In a meeting last night that served notice that the new Planning Board, chaired by Glenn Wyder, will be well-prepared, proactive, and highly protective of Southern Shores, the five volunteer Board members unanimously rejected a scaled-back version of the nonconforming lots zoning text amendment (ZTA 18-07A)—which Mr. Wyder said “you could drive a truck through”—and recommended removing from the lot-coverage ZTA most of the proposed exemptions, including those for swimming pools and driveways.
The Board threw its support behind the previous comprehensive nonconforming lots ZTA (18-07), which the Mayor and Town Council directed Town Attorney Ben Gallop to revise, after they postponed action on the ZTA’s second reading at their July 10 meeting.
Although the Board rejected three exemptions proposed by ZTA 18-04, which seeks to change the calculation of 30-percent residential lot coverage, it approved the exemptions of gravel walkways and open-slatted decks that allow water to penetrate through to pervious material. (See below.)
During the hearing on ZTA 18-04, Planning Board member David Neal, a local builder, pointed out that the amendment would enlarge the buildable footprint for a house, a fact that has prompted many property owners to oppose it. Mr. Neal and newly appointed member Andy Ward, another local builder, voted only in favoring of exempting gravel walkways from the lot-coverage calculation.
(The Beacon has written extensively about these two zoning text amendments. Please refer to blogs posted in May, June, July, and earlier this month for background and analysis.)
Before deciding these weighty matters, the Planning Board, sitting in its capacity as the Board of Adjustment (BOA), granted a special variance to the owners of the Pink Perfection, a classic flat top built on the oceanfront in 1954, so that they may build a roof atop a new dune deck, in the same style as the roof on a historic dune deck that will be demolished. The Board stressed the “special and historic nature of the property” in approving a variance from Town Code sec. 36-99, which prohibits roofs on dune decks.
Mr. Wyder signaled a changing of the guard early in the meeting when he announced that speakers making public comments—outside of those given during a BOA hearing—henceforth will be limited to three minutes and that there will be no informal dialogues among Board members and members of the audience or any calling out from audience members. Mr. Wyder’s formalized procedural rules are designed to move meetings along and to keep discussions focused and on point.
IMO, last night’s meeting proceeded at a fairly brisk clip, with two welcome breaks taken at opportune times. Whenever Mr. Wyder thought that the robust and thorough discussion among the Board members, chiefly involving Mr. Ward, Mr. Neal, and the Chairperson, was becoming redundant or “circular,” as Mr. Wyder described it, he intervened. That these Board members clearly had done substantial research in preparation for the meeting gave their discussions both depth and momentum.
OPINION: From both a procedural and a substantive standpoint, this Planning Board meeting was the best I have ever attended, hands down. All of the members are independent-minded and thoughtful. They each have their own way of processing information and communicating, but they are united in their concern for Southern Shores. The three builders on the panel—Joe McGraw is the third—each have decades of experience and history with Southern Shores, and the fifth member, Elizabeth Morey, a political-campaign consultant, has a background in government regulatory work.
MORE OPINION: When Mr. Neal spoke during the “Pink Perfection” variance hearing about “thinking outside of the box” and “getting away from cookie-cutting this town,” I was overjoyed.
“I’m here to represent what I think is good for the Town of Southern Shores,” he said, citing the 40 years in which he has lived and worked here and the unfortunate changes he has seen. In Mr. Wyder, who claimed a 25-year Southern Shores history, I believe we have a strong leader who is equally committed to serving the Town.
NONCONFORMING LOTS, ZTA 18-07A
Speaking of unfortunate changes . . . the recent trend toward developing 50-foot-wide lots that were once part of a larger parcel of two or more 50-foot-wide lots is one of the worst that I’ve seen in my decades of Southern Shores life. It’s ruinous.
I may be misquoting Mr. Wyder in his truck analogy. He may have driven a “Mack” truck through ZTA 18-07A. I know the New Jersey native referred to the Lincoln Tunnel, too, in describing the “loopholes” of ZTA 18-07A.
The first reading of the original nonconforming lots ZTA, 18-07, garnered 3-2 support from the Council, with Mayor Tom Bennett and Councilman Chris Nason dissenting. Councilman Jim Conners was especially enthusiastic about the amendment, saying it was about “stopping runaway development so [Southern Shores] doesn’t look like Kitty Hawk or Kill Devil Hills.”
Mr. Conners then exhorted his Council colleagues: “Let’s move forward.”
By July 10, the date of the ZTA’s second reading, the newest Town Councilman clearly had changed his mind. After the Town Council returned from a closed session during the July meeting to discuss ZTA 18-07, Mr. Conners made a motion (which all supported) to send the ZTA back to Town staff for revision so that it achieved the limited purpose of preventing a property owner who has a single structure on a double-lot or larger parcel (at least two 50-foot-wide lots) from:
1. Razing that structure and building two structures on his/her property; or
2. Selling his/her property so that someone else can raze the structure and rebuild on the smaller lots.
The Town Council deliberately omitted from the regulation the sale of vacant land that consists of two or more 50-foot-wide (or otherwise nonconforming) lots. That omission is the primary loophole that Mr. Wyder could drive his truck through.
“Did Council want to leave out vacant lots?” Mr. Neal asked Mr. Gallop.
“Yes,” the Town Attorney answered.
The key paragraph of ZTA 18-07A reads:
“Prior to the demolition of an existing principal building, redevelopment exceeding 50% of an existing principal building’s value, or construction of a new principal building when such existing or proposed principal building is located or proposed to be located on two or more lots any of which are non-conforming, all lots underlying the existing or proposed principal building shall be recombined into a single lot.”
It quickly became clear in last night’s meeting that the Planning Board, which unanimously approved ZTA 18-07 on May 21, recommending that the Town Council adopt it, was not going to permit the exclusion of undeveloped parcels. (In this case, “parcel” means a tract of land that consists of more than one nonconforming lot.)
Both Mr. Wyder and Mr. Ward came prepared with examples of vacant parcels in Town, which, if they were sold as separate 50-foot-wide lots, would result in a proliferation of development that would seriously compromise the low-density nature of Southern Shores–its character, appeal, and habitability–and otherwise cause irreparable damage. Southern Shores would indeed look more like Kitty Hawk or KDH.
Mr. Wyder said he had identified six vacant parcels of 100 or 200 feet in width, between the Southern Shores Crossing and the Ocean Boulevard-Chicahauk Trail intersection, a distance of about 8/10 mile. If each of these parcels were sold in 50-foot-wide lot increments and developed as such, he said, 13 new houses could be built. “I have a problem with this,” he said, stressing that he had looked at only one short stretch of the beach.
Mr. Ward identified a section of the oceanfront—at 76A, 76B, and 76C Ocean Blvd., formerly known as 76 Ocean Blvd.—in which such lot sales have already occurred. These three were sold Dec. 28, 2017, ahead of anticipated lawmaking to prevent such transactions. (As I have written, restrictive covenants that run with the land might prevent the construction of houses on these small nonconforming lots, but someone has to be legally qualified and otherwise willing to enforce them. That’s a topic for another blog.)
“I think the tear-down is a slam dunk,” Mr. Ward said, meaning everyone wants to stop the demolition and redevelopment that ZTA 18-07A seeks to stop. But it doesn’t go far enough.
“We need to stop” sales like the one at 76 Ocean Blvd., he continued. “It’s plain and simple. . . . People don’t want to see a bunch of 50-foot lots developed.”
“I think the Council got in the weeds” at the July meeting, Mr. Neal suggested, citing considerable confusion about ZTA 18-07.
Earlier in the meeting, Mr. Ward suggested that “an easy fix” could be made to ZTA 18-07 to except lots owned by the same owner that are adjacent, but not parallel to each other. At the July Town Council meeting, a property owner expressed concern about her ability to build on a 50-foot-wide lot that she owns that backs up to another parcel that she co-owns in an L-shaped configuration. The parcels are adjacent, but perpendicular to each other.
After the Planning Board members discussed whether they should draft new language for ZTA 18-07A “on the fly,” ensuring it covers vacant land and making other crucial changes, and after Mr. Gallop told them that “You can change 07A to 07—that could be your recommendation,” Chairperson Wyder took decisive action. He moved to reject ZTA 18-07A in its entirety and to recommend to the Town Council that it adopt 18-07. Mr. Ward seconded the motion, and it passed unanimously.
Mr. Wyder will present the Board’s action to the Town Council at its Sept. 5 meeting. Mayor Bennett and Councilmen Conners, Fred Newberry, and Gary McDonald all attended last night’s meeting.
LOT COVERAGE ZTA 18-04
I have been writing about the zoning text amendment to change the calculation of residential lot coverage since the Beacon premiered in April. By then, it or an earlier version of the ZTA had already been around at least eight months.
The ZTA effort dates to an Aug. 11, 2017 memorandum from former Planning Board Chairperson Sam Williams to Mayor Bennett in which Mr. Williams advised that the Board, which had been painstakingly reviewing the proposed Town Code rewrite submitted by consultant Codewright, would be making recommendations to the Council for possible Code changes on a piecemeal basis, before its full review was finished.
Mr. Williams zeroed in on two zoning changes that the then-Board decided to take up: 1) the manner in which building height is calculated; and 2) the manner in which lot coverage is calculated.
In its report, Codewright did not advise the Town to change its lot-coverage ordinance, which is codified at Town Code sec. 36-202(d)(6). Instead, it gave the Town options to consider, one of which was to do nothing to the ordinance. ZTA 17-03, the lot-coverage amendment that the Planning Board approved last August and recommended to the Town Council in September, represented another option.
The Town Council defeated ZTA 17-03, Sept. 5, by a 3-2 vote, but the measure was resurrected as a slightly altered ZTA 18-04 in February 2018, after the newly elected Mr. Conners joined Mayor Bennett and Councilman Nason in a motion to do so.
ZTA 18-04 would eliminate from the building footprint, and, therefore, from the lot-coverage calculation the following:
*50 percent of the area consumed by pervious materials and turfstone/pavers for driveways and parking areas
*The outermost 4 feet of [roof] eaves
*Up to 500 square feet of the water area of a swimming pool
*Open-slatted decks that allow water to penetrate through to pervious material (not to exceed a total of 25 percent of the total footprint area)
Lot coverage is the ratio of the total footprint area of all structures on a lot to the net lot area. The footprint typically includes principal (your house) and accessory structures, such as garages, carports, covered patios and roofed porches, decks, swimming pools, driveways, and parking pads.
The chief objectives of lot-coverage laws are 1) to ensure stormwater retention in the ground, so that runoff into streets and adjacent lots doesn’t occur; and 2) to protect open space, which is a critical element of Southern Shores’ land-use plan.
Last night, as it did April 16, when it previously considered ZTA 18-04, the Town Planning Board largely focused on the stormwater issue. Only Mr. Ward and Mr. Neal expressed appreciation for the environmental “aesthetics” affected by lot coverage.
I’m not going to belabor the Board’s discussions. Chairperson Wyder quickly moved into deliberations of each exemption listed above, and the members voted on whether they supported the exemption or not. They recommended removal of any exemption that they did not support, to wit:
*50 percent of the area consumed by pervious materials and turfstone/pavers for driveways and parking areas: REMOVE, 5-0 vote
*Gravel walkways: SUPPORT, 5-0 vote
*The outermost 4 feet of [roof] eaves: REMOVE, 5-0 vote
*Up to 500 square feet of the water area of a swimming pool: REMOVE, 5-0 vote
*Open-slatted decks that allow water to penetrate through to pervious material (not to exceed a total of 25 percent of the total footprint area): SUPPORT, 3-2 (Mr. Ward and Mr. Neal dissenting)
The Board then unanimously approved a motion that included all of the above decisions, which Mr. Wyder will relay to the Town Council at its Sept. 5 meeting.
The Planning Board’s next meeting is Sept. 17. I will pass along agenda items as soon as I learn about them.
Ann G. Sjoerdsma, 8/21/18