9/18/18: MAYOR “ADOPTS” COASTAL TOWN OF SWANSBORO FOR RELIEF EFFORT: DONATIONS SOUGHT; PLANNING BOARD CONTINUES TALKS ABOUT NEW LAW REGULATING NONCONFORMING LOTS: Should There Be Exceptions?

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Flooding overtakes a section of downtown Swansboro, N.C., on Sept. 14. (Photo courtesy of the Associated Press)

In a good will gesture, Mayor Tom Bennett has reached out to the mayor of Swansboro, N.C., a coastal town about the size of Southern Shores, and offered to send supplies to help its residents recover from flooding caused by Hurricane/Tropical Storm Florence. The small town in Onslow County, near Camp Lejeune Marine Corps Base, has experienced a total rainfall since last Thursday of more than 35 inches, much of it falling during the storm’s first two days.

At last night’s Planning Board meeting, Mayor Bennett described how he asked town staff to identify some hard-hit towns in North Carolina that, like Southern Shores, have a population of about 3,000 people. Swansboro qualifies, although Southern Shores is larger in area. The total land and water area of Swansboro, which is on the Intracoastal Waterway about 80 miles northeast of Wilmington, is about 1.3 square miles.

According to Mayor Bennett, Swansboro has been “hammered” by Florence, and flooding there has been “devastating.” Many residents are without electricity. The Mayor recommended donations of tarps, plastic storage boxes, and plastic containers, but any nonperishable items, such as canned foods, bottled water, soft drinks, toilet paper and other paper products, pet foods and supplies, and cleaning products, are in demand. You may bring your donations to Town Hall today and in the ensuing days. (Update 9/21: Mayor Bennett reports that trailer- and truck-loads of donations will be delivered to Swansboro today.)

Tiny Swansboro topped the National Weather Service’s preliminary rainfall totals for North Carolina towns as of noon Saturday, Sept. 15 with a record 30.58 inches. By Sunday night, the National Oceanic and Atmospheric Admin. was reporting an unofficial total rainfall for Swansboro of 33.89 inches. Rain is still in Swansboro’s forecast today, but it is predicted to end by tomorrow.

“We broke the state record for rain at one time,” Swansboro Mayor John Davis told USA Today, “but considering the strength of the storm and how long it has stayed, we did pretty well.”

Rainfall totals from Hurricane Florence have eclipsed those from Hurricane Floyd, which wreaked havoc in eastern North Carolina in 1999. Floyd dumped a record 24.06 inches on Wilmington, which sits on the Cape Fear River and is currently coping with the aftermath of Florence’s rain and storm surge. Besides Floyd, Wilmington was hammered, to use the Mayor’s verb, in 1996 by Hurricane Fran.

Swansboro, which is in Onslow County across the waterway from Hammonds Beach State Park, is a former plantation that was incorporated as a town in 1783. The town’s motto is “The Friendly City by the Sea.” Its historic district made the National Register of Historic Places in 1990.

Thanks to Florence’s strong winds, Mayor Davis said in his USA Today interview, “[W]e had 10 roofs peel off like the tops of cans” in the historic district.

I would like to thank Mayor Bennett for his thoughtful and gracious offer to Mayor Davis and encourage Southern Shores residents to donate what they can. When I asked Mr. Bennett after the Planning Board meeting if Southern Shores suffered any storm-related damage, he replied: “Nothing.”

“Just pine needles,” he said, smiling. “A few downed tree limbs, but no trees.”

Other northern Outer Banks towns fared similarly. There will be no storm-debris pickup anywhere in Dare County. Just a reminder, however: If you own property on one of the town’s canals, and a tree fell in the canal during the storm, you are responsible for removing it.

PLANNING BOARD TAKES UP NEW NONCONFORMING LOTS LAW: Exceptions?

It appeared from the Planning Board’s online agenda that much of last night’s meeting would be devoted to considering the Southern Shores Volunteer Fire Dept.’s Conditional Use Permit application to build a new fire station at its current site. But because of the storm, the SSVFD’s engineer, Joseph C. Avolis of New Bern-based Avolis Engineering, P.A., could not attend the meeting. The Board will take up the CUP at its Oct. 15 meeting. (Links to CUP materials are at https://www.southernshores-nc.gov/planning-board-meet-september-17-2018/.)

The Planning Board instead spent more than 90 minutes discussing what, if any, modifications it would recommend that the Town Council make to the newly adopted zoning text amendment, ZTA 18-07, about regulating nonconforming lots. The Board concluded its extremely thorough discussion by agreeing unanimously that it needed more time to evaluate how the new law affects property owners, vis-à-vis protecting the town’s interests, and whether any exceptions to the law are warranted.

“This board will always do due diligence,” Chairperson Glenn Wyder stated. Earlier in the session, he stressed: “We want to do things right.”

On Sept. 5, the Town Council voted 4-1 to replace current Town Code sec. 36-132 with the text of ZTA 18-07, which seeks to curtail development on nonconforming lots, in particular, 50-foot-wide lots that were once part of 100-foot-wide parcels. The new law seeks to “recombine” nonconforming lots into conforming lots so that the resulting parcel is a minimum width of 100 feet, which has been the minimum size for a buildable lot in Southern Shores since enactment of the Town Code.

This “do-over” became necessary, in large part, because the original sec. 36-132, which took effect in 1981 and sought recombination of all nonconforming lots owned by a single owner into conforming lots, was drafted inartfully—so poorly as to not trigger recombination of vacant, adjacent nonconforming lots in single ownership.

At least, that is the opinion of Town Attorney Ben Gallop, who has determined the Planning Department’s approach. Some Southern Shores residents believe that sec. 36-132 was sufficient and that the sales of many 50-foot-wide lots in town should not have been allowed to occur. I believe the intent of the Town Council nearly 40 years ago was to recombine all nonconforming lots that were not single lots. The language it used is debatable and, now, with the new law, moot.

Prior to the town’s 1979 incorporation, single lots of 75 feet were sold and developed, but most of the parcels sold consisted of two or more 50-foot-wide lots. Restrictive covenants that run with these lands require developing them as 100-foot-wide tracts. (Some pre-incorporation exceptions on the oceanfront do exist.)

With an eye toward assessing ZTA 18-07’s effect, new Planning Board member Andy Ward, a local builder, did a comprehensive lot-by-lot analysis of Ocean Boulevard, starting at Pelican Watch and going north, and of nearby streets, including Duck Road, Porpoise Run, Trout Run, and Wax Myrtle Trail. Mr. Ward presented his thorough analysis (he worked on “rainy days,” he joked) to the Board before it started its deliberations. Mr. Wyder called it “a great identifying tool for us as a board and eventually for the town council.”

This analysis allows easy identification of properties and property owners directly affected by the new law. (You may view it at https://www.southernshores-nc.gov/wp-content/uploads/2018/09/8-22-18-Ward-Scenarios.pdf.) In examining Mr. Ward’s scenarios, Board members made clear that they do not wish to unduly burden individual property owners. They spent the bulk of last night’s meeting deliberating over exceptions to the new law.

“We want to try to be fair,” said Elizabeth Morey, the Planning Board vice-chairperson.

“We want to make people whole who are in place,” said Mr. Ward.

One such property owner identified by the Board is Richard M. White of Elizabeth City, who owns 85 Ocean Blvd., two 50-foot-wide lots that he developed in 1999 as a single 100-foot-wide lot. In 2014, Mr. White, who was present at last night’s meeting, bought a former paper street at 85A Ocean Blvd., which is a nonconforming 50-foot-wide lot. He would like to build on this investment property.

On May 21, however, the Planning Board, sitting as the Board of Adjustment, denied Mr. White’s request for a side-yard setback variance on 85A Ocean Blvd. because House Engineering, P.C., of Kitty Hawk, who represented him, sought a setback reduction from 15 feet to 10 feet, not 12 feet. All of the side-yard setback variances that the Board approved on 50-foot-wide lots, before adoption of ZTA 18-07, were for 12 feet.

The new law specifies that owners of single 50-foot-wide lots—meaning they do not own any adjacent property—may use a side-yard setback of 12 feet. Mr. White cannot avail himself of this variance, however, because the new law requires him to recombine 85 and 85A Ocean Blvd. into one 150-foot-wide parcel.

To remedy Mr. White’s situation, the Board eventually arrived at a possible exception that Mr. Haskett framed. If I understood it correctly, the exception would apply to a single owner who has a vacant nonconforming lot adjacent to two nonconforming lots that have a structure on them (e.g., Mr. White’s rental house). Under this exception, Mr. White would have to recombine the two lots that make up 85 Ocean Blvd., but not the lot at 85A Ocean Blvd.

Upon hearing this proposal, I immediately began brainstorming ways to use the exception to get around the recombination mandate of the new law. I’m sure other property owners and their lawyers would do the same. I think it would be more efficient to except former paper streets from the definition of nonconforming lots. Mr. White’s case is unique.

OPINION:

I found Board members’ discussions last night among themselves and with Mr. Gallop and Deputy Town Manager/Planning Director Wes Haskett to be thoughtful, creative, and wide-ranging. They coalesced into the excellent suggestion that Mr. Wyder meet with Mr. Gallop and Mr. Haskett to focus these discussions.

In Mr. Gallop’s exchanges with the Planning Board, the Town Attorney repeatedly returned to the questions of the Board’s objectives—“What are the problems you’ve trying to solve?”—and its policies, apart from individual property owners’ circumstances. In my opinion, the Planning Board has to ensure that any exceptions it recommends to the Town Council reflect sound policy that benefits the town, at large. Exceptions should be policy-driven, not property-owner-driven, and, thus, neutral and non-discriminatory.

In stating the Board’s objective, Mr. Wyder said: “The idea is to maximize the number of conforming lots and minimize the number of nonconforming lots.”

While true, I believe this statement is too broad. I believe it needs to be broken down into a more practical analysis that rests on policy considerations.

The only other observation I would make is that sometimes the Planning Board members refer to, and fear, legal repercussions from their actions, without articulating or knowing what the legal cause of action would be. The Town Council does this, as well. I understand that all of these town representatives take their responsibilities very seriously and do not wish to harm the town in any way. I commend them for their conscientiousness. I also know that we live in a very litigious society. But you cannot sue on the air you breathe or just because you feel like it. You have to state a legally actionable claim.

Last night, one member brought up the concern that a recombination of nonconforming lots might be an unconstitutional taking of property. Lawyers know it is not, and I was most gratified when Mr. Gallop put that fear to rest, citing the U.S. Supreme Court as authority. I wish he would speak up more often and address Planning Board and Town Council members’ legal concerns when they arise. In my experience and opinion, they are often unfounded.

Ann G. Sjoerdsma, 9/18/18

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