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