Despite considerable reluctance by four of its members, the Southern Shores Planning Board unanimously recommended approval Wednesday of an amendment to the Town’s nonconforming lots/recombination ordinance that is exclusively designed to give a new property owner who refused to comply with the existing ordinance an exemption from its operation.
Only Board Chairperson Andy Ward supported Zoning Text Amendment (“ZTA”) 25-01, which adds a tailormade exemption to the recombination mandate in Town Code sec. 36-132, in order to be a “good neighbor” to wealthy investor Melvin L. Garrison III of Fredericksburg, Va.
Mr. Ward, who participated five years ago in “carving out” exemptions from sec. 36-132, also advocated approving ZTA 25-01 in order to avoid litigation and the expenditure of more Town Attorney’s fees than the Town has already paid.
FACTUAL AND LEGAL BACKGROUND
Last August, Mr. Garrison, doing business as Garrison Beach LLC, bought three lots on Dolphin Run that are each smaller than the minimum 20,000 square feet required of lots in the RS-1 single family residential district.
When Deputy Town Manager/Planning Director Wes Haskett issued a formal interpretation of sec. 36-132 stating that Mr. Harrison had to recombine the three lots into one, the nonresident landowner rejected it. Instead, Mr. Harrison hired local attorney Casey Varnell of Sharp, Graham, Baker & Varnell to appeal the interpretation.
Please see our 1/28/25 report for further details.
Louis J. (“Johnny”) Hallow III, a young associate in the Elizabeth City office of Hornthal, Riley, Ellis & Maland, which represents the Town, presided at the Planning Board’s meeting Wednesday and acknowledged that he had spent “weeks” grappling with Code sec. 36-132 and drafting the language of ZTA 25-01 to allow Mr. Harrison to legally disregard the ordinance.
Mr. Varnell stated that he had not had a hand in writing the amendment.
ZTA 25-01 principally addresses sec. 36-132(a)(1), which lists property scenarios that are exempted from the requirement in sec. 36-132(b) that all adjacent nonconforming lots owned by the same owner must be recombined (or combined) into one lot upon sale or development.
As Mr. Ward recalled, the current exemptions were “carved out” for known property owners whom the Town thought were unduly harmed by a 2018 rewrite of the ordinance that sought to prevent property owners from selling 100-foot-wide land tracts consisting of two 50-foot-wide lots as two lots, rather than one.
A trend emerged in 2017 of property owners dividing up such 100-foot-wide parcels, which were located on or near the oceanfront—the first area developed in Southern Shores—and the Town had to catch up with it. At risk was the loss of the low-density environment for which Southern Shores is known and loved.
Before the Town took corrective action, the Planning Board, sitting as the Board of Adjustment, granted side-setback variances to property owners of some newly created 50-foot-wide building lots. They were allowed to reduce the side setback width from 15 feet to 10 feet.
Mr. Garrison’s lots consist of 23 Dolphin Run, a 15,000-square-foot tract of land made up 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. (See photo above.)
As Mr. Haskett summarized the action of ZTA 25-01 in his Staff Report, it 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, therefore, allows Mr. Garrison to build on lots 43 and 44 without having to recombine them. Should he decide to sell the lots, and they are vacant, the ZTA requires him then to recombine them.
You will find ZTA 25-01 at https://www.southernshores-nc.gov/media/11431.
BOARD MEMBER REACTIONS
Neither the confusing and complicated language of the zoning text amendment nor the fact that it does not require Mr. Garrison to recombine lots 43 and 44 sat well with the four reluctant Planning Board members.
Mr. Ward participated in the drafting of the current ordinance, which was finalized in September 2019 after more than a year of discussions in the Planning Board and the Town Council. He told his colleagues Wednesday that former Town Attorney Ben Gallop, the ordinance’s principal author, predicted the Town would have problems with it. We are not sure this is what Mr. Gallop had in mind.
“I just want to send [the ZTA] to the Town Council, I don’t want to approve it,” said Board Member Robert McClendon. “. . . This is more complicated than it might need to be.”
Board Member Jan Collins asked what would happen if they sent the ZTA to the Town Council without taking action on it. Mr. Haskett replied that no action was equivalent to a recommendation, but he did not explain why.
“I’m hamstrung by the language,” Mr. McClendon said later in exploring the ZTA’s meaning and expressing exasperation with it.
He also thought that lots 43 and 44 should be recombined, to create a 15,000-square-foot building site. Mr. Garrison plans to build on that, regardless, he probed, so why not require a recombination? Others agreed.
“This is probably the most complicated ordinance I have read” in the Town Code, said Board Vice-Chairperson Tony DiBernardo. “A layman should be able to pick [an ordinance] up, read it, and understand what it says.”
That is not the case here, Mr. DiBernardo said, emphasizing the point by reading some of the language from sec. 36-132. He received no argument from Mr. Hallow.
Mr. DiBernardo also asked about the “next exemption” request. Isn’t ZTA 25-01 opening the door for other property owners, with two or more adjacent nonconforming lots, to ask for preferential treatment? Mr. Haskett replied that Mr. Garrison’s scenario was unique.
Ed Lawler, who joined the Planning Board in January 2019 during the discussions about a new nonconforming lots/recombination ordinance, posed hypotheticals about what would happen to Mr. Garrison’s property if he built a residence on lots 43 and 44 that later burned down. And suppose Mr. Garrison had removed the flat top on lot 45 after the house’s construction?
The recombination exemption in ZTA 25-01 applies only if there is an “existing single family dwelling” on an adjacent tract of land that is no more than two nonconforming lots.
It also provides that if the exempted lots are sold later as vacant lots, Mr. Harrison loses his exemption and must recombine them.
Indeed, the sellers from whom Mr. Harrison bought the lots were required by Code sec. 36-132(2)(e) to recombine them first, but they did not, and the Town, presumably unaware of the sale, did not enforce the ordinance.
Although Mr. Hallow argued that enforcement by the Town was not realistic, and Mr. Varnell agreed, saying that the buyer (his client) bought at his/her/their own risk, we believe otherwise.
Five years ago, Mr. Haskett identified, with the assistance of the Dare County Tax Dept. and the Tax Mapping Dept., the total number of lots in Southern Shores (3,037) and the number of those lots that are nonconforming because they are less than 20,000 square feet in area (846). Of those 846, according to Mr. Haskett’s data, there were 241 parcels with multiple lots, of which 55 were nonconforming in total land size.
We do not believe it would have been difficult for the Town to have sent out notices to the owners of those 55 properties, two of which were 23 and 27 Dolphin Run, and advised them of the operation of sec. 36-132. Nor do we think it would have been that difficult to monitor those 55 properties on the Multi-Listing Service. Someone would just have had to have done it.
After much discussion, Chairperson Ward made a motion to recommend approving ZTA 25-01 and waited some time before he got an unenthusiastic second from Ms. Collins.
TOWN COUNCIL PUBLIC HEARING
ZTA 25-01 is scheduled for a public hearing before the Town Council at its regular meeting next Tuesday at 5:30 p.m. in the Pitts Center.
You may access the agenda and the packet for the meeting here: https://mccmeetings.blob.core.usgovcloudapi.net/soshoresnc-pubu/MEET-Packet-cc965c7d6ab545919063799e0f400de8.pdf.
We will preview the agenda in a blog post Sunday. Among the items to be discussed is an amendment to the Town Council’s Rules of Procedure to eliminate the requirement that two public-comment periods be held at the Council’s regular meetings.
Based on what we saw and heard at the Planning Board meeting, we have no doubt that the Town Council will pass ZTA 25-01, most likely unanimously.
Mayor Elizabeth Morey has made clear her motivation to “stay out of court,” and enactment of ZTA 25-01 allows the Town to do that. In fact, Mr. Haskett stated in his Staff Report that ZTA 25-01 was drafted in order to “avoid an appeal” by Mr. Garrison to Dare County Superior Court.
We also have seen repeatedly in the past 10 years that the Town Council will not second-guess nor decline to adopt Code language that a Town Attorney has devoted considerable time drafting. It just isn’t done.
We would have preferred a settlement that required Mr. Harrison to recombine lots 43 and 44, but gave him a variance for lot 45 so that it could remain separate. There is precedent for single lots of its size.
We agree with the Planning Board majority that the language of ZTA 25-01 and Town Code sec. 36-132 is dreadful. We said the same thing five years ago. But what bothers us more is that Mr. Harrison apparently will be able to buy a change in the Town law that benefits only him.
By Ann G. Sjoerdsma, The Southern Shores Beacon, 1/31/25
The Southern Shores Beacon 
The Town Council ALWAYS gives in. They don’t have anyone on it that has a backbone to stand up to anyone!
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