The Town Planning Board is holding a special meeting tomorrow at 3 p.m. to consider a Zoning Text Amendment that would allow a wealthy investor from Virginia to circumvent the Town’s nonconforming lots/recombination ordinance and develop two of three undersized lots he bought on Dolphin Run last August without combining all three into one.
The meeting will be held in the Pitts Center. Zoning Text Amendment 25-01 has already been scheduled for a public hearing before the Town Council at its Feb. 4 regular meeting.
You can live-stream the meeting on the Town of Southern Shores You Tube website.
According to the Staff Report for ZTA 25-01, Deputy Town Manager/Planning Director Wes Haskett and the Town Attorney worked with a local attorney hired by Melvin L. Garrison III of Fredericksburg, Va., to establish “a new exemption” to the mandatory recombination of nonconforming lots, as set forth in Town Code sec. 36-132(a)(1), in order to “avoid an appeal” by Garrison to Dare County Superior Court.
Although Mr. Haskett also writes in his report of enacting ZTA 25-01in order to “modernize the Town Code,” the proposed changes are clearly driven by the threat of litigation.
Rather than enact a preferential exemption to appease an aggrieved property owner, we would like the Town to thoughtfully review the language of the nonconforming lots/recombination ordinance, which was finalized and enacted in haste in 2019, and to consider its practical application since then.
Is the ordinance doing what the Town intended it to do?
It certainly is a torturously written ordinance that will only become more so with the enactment of the proposed language of ZTA 25-01. We would rather see the entirety of Code sec. 36-132 revised and simplified than to see it rendered even more impenetrable.
FACTUAL BACKGROUND
On Aug. 13, 2024, Mr. Garrison purchased 23 Dolphin Run, a 15,000-square-foot tract of land consisting of two 50-foot-wide lots (43 and 44); and 27 Dolphin Run, a 10,500-square-foot, 70-foot-wide lot (45), on which a flat-top home currently sits.
The actual record owner of the properties is Garrison Beach, LLC, which is managed by Mr. Garrison and uses his home address.
Lots are considered “nonconforming” when they do not meet the dimensional requirements in the Southern Shores Town Code of Ordinances. Code sec. 36-202(d) spells out the requirements for the single family residential district, RS-1, in which Dolphin Run is located. The minimum lot size is 20,000 square feet. (This is sec. 36-202(d)(1).)
(The minimum lot width in the RS-1 district used to be 100 feet, but it is unclear now whether that requirement applies to lots created before June 6, 2023. We would need to write another article to explain why. See Town Code sec. 36-202(d)(2).)
As we read the nonconforming lots/recombination ordinance, which was extensively overhauled in 2018-19 by the Planning Board and Town Council, the one seller of the three properties now owned by Garrison should have recombined them before the sales occurred. But this did not happen. We believe that is how the ordinance should operate.
Instead, in response to circumstances not explained by the Staff Report, Mr. Haskett issued a formal interpretation of Section 36-132(a) on Sept. 16, 2024, in which he said that Garrison could not “legally construct a single-family dwelling and customary accessory building upon Lots 43 and 44 without recombining them with Lot 45 prior to development.”
In other words, all three nonconforming lots had to be recombined as one.
Subsection “a” of 36-132 spells out when the sale and development of nonconforming lots owned by the same party may occur without recombination.
Garrison’s local attorney, Casey Varnell, appealed Mr. Haskett’s interpretation, and the parties have been in what Mr. Haskett has described publicly as mediation until now.
In our view, the Town is proposing to make an already confusing and poorly written ordinance even worse in order to give Mr. Harrison, who should have known about the mandatory recombination when he bought the three lots, what he wants: to build a dwelling on nonconforming lots 43 and 44 (23 Dolphin Run) without having to combine any of the three nonconforming lots.
If Mr. Garrison’s lots are exempt from recombination, then presumably he could tear down the flat top and re-develop Lot 45, or sell it.
As Mr. Haskett summarizes its action in his report, ZTA 25-01 would:
“permit the construction of a single-family dwelling and customary accessory building on two or more currently nonconforming adjacent lots as a single development site, if at least one of two or more nonconforming adjacent lots is located adjacent to a single nonconforming lot that is under the same ownership and on which there is located an existing single-family dwelling, and the adjacent improved land is made up of no more than two lots all of which are nonconforming.”
ZTA 25-01 proposes such cumbersome language be added to Code sec. 36-132(a)(1) as an exemption to the recombination mandate, which is already cumbersome enough.
You may view all relevant materials at:
https://www.southernshores-nc.gov/media/11431 (Zoning Text Amendment 25-01)
https://www.southernshores-nc.gov/media/11421 (Staff Report)
https://www.southernshores-nc.gov/media/11426 (Aerial view of the properties from Dare County GIS. Dolphin Run is a side street that connects Ocean Boulevard with Wax Myrtle Trail. It consists of two blocks, which are divided by Duck Road.)
If you have never looked at the Town Code before, we recommend that you do so. You may access it on the Town website, which is https://www. southernshores-nc.gov, in the drop-down menu for “Government.” The Town Code appears at: https://library.municode.com/nc/southern_shores/codes/code_of_ordinances
HISTORIC BACKGROUND
The Town first grappled with rewriting Town Code sec. 36-132 in 2018 after property owners began selling 100-foot-wide lots consisting of two 50-foot-wide lots as two lots, rather than one.
The trend toward splintering such lots, which were located on or near the oceanfront—the first area developed in Southern Shores—started in 2017, and the Town had to catch up with it. At risk was the loss, or at least the degradation, of the low-density environment for which Southern Shores is known and loved.
Among the properties that slipped through the cracks were 103 Ocean Blvd. and 103A Ocean Blvd, which were once a single property with one dwelling; and 155 Ocean Blvd. and 155A Ocean Blvd., which also were one property with one dwelling.
Then-Town Attorney Ben Gallop deemed the then-current version of sec. 36-132 inadequate to defeat this trend, so the Town embarked on a rewrite of the Code section, which took shape in a series of meetings over months, all of which we attended. The last of the changes to sec. 36-132 were not made until September 2019.
Mr. Gallop authored the revised ordinance.
In the process, the Town reviewed what it considered the equities of the circumstances of identified property owners and made very deliberate exemptions to the recombination mandate.
Hence, you have an exemption from recombination of a lot that is “one of three or less [sic] adjacent nonconforming lots under the ownership of related siblings on September 6, 2019.”
These siblings were known to the Planning Board and the Town Council.
You also have a widow separately selling the three vacant nonconforming lots she owned on Porpoise Run to three different buyers in July 2018, as 22, 24, and 26 Porpoise Run. The smaller of the three lots—22 and 24 Porpoise Run—are only 7500 square feet.
We have no problem with the Town protecting property owners for a fair and defensible reason: Before the rewrite of sec. 36-132, property owners justifiably relied upon being able to sell adjacent nonconforming lots individually—and hence, for more money—not as a single whole.
But rather than awarding preferential treatment—as it proposes to do again—we would like the Town to develop fair and reasonable principles to govern and limit the nonconforming lots/recombination ordinance.
Is the ordinance working as intended? After five years of operation, Mr. Haskett should know.
We also believe the ordinance should be rewritten so that it is less confusing, more comprehensive, and friendlier to all property owners.
We are aware, for example, that Mr. Haskett has interpreted a subsection of the ordinance to require longtime homeowners to recombine the lots, on which their beach homes were built decades ago, before he will approve a building permit for a new back deck or a new staircase.
This is an expensive prerequisite: Recombinations require surveys, which cost up to $1500 today. Then fees are paid on top of that cost. (See Code sec. 36-132(a)(2)(c).)
Government action taken only in order to avoid litigation by an aggrieved party is poor government, in our view. It is a disservice to the community, including the aggrieved party, and a discredit to the Town. When will the next exemption occur?
And if all it takes for the Town to back down from defending its ordinance is the threat of litigation, isn’t it favoring the wealthy over those who cannot afford to pay $400 an hour for an attorney?
We encourage you to read Town Code sec. 36-132 and ZTA 25-01 and to participate in the Planning Board’s discussion about the nonconforming lots/recombination ordinance. The ordinance is fundamental to the preservation of Southern Shores as a low-density housing town, but, as currently written, it is problematic to read and interpret and is conditioned on exemptions.
By Ann G. Sjoerdsma, The Southern Shores Beacon, 1/28/25
The Southern Shores Beacon 