The Southern Shores Town Council will hold two important public hearings at its monthly meeting tomorrow, each of which concerns a proposed zoning text amendment (ZTA) or amendments that will affect future real-estate development, principally on and near the oceanfront.
In assessing these zoning text amendments over the past two months, the Town Planning Board has engaged in what appear to be procedural irregularities that The Beacon believes the Town Council will have to sort out before it can reach their merits.
The Council will meet at 5:30 p.m. in the Pitts Center behind Town Hall.
Also scheduled on the Town Council’s agenda are a presentation by Willo Kelly, CEO of the Outer Banks Assn. of Realtors, on a possible increase in homeowner insurance rates, and the introduction of a new police officer, Patrol Officer Zach Eanes.
In new business, Town Manager Peter Rascoe will give an update on Juniper Trail capital improvements and recent damage repair, and Councilman Gary McDonald will talk about coyotes in Southern Shores.
The first public hearing will take up zoning text amendment 18-09, which is an effort by the Town Planning Board to create justifiable exceptions to the new nonconforming lots ordinance, Town Code sec. 36-132, that the Town Council enacted last September.
The second hearing will address ZTA 18-10, an amendment that came out of the Town Council’s Nov. 7, 2018 special meeting on large houses. It is an attempt to preserve low-density development in Southern Shores by creating a single-family oceanfront overlay residential district and then regulating development within that district by dimensional and other requirements.
ZTA 18-09 arrives at the Town Council in three different versions, the most recent of which Deputy Town Manager/Planning Director Wes Haskett offers—according to his staff report in the Council’s meeting packet—as the Planning Board-recommended final version, even though the Board has not yet seen or approved the ZTA’s actual language.
Mr. Haskett identifies the first draft of ZTA 18-09 as “Original ZTA 18-09.” He has labeled the second version, “Revised ZTA 18-09,” and the third version, “ZTA 18-09PB,” which was filed Jan. 25, after the Planning Board’s last meeting.
The Planning Board took up ZTA 18-09 on Dec. 17, but did not vote on it. Instead, it voted unanimously to amend ZTA 18-09 to allow for a further exception that would benefit Steven Love (and his wife, Katherine Gorman), who own a nonconforming lot at 64 Ocean Blvd. and whose attorney, Starkey Sharp, criticized the Board at the meeting for “exposing the Town to litigation and liability.” (See The Beacon, 12/20/18.)
When the Board took up the Revised ZTA 18-09 on Jan. 22, members did not believe that the ZTA gave Mr. Love the exception that they had sought for him in December. The Board, therefore, voted 4-1, upon motion by member Andy Ward and a second by Chairperson Elizabeth Morey, to approve ZTA 18-09, provided it included a to-be-written amendment that would give Mr. Love his exception.
Board member Joe McGraw, the newly elected vice-chairperson, dissented.
The Planning Board has not yet seen ZTA 18-09PB to know if it reads as requested.
The Planning Board also took up ZTA 18-10, the proposed oceanfront overlay district ordinance, at its Dec. 17 meeting, but it failed to act upon it, taking no vote. The measure, therefore, did not go to the Town Council in a timely fashion for a public hearing at the Council’s January meeting.
No Planning Board member supported ZTA 18-10 in December; and several spoke against it. Ms. Morey, who was elected Board chairperson on Jan. 22, described the overlay-district approach as “regulatory overreach” and said that it “will not necessarily arrive at the resolution that we want.”
The Board acted officially on ZTA 18-10 at its Jan. 22 meeting, recommending by a vote of 4-0 that it be denied. Although new Planning Board member Ed Lawler voted upon the nonconforming lots ZTA, he abstained from voting on ZTA 18-10, saying that he “recused” himself.
The Beacon would be very surprised if the Town Council did not follow the Board’s recommendation and defeat ZTA 18-10. Many options for preserving low-density development in Southern Shores’ residential districts, especially on the oceanfront, have been suggested since Nov. 7, and the Planning Board has made recommendations for preparing ZTAs that include some of them.
The big hearing tomorrow is expected to be about the nonconforming lots ZTA.
NONCONFORMING LOTS: COUNCILMAN NASON’S CONFLICT
On Sept. 5, 2018, the Town Council passed, by a 4-1 vote, with Councilman Christopher Nason dissenting, a ZTA (18-07) that replaced the existing ordinance on nonconforming lots, whose language the Town thought did not effectively prevent the sale and development of such lots. The original Code sec. 36-132 was enacted shortly after Southern Shores was incorporated in 1979.
ZTA 18-07 sought to clarify and expand upon the original sec. 36-132, in order to stop the recent trend in town of 100-foot-wide land parcels being divided, sold, and developed as 50-foot-wide lots. (See the development at 155 Ocean Blvd. as an example.) After it passed, the Town Council decided by consensus to return the ZTA to the Planning Board for what Mayor Tom Bennett called “refinements” and Councilman Jim Conners called “tweaking.” (See The Beacon, 9/6/18.)
The Town Council decided that certain property owners were unfairly harmed by ZTA 18-07, and that these “outliers,” as Mr. Conners referred to them, should be protected from its coverage through an exception. (The Beacon extensively covered ZTA 18-07 in multiple blogs in 2018.) One problem the Planning Board has faced since it received that directive is that new “outliers” have come to its attention. The latest ZTA draft by Town Attorney Ben Gallop posits the following exception:
A nonconforming lot (typically, a 50-foot-wide lot) that is located next to land that:
1) is owned by the same owner;
2) has an existing single-family dwelling on it, and
3) is made up of either:
- i) no more than two nonconforming lots (such as two 50-foot-lots that have not been “combined”) OR
- ii) “a single conforming lot not adjacent to any other land under the same ownership that was created after January 1, 2015 due to a recombination of two (2) previously nonconforming lots”
does not need to be combined with the adjacent land.
The language I quoted is the Mr. Love exception, as amended with the Mr. Hurd exception (concerning a 90-foot-wide nonconforming lot on Sea Oats Trail), which came to light Jan. 22, after Revised ZTA 18-09 had been prepared. Mr. Gallop acknowledged at that meeting that the Jan. 1, 2015 date was “arbitrary.” It’s a cutoff date. (Planning Board meetings are not videotaped.)
The Beacon believes that, although the Planning Board has been and is well-intentioned, it has not responded very well to the Town Council’s directive about refining the new nonconforming lots ordinance. The sudden loss of its chairperson, Glenn Wyder, in November has left it without clear direction and guidance. At its Jan. 22 meeting, Mr. Ward understandably asked Mr. Haskett to give Board members “prompts” for when they need to take required action.
The Beacon also believes that in the process of “refining” Code sec. 36-132, the Planning Board has allowed its provisions to become more confusing. Rather than responding to individual property owners’ unique situations, and therefore being preferential in their “refinements,” The Beacon believes that Planning Board members should consider the underlying intent of the nonconforming lots ordinance and what is fundamentally fair.
The Beacon’s conclusion is that if, at any time, a property owner owns a vacant nonconforming lot next to vacant property that he or she owns, regardless of whether that adjacent property is conforming or not, all of the vacant property should be combined, as soon as the property owner proposes building on any part of it, so that the whole parcel is conforming.
I opposed the Mr. Love exception at the Jan. 22 Planning Board meeting because this is precisely what happened at Mr. Love’s nonconforming lot at 64 Ocean Blvd.—which he told the Board he purchased from SAGA on Jan. 22, 2016 (the date of the deed) in order to “save” Southern Shores from SAGA’s potential wedding-destination/event house.Never mind that the Town Council approved its maximum-house size restriction the evening of Jan. 22, 2016, by a 3-2 vote.
Mr. Love demolished a flattop at 62 Ocean Blvd., which is his adjacent land to the non-conforming lot, on Feb. 10, 2016. Town records show that his architect, Christopher Nason, of Beacon Architecture & Design, submitted his CAMA site plan for 62 Ocean Blvd. on Feb. 17, 2016. Until such time as builder Allan Hutton broke ground at 62 Ocean Blvd., Mr. Love’s properties were vacant and subject to proposed development.
I argued to the Planning Board that Mr. Love was compelled under the then-existing sec. 36-132 to combine all three of his vacant lots, but Mr. Gallop said I was wrong and declined to talk with me after the meeting about my argument. The Board also ignored my contentions.
I have no quarrel with Mr. Love. But I believe passionately in good government and fundamental fairness and would like to think that the Town Council will ensure both tomorrow night when it considers ZTA 18-09 and the “outliers” the Planning Board sought to protect. Laws are made for the many, not for the few.
It appears from site plans in Town permit files that Mr. Nason has been working on the 64 Ocean Blvd. project since early June 2018. There is no doubt that his building plans for the five-bedroom, 4500-square foot house on the 50-foot-wide lot have been on file for months. (I have not updated these numbers since Dec. 3, when my perusal of the permit files for Mr. Love’s properties led to my being implicated in the vandalism at 62 Ocean Blvd. by a high-level town employee.)
Councilman Nason is clearly Mr. Love’s architect and, as such, he clearly has a financial interest in the final action taken by the Town Council on any version of ZTA 18-09. If he is present at the meeting, he must recuse himself.
When I learned from one of Mr. Nason’s Town Council colleagues last week that Mr. Nason had told him he would not be attending tomorrow’s meeting, I tried to confirm this with Mr. Nason. He refused to answer an email I sent him or a telephone message I left, and when I talked with him at the Town Code public forum on Jan. 31, he said, “I’m not going to comment to the press.”
Pointing out that I was also a town resident, and that he has an ethical obligation to respond promptly to town residents’ concerns, he replied: “You’ll find out when you arrive at the meeting.”
And so we will.
The Beacon reserves for another day a commentary about the public’s right to know and an elected official’s obligation to serve the public interest and respond to the press.
I’ll conclude with The Washington Post’s new slogan, which some of you may have seen for the first time in a Super Bowl ad that the newspaper sponsored: “Democracy dies in darkness.”
Ann G. Sjoerdsma, 2/4/19