5/23/18: PLANNING BOARD ACTS DECISIVELY TO TRY TO STOP BUILDING ON NONCONFORMING LOTS, ENSURE AESTHETICS OF SMALL-CELL WIRELESS FACILITIES

 

50footwide
Each of these houses at 103 Ocean Blvd. was built on a 50-foot-wide nonconforming lot, after a subdivision occurred.

The Southern Shores Planning Board moved decisively toward halting an unwelcome recent trend in town to subdivide 100-foot-wide lots, when it voted unanimously at its May 21 meeting to recommend to the Town Council, with amendments, ZTA 18-07, a change to the zoning law that would restrict redevelopment of “nonconforming” lots.

Nonconforming lots do not conform to the Town’s legally mandated dimensional requirements, such as the minimum width of 100 feet and the minimum size of 20,000 square feet. (See Town Code sec. 36-202(d)) ZTA 18-07 would “trigger” the “recombination” of adjacent lots—one or more of which is nonconforming—under the same ownership in certain situations, said Town Attorney Ben Gallop at the Planning Board’s hearing.

Mr. Gallop drafted the zoning text amendment with Town Planner and Deputy Town Manager Wes Haskett.

During an unusually lively Monday night session, the five Planning Board members also agreed unanimously to recommend, with amendments, ZTA 18-06, a change in the Town’s wireless telecommunications act that seeks to regulate the erection of new poles in residential districts for the installation of small-cell wireless facilities. “Small cells” are used to improve cellular-phone coverage. These low-powered cellular radio access nodes would be attached to utility or other poles in public rights-of-way.

Led by Board member Glenn Wyder, who, along with Chairman Sam Williams and member Elizabeth Morey, expressed deep concern about the physical appearance of the small cells, the Board added to its recommendation that “language be formulated by staff to deal with the aesthetics of the small-cell wireless facilities, to include the screening of equipment” that would be installed.

Mr. Wyder used the photograph at the top of The Beacon’s May 14 blog to show how bulky and obtrusive small cells can be without proper local regulations in place.

Setback Variance Denied

As The Beacon reported on May 11, and May 17, property owners have not only been able to subdivide 100-foot-wide lots, but also to obtain side-yard setback variances for the resulting nonconforming 50-foot-wide lots, enabling them to build 26-foot-wide houses, such as the two depicted above at 103 Ocean Blvd. A brick duplex previously crossed both lots on this site.

During the past two years, the Planning Board, sitting in its capacity as the Town Board of Adjustment, has granted five such variance requests, reducing side-yard setbacks on 50-foot-wide lots from the town’s prescribed minimum 15 feet to 12 feet. Monday, for the first time, the Board of Adjustment denied a setback variance for development on a 50-foot-wide lot, this one a former “paper street” adjacent to 85 Ocean Blvd. Applicant House Engineering, P.C., who represented property owner Richard M. White, of Elizabeth City, sought a setback reduction from 15 feet to 10 feet, not 12 feet.

A paper street is a street that appears on maps, but does not exist. Such streets usually occur when developers or planners lay out streets that are never built. According to online Dare County property tax records, Mr. White, who owns 85 Ocean Blvd., which is a developed 100-foot-wide lot that actually consists of two 50-foot-wide lots, purchased the paper street in 2014 for $25,000.

ZTA 18-07, the proposed new regulation of nonconforming lots, includes a provision that owners of single nonconforming lots—meaning they do not own any land adjacent to their lot—“may use” a side-yard setback of 10 feet.

According to Mr. Haskett, Rick House, of House Engineering, who appeared at the variance hearing Monday, sought a change May 11 in the variance application from 12 feet to 10 feet, after reading ZTA 18-07, and Mr. Haskett granted the change.

(The Beacon apologizes for its error in reporting the request as one for 12 feet. I did not click enough town-website links to discover the May 11 change.)

During its hearing on ZTA 18-07, which occurred after the denial of the variance, the Planning Board voted 4-1, with Chairman Williams dissenting, to recommend amending its setback provision to 12 feet.

If ZTA 18-07 becomes the Town’s zoning law on nonconforming lots, Mr. White will be unable to develop or to sell his 50-foot-wide lot separately. The lot will be “recombined” with his adjacent 100-foot-wide lot.

Fast Track to Enactment?

The Beacon has learned that Town Councilman Fred Newberry, who attended the Planning Board’s session, has requested that ZTA 18-07 be put on the Town Council’s agenda for its June 5 meeting.

Inasmuch as that meeting is only two weeks away, and I will write about the text of ZTA 18-07, as amended by the Planning Board, in advance of the public hearing before the Town Council, I will not say much now about the Planning Board’s discussions. The members were thorough in their analysis. The crux of ZTA 18-07 is its listing of those “scenarios,” as Mr. Gallop called them, that would trigger or require recombining.

As I have previously written, it was standard in the old pre-Town Zoning Ordinance Southern Shores to plat and record a 100-foot-wide tract of land as two separate 50-foot-wide lots. Although Mr. Haskett has said publicly 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. ZTA 18-07 seeks to prevent such owners and owners of more than two adjacent nonconforming lots from treating them separately, for purposes of development, redevelopment, sale, or transfer.

I found myself at a disadvantage during the public hearing on ZTA 18-07 when I learned for the first time that Mr. Gallop had amended the text that I had read and analyzed for my May 17 blog—adding two new scenarios to his recombination trigger and substantially clarifying what is meant by “same ownership.”

Mr. Gallop’s revised ZTA 18-07 apparently appeared online May 17, after I had posted my blog and left town for a funeral. It frankly did not occur to me to check the “Public Notices” section of the town website on the morning of the hearing to see if the ZTA had been amended. Mea culpa . . . from now on I will click.

Mr. Gallop graciously acknowledged after the ZTA hearing that he had read my blog, and I had “some things right.” He also asserted that he had been mulling over what he had written and decided it needed strengthening. I congratulate him for improving the proposed zoning text amendment. You may access the revised ZTA in full here:

https://www.southernshores-nc.gov/wp-content/uploads/2018/05/5-17-18-ZTA-18-07-Nonconforming-Lots-1.pdf

The revisions include 1) the addition of two situations or scenarios that would trigger recombination of lots and 2) language that is designed to zero in on who or what constitutes same ownership of adjacent lots and what constitutes “control” of a legal entity, if a lot is owned, in whole or in part, by a legal entity, such as a limited liability corporation.

The two new scenarios are:

(d) “Prior to the sale or transfer of land when any portion of the land being sold or transferred was a parcel or part of a parcel of land upon which an existing structure or associated use is currently or has been within the previous five (5) years located upon or occurring on two or more lots under the same ownership;” [and]

(e) “Prior to the sale or transfer of land including a nonconforming lot or lots adjacent to one or more other lots under the same ownership.”

The Planning Board voted unanimously to recommend amending (d) above to specify seven years, rather than five.

I still think the ZTA language should (and could) be less confusing and clearer, so that people don’t have to read, reread, and reread it, to begin to understand its intent. I am not suggesting that legal terms, which have precise meaning, be eliminated, but rather that the phrasing of the provisions be less cumbersome. I know from experience, however, that once the Town Attorney drafts an amendment to the Code, non-lawyers are reluctant to rewrite it.

I will give Planning Board member Elizabeth Morey the last word on ZTA 18-07. During the hearing, she asked Mr. Gallop an excellent question:

“Are you pretty confident that what you have put together is comprehensive enough to stop what we want to stop?”

Mr. Gallop replied in the affirmative.

Aesthetics of Small Cells

The Beacon reported May 14 on ZTA 18-06 and, more generally, about the State of North Carolina’s “deployment” of wireless facilities statewide. North Carolina aims to be in the first car, not the caboose, of the new-technologies train to the future.

Southern Shores has already amended Town Code sec. 36-175, which deals with wireless telecommunications, to include the State’s language about small wireless facilities, found in the N.C. General Statutes at sec. 160A-400.50 through sec. 160A-400.57. The State is complying with federal law, just as the Town is complying with State law.

ZTA 18-06 deals only with the installation of new poles in Southern Shores residential zoning districts that would be used for wireless facilities, not with collocating small cells on existing poles. The Town previously dealt with regulations on collocation, by adopting statutory language propounded by the State.

Under the State’s scheme, Southern Shores has limited control over the collocation—meaning the placement, installation, maintenance, etc.—of small-cell wireless facilities on or near existing structures, such as utility poles or water towers, within its boundaries. This control is spelled out in the Town Code section dealing with the permit process for collocation: Southern Shores requires all wireless providers who apply for a permit to collocate small cells to affirmatively show that the proposed wireless facilities meet:

  1. The town’s applicable codes;
  2. The town code of ordinance provisions or regulations that concern public safety, objective design standards for decorative utility poles, city utility poles, or reasonable and nondiscriminatory stealth and concealment requirements, including screening or landscaping for ground-mounted equipment;
  3. Public safety and reasonable spacing requirements concerning the location of ground-mounted equipment in a right-of-way; or
  4. Historic preservation requirements in N.C.G.S. 160A-400.55(h).  [Town Code sec. 36-175(i)(l). The section specifies “or,” not “and.”]

One would think that the Town can exercise the same oversight of the installation of new small-cell poles, as it does of the collocation of small cells, in particular, requiring wireless-provider applicants to meet “objective design standards” and “concealment requirements.” But, as I understand it, the Town’s recently enacted changes do not specify this authority.

The Planning Board is seeking to ensure that all small-cell wireless facilities, whether collocated or stand-alone, are out-of-sight, out-of-mind, as much as is possible under the regulations imposed by the State. If cell-phone coverage is improved, but the visible hardware on wireless-facilities poles is an aesthetic nightmare, nearby property owners will not be pleased.

Ann G. Sjoerdsma, May 23, 2018

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One thought on “5/23/18: PLANNING BOARD ACTS DECISIVELY TO TRY TO STOP BUILDING ON NONCONFORMING LOTS, ENSURE AESTHETICS OF SMALL-CELL WIRELESS FACILITIES

  1. Thanks for updates Jackie shea

    On Wed, May 23, 2018 at 11:31 AM The Southern Shores Beacon wrote:

    > Ann G. Sjoerdsma posted: ” ” >

    Like

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