10/11/18: PROPOSED 12-BEDROOM SAGA HOUSE: WHAT HAPPENED TO THE 7-BEDROOM RESTRICTION IN SOUTHERN SHORES? CAN THE TOWN LEGALLY LIMIT OCCUPANCY?

Since I posted my blog yesterday about SAGA Construction’s proposal to demolish a historic flattop at 98 Ocean Blvd. and build a 12-bedroom, 5981-square foot, three-story house with parking for 17 vehicles on the oceanfront site, people have been asking about the seven-bedroom restriction that Southern Shores used to impose on single-family dwellings.

What happened to it?

The short answer is: It no longer exists.

While I briefly answered this question in yesterday’s blog, I did not detail the history underlying the answer, which is: The bedroom restriction appeared to be illegal after the N.C. General Assembly in 2015 passed Senate Bill 25, which, among many other prohibitions, bars municipalities from restricting the “number and type of rooms” in single-family and two-family dwellings.

SB 25 deals with “building design elements” and “aesthetic controls,” most of them having to do with the exterior appearance of a structure, such as with the design of roofs or garages. The legislation arose in the context of suburban and urban housing developments, not in a coastal development area. (For the text of the bill, see https://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S25v3.pdf.)

SB 25, which became Session Law 2015-86, also has some exceptions. The prohibitions do not apply to structures that are located in local or national historic districts or that are individually designated historic landmarks. Where municipal regulations are “directly and substantially related” to applicable safety codes adopted under the N.C. State Building Code or where they are adopted as a condition of participation in the National Flood Insurance Program, SB 25 does not apply.

SB 25 became state law on June 19, 2015. At that time, the Town Code of Southern Shores defined a detached single-family dwelling in the R-1 residential district, which covers 98 Ocean Blvd., as:

“consisting of no more than seven bedrooms or septic capacity for more than 14 people.” (Sec. 36-205(b)(1).

It further defined a large home dwelling as “any home containing more than seven bedrooms (or rooms that could be considered as bedrooms using the county criteria for determining septic system design) or septic system capacity for more than 14 people.” (Sec. 36-57).

It is important to note that although SB 25 appears to invalidate the bedroom limit, it did not prohibit the 14-person occupancy/septic capacity restriction.

Sometime after SB 25 took effect, SAGA Construction proposed to build a 25-bedroom “wedding destination” or “event” house at 64 Ocean Blvd, in the middle of what was once visionary founder Frank Stick’s housing compound. SAGA destroyed a historic structure on this oceanfront site, as did the homeowners at 62 Ocean Blvd., but it was prevented from building the event house when the Town Council passed a size limit on single-family dwellings of 6,000 square feet of “enclosed living space.”

The Council’s action occurred seven months after SB 25 took effect. Unfortunately, I recall a long, well-aware delay by the Town before it responded to the new law, about which all Planning Board and Town Council members knew. Although there was considerable buzz surrounding SB 25, and beach towns to the south changed their zoning ordinances, it was not until SAGA’s development proposal for 64 Ocean Blvd. became known that Southern Shores acted. (You may recall that a Town Council election occurred in November 2015, resulting in the arrival of three new Council members. It was the former Council that ignored SB 25.)

PLANNING BOARD AND TOWN COUNCIL RESPONSE TO SB 25

On Jan. 22, 2016, the Town Council considered three zoning text amendments, prepared by Town Attorney Ben Gallop and Town Planner Wes Haskett, to ensure both that the Town Code conformed to SB 25 and that the SAGA 25-bedroom “event house” would not be built. I recall the hearing on these ZTAs as being somewhat confusing and overwhelming. Each ZTA contained a lot of verbiage to process.

The previous evening, the Town Planning Board had met and unanimously recommended approval of ZTA 16-02, which restricted occupancy in large structures, but not maximum building size. The Planning Board did not reject the other ZTAs; it just favored ZTA 16-02 over the others. I detail the ZTAs that the Town Council considered below:

ZTA 16-02: “Large structures, 14-person occupancy limit”

The crux of this ZTA was a new definition for “large-home dwelling” under Code sec. 36-57. Large homes were redefined as “any residential structure designed or constructed to have septic capacity for more than 14 people. Large home dwellings are not a permitted use in any zoning district unless expressly authorized by that district’s regulations.” (I added the italics.)

This ZTA, like all of the proposed ZTAs, elaborated on the definition of “event facility,” which constitutes a restaurant under the Town Code and requires a conditional use permit. Much effort was put into drafting new Code language that would define and control “event facilities.”

ZTA 16-03: “Large structures, maximum square footage”

This amendment established a “maximum size” for a single-family dwelling within the different residential districts of not more than “6,000 sq. ft. of enclosed living space.” Living space is defined in the Town Code as habitable space.

Significantly, ZTA 16-03 also eliminated the 14-person septic system capacity limit on detached single-family dwellings, and, in my opinion, amended the definition of the term “family” in an awkward, unfortunate, and, most likely unintended, manner. I will not get into the “family” point now, but it figures into an analysis of what is a family insofar as a vacation rental house occupancy is concerned.

ZTA 16-04: “Large structures, graduated square feet”

This ZTA sought to define the maximum size of a large-home dwelling according to the zoning district in which it is located. But it also specified that such dwellings “are not a permitted use in any zoning district.”

The way this ZTA worked is that dwelling size was determined by the square footage of the lot on which it was built:

On lots with square footage up to 10,000 square feet, a single-family dwelling could not exceed 2,000 square feet of enclosed living space. If the lot were between 10,0001 and 20,000 square feet, the size limit would be 4,000 square feet; on lots between 20,001 and 35,000 square feet, the limit would be 6,000 square feet; and on lots greater than 35,001 square feet, the maximum house size could not exceed 8,600 square feet of enclosed living space.

Remember, any lot under 20,000 square feet is still nonconforming.

If this ZTA had been passed by the Town Council, instead of ZTA 16-03, SAGA would be able to build an 8,600-square foot house at 98 Ocean Blvd., provided the building did not exceed the 30 percent lot coverage restriction. SAGA claims in its CAMA application that the lot size is 35,262 square feet.

ZTA 16-04 also sought to alter the meaning of “family.”

You will find links to all of the ZTAs at this link: https://www.southernshores-nc.gov/?s=16-03.

I am simplifying the proposed ZTAs as much as possible. I do think it’s important to mention, however, that each one proposed a change to off-street parking requirements for single-family dwellings, which had been based on the number of bedrooms in a dwelling. Instead of using bedrooms, the Town conditioned the minimum number of requisite parking spaces on septic capacity, which is determined by the county health department.

The Jan. 22 meeting minutes reflect, and I recall, that the Town Council zeroed in on ZTAs 16-02 and 16-03. The graduated square-foot scheme and its consequences were difficult to comprehend quickly. It seemed unduly complicated.

According to the minutes, Mr. Gallop stated that he was more confident about defending ZTA 16-03 from legal challenge than he was ZTA 16-02 or 16-04. He also said that ZTA 16-02, which would restrict septic capacity, would be harder to enforce.

See the minutes here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Minutes_2016-01-22.pdf.

According to the minutes, Councilman Christopher Nason asked Mr. Haskett what was meant by “enclosed living space,” and he replied that it is space that is heated and cooled. Hence, a detached garage would not be included.

Eventually, the Town Council approved the maximum size limit of 6,000 square feet by a 3-2 vote, with Mayor Tom Bennett and Councilman Nason opposing it. Councilman Leo Holland joined Councilmen Fred Newberry and Gary McDonald in supporting ZTA 16-03.

WHAT ABOUT NOW?

An obvious question, in hindsight, is why didn’t the Town Council combine ZTA 16-02 and 16-03, and restrict both maximum building size and maximum occupancy, according to septic capacity? The answer, I believe, is that it could have, but it didn’t because a ZTA incorporating both approaches wasn’t drafted, and it was under the gun with the SAGA development looming.

Could the Town Council seek to limit occupancy now in single-family dwellings by reference to septic capacity? Yes. Could it limit occupancy in single-family rental dwellings without reference to septic capacity? I would like the opinion of an expert land-use attorney on this matter. The definition of family, as it pertains to vacation rentals, would definitely come into play.

Whether or not the Town could enforce an occupancy limit is a different question from whether or not it has the authority to impose a limit. Enforcement is a practical how-to matter. How does the Town enforce maximum building height or maximum lot coverage or other limits now?

I have long  believed that there is can-do government, and there is can’t-do government. The same can be said of attorneys. I stand with those who believe they can and figure out how.

Ann G. Sjoerdsma, 10/11/18; revised, 10/12/18