7/18/19: TOWN COUNCIL ELECTION: NEAL FILES, MCDONALD WITHDRAWS; MORE ON NONCONFORMING LOTS, A SUBJECT ABOUT WHICH NO ONE SEEMS INFORMED

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Builder Chris Smith told the Town Council July 9 that he would like to build a “beautiful” five-bedroom house on the nonconforming 50-foot-wide lot at 62 Ocean Blvd. (pictured above earlier this year). Mr. Smith represented the lot’s total area as being 23,000 square feet, or 50 feet-by-460 feet. In fact, the site plan prepared last year by Styons Surveying Services shows the land west of the first line of stable and natural vegetation (FLSNV) as being 17,063 square feet. This squares with dimensions in the site plan submitted in 2016 by Councilman Nason’s company, Beacon Architecture & Design, for 62 Ocean Blvd., whose total area was calculated as 34,076 square feet, or 100-feet-by-340-feet. According to the N.C. CAMA, oceanfront lot depth is measured to the FLSNV, not to the mean high water mark or any other mark east of the FLSNV.

Matt Neal, a Southern Shores native who owns Neal Contracting with his wife Rachel, filed yesterday as a candidate in November’s Town Council election, a day after sitting Councilman Gary McDonald withdrew his reelection bid. Mr. McDonald declined to comment on his decision.

Mr. Neal’s opponents for the three available positions on the Town Council so far are Councilman Fred Newberry, Planning Board Chairperson Elizabeth Morey, and former Councilman Leo Holland. The filing deadline for all candidates is noon tomorrow.

Councilman Christopher Nason, whose four-year term expires in November along with those of Mr. Newberry’s and Mr. McDonald’s, has announced that he will not seek reelection. Mayor Tom Bennett and Councilman Jim Conners were elected to four-year terms in 2017.

Mr. Neal currently serves as president of the Outer Banks Home Builders Assn.

NOTE ON COMMENTS and NONCONFORMING LOTS: WHO’S ON FIRST?

After The Beacon published yesterday’s post, we received an uninformed and rude comment from a reader that we elected not to publish.

The Beacon’s policy is not to further misinformation by publishing reader comments that either encourage or state misinformation—especially when they’re personally antagonistic. We consider sarcastic insults personally antagonistic.

The comment concerned the nonconforming lots imbroglio. The reader was under the mistaken impression that The Beacon could go to the Dare County Register of Deeds office in Manteo—which we have done on many occasions to research specific deeds that are not available online—and easily uncover the identification of all nonconforming lots in Southern Shores. Not in his or our wildest dreams.

But the fact is, we don’t have to take on that impossible task because the Southern Shores Planning Department, in cooperation with the Register of Deeds office, has already done it. Planning Director/Deputy Town Manager Wes Haskett presented the results of this search, whose preparation consumed more than two months, at the Planning Board’s April 23 meeting.

You may access this data, which Mr. Haskett formatted with assistance from the Dare County Tax Dept. and the Tax Mapping Dept. and which The Beacon will summarize below, here: https://www.southernshores-nc.gov/southern-shores-planning-board-meet-april-15-2019/.

(The minutes of the Planning Board’s April 23 meeting are also informative regarding its ongoing discussion and decision-making about nonconforming lots. As of this morning, no minutes of any Planning Board meetings that have occurred since last September had been posted on the Town’s website , but Mr. Haskett informed The Beacon that all of the missing minutes would be posted “as soon as possible.”)

As The Beacon reported 2/6/19, the Town Council unanimously approved a motion made by Councilman Gary McDonald at its Feb. 5 meeting to direct the Planning Board and Town staff to comprehensively identify and equitably assess all vacant nonconforming lots in town, not just those on the oceanfront.

Mr. McDonald’s motion was made after Councilman Conners moved to approve Zoning Text Amendment 18-09PB, which was the Planning Board’s first attempt to define and exempt from the new nonconforming lots ordinance (Town Code sec. 36-132) all deserving “outliers.” No one seconded Mr. Conners’s motion.

Mr. McDonald asked the Planning Board to “look” at all of the vacant nonconforming lots in town and “come back with something [a revised ZTA] that works.”

Despite this direction by a unanimous Council, Mr. Conners tried again at the March 5 meeting to obtain approval of ZTA 18-09PB, which was a far less comprehensive version of the “outlier” amendment, ZTA 18-09PB01, that the Town Council unanimously tabled on July 9. (See The Beacon, 7/10/19, 7/17/19.)

As The Beacon previously reported, Mr. Conners’s motion to approve ZTA 18-09PB failed 2-2, with Mayor Bennett voting with Mr. Conners, and Councilmen Newberry and McDonald opposing it.

Mr. Nason did not vote because he had a financial interest in the outcome of the vote and was recused.

An architect, Mr. Nason has designed the house that the property owners of the 50-foot-wide lot at 64 Ocean Blvd. would like to build there. He also prepared the site plan and designed the house that the same owners built in 2016 at the adjacent 62 Ocean Blvd. (The Beacon has had reason to focus on the 50-foot-wide property in previous reports. See photo above.)

Mr. Nason’s business relationship with the property owners of 64 Ocean Blvd., a lot that was split off from a 137 ½-foot-wide vacant parcel previously owned and sold to them by a SAGA-owned limited liability corporation, has been a political wrench in the “works” ever since the Town Council enacted the new ordinance last September.

Members of both the Town Council and the Town Planning Board have identified this nonconforming oceanfront lot as deserving of an exception from the new Code sec. 36-132, which prevents the property owners from building on it. The Beacon does not consider it deserving and has said so.

Mr. Nason cast the only dissenting vote to ZTA 18-07, the amendment that created the new nonconforming lots ordinance, without disclosing either his relationship with these owners or the financial interest he had in the outcome of the vote.

He also participated in a closed session that the Town Council had on the nonconforming lots problem July 10, 2018, which resulted in the Council tabling a second reading of ZTA 18-07, which it ultimately approved, 4-1, on Sept. 5, 2018.

After enacting the new ordinance, the Town Council directed the Planning Board to continue working on it (“tweaking”) to ensure that individual property owners are not unduly harmed. Then-Board chairperson, Glenn Wyder, brought this matter up already at the Planning Board’s Sept. 17, 2018 meeting. See https://www.southernshores-nc.gov/wp-content/uploads/2018/11/9-17-18-FINAL-PB-Meeting-Minutes.pdf.

The Planning Board has been struggling with this Town Council assignment ever since.

846 NONCONFORMING LOTS IN TOWN

In the research with Dare County that the Planning Board undertook at the Council’s direction, the Town staff looked at all nonconforming lots in town, not just vacant lots.

Mr. Haskett reported April 23 that there are 3,037 total lots in Southern Shores, 846 of which—or about 28 percent—are less than 20,000 square feet in size. He also reported that, of the 3,037 lots, 241 of them, or about 8 percent, are 50-foot-wide lots that are part of parcels consisting of two or more lots. According to The Beacon’s analysis, the data show that of these 241 lots, 28 of them are vacant.

The 28 vacant 50-foot-wide lots represent less than 1 percent of the total number of lots in Southern Shores. Not surprisingly, they are in the map of Southern Shores that was first developed: the oceanfront-beach zone from 0 Ocean Blvd. north to East Dogwood Trail and the soundfront on North Dogwood Trail.

Mr. Haskett informed the Town Council about this data compilation at its May 7 meeting. The Council, therefore, had ACTUAL notice of how many nonconforming lots exist in town, and where they are, for at least two months before it voted to table the Planning Board’s latest ZTA attempt, 18-09PB01. It did nothing publicly with this data.

It should come as no surprise to the Town Council that there are property owners who are aggrieved by the new Town Code sec. 36-132 of whom they were unaware in September. It did not come as a surprise to The Beacon, which has not taken a position on the equities of various property scenarios other than those the Planning Board has identified in the zoning text amendments it has recommended.

For the record, The Beacon does not support the practice of identifying exceptions to rules as soon as the rules are enacted. It is far wiser to invest time in ascertaining the fallout from rulemaking before the rule is made.

But no one associated with The Beacon serves as the Town Attorney, the Town Manager, the Town Planning Director, the Mayor, a member of the Planning Board or the Town Council, or anyone else who might have had influence over the drafting of ZTA 18-07.

Indeed, I have a sibling who owns two vacant nonconforming lots on Skyline Road, which, if she sought to develop or sell one of them would have to be combined under the new ordinance.

The irony is that our father bought this property as a single 30,000-square-foot parcel in the 1980s, and about 20 years later, Dare County informed my sibling, who became its owner in 1991, during a reassessment that it would be treated and taxed as two (nonconforming) 15,000-square-foot parcels. (I have not had a chance to research the deed history.)

The Beacon’s position has consistently been to oppose the development of 50-foot-wide lots, regardless of where they are located or how they were created. We believe that such development is detrimental to the town’s character, identity, and quality of life, especially when it occurs on or near the oceanfront.

Besides this opposition, we have sought only to analyze the proposed ordinances that the Town Attorney has drafted and the Planning Board has considered and approved. Had I spoken on the issue as a private individual, not as The Beacon, at the Council’s July 9 meeting, I would have endorsed Town Council candidate Matt Neal’s approach to the issue. And I would have urged the Town Council, whose leadership has been mired in politics, to step up.

WHERE TO FROM HERE?

ZTA 18-07, which replaced Code sec. 36-132, stopped the unfortunate trend by oceanfront and oceanside property owners of demolishing dwellings on 100-foot-wide parcels and selling the vacant land as two 50-foot-wide building lots, thus increasing the density of development.

It provided a stopgap.

The Planning Board, under longtime Chairperson Sam Williams, enabled this 100-to-50-foot trend over a period of several years by granting side-setback variances to owners of the resulting nonconforming lots. In fairness, the Town offered no legal guidance to the Planning Board, sitting as the Board of Adjustment, to deny the requested variances.

Throughout the current Planning Board’s months-long deliberation, Matt Neal has publicly argued at meetings that, because of how the town was platted, there can be no fair “one-size-fits-all” rule on nonconformities. (The 100-foot minimum width for lots in the RS-1 single-family residential district is set forth in Town Code sec. 36-202, which was originally enacted in 1988.)

Southern Shores, Mr. Neal has said, is “a town that’s full of nonconformities.” None of the lots in Seacrest Village,  he has pointed out, is 100 feet wide.

The vacant 90-foot-wide lot that Craig and Mary Ann Hurd bought on Sea Oats Trail in 1998 was platted at that width. This nonconforming lot is adjacent to the house that they bought in 1997.

Mr. Neal has brought maps of the town with him to Planning Board meetings and encouraged members to take a more holistic approach to the nonconformity issue. But up until now, the Board has declined to do so. It seems to have been working under the assumption that because the Town Council directed it to refine the new ordinance by identifying “outliers” and drafting/approving a zoning amendment to protect them, it was limited by that directive.

The Planning Board has authority under the Town Code (sec. 24-27) to do more, if it so chooses.

At its June meeting, Planning Board member David Neal, Matt’s builder-father, expressed an interest in starting over at “square one.” He previously has lamented that the Board has strayed far afield from the initial objective of the new ordinance. Nonetheless, Mr. Neal voted with his colleagues in favor of approving ZTA 19-01PB01.

So, The Beacon asks: Where does the buck stop?

We believe the answer is obvious—which is why we wrote yesterday’s column as we did. A five-month postponement will not change the obvious.

Ann G. Sjoerdsma, July 18, 2019

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