9/25/19: UPDATING THE LAND-USE PLAN (LUP): A 3-PERSON COUNCIL MAJORITY DERAILED THE PROCESS NEARLY TWO YEARS AGO; THAT CANNOT HAPPEN AGAIN: LUP IS TOWN’S BLUEPRINT FOR GROWTH, AS SUPPORTED BY THE PEOPLE

 

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These new houses, built on 50-foot-wide lots at 155 Ocean Blvd., which originally was developed as a 100-foot-wide parcel with a single house, are an example of the type of housing that the community opposed in the Town’s 2008 Land Use Plan. The house on the left is now for sale by the real-estate agent and former Planning Board vice chairperson who owns it for $1.2 million. The house on the right is owned by a local builder.

On Jan. 9, 2018, after nearly a year of effort by the Town Council, the Town Manager, and the Town Planning Director—effort that included a Councilman’s request for funds, budgeting and approval by the full Council of funds in fiscal year 2017-18; two requests for proposals; and a staff review and in-person presentation of proposals submitted by two consultants—newly elected Town Councilman Jim Conners made a motion “to take no action to update” the Town’s CAMA-approved land-use plan, which dates to 2008.

At the Town Council’s planning session last week, during a discussion on updating this same land-use plan (LUP)—long a concern of Councilman Fred Newberry’s—Councilman Conners again questioned whether “we even need to do this [update].”

“I’m wondering what the value of it is to the individual towns,” Mr. Conners said, asking Wes Haskett, who is now serving as both town manager and planning director, whether other Dare County towns are engaging in updates.

Mr. Haskett replied that Duck and Kill Devil Hills are updating their land-use plans, as is Dare County, which is required by CAMA to do so.

The Beacon strongly believes that a three-person majority on the Council should not be allowed to defeat a land-use plan update again. The action initiated by Mr. Conners nearly two years ago was a mistake.

CAMA is an acronym for the Coastal Area Management Act, a North Carolina statute (law) passed by the State legislature in 1974. (See the CAMA primer below for details.)

At the Jan. 9, 2018 meeting, in a matter of what The Beacon surmises were mere minutes, Mr. Conners, who had been in office for just a month, undercut the work of numerous hours spent by the Town staff and the Town Council since February 2017 in laying the groundwork for an update of the Town’s LUP.

We say “surmises” because the videotape of the Jan. 9, 2018 Town Council meeting ends abruptly after just an hour and five minutes “due to technical difficulties.” More than 50 percent of the content of the meeting, including the Council’s discussion about updating the land-use plan, was not recorded.

“Take no action” is how the minutes of the Jan. 9, 2018 describe Mr. Conners’s motion.

The minutes also record that Mr. Conners asked Planning Director Haskett, “if Southern Shores is required to update its Land Use Plan.”

The Town Council had discussed an update of the latest Town land-use plan, which is based on data collected and compiled between 2005 and 2007, over multiple Council meetings in 2017, including in September, October, and December.

Nonetheless, Mr. Conners’s motion passed 3-2, with the support of Mayor Tom Bennett and Councilman Christopher Nason, both of whom had previously supported the land-use plan update and voted unanimously with Council members Newberry, Gary McDonald, and Leo Holland to set aside $60,000 in the FY 2017-18 Town budget for it.

Mr. Conners was elected to Mr. Holland’s seat in November 2017 and sworn in a month later.

Despite numerous public opportunities to do so, neither the Mayor nor Mr. Nason had previously opposed an update. Unfortunately, there is no voice record of what they said in executing their sudden about-face.

JAN. 9, 2018 COUNCIL MEETING

According to the sketchy minutes of the Jan. 9, 2018 meeting, the Mayor asked “Council what they thought to accomplish with the Land Use Plan update, as the Town is already regulated by CAMA and has a Land Use Plan in place.”

You may access the Southern Shores LUP here: https://www.southernshores-nc.gov/wp-content/uploads/2012/07/8-30-12CertifiedAdoptedLandUsePlan.pdf. It was not State-certified until 2012 because of delay “factors,” which we explain below.

Inasmuch as the current LUP is based on opinions and data circa 2007, when the Town was a very different place than it is now, the answer to “Why update?” should have been evident to the Mayor. Someone should have (and might have) asked the Mayor: “Why not?”

The Beacon can think immediately of numerous “update” issues that have arisen since the Town’s 2008 LUP was researched and written, including: beach nourishment; special-event houses (mini-hotels); houses with more than seven bedrooms (7-BR was the limit before June 2015); accessory structures; Airbnb rentals; development on nonconforming lots; increased clear-cutting of forested lots; increased seasonal and year-round cut-through traffic in the residential areas; installation of a cell tower . . . etc., etc.

All of these issues were evident in January 2018, when the three-person Council majority derailed the LUP update process.

The Mayor’s purported suggestion, according to the minutes, that the Town wait until “the Town Code update is complete” is laughable, considering that the Code revision, which was begun in 2015, is still incomplete. Also, the Town Code is simply one evidentiary source to consider in doing an update. Further, as new Councilman Conners pointed out at the meeting before technical difficulties interrupted, the Code update was not intended to be substantive.

Planning Director Haskett, who is now interim town manager, requested the LUP update in FY 2017-18. In response to his RFPs, he received two proposals from planning consultants, one based in Kannapolis and the other in Wilmington, that came in at about half the budgeted amount.

The Town may not have been required by the State to update its LUP, but it was required to submit a CAMA Land-Use Plan “Implementation Status Report” in 2018. The N.C. Coastal Resources Commission (CRC), which oversees CAMA, now requires land-use plan implementation reports every two years.

On Sept. 7, 2018, former Town Manager Peter Rascoe submitted an “Implementation Status Report,” which you may access here:

https://files.nc.gov/ncdeq/Coastal+Management/documents/PDF/Land+Use+Plans/Implementation+reports/SouthernShoresLUPImplementReport_090718.pdf

In his report, Mr. Rascoe wrote: “There have been no unforeseen land use issues that have arisen since certification of the CAMA land use plan,” which occurred in 2012.

Really? The Beacon certainly did not expect, among other surprises, 1) the N.C. State legislature’s invalidation in 2015 of the Town’s restriction on the number of bedrooms in a single-family dwelling; 2)  SAGA Realty and Construction’s attempt in 2015-16 to build a 16-bedroom wedding-destination venue on the Southern Shores oceanfront; 3) the Town Council’s fundamental rewrite in 2016 of the definition of a single-family dwelling, 4) the pre-September 2018 trend toward selling off 100-foot-wide parcels as 50-foot-wide lots that could be developed separately. (Etc., etc.)

SEPT. 17, 2019 COUNCIL MEETING

 At the Council’s planning session last week, Mr. Haskett gave a succinct explanation of the “value” of a land-use plan and its update, in response to Mr. Conners’s skepticism.

“It’s a tool for making decisions for zoning and other things,” he said. It describes the Town’s “policies” on a myriad of concerns, which can change over time.

The LUP is “a guide for how the town wants to move forward or sees how to move forward,” Mr. Haskett stated. “It’s not required, but it may be necessary occasionally.”

As they have for at least three years, Councilmen Newberry and McDonald strongly advocated last week for an update.

Said Mr. Newberry: It “provides guidance to everything that we do in Town.” Mr. McDonald referred to the public input that informs the LUP.

Councilman Nason asked how the 2020 U.S. Census “interacts” with the LUP, suggesting a lack of familiarity with the content in this vital document.

“If we need that information, we should wait,” he said, clearly unaware that U.S. Census data feature only in one section of a land-use plan, which is titled “Population, Housing, and Economy Analysis.”

Mr. Conners was unaware that grant money is available for the Town’s preparation and drafting of the LUP, even though the second page of the current LUP cites the financial support that the Town received. Mr. Haskett told him that State grant money is available “every spring.”

Mr. Conners also asked: “When does our current land-use plan expire?”

It doesn’t. It is updated–four times since 1980.

The Beacon wonders, if Town Council members do not know what it is in the Town’s LUP, how can they ever conduct business? They are elected to implement the goals and policies in the LUP, not impose their own. Certainly, they cannot cast informed and intelligent votes on whether or not to update it if they have not read it first.

A PRIMER: CAMA AND THE STATE PLAYERS

Briefly stated, the Coastal Area Management Act, or CAMA, establishes a “cooperative program of coastal area management” between the State and local governments in a 20-coastal county area for the primary purpose of preserving coastal lands and waters.

Although people in Southern Shores, including Town Council members, tend to refer to CAMA as if it were an agency, it is not. It is a statute: Specifically, it is Article 7 of Chapter 113A of the N.C. General Statutes (NCGS). You will find all of the statutory provisions of CAMA at NCGS sec. 113A-100 through sec. 113A-134.9.

A key provision of CAMA is its requirement that each of the 20 coastal counties develop a land-use plan consisting of “statements of objectives, policies, and standards to be followed in public and private use of land within the county,” supplemented by certain maps. If a town does not develop its own land-use plan, it is subject to the plan of the county in which it is located.

Although coastal towns are not required by CAMA to have land-use plans, The Town of Southern Shores has had a LUP since 1980—one year after its incorporation. It subsequently updated its plan in 1985, 1992, 1997, and 2008 (2012).

The Beacon recalls the goal set by previous Town Councils of updating the land-use plan every five years. Each one of the first four plans is described in the current LUP as a “sketch plan,” which is a plan for a municipality that is completely platted, knows the upper limits of growth, and is not experiencing rapid growth or change.” (LUP, p. 7.)

According to CAMA’s sec. 113A-110(a), every land-use plan must give “special attention to the protection and appropriate development of areas of environmental concern,” which are designated in sec. 113A-113(b) and further defined in rules established by the N.C. Coastal Resources Commission.

As stated above, the Coastal Resources Commission is CAMA’s supervising State administrative agency. In that capacity, it has promulgated guidelines and rules pertaining to land-use planning and plans, which are codified in the State agency “rulebook,” known as the N.C. Administrative Code (NCAC).

The CRC’s guidelines, which would be controlling authority for any consultant doing an update, provide a common format for each land-use plan and a set of issues to be considered during the planning process. (See 15A NCAC subchapter 7B.)

It may be difficult for people unfamiliar with administrative law to understand that the requirements of CAMA extend beyond just the statutory act that the N.C. State legislature passed, but they do. They also consist of policies, procedures, and rules created by the CRC to implement the statute.

At the risk of complicating legal matters further, we advise that the N.C. Division of Coastal Management (DCM), which is a division of the State Dept. of Environmental Quality, serves as staff to the CRC. The DCM has employees in eight offices in the N.C. coastal area—such as field representatives who investigate CAMA permit applications—whereas the CRC consists of 13 individuals who are appointed by the Governor, the Speaker of the House, and the Senate President Pro Tempore.

Currently, Nags Head Commissioner/former Nags Head Mayor Renee Cahoon, an appointee of Governor Roy Cooper, chairs the CRC. Her term expires in 2022.

Bottom line: The CRC makes the rules to effectuate CAMA, and the DCM enforces them. Most important among its duties, the DCM issues CAMA permits to enable development that it has approved for a coastal “area of environmental concern.” The DCM also administers a Planning and Management Grants Program, which a Town Council member can learn about by just clicking a mouse.

AREAS OF ENVIRONMENTAL CONCERN AND ‘MINI-HOTELS’

The CRC has established four categories of areas of environmental concern. They are:

1)      The estuarine and ocean system

2)      The ocean hazard system

3)      Public water supplies

4)      Natural and cultural resources areas

The first AEC includes the waters of the Atlantic Ocean and the Currituck Sound and the shorelines of these water bodies. The “ocean hazard system” is comprised of ocean beaches, frontal dunes, inlet lands, and other areas in which conditions indicate a substantial possibility of excessive erosion or flood damage from storms and hurricanes.

CAMA mandates that all CAMA-required development permits be consistent with local land-use plans. A permit can be denied by the State if it is “inconsistent” with local land-use plans. (See NCGS sec. 113A-120(8).)

The two Southern Shores property owner-petitioners who filed appeals last November of the State’s granting of CAMA development permits to SAGA Realty and Construction for its “mini-hotels” at 98 Ocean Blvd. and 134 Ocean Blvd., contend that the structures SAGA proposed to build were “inconsistent” with the Town’s land-use plan.

So, you can see immediately what “value” the LUP has.

(One of the petitioners also filed an appeal with the Town of the zoning permit it issued for 134 Ocean Blvd. She has appealed the Town Board of Adjustment’s 3-2 decision affirming the permit to the Dare County Superior Court.)

Although an administrative law judge ruled against the petitioners in a preliminary round of the CAMA-appeal litigation, in a decision that, the petitioners believe, relied erroneously on the Town’s zoning law, rather than CAMA, they have appealed that adverse result to the Wake County Superior Court, where it is pending.

The Town’s land-use plan has considerable influence over what can be built on the Southern Shores oceanfront, which is an important area of environmental concern.

THE CURRENT SOUTHERN SHORES LAND-USE PLAN (2008)

A first draft of the current town land-use plan, which was certified by the N.C. Coastal Resources Commission on Aug. 30, 2012, was actually submitted to the N.C. Division of Coastal Management in August 2008. The data upon which the plan is based, therefore, were actually compiled and calculated 12 to 15 years ago.

At last Tuesday’s meeting, Mayor Bennett recalled that update efforts for this plan started in 2005.

Indeed, a note on the first page of the 2008 LUP states that the Division of Coastal Management submitted comments about its draft to the Town in December 2008, but . . .

“Due to a variety of factors,” the note says, “there has been a substantial delay in the Town’s response to these comments. Despite this delay, this Land Use Plan update should be considered a 2008 update. The data in this Plan reflects the circumstances at the time of the initial submission.”

Thus, by the time the CRC certified the Town’s land-use plan, it was nearly time for an update!

The Coastal Resources Commission is limited by law to determining whether land-use plans have been properly prepared. It cannot assist a municipality in the actual plan preparation, but it can, and has, set forth the required elements of every CAMA-approved land-use plan.

Remember the agency rulebook? In Rule 15A NCAC 07B.0702, the Commission lists the required elements of a land-use plan, which are to appear in this order:

(a)    Organization of the Plan

(b)   Community Concerns and Aspirations

(c)    Existing and Emerging Conditions

(d)   Future Land Use

(e)    Tools for Managing Development

The 2020 U.S. Census data that seemed to hang up Councilmen Conners and Nason last week are part of a multi-factorial analysis of “Existing and Emerging Conditions.” Also within this element are analyses of land use and development; community facilities; natural systems, and more.

THE VOICE OF THE PEOPLE

To ascertain “Community Concerns and Aspirations,” the organizer(s) of the last Town LUP update used a process “that included a review of emerging issues and conditions identified through interviews with Town staff, input by a steering committee, input from a public workshop entitled ‘Speak Out for Southern Shores,’ input from a 2005 citizens survey and a review of data, reports, GIS data and [other] plans,” including:

*All of the previous land-use plans

*A 2005 Southern Shores Hazard Mitigation Plan

*A 2006 Vegetation Management Plan for the Town [later rejected by a reconstituted Town Council]

*A 2005 Long-Range Plan and Long-Range Plan Opinion Survey Statistical Results

*The Town Zoning Ordinance

*The Town Building Code

*Input from the community-wide meeting, “Speak Out for Southern Shores,” which was held March 29, 2007 at the Duck Woods County Club

(LUP, p. 9)

The purpose of the Speak Out meeting, which was handled by volunteer facilitators, “was to help develop a vision statement for the plan and gain an understanding of local issues of concern.” (LUP, p. 10)

The “overarching themes” that emerged from this brainstorming session, according to the 2012 LUP, were:

1)      Maintaining the low-density residential character of the Town;

2)      Not permitting large, oversized homes;

3)      Not permitting an increase in commercial development;

4)      Not permitting density to increase through either lot subdivision or combining lots;

5)      Maintaining N.C. 12 as a two-lane highway [There was much talk then of widening the road];

6)      Maintaining vegetation and preventing clear-cutting; [You can hear at the end of the partial recording of the Jan. 9, 2018 Council meeting a discussion between Councilmen McDonald and Newberry, on the one hand, and former Planning Board Chairperson Sam Williams, on the other, about the Planning Board’s decision not to include a clear-cutting prohibition in the revised Town Code, despite a strong surveyed community sentiment for one.]

7)      Developing a Capital Improvement Program and road maintenance plans;

8)      Maintaining the beaches and the dunes;

9)      Creating a stormwater management program.

The Long-Range Planning (steering) Committee identified the following major issues as priorities:

1)      Priority One: The Currituck Bridge, N.C. 12 issues, congestion on U.S. 158 and N.C. 12, canal dredging, and general communication improvement.

2)      Priority Two: Seasonal traffic congestion, stormwater runoff/flooding, multi-purpose paths and pedestrian safety, volunteerism, and Town staff efficiency.

3)      Priority Three: Speeding and short cuts, a master plan for rebuilding roads, continued fair enforcement of Town codes and rules, and the home-business ordinance.

4)      Priority Four: Cost of living and taxes and available employees to service the community.

(LUP, p. 10)

If you were to give the Town a letter grade ranging from “A” to “F” for how well it has addressed the “overarching themes” and planning priorities expressed by property owners and a citizen committee 12 to 15 years ago, what would it be?

There is much more substantive content in the LUP. We are just scratching the surface here. The important “Plan for the Future” section, for example, enumerates the Town’s goals and policies and analyzes how they square with CAMA coastal-management goals and planning objectives.

Every time the Planning Board votes to recommend a new zoning text amendment, it has to confirm by majority vote that the ZTA is consistent with the Town’s land-use plan. The Town Council has to do the same when it approves new ZTAs and Town Code amendments.

The Beacon has attended enough meetings of both boards during the past five years to regard many of those decisions as rubberstamps and to wonder if some of the members of the Planning Board, like the Council, have read the LUP.

At the very least, each Council and Planning Board member should know the content of the LUP Vision Statement, which reads:

“The Town of Southern Shores is a quiet seaside residential community comprised primarily of small low-density neighborhoods consisting of single family homes primarily on large lots (i.e., at least 20,000 sq. ft.) interspersed with recreational facilities (e.g., marinas, tennis facilities, athletic fields, and parks), beach accesses, walkways and open spaces. These neighborhoods are served by picturesque local roads (rather than wide through streets) along the beach, in the dunes or in the sound-side maritime forest. The scale and architecture of new development and re-development is compatible with existing homes. . . . The desired plan for the future is to maintain the existing community appearance and form.”

We believe this statement needs to be strengthened with specificity and more precise wording. It is a statement of Southern Shores’ identity, as well as its vision for its present and future.

THE LUP MUST BE UPDATED

A land-use plan is a blueprint for growth in a municipality, a blueprint that depends on the input of the people who live and own property there. Its value should be self-evident to anyone who serves in the Southern Shores government, as an employee, an appointee, or an elected official.

“Land-use planning provides one of the best opportunities for public involvement in the N.C. Coastal Management Program,” the Dept. of Environmental Quality states on a website page about the DCM. “By getting involved as your coastal community develops or updates its land use plan, you have an opportunity to shape the policies that will guide CAMA permit decisions in your community—and the growth of your community in the future.”

Beach nourishment; special-event houses; occupancy limits; clear-cutting; infrastructure needs . . . these issues and many more should be considered in the Town’s LUP updating process.

Will a majority of the Town Council support an update next year when, Mayor Bennett said, by way of concluding the discussion at last week’s planning session, the Council “will look at hiring a consultant and bring [the LUP] up to date”?

If they do not, they will not be serving the voters who elected them. Again.

FYI, here is the Dare County Land-Use Plan: https://drive.google.com/file/d/1cPMlDVn4RAIxYG6c8GqnxCQRIRWyv13q/view

Ann G. Sjoerdsma, 9/25/19

2 thoughts on “9/25/19: UPDATING THE LAND-USE PLAN (LUP): A 3-PERSON COUNCIL MAJORITY DERAILED THE PROCESS NEARLY TWO YEARS AGO; THAT CANNOT HAPPEN AGAIN: LUP IS TOWN’S BLUEPRINT FOR GROWTH, AS SUPPORTED BY THE PEOPLE

    1. Thank you for your comment. It is, for those who appreciate that their personal agenda is not predominant in a coastal town that has a CAMA-approved land-use plan. I intend to write a follow-up article with additional facts that will shed more light on your question.

      Liked by 1 person

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