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:
Click to access ZTA-18-09-PB01-Nonconforming-Lots.pdf
The TCA on special events is available 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.
Ann G. Sjoerdsma, 6/16/19