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.
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.
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