By a 4-1 vote, the Southern Shores Planning Board recommended approval March 18 of a zoning change that would require all commercial property owners to apply for a lot disturbance-stormwater management (“LDSM”) permit before removing trees that are at least six inches in diameter and stand at least 4 ½ feet tall from the setback yards on any unimproved lot.
Zoning Text Amendment 24-02 adds this permit requirement to Town Code section 36-171 and makes removal of such trees without an SDSM permit an offense punishable by civil penalty, if the offender does not abate the violation within 30 days after receiving a warning citation. (See The Beacon, 4/3/24, for background.)
The Town Council will hold a public hearing on ZTA 24-02 at its next regular meeting, which is Tuesday, 5:30 p.m. in the Pitts Center. You will find the text of the amendment here:
What is the point of this zoning change, you may ask?
Originally, it appeared to be a corrective measure designed to address stormwater runoff caused by the removal of trees on a lot being prepared for development—or perhaps even an anti-clear-cutting measure for the same purpose.
Simply put, trees play a crucial role in stormwater management. Their leaves and bark intercept rain, and their roots absorb water.
During the Board’s discussion, Regular Member Ed Lawler spoke about the importance of the “stormwater function” trees play “below ground,” and characterized trees as “infrastructure” that “must be protected.”
The zoning text amendment approved by the Planning Board, however, covers only those trees on commercial property that are located within “a front, side or rear yard (setback)” and may no longer contribute much, if at all, to stormwater management.
What happened to the inclusion of residential property that was in the original wording of the ZTA?
Board Chairperson Andy Ward repeatedly asked Deputy Town Manager/Planning Director Wes Haskett this question, never being satisfied with the response he gave.
Because he was “not good to go” with exempting residential property owners from obtaining an LDSM permit for tree removal, Mr. Ward cast the sole dissenting vote against ZTA 24-02.
THE HISTORY OF ZTA 24-02
When it was first drafted, ZTA 24-02 was part of the lengthy, wide-ranging ZTA 24-01, which the Town Council approved, 4-0, after a public hearing March 12, with a number of revisions. (Councilman Mark Batenic was absent.)
The original ZTA applied the LDSM permit requirement “in all town zoning districts” and covered all trees measuring at least six inches in diameter and 4 ½ feet in height anywhere on an unimproved lot, not just such larger, older trees in the setback yards.
(See The Beacon, 2/18, 2/23, and 3/16/24, for background on ZTA 24-01.)
Mr. Haskett announced at the Planning Board’s February meeting that “the Town” was withdrawing the earlier version and redrafting it in a separate zoning text amendment, which became ZTA 24-02. He gave no reason for the revision.
In response to Mr. Ward’s queries at the March 18 meeting, Mr. Haskett said that “we” decided it was “quite a burden to have a surveyor cover all the trees” on a lot, but he did not explain the logical distinction between commercial and residential property and the decision to limit the permit requirement to what he called the “buffer” areas of a lot.
He also did not mention that the Town Code already requires protective buffers and 50-foot setbacks between commercial property and adjacent residential property.
We wonder, when “we” revised the ZTA, were “we” aware that surveyors would be covering trees in 50-foot setbacks, front, side, and rear?
Town Code Section 36-207, which is about the commercial district, already requires 20-foot buffers of “dense vegetative planting or natural vegetation” between a mixed-used development or commercial use, on the one hand, and abutting residential uses, on the other.
The section also specifies that the buffer area shall consist of a minimum of “two rows of planting material placed 10 feet on center that are a minimum of five feet in height when installed that expect to achieve a height of eight feet within three years.”
This language was altered by the recently passed ZTA 24-01 to replace “zone” and “use” with “district” and to extend buffer protection to planned unit developments, such as the Southern Shores Landing.
Section 36-207 of the Code also already requires that a 50-foot setback exist between a mixed-use or commercial development and an abutting residential district. ZTA 24-01 extended this setback protection to planned unit developments, as well.
In light of the Code-mandated 20-foot buffers of “dense vegetative planting or natural vegetation,” AND the 50-foot setbacks, ZTA 24-02 would seem to be superfluous.
Isn’t the Town enforcing the current buffer requirements imposed on commercial property owners? We would certainly assume so.
LOT DISTURBANCE AND STORMWATER MANAGEMENT PERMITS
Town Code sec. 36-171, which ZTA 24-02 augments, is titled “Lot disturbance and stormwater management” and already provides that, in all zoning districts, “no grading, filling, or other alteration of the topography or elevation of any unimproved lot, or demolition and clearing of improved property, nor any manmade change to any improved real estate resulting in the discharge of stormwater onto adjacent property and requiring a building permit” shall be undertaken without a LDSM permit.
It then spells out what is required in an LDSM permit application and how the Zoning Administrator (Mr. Haskett) should review and evaluate an application and the authority he has in issuing a permit.
All ZTA 24-02 does is add to these provisions that, “in the general commercial district,” no tree removal may occur, as discussed. If these five words were deleted from the ZTA, then the tree removal permit requirement would apply to all zoning districts.
Mr. Haskett actually pointed this out during the March 18 meeting, but he was not emphatic, even though Mr. Ward said several times that he wanted to see the residential districts covered by the ZTA, and a majority of the Board appeared to agree with him.
The Board lost focus during its discussion by venturing into the question of clear-cutting in the residential districts and by taking up factual scenarios that were not raised by ZTA 24-02.
No one made a motion to amend ZTA 24-02 by deleting those five words and, thereby, including residential “infrastructure.”
Board members seemed to believe either that they could not recommend the ZTA with a proposed amendment—they certainly can; they have done this many times—or that if they were to do that, they would deprive the public of “notice.”
We find this hesitation perplexing.
PUBLIC ‘NOTICE’ REQUIRED
Certainly, when the Planning Board takes up a zoning text amendment, it must hold a public meeting with standard notice, but this is not the same as holding a public hearing on a proposed ZTA. Only the Town Council holds public hearings on proposed legislative changes; the Planning Board’s function is to review the measure and advise the Council.
(See Town Code sec. 36-415(a); N.C. General Statutes 160D-301.)
The Planning Board’s March 18 meeting was noticed by the Town, and the public could access ZTA 24-02 on the Town website. That was enough. The Planning Board could have recommended the ZTA with any amendment it voted to include.
As we noted on 4/3/24, after recommending approval of ZTA 24-02, the Board, by consensus, recommended to the Town Council that it authorize the draft of another ZTA that would include residential districts. This was Mr. Haskett’s suggestion.
Only Mr. Ward seemed disturbed by the delay, if indeed the Council agrees with the Board, saying that he did not want the tree-removal permit requirement for residential property owners, “just [to] die on the vine.”
UPCOMING PLANNING BOARD BUSINESS
In their comments at the end of the March 18 meeting, First Alternate Michael Zehner, who substituted for absent Regular Member Jan Collins, asked that affordable housing be added to the Planning Board’s May meeting agenda. He suggested that the Board look at the possibilities in Southern Shores for creating housing that would be affordable for working people.
Both Chairperson Ward and Vice-Chairperson Tony DiBernardo stressed that the Board needs to get back to drafting commercial design standards, and Mr. Ward said he would like to discuss the possible regulation of accessory dwelling units. At previous meetings, the Board has considered the imposition of distance requirements on ADUs, such that they would have to be built in close proximity to the primary residence on a lot.
The next Planning Board meeting will be April 15, 5 p.m., in the Pitts Center.
**We will publish a preview of the Town Council meeting agenda before Tuesday.
For the Council’s agenda and meeting packet, see https://mccmeetings.blob.core.usgovcloudapi.net/soshoresnc-pubu/MEET-Packet-38cd44eae64343eba573eed122bd2f69.pdf.
By Ann G. Sjoerdsma, 4/5/24
The Southern Shores Beacon 