6/4/18: ‘SUBDIVISION’ ON SOUNDFRONT N. DOGWOOD TRAIL: Would Proposed Nonconforming Lots ZTA Have Prevented It? How? Important Hearings Before Town Council Tomorrow: Get Past the Ice Cream

 

315A2Dogwood
A yellow arrow marks the nonconforming lot for sale at 315A N. Dogwood Trail, in one of the photographs included with the listing.

A soundfront lot at 315A North Dogwood Trail in Southern Shores came on the market May 25, listed for sale by Beach Realty-Duck. Asking price: $285,500.

What a steal! You think, before wondering: What gives? 315A? When did land on the north end of Dogwood Trail, where the road narrows to a single lane, get subdivided?

(Please note: I am not using the terms, subdivided and subdivision, in a legal sense. The three lots at 315 N. Dogwood were treated for decades as a single parcel, although they were platted separately. I am speaking of that single combined tract as being subdivided.)

Promoted by the broker as “the only soundfront lot” for sale in Southern Shores, 315A N. Dogwood Trail is advertised—and comes up in a multi-listing search—as land. But the property details of the listing (#100656) show a house having been built there in 1970, and the online Dare County property tax records still depict an old colonial on the site.

If you read further in the listing, you’ll soon discover that what is being called 315A N. Dogwood Trail is only about 13,330 square feet in area—a size that makes it 6,670 square feet smaller than the minimum 20,000-square-foot lot size required in Southern Shores. (See Town Code sec. 36-202(d))

Lots that do not meet the Town’s legally mandated dimensional requirements, such as the minimum size of 20,000 square feet and the minimum width of 100 feet, are considered nonconforming. These requirements exist to ensure that Southern Shores retains its desirable low-density character, which is a central feature of its land-use plan.

The Town Council will be voting tomorrow on an important zoning text amendment (ZTA 18-07) that seeks to ensure that nonconforming lots, like 315A N. Dogwood Trail, are neither created nor developed in Southern Shores. The public hearing on ZTA 18-07 is one of four hearings scheduled during the Town Council’s 5:30 p.m. meeting at the Pitts Center, behind Town Hall. (See The Beacon, May 24.)

Not only is 315A N. Dogwood Trail a nonconforming lot, but the broker is encouraging potential buyers to inquire by representing: “Complete site plan with 4 bedroom home and pool available for review.” This lot, the listing pitch continues, is a “great opportunity to build your own soundfront home.”

Under both current zoning law (Code sec. 36-132), and ZTA 18-07, which replaces a section of the current law, however, 315A N. Dogwood Trail is not a buildable lot.

You may access ZTA 18-07 here: https://www.southernshores-nc.gov/wp-content/uploads/2018/05/5-30-18-ZTA-18-07-Nonconforming-Lots.pdf

Caveat emptor?

PREVENTING SUBDIVISIONS

Anyone who buys 315A N. Dogwood Trail, as an Ohio couple did in 2016, according to tax records, will be making a mistake. My research shows that the Ohioans paid $255,000 for this nonconforming lot, which was created by a Virginia couple who purchased 315 N. Dogwood Trail and subdivided it.

Property records reveal that Raffaele and Shannon Dibari of Burke, Va., bought 315 N. Dogwood Trail in 2014 from an estate for $425,000. Talk about a steal.

The Dibaris’ purchase consisted of a combined-three-lot parcel of land that was about 37,000 square feet and 180-feet-wide and had a nearly 45-year-old house on it. Subsequently, they subdivided their parcel into three approximately 60-foot-wide lots, which they designated 315A, 315B, and 315C N. Dogwood Trail. The couple still owns adjacent lots B and C. All three of the lots are vacant: The house is gone.

How, you might ask, did this happen . . . and just two years ago?

The answer: It shouldn’t have. The current zoning law on nonconforming lots says that the Dibaris could not do precisely what they did. At least, it appears to. The law is less than clear. But no one stopped them. Who should have? Would enforcement be any better under the proposed new law?

ZTA 18-07, which the Planning Board recommended with amendments, is a rewrite of Town Code sec. 36-132(a). It intends to stop an unwelcome two-year-old trend in Southern Shores to redevelop 100-foot-wide lots as two nonconforming 50-foot-wide lots. This subdivision has been possible because in 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. The original sale of the three lots at 315 N. Dogwood Trail as one land parcel dates to 1969.

ZTA 18-07 posits five “situations” that should “trigger” the “recombination” of adjacent lots—one or more of which is nonconforming, as 315A, B, and C are—that are “under the same ownership.” One of the situations included is “prior to the sale or transfer of land.” Thus, the new sec. 36-132 would prevent the Dibaris from doing what they did, just as the old law did, but the question remains: Who’s going to stop them?

The answer is still, under the new law, no one—not until such time as the owner of the nonconforming lot applies for a zoning or building permit, and the Town Planning Dept. learns about the subdivision and sale. And then what will the Town do?

I think this is unacceptable. The proposed zoning law needs, and the Town Council should give it, sharper teeth.

SHARPER TEETH

My problem from the beginning with ZTA 18-07, which Town Attorney Ben Gallop conscientiously drafted and redrafted with assistance from Town Planner and Deputy Town Manager Wes Haskett, is that it addresses situations that compel “recombining” lots, rather than clearly stating 1) what a property owner can and cannot do; 2) which Town official or department has authority to ensure that property owners do only what they can do; and 3) what penalty, if any, should be assessed against a property owner who violates the law on nonconforming lots.

I understand Mr. Gallop’s approach, but it concerns me. In a May 17 blog, I suggested that the Town think in terms of preventing property owners from what I called “un-combining,” i.e., subdividing. It is not too late to amend ZTA 18-07 by adding a section that states that it is illegal to subdivide adjacent lots that are required under new sec. 36-132 to be recombined, and that any such subdivision is subject to penalty.

Teeth. A property owner shall not subdivide.

In other respects, I believe Mr. Gallop and Mr. Haskett have done a commendable job. They have expanded upon the triggering situations listed in the first draft of ZTA 18-07 to include those that contemplate the sale of land, not just development or redevelopment.

I also believe that the definition of “same ownership,” as that term is used in the proposed new sec. 36-132, has come a long way, but still could use more fine-tuning. I suggest including within the “case of an individual owner,” those who are non-family-member associates or acquaintances of the owner. Sec. 36-132(a)(4).

Under ZTA 18-07, single 50-foot-wide lots that are not adjacent to another lot under the same ownership and that met all legal requirements at the time of their “creation and recording” (which 315A did not) may exist and be developed. The Planning Board wisely recommended that the side-yard setback for these lots be 12 feet, rather than 10 feet, as the original draft of ZTA 18-07 specified. The 12-foot standard has been firmly established in variance hearings before the Board of Adjustment and represents a majority view. The Town Council should endorse it.

GETTING PAST THE ICE CREAM

The other public hearings before the Town Council tomorrow concern the lot size required to operate a drive-through facility on U.S. Hwy. 158 (ZTA 18-05); the erection and appearance of new poles for the installation of small-cell facilities in the single-family residential district (ZTA 18-06); and the proposed fiscal year 2018-19 budget.

I have written extensively in the past two months about all of the above and will make only a few points now concerning the first of them.

Honorable members of the Southern Shores Town Council: Get past the ice cream. ZTA 18-05 is not about opening up an ice-cream shop. It is about radically changing the zoning law on drive-through facilities in Southern Shores.

Please think like legislators, which you are, and ask yourselves: “What if?”

If you approve ZTA 18-05 and thereby allow a “small” drive-through customer-service facility to be located on a lot that is less than 20,000 square feet, provided it has frontage along U.S. Hwy. 158 (and meets other building requirements), what will be the consequences?

The Southern Shores Town Code currently requires a “drive-through facility or establishment” to be located on a lot equal to or greater than 2.5 acres. According to the Planning Board’s Martin’s Point representative, John Finelli, who spoke during the Board’s hearing on ZTA 18-05, the 2.5-acre restriction was enacted because the Town didn’t believe a drive-through business “was appropriate for every location.”

“We were trying to keep congestion off of Juniper Trail,” he explained.

Besides the congestion inevitably engendered by applicant Spiros Giannakopoulos’s proposed ice cream shop at 5415 N. Croatan Hwy., which is only 18,260 square feet, there is the overriding concern of: How would/could the proposed zoning change on drive-throughs affect the redevelopment of other commercial properties that front on Hwy. 158 at the Marketplace and elsewhere?

Just because there are now two banks on either side of 5415 N. Croatan Hwy. doesn’t mean there always will be.

Just because there is parking to the west of the main Marketplace entrance now doesn’t mean that the land couldn’t be used for small drive-through businesses.

And what about the building site where TowneBank is and the land adjacent to it? These properties front on U.S. Hwy. 158, too.

Before the Town Council carves out an exception for Mr. Giannakopoulos’s ice-cream shop, it should know whether it’s opening a Pandora’s box, and, if so, what menaces might be released.

The ultimate what-if is: Suppose Mr. Giannakopoulos decides he wants out or he dies—lawyer thinking—and 5415 N. Croatan Hwy. passes to another business entity. Is the Town going to be OK with a drive-through express KFC or Burger King, a Brew-Thru, or even a drive-through dry-cleaning facility on this highly visible site that fronts on a very busy highway?

We all scream for ice cream, but that’s not what ZTA 18-05 is about.

Ann G. Sjoerdsma, June 4, 2018; updated, June 5, 2018

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