The Town Planning Board will consider adding various fitness and dance studios to the permitted uses of property in the commercial district and allowing Hillcrest Drive property owners to subdivide their oversized lot into two buildable lots at its meeting Monday at 5 p.m. in the Pitts Center.
The Board also is expected to discuss the procedure for appeals before the Town Board of Adjustment, which is a quasi-judicial body that hears requests for zoning variances and appeals of zoning decisions by Town administrative officials.
Since April 1, 2014, the Planning Board also has served as the Board of Adjustment.
You may access the Board’s agenda here: https://www.southernshores-nc.gov/wp-content/uploads/2022/08/8-15-22-PB-Meeting-Agenda.pdf
Links to other materials germane to the meeting can be found here: https://www.southernshores-nc.gov/15486-2/.
ZTA 22-09: FITNESS AND DANCE
Mila Smith, the owner and operator of Atlantic Dance in Kill Devil Hills, has submitted a Zoning Text Amendment (ZTA) to add “group fitness-aerobics/dance/karate/yoga” to the list of permitted “service establishments” in the Town’s C general commercial district. The change would appear as new Town Code sec. 36-207(b)(3)(g).
Ms. Smith’s ZTA 22-09 also would establish a minimum parking requirement for off-street parking for “group fitness-aerobics/dance/karate/yoga” service establishments of “one parking space for each 250 square feet of gross floor space.” This change would create a new Town Code sec. 36-163(4)(b)(7).
In a letter sent to the Town, Ms. Smith says she has operated Atlantic Dance in the Dare Centre in Kill Devil Hills for the past 27 years and is looking to move to “a new location that is better suited for our needs.”
She does not identify a commercial space in Southern Shores for her business’s relocation, but she does mention the “opportunity to dance and grow in a beautiful new space.”
According to Ms. Smith, the “majority of our 175 dance families live in the Southern Shores, Kitty Hawk area.”
No explanation is given in the Planning Board meeting materials for why Ms. Smith is seeking an addition to the permitted service establishments that includes “group fitness-aerobics,” “karate,” and “yoga,” as well as dance. While we do not object to the inclusions, we do think the language could be tidier.
Deputy Town Manager/Planning Director Wes Haskett has recommended that the Planning Board recommend approval of ZTA 22-09 to the Town Council.
HILLCREST DRIVE SUBDIVISION
Matthew and Allison Cassella, who are Chicahauk homeowners, have submitted for Planning Board review and approval a preliminary subdivision plat for their property at 267 Hillcrest Drive, which they purchased in May.
According to Mr. Haskett’s analysis, the property, which already has a single-family dwelling and other improvements on it, consists of 122,376 square feet, well in excess of the Town’s minimum lot size requirement of 20,000 square feet.
The lot is on the west side of Hillcrest Drive, close to the intersection of Hillcrest Drive and Hickory Trail. It is one of the large, irregularly shaped lots on Hillcrest that has canal frontage at the end of a flag-pole section of the property.
The Cassellas propose to subdivide the property into two lots, one of which would be 70,360 square feet in area (Lot 1-B) and contain the house and other improvements, and the other of which would be vacant and 52,016 square feet in area (Lot 1-A), including the flag-pole section.
See the preliminary subdivision plat here: https://www.southernshores-nc.gov/wp-content/uploads/2022/08/PSP-22-01-267-Hillcrest-Dr.-Prelim.-Plat.pdf
Both proposed lots would meet the Town’s minimum lot width of 100 feet—except in the narrow flag-pole section—as well as the Town’s requirement that they each have at least 30 feet of frontage that abuts a public right-of-way or private street.
Mr. Haskett has recommended that the preliminary subdivision plat be approved.
BOARD OF ADJUSTMENT
It is unclear from the Planning Board meeting materials what the context of the Board’s discussion about Board of Adjustment (BOA) appeals will be.
Included in the materials are the following Town Code sections pertaining to the BOA: sec. 36-364, “Voting,” which specifies the majority required for the board to grant a variance; sec. 36-366, “Appeals of administrative decisions,” which defines what an administrative decision is and details the appeal process; and sec, 36-369, “Impartiality of board of adjustment members,” which explains when a board member should recuse himself or herself for bias or other interest that would compromise his/her impartiality.
We strongly believe that the Town should return to its pre-April 1, 2014 status and have an independent Planning Board and Board of Adjustment, separate and apart from each other, with no overlapping members.
Appeals to the Board of Adjustment, albeit infrequent, are of decisions (issuances/denials of building and zoning permits, e.g.) made by the Zoning Administrator, currently Mr. Haskett, with whom the Planning Board has a close working relationship.
The Planning Board regularly consults with, and defers to the judgment of, Planning Director Haskett and the Town Attorney, who represents the Town in a property owner’s appeal to the Board of Adjustment.
(The Town is now represented by L. Phillip Hornthal, III, of Hornthal, Riley, Ellis & Maland, after years of being represented by Benjamin M. Gallop, of the same firm. Mr. Hornthal made his first Town Council meeting appearance on Aug. 2.)
We also believe it is improper for the Planning Board, which is an advisory board, not a legal decision-maker, to determine whether existing zoning requirements, which it may have had a hand in creating, cause the unnecessary hardship required for a variance to be granted.
Before April 1, 2014, when the Town Council consolidated the two boards, upon the recommendation of both Mr. Haskett and Mr. Gallop, the Board of Adjustment was an independent body that never consulted or collaborated with Town staff. In fact, it rarely met, which was one reason why the consolidation occurred. But that’s a poor reason, as we learned in 2018-19 when BOA rulings led to development on nonconforming, 50-foot-wide lots.
Southern Shores is the only town on the Outer Banks that does not have a board of adjustment separate from its planning board. Even the Town of Duck, which has just one-quarter of the year-round population that Southern Shores has, has two boards with different members.
Southern Shores has many smart, talented people who would be willing and qualified to serve on the Board of Adjustment. As the town continues to grow, so will the need for an independent administrative board to adjudicate variances and zoning appeals.
Ann G. Sjoerdsma, 8/11/22