12/31/18: THE DEFINITION OF A ‘SINGLE-FAMILY DWELLING’ IN SOUTHERN SHORES: Did It Change in January 2016 Without the Town Council’s Awareness? Why Did It Change?

Biltmore,large
The 35-bedroom Biltmore house in Asheville was built toward the end of the Gilded Age, a term coined by Mark Twain to describe a 19th-century era in the United States characterized by extraordinary wealth and political corruption.

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 19th 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

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s