3/15/19: BOARD OF ADJUSTMENT HEARING MONDAY: PROPERTY OWNERS AT 64 OCEAN BLVD. SEEK VARIANCE IN ORDER TO CIRCUMVENT TOWN ORDINANCE ON NONCONFORMING LOTS

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The land between these two large houses, at 64 Ocean Blvd., is presumably 80 feet wide: The nonconforming vacant lot is 50 feet wide, and there should be side setbacks of 15 feet at the adjacent properties of 62 and 64A Ocean Blvd.

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

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