The Town Council approved all of the staff recommendations on three zoning text amendments that came before it for public hearing last Tuesday—enacting a new method of calculating lot width of newly created lots and rejecting a ZTA permitting “shared space occupancy dwellings” in the commercial district and a ZTA proposing to protect planning unit developments (PUDs) from adjacent commercial development.
It also postponed until its June 20 workshop meeting Police Chief David Kole’s report on speed bumps and their potential use in Southern Shores.
(The Beacon previewed all of the zoning text amendments on 6/4/23.)
Noteworthy in the Council’s discussion were 1) a split in the vote on the lot-width ZTA, with Mayor Pro Tem Matt Neal and Councilwoman Paula Sherlock dissenting, for the first-ever 3-2 vote on a proposed zoning change in Mayor Elizabeth Morey’s tenure, and 2) confusion over what a “special use” is in the C general commercial district and how the permit process for one is conducted.
Planning Director/Deputy Managing Editor Wes Haskett recommended using the special use process to address the concerns of the two applicants who filed the ZTAs on shared space occupancy dwellings and on setback protections for PUDs, which the Southern Shores Landing is. The westernmost housing in the Landing is in a commercial zone and, therefore, not entitled by right to setbacks that the Town Code mandates for residential districts next to commercial development. (Originally permitted in a residential district, PUDs are now permitted only in the town’s commercial district.)
We will look in more detail at both of these ZTAs below.
ZTA 23-03, the lot-width change, retains the minimum number of feet currently required in all residential districts and in the government and institutional district (GI), but changes the method of calculating that width. Mr. Haskett described it as a “stopgap” ordinance.
Until such time as the Council “fine-tunes” what the ZTA achieved, all lots created after June 6—through recombination or subdivision—in these districts must have a uniform width from side-lot line to side-lot line of 50 feet (in GI), 75 feet (in the RS-8 and RS-10 districts), and 100 feet (in RS-1 and R-1), thus making them rectangular. No irregularly shaped lots will be allowed, nor will lots be permitted to have even a slight variance in the width—say a rear width of 95 feet in a lot in the RS-1 district where a 100-foot width is required.
(RS-1 is the single family residential districts, where most homeowners live.)
The language of ZTA 23-03 was written by the Town Attorney, Mr. Haskett explained at the two meetings (April and May) during which the Planning Board considered the measure, and was designed to fix an ambiguity in the current Town Code language on width.
“There’s a lot of edits” of the Town Code mandated by ZTA 23-03, Mayor Pro Tem Matt Neal said, in opposing the measure’s approval, “and the ambiguity was where the front setback is. Wouldn’t it be simpler to fix the front setback at one static location?”
The simple answer to that question is yes, but that is not the route that the Town Attorney took.
For years, Mr. Haskett has interpreted the current Code language that specifies lot width is to be measured “at the building setback line,” as being the width at the 25-foot front building setback from the public right of way (the street). He has interpreted it as a static location.
Planning Board Chairperson Andy Ward, who initially opposed ZTA 23-03 until the Town brought it back to the Board a month later with the understanding, he said, that the Town Attorney was concerned about liability, indicated a similar view in considering the measure. In litigation with the Town last year, however, property owners on Skyline Road argued that the Code language was susceptible of a different interpretation.
We will resume our analysis of ZTA 23-03 and the Council’s discussion and vote in a separate blog post. We believe it is both instructive and illuminating of the Town’s legislative process, as well as the process by which zoning becomes “gummy,” a term used by Mr. Neal, who argued for a “cleaner” bill.
Tuesday’s Council agenda was unusually time-consuming because of the ZTA public hearings. A fourth hearing, held for citizen comment on the Town Manager’s recommended fiscal year 2023-24, proved to be perfunctory. No one spoke, and the Town Council unanimously approved the budget, as well as a $500,00 increase in the minimum amount that must be maintained in the town’s Unassigned (aka Undesignated) Fund Balance, from $3 million to $3.5 million.
The UFB typically has over $6 million in it.
Mayor Morey initiated the delay of Chief Kole’s report on speed bumps—scheduled as the last item on the agenda—and another item of new business at 7:45 p.m., after the Council had been in session for more than two hours. Citing the “the [late] hour and the darkness approaching” for the delay, she later observed that the Council had a closed session scheduled after the meeting, which would further lengthen the Council’s time.
Closed sessions with legal counsel infrequently occurred in the previous mayoral administration, but now are held almost as a matter of course. Tuesday’s session involved two Hornthal, Riley, Ellis & Maland (HREM) attorneys: Lauren Arizaga-Womble, who joined the firm in January and handled Tuesday’s meeting and public hearings, and Robert B. Hobbs Jr., a Nags-Head based HREM partner and longtime Town Attorney for Duck who arrived just for the closed session.
Also postponed until the June 20 workshop, which will be held at 9 a.m. in the Pitts Center, was the Council’s consideration of a building maintenance contract that would cover repairs and upgrades to Town Hall, the police station, and the Pitts Center.
THE ZONING TEXT AMENDMENTS
In unanimously disapproving ZTA 23-04, which was submitted by Matt Huband, a property owner in Southern Shores Landing, the Town Council accepted the recommendation by Mr. Haskett that the setback, buffer, and stormwater protections the ZTA would give planned unit developments, such as the Landing, could and should be more specifically addressed through special use permits when a special use, such as a restaurant, drive-through facility, or mixed-use group development, is proposed by an adjacent commercial property owner.
A special use—formerly known in North Carolina as a conditional use—is a use of property in a zoning district that is NOT permitted “by right.” They are uses of property that must be approved by town government.
Many common uses of property in Southern Shores’ commercial district are special uses. Enumerated in Town Code sec. 36-207(c), they include restaurants, with or without drive-through facilities; child day care centers; veterinary clinics; garden centers/nurseries; group developments of commercial buildings, and mixed-use developments of residential and commercial buildings.
The Town has considerable leeway in imposing conditions on special use permits and takes into consideration the effects of a proposed new development on adjacent properties. The Landing, which is roughly situated at the corner of South Dogwood Trail and U.S. Hwy. 158, is next to the SAGA investor-owned commercial property at 6195 N. Croatan Hwy (158).
It would have been helpful, we believe, for Mr. Haskett or Ms. Arizaga-Womble, to have elaborated upon the nature of special uses and to have explained how decisions on their permits are made. Questions asked by Town Council members suggested a lack of familiarity.
Matthew Huband, a homeowner in the Southern Shores Landing, submitted ZTA 23-04 to establish minimum 50-foot setbacks between PUDs and restaurants, drive-through businesses, and mixed-use developments (all of which are special uses that require Town permission). The ZTA also extended to PUDs other protections that Code sec. 36-207 gives residential districts from abutting commercial development.
Because of mistakes made by the Town, the western third of the Landing is zoned commercial, while the remainder of the development is zoned RS-10 (high density) residential.
During his presentation of ZTA 23-04, Mr. Huband, who lives in the commercial third, meticulously laid out actions taken since January by both the Town and Landing homeowners to rectify the Town’s “unprecedented” split-zoning mistake. He also disclosed that the SAGA investors, known collectively as Ginguite LLC, who own the adjacent commercial property, “beat the clock” that afternoon by filing “an application” with the Town Planning Dept. for a proposed special-use development.
Had the Town Council enacted ZTA 23-04, it would not have applied to that development, but it certainly would have applied to a different proposed development plan, if Ginguite LLC were to withdraw the proposal it filed June 6 and substituted it with another. It also would apply throughout the commercial district, which concerned Council members.
The Planning Board unanimously recommended approval of ZTA 23-04 at its May 15 meeting. Planning Board Chairperson Andy Ward spoke Tuesday in support of Southern Shores Landing homeowners, pointing out that Sumit Gupta, who represented Ginguite, LLC, before the Board multiple times last year in negotiating a mixed-use commercial/residential development ZTA, said he was “amenable” to a 50-foot residential setback. At the time, however, both the Town and Mr. Gupta, who is a co-founder and CEO of SAGA Realty & Construction, assumed the Landing was exclusively zoned RS-10 residential.
“The residents of Southern Shores Landing have had the rug pulled out from under them,” Mr. Ward said.
This messy conflict is not going away. We will undoubtedly write about it in the future.
All Council members seemed inclined to help Landing property owners, but they were restrained by Ms. Arizaga-Womble from talking about their options. If Ginguite LLC’s application goes forward in the Planning Board and arrives at the Town Council for a quasi-judicial hearing, they will be ruling on a permit that has conditions attached to it, some of which may benefit Landing property owners.
In unanimously disapproving ZTA 22-08, submitted by attorney Casey Varnell on behalf of Pledger Palace, CDEC, the Town Council rejected a new permitted use in the Town’s C general commercial zoning district of “Shared-Space Occupancy Dwellings,” a form of affordable rental housing that the applicant proposed offering to J-1 work-visa students and other single persons in a boarding-house type of arrangement.
Although, if approved, the ZTA would apply to all property in Southern Shores’ commercial district, Patricia Pledger, the president of Pledger Palace, focused in her application on how she would convert a child-care center she owns at 6325 N. Croatan Hwy., which is in the Martin’s Point commercial district, into a shared-space occupancy dwelling that could house up to 95 people.
The Town of Southern Shores currently has extraterritorial jurisdiction over Martin’s Point commercial district, but it soon may vote to transfer jurisdiction to Dare County.
Mr. Neal and Ms. Sherlock led the Town Council’s discussion of Ms. Pledger’s application, focusing principally on the population density of such a shared-space dwelling. Mr. Neal pointed out that the maximum number of people that the State of North Carolina permits in apartments in a building the size of Ms. Pledger’s—7400 square feet—is 35. (We assume he was referring to a State requirement. He did not cite his source.)
The Mayor Pro Tem also keyed in on space requirements for the “shared space” or room, where people would sleep, and for a kitchen and common areas, and on the number of toilets and showers per person that Ms. Pledger planned. Her ZTA did not include these figures.
Ms. Pledger explained that she had used as a square-footage guide a requirement from the N.C. Building Code that each adult have 50 square feet of space per bedroom.
Said Ms. Sherlock: “I’ve known jails that offer larger accommodations than 50-square feet . . . That’s a tiny space.” (We made the same analogy!)
Ms. Pledger explained that she was referring to 50 square feet between beds. Her model proposes 10 bunk units per shared space, which can accommodate 20 people, an arrangement we would compare to a barracks or a youth hostel, rather than a group home.
In public comments before the hearing, Tim Baker, who identified himself as president of the Martin’s Point Homeowners Assn., called the proposed density “frightening,” and fraught with “public-health risks,” such as the spread of communicable diseases. Ms. Pledger responded during the hearing by citing her high standards for cleanliness and her commitment to “doing things right.”
Mr. Neal elicited from Ms. Pledger that she had used Dare County health department standards for determining the required number of toilets, sinks, and showers in her dwelling. The health code mandates one each per 10 people, she said.
Mr. Neal also probed the parking requirement of one space per seven people, which is in Ms. Pledger’s ZTA, and learned that Mr. Varnell based this requirement on the number of spaces currently at the building and the 95-person maximum occupancy. Both Mr. Varnell and Ms. Pledger commented on the propensity for students to ride bicycles, not drive cars.
Councilman Leo Holland asked Ms. Pledger what her “break-even number” of occupants was, a question to which she replied, “Can he ask that?,” before telling him it was 65.
One question that the Council did not ask was what Ms. Pledger planned to charge renters, i.e., what amount she considered “affordable,” a word she used in defining a shared-space occupancy dwelling. Most local ordinances nationwide define rent in affordable housing by providing a mathematical equation that takes into account the prevailing rental market. It is not a subjective standard.
Councilwoman Sherlock, who was complimentary of Ms. Pledger’s aspirations and business acumen, and supportive of affordable housing, seemed to speak for everyone on the Council when she said, “A ZTA is the wrong way to go here.” She suggested pursuit of a special use, and Mr. Neal noted that any such use should have a lower maximum occupancy than 95; square-footage standards; parking requirements, and the like.
The Planning Board also endorsed the concept of affordable housing, but recommended denial of ZTA 22-08, by a 4-1 vote.
CUT-THRU TRAFFIC
The only time that the problem of cut-thru traffic came up at the meeting was during the question period after Police Chief Kole presented his department’s calls/incidents/arrests statistics for May. He reported that four motor vehicle accidents had occurred during the month.
“Were the motor vehicle accidents related to . . . cut-thru traffic or were they other accidents?” Councilwoman Sherlocked asked the Chief.
“Honestly, I’d have to check,” he answered, having no knowledge.
He was equally uninformed about a drug charge about which Ms. Sherlock inquired.
This is not the first time that a Town Council member has asked Chief Kole to elaborate upon the facts of motor vehicle accidents and arrests and been informed that he doesn’t know them.
The Councilwoman, who is a retired family court judge, was also spot-on in her “two cents” about the increase in the hourly legal fees being charged by Hornthal, Riley, Ellis & Maland, which the Town Council unanimously approved.
Noting that while $235 per hour for an attorney’s time is reasonable, Ms. Sherlock also pointedly observed that an increase of 15 percent, from $205 to $235, which is what the firm requested, is “a bit steep.” Indeed.
She further confirmed that attorneys’ travel time is billed at the same hourly rate.
As we reported 6/4/23, the Town’s contract with HREM, which may be terminated at will by the Town, requires the payment of a non-refundable monthly retainer of $3,000, from which all fees for services must be debited first.
Ms. Sherlock confirmed with Town Manager Cliff Ogburn that the retainer monies are “lost,” not carried over, if they are not used. Mr. Ogburn commented that only twice in the past five years has the Town consumed less than $3,000 worth of legal services in a month.
Ann G. Sjoerdsma, 6/13/23
The Southern Shores Beacon 