7/9/18: SSCA HAS STAKE IN TOWN COUNCIL VOTE TOMORROW ON ZTA 18-07, WHICH SEEKS TO STOP DEVELOPMENT ON 50-FOOT-WIDE “NONCONFORMING” LOTS; Failure to Pass Zoning Change Would Raise Question of Enforcing Restrictive Covenants; Also Sidebar on 85A Ocean Blvd., a Former Paper Street

 

50footwide
These two three-story rental houses, each with a swimming pool, replaced a one-story duplex at 103 Ocean Blvd. A restrictive covenant that ran with the land required a minimum lot width of 75 feet. Each of these houses sits on a 50-foot wide lot.

The Southern Shores Civic Assn. has a stake in the Town Council’s vote tomorrow on ZTA 18-07, which seeks to prevent the creation and (re)development of 50-foot-wide “nonconforming” lots in town. If the Town Council fails to pass it, the SSCA may have a proverbial can of worms on its hands.

At the first reading June 5 of the zoning text amendment, the Town Council approved it, 3-2, a vote that fell short of the 4/5 majority needed for passage. Mayor Tom Bennett and Councilman Chris Nason opposed the measure.

A second reading of the ZTA is scheduled for the Town Council’s regular monthly meeting tomorrow, at 5:30 p.m., in the Pitts Center. Only a simple majority approval is now required.

On May 21, the Town Planning Board unanimously approved ZTA 18-07, recommending that the Town Council adopt it.

(The Beacon has extensively covered this proposed amendment: See reports on May 11, 17, 23, and 24, and June 4 and 7.)

In a June 20 special report, I discussed restrictive covenants that run with the land in Southern Shores, focusing in particular on minimum required lot frontages.

My research of the past few weeks, which includes a meeting with the Town Planner, the Town Manager, and the Town Attorney; informal discussions with SSCA Board members; an examination of SSCA documents; and more deed tracking in the Dare County Register of Deeds office, reveals that the SSCA likely has the power to enforce these restrictive covenants.

But, that power may depend on the block location of the subject lot. It’s “case-by-case,” said Town Attorney Ben Gallop.

(Please note: Chicahauk has its own protective covenants. I am not referring here to Chicahauk properties.)

Among the covenants that developer Frank Stick, his partners, and later the Kitty Hawk Land Co. (KHLC) declared in deeds were those requiring lot frontage of 75 or 100 feet. They also established minimum dwelling setbacks from Ocean Boulevard (NC Hwy. 12) and from side and rear boundaries.

Stick and company platted and recorded blocks of 50-foot-wide lots, initially on the oceanfront and the west side of Ocean Boulevard, but they sold the lots in pairs and restricted development on them by imposing the covenants.

It is because the developers chose to plat and record 100-foot-wide building sites as two 50-foot-wide lots, rather than as one 100-foot-wide lot, that we now have an issue with higher-density redevelopment on “nonconforming” lots, such as the two houses that were constructed at 103 Ocean Blvd. (See photograph above.)

By definition, nonconforming lots do not meet the Town’s legally mandated dimensional requirements, which include a minimum width of 100 feet and a minimum size of 20,000 square feet. (See Town Code sec. 36-202(d))

The property owners at 103 Ocean Blvd. disregarded an underlying restrictive covenant dating to 1967—12 years before the Town’s incorporation—that required a minimum building-lot width of 75 feet; and no one sought to stop them. ZTA 18-07 would have.

Beacon editorial board member Ursula Bateman, a native New Yorker and former SSCA Board member, keeps telling me: “Ann, just tell people that you don’t want to be in your living room and hear your neighbor sneezing in his. Like on the Jersey shore. Keep it simple.”

If only it were! I’ll try.

With ZTA 18-07, the Town seeks to amend the Town Code of Ordinances to ensure that housing construction that enables you to hear your neighbor sneezing in his living room while you’re sitting in yours does not continue to occur.

SSCA ENFORCEMENT POWER

As far as I can discern, and Mr. Gallop and SSCA Board member Jeffrey Johnson, who is an attorney, concur, the SSCA does not have the legal “duty” to enforce the restrictive covenants on minimum frontage or any other covenants. A duty would mandate the Association’s intervention; a power makes it discretionary.

It would appear from the SSCA’s bylaws and other written statements, and from its actions, since its 1975 incorporation, that it believes it has the right to enforce such covenants.

In my research at the Register of Deeds, however, I could not find one all-encompassing document recorded by the Kitty Hawk Land Co. that assigns to the SSCA its covenant rights. Instead, I found multiple declarations of “protective covenants and conditions” by the KHLC that are applicable to certain blocks of lots. These declarations specify that the KHLC and its “successors and assigns” have covenant enforcement powers and rights.

For example, the declaration recorded in Dare County deed book 271, at page 447, covers Southern Shores block 92; and the declaration in book 576, page 209, applies to certain sections of block 129.

Each of these documents states that the powers and rights reserved by and to the KHLC and its successors and assigns “shall not . . . inure to the individual lot owners.”

Interestingly, the block 92 declaration, which was executed in 1978, contains a section that requires all property owners in the block to become members of the Southern Shores Civic Assn. It further states that the KHLC’s powers “shall” inure “only” to the SSCA “at such time when the powers are vested in it” or to successors to whom the KHLC expressly assigns powers.

Although I love research, I’m not inclined to search for declarations block-by-block.

If the Town Council rejects ZTA 18-07, a court may have to decide if the SSCA truly does have enforcement rights in a given situation. This should not be allowed to happen.

THE TOWN’S INVOLVEMENT

Certainly, the Town does not have the responsibility, much less the duty, to enforce restrictive covenants. Mr. Gallop adamantly stressed this.

Town Planner Wes Haskett, who co-authored ZTA 18-07 with Mr. Gallop and officially because deputy town manager on July 1, told me that he never deals with them. He does not even have copies of covenants in his office.

As a courtesy, Mr. Haskett said, the Town planning department sends the SSCA a list of lot disturbance-stormwater management (i.e., building) permit application filings every Monday. “We should work together,” he said.

The SSCA’s Architectural Review Board (ARB) follows up by giving each building-permit applicant an “application for deed and covenant restriction approval.” This document directs landowners to familiarize themselves with covenants and refers them to the SSCA office, where you can find them in binders. (All of the ARB documents to which I refer here can be found on the SSCA website.)

The ARB conducts what it calls in a policy document a “covenant review process,” the purpose of which is multifold: One stated objective is “to ensure compliance with the relevant restrictive covenants.”

I contacted Ben Packard, chairman of the ARB, and arranged a meeting with him, which he subsequently canceled after speaking with Rod McCaughey, who is the SSCA Board of Directors’ ARB member. Both considered it more appropriate for me to speak with the Board, which I eventually did through informal means. I spoke with SSCA president Larry Galleck; Mr. McCaughey, who is also in charge of bylaws and long-range planning; and Mr. Johnson, who oversees membership and marina boat slips.

Because my conversations with these Board members could be considered “off the record,” I am not going to quote them. Understandably, no one is keen on getting involved with enforcing restrictive covenants.

On the record, Mr. Packard emailed me: “Any enforcement outside denying a submitted application falls on the SSCA Board.”

The ARB policy document concurs: “Ultimate responsibility for legal enforcement of the covenants on behalf [of] the SSCA is the duty of the SSCA Board of Directors.” (The SSCA may wish to reconsider this representation. Certainly, it needs to change the word duty.)

In a packet of permit-process material that Mr. Haskett provides to contractors and property owners, the Town “strongly” urges applicants to “obtain approval from the appropriate association before you apply for a permit and begin construction.

“Failure to do so,” it warns, “could result in legal action by the association to enforce the covenants.”

While some show of enforcement muscle—for example, informing a property owner that he cannot park a recreational vehicle on his land—would be easy for the SSCA to dispense, and perhaps immediately effective, the enforcement of other covenants could lead to expensive and protracted litigation.

While I am sympathetic to the SSCA’s financial limits and to the argument that it “must choose its battles,” I also am sympathetic to property owners who have reason to believe that the Civic Association will fight important battles for them. Why should an individual property owner, who happens to live in a block where another property owner is violating a restrictive covenant, be out of pocket for enforcement costs?

Southern Shores property owners should know if and when the SSCA will ever intervene, in their behalf, in enforcing restrictive covenants and decide if this is what they expected when they became members.

PROTECTING THE TOWN VISION

Seventy years ago, the founder of Southern Shores envisioned a community of low-density housing with a lot of open space. Artist and conservationist Frank Stick (1884-1966) wanted people of more modest means to enjoy the luxurious privacy that ultra-rich oceanfront property owners in the Northeast enjoyed.

The Town perpetuates his vision in its land-use plan, which states that the “quiet seaside residential community” of Southern Shores is “comprised primarily of low density neighborhoods consisting of single family homes primarily on large lots (i.e., at least 20,000 sq. ft.).”

The preamble to ZTA 18-07, which is the “whereas” section that elaborates upon the Town’s purpose and authority, repeats this language. It refers to the Stick-KHLC  two-50-footers-as-one-100-foot-wide lot system as an “informal” combining of parcels.

“In recent years,” the preamble states, “the Town has seen a trend toward redevelopment of such informally combined parcels . . . back into the smaller nonconforming lots and building dwellings upon the nonconforming lots.

“Such redevelopment is inconsistent with the low density character of the Town.”

ZTA 18-07 would require the “recombination” of adjacent lots under the “same ownership” into a single conforming lot or multiple lots, if certain situations apply.

As Mr. Gallop has explained at hearings, each of five enumerated situations, all of which involve proposed development and/or sale, would “trigger” the “recombination” of adjacent lots, one or more of which is nonconforming.

The Town Attorney has been meticulous about defining the term “same ownership,” so as to prevent “affiliated” legal entities—such as limited liability corporations with different names, but overlapping controlling interests—and individual landowners and their “affiliates” from getting around the zoning law.

ZTA 18-07 also includes a provision that permits the construction of a single-family dwelling in the residential district on what I call a “stand-alone” nonconforming lot—meaning the lot owner does not own any land adjacent to the 50-foot-wide, or smaller, lot.

According to Mr. Haskett fewer than 10 such lots exist.

ZTA 18-07 permits owners of stand-alone lots to use a side-yard setback of 12 feet. The original draft of the amendment proposed a 10-foot side setback, but the Planning Board amended it to 12 feet.

This important zoning text amendment seeks to preserve the Town’s low-density character, which drew most of us to Southern Shores and continues to draw tourists to our beaches. In the process, it also “enforces” crucial restrictive covenants on lot frontage.

It’s a win-win for the SSCA and for the Town’s future. The Town Council must pass it.

Gezundheit!

Ann G. Sjoerdsma, July 9, 2018

 ***

SIDEBAR: THE CASE OF 85A OCEAN BLVD., OR BUILDING A RENTAL COTTAGE ON A FORMER 50-FOOT-WIDE PAPER STREET

During the Town Council’s June 5 hearing on ZTA 18-07, Rick House of House Engineering in Kitty Hawk argued that his client, Richard M. White, would be unduly harmed by passage of the amendment, and that an exception should be created for him.

Mr. White, of Elizabeth City, owns 85 Ocean Blvd., two 50-foot-lots that he bought in 1996 and developed as one 100-foot-wide property.

In 2014, Mr. White bought the vacant 50-foot-wide adjacent lot—to the north, next to 87 Ocean Blvd.—from a subsidiary of the Kitty Hawk Land Co. for $25,000. This lot, according to Mr. Haskett, was a “paper street.”

Paper streets usually occur when developers or planners lay out streets that are never built. They appear on maps, but do not really exist.

Mr. White would like to build a rental house on this former paper street, which he is calling 85A Ocean Blvd. If ZTA 18-07 becomes Town Code, he will be unable to develop or to sell this 50-foot-wide lot separately. The lot would be “recombined” with his adjacent 100-foot-wide tract.

OPINION: This is as it should be. Mr. White is not being blindsided. No inequity would occur in this case.

According to my research, the initial deed for Mr. White’s property at 85 Ocean Blvd. dates to Aug. 31, 1976, and includes a restrictive covenant running with the land that states “no more than one dwelling shall be constructed on each 100 feet of lot frontage.”

Mr. White’s own deed specifies that his land transfer is “subject to restrictions of record.” It is reasonable to presume that his real-estate agent and/or attorney advised him of all restrictive covenants.

Even if Mr. White were unfamiliar with the minimum-frontage covenant, by 1996, the current zoning law, which requires the same minimum 100-yard frontage, had been in effect for years.

Mr. White is not out hundreds of thousands of dollars for an investment property. At the worst, he purchased, at minimal cost, an attractive buffer for his rental house. According to Dare County tax records, the lot is currently assessed at $54,500.

In fact, Mr. White might be able to recoup his $25,000 investment by selling all or a portion of his buffer to the property owner at 87 Ocean Blvd. He can build a larger rental house than the one he currently owns on the combined 150-foot-wide tract or sell the whole tract to someone else who could.

Mr. House sought a side-setback variance for Mr. White. On May 21, the Town Board of Adjustment unanimously denied his request for a reduction from 15 yards to 10 yards.

According to Mr. Haskett, Mr. House filed a new variance application on June 5, requesting 12-foot side-yard setbacks, but he “retracted” it on June 13.

Does Mr. House know something we don’t know?

We’ll find out at the Town Council meeting tomorrow night.

Ann, 7/9/18

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One thought on “7/9/18: SSCA HAS STAKE IN TOWN COUNCIL VOTE TOMORROW ON ZTA 18-07, WHICH SEEKS TO STOP DEVELOPMENT ON 50-FOOT-WIDE “NONCONFORMING” LOTS; Failure to Pass Zoning Change Would Raise Question of Enforcing Restrictive Covenants; Also Sidebar on 85A Ocean Blvd., a Former Paper Street

  1. Ann – – –

    Thanks for all of your outstanding research and for keeping the power brokers honest…

    Kind Regards – – – Lindy

    Like

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