Thursday, September 17, 2026
By Russ Lay | Outer Banks Voice on November 5, 2011
In most of Dare County, the town elections on Tuesday will lack drama. The scenario is different in Kill Devil Hills, where one issue is, at least partially, animating challengers. And that issue consists of one word: Lowe’s.
During our candidate interviews, three of the four challengers facing incumbents cited something about the Lowe’s process as at least one rationale driving their run for office.
We covered Lowe’s extensively on these pages, and in our comments section, opponents and proponents had a lot to say.
We were working on a background story on both sides of the issue, with the lawsuit filed by two KDH citizens to stop the project serving as the backdrop. That plan was scuttled when the lawsuit was dropped.
Critics of the Lowe’s decision have made their case publicly. But we never followed up with town officials once the law suit was dropped. Now that Lowe’s is a factor in the election, we felt it fair to query board members on the “why” behind their actions.
Commissioner Paul Buske was willing to speak on the record; he is not running for re-election this year. Buske is speaking for himself, and any comments he makes that refer to the entire board are his interpretation of events.
After public hearings earlier this year, the Lowe’s project was approved by the board. Construction of the 158,000-square-foot-store on 12.8 acres at West Landing Drive and U.S. 158 started in July.
Our first question to Buske involved the legal issues surrounding the property; its history and its zoning. He recalls: “This property has been zoned commercial for as long as I can remember. In fact, most of the land abutting the west side of the bypass is zoned commercial, even Porthole Court.”
The Board felt commercial property rights were already vested in the land. There was also a feeling that once Lowe’s had entered into a contract with the Meekins estate and spent money for preliminary work — engineering, legal counsel — Lowe’s was also vested in the project, as were the sellers.
As to permitted uses, which was a question raised by opponents, the town had used an expanded definition of “retail” for some time, even including commercial banks. The board rejected the idea that a “home improvement center,” as Lowe’s calls its stores, was something different than a retail store.
We asked Buske about communications between the town and representatives from Lowe’s (early on only identified as a large, national chain store) that took place before the public became aware of the plans to build a big box store on the site. Critics have said the town should have been more transparent and made the public aware of the pending sale much earlier.
Buske points out that “there are confidentiality issues that are mandated by law regarding land purchases that must be adhered to; we can’t release those details. We had the same (confidentiality) issues with Captain George’s, Harris Teeter, CVS, Walgreens, K-Mart, Food Lion and the movie theater.”
Buske noted that a real estate contract was signed between two private parties — the buyers and sellers of the land. In the course of the due diligence allowed by contract, it is not unusual for the buyers to make contact with government officials to ensure their plans for the property have a reasonable chance of compliance with town ordinances.
If the town were to release those details, both the buyer and seller could sue for breaching that confidentiality. The reasons for this have less to do with thwarting public opposition than with keeping competitors and other possible purchasers of the property in the dark.
It is for these same reasons town governments enter into closed sessions when discussing town land purchases from private property owners.
Lawsuits were very much on the mind of the board, according to Buske. Opponents of the project had already retained counsel before the final vote was taken and had served notice they intended to sue if the town approved the Lowe’s application.
During the public hearing, Buske and Commissioner Bob Woodard pointedly asked the town attorney, Dan Merrell, if there was any way the application could be denied without the town losing a lawsuit filed by either Lowe’s or the seller. Merrell responded in the negative.
At the same meeting, the attorney representing Lowe’s made the same observation: If his clients were denied, Lowe’s would prevail in court.
Buske pointed out the town had been down this road before — and lost. Several years ago, the town gave preliminary approval for a funeral home/crematorium to be built on the site where Captain George’s now sits. The town then denied the final site plan due to public outcry.
Many believe the story ended there.
But Buske reveals the rest of the story; “The town was sued and lost. The town was then required to purchase the land and reimburse the applicants all monies they spent. That amounted to $1.3 million. Fortunately for the town and the taxpayers, the land was bought before prices skyrocketed and the town sold the land for a profit. It could have easily gone the other way.”
Looking at the ordinances and past experience, the board felt approving the request was not only correct under the law, but would prove less expensive to the town than a lawsuit filed by the buyers and sellers that would likely result with the town found to be in the wrong had they denied the request.
A final charge concerned changes made to ordinances specifically to accommodate Lowe’s: A letter from town attorney Dan Merrell to Planning Director Greg Loy makes specific mention of two changes to zoning ordinances in order to “accommodate” development of a “large tract” of land.
According to Buske, almost all changes to zoning ordinances originate from applicants such as Lowe’s who desire to “do some type of construction/renovation in the town.” Buske says the town had made similar accommodations for Birthday Suits, after a fire destroyed their building, and the Outer Banks Presbyterian Church, which is built on “multiple lots” that would have prohibited a proposed addition under the ordinances at the time the church asked for changes to the code
In the case of Lowe’s, one change allowed for pervious concrete to be used in the parking lot. Buske said this change did not originate with Lowe’s. It had come before the board before, and even Buske had tried to get the code changed long before Lowe’s was a concern.
The pervious concrete will result in a storm runoff system “that will exceed town requirements by at least 300%.” Other developers will now be able to use pervious concrete.
The other change made by the town allowed for a larger sign on the wall of the store; that change now applies to all parcels larger than 5 acres.
A third charge involved the town approving fewer parking spaces than suggested by the town code. The town followed the intent of the code, according to Buske. “Unlike residential parking regulations, which are exactly spelled out, commercial parking charts are used as guidance, there is no ‘one size fits all’. Common sense would tell you Lowe’s would never fill up 700 parking spaces, so why require them?”
In our conversation, he mentioned the unused parking spaces dotting the area; Wal-Mart ,K-Mart and the theater complex in Kill Devil Hills. Those unused spaces result in less green space and more storm runoff.
Finally, Buske asked us to listen to a tape of the public hearing. His point was to remind citizens that he and others extracted from Lowe’s significant changes that were not required by the town ordinances — including the architecture of the store, voluntary restrictions on lighting and buffering and improvements to the storm water system that will also benefit the town.
Indeed, on those tapes, Buske chastises the Lowe’s representatives for presenting what he deemed a “different front elevation than what we thought we had agreed to.”
In the end, Buske laments the fact the lawsuit was dropped by opponents. He was confident the town would have prevailed and the points mentioned here would have been brought out in the trial.
