Say NO! to beach nourishment.

Why? Because the Southern Shores oceanfront doesn’t need it. It is that simple. The dune system on our shoreline is stable.

So why is the Southern Shores Town Council even considering an estimated $9-$13 million sand replenishment project for a large portion of our beaches in 2022? And why is it holding a public hearing on the matter at its 5:30 p.m. meeting Tuesday in the Pitts Center?

I offer several answers:

1. Coastal-engineering consultant Ken Willson, whom Town Manager Peter Rascoe refers to as the “Town Coastal Engineer” and with whom he works hand-in-glove, orchestrated Tuesday’s beach-nourishment bandwagon scenario through progressive surveys in 2017-18, which show the Southern Shores 3.7-mile shoreline is stable, but nonetheless confound non-coastal engineers, also known as elected officials.

The impetus for Tuesday’s public hearing is the “Beach Vulnerability Assessment and Management Plan” that the Town Council confusingly authorized Mr. Willson on March 6, 2018 to conduct and that he filed in final form in December.

Mr. Willson’s plan outlines three exorbitant beach-nourishment “options,” covering 15,500 linear feet of the shoreline, for the Town to consider—IF it decides to go that route. The Beacon elaborated upon these options in detail Feb. 28, 2019, when it reported on the Town Council’s Feb. 26 special planning session, and will not repeat them here. Mr. Rascoe has been touting these three options as the “Town Coastal Engineer’s” “recommendations” in the lengthy public-hearing “notices” that he has arranged to post online or circulate in the mail.

Did you read the postcard you received?

(Please note: The beach nourishment being discussed now has nothing to do with the Pelican Watch oceanfront, which is a long-standing and well-known hot spot. The replenishment done there in 2017 will be maintained.)

2. Dare County needs to know “as soon as possible,” in April, according to Mr. Rascoe, whether Southern Shores intends to partake of the Dare County Beach Nourishment Fund in summer 2022, when Duck, Kitty Hawk, and Kill Devil Hills will be doing their five-year beach-nourishment maintenance and Southern Shores will be doing the same at Pelican Watch. The County reportedly would kick in 50 percent of the costs. Because of this money, which comes from occupancy taxes, the Town Council is feeling artificial time pressure and acting rushed when it needn’t be.

3. The Town Council, collectively, is befuddled by Mr. Willson’s surveys and reports and has deferred to him since he became part of the Southern Shores “fabric” in 2017, going along with whatever he suggests. If you have any doubt of this, queue up the video for the March 6, 2018 Town Council meeting, when Mr. Willson presented his “baseline” beach assessment report, and listen to the Council’s 15-minute discussion after he was done. It’s painful. I empathize, but it’s still painful.

If I were to speculate, on the basis of the comments made by the Council a year ago, how many of the members had read and absorbed Mr. Willson’s baseline report, I would say zero to one.

You may consider this blog an editorial. Frankly, I have already asked a top-notch N.C. environmental attorney what a property owner can do to stop a town government from embarking on unnecessary beach nourishment. I’ve said NO! to mini-hotels. I can say NO! again. (Full disclosure: Thanks to my parents, I am an oceanfront property co-owner. I have no problem with paying my fair share of increased property taxes if they are warranted. But I’m not keen on supporting a bigger government without just cause.)

Once undertaken, as Mr. Willson told the Town Council at its special planning session, beach nourishment becomes “an exercise in adaptive management. . . . It is never seen as a one-time event.”

Translation: It is a mortgage that Southern Shores can never pay off.

I do not believe that the Town Council, collectively, has done its due diligence on Mr. Willson’s vulnerability assessment and proposed beach-nourishment options. Due diligence here demands the procurement of independent outside expert analysis and advice. It demands at least a second opinion.

No responsible board, public or private, should ever consider committing more than $5 million of anyone’s money—but, especially, taxpayers’ money—until it has intelligently and comprehensively evaluated the need for the project it is thinking of funding.

I also have to wonder if Council members have heard what Mr. Willson himself has said on several occasions about the stability and condition of our shoreline. For more than two years, his message consistently has been: Southern Shores is in great shape. No worries.

At the February session, he told the Council: “The dune system in Southern Shores is in pretty good shape.” It is “fairly intact,” providing protection against storms and erosion.

If Southern Shores were to jump on the beach-nourishment bandwagon now, he said, it would be doing so much earlier than any other Outer Banks town has—ergo, much earlier than necessary.

If the Town Council approves a beach-nourishment project Tuesday evening after hearing from citizens and taking a vote, I believe it will be chasing the money because the money is there. (See answer no. 2.) It will not be because a thoughtful and responsible evaluation led them to conclude that beach nourishment is a necessary public service that must be performed now. (See no. 3.)

HOW WE GOT HERE

When Ken Willson first burst on the Southern Shores scene, it was as a “project manager” for the Wilmington, N.C.-based CB&I/Coastal Planning & Engineering of N.C., Inc. He spoke at the Jan. 17, 2017 town meeting-public forum on beach nourishment about planning for an eventual replenishment project.

Mr. Willson received his bachelor’s and master’s degrees from UNC-Wilmington in geology and earth science. He earned certification in coastal engineering from ODU University. You may see his forum presentation here: https://www.southernshores-nc.gov/wp-content/uploads/2017/01/Ken-Willson-Southern-Shores-Jan-17-2017.pdf.

The Town Council, with Mr. Rascoe’s guidance, authorized Mr. Willson, who is now vice president of Aptim Coastal Planning & Engineering of N.C., Inc. (APTIM), to do a baseline assessment of the Southern Shores beaches in 2017. APTIM has cornered the market on conducting beach profile surveys and project planning for Outer Banks towns, including, most recently, Duck, Kitty Hawk, and Kill Devil Hills.

That, to my mind, makes him an interested, i.e., biased, party. He stands to gain financially from whatever the Town Council decides.

Mr. Willson presented his 2017 beach assessment to the Council at its March 2018 meeting, informing members that “the shoreline is looking fairly stable” and there is “no big rush” to “jump” on beach nourishment.

“I think time is in on your side,” he concluded.

The results of his company’s surveys of 22 beach profiles, which are locations along the Southern Shores shoreline that are spaced 1,000 feet apart from each other, showed 1) the shoreline is “stable,” having lost only 0.4 feet (that’s five inches) between 2006 and 2017; and 2) the volume of sand in the system had actually increased during the same time period.

“The shoreline is looking pretty stable,” he said. “We’re not seeing any hot spots right now. The long-term averages and the short-term averages [for shoreline changes] look to be pretty stable, pretty manageable.”

But, he continued . . . we do see some areas along the shoreline that have less sand volume than others, some houses that are closer to the stable line of vegetation than other houses. He, therefore, recommended to the Council that it authorize APTIM to conduct a “vulnerability assessment of the oceanfront structures” and to determine the “minimum cross-section of [sand] volume” that should be maintained to protect the shoreline from storm damage.

And, just so the Town Council would have the information it needs, he said, he would provide a “five-year plan” for “what a project would look like” when he conducted the vulnerability assessment and the volume determination.

Not that the Town needs to implement that five-year plan, you understand.

Please refer back to answer no. 1 above. And no. 3.

The plan part of his “Beach Vulnerability Assessment and Management Plan” is, in fact, that five-year plan that Mr. Willson told the Town Council just a year ago it need not rush to put into effect.

The APTIM manager submitted a draft of this assessment/plan to the Town Manager on Nov. 20, 2018, but Mr. Rascoe didn’t publish it on the Town website. The final report was submitted Dec. 21, 2018, on the Friday before the Christmas holidays.

A public presentation by Mr. Willson, with a Q&A, in January or February, would have been informative and helpful. It did not occur. At the same time, the Town Council might have sent the assessment/plan out for review to independent experts. To my knowledge, that did not occur either.

No mention has been made in public of any due diligence. (See no. 3.)

To my mind, the most informative, experienced (40 years), and judicious speaker at the 2017 forum was Spencer Rogers, a coastal engineer with North Carolina Sea Grant, which is a research and education program affiliated with N.C. State University.

Mr. Rogers has a master’s degree in coastal and oceanographic engineering (U. Fla.) and a bachelor’s degree in engineering (U. Va.) and serves on the faculty of the University of North Carolina at Wilmington’s Center for Marine Science.

I would like to know how Mr. Rogers would evaluate Mr. Willson’s Beach Vulnerability Assessment and Management Plan. In particular, I would like to know what he thinks about the assessment’s methodology, which uses what Mr. Willson told the Council is a “numerical model that basically simulates a storm event.”

You “input” your beach profiles and your storm characteristics, such as wave heights, wave period, and water level—in this case, using those of Hurricane Isabel, a 2003 storm—he explained in March 2018, and then you “get a feel for what your damage might be.”

In other words, you project potential damage by cooking numbers.

But we know the damage that Isabel did to Southern Shores, and we know that 15 years later, our shoreline is stable. No hot spots. In fact, the amount of sand in our dune system has increased since Isabel. Mr. Willson said so himself.

You don’t have to be a coastal engineer or a geologist to know that storms throw shorelines out of equilibrium, and it takes time for them to adjust. Erosion occurs, but so does accretion, which is the natural process of sand replenishment: Sediment returns to widen the eroded beach again.

Town Councilman Fred Newberry, who is the only elected official with property in Southern Shores’ ocean district, said as much at the March 5 meeting. His comment that the dry-sand area—which Mr. Rascoe likes to call the “public trust ocean beach”—“comes, and it goes” was spot on. Dramatic change can occur in a matter of days.

It is unfortunate, but not surprising, that only a handful of people from the community heard what Mr. Willson said at the Town Council’s Feb. 26 planning session. The session was held at 9 a.m. on a work weekday and publicized without any mention of the agenda.

If you didn’t click on the “Agenda” link, you had no idea that Mr. Willson was even presenting his “options.” Once again, our Town government failed to be transparent. And the Council didn’t do much planning, either. (Here is the notice that appeared on the website: https://www.southernshores-nc.gov/southern-shores-town-council-special-meeting-february-26th-council-planning-session/.)

The four Council members who attended the planning meeting discussed setting up a joint Town Council-Town staff committee, or other constituted committee, to do financial planning and prioritizing of big-ticket projects in town, including beach nourishment. Organizing a committee looks a lot like due diligence.

But that thoughtful response went out the window as soon as Mr. Rascoe advised them at their March 5 meeting that, if they wanted to obtain Dare County funding in 2022, they had to decide now whether to “pull the trigger” on beach nourishment.

I am feeling railroaded.

A FINAL NOTE: The Town Council also will be holding public hearings Tuesday on all of the proposed zoning text amendments designed to curtail high-occupancy houses in the residential districts. The hearing on beach nourishment will be held within 10 minutes after the call to order, before any staff reports. The hearings on ZTA 18-10, 19-01, and 19-01CUP will be held during the “new business” portion of the meeting.

See the agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2019-04-02.pdf.

Ann G. Sjoerdsma, March 31, 2019

Since writing and posting my 3/20/19 blog, I have been feeling some of the “heartburn” that Town Planning Board Chairperson Elizabeth Morey said Monday night she had about zoning text amendment (ZTA) 19-01, which the Board unanimously voted to recommend to the Town Council.

Rather than swallow a Rolaids tablet, I am going to take a crack at telling you in plain English what the Planning Board intends with this zoning change: The Board seeks to prevent the construction of large vacation rental houses that would accommodate numerous people by limiting the number of overnight occupants in such structures to 14.

As a further preventive, the Board recommends restricting the septic-service capacity in all dwellings in Southern Shores’ residential district to 14 persons. That includes single-family homes that are not vacation rentals.

ZTA 19-01, as drafted, is imperfect. I sought yesterday to acquaint you with what ZTA 19-01 actually says and to point out some of its imperfections. Today, I wish only to tell you what the Board is aspiring to do with ZTA 19-01.

Please, please, please read the proposed ordinance for yourselves. It is not Town law yet, not until the Town Council approves it.

You do not need to be a lawyer to read and understand it. No one on the Planning Board or the Town Council is a lawyer. The ZTA is not beyond your (or their) comprehension, if you invest the time you need to understand it. And it is imperative that, as informed citizens and property owners, you know how your town’s zoning code may change. Here is the proposed ordinance:

https://www.southernshores-nc.gov/wp-content/uploads/2019/03/ZTA-19-01-PBVacationCottagesHDSepticCapacityLimit.pdf

It’s only two pages long. You can skip over the cover page and the preamble and begin reading on page three, which is page three of five of the ZTA itself.

Nothing pains me more than to sit through a discussion of a proposed zoning text amendment by the Town Planning Board or the Town Council and to know that members of these boards either have not read the ZTA or have read the ZTA and do not understand it. In other words, they’re not prepared to do good government.

Unfortunately, I have sat through many such discussions. Eyes always convey a lack of preparation and confusion, as do the questions asked. I’ve seen too many deer in the headlights. Too much “winging it.”

Please take the time to read the proposed ordinance and to understand what it means. Only you, the public, can hold your government accountable.

Thank you.

Ann G. Sjoerdsma, 3/21/19

The Town Planning Board voted unanimously Monday night to recommend to the Town Council ZTA 19-01, which seeks to limit occupancy in houses on the basis of their use and septic capacity, and not to recommend ZTA 19-01CUP, an identical measure that also included a provision to allow “high-density” vacation cottages under certain circumstances.

The Board’s recommendation passed with an amendment to ZTA 19-01 that would extend its coverage to the high-density RS-10 residential district, along with the RS-1 single-family and R-1 low-density residential districts.

Mallard Cove and the Southern Shores Landing are in the RS-10 district.

Sitting as the Board of Adjustment, the Board also denied the property owners of 64 Ocean Blvd. a variance that would have enabled them to build on this oceanfront lot, which is nonconforming because of its width (about 50 feet) and size.

The Town Code zoning ordinance (sec. 36-132) enacted last September to tighten regulations of the sale and development of nonconforming lots prevents them from building. (See analysis below.) Nonconforming lots are those lots that do not meet the minimum dimensions established by the town for building.

Both ZTA 19-01 and 19-01CUP are expected to come before the Town Council for a public hearing and vote at its April 2 meeting. The Council need not act according to the Board’s recommendations.

OVERVIEW OF ZONING TEXT AMENDMENTS

The Beacon has written extensively about these zoning text amendments, most recently on 3/18/19, but also throughout the months that the Planning Board deliberated on the problem of large, high-occupancy houses in the town’s low-density neighborhoods.

Each proposed ZTA limits septic capacity for all residential dwellings in the applicable districts to 14 persons. In contrast, the two structures that SAGA is building at 98 and 134 Ocean Blvd. each has a septic-system capacity for 24 persons.

Each ZTA also designates a vacation cottage as a new permitted use in the residential districts and specifies that a vacation cottage cannot be advertised to accommodate or designed or constructed to accommodate more than 14 overnight occupants, nor can it actually accommodate more than 14 overnight occupants. (See language of ZTA below.)

ZTA 19-01CUP further creates a conditional use in the RS-1 and R-1 districts of a “high-density” vacation cottage that may be built on a lot that is at least 175,000 square feet, or about four acres.

“High-density” vacation cottages may house more than 14 overnight occupants. Interestingly, as proposed, this conditional use does not apply to single-family dwellings.

Board Chairperson Elizabeth Morey said that to support this conditional use would be contradictory to the Board’s intention of ensuring low-density development. She and the other Board members made short work of rejecting the high-density option.

Board members had more trouble with understanding the “vacation cottage” permitted use authorized by the zoning text amendments, even though they had previously approved it.

Ms. Morey expressed concern for how the addition of this use in the town’s single-family dwelling and low-density residential districts might burden property owners.

After much discussion, Ms. Morey and other Board members were satisfied by Mr. Gallop’s and Town Planning Director Wes Haskett’s explanations about property use in a zoning district, and changes in its use, that the recommended ZTA 19-01 would not create a hardship for property owners.

“Does any other Outer Banks town have this vacation cottage language” in its zoning code? Ms. Morey asked Town Attorney Ben Gallop.

“No,” he replied. Southern Shores would be breaking ground.

NEW “VACATION COTTAGE” USE

Currently, the primary permitted use in Southern Shores’ residential districts is a detached single-family dwelling.

If approved by the Town Council, ZTA 19-01 would add to the list of permitted uses a “vacation cottage,” which it defines as “the use of a property and associated single-family dwelling in whole or in part for any part of a calendar year for the purpose of transient occupancy.”

To know what a vacation cottage is, therefore, you must know the definition of “transient occupancy.” As specified in ZTA 19-01, it is as follows:

“overnight occupancy . . . for periods of less than 30 days for vacation, leisure, recreation or other purposes by a person or persons who have a place of residence to which they intend to return including when such property or structure is offered in whole or in part for rent or use by the day, week or other period of less than 30 days.”

Mr. Gallop himself pointed out that this definition is overly broad, but no attempt was made by the Planning Board to alter it. As written, it would convert a single-family dwelling into a vacation cottage if, for example, a parent, who intended to return to his/her own home, stayed at an adult child’s home for more than 30 days of overnight occupancy for vacation, leisure, or whatever reason.

Strictly applying the ordinance, the adult-child homeowner would then be subject to the 14-person occupancy restriction imposed on vacation cottages.

As Mr. Gallop acknowledged, a vacation cottage, as defined, is not always a vacation rental. But it definitely covers all rentals, including those through Airbnb.

The syntax in the ZTA’s language about permitted uses strikes The Beacon as unnecessarily cumbersome and confusing. It is as follows:

“The following uses shall be permitted by right:

“(1) Detached single-family dwelling and vacation cottages provided that such residential structure shall be not be (i) advertised to accommodate, designed for, constructed for or actually occupied by more than fourteen (14) overnight occupants when used as a vacation cottage; or (ii) have a maximum septic capacity sufficient to serve more than fourteen (14) overnight occupants.”

Mr. Gallop said Monday night that this paragraph is intended to mean that the maximum 14-person occupancy restriction applies only to vacation cottages and that the septic capacity restriction applies to both single-family dwellings and vacation cottages. A clearer way to have stated this meaning is as follows:

“The following uses shall be permitted by right:

“(1) Detached single-family dwellings, which shall have a maximum septic capacity of or no more than fourteen (14) overnight occupants; and

“(2) Vacation cottages, which shall not be advertised to accommodate, shall not be designed or constructed for, and shall not be actually occupied by more than fourteen (14) overnight occupants and which shall have a maximum septic capacity of no more than fourteen (14) overnight occupants.”

It also seems to me that a different drafting approach could have been taken, so as not to clutter up the permitted uses provisions of each Town Code section on a residential district. The goal of this approach would have been to make this straightforward statement: “No more than 14 people may occupy a vacation cottage overnight.”

The Beacon too often finds that the language of zoning text amendments is not clean and poses unnecessary problems of interpretation.

VARIANCE HEARING

A case in point is Town Code sec. 36-132, the nonconforming lots ordinance that was enacted by the Town Council on Sept. 5, 2018 to arrest the trend of selling and building on 50-foot-wide lots that were previously part of larger parcels of developed land.

The Planning Board, sitting as the Town Board of Adjustment (BOA), heard Monday an application filed by attorney Starkey Sharp, on behalf of property owners Steven Love and his wife, Kathleen Gorman, for a variance from the operation of sec. 36-132.

In January 2016, Mr. Love and Ms. Gorman bought a 50-foot-wide lot, split off from a larger developed parcel, adjacent to their property at 62 Ocean Blvd. Last July, they transferred their ownership in what is now known as 64 Ocean Blvd. into a limited liability corporation (“LLC”) called For the Love of Pete.

The Beacon has written extensively about this situation and will not belabor the facts. The property owners are currently waiting for the Town of Southern Shores to act on their CAMA permit application, which has been placed on hold, because sec. 36-132 prevents them from building.

The Town Code standards for granting a variance are based on state law and are set forth in Town Code sec. 36-367(a). The language of sec. 36-367(a) is identical to N.C. General Statutes sec. 160A-388(d).

The longer-serving Planning Board/BOA members have participated in a number of variance hearings, including one held May 16, 2016 at the request of Mr. Love, who sought a variance on his 50-foot-wide lot from Town side-setback standards. That variance was granted. Despite this experience, however, Board members had difficulty Monday with applying the variance standards to the evidence presented in the hearing.

(A variance hearing is a quasi-judicial proceeding, not a public hearing. Witnesses must be sworn in to testify. Other rules of judicial procedure also apply.)

Although BOA attorney Jay Wheless reminded Board members that they are “triers of fact”—meaning they determine the facts in the evidentiary hearing—one newer Planning Board/BOA member openly advocated for Mr. Love, trying to make the case for him that neither he nor his own attorney made.

Substituting for his partner, Mr. Sharp, who he said was ill, attorney Casey C. Varnell represented Mr. Love and his LLC. Mr. Varnell showed an unfamiliarity with the facts, including the Planning Board’s and Town Council’s efforts to amend sec. 36-132,  and did not present any evidence. He chose not to examine Mr. Love, who attended the hearing and could have testified to whatever hardship he has experienced because of the nonconforming lots ordinance.

Mr. Varnell also failed to go through all four standards, arguing them in the light most favorable to his client. In contrast, Town Attorney Ben Gallop addressed them individually, making points in support of denying the variance.

It is the Board of Adjustment’s job to determine the facts–which are often contested– based on the evidence it hears, and then to apply the standards for granting a variance, set forth in Town Code sec. 36-367(a), to those facts.

The standards can be phrased as four questions. They are:

1)      Would an unnecessary hardship result if the ordinance [in this case, the nonconforming lots ordinance] were strictly applied to the applicant’s property?

2)      Does the hardship result from conditions that are peculiar to the property, such as its location, size, or topography?

3)      Did the hardship result from actions taken by the applicant [in this case, Mr. Sharp] or the property owner?

4)      Is the requested variance consistent with the spirit, purpose, and intent of the ordinance?

All that BOA members have to do is answer yes or no to each question, and then look at the totality of their responses when they are done. They don’t need to ask themselves upon positing each question whether or not they want to grant or deny the variance, as they did on Monday night.

There must be a 4/5 majority response of the Board favoring the grant of a variance on each question in order for a variance to be granted. That means four Board members must answer “yes” to questions 1, 2, and 4, and “no” to question 3 in order for the variance to be approved.

Upon discussing the first question about “unnecessary hardship,” Mr. Wheless explained to the Board that N.C. case law has established that this hardship cannot be exclusively financial. Mr. Varnell did not raise any other hardship in his presentation, and Mr. Gallop correctly pointed out that the hardship is not “unnecessary” because Mr. Love and Ms. Gorman can still recombine their lot at 64 Ocean Blvd. with their property at 62 Ocean Blvd.

All BOA members said “no” to this question, although Andy Ward spent some time trying to come up with a “hardship”—not an unnecessary hardship—that would qualify Mr. Love for a variance, despite the lack of evidence. He speculated, for example, that Mr. Love may have suffered “mental anguish.”

BOA member David Neal, who was also sympathetic to Mr. Love, asked whether rendering the lot unbuildable was a hardship.

Mr. Wheless replied: “It’s a hardship, but it may not be unnecessary. It is painful.”

Mr. Gallop argued that Mr. Love’s nonconforming lot at 64 Ocean Blvd. is not “peculiar,” as required by standard two, because multiple similar lots exist throughout Southern Shores. The language of standard two in the Town Code specifies that hardships “resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.”

All BOA members answered “no” to this question and “no” to the third question about self-created hardship. No one deemed Mr. Love’s delay of more than two years in building upon his property after he purchased it and obtained a side-setback variance from the BOA in 2016 an act of self-created hardship.

I believe I heard Mr. Gallop correctly to say that had Mr. Love and Ms. Gorman not transferred their ownership of 64 Ocean Blvd. into a limited liability corporation last July in anticipation of sec. 36-132 being enacted (as Mr. Sharp admitted in the variance application his clients did), and simply left the property in their own names, the ordinance would not now prevent them from building. I do not read new sec. 36-132 that way, but I’ll defer to the man who drafted it.

The BOA members split on their responses to question four, which asked them essentially if Mr. Love’s variance request, which, if granted, would give his property an exception to the nonconforming lots ordinance, defeated the spirit, purpose, and intent of the ordinance. The Beacon believes that’s a slam-dunk “no,” but only Chairperson Elizabeth Morey and Vice-Chairperson Joe McGraw agreed. Mr. Ward, Mr. Neal, and Ed Lawler, who was appointed to the Board in January, said the variance request was consistent with the ordinance.

Bottom line:

1)      Five No; Denial

2)      Five No; Denial

3)      Five No; Grant

4)      Three Yes, two No; Grant

The variance, therefore, failed because a 4/5 majority favoring the variance on each standard did not occur. Nonetheless, when a motion was made to deny the variance based on the vote on the four standards, Mr. Neal voted against it.

Town Code sec. 36-369 requires all Board of Adjustment members to be impartial and disallows members from participating in all quasi-judicial matters, including variance hearings, if they cannot be impartial. At the start of the hearing, Chairperson Morey asked members several “impartiality” questions, including whether anyone had a “fixed opinion prior to hearing the matter that is not susceptible to change.”

All members replied that they had no conflicts of interest and could be impartial.

Mr. Love may seek a review of the Board’s denial in the Dare County Superior Court, if he chooses. He has 30 days within which to appeal. (Town Code sec. 36-368(b))

Ann G. Sjoerdsma, March 20, 2019

Twenty-six candidates, including 17 Republicans, met the March 8 filing deadline to run in the race to succeed the late Representative Walter Jones (Rep.) and serve out his unexpired term as North Carolina’s third congressional district representative.

Mr. Jones of Farmville, N.C., died Feb. 10.

The primary election for Representative Jones’s seat, which he held from 1995 until his death, will be April 30. The general election or primary runoff will be July 9. In the event of a runoff, the general election will be Sept. 10.

The third congressional district includes all or part of 17 counties, including Dare and Currituck counties, as well as Marine Corps Base Camp Lejeune in Jacksonville and Marine Corps Air Station Cherry Point in Havelock.

According to “The State” newspaper, among the 17 Republican candidates are three sitting state legislators (Reps. Greg Murphy, Phil Shepard, and Michael Speciale); two Currituck County commissioners (Paul Beaumont and Mike Payment); and a member of the Lenoir County Board of Commissioners (Eric Rouse).

The Republican field also includes three physicians, Kevin Baiko, who is medical director of the N.C. Cannabis Patient Network, pediatrician Joan Perry, and Rep. Murphy, who is a urological surgeon; a Beauford County country music singer (Don Cox); and Phil Law, a Marine Corps veteran and IT contractor who ran unsuccessfully against Mr. Jones in the 2016 and 2018 GOP primaries.

Mr. Law, whose campaign signs can be seen in Southern Shores, lives in Jacksonville.

The six declared Democrats are New Bern Mayor Dana E. Outlaw; former Greenville Mayor Allen Thomas; Richard Bew, a retired Marine who served as a legislative director for the chairman of the Joint Chiefs of Staff; Ike Johnson, whom “The State” refers to as the chief executive officer of a mentoring organization; Ernest T. Reeves, a retired Army captain who lost to Mr. Jones in the 2016 general election; and Gregory Humphrey.

Shannon W. Bray and Tim Harris are vying for the Libertarian party’s nomination, and Greg Holt will be on the ballot in the general election for the Constitution Party, according to “The State” reporter Brian Murphy, who covers North Carolina’s congressional delegation from Washington for the Raleigh, Charlotte, and Durham daily newspapers.

Mr. Murphy reports that five candidates filed for the race with a residential address outside of the district: Republicans Francis X. De Luca (Cary), Graham Boyd (Wake Forest), and Jeff Moore (Raleigh); Democrat Mr. Reeves (Greenville); and Libertarian Party candidate Ms. Bray (Apex).

The remaining Republican candidates, not mentioned above, are Gary Ceres, Chimer Davis Clark, Jr., and Celeste Cairns.

AT LAST NIGHT’S TOWN PLANNING BOARD MEETING . . . The Board voted unanimously to recommend to the Town Council ZTA 19-01, which seeks to restrict high-occupancy houses on the basis of their use and septic capacity, and not to recommend ZTA 19-01CUP, a similar measure that also included a provision allowing “high-density” vacation cottages under certain circumstances. The Board also denied the property owners of 64 Ocean Blvd. a variance that would have enabled them to build on their nonconforming lot there, despite being prevented from doing so by a Town Code zoning ordinance.

THE BEACON WILL RETURN TOMORROW WITH A FULL REPORT ON THE PLANNING BOARD MEETING.

Ann G. Sjoerdsma, March 19, 2019

 

The Beacon would like to remind you that the Town Planning Board will be considering the two zoning text amendments (ZTAs) on high-occupancy houses that it directed the Town Attorney to draft at its meeting today. Although a public hearing will not be held, the public may offer comments on the merits of the ZTAs before the Board votes on whether or not to recommend either or both to the Town Council.

The Planning Board meets at 5:30 p.m. in the Pitts Center. It has not posted an agenda online, so The Beacon does not know the order of its business. The variance hearing upon which The Beacon reported 3/15/19 is also scheduled.

Both of the proposed amendments, ZTA 19-01 and ZTA 19-01CUP, create a new “permitted use” within the RS-1 and R-1 low-density residential districts of a “vacation cottage.” They further 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.

Thus, the Planning Board seeks to prevent high-occupancy houses in Southern Shores, such as the two 12-bedroom, 17-parking-space “mini-hotels” currently being built by SAGA on Ocean Boulevard (see photo above), by focusing upon the “use” of the residential structure and on the septic capacity of the structure.

ZTA 19-01CUP goes a step further than ZTA 19-01, however. It would allow “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 the ZTA defines as accommodating more than 14 overnight occupants and having a maximum septic capacity that serves more than 14 overnight occupants.

Here is ZTA 19-01, without the high-density vacation cottage option:

https://www.southernshores-nc.gov/wp-content/uploads/2019/02/ZTA-19-01-PBVacationCottagesHDSepticCapacityLimit.pdf

Here is ZTA 19-01CUP, with the high-density vacation cottage:

https://www.southernshores-nc.gov/wp-content/uploads/2019/02/ZTA-19-01CUP-PBVacationCottagesHDCUPSepticCapacityLimit.pdf

Currently, the only permitted use specified in the Town Code zoning chapter within these low-density residential districts, where we all live, is a detached single-family dwelling, without qualification as to whether it is a vacation rental or a home used exclusively by the property owners.

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.

The Beacon would not have distinguished between those single-family dwellings that are used as vacation cottages and those that are not.

You may read The Beacon’s critique of the two ZTAs here: https://wordpress.com/post/southernshoresbeacon.com/1095.

We support the septic-capacity restriction and oppose the new permitted use of a vacation cottage. We further adamantly oppose permitting high-density vacation cottages in the low-density neighborhoods, under any conditions, and trust the Planning Board will make quick work of disposing of ZTA 19-01CUP.

The five-member Planning Board will vote on whether to recommend either or both of the two ZTAs to the Town Council, with or without further amendments. Only the Town Council has the authority to amend the Town Code.

The Town Council will likely schedule a public hearing on the ZTAs, along with ZTA 18-10, which it tabled in February, at its April 2 meeting. ZTA 18-10 addresses the problem of “large” houses and their occupancy by creating an oceanfront overlay residential district and regulating within that district according to setbacks, building height, and other requirements.

The Planning Board unanimously voted not to recommend ZTA 18-10, which came out of a motion made by Councilman Jim Conners at the Town’s Nov. 7, 2018 special meeting on high-occupancy houses.

At the start of its Feb. 5 meeting, during which a public hearing on ZTA 18-10 was scheduled, the Town Council unanimously voted to table the measure. In doing so, the Council took the unusual action of canceling a hearing for which members of the public specifically had shown up and signed in to speak.

You may access ZTA 18-10 here: https://www.southernshores-nc.gov/wp-content/uploads/2019/01/ZTA-18-10-Large-Structure-Regulations.pdf.

For further analysis of the proposed zoning amendments, we refer you to The Beacon’s 2/23/19 critique.

Ann G. Sjoerdsma, March 18, 2019

In an unusual legal move, a Southern Shores property owner is seeking a variance to enable him to circumvent a town ordinance that currently prevents him from building on a nonconforming 50-foot-wide oceanfront lot that he owns with his wife in a limited liability corporation (“LLC”).

The property owner is Steven Love. But the applicant for the variance is his attorney, Starkey Sharp, of Kitty Hawk, who has previously spoken before the Planning Board and the Town Council on behalf of his client.

The nonconforming lot on which Mr. Love and his wife, Kathleen Gorman, would like to build a five-bedroom house designed by Town Councilman Christopher Nason is 64 Ocean Blvd. A hearing on the application for a variance that would enable him to get around the town law on the sale and development of nonconforming lots—before the Town Council has acted on an amendment to that law—will be held by the Town Board of Adjustment (“BOA”) on Monday, March 18, at 5:30 p.m.

The applicable ordinance is Town Code sec. 36-132, which was amended Sept. 5, 2018 by the Town Council (4-1, with Mr. Nason dissenting) to clarify and strengthen it. The Town took action then to stop a discouraging trend by property owners either to sell developed 100-foot-wide parcels as two 50-foot-wide lots or to redevelop 100-foot-wide parcels as two 50-footers.

Since then, the Planning Board has recommended further amendments to sec. 36-132, but the Town Council has not approved them. In fact, the Council voted unanimously on Feb. 5 to table proposed ZTAs on nonconforming lots and to order the Planning Board to comprehensively identify and assess the circumstances of all of the (vacant) nonconforming lots in town.

The Planning Board, which sits as the Board of Adjustment, will also have its regular monthly meeting on Monday. On its agenda are the consideration of two zoning text amendments (ZTAs) that deal with high-occupancy houses in the residential districts and a possible continued discussion of nonconforming lots, per the Town Council’s order.

(You may access the Town’s meeting notice here: https://www.southernshores-nc.gov/southern-shores-planning-board-meet-march-18-2019/. There is no public hearing on the high-occupancy house ZTAs.)

(The Beacon detailed the two ZTAs, 19-01 and 19-01CUP, in blogs of 2/22/19 and 2/23/19, and provided background on the nonconforming lots discussion 2/6/19 and 2/21/19. You will find links to The Beacon’s archives in the right-hand column, underneath the latest articles, on the blog home page.)

THE BEACON OPPOSES GRANTING THE VARIANCE

The Beacon has written on numerous occasions about Mr. Love’s 50-foot-wide lot. (See photo above.)

We have explained how he and his wife acquired it in a Jan. 22, 2016 sale by a limited liability corporation owned by SAGA Construction & Development, which split it off from a much larger parcel.

We also have explained our belief that the nonconforming lots ordinance in effect in 2016 either compelled Love-Gorman to recombine the 50-footer with the adjacent 100-foot-wide parcel they own at 62 Ocean Blvd. or directed that their properties be treated as a single lot.

The Beacon opposes the variance that Mr. Sharp seeks for Love-Gorman, who own 64 Ocean Blvd. through their LLC, “For the Love of Pete.”

We do not believe that the property owners meet the standards, including those of “unnecessary hardship,” that the Town Code specifies must be shown before a variance is granted. We also believe that the grant of this variance would set a poor and ill-advised precedent in Town.

(Town Code sec. 36-367 sets forth the standards for granting a variance. It is based on N.C. General Statute sec. 160A-388(d).)

Although the Planning Board has recommended an amendment to sec. 36-132 that would favor Mr. Love and Ms. Gorman, it has no authority or power to amend the ordinance. Until such time as the Town Council approves the zoning text amendment recommended by the Board, the law is what it is now, and it prevents the development of 64 Ocean Blvd.

To grant Mr. Sharp’s variance request would be, essentially, to amend the ordinance before the Town Council has done so. And it may not!

The Beacon can see only harm coming from allowing property owners to preempt official Town action so that they can do what they want to do according to their own timetable.

The fact that Mr. Starkey’s clients have filed an application for a CAMA minor permit, which is currently on hold, is of no factual or legal relevance.

FACTS OF THE CASE; VARIANCE ANALYSIS

The Beacon has previously laid out the circumstances of the acquisition and development of the Love-Gorman properties at 62 and 64 Ocean Blvd. Key to the factual timeline are the following events:

July 2, 2015: Love-Gorman buy 62 Ocean Blvd., which consists of Lots 1-2 of Block 6, on which a flat top known as Dunne’s Dune sits. Each lot is 50 feet wide, but the development overlaps both.

Jan. 22, 2016: Love-Gorman sign a deed with Nags Head Freehold, LLC, a limited liability corporation of SAGA’s, to purchase an adjacent 50-foot-wide lot that SAGA, acting as 64 Ocean Blvd. LLC, has split off from a larger property, which is at least 137 ½-feet wide. This lot becomes 64 Ocean Blvd. SAGA had proposed building a wedding-destination event house on the larger parcel. On the evening of Jan. 22, however, the Town Council, by a 3-2 vote, with Mayor Bennett and Mr. Nason dissenting, enacts an ordinance restricting the maximum house size to 6,000 square feet, thus foiling SAGA’s event-house plans.

Feb. 10, 2016: Demolition of the Dunne flat top at 62 Ocean Blvd. occurs, according to news coverage in The North Beach Sun.

Feb. 17, 2016: Architect Christopher Nason, of Beacon Architecture & Design, submits his CAMA site plan for 62 Ocean Blvd., according to Town planning records.

Feb. 26, 2016: Love-Gorman receive a CAMA permit to develop 62 Ocean Blvd., according to records.

May 16, 2016: The Town Board of Adjustment holds a hearing on an application by Love-Gorman for a side-setback variance on the 50-foot-wide lot at 64 Ocean Blvd. from 15 feet to 12 feet. This variance is granted.

June 2, 2016: Love-Gorman receive a building/floodplain development permit and a zoning/development permit from the Town of Southern Shores. Before they can obtain these permits, they are required by the Town to recombine Lots 1 and 2 of Block 6, which make up 62 Ocean Blvd. The new single lot is designated 2R in Block 6.

Construction on 62 Ocean Blvd. ensues after the permits are issued.

It is The Beacon’s contention that after the flat top was demolished and the two nonconforming lots at 62 Ocean Blvd. became vacant, the Town Code required all three lots making up 62-64 Ocean Blvd. to be treated as a single lot of 150 feet in width. Town Attorney Ben Gallop disagrees with this interpretation of then-Town Code sec. 36-132. Only a court can say who is correct. (This would be sec. 36-132(a)(2)(a).)

The Beacon also contends that as of Feb. 17, 2016, the date of Mr. Nason’s site plan, all three lots should have been combined into one single lot of record. This is how The Beacon interprets then sec. 36-132(a)(3), which read:

“When a nonconforming lot [64 Ocean Blvd.] entirely within the town is adjacent to one or more lots under the same ownership [62 Ocean Blvd.] and when any portion of a proposed structure [Mr. Nason’s proposed house] or required use is located on two or more lots [62 Ocean Blvd.], the lots shall be combined into one single lot of record.”

Once again, Mr. Gallop disagrees. Once again, a court is the final arbiter.

I conclude this legalistic argument with an observation: The Town Council that enacted sec. 36-132 did not intend to allow situations like the Love-Gorman situation to be created and exploited. It did not intend for 50-foot-wide nonconforming lots to be developed on the oceanfront or elsewhere in town. The Southern Shores zoning code specifically seeks to protect and preserve low-density development, not to destroy it.

Every ZTA prepared by the Town routinely refers in the preamble to Southern Shores as a “quiet, seaside residential community comprised primarily of small low-density neighborhoods consisting of single-family homes primarily on large lots (i.e., at least 20,000 sq. ft.).” This language is rooted in the Town’s Land-Use Plan, as well.

It seems to The Beacon that there is no clearer case of what the Town Council sought to prevent when it enacted sec. 36-132—thus codifying an important part of Frank Stick’s vision for Southern Shores—than development of what is now known as 64 Ocean Blvd.

The Beacon further believes that the side-setback variance that the Board of Adjustment granted the property owners in May 2016 violated the spirit, purpose, and intent of sec. 36-132 and should not have been granted.

Nonetheless, the property owners had more than two years in which to take advantage of this variance before the nonconforming lot ordinance changed Sept. 5, 2018, and they failed to do so.

ANALYSIS

In its analysis on Monday, the Board of Adjustment must answer a number of questions in the property owners’ favor before it can grant their variance. And then there must be a four-fifths majority concurrence of the five-member Board.

A threshold question in the Board’s variance analysis is whether an “unnecessary hardship” would result to Mr. Love and Ms. Gorman if the nonconforming lots ordinance is strictly applied to them. If they cross this threshold, one of the other questions that must be answered is whether the hardship resulted from actions taken by the property owners themselves.

(For an excellent article about these standards, see canons.sog.unc.edu/variance-standards-what-is-hardship-and-when-is-it-unnecessary/.)

Mr. Love and Ms. Gorman had two years and four months within which to proceed with construction on 64 Ocean Blvd., unimpeded in any way by the Town or the Town Code, but they failed to act. I know how I would answer the question about a self-created hardship.

A FINAL NOTE: For the past five years, the Planning Board has taken on the responsibilities of the Board of Adjustment, essentially wearing two hats. Before 2014, when the Town Council abolished the BOA because it had been idle for many years, they were separate boards with different membership.

The Beacon is greatly concerned that the Planning Board has already heard on multiple occasions from Mr. Sharp, Mr. Love, and Mr. Love’s builder, Allan Hutton, about development of 64 Ocean Blvd. Indeed, the Planning Board has approved a zoning text amendment that specifically gives the Love-Gorman property an exception to the nonconforming lots ordinance. It acted specifically for the benefit of these property owners.

Can members of the Planning Board truly be impartial in this variance hearing?

The Beacon thinks it may be time for the Town Council to consider reconstituting an independent Board of Adjustment.

Ann G. Sjoerdsma, 3/15/19

The repair of Hillcrest Drive from its intersection with Hickory Trail north to the SSCA tennis courts emerged unanimously at the March 7th Capital Infrastructure Improvement Planning (CIIP) Committee meeting as the committee’s current top recommended priority “target” for road improvements in Southern Shores in fiscal year 2019-20.

The seven-member committee, which is co-chaired by Mayor Tom Bennett and Town Councilman Jim Conners, will meet May 30 to take final stock of its recommendations, factoring in new road conditions in need of attention that may have arisen in the interim.

The Town Council considers the committee’s priority-target list when it makes a final decision in June on selected road improvements.

Also in May, the CIIP Committee will be considering any recommendations that members have for how to change the Town’s street standards to make them more environmentally friendly, particularly in regard to preserving the maritime forest. (See below.)

After Hillcrest Drive, which is beaten down by vacationer cut-through traffic every summer, the CIIP Committee unanimously approved the following projects, in descending order:

*(2) East Dogwood Trail, from N.C. Hwy. 12 east to Ocean Boulevard, a stretch of 670 linear feet (“LF”), which also requires stormwater improvement;

*(3) Sea Oats Trail, from 11^th Avenue north to Sea Oats Court (about 1,110 LF), although the committee also discussed repairing the road north to its intersection with Hwy. 12 and constructing a five-foot-wide sidewalk from Hwy. 12 to Sea Oats Court;

*(4) Dewberry Lane, a 230-linear-foot road off of Bayberry Trail near its intersection with East Dogwood Trail; and

*(5) Wax Myrtle Trail, from its intersection with East Dogwood Trail south to its end (about 2,720 LF), including Dolphin Run and Porpoise Run.

Town Manager Peter Rascoe said he had “redone” the latest list of priority targets “in light of recent meetings,” during which homeowners strongly objected to a proposed widening of South Dogwood Trail, a project that the co-chairs and other committee members had elevated to a high-priority status. (See The Beacon, 2/1/19, 2/8/19, 2/13/19, and 2/21/19.)

“Any reference to South Dogwood Trail, and any reference to a comprehensive plan” involving South Dogwood Trail, Mr. Rascoe said, “have been removed.”

South Dogwood Trail’s ranking as a priority target is now No. 11. There are 22 projects on the list, assigned to one of three groups: A, B, and C, with “A” consisting of the top four targets.

Mr. Rascoe, to whom the co-chairpersons usually defer in CIIP Committee meetings, also characterized the decision whether to rank the Hillcrest Drive project or the Sea Oats Trail project as the No. 1 priority as “a coin toss” for him and engineers with Deel Engineering, PLLC, with whom he consults.

Southern Shores has a contract with Deel Engineering that expires June 30.

Like Hillcrest Drive, the targeted section of Sea Oats Trail is also part of the well-traveled cut-through route.

In addition to the committee members and Mr.  Rascoe, Deputy Town Manager/Planning Director Wes Haskett, Police Chief David Kole, Public Works Director David Bradley, and Deel engineers Andy Deel and Joseph Anlauf also attended the March 7 meeting.

Mr. Rascoe announced that the projected budget for capital street funds in FY 19-20 is $662,340, which represents a levy of 5 cents (.05) on the current Town tax base value.

“You’re not going to get through one, two, three, four [on the priority list] in one fiscal year,” Mr. Anlauf said.

“Hillcrest Drive,” he observed, “will account for the full budget.”

SIDEWALKS ON HILLCREST, SEA OATS, AND EAST DOGWOOD, AND PRESERVATION OF THE MARITIME FOREST

The proposed Sea Oats Trail project seemed to grow with the CIIP Committee’s consideration of it. It remains to be seen how much of the road between its intersections with Hillcrest Drive and Duck Road (Hwy. 12) will be targeted for improvement, when it eventually is done.

Committee member Glenn Riggin suggested constructing a “walking path” on the north side of the street from Sea Oats Court to the intersection of Sea Oats Trail with Duck Road. Member Andy McConaughy supported that idea and suggested that a similar sidewalk be considered for Hillcrest Drive, near its intersection with Duck Road.

Police Chief Kole said he thought any sidewalk on Sea Oats Trail should go beyond Sea Oats Court, for safety reasons, and Mr. Anlauf said the preferred side for a sidewalk on the street, from an engineer’s perspective, is the south side. (Sea Oats Trail runs north-south until Sea Oats Court, when it curves east toward Duck Road.)

Flooding is a problem on Sea Oats Trail in this area. Because of “huge stormwater problems,” Mr. Anlauf said, “The shoulders of the road will have to change dramatically from what you see now.”

Mr. Rascoe reported that he also had evaluated the East Dogwood Trail block between Duck Road and Ocean Boulevard for sidewalk construction. Based on his and Mr. Bradley’s “eyeballing” of the road and the right of way, Mr. Rascoe concluded that “a narrow sidewalk,” of 36 to 48 inches in width, could be built on the south side.

After the discussion about priority targets ended, committee member Carlos Gomez brought up changing Town street standards to better “protect the value of the maritime forest.”

Mr. Gomez made a protracted motion—one of two he had in mind—that seemingly would have tasked the Town Planning Board, the committee, or another group, with reevaluating the Town street standards so as to “maximize preservation of the forest.”

In his presentation, Mr. Gomez referred to the conflict that arose in town recently with the proposed widening of South Dogwood Trail and suggested that the Town should do more to individualize street standards so as to protect the forest, which he called a “treasure” that gives Southern Shores much of its “identity.”

Committee member Al Ewerling, who lives on South Dogwood Trail, agreed that “the look and feeling” of a road, which are part of the “overall ambiance of the town,” should be factored into any road-design standards.

It was unclear what, specifically, Mr. Gomez was requesting in the one motion he made, which Mr. Ewerling seconded. Turning the discussion toward practicalities, Mr. Rascoe suggested that the emphasis be on “specific changes,” rather than on aspirations.

Theoretically, Mr. Rascoe pointed out, the Town could specify that no trees be removed during any road rebuilds.

Although Mayor Bennett expressed a willingness to consider changes to the street standards, his co-chair, Mr. Conners, opposed such scrutiny, defending the current standards as comprehensive.

The Mayor eventually proposed that committee members do their “homework” and come back in May “with recommendations on how to change standards or not.” Mr. Gomez accepted this approach and withdrew his motion.

A FINAL NOTE ON SUMMERTIME TRAFFIC: The CIIP Committee meeting ended with a note of divisiveness when Mr. McConaughy brought up diverting vacationer traffic away from the residential cut-through route and asked about last summer’s no-left-turn (“NLT”) weekend. He met immediate resistance from Police Chief Kole, Councilman Conners, and others.

In The Beacon’s opinion, the same biases that existed last June when the NLT weekend took place—and was a resounding success—still exist and do not bode well for residents.

Frankly, The Beacon does not understand why Chief Kole is not doing everything that he can to help year-round Southern Shores residents on summertime weekends. He is a public employee/servant. The Beacon also does not see the humor in the Chief’s reference to drivers speeding through our neighborhoods as “job security.”

It is undeniable that the traffic flow through the Southern Shores woods and dunes and along N.C. Hwy. 12 during the NLT weekend was vastly improved over the usual summertime traffic flow.

The cut-through traffic, which usually emerges at the intersections of Hillcrest Drive/Duck Road, 11th Avenue/Duck Road, and Sea Oats Trail/Duck Road, was not present to jam up Duck Road, so the thoroughfare traffic moved smoothly, as well. The only backup I witnessed on Duck Road occurred on the Saturday afternoon of the NLT weekend. Sunday was a breeze.

The Chief complained at the CIIP Committee meeting about the manpower his department invested in the NLT experiment and the few calls he received from residents on Wax Myrtle Trail and Sea Oats Trail, between East Dogwood Trail and Hillcrest Drive, who saw a slight uptick in traffic in front of their houses.

In a discussion after the committee meeting adjourned, Mr. McConaughy suggested hiring a contractor to handle the erection of barrels, which the Town could purchase, to block the left-turn lane on U.S. 158 at the South Dogwood Trail intersection. Certainly, the Town has ample funds to dedicate to preventing cut-through traffic in the residential district, and, thereby, also improving flow on Hwy. 12,  if it so chooses.

Ann G. Sjoerdsma, 3/11/19

If the Southern Shores Town Council ventures into the sale and development of nonconforming lots in town, as its agenda for tomorrow night’s meeting suggests it will, it will be adding to procedural irregularities that already have occurred in the Town’s handling of these matters and which it sought to cure in a unanimously approved directive to the Planning Board just last month.

The Town Council meets tomorrow at 5:30 p.m. in the Pitts Center.

The meeting agenda currently online shows that both Councilman Jim Conners and Mayor Tom Bennett will be making proposals concerning nonconforming lots under “old business.” Mr. Conners’s proposal appears clearly out of order, and the Mayor’s proposal is questionable, in The Beacon’s view.

(You may access the agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2019-03-05.pdf.)

The Beacon believes both proposals raise ethical questions for these Town officials relating to an appearance of impropriety, independence of their office, and special treatment given to a property owner.

The Beacon also believes that, if either or both of these proposals come to a vote, architect and Councilman Christopher Nason should be compelled to give a full accounting of his business and financial relationship, and that of his architectural firm, with allegedly former client-property owners who seek to develop a nonconforming oceanfront lot, but are currently prevented by Town ordinance from doing so.

At the Council’s Feb. 5 meeting, Mr. Nason said he was no longer “the architect of record” for Steven Love and his wife, Katherine Gorman, who own the nonconforming lot at 64 Ocean Blvd., through their limited liability corporation, For the Love of Pete.

The Beacon finds this characterization about Mr. Nason’s status both meaningless and specious in terms of assessing his conflict of interest. Mr. Nason designed the house that Mr. Love and Ms. Gorman have proposed building, and his building plans are on file in the Town Planning Dept.

That there is no sworn statement in the CAMA permit file for 64 Ocean Blvd. from Mr. Nason and Mr. Love disavowing any financial arrangement between them is of more significance to The Beacon. Instead, there is an unsigned typed statement purportedly from Town Manager Peter Rascoe saying that the Town was “notified on January 10, 2019”—by whom and how, he does not say—that Mr. Nason is no longer the “architect of record.”

The Beacon finds this assertion, like Mr. Nason’s own assertion at the Feb. 5 meeting, meaningless.

Other noteworthy items on what is otherwise a routine Town Council meeting agenda include a discussion about the makeup of the Capital Infrastructure Improvement Planning (CIIP) Committee, which Councilman Fred Newberry has requested, and a closed session between the Council and Town Attorney Ben Gallop, which will take place after all other business is concluded.

Mr. Newberry told The Beacon that he believes the Town’s CIIP Committee, which assesses and recommends to the Council the prioritization of capital improvement projects in a given fiscal year, should be a “citizens-only group like the Planning Board.” He expressed concern about the “undue influence” that the two Town Council members on the committee may have on the other five members.

The CIIP Committee is currently chaired by Councilman Conners and Mayor Bennett. The other five members are appointees of Mayor Bennett and Mr. Conners (thus giving them a presumptive majority of four); Councilmen Newberry, Nason, and Gary McDonald; and former Councilman Leo Holland.

At the committee’s Jan. 30 meeting, Co-Chairperson Conners made a motion to recommend to the Town Council that it consider the Town engineers’ design for widening South Dogwood Trail to 24 feet, even though three committee members were absent and the public, including the Dogwood Trails Task Force, has never supported widening this road.  (See The Beacon, 2/1/19)

The closed session between the Town Council and Mr. Gallop concerns a property owner’s appeal of the zoning permit that the Town issued to SAGA Construction and Development (acting as 134 Ocean Blvd., LLC) for 134 Ocean Blvd.

FULL DISCLOSURE: I filed the appeal paperwork and paid the $350 filing fee for the out-of-state property owner who brought this action. I know the property owner because she is a petitioner in the appeal of the CAMA permit issued to SAGA for 134 Ocean Blvd. ( See http://www.nominihotels.com.) Her lawyer, who is also my lawyer in a personal matter, prepared the appeal, and she reimbursed me for the filing fee. (I gave a brief report on this zoning-permit appeal in a March 2 Beacon Facebook post. The hearing before the Town Board of Adjustment has yet to be scheduled.)

IRREGULARITIES AND ZONING TEXT AMENDMENT 18-09PB

The Beacon has extensively covered attempts by both the Town Planning Board and the Town Council to restrict the sale and development of nonconforming lots in town—in particular, 50-foot-wide lots, which once were part of a larger, developed 100-foot-wide-or-wider land parcel.

The Town Council enacted a new nonconforming lots ordinance last September, replacing Town Code sec. 36-132 in its entirety. (This update is not reflected in the Town Code version that is currently online.) At the same time, however, the Council asked the Planning Board to make some refinements to the new ordinance so that certain property owners, some of whom were identified by name, would not be unduly burdened.

Thus far, the Planning Board has directed the drafting of three different versions of the “refinement” zoning text amendment (ZTA), known as ZTA 18-09. (See The Beacon’s report, 2/4/19, for background.) Its latest attempt is ZTA 18-09PB, which the Board approved in principle on Jan. 22.

ZTA 18-09 was not reduced to writing, however, until Jan. 25, so the Planning Board did not approve and recommend the letter of the ZTA.

By the time the Planning Board met again, on Feb. 19, the Town Council had given it new instructions. Pursuant to a motion that The Beacon described in its Feb. 6 posting as “rather convoluted,” the Council unanimously agreed, with Mr. Nason voting, that the Planning Board should comprehensively identify and equitably assess all (vacant) nonconforming lots in town. (The Beacon assumed it meant all such lots that are vacant.)

According to the March 5 Town Council meeting agenda, Councilman Conners now appears to be wanting to circumvent this unanimously approved directive by proposing that the Council adopt the “Planning Board’s recommendation” of ZTA 18-09PB, which the agenda item incorrectly states was subject to a “public hearing held Jan. 8, 2019.”

Mr. Conners made a similar motion to approve the so-called “PB” version at the Council’s Feb. 5 meeting, but it died without a second.

The Beacon believes Mr. Conners’s proposal is procedurally irregular for several reasons, the most significant of which is that this zoning text amendment has never been the subject of a public hearing.

The Planning Board does not hold public hearings; it only entertains public comments.

The Town Council met on Jan. 8, but it did not hold a public hearing on ZTA 18-09PB. How could it? The ZTA wasn’t drafted until Jan. 25.

The Beacon wonders what the impetus for Mr. Conners’s motion is. If he goes forward with it, he should give the public an accounting. The public deserves to know, in particular, if he is giving any citizen “special consideration, treatment or advantage . . . beyond that which is available to any other citizen,” as he is ethically prohibited from doing under standard no. 7 of the Southern Shores Code of Ethics for Council members.

The Beacon believes Mayor Bennett should provide a similar accounting for why he will be proposing that the Planning Board consider a ZTA that, according to the March 5 agenda, would allow the “sale or development of a nonconforming lot that is at least 20,000 square feet in area and greater than or equal to 50 feet in width.”

Is he seeking “special consideration, treatment, or advantage” for any citizens with this intervention? Why is he intervening at all?

According to a survey submitted to the Town for 64 Ocean Blvd., the lot area west of the vegetation line on Mr. Love and Ms. Gorman’s oceanfront property is 17,063 square feet. While Styons Surveying indicates that the entire lot area of the property is 23,770 square feet, this includes a dry-sand area east of the vegetation on which the property owners cannot build and which also is subject to public access because of North Carolina’s public-trust doctrine.

The Town’s minimum-required lot area of 20,000 square feet clearly pertains only to the building area.

CIIP COMMITTEE MAKEUP AND PUBLIC REPRESENTATION

Councilman Fred Newberry served on the Town CIIP Committee from Aug. 1, 2017 until Dec. 5, 2017, because he was mayor pro tem. On Dec. 5, Mayor Bennett succeeded in dispossessing Councilman Newberry of his authority in what The Beacon considers a display of bias that reflects poorly on the Town’s government.

In fact, the power that the CIIP Committee and its two Town Council members now hold on capital infrastructure improvements is a direct result of Mayor Bennett’s decision to abolish all four of the Town’s standing committees—yes, the Town used to have citizen committees—because of their alleged “ineffectiveness,” according to minutes of the Dec. 6, 2016 Town Council meeting. (See https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Minutes_2016-12-06.pdf.)

On Dec. 6, 2016, the Town Council approved the Mayor’s proposal to abolish the capital improvement, finance, planning, and public safety committees, by a 3-2 majority, with Councilmen Nason and Holland joining the Mayor in supporting his motion; and Councilmen Newberry and McDonald opposing it. Thereafter, the Mayor fashioned the CIIP Committee to give himself substantial control over it.

At the Aug. 1, 2017 Town Council meeting, Mayor Bennett made a motion to name himself and the mayor pro tem, then Mr. Newberry, to the reconstituted CIIP Committee. This motion carried unanimously. Four months later, however, at the same meeting during which the newly elected Mr. Conners was sworn into office, Mayor Bennett moved to appoint Mr. Conners to the CIIP Committee in place of the mayor pro tem. This motion carried 3-2, with Councilmen Newberry and McDonald opposing it.

Making this display of bias even more egregious (in The Beacon’s view), Mayor Bennett made this motion immediately after he moved to appoint Councilman Nason to serve as mayor pro tem. This motion carried by the same 3-2 majority of Bennett-Nason-Conners.

In light of the Town Engineer’s designs for widening South Dogwood Trail, which Co-Chairs Conners and Bennett requested, and Mr. Conners’s motion Jan. 30 to “fast-track” this road project, which committee member Al Ewerling managed to table, The Beacon supports Mr. Newberry’s suggestion that the committee be changed to an all-citizens advisory board.

The public outcry that occasioned news of the committee’s tentative plans for South Dogwood Trail, and which compelled the committee to step back, is evidence enough that the committee is not serving the community’s interests as well as it should.

The people of Southern Shores deserve better than this.

Ann G. Sjoerdsma, March 4, 2019