4/29/19: ZONING APPEAL: BOARD OF ADJUSTMENT RULES, 3-2, THAT TOWN CORRECTLY PERMITTED SAGA STRUCTURE AT 134 OCEAN BLVD. AS SINGLE-FAMILY DWELLING; The Beacon Asks: Why Didn’t Town Officials Protect Property Owners When They Could?

minihotel1340316
SAGA’s construction at 134 Ocean Blvd. as it appeared in mid-March. The Town advised the developer that, because of pending litigation, it would be building “at its own risk.”

By a 3-2 vote, the Board of Adjustment (BOA) ruled Friday, after a nearly seven-hour-long hearing, that the 12-bedroom structure being built at 134 Ocean Blvd. was correctly permitted as a single-family dwelling, thereby affirming the Town’s issuance of a zoning permit for its construction in the RS-1 single-family residential district.

The oceanfront property is owned by a group of investors formed by the Kill Devil Hills-based developer, SAGA Construction Inc., as the entity “134 Ocean Blvd., LLC.”

Gwendolyn Snyder Smuts, who owns or has an interest in property across the street at 131 and 133 Ocean Blvd., challenged the validity of the zoning permit issued in January by Planning Director-Zoning Administrator Wes Haskett.

Mrs. Smuts argued through her attorney, James L. Conner II, a partner in the Durham firm of Calhoun Bhella Sechrest, that it was clear from the zoning-permit application submitted by SAGA, which included extensive building plans, that it intended to build a commercial project—a “mini-hotel”—not a single-family home. SAGA Construction is listed on the permit application as “agent” for 134 Ocean Blvd. LLC.

Town Attorney Benjamin M. Gallop defended Mr. Haskett’s decision to issue the zoning permit, as did local attorney E. Crouse Gray Jr., who represented the SAGA investor group. The Board of Adjustment allowed the investor group to intervene in the hearing; it was not originally one of the parties in the zoning-permit appeal.

Mr. Gallop and Mr. Gray sat next to each other in an uncustomary seating arrangement and conferred during the hearing.

Seated to Mr. Gray’s right, rather than his left, was Sumit Gupta, whose name does not appear anywhere on the zoning-permit application and related documents. It is Amit Gupta, not his brother Sumit, who signed as a property owner. Mr. Gray never introduced Sumit Gupta to the Board, nor the Board inquire as to his identity.

The principal permitted use in the RS-1 single-family district, which encompasses the Southern Shores oceanfront, is a “detached single-family dwelling.” (See Town Code sec. 36-202(b)(1)) No commercial development is allowed in the RS-1 district.

The five members of the Town Board of Adjustment also serve as the Town Planning Board, which regularly works with, and defers to the judgment of, Mr. Haskett and Mr. Gallop. According to the BOA’s attorney-adviser, W. Jay Wheless, Friday’s hearing was the first the Board has ever held. All of its decisions are quasi-judicial.

Before April 1, 2014, when the Town Council consolidated the two boards, upon the recommendation of both Mr. Haskett and Mr. Gallop, the Board of Adjustment was an independent body that did not collaborate with Town staff.

The consolidation was contained within Zoning Text Amendment 14-01, which the Planning Board unanimously recommended on Feb. 18, 2018, after a hearing during which Chairperson Sam Williams asked the Town Attorney whether “there would be a conflict of interest if the BOA duties were assigned to the Planning Board,” according to the meeting minutes.

The response reported in the minutes is: “Ben Gallop stated basically no and that the Planning Board would treat the separate duties as separate meetings.”

The minutes also record that Mr. Haskett presented the results of a survey he had conducted of towns with less than 5,000 residents in an attempt to determine how many had separate or consolidated boards. Then-Planning Board member Elizabeth Morey, who now serves as both the Planning Board and BOA chairperson, asked Mr. Haskett whether any of the 18 towns that responded were in Dare County. He answered no, none.

Mr. Haskett’s staff report for ZTA 14-01 does not indicate which towns in North Carolina were surveyed, only that 11 of the 18 had consolidated boards.

[UPDATE 4/30/19: The Beacon has confirmed that the towns of Duck, Kitty Hawk, Kill Devil Hills, Nags Head, and Manteo all have separate planning boards and boards of adjustment.]

Chairperson Morey and members Andy Ward and Joe McGraw voted to affirm the zoning permit issued to SAGA for 134 Ocean Blvd., and members Ed Lawler and David Neal voted to reverse it.

Ms. Morey seemed inclined to modify the permit, in an attempt at compromise, but she was told by Mr. Wheless that the Board lacked the authority to do so.

Earlier, Ms. Morey elected to delay the start of the hearing by 15 minutes, in order to accommodate Mr. McGraw’s late arrival. BOA alternate Michael Basilone was in attendance before the hearing’s 1 p.m. starting time.

Mrs. Smuts may appeal the BOA’s decision to the Dare County Superior Court.

According to the Town Code, Mrs. Smuts must file her notice of appeal with the Superior Court within 30 days after the BOA has filed its written decision with its clerk. Town Clerk Sheila Kane serves as the BOA’s clerk. (Town Code sec. 36-368(a)(4) and (b).)

ON THE MATTER OF STANDING

Because of the possibility of an appeal, The Beacon will provide very little further coverage of the hearing. Also, I was a witness on behalf of Mrs. Smuts and not present as a reporter.

I would like to make a few observations, however.

During a two-hour-long preliminary examination of Mrs. Smuts’s “standing” to appeal the zoning permit, Mr. Ward asked questions of her that suggested she had other options available to her besides her appeal.

Mrs. Smuts testified during the hearing on standing that she knows the daughter of the homeowners who sold 134 Ocean Blvd. to SAGA, and that this acquaintance “warned” her about the sale.

I may have misread Mr. Ward’s intent, but he seemed to me to be suggesting that Mrs. Smuts could have purchased the $1 million property across the street herself.

Mr. Ward also brought up the fact that the homeowners to the north of 134 Ocean Blvd. had objected to the SAGA project, as did the Southern Shores Civic Assn., which owns a beach access that is adjacent to the project on the south side.

Mr. Ward was the sole vote on the Board against granting Mrs. Smuts standing.

I would like to make a few points about standing, which is a difficult legal concept for non-lawyers to understand.

“Standing” to sue is a legal requirement imposed on plaintiffs, petitioners, and anyone else who brings a lawsuit. In order to file a legal action, a party—a person, corporation, or other legal entity—must have legally protected interests at stake and be at risk of suffering, or already have suffered a harm or injury.

There are standard factual elements that are taken into consideration in determining whether standing exists. Attorneys know what they are, and they make a determination of standing before they advise their clients to proceed in any cause of action. In the case of a challenge to a real-estate development, the proximity of the challenging party’s property to the development is a key fact.

Someone who lives across the street from an offending development, for example—such as a new factory that will emit noxious fumes—is likely to have legal standing, whereas someone who lives a block away will not. Standing is a well-developed principle in law. It is not wide-open.

It is for this reason that I did not appeal the 134 Ocean Blvd. zoning permit myself. I co-own property at 144 Ocean Blvd., which is 1/10 mile north of the SAGA project. Neither Mr. Conner nor I believed this location to be sufficiently proximate to give me standing.

Both the homeowners at 136 Ocean Blvd. and the SSCA appear to have standing. Their reasons for not appealing the zoning permit were not presented in evidence at the hearing and cannot be presumed. Generally speaking, however, the costs expended in hiring an attorney and going through with a challenge are prohibitive for many people. Property owners who live out of town have the additional consideration of the inconvenience and wear-and-tear of travel, which can be especially hard on elders.

THE ESSENCE OF TIMING

Mrs. Smuts became a Beacon news source for me, and, therefore, my acquaintance, after SAGA filed its application on Oct. 11, 2018 for a CAMA permit to develop 134 Ocean Blvd. Her family owns a flat top. I found her through the flat-top network that Steve and Sally Gudas oversee.

At the time, the 134 Ocean Blvd. sellers, Clay and Franca Higgins, in their legal capacity as trustees for a family trust, still owned the property—the original late-September closing date on the sale having been postponed.

In a telephone interview I had with Mrs. Smuts last October, I learned that the Higginses’ daughter had informed her that the SAGA investor group was having financial problems that prevented it from moving forward with the sale.

I did not independently verify this information with the Higginses or with SAGA and, therefore, did not report it. I offer it now because, regardless of its truthfulness, it influenced Mrs. Smuts’s thinking. It was her hope, she told me in October, that these difficulties would doom the project or, in the alternative, delay the project long enough for the Town to take action to protect her and other property owners who objected to the development.

The sale of 134 Ocean Blvd. closed on Dec. 6, 2018, nearly two months after the filing of the CAMA permit application. It sold for $956,000—$149,715 less than Dare County’s 2018 tax-value assessment of $1,105,715.

Mrs. Smuts and her husband live modestly and care for their two disabled children, one of whom is immobile and travels with special equipment. They have no interest in buying million-dollar oceanfront property.

The Town Planning Board met on Oct. 15, 2018. As I reported in The Beacon on Oct. 16, 2018, Planning Board members “made it clear in their comments that they would consider holding a special meeting on large-house controls, if they deemed such action desirable and necessary. The question of large houses and occupancy limits was not on the Planning Board’s agenda [that night].

“‘What’s at stake is the character of the town,’ said Planning Board Chairperson Glenn Wyder. ‘. . . We will do our due diligence, and our Town Council will do its due diligence. . . . We can get a grip on this.’

“Planning Board member David Neal, a longtime Southern Shores resident and builder, described the Town as being at a ‘crossroads’ in terms of its character, quality of life, and development. . . .”

Mrs. Smuts had every reason to be encouraged by the Planning Board’s sentiments and by the Town Council’s scheduling on Nov. 7, 2018, of a special meeting to discuss large high-occupancy houses.

After the Planning Board meeting, I spoke with Mr. Wyder about the Board taking immediate action and not waiting for the Nov. 7 meeting.

Rule 5(c) of the Planning Board’s Rules of Procedure authorizes the Chairperson, the Vice-Chairperson, or any two members of the Board to call an emergency meeting at any time, with at least six hours’ notice. The same people can call a special meeting with at least 48 hours’ notice. (Rule 5(b))

The Town Council has similar authority under its Rules of Procedure. The Mayor, the Mayor Pro Tem, or any two members of the Town Council may call an emergency meeting, provided they meet specified formalities, or a special meeting, with at least 48 hours’ notice. (Rules 6(b) and (c).) See https://www.southernshores-nc.gov/wp-content/uploads/2012/05/Council-Rules-of-Procedure.pdf.

Not only did I urge Mr. Wyder, whom I liked and respected a lot, to convene an emergency or special meeting, I encouraged him to propose a zoning text amendment that would thwart SAGA’s intentions for 134 Ocean Blvd., if not for 98 Ocean Blvd., as well.

I argued that time was of the essence, and I suggested a stop-gap ZTA that limited the maximum house size in town to 5,000 square feet. Even a cap on the number of parking spaces at dwellings in the RS-1 district would have benefited Town property owners.

Until a property owner initiates the local permitting process, he/she/it does not have “vested rights” and would be subject to any ordinances enacted by the Town Council.

Mr. Wyder, who was strongly opposed to both of the SAGA developments, told me that he did not want a “quick fix.” He wanted the Town to do its “due diligence.”

Although he was disappointed by the nearly month-long delay in Mayor Tom Bennett’s scheduling of the Council’s special meeting, Mr. Wyder was willing to defer to members of the Town staff, including the Town Attorney, who were meeting with the Mayor and at least one member of the Town Council.

(Councilmen Fred Newberry and Gary McDonald informed me that they were not invited to participate in the brainstorming that occurred. Mr. McDonald made a motion at the Nov. 7 special meeting to have the Planning Board look into amending the Town zoning ordinances to redefine the living space considered in evaluating house size as “total enclosed area,” a definition used in CAMA, rather than “enclosed living space,” and to put restrictions on septic-system capacity and number of parking space. The usual ruling majority of Mayor Bennett and Councilmen Christopher Nason and Jim Conners voted against his motion, so it failed 2-3.)

You may not think it is fair of me to quote a man who can no longer speak for himself. Sadly, Mr. Wyder died suddenly last November, after returning from a Thanksgiving trip to New Jersey. I miss him and his leadership and counsel.

I bring up the exchanges I had with Mr. Wyder only to support my contention that Mrs. Smuts had reason to believe that the Town of Southern Shores would act on behalf of her and all property owners to prevent the SAGA developments. She attended the Nov. 7 special meeting in the belief that the Town was prepared to take action to do so.

In the case of 134 Ocean Blvd., which SAGA did not own until Dec. 6, 2018, there was ample time to do so, if the Town had acted decisively and without delay.

WHEN WILL THE TOWN STEP UP?

The questions I leave you with are: Why hasn’t the Town done all it can do to prevent these unwelcome mini-hotels? Why didn’t it act with urgency and deliberate speed last October to protect Southern Shores property owners, who made it abundantly clear through many communications with the Town—reportedly hundreds of emails, a petition with hundreds of signatures, public comments, etc.—that they opposed the SAGA developments?

What responsibilities does the Town have? Do property owners who are directly affected by offensive high-occupancy developments, because of their properties’ proximity, have to spend tens of thousands of dollars in legal fees to fight the Town’s battles for it? And, in the process, fight the Town, too?

And just who is the Town? The Town Manager? The Mayor? The three people on the Town Council who typically vote as a majority bloc on all matters?

Last Friday’s hearing was framed as a special meeting of the Planning Board. After the hearing was over, the five Board members put their Planning Board hats back on and made comments in that capacity.

Mr. Ward was passionate in his remarks, stating emphatically that the Town of Southern Shores does not want structures like SAGA is building. He urged his colleagues on the Board to be “proactive” in preventing future high-occupancy development in the low-density residential district. Indeed, he sounded the same call that I sounded with Mr. Wyder more than six months ago.

AT THE TOWN COUNCIL’S MARCH 5, 2018 MEETING, a resident property owner reported in public comments that SAGA Construction had advertised both of its structures for rent through Carolina Designs Realty as “special-event houses” with a capacity for housing 100 guests.

I saw the advertisements the next day and can confirm the content that homeowner Tony DiBernardo reported at the Council meeting. Mrs. Smuts’s attorney preserved a screen shot of the advertisements, which soon thereafter, were edited.

Questions: What has the Town done in the nearly two months since these advertisements were reported? Has the Town Planning and Code Enforcement Dept. launched an investigation of this publicized illegal use of property in the RS-1 residential district? Have the Planning Board and the Town Council directed the Code Enforcement Dept. to investigate this apparent violation of the Town Code?

Not to my knowledge–based on reliable sources who prefer to remain anonymous.

“Event facilities” are permitted only in the town’s C General Commercial District, as specified in Town Code section 36-207. They are not a permitted use in the RS-1 district.

Mr. Haskett and Town Manager Peter Rascoe have said many times at public meetings that enforcement of the Town Code is “complaint-driven.”

I do not recall any bigger or louder complaint ever being registered with the Town than the complaint against the landowners and their use of 98 and 134 Ocean Blvd. that Mr. DiBernardo made March 5.

Will this complaint drive the Town finally to confront SAGA? If not, why not? Property owners in Southern Shores deserve answers.

Ann G. Sjoerdsma, 4/29/19

(Please note: I sometimes make minor edits after my initial posting, in the interest of filing stories and columns in a timely fashion.) 

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One thought on “4/29/19: ZONING APPEAL: BOARD OF ADJUSTMENT RULES, 3-2, THAT TOWN CORRECTLY PERMITTED SAGA STRUCTURE AT 134 OCEAN BLVD. AS SINGLE-FAMILY DWELLING; The Beacon Asks: Why Didn’t Town Officials Protect Property Owners When They Could?

  1. The town has made it perfectly clear they do NOT care for the year round residents. They are only concerned about $$ from the tourists.

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