The Southern Shores Planning Board unanimously elected Glenn Wyder, a relatively new addition to the Board, its 2018-19 chairperson, and Elizabeth Morey, a Board veteran of five years, its vice-chairperson, in its first meeting of the fiscal year at the Pitts Center last night. Mr. Wyder then presided over his first Board of Adjustment (BOA) hearing on a variance application.
By a vote of 4-1, Board members denied variance requests from a homeowner on Duck Road who violated rear- and side-setback requirements when he constructed a hot tub, greenhouse, decking around an above-ground swimming pool, and other structures in his yard. The lengthy variance hearing featured intervention by Jacqueline Shea, an adjoining property owner, who argued that she was adversely affected by the setback violations committed by Edward J. Ryan of 291 Duck Road.
Appointed by the Town Council to his seat on July 10, Board member Andy Ward nominated Mr. Wyder (pronounced Wee-der), who also serves as president of the Chicahauk Property Owners Assn. (CPOA), for the chairpersonship, and David Neal, who was appointed last week to his second term on the Planning Board, nominated Mr. Morey.
New Planning Board alternate Michael Basilone participated in the unanimous votes that each nominee received, filling in for absent Board member Joe McGraw. He also voted against granting the variances on Mr. Ryan’s property. Mr. Neal cast the only vote in Mr. Ryan’s favor. He empathized with the homeowner and said of his role on the BOA: “This is not only uncomfortable, it’s no fun.”
During the comment period at the end of the meeting, Mr. Ward asked thoughtful questions of Town Attorney Ben Gallop about the Planning Board’s authority and powers, thus suggesting to me that this Board, with Mr. Wyder’s leadership, may be more proactive than past boards have been in matters pertaining to the physical development of Southern Shores.
Ms. Morey also spoke critically during the comment period about the Town’s removal of trees on public property next to Ginguite Trail, which occurred without any notice to homeowners. Town officials “should put up a sign and explain what they’re going to do,” she said.
OPINION: The FY 2018-19 Planning Board made an auspicious start.
PLANNING BOARD MEMBERS
Before I elaborate a little on the variance application and the issues that arose with it, I’d like to tell you more about the new chairperson and vice-chairperson.
The Town Council appointed Mr. Wyder, a New Jersey native, to the Planning Board on April 3, elevating him from an alternate’s seat. He had three months remaining on a three-year alternate term to which he was appointed after Mr. McGraw was elevated to the Board upon the resignation of Gray Berryman.
(Mr. Berryman resigned from the Planning Board in August 2017, and the Town Council appointed Mr. McGraw Sept. 5, after Chairman Sam Williams requested his appointment. The Town Council did not name a new alternate until Dec. 5–its first meeting after the November election. Mr. Wyder’s time as an alternate was brief.)
Like many of us who love Southern Shores, Mr. Wyder figured out how to live here while continuing to work elsewhere. He is general manager of Mediterranean Tile & Marble in Bernardsville, N.J., to which he returns for about a week about every six weeks.
Currently in his second year as CPOA president, Mr. Wyder has a strong sense of civic-mindedness. Last night, he said he felt “honored” to be the Planning Board chairperson and pledged to work diligently and cooperatively with his colleagues for the betterment of the town “that we and its residents. He has told me, personally, that he may not always agree with me, but he’ll always be honest. That works for me.
Ms. Morey is retired from the Dare County Health Dept. and a former employee of the N.C. Dept. of Environment and Natural Resources in Raleigh. In a June telephone interview with The Beacon, she said that she interacted regularly in her previous employment with builders, acting in the capacity of a local government regulator. She has been self-employed since 2016, engaging in political-campaign management and counseling.
When I asked Ms. Morey what drew her to Planning Board service, she said, “I like the idea of trying to contribute to the community.” She also shared childhood memories of seeing her father, who was on the Fulton County, Georgia Planning Board for many years, working at the family dining room table, with papers strewn about.
Her father, who served as his board’s chairperson, was trying to “make [Fulton County] a better place to live,” she said.
Mr. Neal and Mr. Ward are well-known, longtime builders and Southern Shores residents. Mr. McGraw is also a builder.
Mr. Basilone is a Kitty Hawk firefighter who lives in Southern Shores. Former Town Councilman Leo Holland, whose background is in construction, is the other Board alternate. They conferred to decide which of the two would be seated on the Board last night. (In future blog posts, I will try to tell you more about these Planning Board members.)
Southern Shores Town Code sec. 24-24(a) requires the five Planning Board members and two alternates to be appointed by the Town Council, for staggered terms of three years.
Ms. Morey’s and Mr. McGraw’s terms expire next June; Mr. Wyder’s term expires June 30, 2020. He was appointed to complete an unexpired term left vacant.
BOARD OF ADJUSTMENT; VARIANCE DENIAL
Since April 1, 2014, the Planning Board has served in a dual capacity as the Town’s Board of Adjustment, whose decisions are subject to court appeal, not to Town Council approval. The BOA is a quasi-judicial body that has legal representation and conducts due-process hearings. (See Town Code sec. 36-365.)
Among its duties, the BOA has the power to grant variances from the Town’s dimensional lot requirements, spelled out in Code sec. 36-202(d), such as the 25-foot rear setback and 15-foot side setbacks from which Mr. Ryan sought relief. Mr. Ryan was represented by local attorney E. Crouse Gray, Jr., who elected not to ask for a specific reduction in footage, such as to 10 feet on the side.
I will give you only an overview of Mr. Ryan’s application and hearing. As Mr. Gallop pointed out, there was nothing “exceptional” about his property—not its location, its topography, or any other physical conditions—that supported the granting of any variances. His lot is like many other lots on Duck Road and elsewhere in Southern Shores.
Mr. Ryan bought 291 Duck Road in January 2016. A salt-box cottage, built around 1987, sits at the rear of the property, which the testimony showed, is heavily wooded. It appears from a recent survey of the property, which the applicant commissioned after the Town Planning Dept. served him with a notice of violation, that the original home builder constructed the cottage in a location that breached the 25-foot rear setback requirement. A long concrete driveway leads from the road to the secluded home.
Since he took possession of the house, Mr. Ryan has built an above-ground swimming pool, an inflatable hot tub, decking, and more structures, near the house, without securing any Town permits and in violation of more setbacks. According to Mr. Haskett, it was only when Mr. Ryan arranged last November through R.A. Hoy for a “change-out” of his HVAC system that his failure to obtain permits and inspections and his setback violations were discovered by Town Building Inspector Buddy Shelton.
When asked why he had not sought permits, Mr. Ryan said that he did not think he was required to do so. “I just didn’t think anyone would care,” he explained.
Mr. Gallop directed his questions of the applicant to how Mr. Ryan could remedy the violations by moving the pool, the hot tub, the decking, and other structures. He returned to this focus in his closing argument. “There’s no unnecessary hardship,” the Town Attorney said, citing the standard that the Board of Adjustment must find is met before it can grant a variance. “Just cost and convenience.”
During his direct testimony, Mr. Ryan said that his primary objection to Mr. Gallop’s suggestions was that he would have to cut down a lot of trees. His next-door neighbor, Edward Graham, testified in his behalf that it would be a “travesty” to force Mr. Ryan to tear any of his structures down, especially his “well-constructed, nice-looking deck.”
In his closing, Mr. Gray concluded: “We want to keep what’s there where it’s presently at.”
That’s not going to be allowed to happen. None of the Board members was pleased with Mr. Ryan’s disregard of Town permit regulations.
The initial warning notice issued by the Town instructed Mr. Ryan that he had 15 days either to removal the “encroachment” or to remove the entire structure, including the swimming pool, which standing alone, does not violate any setbacks.
Mr. Ryan may appeal the BOA’s decision to the Dare County Superior Court, if he’d like.
If you would like to know more about the facts of this case and this variance hearing, please email me at firstname.lastname@example.org.
PLANNING BOARD’S ROLE AND AUTHORITY
The Planning Board’s administration, general authority, and powers and duties are set forth in Town Code secs. 24-24 through 24-27. As I read these ordinances, the Board’s responsibilities and duties are broad. It need not sit back and wait for the Town Council to give it direction. It may initiate action.
Sec. 24-27(a) specifies that it is the duty of the Board “to prepare plans and to coordinate the plans of the town and those of others so as to bring about a coordinated and harmonious development of the area.”
In the execution of this duty, the Board may—among eight enumerated powers—“prepare and recommend ordinances or amendments to existing ordinances promoting orderly development of the area, along the lines indicated in the comprehensive plan, including a zoning ordinance and subdivision regulations.”
While no one would like to see the Planning Board “go rogue,” some of us would like see the Board exercise its independence and raise its voice. Last night Mr. Ward showed interest in ZTA 18-03, the zoning text amendment about lot-coverage calculation, and ZTA 18-07, about nonconforming lots. Both of these ZTAs, in either a new or amended form, are expected to be taken up by the Planning board at its next regular monthly meeting, Aug. 20. Mr. Ward questioned the input that the Board can have in reworking these important amendments, with or without Town staff assistance.
The notice that Ms. Morey said the Town should have to give residents before it cuts down trees in proximity to their homes is an issue that the Planning Board could take up on its own. Too often, the new vice-chairperson said, town officials are “nearsighted when they implement some capital-improvement projects.” The new Planning Board could bring some considerations into focus.
BOARD MINUTES NOW ONLINE: As of yesterday, the Planning Board’s meeting minutes, going back to April 20, 2015, are online at https://www.southernshores-nc.gov/?s=planning+board+minutes.
Planning Board meetings and BOA hearings are also voice-recorded. According to Mr. Haskett, there have been occasions when hearings have been videotaped, but that is not routine procedure. I asked Town Manager Peter Rascoe about videotaping meetings and hearings, and he said the cost would be prohibitive.
CORRECTION: In my July 11 report of the July 10 Town Council meeting, I reported the Council’s vote to send ZTA 18-04, about lot-coverage calculation, back to the Planning Board for further consideration as 3-2 in one place and 5-0 in another. The vote was unanimous. I regret the error. Sometimes my mind plays tricks.
Ann G. Sjoerdsma, 7/17/18