Rack Room Shoes is coming to Southern Shores. (photo of store in Nags Head)

A marked difference of opinion between the Town Council and the Planning Board on the maximum allowable lot coverage and its means of calculation for the Town’s new mixed-use zoning has given rise to a “bit of a disconnect” between the two bodies, according to Planning Board Chairperson Andy Ward, who expressed his disappointment in emails he sent to the Mayor and Council in June and read at last evening’s Planning Board meeting.

The Planning Board expected yesterday to consider a Zoning Text Amendment (ZTA 22-08) submitted by the Pledger Palace that would allow it to convert its childcare facility in Martin’s Point into “affordable” dormitory-like student housing, but the applicant withdrew the ZTA in order to work on it further.

Instead, the Board spent much of its hourlong meeting discussing its relationship with the Town Council, which it will seek to clarify and reconcile, according to Mr. Ward, in a public workshop involving the two boards that Mayor Elizabeth Morey suggested after first failing to respond to the Board Chairperson’s email.

Before we report on the Planning Board’s discussion, we pass along news about the construction at the Southern Shores Marketplace. According to Town Manager Cliff Ogburn, who substituted yesterday for Deputy Town Manager/Planning Director Wes Haskett, both Marshalls and Rack Room Shoes—yes, just as you’ve heard, the discount shoe store will occupy the 6,000-square-foot space next to Marshalls—have received their building permits.

When the Southern Shores Rack Room store opens, there will be three Rack Room stores within about 15 miles, the other two being in the Dare Centre in Kill Devil Hills and the outlet mall in Nags Head. Apparently, the Outer Banks is a market for bargain shoes.


According to Chairperson Ward, he first emailed the Town Council on June 8, the day after the Council unanimously approved a different version of a Zoning Text Amendment (ZTA 22-06) to establish and define a mixed-use development option in the Town’s commercial district than the one recommended by the Planning Board.

The ZTA applicant was Ginguite LLC, a SAGA investor group that owns a 5.2-acre commercial property at 6195 N. Croatan Hwy., which fronts on Ginguite Creek.

SAGA Realty & Construction Co. Partner and CEO Sumit Gupta served as Ginguite LLC’s representative and told both the Planning Board and the Town Council that Ginguite has in mind building luxury condominiums and small retail shops on the picaresque site.    

At its May meeting, the Planning Board voted to deny a recommendation to Ginguite’s ZTA 22-06 and agreed to forward to the Town Council its own recommended amendments, without creating a separate ZTA. The principal sticking points between the applicant and the Board concerned the maximum allowable lot coverage and the means by which it would be calculated.  

According to Mr. Ward’s June 8 email, the mixed-use maximum lot coverage percentage and calculation that the Council approved allow Ginguite, whose property includes “more than an acre of marsh and wetlands,” an additional 27,182 square feet of “hard structure lot coverage” than the Planning Board recommended and Gupta was “amenable to accepting.”

The Beacon published an analysis of the decision-making about ZTA 22-06 on June 20, 2022, titled “Opinion/Analysis of the Mixed-Use Zoning Change: A Disconnect, a Council of Two, and a Missed Opportunity.”

We concluded, in accord with comments yesterday by Mr. Ward and Planning Board Vice Chairperson Tony DiBernardo, that “A disconnect exists between the Planning Board and the Town Council, which makes us wonder how well they cooperate with, respect, and complement each other.”

As we explained in our article:

“The maximum lot coverage permitted currently in the Town’s RS-8 multifamily residential district is 40 percent of the net parcel area; the maximum lot coverage in the commercial district is 60 percent of the total parcel area, although that can be increased to 67 percent if the developer uses a sufficient amount of permeable pavement.

“The Planning Board arrived at what Mr. Ward called [in the Council’s June 7 public hearing on the ZTA] ‘a pretty good average of 50 percent’ lot coverage for the mixed-use conditional use by ‘blending’ the maximums allowed in the RS-8 district and the commercial district. It essentially viewed mixed-use group development as a new zoning district that combines uses.

“Mayor Morey and Mayor Pro Tem [Matt] Neal disagreed with the Board’s 50 percent, which the Board decided could be extended to 55 percent with permeable pavers. They endorsed the 60 to 67 percent maximum lot coverage permissible in the commercial district.

“The Planning Board also wanted to calculate lot coverage according to the ‘net’ parcel area, the standard used in the RS-8 residential district. Net area is obtained after deducting acreage deemed unbuildable by ‘waterways, marshes, or wetlands.’

“Not surprisingly, Mr. Gupta opposed this limitation for Ginguite’s property. Ms. Morey and Mr. Neal agreed with Mr. Gupta, [with whom they met privately before the public hearing,] advocating that lot coverage be calculated on the basis of the ‘total’ parcel area. They prevailed.”

Mr. Ward strongly opposed the total parcel area basis, writing in his June 8 email: “Given the fragility of this particular parcel and the gateway into our town, I feel we have strayed from our founders’ original vision of Southern Shores which speaks to ‘land use that naturally protects environmental resources and fragile areas by limiting development and growth.’”

He concluded his letter by saying that “Allowing 27,182 sq. feet of lot coverage over-and-beyond what the applicant stated he would accept, is a giveaway I find hard to reckon with. Sometimes, less is more.”

According to Mr. Ward, neither the Mayor nor any other members of the Town Council acknowledged his email, so he sent a second one a week later with the subject, “Reply?” In this email, he questioned Council members’ lack of a response and wrote: “Respect should not get in the way of different viewpoints.”

The Mayor reportedly responded after receiving the second email, and she has since spoken with Mr. Ward and Mr. DiBernardo, who also emailed the Council “voicing his disappointment,” he said, with the ZTA 22-06/mixed-use decision.

There has been “zero response from other Council members,” Mr. Ward said.

Mr. DiBernardo spoke at yesterday’s meeting in favor of the “net parcel area” as the standard for calculating lot coverage in a mixed residential/commercial development and called the amount of coverage the Town Council permitted on the Ginguite property “pretty astounding.” He cited the opinion of an engineer in his family in support of the “net” standard.  

Mr. DiBernardo also brought up more generally the Town Council’s failure to follow up with the Planning Board after it takes action on ZTAs that the Board considers.

“We never find out” what action the Town Council takes, the Planning Board Vice Chairperson said, “We don’t hear about it, and we never see the final ZTA.”

He suggested as a courtesy that “final ZTAs” be sent to every Planning Board member.


Mr. DiBernardo said he had concerns about the Council’s “last three decisions on ZTAs,” but one of the amendments he mentioned—which made changes to the Town’s solid-waste ordinance—was actually a Town Code Amendment (TCA 22-02), over which the Planning Board has no jurisdiction. The Town’s solid-waste (garbage and recycling) regulations are in Chapter 26, which is not in the Zoning Ordinance (Chapter 36).

We were confused by TCA 22-02, as well, because the changes originated with the Planning Board—in particular, with Mr. DiBernardo, who spent considerable time preparing the content of Chapter 26’s revision—but it was not a Zoning Text Amendment.

According to the minutes for the Town Council’s Feb. 1 meeting, Chairperson Ward presented the Planning Board’s suggested improvements for Chapter 26, and the Council directed the Town Manager to prepare a TCA. A draft of TCA 22-02 was then reportedly discussed at the Town Council’s March 9 retreat and further amended.

Because the changes were in a Town Code Amendment, not a ZTA, the Council had no legal obligation to hold a public hearing, and it did not. The Town Council unanimously approved TCA 22-02 at its April 5 meeting. (The Beacon was on hiatus throughout this process.)

We believe the Town’s communication with the public on these major changes was inadequate, and the Council should have held a hearing. Homeowners, especially those with vacation rental property, should have been given notice and an opportunity to be heard on TCA 22-02.

Mr. DiBernardo told The Beacon that the Planning Board never received any feedback from the Council about the work it had done on the solid-waste ordinance revisions.

Mr. Ward described Planning Board members as being disappointed and spoke of the Board being “hopped over” by the Council.  He referred to “festering” as a result of the Council’s action on ZTA 22-06, and said, “Their members and our members need to get together and talk.”

Noted Board member Lynda Burek: “We need to understand our relevance in the process, and if we get nothing back from the Town Council except maybe feng shui from Elizabeth, that tells a lot. It really says that our relevance to them is pretty modest.” (We think she said feng shui. We attended the meeting, and listened to the videotape, but cannot be sure.)

Ms. Burek also inquired about the imminent update to the Town’s Land-Use Plan, asking: “Who’s the gatekeeper over the Land Use Plan?”  

Mr. Ogburn proposed that the LUP update be discussed by the two boards at their upcoming workshop.

AND FINALLY . . . The Planning Board unanimously reelected Mr. Ward and Mr. DiBernardo as chairperson and vice chairperson, respectively, for the 2022-23 fiscal year, and indicated an interest in taking up design standards for the commercial district. It can have a say in what future mixed-use developments look like.

The Planning Board’s next meeting is Aug. 15, at 5 p.m., in the Pitts Center.

Ann G. Sjoerdsma, 7/19/22


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