1/17/19: HIGH-OCCUPANCY ‘LARGE’ HOUSES: SUGGESTIONS FOR TOWN CODE CHANGES THAT THE PLANNING BOARD HAS NOT CONSIDERED; It Must Take Comprehensive Action

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Early in the Town Planning Board’s special meeting Jan. 7, Board member David Neal reduced its analysis for controlling high-occupancy “large” houses to two basic options: 1) restricting septic-use capacity per home; and 2) restricting occupancy by the nature of the home’s use, in particular, by its use as a vacation rental.

During the ensuing discussion of these two options, several members of the Planning Board brought up a third option: that of reducing the maximum house size in town from 6,000 square feet to 5,000 square feet.

The idea of reducing the maximum house size had been advanced by members of the public at the Town Council’s Nov. 7, 2018, special meeting on large houses, along with other good suggestions. A majority of three Town Council members did not choose to consider any of these suggestions, however. They exclusively endorsed Councilman Jim Conners’s motion, prepared by Town Attorney Ben Gallop, to create an ocean overlay district and to regulate properties within this district by setbacks, landscaping buffers, building height, and other permissible curbs. (See The Beacon, 11/8/18.)

Councilman Gary McDonald made a motion at the Nov. 7 meeting to have Town staff prepare an alternate zoning text amendment (ZTA) that included redefining the concept of living space for determining house size and restricting the number of parking spaces and the septic capacity per home. Only Councilman Fred Newberry joined Mr. McDonald in support of this motion.

The majority, who defeated it, erred.

The Beacon believed then, and still believes, that an alternative ZTA, with a different approach to tackling the high-occupancy control problem, would have been a great help, not a hindrance, to the Town’s problem-solving process. It would have allowed for the expansion of control options available now to the Town, without having to change districting, as Mr. Conners’s overlay “concept” proposed doing. (The Planning Board summarily rejected the overlay concept. See The Beacon, 1/3/19.)

A second ZTA also would have given the Planning Board a better sense of the big picture before it. Mistakes were made by both the Planning Board and the Town Council three years ago, when they hurriedly considered zoning text amendments prepared by Mr. Gallop to address the high-occupancy housing problem then. These mistakes must be corrected now.

Planning Board Chairperson Glenn Wyder’s death Nov. 25 has left a huge void on the Board at an unusually critical time in the town’s history, a time that Mr. Neal, who is a longtime Southern Shores builder and homeowner, poignantly has called a “crossroads.”

The Beacon recognizes that the Board members have been operating under difficult circumstances and empathizes with them in their decision-making task. They are all conscientious people who have the Town’s best interests at heart.

The Beacon also believes that, in order to serve responsibly, all Planning Board members must know the duties and powers that they have under the Town Code and be willing to exercise the latter in furtherance of the former.

The Planning Board is an independent planning agency that has broad authority to ensure a “coordinated and harmonious development” of Southern Shores. Town Code sec. 24-27 gives it considerable powers and duties. The Board’s actions and recommendations are fundamental to an orderly development of the town.

If it chooses, the Planning Board can commission studies and task forces. It can be out front on zoning issues confronting the town, acting in anticipation, rather than always in remediation. And it need not defer to any Town official or adviser.

The Beacon encourages Board members to think about all of the elements that currently exist in the Town Code that have a bearing the construction of single-family dwellings, as Councilman McDonald tried to do in the motion he proposed.

In coming up with measures to control “large” houses, Planning Board members should strive to be as comprehensive in their analysis as the Town Code is in defining their powers and duties.

The Beacon commends to their attention the following Town Code provisions and proposed changes:

Analyzing “Enclosed Living Space”

The maximum size of a single-family dwelling in Southern Shores is no more than 6,000 square feet of “enclosed living space.”

Town Code sec. 36-57 defines such living space as “enclosed conditioned areas within a structure that are designed or constructed for human habitation.” This means that any un-conditioned storage rooms or unconditioned space—no heating or air-conditioning—does not count toward the maximum-size limit, even though a homeowner may convert such space later to a conditioned room, such as another bedroom.

The Code definition of living space leaves a loophole, which SAGA Construction & Development exploited in its design of the “mini-hotel” it is building at 98 Ocean Blvd. SAGA excluded from its living-space calculation a 124-square-foot unconditioned room on the ground floor. If it had been compelled to calculate “total floor area,” which is the standard applied in the N.C. Coastal Area Management Act, then this storage space would have been included in the structure’s size, and it would have exceeded the 6,000 square-foot limit.

This is an important distinction that the Planning Board should know and consider changing.

Changing Minimum Off-Street Parking Requirements

In January 2016, when the Town Council enacted the maximum house size restriction, it eliminated the maximum 14-person septic capacity of single-family dwellings, but it did not change the Code-specified minimum parking requirements, which are based on a dwelling’s septic capacity. This was a huge oversight. It needs to be corrected now.

The unfortunate truth is that the Town Council and the Town Attorney are directly responsible for the 17 parking spaces that SAGA is proposing to construct with its 12-bedroom mega-structures.

The Town Code currently requires a minimum of 17 parking spaces for a “single-family dwelling” with a 24-person septic capacity.

Here’s how the minimum parking for a dwelling is calculated: Town Code section 36-163(3)(a)(1) specifies that each residential dwelling unit with up to an eight-person septic capacity must have three parking spaces. Beyond these three, the Code says there must be one additional space for each additional two persons of septic capacity in excess of an eight-person septic capacity and up to a 12-person septic capacity. Over a 12-person septic capacity, the Code requires one additional space for each person.

If you do the math for a dwelling with a septic capacity of 24 persons, you get 3 + 2 + 12 = 17.

This formula for calculating minimum parking requirements must be changed, and it is within the authority of the Planning Board to recommend to the Town Council a different calculation.

Redefining a “Single-Family Dwelling”

The Beacon has previously addressed the Town Code definition of a single-family dwelling, which turns on the definition of “family.” (See The Beacon, 12/31/18.) The Town Council changed this definition in January 2016 when it enacted the maximum dwelling size restriction of 6,000 square feet. It made a mistake.

The Planning Board must address this definition now, not later. SAGA used this definition to mischaracterize its mini-hotel structures as single-family dwellings. Other developers can do the same.

Town Code sec. 36-57 defines a “dwelling, single-family” as “a detached building designed for or occupied exclusively by one family.”

“Family” is defined in this same section as “one or more persons occupying a single-family dwelling unit, provided that unless all members are related by blood or marriage or that the dwelling unit is being used as a vacation rental under the North Carolina Vacation Rental Act (N.C.G.S. Chap. 42A), then no such family shall contain more than five persons.”

The italicized reference to the N.C. Vacation Rental Act was inserted into the zoning text amendment on maximum house size by Mr. Gallop, who said at the Jan. 7 Planning Board meeting that I have a “misconception” about the intent of the language.

Regardless of what Mr. Gallop’s intent may have been, the effect of the change has been damaging.

The new language is misleading and must be deleted, and the Planning Board has the authority to direct this change.

Last October, the Southern Shores Civic Assn. objected to both of SAGA’s proposed mini-hotels by claiming that they are not “single-family dwellings,” as the Town Code defines such residences. When The Beacon asked Town Permit Officer Dabni Shelton why the SSCA’s opposition was not sufficient, she said that SAGA’s structures were covered by the Vacation Rental Act., which effectively excepted them from the Town’s single-family dwelling requirement.

But the Vacation Rental Act says nothing about the definition of a single-family dwelling. It pertains to leases, the duties/obligations/rights of landlords, tenants, and real estate brokers, eviction, evacuation, and the like. The N.C. General Assembly passed it to regulate “the competing interests of landlords, real estate brokers, and tenants.”

The Planning Board needs to recommend a new definition of family that does not refer to the Vacation Rental Act. The effect of the January 2016 amendment has been to allow residential structures that are not single-family dwellings to be built in the single-family dwelling residential districts, as long as they are vacation rentals. This is just plain wrong.

Regulating House Size on Nonconforming lots

The Beacon also believes that the Planning Board must specifically address maximum house sizes for single-family dwellings that are built on lots that are smaller than the mandatory minimum size of 20,000 square feet. The Town Code is silent on this issue. It is currently possible for a property owner to build a 6,000-square-foot home on a smaller “non-conforming” lot—such as a 50-foot-wide lot—provided the 30-percent lot-coverage limit is not exceeded.

The Beacon has suggested that the following language be added to all of the zoning ordinances that address dwelling size in the residential districts:

“Single-family dwellings built on lots that are 20,000 square feet or larger shall not exceed 6,000 square feet of enclosed living space [or, preferably, total floor area]. Single-family dwellings built on lots that are between 15,000 and 19,999 square feet shall not exceed 4,000 square feet of enclosed living space. Single-family dwellings built on lots that are between 10,000 and 14,999 square feet shall not exceed 3,500 square feet of enclosed living space. Single-family dwellings built on lots that are 9,999 square feet or smaller shall not exceed 3,000 square feet of enclosed living space.” 

In the interest of preserving the low-density character of development in Southern Shores, the Planning Board must limit maximum house size on smaller nonconforming lots. This is an oversight that it must address.

Putting Teeth into Enforcement

In discussing the septic-capacity and house-use options for restricting high-occupancy houses in Southern Shores, Planning Board members considered how enforcement of such options would occur. According to Deputy Town Manager/Planning Director Wes Haskett, enforcement of zoning restrictions and requirements is generally “complaint-driven.” But it need not be that way.

The Planning Board has the authority to recommend changes in the methods of enforcement. It can even suggest penalties for zoning violations. This is something that Mr. Gallop could assist the Board with doing. Although the ultimate decision-maker on enforcement would be the Town Council, the Planning Board can give it much-needed direction.

If the Board decides to recommend a ZTA that limits the occupancy in “vacation cottages” to no more than 14 overnight occupants, how will this occupancy limit be enforced—other than through community complaints? A door-to-door police check is neither feasible nor desirable. Where is a likely point of enforcement to exist? In rental agents’ offices? With online booking agents, such as VRBO.com or airbnb.com?

The Beacon encourages the Planning Board to get past its collective “complaint-driven” shrug—oh, well, what can we do?—and to engage in a discussion about what it can do to enforce the Code and prevent zoning violations.

Comprehensive analysis. That’s what Southern Shores needs from its Planning Board now. The Beacon is confident that its members can deliver.

Ann G. Sjoerdsma, 1/17/19

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1/15/19: MAYOR TO MEET WITH SENATOR STEINBURG IN RALEIGH ABOUT LIFTING BEDROOM RESTRICTION; SSCA Discusses Flag Pole at Triangle Park

Mayor Tom Bennett announced at last night’s Southern Shores Civic Assn. meeting that he has an appointment with N.C. Senator Bob Steinburg on Jan. 29 to discuss amending state law to permit Southern Shores to regulate house occupancy by the number of bedrooms.

The Mayor said he expects to be accompanied to the Raleigh meeting by local home builders and a representative from the Town of Duck. Both Southern Shores and Duck are seeking an exemption from a restriction in N.C. General Statutes (NCGS) sec. 160A-381 that denies them the authority to limit bedrooms in homes.

Senator Steinburg was a member of the N.C. House of Representatives in 2015 when the N.C. General Assembly passed Senate Bill 25, which amended NCGS 160A-381 by substantially reducing the power of towns and other municipalities to regulate “building design elements” and “aesthetics” of housing, including the number and type of rooms.

Mr. Steinburg was elected last November to represent the first district of the N.C. Senate, which includes Dare County.

First-term Representative Bobby Hanig represents the sixth district in the N.C. House, which includes Dare County. Both Senator Steinburg and Representative Hanig are Republicans.

The Southern Shores Town Council unanimously approved at its Jan. 8 meeting a resolution requesting that the General Assembly allow Southern Shores to regulate density and occupancy in its residential districts by setting a maximum number of bedrooms within one- and two-family dwellings. (Resolution #2019-01-01.)

The resolution, which Mayor Bennett proposed, seeks the N.C. legislature’s consideration and passage of a bill that would permit the Town of Southern Shores to 1) limit the number of bedrooms in such dwellings, 2) by no fewer than seven. (See The Beacon’s blog, 1/9/19.)

The Beacon will follow up this announcement at a date closer to the Jan. 29 meeting.

FIRE STATION DEMOLITION: During his report to the SSCA membership, the Mayor confirmed SSVFD Fire Chief Ed Limbacher’s report to the Town Council last week that demolition of the SSVFD fire station at Pintail Trail and South Dogwood Trail will begin next Monday. Make your plans now to avoid South Dogwood Trail for at least a week or longer while the demolition takes place.

According to Chief Limbacher, the SSVFD is now operating out of its temporary facility behind the Kitty Hawk Elementary School.

SSCA NEWS: New Flag Pole, Open Positions on 2019-20 Board

Among the news reported last night by members of the SSCA Board of Directors were the following items:

*The SSCA plans to install a three-flag flag pole at Triangle Park, which is the SSCA’s parking-lot-and-park property at the Ocean Boulevard-Duck Road split. Properties Director Joel Newton said he is working with Town Councilman Jim Conners, the owner of Laughing Gull Design Studio, to design the flag pole, which “will be lit.” Mr. Newton presented a full-color diagram showing that the lighted flag pole will be located in the southwest corner of the park, near Duck Road. In response to an inquiry from a member of the audience, Mr. Newton said he would arrange to have the diagram available online.

*The SSCA is currently interviewing people for two open positions on its Architectural Review Board, according to Bylaw/Long-Range Planning/ARB Director Rod McCaughey. After the ARB committee completes its interviews, Mr. McCaughey said, it will make position recommendations to the SSCA Board.

*The SSCA is still seeking volunteers for two 2019-20 Board of Directors positions, one is for treasurer, the other is an at-large seat. You may contact the SSCA at ssca@obxbeach.net or 261-8617.

Ann G. Sjoerdsma, 1/15/19

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1/9/119: ED LAWLER NAMED TO PLANNING BOARD; TOWN COUNCIL PASSES RESOLUTION SEEKING ABILITY TO LIMIT BEDROOMS (And a Little More About Monday Night)

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The Southern Shores Town Council voted 4-1 last night during its regular monthly meeting to appoint engineering consultant and Chicahauk resident Ed Lawler to fill the late Glenn Wyder’s unexpired three-year term on the Town Planning Board. Mr. Wyder, who was chairperson of the Planning Board, started his term on July 1, 2018.

Mayor Tom Bennett expressed his appreciation to all of the Planning Board applicants, who also included Tony DiBernardo and Patrick Regan, and said he was proud to receive so many applications for the volunteer position.

The Council neither discussed nor took votes on Mr. DiBernardo’s and Mr. Regan’s applications, which remain on file, unless withdrawn by the applicant. Councilman Gary McDonald nominated Mr. Lawler, and Councilman Chris Nason seconded the nomination. Councilman Jim Conners cast the sole dissenting vote.

Last night’s meeting agenda was unusually light. In other noteworthy action, the Town Council unanimously approved a resolution asking the N.C. General Assembly to allow the Town of Southern Shores to regulate density and occupancy in its residential districts by setting a maximum number of bedrooms within one- and two-family dwellings.

The resolution, proposed by Mayor Bennett, requests the State legislature’s consideration and passage of a bill that would amend N.C. General Statutes sec. 160A-381 so as to permit the Town to 1) limit the number of bedrooms in homes, but in no case, 2) fewer than seven. (Resolution #2019-01-01.)

Mayor Bennett has sought to make contact with several legislators viewed as influential to furthering the Town’s effort. Council members agreed that the resolution would be sent first to the local legislative delegation, whose assistance would be critical in convincing a majority of both the N.C. House of Representatives and the N.C. Senate to vote to restore to the Town the authority it had to regulate the number of bedrooms before the General Assembly passed Senate Bill 25 (2015 N.C. Sess. Law 86) in June 2015.

S.B. 25, which was signed into law by former N.C. Governor Pat McCrory, substantially reduced the power of towns and other municipalities to regulate “building design elements” and aesthetics of housing, including the number and type of rooms.

The 2019 N.C. General Assembly session begins today.

Mr. Lawler will take his place on the Planning Board on Jan. 22, when the Board next meets. At that time, the Board will hold an election for chairperson. In the event that current Vice-Chairperson Elizabeth Morey is elected to the position, a new vice-chairperson also will be elected.

The new Planning Board appointee is a semi-retired engineering consultant with experience in house design and construction. He has lived in Chicahauk, in a house he designed, for 28 years. In a telephone interview he had with The Beacon Monday, Mr. Lawler said he has always “paid attention” to the environment and water quality and is a proponent of “slow growth” who does not favor accommodating “cluster-use houses.”

Mr. Lawler lived in Corolla from 1977-87 in a house he built himself and moved to Southern Shores after the northern beaches began to “deteriorate quickly,” he said. He referred to Southern Shores as “a place for family” and said he would seek to preserve its “single-family character.”

Mr. Lawler holds a bachelor’s degree in biology and a master’s degree in marine science. He has extensive experience with water- and wastewater-treatment projects. He is also on the Chicahauk Property Owners Assn., serving as its treasurer.

PLANNING BOARD’S ACTION MONDAY ON ‘HIGH-OCCUPANCY’ HOUSES

The Beacon is aware that the actions taken Monday night by the Town Planning Board at the conclusion of its special meeting on “large” houses have confused people. One reader of The Beacon blog posted Tuesday about the zoning-text amendments that a majority of the Planning Board directed the Town Attorney and Town staff to draft asked: “So what does that mean?”

In a reply, The Beacon attempted to distill the Board’s actions to their essence, but also acknowledged the confusion surrounding them. (See Jan. 8 comment.)

Part of the problem was that a majority of the Planning Board rallied around a concept for controlling occupancy and language for implementing that concept that Town Attorney Ben Gallop had just emailed to Planning Director Wes Haskett around 10 a.m. Monday, Mr. Haskett said. This new concept and language—which actually dated back to November correspondence that Mr. Gallop had with Professor David Owens—took everyone by surprise. No one really had time to digest and analyze either.

“It was a very complicated Planning Board meeting to follow,” Councilman Conners told Ms. Morey during her report last night to the Town Council.

Mr. Conners, who was the only Council member in attendance at the Planning Board meeting, indicated that, although he was opposed to the septic-use capacity “option” for limiting occupancy in single-family dwellings, he was “now on board” with it.

(Mayor Bennett also attended the Planning Board special meeting.)

Although Planning Board member Andy Ward did not get a majority to approve the motion he made Monday to ask the Town Attorney and Town staff to prepare a zoning text amendment that would control high-occupancy dwellings and population density by limiting septic-use capacity, that option is still a viable one. The Planning Board has the authority under the Town Code only to make recommendations to the Town Council. It is the Town Council that creates new law by approving zoning text amendments. Members of the Town Council also may introduce ZTAs, if they wish.

The Beacon will have more to say about the actions taken by the Planning Board Monday night, as discussions ensue.

Suffice it to say that, currently, the Planning Board has taken a position 1) in favor of distinguishing single-family dwellings by their use and limiting the maximum overnight occupancy of those dwellings that are used as “vacation cottages” to 14 people; and 2) in support of reducing the maximum house size in town from 6,000 square feet to 5,000 square feet.

The overnight occupancy limit based on the dwelling’s use and the reduction in maximum house size are two separate issues that may well be (actually, should be) treated as such in separate zoning text amendments. But The Beacon is not going to make any predictions. The outcome of the Planning Board’s Monday night meeting proves that anything can happen.

(BTW, if you’re wondering about the construction work on East Dogwood Trail, near Hickory Trail, it has to do with Dominion Energy’s “load-balancing project” in town, which started last August and is halfway done, according to Project Manager Lucian Gregory. The utility company is installing underground cables. The project will improve electric service to an area around Tall Pine Lane, Yaupon Trail, Sassafras Lane, and South Dogwood Trail. If you have any questions, please call Town Hall.)

Ann G. Sjoerdsma, 1/9/19

1/8/19: CONTROLLING LARGE HOUSES: PLANNING BOARD SURPRISES WITH SUPPORT OF 5,000-SQUARE-FOOT HOUSE LIMIT, MAX. ‘VACATION-COTTAGE’ NIGHT OCCUPANCY OF 14, REJECTS SEPTIC-USE LIMIT; Town Council Meets Today at 5:30 p.m., Will Appoint New Planning Board Member

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The building site at 98 Ocean Blvd., as it appeared yesterday morning from across the street.

In a surprise move last night, the Town Planning Board voted, 3-2, to include a 5,000-square-foot house-size restriction in one of two “high-occupancy limit” zoning text amendments that it directed Town staff to prepare for its consideration.

Both ZTAs requested by the Board were based on new language emailed to Board members yesterday by Planning Director Wes Haskett, after he received the language in a 10 a.m. email from Town Attorney Ben Gallop. The ZTA language was then posted on the Town website, according to Mr. Haskett, who responded to an email from The Beacon this morning.

Each ZTA requested by the Planning Board would control population density in Southern Shores’ RS-1 and R-1 residential districts by limiting overnight occupancy in “vacation cottages” to 14 people or fewer. A “vacation cottage” would represent a new “permitted use” in these districts.

The Board also rejected, by a 2-3 vote, a motion by member Andy Ward to propose a ZTA that would have controlled high-occupancy dwellings and population density by limiting septic-use capacity to “no more than 14 overnight occupants.”

Mr. Ward, who advocated strongly for a septic-use limit three years ago when the Town Council enacted the 6,000-square-foot house-size limit instead, appeared to be shocked by the new ZTA language, which was attributed to Professor David M. Owens of the University of North Carolina School of Government. Professor Owens is Mr. Ward’s first cousin.

Planning Board Vice-Chairperson Elizabeth Morey, who has been conducting the Board’s meetings since Chairperson Glenn Wyder’s sudden death Nov. 25, is expected to report the Board’s progress to the Town Council tonight during its regular monthly meeting. The Council meets at 5:30 p.m. in the Pitts Center.

According to the Town Council’s agenda, it will appoint someone to fill Mr. Wyder’s unexpired three-year term, which started July 1, 2018. This full member will be on the Planning Board when the two ZTAs authorized last night are taken up by the Board for possible recommendation to the Town Council.

Three Southern Shores homeowners have applied for the Board vacancy. They are Ed Lawler, a semi-retired engineering consultant with experience in house design and construction who has lived in Chicahauk for 28 years; Anthony DiBernardo, a retired parole hearing examiner who has been active in environmental preservation in Southern Shores since he moved here in 2005 and served three years as chairman of the SSCA’s Architectural Review Board; and Patrick Regan, a retired food-industry manager who is involved with the Beach Food Pantry and Caring Hands, a faith-based outreach program affiliated with the Duck United Methodist Church. (See below for more about their qualifications.)

Supporting materials for the meeting, including the Planning Board applications are available here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2019-01-08.pdf.

You may access the Town Council’s agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2019-01-08.pdf.

SURPRISE TALK ABOUT HOUSE SIZE, NEW ZTA LANGUAGE

Last night’s special meeting of the Planning Board picked up where the Jan. 2 special meeting, which recessed because of a power outage in the Pitts Center, left off.

There was considerable public comment, presented formally from the lectern and informally from the audience, during the two-hour session. Ms. Morey allowed a free-flowing, but controlled interactive and inclusive meeting. Anyone who wished to speak was given an opportunity to do so.

In addition to Ms. Morey and Mr. Ward, Planning Board members David Neal and Joe McGraw, both of whom are builders, participated. Board alternate Michael Basilone, a Kitty Hawk firefighter who lives in Southern Shores, assumed the vacant seat, as he had on Jan. 2.

Mr. Neal sought to frame the Planning Board’s deliberations by summarizing the options for controlling high-occupancy houses as just two: 1) to limit by septic-use capacity; or 2) to limit by “use.”

“We are trying to put a cap on the number of people who can be in a vacation rental,” he said, after noting that the Town is prohibited by state law from limiting occupancy by the number of bedrooms and has already set a maximum house size.

Ms. Morey corrected Mr. Neal by saying that the Board was not capping the number of people in a vacation rental, but rather “the number of occupants in a single-family dwelling.”

When the reserved Mr. McGraw, who has a decades-long history with Southern Shores, spoke up about reducing maximum house size in town to 5,000 square feet, an idea that The Beacon knows has support among town citizens, including me, I was frankly stunned. I thought that a change in the maximum house size, which was suggested at the Town Council’s Nov. 7 special meeting, lacked support on the Planning Board.

“I feel like the 6,000 square-foot limit opened up the door for 98 Ocean Blvd.,” Mr. McGraw said, referring to the 12-bedroom, 17-parking-space mega-house being built by SAGA now on the oceanfront.

Mr. Basilone agreed, expressing support for the high-occupancy/use limit, but saying, “I also like what Joe said about changing the square footage of houses.”

Ms. Morey joined them, saying, “I like the idea of 5,000 square feet, too.”

“Adamantly opposed” to reducing the maximum house size, Mr. Ward argued in favor of restricting occupancy in single-family homes by limiting septic-use capacity to 14 people. His motion to direct Town staff to prepare a zoning text amendment that would limit septic-use capacity for single-family dwellings to 14 persons failed, 2-3, however, after discussion about the risk of liability involved in this option and the ways that property owners could get around it. Only Ms. Morey joined Mr. Ward in approving the motion.

See Mr. Ward’s option at: https://www.southernshores-nc.gov/special-planning-board-meeting-recessed-january-7-2019/1-7-19-occupancy-limt-zta-language/

NEW LANGUAGE FROM PROFESSOR OWENS, WRITTEN IN NOVEMBER

Mr. Neal threw his support behind the new draft ZTA language that, Mr. Haskett told The Beacon today, Mr. Gallop emailed to the Planning Director yesterday morning around 10, and Mr. Haskett immediately forwarded to Board members.

This ZTA language is described in a link on the Town website as “11/19/18: Owens High-Occupancy Limit Language.” See https://www.southernshores-nc.gov/special-planning-board-meeting-recessed-january-7-2019/11-19-18-owens-high-occupancy-limit-language/.

Professor David Owens, of the UNC School of Government, is a highly regarded N.C. land-use expert and author of the textbook, “Land Use Law in North Carolina,” with whom Mr. Gallop has conferred. Professor Owens, who lives part-time in Southern Shores, prepared the septic-use ZTA language that Mr. Ward proposed.

The Beacon did not see this new link before yesterday’s meeting. According to Mr. Haskett, the date assigned to it, 11/19/18, “is the date of the correspondence between David Owens and the Town Attorney that included the language.” Why Mr. Gallop, who has described himself as a student of Professor Owens, waited until yesterday to share this nearly two-month-old correspondence with the Planning Board was not made clear last night.

Mr. Gallop stated at the meeting that the language had been drafted by Professor Owens, but he did not provide the specific context. The Town Council held a special meeting on high-occupancy houses on Nov. 7, before this language was allegedly drafted, and the Planning Board did not meet in November.

This new Owens language, which a majority of the Planning Board supported, would amend the Town Code by adding a definition for “vacation cottage”: a one- or two-family residential structure that is offered for rent or use for a period of less than a month. It further would specify that a vacation cottage is a permitted use in the primary residential districts, provided the maximum overnight occupancy does not exceed 14 people.

The language also includes a paragraph that is being called an “optional standard,” which Mr. Gallop characterized as a separate proposal from the rest of the language to provide a “conditional use option.” As currently written, this standard would allow a vacation cottage to exceed the 14-person maximum overnight occupancy capacity if it were built on a lot of at least 80,000 square feet. A majority of the Board supported increasing that square footage and gave Town staff the discretion to decide an appropriate number.

A motion made by Mr. Neal to draft a ZTA in line with the 11/19/18 Owens correspondence was approved by Mr. McGraw and Mr. Neal—and, belatedly, by Ms. Morey, in order to give them a majority.

Ms. Morey then made a motion to draft a ZTA in line with the Owens correspondence that also included a house-size restriction of a maximum of 5,000 square feet. Mr. McGraw and Mr. Basilone joined Ms. Morey in approving the motion. Both Mr. Ward and Mr. Neal expressed strong opposition to the house-size reduction.

The new Owens language clearly caught the professor’s cousin, as well as the public, by surprise.

“This is the first I’ve heard of it,” Mr. Ward said. “I’ve talked to David numerous times, as recently as Saturday afternoon,” and he didn’t mention it.

Mr. Ward seemed both frustrated and dismayed by this turn of events. Frankly, The Beacon believes he deserved more respectful consideration from the Town Attorney and Town Planning Director than he received—as did the other four Board members. But Mr. Ward, in particular, invested a lot of time and energy in exploring and advocating on behalf of the septic-use option, which the late Mr. Wyder also supported.

Both Mr. Gallop and Mr. Haskett should have made an effort to contact Mr. Ward by telephone to advise him of the new ZTA language, which Professor Owens purportedly drafted. Mr. Ward should have been given time to consult with his cousin, who has been an influential, if absent party to the discussions about high-occupancy houses in town for at least the past three months. Instead, he was blindsided.

The Beacon is concerned that the thoughtful months-long deliberations about the very important issues of growth, development, and population density in Southern Shores seem to have been resolved, at least for now, by eleventh-hour maneuvering and Ah-ha! moments.

PLANNING BOARD APPLICANTS

The Beacon interviewed Planning Board applicants, Mr. Lawler and Mr. DiBernardo. Mr. Regan did not return a telephone message left by The Beacon yesterday.

Mr. Lawler said he is a proponent for “slow growth,” and he has always “paid attention” to the environment and water quality. He lived in Corolla from 1977-87 in a house he built himself and moved to Southern Shores, which he called “a place for family,” after the northern beaches began to “deteriorate quickly.” He has extensive experience with water- and wastewater-treatment projects. He is also on the Chicahauk Property Owners Assn., serving as its treasurer.

Mr. DiBernardo served on the Southern Shores Vegetation Board/Committee that developed a vegetation-preservation ordinance for the town. This work came out of an N.C. State University study, but, unfortunately, did not get the support of then-Mayor Don Smith. Mr. DiBernardo has been vice-chairperson of the Southern Shores Historical Landmark Commission since its inception and was recently reappointed to another term.

Mr. Regan’s application indicates he spent more than 30 years in the food industry, and he holds a bachelor’s degree from the New Jersey Institute of Technology.

Both Mr. Lawler and Mr. DiBernardo also have bachelor’s degrees. Mr. Lawler has a master’s degree in marine science.

Ann G. Sjoerdsma, 1/8/19

1/7/19: GRAFFITI CASE UPDATE: NO ARRESTS, POSSIBLE SUSPECT LEAD, NO LINK TO THE BEACON, INVESTIGATING OFFICER SAYS; VANDALISM CAUGHT ON SURVEILLANCE (The Beacon Knew This, But Did Not Report For Reasons No Longer Relevant)

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A photograph of 64 Ocean Blvd., taken at 3 p.m. on Dec. 6, 2018, from the public right of way.

A month after a luxurious oceanfront home in Southern Shores was spray-painted with obscene graffiti, Town police have made no arrests, but they have identified a “possible lead,” according to the investigating officer.

“Nothing has panned out so far,” Southern Shores Police Sgt. George M. Farrow told The Beacon Saturday about the ongoing vandalism investigation. But, the officer said, “The department is following up on a possible suspect lead.”

The police are trying to get the suspect “to come in,” Sgt. Farrow said.

The Beacon reported Dec. 6, 2018 on the graffiti that occurred at 64 Ocean Blvd., according to police, during the night of Dec. 4-5. It consisted of the word “HOLE” being painted beneath the word “GLORY,” which appears on a house sign above the driveway, and a sketch of male genitalia. The “GLORY” sign is clearly visible from the road.

According to Sgt. Farrow’s police-incident report, which The Beacon obtained from the officer Dec. 13, similar obscene graffiti was spray-painted on the concrete walkway at the Southern Shores Civic Assn. beach access that adjoins 62 Ocean Blvd. Sgt. Farrow did not give The Beacon the photographs that accompany the report, but he did describe the drawings as “crude.”

As reported by The Beacon Dec. 13, contractor Allan Hutton, who built the house at 62 Ocean Blvd. and has a crew working on the house at 64A Ocean Blvd., discovered the vandalism the morning of Dec. 5 and called Town Manager Peter Rascoe, with whom he is friendly, Sgt. Farrow said Saturday. Mr. Rascoe then notified Police Chief David Kole, who, in turn, contacted Sgt. Farrow.

This sequence of events is recorded in Sgt. Farrow’s police report, which also records a 7:45 a.m. incident-report time. The Southern Shores Town Hall and police station do not open for business weekdays until 8:30 a.m. A voice recording on the police station telephone line, however, provides a telephone number for members of the public to reach an on-duty officer.

HOMEOWNER HAD SURVEILLANCE; GRAFFITI UNRELATED TO BEACON

I met Sgt. Farrow at the Southern Shores police station on Dec. 13 at 3 p.m. for a pre-arranged interview.

I had encountered the sergeant the previous day during a visit I made to the police station to request copies of the police reports for the vandalism incident and for a related false trespassing report filed against me. He said he had planned to call me to ask me to come in. We made an appointment.

During the course of the half-hour meeting I had with Sgt. Farrow, he informed me that the homeowners of 62 Ocean Blvd. had operational surveillance at the house, and he had seen a tape of the vandalism being committed.

Sgt. Farrow asked me to keep our discussion confidential, and I honored that request. On Saturday, however, during what I informed him was an inquiry on behalf of Beacon readers, he referred to the surveillance equipment.

Because of this telephone exchange, I no longer feel that I must withhold the existence of the surveillance videotape. I will continue, however, not to report details about the person or persons that Sgt. Farrow told me Dec. 13 he had seen on the tape.

Both Southern Shores Town Councilman Jim Conners and attorney Starkey Sharp, who represents 62 Ocean Blvd. homeowner Steven Love in a matter pertaining to the adjacent vacant lot at 64 Ocean Blvd., which Mr. Love also owns, have sought in public meetings to link the vandalism with this blog. (See The Beacon, 12/13/18, and 12/20/18.)

Both surely knew about the surveillance videotape and what—or, more precisely, who— was on it.

Before the night of Dec. 4-5, The Beacon’s blog reports were focused on SAGA’s proposed “mini-hotel” developments at 98 and 134 Ocean Blvd. I did not bring up the properties at 62, 64, and 64A Ocean Blvd. until after the vandalism occurred.

On Dec. 7, 2018, I published “THE SAGA OF AN ARCHITECT: COUNCILMAN CHRIS NASON AND HIS DESIGNS ON THE SOUTHERN SHORES OCEANFRONT; And What About That 50-Foot-Wide Lot?”

The 50-foot-wide lot between the large houses at 62 and 64A Ocean Blvd.—both of which were designed by architect and Town Councilman Christopher Nason—is a “nonconforming” lot because it does not conform to the Town’s minimum required lot width of 100 feet. According to public record, Mr. Nason is the architect of a 3,600+-square-foot house that Mr. Love would like to build on the narrow vacant lot between the other two houses he designed. (See photo of the site above, taken Dec. 6.)

In 2018, the Town Planning Board and the Town Council grappled over a period of months with revising the Town Code ordinance on nonconforming lots to ensure that development of 50-foot-wide lots is curtailed. That Mr. Nason did not disclose the financial interest he has in the nonconforming lot at 64 Ocean Blvd. and voted on the zoning text amendment, ZTA 18-07, that was proposed to change the Code, was of great concern to The Beacon.

The Beacon’s Dec. 7 blog details Mr. Nason’s professional involvement with the properties at 62, 64, and 64A Ocean Blvd. It is based upon my research in the Town Planning Dept. of public records that any citizen may access and peruse for any reason whatsoever.

On Saturday, I asked Sgt. Farrow if he had found in his criminal investigation of the vandalism at 62 Ocean Blvd. that the graffiti had anything to do with The Beacon, in particular, that the suspected perpetrators had been following this blog.

He answered: “No. I haven’t found that to be the case.”

THE TRESPASS ALLEGATION AGAINST ME

On Dec. 6, the day before I published my “SAGA of an Architect” blog, “someone” falsely reported me to the Southern Shores police for trespassing on the property at 62 Ocean Blvd. which, unbeknownst to me, had been vandalized at least 32 hours earlier.

At 3 p.m. that day, I took a photograph of the nonconforming lot at 64 Ocean Blvd. (see above), so I would have artwork to run with my “SAGA of an Architect” blog the next day. I stayed in the public right of way in front of the properties while I took photos and left the site at 3:15 p.m.

I was stunned and angry when two Southern Shores police officers knocked on the front door of my residence at 4:36 p.m. and asked me if I had been at 63 Ocean Blvd.—the officer’s error—taking a photograph.

I recorded what transpired between Officer Jeremy Hemilright, the policeman who conducted the visit, and me in a blog that I wrote and posted immediately after the two officers left. (See 12/6/18: POLICE PAY ME A VISIT: REPORT IS HARASSMENT BY RED-ROOF HOMEOWNER AT 62 OCEAN BLVD.)

I began to put things together differently than the way I reported them in that blog after I met Dec. 13 with Sgt. Farrow. While discussing with him how I “had been in the wrong place at the wrong time,” he referred to how I had been looking at Town permit files for the three properties a day before the vandalism occurred.

This research was for my blog about Councilman Nason. I was seeking to confirm Mr. Nason’s relationship with the homeowners at 62, 64, and 64A Ocean Blvd. and to obtain dates for his architectural work in their behalf.

On Saturday, I finally asked Sgt. Farrow how he knew that I had been there, looking in permit files, and he replied: “The Town Manager advised me since I was working on the case.” When I asked how Mr. Rascoe had contacted him, he did not answer specifically, saying that my activity was “on the grapevine.”

I had no communication with Mr. Rascoe on Monday, Dec. 3. I saw him pass by the door to the conference room that I used for my file research, but he did not look my way.

Did the police conceal the surveillance videotape from Mr. Rascoe?

Does Mr. Rascoe stalk—or monitor, if you prefer—all citizens who exercise their right to see public records, which, as the North Carolina statute on public records makes clear, are “the property of the people,” or just journalists?

While at Town Hall on Dec. 3, I learned for the first time that Mr. Love had applied for a CAMA permit to build on the 50-foot-wide lot at 64 Ocean Blvd.

I spoke with Town Permit Officer Dabni Shelton about Mr. Love’s legal ability to build there, in light of the recently passed nonconforming lots ordinance (ZTA 18-07), which I believed prevented him from doing so. Ms. Shelton advised me to email Deputy Town Manager/Planning Director Wes Haskett, who was attending training out of town all week, about my concerns, and I did so.

Since my Dec. 13 meeting with Sgt. Farrow, I have done further reporting on the circumstances surrounding the call implicating me in a trespass. I will disclose what I have learned at a later date.

The Beacon’s informal advisory board will be meeting soon to discuss what actions to take on this matter, going forward.

Ann G. Sjoerdsma, 1/7/19

 

1/3/19: POWER OUTAGE ABRUPTLY ENDS PLANNING BOARD SPECIAL MEETING ON ‘LARGE HOUSES’; RESCHEDULED 5 P.M. MONDAY, JAN. 7

 

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[1/4/19 UPDATE: The Town is calling the adjournment of the Planning Board’s Wednesday meeting a “recess” and notifying the public that the meeting will “resume” at 5 p.m. Monday.]

A power outage in the Pitts Center last night ended the Town Planning Board’s special meeting on “large-house” regulations just as Southern Shores builder and homeowner Matt Neal was shedding some light on what has been called the Outer Banks Home Builders Assn.’s (OBHBA) “option.”

When the room went dark, so did an overhead projection of an outline describing the OBHBA’s suggestion to create new zoning in Southern Shores for “High Occupancy Dwellings.”

Although encouraged by some in the larger-than-usual audience to continue speaking from the shadows—there was some light—Mr. Neal stepped aside while Deputy Town Manager/Town Planning Director Wes Haskett went to investigate the problem. When Mr. Haskett reported no hope of the electricity being restored, the Planning Board rescheduled the special meeting to 5 p.m., Monday, and adjourned.

A meeting that Board Vice-Chairperson Elizabeth Morey had predicted in her opening remarks would last two hours, thus, terminated after little more than a half-hour. Mr. Neal, who was 2018 president of the OBHBA, was the only member of the public heard—albeit briefly.

Ms. Morey has been chairing Planning Board meetings since the November death of Chairperson Glenn Wyder. After the Town Council appoints someone at its Jan. 8 meeting to serve out Mr. Wyder’s unexpired term, the five regular voting Board members will elect a new chairperson and vice-chairperson.

Last night, alternate Michael Basilone sat as a full-voting member of the Board, just as he did at the Dec. 17 meeting. Alternate Leo Holland, who was scheduled to sit on the Board, according to the rotation of alternates, was out of town and, according to Mr. Haskett, will be out of town on Monday, as well.

DESPITE OUTAGE, SOME BUSINESS OCCURRED   

In the time they had, the five Board members made lightning-quick work of some suggestions they have received, or have been directed to consider, regarding new regulations to control high-occupancy large houses. (The Beacon’s preference is to refer to high-occupancy houses, rather than “large” houses, but the Town most often refers to house size, not occupancy.)

Member Andy Ward took the lead in the Board’s discussion by referring to the Town Council’s motion, unanimously passed Dec. 11, that the Board consider draft ZTA 18-10, which, significantly, creates an oceanfront overlay residential district and then imposes regulations on structures within it, as well as other “zoning requirements” based on different approaches.

(You may access the text of ZTA 18-10 here: https://www.southernshores-nc.gov/wp-content/uploads/2018/12/ZTA-18-10-Large-StructuresRegulation-HREMv001-2018.12.05-1.pdf.)

Among the approaches suggested by the Town Council was “regulating number of water use fixtures in a residence (using water conversion measures to control occupancy).”

Of this option, Mr. Ward said, “I’m not sure what this is designed to do other than to befuddle enforcement.”

Member David Neal, who is a builder and the father of Matt Neal, agreed, saying the approach is “totally confusing and overkill.” Member Joe McGraw, another builder, agreed with Mr. Neal, and Ms. Morey concluded, “Check that one off our list.”

The Board then decided to veer away from the Town Council’s directive to consider the applicability to Southern Shores of an ordinance proposed by the Town of Duck to “establish standards for the scale of residential development.”

A draft of this ordinance was in the Planning Board’s “meeting packet” because Southern Shores Town Attorney Ben Gallop’s law firm colleague Robert B. Hobbs, Jr., represents Duck, and Mr. Gallop has been working with him.

(You may access the ordinance here: https://www.southernshores-nc.gov/wp-content/uploads/2018/12/12-31-18-Town-of-Duck-Large-Homes.pdf.)

The discussion on Duck’s proposed ordinance sounded much like the discussion on water-use fixtures. Mr. Ward said, “I don’t see a whole lot there that would pertain to us—as far as what we’re trying to do.”

Mr. David Neal then observed, “I think that we’re a different animal than Duck. . . .  Southern Shores is a monolithic oceanfront, Duck is not. I don’t think Duck’s proposal is appropriate for our situation.”

Mr. Basilone added: “I’m not sure it fits what we need.”

The Beacon appreciates Mr. Neal’s description of the Southern Shores oceanfront as “monolithic.” Rather than this being a pejorative term, The Beacon believes it goes to the heart of what makes Southern Shores unique on the Outer Banks: From its founding in the 1940s, Southern Shores has been a tightly controlled, planned community and, as of 1979, town. It is not a patchwork quilt of development; at least, it has not been, historically.

Having dispensed with the Duck ordinance, the Board returned to the Dec. 11 Town Council motion to consider “regulating use of residential properties for rental,” which the OBHBA’s option does.

The Board was able to establish through questions asked of Matt Neal that its use option “came out of the legislative committee of the Outer Banks Home Builders Assn.” and that this committee had legal advice.

Then the lights went out.

(This is the latest version of the OBHBA’s option on the Town website: https://www.southernshores-nc.gov/wp-content/uploads/2018/12/12-17-18-Homebuilders-Large-Home-Suggestions.pdf.)

MY BOTTOM LINE AND SUPPORT OF SEPTIC-USE LIMIT

I was prepared to speak publicly about the “large-house” problem in Southern Shores, which became acute when SAGA Construction and Development secured CAMA permits for its 12-bedroom, 17-parking-space, 24-person-septic-capacity “mini-hotels” at 98 and 134 Ocean Blvd. These commercial properties are a gross aberration in Southern Shores’s low-density residential neighborhood on the oceanfront and elsewhere in town.

The main points I would have made are these:

KEEP IT SIMPLE.

DON’T REGULATE ANY MORE THAN YOU HAVE TO, in order to restore the status quo that Southern Shores had before the N.C. General Assembly took away in June 2015 the town’s power to limit the number of bedrooms. From October 2001 until June 2015, the Town kept a lid on high-occupancy dwellings by restricting the number of bedrooms in a single-family home to seven and the septic-use capacity to 14. That approach seemed to work.

I frankly don’t see how the Outer Banks Home Builders Assn.’s idea of creating a “use” called a high-occupancy dwelling serves the Town’s goal of limiting occupancy in houses and, thereby, preserving Southern Shores’s unique low-density residential neighborhoods. How do you keep the uncrowded beaches that draw vacationers to Southern Shores uncrowded if you permit high-occupancy houses?

Southern Shores was built gradually—over decades—by people whose vision was to preserve open spaces and minimize congestion caused by too much population. High-occupancy dwellings run counter to that vision and to what a majority of Town property owners seem to want.

At the December 2018 Planning Board meeting, one member of the public suggested that the Planning Board (and the Town) hadn’t identified the purpose of any additional Town regulation: Is it to restrict occupancy? To limit house size? To preserve low-density?

I have no such confusion, nor do I think have Planning Board members. The purpose is to limit occupancy of single-family dwellings, and, as the SAGA houses prove, that cannot be accomplished simply by limiting house size.

I support Mr. Ward’s efforts to limit occupancy in single-family dwellings by limiting septic-use capacity to 14 persons—which is what the Town law was before the N.C. General Assembly acted, and the Town passed the maximum house size ordinance.

Southern Shores can—and should—enact this restriction without reference to the use of the dwelling. It does not matter whether the single-family dwelling is used exclusively by the homeowners or is rented as a vacation rental, as defined by the N.C. Vacation Rental Act. All that matters is that the dwelling is in Southern Shores.

I’ll have more to say about this approach and simple amendments to the Town Code after Monday’s meeting. Please try to attend.

Ann G. Sjoerdsma, 1/3/19

12/31/18: THE DEFINITION OF A ‘SINGLE-FAMILY DWELLING’ IN SOUTHERN SHORES: Did It Change in January 2016 Without the Town Council’s Awareness? Why Did It Change?

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The 35-bedroom Biltmore house in Asheville was built toward the end of the Gilded Age, a term coined by Mark Twain to describe a 19th-century era in the United States characterized by extraordinary wealth and political corruption.

What is a “single-family dwelling” in Southern Shores? How does the Town Code define a “single-family dwelling” for purposes of its single-family residential districts?

These are two of the many questions that the Town Planning Board should take up during its special meeting Wednesday, at 5:30 p.m., in the Pitts Center, when it continues its discussion of regulating high-occupancy, large homes in Southern Shores. The Beacon plans to raise the “single-family” issue in public comments during the meeting.

During the past year, I have had occasion to consult the Code definition of single-family dwelling and have been flummoxed by the awkward and heavy lawyering hand that I found evident in some of the wording. When I connect the dots, I reveal a definition that I consider both nonsensical and damaging—certainly not what homeowners would believe is the case. (See below.)

Most obviously, I consulted this definition in the context of SAGA’s proposed 12-bedroom, 17-parking-space, 24-person-septic capacity, nearly 6,000-square-foot “mini-hotels,” which, if pending litigation is unsuccessful, will be built in the RS-1 single-family residential district on the oceanfront.

As The Beacon has reported, the Southern Shores Civic Assn. objected to the Town’s issuance of CAMA permits to SAGA on the grounds that its mini-hotels are not single-family dwellings and should not be permitted in the RS-1 residential district. The SSCA had standing to be heard on the permits because it owns beach accesses adjacent to the two SAGA properties, at 98 and 134 Ocean Blvd.

Town Permit Officer Dabni Shelton summarily dismissed the SSCA’s objections, and the Civil Association elected not to appeal the permits’ issuance. Board members have told The Beacon that they did not wish to spend SSCA monies on legal expenses.

Here’s the rub, folks: Although the Town Code defines single-family dwelling, in section 36-57, in a clear and unambiguous manner, the Code definition of “family,” which you must look up in order to interpret and apply this definition, is severely compromised and confusing. The Town Council amended the definition of “family” on Jan. 22, 2016, when it enacted the 6,000-square-foot maximum single-family dwelling size.

The Beacon very much doubts that the three Town Council members who approved the change in this definition had any awareness of doing so. And because there is no video or voice recording of the Jan. 22, 2016 meeting—according to Town Clerk Sheila Kane, because it was a “special” meeting—The Beacon cannot determine what was said or not said by Town Attorney Ben Gallop when he explained the various “large-house” zoning text amendments that he had drafted for the Town Council to consider.

The Beacon has confirmed that all of the ZTAs contained the amendment to the definition of family. If they performed their jobs conscientiously, all of the Council members should have been familiar with the wording of each ZTA, including the “family” amendment. Because of the holidays, however, The Beacon has not had the opportunity to contact them.

I can tell you that I attended the Jan. 22, 2016 meeting and elected not to speak publicly because I had not had time to study the language of the ZTAs. I do not recall any discussion about the family definition amendment, and the meeting minutes reveal none.

“SINGLE FAMILY DWELLING” AS DEFINED BY TOWN CODE

A “dwelling, single-family” is defined in Town Code sec. 36-57 as “a detached building designed for or occupied exclusively by one family.” (This is from the definitions section of Chapter 36, which is the zoning chapter.)

“Family” is defined in this same section as “one or more persons occupying a single-family dwelling unit, provided that unless all members are related by blood or marriage or that the dwelling unit is being used as a vacation rental under the North Carolina Vacation Rental Act (N.C.G.S. Chap. 42A), then no such family shall contain more than five persons.”

Before Jan. 22, 2016, when Town Councilmen Leo Holland, Fred Newberry, and Gary McDonald approved the zoning text amendment on maximum house size, the Code defined a family without the italicized reference to the N.C. Vacation Rental Act. Therefore, a single-family dwelling was a detached building designed for or occupied exclusively by an unlimited number of persons, all of whom were related by blood or marriage, or, lacking such familial bonds, by no more than five persons.

I’ve been told by Town staff that the Town sought to discourage boarding houses with this definition of family.

This language is not original. In fact, it is standard, based, as best as I can tell from my research to date, on the N.C. Residential Code, which is a model code of regulations that was based upon the International Residential Code for One- and Two-Family Dwellings, which was promulgated by the International Code Council. The N.C. Building Code Council is the state equivalent of the ICC.

The Kitty Hawk Town Code currently has the same definitions of “dwelling, single-family” and “family” as the Southern Shores Code—absent the N.C. Vacation Rental Act reference.

So far as I can tell, neither Ben Gallop, who has represented Southern Shores since 2008, nor his law-firm colleague Robert B. Hobbs, Jr., who has been the Town Attorney for Duck since 2008, has ever been Town Attorney for Kitty Hawk. Their firm, Hornthal, Riley, Ellis & Maland, has represented Nags Head, but does not now claim the town as a client on its website. Attorney Thomas L. White, Jr., now retired from the firm, represented Nags Head from 1971 to 2001 and Southern Shores from 1979 to 2001, according to his online biography.

EFFECT OF VACATION RENTAL ACT REFERENCE: ABSURDITY

When I asked Town Permit Officer Dabni Shelton in October why the SSCA’s opposition to SAGA’s proposed mini-hotels was not sufficient, she said that the structures were covered by the Vacation Rental Act, which effectively excepted them from the Town’s single-family dwelling requirement.

For me, this interpretation is a mind-bender.

You’ll find the N.C. Vacation Rental Act, which was enacted in 1999, at https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_42a.html.

Any time I’ve raised the point with staff in the Town Planning Dept. that rental machines like SAGA’s proposed structures are not single-family dwellings, they have told me that they are covered by the Vacation Rental Act. Their interpretation eludes me.

The N.C. Vacation Rental Act is all about leases, landlord-tenant-real estate broker duties/obligations/rights, eviction, evacuation, and such. The N.C. General Assembly passed this act, as it states in its purpose section, to regulate “the competing interests of landlords, real estate brokers, and tenants.”

As a N.C. vacation rental property owner since 1991, I have consulted the Vacation Rental Act now and then, but not often because it’s rarely necessary. I have an agent, and the leases that vacationers sign with my agent include the provisions of the Vacation Rental Act.

The act is all about contractual matters. The only mention of single-family dwellings or homes in the Vacation Rental Act appears in its definitions section, which is N.C. General Statutes sec. 42A-4(2). The act defines:

A “residential property” as “an apartment, condominium, single-family home, townhouse, cottage, or other property that is devoted to residential use or occupancy by one or more persons for a definite or indefinite period”; and

A “vacation rental” as “the rental of residential property for vacation . . . for fewer than 90 days by a person who has a place of permanent residence to which he or she intends to return.”

Somehow, the mere insertion on Jan. 22, 2016 of the phrase, “the dwelling unit is being used as a vacation rental under the N.C. Vacation Rental Act, etc.,” into the family definition in Southern Shores has resulted in the Town recognizing any vacation rental house that is occupied by “one or more persons,” regardless of the relationships among them, as a single-family dwelling. This one phrase has succeeded in knocking the “family” out of “single-family.”

It also has created the nonsensical result that those of us who live in a single-family dwelling in the RS-1 district can live with more than four unrelated people—provided we rent the house out to vacationers every now and then, qualifying it as a vacation rental.

This is ridiculous.

The “intent” behind establishing the RS-1 single-family residential district is clearly set forth in Town Code sec. 36-202, to wit:

“The RS-1 district is established to provide for the low-density development of single-family detached dwellings in an environment which preserves sand dunes, coastal forests, wetlands, and other unique natural features of the coastal area. The district is intended to promote stable, permanent neighborhoods characterized by low vehicular traffic flows, abundant open space, and low impact of development on the natural environmental and adjacent land uses.”

Similar language appears in the Town’s land-use plan. To use the Vacation Rental Act to circumvent the intent, purpose, and scope of the Town’s low-density/low-impact zoning plan is beyond ridiculous. It’s outrageous.

The pre-Jan. 22, 2016 definition of “family” in the Town Code needs to be restored—and frankly, better worded—by the Planning Board and the Town Council and observed by staff in the Planning Dept.

Borrowing from Nags Head’s definition of a family (NH Code, sec. 48-7), The Beacon would rewrite the family definition, for purposes of defining a single-family dwelling, as “one or more persons related by blood, adoption, marriage or law [who are] occupying a dwelling together. A family shall not contain more than five unrelated persons.”

I would like to know why Mr. Gallop thought it was imperative to change this definition and why he did not make a point—if, indeed, he did not, as I recall—of telling Town Council members that he had changed it and what the effect of the change would be.

The Town Attorney has said on more than one occasion that “The Biltmore House is a single-family home.” Perhaps, in the era of robber barons, when the wealthy considered themselves America’s royalty and flaunted their often corruptly gained riches.

Not only was the magnificent 19th century Vanderbilt estate home built some 10-25 years before the earliest U.S. zoning laws—and on a land tract that, I hazard to guess, was as large as the entire Outer Banks—the single spectacularly wealthy family that lived there did not rent out rooms to vacationing transients. And its members would never have condoned a tiki bar.

Happy New Year, everyone.

Ann G. Sjoerdsma, 12/31/18