It’s difficult to find free clip art to illustrate a story about septic capacity.

As The Beacon reported 11/7/18, Town Attorney Ben Gallop enumerated at last week’s special meeting 12 legal options for preventing high-occupancy houses in Southern Shores—such as the two 12-bedroom, 17-parking-space structures with septic capacity for 24 people that SAGA proposes to build on the oceanfront—that he did not recommend. Among them were limitations on septic-use capacity.

In his “risk-reward analysis,” Mr. Gallop supported the position that the Senate Bill 25 amendments to N.C. General Statute §160A-381, which took effect in 2015, prohibit towns from regulating septic-use capacity because such a limitation would be an “indirect” application of a regulation on the number of bedrooms. He essentially argued in favor of the Outer Banks Home Builders Assn.’s interpretation of NCGS §160A-381(h).

But not all land-use lawyers agree with this interpretation. Among them is Professor David W. Owens, of the University of North Carolina School of Government, whose Oct. 30, 2018 letter to Mayor Tom Bennett, expressing a different view, was read aloud by the Mayor at the Nov. 7 special meeting.

Professor Owens, who lives part-time in Southern Shores, is the author of the basic legal reference, “Land Use Law in North Carolina.” Before joining UNC’s faculty in 1989, he spent 10 years with the N.C. Division of Coastal Management, according to his profile on the UNC School of Government’s website.

Mr. Gallop acknowledged Professor Owens as a foremost authority on N.C. land-use law and even held up the professor’s textbook as a go-to source for him.

This time, however, the Town Attorney disagrees with the expert.

The new state law, NCGS §160A-381(h), lists those building-design elements that counties and towns cannot regulate, and one of them is “the number and types of rooms.” Hence, the invalidation of the seven-bedroom restriction in Southern Shores that kept occupancy in check since its enactment in 2001. [See The Beacon’s blog, 10/11/18.]

The new statutory subsection further specifies that:

“Regulations prohibited by [160A-381(h)] may not be applied, directly or indirectly, in any zoning district . . . unless voluntarily consented to by the owners of all the property to which those regulations may be applied . . . ”

Mr. Gallop said that a limit on the septic-use capacity of single-family dwellings would be an “indirect” application of a regulation on the number of bedrooms. In other words, it’s another way of restricting the number of bedrooms without restricting the number of bedrooms.

In his letter to the Mayor, Professor Owens notes that another subsection of the law, NCGS §160A-381(a) “expressly allows the town to regulate both the size of buildings and the density of population. . . . [The town may] regulate the density of population by setting maximum septic and parking capacity for residential lots.”

Professor Owens then cites a 2014 N.C. Court of Appeals’ case upholding a Chapel Hill zoning restriction that limited the number of cars that could be parked at residences in a particular zoning district as a “good illustration of this authority.” At the Nov. 7 special meeting, Mr. Gallop disagreed with Professor Owens’s reading of the legal holding (outcome) of this case, Patmore v. Town of Chapel Hill, but I don’t believe that Patmore need come into the septic-use capacity question.

The most relevant section of Professor Owens’s letter is his conclusion that:

“If the town elects to include [a septic-use capacity] restriction in your ordinance, it should be based on regulating maximum occupancy by limiting the total septic capacity allowed per lot, setting a maximum daily flow rate, or using a similar measure based on occupancy and density, not the number of bedrooms in the structure. It should be the maximum number of occupants of a residence that is regulated, not how many rooms are used to house those occupants.”

I agree. As Professor Owens describes the “land use and zoning concern,” it is “having twenty-four occupants of a single-family home, whether they are all in a single bunkroom or are in twelve bedrooms.” It’s occupancy, not bedrooms.

I have attached a copy of Professor Owens’s letter to the Mayor here: Large house

It is part of the public record.

The Southern Shores Town Code used to limit occupancy with an ordinance that defined a single-family dwelling as “consisting of no more than seven bedrooms or septic capacity for more than 14 people.”

I see no reason why the Town couldn’t resurrect the provision limiting septic capacity to no more than 14 people, using ordinance language that stays steer of any reference to the number of bedrooms as the means by which septic capacity is determined. How the Dare County health department determines septic capacity is not directly the Town’s concern.

Members of the Town Planning Board indicated at their Oct. 15 meeting that they were interested in pursuing occupancy control via a restriction on septic capacity.

Member Andy Ward, a longtime Southern Shores homeowner and builder, said then that he believes such a restriction “is very feasible to do. We just have to figure out how to do it. As a town, we have to figure out how to regulate septic capacity.” [See The Beacon’s blog, 10/16/18.]

Mr. Ward spoke at the special meeting in his capacity as a private citizen and renewed this appeal. After Mr. Gallop opposed such a septic-capacity restriction, however, only two of the five Town Council members showed an interest in pursuing one. They were Councilmen Gary McDonald, who made a motion to have Town staff prepare a zoning-text amendment that included a septic-capacity limit, and Fred Newberry.

Mr. McDonald’s motion was defeated, 3-2, with the Mayor and Councilmen Jim Conners and Chris Nason voting against it. [See The Beacon’s blog, 11/7/18.]

I welcome your comments on this issue.

Ann G. Sjoerdsma, 11/13/18


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