10/19/24: DISPUTE: VARIANCE HEARING SCHEDULED MONDAY FOR NEW PROPERTY OWNERS WHOSE SUBDIVISION PLANS WERE DENIED BY TOWN.

The evidentiary hearing you might have seen promoted on a large roadside sign at 75 E. Dogwood Trail, near the Dick White Bridge (see above photo), announces a hearing Monday before the Town Board of Adjustment (BOA) about a requested variance.

When you peruse the voluminous documentation in the Town file for this variance application, however, you quickly discover this is not your garden-variety variance request. In fact, it is unprecedented in Southern Shores.

The homeowners at 75 E. Dogwood Trail are asking for a variance that would allow them to subdivide their 46,500-square-foot property into two lots. We explain below why they believe they are entitled to that variance.

The BOA’s hearing, which is quasi-judicial in nature, will be held Monday in the Pitts Center at 5 p.m. The five-member Town Planning Board will sit as the Town’s BOA. The Planning Board Chairperson—or someone serving in his place, if he must recuse himself for any reason—will conduct the hearing much like a trial in a courtroom, only less formally.

Members of the public may not give their opinions as they may in legislative hearings.   

For information about Monday’s hearing, including the ground rules (“order” of hearing), see https://www.southernshores-nc.gov/bc-pb/page/planning-board-will-meet-october-21-2024.

HOMEOWNERS HAVE ALREADY SUED THE TOWN, 11 OTHERS

The same zoning matter that brings homeowners Anthony Mina and Jennifer Franz before the BOA also induced them to file suit in federal court in August against the Town of Southern Shores, Deputy Town Manager/Planning Director Wes Haskett, and 10 other defendants whom Mr. Mina and Ms. Franz have dubbed the “Dare County Real Estate Scam Defendants.”

The couple—Mr. Mina describes Ms. Franz in the file as his fiancee—are representing themselves before the BOA and in court. When parties represent themselves in court, they are said to proceed “pro se,” a Latin phrase meaning “in one’s own behalf.”

Inasmuch as Mr. Mina, a former Pennsylvania resident who is described in a 2020 opinion by the U.S. Court of Appeals for the Third Circuit as a “prolific pro se litigant,” authored all of the documentation in the Town’s case file, we will refer to the couple collectively as Mr. Mina.

(Most of the documents in the case file are irrelevant, including the 55 pages that consist of the complaint Mr. Mina filed in the Eastern District of the U.S. District Court of North Carolina. The case number is 2:24-CV-00042.)

(For the opinion of the Court of Appeals for the Third Circuit, see https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1479&context=thirdcircuit_2020.)

The nub of Mr. Mina’s dispute with the 12 defendants he names in his complaint and the reason for his variance request concerns the legal circumstances surrounding his and Ms. Franz’s joint purchase of 75 E. Dogwood Trail from its former owner, Linda Lauby. He contends that the Town of Southern Shores illegally amended the Town Zoning Code to prevent their subdivision of the property.  

Dare County records show that Ms. Lauby sold 75 E. Dogwood Trail to the couple on July 5, 2023 for $625,000. A wooden two-story house built in 1970 was on the property then and still is.  

The 46,500-square-foot, rectangular-shaped lot has frontage on East Dogwood Trail on its northern side and abuts a developed adjacent property on its eastern side. The property’s western and southern sides front on canals.   

Mr. Mina claims that he was led to believe by both the Town and the real estate listing agent, James Monroe of Outer Banks Realty Group, that the property possibly could be subdivided such that one lot would be situated behind another lot. The rear lot would abut the southern end of the front lot and not have any public road frontage.

Mr. Mina includes in his variance application a transcript of an email correspondence between Ms. Lauby and Mr. Haskett in which Mr. Haskett writes on April 30, 2021 (not 2023) that “Based on [Mr. Monroe’s] description [of the 75 E. Dogwood Trail property] it sounded possible to subdivide the property but further review would help.”

Indeed, Mr. Monroe notes on the listing document, which is dated Feb. 24, 2023, that the property is “potentially capable of being subdivided.”

After Aug. 3, 2021, however–as we explain below–such a representation would be false.

There is no evidence in the file to establish that Mr. Haskett tentatively approved a subdivision plan by Mr. Mina prior to his purchase of the lot.  

ZONING CHANGE AFTER PROPOSED SUBDIVISION ON HILLCREST

Subsequent to Mr. Haskett’s email exchange with Ms. Lauby, a preliminary subdivision plat for 279 Hillcrest Drive came before the Town Planning Board (May 17, 2021) and the Town Council (June 1, 2021) for approval.

Homeowner Lauren Van Riper sought to subdivide her 100,000+-square-foot lot into two lots, in the same manner as Mr. Mina proposes, with one lot in front of the other, and only the front lot having public-road frontage.

The Planning Board recommended conditional approval of Ms. Van Riper’s plat. The Town Council did the same, advising Ms. Van Riper that, under the Town Code subdivision ordinances then in effect, she would have to create a public-access easement from Hillcrest Drive to the back lot and that this easement would have to have a minimum pavement width of 16 feet and a minimum turnaround area of 20 feet.

She was also advised that, pursuant to the subdivision regulations, the back lot would have to have 30 feet of frontage on that access easement.

We recall the public hearing on Ms. Van Riper’s application very well. We were dismayed by what she proposed and spoke in opposition to it. We have no recollection, however, of a public hearing held on Aug. 3, 2021, the upshot of which was that the Town Council unanimously passed a Town Code Amendment (TCA 21-06), not a Zoning Text Amendment, to require that all lots in a subdivision must front on a public road.

TCA 21-06 eliminated the option of a subdivided lot having frontage on an access easement, instead of a public road, which had been permissible under Town Code sections 36-95 and 30-96(f) before the amendment.

Mr. Mina alleges that the Town failed to give requisite notice to the public of its hearing on TCA 21-06 and, therefore, illegally enacted the zoning ordinance change and violated his due-process rights. (His lawsuit is based on a violation of his constitutional rights.)

We are not going to analyze the merits of his argument. We will say this, however: Immediately after the hearing on Ms. Van Riper’s application, Town Councilman Matt Neal, who is now the Mayor Pro Tem, made a motion that Mr. Haskett work with the Planning Board to amend the language of the Town Code subdivision ordinances to remove the easement option. (See Minutes from the Town Council’s June 1, 2021 meeting, p. 10.)

Mr. Neal’s idea was to write a Zoning Text Amendment—not a Town Code Amendment, which originates with the Town Council—that would be subject to public notice and hearing in the Planning Board and the Town Council.

According to Mr. Haskett’s Staff Report for the Aug. 3, 2021 public hearing on TCA 21-06, Town Staff did draft a new Zoning Text Amendment, ZTA 21-07, to address the road/easement access concerns, and the Planning Board recommended its approval in June. But the ZTA was withdrawn, Mr. Haskett writes, when “further review . . . determined that the ZTA would render existing lots with frontage on an easement nonconforming.”

The further review was done either by the Town Attorney or members of the Town Council, or both. Mr. Haskett does not specify. When Mr. Haskett brought up the zoning change at the Planning Board’s July 2021 meeting, it was in the form of a Town Code Amendment, not a ZTA, so no hearing was ever held before the Board.

The Beacon mentions the Aug. 3, 2021 hearing on TCA 21-06 in a July 29, 2021 blog we wrote in which we previewed the Town Council’s agenda for Aug. 3, 2021. We did not cover the hearing. Instead, we filled August 2021 blog posts with news of Covid, cut-through traffic, the Marketplace proposal, and beach nourishment.

THE LOT-WIDTH “QUAGMIRE”

Mr. Mina also challenges as illegal the Town Council’s enactment on June 6, 2023 of ZTA 23-03, which altered the wording of Town Code sec. 36-202(d)(2) concerning the mandatory minimum width of a lot. He again cites deficient notice for the hearing.

He further states in his variance application that Mr. Haskett “illegally adopted” this ZTA—Mr. Haskett has no power or authority to pass ordinances—and that he “secretly planned without my knowledge to intentionally prevent lot subdivision. . . . All evidence indicates [that] Wes Haskett was helping a real estate scam.”

We are very familiar with what we now call the lot-width “quagmire.” ZTA 23-03 was enacted by the Town Council as a stop-gap measure to bring clarity to an ambiguous area of the Town Code, to wit, how to measure minimum lot width.

ZTA 23-03 replaced confusing language that relied for this measurement upon the “building setback line” from the front of a property. Unfortunately, the new language is rigid. The width of all lots created since June 6, 2023 is now measured from the front lot line at right angles to the rear lot line. In other words, in the RS-1 single family dwelling residential district, all lots created since June 6, 2023 through subdivision or recombination, must be 100 feet wide throughout.

A ZTA designed to replace this definition, and to allow for pie-shaped and other irregularly shaped lots, was tabled by the Town Council in May of this year. The stop-gap remains in force.

Mr. Mina consulted with Mr. Haskett in the months before his July 5, 2023 purchase of 75 E. Dogwood Trail and states in his application his belief that the Town Planning Director deliberately withheld from him “pertinent information” about the soon-to-be-changed lot-width ordinance. Mr. Mina says he relied upon the lot-width ordinance that was in effect before June 6, 2023, in buying the property and planning his proposed subdivision, and Mr. Haskett knew this.

We don’t see Mr. Mina even reaching the issue of lot width because he can’t hurdle the road frontage requirement for a subdivision. TCA 21-06 became law nearly two years before he bought Ms. Lauby’s lot.

Mr. Mina submitted to the Town in July two applications for a subdivision of 75 East Dogwood, and Mr. Haskett denied both.

Mr. Haskett denied what he calls Application 1 in a letter to the homeowners on the grounds that the two proposed lots do not front upon a public road. He denied Application 2 because the two proposed lots do not meet the Town’s lot-width requirement. Mr. Mina did not appeal either of these rulings to the Dare County Superior Court.

At the Town Council’s Oct. 1 meeting, Town Attorney Phillip Hornthal read a statement by Mr. Mina into the record, prefacing it by saying that Mr. Mina was “currently banned from Town property for 30 days.”

Mr. Mina sought in the statement to alert “Town property owners” to the Town actions that he now disputes and described the effect of the subdivision ordinance amendment as “down-zoning.”

It is clear from the case file and Mr. Mina’s statement that he has been hostile toward Town employees.

By Ann G. Sjoerdsma, The Southern Shores Beacon

Revised, 10/20/24