1/30/19: PUBLIC FORUM TOMORROW: THE PROPOSED TOWN CODE REWRITE: Big, Bloated, and Not User-Friendly; The Beacon Recommends Further Independent Review

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During an interview that The Beacon had last June with then-Town Planning Board member Elizabeth Morey, she said that she thought Town Code update/rewrite consultant, Chad Meadows, had submitted an “unacceptable work-product.”

And she told me I could quote her on that.

Until today, I have had no reason to quote Ms. Morey, who, as of Jan. 22, is the chairperson of the Planning Board. Today, however, I have attempted to access Mr. Meadows’s December 2018 “public hearing draft” of the proposed new Southern Shores Town Code of Ordinances, and I could not help but recall Ms. Morey’s assessment.

This 381-page document is big and bloated and, despite Mr. Meadows’s express goal of making the Town Code more “user-friendly,” it is decidedly unfriendly. (In my opinion.)

Mr. Meadows, who is owner of CodeWright Planners, LLC, of Durham, will be presenting the draft Town Code at a public forum tomorrow, 5:30 p.m. to 7 p.m., in the Pitts Center. (See The Beacon, 1/28/19.)

The new Town Code does not make a good first impression.

I am not a fan of its page layout—the font size, “navigational aids,” heading text, etc., that Mr. Meadows refers to as “technical changes” and justifies as “modern.” I think they, as well as illustrations and graphics (for example, flow charts, summary tables), just get in the way of important business. They make the Town Code of Ordinances appear busy, distracting, and even frivolous. I prefer well-chosen words.

Style aside, however, The Beacon believes that, at the least, Mr. Meadows should prepare a summary of all of the substantive changes that he integrated into the current Town Code. What key regulations, or sections thereof, were deleted, revised, added?

Mr. Meadows knows the issues of most concern to property owners, who are the ultimate “stakeholders” in this project. He should address them directly.

As the draft is now, you have to go painstakingly through it, finding the new number for the chapter you’re interested in and then perusing a lot of verbiage, much of it unnecessary, to find what you’re looking for.

While doing such perusing today, my thought was one that Ms. Morey expressed more than six months ago: “The consultant needs to do a better job.”

MORE THAN THREE YEARS

Mr. Meadows started the “Town Code Update Project” in September 2015, over the protests of many resident homeowners, 44 of whom signed and submitted a letter to the Mayor and Town Council on Jan. 4, 2016, asking that they suspend the consultant’s authority immediately. (I was one of the signees.)

“Contrary to repeated representations by TOSS [the Town of Southern Shores], including in its Dec. 22, 2015 holiday newsletter,” the homeowners wrote, “the project team will not be merely ‘correcting conflicting and ambiguous language in the Code, addressing recent changes in state and federal laws, and reorganiz[ing[ some sections to make the Code more user-friendly and easier to understand.’ Rather, it will be substantively assessing—and, to a great extent, already has assessed—the Town Code for the purpose of drafting new building and other laws to propose to TOSS for codification.”

There is little doubt that the December draft goes far beyond the Code cleanup that Town Manager Peter Rascoe described in FY 2015-16 budget hearings: Mr. Meadows did not just edit for consistency, clarity, and conformity with state and federal law. His Code rewrite is essentially a new planning document for Southern Shores.

The Planning Board began its review of Mr. Meadows’s work, which was organized into several “modules,” in April 2017. Current regular members Joe McGraw and David Neal were on the Board then, but Mr. McGraw, who is vice-chairperson, was an alternate until September 2017, when he was appointed to a regular, full-voting seat. Sam Williams was the chairperson.

The Town Council “dumped the Code rewrite on us,” Ms. Morey told The Beacon on June 29, 2018, “and it doubled or tripled our workload.”

The Board’s review, she continued, “was made more difficult by how the consultant presented the Code. . . . It was extremely difficult to determine what was old and what was new.” Such difficulty should have been corrected by the consultant.

Although the December 2018 draft does not look the same as the Code rewrite version that the Planning Board spent months reviewing, it still suffers in the presentation. The public, the Planning Board, and the Town Council still cannot readily distinguish old from new, not without great commitment of time and task.

Before a final draft reaches the Town Council, the Planning Board, whose membership now includes Andy Ward and Ed Lawler, must consider it for recommendation. The Beacon strongly encourages the new Board to take a fresh look and to hold Mr. Meadows accountable for an easy-to-read written summary of changes. No public official should be recommending or approving a code of ordinances just to move it along.

Fundamentally, The Beacon finds that the revised page layout, the new graphics and illustrations, and, most of all, the excess verbiage (such as the proposed “Purpose and Intent” sections, but also the language of the regulations themselves) just obscure the core substantive content, and in a code of ordinances, content—the regulations governing the Town of Southern Shores—is everything.

This draft cries out for another independent review—of the zoning chapter and any other important regulations identified by the public and the Planning Board.

‘CODE ASSESSMENT’

A final note for those of you who are inclined to plunge into the December draft: You’ll find before the Code a section titled “Guidance from Code Assessment.”

“Code Assessment” refers to a document prepared by Mr. Meadows in October 2016 that purportedly summarized the “input” he received from the Town Council—Mr. Meadows interviewed members of the 2011-15 Council, all three of whom were defeated for reelection in November 2015; the Planning Board; the Town Manager and other Town staff; and about 900 respondents to a public survey, which was controversial for alleged bias in the framing of questions.

You may access this more than two-year-old document here: https://www.southernshores-nc.gov/wp-content/uploads/2015/10/TOSS-Code-Assessment-Final-10-3-16.pdf. The December draft does not include updates since October 2016.

Each chapter in the draft also has a blue-highlighted section titled “Guidance from Code Assessment,” which refers to this document and will not be a part of the finalized Town Code. None of the blue-highlighted language in footers throughout the draft will be part of the final draft, either. That this language is included in the draft just makes processing it all that more tedious. Perhaps the Planning Board, which presumably did such processing, could release a report on how it tackled it.

The Town Code Update Project has taken far longer than anyone anticipated. The Beacon trusts that Town officials will take even longer to ensure that they know and approve all significant changes within the proposed draft and communicate them to Southern Shores property owners.

Ann G. Sjoerdsma, 1/30/19

1/29/19: WHAT DEFINES A ‘MINI-HOTEL’?: 12 BEDROOM ‘SUITES’; ELEVATOR FROM PARKING GARAGE; LARGE REC./GAMES ROOM; A ‘KIDDIE’ POOL; SPA; LOTS OF BARS: What the building plans for 98 Ocean Blvd. reveal

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The ‘mini-hotel’ being constructed at 98 Ocean Blvd.

The Beacon has referred to the structures being built by SAGA Construction & Development at 98 and 134 Ocean Blvd. as “mini-hotels” not just because of the large number of people they can accommodate, but because of their design.

Many design features in these structures, which are substantially similar, are common to hotels: for example, large areas for dozens of people to congregate; bedrooms with private bathrooms, each located next to another one on the sides of the building; and amenities not seen in single-family homes.

The Beacon recently reviewed again the building plans for 98 Ocean Blvd., which are on file in the Town Planning and Code Enforcement Dept. The plans, dated Oct. 20, 2019, were submitted by Community Planning and Architectural Associates (“cpaa”) of Kitty Hawk. Its mailing address is 6445 N. Croatan Hwy., suite A, which is an office building near the entrance to Martin’s Point.

Cpaa not only doesn’t have a website, it has no footprint on the Internet. You can’t find out anything about it. You also can’t find a roadside sign or a firm-name plaque at its office location, if you visit there and pop into the suite, as I did today.

Each of the 12 bedrooms in cpaa’s “mini-hotel” structure has its own private bathroom and is designated on the building plans as a “suite.” The dimensions for each bedroom, exclusive of the bath area, and with only minor variations here and there, are 13-feet-8 ½-inches (length) by 11-feet-5 inches (width). (These are the only dimensions that The Beacon could discern from the plans, but estimates are possible based on known entire-floor square footage.)

The “suites” are located on the first and second floors of the dwelling, configured so that they are located on either the north side or the south side of the floors, suggesting a hotel layout. The Beacon wonders: Will each “suite” have a number on its door, too?

The first floor has seven bedroom suites, three of them on the north side, where a 14-person theater lounge with a 120-inch screen, is also located; and four of them on the south side. Most of the square footage of the first floor is taken up by a large combination games/recreation room and a full-size bar, similar to a bar you would see in a hotel lounge. (The Beacon wonders: Who’s going to be serving the drinks?)

There is also a “lavatory” that can be accessed from the games/recreation room by patrons, similar to a restroom in a hotel.

The remaining five suites are on the second floor, three of them on the north side, and two on the south side. An oversized kitchen is also off to the south side. Similar to the first floor, most of the square footage on this floor is consumed by a very large open area outside of the kitchen that is designated on the building plans according to spaces: They include a “gathering place,” an “ocean room,” with a fireplace and a television above it, and a dining area.

The enclosed area on the second floor is 2,958 square feet. If you do the math with the known square footage of the five bedrooms, you’re looking at roughly 2,000 square feet for the kitchen and the open gathering-place-ocean room-dining area. The first floor has an enclosed area of 2,958 square feet.

The distance of the kitchen to the dining area, as well as the location and size of the kitchen, suggest that meals will be catered. The Beacon doesn’t know many cooks who would want to transport food through the “gathering place” to the dining space.

A covered screen porch off of the second floor, on the east side, offers ocean views. Lest one become desirous of a cocktail, a bar area is conveniently located within the porch. Again, The Beacon wonders, who’s going to be serving at this bar? And who’s supplying the booze?

An elevator on the ground floor of the structure-in-progress at 98 Ocean Blvd. carries people up from the six-vehicle parking garage underneath it and from the 11-vehicle parking lot in the front yard. There is also “recreational” space under the dwelling.

Also suggestive of a hotel are the outdoors amenities, which include a six-seater tiki bar (do bartenders come with the structure?), a hot tub/spa, and two swimming pools, one of which is a kiddie pool. The kiddie pool has a “tanning ledge,” and the adult pool has—you guessed it—a swim-up bar with what appear on the building plans to be four seats.

The pièce de resistance of the 12-bedroom dwelling is the “interior garden” that begins on the ground floor and is “open” to the sky. It is rare to find a single-family home with an atrium. Atria are fairly common in hotels, however.

If you would like to display a sign in your yard that expresses your opposition to mini-hotels such as the ones being constructed at 98 and 134 Ocean Blvd., you may request one through nominihotels.com. The petitioners in the litigation contesting the validity of the CAMA permits issued to SAGA to build on the two Ocean Boulevard sites would welcome your support. Their legal argument, which is scheduled to be heard before an administrative law judge in April, is that the permits are inconsistent with the town’s land-use plan, which was adopted in 2012.

With this litigation pending, SAGA is building “at its own risk,” and has been so warned in writing by the Town. Agents of SAGA for both sites have signed the Town’s warning statements, indicating their acknowledgment.

Every sign posted in a yard is evidence of the community-wide opposition that exists to SAGA’s structures. The litigation is not just about the interests of the two petitioner-homeowners. It’s about preservation of the town’s low-density development and residential-district zoning, which has always been exclusive to single-family houses.

According to Ursula Bateman, one of the yard-sign organizers, every sign posted in the town is there at the request of the property owner.

To contribute financially to the petitioners’ case, see https://www.gofundme.com/no-minihotels-in-southern-shores.

NEVER ON SUNDAY: Southern Shores police officers have officially warned SAGA’s construction crews at both 98 and 134 Ocean Blvd. not to work on Sunday, in violation of the Town’s noise ordinance. Police officers went to the sites recently upon receiving complaints from two different town residents.

The Beacon received notification of the noise-ordinance violations from the homeowners who reported them. Although they gave their names to Dare Central, they would prefer to remain anonymous, and The Beacon sees no public-information value in identifying them.

A Southern Shores police officer who responded to one of the reports told The Beacon that, upon a first report, the police issue a warning to violators of the town noise ordinance. Thereafter, the police will issue a citation for a violation, which carries a penalty of $500.

Sec. 22-3(b)(15) of the Southern Shores Town Code, which is a subsection of the noise ordinance, 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.

Although The Beacon reported to the Town Planning Director in December that SAGA was working on Sunday at 98 Ocean Blvd., this report did not result in SAGA ceasing this practice. For that to happen, apparently, the police had to intervene.

If you observe any construction work occurring on Sunday in Southern Shores, The Beacon advises you to call the Dare Central non-emergency number, (252) 473-3444, and report it to the police.

(I apologize to all followers of this blog who received two notices of today’s post. I ran into technical difficulties and had to delete the first post and re-post it. I regret the inconvenience.)

Ann G. Sjoerdsma, 1/29/19

1/28/19: CIRCLE THE DATE: PUBLIC FORUM ON TOWN CODE REVISION SET FOR THIS THURSDAY, 5:30-7 P.M., IN PITTS CENTER; Code Rewrite More Than Three Years in the Making

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What defines a ‘mini-hotel’? The Beacon will answer that question in a posting tomorrow. Pictured above is the ‘mini-hotel’ being built at 98 Ocean Blvd. Photo date: Jan. 27, 2019

Consultant Chad Meadows, owner of CodeWright Planners, LLC, of Durham, will present his draft of the proposed new Southern Shores Town Code of Ordinances and respond to property owners’ comments, questions, and concerns in a public forum Thursday, Jan. 31, from 5:30 p.m. to 7 p.m., in the Pitts Center.

Mr. Meadows’s draft, which runs 381 pages, is the culmination of more than three years of effort, which included stakeholder interviews, a public survey, and painstaking scrutiny by the Town Planning Board. After the public forum, the draft will be finalized and returned to the Planning Board for its “required recommendation,” according to the Town of Southern Shores website. The final proposal then will be sent to the Town Council for its action.

You may access the draft proposed Town Code here:

https://www.southernshores-nc.gov/wp-content/uploads/2018/12/TOSS-Town-Code-12-31-18.pdf.

The Beacon encourages all property owners to peruse chapter 22 of the draft code, which is the new zoning chapter. The public survey conducted by CodeWright before its preparation of the draft code targeted zoning in residential districts and revealed strong sentiment by property owners on a number of zoning issues.

The Beacon will do a fast study of the draft and try to publish a report/analysis later in the week or at least flag some highlights.

It is unfortunate that this long-delayed draft is coming to the Planning Board and the Town Council for finalization at the same time that members of both bodies are deliberating upon important changes in the town zoning law to prevent high-occupancy houses from being constructed and to fine-tune the nonconforming lots ordinance that was passed last September.

A further delay of the proposed new Town Code of Ordinances, which merits careful review by town officials, would seem to be advisable. At the least, Town Council members should ensure that they have the time they need to give the proposed new code a thorough and thoughtful analysis.

Ann G. Sjoerdsma, 1/28/19

1/23/18: A WORK IN PROGRESS: PLANNING BOARD ELECTS MOREY CHAIR, MCGRAW, VICE-CHAIR; ACTION ON EXTENSION OF CELL TOWER POSTPONED; MOTIONS & THOUGHTS

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Another 10 feet?

Planning Board Vice-Chairperson Elizabeth Morey was elected chairperson, and member Joe McGraw was elected vice-chairperson at last night’s Planning Board meeting. Both votes were unanimous.

The positions are for the current fiscal year, which ends June 30, 2019.

Ms. Morey, a self-employed political consultant, has been acting chairperson since Glenn Wyder’s death in November. In an interview last year with The Beacon, Ms. Morey said she served two years as a Planning Board alternate before being appointed a full member of the Board. Her current three-year term expires June 30.

Mr. McGraw, who owns Albemarle Contractors with his wife Lori, was serving as a Planning Board alternate when the Town Council appointed him in September 2017 to complete the unexpired term of regular member Gray Berryman, who resigned. Mr. McGraw’s term also expires June 30.

All Planning Board appointments are made by a majority vote of the Town Council.

In other business last night, Deputy Town Manager/Planning Director Wes Haskett reported that American Towers LLC/Verizon Wireless had asked that their application to amend an existing Conditional Use Permit in order to extend the height of the cell tower at 148A Ocean Blvd. be tabled until February or March.

According to a letter from an attorney included with the application, American Tower seeks to extend its “Monopole Facility,” which is located in the SSCA’s Triangle Park at the Ocean Blvd./Duck Road split (see photo above), by 10 feet, bringing it to 150 feet, its “final height.” (See The Beacon, 1/21/19.)

The extension would accommodate Verizon Wireless, which is not now on the tower, and expand AT&T’s cellular capacity, improving “network connectivity in the area.”

The Planning Board accepted a tabling of the application “until further notice.”

A WORK IN PROGRESS

I am going to do something unusual in regard to the remainder of the business taken up, and the public comments heard, last night by the Planning Board, and that is not to report on them, except in a broad fashion.  I also will editorialize.

I found much of the substance discussed by the Board last night to be confusing and the over-all process of the meeting to be disruptive. There were quite a few breaches in the order of the proceedings.

I will tell you what the Planning Board did. But rather than explain the actions it approved in any detail, I am going to wait until I see them in writing.

The Planning Board definitely recommended, with amendment, a version of Zoning Text Amendment 18-09, which seeks to except certain property owners’ circumstances from the nonconforming lots ordinance that the Town Council enacted in September. The Board refers to the property owners whom it is trying to shield from the operation of the new ordinance, which rewrote sec. 36-132 of the Town Code, as “outliers.”

A homeowner with an outlier case that the Planning Board had not previously considered spoke during the public-comment period last night. His case drew a sympathetic response from the Board, but it was unclear to me how the Board plans to address it. (The Beacon recalls that Town Councilman Jim Conners tried to bring up this homeowner’s case in a Planning Board meeting chaired by Mr. Wyder and was prevented from doing so. That was unfortunate.)

A public hearing on ZTA 18-09 is scheduled Feb. 5 before the Town Council. I will report on that version of the proposed Code amendment when I am confident it is in final form. The version of the ZTA that is currently online under the Town website notice of the Feb. 5 Town Council meeting is not the one that the Planning Board discussed last night. (See https://www.southernshores-nc.gov/public-notice-two-public-hearings-february-5-2019.)

The legal language of the ZTA is complicated and confusing.

In my opinion, Planning Board member David Neal hit the nail on the head when he said: “We’re trying to stop the cutting up of 100-foot-wide lots into 50-foot-wide lots on the oceanfront and elsewhere.”

There was definitely a sense of frustration last night that this has not been achieved—but not for a lack of trying. Perhaps Town Attorney Ben Gallop, who is creative, can come up with a fresh approach or a fresh perspective. The Board expressed a need for his guidance.

Board member Andy Ward made two motions that amended motions passed by majority vote on Jan. 7, in regard to controlling high-occupancy (“large”) dwellings and population density in Southern Shores. Through these motions, both of which were approved, the concept of using septic capacity as an occupancy control was resurrected, and the movement to limit maximum house size to 5,000 square feet was defeated.

(Note: I think both the septic-capacity limit and the reduction in the maximum house size are options that the Town Council should consider. I have been a proponent in previous Planning Board meetings of the former.)

The vote on including septic capacity in a ZTA, along with the high-occupancy use concept previously approved by majority vote, was approved unanimously. The vote on maintaining the 6,000-square-foot maximum house limit was 3-2, with new Board member Ed Lawler, who did not attend the Jan. 7 Board meeting, being the swing vote.

Mr. Gallop advised the Planning Board that he would integrate these decisions into the zoning text amendments that he was directed to prepare Jan. 7. I will report on those ZTAs when I see them.

The Board also formally voted 4-0, with Mr. Lawler recusing himself, not to recommend ZTA 18-10, which creates an ocean overlay district and regulations within that district. This is the ZTA that came out of the Town Council’s Nov. 7 special meeting on large houses. A public hearing on ZTA 18-10 is also scheduled before the Town Council on Feb. 5.

INTEGRITY OF THE PROCESS

For the newly constituted Planning Board to be successful, the process by which it operates publicly must be fair, open, respectful, and disciplined. I strongly believe that integrity in the process—which is a democratic process—is far more important than the ends achieved.

There must be meeting rules, and they have to be enforced. Members of the public should not be permitted to interrupt people while they are giving public comments, nor should they be permitted to speak from their seats in the audience.

When speaking from the lectern, all members of the public should begin by giving their names and addresses, as they are asked to do. If there is going to be a three-minute rule in effect for public comments, then it should be applied consistently to everyone who speaks—and speakers should be informed that it is in effect.

New Chairperson Elizabeth Morey may wish to consider a sign-up sheet for public comments. That would end the practice of allowing people to speak emotionally in reaction to what they have just heard someone else say in public comment.

Planning Board members also must be prepared to participate meaningfully in the weighty matters before them and to listen to each other and to the public with the goals of mutual understanding and cooperation.  The Beacon believes the Board is a team, as well as a group of individuals with varying personalities and styles.

There will inevitably be differences of opinion and/or interpretation, but they do not preclude respectful discussion. Rarely is there a right or a wrong in a given situation.

I will conclude with a sentiment expressed by new Vice-Chairperson Joe McGraw, who said: “We’ve been good stewards of Southern Shores. I love Southern Shores.”

The Beacon believes that the concept of stewardship is an excellent one to apply to service on the Planning Board. The Beacon loves Southern Shores, too.

Ann G. Sjoerdsma, 1/23/19

1/21/19: PLANNING BOARD MEETS TOMORROW TO DISCUSS EXCEPTIONS TO NONCONFORMING LOTS ORDINANCE, CONTROLS ON HIGH-OCCUPANCY DWELLINGS; ELECT NEW OFFICERS; & CONSIDER EXTENSION OF CELL TOWER

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The Town Planning Board will continue its important deliberations about how to regulate occupancy in residential dwellings in order to preserve Southern Shores’ low-density character at its monthly meeting tomorrow at 5:30 p.m. in the Pitts Center.

The Board also will look at proposed exceptions to the town’s new nonconforming-lots ordinance (Town Code sec. 36-132), which the Town Council passed last September, and consider permitting a 10-foot extension to the cell tower at 148A Ocean Blvd., in what property owner Southern Shores Civic Assn. calls Triangle Park.

Before the Board takes up any of this business, however, it will elect new officers for the remaining fiscal year and approve its 2019 meeting schedule.

Vice-Chairperson Elizabeth Morey has been acting Planning Board chairperson since Glenn Wyder’s death in November. With the Town Council’s Jan. 8 appointment of Ed Lawler to serve out Mr. Wyder’s unexpired three-year term, the Board now has a full complement of five regular voting members. They will elect a new chairperson tomorrow night, and, if necessary, a new vice-chairperson.

The Beacon has written extensively about the Planning Board’s discussions regarding available options to control occupancy in single-family homes, in light of SAGA’s proposed 12-bedroom, 12-bathroom, hotel-like structures on the oceanfront and the Town’s inability to limit the number of bedrooms in houses, as well as about refinements to the new nonconforming lots regulation. We will not say anything more here about either subject, but just report on new developments that arise in tomorrow’s meeting.

On 10/10/18, The Beacon reported on American Tower Corp.’s plan to extend the cell tower at the Duck Road/Ocean Blvd. split, in order to accommodate Verizon Wireless, which is not now on the tower, and to expand AT&T’s cellular capacity.

American Tower representative Mark Landers told the SSCA at its October membership meeting that the extension, which he said then would be 20 feet, not 10, would be done to “accommodate” the explosion in cell-phone traffic. Mr. Landers explained that too many people are trying to use the network at the same time, causing disruptions and deficiency in service.

The current “straight pole-like structure,” which American Tower calls its “Monopole Facility,” “will look exactly the same on the outside” as it does now, Mr. Landers said, just taller.

In order for the extension to be allowed, an amendment to American Tower’s existing Conditional Use Permit from the Town must be approved. In a letter accompanying its application for the amendment, an attorney for American Tower writes that the additional 10 feet will bring the height of the Monopole Facility to 150 feet, its “final height.”

This increase, according to attorney David G. Allen, will enable Verizon Wireless to install its equipment “in order to alleviate current reductions and bottlenecks in network connectivity in the area.”

The Planning Board will hear tomorrow from American Towers/Verizon Wireless about the 10-foot extension and then vote on whether to recommend a CUP amendment to the Town Council.

See https://www.southernshores-nc.gov/wp-content/uploads/2019/01/CUP-Amendment-Application_Site-282219.pdf.

Mr. Landers told the SSCA last fall that the expansion would take about five months to complete and would bring in $5400 more in annual rent for the SSCA, making the association’s total income from the tower just under $40,000. These are strictly tentative figures. (Mr. Landers also told the SSCA that a 20-foot extension was needed to bring the tower up to 130 feet.)

PLEASE TAKE NOTE: There are two public-comment periods scheduled during the Planning Board meeting. If you have news or an opinion that you’d like to share with the Board, this would be a good time to do so.

Ann G. Sjoerdsma, Jan. 21, 2019

1/20/19: IN WARNING ABOUT YARD SIGNS IN NEWSLETTER, TOWN SHOWS BLATANT BIAS: Permitting Real-Estate Signs in Public Right of Way Is Unconstitutional, But Town Has Never Cared

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It is hardly a coincidence that less than one week after NO! MINI-HOTELS signs began appearing on property owners’ yards and vacant lots—at their request—that the Town of Southern Shores decided to warn people in its newsletter about posting signs in the public right-of-way (ROW).

The item about yard signs—which appears as the second-ranking item in the Jan. 18 newsletter—asks: “Did you know that signs posted in a street right-of-way may be subject to removal?” (See “Southern Shores News,” Jan. 18, 2019.) It then refers to the Town Code sign regulation, sec. 36-165, and quotes a prohibition against any signs being located within the public right-of-way.

The Beacon believes that this item not only reflects a shocking pettiness and bias by the Town–which The Beacon is hopeful the Mayor and Town Council do not share–it misinforms the public by misrepresenting the law.

Perhaps Town Manager Peter Rascoe can refer The Beacon to the Town Code section that gives the Town the right to remove a yard sign, without first issuing the requisite warning citation, simply because it is in the public right of way.

Even more egregious, the Town’s sign regulation has been unconstitutional, at least in part, for nearly four years. Ever since the U.S. Supreme Court decided Reed v. Town of Gilbert in 2015, a section of the Town’s regulation that permits real estate signs to be in the public right of way, but not other signs, has been clearly unconstitutional.

It’s a First Amendment issue: The Town cannot favor the speech–i.e., a sign’s message–of one speaker (a real-estate agent) over another, such as a NO! MINI-HOTELS proponent, unless it can meet a very high constitutional standard, and it cannot.

How much of sec. 36-165 is invalid because of the holding in Reed v. Town of Gilbert? It’s quite possible that a court would strike down sec. 36-165(7), which the newsletter cites as authority for removing yard signs.

According to the U.S. Supreme Court, a town “may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.” Evenhanded. Content-neutral. These are weighty words. The Supreme Court always chooses its words carefully.

It is not remotely evenhanded and content-neutral for the Town to prohibit all signs in the public ROW except those in the residential districts that have real-estate content on them. (See Town Code sec. 36-165(8)(c).) In fact, it’s blatantly unconstitutional, if the regulation does not serve a “compelling governmental interest” (the high standard I mentioned above), which an exemption of real-estate signage clearly does not.

Mr. Rascoe is an attorney, and the Town has its own attorney. Why hasn’t the sign regulation been “repaired” so that it’s constitutional? Surely, both are familiar with Reed v. Town of Gilbert.

Now that the Town has made a public show of cracking down on signs in the ROW, is it going to start removing “For Sale” and “For Rent” signs in front of houses that are closer than “8-12 feet from the edge of street pavement,” as the Jan. 18 newsletter item defines the ROW? Or is it just going to target NO! MINI-HOTELS signs, in a discriminatory fashion?

Judging by the Town’s history of non-enforcement, it was quite reasonable for property owners who posted NO! MINI-HOTELS signs to believe that the Town had ceded the public ROW to yard signs.

The Town didn’t warn Mayor Tom Bennett’s supporters to remove their signs from the public right of way during his 2017 reelection campaign. The Town has never taken any action against election signage, even though it’s prohibited by the same Town Code section that the newsletter item cites. (Reed v. Town of Gilbert prohibits election signage from being given special treatment.)

Any signs in the public ROW that protest oil drilling off of the North Carolina coast also violate the ordinance. Town Manager Rascoe did not authorize a newsletter item warning about placement of no-drilling signs in the ROW when those signs started appearing.

Actually, there’s a procedure outlined in the Town Code for the enforcement of zoning ordinances, and it begins with the Town issuing a warning citation to the alleged violator, not with confiscation of his/her private property.

According to Town Code sec. 1-6, a violation of the zoning chapter subjects the offender to a civil penalty “upon the issuance of a citation” for the violation. The Town must “cause a warning citation to be issued to the violator setting out the nature of the violation, the section violated, the date of violation, [and] an order to immediately cease the violation.” (Code sec. 1-6(m).)

Has anyone with a NO! MINI-HOTELS sign in his/her yard been served with such a citation? If you have, please contact The Beacon.

The Beacon has been advised by organizers of the NO! MINI-HOTELS campaign that they will begin moving any of their signs that are in the ROW back onto the private property of the land- or homeowner. They also will be watching to see if all real-estate companies who have posted “For Sale” or “For Rent” signs in the public right-of-way do the same.

The Town cannot constitutionally exempt real-estate signage from its ROW prohibition, nor can it enforce the ROW prohibition only against those citizens whose signs it doesn’t like. That the Town Manager and/or other Town staff decided to target yard signage at this time leaves The Beacon feeling that they are not serving many of the people they were hired to serve. In fact, they are biased.

Ann G. Sjoerdsma, 1/20/19

 

1/17/19: HIGH-OCCUPANCY ‘LARGE’ HOUSES: SUGGESTIONS FOR TOWN CODE CHANGES THAT THE PLANNING BOARD HAS NOT CONSIDERED; It Must Take Comprehensive Action

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Early in the Town Planning Board’s special meeting Jan. 7, Board member David Neal reduced its analysis for controlling high-occupancy “large” houses to two basic options: 1) restricting septic-use capacity per home; and 2) restricting occupancy by the nature of the home’s use, in particular, by its use as a vacation rental.

During the ensuing discussion of these two options, several members of the Planning Board brought up a third option: that of reducing the maximum house size in town from 6,000 square feet to 5,000 square feet.

The idea of reducing the maximum house size had been advanced by members of the public at the Town Council’s Nov. 7, 2018, special meeting on large houses, along with other good suggestions. A majority of three Town Council members did not choose to consider any of these suggestions, however. They exclusively endorsed Councilman Jim Conners’s motion, prepared by Town Attorney Ben Gallop, to create an ocean overlay district and to regulate properties within this district by setbacks, landscaping buffers, building height, and other permissible curbs. (See The Beacon, 11/8/18.)

Councilman Gary McDonald made a motion at the Nov. 7 meeting to have Town staff prepare an alternate zoning text amendment (ZTA) that included redefining the concept of living space for determining house size and restricting the number of parking spaces and the septic capacity per home. Only Councilman Fred Newberry joined Mr. McDonald in support of this motion.

The majority, who defeated it, erred.

The Beacon believed then, and still believes, that an alternative ZTA, with a different approach to tackling the high-occupancy control problem, would have been a great help, not a hindrance, to the Town’s problem-solving process. It would have allowed for the expansion of control options available now to the Town, without having to change districting, as Mr. Conners’s overlay “concept” proposed doing. (The Planning Board summarily rejected the overlay concept. See The Beacon, 1/3/19.)

A second ZTA also would have given the Planning Board a better sense of the big picture before it. Mistakes were made by both the Planning Board and the Town Council three years ago, when they hurriedly considered zoning text amendments prepared by Mr. Gallop to address the high-occupancy housing problem then. These mistakes must be corrected now.

Planning Board Chairperson Glenn Wyder’s death Nov. 25 has left a huge void on the Board at an unusually critical time in the town’s history, a time that Mr. Neal, who is a longtime Southern Shores builder and homeowner, poignantly has called a “crossroads.”

The Beacon recognizes that the Board members have been operating under difficult circumstances and empathizes with them in their decision-making task. They are all conscientious people who have the Town’s best interests at heart.

The Beacon also believes that, in order to serve responsibly, all Planning Board members must know the duties and powers that they have under the Town Code and be willing to exercise the latter in furtherance of the former.

The Planning Board is an independent planning agency that has broad authority to ensure a “coordinated and harmonious development” of Southern Shores. Town Code sec. 24-27 gives it considerable powers and duties. The Board’s actions and recommendations are fundamental to an orderly development of the town.

If it chooses, the Planning Board can commission studies and task forces. It can be out front on zoning issues confronting the town, acting in anticipation, rather than always in remediation. And it need not defer to any Town official or adviser.

The Beacon encourages Board members to think about all of the elements that currently exist in the Town Code that have a bearing the construction of single-family dwellings, as Councilman McDonald tried to do in the motion he proposed.

In coming up with measures to control “large” houses, Planning Board members should strive to be as comprehensive in their analysis as the Town Code is in defining their powers and duties.

The Beacon commends to their attention the following Town Code provisions and proposed changes:

Analyzing “Enclosed Living Space”

The maximum size of a single-family dwelling in Southern Shores is no more than 6,000 square feet of “enclosed living space.”

Town Code sec. 36-57 defines such living space as “enclosed conditioned areas within a structure that are designed or constructed for human habitation.” This means that any un-conditioned storage rooms or unconditioned space—no heating or air-conditioning—does not count toward the maximum-size limit, even though a homeowner may convert such space later to a conditioned room, such as another bedroom.

The Code definition of living space leaves a loophole, which SAGA Construction & Development exploited in its design of the “mini-hotel” it is building at 98 Ocean Blvd. SAGA excluded from its living-space calculation a 124-square-foot unconditioned room on the ground floor. If it had been compelled to calculate “total floor area,” which is the standard applied in the N.C. Coastal Area Management Act, then this storage space would have been included in the structure’s size, and it would have exceeded the 6,000 square-foot limit.

This is an important distinction that the Planning Board should know and consider changing.

Changing Minimum Off-Street Parking Requirements

In January 2016, when the Town Council enacted the maximum house size restriction, it eliminated the maximum 14-person septic capacity of single-family dwellings, but it did not change the Code-specified minimum parking requirements, which are based on a dwelling’s septic capacity. This was a huge oversight. It needs to be corrected now.

The unfortunate truth is that the Town Council and the Town Attorney are directly responsible for the 17 parking spaces that SAGA is proposing to construct with its 12-bedroom mega-structures.

The Town Code currently requires a minimum of 17 parking spaces for a “single-family dwelling” with a 24-person septic capacity.

Here’s how the minimum parking for a dwelling is calculated: Town Code section 36-163(3)(a)(1) specifies that each residential dwelling unit with up to an eight-person septic capacity must have three parking spaces. Beyond these three, the Code says there must be one additional space for each additional two persons of septic capacity in excess of an eight-person septic capacity and up to a 12-person septic capacity. Over a 12-person septic capacity, the Code requires one additional space for each person.

If you do the math for a dwelling with a septic capacity of 24 persons, you get 3 + 2 + 12 = 17.

This formula for calculating minimum parking requirements must be changed, and it is within the authority of the Planning Board to recommend to the Town Council a different calculation.

Redefining a “Single-Family Dwelling”

The Beacon has previously addressed the Town Code definition of a single-family dwelling, which turns on the definition of “family.” (See The Beacon, 12/31/18.) The Town Council changed this definition in January 2016 when it enacted the maximum dwelling size restriction of 6,000 square feet. It made a mistake.

The Planning Board must address this definition now, not later. SAGA used this definition to mischaracterize its mini-hotel structures as single-family dwellings. Other developers can do the same.

Town Code sec. 36-57 defines a “dwelling, single-family” as “a detached building designed for or occupied exclusively by one family.”

“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.”

The italicized reference to the N.C. Vacation Rental Act was inserted into the zoning text amendment on maximum house size by Mr. Gallop, who said at the Jan. 7 Planning Board meeting that I have a “misconception” about the intent of the language.

Regardless of what Mr. Gallop’s intent may have been, the effect of the change has been damaging.

The new language is misleading and must be deleted, and the Planning Board has the authority to direct this change.

Last October, the Southern Shores Civic Assn. objected to both of SAGA’s proposed mini-hotels by claiming that they are not “single-family dwellings,” as the Town Code defines such residences. When The Beacon asked Town Permit Officer Dabni Shelton why the SSCA’s opposition was not sufficient, she said that SAGA’s structures were covered by the Vacation Rental Act., which effectively excepted them from the Town’s single-family dwelling requirement.

But the Vacation Rental Act says nothing about the definition of a single-family dwelling. It pertains to leases, the duties/obligations/rights of landlords, tenants, and real estate brokers, eviction, evacuation, and the like. The N.C. General Assembly passed it to regulate “the competing interests of landlords, real estate brokers, and tenants.”

The Planning Board needs to recommend a new definition of family that does not refer to the Vacation Rental Act. The effect of the January 2016 amendment has been to allow residential structures that are not single-family dwellings to be built in the single-family dwelling residential districts, as long as they are vacation rentals. This is just plain wrong.

Regulating House Size on Nonconforming lots

The Beacon also believes that the Planning Board must specifically address maximum house sizes for single-family dwellings that are built on lots that are smaller than the mandatory minimum size of 20,000 square feet. The Town Code is silent on this issue. It is currently possible for a property owner to build a 6,000-square-foot home on a smaller “non-conforming” lot—such as a 50-foot-wide lot—provided the 30-percent lot-coverage limit is not exceeded.

The Beacon has suggested that the following language be added to all of the zoning ordinances that address dwelling size in the residential districts:

“Single-family dwellings built on lots that are 20,000 square feet or larger shall not exceed 6,000 square feet of enclosed living space [or, preferably, total floor area]. Single-family dwellings built on lots that are between 15,000 and 19,999 square feet shall not exceed 4,000 square feet of enclosed living space. Single-family dwellings built on lots that are between 10,000 and 14,999 square feet shall not exceed 3,500 square feet of enclosed living space. Single-family dwellings built on lots that are 9,999 square feet or smaller shall not exceed 3,000 square feet of enclosed living space.” 

In the interest of preserving the low-density character of development in Southern Shores, the Planning Board must limit maximum house size on smaller nonconforming lots. This is an oversight that it must address.

Putting Teeth into Enforcement

In discussing the septic-capacity and house-use options for restricting high-occupancy houses in Southern Shores, Planning Board members considered how enforcement of such options would occur. According to Deputy Town Manager/Planning Director Wes Haskett, enforcement of zoning restrictions and requirements is generally “complaint-driven.” But it need not be that way.

The Planning Board has the authority to recommend changes in the methods of enforcement. It can even suggest penalties for zoning violations. This is something that Mr. Gallop could assist the Board with doing. Although the ultimate decision-maker on enforcement would be the Town Council, the Planning Board can give it much-needed direction.

If the Board decides to recommend a ZTA that limits the occupancy in “vacation cottages” to no more than 14 overnight occupants, how will this occupancy limit be enforced—other than through community complaints? A door-to-door police check is neither feasible nor desirable. Where is a likely point of enforcement to exist? In rental agents’ offices? With online booking agents, such as VRBO.com or airbnb.com?

The Beacon encourages the Planning Board to get past its collective “complaint-driven” shrug—oh, well, what can we do?—and to engage in a discussion about what it can do to enforce the Code and prevent zoning violations.

Comprehensive analysis. That’s what Southern Shores needs from its Planning Board now. The Beacon is confident that its members can deliver.

Ann G. Sjoerdsma, 1/17/19