8/21/19: PLANNING BOARD DELAYS ACTION ON SPECIAL-EVENTS POLICY AFTER OBAR LOBBYIST, REAL ESTATE AGENT RAISE DUBIOUS LEGAL CONCERNS; ZTA ON BUILDING HEIGHT AND FILL IS IN THE WORKS

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Planning Board Vice-Chairperson Andy Ward has his eye on SAGA’s nearly 6,000-square-foot, 12-bedroom/12-bathroom “Aquadisiac,” at 98 Ocean Blvd., which has been rented since early August.

The wheels of the Town Planning Board grind slowly and sometimes they veer totally off-track.

That is what happened Monday evening when all Board members gave credence to legal obstacles being touted by Porter Graham, lobbyist for the Outer Banks Assn. of Realtors (OBAR), and Chris Toolan, a realtor with Century 21 Nachman Realty in Kitty Hawk, and unanimously voted to postpone any action on a special-events policy out of concern that it might be illegal to have one.

The Planning Board’s well-intentioned “open forum” Monday on possible special-event regulation in Southern Shores devolved into the Board’s unquestioning deference to the OBAR. The only “stakeholders” from the community who spoke were Mr. Graham and Mr. Toolan, who both gave their addresses as Kill Devil Hills, and I.

Rather than attempt to find consensus on the matter of formulating a policy on weddings and other special events, the Board veered off-track into thinking that such a policy might now be illegal. Mr. Graham and Mr. Toolan raised this preposterous idea, and they prevailed over more knowledgeable “heads,” including my own. (You may consider this an editorial.) The Board put off any further discussion on a special-events policy for another month, in order to give Town Attorney Ben Gallop an opportunity to weigh in.

I was very disappointed by the Board’s action, or, more precisely, its lack of action.

Mr. Graham and Mr. Toolan misrepresented the effect of a new amendment to the N.C. Vacation Rental Act, arguing that it could render a town policy on registering special events illegal. Both suggested that the town might be sued if it were to proceed.

[8/22/19, PLEASE NOTE: I previously had written here that Mr. Graham raised the prospect of people going to jail. He has contacted me by email and advised that he did not make such an assertion. I thought he had, but I cannot confirm my notes without a videotape to consult, and Planning Board meetings are not videotaped. I will take Mr. Graham at his word. Apparently, it was Mr. Toolan who made the assertion.]

I could say more about the indefensible legal position that Mr. Graham and Mr. Toolan advanced, but I am going to let Mr. Gallop clean up the mess.

For those who are interested, here are the legal citations you need to read:

1) Session Law 2019-73, formerly known as Senate Bill 483, which amends the N.C. Vacation Rental Act by adding one critical sentence: https://www.ncleg.gov/Sessions/2019/Bills/Senate/PDF/S483v3.pdf.

This amendment passed the N.C. House of Representatives and N.C. Senate unanimously, and Governor Roy Cooper signed it into law July 1.

2) N.C. General Statute section 160A-424, which pertains to cities and towns and now, because of SL 2019-73, pertains to vacation rental properties, as well as other rentals:

https://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_160A/GS_160A-424.pdf.

N.C.G.S. sec. 160A-424 is titled “periodic inspections for hazardous or unlawful conditions.”

I would like to suggest to Planning Board members that in the future they skeptically and critically evaluate any and all legal arguments made by Mr. Graham and not passively defer to him. If the Outer Banks Assn. of Realtors wants to talk law, it should send an attorney to Southern Shores Planning Board and Town Council meetings.

Mr. Graham played lawyer Monday night, reading aloud sections of N.C. general statutes, that he took out of context and does not understand and, I doubt, the Planning Board understood either. In so doing, he succeeded in scaring the Board into doing nothing. That’s not the way town government should work.

Board Vice Chairperson Andy Ward heavily promoted the adoption of a town special-events policy at the Monday meeting. Calling himself a “lone ranger” on the Board, he said he would prefer an ordinance, but would settle for crafting a policy that is “framed for achieving certain goals,” such as minimizing the adverse effects of large social gatherings on neighbors, ensuring that traffic jams do not occur, and the like.

Mr. Ward did not get much support from the four other Board members who serve with him. Board members David Neal and Donald Sowder said they were not inclined to go forward now with such a policy, and neither Chairperson Elizabeth Morey nor member Ed Lawler clearly stated her/his views.

I strongly urge Mr. Ward to write a policy and to present it to the Planning Board at its September meeting for discussion. He does not need the Town Attorney or the Town Planning Director to draft it for him. Duck’s wedding-registration policy provides an excellent prototype. If the other Board members reject it, fine. That is their prerogative. You have to start somewhere.

(Please see The Beacon’s 8/18/19 blog for background facts and links to materials.)

CHANGING BUILDING HEIGHT AND FILL REQUIREMENTS  

The Planning Board was much more at ease in considering new language that it has drafted to alter the Town Code sections pertaining to building height and fill requirements.

I quoted this language in The Beacon’s 8/18/19 blog and will not repeat it here. The Board voted unanimously to incorporate the new language into a zoning text amendment, which likely will be subject to public hearing at the Board’s Oct. 21 meeting.

John Finelli, who represents Martin’s Point on the Planning Board, expressed an interest in discussing other fill issues that were not addressed in the new Code language, such as the type of material that a builder may use for fill and the construction of retaining walls that create a “doming effect.” Mr. Finelli’s concerns, which he documented after the Board’s July meeting, will be discussed at the Board’s Sept. 16 meeting.

See https://www.southernshores-nc.gov/wp-content/uploads/2019/08/Height-and-Fill_Finelli-comments.pdf.

As soon as the new ZTA on height and fill is prepared and posted online, The Beacon will publish it.

In comments at the end of Monday’s meeting, Mr. Sowder brought up the problem of blue-green algae in Southern Shores ponds, and Mr. Finelli warned of alligator weed in ponds and ditches. Mr. Sowder, who was appointed in July to a three-year term on the Planning Board by the Town Council, lives on the Mallard Cove pond.

ON A PERSONAL NOTE . . . A BIG THANK YOU TO DARE COUNTY EMS

I would like to extend, again, an enthusiastic and heartfelt thank you to all members of the Dare County Emergency Medical Services who responded to a 911 call placed by one of my mother’s caregivers Monday night while I was in the Planning Board meeting. Everyone who assisted my 95-year-old Mom after she fell on the front deck at her home was outstanding: kind, caring, conscientious, professional, efficient, respectful, courteous, and the admiring adjectives could go on and on.

Not only did Dare County EMS assist with caring for Mom after her fall and with transporting her to the Outer Banks Hospital Emergency Department, these wonderful people were there, at our request, when I returned home with Mom hours later, to transport her safely into her home.

I am very grateful to everyone and happy to report that my mother, a tough survivor who tried to convince paramedics not to take her to the hospital, is doing well.

(As a patient advocate and caregiver for many years now, I have had many experiences with Dare County EMS, and they have all been outstanding.)

Ironically, I decided on Monday night to turn off my cell phone during the Planning Board meeting. I have been known to leave it on at town meetings just in case a frantic caregiver needs to reach me. Clearly, I must figure out how to set it on vibrate, so I can avoid the embarrassing ringing that I’ve previously experienced and still be readily available in an emergency.

Ann G. Sjoerdsma, 8/21/19

 

 

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