The N.C. General Assembly is again intent on usurping local zoning authority, this time by preventing municipalities from zoning exclusively for detached single-family dwellings.*
Because Southern Shores is a town zoned primarily for single-family dwellings and committed to low-density development, the Town Council unanimously approved at its Tuesday meeting a resolution in opposition to proposed State legislation that would eliminate exclusive single-family dwelling zoning.
House Bill 401/Senate Bill 349, which was introduced March 24, also requires municipalities to allow all detached single-family homes to have accessory units.
(Councilman Jim Conners did not participate in the vote because he did not attend the meeting or participate by Zoom.)
Town Manager Cliff Ogburn will finalize the wording of the resolution and submit it to Dare County’s representatives, Senator Bob Steinburg (R-1st) and House Representative Bobby Hanig (R-6th), and others for circulation to the General Assembly.
If the legislation becomes law, all locally zoned residential housing districts in North Carolina would have to permit “middle housing” dwellings, which the bill specifies include duplexes, triplexes, quadplexes, and townhouses.
A triplex is a building divided into three self-contained residences. A quadplex has four such residences.
According to the bill, a local government could regulate such middle housing only if its regulations “do not act to discourage development of middle housing types through unreasonable costs or delay.”
The proposed legislation also requires local governments to allow at least one “accessory dwelling unit” for each detached single-family dwelling in a residential housing zone. Such a unit is “an attached or detached residential structure that is used in connection with or that is accessory to a single family dwelling.”
According to HB 401/SB 349, municipalities may not require accessory dwelling units to have minimum parking requirements or other parking restrictions, conditional use zoning, or owner-occupancy of either the main dwelling unit or the accessory unit.
The only exceptions in the proposed legislation, which is being touted as a means to “increase housing opportunities” and has bipartisan sponsorship, are for areas designated as local historic districts or listed on the National Register of Historic Places.
Also, the middle-housing requirement would apply only to those areas that are served by a public water or sewer system or by a public wastewater collection or treatment works.
The bill also states that “private covenants or other contractual agreements among property owners relating to dwelling type restrictions” would still be valid and enforceable.
Southern Shores currently has a small multifamily residential district that permits detached single-family dwellings, duplexes, and “multifamily dwellings.” See Town Code sec. 36-203. No more than eight dwelling units may exist per net acre in this district.
A “multifamily dwelling” is defined elsewhere in the Town Code as a building, or portion of a building, that is used or designed as a “residence for three or more families living independently of each other and doing their own cooking therein.” Apartment houses and condominiums are included in this definition. See Town Code sec. 36-57.
The Town’s ordinances on accessory structures would have to be rewritten in order to conform to the demands of HB 401/SB 349.
The promise of federal government benefits would appear to be behind the General Assembly’s sweeping, one-size-fits-all legislation.
President Biden’s $2 trillion infrastructure plan reportedly calls for cities to limit single-family dwelling zoning, which has been criticized as “exclusionary zoning” that results in de facto redlining of low-income Americans and people of color, and to build more affordable housing.
The President’s proposal reportedly would award federal grants and tax credits to cities that change their zoning laws to increase access to affordable housing.
Multifamily zoning also has been promoted as a means to combat the impact of climate change (increased heat) on low-income residents, as well as a way to improve their quality of life and lower their utility costs.
During the Town Council’s discussion Tuesday, Mayor Pro Tem Elizabeth Morey said she would like to include a statement in the resolution that would show the Town’s support, in general, for increasing affordable housing opportunities.
None of the other three Council members thought it necessary to amend the resolution that Mr. Ogburn had prepared and that was in their packet of meeting materials, but not in the packet available online to the public.
The proposed State legislation was not an agenda item for the Council’s meeting. It came up in the “Town Manager’s Report,” which is never itemized on the agenda. We did not request the text of the resolution.
No one on the Town Council brought up the obvious objection to the legislation, although Ms. Morey indirectly referred to it: The N.C. General Assembly is intruding upon traditional local-government territory by using what Ms. Morey aptly called “a sledgehammer approach” to a legitimate problem.
Affordable housing is lacking in many areas in North Carolina, most notably in cities, but also on the Outer Banks.
How long have we been hearing that seasonal workers on the Outer Banks, as well as many members of the local year-round work force, cannot afford to live on the Outer Banks? And what have the Dare County Board of Commissioners and the mayors and town councils of Dare County towns done about this worsening problem? A united collective effort is necessary.
It is fair to question whether residential zoning is excessively restrictive and thereby making it difficult for developers to build new, more affordable housing, as well as driving up rents and housing prices, a trend that has a disparate impact on low- and moderate-income residents.
It is also important to understand how residential zoning in an area dependent on a beach tourist economy differs from zoning in any other area. Local governments in beach towns know better than the State how their land-use plans contribute to the appeal of their towns and thus drive their economies.
It is also beyond doubt that U.S. municipalities historically have used zoning to erect barriers to racial and ethnic minorities. Zoning was initially designed to exclude people who were viewed as undesirable from residing in neighborhoods that were viewed as desirable because of their price and exclusivity.
Many people would say that multifamily housing decreases property values, and that increased density strains existing infrastructures, including schools and public safety services, and diminishes residents’ quality of life.
We are not going to engage in a political discussion about zoning and individual property rights, or embark on a historic exploration of housing discrimination in this country.
We do believe, however, that if the N.C. General Assembly truly wants to resolve inequities in housing and increase housing opportunities, it should offer incentives to municipalities to make smart changes, not impose its will upon them with a sledgehammer that will cause more damage than is either foreseeable or acceptable.
You may access the bills and see their history at:
For H.B. 401: https://www.ncleg.gov/BillLookUp/2021/H401
For S.B. 349: https://www.ncleg.gov/BillLookUp/2021/S349
*You may recall that action taken previously by the N.C. legislature resulted in the invalidation of Southern Shores’ restriction on the number of bedrooms in a single-family dwelling, thus making the town vulnerable to the construction of wedding-destination and convention venues and other types of “mini-hotels.”
In response to the General Assembly’s action, the Town Council enacted in January 2016 a restriction on single-family house size, setting the maximum at 6,000 square feet.
The Council subsequently enacted limitations on overnight occupancy in vacation homes and septic-capacity requirements on all single-family dwellings.
PLANNING BOARD TO TACKLE PROPOSED TOWN CODE CHANGES
The Town Planning Board will consider six applications from the Town for proposed amendments to the Code of Ordinances at a 5 p.m. meeting Monday in the Pitts Center.
The meeting will be open to the public, subject to COVID-19 restrictions, and available for viewing live on the Southern Shores’ You Tube website.
The Planning Board’s role is strictly advisory. It will either recommend or not recommend to the Town Council each of the amendments. Only the Town Council can make law.
We regret that we do not have the time to detail all of the proposed amendments, which you may access here:
Among the concerns addressed are:
- Performance guarantees and the procedure for establishing a “minor” subdivision, which consists of four or fewer lots
- Construction of temporary health-care structures
- Elimination of the ordinance regarding protests to zoning district changes
- Elimination of the minimum size requirement for single-family dwellings (currently 1,000 square feet; the State of North Carolina is intruding here, too)
- Construction of manufactured homes, which were previously prohibited (again, the State is requiring that manufactured homes be permitted)
- Clarification that eaves on houses are not factored into setbacks
(For background, see The Beacon, 3/19/21.)
We were the most intrigued by a proposed new ordinance that enumerates all of the prohibited uses of land in all of the town’s districts.
Current Town Code sec. 36-89, which is titled “Use, occupancy and construction,” states that permitted and conditional uses are listed by zoning district, and that any use “not specifically designated as a permitted or conditional use shall be deemed to be prohibited.”
Proposed Town Code sec. 36-209 would appear to overrule this method, replacing it with a list of 49 specifically prohibited uses. They range broadly and include, for example:
- Alcohol and drug detoxification, rehabilitation, and treatment facilities;
- Bed and breakfasts;
- Dormitories and residence halls;
- Funeral homes;
- Halfway houses;
- Jetpack rentals;
- Motor vehicle body and paint establishments;
- Night clubs;
- Nursing homes;
- Pawn shops;
- Produce stands;
- Sexually oriented businesses;
- Smoke and vapor shops;
- Tattoo, body piercing, and body art establishments;
- Transit stops;
- Use of a boat, houseboat, or other floating structure as a temporary or permanent residence.
We would like to know the impetus for this ordinance and who drafted it.
Retail stores that are currently permitted in Southern Shores’ commercial district include those that sell antiques, books, candy, clothing, craft goods, drugs (pharmacies), food, gifts, hardware, jewelry, office supplies, and other garden-variety, general-interest shops.
Curiously, Town Code sec. 36-207, which deals with the commercial district, allows funeral homes.
The prohibited uses defined by the proposed ordinance derive from the Town’s comprehensive zoning ordinance and land-use plan, which emphasize that Southern Shores is a town of detached single-family dwellings and low-density development.
Both the Town’s zoning ordinance and land-use plan would have to be revised substantially—a lengthy process—if H.B. 401/S.B. 349 were passed by the N.C. General Assembly and signed into law by the Governor. We would hazard a guess that hundreds of towns statewide would be in the same ridiculous predicament.
Ann G. Sjoerdsma, 4/17/21