[The following blog replaces one that I posted in earlier today, before I could reach some of my sources.]
The Southern Shores Town Council unanimously passed a lengthy motion at this morning’s special meeting on high-occupancy houses to direct Town staff to work with the Town Planning Board to draft a zoning text amendment (ZTA) that would do two things:
1) create an “overlay” zoning district that would consist of properties east of N.C. Hwy. 12 and properties that abut the west side of Hwy. 12 and
2) set forth zoning regulations, such as building height, lot coverage, and parking restrictions, for properties in the overlay district that would depend upon whether the houses on these properties were 4,000 square feet or smaller or between 4,000 and 6,000 square feet.
Councilman Jim Conners made the motion, reading from a prepared document that Town Attorney Ben Gallop most likely drafted. The creation of the overlay zoning district was one of three options discussed by the Town Council to address property owners’ concerns about SAGA’s proposed plans to build 12-bedroom, 12-bathroom, nearly 6,000-square foot structures with 17 parking spaces and septic capacity of 24 people at 98 Ocean Blvd. and 134 Ocean Blvd. The Council did not take any action that would prevent these two developments from going forward; it focused instead on preventing future similar structures.
After reading his motion, Mr. Conners said he wanted “to get a concept out there,” the concept being that of an overlay district for oceanfront and oceanside properties, which often are improved with rental houses. Houses in this new zoning district, according to Mr. Conners’s motion, would be specially regulated according to setbacks, building height, lot coverage, number of trash receptacles, landscape buffers, and parking-space size, all zoning matters that the Town has the legal authority to regulate.
Mr. Conners also included in his motion that Town staff would report back to the Town Council at its December meeting, which was changed from Dec. 4 to Dec. 11, at Councilman Fred Newberry’s request (he is having knee-replacement surgery), at tonight’s Council meeting.
Town Councilman Chris Nason quickly seconded Mr. Conners’s motion.
(Note: I did not specifically confirm that Mr. Gallop authored the motion, but after the meeting, the Town Attorney informed me that the language would be easy to transfer to a proposed ZTA. According to Town Clerk Sheila Kane, the motion will be publicly available tomorrow; I will publish it as soon as possible. Ms. Kane also said that the videotape of the meeting may not be online for another week.)
Councilman Gary McDonald suggested another “option” that he thought could be explored simultaneously with the overlay district concept and which he said could have a “more immediate” impact than the comprehensive plan proposed by Mr. Conners. Mr. McDonald suggested that the Town Planning Board look into amending the Town zoning ordinances to redefine the living space considered in evaluating house size as “total enclosed area,” a definition used in CAMA, rather than “enclosed living space,” and to put restrictions on septic capacity and parking spaces.
Mr. McDonald’s motion, which would have benefited from a prepared text, was defeated 2-3, with Councilman Fred Newberry supporting it.
In an earlier blog that I posted before I could speak with Councilman McDonald, I objected to how Councilman Conners summarily dismissed Councilman McDonald’s motion as counter-productive. I suggested that the lengthy motion presented by Mr. Conners was the work of 3/5 of the Town Council: Mayor Bennett, Councilman Chris Nason, and Councilman Conners, meeting or talking during the past three weeks with Mr. Gallop, Town Manager Peter Rascoe, Town Planning Director Wes Haskett, and others who are privy to their confidences.
After tonight’s Town Council meeting, I confirmed that Mr. McDonald was unaware of the content of the motion until he heard it read this morning and that he did not participate in any meetings with any of the people I just mentioned. Councilman Fred Newberry told me that he knew about the motion, but not the details.
I strongly object to a cabal-like form of Town government. There should be both transparency and inclusion in Town government–among elected officials and with the public. I grow weary of the three-person majority of Bennett-Conners-Nason excluding the other two Council members we elected from participation in important decision-making.
Mayor Bennett presented a different option that was better received and did not need a vote, that of lobbying the N.C. General Assembly to undo the damage that it did in 2015 when it took away from towns the authority to restrict the number of (bed)rooms in houses. The State legislature passed a substantial change to N.C. General Statute §160A-381, which deals with zoning power, by adding a section (h) that substantially restricts what towns and counties can do to regulate “building design elements.”
[See the Beacon’s 10/11/18 blog: PROPOSED 12-BEDROOM SAGA HOUSE: WHAT HAPPENED TO THE 7-BEDROOM RESTRICTION IN SOUTHERN SHORES? CAN THE TOWN LEGALLY LIMIT OCCUPANCY?]
“I have strong reason to believe it [lobbying for a change in the law that would restore the town’s authority to limit bedrooms] would work,” the Mayor said.
Mr. Bennett also said he had spoken with “every mayor” in nearby beach towns and that each “will get re-involved.” He characterized the mayors of Duck and Nags Head as having a particularly “strong interest” in undoing the 2015 statutory change and said that the N.C. League of Municipalities is willing to “lobby on our behalf.”
The Mayor asked for property owners’ help in this effort and concluded by saying, “I guarantee I’ll work hard to make it work.”
PUBLIC HEARING, LEGAL ANALYSIS
Fourteen property owners spoke in the public hearing portion of the meeting, which preceded a presentation by Mr. Gallop of his legal analysis, which, in turn, preceded Mr. Conners’s motion. To a person, each speaker was articulate and passionate about the town he or she loves and very thoughtful about the solutions he/she offered to prevent high-occupancy structures such as SAGA’s two proposed “mega”-houses.
Several people found it difficult to speak because they were so emotional about Southern Shores and the history that their family has with the town. I found their tears to be touching, and I congratulate them for getting up, composing themselves, and speaking. Public speaking is never easy, even for those of us who have done it more often than we can remember.
The motion that Mr. Conners read was not knocked out this morning. It was three weeks in the making, and it was an effort that clearly involved Mayor Bennett, Mr. Gallop, Mr. Rascoe, Mr. Haskett, and, most likely, Mr. Nason, and some Planning Board members.
I believe the text of the motion, or Mr. Gallop’s legal analysis, should have been in the meeting packet for the special meeting, instead of all of the irrelevant reference materials that were there.
Property owners should have been advised before this morning of the direction the Town Council, with advice from the Town Attorney, had decided to go in. If they had been, they could have addressed the “concept” Mr. Conners introduced, rather than advocating for zoning restrictions that Mr. Gallop would later dispose of by including them on his list of controls that he could not recommend.
After the public hearing. Mr. Gallop enumerated, by my count, 12 possible actions that people might think could be taken, such as restricting the number of vehicles that can be parked at a house, limiting septic-use capacity per house, and even treating SAGA’s mini-hotels as commercial properties, but that he could not recommend. He then listed six areas that the Town clearly has authority to regulate: They include building height; the number of stories of a structure; density of population in a location; house size; the percentage of lot coverage; and yard setbacks.
Besides Mr. McDonald’s alternative option, Planning Board member Andy Ward spoke publicly in his capacity as a private property owner to advocate for restricting septic capacity. He offered the opinion of David Owens, a prominent N.C. land-use attorney who lives part-time in Southern Shores, as legal authority for this approach. Mr. Gallop offered a rebuttal to Mr. Owens’s opinion, and the septic-capacity issue went no further.
It seems to me that both Mr. McDonald’s and Mr. Ward’s suggestions were worth exploring and neither was a “quick fix.” They were simply different approaches. The Town Attorney and Town staff could prepare more than one ZTA and offer the public and the Planning Board a choice. In January 2016, when the Town Council passed the ZTA that established the maximum house size of 6,000 square feet, it chose from three zoning text amendments before it. Mr. Gallop is quite capable of preparing multiple ZTAs.
It was troubling to me that, through Mr. Conners’s motion, the Town Council presented a “done deal,” even though I think the deal, i.e., the concept, is an excellent one. Process is everything, and the process employed to arrive at the lengthy motion leaves me uncomfortable and disappointed.
Other points to report:
- Councilman Nason, a local architect with his own company, addressed the suggestion that he had a financial interest in SAGA’s proposed developments and that, indeed, he had designed them. He said that he had “the opportunity” to design these houses, but he declined. He also said that he has worked with SAGA in the past, but that he has never worked with the Kill Devil Hills-based developer in Southern Shores.
- Mr. Gallop confirmed for me after the meeting that the Town cannot deny issuance of the building permit for the 98 Ocean Blvd. development unless there is something wrong with SAGA’s application. As I reported yesterday, the Town on Monday issued the lot disturbance-stormwater management permit for demolition on the site. (See photo above.)
- As for the proposed development at 134 Ocean Blvd., SAGA still does not own that property. The settlement has been postponed and is now set to occur Nov. 14, according to my sources. I asked Mr. Gallop if, theoretically speaking, the Town could stop this development by enacting a change in the maximum house size ordinance today, tomorrow, i.e., very soon—decreasing it to 5,000-square-feet—and he replied yes. Although SAGA has received a CAMA permit for this property, it has not filed a local building application yet. This is just theoretical. As a practical matter, the Town would have to expedite action, and provisions of the Town Code would hinder such expedition.
- The Mayor also reported that he had met with the owners of SAGA and told them to “expect a lot of negative feedback.” He said he asked them if they would sell their properties to the Town, and they replied they would not. He also asked them if they would reduce the number of bedrooms and bathrooms, in order to conform with Southern Shores’ “low-density, family character,” and they said they would not.
LATE-BREAKING NEWS: Tonight the Town Council voted unanimously to approve the conditional use permit application submitted by the Southern Shores Volunteer Fire Dept. to build a new fire station at 15 Dogwood Trail and to fund the $5,419,223 station, whose construction will begin Jan. 2, 2019. More details tomorrow.
Ann G. Sjoerdsma, 11/7/18