5/30/19: CORRECTION RE SOUTH DOGWOOD TRAIL SIDEWALK PROJECT

SDogwood

The Beacon erred in believing that the Town’s Capital Infrastructure Improvement Planning Committee (CIIP) would review at its meeting today the latest design plans for the proposed South Dogwood Trail sidewalk and would include this project in its priority list of improvements for fiscal year 2019-20, even though its funding is separate from other infrastructure projects.

We regret these errors.

The South Dogwood Trail sidewalk project is now under the exclusive auspices of the Southern Shores Town Council, which first must decide whether to fund it by appropriating $1 million from the Town’s general undesignated fund balance. If a majority of the Council approves this monetary transfer, it then will have to make decisions regarding the sidewalk’s design and construction.

The proposed five-foot-wide concrete sidewalk would run along the east side of South Dogwood Trail.

According to Town Manager Peter Rascoe, if and when the Town Council approves the $1 million appropriation, the Town will notify South Dogwood Trail property owners about the project, but staff will not meet personally with them. Instead, a public hearing about the sidewalk design will be held at the Town Council’s regular July meeting and “residents will be invited to comment,” Mr. Rascoe said.

Mr. Rascoe added, however, that South Dogwood Trail property owners are welcome to contact him with their questions, as well as to meet with him. His email address is prascoe@southernshores-nc.gov.

The Town Council’s July meeting is currently scheduled July 9, the same day as the Republican primary runoff election for the U.S. House of Representatives District 3 seat that was held by the late Congressman Walter Jones. The Pitts Center is a polling place for this election, which will take place from 6:30 a.m. to 7:30 p.m.

When The Beacon asked Mr. Rascoe today about the scheduling conflict, he said he was not aware of it.

You may view the design plans for the South Dogwood Trail sidewalk on the Town’s website at: https://www.southernshores-nc.gov/design-plans-s-dogwood-trail-walking-trail/.

The Town Engineer has prepared a design of the proposed sidewalk in two segments: the northern segment runs from the East-North-South Dogwood Trails intersection south to Fairway Drive and the southern segment runs from Fairway Drive to the Southern Shores cemetery. Because of hills and dense forestry, the southern segment is the more problematic of the two.

With a price tag of nearly $1 million, the sidewalk’s construction would far exceed the annual capital improvements budget.

By previous agreement, the Town Council has determined that five cents out of every 22 cents per $100 of property value collected in Town real-estate taxes will be appropriated for the annual capital improvements budget. A motion by Town Councilman Gary McDonald at the Council’s April budget session to increase this tax allocation to seven cents was defeated 2-3, with only Councilman Fred Newberry voting with Mr. McDonald.

In FY 2019-20, the capital budget amount is projected to be $662,340.

A public hearing on the proposed FY 2019-20 operating budget will be held during the Town Council’s June 4 meeting, at 5:30 p.m. in the Pitts Center. You may view the budget at https://www.southernshores-nc.gov/town-government/administration/public-documents/fy-19-20-managers-proposed-operating-budget-2/.

Ann G. Sjoerdsma, 5/30/19

5/29/19: TOWN COUNCIL’S JUNE 4 MEETING: EXPLORING CUT-THROUGH TRAFFIC COMMITTEE, RECONSIDERING ORDINANCE TO REGULATE ‘SPECIAL EVENTS’ AT RESIDENCES; CIIP Committee Meets Tomorrow to Consider S. Dogwood Trail Sidewalk, Recommend 2019-20 Projects

speedindicator
Said East Dogwood Trail homeowner Tommy Karole, in advocating for a committee to study ways to stop cut-through traffic in town: “I see what the traffic is doing. I see the speed.”

The formation of a committee to explore ways to curtail the summertime cut-through traffic and the reconsideration of a proposed 2015 ordinance that would regulate the holding of “special events” in residences headline the new business that the Town Council will discuss at its June 4 meeting.

The Council will meet at 5:30 p.m. in the Pitts Center, behind Town Hall.

Other key items on the agenda include a public hearing on the Town Manager/Budget Officer’s proposed fiscal year 2019-20 budget and an announcement by Mayor Tom Bennett and/or Councilman Jim Conners of the construction projects recommended by the Capital Infrastructure Improvement Planning Committee (CIIP) for prioritization in FY 2019-20.

The Mayor and Mr. Conners co-chair the CIIP Committee, which meets tomorrow at 2 p.m. in the Pitts Center to approve its recommended list of projects. A public hearing on the committee’s recommendations will be held during the Council’s July 9 meeting.

June 4 Town Council Meeting Agenda: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2019-06-04.pdf.

May 30 CIIP Committee Meeting Notice: https://www.southernshores-nc.gov/ciip-committee-scheduled-thursday-30-2019/

At the top of the CIIP Committee’s priority list is expected to be the construction of a five-foot-wide concrete sidewalk on South Dogwood Trail.

A majority of the Town Council voted to transfer $1 million from the Town’s undesignated balance fund to cover the cost of the sidewalk, which represents 13 percent of the Town’s proposed FY 2019-20 budgetary expenses of $7,450,846.

Proposed FY 2019-20 budget: https://www.southernshores-nc.gov/town-government/administration/public-documents/fy-19-20-managers-proposed-operating-budget-2/

Councilmen Fred Newberry and Gary McDonald are the proponents, respectively, of the exploratory committee on methods for curtailing summertime cut-through traffic and the Council’s reconsideration of a proposed 2015 “Special Events and Occupancy Limitation” ordinance that it tabled by consensus in January 2016.

Councilman Newberry’s suggestion came in response to public comments by homeowner Tommy Karole at the Council’s May 7 meeting. Mr. Karole, who lives on East Dogwood Trail near its intersection with North and South Dogwood Trails, asked the Council to consider forming a citizens’ committee “to study ways to stop the cut-through traffic in Southern Shores.” He expressed an interest in being on such a committee.

“I see what the traffic is doing. I see the speed,” said Mr. Karole, who has lived on East Dogwood Trail for 18 years. “ . . . Someone is going to get hurt on that road. . . . We can do something to stop it.”

(Despite the wording of the agenda item, Mr. Newberry actually sought more than just a consideration of a committee at next week’s Council meeting. He expressed an interest in hearing from residents affected by the cut-through traffic for more than just the three minutes that are allotted to a speaker during public comments. He sought to engage the public and to hear what people think about the traffic problem and possible solutions.)

Councilman McDonald also cited public comments by residents, including Andy Ward, who is a member of the Planning Board, in recommending at the May meeting that the Town Council reconsider a Town Code amendment that would establish a permitting procedure for public or private gatherings held in residential properties.

Pursuant to the proposed ordinance, “special events” permits would be required of property owners based on the number of people they expect to attend their events.

BACKGROUND ON ‘SPECIAL EVENTS’ REGULATION

On Dec. 18, 2015, during a special meeting of the Town Council, Town Attorney Ben Gallop presented four draft ordinances that he had prepared to address the construction of dwellings that are designed to be used primarily for events rather than as family-vacation rentals or single-family homes.

At the time, SAGA Construction Inc. was threatening to build a 16-bedroom wedding destination venue on the oceanfront at 64 Ocean Blvd. The Kill Devil Hills-based developer had not yet sought any permits from the Town, however.

With SAGA knocking at the door, three newly elected Town Council members—Mr. Newberry, Mr. McDonald, and Christopher Nason—had a steep learning curve to master quickly. Each one had been sworn into office on Dec. 1, 2015.

Three of Mr. Gallop’s proposed ordinances were zoning text amendments (ZTAs). The fourth ordinance was a police-power ordinance, relating to public health, safety, and welfare—not zoning. If it had been adopted, it would have applied throughout the town, not just in particular zoning districts.

In the opinion of The Beacon, the police-power ordinance, known as the Special Events and Occupancy Limitation Ordinance, was too much too soon for the newly constituted Town Council to tackle. (I was present at the 12/18/15 meeting.) The ordinance went by the wayside when the Council decided at its Jan. 5, 2016, regular meeting to consider only the three ZTAs.

According to minutes from that January meeting, Councilman Leo Holland said he thought the special events ordinance was “well-intended,” but “complicated and confusing.” Councilman McDonald purportedly questioned how it would be enforced. No one on the Council proposed taking action on it.

On Jan. 22, 2016, the Town Council voted 3-2, with Councilmen Newberry, McDonald and Holland in the majority, to limit maximum house size to 6,000 square feet, thereby defeating SAGA’s plans—at least, the plans the developer had then.

SAGA’s proposed structures at 98 and 134 Ocean Blvd.—which it is building at its own risk, with litigation pending—represent its second attempt to disrupt the character of our low-density town.

More than three years later, a seasoned Councilman McDonald no longer questions the enforceability of the special events ordinance. Now he wants to take another look at it.

You will find the text of this ordinance in the minutes of the Dec. 18, 2015 meeting, on pp. 8-12:

https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Minutes_2015-12-18.pdf

The proposed ordinance regulates special events, which it defines as “temporary public or private gatherings,” including,  but not limited to, “pre-planned events, community uses, private parties, and traditional family events,” according to the number of expected attendees. (All of these terms are also defined in the ordinance.) It imposes permitting requirements on property owners who hold special events that they expect will be attended by more than 25 people. Under 25, no permit required.

Pursuant to the ordinance, permit application and inspection requirements vary and increase according to the number of attendees, with 25 to 75 people being viewed as a “small” special event; 75 to 125 as a “limited” special event, and over 125 attendees as a “large” special event.

The proposed ordinance also provides, significantly, that no more than three special events requiring a permit may occur during a continuous 12-month period on any parcel of property. If more than three occur, then the property’s use is to be considered commercial, rather than residential, and, therefore, in violation of the Town’s zoning code. Traditional family events are not subject to this limitation.

The Beacon will delve into more detail about this ordinance, if it gains traction. We do not view it as confusing or complicated. But we do see the need for “tweaking.”

YAUPON TRAIL INTERSECTION

Besides determining its FY 2019-20 priority infrastructure projects and hearing from the Town Engineer about the design plans for the Fairway Drive-to-the-cemetery segment of the proposed South Dogwood Trail sidewalk, the CIIP Committee will address the recent reconfiguration of Yaupon Trail’s intersection with South Dogwood Trail.

During a repaving project, the two-way entrance on to Yaupon Trail was replaced by a single-lane entrance/exit that is too narrow to accommodate two vehicles at the same time. The Town Council decided at its May meeting to refer Yaupon Trail homeowners’ complaints about the changes to this intersection to the CIIP Committee.

Ann G. Sjoerdsma, 5/29/19

5/21/19: CATCHING UP: PLANNING BOARD OKs 20-FOOT ADDITION TO CELL TOWER, PLANS TO TACKLE EVENT FACILITIES; CIIP COMMITTEE TO TAKE UP $1 MILLION SOUTH DOGWOOD TRAIL SIDEWALK; AGENDA FOR TOWN COUNCIL’S JUNE 4 MEETING EXPECTED TO BE HEAVY

celltower
A proposed 20-foot extension of the cell tower at the Ocean Boulevard-Duck Road split is part of a plan to improve phone service for Verizon Wireless customers.

News in Southern Shores has been slow since the Town Council unanimously passed zoning regulations that limit septic capacity and overnight occupancy in vacation cottages to 14 persons. That May 7 breakthrough—the culmination of months of effort by town officials, the Planning Board, the Town Attorney, and many homeowners—deserved to be recognized with a collective sigh of achievement and a break. (See The Beacon, 5/8/19, 5/9/19, and 5/11/19.)

The break is now over.

The Planning Board sprang back into action last night with a short meeting, during which it unanimously approved, with a number of conditions, a 20-foot extension of the cell tower at the Southern Shores Civic Assn.’s Triangle Park, and discussed the possibility of recommending additional restrictions on “events” and “event facilities” in town. (See below.)

The Capital Infrastructure Improvement Planning (CIIP) Committee will meet May 30 and address the proposed sidewalk for South Dogwood Trail, for which $1 million has been appropriated in the Town’s fiscal year 2019-20 budget, and on June 4, the Council will take up a heavy, wide-ranging agenda at its monthly meeting.

You may view the design plans for the five-foot-wide concrete sidewalk proposed for the east side of South Dogwood Trail at:

https://www.southernshores-nc.gov/design-plans-s-dogwood-trail-walking-trail/

The Town’s engineer recently submitted the plans for the section of the sidewalk that would run over the heavily forested and hilly area from Fairway Drive south to the cemetery. He will present these plans at the CIIP Committee’s meeting, which convenes at 2 p.m. in the Pitts Center.

In an unprecedented move, a three-person majority of Mayor Tom Bennett and Councilmen Jim Conners and Christopher Nason approved the transfer of nearly $1 million from the Town’s undesignated fund balance, which serves as a reserve for natural-disaster relief, to the capital budget to pay for the sidewalk project. (See The Beacon’s report on the April 23 budget session, 4/24/19.)

The three rejected an attempt by Councilman Gary McDonald to increase the capital budget itself by dedicating more tax revenue to it.

The Mayor and Mr. Conners co-chair the CIIP Committee.

Prominent on the Council’s June 4 meeting agenda will be a public hearing on the town’s FY 2019-20 operating budget and a discussion about summertime cut-through traffic, which Town Councilman Fred Newberry requested. The meeting will start at 5:30 p.m. in the Pitts Center.

You may view the Town Manager/Budget Officer’s recommended $7,450,846 budget at: https://www.southernshores-nc.gov/town-government/administration/public-documents/fy-19-20-managers-proposed-operating-budget-2/.

The FY 2019-20 budget shows an increase in expenses of 12 percent over the previous fiscal year budget. (See page 10 of the proposed budget.)

The Beacon will provide links to the Town Council’s agenda and meeting packet when they are available and also preview the meeting.

‘EVENT FACILITIES’

The Council’s unanimous May 7 vote on large, high-occupancy dwellings “sends a message that we are united,” Planning Board member Andy Ward said last night at the Board’s regular monthly meeting. We will “take care of the issues of high occupancy and density,” he added with assurance.

Chairperson Elizabeth Morey agreed, but said she was “not necessarily satisfied,” because more can be done, and people may seek to “get around” the new laws. She cautioned her colleagues to be “vigilant.”

In that spirit, the Board placed on its June 17 meeting agenda consideration of how the Town Code can be amended to impose more restrictions on “event facilities,” which are currently defined as properties “designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events,” and restricted to the commercial district.

See Town Code sec. 36-57 at https://library.municode.com/nc/southern_shores/codes/code_of_ordinances?nodeId=PTIICOOR_CH36ZO_ARTIIIINDETE_S36-57DESPTEWO.

Event facilities are a “permitted use” in the town’s C general commercial district, which is detailed in Code sec. 36-207.

Mr. Ward referred to the “stiff language” included in a Town Code amendment that Town Attorney Ben Gallop prepared more than three years ago in order to curtail event facilities. The Town Council rejected this amendment in January 2016 when it enacted the 6,000-square-foot maximum house size and approved other language regulating event facilities. Mr. Ward suggested that the Planning Board look at the rejected ordinance because “it had some teeth in it.”

Councilman McDonald has already requested that the Town’s regulation of event facilities be included on the Council’s June 4 meeting agenda. Mr. Ward expressed the expectation last night that the Council’s discussion will guide the Planning Board in its approach and any recommendation that it may make.

20-FOOT EXTENSION OF CELL TOWER

Also last night, the Planning Board unanimously approved a 20-foot extension of the cell tower at 148-A Ocean Blvd., in the SSCA’s Triangle Park at the Ocean Boulevard-Duck Road split, from 130 feet to 150 feet—subject to conditions, including that the taller tower be in compliance with the town’s setback and fall-zone requirements.

Board alternate Michael Basilone substituted for regular member David Neal, who was absent.

The extension was before the Planning Board as an application from American Towers LLC and Verizon Wireless to amend a conditional use permit (CUP) issued by the Town in November 2013. According to David G. Allen, an attorney with American Tower Corp. who appeared before the Board, the flagpole-style monopole tower will look the same, “except 20 feet higher.”

Mark Landers, an American Tower territory manager who works with carriers, said the purpose of the extension is to improve Verizon Wireless’s coverage and capacity in the area. Verizon Wireless is not now on the tower.

“AT&T is also increasing their capability,” Mr. Landers told the Board.

In a Dec. 17, 2018 letter that Mr. Allen wrote to Deputy Town Manager/Planning Director Wes Haskett about the CUP amendment, he said that the increase will “enable Verizon Wireless to install its equipment at the monopole facility in order to alleviate current reductions and bottlenecks in network connectivity in the area which result in interrupted and dropped calls.”

Mr. Landers told the SSCA membership at a meeting last October that the extension would “accommodate” the explosion in cell-phone traffic, which he described as a 40-percent annual increase in data. Simply stated, too many people are trying to use the network at the same time. (See The Beacon, 10/10/18.)

Mr. Landers said in October that the expansion would take about five months and that American Tower would pay $5400 more in rent to the SSCA, bringing the civic association’s total annual income from the tower to just under $40,000.

It is likely that the Town Council will take up American Tower’s request for the CUP amendment and the tower height extension at its June 4 meeting.

NO! MINI-HOTELS

According to Mr. Gallop, the recently enacted town regulations on septic capacity and overnight occupancy apply only to new building projects that have not yet been permitted. That means that SAGA’s two structures at 98 and 134 Ocean Blvd., each of which has septic capacity and sleeping arrangements for 24 persons, may be “grandfathered in” as nonconforming uses—provided they are allowed to be built.

There currently are two pending cases involving these properties. One of them is in the state administrative courts, before a judge; the other is local and likely headed for the Dare County Superior Court.

You may have noticed that construction at 134 Ocean Blvd., which is a subject of both cases, has essentially stopped, and that construction at 98 Ocean Blvd. is less than vigorous. The Beach does not believe this is coincidental.

At this stage of the litigation, it is difficult to predict the future. Appeals can consume months, even years. The petitioner-homeowners who have contested the permits that are at the center of these lawsuits are determined to protect their properties and the town from these mini-hotels. If you would like to help them, financially or otherwise, please visit www.nominihotels.com.

Ann G. Sjoerdsma, 5/21/19

5/11/19: STOP-GAP MEASURE: LOOKING CLOSER AT NEW ‘VACATION COTTAGE’ USE AND THE OVERNIGHT-OCCUPANCY RESTRICTION

134Ocean
The structure at 134 Ocean Blvd. is the subject of two pending legal challenges. For more information, see nominihotels.com.

The Beacon returns today to the new 14-person septic-capacity and overnight-occupancy restrictions in vacation cottages that the Town Council unanimously approved at its meeting last Tuesday. Councilman Christopher Nason raised a question before the Council voted that is worth exploring. (See The Beacon, 5/8/19)

Mr. Nason posed a hypothetical involving Southern Shores homeowners who live out of town and keep their beach home “for family alone,” never renting it.

Now suppose these homeowners, he posited, want to use their beach home periodically for family get-togethers. Are they, he asked Town Attorney Ben Gallop, “subject to the same [14-person overnight] occupancy restriction?”

“They are,” Mr. Gallop replied, “if [their house is] permitted as a vacation cottage under this use.”

If these homeowners are already using their home for gatherings during which more than 14 people sleep overnight, Mr. Gallop continued, then “they’d be non-conforming single-family-dwelling permitted.”

It does not matter if they rent their house or not.

Mr. Gallop’s response will make more sense to you when I quote the definition of “vacation cottage” in the new zoning ordinance, which the Town Attorney himself drafted.

But before I do that, I would like to explain first that, under the new ordinance, a property owner who wants to build a new house in a Southern Shores residential district will have two choices: to build 1) a detached single-family dwelling; or 2) a vacation cottage. The property owner will have to indicate on permitting applications filed with the Town which choice he/she has made.

Those of us who already have homes, regardless of whether we rent them or not, have detached single-family dwellings because up until May 7, when the zoning law changed, that was the only permitted use available for a house.

If we use our single-family dwellings as “vacation cottages,” then we are using them in what now is legally considered a “non-conforming” manner.

WHAT IS A VACATION COTTAGE?

The Beacon has not been keen on differentiating between single-family dwellings and vacation cottages, an idea that emerged during a Planning Board meeting and was developed and supported by local home builders.

In fact, I agreed with a statement made by Councilman Jim Conners during a recent Town Council meeting that “a single-family home is a single-family home.” I did not want to muddy the waters with creating a new permissible use. Eventually, though, I compromised my viewpoint to support the Planning Board, which sought to restrict occupancy according to the use of a property. (The 14-person septic capacity restriction posed no problem. See The Beacon, 5/9/19.)

The new law defines a vacation cottage 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.” It does not say anything about renting. It speaks only to a use for transient occupancy, by the homeowners themselves and by anyone else.

“Transient occupancy” is defined in the new law as “overnight occupancy . . . for periods of less than 30 days for vacation, leisure, recreation, or other purposes by [people] 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.”

Combining the two definitions, you can see that encompassed within the term “vacation cottage” are second homes that are not rented and used on a transient-occupancy basis, homes that are used exclusively for vacation rentals, and homes that are both rented and used as second homes. You also have the issue of a currently permitted single-family dwelling becoming a vacation cottage.

Mr. Gallop might have created new permitted uses that distinguish second homes from vacation rental cottages, but he did not, and I am not going to second-guess him.

As a practical matter, neighbors may not complain about homeowners using their beach houses for large holiday gatherings or family reunions, so distinguishing between second homes and vacation rental cottages may prove a moot point. But I can appreciate Mr. Conners’s concern that the new single-family dwelling-vacation cottage distinction, as a permitting matter, “may come back to bite us,” as he said Tuesday.

In public comments before the vote on the zoning ordinance, I urged unanimity among Council members, not because I was convinced the Town Attorney had delivered a perfect solution. No, I thought it was important that the Town Council send a clear signal that, as Councilman Fred Newberry said, the Town wants to “prevent the proliferation of large event-type houses in town,” such as those being constructed now at 98 and 134 Ocean Blvd. (See photo above.)

Mr. Newberry stressed the importance of doing something, without further delay.

The new law “may not be perfect,” he said, but “I strongly favor passing it.”

To a member, all five agreed that the new zoning restrictions are not “perfect,” but all five felt compelled to act.

Mayor Tom Bennett remarked that “we can go back with an amendment later if we have to.” But a stop-gap measure now is necessary.

THE LAWMAKING PROCESS

The Mayor’s point is a very important one with which The Beacon agrees. His point indirectly calls into question the Town’s lawmaking—or, if you prefer, zoning chapter-amendment—process.

I attended and reported on every Planning Board session held after news of SAGA Construction’s proposed structures became public last October. I believe it is fair to say that the Planning Board, whose members are, without exception, conscientious and civic-minded homeowners, struggled with deriving a solution for controlling high-occupancy dwellings, apart from limiting septic capacity–which Mr. Gallop did not recommend.

I also believe it is fair to say that the Planning Board deferred to the Town Attorney on the drafting of ZTA 19-01PB and, otherwise, to the legal judgment of Professor David W. Owens of the UNC School of Government, who is a North Carolina land-use expert.

I am not suggesting that the Board’s deference was wrong, per se. I am suggesting, however, that asking five legal laypeople to come up with a fine-tuned legal solution is too much to ask. The Town would be advised to investigate other methods by which intricate legislation is drafted.

It became evident during one of the Planning Board’s meetings on large houses that the Outer Banks Home Builders Assn. had been discussing proposed zoning-text amendments for Southern Shores within its legislative committee.

The Town could form its own legislative committee, chaired by the Town Attorney, and peopled with retired or active attorneys and other legal professionals who live in the community. This committee, which should have no elected officials on it, could report to the Planning Board.

To appreciate how inefficient the current zoning-amendment process can be, you need only look at the history of ZTA 18-07, which addresses nonconforming lots and was enacted into law Sept. 5, 2018. The language of ZTA 18-07 replaced the existing language of Town Code section 36-132, which the Town Attorney interpreted as insufficient, in part, to carry out the intent behind regulating nonconforming structures and uses.

Deputy Town Manager/Planning Director Wes Haskett gave a report Tuesday on the Planning Board’s “on-going work” on nonconforming lots, announcing that the Board will consider a new ZTA, which seeks to amend section 36-132, at its June 17 meeting. (See The Beacon, 4/24/19)

In public comments during the Town Council’s meeting, Planning Board member Andy Ward, speaking as a private citizen, asked the Council to “reexamine the event side” of the large-house problem. He characterized the Town’s event-facility regulation as having been “watered down” and in need of strengthening.

Councilman Gary McDonald picked up on Mr. Ward’s suggestion and eventually requested an agenda item on the matter at the June 4 meeting.

But the Planning Board does not need a directive from the Town Council to revise a zoning ordinance or ordinances. Pursuant to Town Code sec. 24-27, the Board has the power to do that on its own, without intervention by the Council. The Board could have looked at “the event side” while it was considering septic capacity, occupancy, and other regulatory controls during the past months.

An event facility is defined in Town Code sec. 36-57, which is the definitions section of the zoning chapter, and listed as a permissible use in the C general commercial district, Code sec. 36-207(b)(10). Event facilities are not allowed in the residential districts.

Section 36-57 defines an event facility as a property “designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events.”

It does not take a legal education to see the flaws in this definition.

The remainder of the “event facility” definition defines what is meant by “events,” “private parties,” and other gatherings. Certainly, the Planning Board can tackle these terms without the Council’s help.

Also Tuesday, Mr. Conners mentioned, as he did at the April Town Council meeting, his desire to “look at impacts” of large houses, including parking, trash, and noise buffers.

“There is more that we can do,” he said.

I agree with Mr. Conners and have advocated before the Planning Board that more be done to deal with large houses and density problems wholistically, rather than on a piecemeal basis.

If the Planning Board is uncomfortable with viewing a regulatory issue wholistically—as lawyers are adept at doing—a legislative committee could perform that function, too.

Food for thought.

The Beacon will return in the weeks before the Town Council’s June 4 meeting to address the Town Manager/Budget Officer’s proposed FY 2019-20 operating budget and options for traffic reduction on the cut-through route.

Ann G. Sjoerdsma, 5/11/19

5/9/19: WEEKEND UPDATE; A COMMENT ON BEDROOMS & THE NEW RESTRICTIONS

 

woodsysunset
Enjoy these beautiful spring days.

 

In yesterday’s blog, I promised to publish today a detailed report of Tuesday night’s Town Council meeting.

Unfortunately, I will not be able to deliver on that promise. Please check back over the weekend for the report.

While I do have a moment, I would like to say a word about the possibility of a legal challenge to the new septic-capacity and overnight-occupancy restrictions that the Town Council enacted Tuesday.

You may have read in comments on this blog as well as on Facebook pages elsewhere that the 14-person restrictions indirectly serve as a limit on the number of bedrooms in a dwelling, which the Town legally cannot impose. The premise is that both septic capacity and occupancy are determined by multiplying the number of bedrooms by two.

I believe this argument is faulty, and a challenge based on it would fail.

First, let me say that it is the Dare County Health Dept. that certifies septic capacity for a dwelling, not the Town of Southern Shores. The Town does not participate in the Health Dept.’s permitting process.

Second, the factual evidence simply does not support the bedrooms-times-two contention.

Before the Town Council’s vote on ZTA 19-01PB, I said in public comments that I am a co-owner of a vacation cottage that has four bedrooms and a septic capacity of six persons, NOT eight (4 x 2) persons.

I also informed the Council that I had examined rental listings in the 2019 Southern Shores Realty bulletin/vacation planner and quickly found numerous homes that have a septic capacity that does not equate to twice the number of bedrooms. For example:

16 Pelican Watch: 3 BR, cap. 7

30 Pelican Watch: 4 BR, cap. 7

31 Ocean Blvd.: 6 BR, cap. 14

53 Ocean Blvd.: 6 BR, cap. 14

105 Ocean Blvd.: 5 BR, cap. 12

153 Ocean Blvd.: 4 BR, cap. 10

159 Ocean Blvd.: 6 BR, cap. 18

163 Ocean Blvd.: 7 BR, cap. 21

5 Purple Martin Lane: 5 BR, cap. 13

5 Fourth Ave.: 6 BR, cap. 16

6 Eighth Ave.: 5 BR, cap. 14

2 Eleventh Ave.: 5 BR, cap. 12

I spent just five minutes on this exercise and did not consult other rental companies’ vacation-cottage listings.

Southern Shores Realty (SSR), which is the rental agent that my family has used for nearly 50 years, specifies “capacity” in its listings, rather than “occupancy.” In response to an email that I sent her, SSR Rental Manager Patrina Chappelle, said: Cottage “occupancy is based on the septic capacity. The Health Department would have this information for any property.”

I believe the Town is on firm legal ground.

Ann G. Sjoerdsma, 5/9/19

 

5/8/19: TOWN COUNCIL UNANIMOUSLY PASSES 14-PERSON LIMITS ON SEPTIC CAPACITY AND OVERNIGHT OCCUPANCY IN VACATION COTTAGES; PUTS SUMMER CUT-THROUGH TRAFFIC ON ITS JUNE 4 MEETING AGENDA

nominihotels0316

The Town Council voted unanimously last night to limit septic-system capacity and overnight occupancy in vacation cottages to 14 persons—zoning changes that culminate the Town’s efforts since last October to prevent development like the high-occupancy, event-house-type dwellings that SAGA Construction Inc. is building now on the oceanfront.

(Please note: SAGA’s structures are currently the subject of pending litigation initiated by property owners. See http://www.nominihotels.com for details.)

The five-member Council, which includes Mayor Tom Bennett, approved the septic and occupancy restrictions, as written in zoning text amendment (ZTA) 19-01PB. No one sought to amend the language of the ZTA, which the Planning Board unanimously recommended.

As The Beacon has previously reported, the new 14-person overnight-occupancy limit does not apply to residential dwellings that are not used as vacation cottages, a term defined in the new Town Code ordinance by its use for “transient occupancy.” The maximum septic capacity of 14 overnight occupants applies to all dwellings, regardless of their use. (Please see The Beacon’s report 5/6/19 for more details.)

Here is the text of the new law:

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

The Beacon will elaborate tomorrow on the Town Council’s deliberations in a more detailed report of last night’s meeting.

CUT-THROUGH TRAFFIC, ‘EVENT’ FACILITIES

In other noteworthy action, Councilman Fred Newberry requested that discussion about how to alleviate the summer weekend cut-through traffic be added to the Council’s June 4 meeting agenda, and Councilman Gary McDonald added review and reconsideration of the Town Code’s regulation of “event facilities” to next month’s agenda.

Characterizing the cut-through traffic as the no. 1 complaint that he hears from residents, Mr. Newberry reacted favorably to a suggestion made by homeowner Tommy Karole in public comments that an exploratory committee be formed to consider all options for traffic reduction.

“There may be some new ideas that we haven’t thought of,” Mr. Newberry said.

Mr. Karole, who has lived for nearly 19 years on East Dogwood Trail near its intersection with North and South Dogwood Trails, said he would like to head up such a committee.

After the vote on ZTA 19-01PB, Mr. McDonald keyed on the Town’s regulation of event facilities, which are not permitted in the residential districts, just the commercial district.

The Town Code defines the term in pertinent part as a property “designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events.” See Town Code sec. 36-57:  https://library.municode.com/nc/southern_shores/codes/code_of_ordinances?nodeId=PTIICOOR_CH36ZO_ARTIIIINDETE_S36-57DESPTEWO.

The Town Council also unanimously approved transferring consideration of the problems created by the recent reconfiguration of the Yaupon Trail-South Dogwood Trail intersection to the Capital Infrastructure Improvements Planning Committee; and establishing a committee, with representatives from Southern Shores, Duck, Kitty Hawk, Kill Devil Hills, and Martin’s Point, to explore the possibility of a Dare County library branch in Southern Shores.

Homeowners on Yaupon Trail had petitioned the Mayor to cut down the iconic tree at the intersection of Yaupon with South Dogwood Trail in order to resolve what they said were driver sight-line problems. Mayor Bennett and others on the Town Council, however, identified the real issue at the intersection as a narrowing of the entry to/exit from Yaupon, created by recent road construction. (See The Beacon, 5/6/19, for further details.)

Mayor Bennett also announced last night that the Mallard Cove Assn. had withdrawn its request that the town assume ownership of its private road.

IN OTHER NEWS:

Construction of the new fire station was halted recently because of a design problem and is now behind by 30 days, according to a spokesman for contractor A.R. Chesson Construction who addressed the Council last night. The fire station had been projected to be completed in January 2020. The spokesman said work would resume this week.

Town Manager Peter Rascoe announced the filing yesterday of the Town’s proposed FY 2019-20 operating budget and the scheduling June 4 of a public hearing on the budget. The proposed budget calls for expenses of $7,450,846, an increase of more than 12 percent over the previous fiscal year’s expenses. (See The Beacon, 4/24/19, for background.)

Homeowner Paula Sherlock announced in public comments the formation of an oceanfront property owners association, in response to recent discussions about the prospect of beach nourishment in Southern Shores.

Ann G. Sjoerdsma, 5/8/19

5/6/19: MAY 7 MEETING: TOWN COUNCIL TO TAKE FINAL VOTE ON LIMITING SEPTIC CAPACITY, OVERNIGHT OCCUPANCY TO 14 PERSONS; The Beacon Opposes Removing Yaupon Trail Tree, Suggests Stop Sign or Mirror

Yaupon
Any sight-line issues created by the newly configured Yaupon Trail-South Dogwood Trail intersection can be addressed with a stop sign or a mirror. The iconic tree need not be destroyed.

The Town Council will decide tomorrow whether it will approve the enactment of septic-capacity and occupancy restrictions on residential dwellings, which are designed to prevent structures like the 12-bedroom, 24-person-capacity structures being built by SAGA Construction Inc. on the oceanfront and to preserve the town’s low-density environment.

The Council voted, 3-2, at its April 3 meeting 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. But a “supermajority” of four of the five Council members was required upon “first reading” to pass the measure, known as zoning text amendment (ZTA) 19-01PB, into law.

The vote tomorrow on the measure’s second reading requires only a simple majority of three members for approval. The Council will meet at 5:30 p.m. in the Pitts Center.

ZTA 19-01PB was unanimously recommended by the Town Planning Board, which spent months hearing from the public about options for curtailing large high-occupancy houses before it drafted the ZTA. The zoning text amendment amends three sections of the Town Code: sections 36-57 (definitions); 36-202 (RS-1 single-family residential district); and sections 36-204 and 36-205 (other residential districts).

On first reading last month, Mayor Tom Bennett and Councilmen Fred Newberry and Gary McDonald voted to pass ZTA 19-01PB. Councilmen Christopher Nason and Jim Conners opposed it. (See The Beacon’s reports on 4/3/19 and 4/4/19.)

The public will have an opportunity to comment on ZTA 19-01PB, which The Beacon has covered extensively, before the Council votes. There will not be another full public hearing, however.

Here is the text of ZTA 19-01PB:

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

A key provision of the ZTA is the creation of a new permitted use in the town’s residential districts of a vacation cottage, which is defined by its use for “transient occupancy.” The ZTA defines transient occupancy as follows:

“overnight occupancy in a residential structure for periods of less than thirty (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 thirty (30) days.”

In imposing the 14-person overnight-occupancy limit, the zoning measure provides that vacation cottages shall not be “advertised to accommodate, designed for, constructed for or actually occupied by more than fourteen overnight occupants.”

The overnight-occupancy limit does not apply to residential dwellings that are not used as vacation cottages. But the maximum septic capacity of 14 overnight occupants applies to all dwellings, regardless of their use.

Despite some reservations about its wording, The Beacon supports enactment of ZTA 19-01PB and would like to see the Town Council unanimously support the Planning Board.

OTHER BUSINESS: THE BEACON URGES TOWN TO SPARE ICONIC YAUPON TRAIL TREE, ERECT STOP SIGN OR MIRROR INSTEAD

Also on the Town Council’s agenda tomorrow are:

*A vote on a resolution to oppose offshore drilling and seismic testing (The Council has previously expressed opposition);

*The appointment of a town representative to the Dare County Land Transfer Tax Appeal Board (The term of current representative, Michael Stone, expires June 30);

*Consideration of a request by the Mallard Cove Association that the town assume ownership of its private road;

*Consideration of the possibility of a Dare County branch library in Southern Shores and the appointment of a citizen committee to explore this possibility;

*A request by Mayor Bennett that the Council authorize removal of the iconic Yaupon Trail tree at the road’s intersection with South Dogwood Trail for safety reasons.

See the agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2019-05-07.pdf

And the meeting packet here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2019-05-07.pdf

The Beacon would support the establishment of a Dare County branch library in Southern Shores if the county assumes all of the costs for establishing and operating it. The library proposal that Councilman Conners has presented to the Council states that the county would fund it. The Beacon would not support a donation of land by the town for this purpose.

The Beacon further finds commendable the idea of dedicating space within a Southern Shores-based library to a children’s room, a community meeting room, and public-access computers. (See the meeting packet for Mr. Conners’s report on the library proposal.)

The Beacon strongly opposes the destruction of the large iconic tree at the intersection of Yaupon Trail and South Dogwood Trail—a move that a group of Yaupon Trail homeowners seeks through a petition presented to the Mayor. The Beacon empathizes with the homeowners’ frustration over having their intersection reconfigured, but would like to see less invasive means taken to address it.

The Beacon supports the reinstallation of the stop sign that stood for decades on the south-bound side of South Dogwood Trail, at this intersection, or, alternatively, the installation of a mirror, similar to the one erected at the intersection of Tall Pine Lane and South Dogwood Trail, which enables drivers turning right (south) from Tall Pine Lane to see northbound traffic on Dogwood.

In developing the roads in Southern Shores’ maritime forest, the town’s developers, especially David Stick, sought to preserve the environmental aesthetics as much as possible by saving the trees. Hence, part of North Dogwood Trail has a large treed median strip in the middle of it, many of the streets are narrow, and, until the recent completion of the Yaupon Trail repaving project, Yaupon Trail had an unusual split entry/exit to and from South Dogwood Trail.

The engineering plan for the Yaupon Trail repaving eliminated the fork in the road, thus narrowing the entrance to/exit from Yaupon Trail. Before this re-engineering occurred, Yaupon Trail homeowners wanted to preserve their signature tree, according to Mayor Bennett.

(I have test-driven the new intersection and did not find the tree to be an obstruction. I could see northbound traffic, but I had to stop fully and emerge slowly. I found the narrowing of the road to be more annoying.)

A two-way, or even a three-way, stop at this intersection would give Yaupon Trail residents the protection and space they need when they emerge from their street and turn right (south) on to South Dogwood Trail. It also would serve as a calming device for other motorists on the road, especially during the heavily-traveled summer weekends.

Short of that, a strategically placed mirror is an easy fix.

Mayor Bennett has said publicly that the Yaupon Trail tree is alive and healthy. It should not be sacrificed because of engineering error or oversight. The Beacon urges the Town Council to bring back the stop sign or to install a mirror.

TOWN CONTACTS HOMEOWNER ABOUT HIS COMPLAINT AGAINST SAGA ‘SPECIAL-EVENT HOUSES’ ONE DAY AFTER BEACON BLOG

Resident homeowner Tony DiBernardo, who complained at the March 5 Town Council meeting that SAGA Construction had advertised its proposed structures at 98 and 134 Ocean Blvd. for rent through Carolina Designs Realty as “special-event houses” with a capacity for housing 100 guests, heard from Deputy Town Manager/Planning Director Wes Haskett after The Beacon published its 4/29/19 blog asking what the Town had done about his complaint.

According to Mr. DiBernardo, whom The Beacon contacted last week for a followup, he also filed a written complaint with the Town about SAGA’s advertised event houses on March 14. Until last Tuesday, however, a day after The Beacon’s blog appeared, he had not received any word from the Town about a resolution.

Mr. DiBernardo told The Beacon that Mr. Haskett contacted him by email last Tuesday, and he was “satisfied” with the action the Town had taken.

In an email with The Beacon, Mr. DiBernardo said Mr. Haskett told him the Town had notified Carolina Designs that the property owners cannot use either structure as an event house, and, if they do, the Town will “move forward with enforcement.”

In an email exchange that The Beacon had with Mr. Haskett on Friday, May 3, he reported that “Carolina Designs was contacted directly by the Town and warned of the definition of Event Facility as defined in Section 36-57 of the Town Code.” He also said that a “condition will be included in the Certificate of Compliance/Occupancy for both properties that states that the property shall not be used as an Event Facility as defined in Section 36-57.”

In my inquiry, I asked Mr. Haskett with whom Town staff communicated at Carolina Designs, what mode of communication the Town staff used, and when (what date) the Town staff took action. I assumed that Mr. Haskett had initiated contact because the complaint was a matter of code enforcement. I also assumed that a written report of the disposition of the complaint would have been prepared for the official record and given to Mr. DiBernardo.

Mr. Haskett advised me that “the Town Manager [Peter Rascoe] called and verbally discussed the advertisements with a principal of Carolina Designs on the morning of March 6th, and warned her the advertisements were worded such that they possibly could be interpreted as advertising for a facility with a ‘primary purpose of hosting pre-planned events.’”

The definition of event facility in the Town Code is “an establishment, structure or property designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events.”

Event facilities are not permitted in Southern Shores’ residential districts, only in its commercial district, which is on the south edge of town.

Mr. Haskett referred me to Mr. Rascoe with any further questions.

It is The Beacon’s opinion that Mr. Rascoe and/or Mr. Haskett should have contacted the property owners of 98 and 134 Ocean Blvd. directly, not their rental agent. The Town should have written to SAGA’s investor groups, 98 Ocean Blvd. LLC and 134 Ocean Blvd. LLC, informing them of the complaint that had been received and quoting provisions of the Town Code regarding permissible uses in the RS-1 single-family residential district.

The Town’s warnings should have been directed to the property owners.

As for further questions of the Town Manager, I will leave them to the Town Council, to whom Mr. Rascoe reports. Mr. Rascoe made no mention of his followup with Carolina Designs during the report he gave at the Council’s April meeting. Perhaps he can include details of his communication in his report tomorrow.

Ann G. Sjoerdsma, 5/6/19