12/20/18: PLANNING BOARD VOTES TO AMEND AMENDMENT TO NONCONFORMING LOTS LAW; DISCUSSES OPTIONS FOR NEW ‘LARGE HOUSE’ ORDINANCE (SEPTIC-CAPACITY LIMIT HIGH ON LIST); & LISTENS TO ATTORNEY STARKEY SHARP SLAM TOWN ON BEHALF OF CLIENT STEVEN LOVE

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PLEASE NOTE: The Town Planning Board will continue its discussions about potential regulations to control “high-occupancy large houses” in town in a special meeting on Wed., Jan. 2, at 5:30 p.m. in the Pitts Center.

For details, please see https://www.southernshores-nc.gov/southern-shores-planning-board-hold-special-meeting-january-2-2019/.

The Town Planning Board continued to express confusion over the new ordinance on nonconforming lots at its regular monthly meeting Monday and also debated the merits and risks of various options for controlling high-occupancy large houses in Southern Shores, with a restriction on septic capacity receiving a strong endorsement from Board member Andy Ward.

The Planning Board is looking again at nonconforming lots, which are typically 50-foot-wide lots, because Town Attorney Ben Gallop prepared a zoning text amendment (“ZTA”) at the Board’s direction, that carves out an exception to the ordinance. After a lengthy discussion, the Board voted unanimously to carve out an exception to the exception. (See below.)

Monday’s meeting was the Board’s first since Chairperson Glenn Wyder’s sudden death on Nov. 25. Vice-Chairperson Elizabeth Morey conducted the meeting, and second Board alternate Michael Basilone assumed the vacant seat.

In an unusual public comment, local attorney Starkey Sharp bombastically argued to the Board, on behalf of his client, Steven Love, who owns a nonconforming lot at 64 Ocean Blvd., that the Town has created “a big mess” and “a big mistake” with its new ordinance.

Mr. Sharp accused the Town of unfairly delaying Mr. Love’s application for a CAMA permit to build on his 50-foot-wide lot. According to Town Permit Officer Dabni Shelton, Mr. Love’s application is “under review.”

Mr. Sharp even went so far as to speculatively link obscene graffiti that was spray-painted on Mr. Love’s house at 62 Ocean Blvd. with the controversy in town over nonconforming lots.

As The Beacon previously reported, Town Councilman Christopher Nason has designed a five-bedroom, 3,600-plus square-foot house that Mr. Love would like to build on the site. The new nonconforming lots ordinance is an obstacle to Mr. Love’s plans; so, too, would be a change in the maximum house size for lots that are smaller in width than the Town Code-required 100 feet, an idea that Planning Board member David Neal brought up Monday in the context of regulating high-occupancy houses.

If you’ve read enough about nonconforming lots, I would suggest that you skip down to the section in this post titled “Potential Regulations to Stop High-Occupancy Large Houses.” If you’re up for more discussion of 50-footers, read on.

EXCEPTIONS TO THE NEW NONCONFORMING LOTS ORDINANCE: ONCE AGAIN, THE LOVE PROPERTY AT 64 OCEAN BLVD. IS IN THE SPOTLIGHT

On Sept. 5, the Town Council voted 4-1 to approve ZTA 18-07, which sought to limit the number of building lots in town that are fewer feet in width than the Code-standard 100 feet, with the understanding that the new regulation would return to the Planning Board for what Mayor Tom Bennett characterized as “refinements.”

What the Mayor actually meant by that is that the Town Council decided that certain property owners were unfairly harmed by ZTA 18-07 and should be protected from its coverage through an exception. (The Beacon has extensively covered ZTA 18-07 in multiple blogs. For reporting on the Sept. 5 meeting, see the 9/6/18 blog.)

ZTA 18-09, which was before the Planning Board on Monday, would allow property owners to sell or develop a nonconforming lot that is located adjacent to other land they own, provided that the adjacent land is made up of no more than two nonconforming lots and a single-family dwelling exists on it. Without this exception, a property owner would have to “recombine” the 50-foot-wide lot that does not have a dwelling on it—which Mr. Gallop called a “satellite” lot—with the two other developed nonconforming lots into a single lot, typically a 150-foot-wide lot.

If, however, the adjacent land under the single-family dwelling has already been “recombined”—meaning that the separately platted nonconforming lots (typically 50-footers) have been legally merged into one conforming lot—then the owner cannot sell or develop the satellite lot.

The reason for this distinction, as Mr. Gallop made clear in his presentation, is that the Town is “trying to minimize nonconformities,” and recombination of lots is now a standard requirement in the construction of new houses. A property owner who is building a new house has the present ability to build on all of the nonconforming lots, i.e., on a 150-foot-wide tract of land.

I call ZTA 18-09 the White exception. It’s also the Ausband exception.

Richard M. White, who attended the Planning Board meeting, bought the land at 85 Ocean Blvd. in the 1990s and built a rental house on it in 1999. The property consists of two uncombined 50-foot-wide lots. Fifteen years later, Mr. White bought an adjoining 50-foot-wide lot, which was a former paper road created by the development company; this property is now known as 85A Ocean Blvd. Mr. White would like to build on the nonconforming, undeveloped lot, but ZTA 18-07 prohibits him from doing so.

In the Ausband case, the property owner owns a 1981 beach box, which sits on two nonconforming lots on Duck Road. In 2017, she bought a nonconforming lot on Trout Run that is adjacent to the Duck Road property, but perpendicular. Like Mr. White, she cannot build on it unless the new ordinance on nonconforming lots is amended.

Application of the ordinance to a given situation can seem confusing but The Beacon believes that if you read the ordinance carefully, you can master it. The language is more confusing than the underlying concepts.

Nonetheless, Mr. Sharp, who is a founding member of the Kitty Hawk law firm, Sharp, Graham, Baker & Varnell, LLP, lambasted the Town for creating a “big mess” and accused the Planning Board of “exposing the Town to litigation and liability.”

There may be no more audacious act by an attorney than to use public comment at a public meeting to threaten public officials with a lawsuit.

Only Councilman Nason voted against ZTA 18-07’s adoption and subsequent fine-tuning on Sept. 5, saying that it takes a sledgehammer approach to the development problems it addresses. Mr. Sharp brought his sledgehammer with him Monday night.

In the process of swinging it, the well-known local lawyer, who has been practicing for more than 40 years, confirmed some facts that The Beacon, heretofore, could only presume, and not prove. One is that Mr. Love did indeed transfer ownership of 64 Ocean Blvd. to a limited liability corporation five days before an expected Town Council vote on ZTA 18-07 BECAUSE of the upcoming vote. Mr. Sharp said this. His client’s ownership transfer was not a coincidence.

This transfer did Mr. Love no good, however, because, as Mr. Gallop pointed out—and as Mr. Sharp would have known if he then represented Mr. Love and had read ZTA 18-07—a property owner cannot create separate ownership on an adjacent lot by setting up a limited liability corporation in which he/she is a member.

(FULL DISCLOSURE: I know Starkey Sharp, or, at least, I did. He performed a lot of real-estate transaction work for my parents in the 1970s and 1980s, and I hired him to prepare my first will many years ago. While doing research on restrictive covenants in Southern Shores, I repeatedly came upon Mr. Sharp’s name in property deeds. I would say that it appears on the majority of the real-estate deeds in our town.)

THE LOVE SITUATION EXPLAINED, AGAIN

The problem Mr. Love has at 64 Ocean Blvd. is that before he built the red-roofed white house that Mr. Nason designed at 62 Blvd., he had to recombine the underlying two nonconforming lots. Mr. Love, therefore, cannot avail himself of the White exception.

You may recall from past Beacon blogs that Mr. Love bought the 50-foot-wide lot at 64 Ocean Blvd. from SAGA on Jan. 25, 2016, three days after the Town Council disrupted the Kill Devil Hills-based developer’s plans to build a wedding-destination house on the site by enacting a 6,000-square-foot, maximum-house-size ordinance, which Mr. Nason opposed. Mr. Love was already then Mr. Nason’s client, as the newly elected councilman informed the Town Council on Dec. 1, 2015.

Mr. Sharp claimed on Monday that his client had bought the lot as a “buffer” from the “monster house” that was going to be built next door.

Comments made during a Town Board of Adjustment variance hearing held four months later for a variance on the 50-foot-wide lot suggest otherwise. They also make clear that Mr. Love had a pre-Jan. 25, 2016 relationship with SAGA, who we now know for a fact was a client of Mr. Nason’s. (See page 5 in https://www.southernshores-nc.gov/wp-content/uploads/2018/07/5-16-16-PB-Mtg.pdf.)

The Beacon has already exhaustively detailed what occurred on this tract of the Southern Shores oceanfront, but it’s worth recalling some of the facts because the Planning Board voted unanimously to amend ZTA 18-09 by adding a Love exception.

Mr. Sharp’s grandstanding served its purpose. The Planning Board decided that it was unfair to give Mr. White an exception, but not Mr. Love. The Board unanimously moved to amend ZTA-09 to permit the sale or development of a nonconforming lot that is next to a conforming lot that is no greater than 100 feet wide (provided the ownership is the same). Mr. Gallop will revise the ZTA.

The Beacon has to wonder if the members realized that, unlike Mr. White, Mr. Love had a vacant 150-foot-wide lot that he could have developed. Unlike Mr. White, Mr. Love himself created the nonconformity.

On May 16, 2016, the Town Planning Board, sitting as the Board of Adjustment, unanimously granted Mr. Love a side-yard-setback variance on the 50-foot-wide 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 such lots via ZTA 18-07.

Planning Board member David Neal recalled this variance as “opening a can of worms which we did not want to allow.” In past conversations with me, Mr. Neal has described the nonconforming lot at 64 Ocean Blvd. just as Mr. Sharp did, as a “buffer.” That was his understanding.

According to the minutes of the variance hearing (there is no videotape), Mr. Love’s general contractor, Allan Hutton, said, in explaining his client’s position:

“It didn’t make sense to add the 50 foot lot to what [Mr. Love and his wife] 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 Planning 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 vintage flattop on the site having been demolished.

From the issuing of the variance on May 16, 2016, until Sept. 5, 2018, when the Town Council approved ZTA 18-07, Mr. Gallop pointed out, Mr. Love “had ample opportunity to sell the property or to get a building permit,” and, thus, “to have avoided the issue” presented in the nonconforming lots ordinance, but he did not.

Whether it’s called a White exception, or an Ausband exception, or a Love exception, the Beacon does not believe ZTA 18-09 deserves support. The Town’s policy is to limit the creation of nonconforming lots, not to enable them.

The Beacon also believes that Mr. Nason acted unethically in voting on the nonconforming lots measure on Sept. 5 and in participating/voting during every session of the Town Council in which ZTA 18-07 was discussed. 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, if not before. But he never disclosed his financial interest.

Mr. Nason should have recused himself. The outcome of the vote on ZTA 18-07 was “reasonably likely to have a direct, substantial, and readily identifiable financial impact” on Mr. Nason, as the State conflict-of-interest statute requires. If Mr. Love is legally prohibited from building on 64 Ocean Blvd., then Mr. Nason loses his business.

Certainly when ZTA 18-09 reaches the Town Council, after the Planning Board acts on it, Mr. Nason should play no part in its disposition.

POTENTIAL REGULATIONS TO STOP HIGH-OCCUPANCY LARGE HOUSES: STRONG PUSH FOR SEPTIC-CAPACITY LIMITATION

Whether you characterize the large-house “problem” as a problem of population density or of residential occupancy, it boils down to this: 12-bedroom houses like the one SAGA is hurriedly building at 98 Ocean Blvd. are rental machines that do not conform to the Southern Shores land-use plan nor do they perpetuate and preserve the character and appeal of the town.

“How do you call a 12-bedroom, 6,000-square-foot house a single-family home?” asked Mr. Neal, who is a builder.

Planning Board member Andy Ward adamantly supported limiting density and occupancy in town by regulating septic capacity. He argued this point at length—for what Ms. Morey described as 45 minutes, but didn’t seem that long to me—with Mr. Gallop, who disagreed with Mr. Ward’s risk assessment.

Mr. Ward has consulted with his cousin, David Owens, an attorney and N.C. land-use expert who is a professor in the University of North Carolina School of Government. (See The Beacon’s 11/13/18 blog for background.)

According to Mr. Ward, Professor Owens sees less risk of the Town subjecting itself to liability for exceeding its authority, if it were to control occupancy through septic capacity, than Mr. Gallop does. (The principal legal argument against regulating septic capacity is that it’s the same as restricting the number of bedrooms, which is no longer allowed by the State, because septic capacity is based on the number of bedrooms.)

The UNC public law and government professor has provided language to be used in a new zoning text amendment to limit high-occupancy houses. You will find it here: https://www.southernshores-nc.gov/wp-content/uploads/2018/12/Owens-High-occupancy-limit-2-1.pdf.

The Owens-inspired ZTA would establish a maximum overnight occupancy for “transient occupancy,” which it defines as occupancy in a residence for less than 30 days, of 14 people. It then specifies that all single-family residences in the RS-1 district shall have a maximum septic capacity of no more than 14 overnight occupants.

(I wish Mr. Ward had read Professor Owens’s proposed language into the record. Because of my recent travel schedule, I was unable to look at any of the Planning Board’s materials before the meeting.)

Mr. Ward was a strong proponent in January 2016 of using septic capacity, rather than house size, to control residential occupancy. He poignantly observed at Monday’s meeting that had the Town left in place its then-septic-capacity limits when it passed the maximum-house-size ordinance, SAGA would not be building now on 98 Ocean Blvd.

Now, as opposed to three years ago, Mr. Ward said, “I’m more inclined to stick by my guns and stay on my soapbox, and it’s septic. . . . I’m going to stick with David Owens and his recommendation and language.”

Beside the septic limit, other regulatory options are on the table, including the overlay-district idea propounded by Councilman Jim Conners in a lengthy motion passed at the Nov. 7 special meeting, which is the subject of proposed ZTA 18-10. The Planning Board has the authority to consider all options. None of the members expressed support for ZTA 18-10.

Ms. Morey described the overlay-district approach as “regulatory overreach” and said that it “will not necessarily arrive at the resolution that we want.”

“I don’t think the overlay district is one I’d like to pursue,” she concluded.

Planning Board member Joe McGraw, who said only a few words during the two-hour meeting, agreed that he’d rather “go after it in a different way.”

Mr. Neal expressed interest in exploring a regulation of density/occupancy by the use of the dwelling. Mr. Neal’s son and fellow builder Matt Neal (of Neal Contracting), who is 2018 president of the Outer Banks Home Builders Assn., has presented, with support from builder Mark Martin (Sandmark), an option that defines a high-occupancy dwelling as one with more than 14 persons and then prohibits such dwellings, when they’re used as short-term rentals, in the RS-1 residential district. (See The Beacon’s 12/13/18 blog for details.)

Another option that has not been discussed much is a reduction of the maximum house size to 5,000 square feet or even less, and a reduction of the maximum house size for nonconforming lots.

The various options now on the table may be accessed through links at https://www.southernshores-nc.gov/southern-shores-planning-board-hold-special-meeting-january-2-2019/.

I will further discuss any and/or all options, depending on the outcome of the Planning Board’s Jan. 2 special meeting. Please try to attend. This lawmaking is very important for the future of Southern Shores, and it starts with the Planning Board.

Ann G. Sjoerdsma, 12/20/18

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