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

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