After I posted yesterday’s blog about the two proposed zoning text amendments (ZTAs) designed to prevent high-occupancy large houses in Southern Shores, a reader wrote to say that my explanation was too legalistic.
I tried to be otherwise, but, unlike journalists who have no legal training, I am wary of paraphrasing the precise language of laws. I also wrote my blog quickly in order to post it last night. If what I wrote was confusing, I apologize.
I now take another crack at explaining what the ZTAs seek to do.
Both ZTA 19-01 and ZTA 19-01CUP amend the Town Code zoning chapter to prohibit vacation cottages from having more than 14 overnight occupants and from having a septic capacity that serves more than 14 overnight occupants.
ZTA 19-01CUP goes a step further, allowing high-density vacation cottages to exist in low-density residential districts, provided they are constructed on lots that are at least 175,000 square feet in size. High-density vacation cottages are those that, by definition, accommodate more than 14 overnight occupants and have a maximum septic capacity that serves more than 14 overnight occupants.
I adamantly oppose high-density vacation cottages, under any conditions, and trust the Planning Board will make quick work of disposing of ZTA 19-01CUP, voting not to recommend it to the Town Council. (Only the Town Council can amend the Town Code. The Planning Board makes recommendations.)
I think it’s unfortunate that the Town Attorney drafted the proposed language about high-density vacation cottages. While the Planning Board discussed such an exception, it did not expressly approve it. But its instructions to the Town Attorney were often open-ended.
Moving on . . .
ZONING LAW ANALYSIS
Bear in mind that we are dealing with zoning law here. Zoning law regulates the use and development of land. These ZTAs attack the mini-hotel problem by expanding upon the permitted uses of land within the residential districts. I’ll explain.
The current Town Code permits the land within the RS-1 single-family residential district, which I said yesterday encompasses most of the town, where we all live, to be used only for the development of detached single-family dwellings. (sec. 36-202(b)(1)) It does not specifically mention vacation rentals among the so-called “permitted uses” of the land.
The Planning Board could have decided to restrict occupancy and septic capacity of all single-family dwellings in the RS-1 and R-1 low-density residential districts, but it did not want to infringe upon homeowners who do not rent their houses. I would have taken this approach.
Instead, the Board authorized a ZTA that creates a new permitted use, that of a “vacation cottage.” The ZTA defines a vacation cottage—an amendment to the definition section of the zoning chapter (sec. 36-57)—as “the use of a property and associated single-family dwelling . . . for any part of a calendar year for the purpose of transient occupancy.”
Transient occupancy is defined in the ZTAs, also by amendment of sec. 36-57, as overnight occupancy of a residential structure for a period of less than 30 days by a person or persons who have a place of residence elsewhere to which they intend to return. The definition refers to “rent or use” of a residential structure “by the day, week, or other period of less than thirty (30) days.”
Most such transient occupants presumably would be vacationers.
The ZTAs further allow vacation cottages to be a “permitted use” of land within the residential districts only if they are not “advertised to accommodate, designed for, constructed for or actually occupied by more than 14 overnight occupants.”
This restriction on advertisement addresses the question of enforcement.
How do you know if an existing, rather than a to-be-constructed, vacation cottage is being occupied by more than 14 people? The police cannot go door-to-door, asking the occupants of vacation cottages how many people will be spending the night.
(The definition of vacation cottage also refers to its advertisement.)
Deputy Town Manager/Planning Director Wes Haskett said at Planning Board meetings about these ZTAs that the Planning staff would peruse advertisements on rental companies’ websites, Airbnb, vrbo.com (vacation rentals by owners), and the online sites of other rental agents to ensure compliance with the new ordinance. Complaints from neighbors would also drive enforcement.
MY OWN ANALYSIS
During the Planning Board’s deliberations over “options” for preventing high-occupancy dwellings in Southern Shores, I tried to be open-minded. I supported the septic-capacity limitation—for all dwellings in the residential districts—and I otherwise asked the Planning Board to keep things simple.
I thought the Board’s move toward restricting maximum house size to 5,000 square feet was a simple solution that the Town Council should have been offered for consideration. But the Board overruled itself on this solution, so it does not appear in either ZTA.
By keeping things simple, I meant exercising restraint in amending the Town Code so as to make only those minimal changes that are necessary to achieve the objective. Complex or complicated language in an ordinance inevitably gives rise to differing interpretations.
Also, expansion of language spawns further expansion of language. Part of the reason for this is the camel’s-nose-under-the-tent theory. Once you break ground by amending a section of the Town Code that has never been amended, in order to add a new “permitted use” of the land in residential districts, for example, it is easier to amend it again and add another use.
You also may need to amend your amendment to clarify, refine, tweak, and otherwise fix what you’ve done.
I am not a proponent of the vacation cottage “permitted-use” option for controlling high-occupancy/density development. I do not favor distinguishing between single-family dwellings and vacation cottages. But I am a pragmatist. There appears to be majority support on the Planning Board for this option, and if there is on the Town Council, as well, then this option will become law.
If I were on the Board, I would recommend a ZTA with the septic-capacity limit only.
As I wrote in a response to the reader who called me out on my legalistic explanation, every word of an ordinance, statute, regulation, or any type of law is carefully chosen and precise. Every drafter of a law strives to write “clear and unambiguous language.”
When I analyze a proposed ordinance, I ask:
- Is the proposed language going to achieve the objective that the lawmakers seek to achieve?
- Does the proposed language give rise to any unintended adverse consequences?
Like most former and active lawyers, I can spin out unintended adverse consequences. I can identify loopholes. Indeed, I did so in the comment I posted last night, when I mentioned that the ZTAs allow for the possibility that a vacation cottage can accommodate more than 14 people as long as it is rented for longer than 30 days.
I grew up in Montgomery County, Maryland, lived in Baltimore for more than a dozen years, and still travel to the Washington, D.C.-Baltimore area regularly. I am well aware of the popularity of group rentals of beach houses in Ocean City, Md., and the Delaware beaches for the summer. The rental period is for 90 days. A handful of people’s names appear on the rental contract, but upward of 20 or more people actually use the house over the summer.
Or consider this scenario: A property owner builds a 10-bedroom dream “single-family dwelling” with the intention of using it personally as a second home and never renting it. The installed septic system will accommodate 20 people. Down the road, however, the property owner decides to rent the house or to sell it to someone who intends to rent it.
Does the house become an albatross that can’t be used? Would a future Town Board of Adjustment grant a variance so that it can be used as a “vacation cottage,” provided no more than 14 people occupy it overnight?
So that the house does not become an albatross, would the property owner desirous of renting it keep it “off the grid,” advertising it only through a means that the Town would not monitor, such as an unknown out-of-state agent?
Is the Town going to monitor Craig’s List, Facebook, Twitter, and other current and future means by which people connect online?
I am sure, with time, I could spin out other unintended adverse consequences, but I am not sure how helpful such an intellectual exercise is. The clock is ticking. That is why I turn to you, and ask you to read these ZTAs and tell me what you think.
Here they are separately:
ZTA 19-01, without the high-density vacation cottage:
ZTA 19-01CUP, with the high-density vacation cottage:
I hope my explanation in this blog of the two ZTAs is clear, plain, and unambiguous. I look forward to your comments and insights.
Ann G. Sjoerdsma, 2/23/19