Since writing and posting my 3/20/19 blog, I have been feeling some of the “heartburn” that Town Planning Board Chairperson Elizabeth Morey said Monday night she had about zoning text amendment (ZTA) 19-01, which the Board unanimously voted to recommend to the Town Council.
Rather than swallow a Rolaids tablet, I am going to take a crack at telling you in plain English what the Planning Board intends with this zoning change: The Board seeks to prevent the construction of large vacation rental houses that would accommodate numerous people by limiting the number of overnight occupants in such structures to 14.
As a further preventive, the Board recommends restricting the septic-service capacity in all dwellings in Southern Shores’ residential district to 14 persons. That includes single-family homes that are not vacation rentals.
ZTA 19-01, as drafted, is imperfect. I sought yesterday to acquaint you with what ZTA 19-01 actually says and to point out some of its imperfections. Today, I wish only to tell you what the Board is aspiring to do with ZTA 19-01.
Please, please, please read the proposed ordinance for yourselves. It is not Town law yet, not until the Town Council approves it.
You do not need to be a lawyer to read and understand it. No one on the Planning Board or the Town Council is a lawyer. The ZTA is not beyond your (or their) comprehension, if you invest the time you need to understand it. And it is imperative that, as informed citizens and property owners, you know how your town’s zoning code may change. Here is the proposed ordinance:
It’s only two pages long. You can skip over the cover page and the preamble and begin reading on page three, which is page three of five of the ZTA itself.
Nothing pains me more than to sit through a discussion of a proposed zoning text amendment by the Town Planning Board or the Town Council and to know that members of these boards either have not read the ZTA or have read the ZTA and do not understand it. In other words, they’re not prepared to do good government.
Unfortunately, I have sat through many such discussions. Eyes always convey a lack of preparation and confusion, as do the questions asked. I’ve seen too many deer in the headlights. Too much “winging it.”
Please take the time to read the proposed ordinance and to understand what it means. Only you, the public, can hold your government accountable.
The Town Planning Board voted unanimously Monday night to recommend to the Town Council ZTA 19-01, which seeks to limit occupancy in houses on the basis of their use and septic capacity, and not to recommend ZTA 19-01CUP, an identical measure that also included a provision to allow “high-density” vacation cottages under certain circumstances.
The Board’s recommendation passed with an amendment to ZTA 19-01 that would extend its coverage to the high-density RS-10 residential district, along with the RS-1 single-family and R-1 low-density residential districts.
Mallard Cove and the Southern Shores Landing are in the RS-10 district.
Sitting as the Board of Adjustment, the Board also denied the property owners of 64 Ocean Blvd. a variance that would have enabled them to build on this oceanfront lot, which is nonconforming because of its width (about 50 feet) and size.
The Town Code zoning ordinance (sec. 36-132) enacted last September to tighten regulations of the sale and development of nonconforming lots prevents them from building. (See analysis below.) Nonconforming lots are those lots that do not meet the minimum dimensions established by the town for building.
Both ZTA 19-01 and 19-01CUP are expected to come before the Town Council for a public hearing and vote at its April 2 meeting. The Council need not act according to the Board’s recommendations.
OVERVIEW OF ZONING TEXT AMENDMENTS
The Beacon has written extensively about these zoning text amendments, most recently on 3/18/19, but also throughout the months that the Planning Board deliberated on the problem of large, high-occupancy houses in the town’s low-density neighborhoods.
Each proposed ZTA limits septic capacity for all residential dwellings in the applicable districts to 14 persons. In contrast, the two structures that SAGA is building at 98 and 134 Ocean Blvd. each has a septic-system capacity for 24 persons.
Each ZTA also designates a vacation cottage as a new permitted use in the residential districts and specifies that a vacation cottage cannot be advertised to accommodate or designed or constructed to accommodate more than 14 overnight occupants, nor can it actually accommodate more than 14 overnight occupants. (See language of ZTA below.)
ZTA 19-01CUP further creates a conditional use in the RS-1 and R-1 districts of a “high-density” vacation cottage that may be built on a lot that is at least 175,000 square feet, or about four acres.
“High-density” vacation cottages may house more than 14 overnight occupants. Interestingly, as proposed, this conditional use does not apply to single-family dwellings.
Board Chairperson Elizabeth Morey said that to support this conditional use would be contradictory to the Board’s intention of ensuring low-density development. She and the other Board members made short work of rejecting the high-density option.
Board members had more trouble with understanding the “vacation cottage” permitted use authorized by the zoning text amendments, even though they had previously approved it.
Ms. Morey expressed concern for how the addition of this use in the town’s single-family dwelling and low-density residential districts might burden property owners.
After much discussion, Ms. Morey and other Board members were satisfied by Mr. Gallop’s and Town Planning Director Wes Haskett’s explanations about property use in a zoning district, and changes in its use, that the recommended ZTA 19-01 would not create a hardship for property owners.
“Does any other Outer Banks town have this vacation cottage language” in its zoning code? Ms. Morey asked Town Attorney Ben Gallop.
“No,” he replied. Southern Shores would be breaking ground.
NEW “VACATION COTTAGE” USE
Currently, the primary permitted use in Southern Shores’ residential districts is a detached single-family dwelling.
If approved by the Town Council, ZTA 19-01 would add to the list of permitted uses a “vacation cottage,” which it defines as “the use of a property and associated single-family dwelling in whole or in part for any part of a calendar year for the purpose of transient occupancy.”
To know what a vacation cottage is, therefore, you must know the definition of “transient occupancy.” As specified in ZTA 19-01, it is as follows:
“overnight occupancy . . . for periods of less than 30 days for vacation, leisure, recreation or other purposes by a person or persons who have a place of residence to which they intend to return including when such property or structure is offered in whole or in part for rent or use by the day, week or other period of less than 30 days.”
Mr. Gallop himself pointed out that this definition is overly broad, but no attempt was made by the Planning Board to alter it. As written, it would convert a single-family dwelling into a vacation cottage if, for example, a parent, who intended to return to his/her own home, stayed at an adult child’s home for more than 30 days of overnight occupancy for vacation, leisure, or whatever reason.
Strictly applying the ordinance, the adult-child homeowner would then be subject to the 14-person occupancy restriction imposed on vacation cottages.
As Mr. Gallop acknowledged, a vacation cottage, as defined, is not always a vacation rental. But it definitely covers all rentals, including those through Airbnb.
The syntax in the ZTA’s language about permitted uses strikes The Beacon as unnecessarily cumbersome and confusing. It is as follows:
“The following uses shall be permitted by right:
“(1) Detached single-family dwelling and vacation cottages provided that such residential structure shall be not be (i) advertised to accommodate, designed for, constructed for or actually occupied by more than fourteen (14) overnight occupants when used as a vacation cottage; or (ii) have a maximum septic capacity sufficient to serve more than fourteen (14) overnight occupants.”
Mr. Gallop said Monday night that this paragraph is intended to mean that the maximum 14-person occupancy restriction applies only to vacation cottages and that the septic capacity restriction applies to both single-family dwellings and vacation cottages. A clearer way to have stated this meaning is as follows:
“The following uses shall be permitted by right:
“(1) Detached single-family dwellings, which shall have a maximum septic capacity of or no more than fourteen (14) overnight occupants; and
“(2) Vacation cottages, which shall not be advertised to accommodate, shall not be designed or constructed for, and shall not be actually occupied by more than fourteen (14) overnight occupants and which shall have a maximum septic capacity of no more than fourteen (14) overnight occupants.”
It also seems to me that a different drafting approach could have been taken, so as not to clutter up the permitted uses provisions of each Town Code section on a residential district. The goal of this approach would have been to make this straightforward statement: “No more than 14 people may occupy a vacation cottage overnight.”
The Beacon too often finds that the language of zoning text amendments is not clean and poses unnecessary problems of interpretation.
A case in point is Town Code sec. 36-132, the nonconforming lots ordinance that was enacted by the Town Council on Sept. 5, 2018 to arrest the trend of selling and building on 50-foot-wide lots that were previously part of larger parcels of developed land.
The Planning Board, sitting as the Town Board of Adjustment (BOA), heard Monday an application filed by attorney Starkey Sharp, on behalf of property owners Steven Love and his wife, Kathleen Gorman, for a variance from the operation of sec. 36-132.
In January 2016, Mr. Love and Ms. Gorman bought a 50-foot-wide lot, split off from a larger developed parcel, adjacent to their property at 62 Ocean Blvd. Last July, they transferred their ownership in what is now known as 64 Ocean Blvd. into a limited liability corporation (“LLC”) called For the Love of Pete.
The Beacon has written extensively about this situation and will not belabor the facts. The property owners are currently waiting for the Town of Southern Shores to act on their CAMA permit application, which has been placed on hold, because sec. 36-132 prevents them from building.
The Town Code standards for granting a variance are based on state law and are set forth in Town Code sec. 36-367(a). The language of sec. 36-367(a) is identical to N.C. General Statutes sec. 160A-388(d).
The longer-serving Planning Board/BOA members have participated in a number of variance hearings, including one held May 16, 2016 at the request of Mr. Love, who sought a variance on his 50-foot-wide lot from Town side-setback standards. That variance was granted. Despite this experience, however, Board members had difficulty Monday with applying the variance standards to the evidence presented in the hearing.
(A variance hearing is a quasi-judicial proceeding, not a public hearing. Witnesses must be sworn in to testify. Other rules of judicial procedure also apply.)
Although BOA attorney Jay Wheless reminded Board members that they are “triers of fact”—meaning they determine the facts in the evidentiary hearing—one newer Planning Board/BOA member openly advocated for Mr. Love, trying to make the case for him that neither he nor his own attorney made.
Substituting for his partner, Mr. Sharp, who he said was ill, attorney Casey C. Varnell represented Mr. Love and his LLC. Mr. Varnell showed an unfamiliarity with the facts, including the Planning Board’s and Town Council’s efforts to amend sec. 36-132, and did not present any evidence. He chose not to examine Mr. Love, who attended the hearing and could have testified to whatever hardship he has experienced because of the nonconforming lots ordinance.
Mr. Varnell also failed to go through all four standards, arguing them in the light most favorable to his client. In contrast, Town Attorney Ben Gallop addressed them individually, making points in support of denying the variance.
It is the Board of Adjustment’s job to determine the facts–which are often contested– based on the evidence it hears, and then to apply the standards for granting a variance, set forth in Town Code sec. 36-367(a), to those facts.
The standards can be phrased as four questions. They are:
1) Would an unnecessary hardship result if the ordinance [in this case, the nonconforming lots ordinance] were strictly applied to the applicant’s property?
2) Does the hardship result from conditions that are peculiar to the property, such as its location, size, or topography?
3) Did the hardship result from actions taken by the applicant [in this case, Mr. Sharp] or the property owner?
4) Is the requested variance consistent with the spirit, purpose, and intent of the ordinance?
All that BOA members have to do is answer yes or no to each question, and then look at the totality of their responses when they are done. They don’t need to ask themselves upon positing each question whether or not they want to grant or deny the variance, as they did on Monday night.
There must be a 4/5 majority response of the Board favoring the grant of a variance on each question in order for a variance to be granted. That means four Board members must answer “yes” to questions 1, 2, and 4, and “no” to question 3 in order for the variance to be approved.
Upon discussing the first question about “unnecessary hardship,” Mr. Wheless explained to the Board that N.C. case law has established that this hardship cannot be exclusively financial. Mr. Varnell did not raise any other hardship in his presentation, and Mr. Gallop correctly pointed out that the hardship is not “unnecessary” because Mr. Love and Ms. Gorman can still recombine their lot at 64 Ocean Blvd. with their property at 62 Ocean Blvd.
All BOA members said “no” to this question, although Andy Ward spent some time trying to come up with a “hardship”—not an unnecessary hardship—that would qualify Mr. Love for a variance, despite the lack of evidence. He speculated, for example, that Mr. Love may have suffered “mental anguish.”
BOA member David Neal, who was also sympathetic to Mr. Love, asked whether rendering the lot unbuildable was a hardship.
Mr. Wheless replied: “It’s a hardship, but it may not be unnecessary. It is painful.”
Mr. Gallop argued that Mr. Love’s nonconforming lot at 64 Ocean Blvd. is not “peculiar,” as required by standard two, because multiple similar lots exist throughout Southern Shores. The language of standard two in the Town Code specifies that hardships “resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.”
All BOA members answered “no” to this question and “no” to the third question about self-created hardship. No one deemed Mr. Love’s delay of more than two years in building upon his property after he purchased it and obtained a side-setback variance from the BOA in 2016 an act of self-created hardship.
I believe I heard Mr. Gallop correctly to say that had Mr. Love and Ms. Gorman not transferred their ownership of 64 Ocean Blvd. into a limited liability corporation last July in anticipation of sec. 36-132 being enacted (as Mr. Sharp admitted in the variance application his clients did), and simply left the property in their own names, the ordinance would not now prevent them from building. I do not read new sec. 36-132 that way, but I’ll defer to the man who drafted it.
The BOA members split on their responses to question four, which asked them essentially if Mr. Love’s variance request, which, if granted, would give his property an exception to the nonconforming lots ordinance, defeated the spirit, purpose, and intent of the ordinance. The Beacon believes that’s a slam-dunk “no,” but only Chairperson Elizabeth Morey and Vice-Chairperson Joe McGraw agreed. Mr. Ward, Mr. Neal, and Ed Lawler, who was appointed to the Board in January, said the variance request was consistent with the ordinance.
1) Five No; Denial
2) Five No; Denial
3) Five No; Grant
4) Three Yes, two No; Grant
The variance, therefore, failed because a 4/5 majority favoring the variance on each standard did not occur. Nonetheless, when a motion was made to deny the variance based on the vote on the four standards, Mr. Neal voted against it.
Town Code sec. 36-369 requires all Board of Adjustment members to be impartial and disallows members from participating in all quasi-judicial matters, including variance hearings, if they cannot be impartial. At the start of the hearing, Chairperson Morey asked members several “impartiality” questions, including whether anyone had a “fixed opinion prior to hearing the matter that is not susceptible to change.”
All members replied that they had no conflicts of interest and could be impartial.
Mr. Love may seek a review of the Board’s denial in the Dare County Superior Court, if he chooses. He has 30 days within which to appeal. (Town Code sec. 36-368(b))
Twenty-six candidates, including 17 Republicans, met the March 8 filing deadline to run in the race to succeed the late Representative Walter Jones (Rep.) and serve out his unexpired term as North Carolina’s third congressional district representative.
Mr. Jones of Farmville, N.C., died Feb. 10.
The primary election for Representative Jones’s seat, which he held from 1995 until his death, will be April 30. The general election or primary runoff will be July 9. In the event of a runoff, the general election will be Sept. 10.
The third congressional district includes all or part of 17 counties, including Dare and Currituck counties, as well as Marine Corps Base Camp Lejeune in Jacksonville and Marine Corps Air Station Cherry Point in Havelock.
According to “The State” newspaper, among the 17 Republican candidates are three sitting state legislators (Reps. Greg Murphy, Phil Shepard, and Michael Speciale); two Currituck County commissioners (Paul Beaumont and Mike Payment); and a member of the Lenoir County Board of Commissioners (Eric Rouse).
The Republican field also includes three physicians, Kevin Baiko, who is medical director of the N.C. Cannabis Patient Network, pediatrician Joan Perry, and Rep. Murphy, who is a urological surgeon; a Beauford County country music singer (Don Cox); and Phil Law, a Marine Corps veteran and IT contractor who ran unsuccessfully against Mr. Jones in the 2016 and 2018 GOP primaries.
Mr. Law, whose campaign signs can be seen in Southern Shores, lives in Jacksonville.
The six declared Democrats are New Bern Mayor Dana E. Outlaw; former Greenville Mayor Allen Thomas; Richard Bew, a retired Marine who served as a legislative director for the chairman of the Joint Chiefs of Staff; Ike Johnson, whom “The State” refers to as the chief executive officer of a mentoring organization; Ernest T. Reeves, a retired Army captain who lost to Mr. Jones in the 2016 general election; and Gregory Humphrey.
Shannon W. Bray and Tim Harris are vying for the Libertarian party’s nomination, and Greg Holt will be on the ballot in the general election for the Constitution Party, according to “The State” reporter Brian Murphy, who covers North Carolina’s congressional delegation from Washington for the Raleigh, Charlotte, and Durham daily newspapers.
Mr. Murphy reports that five candidates filed for the race with a residential address outside of the district: Republicans Francis X. De Luca (Cary), Graham Boyd (Wake Forest), and Jeff Moore (Raleigh); Democrat Mr. Reeves (Greenville); and Libertarian Party candidate Ms. Bray (Apex).
The remaining Republican candidates, not mentioned above, are Gary Ceres, Chimer Davis Clark, Jr., and Celeste Cairns.
AT LAST NIGHT’S TOWN PLANNING BOARD MEETING . . . The Board voted unanimously to recommend to the Town Council ZTA 19-01, which seeks to restrict high-occupancy houses on the basis of their use and septic capacity, and not to recommend ZTA 19-01CUP, a similar measure that also included a provision allowing “high-density” vacation cottages under certain circumstances. The Board also denied the property owners of 64 Ocean Blvd. a variance that would have enabled them to build on their nonconforming lot there, despite being prevented from doing so by a Town Code zoning ordinance.
THE BEACON WILL RETURN TOMORROW WITH A FULL REPORT ON THE PLANNING BOARD MEETING.
The Beacon would like to remind you that the Town Planning Board will be considering the two zoning text amendments (ZTAs) on high-occupancy houses that it directed the Town Attorney to draft at its meeting today. Although a public hearing will not be held, the public may offer comments on the merits of the ZTAs before the Board votes on whether or not to recommend either or both to the Town Council.
The Planning Board meets at 5:30 p.m. in the Pitts Center. It has not posted an agenda online, so The Beacon does not know the order of its business. The variance hearing upon which The Beacon reported 3/15/19 is also scheduled.
Both of the proposed amendments, ZTA 19-01 and ZTA 19-01CUP, create a new “permitted use” within the RS-1 and R-1 low-density residential districts of a “vacation cottage.” They further amend the Town Code zoning chapter to prohibit “vacation cottages” from having more than 14 overnight occupants and from having a septic capacity that serves more than 14 overnight occupants.
Thus, the Planning Board seeks to prevent high-occupancy houses in Southern Shores, such as the two 12-bedroom, 17-parking-space “mini-hotels” currently being built by SAGA on Ocean Boulevard (see photo above), by focusing upon the “use” of the residential structure and on the septic capacity of the structure.
ZTA 19-01CUP goes a step further than ZTA 19-01, however. It would allow “high-density” vacation cottages to exist in low-density residential districts, provided they are constructed on lots that are at least 175,000 square feet in size. High-density vacation cottages are those that the ZTA defines as accommodating more than 14 overnight occupants and having a maximum septic capacity that serves more than 14 overnight occupants.
Here is ZTA 19-01, without the high-density vacation cottage option:
Currently, the only permitted use specified in the Town Code zoning chapter within these low-density residential districts, where we all live, is a detached single-family dwelling, without qualification as to whether it is a vacation rental or a home used exclusively by the property owners.
The Planning Board could have decided to restrict occupancy and septic capacity of all single-family dwellings in the RS-1 and R-1 low-density residential districts, but it did not want to infringe upon homeowners who do not rent their houses.
The Beacon would not have distinguished between those single-family dwellings that are used as vacation cottages and those that are not.
We support the septic-capacity restriction and oppose the new permitted use of a vacation cottage. We further adamantly oppose permitting high-density vacation cottages in the low-density neighborhoods, under any conditions, and trust the Planning Board will make quick work of disposing of ZTA 19-01CUP.
The five-member Planning Board will vote on whether to recommend either or both of the two ZTAs to the Town Council, with or without further amendments. Only the Town Council has the authority to amend the Town Code.
The Town Council will likely schedule a public hearing on the ZTAs, along with ZTA 18-10, which it tabled in February, at its April 2 meeting. ZTA 18-10 addresses the problem of “large” houses and their occupancy by creating an oceanfront overlay residential district and regulating within that district according to setbacks, building height, and other requirements.
The Planning Board unanimously voted not to recommend ZTA 18-10, which came out of a motion made by Councilman Jim Conners at the Town’s Nov. 7, 2018 special meeting on high-occupancy houses.
At the start of its Feb. 5 meeting, during which a public hearing on ZTA 18-10 was scheduled, the Town Council unanimously voted to table the measure. In doing so, the Council took the unusual action of canceling a hearing for which members of the public specifically had shown up and signed in to speak.
In an unusual legal move, a Southern Shores property owner is seeking a variance to enable him to circumvent a town ordinance that currently prevents him from building on a nonconforming 50-foot-wide oceanfront lot that he owns with his wife in a limited liability corporation (“LLC”).
The property owner is Steven Love. But the applicant for the variance is his attorney, Starkey Sharp, of Kitty Hawk, who has previously spoken before the Planning Board and the Town Council on behalf of his client.
The nonconforming lot on which Mr. Love and his wife, Kathleen Gorman, would like to build a five-bedroom house designed by Town Councilman Christopher Nason is 64 Ocean Blvd. A hearing on the application for a variance that would enable him to get around the town law on the sale and development of nonconforming lots—before the Town Council has acted on an amendment to that law—will be held by the Town Board of Adjustment (“BOA”) on Monday, March 18, at 5:30 p.m.
The applicable ordinance is Town Code sec. 36-132, which was amended Sept. 5, 2018 by the Town Council (4-1, with Mr. Nason dissenting) to clarify and strengthen it. The Town took action then to stop a discouraging trend by property owners either to sell developed 100-foot-wide parcels as two 50-foot-wide lots or to redevelop 100-foot-wide parcels as two 50-footers.
Since then, the Planning Board has recommended further amendments to sec. 36-132, but the Town Council has not approved them. In fact, the Council voted unanimously on Feb. 5 to table proposed ZTAs on nonconforming lots and to order the Planning Board to comprehensively identify and assess the circumstances of all of the (vacant) nonconforming lots in town.
The Planning Board, which sits as the Board of Adjustment, will also have its regular monthly meeting on Monday. On its agenda are the consideration of two zoning text amendments (ZTAs) that deal with high-occupancy houses in the residential districts and a possible continued discussion of nonconforming lots, per the Town Council’s order.
(The Beacon detailed the two ZTAs, 19-01 and 19-01CUP, in blogs of 2/22/19 and 2/23/19, and provided background on the nonconforming lots discussion 2/6/19 and 2/21/19. You will find links to The Beacon’s archives in the right-hand column, underneath the latest articles, on the blog home page.)
THE BEACON OPPOSES GRANTING THE VARIANCE
The Beacon has written on numerous occasions about Mr. Love’s 50-foot-wide lot. (See photo above.)
We have explained how he and his wife acquired it in a Jan. 22, 2016 sale by a limited liability corporation owned by SAGA Construction & Development, which split it off from a much larger parcel.
We also have explained our belief that the nonconforming lots ordinance in effect in 2016 either compelled Love-Gorman to recombine the 50-footer with the adjacent 100-foot-wide parcel they own at 62 Ocean Blvd. or directed that their properties be treated as a single lot.
The Beacon opposes the variance that Mr. Sharp seeks for Love-Gorman, who own 64 Ocean Blvd. through their LLC, “For the Love of Pete.”
We do not believe that the property owners meet the standards, including those of “unnecessary hardship,” that the Town Code specifies must be shown before a variance is granted. We also believe that the grant of this variance would set a poor and ill-advised precedent in Town.
(Town Code sec. 36-367 sets forth the standards for granting a variance. It is based on N.C. General Statute sec. 160A-388(d).)
Although the Planning Board has recommended an amendment to sec. 36-132 that would favor Mr. Love and Ms. Gorman, it has no authority or power to amend the ordinance. Until such time as the Town Council approves the zoning text amendment recommended by the Board, the law is what it is now, and it prevents the development of 64 Ocean Blvd.
To grant Mr. Sharp’s variance request would be, essentially, to amend the ordinance before the Town Council has done so. And it may not!
The Beacon can see only harm coming from allowing property owners to preempt official Town action so that they can do what they want to do according to their own timetable.
The fact that Mr. Starkey’s clients have filed an application for a CAMA minor permit, which is currently on hold, is of no factual or legal relevance.
FACTS OF THE CASE; VARIANCE ANALYSIS
The Beacon has previously laid out the circumstances of the acquisition and development of the Love-Gorman properties at 62 and 64 Ocean Blvd. Key to the factual timeline are the following events:
July 2, 2015: Love-Gorman buy 62 Ocean Blvd., which consists of Lots 1-2 of Block 6, on which a flat top known as Dunne’s Dune sits. Each lot is 50 feet wide, but the development overlaps both.
Jan. 22, 2016: Love-Gorman sign a deed with Nags Head Freehold, LLC, a limited liability corporation of SAGA’s, to purchase an adjacent 50-foot-wide lot that SAGA, acting as 64 Ocean Blvd. LLC, has split off from a larger property, which is at least 137 ½-feet wide. This lot becomes 64 Ocean Blvd. SAGA had proposed building a wedding-destination event house on the larger parcel. On the evening of Jan. 22, however, the Town Council, by a 3-2 vote, with Mayor Bennett and Mr. Nason dissenting, enacts an ordinance restricting the maximum house size to 6,000 square feet, thus foiling SAGA’s event-house plans.
Feb. 10, 2016: Demolition of the Dunne flat top at 62 Ocean Blvd. occurs, according to news coverage in The North Beach Sun.
Feb. 17, 2016: Architect Christopher Nason, of Beacon Architecture & Design, submits his CAMA site plan for 62 Ocean Blvd., according to Town planning records.
Feb. 26, 2016: Love-Gorman receive a CAMA permit to develop 62 Ocean Blvd., according to records.
May 16, 2016: The Town Board of Adjustment holds a hearing on an application by Love-Gorman for a side-setback variance on the 50-foot-wide lot at 64 Ocean Blvd. from 15 feet to 12 feet. This variance is granted.
June 2, 2016: Love-Gorman receive a building/floodplain development permit and a zoning/development permit from the Town of Southern Shores. Before they can obtain these permits, they are required by the Town to recombine Lots 1 and 2 of Block 6, which make up 62 Ocean Blvd. The new single lot is designated 2R in Block 6.
Construction on 62 Ocean Blvd. ensues after the permits are issued.
It is The Beacon’s contention that after the flat top was demolished and the two nonconforming lots at 62 Ocean Blvd. became vacant, the Town Code required all three lots making up 62-64 Ocean Blvd. to be treated as a single lot of 150 feet in width. Town Attorney Ben Gallop disagrees with this interpretation of then-Town Code sec. 36-132. Only a court can say who is correct. (This would be sec. 36-132(a)(2)(a).)
The Beacon also contends that as of Feb. 17, 2016, the date of Mr. Nason’s site plan, all three lots should have been combined into one single lot of record. This is how The Beacon interprets then sec. 36-132(a)(3), which read:
“When a nonconforming lot [64 Ocean Blvd.] entirely within the town is adjacent to one or more lots under the same ownership [62 Ocean Blvd.] and when any portion of a proposed structure [Mr. Nason’s proposed house] or required use is located on two or more lots [62 Ocean Blvd.], the lots shall be combined into one single lot of record.”
Once again, Mr. Gallop disagrees. Once again, a court is the final arbiter.
I conclude this legalistic argument with an observation: The Town Council that enacted sec. 36-132 did not intend to allow situations like the Love-Gorman situation to be created and exploited. It did not intend for 50-foot-wide nonconforming lots to be developed on the oceanfront or elsewhere in town. The Southern Shores zoning code specifically seeks to protect and preserve low-density development, not to destroy it.
Every ZTA prepared by the Town routinely refers in the preamble to Southern Shores as a “quiet, seaside residential community comprised primarily of small low-density neighborhoods consisting of single-family homes primarily on large lots (i.e., at least 20,000 sq. ft.).” This language is rooted in the Town’s Land-Use Plan, as well.
It seems to The Beacon that there is no clearer case of what the Town Council sought to prevent when it enacted sec. 36-132—thus codifying an important part of Frank Stick’s vision for Southern Shores—than development of what is now known as 64 Ocean Blvd.
The Beacon further believes that the side-setback variance that the Board of Adjustment granted the property owners in May 2016 violated the spirit, purpose, and intent of sec. 36-132 and should not have been granted.
Nonetheless, the property owners had more than two years in which to take advantage of this variance before the nonconforming lot ordinance changed Sept. 5, 2018, and they failed to do so.
In its analysis on Monday, the Board of Adjustment must answer a number of questions in the property owners’ favor before it can grant their variance. And then there must be a four-fifths majority concurrence of the five-member Board.
A threshold question in the Board’s variance analysis is whether an “unnecessary hardship” would result to Mr. Love and Ms. Gorman if the nonconforming lots ordinance is strictly applied to them. If they cross this threshold, one of the other questions that must be answered is whether the hardship resulted from actions taken by the property owners themselves.
(For an excellent article about these standards, see canons.sog.unc.edu/variance-standards-what-is-hardship-and-when-is-it-unnecessary/.)
Mr. Love and Ms. Gorman had two years and four months within which to proceed with construction on 64 Ocean Blvd., unimpeded in any way by the Town or the Town Code, but they failed to act. I know how I would answer the question about a self-created hardship.
A FINAL NOTE: For the past five years, the Planning Board has taken on the responsibilities of the Board of Adjustment, essentially wearing two hats. Before 2014, when the Town Council abolished the BOA because it had been idle for many years, they were separate boards with different membership.
The Beacon is greatly concerned that the Planning Board has already heard on multiple occasions from Mr. Sharp, Mr. Love, and Mr. Love’s builder, Allan Hutton, about development of 64 Ocean Blvd. Indeed, the Planning Board has approved a zoning text amendment that specifically gives the Love-Gorman property an exception to the nonconforming lots ordinance. It acted specifically for the benefit of these property owners.
Can members of the Planning Board truly be impartial in this variance hearing?
The Beacon thinks it may be time for the Town Council to consider reconstituting an independent Board of Adjustment.
The repair of Hillcrest Drive from its intersection with Hickory Trail north to the SSCA tennis courts emerged unanimously at the March 7th Capital Infrastructure Improvement Planning (CIIP) Committee meeting as the committee’s current top recommended priority “target” for road improvements in Southern Shores in fiscal year 2019-20.
The seven-member committee, which is co-chaired by Mayor Tom Bennett and Town Councilman Jim Conners, will meet May 30 to take final stock of its recommendations, factoring in new road conditions in need of attention that may have arisen in the interim.
The Town Council considers the committee’s priority-target list when it makes a final decision in June on selected road improvements.
Also in May, the CIIP Committee will be considering any recommendations that members have for how to change the Town’s street standards to make them more environmentally friendly, particularly in regard to preserving the maritime forest. (See below.)
After Hillcrest Drive, which is beaten down by vacationer cut-through traffic every summer, the CIIP Committee unanimously approved the following projects, in descending order:
*(2) East Dogwood Trail, from N.C. Hwy. 12 east to Ocean Boulevard, a stretch of 670 linear feet (“LF”), which also requires stormwater improvement;
*(3) Sea Oats Trail, from 11th Avenue north to Sea Oats Court (about 1,110 LF), although the committee also discussed repairing the road north to its intersection with Hwy. 12 and constructing a five-foot-wide sidewalk from Hwy. 12 to Sea Oats Court;
*(4) Dewberry Lane, a 230-linear-foot road off of Bayberry Trail near its intersection with East Dogwood Trail; and
*(5) Wax Myrtle Trail, from its intersection with East Dogwood Trail south to its end (about 2,720 LF), including Dolphin Run and Porpoise Run.
Town Manager Peter Rascoe said he had “redone” the latest list of priority targets “in light of recent meetings,” during which homeowners strongly objected to a proposed widening of South Dogwood Trail, a project that the co-chairs and other committee members had elevated to a high-priority status. (See The Beacon, 2/1/19, 2/8/19, 2/13/19, and 2/21/19.)
“Any reference to South Dogwood Trail, and any reference to a comprehensive plan” involving South Dogwood Trail, Mr. Rascoe said, “have been removed.”
South Dogwood Trail’s ranking as a priority target is now No. 11. There are 22 projects on the list, assigned to one of three groups: A, B, and C, with “A” consisting of the top four targets.
Mr. Rascoe, to whom the co-chairpersons usually defer in CIIP Committee meetings, also characterized the decision whether to rank the Hillcrest Drive project or the Sea Oats Trail project as the No. 1 priority as “a coin toss” for him and engineers with Deel Engineering, PLLC, with whom he consults.
Southern Shores has a contract with Deel Engineering that expires June 30.
Like Hillcrest Drive, the targeted section of Sea Oats Trail is also part of the well-traveled cut-through route.
In addition to the committee members and Mr. Rascoe, Deputy Town Manager/Planning Director Wes Haskett, Police Chief David Kole, Public Works Director David Bradley, and Deel engineers Andy Deel and Joseph Anlauf also attended the March 7 meeting.
Mr. Rascoe announced that the projected budget for capital street funds in FY 19-20 is $662,340, which represents a levy of 5 cents (.05) on the current Town tax base value.
“You’re not going to get through one, two, three, four [on the priority list] in one fiscal year,” Mr. Anlauf said.
“Hillcrest Drive,” he observed, “will account for the full budget.”
SIDEWALKS ON HILLCREST, SEA OATS, AND EAST DOGWOOD, AND PRESERVATION OF THE MARITIME FOREST
The proposed Sea Oats Trail project seemed to grow with the CIIP Committee’s consideration of it. It remains to be seen how much of the road between its intersections with Hillcrest Drive and Duck Road (Hwy. 12) will be targeted for improvement, when it eventually is done.
Committee member Glenn Riggin suggested constructing a “walking path” on the north side of the street from Sea Oats Court to the intersection of Sea Oats Trail with Duck Road. Member Andy McConaughy supported that idea and suggested that a similar sidewalk be considered for Hillcrest Drive, near its intersection with Duck Road.
Police Chief Kole said he thought any sidewalk on Sea Oats Trail should go beyond Sea Oats Court, for safety reasons, and Mr. Anlauf said the preferred side for a sidewalk on the street, from an engineer’s perspective, is the south side. (Sea Oats Trail runs north-south until Sea Oats Court, when it curves east toward Duck Road.)
Flooding is a problem on Sea Oats Trail in this area. Because of “huge stormwater problems,” Mr. Anlauf said, “The shoulders of the road will have to change dramatically from what you see now.”
Mr. Rascoe reported that he also had evaluated the East Dogwood Trail block between Duck Road and Ocean Boulevard for sidewalk construction. Based on his and Mr. Bradley’s “eyeballing” of the road and the right of way, Mr. Rascoe concluded that “a narrow sidewalk,” of 36 to 48 inches in width, could be built on the south side.
After the discussion about priority targets ended, committee member Carlos Gomez brought up changing Town street standards to better “protect the value of the maritime forest.”
Mr. Gomez made a protracted motion—one of two he had in mind—that seemingly would have tasked the Town Planning Board, the committee, or another group, with reevaluating the Town street standards so as to “maximize preservation of the forest.”
In his presentation, Mr. Gomez referred to the conflict that arose in town recently with the proposed widening of South Dogwood Trail and suggested that the Town should do more to individualize street standards so as to protect the forest, which he called a “treasure” that gives Southern Shores much of its “identity.”
Committee member Al Ewerling, who lives on South Dogwood Trail, agreed that “the look and feeling” of a road, which are part of the “overall ambiance of the town,” should be factored into any road-design standards.
It was unclear what, specifically, Mr. Gomez was requesting in the one motion he made, which Mr. Ewerling seconded. Turning the discussion toward practicalities, Mr. Rascoe suggested that the emphasis be on “specific changes,” rather than on aspirations.
Theoretically, Mr. Rascoe pointed out, the Town could specify that no trees be removed during any road rebuilds.
Although Mayor Bennett expressed a willingness to consider changes to the street standards, his co-chair, Mr. Conners, opposed such scrutiny, defending the current standards as comprehensive.
The Mayor eventually proposed that committee members do their “homework” and come back in May “with recommendations on how to change standards or not.” Mr. Gomez accepted this approach and withdrew his motion.
A FINAL NOTEON SUMMERTIME TRAFFIC: The CIIP Committee meeting ended with a note of divisiveness when Mr. McConaughy brought up diverting vacationer traffic away from the residential cut-through route and asked about last summer’s no-left-turn (“NLT”) weekend. He met immediate resistance from Police Chief Kole, Councilman Conners, and others.
In The Beacon’s opinion, the same biases that existed last June when the NLT weekend took place—and was a resounding success—still exist and do not bode well for residents.
Frankly, The Beacon does not understand why Chief Kole is not doing everything that he can to help year-round Southern Shores residents on summertime weekends. He is a public employee/servant. The Beacon also does not see the humor in the Chief’s reference to drivers speeding through our neighborhoods as “job security.”
It is undeniable that the traffic flow through the Southern Shores woods and dunes and along N.C. Hwy. 12 during the NLT weekend was vastly improved over the usual summertime traffic flow.
The cut-through traffic, which usually emerges at the intersections of Hillcrest Drive/Duck Road, 11th Avenue/Duck Road, and Sea Oats Trail/Duck Road, was not present to jam up Duck Road, so the thoroughfare traffic moved smoothly, as well. The only backup I witnessed on Duck Road occurred on the Saturday afternoon of the NLT weekend. Sunday was a breeze.
The Chief complained at the CIIP Committee meeting about the manpower his department invested in the NLT experiment and the few calls he received from residents on Wax Myrtle Trail and Sea Oats Trail, between East Dogwood Trail and Hillcrest Drive, who saw a slight uptick in traffic in front of their houses.
In a discussion after the committee meeting adjourned, Mr. McConaughy suggested hiring a contractor to handle the erection of barrels, which the Town could purchase, to block the left-turn lane on U.S. 158 at the South Dogwood Trail intersection. Certainly, the Town has ample funds to dedicate to preventing cut-through traffic in the residential district, and, thereby, also improving flow on Hwy. 12, if it so chooses.
The Town Council decided last night to hold a public hearing on the need and desire for beach nourishment in Southern Shores at its April 2 regular meeting. By consensus, Council members agreed that the hearing will be the first order of business on their April meeting agenda, ahead of the customary staff reports.
The Town Council is currently scheduled to meet at 5:30 p.m., on April 2, in the Pitts Center.
Although not mentioned by any Council members last night, public hearings on the two high-occupancy (large) house zoning text amendments that the Town Planning Board has generated also will likely be scheduled April 2. The Planning Board will be considering these amendments, numbered as ZTA 19-01 and ZTA 19-01CUP, at its March 18 meeting. (See The Beacon, 2/22/19 and 2/23/19, for background.)
The Planning Board will vote on whether or not to recommend the two ZTAs, with or without amendment, to the Town Council, which should schedule public hearings on the measures April 2. People may express their opinions on the two ZTAs during the public-comment period of the Board’s March meeting; the Board does not hold public hearings.
(ALERT: The following report on beach nourishment contains opinion, as well as fact.)
The Town Council is considering beach nourishment so soon after its Feb. 26 special planning session, when a consulting coastal civil engineer presented a “vulnerability” study of Southern Shores’ 3.7-mile shoreline and proposed three beach-nourishment plan options, because of the availability of Dare County funds, not because of need. (See The Beacon’s report on the planning session, 2/28/19.)
Project manager Ken Willson of the Wilmington, N.C.-based Aptim Coastal Planning & Engineering of North Carolina, Inc. (APTIM) reported to the Town Council on Feb. 26 that “The dune system in Southern Shores is in pretty good shape.” It is “fairly intact,” he said, providing protection against storms and erosion.
Although the public has the right to access and use the dry-sand area of the beach, which is the area seaward of the dune line up to the mean high-water mark, oceanfront property owners hold legal title to it. The State of North Carolina does not own coastal land west of the high-water mark. Once the dry-sand area is nourished, however, it becomes publicly owned.
The Beacon strongly urges all Southern Shores property owners—especially oceanfront owners, of which I am one (a co-owner)—to attend the April 2 hearing.
RUSH TO JUDGMENT ON BEACH NOURISHMENT
Despite the good condition of Southern Shores’ dune system, and the fact that once nourishment is done, it must be perpetually maintained, several Town Council members appeared ready last night to approve a beach nourishment plan primarily because funding is now available.
Town Manager Peter Rascoe advised Council members that they must decide in April if they are going to “pull the trigger” and commit to a 2022 nourishment project, in order to obtain monies from the Dare County Beach Nourishment Fund.
The county sets aside a portion of the 6-percent occupancy tax that it collects every year in its Beach Nourishment Fund. Fund monies are then apportioned among coastal towns that are doing nourishment projects.
The Towns of Duck, Kitty Hawk, and Kill Devil Hills are scheduled to do five-year maintenance of their 2017 nourishment projects in 2022, hence the target date for construction that Southern Shores would observe if the Town Council votes in April to commit to beach nourishment.
The Town’s maintenance of the Pelican Watch sand nourishment, which occurred in 2017, is also scheduled for 2022.
The four Council members who attended the Feb. 26 special planning meeting discussed setting up a joint Town Council-Town staff committee, or other constituted committee, to do financial planning and prioritizing of big-ticket projects in town, including beach nourishment. This idea was not mentioned last night, however, after Mr. Rascoe brought up the county’s need to know “as soon as possible” if Southern Shores is in or out of the fund allocation for 2022.
The Town Manager is clearly driving this project, but he cannot drive it without Mayor Tom Bennett’s approval. (Mr. Rascoe used to tell me that he only does what the Town Council directs him to do.)
Mr. Rascoe’s advocacy is obvious in the public-hearing notice posted on the Town website today. What The Beacon heard last night was authorization by the Council of a “public hearing on beach nourishment.” There was even talk among Council members about a public-information forum, rather than a hearing.
“A month to make this kind of decision is way too short,” said Councilman Fred Newberry.
What the Town advertises today, however, is a hearing to seek “public comment from Town property owners and residents on [Mr. Willson’s] Plan’s recommendation for sand nourishment of [a] portion of the Town’s public trust ocean beach in year 2022.”
According to the Town’s hearing notice, we have a Town coastal Engineer—not just an independent contractor-consultant—who is recommending a sand-nourishment project.
But Mr. Willson’s report, both the one he submitted in writing and the one he gave to the Town Council in person last month, speaks only of presenting three nourishment plan options for the Town Council’s “consideration.” It does not advocate that the Town execute one of the options.
Mayor Bennett spoke last night about having the “opportunity” to do beach nourishment, within the window offered by the county’s timetable, “if we so choose.”
The Beacon finds the Town’s public-hearing notice misleading, skewed in favor of recommending beach nourishment, rather than just considering it.
Mr. Rascoe routinely refers to the dry-sand beach area east of the dune line as the “public-trust” beach, but, contrary to what you might think, this characterization does not give either the public or the Town of Southern Shores any special ownership status.
The public has the right to access and use the dry-sand beach, as noted above, but this has nothing to do with who owns the dry-sand beach or who pays, in increased real-estate taxes, for it to be nourished. (The common-law “public-trust doctrine” is now part of N.C. statutory law. See N.C. General Statutes sec. 77-20.)
Mr. Willson, who worked with Southern Shores on the 2017 Pelican Watch project and has arrangements with all of the other Dare County-Outer Banks towns, broke down in his report the beach-nourishment cost-estimate options as being between $9 million and $13.5 million. According to last night’s discussions, Dare County would pay for 50 percent of this cost, if Southern Shores were to partake of its Beach Nourishment Fund. The Town—we taxpayers—would make up the other 50 percent.
The Beacon will try to obtain reliable hard tax-rate figures for you before the public hearing.
The Beacon strongly encourages you to do your homework on beach nourishment and the need in Southern Shores to take on such an exorbitant project as early as 2022. It is a massive undertaking that will forever change the size of the budget and, therefore, the size of the government in Southern Shores.
Unfortunately, the Beacon does not have the time and resources in the next month to hire its own geologist and/or civil engineer to do an independent evaluation of Southern Shores’ beaches, but it definitely would like a second opinion.
The Beacon agrees with Councilman Newberry, a frequent beachgoer, who observed last night that the dry-sand area “comes, and it goes.” I’ve watched it in Southern Shores over a span of 50 years, and, although the sea level is rising, so far, I would say the beach has done a good job of sustaining itself.
IN OTHER NEWS FROM LAST NIGHT’S MEETING:
Councilman Jim Conners’s motion to adopt the nonconforming lots ZTA recommended by the Planning Board—which he called ZTA 18-09A—was defeated 2-2, after the Town Council voted unanimously to recuse Councilman Christopher Nason from voting. Mayor Bennett supported the motion with Mr. Conners, and Councilmen Newberry and Gary McDonald voted against it.
Although the latest nonconforming lots ZTA recommended by the Planning Board is known as ZTA 18-09PB, The Beacon and other audience members distinctly heard Mr. Conners refer to 18-09A in his motion: “A, as in alpha,” he said.
The Beacon is unaware of a proposed ZTA 18-09A.
In another error, The Beacon learned last night that the “old business” meeting agenda item about Mr. Conners’s proposal should have referred to a public hearing held on Feb. 5, 2019, not Jan. 8, 2019. (See The Beacon’s report, 3/4/19.)
With so much confusion over the multiple versions of ZTA 18-09, The Beacon challenges the Town’s assertion that a proper public hearing was actually held on Feb. 5.
The nonconforming lots proposal offered last night by Mayor Bennett, which also was previewed in the meeting agenda and covered by The Beacon on Monday, was approved unanimously after it was fundamentally changed.
The proposal described in the agenda called for referring to the Planning Board “an ordinance,” to be drafted by staff, that would allow for the sale or development of nonconforming lots that are at least 20,000 square feet in area and greater than or equal to 50 feet in width. The motion that passed, however, only called for the Planning Board to consider such a provision in its discussions, not for the drafting of an ordinance.
Councilman Newberry made a point of clarifying that Mayor Bennett’s motion did not involve the drafting of an ordinance. The Mayor confirmed that it did not.
Mr. Newberry’s own motion to change the makeup of the Town’s Capital Infrastructure Improvement Planning (CIIP) Committee so that it consists exclusively of “citizen-representatives,” a move that would have required the resignation of the two Council members who chair the committee, failed 2-3, with Mayor Bennett, Mr. Conners, and Mr. Nason voting against it. The Mayor and Mr. Conners are the committee co-chairs.
The CIIP Committee meets tomorrow at 2 p.m. in the Pitts Center to continue its deliberations about the prioritization of infrastructure projects for fiscal year 2019-20.
LOCK YOUR CARS!!
Police Chief David Kole reported upon a recent rash of property thefts from parked vehicles that were left unlocked. He noted that one such vehicle even had a key in its ignition. The Chief said the thefts occurred primarily in the dunes, on streets such as Hillcrest Drive and Sea Oats Trail.
In response to Councilman McDonald’s inquiry about an update on the graffiti vandalism that occurred at 62 Ocean Blvd. in December, Chief Kole said the investigation is still open, and the department is “still following up on leads.”
SSVFD Fire Chief Edward Limbacher reported that the cause of the fire that destroyed the home at 80 S. Dogwood Trail is “still under investigation.”