Early voting in the Republican primary runoff election for the third district U.S. congressional seat starts today and continues daily through July 5, except over the June 29-30 weekend and the July 4 holiday. Polls will be open from 7 a.m. to 7 p.m. in the Baum Senior Center in Kill Devil Hills, the Dare County Administration Building in Manteo, and the Fessenden Center Annex in Buxton. The election is July 9.
The second Republican primary for the office left vacant by the death of longtime Congressman Walter B. Jones Jr. pits two physicians against each other: Dr. Greg Murphy, 56, a urologist in private practice in Greenville, and Dr. Joan Perry, a private pediatrician in her early 60s who works and lives in Kinston.
Dr. Murphy is currently serving in the N.C. House of Representatives. Dr. Perry has never held political office.
All registered Republicans in Dare County may vote in the July 9 second primary, as may registered unaffiliated voters who did not vote in the first primary election or who voted for a Republican in the first primary.
The winner of the primary runoff will face Democrat Allen Thomas, Libertarian Tim Harris, and Greg Holt of the Constitution Party in the Sept. 10 general election.
The U.S. congressional third district encompasses all or part of 17 eastern N.C. counties, including all of the Outer Banks.
A spokeswoman for the Dare County Board of Elections confirmed today that the Pitts Center will serve as a polling place for both the July 9 primary election (6:30 a.m. until 7:30 p.m.) and the Sept. 10 general election.
As early as May 30, The Beacon questioned Town Manager Peter Rascoe about the scheduling of the Town Council’s July meeting on July 9 at 5:30 p.m. in the Pitts Center, but he gave no indication of a conflict with the election. Notices for public hearings on July 9 in the Pitts Center have been posted on the Town website.
SOUTHERN SHORES TOWN COUNCIL ELECTIONS: 3 SEATS AVAILABLE
The candidate filing period for the nonpartisan Nov. 5 elections in Dare County, which include three Town Council offices in Southern Shores, opens at noon on July 5 and continues until noon on July 19. All candidates must file a Notice of Candidacy at the office of the Dare County Board of Elections in Manteo. See:
The four-year terms of Councilmen Fred Newberry, Gary McDonald, and Christopher Nason expire this year. None of the three has made an announcement about his intentions, but The Beacon has learned from reliable sources that Mr. Nason will not be seeking reelection and that Mr. Newberry and Mr. McDonald are considering it.
The four-year terms of the other two members of the Southern Shores Town Council, Mayor Tom Bennett and Councilman Jim Conners, expire in 2021.
The Towns of Duck, Kitty Hawk, Kill Devil Hills, Nags Head, and Manteo also will be holding elections for seats on their governing boards. Kill Devil Hills and Manteo voters will be electing a new mayor, respectively, who will serve for two years. The Town of Duck elects a town council, and the members of the town council, who each serve a two-year term, select the mayor and mayor pro tem from among themselves.
The question of giving certain property owners exceptions to the new nonconforming lots ordinance is a complex one that deserves much more thought and time than the Planning Board gave it Monday night, which was the first opportunity for the public to comment on the newly drafted zoning text amendment that defines those exceptions.
You will find the text of ZTA 18-09PB01, the proposed exceptions amendment, here:
The new nonconforming lots ordinance, which ZTA 18-09PB01 proposes to amend, replaced the former nonconforming lots ordinance on Sept. 5, 2018.
The former ordinance was codified at Town Code sec. 36-132, as the new one is, and is still available through the version of the Town Code that is on the Town website. The former sec. 36-132 had been on the books for at least 30 years,
During the past year, The Beacon has repeatedly pointed out to the Planning Board that the Town has had a nonconforming lots ordinance on the books for decades that it has not enforced. Matt Neal, president of the Outer Banks Home Builders Assn., and Mike Stone of Southern Shores Realty Co. publicly have stated the same proposition.
It is The Beacon’s contention that the Town’s failure to enforce the former sec. 36-132 has led to the mischief of allowing some nonconforming lots to exist that never should have been created to begin with.
The Former Ordinance and the Town Council’s Intent
As previously explained, lots that are not 100 feet wide or 20,000 square feet in area are “nonconforming” because they do not meet the minimum lot width and area standards established by in the Town Code for most of the residential districts. (See The Beacon, 6/20/19.)
A key provision in the former nonconforming lots ordinance was the following, which I hope, when I read it Monday night to Planning Board members, they were not hearing for the first time:
“If on or after July 7, 1981, two or more adjacent and vacant nonconforming lots are in single ownership at any time, and such lots individually have less frontage, area or width than the minimum requirements of the district in which such lots are located, then such lots shall be considered and treated as a single lot or several lots that meet the minimum requirements of this chapter for the district in which such lots are located.”
The Beacon believes that both the intent and the plain meaning of this provision, which is subsection (a)(2)(a) of former section 36-132, were to require the treatment of two or more adjacent and vacant nonconforming lots in single ownership at any time after July 7, 1981, as a single lot. The two or more lots became one, in combination.
The Town Council that enacted this provision knew that the 100-foot-wide parcels developed in Southern Shores—especially on the oceanfront—were comprised of two 50-foot-wide lots, and it sought to prevent those smaller lots from being sold separately and developed.
That Town Council most likely also knew that restrictive covenants running with the deeds to the oceanfront properties and other parcels along Ocean Boulevard required a minimum building lot width of 75 or 100 feet.
Town Attorney Ben Gallop does not agree with this. He says the plain meaning of the ordinance quoted above is not what the Council intended.
Why not? Because, Mr. Gallop says, and he said it again Monday night, the Council did not use language about “combining” the lots, such as it used in the two sections of the ordinance that immediately follow this section.
The Beacon cannot begin to ascertain how often the Town has enforced these two sections, which address situations when a nonconforming lot is adjacent to other lots under the same ownership.
Monday Mr. Gallop cited a “principle” of statutory construction for his viewpoint about the ordinance’s language, but I can tell you that the overriding principle in any interpretation of any regulation or statute is to discern the intent of the legislating body.
The result of Mr. Gallop’s analysis is a nullification of the subsection I quoted above; ergo, it existed in the Town Code, but it meant nothing. That is a conclusion that the principles of statutory construction seek to avoid, and it does not make sense.
Undeserving Exceptions, Case by Case
The reason this dispute between Mr. Gallop and The Beacon is relevant is because in the case of some of properties that get exceptions under ZTA 18-09PB01, there was—or may have been—a time after July 7, 1981, when they were part of a tract of two or more adjacent and vacant nonconforming lots that were in single ownership. It is also possible that one of the other sections of the former sec. 36-132 that required recombination applied. Consider:
The 50-foot-wide lot owned by Love-Gorman at 64 Ocean Blvd., formerly known as lot 3 in block 6:
This nonconforming lot is a hot potato.
And it is a clear case of the Town having dropped the ball.
This nonconforming lot was originally part of a 137 ½-foot-wide parcel that the Guptas, who are principals of SAGA Construction, Inc., bought through a 2013 court-ordered estate sale.
SAGA co-founder and partner Amit Gupta submitted the winning bid on Nov. 27, 2013. He later assigned his bid to 64 Ocean Blvd., LLC, a limited liability corporation managed by his brother and partner, Sumit Gupta.
Once owned by the Graves-Sackett family, this 137 ½-foot-wide oceanfront property consisted of two 50-foot-wide lots, known as lots 3 and 4 in block 6, and 37 ½ feet of lot 5 in block 6, which is to the north of lot 4. The family acquired the 37 ½ foot-wide tract long after Edward Spencer Graves of Lynchburg, Va. built an atypical two-story white flat-top house at 64 Ocean Blvd. for his mother.
According to Marinara McNaughton’s book, “Outer Banks Architecture,” Graves Cottage (see above) was designed by Harry Lawrence and built in 1948. It was part of what was known as the “Compound,” a collection of early beach homes in the vicinity, including founder Frank Stick’s flat top.
Writes Ms. McNaughton in her book: Mrs. Graves needed a second story because she had 17 grandchildren and entertained a “constant parade of houseguests.” (p. 87)
The deed conveying the Graves-Sackett property to 64 Ocean Blvd. LLC was executed March 20, 2014.
On April 30, 2014, according to the “Southern Shores Historic Flat Top Cottages” Facebook page and administrator Sally Gudas’s records, the Guptas’ 64 Ocean Blvd., LLC, demolished the Graves Cottage.
This date is critical.
This means that as of April 30, 2014, a single owner (64 Ocean Blvd., LLC) held title to three adjacent and vacant nonconforming lots at 64 Ocean Blvd., which, by operation of Town Code sec. 36-132, should have been considered and treated as a single lot.
This did not occur. Because it did not, what happened thereafter was a disgrace and, in The Beacon’s opinion, a betrayal of Southern Shores and its homeowners, especially those who are neighbors of what are now 64 and 64A Ocean Blvd.
On June 15, 2015, 64 Ocean Blvd., LLC, conveyed by gift the 50-foot-wide lot 3 to Nags Head Freehold, LLC, which was managed by the Gupta brothers’ father, Prem Gupta.
Not only did 64 Ocean Blvd., LLC, disregard the town’s nonconforming lots ordinance, it created two separate nonconforming land parcels: one 50-feet wide and the other 87 ½ feet wide, now known as 64A Ocean Blvd. (You may have noticed that there now is a sizeable house on the nonconforming 87 ½-foot-wide parcel, which has been under construction for years.)
On Jan. 22, 2016, Nags Head Freehold, LLC, executed a deed of sale to Steven Love and his wife, Kathleen Gorman, owners of 62 Ocean Blvd., for the 50-foot-wide lot known as lot 3. This deed was recorded Jan. 25, 2016.
Not coincidentally, on the afternoon of Jan. 22, 2016, the Southern Shores Town Council, by a 3-2 vote, thwarted SAGA’s bid to build a 16-bedroom wedding-event house on the entire 137 ½-foot-wide site by enacting the 6,000-square-foot house size limitation. (The Beacon previously erred in believing this 2016 meeting was in the evening. In fact, it convened at 3 p.m.)
Contrary to what Planning Board member David Neal said Monday night and others have said publicly at town meetings, Mr. Love did not buy the nonconforming 50-foot-wide lot 3 to “save” the town from SAGA’s development. The Town Council had already done that. According to witnesses, members of the Gupta family attended the Council’s meeting and, therefore, knew by the afternoon of Jan. 22, 2016 that their event-house project had been defeated. One reported Starkey Sharp, Mr. Love’s attorney, being present, but The Beacon could not confirm this with a second witness’s recollection.
The Beacon does not believe that Mr. Love and Ms. Gorman should profit from SAGA’s (64 Ocean Blvd. LLC’s) violation of the town ordinance, and they certainly would, if the Town Council approves the exception in ZTA 18-09PB01 that favors them.
They are not innocent bystanders in this transaction. Clearly, they had contact with SAGA principals before they bought their lot, and they had legal representation.
They also bought the lot with either implied or actual knowledge of the minimum dimensional requirements for buildable lots in Southern Shores and with either implied or actual knowledge of a restrictive covenant running with the lot that requires 75 feet of frontage. They should have known that they were buying a lot that did not meet Town Code standards.
The 50-foot lots at 76A, 76B, and 76C Ocean Blvd.:
These lots make up a curious situation that involves what I called at Monday’s Planning Board meeting “shenanigans.”
On June 21, 1971, Mary A. Price, C. Lee Campbell, and Ruth A. Dial, all of the same address in Falls Church, Va., jointly purchased a house built on three adjacent 50-foot-wide oceanfront lots from Kenneth and Jean Neland. These lots, nos. 3, 4, and 5 of block 7, comprised 76 Ocean Blvd. The original deed to 76 Ocean Blvd. dates back to 1947.
Subsequent to their purchase, Ms. Dial, Ms. Price, and Mr. Campbell—whom I speculate, but could not confirm, were a mother and her two children—changed their ownership so that they were not just tenants in common, they were joint tenants with right of survivorship (JTWROS). Attorney John G. Gaw Jr. handled this for them in a deed dated Aug. 11, 1981.
In a JTWROS, all of the tenants share equally in the property, and when one of them dies, his or her share passes by law to the surviving tenants.
Twenty years later, however, these three JTWROS divided up the three lots among themselves and sold them individually to Billy G. Roughton (lots 3 and 5, from Price and Dial, respectively) and his wife, Mildred Roughton (lot 4, from Campbell). This is not how a JTWROS generally resolves.
Where was the Town of Southern Shores when these conveyances occurred? Nowhere. Should the division of this prime 150-foot-wide oceanfront tract into three 50-footers have been allowed to occur under then-Town Code sec. 36-132?
The three lots comprising 76 Ocean Blvd. were not vacant on or after July 7, 1981, so that provision would not have applied.
But the former nonconforming lots ordinance, which was in effect in 2001, also provided that when a nonconforming lot was adjacent to one or more lots under the same ownership and any portion of a “proposed structure or required use” was located on two or more lots, the lots were to be combined into one single lot of record. (36-132(a)(3))
This provision of former sec. 36-132 had no ownership-date qualifications.
It is clear from the record of deeds for 76 Ocean Blvd. that whoever built the “proposed structure” (house) on the site, a portion of which was most likely located on two lots, also owned the adjacent nonconforming lot. (I could not discover when the house was demolished.)
Fourteen years later, when Billy Roughton, a very wealthy real estate investor and developer, died without a will, his widow arranged to give each of their three daughters one of the underlying 50-foot-wide lots. The same law firm that handled the dissolution of the Price-Dial-Campbell JTWROS, Vandeventer Black, assisted Mildred Roughton with inventorying and administering her husband’s estate.
Inasmuch as the Roughtons worked the deal with the JTWROS trio to split into three sections a parcel that should have been treated as a single lot, The Beacon does not regard them or their children as “innocent” bystanders.
ZTA 18-09PB01 gives the Roughton sisters a special pass. It exempts a lot that is:
“one of three or less [sic] adjacent nonconforming lots under the ownership of related siblings on September 5, 2018.”
How is this even remotely fair to neighboring homeowners and to the community at large? How does it conform to the land-use plan?
Not only does this breakdown of a 150-foot-wide developed parcel into three 50-foot-wide lots appear to violate the former nonconforming lots ordinance, it overrules the restrictive covenant running with the land that requires all lots in the block to have 75 feet of frontage.
If this exemption is permitted, in time three large houses will likely occupy the now-pristine beach at 76 Ocean Blvd. in our “low-density” town. That should not happen.
2 Trout Run: This is a 50-foot-wide lot purchased by the current owners on July 27, 2017 from a family trust that also owned two adjacent, vacant 50-foot-wide lots.
The lot that fronts on Trout Run, which runs perpendicular to Ocean Boulevard, is known as lot 56 of block 31. The other two, identified as lots 1 and 2 of block 31, front on Ocean Boulevard. The two lots on Ocean Boulevard were sold to another party on Aug. 22, 2017 and remain vacant, as does 2 Trout Run.
If the former nonconforming lots ordinance that Mr. Gallop claims has no effect had been applied, these three lots would have been treated as a single lot and not been subject to division.
Just as was true with Mr. Love and Ms. Gorman, the buyers of 2 Trout Run had either implied or actual knowledge of the minimum dimensional requirements of lots in Southern Shores and of any restrictive covenants running with the lot. Most likely, a covenant requires 75 feet of frontage, but The Beacon did not confirm this. In any case, the Trout Run buyers should have known they were purchasing a lot that did not meet Town Code standards.
Just last year a widow sold off a large vacant tract of land on Porpoise Run that she had purchased with her husband in 1972. He died in 1999. Two of the sales she made were of 50-foot-wide lots. Had Town Code sec. 36-132 been enforced, as The Beacon interprets its meaning, she could not have sectioned off her vacant tract of multiple adjacent nonconforming lots. She would have had to have treated it as a single lot.
The Beacon is greatly concerned about these nonconforming properties and others that have been created on the Town’s watch. We are seeking an independent legal opinion.
During the discussion that the Town Council had at its June 4 meeting about renewing its contract with Mr. Gallop’s law firm, Hornthal, Riley, Ellis and Maland, he said that “through the merger of multiple firms, essentially, our firm has been the Town Attorney since 1979,” when Southern Shores was incorporated—and, therefore, when it enacted all of its Town Code ordinances.
The firm has represented the Town “by name since 2001 or 2001,” Mr. Gallop said. According to his firm website profile, Mr. Gallop has been Town Attorney since 2008.
A zoning text amendment that carves out exceptions for known individuals and their properties to the new nonconforming lots ordinance passed by the Town Council last September received a unanimous endorsement from the five-member Town Planning Board Monday night.
The Board also decided to have two of its members, Chairperson Elizabeth Morey and Andy Ward, meet with Planning Director Wes Haskett to discuss how a special-events ordinance, considered and rejected by the Town Council in January 2016, might be modified to protect the town today.
A report of the Planning Board’s treatment of the special-events ordinance, which is a proposed Town Code Amendment (TCA), not a zoning amendment, follows below.
As The Beacon has previously reported, the TCA requires property owners who host “special events,” as defined by the ordinance, to obtain permits and meet other requirements, depending on the number of guests they anticipate. The ordinance sets a threshold of 25 attendees. See The Beacon, 5/28/19, 6/5/19, and 6/9/19.
The Beacon will take up ZTA 18-09PB01, the exceptions amendment, in detail tomorrow. It will come before the Town Council for consideration at its July meeting. You may access the text of the proposed amendment here:
Of the four exceptions that the Planning Board recommended, The Beacon supports only one. It exempts a nonconforming lot that meets or exceeds the Town’s “lot area requirements for the district” and is located “adjacent to a single conforming lot under the same ownership on which is located an existing single-family dwelling.”
After the town’s 1979 incorporation, the Town Council codified minimum dimensional requirements for all lots in the various residential districts. Most of us live in the RS-1 single-family residential district, which is described and regulated in Town Code section 36-202.
In the RS-1 single-family district, as well as in the RS-8 multifamily residential district (sec. 36-203), and the R-1 low-density district (sec. 36-205), the minimum lot area size for a detached single-family dwelling is 20,000 square feet.
Buildable lots in the RS-1 single-family and the R-1 low-density residential districts must be 100 feet wide, whereas those in the RS-8 multifamily district must be at least 75 feet wide. The issue with all of the properties that the Planning Board seeks to except from operation of the current nonconforming lots ordinance, Code sec. 36-132, is that they are too narrow. All but one of them is only 50 feet wide.
The Beacon can endorse the principle that a nonconforming lot located in one of these districts that is at least 20,000 square feet, or even 18,000 or 19,000 square feet, should be considered conforming. The Town Council’s intent in regulating these districts was to restrict the density of development. Building only on 20,000-square-foot-or-larger lots in the RS-1 single-family residential district would preserve the low-density environment and character of the town and would be consistent with the town’s land-use plan.
No such principle underrides the other three exceptions that the Planning Board has recommended. In fact, it is the opinion of The Beacon that if the previous nonconforming lots law—also codified at sec. 36-132 and on the books for at least 30 years before the Town Council replaced it with the current version last September—had been properly enforced, the nonconforming lots the Planning Board is excepting would not have existed and been sold. The Town allowed these nonconformities to occur.
By operation of the former Code sec. 36-132, owners who held title to these lots before the current owners should have been required to treat them, in combination with other adjacent, vacant lots that they owned, as a single lot. The Beacon will explore these properties and their ownership in tomorrow’s blog.
We realize that this area of regulation is confusing, but it’s also very important for the town’s future. When I spoke for three minutes during the public-comment period of Monday’s Planning Board meeting, I encouraged the Board to look at the underlying facts of these properties—not just the immediate facts, but facts going back decades.
Unfortunately, owing to a personal calamity last week that prevented me from doing all of the necessary research, I did not have all of the facts that I wanted to present to the Planning Board and could not have done so in three minutes, anyway. This week I have been able to gather all of the facts—I had to go to the Register of Deeds Office in Manteo—and will present them in an analysis tomorrow.
Now, I return to the matter of regulating “special events” in Southern Shores residences.
DISCUSSING SPECIAL-EVENTS ORDINANCE
Town Attorney Ben Gallop prepared the special-events Town Code Amendment that the Planning Board considered Monday in December 2015. It was intended as a means to defeat SAGA Construction’s plan to build a 16-bedroom wedding event house at what was then 64 Ocean Blvd. and is now 64 and 64A Ocean Blvd.
The Town Council decided instead, by a vote of 3-2 on Jan. 22, 2016, to limit the size of houses to 6,000 square feet. This decision, made during a special afternoon meeting of the Council, which was not videotaped, thwarted SAGA’s proposal
On Monday night Planning Board member Andy Ward showed great concern for the adverse consequences to residents and vacationers if the two houses that SAGA is now constructing on the Southern Shores oceanfront are used for events. Each of these structures is adjacent to a popular beach access maintained by the Southern Shores Civic Assn., which objected to them last autumn when notified by the Town Permit Officer.
“We want to allow events at houses. We don’t want event houses,” Mr. Ward said emphatically.
Mr. Ward further characterized the current Town Code treatment of event facilities as having “no meat.” The Beacon agrees and applauds Mr. Ward for speaking out.
Currently, an “event facility” is defined under Code sec. 36-57 as an “establishment, structure, or property designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events.” (my emphasis added)
The definition of event in the same section is very broad, encompassing private parties; weddings; corporate meetings; retreats, sporting, cultural, and musical events; and just about any event that is planned in advance.
If a property is used primarily for events, it is considered a commercial property and must be located in the C general commercial district of town. But establishing and proving that events are the “primary purpose” of a structure or property presents a major hurdle for town enforcement of the zoning regulations—especially if the Town continues its unsatisfactory passive approach of enforcing the Town Code only when it receives complaints. (Planning Board: Why don’t you recommend changing this dreadful policy? You have the authority to do so.)
The Beacon would like to remind readers that the 12-bedroom, 24-person septic capacity dwellings under construction at 98 and 134 Ocean Blvd. are the subject of pending litigation. (See nominihotels.com)
But The Beacon agrees with Mr. Ward that, if the homeowners contesting SAGA’s structures lose, the dwellings represent “the door wide-open for a lot of action, a lot of events.”
Chairperson Morey opted to have an informal free-flowing discussion, with no time limits imposed, on the special events ordinance. Unfortunately, that discussion turned out largely to be an exchange between Ms. Morey and Mr. Ward, on the one hand, and Porter Graham, the recently hired “shared” government affairs director for the Outer Banks Assn. of Realtors and the Outer Banks Homebuilders Assn., on the other.
When questioned by Mr. Ward, Mr. Graham, who was hired in May out of Washington, D.C., showed no familiarity with the town of Southern Shores, acknowledging that he does not know our oceanfront. Although Mr. Graham touted Duck’s ordinance on special events, which reportedly kicks in with 100 event guests, he could not answer Mr. Ward’s questions about how that ordinance has fared, i.e., what the effects on the community have been.
Ms. Morey held up the Duck ordinance as a possible prototype for Southern Shores.
Mr. Graham also spoke at the Town Council’s June 4 meeting on the special-events ordinance. He is a lobbyist with no local connections beyond his new employers. At both the Town Council and Planning Board meetings, Mr. Graham described himself in his introduction as being from Kitty Hawk, but he gave no address. Neither public body insisted on one.
The Beacon strongly encourages Mr. Ward to pursue the ideas he brought up at Monday night’s meeting about how to modify the permitting process for special events that the Town Code Amendment proposes. In particular, The Beacon liked his statement that “the larger the event, the fewer you [the property owner] get to have.” The current version of the TCA imposes a limit of three special events per year on a property owner. The limit does not apply to traditional family events.
It is unfortunate that the other three members of the Planning Board did not contribute to the discussion on special events. The Beacon trusts that the smaller group of Ms. Morey, Mr. Ward, and Mr. Haskett will come up with meaningful suggestions for the Town Council to consider.
PLANNING BOARD TERM EXPIRATIONS: The three-year terms of Ms. Morey and member Joe McGraw expire June 30. The Beacon has learned that Ms. Morey would like to be reappointed to another three-year term, but Mr. McGraw would not. The Town Council typically gives first consideration for regular-member appointments to alternates. The Planning Board’s current alternates are Michael Basilone and Leo Holland, who has previously indicated that he cannot take on the commitment of a regular-member term.
If you would like to apply for a Planning Board appointment, see:
POTENTIAL SOUTHERN SHORES LIBRARY: The “Exploratory Committee for Potential Branch Library” will meet today at 6 p.m. in the Pitts Center.
HISTORIC LANDMARK HEARING: The Historic Landmarks Commission has postponed the public hearing on the landmark designation application submitted by Dave Mackey for the Mackey Cottage at 218 Ocean Blvd. from next Tuesday to July 23.
Yesterday, in discussing ZTA 18-09PB01, the latest proposed amendment to the nonconforming lots ordinance enacted by the Town Council last September, The Beacon wrote the following:
“If the Planning Board recommends allowing three sisters to divide a 150-foot-wide oceanfront parcel owned by their father, a multimillionaire real estate investor and developer who died without a will, The Beacon believes it would be contravening both the letter and intent of the Town Code sec. 36-132 that was in effect when the patriarch owned all three. Owning nearly $13 million in real estate, and much more in stocks and other assets, according to the estate inventory, the deceased father-property owner would have been well-advised to plan his estate and write a will.”
Upon further research, The Beacon has learned that the deceased father owned only two of the three 50-foot-wide lots at 76 Ocean Blvd., and his widow owned the third. He owned the northernmost and southernmost lots, and she owned the lot in the middle, such that the decedent’s two lots were not adjacent.
The Beacon regrets this error. Mea culpa for writing under time pressure on a Sunday afternoon.
The Dare County Register of Deeds records show that the three 50-foot-wide lots were acquired by husband and wife on June 6, 2001 from three different individuals, who, until they altered ownership two weeks before the sale, had owned them together.
According to the subject deeds, each of these lots was owned jointly by three unmarried persons who did not share a common surname, but shared a home address. They may have been siblings. One of their signatures on the deeds shows signs of age, so they may have been a mother and her two children.
(The Beacon does not have the time to go to the Register of Deeds Office in Manteo to research old deeds that are not online in an effort to try to establish their likely familial relationships. Online deeds only date to 1999.)
On May 21, 2001, the three jointly transferred ownership to the three 50-foot-wide lots so that each ended up owning only one. Each then sold his or her lot to either the decedent or his wife. The law firm of Vandeventer Black made all of this happen for the parties involved. The same firm assisted the decedent’s widow with administering his large estate.
The decedent was a longtime real estate investor and developer. He was a player on the Outer Banks.
Although the decedent and his wife apparently did not violate the letter of Town Code sec. 36-132, The Beacon still believes they contravened the spirit and intent of the law, as did their predecessors in ownership. If their three daughters, who each now own one of the 50-foot-wide lots, are given an exception to the new sec. 36-132, this contravention will continue.
If the sisters are allowed to sell their lots, individually, and their buyers develop them, or they develop them themselves, there will not be low-density development along this 150-foot-wide section of the oceanfront, and both the intent of the law and the vision of Southern Shores will be thwarted. This should not happen.
It is fair to say that “shenanigans” accompanied more than a few of the real estate transactions in Southern Shores. Deals were made informally, and lawyers have always known how to skirt the law, especially when it’s not tightly written.
The Beacon asks the Town Planning Board to delve into the facts behind those transactions that it would give an exemption to Town Code regulation and ensure that it is perpetuating fairness, not just enabling shenanigans that benefit the few and harm the many. The Board should protect the town, especially the oceanfront, and its land-use plan from further degradation.
The Town Planning Board will take another crack at proposed legislation designed to except certain property owners from the reach of the nonconforming lots ordinance passed by the Town Council last September when it meets tomorrow, at 5:30 p.m., in the Pitts Center, behind Town Hall.
The Board also will take up a special events ordinance that the Town Council considered and rejected in 2015-16. The ordinance proposes establishing a permitting system for events held in residences at which homeowners anticipate more than 25 attendees. Please see The Beacon, 6/9/19 for background.
In each case the Planning Board will give the Town Council its recommendation regarding the proposed ordinance, and the Council will make the final decision. The Board is not required by the Town Code to evaluate the special events ordinance, however. It is doing so at the request of the Town Council, which so voted on June 4.
The nonconforming lots ordinance is a zoning text amendment (ZTA), whereas the special events ordinance is a Town Code Amendment (TCA) that does not pertain to zoning. The Planning Board only has delegated authority over zoning matters.
You may access the latest proposed nonconforming lots ordinance, styled as ZTA 18-09PB01, here:
NONCONFORMING LOTS: A LONG HISTORY OF LOW-DENSITY DEVELOPMENT
The Planning Board has been dealing with the regulation of nonconforming lots for more than a year, during which time The Beacon has written numerous reports and editorials about such lots and the legal language used in the Town Code to limit them and their sale, transfer, and/or (re)development.
The Town Code section that addresses nonconforming lots is sec. 36-132. A version of this section has been in effect since the first Town Code was enacted after the town’s incorporation in 1979.
Nonconforming lots are tracts of land that do not meet the Town’s legally mandated dimensional requirements, such as the minimum lot width of 100 feet and the minimum lot size of 20,000 square feet.
Proposed ZTA 18-09PB01 seeks to exempt certain identifiable property owners from the current nonconforming lots ordinance because of what the Planning Board perceives as an undue hardship to them. But there is a danger that, in going to extremes to protect known individuals, the Board may harm the community and the rule of law.
The Town Council may or may not agree with the Board’s judgment. The Beacon certainly does not agree with at least two of the exceptions that ZTA 18-09PB01, which was drafted by Town Attorney Ben Gallop, at the Board’s direction, carves out.
One of them speaks to exempting a nonconforming lot that is “one of three or less [sic] adjacent nonconforming lots under the ownership of related siblings on September 5, 2018.”
The other exempts a nonconforming lot that is adjacent to land that is made up of “a single conforming lot not adjacent to any other land under the same ownership that was created after January 1, 2015 due a recombination of two (2) previously nonconforming lots.” (If you are scratching your head, you have just cause.)
The Beacon believes strongly that personal bias and favoritism should not influence members of the Planning Board. They should seek to enforce the law as they find it—sec. 36-132 has been on the books for decades—in an even-handed fashion, without regard to whom it may adversely affect, provided it serves the greater good. Legislating on behalf of friends and cronies—what you might call “good-ole-boy” legislating—should be an unpleasant fact relegated to the past.
If the Planning Board recommends allowing three sisters to divide a 150-foot-wide oceanfront parcel owned by their father, a multimillionaire real estate investor and developer who died without a will, The Beacon believes it would be contravening both the letter and intent of the Town Code sec. 36-132 that was in effect when the patriarch owned all three. Owning nearly $13 million in real estate, and much more in stocks and other assets, according to the estate inventory, the deceased father-property owner would have been well-advised to plan his estate and write a will.
Current sec. 36-132 clearly prohibits the three sisters, who did a post-mortem division with their mother of all of their father’s real estate holdings, from selling or developing their 50-foot-wide lots, and for good reason. Such a division is destructive of the vision and character of Southern Shores. If the Planning Board permits this, it would betray the larger community, which depends upon government appointees and elected officials to protect the town.
It also would send the message to homeowners in the immediate vicinity of the subject properties, 76A, 76B, and 76C Ocean Blvd., who might have to contend with three developments, instead of one, that their rights and interests are secondary to those of a crony of the Planning Board who should have split his properties legally among his daughters before he died.
Theirs is not a hard-luck case.
In previous articles, The Beacon has argued that the owners of a vacant 50-foot-wide lot at 64 Ocean Blvd. should be prevented from developing it because they, too, ran afoul of sec. 36-132. Mr. Gallop says my interpretation of the former sec. 36-132 is “wrong.” I say Mr. Gallop knows that no attorney’s interpretation of an ordinance is “right.” Judges decide how to interpret ordinances and other regulations correctly, and Mr. Gallop is not a judge. (This is one potential zoning challenge by an affected neighboring owner that the Town Board of Adjustment would not be able to preside over impartially.)
The Beacon wonders if the five members of the Planning Board have read and interpreted for themselves the version of sec. 36-132 that was in effect before Sept. 5, 2018. If not, then they have not done their independent duty.
The owners of 64 Ocean Blvd., who own the developed lot at 62 Ocean Blvd., get a pass under proposed ZTA 18-09PB01, even though the Town Council stalemated 2-2 on the exact same Code language when that body voted on it March 5, 2019. Councilman Christopher Nason was recused from voting because he has both a personal and a professional relationship with the property owners.
Seventy years ago, the founder of Southern Shores envisioned a community of low-density housing with a lot of open space. Frank Stick (1884-1966), a New Jersey native, wanted people of more modest means to enjoy the luxurious privacy that ultra-rich oceanfront property owners in the Northeast enjoyed.
The Town perpetuates his vision in its land-use plan, which states that the “quiet seaside residential community” of Southern Shores is “comprised primarily of low density neighborhoods consisting of single family homes primarily on large lots (i.e., at least 20,000 sq. ft.).”
The developers of Southern Shores sought to ensure low-density development and open space in town by requiring that homes be built on large lots. It was standard for them to plat and record a 100-foot-wide tract of land as two separate 50-foot-wide lots, even though a property owner could not build on just one lot. This was especially true of oceanfront property.
After the town was incorporated in 1979, the initial Town Council enacted the first Town Code. These officials addressed nonconforming lots in sec. 36-132, which specified precisely when such lots, adjacent and owned by the same person or entity, should be treated as a combined single conforming lot.
So-called “single” nonconforming lots of record, which are not adjacent to other such lots that are under the same ownership, have never been an issue.
Mr. Gallop and I disagree on the meaning of the following language in the version of sec. 36-132 that was in effect until last September:
If “two or more adjacent and vacant nonconforming lots are in single ownership at any time, and such lots individually have less frontage, area or width than the minimum requirements of the district in which such lots are located, then such lots shall be considered and treated as a single lot of several lots that meet the minimum requirements of this chapter for the district in which such lots are located.”
How do you interpret this language? The words “shall be considered and treated” seem to me to have a plain meaning.
Despite the legal requirements of sec. 36-132, an unwelcome trend emerged in Southern Shores in 2016 toward redeveloping 100-foot-wide lots on or near the oceanfront as two nonconforming 50-foot-wide lots.
The Town Council sought to stop it and finally enacted ZTA 18-07, a rather confusing replacement of sec. 36-132 that supposedly made crystal-clear when the “recombination” of adjacent lots under the same ownership into a single conforming lot or multiple conforming lots is required.
You will find the text of ZTA 18-07, which is the current sec. 36-132, here:
You will find the regulation that was in effect from the town’s incorporation until Sept. 5, 2018, in the copy of the Town Code that is on the Town website. The Town Code has not been updated.
I’ll leave it at that and report later this week on the Planning Board’s action.
THURSDAY, JUNE 20: The “Exploratory Committee for Potential Branch Library” will meet Thursday at 6 p.m. in the Pitts Center.
TUESDAY, JUNE 25: The Historic Landmarks Commission will hold a public hearing at 9 a.m. in the Pitts Center on the landmark designation application submitted by Dave Mackey for the Mackey Cottage at 218 Ocean Blvd.
REMEMBER: Juniper Trail is expected to be closed to all through traffic at the 32 Juniper Trail street address, starting tomorrow. The closure for repairs is expected to last a week.
On Oct. 2, 2014, an estimated crowd of 130 people filled the Kitty Hawk Elementary School gymnasium for a public forum whose purpose had been publicized as “to receive public comments, ideas, and concerns on any possible solutions to increased seasonal vehicular traffic on any public street of the Town of Southern Shores.”
I sometimes wonder if I imagined this meeting, because I seem to be the only one in Southern Shores who ever recalls it in private conversations and public comments.
Whenever I bring it up at Town Council meetings, Mayor Tom Bennett does not react, but I know he was there, as were Town Manager Peter Rascoe and all of the then-Town Council members, except Leo Holland: David Sanders, Jodi Hess, and Larry Lawhon.
So that history either will or will not repeat itself, I detail the facts of the 2014 meeting below. Please consider this an editorial.
As The Beacon reported June 5, 2019, the Town Council unanimously approved at its June 4 meeting a sanctioned seven-member citizens’ advisory committee to study ways in which the cut-through traffic can be curtailed. Homeowner Tommy Karole, who lives on East Dogwood Trail near its intersection with South-North Dogwood trails, is to chair the committee, and Councilman Fred Newberry, a North Dogwood Trail resident, will serve as an adviser. Mr. Newberry championed its formation.
The committee should know what it’s up against. As should the public, especially those who are newcomers.
Within minutes after the October 2014 special meeting opened, it became clear to audience members that the public forum on traffic would not be the welcome airing and unfiltered exchange of views that they had anticipated and hoped for. It would not be a series of public speakers, much less a free-flowing discussion.
No, it would be a carefully orchestrated “facilitation” by a paid professional from Raleigh who had been instructed by Mayor Bennett and the Town Council on how to focus and direct the meeting. I called it a dog-and-pony show then, and I repeat the description today. Frankly, I felt manipulated.
A number of homeowners walked out in disgust after Madeleine Henley of Walking Stick Associates explained the hours-long exercise that would occur that night and started writing the rules of the exercise on a board—items along the lines of be respectful and polite; listen to others, without interrupting or talking over them.
I have participated in a number of facilitated organizational meetings and have even been the mediator/facilitator, but I did not attend this public forum expecting it to be so tightly controlled and scripted. Nor did I expect it to consume the whole night. Like others, I was hugely disappointed, but I hung in.
Back then, I knew nothing about the modus operandi of Mayor Bennett’s administration.
The “forum” lasted more than three hours. Many ideas for either discouraging or restricting summertime weekend cut-through traffic in the residential areas were suggested—the overwhelming majority of which were summarily dismissed later by the Mayor and Town Council, who showed little interest in doing anything.
Before the forum, the only tactic that I can recall having been used to discourage cut-through traffic was the police checkpoint. Police officers would stop vehicles on South Dogwood Trail between the elementary school and the Duck Woods Country Club to check driver’s licenses, car registrations, and car inspections.
I do not believe “decoy” or unmanned police vehicles on the side of the road were tried until later. But we all know how effective they are once drivers figure out, and pass the word, that there’s no one in them.
Among the many ideas that were offered by forum participants were the following:
*lowering speed limits on the affected streets during the high season;
*installing speed humps (either mobile temporary ones or permanent ones) and speed cameras;
*installing more stop signs (one person suggested a temporary stop sign at every side street off of South Dogwood Trail)
*installing a traffic light at the South-North-East Dogwood trails intersection;
*changing certain streets so that they run one-way during certain hours on summertime weekends;
*making the center-turn lane on N.C. Hwy. 12 a flex through-lane on weekends, depending on the time of day;
*increasing police presence and police enforcement of speed limits and stops;
*staggering vacation rental check-ins over Friday, Saturday and Sunday;
*asking MapQuest (the only problem navigator then) not to direct drivers through the Southern Shores woods;
*declaring the cut-through roads to be private and then closing them to non-residents;
*prohibiting through trucks, according to vehicular weight restrictions;
*putting up signage indicated there is no through traffic;
*expanding turn restrictions, in particular, prohibiting the left turn from U.S. Hwy. 158 on to South Dogwood Trail; and
*gating Southern Shores at South Dogwood Trail, Juniper Trail, and Porpoise Run.
The consensus achieved with forum participants through Mr. Henley’s mediation was to prohibit the left turn at U.S. 158 and South Dogwood Trail. But this was only one of numerous proposed strategies. It was not the be-all-and-end-all.
The Council took no action on it. A little over two months later, Mayor Bennett put the kibosh on the left-turn prohibition and any other cut-through traffic solutions that had a realistic chance of making a difference.
In a memorable “Word From the Mayor” column in the Jan. 23, 2015 Town newsletter, Mayor Bennett rejected “prohibiting access to any of the Town’s public streets by barricades or outright closures” and failed to address any of the other ideas that came out of the forum.
(The roads in Southern Shores, with the exception of N.C. Hwy. 12 and some privately owned roads, such as a section of Fairway Drive, are owned by the Town, not by the State of North Carolina.)
The Mayor also reminded Southern Shores homeowners that tourists “provide the bulk of the fuel for our economy” and that most of us bought or built our homes in Southern Shores “well aware that the Outer Banks was and continues to be a most popular tourist destination” and able to anticipate the “dynamic growth of our northern beaches and the potential impact on our community.” (See the 1/23/15 newsletter here: http://www.icontact-archive.com/vbh4RGfk5zTd6P1EhGEnwxgUIb2y1Z9h.)
The Mayor chose to support promoting alternative travel routes, such as Interstate 95 south to N.C. 64, then east to the Outer Banks (an out-of-the-way idea that was bound to fail); encouraging “industry-established alternate rental check-in days” (Southern Shores Realty Co. has long had Friday-Saturday-Sunday check-ins); and assisting with traffic control at the big U.S. 158-N.C. 12 intersection (an idea that has only limited effect).
In the years since the 2014 forum, the cut-through traffic has only become worse, as the tools for navigating around the backup on N.C. Hwy. 12 have become more numerous and Southern Shores town officials persist in taking no action to protect residents.
Residents now think about how they can outsmart the popular navigation app, Waze, so that they can run an errand to the Marketplace without spending an hour or more on the road getting home.
That’s the obvious problem with cutting through on South Dogwood Trail: Drivers end up sitting in gridlock on Hillcrest Drive and Sea Oats Trail, instead of on N.C. 12!
The June 23-24, 2018 no-left-turn trial weekend came about only because Town Councilmen Fred Newberry and Gary McDonald, having listened to residents complain for years about the cut-through traffic, lobbied for a public meeting with representatives from the N.C. Dept. of Transportation. When these representatives made it clear at the Town Council’s Sept. 5, 2017 meeting that DOT would support the Town in any actions it wanted to try to curb the cut-through traffic, Councilmen Newberry and McDonald pushed for the directive that enabled the no-left-turn trial to occur.
The Beacon reported extensively on the “peaceful, safe weekend” that we enjoyed last June, noting that not only were there no backups on residential streets, the traffic on Hwy. 158 and N.C. 12 moved faster: N.C. 12 did not get blocked by side traffic turning left on to the thoroughfare from Hickory Trail, Hillcrest Drive, Eleventh Avenue, and Sea Oats Trail. There was no “blocking of the box.” (See The Beacon, 6/25/19.)
Despite the overwhelmingly positive experience that Southern Shores residents had last June during the no-left-turn weekend, a majority of the Town Council—Mayor Bennett and Councilmen Christopher Nason and Jim Conners—has refused to build upon this success and has perpetuated false conclusions and biases whenever they discuss the trial. (See The Beacon, 6/29/18 and 7/6/18.)
They also have not offered any other strategies for reducing traffic.
OPPORTUNITY FOR CHANGE: THE MAYOR SPEAKS AGAIN
The formation of the new cut-through traffic committee that Mr. Karole will chair represents an opportunity for change. Even Councilman Conners, who persists in believing that his own personal anecdotes are evidence of something more than a few anecdotes that may or may not be biased, told Mr. Karole at the Council’s June 4 meeting: “Bring us ideas.”
But Mayor Bennett would not leave it at that.
Saying that he was not “trying” to “put a damper on things,” the Mayor nonetheless issued the following cautionary message, reminiscent of his January 2015 “Word From the Mayor,” after the Council’s vote on the new committee:
“I find it interesting,” he said, “that Dare County through their tourist bureau and their efforts spends millions of dollars every year to bring visitors to the Outer Banks and encouraging people to take their vacations with us. . . . Currituck does the same thing. We benefit directly from those dollars that the tourist industry provides to the county. There’s no question about that. We get back a good part of our budget that we operate with from those tourist dollars.
“I wonder what kind of message Southern Shores is sending if we’re going to start dreaming up ways to keep people off our streets. I think it’s something we have to consider pretty carefully. What are we saying to the tourists when they come to an intersection and they can’t go any further?”
First of all, it has yet to be determined if all cut-through traffic will be prohibited. The committee may have other ideas in mind.
Secondly, most of the tourists traveling through our neighborhood, wearing down our roads, are headed to Currituck County, not Dare, and the tourism dollars they spend in Currituck County do not end up in Southern Shores’ revenues.
But money is not the issue. Nor is tourism.
What we’re saying to the cut-through drivers is what people throughout this country say to cut-through drivers when they block or otherwise hinder their path because they’re posing a safety and welfare threat to residents, and what those same cut-through tourists would say to drivers cutting through on their residential streets: Stick to the main road. Stick to the thoroughfare. Stop endangering, disturbing, inconveniencing, and harassing residents.
And incidentally, if you stick to the main road, you’ll get where you’re going faster because when you enter N.C. 12 from a side street, block the intersection, and slow the traffic flow, you only make things worse.
I wonder if Mayor Bennett would be so concerned about northbound tourists and Dare County tourism dollars if Hickory Trail were blocked so that the cut-through traffic were to turn left on Hillcrest Drive from East Dogwood Trail and drive past his house. Would he be so solicitous of tourists’ welfare?
Every time the Town Council discusses changing the cut-through traffic pattern, Councilman Nason, who lives on Trinitie Trail, which is an extension of Juniper Trail, is quick to insist upon protection for residents on Juniper Trail.
He seemed very concerned at the June 4 Council meeting about the people on Wax Myrtle Trail who allegedly complained about increased traffic on their street, down near Porpoise Run, during the no-left-turn weekend. Why does he worry about them, but not the hundreds of others who are weekly affected by the traffic load?
Councilman Conners, who lives on Duck Woods Drive, does not want to see his street used by drivers for U-turns so that they can return to South Dogwood Trail and turn right, rather than left.
Aren’t we all in on this together?
We need our elected officials to take care of all of us and the tourists who vacation in Southern Shores. Duck and Currituck County seem to have no trouble looking after their own interests.
As soon as Mr. Karole announces his plans for the cut-through study committee, The Beacon will publish a report.
Dear Readers: I was in Chesapeake yesterday and could not attend the Dare County Planning Board meeting last night. I have learned from people who did attend that, in light of considerable public opposition—both in comments expressed at the meeting and in emails sent to the County Planning Dept.—SAGA Construction has withdrawn its application to amend the Dare County Zoning Ordinance to enable it to build the hotel development that it has proposed. (See The Beacon, 6/10/19)
The resort-style hotel that SAGA envisions would replace the Sea Gull Motel, which the Kill Devil Hills-based developer purchased in 2016 from the Oden family, who had owned it since 1955. The legendary motel was severely damaged during Hurricane Isabel in 2003. Two of the three buildings that then encompassed the motel were destroyed, and the third had to be rebuilt.
As the Island Free Press reports today, it’s “back to the drawing board” for SAGA’s Hatteras project:
The primary objections reportedly expressed by opponents to the SAGA hotel project are those that The Beacon highlighted in its post yesterday: the height of the hotel and the lot coverage of the five-acre development, which SAGA sought to increase from the current Dare County Code standard of 60 percent to 70 percent.
Sumit Gupta, who is co-founder, principal partner, and chief executive officer of SAGA Construction, Inc., represented the applicant at the Planning Board meeting.
According to a Beacon reader who received a copy, Dare County Planning Director Donna Creef sent the following email this morning to people who had previously contacted her about SAGA’s project and application. Ms. Creef wrote:
“I wanted to follow-up with those folks that had emailed Dare County concerning the proposed C2-H text amendment. Copies of the 60+ emails were provided to the Planning Board, the majority were opposed to zoning changes. There were 19 speakers at the public comment period of the meeting last night with the majority opposed to zoning changes.
“Comments from the Planning Board indicated a reluctance to recommend a 90-ft building height and a desire to not increase lot coverage.
“The application SAGA Construction voluntarily withdrew the zoning amendment application to revise their request based on feedback from the Planning Board. Sumit Gupta, the SAGA representative, indicated it would take some time to revise the amendment but he would re-submit. The Planning Board acknowledged his voluntary request to revise the application. Mr. Gupta was advised that any resubmission of the proposal will follow the Planning Board submission procedures—3 weeks before the meeting date. The Planning Board monthly meetings are held the second Monday of each month.
“At this point I am unsure when the item will be re-submitted. It will not be scheduled for the July 8 Planning Board meeting. I will email those on this email list when SAGA re-submits.”
The Beacon applauds Ms. Creef for being in touch promptly and personally with members of the Hatteras community who took the time to write to the Planning Dept. This type of public service should occur throughout the Outer Banks.
The Beacon will continue to follow this story and bring you updates as they occur.
SAGA Construction Inc. will argue today to the Dare County Planning Board why it should support changing longstanding county commercial zoning rules solely to allow it to build a six-story hotel, with a seventh-story “rooftop amenity,” and other commercial projects it has proposed on southern Hatteras Island.
According to local news reports, SAGA seeks to transform the two-story Sea Gull Motel, which was built in 1955 and hit hard by Hurricane Isabel in 2003, and adjacent property. (See http://www.seagullbuxton.us/.)
The seven-member Planning Board, which is chaired by at-large member John Finelli, who lives in Martin’s Point, will hear SAGA’s application to amend the county zoning ordinance pertaining to the C-2H general commercial district at 6 p.m. in the Board of Commissioners Meeting Room, 954 Marshall C. Collins Drive, in Manteo.
The Planning Board’s consideration of SAGA’s application is a review, not a public hearing. The Board has the option of conducting a public hearing on SAGA’s proposed amendment to Dare County’s commercial zoning regulations, and Dare Planning Director Donna Creef has recommended that it do so.
Like the Southern Shores Planning Board, which Mr. Finelli also sits on as an at-large member, the Dare County Planning Board is an advisory body only. It will decide whether or not to recommend SAGA’s proposed zoning text amendment, as is or with changes, to the Dare County Board of Commissioners, which will make the ultimate decision.
In a June 4, 2019 county memorandum, Ms. Creef stated that the “entire zoning amendment process takes a few months to complete.”
The Planning Board will take up SAGA’s application this evening after it holds a public hearing on zoning amendments to improve year-round housing prospects, according to the Board’s agenda. There will be a public-comment period offered at the beginning of the meeting, before this hearing, at which time you may speak.
WHAT DOES SAGA WANT?
The Beacon has done a fast study of what’s at stake here and strongly urges others to do their homework, especially if they plan to speak at the meeting. We will provide links to useful information at the bottom of this post.
You’ll find the Dare County Zoning Ordinance in Appendix A to Chapter 155 of the Dare County Code of Ordinances. Within Article II of Chapter 155 is a section specific to the C-2H general commercial district, designated 22-25.1. Within this section, is a listing of all currently approved uses, both permitted and conditional, of property in the C-2H general commercial district.
The current permitted uses of property within the C-2H general commercial district are broad, encompassing all manner of offices, retail stores, service establishments, single-family dwellings, schools, public buildings, etc. Hotels and motels are permitted, but they are qualified by dimensional requirements spelled out in section 22-25.1(d), which includes limitations on the number of stories in a building, its height, and its lot coverage.
The current conditional uses permitted in the C-2H general commercial district number far fewer. They include automobile service stations, seafood markets, boat building and boat repair facilities, and fishing piers. (See sec. 22-25.1(c).)
What SAGA proposes to do is to create a new permitted conditional use, called “mixed use development,” which as it defines and describes this use in its zoning text amendment, would allow it to do precisely what it wants to do. The new conditional use it suggests the county commissioners enact into law may as well be titled “The SAGA Use.”
What SAGA’s rather detailed amendment essentially says is that, all existing dimensional restrictions in the Dare County Zoning Ordinance on motels and hotels do not apply to its hotel in its mixed-used development, nor do any other zoning regulations, such as those for off-street parking, that it does not like. SAGA is exempt from the county’s zoning regs.
This is stark corporate bullying by a developer whose message is, if you, Dare County and Hatteras Island, want our investment dollars, you have to cater to us. We don’t care about your Zoning Ordinance. It doesn’t apply to us. We make our own rules.
SAGA’S ‘MIXED USE’ DEVELOPMENT
The Beacon finds the concept of a “mixed use development” ludicrous.
As SAGA defines it, this type of development is “a planned development consisting of mixed uses including those listed as permitted and/or conditional in the underlying district.” SAGA is reportedly considering a restaurant, a pier, and retail shops, in addition to a high-rise hotel.
But a so-called “mixed use” development is already permitted by the Zoning Ordinance, simply by its component parts. There is no logic behind creating an entity known as a “development.” Uses already may be mixed.
Of course, SAGA is proposing this fictitious entity, a “mixed-use development,” so that it can make its own rules about the number of stories that its hotel can have, the height its hotel can be, the amount of lot coverage its “development” can consume, and all the other zoning exceptions it wants.
Under the current dimensional requirements, no structure can have more than three “habitable” floors or stories, measured from the bottom of the floor joist to the top of the top plate. (See sec. 22-25.1(d)(6).)
SAGA would like to build a six-story hotel with a rooftop “amenity” that would be open and not “habitable,” in the sense that it’s not enclosed living space, so that guests presumably can drink and party at all hours while they gaze out over the ocean.
Under the current zoning requirements, the height of buildings in the C-2H zoning district is limited to a maximum of 45 feet, unless an “elective elevation option” is exercised, in which case the maximum height can be 52 feet. (See sec. 22-25.1(d)(6).)
SAGA’s amendment would allow the developer to build its hotel with six stories, plus the seventh-story roof-top functional space, and up to a maximum of 78 feet, if only the six stories are built, and 88 feet, if the seventh story is added.
SAGA also seeks a 70-percent lot coverage for all uses within its development, which is 10 percent more than the current zoning regulations would allow. (See sec. 22-25.1(d)(5).)
We in Southern Shores have become accustomed to seeing NO! MINI-HOTELS signs around town, protesting SAGA’s “minihotels” on our oceanfront. Hatteras Island locals may wish to consider a variation on our theme:
An ordinance prepared in December 2015 to regulate “special events” in town came back before the Town Council at its meeting last week at the request of Councilman Gary McDonald. This time around, however, the Council’s discussion lacked the focus, direction, and purpose it had the first time.
The Council’s deliberation suffered, The Beacon believes, because the problem or problems that Mr. McDonald was seeking to address were not adequately defined. Until the Council precisely defines the problem, a solution is going to be difficult to find.
In addition, major changes in the Town’s zoning have occurred since late 2015. Town Attorney Ben Gallop drafted the special-event ordinance long before the Town Council’s enactment last month of a permitted-use distinction between residential dwellings that are “detached single-family dwellings” and those that are “vacation cottages.”
The Beacon asks: Why not build on this distinction and treat differently those special events that are held in vacation cottages and those held in single-family homes that are not vacation cottages?
When the Town Council first considered what is known as the “Special Event and Occupancy Limitation” ordinance, SAGA Construction Inc. was threatening to build a 16-bedroom wedding-destination venue on the oceanfront at 64 Ocean Blvd. The Council’s purpose was clear: Stop this from happening.
Six months earlier, the N.C. General Assembly had cleared the way for the first-ever “special-event house” to be built in Southern Shores by taking away the town’s power to limit the number of bedrooms in dwellings. Southern Shores’ seven-bedroom restriction, in effect since October 2001, became invalid.
Representing the overwhelming public opinion, a majority of the Town Council did not want SAGA to build its 16-bedroom venue. To stop it, the Council had to amend the Southern Shores Town Code: It had to make new law.
Town Attorney Gallop prepared four draft ordinances to prevent SAGA’s project, three of them zoning text amendments (ZTAs) and the fourth, the newly resurrected special-event ordinance, which was Mr. Gallop’s primary effort.
The special-event ordinance is a police-power ordinance, relating to public health, safety, and welfare, not to zoning. Because it is not a zoning measure, the Town Planning Board is not required to review it. The Town Council can move forward on its own, without the Board’s consideration, but it also can seek the Board’s review, if it chooses, and it did, unanimously, on Tuesday.
In its first go-round, the special-event ordinance dropped by the wayside Jan. 5, 2016 when the Town Council decided at a regular meeting to consider only the three ZTAs.
At a special meeting held Jan. 22, 2016, the Council passed into law, by a 3-2 vote, a ZTA that limited maximum house size to 6,000 square feet, thereby defeating SAGA’s plans—at least, the plans the Kill Devil Hills-based developer had then. (See The Beacon, 5/29/19 for background.)
Now, as we all know, SAGA has two oversized dwellings, which The Beacon has called “minihotels,” in construction at 98 and 134 Ocean Blvd. Litigation over these structures is ongoing, and SAGA has built them at its own risk. (See nominihotels.com.)
Despite that risk, SAGA’s investor groups have advertised these minihotels on Carolina Designs Realty’s website as being special-event houses that can accommodate up to 100 guests. (Rentals bookings have been taken for September.)
That the current online rental advertisements for “Aquadisiac” (98) and “Transcendence” (134) no longer use the words “special event” or quantify the number of guests that may party in them does not mean that these minihotels will not be used for pre-planned events.
If the purpose in bringing up Mr. Gallop’s 2015 special-event ordinance is to prevent SAGA’s investor groups, when and if they rent these two minihotels, from being used for large special events, with upwards of 50, 75, 100, or more people, then that is where the Council should start with its brainstorming about a regulatory scheme.
Last Tuesday, however, Mr. McDonald described the Town Council of January 2016—which also included Mayor Tom Bennett and Councilmen Christopher Nason, Fred Newberry, and Leo Holland—as being “more attuned to the size of houses than to events.” Mr. McDonald said only that he would like to look at regulating events “for the benefit of our public-safety folks,” chiefly the police and fire departments.
As an observer in December 2015 and January 2016, I would say that the Town Council was very attuned to the prospect of large special events being held on the oceanfront, but it was bowled over by the special-event ordinance that Mr. Gallop drafted. And it will be bowled over again, if it persists in using this 3 ½-year-old ordinance as its blueprint.
The Beacon asks: Why not ask Mr. Gallop to draft a new ordinance designed to address the perceived problem today?
The Town Attorney clearly stated last Tuesday that he would be happy to work on appropriate regulatory language if the Town Council would give him “direction,” starting with: “What is the problem you’re trying to solve?”
The Beacon beseeches the Town Council to be precise, purposeful, and forthcoming. Give Mr. Gallop the direction he requests and don’t waste any more time.
SPECIAL-EVENT REGULATORY LANGUAGE
You will find the text of the old ordinance in the minutes of the Dec. 18, 2015 meeting, on pp. 8-12:
The old ordinance regulates special events by creating a permitting process and imposing permitting requirements upon those who hold the events. The larger the event, the more permitting requirements are imposed. During last Tuesday’s meeting, the Town Council embraced the permitting concept, but pretty much decimated the ordinance’s provisions.
The old ordinance defines “special events” as “temporary public or private gatherings,” which include, but are not limited to, “pre-planned events, community uses, private parties, and traditional family events.” It imposes permitting requirements on property owners who hold special events that they expect will be attended by more than 25 people.
The Town Council quickly rejected this attendee threshold as being too low. All it took for them to jettison this number was for home builder and homeowner Matt Neal to point out in public comments how quickly a birthday-party guest list for one of his children exceeds 25 attendees.
Pursuant to the old 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.
Property owners hosting a small special event, for example, must file their permit applications five days before the event, whereas those hosting large special events must file 30 days ahead of the event.
The small-event application requires little more than the date, times, and location of the event and contact information for a person in charge. The host of a large event must permit advance inspections of the property and premises and furnish a detailed site plan, a traffic-management plan, and certifications pertaining to sufficient parking, wastewater facilities, and on-site first-aid supplies.
Last Tuesday, a majority of the Town Council gravitated toward imposing permitting requirements only on those property owners who hold events for 75 people or more.
The old 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,” which the ordinance defines as gatherings for “traditional events such as holiday parties and meals, birthday parties, funeral services, religious ceremonies and weddings for family members,” are not subject to the three-event limitation.
The Town Council ended up saying that it wanted to exempt all traditional family events from the permitting process.
It also seemed to want to dispense with the three-event limitation altogether. If it does that, what’s left of the old ordinance?
As Mr. Gallop neatly stated: The “essence” of the ordinance is “the bigger the party, the more information you have to provide to the police and fire department so that they can be prepared if there’s an emergency.”
Emergency responders need to know that traffic will not hinder their ingress and egress to the property and that they can readily contact a responsible person on the scene.
The Beacon believes that the real concern here is one that Mr. Gallop pointed out, but no Council member stated. The concern is that the Town regulate special events so as to ensure that they do not become the primary use of a dwelling, in particular, of a large “vacation cottage”—like the two SAGA minihotels.
This is a focused potential problem.
The Town Planning Board will take up the subject at its June 17 meeting. At the same time, pursuant to the Town Council’s directive, Mr. Gallop and Town Planning Director Wes Haskett will consider the ordinance anew and decide whether to bring it back to the Council at its July meeting.
NEXT UP: THE CUT-THROUGH TRAFFIC COMMITTEE
Before tackling the traffic, which noticeably increased on the cut-through route yesterday, and the citizens’ advisory committee that the Council approved last week, The Beacon asks you this question: What do arriving northbound vacationers actually gain by cutting through on South Dogwood Trail-to-East Dogwood Trail-to-Hickory Trail-to the streets in the dunes?
As long as there’s a bottleneck at Duck caused by its 25-mile-per-hour speed limit and impeding infrastructure, do the vacationers who cut through Southern Shores actually gain any time? If so, how much, do you think? Eventually, they all end up in gridlock.
If all summertime weekend cut-through drivers inevitably succumb to bumper-to-bumper backups, would they really be harmed if they were prevented from taking all or a portion of the cut-through route?
As things stand now, they unwittingly add to their frustrating predicament by boxing intersections on N.C. Hwy 12 when they finally rejoin the thoroughfare.
The Beacon opposed appropriating $1 million from the Town’s undesignated funds for the 1.3-mile South Dogwood Trail sidewalk, which a simple majority of the five-person Town Council approved Tuesday, and continues to oppose the Town Engineer’s design of the proposed five-foot-wide concrete sidewalk. (See The Beacon, 6/5/19.)
We believe all infrastructure improvements should be funded by the set-aside capital budget, which the Town Council should increase to accommodate long-range planning of projected capital needs. The Town’s undesignated fund balance, which is principally for emergency natural-disaster relief, should only be “raided,” as one resident called the $1 million appropriation at Tuesday’s Town Council meeting, for necessary expenses that all Town Council members approve.
Three people in this town should not be permitted to transfer hundreds of thousands of dollars—much less $1 million—from our emergency “insurance” fund for non-essential capital projects, no matter how popular they may be. If such a financial decision is to be made, unanimity should be required.
Town Manager Peter Rascoe said at Tuesday’s meeting that the Town would notify by U.S. mail all property owners on both sides of South Dogwood Trail about the proposed sidewalk construction, but not meet with any of them unless an owner requests a meeting.
In response to an inquiry from Councilman Fred Newberry, who has shown concern for uninformed homeowners, Mr. Rascoe said he believes the property-owner population on the street is too large for the customary pre-construction meeting with affected owners.
The Beacon not only opposes elements of the sidewalk design because of issues we have with its width, appearance, and pathway, we question its location.
Why isn’t this sidewalk projected to run along the west side of South Dogwood Trail, instead of the east side? Or, alternatively, why isn’t it running along some of the west side and some of the east side, with a single crosswalk connecting the sides?
WHAT ABOUT THE WEST SIDE?
According to a member of the Town’s Capital Infrastructure Improvements Planning Committee with whom The Beacon spoke, the committee never had before it the decision of whether to construct the sidewalk on the west side of the road or on both sides. The Town Engineer, they said, resolved the location.
Although the Town has a contract with Deel Engineering, PLLC, exclusively, and the name Anlauf Engineering, PLLC, is not mentioned in that contract, both Deel Engineering and Anlauf Engineering perform work for Southern Shores.
Joe Anlauf, who owns Anlauf Engineering of Kitty Hawk, describes Andy Deel of Deel Engineering on his company’s website as a “common subcontractor” or “project teammate.” See https://www.anlaufengineering.com/about.html.
Mr. Anlauf has overseen the South Dogwood Trail sidewalk project. The Beacon would like Mr. Anlauf to explain publicly to homeowners, or to release in writing for publication on the Town’s website, the comparative cost, engineering, and environmental-impact analysis he did on the two sides of the road to decide the sidewalk’s placement.
It is not enough to say that the South Dogwood Trail sidewalk should connect with the existing sidewalks in front of the cemetery and on East Dogwood Trail and, for that reason, should be on the east side. Crosswalks can be provided.
In fact, The Beacon believes a crosswalk could be easily and safely designated at Wild Swan Lane. The sidewalk could run along the west side south from the North-South-East Dogwood Trails intersection to Wild Swan Lane, and then from there, along the east side, where the land is flat and the right-of-way is already clear, up to the cemetery.
It does not take a land survey to see that most (clearly, not all) of the houses on the west side of the road are built farther back from the right-of-way than those on the east side. Whether or not the west-side lots are generally deeper than those across the street is a question that cannot be resolved by mere visual inspection from the road. But the terrain on the west side certainly does appear to be far less hilly than that on the east side—in toto, not in all areas.
The Beacon believes that far less destruction to the roadside environment and aesthetics would occur if the sidewalk were built on the west side, or, alternatively, if it were to be on the west side between the Dogwoods intersection and Wild Swan and on the east side between Wild Swan and the cemetery. Certainly, fewer yards would be adversely affected.
Of course, we may be wrong about this.
Mr. Anlauf should confirm or refute this observation with his environmental-impact assessment. Further, he should tell homeowners about the engineering challenges he would confront on both sides of the road.
This project is transformative of the signature road in Southern Shores. There is much desirable “old growth” on South Dogwood Trail, growth that developer David Stick sought conscientiously to preserve. In fact, dogwood trees are specifically protected by the Town Code. They cannot be removed from the right-of-way unless the Town Manager gives his or her written permission (TC sec. 28-4).
In the 31 years that have passed since this Town Code protection was enacted, both the Town Council and the Town Manager’s office have become more political. The Beacon believes that the fate of dogwood trees in the right-of-ways of the dogwood trails and elsewhere should be in the hands of a citizens committee.
The Town needs to do far more than it has done to this point to elucidate the nature and consequences of the South Dogwood Trail sidewalk project.
SIDEWALK PEDESTRIAN SAFETY
As for the pedestrians who would use the sidewalk, The Beacon believes they would be at far less risk of being struck by a vehicle driven by a distracted driver that veers on to the right-of-way if they were on the west side of the road than on the east side.
The incoming summertime cut-through traffic on South Dogwood Trail already tends to be faster and more intense than the outgoing cut-through traffic, which trickles off after the morning. After the proposed sidewalk is constructed, arriving northbound tourists will not have to slow down for pedestrians and other obstacles in the road, nor will they be on the alert for them. We can expect them to drive even faster.
The same can be said of the flow of northbound trucks and other commercial traffic that traverses the cut-through route during week-day mornings. I see these “rush-hour” vehicles streaming through every morning on East Dogwood Trail and Hickory Trail when I walk my dog. Homeowners on South Dogwood Trail must see them, too.
The Beacon will further investigate the west-versus-east-side road analysis. Please let us know what you think, especially if you live on South Dogwood Trail. Please send your comments to email@example.com.
OVERLOOKED TOWER: The Beacon should have mentioned in Wednesday’s post that the Town Council unanimously approved the 20-foot extension of the AT&T cell tower at 148A Ocean Blvd., also known as Triangle Park, bringing its height to 150 feet.
The extension was requested by American Tower LLC and Verizon Wireless for the express purpose of improving Verizon Wireless’s coverage and capacity in the area. Verizon Wireless is not now on the tower.
The Southern Shores Civic Assn., which owns Triangle Park and the adjacent parking lot, receives rent from American Tower for the cell tower. In November 2013, the Town permitted the tower to be a conditional use of the SSCA property, which is in the RS-1 residential district.
According to American Tower attorney David Allen, who testified Tuesday in a public hearing about the corporation’s request to amend its conditional use permit to allow for the extension, the construction is expected to occur from October through May 2020. There will be “some brief outages” of cell-phone coverage, he said, but they will be for hours, not days or weeks.
Mr. Allen also confirmed that there will be no lighting added to the cell tower.
THE TOWN COUNCIL MUST WORK THE DOG DAYS: Councilman Christopher Nason made a motion Tuesday to cancel the Town Council’s August meeting. His motion was defeated 3-2, with only Mr. Conners joining Mr. Nason in seeking a summer break.
In opposing Mr. Nason’s motion, Councilman Gary McDonald spoke of the “duty” the Town Council has to property owners to conduct the Town’s business regularly, and Councilman Newberry pointed out that the Council’s meetings are an opportunity for the public to speak.
AND FINALLY . . . JUNIPER TO CLOSE TEMPORARILY: Starting around Monday, June 17, Juniper Trail will be closed to through traffic in the area of 32 Juniper Trail in order for street repairs to occur. The road closure is expected to last about a week.
UPCOMING: The Beacon will look next at the special events ordinance discussed by the Town Council Tuesday and at the committee it approved to study ways to restrict and/or reduce cut-through traffic in town.
It is unfortunate that traffic reduction did not factor into the Town’s planning of the South Dogwood Trail sidewalk. It is not too late for planning on traffic reduction and sidewalk construction to proceed hand-in-glove.