What is a “single-family dwelling” in Southern Shores? How does the Town Code define a “single-family dwelling” for purposes of its single-family residential districts?

These are two of the many questions that the Town Planning Board should take up during its special meeting Wednesday, at 5:30 p.m., in the Pitts Center, when it continues its discussion of regulating high-occupancy, large homes in Southern Shores. The Beacon plans to raise the “single-family” issue in public comments during the meeting.

During the past year, I have had occasion to consult the Code definition of single-family dwelling and have been flummoxed by the awkward and heavy lawyering hand that I found evident in some of the wording. When I connect the dots, I reveal a definition that I consider both nonsensical and damaging—certainly not what homeowners would believe is the case. (See below.)

Most obviously, I consulted this definition in the context of SAGA’s proposed 12-bedroom, 17-parking-space, 24-person-septic capacity, nearly 6,000-square-foot “mini-hotels,” which, if pending litigation is unsuccessful, will be built in the RS-1 single-family residential district on the oceanfront.

As The Beacon has reported, the Southern Shores Civic Assn. objected to the Town’s issuance of CAMA permits to SAGA on the grounds that its mini-hotels are not single-family dwellings and should not be permitted in the RS-1 residential district. The SSCA had standing to be heard on the permits because it owns beach accesses adjacent to the two SAGA properties, at 98 and 134 Ocean Blvd.

Town Permit Officer Dabni Shelton summarily dismissed the SSCA’s objections, and the Civil Association elected not to appeal the permits’ issuance. Board members have told The Beacon that they did not wish to spend SSCA monies on legal expenses.

Here’s the rub, folks: Although the Town Code defines single-family dwelling, in section 36-57, in a clear and unambiguous manner, the Code definition of “family,” which you must look up in order to interpret and apply this definition, is severely compromised and confusing. The Town Council amended the definition of “family” on Jan. 22, 2016, when it enacted the 6,000-square-foot maximum single-family dwelling size.

The Beacon very much doubts that the three Town Council members who approved the change in this definition had any awareness of doing so. And because there is no video or voice recording of the Jan. 22, 2016 meeting—according to Town Clerk Sheila Kane, because it was a “special” meeting—The Beacon cannot determine what was said or not said by Town Attorney Ben Gallop when he explained the various “large-house” zoning text amendments that he had drafted for the Town Council to consider.

The Beacon has confirmed that all of the ZTAs contained the amendment to the definition of family. If they performed their jobs conscientiously, all of the Council members should have been familiar with the wording of each ZTA, including the “family” amendment. Because of the holidays, however, The Beacon has not had the opportunity to contact them.

I can tell you that I attended the Jan. 22, 2016 meeting and elected not to speak publicly because I had not had time to study the language of the ZTAs. I do not recall any discussion about the family definition amendment, and the meeting minutes reveal none.

“SINGLE FAMILY DWELLING” AS DEFINED BY TOWN CODE

A “dwelling, single-family” is defined in Town Code sec. 36-57 as “a detached building designed for or occupied exclusively by one family.” (This is from the definitions section of Chapter 36, which is the zoning chapter.)

“Family” is defined in this same section as “one or more persons occupying a single-family dwelling unit, provided that unless all members are related by blood or marriage or that the dwelling unit is being used as a vacation rental under the North Carolina Vacation Rental Act (N.C.G.S. Chap. 42A), then no such family shall contain more than five persons.”

Before Jan. 22, 2016, when Town Councilmen Leo Holland, Fred Newberry, and Gary McDonald approved the zoning text amendment on maximum house size, the Code defined a family without the italicized reference to the N.C. Vacation Rental Act. Therefore, a single-family dwelling was a detached building designed for or occupied exclusively by an unlimited number of persons, all of whom were related by blood or marriage, or, lacking such familial bonds, by no more than five persons.

I’ve been told by Town staff that the Town sought to discourage boarding houses with this definition of family.

This language is not original. In fact, it is standard, based, as best as I can tell from my research to date, on the N.C. Residential Code, which is a model code of regulations that was based upon the International Residential Code for One- and Two-Family Dwellings, which was promulgated by the International Code Council. The N.C. Building Code Council is the state equivalent of the ICC.

The Kitty Hawk Town Code currently has the same definitions of “dwelling, single-family” and “family” as the Southern Shores Code—absent the N.C. Vacation Rental Act reference.

So far as I can tell, neither Ben Gallop, who has represented Southern Shores since 2008, nor his law-firm colleague Robert B. Hobbs, Jr., who has been the Town Attorney for Duck since 2008, has ever been Town Attorney for Kitty Hawk. Their firm, Hornthal, Riley, Ellis & Maland, has represented Nags Head, but does not now claim the town as a client on its website. Attorney Thomas L. White, Jr., now retired from the firm, represented Nags Head from 1971 to 2001 and Southern Shores from 1979 to 2001, according to his online biography.

EFFECT OF VACATION RENTAL ACT REFERENCE: ABSURDITY

When I asked Town Permit Officer Dabni Shelton in October why the SSCA’s opposition to SAGA’s proposed mini-hotels was not sufficient, she said that the structures were covered by the Vacation Rental Act, which effectively excepted them from the Town’s single-family dwelling requirement.

For me, this interpretation is a mind-bender.

You’ll find the N.C. Vacation Rental Act, which was enacted in 1999, at https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_42a.html.

Any time I’ve raised the point with staff in the Town Planning Dept. that rental machines like SAGA’s proposed structures are not single-family dwellings, they have told me that they are covered by the Vacation Rental Act. Their interpretation eludes me.

The N.C. Vacation Rental Act is all about leases, landlord-tenant-real estate broker duties/obligations/rights, eviction, evacuation, and such. The N.C. General Assembly passed this act, as it states in its purpose section, to regulate “the competing interests of landlords, real estate brokers, and tenants.”

As a N.C. vacation rental property owner since 1991, I have consulted the Vacation Rental Act now and then, but not often because it’s rarely necessary. I have an agent, and the leases that vacationers sign with my agent include the provisions of the Vacation Rental Act.

The act is all about contractual matters. The only mention of single-family dwellings or homes in the Vacation Rental Act appears in its definitions section, which is N.C. General Statutes sec. 42A-4(2). The act defines:

A “residential property” as “an apartment, condominium, single-family home, townhouse, cottage, or other property that is devoted to residential use or occupancy by one or more persons for a definite or indefinite period”; and

A “vacation rental” as “the rental of residential property for vacation . . . for fewer than 90 days by a person who has a place of permanent residence to which he or she intends to return.”

Somehow, the mere insertion on Jan. 22, 2016 of the phrase, “the dwelling unit is being used as a vacation rental under the N.C. Vacation Rental Act, etc.,” into the family definition in Southern Shores has resulted in the Town recognizing any vacation rental house that is occupied by “one or more persons,” regardless of the relationships among them, as a single-family dwelling. This one phrase has succeeded in knocking the “family” out of “single-family.”

It also has created the nonsensical result that those of us who live in a single-family dwelling in the RS-1 district can live with more than four unrelated people—provided we rent the house out to vacationers every now and then, qualifying it as a vacation rental.

This is ridiculous.

The “intent” behind establishing the RS-1 single-family residential district is clearly set forth in Town Code sec. 36-202, to wit:

“The RS-1 district is established to provide for the low-density development of single-family detached dwellings in an environment which preserves sand dunes, coastal forests, wetlands, and other unique natural features of the coastal area. The district is intended to promote stable, permanent neighborhoods characterized by low vehicular traffic flows, abundant open space, and low impact of development on the natural environmental and adjacent land uses.”

Similar language appears in the Town’s land-use plan. To use the Vacation Rental Act to circumvent the intent, purpose, and scope of the Town’s low-density/low-impact zoning plan is beyond ridiculous. It’s outrageous.

The pre-Jan. 22, 2016 definition of “family” in the Town Code needs to be restored—and frankly, better worded—by the Planning Board and the Town Council and observed by staff in the Planning Dept.

Borrowing from Nags Head’s definition of a family (NH Code, sec. 48-7), The Beacon would rewrite the family definition, for purposes of defining a single-family dwelling, as “one or more persons related by blood, adoption, marriage or law [who are] occupying a dwelling together. A family shall not contain more than five unrelated persons.”

I would like to know why Mr. Gallop thought it was imperative to change this definition and why he did not make a point—if, indeed, he did not, as I recall—of telling Town Council members that he had changed it and what the effect of the change would be.

The Town Attorney has said on more than one occasion that “The Biltmore House is a single-family home.” Perhaps, in the era of robber barons, when the wealthy considered themselves America’s royalty and flaunted their often corruptly gained riches.

Not only was the magnificent 19^th century Vanderbilt estate home built some 10-25 years before the earliest U.S. zoning laws—and on a land tract that, I hazard to guess, was as large as the entire Outer Banks—the single spectacularly wealthy family that lived there did not rent out rooms to vacationing transients. And its members would never have condoned a tiki bar.

Happy New Year, everyone.

Ann G. Sjoerdsma, 12/31/18

 

(252) 473-3444 . . . (252) 473-3444 is the number you call to reach the Dare Central Communications Center to report a non-emergency police matter, such as a violation of the Southern Shores noise ordinance.  A Southern Shores police officer will be dispatched to the scene of the alleged offense. Dare Central 911 is the number you call for emergencies. You need not identify yourself when you call.

In The Beacon’s last blog, I reported that I observed SAGA Construction & Development violating the Southern Shores noise ordinance on Dec. 23, by having workers engage in construction activities at 98 Ocean Blvd. on a Sunday. (See The Beacon’s blog, 12/23/18.)

The noise ordinance, which is section 22-3 of the Town Code, prohibits the erection, demolition, alteration, or repair of “any building” on Sundays or between the hours of 8 p.m. and 7 a.m. on weekdays and Saturdays, except in a case of “urgent necessity” and then only with a temporary permit. (Sec. 22-3(15))

I could have reported SAGA’s violation to the police by calling the Dare Central number printed above. I elected not to, as a courtesy-warning, although the Kill Devil Hills developer surely knows, or should know, the local law.

Instead, I informed the construction workers on-site of their offense. I also reported the offense to Deputy Town Manager/Planning Director Wes Haskett yesterday–the day Town Hall reopened after the Christmas break. Mr. Haskett promptly responded to my email, telling me that he would speak to the contractor. If I observe construction activity at 98 Ocean Blvd. again on Sunday, I will definitely call Dare Central and would ask you to do the same. [Update: See my reply to a comment about this blog post.]

All violations of the Town noise ordinance are class 3 misdemeanors, punishable by a fine of not more than $500. (See Town Code sec. 1-6(b)(5).)

A few days after the SAGA incident, I was conversing with a Chicahauk resident about the no-Sunday construction ordinance—he had never heard of the restriction—and he brought up the problem of barking dogs. He had approached his neighbors about the frequent, continuous barking of their dogs, who keep him awake at night, and received no satisfaction. I suggested contacting the police, but he is loath to do so.

Our conversation led to this blog:

PROHIBITED LOUD NOISES IN SOUTHERN SHORES

The Southern Shores Town Code prohibits any “unreasonably loud noise in the town” and declares certain enumerated acts to be “loud, disturbing noises.” On the list of such noises, which is not meant to be exclusive, are the following, which The Beacon believes you are most likely to encounter in your community:

“The use of phonographs, loudspeakers or sound amplifying devices” (sec. 22-3(b)(3): If music is so loud “as to disturb persons in the vicinity,” then the person creating it may be committing a criminal offense. Call Dare Central.

“Loud animal noises” (sec. 22-3(b)(4): Most of us are willing to tolerate barking dogs every now and then, and the Town Code ordinance reflects our neighborliness. The ordinance prohibits “the keeping of any animal which, by causing frequent or long continued noise, shall disturb the comfort and repose of any person in the vicinity.” I think my Chicahauk friend has a good argument about the dogs barking all night in yards next to his.

“Grating, grinding, rattling noises” (sec. 22-3(b)(5): Any person who uses an automobile, motorcycle, or other vehicle in a manner so as to create “loud grating, grinding, rattling, or other noise,” or “squealing or screeching of tires,” or the propulsion of “rocks, gravel, or sand” violates the Town noise ordinance.

These are just three of the 15 expressly enumerated acts deemed to be legally actionable loud, disturbing noises in the Town Code, with the construction noise I previously mentioned being the 16th. Other prohibited noises include sounding horns or signal devices on vehicles; exhaust noises; mechanical devices using compressed air; and drums or devices for attracting attention to “any performance, show, sale, or display of merchandise.”

The noise ordinance of the first-ever Town Code, enacted in 1988, clearly shows an animus toward what I would call “commercial” noise, such as the “shouting or crying of peddlers or hawkers”—who, in my opinion, were quite charming and convenient in their day—“mechanical loudspeakers on trucks for advertising,” and the “delivery of commercial goods during certain hours.” (The first two raise First Amendment issues.)

Subsequent Town Councils have amended the noise ordinance to exempt noises associated with 1) the dredging of the canals and with 2) public beach nourishment projects approved by the Town.

In prohibiting “unreasonably loud noises,” the Town is exercising its municipal authority to regulate for the health, welfare, and safety of the public. This power is fundamental to a municipality’s governance. But a municipality cannot trample on the First Amendment rights, or any other constitutional rights, of individuals in exercising this power.

PUBLIC NUISANCES IN TOWN

Quite separate, but related conceptually, to the noise ordinance is the Town’s ordinance on nuisances, which you’ll find at Town Code sec. 22-39. Unlike noise offenses, however, public nuisances are civil matters, not criminal matters.

Civil penalties levied in Southern Shores for nuisance violations can be quite severe because each day that a violation continues is a separate violation. So, if you’re ordered to pay a civil penalty of $500 for a nuisance, you will have to pay an additional $500 for every day that the nuisance continues, unabated. (But, see the nuisance investigation process, below.)

It is the Town Manager, not the police, who initiates an investigation of a nuisance complaint, after receiving notice. (Sec. 22-40.)

Among the 13 nuisances enumerated in the Southern Shores ordinance are the following:

“Growth of weeds and grass” (sec. 22-39(1): A person cannot allow the “uncontrolled growth of noxious weeds or grass” to cause or threaten to cause a public hazard.

“Accumulations of animal or vegetable matter” (sec. 22-39(2)): These would be accumulations that are offensive “by virtue of odors or vapors, or by the inhabitation therein of rats, mice, snakes, or vermin of any kind,” such that they are “dangerous or prejudicial” to the public health.

“Accumulations of rubbish” (sec. 22-39(3)): Similarly, accumulations of rubbish, trash, or junk that threaten to cause or do cause a fire hazard, or stagnant water to accumulate, or the vermin listed above to take up habitation, are public nuisances.

“Conditions violating health department rules” (sec. 22-39(4): This is a catch-all provision. Any condition that is detrimental to the public health and violates county health-department rules is a public nuisance.

The ordinance goes on to cite burned or partially burned buildings that are unsightly or hazardous; storm- or erosion-damaged structures and resulting debris; the growth of trees and shrubs on canal banks that threaten to cause or do cause a hazard to boating public safety or to navigation; abandoned personal property; and damaged household contents and buildings, etc.

A condition causing obstruction of any public street, sidewalk, alley, or bridge in town is also defined as a public nuisance. That’s one to keep in mind when monitoring a construction site where vehicles spill out on to the road. (sec. 22-39(7))

Similarly, it is a criminal offense in Southern Shores for a person to “cause a condition” that blocks or damages public streets, sidewalks, alleys, and bridges in town. (Sec. 22-2) All public streets must be open for travel and free of unnecessary obstructions.

If the appropriate county health department or Town official determines after conducting an investigation that a condition constitutes a public nuisance, the Town Manager must notify in writing the person responsible for the condition(s) and order a prompt abatement within 15 days of his/her receipt of the written notice.

As I understand the civil-penalty provision in Town Code sec. 1-6(d)(3), it is only after the nuisance perpetrator fails, neglects, or refuses to abate or remove the nuisance-causing condition that the Town may issue a citation for the violation and assess the $500-a-day penalty.

Noise and nuisance laws are important for the preservation and protection of the public’s health, welfare, and safety, but they should be narrowly drawn, so as not to be oppressive. Although we live in a much busier and noisier town than we did 30 years ago when the Southern Shores laws were first enacted, we have not yet become immune to the damage caused by what they seek to prevent.

(Please forgive the multiple email notices you received for this blog. I had difficulty with posting a photograph, so I twice deleted the blog entry and reposted a photo. My original photo, which was clip art, didn’t take. My apologies.)

Ann G. Sjoerdsma, Dec. 28, 2018

 

The photograph above depicts construction laborers working today—a Sunday—at the house that SAGA Construction & Development is building at 98 Ocean Blvd., in direct violation of the Southern Shores Town Code noise ordinance’s prohibition against erecting, demolishing, repairing, etc., buildings on Sundays. The Beacon took the photograph at 2:35 p.m. today.

Sec. 22-3(b)(15) of the Town Code expressly states that construction work shall occur only between the hours of 7 a.m. and 8 p.m. on weekdays and Saturdays—no Sundays—unless a public emergency exists and the town permit officer issues a special permit.

There is no such emergency here. What there is, apparently, is SAGA’s desire to “outrun” pending litigation so that if the petitioner homeowners prevail in their argument that SAGA should not have received a CAMA permit to build on the site, the developer will be able to plead to the administrative law judge: “But, your honor, we’ve already built the house. It would be prohibitively expensive for us to tear it down.”

This is a common tactic used by builders engaged in zoning litigation. In building “at their own risk,” they are just following their attorneys’ advice and counting on judges’ sympathies.

The Beacon will be happy to tell the administrative law judge in this case that SAGA broke local law in order to rush to complete its construction. The photograph above is clearly dated and timed in The Beacon’s records.

While standing in the driveway at 99 Ocean Blvd., which is the property of petitioner Marvin Tignor, who gave me permission to be there, I engaged in a conversation with one of the construction workers, who stood across the street when I spoke with him. I advised him of the Town noise ordinance and asked him if the crew planned to work tomorrow and on Christmas Day. He replied yes.

The Beacon supposes that this is part of SAGA’s good-neighbor policy: to create construction noise on one of the most sacred days of the year for some of the people who live near 98 Ocean Blvd. The Town noise ordinance does not prohibit construction work on any named legal holidays, but again, The Beacon believes that the administrative law judge in the CAMA-permit case may be interested to know SAGA’s holiday schedule.

The Beacon cannot monitor all construction sites in Southern Shores to ensure that builders respect and observe the no-Sundays noise ordinance.

How many Southern Shores police officers drove past the construction site on busy Highway 12-Ocean Boulevard and did nothing to enforce the local ordinance?

I believe it is long past time for the Town Planning Board, in cooperation with the Town Planning Dept., to come up with a cost-effective method for enforcing important construction-related Town ordinances so that enforcement is not solely complaint-driven. Change is needed—now.

Ann G. Sjoerdsma, 12/23/18

 

In the interest of time, which I have less of this week than usual, I will report on the Dec. 11, 2018 Town Council meeting by category, hitting the highlights. (Paragraphs that appear in boldface were added 12/14/18.) But, first, I must print a retraction.

CORRECTION: I erred in my description of the Mediterranean-style house at 64A Ocean Blvd. as being a 10-bedroom house. I looked at Councilman Christopher Nason’s architectural drawings that are on file in the Town Planning Dept. and wrote down that the house has 10 bedrooms. That was a mistake. Brain fog, perhaps. The house has only seven bedrooms. I regret the error and apologize.

Now, the Town’s Tuesday night meeting:

DRAFT “LARGE HOUSE” ZTA: The Town Council did not discuss the content of the Town staff-prepared draft zoning text amendment (ZTA) to regulate high-occupancy houses. This draft came out of Councilman Jim Conners’s motion at the Nov. 7 special meeting.

Instead, after hearing public comment on the draft and considering a motion by Mr. Nason to recuse himself (see below), Mayor Tom Bennett swiftly moved to refer the draft ZTA to the Town Planning Board, with further instructions. (See The Beacon, 11/7/18 and 12/9/18 for background.)

The Mayor’s motion, which passed unanimously, read as follows:

“. . . to refer the draft ZTA-‘Large Homes’ to the Planning Board with instructions to also consider additional zoning requirements for 1) regulating waste-water treatment capacity; 2) regulating use of residential properties for rental; 3) regulating number of water use fixtures in a residence (using water conversion measures to control occupancy).”

(My thanks to Town Clerk Sheila Kane, who provided me with the text.)

During public comment, two Southern Shores resident-builders offered the Town Council an alternative approach to the ocean overlay district in the draft ZTA. Matt Neal, of Neal Contracting Group, Inc., and Mark Martin, of Sandmark Custom Homes, Inc., focused on the use of a single-family dwelling, rather than on building restrictions.

Mr. Neal, who is 2018 president of the Outer Banks Home Builders Assn., proposed curtailing “large” houses through what he called a use-based “High Occupancy Dwelling Option.” He gave Council members a written outline of it, which you may access here: nealoption. The site plan attached to Mr. Neal’s proposal depicts an 11-bedroom, 5600-square-foot house that, he said, could be built in conformance with the draft ZTA requirements—producing an undesired result.

Mr. Neal’s approach calls for creating a zoning definition for “high-occupancy dwelling” and for designating such a dwelling as a “conditional use” in the RS-1 residential district, which encompasses the oceanfront and most of the residential areas in Southern Shores. It also differentiates between the use of such a dwelling as a residence versus its use as a rental. Mr. Neal proposes prohibiting the use of a high-occupancy dwelling as a rental in the RS-1 district.

Mark Martin told the Council that he and Mr. Neal had discussed the draft ZTA and decided that a focus on the “use issue has a lot of traction.” If the Council were to go in the direction of the draft ZTA, Mr. Martin said, you would end up with “a town that’s full of nonconformities,” and the new structures that would be built would be very narrow because of increased side-yard setbacks and have large parking lots in front.

Mr. Neal characterized the building restrictions imposed by the draft ZTA as “onerous.”

The Planning Board meets Dec. 17 at 5:30 p.m. in the Pitts Center. According to Deputy Town Manager/Planning Director Wes Haskett, the draft large-house ZTA is not on the board’s agenda, but he feels certain that the Planning Board will discuss high-occupancy houses, in general.

The late Glenn Wyder, who assumed the Board’s chairpersonship last summer, indicated at the Nov. 7 special meeting and earlier that he supported “regulating waste-water treatment capacity,” i.e., septic capacity, to control occupancy. Planning Board member Andy Ward has endorsed this approach in many hearings, dating back to January 2016.

MY OPINION: While I am pleased that the Town Council referred the large-house/occupancy issue to the Planning Board, I wish it had done so two months ago. I also wish it had called a special meeting in mid-October—in the evening, when daytime working people could attend—after news of SAGA’s proposed developments surfaced, so that ideas such as Mr. Neal’s and Mr. Martin’s could have been heard and discussed. I, too, have thought about carving out an exception for rental houses, but the idea of a conditional use would never have occurred to me.

Mr. Conners’s prepared motion at the Nov. 7 meeting preempted any genuine discussion about various approaches. In fact, the Town Council rejected, by a 3-2 vote, a motion by Councilman Gary McDonald that morning to draft a different ZTA that would have looked at septic capacity, parking, and the definition of “enclosed living space.” Only Councilman Fred Newberry supported this alternative.

It came out later in the Town Council meeting Tuesday night that Councilmen McDonald and Newberry had requested a special meeting in October and had been denied by the Mayor, who scheduled the Nov. 7 morning meeting. “You blew us off,” Mr. Newberry said. (I will have to clarify when this request was made. The videotape did not clear up the matter.)

According to section 6 of the Southern Shores Town Council Rules of Procedure, “any two members of the Council may at any time call” either a special meeting or an emergency meeting of the Council, but they must observe specific written notice requirements to do so. If Mr. Newberry and Mr. McDonald did no more than ask the Mayor to schedule an October special or emergency meeting, then they did not follow proper protocol, as outlined in the rule. (The Beacon will follow this up.)

PROFFERRED RECUSAL BY COUNCILMAN CHRIS NASON/and my opinion of how things went wrong: Before the Town Council took up the draft large-house ZTA, Councilman Nason read a brief statement, in which he noted that, when he first took office, on Dec. 1, 2015, he asked Town Attorney Ben Gallop if he should recuse himself from voting on the large-house matter, which was before the Council then because of SAGA’s threatened 16-bedroom wedding-destination structure.

“I once again ask Mr. Gallop,” Mr. Nason said Tuesday night, “if I should recuse myself from any further votes on this matter.”

MY OPINION: The discussion about Mr. Nason’s recusal went wrong because of a lack of information and understanding by both the Town Attorney, who determined that the relevant State statutes did not require the architect-councilman to recuse himself, and by Town Council members.

Mr. Gallop’s decision, which he based on a reading of North Carolina General Statutes sec. 160A-75 and 160A-381(d), was prefaced by his statement that “the only issue I’m aware of is that Mr. Nason does work for SAGA outside of Southern Shores.”

Mr. Gallop’s lack of awareness caused problems. It was not Mr. Nason’s business association with SAGA Construction and Development that appeared to disqualify him from voting on large-house matters, but rather his current architectural project at 64 Ocean Blvd., and the ongoing construction of 64A Ocean Blvd., which he designed.

I also question whether Mr. Nason has any other clients who intend to build on the Southern Shores oceanfront, whom he has not disclosed. Mr. Gallop might have asked him that question, but he didn’t.

Mr. Nason’s known projects, and any others like them, constitute Mr. Nason’s “financial interest,” for purposes of evaluating his conflict of interest. (sec. 160A-75)

It is in light of these projects that Mr. Nason’s vote on any zoning map or text amendment must be evaluated. Is the outcome of a ZTA vote “reasonably likely to have a direct, substantial, and readily identifiable financial impact” on Mr. Nason? That’s the standard applied in sec. 160A-381(d), which is part of the State zoning statute. That question cannot be answered until Mr. Nason fully discloses who his current Southern Shores oceanfront clients are and what he is doing for them.

That Mr. Gallop failed to recognize this and assumed that the conflict challenge was based only on Mr. Nason’s business association with SAGA was a disappointment to me. That he later admitted that he could be wrong was equally disappointing.

Mr. Nason’s motion to recuse himself was defeated 3-2, with Mr. Nason and Mayor Bennett supporting it.

On Dec. 1, 2015, Mr. Nason disclosed that he was designing a seven-bedroom home for Steve Love and Kathleen Gorman at 62 Ocean Blvd. Mr. Love and Ms. Gorman subsequently bought a 50-foot-wide lot adjoining their property to the north on Jan. 25, 2015, after the Town Council enacted the 6,000-square-foot maximum house size on Jan. 22, 2015. SAGA split this nonconforming lot off from the larger land parcel on which it had proposed to build the 16-bedroom structure and sold it to them. (See The Beacon, 12/7/18.)

Mr. Nason has designed a five-bedroom, 3,606-square-foot house, with 980 more “unconditioned” square feet on the ground floor, for Love/Gorman at 64 Ocean Blvd. Mr. Nason should have disclosed this. He also should have disclosed what, if any, involvement he currently has with the house construction at 64A Ocean Blvd.

Instead, he stated that “the condition when I entered office is unchanged.” That is clearly untrue. His design work at 64 and 64A Ocean Blvd. attests to that.

After Mr. Gallop relieved Mr. Nason of a statutory conflict of interest and impressed upon the Town Council that a Council member has a “duty” to vote, Mr. Nason was able to shift into talking about “a perception of a conflict of interest” in the community, rather than any actual financial interests that he has.

What seemed to sway Councilmen Newberry and McDonald into voting against the recusal motion was Mr. Gallop’s opinion that the following statement in N.C. General Statute 160A-381(d) imposes a “duty” to vote upon Council members:

“A city council member shall not vote on any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member.”

I do not agree with Mr. Gallop’s interpretation. It does not follow logically that simply because a city council member shall not vote on a zoning text amendment if he/she has a conflict, that the negative is true: he/she has a legal “duty” to vote. Obviously, members can abstain. But this is what Mr. Gallop told Town Council members, none of whom is a lawyer.

The N.C. General Assembly knows how to impose affirmative duties if that is what it intends. It doesn’t need to imply a duty through negative phrasing.

‘PERCEPTION OF A CONFLICT’/MR. NASON SAYS FAMILY FEELS UNSAFE

Once Mr. Gallop misstated the issue, he opened the door to Mr. Nason steering clear of his own business dealings—which he never discussed—and talking broadly about a “perception of a conflict of interest.” From that point, in my opinion, he seemed to cast himself as a party injured by all of the factual reporting that I’ve done—none of which he challenged or disputed.

“Continued discussions have become quite a distraction for the town,” he said, urging his colleagues to vote to recuse him.

“It is not worth risking the safety of my home, my family, for an issue that I feel ultimately will be resolved at the state level,” he elaborated.

 “This is tearing the town apart,” he claimed, referencing the “vitriol” and the “animus focused on me,” without giving any examples.

“I do not want my children to feel unsafe in this community,” he implored; but when Councilman Newberry asked for “direct evidence” of his children’s lack of safety, he said, “I’m not going into it.” At no time did he offer any evidence of the claims he made.

This lack of evidence did not stop Councilman Conners from jumping in with yet another attack on “social media,” which, incidentally, he exploited during his 2017 campaign for office when he created a fake persona and set up a fictitious Facebook page. Mr. Conners has admitted perpetuating misinformation through social media and email.

Tuesday night again, Mr. Conners condemned “social media” for the “[negative] attitude within the community” toward Mr. Nason, even though Mr. Nason clearly denied a business association with SAGA, which he, in fact, has and had; did not inform the Town of SAGA’s intentions to build the two 12-bedroom houses on the Southern Shores oceanfront, even though he knew about the plans months in advance; and failed to disclose his business dealings on the oceanfront, despite promoting and voting on changes to the Town lot-coverage ordinance and voting on the nonconforming lots ZTA.

“It has nothing to do with you,” Mr. Conners told Mr. Nason.

Come again?

In the course of his own vitriolic venting, Mr. Conners implied that social-media-generated hostility had led to “drawing phallic symbols on people’s homes.”

He was referring to vandalism at 62 Ocean Blvd. on a house that Mr. Nason designed. I reported on this crime in a Dec. 6, 2018 blog.

But he didn’t get that phallic-symbol stuff from me, folks. In my report, I described a graphic drawing of “male genitalia,” not a phallic symbol. Maybe I’m playing semantics, but it also may be true that Mr. Conners saw the graffiti before it was removed.

According to the police incident report, which I obtained from the investigating officer, similar obscene graffiti was spray-painted on the concrete walkway at the Southern Shores Civic Assn.’s beach access, which adjoins 62 Ocean Blvd. to the south. The officer did not give me photographs, but he described the drawings as “crude.”

Also, according to the police report, builder Allan Hutton, who built the house at 62 Ocean Blvd. and has a crew working on the house at 64A Ocean Blvd., discovered the vandalism the morning of Dec. 5, 2018, and reported it first to Town Manager Peter Rascoe, who, in turn, notified Police Chief David Kole. The time indicated on the police report for Mr. Hutton’s notification is 7:45 a.m., before Town Hall opens.

The estimated value of the damage on the report is $4,500, not $20-$25,000, as Mr. Hutton’s worker, Chris Smith, told me, and I reported Dec. 6. 

TOWN COUNCIL MEETING SCHEDULE: After considerable discussion, the Town Council voted unanimously to eliminate the provision that the Mayor may unilaterally cancel a meeting for “lack of agenda items” and to add a budget planning session on April 30 at 9 a.m. It also approved the dates for the monthly meetings in 2019. The Town Council’s next meeting will be Jan. 8 at 5:30 p.m. in the Pitts Center.

APPOINTMENTS: The Town Council unanimously reappointed three members of the Historic Landmarks Commission, whose terms are expiring, to new two-year terms. They are Lorelei Costa, Richard Perkins, and Tony DiBernardo. The Council also unanimously voted to re-nominate Councilman Nason as the primary Southern Shores representative to the Dare County Tourism Board, starting in January 2019, with Mayor Bennett and Councilman Conners as additional candidates, one of whom the Board may choose, if it wishes.

TIDINGS TO ALL . . .  EXCEPT SOCIAL-MEDIA PROPONENTS, AND MORE GRAFFITI:

Mayor Bennett ended the meeting with some good news and kind thoughts. Thank you, Mr. Mayor.

Mr. Bennett spoke of Southern Shores being debt-free, having the lowest tax rate of all towns on the Outer Banks, boasting a large undesignated-fund balance, and building new homes and welcoming new families. He graciously recognized and thanked a great many people, including the Town staff and many dedicated volunteers in area organizations. He concluded by wishing everyone a merry Christmas and a happy new year.

Councilman Nason echoed these sentiments and then paid tribute to Glenn Wyder, noting that he was a leader who could bridge ideological gaps and bring people together. Mr. Nason spoke of continuing in Mr. Wyder’s spirit to “reach out” to each other. Mr. McDonald also recognized Mr. Wyder.

Mr. Newberry spoke of the positive value of social media, of the ability of bloggers like myself to “tell it like it is so people know.” He emphasized that social media “has a way of spreading the word quickly,” of getting information out. He also asked that the Town newsletter have more news in it.

Only Mr. Conners, who spoke last, sounded a sour note. He returned to “social media” once again, to attack bloggers and people on Facebook who make “allegations and insinuations” and pass along “inaccurate information.” He stressed the damage that social media can do, when opinions are “way over the top,” rather than the benefits of free and open communication.

It’s a marketplace of ideas, as I call it, and no one is forcing anyone to shop there.

I feel compelled to quote Mr. Conners’s own allegations and misinformation from his remarks. He said:

“Is that graffiti on that house directly related to [social media]? I don’t know. But the coincidence—is it a coincidence? It’s an awfully strong coincidence.

“. . . If it talks like a duck, quacks like a duck, flies like a duck, it’s a duck, and I don’t need a police investigation to tell me that it’s a duck.”

Fortunately, the rest of us do put our faith and trust in a criminal investigation conducted by the police, and we don’t jump to biased, unsubstantiated conclusions.

Here’s the link to the meeting videotape: https://www.youtube.com/watch?v=SGNMjhAMnaA&feature=youtu.be

Ann G. Sjoerdsma, Dec. 13, 2018; additions made 12/14/18

 

Mayor Tom Bennett would have sole, exclusive authority to cancel any Town Council meeting he wants “for lack of agenda items,” and the number of public budget planning sessions for fiscal year 2019-20 would be reduced from two to one, if the Town Council approves the 2019 Council meeting schedule submitted by the Town Manager’s office at its regular meeting Tuesday.

The Town Council meets Tuesday at 5:30 p.m. in the Pitts Center.

The Council also will take up a Town staff-prepared draft zoning text amendment to create and regulate an “oceanfront overlay residential district” that substantially differs from the draft amendment that the Council unanimously directed it to prepare at the Nov. 7 meeting on large houses. I will analyze the differences below.

At that same meeting, you will recall, the Council defeated, by a vote of 3-2, a more modest proposal by Councilman Gary McDonald to restrict residential occupancy by redefining the living space used to evaluate house size and/or by restricting septic-use capacity and parking. The Mayor and Councilmen Jim Conners and Christopher Nason opposed Mr. McDonald’s motion.

The FY 2019-20 budget will be the Town’s first with the additional annual expense of $333,551.96, to pay for the debt incurred to construct the new $5.4 million Southern Shores Volunteer Fire Dept. fire station. The Town Council unanimously voted to finance the 25-year mortgage secured by the SSVFD. (See The Beacon’s report on fire station funding, 11/23/18.) Although not yet indicated, a property-tax increase is a possibility.

Inasmuch as Mr. Nason has a client who is actively constructing a house on the oceanfront at 64A Ocean Blvd. and another client who is seeking to construct a house on the oceanfront at 64 Ocean Blvd., The Beacon does not believe Mr. Nason should have participated in either vote taken on Nov. 7. He also should abstain from any vote that the Town Council may take on the draft ZTA. (See The Beacon, “The Saga of an Architect,” 12/7/18.)

Missing from the Town Council’s meeting agenda is the appointment of a Planning Board member to fill the unexpired term created by Chairperson Glenn Wyder’s sudden death. The first Board alternate is not automatically elevated.

According to Code sec. 24-24, Planning Board “vacancies occurring for reasons other than expiration of terms shall be filled as they occur, for the period of the unexpired term, by the council.”

Glenn’s death, which shocked and saddened many of us, occurred just two weeks ago. While I know many people are grieving, I do not believe it is disrespectful to Glenn and his family to be thinking about his “replacement.” In fact, I believe Glenn would advise us: “Move on. The Planning Board has a lot to get done.” The Board next meets on Dec. 17, 5:30 p.m., in the Pitts Center.

Planning Board membership is open to all Town residents. You will find an application for the Board here: https://www.southernshores-nc.gov/wp-content/uploads/2012/05/10-14-16-Board-Volunteer-Application.pdf.

(Please consider the remainder of this blog an editorial, not a news report.)

CHANGES IN MEETING SCHEDULE ARE UNDEMOCRATIC POWER PLAYS

During his tenure as mayor, Mr. Bennett has succeeded in eliminating the Town Council’s agenda workshop meetings, which took place at 9 a.m. on the third Tuesday of the month, and three of the four Council committees (Planning, Finance, and Public Safety), whose meetings were open to the public.

He retained the Capital (Infrastructure) Improvement Planning Committee and has consistently assumed its chairpersonship, either alone or with a co-chairperson.

Mr. Bennett now seeks to control the scheduling of the remaining 12 monthly meetings by assuming sole power to cancel them for the undefined reason of “lack of agenda items.” When a meeting may be canceled for this reason and whether or not agenda items are lacking—there are always staff reports and public comments—would be solely within the discretion of Mayor Bennett to decide, without oversight, if the Town Council approves this change.

I find this power play both undemocratic and appalling. If any change should be made to the meeting-cancellation clause in the Council Meeting Schedule Resolution (2018-12-01), it should be to make cancellation contingent on a unanimous vote of the Town Council.

In light of the emergence of SAGA Construction and Development’s proposed 12-bedroom, 17-parking space “mega” structures on the Southern Shores oceanfront, cancellation of the October 2018 meeting—on Sept. 5 by a 3-2 vote, with the Mayor and Councilmen Nason and Conners in the majority—looks suspicious.

As we now know, Councilman Nason knew months before the Sept. 5 meeting about SAGA’s plans. (See The Beacon, 11/17/18.)

And, as I’ll tell you now, because I’ve read the Town permit file on 98 Ocean Blvd., it was only a “mistake” by SAGA that kept the Southern Shores Civic Assn. from being informed about its development plans a month earlier than it was.

Had SAGA properly notified the SSCA as the rightful adjacent riparian owner to the south of 98 Ocean Blvd., in early September, instead of the Southern Shores Realty Co. (SSR), c/o Frank Stone, which owns 96 Ocean Blvd., the SSCA would have learned about its development around Sept. 8.

And once the SSCA learned, the Town would have learned, too.

Instead, SAGA sent a CAMA-required notice, dated Sept. 6, 2018—one day after the Town Council voted to cancel the October meeting—to SSR, which did not accept delivery until Sept. 19.

The SSCA, which owns a beach access adjoining 98 Ocean Blvd., finally received notice from the Kill Devil Hills developer on Oct. 5, three days after the date of the Council’s canceled meeting.

How does a big developer, one with more than 10 years of experience on the Outer Banks, make that kind of mistake? Surely, its attorney, E. Crouse Gray Jr., who has 40 years of local real-estate experience, knows CAMA requirements and what constitutes adjacent property.

Likewise appalling, and flagrantly so, is the proposed elimination of one of the traditional work sessions between the Town Council and the Town staff for annual budget planning. These important sessions give the Town Council an opportunity to interact meaningfully with the Town Manager and Town Finance Officer in the preparation of the fiscal-year budget. These are times for probing questions. The sessions also give the public an opportunity to observe and participate in the budget process.

Reducing both the Town Council’s participation in, and the public’s access to, budget planning is yet another way in which the Town of Southern Shores, under Mayor Bennett, perpetuates a closed government. I honestly am shocked that Mayor Bennett and Town Manager Peter Rascoe seek to do this after the serious concern that has been repeatedly expressed by Town Councilmen Fred Newberry and Gary McDonald about budget planning to accommodate the new fire-station debt.

Councilman Newberry, in particular, has sought planning for the $333,551.96, annual debt, which will remain at this level for the first 10 years of the 25-year loan. He now has his answer: He will not be included.

 ZTA CREATING “OCEANFRONT OVERLAY DISTRICT” LAYS AN EGG

 At the Nov. 7 meeting on large houses, Councilman Conners made a motion, which was approved unanimously, to:

“direct Town staff to draft a proposed zoning text amendment to the existing Town Code, for Council’s review at its December meeting, proposing an oceanfront area residential overlay district to encompass all properties east of N.C. Hwy. 12 and those properties abutting the west side of N.C. Hwy. 12, as well as development standards for this overlay district . . . ”

Not only does the draft ZTA not define the “oceanfront residential overlay district” in this manner—only referring vaguely to “the oceanfront area of the Town”—it does not track all of the precise development standards that Mr. Conners enunciated in his motion.

I consider the failure to effectuate the motion, as made and approved, a breach of public trust. The draft does not reflect what the Town Council authorized. (See the footnote below, which reproduces Mr. Conners’ motion, verbatim.) It also does very little to address the problem of large high-occupancy houses.

The draft ZTA appears to create a residential district, abbreviated as “RSOF-1,” via an amendment to the Town Code that would create a new section, 36-209. But the draft only refers to RSOF-1 once, citing RS-1 in all other proposed subsections. (Code sections 36-209 through 36-238 are “reserved,” meaning, essentially, they haven’t been written yet.)

For example, a subsection (d) in the draft, which is titled “Dimensional Requirements,” reads as follows:

“The dimensional requirements and analysis of the RS-1 zoning district shall apply except the following requirements shall apply to all single-family dwellings:

“(1) Impervious pavement side yard (setback): 10 feet.”

Presumably, the phrase “to the RSOF-1 zoning district” should be inserted after the word, “apply”—an implication is sloppy drafting—but even assuming this, what is the intended result here? I’m confused. Would someone please write to me and explain it? What impervious pavement? And how do these 10 feet square with the standard side-yard setback of 15 feet?

Unlike Mr. Conners’s motion, the draft ZTA does not set forth regulations for setbacks, building height, and lot coverage of houses that have 4,000 square feet of enclosed living space or less—except the impervious pavement side-yard setback, which I don’t get. The section on “Dimensional Requirements” is also so poorly written that are contradictions within it.

Significant among the restrictions imposed upon single-family dwellings that are between 4,000 and 6,000 square feet are a maximum building height of 28 feet and a maximum allowable lot coverage of 25 percent—both of which were included in Mr. Conners’s motion. How the floor on this house-size category (4,000 square feet) is anything but arbitrary—as Mr. Conners acknowledged at the Nov. 7 meeting—I do not know.

After these regulations, the draft ZTA goes off in a new direction, one that was neither expressed in the original motion nor discussed. It requires all single-family homeowners, presumably in the RSOF-1 district, to conceal their refuse and recycling receptacles in a “fenced area hidden from view of the public, but accessible to users of the property.”

Excuse me?

What does “hiding” trashcans have to do with the public safety, health, and welfare?

I believe the Town exceeds its municipal authority with such a heavy-handed regulation. Not only must homeowners create fenced areas, but subsection (e) of the draft specifies that this “area” must be of a “sufficient size to enclose and contain the number of trash receptacles required by Town Code Sec. 26-6.”

What—no dictates on the aesthetics of the fences?

The regulations that really take the cake, however, are the ones that require landscaping buffers. I have to wonder where Big Brother lives in town. I know when he moved in.

Not only does the draft ZTA require rows of plantings, of a specified width, on property lines of single-family dwellings—presumably in the RSOF-1 district—it also prescribes the types of permissible plantings: “All plantings shall be of a species that is known to adapt to and survive in local conditions.”

So now the Town Attorney, the Town Council, the Town Manager, the Town Planning Director, whoever, are telling us what the vegetation in our yards should look like. Will homeowners have to submit their plant species choices to the plant police?

We’re talking about people’s homes here, folks, not buffer strips next to banks or other commercial buildings or in shopping-center parking lots. We’re also talking about sticking homeowners with a big landscaping bill. How biased and discriminatory.

The section on parking requirements does not vary from Mr. Conners’s motion, except to note that there is already a parking section in the Town Code: Sec. 36-163. Yes, and it’s rather extensive. It should have been the Town Attorney’s guide.

To address large houses through parking requirements, the Town Council has to amend Sec. 36-163(1)(a)(1), which specifies that three parking spaces are allotted “for each dwelling unit with up to eight-person septic capacity and one additional space for each additional two (2) persons of septic capacity . . . in excess of eight-person septic capacity up to 12-person septic capacity.” Over 12, the Code allows one additional space per person of septic capacity.

This is how SAGA counted up to 17 parking spaces: three spaces for up to eight people; two spaces for four people up to 12-person septic capacity, and one space per person for 12 and up to the house’s maximum septic capacity, which in SAGA’s case is 24.

Of course, the Town’s ordinance on off-street parking requirements assumes a maximum septic capacity of 14 persons. That was the law until Jan. 22, 2016.

I have a great idea: Scratch this cumbersome, intrusive, and regressive draft ZTA and draft two others: One that limits maximum house size in residential districts to 5,000 square feet (or less) and another that limits septic-system capacity to 14 persons. Mr. McDonald was on the right track. So was the late Glenn Wyder, who supported an occupancy limitation based on septic capacity.

PLANNING BOARD: The Town Planning Board will meet Dec. 17 at 5:30 p.m. in the Pitts Center. On the agenda is discussion of ZTA 18-09, which fine-tunes ZTA 18-07, the nonconformings lots ordinance that the Town Council approved, 4-1, in September. I discussed ZTA 18-09 in my blog, “Saga of an Architect,” 12/7/18. Vice-Chairperson Elizabeth Morey is expected to chair the meeting.

You may read the Dec. 11 Town Council meeting agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2018-12-11.pdf

The Dec. 11 meeting packet with the 2019 Council meeting schedule (Resolution 2018-12-01) and the draft oceanfront overlay ZTA is here:  https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2018-12-11.pdf.

Ann G. Sjoerdsma, 12/9/18

Footnote one: Councilman Jim Conners’s motion on Nov. 7:

“I move that Council direct Town staff to draft a proposed zoning text amendment to the existing Town Code, for Council’s review at its December meeting, proposing an oceanfront area residential overlay district to encompass all properties east of N.C. Hwy. 12 and those properties abutting the west side of N.C. Hwy. 12, as well as development standards for this overlay district that will include the following:

“1. Setbacks: side setbacks of 20 feet for structures up to 4,000 square feet (“SF”)

           side setbacks of 25 feet for structures over 4,000 SF and not greater than   6,000 SF

           front setback of 25 feet for structures up to 4,000 SF

front setback of 50 feet for structures over 4,000 SF and no greater than 6,000 SF

           rear setback of 25 feet for all structures or as established by CAMA regulations

           impervious paving setback of 10 feet from side property line for structures up to 4000 SF

                    impervious paving setback of 15 feet from side property line for structures

         over 4,000 SF and no greater than 6,000 SF

“2.  Building height:  35 feet for structures up to 4,000 SF

                                  28 feet for structures over 4,000 SF and no greater than 6,000 SF

“3.  Lot coverage: 30 percent for structures up to 4,000 SF

                   25 percent for structures over 4,000 SF and no greater than 6,000 SF

“4.  Refuse/recycling: a number recommended by Town staff of trash receptacles required for all structures up to 4,000 SF; a number recommended by Town staff of trash receptacles required for all structures over 4000 SF and no greater than 6,000 SF.

“5. Landscape buffer: 10 foot-wide single row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) for structures up to 4,000 SF along the sides property lines; 15 foot-wide, double-staggered row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) for structures over 4,000 SF and no greater than 6,000 SF along the side property lines; 10-foot-wide single row of plantings (type to be either installed or preserved and selected from a list dictated by the Ordinance) along the front property line for all structures no greater than 6,000 SF.

“6. Parking: all parking spaces to be 10-feet-by-20-feet; all parking spaces to be adjacent to a two-way, 18-foot-wide (minimum) drive aisle; no stacked parking allowed.”

Town Councilman and architect Christopher Nason designed the large red-roofed white house at 62 Ocean Blvd., in Southern Shores where a historic flattop once sat.

Councilman Nason also designed the 10-bedroom, Mediterranean-style house undergoing construction at 64A Ocean Blvd. This property was once part of the parcel that SAGA Construction & Development sought in 2016 to develop as a 16-bedroom wedding-destination/event house.

Further, Mr. Nason is the architect for a proposed house to be built between these two villas on a nonconforming 50-foot-wide lot owned by the red-roof homeowners, Steven D. Love and his wife, Kathleen M. Gorman (“Love/Gorman”). Love/Gorman bought this lot in January 2016 from SAGA, after the Town Council disrupted the developer’s plans by enacting a maximum-house-size ordinance, which Mr. Nason opposed.

All of this information is public record, but it has never been public knowledge, even though the three properties are in a heavily scrutinized, contested, and highly visible area of the oceanfront. I propose in this blog to shed some light on the area.

When and how did Mr. Nason, who is owner of Beacon Architecture & Design in Kill Devil Hills, become engaged in these projects?

Did the Town Councilman, who is in the last year of a four-year term, cast votes on proposed town zoning-ordinance changes that directly affected these projects? If so, should he have?

On Nov. 17, 2018, I reported that SAGA approached Councilman Nason to design its two proposed 12-bedroom, 17-parking-space mega-houses at 98 and 134 Ocean Blvd. at least three months before the Southern Shores Civic Assn. announced the 98 Ocean Blvd. project at its Oct. 8 general meeting.

My report last month was a followup on Mr. Nason’s disclosure at the Nov. 7 special meeting about large houses that SAGA had asked him to design the structures. The Councilman offered this public glimpse into his private business dealings because two Chicahauk homeowners had pointedly questioned his involvement.

In November, I asked you: Do Mr. Nason’s knowledge of the SAGA projects and the Kill Devil Hills developer’s overtures toward him matter?

Today, I will give more facts that I have either uncovered or confirmed, largely by perusing Town permit files, and I will answer that question, directly: Yes. Mr. Nason’s business associations, as well as the business associations of other Southern Shores public officials, elected or appointed, matter. Absolutely, they matter.

Southern Shores property owners deserve to be represented by a Town councilman who makes neutral and objective decisions about town business, especially about its growth and development, based on what is in the public interest, not on what is of actual or potential benefit to him.

As a Town Council member, Mr. Nason is accountable to the public and owes the public explanations about his business dealings when they are pertinent to the public interest.

The following account traces Mr. Nason’s footprints on the oceanfront at 62, 64, and 64A Ocean Blvd.

62 OCEAN BLVD.—NEXT DOOR TO SAGA’S PROPOSED EVENT HOUSE

Architect Chris Nason and Love/Gorman became acquainted before Mr. Nason was sworn into office, and probably before his election to the Southern Shores Town Council.

Love/Gorman purchased 62 Ocean Blvd., the site of “Dunne’s Dune,” a vintage white flattop, on July 2, 2015. Ironically, Mr. Nason measured the flattop, inside and out, as part of his community-service effort to document the historic cement-block cottages, before he designed the $1.5 million house that replaced it.

The Love/Gorman property was then next door to SAGA’s proposed site for its 16-bedroom wedding-destination house at 64 Ocean Blvd.

According to preliminary drawings of the “Love residence” in the Town permit files, “client review” of Mr. Nason’s plans occurred Nov. 13 and Dec. 7, 2015.

Mr. Nason was elected to the Town Council on Nov. 3 and sworn into office on Dec. 1, 2015.

Toward the end of its Dec. 1 meeting, the Town Council went into closed session to discuss with Town Attorney Ben Gallop N.C. Session Law 2015-86, also known as SB 25, and its consequences for Southern Shores. The Council was interested in preventing SAGA’s wedding-destination house and large, high-density structures, generally.

SB 25 amended the North Carolina statute on municipal powers so as to deprive the Town of the power to regulate the number and types of rooms in a house. From October 2001 until SB 25 took effect, the Town controlled occupancy by limiting the number of bedrooms in a single-family dwelling to seven or the septic-system capacity to 14 people.

Upon return to open session, Mr. Nason disclosed that he was designing a seven-bedroom home for “Steve Love and Katie Gorman.” He offered to “recuse myself from any future votes regarding this matter,” if the Council thought it was appropriate for him to do so.

This was commendable on Mr. Nason’s part. I also believe it was necessary.

Mr. Gallop asked Mr. Nason some questions about his relationship with Love/Gorman and his communication with his clients about his role on the Council. Mr. Gallop then said that, if no one on the Council had any objection, he did not believe Mr. Nason had a direct financial interest that would constitute a conflict that mandated his recusal.

Neither Mayor Tom Bennett nor the other three Council members raised an objection, although new Councilman Gary McDonald can be heard on the meeting videotape saying he has no objection “at this time.”

I believe someone should have objected, or, at least, reserved objection, subject to further investigation. As adjacent landowners, Mr. Nason’s clients certainly had a potential stake in any action that the Council might take that would affect the development at 64 Ocean Blvd.

But this was the first day of Councilmen Nason’s, McDonald’s, and Fred Newberry’s terms in office, and the mood was convivial. The meeting also was almost three hours long when Mr. Nason made his disclosure.

At the Town Council’s Dec. 18, 2015 meeting, Mr. Gallop presented three draft zoning text amendments intended to address large residential structures, especially SAGA’s proposed 16-bedroom structure. The ZTAs were referred to the Planning Board for consideration at its Jan. 21, 2016 session.

According to the preliminary drawings of the Love residence, Mr. Nason designed a seven-bedroom, seven-bath, two-story house with a loft, whose enclosed living space was 5123 square feet. His early plans also called for a detached cabana, a 560-square-foot swimming pool with a large concrete patio around it, and extensive house decking.

Had the Town Council sought to enact on Jan. 22, 2016, an ordinance limiting maximum house size to 5000 square feet, as Councilman McDonald has publicly said he wanted to do, Mr. Nason could not have built such a large house on 62 Ocean Blvd.

But the maximum-size zoning text amendment (ZTA 16-03) that Town Attorney Ben Gallop presented to the Council for consideration that January limited the maximum to 6,000 square feet, not 5,000 square feet, and Councilman McDonald did not make a motion to amend it.

Also under consideration was a ZTA (16-02) prepared by Mr. Gallop that would have limited septic-system capacity in residential structures to 14 people. ZTA 18-02 would have prevented the current controversy over SAGA’s proposed 12-bedroom structures, each of which has a proposed septic capacity of 24 people.

It also would have curbed the trend in Southern Shores to build houses with nine or 10 bedrooms, such as Mr. Nason’s Mediterranean-style house at what is now 64A Ocean Blvd., and to add bedrooms to preexisting houses.

The Planning Board recommended adoption of ZTA 16-02, but Mr. Gallop discouraged it because of concerns over its enforceability. I attended the Jan. 22 meeting and do not recall any Council members advocating for ZTA 16-02.

Unfortunately, there is no videotape of the hearing online, only a recording of minutes, which are by nature subjective. Mr. Nason voted against the maximum-house-size ZTA 16-03, which passed 3-2. No motion was made in support of ZTA 16-02.

SAGA SELLS OFF 64 OCEAN BLVD. AS A 50-FOOT-WIDE LOT . . .

A mere three days after the Town Council enacted the 6000-square-foot cap on house size—on Jan. 25, 2016, according to Dare County records—Steven Love and Kathleen Gorman bought a 50-foot-wide lot adjacent to 62 Ocean Blvd. that was part of SAGA’s vacant property at 64 Ocean Blvd.

The Southern Shores Town Code specifies a minimum lot width for development of 100 feet, so the lot purchased by Love/Gorman was considered “nonconforming,” unless it was “recombined” with their 100-foot-wide, two-lot parcel at 62 Ocean Blvd., to make the total width 150 feet.

It’s safe to assume that the $620,000 sale of this nonconforming lot was in the works before Jan. 22, 2016. Comments made during a Town Board of Adjustment variance hearing held four months later for a variance on the 50-foot-wide lot make clear that Mr. Nason’s clients had a preexisting relationship with the seller. (See page 5 in https://www.southernshores-nc.gov/wp-content/uploads/2018/07/5-16-16-PB-Mtg.pdf.)

The seller was the limited liability corporation that SAGA set up as the owner of 64 Ocean Blvd.: Nags Head Freehold, LLC. Prem Gupta, who is currently SAGA’s chief financial officer, signed the deed as manager of Nags Head Freehold, LLC.

SAGA’s practice of setting up limited liability corporations as owners of its properties obscures its own involvement in real estate deals, but the LLC principals are always traceable. (The LLCs clutter up a blog post, however.)

Nags Head Freehold LLC acquired 64 Ocean Blvd. by gift, dated June 16, 2015, from 64 Ocean Blvd. LLC, whose manager was Sumit Gupta, SAGA’s current chief executive officer, according to the corporation’s website.

The nonconforming Love/Gorman 50-foot-wide lot became known as 64 Ocean Blvd. On May 16, 2016, the Town Planning Board, sitting as the Board of Adjustment, unanimously granted Love/Gorman a side-yard-setback variance on the lot of 12 feet. This variance was the first of a number of such side-yard-setback variances granted by the Board of Adjustment to owners of nonconforming lots before the Town Council stepped in to prevent the creation and (re)development of 50-foot-wide building lots in town. (See below, ZTA 18-07.)

According to the minutes of the Love/Gorman variance hearing (there is no videotape), the owners’ general contractor, Allan Hutten, said, as paraphrased by the notetaker:

“The Love family bought 62 Ocean Blvd. to build a seven bedroom oceanfront family house. . . . SAGA was willing to sell the 50 foot lot (64 Ocean Blvd.) and the Loves bought it. It didn’t make sense to add the 50 foot lot to what they already had because for what they paid it would not reflect in the overall property value if combined. Now the Loves are in a position to try and make the best decision. They would like to have a structure next to them that would satisfy them, be aesthetically pleasing to the community and also maybe get some return if they needed to rent.”

When asked by Board Chairperson Sam Williams what he meant by the phrase, “maximizing value,” Mr. Hutton replied that “if you added that 50 foot lot to the Loves’ other adjoining parcel it would not add much value in contrast to what they paid for it.”

The land at 62 Ocean Blvd. was then vacant, the Dunne flattop having been demolished.

The fact remains that Mr. Love and Ms. Gorman bought the 50-foot-wide lot with their eyes wide open, after considerable controversy in town over SAGA’s proposed wedding house. I believe it was incumbent upon them to do their due diligence regarding the development of nonconforming lots in Southern Shores.

I also believe it is arguable that after Love/Gorman razed “Dunne’s Dune”—the demolition permit was issued Jan. 28, 2016—and both 62 and 64 Ocean Blvd. were vacant, the then-Town Code ordinance on nonconforming lots required the properties to be treated as a single lot. If the then-Town Code is interpreted as I interpret it, then the variance was improperly granted.

The Town Attorney and Town Planner Wes Haskett did not agree, and a variance from the Town-mandated 15-foot side-yard setback was approved.

. . . AND AN 87 ½-FOOT-WIDE LOT

 The remaining 87 ½-foot-wide parcel of land owned by SAGA was sold by 64 Ocean Blvd., LLC, to 64A Ocean Blvd., LLC, on July 19, 2016, for $900,000.

Hence, the Mediterranean-style 10-bedroom house that Councilman Nason designed is being built on 64A Ocean Blvd.

Please don’t ask me how the principals of 64A Ocean Blvd.—who are ophthalmologist Dr. J. Carey Pate and his optometrist wife, Rena Pate, of Raleigh—managed to develop their nonconforming lot or how they made Mr. Nason’s acquaintance.

I know this much: The 64A Ocean Blvd. property was not offered for sale on the multi-listing service. It was a private sale.

According to Town Planning Dept. files for 64A Ocean Blvd., Mr. Nason had his preliminary drawings done by March 14, 2017. He indicated in his plans that his clients had reviewed his work twice in November 2016 and three times in December 2016.

The “Pate Residence,” as Mr. Nason refers to this $2 million house, purportedly consists of 5,852 square feet of enclosed living space, 1,044 square feet of unheated living space on the first floor, and 847 square feet of stairs.

Originally designed with seven bedrooms, Mr. Nason’s final building drafts of the house on file show 10 bedrooms.

Should Mr. Nason have brought this to light during the discussion at the Nov. 7 special meeting about SAGA’s proposed 12-bedroom houses?

DEVELOPING THE 50-FOOT-WIDE 64 OCEAN BLVD.

On July 5, 2018, five days before the Town Council was expected to vote on the zoning text amendment (ZTA 18-07) to curtail the development of nonconforming lots, Mr. Love and Ms. Gorman transferred ownership of 64 Ocean Blvd. to their limited liability corporation, For the Love of Pete, LLC.

At no time during the extended discussion about ZTA 18-07, which the Town Council tabled July 10, 2018, and referred to the Planning Board, did Councilman Nason indicate that he had 64 Ocean Blvd. on his drawing table.

The Beacon reported exhaustively about consideration of the nonconforming lots ordinance, which was filed by Town staff on April 20 and first taken up by the Planning Board on May 21. Mr. Nason never mentioned his relationship with Love/Gorman, nor did he ever attend a Planning Board meeting when the ZTA was discussed.

During the Town Council’s first reading of ZTA 18-07 on June 5, however, Councilman Nason said he had “no problem” with developing 50-foot-wide lots. He voted with Mayor Tom Bennett against approving the amendment.

The Town Council finally enacted ZTA 18-07 on Sept. 5, 2018, after the Planning Board unanimously recommended its adoption. The Council voted, 4-1, to pass ZTA 18-07, with the understanding that the ZTA would return to the Planning Board for further “refinements,” as the Mayor called anticipated fine-tuning of the amendment’s language and exceptions to its operation.

Mr. Nason was the sole dissenter. He offered no disclosures, but this time there was a videotape. I recall his objections as being vague.

According to the meeting video, Councilman Nason said he was “torn” over supporting ZTA 18-07 and called it “a very imperfect solution.”

Despite the understanding that the Planning Board would be shoring up ZTA 18-07, he characterized the amendment as “coming at [the problem] with a hammer instead of a scalpel.” But he didn’t say why.

At no time during the nearly four months after the Planning Board first considered ZTA 18-07 did Councilman Nason publicly offer any disclosures about his work with Love/Gorman nor did he offer suggestions for fixing the ZTA. On Sept. 5, he said: “I still feel like we didn’t quite get there.”

It is clear from site plans in Town permit files that Mr. Nason had been working on the 64 Ocean Blvd. project in early June 2018. The timing of the Love/Gorman ownership transfer—five days before a presumably critical vote in the Town Council about nonconforming lots—is troubling. Mr. Love and Ms. Gorman live in Mechanicsville, Va., not Southern Shores, and their LLC is “headquartered” in their residence.

The two-story house that Mr. Nason designed for Love/Gorman/FortheLoveofPeteLLC consists of 3606 square feet of enclosed living space and 980 square feet of “unconditioned”/unheated space, according to drawing plans on file with the Town Planning Dept. It has five bedrooms, each with its own bathroom, parking for five vehicles, an elevator, and the seemingly usual amenities of an outdoor cabana and swimming pool.

Town Permit Officer Dabni Shelton is currently reviewing the CAMA permit application filed by For the Love of Pete, LLC for the property. When I spoke with her earlier this week, I questioned whether 64 Ocean Blvd. could be separately developed.

ZTA 18-07, RECOMBINATION OF LOTS AND FINE-TUNING

As I read ZTA 18-07, which is now part of the Town Code of Ordinances as Section 36-132(a)(1)-(4), For the Love of Pete LLC cannot build on 64 Ocean Blvd. It must “recombine” the 50-foot-wide lot with 62 Ocean Blvd. into a single lot.

But, wait a minute, you say, Love/Gorman received a variance on the property. Doesn’t that mean 64 Ocean Blvd. is “grandfathered in”—for lack of a better term—to the preexisting Town Code ordinance on recombination, and, therefore, exempt from the operation of the new Sec. 36-132(a)(2)(a)?

Good question.

As I understand it, variances run with the land, so For the Love of Pete, LLC, does not have to apply for its own variance.

But what about the fact that the Town land-use law changed in September? Didn’t Love/Gorman lose the benefit of the variance by delaying? I honestly don’t know.

On Oct. 29, 2018, Town staff filed a new ZTA (18-09) intended to fine-tune and carve out exceptions to ZTA 18-07, actions that were contemplated in September when the Town Council approved the ZTA. (For ZTA 18-09, see https://www.southernshores-nc.gov/wp-content/uploads/2018/12/ZTA-18-09-Nonconforming-Lots.pdf.)

As I read ZTA 18-09, which will be heard before the Planning Board on Dec. 17, it does not help Love/Gorman/FortheLoveofPete unless they want to sell 64 Ocean Blvd.

ZTA 18-09 contains proposed new language that would allow property owners who own a nonconforming single lot adjacent to land that they also own and on which a single-family dwelling exists to sell the nonconforming lot, without recombining it.

For those of you who have followed the nonconforming lots story, this is the Richard White exception. Mr. White owns a 50-foot-wide former paper road at 85A Ocean Blvd., adjacent to his rental cottage at 85 Ocean Blvd.

ZTA 18-09 also makes clear in a manner that ZTA 18-07 did not that a single family dwelling may not be erected on a currently nonconforming single lot if the lot is under the “same ownership as any adjacent lot.” The term “same ownership” covers the situation that exists with Love/Gorman and their LLC.

When ZTA 18-09 makes its way to the Town Council in January, will Councilman/architect Chris Nason recuse himself?

I conclude this lengthy “saga” of an architect/elected official’s dealings with sensitive land-use issues with a statement of principle:

Property owners are entitled to a Town Council member who upholds the integrity and independence of his office, avoids impropriety and the appearance of impropriety in the exercise of his official duties, and minimizes the risk of conflict of his private dealings with his official duties—all of which Mr. Nason agreed to do when he signed the Town Council’s Code of Ethics on Nov. 16, 2015.

The public deserves full disclosure, and nothing less. Mr. Nason honored that on Dec. 1, 2015, the first day of his four-year term. I await his public accounting on his involvement with 64 Ocean Blvd. and 64A Ocean Blvd. It matters.

Ann G. Sjoerdsma, Dec. 7, 2018