4/4/19: MORE ON TOWN COUNCIL MEETING AND PRESERVING SOUTHERN SHORES: OR HOW WE CAN BEST CONTROL HOUSE OCCUPANCY NOW THAT WE CANNOT LIMIT BEDROOMS; And Deliberating a “Future Plan” of Beach Nourishment

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The construction site at 98 Ocean Blvd. as it appeared earlier this week.

 

The Town Council voted, 3-2, Tuesday to approve a zoning measure that would limit the septic capacity in all houses in Southern Shores, and the overnight occupancy in all of the town’s “vacation cottages,” to 14 persons. The Council also held a public hearing on the merits of three beach-nourishment plan options recently included in a coastal-engineering consultant’s report, but took no action on these proposals.

“We’re going to discuss [beach nourishment] through the next few months, I’m sure,” Mayor Tom Bennett said, “and gain more knowledge and more information about it” before making a decision on whether to replenish beaches in 2022.

The Beacon reported yesterday on these outcomes from the Council’s April meeting and promised to give a more thorough report today. That plan has changed. I will be giving part of my full report today and continuing it tomorrow.

Tuesday’s vote on what is known as zoning text amendment (“ZTA”) 19-01PB fell one vote shy of the “super-majority” needed to pass it on first reading. A second reading—and another public hearing—of the ZTA will be held at the May 7 meeting of the Town Council. If three Council members vote then to pass the zoning ordinance amendment, it will become Town law.

If that happens, any time a homeowner decides to convert a private residence into a vacation rental or a vacation rental into a private residence, he or she will have to—or, at least, should—obtain a zoning permit from the Town. The fee for a zoning permit is $50.

The new septic-capacity and overnight-occupancy limitations will apply only to new construction, according to Town Attorney Ben Gallop. Existing houses that become nonconforming as a result of these zoning changes will be “grandfathered in,” he said.

Before the public hearing on beach nourishment, Town Manager Peter Rascoe described the beach-management plan submitted by Aptim Coastal Planning & Engineering of N.C., Inc. as a “means to protect and sustain . . . the current condition” of Southern Shores’ beaches.

The consultant’s plan is “not a reaction to an emergency,” Mr. Rascoe said, nor is “immediate action” required. “It is a plan for the future.”

Although the Town Manager informed the Town Council at its March meeting that Dare County needs a commitment from Southern Shores to undertake beach nourishment “as soon as possible,” if the Town is to receive an allocation from the county’s Beach Nourishment Fund, Mr. Rascoe did not refer Tuesday to a deadline.

A month ago, Mr. Rascoe told the Town Council that it had to decide in April whether it was going to “pull the trigger” on beach nourishment and request county funding. In his report Tuesday, the Town Manager said only that Dare County has indicated that by 2022, $7.5 million is “projected to be available for another new priority [nourishment] project.”

Duck, Kitty Hawk, Kill Devil Hills, and Nags Head all have ongoing—not new—beach-nourishment projects.

While the prospect of sand-replenishment along Southern Shores’ shoreline north of Pelican Watch, where nourishment has occurred and will be maintained, drew most of the crowd to Tuesday’s meeting, ZTA 19-01PB has more immediate impact for property owners, as well as vacationers. For that reason, I will focus on ZTA 19-01 PB and integrate into both parts of this report more background and analysis than I customarily do in meeting reports.

LARGE HIGH-OCCUPANCY HOUSES AFTER LOSING THE 7-BEDROOM RESTRICTION: LEGISLATIVE HISTORY

ZTA 19-01PB represents the culmination of about five months of effort by the Town Planning Board and the Town Council to confront the threat to Southern Shores’s low-density environment—and its character and quality of life—posed by the construction of large, high-occupancy residential structures, such as the two that SAGA Construction and Development is building at 98 and 134 Ocean Blvd.

SAGA’s building plans for these oceanfront sites came to light publicly last October after the Kill Devil Hills developer started the permitting process with the State and the Town. Opposition from Southern Shores property owners to SAGA’s proposed 12-bedroom, 17-parking-space, hotel-like structures was swift and adamant. The Beacon extensively covered the public protest in blogs posted in October and November.

Until June 2015, when legislation known as N.C. Senate Bill (SB) 25 became state law, the Town imposed a seven-bedroom restriction on single-family dwellings as one means to control the density of development in Southern Shores. SB 25, which was codified as new subsections of N.C. General Statutes (NCGS) sec. 160A-381, took away the ability of municipalities to regulate certain building design elements, including the “number and types of rooms.”

Southern Shores’ seven-bedroom limit, which had been in effect since October 2001, became invalid.

In January 2016, confronted by SAGA’s proposal to build a 16-bedroom wedding destination venue on the oceanfront, the Town Council enacted an ordinance to limit the size of single-family dwellings to 6,000 square feet. This was a compromise reached by a sharply divided Council. Three of the Council members had been in office only six weeks.

In the process of enacting the maximum-size ordinance, the Council eliminated from the Town Code a septic-capacity limit for single-family dwellings of 14 persons, which had been paired with the bedroom restriction.

Mayor Tom Bennett, who voted Tuesday with Councilmen Fred Newberry and Gary McDonald in favor of ZTA 19-01PB, referred to “agonizing over” how to control house occupancy in Southern Shores since SB 25 became law.

“Tackling house size,” he said, “didn’t solve the problem.” And now, he observed, there are “12-bedroom homes being built in two places in Southern Shores.”

The Town’s objective, the Mayor continued, should be “to try to discourage or prevent any more 12-bedroom homes” from being built.

Revised NCGS sec. 160A-381 (i.e., SB 25) does not just tell towns what they cannot regulate. It also specifically cites those “design elements” that they may regulate. These include “height, bulk, orientation, or location of a structure on a lot” and buffers or screens to “minimize visual impacts” of structures; “mitigate the impacts of light and noise”; and/or protect neighbors’ privacy.

The statute also explicitly states that it has no effect on regulations governing the “permitted uses of land or structures.”

Use is a driving concept behind ZTA 19-01PB. According to Mr. Gallop, density of development is also an element that local zoning may regulate. Controlling occupancy is a way to control density.

The new zoning amendment would add to the Town Code’s permitted uses of land or structures in Southern Shores’s residential districts the use of “vacation cottage,” which it defines according to “transient occupancy.” The intent is to regulate cottages that are offered for rent or use by the day, week, or other period of less than 30 days.

The ZTA imposes the 14-person septic capacity and overnight occupancy maximums as conditions of the permitted use. Houses that are not used for transient occupancy are subject only to the septic-capacity cap. You may access ZTA 19-01PB here:

https://www.southernshores-nc.gov/wp-content/uploads/2019/03/ZTA-19-01PB-PBVacationCottagesHDSepticCapacityLimit-HREMv001.pdf

Currently, the only permitted use in the Town’s residential districts is a “detached single-family dwelling.” To know how the Town Code defines a single-family dwelling, you have to read the definition of “family” in Code sec. 36-57.

ZTA 18-10, which also was scheduled for a public hearing Tuesday, is largely based on the exemptions in NCGS sec. 160A-381.

ZTA 18-10 creates a single-family oceanfront overlay district—a smaller district within the larger RS-1 residential district—and regulates houses within that district according to building height, yard setbacks, landscaping buffers, and other permissible factors.

The Town Council introduced the concept of this zoning text amendment at its Nov. 7 special meeting on large houses; the Planning Board unanimously voted in January not to recommend it. You may access ZTA 18-10 here:

https://www.southernshores-nc.gov/wp-content/uploads/2018/12/ZTA-18-10-Large-StructuresRegulation-HREMv001-2018.12.05.pdf.

After the vote on ZTA 19-01PB Tuesday, Councilman McDonald made a motion to withdraw ZTA 18-10 and effectively cancel the public hearing. This motion was unanimously approved.

Councilman Jim Conners, who made the motion in November that led to the drafting of ZTA 18-10, expressed the hope Tuesday that the Council “can revisit” some of its elements. He said he thought it was a fair attempt to address the “impacts” of large high-occupancy houses.

The Town Planning Board authorized drafting ZTA 19-01PB, after holding several meetings to discuss how to prevent the construction of large, high-occupancy houses. It unanimously voted to recommend it.

At one time, the Board also approved, by a 3-2 vote, the drafting of a ZTA that would limit house size to 5,000 square feet, but it later voted, 3-2, to rescind this action. The rescission occurred because of a change in Board membership.

TOWN COUNCIL’S DISCUSSION OF THE ZONING TEXT AMENDMENT

After Tuesday’s public hearing on ZTA 19-01PB, Mayor Bennett quickly supported it by saying that he thought the amendment “addresses our issues pretty well.”

It may need “minor tweaks,” he noted, but it is “our [best] recourse.”

Before anyone made a motion to approve ZTA 19-01PB, however, Councilman Conners moved to adopt the septic-capacity provision of the amendment, but not the use provision. He sought to amend the ZTA by deleting any reference to “vacation cottage” or “transient occupancy.”

Had Mr. Conners’s motion been approved, rather than defeated, 4-1, ZTA 19-01PB, as amended, would have gone back to the Planning Board for its consideration, according to Mr. Gallop.

The discussion that ensued after Mr. Conners’s unexpected motion was confusing, even for those of us who know the legislative history.

To understand it, you have to understand the perceived risk associated with enacting a septic-capacity limitation. I will pick up there tomorrow.

Ann G. Sjoerdsma, 4/4/19

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