal, a longtime Southern Shores resident and builder, described the Town as being at a “crossroads” in terms of its character, quality of life, and development. Mr. Neal said that if SAGA’s proposed 12-bedroom rental house—which, at 98 Ocean Blvd., purportedly would have parking for 17 vehicles and septic capacity for 24 people—were to become the standard in Southern Shores housing, he would move.

As the Beacon explained on 10/11/18, until the N.C. General Assembly passed in 2015 new statutory language that appears to make a bedroom restriction illegal, the Town Code of Southern Shores defined a detached single-family dwelling in the R-1 residential district, which covers 98 and 134 Ocean Blvd., as:

“consisting of no more than seven bedrooms or septic capacity for more than 14 people.” (Sec. 36-205(b)(1).

It further defined a large home dwelling as “any home containing more than seven bedrooms (or rooms that could be considered as bedrooms using the county criteria for determining septic system design) or septic system capacity for more than 14 people.” (Sec. 36-57).

Senate Bill 25, which amended N.C. General Statutes sec. 160A-381, prohibits counties and municipalities from regulating “building design elements” and “aesthetic controls,” most of them having to do with the exterior appearance of a structure. Among the bill’s prohibitions, it bars towns from restricting the “number and type of rooms” in single-family and two-family dwellings. (For the text of the amended statute, see https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S25v3.pdf.)

SB 25 became state law on June 19, 2015. Although it appeared to invalidate the Town of Southern Shores’ bedroom limit, it did not prohibit its 14-person occupancy/septic capacity restriction.

On Jan. 22, 2016, when the Town Council held a special meeting in order to enact an ordinance that would limit occupancy in single-family homes and, thereby, prevent SAGA from building a 25-bedroom wedding destination home on the oceanfront, it considered three zoning text amendments: One of them restricted occupancy by septic capacity, and the other two sought to limit occupancy by house size. (See The Beacon, 10/11/18)

“I fought hard to keep the septic capacity in the [Town] ordinance,” said Planning Board member Andy Ward, who spoke during the January 2016 meeting. But, he acknowledged, “people were in favor of smaller house sizes.”

The Town Council’s decision to approve the maximum house size restriction, instead of a 14-person occupancy/septic capacity restriction, left him “with a lump in my throat,” said Mr. Ward, another longtime Southern Shores homeowner and builder.

“I still think,” he said last night, “that [restricting occupancy through septic capacity] 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.”

The Beacon has learned that members of the Planning Board have been in touch with members of Duck’s Planning Board, which is also grappling with large houses and occupancy limits. The Duck board meets tomorrow at 6:30 p.m. When it does, the Beacon will be there. [Mea culpa, folks. I erred when I confirmed this meeting on the Town of Duck website calendar. In fact, the Duck Planning Board met Oct. 10 and will next meet on Nov. 14.]

CONDITIONAL USE PERMIT GRANTED FOR NEW FIRE STATION

In other action at last night’s Planning Board meeting, the five-member Board voted unanimously to recommend to the Town Council that a conditional use permit be granted to the Southern Shores Volunteer Fire Dept. to build a new fire station at 15 South Dogwood Trail and Pintail Trail, the site of the current station, subject to two conditions:

1. Before it submits an application for a Town building permit, SSVFD must have received a) a stormwater general permit, as required by NCDEQ; b) erosion control approval, as required by NCDEQ; and c) an improvement permit and authorization to construct a new wastewater collection, treatment, and disposal system as issued by the DCHD and reviewed and approved by the NCDHHS (if applicable); and
2. SSVFD must strictly abide by all requirements of the Town Code and must strictly comply with all other applicable local, state, and federal requirements.

Before taking its vote, the Board questioned the SSFVD’s engineer, Joseph C. Avolis of New Bern, N.C., about stormwater management plans. All members were sensitive to the problems of stormwater runoff and flooding. Mr. Avolis said that, “on balance, I think we’ve pretty much covered [stormwater], 100 percent.”

I briefly interviewed Kenneth C. Newell, the SSVFD’s architect, on Sept. 5, when he came to Southern Shores for a public information meeting and a Town Council meeting.

According to Mr. Newell, who is a partner in the Gastonia, N.C.-based firm of Stewart, Cooper, Newell, PA, the N.C. State Building Code requires fire stations to last between 50 and 75 years. Planning Board Vice Chairperson Elizabeth Morey asked last night about the building’s life span.

FEMA requires the station to be designed as an “essential facility,” Mr. Newell also told me, and the National Fire Protection Assn.’s minimum response times for firefighters necessitate “immediate egress” from the station.

“We worked with the department to meet its minimum needs” and to be “cost-effective” on a site that poses constraints, Mr. Newell said. “There’s not a lot of fluff in the building,” which, if built, will be a single-level, 14,000-square-foot station equipped with four “double-loaded drive-through bays.”

The architect also noted that the “look” of the station “must reflect local character and local color. It must blend in and look like a civic building.”

Mr. Newell said he has designed 400 fire stations across the country, in 26 different states.

When asked by Councilman Fred Newberry at the September Town Council meeting what the anticipated cost of the project is, Mr. Newell cited the volatility of market prices and gave a range of between $325 and $425 per square foot. Thus, the cost for a 14,000-square-foot station would be between an estimated $4.6 million and $6 million.

The Town Council is expected to vote on whether or not Southern Shores will financially participate in the station’s construction at its Nov. 7 meeting.

Ms. Morey expressed concern last night about the size of the Town’s capital expenditure and the “green” standards that the architect observed in the station’s design. Mr. Newell did not attend the meeting.

“It’s a missed opportunity if the Town does not require the building to be forward-thinking,” she said, built to the “highest possible standards” for environmental responsibility and resource efficiency.

Mr. Neal concurred, saying, “The firehouse needs to be modern and efficient.”

AND FINALLY . . . The Planning Board unanimously voted to table its consideration of ZTA 18-08, an effort by builder Olin Finch to amend the fill section of the building height ordinance, which pertains to properties in the AE flood zone. (Code sec. 36-202(d)(7)(b).) It boils down to a question of how elevation is measured.

Mr. Finch, who lives in Duck, would like to use and distribute more fill in his lot at 237 Woodland Drive, where he is building a multi-story house, than the Town Code currently would permit him to do. Deputy Town Manager/Planning Director Wes Haskett advised Mr. Finch’s site manager, Marc Murray, who represented him last night, that he had to remove two feet of fill that had been unloaded and distributed. Mr. Murray referred in discussions with the Planning Board to a client, but Mr. Finch owns the property.

The Planning Board revised the building height ordinance in August 2017, and the Town Council passed its recommended rewrite on Sept. 5, 2017. Planning Board member Joe McGraw, a builder, and Ms. Morey, both of whom were on the Board in 2017, acknowledged that they gave short shrift to the provision on the use of fill in the AE flood zone—spending most of their time on changing how building height is measured in the X flood zone—and agreed that it needs revision.     

 

NO NONCONFORMING LOTS DISCUSSION; RESCHEDULING OF NOV. MEETING

. . . The Board elected not to discuss the new nonconforming lots ordinance last night. Chairperson Wyder said the Board is “still gathering information about nonconforming lots and waiting for recommendations from the Town Attorney and the Town staff.”

The Board also voted, 5-0, to reschedule its regularly scheduled November meeting from Nov. 19 to Nov. 26.

(Believe it or not, whenever I start one of these blogs, I think it’s going to be short! Sorry for the technical difficulties.)

Ann G. Sjoerdsma, 10/16/18

 

Since I posted my blog yesterday about SAGA Construction’s proposal to demolish a historic flattop at 98 Ocean Blvd. and build a 12-bedroom, 5981-square foot, three-story house with parking for 17 vehicles on the oceanfront site, people have been asking about the seven-bedroom restriction that Southern Shores used to impose on single-family dwellings.

What happened to it?

The short answer is: It no longer exists.

While I briefly answered this question in yesterday’s blog, I did not detail the history underlying the answer, which is: The bedroom restriction appeared to be illegal after the N.C. General Assembly in 2015 passed Senate Bill 25, which, among many other prohibitions, bars municipalities from restricting the “number and type of rooms” in single-family and two-family dwellings.

SB 25 deals with “building design elements” and “aesthetic controls,” most of them having to do with the exterior appearance of a structure, such as with the design of roofs or garages. The legislation arose in the context of suburban and urban housing developments, not in a coastal development area. (For the text of the bill, see https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S25v3.pdf.)

SB 25, which became Session Law 2015-86, also has some exceptions. The prohibitions do not apply to structures that are located in local or national historic districts or that are individually designated historic landmarks. Where municipal regulations are “directly and substantially related” to applicable safety codes adopted under the N.C. State Building Code or where they are adopted as a condition of participation in the National Flood Insurance Program, SB 25 does not apply.

SB 25 became state law on June 19, 2015. At that time, the Town Code of Southern Shores defined a detached single-family dwelling in the R-1 residential district, which covers 98 Ocean Blvd., as:

“consisting of no more than seven bedrooms or septic capacity for more than 14 people.” (Sec. 36-205(b)(1).

It further defined a large home dwelling as “any home containing more than seven bedrooms (or rooms that could be considered as bedrooms using the county criteria for determining septic system design) or septic system capacity for more than 14 people.” (Sec. 36-57).

It is important to note that although SB 25 appears to invalidate the bedroom limit, it did not prohibit the 14-person occupancy/septic capacity restriction.

Sometime after SB 25 took effect, SAGA Construction proposed to build a 25-bedroom “wedding destination” or “event” house at 64 Ocean Blvd, in the middle of what was once visionary founder Frank Stick’s housing compound. SAGA destroyed a historic structure on this oceanfront site, as did the homeowners at 62 Ocean Blvd., but it was prevented from building the event house when the Town Council passed a size limit on single-family dwellings of 6,000 square feet of “enclosed living space.”

The Council’s action occurred seven months after SB 25 took effect. Unfortunately, I recall a long, well-aware delay by the Town before it responded to the new law, about which all Planning Board and Town Council members knew. Although there was considerable buzz surrounding SB 25, and beach towns to the south changed their zoning ordinances, it was not until SAGA’s development proposal for 64 Ocean Blvd. became known that Southern Shores acted. (You may recall that a Town Council election occurred in November 2015, resulting in the arrival of three new Council members. It was the former Council that ignored SB 25.)

PLANNING BOARD AND TOWN COUNCIL RESPONSE TO SB 25

On Jan. 22, 2016, the Town Council considered three zoning text amendments, prepared by Town Attorney Ben Gallop and Town Planner Wes Haskett, to ensure both that the Town Code conformed to SB 25 and that the SAGA 25-bedroom “event house” would not be built. I recall the hearing on these ZTAs as being somewhat confusing and overwhelming. Each ZTA contained a lot of verbiage to process.

The previous evening, the Town Planning Board had met and unanimously recommended approval of ZTA 16-02, which restricted occupancy in large structures, but not maximum building size. The Planning Board did not reject the other ZTAs; it just favored ZTA 16-02 over the others. I detail the ZTAs that the Town Council considered below:

ZTA 16-02: “Large structures, 14-person occupancy limit”

The crux of this ZTA was a new definition for “large-home dwelling” under Code sec. 36-57. Large homes were redefined as “any residential structure designed or constructed to have septic capacity for more than 14 people. Large home dwellings are not a permitted use in any zoning district unless expressly authorized by that district’s regulations.” (I added the italics.)

This ZTA, like all of the proposed ZTAs, elaborated on the definition of “event facility,” which constitutes a restaurant under the Town Code and requires a conditional use permit. Much effort was put into drafting new Code language that would define and control “event facilities.”

ZTA 16-03: “Large structures, maximum square footage”

This amendment established a “maximum size” for a single-family dwelling within the different residential districts of not more than “6,000 sq. ft. of enclosed living space.” Living space is defined in the Town Code as habitable space.

Significantly, ZTA 16-03 also eliminated the 14-person septic system capacity limit on detached single-family dwellings, and, in my opinion, amended the definition of the term “family” in an awkward, unfortunate, and, most likely unintended, manner. I will not get into the “family” point now, but it figures into an analysis of what is a family insofar as a vacation rental house occupancy is concerned.

ZTA 16-04: “Large structures, graduated square feet”

This ZTA sought to define the maximum size of a large-home dwelling according to the zoning district in which it is located. But it also specified that such dwellings “are not a permitted use in any zoning district.”

The way this ZTA worked is that dwelling size was determined by the square footage of the lot on which it was built:

On lots with square footage up to 10,000 square feet, a single-family dwelling could not exceed 2,000 square feet of enclosed living space. If the lot were between 10,0001 and 20,000 square feet, the size limit would be 4,000 square feet; on lots between 20,001 and 35,000 square feet, the limit would be 6,000 square feet; and on lots greater than 35,001 square feet, the maximum house size could not exceed 8,600 square feet of enclosed living space.

Remember, any lot under 20,000 square feet is still nonconforming.

If this ZTA had been passed by the Town Council, instead of ZTA 16-03, SAGA would be able to build an 8,600-square foot house at 98 Ocean Blvd., provided the building did not exceed the 30 percent lot coverage restriction. SAGA claims in its CAMA application that the lot size is 35,262 square feet.

ZTA 16-04 also sought to alter the meaning of “family.”

You will find links to all of the ZTAs at this link: https://www.southernshores-nc.gov/?s=16-03.

I am simplifying the proposed ZTAs as much as possible. I do think it’s important to mention, however, that each one proposed a change to off-street parking requirements for single-family dwellings, which had been based on the number of bedrooms in a dwelling. Instead of using bedrooms, the Town conditioned the minimum number of requisite parking spaces on septic capacity, which is determined by the county health department.

The Jan. 22 meeting minutes reflect, and I recall, that the Town Council zeroed in on ZTAs 16-02 and 16-03. The graduated square-foot scheme and its consequences were difficult to comprehend quickly. It seemed unduly complicated.

According to the minutes, Mr. Gallop stated that he was more confident about defending ZTA 16-03 from legal challenge than he was ZTA 16-02 or 16-04. He also said that ZTA 16-02, which would restrict septic capacity, would be harder to enforce.

See the minutes here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Minutes_2016-01-22.pdf.

According to the minutes, Councilman Christopher Nason asked Mr. Haskett what was meant by “enclosed living space,” and he replied that it is space that is heated and cooled. Hence, a detached garage would not be included.

Eventually, the Town Council approved the maximum size limit of 6,000 square feet by a 3-2 vote, with Mayor Tom Bennett and Councilman Nason opposing it. Councilman Leo Holland joined Councilmen Fred Newberry and Gary McDonald in supporting ZTA 16-03.

WHAT ABOUT NOW?

An obvious question, in hindsight, is why didn’t the Town Council combine ZTA 16-02 and 16-03, and restrict both maximum building size and maximum occupancy, according to septic capacity? The answer, I believe, is that it could have, but it didn’t because a ZTA incorporating both approaches wasn’t drafted, and it was under the gun with the SAGA development looming.

Could the Town Council seek to limit occupancy now in single-family dwellings by reference to septic capacity? Yes. Could it limit occupancy in single-family rental dwellings without reference to septic capacity? I would like the opinion of an expert land-use attorney on this matter. The definition of family, as it pertains to vacation rentals, would definitely come into play.

Whether or not the Town could enforce an occupancy limit is a different question from whether or not it has the authority to impose a limit. Enforcement is a practical how-to matter. How does the Town enforce maximum building height or maximum lot coverage or other limits now?

I have long  believed that there is can-do government, and there is can’t-do government. The same can be said of attorneys. I stand with those who believe they can and figure out how.

Ann G. Sjoerdsma, 10/11/18; revised, 10/12/18

If SAGA Construction secures the CAMA and town permits it needs to develop 98 Ocean Blvd. on the Southern Shores oceanfront, an original Frank Stick design will be destroyed and a 12-bedroom, 12-bathroom, 5981-square foot, three-story house with a claimed septic capacity of up to 24 people and parking for 17 vehicles will be built in its place.

“98 Ocean Blvd. LLC,” the legal identity that SAGA has used as purchaser, reportedly settled on the property, identified as lots 1-2 of block 17, last Friday, buying it from three sisters who live in Virginia and acquired it, in large part, from their parents.

This summer, the flattop at 98 Ocean Blvd., known as the Brooks house, was still in the rental program at Southern Shores Realty. See https://www.southernshores.com/outer-banks-rentals/brooks/081.

According to Town Permit Officer Dabni Shelton, 98 Ocean Blvd. LLC’s application to CAMA (Coastal Area Management Act) for a development permit was filed Oct. 2 and sent to the N.C. Division of Coastal Management the next day. CAMA regulations require a “minor” permit to be issued within 25 days after an application is in hand–therefore, in this case, by Oct. 27. Permits customarily issue well before the 25-day period elapses, Ms. Shelton said. (See below.)

Amit Gupta of SAGA is acting as 98 Ocean Blvd. LLC’s agent.

A SLAP IN THE FACE

SAGA’s plan is a “slap in the face to the vision of Frank Stick, the developer of Southern Shores,” said Sally Gudas, who, with her husband Steve, owns a 1950s-era flat top on Wax Myrtle Trail and has actively sought to preserve flat tops and arrange tours of them.

Building a “12-bedroom structure,” which may be an “event house,” in place of the historic flattop now at 98 Ocean Blvd. (see photo above), Ms. Gudas told me this morning, “is antithetical to the goals of Frank Stick’s original development.”

I will tell you, in full candor, that I agree. It is also antithetical to Southern Shores’ current land-use plan, which endorses a vision of a “quiet seaside residential community comprised primarily of small low density neighborhoods,” not a high-density, congested seaside community with 17 SUVs parked in front of three-story houses.

SAGA’s proposed demolition and construction project at 98 Ocean Blvd. became public Monday when Board member Rod McCaughey announced it at the Southern Shores Civic Assn.’s general membership meeting. Mr. McCaughey called it “bad news.” I have yet to speak to anyone in Southern Shores who feels differently.

Mr. McCaughey reported that the SSCA had received notice last Friday from SAGA of its application for a permit. The CAMA permit system is divided into major and minor permits based on the size and environmental impact of a development project. SAGA’s project is considered minor.

Because the SSCA’s Chicahauk Trail beach access adjoins 98 Ocean Blvd., to the south, the civic association is an adjacent riparian owner entitled to notice and an opportunity to comment or object to SAGA’s application. The Kill Devil Hills-based developer erred in sending certified-mail notice of its application to the landowner on the other side of the beach access, skipping over the SSCA. (An agent for the homeowner at 100 Ocean Blvd. accepted delivery of SAGA’s certified letter notice on Sept. 19. That homeowner did not file comments or objections within the requisite 10-day period after receipt.)

FULL DISCLOSURE: I attended the SSCA meeting and stood up to ask questions of Mr. McCaughey. As I have at other public meetings, I raised the issue of whether the proposed SAGA house qualifies as a “single family dwelling.” Ninety-eight Ocean Blvd. lies within the Southern Shores’ RS-1 residential district, which is zoned for single family dwellings only. I also suggested that the SSCA use some “legal firepower” in opposing this project.

Immediately after the meeting, I circulated among SSCA members who lingered and heard only negative comments about the SAGA project. I spoke with Mayor Tom Bennett that night, as well as two Town Council members. All Town Council members attended the SSCA meeting, except Councilman Christopher Nason. Yesterday, while researching the Town permit file on 98 Ocean Blvd., I spoke further with Mayor Bennett, who happened to stop by Town Hall, and Councilman Jim Conners, with whom he was meeting, as well as at length with Ms. Shelton. Deputy Town Manager/Planning Director Wes Haskett is out of town.

I can confidently say that none of the elected officials with whom I spoke wholeheartedly supports SAGA’s project. But that does not mean that any of them are prepared or eager to fight, through legal means—including via amendments to the Southern Shores Town Code—this project and future projects like it. At least, not yet.

SSCA OBJECTS TO SAGA HOUSE

Yesterday, Mr. McCaughey, who heads the SSCA’s bylaws/long range planning/architectural review board committee, submitted a letter of objection to Mr. Haskett and Ms. Shelton, who are the local permit officers (LPOs), writing, in significant part:

“The characterization/classification of a 12-bedroom structure as a single-family dwelling is improper and misleading. A structure with that number of bedrooms surely seems designed to accommodate large numbers of people along the lines of other event houses built in Dare County. [The SSCA] feels strongly that such a structure is out of character with all of the existing single fairly dwellings in Southern Shores and raises concerns with accommodating large numbers of vehicles associated with use of the structure.”

I thank Mr. McCaughey and the SSCA for their opposition. I believe they are representing a majority view of the civic association’s 1802 members. I only wish the SSCA had withheld its response until the end of the 10-day period. 

According to Ms. Shelton, “The first day to issue [a CAMA permit] is customarily eight to 10 days from the date of a complete application, which in this case was Oct 9th, when the SSCA submitted their Adjacent Riparian Property Owner notice and letter.” [Content in boldface added 10/12/18.]

MY OPINION: To call SAGA’s proposed structure a single family dwelling or “home” is to distort the common meaning of this term. That the new property owner is identified as a corporation, rather than as an individual, further defies application of this description to SAGA’s project. This is a luxurious rental-house machine—each of the 12 bedrooms is conceptualized as a “suite”—being built on speculation, not a dream house being built by a wealthy individual for personal use.

I am reluctant to say more now about the single family dwelling status of this controversial project and how relevant existing law may or may not apply to it. I have more research that I would like to do, and the project is early in the permitting process.

Ms. Shelton said that the Town is “reviewing” SAGA’s CAMA application. She has not received any applications from SAGA for local permits. A building-permit application requires proof of ownership, and, so far, only SAGA’s purchase offer, accepted by the three sisters in March 2018, is on file.

Rather than talk about legalities, I would like to share with you SAGA’s numbers.

LOT COVERAGE, HOUSE SQUARE FOOTAGE

I asked Ms. Shelton about the proposed SAGA house’s lot coverage, and she said that, when assessing an oceanfront building, it is calculated from the first line of stable natural vegetation (FLSNV). CAMA will make its determination of FLSNV, she explained, and then she will visit the property and make her own independent determination.

According to SAGA’s building plans on file, the developer calculated square-foot coverage of the project as follows:

Proposed residence: 4,435 square feet, a calculation that excludes a 165-square-foot interior garden that is open to the sky.

Proposed concrete parking and driveways: 3,732 square feet. (The plans indicate that six parking spaces will be under the house; 11 will be on the driveway.)

Proposed swimming pool and concrete decking: 1,724 square feet (The project also has a hot tub and tiki bar.)

Proposed wood beach walkway and deck: 416 square feet

The total of these measurements is 10,307 square feet.

SAGA has calculated the lot area to FLSNV as 35,262 square feet, or .81 acres. By SAGA’s calculations, its project would cover 29.2 percent of the lot.

Ms. Shelton pointed out that when determining the size of a structure, CAMA calculates “total floor area,” whereas the Town, in deciding whether a house exceeds the 6,000-square-foot cap imposed by zoning ordinance, takes account only of “enclosed living space.” The Town Code requires living space to be habitable.

According to SAGA’s CAMA application, the “total floor area” for its proposed house is 6105 square feet, whereas the total enclosed living space is 5981 square feet. The developer’s  building plans show the following square-footage calculations:

GROUND FLOOR LEVEL

Enclosed area: 265

Storage (non-conditioned): 124

Covered area (non-conditioned): 3443

FIRST FLOOR

Enclosed area: 2958

Deck area: 1261

SECOND FLOOR

Enclosed area: 2758

Deck area: 888

To arrive at 5981 square feet, SAGA added the enclosed areas of 265, 2958, and 2758 square feet.

As many of you know, the Town enacted the 6,000-square-foot size limit on single family houses when Senate Bill 25 became law in 2015, and it lost the authority to restrict the number and type of rooms. Before then, Southern Shores imposed a seven-bedroom limit on single family dwellings.

SB 25 dealt with many “building design elements” and “aesthetic controls,” most of them having to do with the exterior appearance of a structure. It arose in the context of suburban and urban housing developments. (See https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S25v3.pdf.)

It may be advantageous to revisit this law after the November election with General Assembly members from Dare County. In the meantime, it is worth noting that the 2015 law allows municipalities to enact zoning regulations pertaining to “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.”

A PERSONAL NOTE

I join Ms. Gudas in believing, as she told me, that the demolition of the flat top at 98 Ocean Blvd. “will be a huge loss to the essence of Southern Shores.” It will be a loss of history. That such demolition may be an inevitability does not lessen the loss.

I also agree with her that “even more troubling” is the size, scope, and commercial intent of the proposed structure that will replace it. That it is proposed to be located next to the main beach access used by Chicahauk residents and vacationers is also troubling.

On a personal note, I would like to say that I am one of three sisters—I also have a brother—who acquired an oceanfront house in Southern Shores that my parents built. My family’s cottage is historic only in the sense that it was the first house built on pilings, and the flat top contingent wasn’t happy about it. Now it is a dwarf among giants.

The cottage that I own with my siblings sits between two flat tops and always has. This year the flat top to the north of our rental home was for sale, and I couldn’t convince my siblings to buy the property in order to protect our home and the town. Too much money, too much hassle, etc., etc.

I was greatly relieved when an Ohio couple bought the property, not SAGA or another developer of event “homes.” I was then, and am still, prepared to litigate if I have to. I hope the SSCA is, as well.

CELL TOWER EXPANSION

Speaking of money . . . It was also announced at the SSCA meeting that American Tower Corp. will be extending the cell tower at the Duck Road/Ocean Blvd. fork by 20 feet in order to accommodate Verizon Wireless, which is not now on the tower, and to expand AT&T’s cellular capacity.

The current “straight pole-like structure,” American Tower representative Mark Landers explained to the SSCA audience, “will look exactly the same on the outside.” He also said that the expansion is being done to “accommodate” the explosion in cell-phone traffic, which he described as a 40-percent annual increase in data. Too many people are trying to use the network at the same time.

The expansion will take about five months and bring in $5400 more in rent for the SSCA, bringing the total income from the cell tower to just under $40,000. The cell tower will be 150 feet high when it is done.

***PLEASE NOTE***

THE NEXT PLANNING BOARD MEETING IS 5:30 p.m., OCT. 15, in the Pitts Center. On the agenda are consideration of the Southern Shores Volunteer Fire Dept.’s application for a conditional use permit to construct the new fire station at 15 S. Dogwood Trail and a hearing on proposed ZTA 18-08, concerning a change in the maximum building height ordinance, sec. 36-202(d) of the Town Code.

Before the SSCA’s meeting Monday, I thought I would be writing a blog this week about the SSVFD’s new station and ZTA 18-08, which arose, literally, from a situation in my back yard.

Duck-based builder Olin Finch bought the lot behind my residence at 237 Woodland Drive, a once-forested irregular lot in an AE flood zone. I have met on-site with manager Marc Murray, who will be representing Mr. Finch at the Planning Board hearing, and have monitored the development. I had setback concerns.

I was not in town, however, when a convoy of dump trucks traveled down South Dogwood Trail, arriving before 7 one morning, and unloaded fill in the Woodland lot, which Mr. Haskett has aptly described as a “bowl.” I subsequently learned from a neighbor and Mr. Haskett that the added fill exceeded the amount permitted by the Town Code by two feet and had to be removed. Hence, ZTA 18-08.

Section 36-202(d)(7)(b) currently permits “the use of fill or redistribution of fill” for properties in the AE flood zone up to “7 feet above mean sea level.” The amendment would delete that phrase and replace it with up to “the regulatory flood protection elevation.” That brings FEMA into the definition.

I have been advised by informed sources that this is a good change, one that will bring consistency to Code sections and protect homes in the AE flood zone. My own house sits on a ridge, not in a bowl. I will listen carefully to what Mr. Haskett and Mr. Murray say. But what I mostly would like is for Finch and Co. to fill in the trench–a three-foot-high dropoff–that was created between our lots when the trucks brought in the fill.

The Planning Board may or not take up the new nonconforming lots law again. It also may take up the SAGA project. Certainly, property owners and others are free to bring up the project to the Board in public comments.

I encourage the Planning Board and the Town Council to fight the SAGA project. This is not a time for “What can we do?” shoulder-shrugging and delay. This is a time for swift, preventive action.

Ann G. Sjoerdsma, 10/10/18; revised slightly 10/11/18

The election season in Dare County is in full swing now with candidates’ signs dotting front yards and street rights-of-way, invitations to fundraising meet-’n’-greets arriving in the mail, and absentee voters receiving their ballots.

If you have not yet registered to vote in Dare County, and qualify by age and residency to do so, you have until Oct. 12—25 days before the election—to sign up. Early voting for the Nov. 6 general election starts Oct. 17. (More about “one-stop” absentee voting, at the end of this blog. Note: There will be no early voting at the Pitts Center.)

Each of the 120 N.C. House of Representatives seats and 50 N.C. Senate seats is up for grabs in November. Members of the N.C. General Assembly, which is the collective name for the House and Senate, serve two-year terms. Dare County has one of each.

North Carolina has been and continues to be a red-hot political battleground because of the “supermajority” in the General Assembly that enables Republicans to override Democratic Gov. Roy Cooper’s vetoes and because of racial gerrymandering of U.S. congressional districts.

STATE LEGISLATURE

If Democrats gain either four House seats or six Senate seats, they will break the supermajority that Republicans currently have. I oppose a supermajority in a state legislature by any party—unless it truly represents party affiliation statewide, and then I’m moving—but The Beacon is not going to evaluate the candidates’ qualifications or make political endorsements. I simply urge voters to become informed.

In 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. She ran against Ms. Judge’s late husband, Warren, a longtime Dare County commissioner, in 2016. Mr. Judge died three days before the election.

U.S. CONGRESS

In late August, a federal district court ruled that North Carolina had unconstitutionally gerrymandered by race two of the state’s 13 U.S. congressional districts. This decision had nothing to do with state legislative districts, only federal districts, and will have no effect on the November election. (This is not the first time the N.C. General Assembly has engaged in unlawful racial gerrymandering.)

Dare County is in U.S. congressional district three, where, unfortunately, incumbent Congressman Walter B. Jones, who was first elected in 1994, is running unopposed. I say unfortunately because I believe the voters of northeastern North Carolina are ill-served by a one-party system. We deserve a choice, even if Mr. Jones, who faced a tough challenge in the Republican primary, wins in a landslide, as he usually has.

Ten of North Carolina’s 13 U.S. Congressional representatives are Republicans. Both of its U.S. senators, Richard Burr and Thom Tillis—neither of whom is up for re-election—are Republicans.

LWV’S CANDIDATES FORUM

Mark your calendars for Sunday, Oct. 14, when the Dare County League of Women Voters will host an afternoon of candidate forums at Jennette’s Pier in Nags Head. In detailing below the LWV’s itinerary that day, I provide the party affiliations of the candidates because they are printed on the ballot, which I have seen, not because the candidates are necessarily seeking partisan offices.

According to the LWV’s online calendar, the itinerary for this free educational event will be:

From 1 p.m. to 2:30 p.m.:  Candidates for 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.

From 2:30 p.m. to 3 p.m.: Candidates for N.C. Senate and House

The candidates for the N.C. General Assembly will reportedly “make presentations and be available to the audience.” They will not be participating in a traditional question-and-answer forum. All of the other candidates on the League’s program will respond to audience questions.

From 3 p.m. to 4:15 p.m.: Candidates for the 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.

From 4:15 p.m. to 5 p.m.: Other Dare County Candidates

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.

If you have any interest in becoming a soil and water conservation district supervisor, you may well win office by asking your family and friends to write in your name on the ballot. Two such supervisor positions are up for election, and each will be decided by write-in voting.

Voters also will be electing a N.C. Supreme Court justice and three justices on the N.C. Court of Appeals, which is the intermediate appellate court in the state. (The superior and district courts that I mention above are trial courts.) Because most voters don’t know anything about these candidates when they cast their ballots, I will give you a rundown about all of them in a separate blog.

CONSTITUTIONAL AMENDMENTS

Listed at the end of the election ballot, after the candidates’ names, are six proposed amendments to the N.C. Constitution, which you are asked to vote “for” or “against.” These referenda include the following:

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 rate is 10 percent (10%).

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

RIGHT TO HUNT: An amendment to protect the right of the people to hunt, fish, and harvest wildlife.

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.

JUDICIAL VACANCIES: 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 North Carolina nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action, not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.

(I will take up this amendment and the photo ID amendment when I look at the candidates for the N.C. Supreme Court and Court of Appeals.)

BOARD OF ETHICS: An amendment to establish an eight-member Bipartisan Board of Ethics and Elections Enforcement in the Constitution to administer ethics and elections law.

You may read about the League of Women Voters’ positions on the six amendments here: http://www.lwvdarenc.org/files/LWVNC-2018-Amendments-Positions2.pdf.

EARLY VOTING

And finally . . . early, aka one-stop, voting begins Wed., Oct. 17, and will continue through Sat., Nov. 3, except for Oct. 20-21 and Oct. 27, when the polls will be closed. With the exception of Sun., Oct. 28 (noon to 4 p.m.) and Sat., Nov. 3 (8 a.m. to 1 p.m.), the polls will be open from 7 a.m. to 7 p.m.

THERE WILL BE NO EARLY VOTING AT THE PITTS CENTER IN SOUTHERN SHORES OR AT THE BAUM CENTER IN KILL DEVIL HILLS.

Polling stations are as follows:

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

KDH TOWN HALL, 102 Town Hall Drive, KDH

FESSENDEN CENTER ANNEX, Buxton

***

*Explaining my asterisk above: 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.

I undoubtedly will repeat some of the information in this blog before the Nov. 6 election, especially with the Southern Shores Town Council taking a hiatus in October. Please check back for new and repeated details.

Ann G. Sjoerdsma, 9/26/18

In a good will gesture, Mayor Tom Bennett has reached out to the mayor of Swansboro, N.C., a coastal town about the size of Southern Shores, and offered to send supplies to help its residents recover from flooding caused by Hurricane/Tropical Storm Florence. The small town in Onslow County, near Camp Lejeune Marine Corps Base, has experienced a total rainfall since last Thursday of more than 35 inches, much of it falling during the storm’s first two days.

At last night’s Planning Board meeting, Mayor Bennett described how he asked town staff to identify some hard-hit towns in North Carolina that, like Southern Shores, have a population of about 3,000 people. Swansboro qualifies, although Southern Shores is larger in area. The total land and water area of Swansboro, which is on the Intracoastal Waterway about 80 miles northeast of Wilmington, is about 1.3 square miles.

According to Mayor Bennett, Swansboro has been “hammered” by Florence, and flooding there has been “devastating.” Many residents are without electricity. The Mayor recommended donations of tarps, plastic storage boxes, and plastic containers, but any nonperishable items, such as canned foods, bottled water, soft drinks, toilet paper and other paper products, pet foods and supplies, and cleaning products, are in demand. You may bring your donations to Town Hall today and in the ensuing days. (Update 9/21: Mayor Bennett reports that trailer- and truck-loads of donations will be delivered to Swansboro today.)

Tiny Swansboro topped the National Weather Service’s preliminary rainfall totals for North Carolina towns as of noon Saturday, Sept. 15 with a record 30.58 inches. By Sunday night, the National Oceanic and Atmospheric Admin. was reporting an unofficial total rainfall for Swansboro of 33.89 inches. Rain is still in Swansboro’s forecast today, but it is predicted to end by tomorrow.

“We broke the state record for rain at one time,” Swansboro Mayor John Davis told USA Today, “but considering the strength of the storm and how long it has stayed, we did pretty well.”

Rainfall totals from Hurricane Florence have eclipsed those from Hurricane Floyd, which wreaked havoc in eastern North Carolina in 1999. Floyd dumped a record 24.06 inches on Wilmington, which sits on the Cape Fear River and is currently coping with the aftermath of Florence’s rain and storm surge. Besides Floyd, Wilmington was hammered, to use the Mayor’s verb, in 1996 by Hurricane Fran.

Swansboro, which is in Onslow County across the waterway from Hammonds Beach State Park, is a former plantation that was incorporated as a town in 1783. The town’s motto is “The Friendly City by the Sea.” Its historic district made the National Register of Historic Places in 1990.

Thanks to Florence’s strong winds, Mayor Davis said in his USA Today interview, “[W]e had 10 roofs peel off like the tops of cans” in the historic district.

I would like to thank Mayor Bennett for his thoughtful and gracious offer to Mayor Davis and encourage Southern Shores residents to donate what they can. When I asked Mr. Bennett after the Planning Board meeting if Southern Shores suffered any storm-related damage, he replied: “Nothing.”

“Just pine needles,” he said, smiling. “A few downed tree limbs, but no trees.”

Other northern Outer Banks towns fared similarly. There will be no storm-debris pickup anywhere in Dare County. Just a reminder, however: If you own property on one of the town’s canals, and a tree fell in the canal during the storm, you are responsible for removing it.

PLANNING BOARD TAKES UP NEW NONCONFORMING LOTS LAW: Exceptions?

It appeared from the Planning Board’s online agenda that much of last night’s meeting would be devoted to considering the Southern Shores Volunteer Fire Dept.’s Conditional Use Permit application to build a new fire station at its current site. But because of the storm, the SSVFD’s engineer, Joseph C. Avolis of New Bern-based Avolis Engineering, P.A., could not attend the meeting. The Board will take up the CUP at its Oct. 15 meeting. (Links to CUP materials are at https://www.southernshores-nc.gov/planning-board-meet-september-17-2018/.)

The Planning Board instead spent more than 90 minutes discussing what, if any, modifications it would recommend that the Town Council make to the newly adopted zoning text amendment, ZTA 18-07, about regulating nonconforming lots. The Board concluded its extremely thorough discussion by agreeing unanimously that it needed more time to evaluate how the new law affects property owners, vis-à-vis protecting the town’s interests, and whether any exceptions to the law are warranted.

“This board will always do due diligence,” Chairperson Glenn Wyder stated. Earlier in the session, he stressed: “We want to do things right.”

On Sept. 5, the Town Council voted 4-1 to replace current Town Code sec. 36-132 with the text of ZTA 18-07, which seeks to curtail development on nonconforming lots, in particular, 50-foot-wide lots that were once part of 100-foot-wide parcels. The new law seeks to “recombine” nonconforming lots into conforming lots so that the resulting parcel is a minimum width of 100 feet, which has been the minimum size for a buildable lot in Southern Shores since enactment of the Town Code.

This “do-over” became necessary, in large part, because the original sec. 36-132, which took effect in 1981 and sought recombination of all nonconforming lots owned by a single owner into conforming lots, was drafted inartfully—so poorly as to not trigger recombination of vacant, adjacent nonconforming lots in single ownership.

At least, that is the opinion of Town Attorney Ben Gallop, who has determined the Planning Department’s approach. Some Southern Shores residents believe that sec. 36-132 was sufficient and that the sales of many 50-foot-wide lots in town should not have been allowed to occur. I believe the intent of the Town Council nearly 40 years ago was to recombine all nonconforming lots that were not single lots. The language it used is debatable and, now, with the new law, moot.

Prior to the town’s 1979 incorporation, single lots of 75 feet were sold and developed, but most of the parcels sold consisted of two or more 50-foot-wide lots. Restrictive covenants that run with these lands require developing them as 100-foot-wide tracts. (Some pre-incorporation exceptions on the oceanfront do exist.)

With an eye toward assessing ZTA 18-07’s effect, new Planning Board member Andy Ward, a local builder, did a comprehensive lot-by-lot analysis of Ocean Boulevard, starting at Pelican Watch and going north, and of nearby streets, including Duck Road, Porpoise Run, Trout Run, and Wax Myrtle Trail. Mr. Ward presented his thorough analysis (he worked on “rainy days,” he joked) to the Board before it started its deliberations. Mr. Wyder called it “a great identifying tool for us as a board and eventually for the town council.”

This analysis allows easy identification of properties and property owners directly affected by the new law. (You may view it at https://www.southernshores-nc.gov/wp-content/uploads/2018/09/8-22-18-Ward-Scenarios.pdf.) In examining Mr. Ward’s scenarios, Board members made clear that they do not wish to unduly burden individual property owners. They spent the bulk of last night’s meeting deliberating over exceptions to the new law.

“We want to try to be fair,” said Elizabeth Morey, the Planning Board vice-chairperson.

“We want to make people whole who are in place,” said Mr. Ward.

One such property owner identified by the Board is Richard M. White of Elizabeth City, who owns 85 Ocean Blvd., two 50-foot-wide lots that he developed in 1999 as a single 100-foot-wide lot. In 2014, Mr. White, who was present at last night’s meeting, bought a former paper street at 85A Ocean Blvd., which is a nonconforming 50-foot-wide lot. He would like to build on this investment property.

On May 21, however, the Planning Board, sitting as the Board of Adjustment, denied Mr. White’s request for a side-yard setback variance on 85A Ocean Blvd. because House Engineering, P.C., of Kitty Hawk, who represented him, sought a setback reduction from 15 feet to 10 feet, not 12 feet. All of the side-yard setback variances that the Board approved on 50-foot-wide lots, before adoption of ZTA 18-07, were for 12 feet.

The new law specifies that owners of single 50-foot-wide lots—meaning they do not own any adjacent property—may use a side-yard setback of 12 feet. Mr. White cannot avail himself of this variance, however, because the new law requires him to recombine 85 and 85A Ocean Blvd. into one 150-foot-wide parcel.

To remedy Mr. White’s situation, the Board eventually arrived at a possible exception that Mr. Haskett framed. If I understood it correctly, the exception would apply to a single owner who has a vacant nonconforming lot adjacent to two nonconforming lots that have a structure on them (e.g., Mr. White’s rental house). Under this exception, Mr. White would have to recombine the two lots that make up 85 Ocean Blvd., but not the lot at 85A Ocean Blvd.

Upon hearing this proposal, I immediately began brainstorming ways to use the exception to get around the recombination mandate of the new law. I’m sure other property owners and their lawyers would do the same. I think it would be more efficient to except former paper streets from the definition of nonconforming lots. Mr. White’s case is unique.

OPINION:

I found Board members’ discussions last night among themselves and with Mr. Gallop and Deputy Town Manager/Planning Director Wes Haskett to be thoughtful, creative, and wide-ranging. They coalesced into the excellent suggestion that Mr. Wyder meet with Mr. Gallop and Mr. Haskett to focus these discussions.

In Mr. Gallop’s exchanges with the Planning Board, the Town Attorney repeatedly returned to the questions of the Board’s objectives—“What are the problems you’ve trying to solve?”—and its policies, apart from individual property owners’ circumstances. In my opinion, the Planning Board has to ensure that any exceptions it recommends to the Town Council reflect sound policy that benefits the town, at large. Exceptions should be policy-driven, not property-owner-driven, and, thus, neutral and non-discriminatory.

In stating the Board’s objective, Mr. Wyder said: “The idea is to maximize the number of conforming lots and minimize the number of nonconforming lots.”

While true, I believe this statement is too broad. I believe it needs to be broken down into a more practical analysis that rests on policy considerations.

The only other observation I would make is that sometimes the Planning Board members refer to, and fear, legal repercussions from their actions, without articulating or knowing what the legal cause of action would be. The Town Council does this, as well. I understand that all of these town representatives take their responsibilities very seriously and do not wish to harm the town in any way. I commend them for their conscientiousness. I also know that we live in a very litigious society. But you cannot sue on the air you breathe or just because you feel like it. You have to state a legally actionable claim.

Last night, one member brought up the concern that a recombination of nonconforming lots might be an unconstitutional taking of property. Lawyers know it is not, and I was most gratified when Mr. Gallop put that fear to rest, citing the U.S. Supreme Court as authority. I wish he would speak up more often and address Planning Board and Town Council members’ legal concerns when they arise. In my experience and opinion, they are often unfounded.

Ann G. Sjoerdsma, 9/18/18

In light of the weather news this week, I thought you might enjoy reading a column I wrote 20 years ago for The Virginian-Pilot when I was an editorial columnist. It appeared Aug. 29, 1998 and was headlined “OUTER BANKS HURRICANE WATCH: Bonnie Moved Slowly, as I Waited.” You’ll note that I refer in the article to Hurricane Felix, a 1995 storm. Unfortunately, I cannot locate a copy of the Aug. 27, 1995 column that I wrote about Felix. In that piece, I stopped and interviewed people in Kitty Hawk, KDH, and Nags Head who, in general, were taking the storm in stride. Here’s my report on Bonnie:

WHILE OUTER BANKS VACATIONERS panic at the words “mandatory evacuation” and rush to sit for hours in traffic gridlock, we barrier-island locals know just how long the wait for a hurricane can be. Too many times, I’ve kept an anxious eye on one of these anthropomorphic forces of nature only to have it fail to show up or be a shadow of its former self when it did.

Of course, tourists have to be ushered off the beaches early to minimize later potential disaster, though it’s a shame they leave on the lovely sunny day (last Tuesday) before the hunkering-down begins. Realistically confronting a hurricane, not simply fleeing from its possibility, is largely a matter of mathematics. And unpredictability. A hurricane’s slow course cannot be confidently plotted. This much I’ve learned.

Am I better off waiting in Elizabeth City or Norfolk? And when a hurricane’s as big as Texas—Bonnie’s girth—is there any hiding place? There will be ample time to tell.

At 9 a.m. last Wednesday, Bonnie was 100 miles south of Wilmington, N.C., and moving at 14 miles per hour. Slower than the previous night. It doesn’t take a calculator to figure that if Bonnie, which was packing 115-mph winds, continued at this speed and on its north-northwest path, it wouldn’t reach Wilmington for seven hours; and since Wilmington is a fair bit south of my inland Outer Banks residence, I had hours to while before deciding whether to hightail it out. What to do?

Hit the town. What else?

Theoretically, everyone should leave during a countywide mandatory evacuation; and certainly, if you’re a tourist, the hotels and cottage rental companies can oust you. But the police don’t go door-to-door, forcibly removing people. And until a curfew is issued, the roads are fair game.

Three years ago, when I waited out Felix—which traveled at 6 godawful slow miles an hour before it stalled off the coast and went out to sea—I felt as if I had returned to 1975, so wide-open were the roads. But today, with the increase in the number of Outer Banks year-rounders, the tempestuous Bonnie had much more company.

At 10:30 a.m., there was traffic. No wind, no rain. But traffic. The 7-Eleven in Kitty Hawk was a happening place. “Welcome, Bonnie,” the message on its window boards teased. “Come on in . . . OPEN.” And people did, buying milk, bread, toilet paper, gas. The mood was festive, but the wait had just begun.

Down the road in Kill Devil Hills, 40 cars were parked at Kmart, as signs there promised batteries and water and announced that the usually jam-packed store was “being run by all volunteer staff.” “Volunteer” is code for bored locals going nuts at home.

A couple in cutoff jeans emerged carrying two big boxes of detergent: Bonnie had forced them to confront laundry day.

Open supermarkets and combo service station-convenience stores were doing a brisk business, as was Ace hardware. Two men fished in the pond next to the Nags Head movie Cineplex. I wondered if there actually were fish in it, but didn’t stop to ask. Only one police car passed by. On the Nags Head oceanfront, a construction crew banged nails on a partially built cottage.

“My Bonnie Lies Over the Ocean—Stay There” was the hands-down favorite message spray-painted on boarded-up windows. With an ungrammatical variant having Bonnie laying over the same.

A young man sat in front of Las Trancas restaurant in Nags Head, playing an accordion. All of the hotels were closed, except the Ramada Inn and Holiday Inn in Kill Devil Hills, where droves of newspeople were staying. These unlucky folks start out thinking a hurricane watch is exciting, then end up hyping ocean surge far weaker than the typical nor’easter produces.

By noon, Bonnie had slowed to 12 mph. Still no rain. In the woods of Southern Shores, a man watered his lawn.

Seeing people at the Exxon convenience store near the old Trading Post in Kill Devils Hills reminded me of the waterspout that came in there in 1978. The black wind tunnel damaged the pink Wilbur Wright Hotel beyond repair and caused a refrigerator to move in a house across the street, crushing a woman to death. I stood watching it from two miles away, transfixed.

Up in Kitty Hawk, Miles Davis, owner of Winks grocery store, which is closing on Labor Day after 45 years,* greeted customers in search of eggs, bacon, bread, batteries, bottled water and ice. Auto mechanic Kevin Bradshaw popped in. He was enjoying a “free day” at work—no phone interruptions. The popular Kitty Hawk pier restaurant was packing ’em in.

To the north, upscale Duck and Corolla were deserted.

By 3 p.m., Bonnie, which had hit land at Cape Fear, was 40 miles south of Wilmington and moving at 10 miles per hour. Simple math: The wait lengthened.

At 5 p.m., I looked out at the same gray sky, the same still trees in the same still air. Bonnie had slowed to 8 mph; it was 21 miles south of Wilmington, heading inland and weakening.

By 9 p.m., the Texas-size hurricane had stalled. Still no wind or rain. Ditto at 11 p.m.

Hundreds of people were rescued from the ocean at the Outer Banks during the first two weeks of August when a storm system whipped up the surf and created dangerous rip currents. Four people drowned. Maybe it’s because I know that the Outer Banks is never without danger that I can wait for new danger to arrive.

By 9 a.m. Thursday, the wind had finally picked up. A light rain fell. Bonnie, now blowing 75-mph winds, was near New Bern, N.C., moving northeast at 6 mph. People were talking about a new girl named Danielle. It was going to be a long day.

***

In an online report on Hurricane Bonnie, Wikipedia says it was “the most observed hurricane in history.” See https://en.wikipedia.org/wiki/Hurricane_Bonnie_(1998).

*Mr. Davis did sell Winks in Kitty Hawk, but the new owner retained the name.

MY BOTTOM-LINE ADVICE: If you find yourself panicked by all of the hurricane-watch hype—and it is both extensive and relentless—take a deep, deep breath; turn off the Weather Channel; and seek out someone who you know is unflappable in an emergency. Prevail upon a cooler head to help you restore your equilibrium. You will have plenty of time to engage in reasoned decision-making, based on facts, not fear.

Ann G. Sjoerdsma, 9/10/18