4/20/21: CONFUSION: PLANNING BOARD STRUGGLES WITH ZTAs PROPOSED BECAUSE OF STATE LAW CHANGES. LOSES SIGHT OF INTENT OF ZTA PERMITTING TEMPORARY ACCESSORY UNITS FOR ‘IMPAIRED’ FAMILY MEMBERS, MUDDIES ZTA ON MANUFACTURED HOMES. (Sorry, Folks. You Need Some Guidance.)

Many yards behind single-family homes in Southern Shores have ample space for temporary family health-care structures.

If the proposed Zoning Text Amendment to add “temporary health-care structures” as a permitted accessory use to single-family homes in Southern Shores had simply reproduced the language of the N.C. statute it intends to implement, the Town Planning Board might not have gotten lost at its meeting yesterday in skepticism, confusion, and misunderstanding.

And it might not have appeared so unsympathetic.

But ZTA 21-02 does not—because CodeWright Planners’ principal Chad Meadows did not draft it that way—and Deputy Town Manager/Planning Director Wes Haskett did not introduce the ZTA with adequate background, so the Board floundered.

See proposed ZTA 21-02 about temporary health-care structures here: https://www.southernshores-nc.gov/wp-content/uploads/2021/04/ZTA-21-02-Eaves-and-Temporary-Healthcare-Structures.pdf.

Only newly appointed full Board member Robert McClendon seemed to appreciate the point of ZTA 21-02, which is to give families caring for a mentally or physically impaired adult relative, who needs temporary help with TWO OR MORE “activities of daily living”—ADLs in caregiver parlance—a new, convenient, and desirable housing option.

The transportable residential structure would be a tiny house for Granny or a safe haven for a 21-year-old son recovering from a broken leg, not a trailer, as one Board member feared, and its zoning permit would have to be renewed annually.  

Once it is no longer needed, it would have to be removed. These structures are not meant to be small, sustainable nursing homes.

“[We] are coming off as people who are not sympathetic” to family caregivers and their loved ones, Mr. McClendon perceptively said, after listening to his colleagues veer off-course into how these temporary 300-square-foot structures, which can only house the “impaired” adult and must meet all building code standards, will be secured to the ground, lest they take flight and cause damage, and what they will look like—because there are neighbors who will have to look at them.

“Trying to get around this legislation is pretty sad,” Mr. McClendon aptly said, emphasizing, but not loudly or often enough, that the ZTA is about a “very specific, narrow, temporary use.” It is about helping families.

The Board seems “more concerned about aesthetics,” he noted.

We believe that Planning Board members would have understood better what was supposed to be before them if they had read N.C. General Statutes sec. 160D-915, the statute upon which ZTA 21-02 is based.

CodeWright chose to incorporate this zoning change into the Town Code by simply amending Code sec. 36-168, which addresses “temporary uses.” Poor decision.

“Temporary health care structures” should be dealt with in a separate Code section, as it is in NCGS 160D-915, which starts with a definition section. The way CodeWright structures the text is confusing.   

It most likely led to Vice Chairperson Tony DiBernardo insisting that all “licensed medical professionals”—a broad term he never limited—should be permitted to reside in the single-family home to which the temporary structure is an accessory.

At least that is the effect of what he argued, although he seemed not to understand that.

The N.C. statute makes it clear that the impaired person’s caregiver or legal guardian owns or occupies the single-family house on the property where the accessory structure is located. ZTA 21-02 muddies this requirement.

Mr. DiBernardo sought to include in the caregiver description those nurses, physical and occupational therapists, hospice workers, and any other health-care service providers who might visit a client with mental and/or physical impairment, but who would not typically live next door to him or her.

He seemed to believe, for reasons we could not figure out, that the ZTA would prohibit such people from caring for an impaired person, otherwise. But no zoning change could do that.

His confusion may have been the result of “intimidation by statute”—which other Board members, notably Chairperson Andy Ward (see below), also suffered from. Or perhaps it was because of Mr. Meadows’s poor draftsmanship.

Surprisingly, no one on the Board disagreed with him, not even Mr. McClendon.

Mr. DiBernardo specifically objected to the ZTA limiting the definition of a caregiver to “first- or second-degree relatives” of the impaired person, which would include a spouse, sibling, child, grandchild, parent, grandparent, uncle, aunt, niece, nephew, including half-, step-, and in-law relationships.

He seemed to miss the point that this is a caregiver who resides next door to the accessory structure, not all caregivers involved in the impaired person’s treatment plan.

He seemed especially bothered by the ZTA’s use of the terms “lineal descendant” (child, grandchild) and “lineal ascendant” (parent, grandparent), but these are the people who care every day for loved ones who cannot manage ADLs.

The Planning Board eventually voted unanimously to recommend the ZTA to the Town Council, with amendments that would require including licensed medical professionals among the permitted caregiver-residents and would clarify that such accessory structures must “meet all applicable state, local, and federal standards.” (Of course they must.)

Martin’s Point representative John Finelli voted with the Board.

The medical-professional amendment will not survive Town Council scrutiny, unless the Town Manager and the Council are not paying attention. Town Attorney Ben Gallop may step in before the Planning Board’s recommendation reaches the Council and delete it. The suggested change in caregiver definition actually opens up the installation and use of a temporary health-care structure to abuse.

As a lineal descendant (child) caregiver of a mentally and physically impaired person who needs assistance with all of her ADLs—bathing, dressing, ambulating, eating, toileting, transferring, etc.—I have considered the advantage of having a temporary structure in my back yard where my mother could live. (Or, vice versa, having a temporary structure in her back yard, where I could hang out.)

Of course, I knew the Code would not permit it.

I also am more fortunate than many adult children who are caregivers: I am able to care for my mother in her own home, which is where those of us who love our parents want them to live out their lives, if they can do so safely and with adequate care.

I also could not imagine moving my mother, who is still cognitively aware, although her memory and executive functioning are impaired, into an isolated and unfamiliar space the size of a bedroom where she would live alone. That would be devastating.

When the Planning Board discussion about ZTA 21-02 turned to consideration of a person with dementia living in a temporary health structure for as long as 10 years—and thus subjecting the neighbors to the unpleasant aesthetics of the tiny house—I knew that no one on the Board, either a regular or alternate member, had ever cared for a parent with Alzheimer’s disease or any other dementia.

Isolating the person from the rest of the household is not advisable.

I/we will stop our analysis here. The real culprit in this unfortunate episode involving seven well-meaning people—the five Board members, Mr. Finelli, and Board alternate Jan Collins, who participated from the audience—is Mr. Meadows, who showed once again how not to draft an ordinance. He could not even transcribe a State statute properly.

If Planning Board members were to read N.C. General Statutes sec. 160D-915, the statute upon which ZTA 21-02 is based, they would be astonished by how clearly it is written and organized. It is narrowly tailored to permit in a single-family residential district a “temporary family health care structure” that provides “an environment facilitating a caregiver’s provision of care for a mentally or physically impaired person.”

This structure must meet all building code and zoning requirements.

We strongly urge Mr. Haskett to provide the Planning Board with the original State statutory language of any zoning ordinance amendments that CodeWright drafts (and rewrites) to conform with that language. If Mr. Gallop is not going to review CodeWright’s language before a ZTA reaches the Board, it is imperative that he do so.

We also suggest that Mr. Haskett use the “whereas” purpose section of a proposed zoning ordinance to elucidate the intent and history of proposed ordinances that are coming from CodeWright. He did a better job in this respect on the manufactured homes ZTA, 21-03, which the Planning Board also took up yesterday.

MANUFACTURED HOMES ZTA UNNECESSARILY AMENDED, TOO

The Board clearly had its antennae up about the arrival of manufactured homes in Southern Shores and its role in circumscribing them. For that reason alone, it may have overreacted to the health-care structure ZTA, which would have been straightforward and less problematic, had Mr. Meadows done his job better.

Nonetheless, the Planning Board also unanimously recommended the proposed ZTA on manufactured homes with unnecessary and/or inappropriate amendments. This time it was Chairperson Ward, the most senior member of the regular Board, who went off-track.

See proposed ZTA 21-03 about manufactured homes here: https://www.southernshores-nc.gov/wp-content/uploads/2021/04/ZTA-21-03-Manufactured-Homes.pdf.

Mr. Ward struggled throughout the meeting with understanding how to review the Code amendments that came through CodeWright’s “update,” especially when a change in State law was their impetus. At one point, he questioned whether the Board could discuss a proposed amendment without first making a motion to recommend its approval.

He was tentative and off his game, but he was not alone. In our opinion, no one on the Board showed a facility for reading and interpreting related State statutes. They all need help and should receive it before they convene again. They need to be prepped.

Mr. Ward seemed not to understand that the proposed manufactured homes ZTA was no different from any other proposed ZTA that the Town has drafted. It may have been compelled by a change in State law, but CodeWright—not the N.C. legislature—wrote it, with Town staff assistance, for application solely in Southern Shores.

It is a proposed local law. Period.

CodeWright prepared a fairly solid amendment to the Town zoning ordinance, allowing manufactured homes to be built as a conditional use in the Town’s R-1 low-density residential district and significantly restricting their appearance and dimensions.

Mr. Haskett described the aesthetic requirements as “fairly strong.” We agree.

Other conditional uses in the Town’s R-1 residential district include churches, country clubs, schools, and community recreation facilities. See Town Code sec. 36-205(c), which ZTA 21-03 amends by adding a section on manufactured homes.

According to Mr. Haskett, the only vacant land currently in the R-1 district is land owned by the Southern Shores Civic Assn. on either side of Duck Woods Drive, where the road meets U.S. Hwy. 158.

The lot to the west of Duck Woods Drive is 4.3 acres, and the lot to the east of the road is 3.4 acres, Mr. Haskett said.

Southern Shores currently excludes manufactured homes in its residential districts, although, strangely enough, they are mentioned in Town Code sec. 16-5, regarding “Provisions for flood hazard reduction.” (See below.)

In NCGS sec. 160D-910, which became law in 2019, the General Assembly found as a matter of policy that “manufactured housing offers affordable housing opportunities for low- and moderate-income residents who could not otherwise afford to own their own home” and prohibited local governments from “excluding manufactured homes from [an] entire zoning jurisdiction.”

Unlike the very specific “temporary health-care structures” statute that the General Assembly passed, NCGS sec. 160D-910 does not dictate to local governments how they must incorporate manufactured homes into their zoning scheme, giving them a lot of leeway in regulating such homes and where they may be located.

This broad discretion may have confused Mr. Ward, who started out thinking that the ZTA drafted by CodeWright and Town staff had been written by the State legislature. Instructed otherwise twice by Mr. Haskett, he still floundered, perhaps being unsure of how to read NCGS sec. 160D-910, a copy of which Mr. Haskett gave each Planning Board member.

Not being a lawyer, a regulator, or a professional planner, Mr. Ward’s unease is understandable. These zoning changes are a lot to take in.

A manufactured home, according to N.C. law, is “a structure, transportable in one or more sections, which in the traveling mode is eight body feet or more in width, or 40 body feet or more in length, or, when erected on site, is 320 or more square feet.” See NCGS sec. 143-145 (7), which contains other criteria for the definition.

A citation to this statutory section should be in the Southern Shores Town Code, but it was not included in any of the amendments that the Planning Board approved when it recommended ZTA 21-03. This is a major oversight that should be corrected.

While ZTA 21-03 specifies the requirements that all manufactured homes in Southern Shores must meet once they arrive, it does not define a manufactured home.

There is also language about manufactured homes in Town Code sec. 16-5, as noted above, that must be reconciled with the new ZTA. CodeWright should have uncovered it in a simple word-search of the Town Code. 

In one of the ZTA amendments proposed by Mr. Ward, he deleted the word “firmly” from the following sentence: “They [meaning, stairs, porches, ramps, etc.] shall be attached firmly to the primary structure and anchored securely to the ground.”

“Firmly,” the Chairperson said, “is open to interpretation.”

He knows what “firmly” means in Southern Shores, Mr. Ward said, but he does not know what it means “out in Asheville.”

Not relevant. This is a Southern Shores ordinance, not an Asheville ordinance.

Similarly, Mr. Ward proposed replacing the word “securely” with language specifying “in accordance with local coastal building regulations.”

Unnecessary. This is a Southern Shores ordinance. Local building regulations will apply.

One sentence of the ZTA actually states that all manufactured homes must comply with the Southern Shores Code requirements about flood damage prevention.

Mr. Ward also amended a reference to the minimum projection of the homes’ eaves that needed no clarification. He added a qualification about the maximum eave projection, a qualification that exists nowhere else in the Town Code.

He and every other Board member, except Mr. Finelli, got confused about how eaves factor into setback and lot coverage calculations—a topic the Board intends to take up at its May 17 meeting. Mr. Finelli still voted in favor of the inapposite amendment.

And finally, an amendment to the ZTA that excepted temporary health-care structures from the language about attachment and anchoring was off the wall.

A temporary health-care structure is not a single-family dwelling, and the first requirement under the proposed zoning amendment for a manufactured home is that it “be occupied only as a single-family dwelling.”

The Planning Board needs your help, Mr. Haskett, Mr. Gallop, and Mr. Cliff Ogburn. It is in unfamiliar territory and needs guidance. Please extend your hands.   

Ann G. Sjoerdsma, 4/20/21 

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