Restricting septic-service capacity in Southern Shores houses, whether they are used as private residences or vacation cottages, has never been viewed favorably by Town Attorney Ben Gallop. The risk of the Town getting sued if it enacts ZTA 19-01 PB’s septic-capacity limit of 14 persons is “substantial,” he said at Tuesday’s Town Council meeting.
(You will recall that the Town Council approved ZTA 19-01PB, 3-2, falling one vote short of its enactment on first reading. A second reading and vote on the measure will be held at the Council’s May 7 meeting. See The Beacon’s reports of 4/3/19 and 4/4/19.)
During the Town Council’s discussion of the proposed occupancy-limiting ZTA, Mr. Gallop said that he would rather defend the ordinance on its use provisions, than on its septic-capacity provision.
If the validity of the septic-capacity provision were challenged, it would likely be on the grounds that such a restriction violates the N.C. statute that prohibits towns from regulating the “number and types of rooms” in new single-family homes. (See yesterday’s blog about Senate Bill 25.)
The Dare County Health Dept., not the Town of Southern Shores, determines septic capacity. To calculate capacity, the health department routinely uses the number of bedrooms in a house, according to local builders: One bedroom usually equates to two people. You, therefore, could argue that the Town is actually imposing a bedroom restriction by enacting a septic-capacity limit.
The Beacon does not find this argument persuasive, but The Beacon is not a trial judge. Nor are we on the Town Planning Board.
In deliberating over ZTA 19-01PB, the Planning Board might have settled on a septic-capacity cap other than 14 persons, which clearly refers back to the Town’s seven-bedroom restriction. How about a number not divisible by two, such as 11, 13, or 15? It is not too late for the Town Council to change the number in the proposed amendment.
In January 2016, when the Town Council passed the 6,000-square-foot maximum house size ordinance, it also considered retaining the 14-person septic-capacity limit. Mr. Gallop discouraged Council members from doing so because of the “risk.”
Mayor Pro Tem Christopher Nason asked Mr. Gallop Tuesday if “septic is any more defensible now” than it was previously. Has anything changed in the past few years? “No,” the Town Attorney replied. Nothing.
Undeterred by the perceived risk of a lawsuit, Councilman Jim Conners defended his motion to approve ZTA 19-01PB’s septic-capacity provision, but not the use provisions, in part, by observing that Duck and Nags Head have septic-capacity limits, and neither town has been sued. (You will recall that Mr. Conners’s motion failed.)
Mr. Conners also argued that in differentiating single-family homes by their use, ZTA 19-01PB creates a “muddy mess.”
“A single-family home is a single-family home,” he said. If the Town adds the “vacation cottage” use to the permissible uses of structures in the Town’s residential districts, he continued, “It’s setting up a nightmare.”
Mr. Nason, who opposes a septic limit because of the risk, also invoked nightmare imagery at the Council meeting, referring to the implementation of ZTA 19-01PB’s use provisions, which he found “interesting,” as “a nightmare in transition.”
Nonetheless, the Mayor Pro Tem said he was not “scared off” by the use provisions because they would be better to “litigate or control.” He did acknowledge difficulties in enforcement, however, and said he thought the ordinance was “complicated.”
Councilman Gary McDonald, who was the Council’s chief proponent for approving ZTA 19-01PB, as written, focused on the advertising component of the new “vacation cottage’ use as being key to its success.
If a newly constructed vacation cottage is advertised as accommodating more than 14 overnight occupants, it is no longer a permitted use. The ordinance “limits how [vacation cottage owners] can advertise,” Mr. McDonald said.
The question of how the ordinance would be “triggered” also was considered during this discussion, principally by Mr. Gallop.
Clearly, if a zoning-permit applicant presents the Town with a health department permit for a 16-person septic system, the ordinance would be triggered, and the zoning permit would not be granted. But suppose an applicant secures a 14-person septic permit, how would the ordinance be triggered in the event of a violation—especially if an applicant does not advertise or advertises in an unlikely or untraceable forum?
Like most of the Town code enforcement that occurs now, it would likely be driven by neighbors’ complaints.
Early in Tuesday’s discussion, Town Manager Peter Rascoe brought up the issue of staff enforcement, plainly telling the Council, “We’re not the bedroom police.”
The Town can respond to noise complaints, advertising for more than 14 overnight occupants, and illegal parking, Mr. Rascoe said, but it won’t be “counting heads.”
If the Town Council wants staff to enforce the occupancy restriction, it will have to develop a policy of enforcement, Mr. Rascoe said.
Town Code sec. 1-6(d) covers the enforcement of the zoning chapter through the imposition of civil penalties. The Town will have to decide how many warnings it will give occupancy violators—through the owner’s agent or, perhaps, by contacting the owner through a registry system that it sets up—before it issues a citation.
How many violations would justify revocation of a zoning permit? Isn’t that the ultimate penalty?
THE FINAL VOTE
Although Town Council members appeared confused during Tuesday’s meeting about the proposed zoning text amendment, and there was some befuddlement about the content of the motions proposed and how members voted, the positions of the five elected officials emerged.
Councilmen McDonald and Fred Newberry squarely supported the septic-capacity limit and use provisions of ZTA 19-01PB. Councilman Conners opposed the use provisions, and Councilman Nason opposed the septic-capacity limit.
Mayor Tom Bennett staked out a middle-ground position with which Councilmen McDonald and Newberry may have agreed, but they did not say so. Mayor Bennett made it clear that he believes the Council has to “get something on the books . . . to prevent recurrence of these 12-bedroom homes.”
The Mayor was willing to support a flawed zoning text amendment that needs “tweaking.”
He also does not believe the litigation risk associated with the septic-capacity limit is substantial.
After the Council voted on ZTA 19-01PB, Mr. Rascoe brought up the question of how the Town should treat a dwelling that is used during the year as both a private residence and a vacation cottage. Piggybacking on this, Councilman Nason asked about Airbnb rentals and the status of residences that offer them.
Mr. Gallop replied that if any transient occupancy occurs in a single-family dwelling, it is a vacation cottage, unless its existing, pre-ordinance-enactment use allows it to be grandfathered in as a nonconforming private residence.
To be continued on May 7. Don’t forget: When the Council takes up ZTA 19-01PB at its next meeting, it can pass the ordinance by a simple-majority vote. A super-majority of four is not required.
REPAVING U.S. 158, SAVING YAUPON TRAIL TREE, AND STARTING A LIBRARY
I conclude this three-day report on the April 2 Town Council meeting with several tidbits of news shared by the Mayor and Town Council members and with a personal note. First up, the Mayor:
U.S. HWY. 158: Mayor Bennett reported on a meeting of the Albemarle Rural Planning Organization that he recently attended. The ARPO announced that a two-year-long U.S. Hwy. 158 repaving project will begin after the vacation season ends this year. According to the Mayor, it will extend from the Wright Brothers Memorial Bridge to the Virginia Dare Memorial Bridge in Manteo.
“Down the road,” Mr. Bennett said, U.S. 158 also will undergo a “complete upgrade and modification” so that it becomes a “limited access highway,” with a median down the center and side-access roads feeding into it. The middle turn lane will be eliminated. No timetable has been set for this radical change.
YAUPON TRAIL TREE: The Mayor also reported that he has heard from four residents of Yaupon Trail who would like to have the large tree at the Yaupon Trail and South Dogwood Trail intersection removed because it blocks drivers’ sight lines.
When the Yaupon Trail rebuilding project began, Mr. Bennett said, a “number” of residents asked the Town to “save the tree.” Now they have opposition.
According to the Mayor, an arborist examined the tree and diagnosed it with “core rot,” but said “it could live indefinitely.”
The Mayor asked Town Council members to take a look at the iconic tree—I love it! You just have to drive slowly from Yaupon on to South Dogwood Trail—and give him feedback on what they think.
SOUTHERN SHORES LIBRARY: Councilman Conners has spearheaded an effort to establish a branch of the Dare County Library in Southern Shores, reportedly to be located on Juniper Trail near the Marketplace. Mr. Conners held an organizational meeting March 15 that he reported was attended by about 35 people.
Mr. Conners said a committee will be formed to research the possibility of establishing the branch library, which would be funded by Dare County. Please contact him if you are interested in this project.
50th ANNIVERSARY OF THE JULY 20, 1969 MOON LANDING
ON A PERSONAL NOTE: Councilman Nason brought back a special time in my life when he reported on upcoming activities of the Dare County Tourism Bureau, on which he sits as Southern Shores’ representative.
Mr. Nason promoted a special 50th-anniversary event that will be held at the newly improved Wright Brothers National Memorial Visitor Center to mark the moon landing and Neil Armstrong’s “one small step.”
I was vacationing in Kill Devil Hills with my family on July 20, 1969. That evening, my parents went to the Wright Brothers Memorial to watch the moon landing on television with two of their four children. Their 12-year-old son and 8-year-old daughter were thrilled to witness history where the first flight had occurred nearly 66 years earlier. But their two older daughters, including Ann, couldn’t be bothered with such tag-along-with-the-parents nonsense. We were at the beach, for goodness sake! We were out of school and free!
I have yet to live that mistake down.
Mr. Nason said photographs of the people who watched the moon landing at the Wright Brothers Memorial will be on display for the 50th-anniversary event. I can’t wait to see them. This time, I’ll be there.
(P.S. Sorry for the technological glitches. I posted this blog three times before it would connect with The Beacon’s Facebook page. Each time I posted it, subscribers received an email. My apologies.)
Ann G. Sjoerdsma, April 5, 2019