(RE)DEVELOPING ‘NONCONFORMING’ LOTS & SUBDIVIDING SOUTHERN SHORES BEACH AREAS: Will ZTA 18-07 Stop an Unwelcome Trend? Planning Board to Hold Public Hearing May 21

In an attempt to end an unwelcome recent trend in Southern Shores to redevelop 100-foot-wide lots on or near the oceanfront as two “nonconforming” 50-foot-wide lots, the Town has proposed amending the Zoning Ordinance to require the “recombination” of adjacent lots under the same ownership into a single conforming lot or multiple lots, if certain situations apply. The Town Planning Board will hold a public hearing on this zoning text amendment, ZTA 18-07, next Monday, at 5:30 p.m., in the Pitts Center.

Ironically, the Planning Board, in its capacity as the Town Board of Adjustment, is also scheduled Monday to hear a minimum side-setback variance request (from 15 feet to 12 feet) from applicant House Engineering, P.C., for development on a 50-foot-wide lot that property owner Richard M. White has numbered 85A Ocean Blvd.

Mr. White, of Elizabeth City, owns the adjacent property at 85 Ocean Blvd., which is a developed 100-foot-wide tract of land that is actually recorded as two 50-foot-wide lots.

In a May 11, 2018 blog about building on smaller nonconforming lots, The Beacon asked: Is Southern Shores going to start looking more like the beach towns to the south of it, where there are more houses on less land, and the population density is greater? Will ZTA 18-07 prevent that from happening?

The answer, we believe, is ZTA 18-07, if approved by the Planning Board as written, and then later enacted by the Town Council, will be a step in the right direction. But The Beacon does not believe that the proposed changes in the law go far enough to prevent the continued subdividing of previously combined-lot land tracts on both sides of Ocean Boulevard and elsewhere in the beach zone. We also find the ZTA difficult to interpret.

Such higher-density development has changed, and will continue to change, Southern Shores’ “existing community appearance and form,” which the Town Land-Use Plan seeks to preserve and which vacationers here choose over other Outer Banks environments. Our pristine, uncongested beaches are our siren song.

The Beacon also opposes establishing 10-foot side-yard setbacks for stand-alone existing 50-foot-wide lots, as ZTA 18-07 does. The editorial board is split in supporting the 12-foot side setbacks that the Board of Adjustment has been approving.

We do not wish to second-guess the drafters of ZTA 18-07, Town Attorney Ben Gallop and Town Planner and Deputy Town Manager Wes Haskett, who have been on the front lines of the nonconforming-lot controversy. We also believe that members of the Town Planning Board, led by Chairman Sam Williams, will robustly debate the amendment’s language and ask the right questions about its effect.

Nonetheless, we do offer a more detailed assessment of the ZTA at the end of this blog. But, first, as always, some background:

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What Is Nonconforming? 

According to the Town Code, a lot in the RS-1 single-family residential district, which encompasses the majority of Southern Shores, including the oceanside areas, is said to be “nonconforming” when it does not conform to legally mandated dimensional requirements. (See sec. 36-202(d)) Since the town’s 1979 incorporation and its subsequent enactment of a zoning ordinance, the minimum width for a lot has been 100 feet—a longtime norm—and the minimum size has been 20,000 square feet.

The required minimum yard setbacks—i.e., the distance between any construction on the subject lot and its property lines—are 25 feet for the front yard; 15 feet for the side yard; and 25 feet for the rear yard. Until 2000, the minimum side-yard setback was 10 feet.

The maximum allowable lot coverage is 30 percent, but, as The Beacon reported on April 12, and April 20, a majority on the Town Council is apparently seeking to redefine how residential lot coverage is calculated and, thereby, allow larger homes to be built. The Beacon believes that any relaxing of current lot-coverage restrictions would greatly benefit people who own nonconforming lots, but not the general community.

The Southern Shores Land-Use Plan clearly endorses “small low-density neighborhoods,” achieved by “single-family homes primarily on large lots.”

In the old pre-Town Zoning Ordinance Southern Shores, it was standard to plat and record a 100-foot-wide tract of land as two separate 50-foot-wide lots. Although Mr. Haskett has said that the number of single vacant 50-foot-wide lots in Southern Shores is only about 10, there is a much higher uncalculated number of 100-foot-wide lots that are actually two combined 50-foot-wide lots. (Full disclosure: I am a co-owner of at least two such properties, only one of which is developed. I also co-own land adjacent to such properties.)

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Variances for Side-Yard Setbacks 

If the Board of Adjustment hears Mr. White’s variance application for 85A Ocean Blvd., it will be the sixth such request that the Board has heard in the past two years for a nonconforming 50-foot-wide lot. It approved the previous five requests.

According to Dare County land records, Mr. White purchased the nonconforming lot from Boddie Noell Enterprises in 2014 for $25,000. The lot’s pre-2014 history is not readily available online, nor is Mr. White’s ownership history at 85 Ocean Blvd.

The Town Board of Adjustment—which is the Planning Board wearing a different hat—is a quasi-judicial body whose decisions are subject to review by the Dare County Superior Court, not by the Southern Shores Town Council. Its duties, powers, standards for granting a variance (not easy to understand!), etc., are spelled out in the Town Code, at sec. 36-360 to 36-369. I will refer to it henceforth as the BOA.

The discussions recorded in the minutes for all five of the BOA’s nonconforming-lot/side-setback variance hearings document considerable confusion on the part of its members and the public about what current Town Code zoning law on nonconforming lots requires. One look at current Code sec. 36-132(a), and you can see why ambiguity triumphs. It needs to be replaced, as ZTA 18-07 seeks to do.

Although each case that came before it was different, the BOA granted reductions from 15 feet to 12 feet to all, thus permitting the construction of 26-foot-wide houses on 50-foot-wide lots. Its approval on March 19, 2018 of side-setback variances on two 50-foot-wide lots that comprise the property at 155 Ocean Blvd. finally compelled the Town to act by drafting ZTA 18-07.

Since the 1950s, a modest bungalow that sits across both lots, numbered 9 and 10, has occupied 155 Ocean Blvd. This structure, as well as an accessory building, would have to be demolished before redevelopment could occur.

Variance applicant Gray Berryman, a former member of the Town Planning Board who represented property owner James A. Miller, succeeded in getting a setback variance for both lot 9, which he told the Board he intended to buy and develop, and lot 10, which he said his friend and associate, Olin Finch, planned to buy and develop. Thus, there would be two houses on a building site where there once was only one, and each would have a different owner.

The BOA approved both variance requests, 4-1, with Glenn Wyder, a current Planning Board member who was acting in March as an alternate, dissenting.

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Confusion, Not Harmony 

My research indicates that the first application heard by the BOA for a side-setback variance on a 50-foot-wide lot was filed by Steven D. Love and Kathleen Gorman, a married couple who live in Virginia. Mr. Love and Ms. Gorman bought and redeveloped 62 Ocean Blvd., which is on the oceanfront. Instead of a flat top, a large red-roofed white house that seemingly defies completion now sits on the site.

Reportedly to protect their investment, the Loves purchased an adjacent 50-foot-wide lot that was apparently part of a multiple-lot combination at 64 Ocean Blvd. from the SAGA construction company, which was planning to build a 16-bedroom wedding-destination inn next to their property. SAGA’s construction was derailed by the Town Council’s enactment of a 6,000-square-foot limit on “single family homes.” On May 16, 2016, the BOA unanimously approved the Loves’ side-setback variance of 12 feet.

(For the record, the Council approved the 6,000-square-foot size restriction, 3-2, with Mayor Tom Bennett and Councilman Christopher Nason, who is now mayor pro tem, voting against it. Current Councilman Jim Conners was not in office for this 2016 vote; his predecessor, Leo Holland, was.)

It now appears from online Dare County land records that a limited liability corporation known as 64A Ocean Blvd. LLC owns the 100-foot-wide lot at 64 Ocean Blvd., which is being developed, and the 50-foot-wide lot, which the parties may wish to call 64A Ocean Blvd., is owned by the Loves. If anyone can figure out what’s going on in this stretch of the oceanfront, please let The Beacon know.

The ownership history of 103 Ocean Blvd. similarly eludes easy tracking. Owners there managed to subdivide a 100-foot-wide lot into two 50-foot-wide nonconforming lots and build two new detached single family homes on each.

Before the BOA unanimously approved side-setback variances on March 20, 2017, for what was described as lot 5 at 103 Ocean Blvd., and on June 18, 2017, for what was described as lot 6, an old brick duplex sat centered on 103 Ocean Blvd.’s 100-foot-wide lot. The duplex had been there for decades.

According to BOA hearing minutes, Rick House of House Engineering, P.C., which you’ll recall is representing Mr. White on his application for a variance at 85A Ocean Blvd., also referred to the lots as 103A and 103B Ocean Blvd.

I’ve done enough online land-record research to know that the owners of lot 5, now said to be Jimmie and Dana Summerell, and the owners of lot 6, now represented as Gretchen Owens and Edwin Goldman, co-trustees of the Georgia J. Goldman Trust, were not strangers. They achieved their ownership interests, at least in part, by transferring each other property by gift, not sale.

The Beacon does not seek to deprive any individuals of their private-property rights. But zoning laws came into being to preserve and protect the general public health, safety, and welfare, not to advance individuals’ personal interests. By local law, the Southern Shores Planning Board is further charged with bringing about the “coordinated and harmonious development” of the town. (Town Code sec. 24-27(a)) Redevelopment is development.

On March 19, 2018, the Board of Adjustment finally opened Pandora’s box when it approved the two side-setback variances at 155 Ocean Blvd.

Although Chairman Williams said at this hearing that he didn’t personally favor these variances “as a matter of land use planning and policy,” he also said he was committed to performing his BOA duties and could be impartial. The current confusing town law on nonconforming lots had all BOA members asking questions.

(Note: I should have mentioned earlier that the minutes for the March 19 Planning Board/BOA meeting have not been approved yet by the Board. The Chairman has indicated that the Board will take them up at its June 18 meeting, and he has amendments to make to them.)

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ZTA 18-07

The Town’s intent in establishing the RS-1 district is clearly stated in the zoning law: “to provide for the low-density development of single-family detached dwellings in an environment [that] preserves sand dunes, coastal forests, wetlands and other unique natural features of the coastal area.” The district is intended to “promote . . . abundant open space, and low impact of development on the natural environment and adjacent land uses.” (Code sec. 36-202(a))

In their preamble to ZTA 18-07—the “whereas” section of the proposed ordinance—Mr. Gallop and Mr. Haskett reinforce this intent, stating that the 50-foot-wide lot “redevelopment” that has occurred is “inconsistent with the low density character of the Town,” which it seeks to maintain.

You may access the ZTA in its entirety here:

https://www.southernshores-nc.gov/wp-content/uploads/2018/05/ZTA-18-07-Nonconforming-Lots.pdf

They then go on to state—in a manner that would benefit from less legalese and more plain English—that a single-family dwelling may be built on any single nonconforming lot that met all legal requirements at the time of its creation and recording, provided no adjacent lot is under the “same ownership.” If such lots are 50 feet wide or less, the proposed law states, their owners “may use a side yard setback of ten (10) feet.”

I asked Mr. Haskett about the 10-foot setback, and he advised me by email that he and Mr. Gallop “drafted the ZTA to include 10 ft. side setback requirements based on the side setback requirements that were in effect until 2000 when the requirement was amended to 15 ft. . . . It is a starting point that may be subject to change following Planning Board consideration. Ultimately, the Town Council could decide to accept it, keep it at 15 ft., or decide on a different requirement.”

Ten-foot-wide side setbacks have not been the norm in Southern Shores for nearly 20 years. The Beacon believes that turning back the clock will only result in the crowding (density) that the Town seeks to prevent.

The crux of ZTA 18-07 concerns the recombination of all adjacent lots under the same ownership into a single lot or multiple lots if any of the following occur:

1)      Development is proposed upon land under the same ownership which includes one or more nonconforming lots adjacent to one or more other lots under the same ownership;

2)      Demolition or redevelopment exceeding 50% of an existing structure’s value is proposed and any portion of the existing structure or associated use is located on two or more lots under the same ownership; or

3)      Development is proposed of a new structure or use to be located on two or more lots under the same ownership.

I’m not fond of regulatory language that has to be read, reread, and reread, in order to be understood by both lawyers and laypeople alike, and I believe this language fits that description. If the Planning Board embraces the ZTA’s approach, I would encourage it to find a simpler way to state these “situations” and then to include a “catch-all” situation that would discourage property owners, both sellers and buyers, from finding a way around 1-3, above.

Does the ZTA cover the situation at 155 Ocean Blvd.? I’m not sure. If I own two adjacent 50-foot-wide lots on which I’ve built a house, and I sell each lot to a separate buyer without demolishing the house first, must I “recombine” the lots? I’m not proposing any development or demolition. I’m just selling.

The reality is that the lots that the ZTA proposes to recombine have already, for all intents and purposes, been combined. Longstanding street addresses evidence this. I believe the Town should think in terms of preventing property owners from un-combining.

The history of Southern Shores is that small lots that became nonconforming when the Town enacted its Zoning Ordinance were developed by owners as if they were combined with one another. Owners and their successors in interest should not be allowed now to un-combine them. Preserving the character and appeal of the Town, and protecting the Town’s development intentions, are more important than an individual property owner’s financial gain.

A better understanding of Southern Shores’s development history would be helpful in deciding the nonconforming-lot issues that have arisen. When the Kitty Hawk Land Co. called my father 50 years ago and offered to sell him an oceanfront lot, it did not give him the choice of buying only one of the two platted 50-foot-wide lots. The two lots were a package deal.

ZTA 18-07’s definition of “ownership” also needs some tweaking. Although the ZTA states that the definition of “same ownership” should be broadly construed and is not limited to the meanings listed—which is good—it would benefit from more specificity.

What constitutes a “group of persons,” as this phrase is used? How do people become grouped? Do two people constitute a group or are at least three required? This definition is an important one to nail because the ZTA makes same ownership of adjacent lots so critical.

Ann G. Sjoerdsma, May 17, 2018