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

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