Southern Shores homeowner Mark Dailey posted the above photograph on Next Door late yesterday afternoon. It depicts cut-thru traffic at the intersection of Sea Oats Trail and Hillcrest Drive, looking north.

As The Beacon reported 5/3/23, the Town Council unanimously voted earlier this month not to take any action on the street to prevent cut-thru traffic. Mayor Elizabeth Morey and her colleagues on the Council decided, based on anecdotal evidence, that the “No Thru Traffic” barricades employed last summer were not effective.

“Mayor Morey,” we wrote 5/3/23, “said she thought the ‘potential for conflict’ between and among drivers and residents over [the use of the barricades] ‘outweighs their efficacy,’ an opinion she based on her personal observations last summer and one that she has consistently expressed since June, when people acted out angrily over the closure of Hickory Trail at East Dogwood Trail.

“Town Councilmen Matt Neal and Mark Batenic agreed with the Mayor, saying that their informal observations last summer led them to believe that too many cut-thru drivers were ignoring the barricades. Town Councilwoman Paula Sherlock expressed her dislike for the ‘eyesore’ that the barricades created.”

The Beacon has been writing about the scourge of cut-thru traffic since we started this blog in April 2018. We have suggested many problem-solving tactics and reported upon those that were employed. We also have reported on many public meetings about how to address the cut-thru traffic, including those held by the citizens’ Exploratory Committee to Address Cut-Thru Traffic, which was sanctioned by the Town Council, and the traffic engineering consultant hired by the Town to evaluate traffic conditions.

(To read about the findings of the exploratory committee and the outside traffic consultant, J.M. Teague Engineering and Planning of Waynesville, N.C., see The Beacon, 3/29/21 and 2/18/21, respectively. The Town paid $7500 for Teague’s study and report.)

As those of you who have been in the trenches for a while know, action by the Town Council comes slowly. None of the suggestions made by the traffic engineer, which were chiefly physical barriers, was even considered for implementation by then-Mayor Tom Bennett, who served from 2013-21, and the Town Council.

Indeed, it took four years and a radical change in Town Council membership before the left-turn prohibition at U.S. Hwy. 158 and South Dogwood Trail, which emerged as a solution from a 2014 townwide traffic workshop–for which the Town hired a professional mediator–was tried on a trial basis, and then opponents mischaracterized the results, to discourage its continued use. (See The Beacon, 6/25, 6/29, and 7/6/18.)

Police Chief David Kole was one of the primary detractors of the turn prohibition. He did not want to commit resources to enforcing it.

For six years Mayor Bennett consistently voted against prohibiting the left turn at South Dogwood Trail or taking any other actions suggested by property owners to reduce traffic. He repeatedly said in public that he considered the summertime traffic “the burden of living here.”

Mr. Bennett cast the sole dissenting vote against holding three “manned” no-left-turn weekends during the summer of 2020, the first of the Covid-19 summers. “Manned” meant having the Southern Shores police monitor the intersection for violations.

Two weeks later, however, the Mayor abruptly reversed course. The unprecedented traffic jam-up of the first two weekends in June, during which the left turn was not prohibited, was “not a healthy situation,” he said. At the Mayor’s initiative, the Council added two “unmanned” no-left-turn weekends in June.

Is that what it is going to take for Mayor Morey and the current Town Council to take further action this summer, including restoring some barricades? An “unhealthy situation”?

The Town of Kitty Hawk, which has jurisdiction over the left-turn lane at the U.S. 158-South Dogwood Trail intersection, refused to cooperate last summer with a left-turn prohibition on weekends, citing “safety concerns,” according to then-Town Manager Andy Stewart. (See The Beacon, 5/13/22.)

Would Kitty Hawk abruptly change course and support its neighbor if the situation became “unhealthy”?

If so, would the Southern Shores police, with assistance from the Kitty Hawk police, commit the necessary resources to enforcement of the ban to make it effective? “Unmanned,” as experience teaches, doesn’t cut it.

The arriving northbound cut-thru traffic yesterday–judging from our observations–was steady on South Dogwood Trail, not backed up, as it can be during peak season. It is only going to get worse when schools close for the summer.

It has been nearly a year since Mayor Morey held a Mayor’s Chat. We think one is well overdue.

Although Next Door has become the go-to forum for residents’ traffic complaints, and we are publishing less frequently, we still welcome your comments here.

(We apologize for the technical difficulties earlier, which resulted in subscribers receiving notice of this blog post twice.)

Ann G. Sjoerdsma, 5/28/23

When Town Manager Cliff Ogburn asked the Town Council at its May 2 meeting what measures it would like to take this summer to prevent the scourge of cut-thru traffic on residential streets, the four members present were quick to disparage the use of “Local Traffic Only” barricades, as were used last summer, but not to offer any new ideas at the street level.

(Town Councilman Leo Holland was absent. See The Beacon, 5/3/23, for our meeting report.)

We would have liked to have heard the three elected Council members, and one appointed member, engage in a creative problem-solving session, with the objective being to design an enforcible plan to prevent cut-thru traffic and thereby promote public health, safety, and welfare.

The Town has tools available to it now to improve upon traffic conditions on summertime weekends, if it chooses to use them.

In the spirit of creative problem-solving, we offer the following plan that combines street closures, which are legal and can be effected with the barricades that the Council rejected for this summer—on the basis of only one configuration of their use—with police control of key Duck Road intersections:

Part One: Street Closures

We propose 1) Blocking access to Ocean Boulevard at the Triangle cell tower park (the Duck Road split); and

2) Blocking access to all streets off of N.C. Hwy. 12, between the Duck Road split and the East Dogwood Trail intersection, that lead to Wax Myrtle Trail, and blocking access to Eleventh Avenue, which connects Duck Road with Sea Oats Trail. Thus, no motorist driving on Duck Road could jump off of the thoroughfare by turning left on to Porpoise Run, Dolphin Run, or Eleventh Avenue.

Other optional closures include Trout Run (which is a right turn off of Duck Road) and Hickory Trail, where it intersects with Hwy. 12.

Part Two: Police Direction of Traffic

We next propose:

Assigning police officers to direct vehicle flow at the traffic-light-controlled intersections of Hillcrest Drive and Duck Road and Sea Oats Trail and Duck Road, and consider adding a third officer at the Hickory Trail-Duck Road intersection. These officers would move the northbound Hwy. 12 traffic along and allow, at most, two vehicles at a time to join the flow from Hillcrest Drive and Sea Oats Trail and, optionally, Hickory Trail.

Any motorist who elects to circumvent Hwy. 12 by cutting through on the South Dogwood Trail-to-East Dogwood Trail-to-Hickory Trail-to the dunes route should encounter a major delay and be discouraged from ever doing it again.

Police know how to clear congestion through a bottleneck. They know how to keep intersections unblocked and open. We should take advantage of their expertise at least every Saturday afternoon this summer, and perhaps also on Sunday afternoons during the peak season.

With the cooperation of the N.C. Dept. of Transportation, the traffic lights at the key Duck Road intersections could be set so that they are blinking yellow on the thoroughfare and red on the side streets. We do not believe N.C. DOT would object to either local police traffic control or blinking lights on Hwy. 12. The State is very familiar with the summer weekend traffic nightmare.   

Part Three: Duck’s Participation

We further propose:

Enlisting at least two officers from Duck’s well-staffed police department to control traffic and pedestrian flow at the most-popular Hwy. 12 crosswalks in its downtown. Their objective would be to keep the traffic moving so that a backup does not undermine the police efforts on Hwy. 12 in Southern Shores. Duck year-rounders, who are also beleaguered by the northbound traffic on summer weekends, would welcome their presence and efforts.

**

What Do You Think?

Southern Shores residents already plan their summer weekends to avoid the traffic congestion in town, especially on Hwy. 12. We do not believe our plan aggravates the inconvenience that residents who rely upon Hwy. 12 to come and go—for example, those who live on or off of Duck Road, such as in Seacrest Village—already experience. It it works, we believe it would improve their weekend road travel considerably.      

Please let us know what you think about our proposal for traffic control and share with us any proposals that you may have, keeping in mind the tools that the Town already has and can exercise.

THE TOWN’S AUTHORITY  

Lest you wonder, we assure you that the Town of Southern Shores has the authority to close its streets to ALL traffic, when and where it chooses.

According to section 160A-296 of the N.C. General Statutes, a “city [or town] shall have general authority and control over all public streets, sidewalks, alleys, bridges, and other ways of public passage within its corporate limits,” except when authority and control “over certain streets and bridges” are vested in N.C. DOT.

The Town owns all of the streets within its corporate limits, except N.C. Hwy. 12 and U.S. Hwy 158, which are within the jurisdiction of the State, and a few private roads, such as Mallard Cove Loop and a section of Fairway Drive.

Section 160A-296 further states that a municipality’s “authority and control” over its public streets includes “the power to close any street or alley either permanently or temporarily,” and “the power to regulate the use of the public streets, sidewalks, alleys, and bridges.” Sec. 160A-296(a)(4)-(5).

Cities and towns have this regulatory authority because the 10^th Amendment of the U.S. Constitution reserves to the states all “rights and powers” that are not delegated elsewhere in the Constitution to the United States (i.e., the federal government.)

Such powers are known as “police powers.” They enable municipalities to act to protect the public health, public morals, public safety, and the general welfare of their communities.

If the Town were to close its streets to non-resident motorists and others who do not have business in Southern Shores, and keep them open to temporary and permanent residents, property owners, and others who do have business in Southern Shores, it could face a legal challenge.

But legal challenges are not the same as court victories.

In any lawsuit based on a constitutional claim, the Town would rely upon its police powers to assert that it has a “rational basis” for taking action, i.e., it is protecting the public health, safety, and welfare and using reasonable means in doing so.   

THE TERMS OF THREE COUNCIL MEMBERS EXPIRE THIS YEAR

We conclude our plan by pointing out that the terms of office of three current Town Council members expire in December: They are Mayor Pro Tem Matt Neal, Councilman Mark Batenic, and Councilman Holland. Three people on the Council constitute a majority.

The municipal election for these seats will be held Nov. 7. 

Candidates wishing to run for Southern Shores Town Council must submit their applications to the Dare County Board of Elections during a two-week filing period that opens at noon on Friday, July 7, and closes at noon on Friday, July 21.       

We encourage residents who are fair, open-minded, and creative people with problem-solving, leadership, and communication skills to consider running for town office. We need fresh perspectives and a diversity of opinion in our government representation. We need brainstormers who will fight to protect the public’s interests.

Ann G. Sjoerdsma, 5/12/23

The Southern Shores Town Council unanimously approved last night adopting the No-Thru Traffic Resolution, no. 2023.05.02, whose purpose, Mayor Elizabeth Morey said, is to “affect navigation applications,” such as WAZE, so that they will not direct motorists to the cut-thru residential streets, and rejected by consensus the placement of any barricades on the cut-thru streets, including on Ocean Boulevard at the Duck Road split or at any other intersections, where anecdotal evidence by residents might have suggested they were effective.

(See The Beacon, 4/28/23, for the text of the resolution and other background.)

The intent of the resolution, as the Mayor made clear, is not to legislate a cut-thru traffic ban, but to provide WAZE, which is owned by Google, with a municipal order that authorizes it to withhold from motorists alternate routes around congestion on U.S. Hwy. 158 and N.C. Hwy. 12.

The Mayor said she, Mayor Pro Tem Matt Neal, and Town Manager Cliff Ogburn had a Zoom conference with WAZE representatives to effect the resolution.

According to Police Chief David Kole, this new traffic-control tactic “can’t hurt,” but “we cannot enforce it.”

It was unclear from comments last night whether the Town would erect “No Thru Traffic” signs on any residential streets.      

In dispensing with the “Local Traffic Only” barricades, Mayor Morey said she thought the “potential for conflict” between and among drivers and residents over their use “outweighs their efficacy,” an opinion she based on her personal observations last summer and one that she has consistently expressed since June, when people acted out angrily over the closure of Hickory Trail at East Dogwood Trail. (See The Beacon’s coverage last June.)   

Town Councilmen Matt Neal and Mark Batenic agreed with the Mayor, saying that their informal observations last summer led them to believe that too many cut-thru drivers were ignoring the barricades. Town Councilwoman Paula Sherlock expressed her dislike for the “eyesore” that the barricades create.

It is a shame that the Town did not present any objective data about the barricades’ effectiveness or report on the number of hostile incidents (what, when, and where) that could be attributed to their deployment.  

The Council also showed by consensus an interest in exploring the implementation of speed bumps or humps on residential streets in response to a Wax Myrtle Trail property owner’s complaint about speeding by weekend cut-thru motorists on his street.

While the idea of installing temporary speed bumps/humps has come up repeatedly during the past eight years, elected officials have declined to act upon it.

“I’d be willing to try [speed bumps],” Mayor Morey said last night, “maybe.”  

The other three Town Council members present were equally tepid about their use. Town Councilman Leo Holland did not attend the meeting.

Last summer speeding complaints came from residents on South Dogwood Trail, Sea Oats Trail, and East Dogwood Trail (between Hickory Trail and South Dogwood Trail), in addition to Wax Myrtle Trail. (See The Beacon, 6/23/22, 7/14/22.) Such complaints are long-standing.

As we mentioned in our 4/28/23 post, we were not able to attend last night’s meeting or to live-stream it. We have watched most of the meeting videotape today, but, unfortunately, are not in a position to do more than submit this short report on the Council’s and the public’s discussion of seasonal traffic mitigation efforts.

We are disappointed that the Council adopted an all-or-nothing approach to the use of barricades, rather than examining where their placement might serve as a deterrent to cut-thru traffic (Ocean Boulevard**), and also did not consider any other means that might be employed this summer, such as preventing left turns off of residential streets on to Duck Road during certain hours of the weekend.

Andrew McConaughy, who lives on Wax Myrtle Trail, said in public comments that he thought the barricades “were working well.”

The Mayor heard similar comments from residents at her July 13, 2022 chat, which was held after the Town temporarily removed the barricades. (See The Beacon, 7/14/22.) Robert Green Sr. of Hillcrest Drive told her then: “The barricades were working.”

Even a closure of the Dick White Bridge, which is located on East Dogwood Trail between Hickory Trail and South Dogwood Trail, during certain hours on summer Saturdays merits some discussion. Mr. Ogburn mentioned the bridge closure as an idea that the Town has not tried, but no Council member picked up on it.

If ideas are going to be recycled, the bridge closure is certainly one that should be reconsidered.    

The No-Thru-Traffic Resolution was originally prepared in 2014-15, according to Mr. Ogburn, who said he basically did a “cut and paste” job in drafting it. It is a shame it took the Town Council eight years to get back around to it.

We were hoping that the resolution showed more commitment by the Town to protect the community from cut-thru traffic. It is not news to us that the navigation-app companies will respect town ordinances and resolutions regarding use of Town roads. Tommy Karole, the chairperson of the citizens exploratory committee on cut-thru traffic, often referred to this deference and the need for the Town Council to enact a resolution like the one that was adopted.

While we support the resolution, we also call upon the Town Council to do more to prevent the cut-thru traffic this summer.

IN OTHER NEWS . . . Mr. Ogburn presented a recommended budget for fiscal year 2023-24 of $9,731,450, which is 10 percent higher than the FY 2022-23 budget that was approved last June.

Although he suggested last year that a tax-rate increase might be necessary this year, Mr. Ogburn said last night that “A tax increase is not recommended at this time.”

The public hearing on the FY 2023-24 recommended budget will be held during the Town Council’s June 6 meeting, which starts at 5:30 p.m. in the Pitts Center.

You may access the recommended budget here: https://www.southernshores-nc.gov/sites/default/files/fileattachments/town_council/page/3043/fy_23-24_budget._2_year_packet_1.pdf.

ANN G. SJOERDSMA, 5/3/23   

The No-Thru-Traffic resolution that the Town Council will consider at its Tuesday meeting consists of 16 whereas clauses and two paragraphs of operative clauses, which read:

“Now, therefore be it resolved, the Town has approved implementation of No Thru Traffic at the intersections of all Town streets and NC158 and NC12 from the Friday before Memorial Day and Labor Day.

“Now, therefore be it further resolved, all users of Town streets, neighboring jurisdictions and mapping and traffic application providers are hereby provided notice of the above referenced No Thru Traffic so that they act accordingly.”

The Beacon first reported yesterday on what appears to be a breakthrough commitment by the Town to prevent summertime cut-thru traffic on residential streets. See The Beacon, 4/27/23.

According to the agenda posted online yesterday, the resolution, which is no. 2023.05.02, will be considered at the meeting in the course of a discussion about seasonal traffic mitigation, led by Town Manager Cliff Ogburn. It is “new business” that will be taken up between the two public-comment periods, so residents will be able to comment on any actions taken by the Council.

The Town Council meets Tuesday at 5:30 p.m. in the Pitts Center. The meeting will be live-streamed on the Town’s You Tube site.

See the agenda and resolution at https://mccmeetings.blob.core.usgovcloudapi.net/soshoresnc-pubu/MEET-Packet-2830a2e5a90f47999906658e5c18b40c.pdf. The resolution starts on p. 5.

In other important meeting business, Mr. Ogburn will present his recommended budget for fiscal year 2023-2024, which begins July 1, 2023, for the Town Council’s review and discussion. The FY 2023-24 budget is not currently online for public review. The public hearing on the budget will be held during the Council’s June 6 meeting.

WHAT DOES IT MEAN?

The first thing you might notice about the resolution’s operative wording is that the time period for the “implementation of No Thru Traffic” needs correction. It should be “from the Friday before Memorial” until or through “Labor Day,” or alternatively between “the Friday before Memorial Day and Labor Day.”

You next might ask: What does it mean to “implement” No Thru Traffic?

We expect this question will be elaborated upon at the meeting, with Police Chief David Kole participating.

Resolutions are not ordinances; they are not laws. We leave to Town representatives the task of explaining how the resolution, which is titled “Resolution of the Town Council of the Town of Southern Shores, North Carolina Providing Notice of Traffic Control on Certain Streets and Specific Days during the Summer of 2020 [sic],” will be implemented and enforced, if at all. (The year needs correction to 2023.)

If the resolution is designed simply to serve notice to WAYZ, Google, and other “mapping and traffic application providers” that they are not to direct motorists to residential streets in order for them to avoid congestion on U.S. Hwy. 158 and N.C. 12, then we believe its effect will be very limited.

The 16 whereas clauses, which are the resolution’s “preamble” or “preambular clauses,” effectively describe the Town’s authority in regulating the use of its roads, the road conditions that lead to the excessive amount of traffic upon residential streets during the summer vacation season, the hazards and problems that the cut-thru traffic causes residents, the uncertain future of the Mid-Currituck Bridge “which will not begin to alleviate the substantial traffic through the Town for multiple future Summer Seasons,” and much more. They all coalesce into the 16^th preambular clause, which states:

“WHEREAS, it is in the interest of the public’s health, safety, morals and general welfare that the Town of Southern Shores execute upon a plan to provide for No Thru Traffic during the Summer Season and provide notice of the change in traffic pattern to third parties and appropriate authorities.”

What that “plan” may be is not clear from the resolution.

The residential streets that intersect with either U.S. Hwy. 158 or N.C. 12 and that may be used as cut-thru roads by summertime motorists are South Dogwood Trail, Juniper Trail, Chicahauk Trail, Ocean Boulevard north of the cell tower, Porpoise Run, Trout Run, Dolphin Run, East Dogwood Trail, Periwinkle Place, Hickory Trail, Hillcrest Drive, 11^th Avenue, and Sea Oats Trail.

South Dogwood Trail is the main artery that both arriving and departing vacationers use to drive around the congestion on the State-owned roads, 158 and 12.

We believe the principal operative clause of the resolution, which speaks to an approval of implementation of No Thru Traffic, could and should be strengthened, but we refrain from saying more until we hear Tuesday about the Town’s intent and potential enforcement means.

We encourage all residents to attend Tuesday’s meeting and to show in number how critical it is to you—to your safety, your health, and your general welfare, and that of your family—for the Town to take additional measures to prevent summertime cut-thru traffic.

Regrettably, we will be unable to attend the meeting or to live-stream it because of preexisting commitments out of town. We will report on it as soon as we can.  

ANN G. SJOERDSMA, 4/28/23    

The Town Council will consider Tuesday a breakthrough resolution that would authorize the prohibition of summertime thru traffic on all residential streets that intersect with U.S. Hwy. 158 or N.C. Hwy. 12, according to its meeting agenda, which was posted on the Town website today.

The Town Council meets Tuesday at 5:30 p.m. in the Pitts Center.

See the agenda and resolution at https://mccmeetings.blob.core.usgovcloudapi.net/soshoresnc-pubu/MEET-Packet-2830a2e5a90f47999906658e5c18b40c.pdf. The resolution starts on p. 5.

Mayor Elizabeth Morey previously invited residents to appear at Tuesday’s meeting and offer their ideas and solutions for alleviating seasonal cut-through traffic, a problem that came up yesterday in heated remarks at the public workshop about the draft of the new Land Use Plan.

The Beacon will publish more details about the resolution and the upcoming Town Council meeting tomorrow. Stay tuned.

THE SOUTHERN SHORES BEACON

The Town will hold a public workshop Wed., April 26, from 5 p.m. to 7 p.m., to receive comments about the draft of the new Land Use Plan (LUP), which the Town posted on its website this morning, two days later than consultant Stewart said it would be available for review.

You may access the draft 2023 LUP here: https://www.southernshores-nc.gov/sites/default/files/fileattachments/planning/page/2509/4-21-23_draft_land_use_plan.pdf.

The Land Use Plan that is currently in effect may be accessed here: https://www.southernshores-nc.gov/sites/default/files/fileattachments/planning/page/2431/8-30-12certifiedadoptedlanduseplan.pdf.

For comparison, we direct you to Duck’s Comprehensive and CAMA Land Use Plan, which was also prepared by Stewart and was certified in 2021: https://www.townofduck.com/wp-content/uploads/Duck-LUP-FINAL-CRC-APPROVED-2021-11-17-low-res.pdf.

The workshop will be held in the Pitts Center.

We will try to publish an analysis of the draft LUP by Wednesday morning.

We draw your attention now to a significant change in the Community Vision Statement that is in the update.

Found on p. 79 toward the back of the 105-page draft LUP, the new Community Vision Statement reads:

“The Town of Southern Shores is a coastal town whose identity is intimately tied to its natural resources, history, community, and small-town charm. We strive to preserve and protect Southern Shores’ unique character, environment, and tourism-based economy while supporting the local livelihoods and ensuring a high quality of life. The community’s close-knit bonds create a transparent, responsive, and participatory local government.”

Contrast this with the Community Vision Statement that is up front on p. 8 of the current 91-page Land Use Plan, which contrary to references to it in the draft LUP, is dated 2008 (not 2012), per a note by the N.C. Coastal Resources Commission (CRC) on p. 2 of the Plan:

“The Town of Southern Shores (TOSS) is 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.) interspersed with recreational facilities (e.g., marinas, tennis facilities, athletic fields, and parks), beach accesses, walkways and open spaces. These neighborhoods are served by picturesque local roads (rather than wide through streets) along the beach, in the dunes or in the sound-side maritime forest. The scale and architecture of new development and re-development is compatible with existing homes. The community is served by a small commercial district, located on the southern edge of town, which focuses on convenience shopping and services. The desired plan for the future is to maintain the existing community appearance and form.”

The Community Vision Statement in Duck’s 2021 LUP is also at the front of the document on p. 8. (See above.)

The Coastal Area Management Act (“CAMA,” a statute, not an agency) requires North Carolina’s coastal counties to have land use plans, which are made up of policies and maps that provide a blueprint for the community’s growth and development. Although CAMA does not require coastal towns and cities to have land use plans, all towns in Dare County have them.

The CRC certifies all land use plans prepared by coastal counties and towns and has promulgated guidelines to assist them in their preparation.

The CRC’s guideline about community vision states that “The vision shall describe the general physical appearance and form that represents the local government’s plan for the future. It shall include objectives to be achieved by the plan and identify changes that may be needed to achieve the planning vision as determined by the local government.” (Quoting 15 N.C. Administrative Code 07B .0702.)

We do not believe the new Community Vision Statement is responsive to this guideline. For starters, it says nothing about the town’s “general physical appearance and form.” It seems to be more of a general political statement than a precise statement about the town’s environment, which is CAMA’s concern.

The Community Vision Statement serves as a guiding policy for all zoning decisions in Southern Shores and is vitally important. In recommending zoning changes, a majority on the Town Planning Board must agree that they comply with the Land Use Plan. In enacting zoning changes, a majority of the Town Council must make the same assessment. The words “low density” have long been defining words for Southern Shores and its future growth and development.

Please plan to attend the workshop next Wednesday and urge your neighbors to attend, as well.

ANN G. SJOERDSMA, 4/21/23

The Town is in the process of rewriting the lot width requirement in all zoning districts to make it “less ambiguous,” as Planning Director Wes Haskett explained at the April 17 meeting of the Planning Board, which considered a first draft of a revision and voted unanimously to “send it back” to Town staff for “more work.”

The revision is Zoning Text Amendment (ZTA) 23-03, which you may access here: https://www.southernshores-nc.gov/sites/default/files/fileattachments/planning_board/meeting/3042/zta-23-03_lot_width.pdf.

For about 50 minutes Monday, the Planning Board considered this simple definition in ZTA 23-03, without reaching consensus on it or on an acceptable substitute:

Lot width means “the minimum horizontal distance between the side lot lines of a lot measured from the front lot line at right angles to the rear lot line.” (A revision of the definition in Town Code sec. 36-57.)

In the RS-1 single-family residential district where most Southern Shores homes are located, ZTA 23-03 provides that the minimum lot width is 100 feet measured “from the front lot line at right angles to the rear lot line.” (A revision of Code sec. 36-202(d)(2).)

The Town Council requested this ZTA after it reversed a decision by the Board of Adjustment last October against property owners operating as Skyline Oaks Properties LLC (“Skyline Oaks”) who sought to recombine an 80,000-square-foot tract land at 55 Skyline Road into four smaller buildable parcels. Skyline Oaks’ proposal essentially constituted a subdivision of the property.

(See The Beacon, 10/1/22, for background.)

Although each of the new lots would measure 100 feet in width, their configuration persuaded Mr. Haskett, serving in his capacity as Zoning Administrator, to deny approval of Skyline Oaks’ recombination plat because it would create nonconforming lots in violation of the lot width requirement in the RS-1 residential district.

In reaching his decision, Mr. Haskett applied the current language in sec. 36-202(d)(2), which states that the minimum lot width of 100 feet is to be measured from the “building setback line measured at right angles to depth.”

The “building setback line” is defined in Code sec. 36-57 as a line that is “parallel to or concentric with the street right-of-way establishing the minimum allowable distance between such right of way and the nearest portion of any building.”

Lot “depth” is defined in the same Code section as “the average distance from the street line of the lot to its rear line measured in a general direction of the side lines of the lot.” (Our emphasis added.)

Confusing matters further, the current definition of lot width in sec. 36-57 is “the width of a lot at the required building setback line measured at right angles to depth.”

In a written decision, Mr. Haskett explained how he interpreted the applicable ordinances and calculated the 100-foot width: “[A]ll of the proposed lots,” he wrote, “should have a minimum width of 100 feet measured at a line that is parallel to and 25 feet from the current right-of-way, Skyline Rd.”

He essentially interpreted the building setback line to be the same as the front setback line, which, in the RS-1 district is 25 feet.

The Board of Adjustment is a quasi-judicial body comprised of members of the Planning Board. Among its functions, it hears appeals by property owners from administrative decisions by the Town, such as the denial of Skyline Oaks’ recombination.  

After a hearing on the merits, the Board agreed, 3-2, with Mr. Haskett’s interpretation of the ordinances, and the property owners appealed its decision to the Superior Court of Dare County.

The Beacon attended the Board’s Oct. 5 hearing on Skyline Oaks’ appeal, but did not report on its outcome—in large part because the Town Code analysis was so convoluted.

The main issue for the Town, for whom Mr. Haskett testified, was that two of the four lots the property owners proposed to create were behind two lots that fronted on Skyline Road. They, therefore, did not have building setback lines, as he defined that term.  

In an action that was not publicly reported and only sketchily referred to by Mr. Haskett at Monday’s Planning Board meeting, the Town Council intervened to enter into a consent decree with Skyline Oaks, resolving the matter in its favor. The Council overruled Mr. Haskett’s interpretation, allowing the property owners to proceed with their recombination.

As we learned at Monday’s meeting from Planning Board member Robert McClendon, who is one of the principals in Skyline Oaks and, therefore, recused himself from the Board of Adjustment hearing, the Town did not pay the limited liability company’s legal fees.

ANALYZING DRAFT ZTA 23-03 AND MEASURING LOT WIDTH

We agree with the Planning Board that the language of ZTA 23-03, which Mr. Haskett said Monday the Town Attorney had approved, is not sufficient. It does not clear up the ambiguities of the current measurement scheme; it just creates new ones.

We do not agree, however, with an apparent majority of the Board who, nonetheless, told Mr. Haskett, in an informal poll that he took, that they like what is in ZTA 23-03.

Curiously, when Mr. Haskett asked the Board, “Do you all think that what’s in the language [of ZTA 23-03] now should remain?”, he observed that three members said yes.

The same three replied favorably to Mr. Haskett’s follow-up question as to whether “the lot width language in the [proposed] ordinance should stay as it is.”

Board Vice-Chairperson Tony DiBernardo, who ruled in favor of Skyline Properties at the Board of Adjustment hearing, clearly said, “Yes, with some work.” Mr. McClendon also expressed his approval of the ZTA’s language.

New Board member Jan Collins, a former alternate, seemed unsure as to what Mr. Haskett was asking, asking him in return what other possibilities they could consider. (The Planning Board is free to draft whatever language it would like as a replacement.)

Planning Board Chairperson Andy Ward adamantly disagreed, and we believe Ed Lawler also said, “No,” although his response was not audible on the meeting videotape.

The Planning Board was stymied in its discussion Monday by the reality that many lots in Southern Shores are irregularly shaped and not uniformly 100 feet wide from side-lot-line-to-side-lot-line at all locations.

Mr. Ward, who was the most vocal in opposing the language of ZTA 23-03, offered one such lot for the Board’s consideration: Located on a cul de sac in town, it is shaped like a cone, not a rectangle, with more than 100 feet of width in the rear of the lot and less than 100 feet of width in the front.  

It is well known that lots in Southern Shores were platted before the community became an incorporated town in 1979 and enacted a Town Code with minimum requirements for lot dimensions. Non-conformities exist and are permitted.

In its discussion, the Planning Board considered replacing the proposed lot width definition with one that uses an average of widths on a lot to arrive at the 100-foot minimum; but no consensus developed around this approach.

The problem that we have with the proposed language in ZTA 23-03 is that it does not offer a reference point to calculate a right angle. The front lot line and rear lot line are typically parallel with each other, not perpendicular, so what does it mean to measure width from the front lot line “at right angles” to the rear lot line? Clearly, depth is involved, but the language doesn’t refer to depth.

We consulted the American Legal Publishing, whose attorneys and editors have been assisting municipalities with ordinance codification for nearly 90 years. According to our online research, American Legal offers the following definitions for lot width and lot depth:

WIDTH: “is the horizontal distance between the side lot lines, measured at right angles to the lot depth at a point midway between the front and rear lot lines.”

DEPTH: “is measured along an imaginary straight line drawn from the midpoint of the front property line of the front property line of the lot to the midpoint of the rear property line.”

If depth runs vertically and width runs horizontally, a right angle can be achieved and measured.

What these definitions do is put the lot width measurement at the midway depth point between the front and rear lot lines.

Whatever the Planning Board—and the Town Council, in time—decide to do about defining lot width, we strongly recommend that they streamline the applicable ordinances so that lot width is only defined in sec. 36-57, and the width requirements in the ordinances for each zoning district refer only to the minimum number of feet. Thus, if you consulted Code sec. 36-202(d)(2), you would learn that the minimum lot width is 100 feet, but you would have to read the definition of lot width in sec. 36-57 to know how the 100 feet are measured. A referral to sec. 36-57 could be inserted next to the lot width requirement for each zoning district.  

As it is now, if you consult the width requirement for the RS-1 residential district, you learn that it is “100 feet (measured at the building setback line).” You then have to look up what the “building setback line” is—the confounding definition of which we quoted above—and, for good measure, consult the definitions in sec. 36-57 for “lot width” and “lot depth”! It’s too much.

It is also important to keep in mind that the Town has a minimum lot size requirement in RS-1 of 20,000 square feet—although there certainly are smaller developed lots. (See Code sec. 36-202(d)(1)) The area and width requirements are supposed to combine to preserve the low-density nature of Southern Shores’ residential neighborhoods, which is the underlying point of all of the minimum dimension requirements.

THE NEXT PLANNING BOARD MEETING WILL BE MONDAY, MAY 15, AT 5 P.M. IN THE PITTS CENTER: The Board has a heavy agenda that day, according to Mr. Haskett, and may or may not resume its discussion of ZTA 23-03.

ANN G. SJOERDSMA, 4/20/23

Confusion over whether the Southern Shores Landing, a “planned unit development” of cluster housing approved by the Town in 2005, is zoned C General Commercial or RS-10 (high density) Residential has Landing residents concerned over how close any future development on an adjacent commercial property that fronts on U.S. Hwy. 158 may be to their homes.

The Landing is located on the northwest corner of the U.S. 158-S. Dogwood Trail intersection. Some of the houses in the development back up to property owned by Ginguite LLC (a SAGA investor group) at 6195 N. Croatan Hwy. (U.S. 158), which is zoned commercial, but may be re-zoned mixed-use development.

All residential districts in Southern Shores enjoy a 50-foot setback from buildings, parking spaces, incinerators, and other facilities that may be erected on an adjacent commercial or mixed-use development property. This protection is set forth in Town Code sections 36-270(c)(11)(j) [mixed use] and 36-270(d)(7) [commercial].

The Code also requires a 20-foot-wide vegetative “buffer” between commercial and mixed-use districts and residential districts, apparently within the 50-foot setback.

The Town’s Planned Unit Development (PUD) ordinance slightly differs, requiring a “minimum buffer” of just 35 feet between the PUD’s “exterior boundary line” and all structures, parking areas, or other uses of adjacent property except for open spaces. (Town Code sec. 36-265(4).)

While it would seem obvious that the Landing is in a high-density residential district, a flawed 2005 zoning map showed it as being entirely commercial, according to Town Manager Cliff Ogburn at a workshop meeting held March 21 by the Town Council to address the situation.

A 2007 map, he told the Council, showed the Landing as two-thirds RS-10 and one-third, C General Commercial.

Zoning maps in the current Land Use Plan (LUP), which is dated 2008, clearly show the Landing as being in a high-density residential zoning district. The LUP itself singles out the Landing on p. 37 as being one of the high-density residential areas.

(As The Beacon recalls, the Landing’s development in 2005 was affected by a Town moratorium on building and by a water supply issue. We were unable to research the situation further on the Town’s website through Council meeting minutes. There should be ample records in Town Hall about the Landing’s planning, approval, zoning, and development.)

According to Mr. Ogburn, the Town has always treated the Landing as if it were zoned RS-10, and property owners have assumed this residential zoning. The Dare County GIS also shows the Landing’s zoning as RS-10, but Mayor Elizabeth Morey said at the March 21 meeting that the GIS is wrong.

Several Landing residents spoke at the Council’s April 4 meeting, asking for a 50-foot setback, which would resolve any confusion or mapping mistakes in their favor. Their remarks were a carry-over from the Town Council workshop, during which Mr. Ogburn sketched out the zoning issue, but the Council made few public comments, choosing instead to hold a closed session, after which it instructed the Town staff on future action it should take.

Residents had expected the Council to consider Zoning Text Amendment 23-02, which authorized a zoning change for all residences from commercial to RS-10, and Zoning Map Amendment 23-01. Both were submitted by a Landing property owner and designed to correct errors made by the Town in favor of Landing property owners. Instead, the Town withdrew the zoning amendments, Mr. Ogburn explaining that Town staff are working on revising both.

Mayor Morey said both the ZTA and the ZMA should be introduced by the Town, not a private property owner.   

Perhaps the most telling comments made at the March workshop, which lasted only 20 minutes, came from Town Attorney L. Phillip Hornthal III, who emphatically stated that if a title search had been done by the closing attorney of a buyer of a Landing property, “the record title would have shown it was commercial.”

Sounding very much like a litigator, he further stated that buyers are “charged with knowledge of record title.”

“That’s why people buy title insurance,” Councilman Mark Batenic interjected.

Mr. Hornthal enthusiastically agreed, saying: “Spot on!”

In the course of public comments at the workshop, Michael Strader, an engineer with Quible & Associates who appeared on behalf of Ginguite LLC, said that a mixed-use project for its property is “in the works,” but nothing has been submitted to the Town Planning Board yet. Not surprisingly, Mr. Strader said his client purchased its property on Ginguite Creek (in 2014), believing that the Landing development was zoned commercial. He offered to work with the Town and Landing residents to arrive at a compromise on setbacks.

After holding a closed session to discuss the situation with Mr. Hornthal, the Town Council returned to pronounce three directives, or “action items,” as the Mayor called them. The Town staff is to:

1. Continue researching the impact of planned unit developments in Southern Shores; [Note: PUDs are addressed in Town Code sections 36-263 to 36-265, which were enacted in 1988. They are permitted solely for residential uses, according to the ordinances.]
2. Update the zoning map to reflect the proper zoning district for the Landing; and
3. Draft a zoning text amendment to address lot width measurements.

These actions are pending. Inasmuch as there is no “proper” zoning of the Landing, just historical zoning, as revealed by legal titles, zoning maps, and other reliable evidence, and lot width is not the same as a setback or buffer, we understand why both Landing property owners and Ginguite LLC would be dissatisfied with the workshop’s outcome.

We also question the justification for the closed session, which was to preserve attorney-client privilege during the Council’s consultations with the Town Attorney. There is no legal action pending for the Council to discuss.

One Landing resident who spoke at the last Town Council meeting characterized the Council’s action at the workshop as “very Kill Devil Hills,” a criticism that we leave to others to interpret.

4/18/23 UPDATE: According to Planning Director/Deputy Town Manager Wes Haskett, who spoke at last night’s Planning Board meeting, the Board may consider a Zoning Text Amendment submitted individually by Matthew Huband, who has been a liaison between the development’s homeowners’ association and the Town, at its May 15 meeting. Mr. Huband and his wife own a house on Landing Trail that is set back from the road and very close to the Ginguite LLC’s property boundary. In response to Mr. Haskett’s announcement about this ZTA, Planning Board Chairperson Andy Ward said he would like to help residents of the Landing.

ANN G. SJOERDSMA, 4/17/23

The Town of Southern Shores has contracted to purchase the historic flat top at 13 Skyline Road currently owned by the Outer Banks Community Foundation, which operates from the location, but is moving to Manteo after more than 15 years in Southern Shores, Mayor Elizabeth Morey announced at the Town Council’s April 4 meeting.

The purchase price for the property, which is adjacent to a now-vacant lot at 7 Skyline Road that the Town bought in 2015, is $400,000, the Mayor said.

The Town Council, which has met in a closed session during five of its past six regular meetings, did not hold any open public discussion about the desirability of purchasing 13 Skyline Road or about its potential use. The Mayor simply made an announcement about the transaction after the Council returned from a closed session, which was held after a 38-minute public business meeting. 

In contrast, the Town Council amply discussed the purchase of 7 Skyline Road in several meetings, thus giving the public an opportunity to participate in the decision-making process—including by suggesting ways in which the property might be used—and to learn all of the Council members’ opinions about the acquisition.

Only three of the five current Council members voted in favor of the flat top purchase: Mayor Pro Tem Matt Neal and Councilman Leo Holland did not attend the April 4 meeting because of family “issues,” the Mayor said.

The Town paid $205,000 for the 7 Skyline Road property, which is adjacent to the Kern Pitts Center. It subsequently demolished a small single-story house in need of rehabilitation that was on the site and has yet to use the property in any capacity.

The public sentiment about that purchase was decidedly mixed, if not tending toward opposing it. The Beacon can recall when one of the ideas for the property’s use was as a parking lot.

The Town and the OBCF jointly issued a press release about the purchase of 13 Skyline Road, which was published in the Town’s April 6 newsletter. The release did not disclose the purchase price.

The OBCF, a charitable organization established in 1982 by a group of community leaders, including author, historian, and Southern Shores developer David Stick, actor Andy Griffith, attorney Martin Kellogg, and businessman George Crocker, acquired the property in 2007 as a gift from longtime owners, Dr. John R. Tietjen and his wife, Norma F. Tietjen. As the covenants in the deed of gift make clear, the Tietjens, who are now deceased, sought with their largesse to preserve Southern Shores history and to benefit non-profit causes.  

Neither the Mayor nor the two Council members who were present April 4 elaborated upon the covenants that run with the title to 13 Skyline Road and are set forth in the July 19, 2007 deed of gift between the Tietjens and the OBCF.

According to the deed, Southern Shores founder and original developer Frank Stick constructed the flat top in 1953, making it the “first cottage on the dune.” As a condition of their gift, the Tietjens required the OBCF to erect an “appropriate and permanent memorial plaque on the existing cottage” or a “memorial monument” on the grounds to commemorate Mr. Stick’s life and contributions to the Town of Southern Shores and the Outer Banks.

The Tietjens also restricted the use of the property to the offices of the OBCF, the offices of “any similar organization or entity” qualifying as a section 501(c)(3) [non-profit] organization under the IRS Code, or any federal, state or local government offices.   

Dr. Tietjen, a public-health physician formerly with the Central Intelligence Agency, died in 2015, two months shy of his 99^th birthday. You may read about his extraordinary life here: https://www.legacy.com/us/obituaries/washingtonpost/name/john-tietjen-obituary?id=6045891.

Norma Tietjen, a nurse and homemaker, died last year just six days shy of her 99^th birthday. You may read about her extraordinary life here: https://www.legacy.com/us/obituaries/washingtonpost/ name/norma-tietjen-obituary?id=34687216.

The couple were featured in Tom Brokaw’s book, “The Greatest Generation.”   

The Mayor’s suggestion at the April 4 meeting that the historic flat top might be used as temporary housing for newly hired Southern Shores police officers while they seek a more permanent residence—a suggestion repeated in the April 6 newsletter item—is clearly contrary to the Tietjens’ covenant. A temporary residence for a new hire is not a local government office.

We also question the Town’s assertion in the newsletter that it is fulfilling the “wishes of the donors [the Tietjens]” by “maintaining” the property’s “non-profit use and ownership.” A government is not a non-profit organization. A public use is not equivalent to a non-profit use.

Characterizing herself as initially skeptical about purchasing the OBCF property, Town Councilwoman Paula Sherlock said after her vote that she changed her mind after touring it and considering the possibilities for what could constitute a governmental “campus.”

It is a shame that Councilwoman Sherlock did not inform her constituents in a public meeting about her tour and the possibilities she envisions to justify spending $400,000 of the public’s money. But she said more than her colleagues did—just after the fact.  

We have never heard a Town Council member refer to a governmental “campus” before. The newsletter item similarly refers to expanding the “Town’s footprint in the government and institution zoning district.”

According to the Dare County GIS, both Skyline Road properties are currently zoned RS-1 (low-density), but Planning Director/Deputy Town Manager Wes Haskett said at a recent meeting that they are in the Government and Institutional zoning district, which is defined in Town Code sec. 36-206. The minimum lot size in this district is 10,000 square feet.

We are strongly in favor of preserving Southern Shores’ architectural and human history and in honoring founder Frank Stick. We also are strongly in favor of safeguarding the wishes of Southern Shores homeowners who seek such historic preservation through gifts of property conveyed with protective covenants. We are grateful for the stewardship of Southern Shores by previous generations.

We daresay the Tietjens never imagined that the OBCF would sell their flat top for $400,000 just 16 years after receiving it and that taxpayers would foot the bill. As their online Legacy obituaries attest, both were very public service-oriented.    

The point of the Tietjens’ covenant limiting property use is clear from the deed as a whole. If a government were to operate offices in the flat top, it would conduct business that inures to the benefit of the public. If the home is open for public access, many people would enjoy and appreciate it and learn about and remember the visionary builder who constructed it.    

The Mayor encouraged Town residents to submit their ideas for the flat top’s use to the Town. We encourage you to do so, as well, bearing in mind the wishes of the Tietjens and their covenant.

UPDATE ON BEACH NOURISHMENT      

Dredging contractor Weeks Marine has set up its staging at the SSCA’s Hillcrest Beach and parking lot and was expected to start its beach nourishment in Duck on Monday (April 10), Town Manager Cliff Ogburn announced at the April 4 meeting.

The Duck job should take Weeks Marine 30 days to complete, Mr. Ogburn said, after which the contractor will finish filling the Southern Shores beach from 4^th Avenue north to the Duck-Southern Shores line.

Mr. Ogburn has previously forecast the work in Southern Shores to be done by mid-May. According to in-the-know/on-the-scene Southern Shores homeowner and volunteer Len Schmitz, the sand pumping started in Duck on Tuesday. Mr. Schmitz told The Beacon that the Southern Shores work should be done by the end of May.

Regardless of delays due to weather conditions and other factors, Weeks Marine must be “out of here” by June 15 at the latest, Mr. Ogburn has said.

UPDATE ON SIDEWALKS

In Chicahauk: The Town’s plan to move the sidewalk on Chicahauk Trail, near its intersection with Ocean Boulevard, back from the road to make it safer for walking has been delayed because of housing construction at the vacant lot at 97 Ocean Blvd., according to Mr. Ogburn.

On Duck Road: Construction of the 5-foot-wide sidewalk on the east side of Duck Road from Triangle Park, where the cell tower is, to East Dogwood Trail will occur in mid-September, Mr. Ogburn said.

PRESENTATION OF 2023-24 BUDGET

The Town Manager will present his recommended 2023-24 Town budget at the Town Council’s May 2 meeting.

The Council has the option of holding a budget session at its mid-month workshop meeting on Tuesday, April 18, but it did not vote on April 4 to schedule one.

LAND USE PLAN UPDATE PUBLIC WORKSHOP

The Town will hold a public workshop to receive comments on the draft of an updated Town Land Use Plan on Wed., April 26, from 5 to 7 p.m. in the Pitts Center. The plan draft will be posted on the Town website a week before the workshop, according to Mr. Haskett. 

*PREVIEW: In our next posting, we consider the zoning dilemma at the Southern Shores Landing.

ANN G. SJOERDSMA, 4/14/23