If the proposed Zoning Text Amendment to add “temporary health-care structures” as a permitted accessory use to single-family homes in Southern Shores had simply reproduced the language of the N.C. statute it intends to implement, the Town Planning Board might not have gotten lost at its meeting yesterday in skepticism, confusion, and misunderstanding.

And it might not have appeared so unsympathetic.

But ZTA 21-02 does not—because CodeWright Planners’ principal Chad Meadows did not draft it that way—and Deputy Town Manager/Planning Director Wes Haskett did not introduce the ZTA with adequate background, so the Board floundered.

See proposed ZTA 21-02 about temporary health-care structures here: https://www.southernshores-nc.gov/wp-content/uploads/2021/04/ZTA-21-02-Eaves-and-Temporary-Healthcare-Structures.pdf.

Only newly appointed full Board member Robert McClendon seemed to appreciate the point of ZTA 21-02, which is to give families caring for a mentally or physically impaired adult relative, who needs temporary help with TWO OR MORE “activities of daily living”—ADLs in caregiver parlance—a new, convenient, and desirable housing option.

The transportable residential structure would be a tiny house for Granny or a safe haven for a 21-year-old son recovering from a broken leg, not a trailer, as one Board member feared, and its zoning permit would have to be renewed annually.  

Once it is no longer needed, it would have to be removed. These structures are not meant to be small, sustainable nursing homes.

“[We] are coming off as people who are not sympathetic” to family caregivers and their loved ones, Mr. McClendon perceptively said, after listening to his colleagues veer off-course into how these temporary 300-square-foot structures, which can only house the “impaired” adult and must meet all building code standards, will be secured to the ground, lest they take flight and cause damage, and what they will look like—because there are neighbors who will have to look at them.

“Trying to get around this legislation is pretty sad,” Mr. McClendon aptly said, emphasizing, but not loudly or often enough, that the ZTA is about a “very specific, narrow, temporary use.” It is about helping families.

The Board seems “more concerned about aesthetics,” he noted.

We believe that Planning Board members would have understood better what was supposed to be before them if they had read N.C. General Statutes sec. 160D-915, the statute upon which ZTA 21-02 is based.

CodeWright chose to incorporate this zoning change into the Town Code by simply amending Code sec. 36-168, which addresses “temporary uses.” Poor decision.

“Temporary health care structures” should be dealt with in a separate Code section, as it is in NCGS 160D-915, which starts with a definition section. The way CodeWright structures the text is confusing.   

It most likely led to Vice Chairperson Tony DiBernardo insisting that all “licensed medical professionals”—a broad term he never limited—should be permitted to reside in the single-family home to which the temporary structure is an accessory.

At least that is the effect of what he argued, although he seemed not to understand that.

The N.C. statute makes it clear that the impaired person’s caregiver or legal guardian owns or occupies the single-family house on the property where the accessory structure is located. ZTA 21-02 muddies this requirement.

Mr. DiBernardo sought to include in the caregiver description those nurses, physical and occupational therapists, hospice workers, and any other health-care service providers who might visit a client with mental and/or physical impairment, but who would not typically live next door to him or her.

He seemed to believe, for reasons we could not figure out, that the ZTA would prohibit such people from caring for an impaired person, otherwise. But no zoning change could do that.

His confusion may have been the result of “intimidation by statute”—which other Board members, notably Chairperson Andy Ward (see below), also suffered from. Or perhaps it was because of Mr. Meadows’s poor draftsmanship.

Surprisingly, no one on the Board disagreed with him, not even Mr. McClendon.

Mr. DiBernardo specifically objected to the ZTA limiting the definition of a caregiver to “first- or second-degree relatives” of the impaired person, which would include a spouse, sibling, child, grandchild, parent, grandparent, uncle, aunt, niece, nephew, including half-, step-, and in-law relationships.

He seemed to miss the point that this is a caregiver who resides next door to the accessory structure, not all caregivers involved in the impaired person’s treatment plan.

He seemed especially bothered by the ZTA’s use of the terms “lineal descendant” (child, grandchild) and “lineal ascendant” (parent, grandparent), but these are the people who care every day for loved ones who cannot manage ADLs.

The Planning Board eventually voted unanimously to recommend the ZTA to the Town Council, with amendments that would require including licensed medical professionals among the permitted caregiver-residents and would clarify that such accessory structures must “meet all applicable state, local, and federal standards.” (Of course they must.)

Martin’s Point representative John Finelli voted with the Board.

The medical-professional amendment will not survive Town Council scrutiny, unless the Town Manager and the Council are not paying attention. Town Attorney Ben Gallop may step in before the Planning Board’s recommendation reaches the Council and delete it. The suggested change in caregiver definition actually opens up the installation and use of a temporary health-care structure to abuse.

As a lineal descendant (child) caregiver of a mentally and physically impaired person who needs assistance with all of her ADLs—bathing, dressing, ambulating, eating, toileting, transferring, etc.—I have considered the advantage of having a temporary structure in my back yard where my mother could live. (Or, vice versa, having a temporary structure in her back yard, where I could hang out.)

Of course, I knew the Code would not permit it.

I also am more fortunate than many adult children who are caregivers: I am able to care for my mother in her own home, which is where those of us who love our parents want them to live out their lives, if they can do so safely and with adequate care.

I also could not imagine moving my mother, who is still cognitively aware, although her memory and executive functioning are impaired, into an isolated and unfamiliar space the size of a bedroom where she would live alone. That would be devastating.

When the Planning Board discussion about ZTA 21-02 turned to consideration of a person with dementia living in a temporary health structure for as long as 10 years—and thus subjecting the neighbors to the unpleasant aesthetics of the tiny house—I knew that no one on the Board, either a regular or alternate member, had ever cared for a parent with Alzheimer’s disease or any other dementia.

Isolating the person from the rest of the household is not advisable.

I/we will stop our analysis here. The real culprit in this unfortunate episode involving seven well-meaning people—the five Board members, Mr. Finelli, and Board alternate Jan Collins, who participated from the audience—is Mr. Meadows, who showed once again how not to draft an ordinance. He could not even transcribe a State statute properly.

If Planning Board members were to read N.C. General Statutes sec. 160D-915, the statute upon which ZTA 21-02 is based, they would be astonished by how clearly it is written and organized. It is narrowly tailored to permit in a single-family residential district a “temporary family health care structure” that provides “an environment facilitating a caregiver’s provision of care for a mentally or physically impaired person.”

This structure must meet all building code and zoning requirements.

We strongly urge Mr. Haskett to provide the Planning Board with the original State statutory language of any zoning ordinance amendments that CodeWright drafts (and rewrites) to conform with that language. If Mr. Gallop is not going to review CodeWright’s language before a ZTA reaches the Board, it is imperative that he do so.

We also suggest that Mr. Haskett use the “whereas” purpose section of a proposed zoning ordinance to elucidate the intent and history of proposed ordinances that are coming from CodeWright. He did a better job in this respect on the manufactured homes ZTA, 21-03, which the Planning Board also took up yesterday.

MANUFACTURED HOMES ZTA UNNECESSARILY AMENDED, TOO

The Board clearly had its antennae up about the arrival of manufactured homes in Southern Shores and its role in circumscribing them. For that reason alone, it may have overreacted to the health-care structure ZTA, which would have been straightforward and less problematic, had Mr. Meadows done his job better.

Nonetheless, the Planning Board also unanimously recommended the proposed ZTA on manufactured homes with unnecessary and/or inappropriate amendments. This time it was Chairperson Ward, the most senior member of the regular Board, who went off-track.

See proposed ZTA 21-03 about manufactured homes here: https://www.southernshores-nc.gov/wp-content/uploads/2021/04/ZTA-21-03-Manufactured-Homes.pdf.

Mr. Ward struggled throughout the meeting with understanding how to review the Code amendments that came through CodeWright’s “update,” especially when a change in State law was their impetus. At one point, he questioned whether the Board could discuss a proposed amendment without first making a motion to recommend its approval.

He was tentative and off his game, but he was not alone. In our opinion, no one on the Board showed a facility for reading and interpreting related State statutes. They all need help and should receive it before they convene again. They need to be prepped.

Mr. Ward seemed not to understand that the proposed manufactured homes ZTA was no different from any other proposed ZTA that the Town has drafted. It may have been compelled by a change in State law, but CodeWright—not the N.C. legislature—wrote it, with Town staff assistance, for application solely in Southern Shores.

It is a proposed local law. Period.

CodeWright prepared a fairly solid amendment to the Town zoning ordinance, allowing manufactured homes to be built as a conditional use in the Town’s R-1 low-density residential district and significantly restricting their appearance and dimensions.

Mr. Haskett described the aesthetic requirements as “fairly strong.” We agree.

Other conditional uses in the Town’s R-1 residential district include churches, country clubs, schools, and community recreation facilities. See Town Code sec. 36-205(c), which ZTA 21-03 amends by adding a section on manufactured homes.

According to Mr. Haskett, the only vacant land currently in the R-1 district is land owned by the Southern Shores Civic Assn. on either side of Duck Woods Drive, where the road meets U.S. Hwy. 158.

The lot to the west of Duck Woods Drive is 4.3 acres, and the lot to the east of the road is 3.4 acres, Mr. Haskett said.

Southern Shores currently excludes manufactured homes in its residential districts, although, strangely enough, they are mentioned in Town Code sec. 16-5, regarding “Provisions for flood hazard reduction.” (See below.)

In NCGS sec. 160D-910, which became law in 2019, the General Assembly found as a matter of policy that “manufactured housing offers affordable housing opportunities for low- and moderate-income residents who could not otherwise afford to own their own home” and prohibited local governments from “excluding manufactured homes from [an] entire zoning jurisdiction.”

Unlike the very specific “temporary health-care structures” statute that the General Assembly passed, NCGS sec. 160D-910 does not dictate to local governments how they must incorporate manufactured homes into their zoning scheme, giving them a lot of leeway in regulating such homes and where they may be located.

This broad discretion may have confused Mr. Ward, who started out thinking that the ZTA drafted by CodeWright and Town staff had been written by the State legislature. Instructed otherwise twice by Mr. Haskett, he still floundered, perhaps being unsure of how to read NCGS sec. 160D-910, a copy of which Mr. Haskett gave each Planning Board member.

Not being a lawyer, a regulator, or a professional planner, Mr. Ward’s unease is understandable. These zoning changes are a lot to take in.

A manufactured home, according to N.C. law, is “a structure, transportable in one or more sections, which in the traveling mode is eight body feet or more in width, or 40 body feet or more in length, or, when erected on site, is 320 or more square feet.” See NCGS sec. 143-145 (7), which contains other criteria for the definition.

A citation to this statutory section should be in the Southern Shores Town Code, but it was not included in any of the amendments that the Planning Board approved when it recommended ZTA 21-03. This is a major oversight that should be corrected.

While ZTA 21-03 specifies the requirements that all manufactured homes in Southern Shores must meet once they arrive, it does not define a manufactured home.

There is also language about manufactured homes in Town Code sec. 16-5, as noted above, that must be reconciled with the new ZTA. CodeWright should have uncovered it in a simple word-search of the Town Code. 

In one of the ZTA amendments proposed by Mr. Ward, he deleted the word “firmly” from the following sentence: “They [meaning, stairs, porches, ramps, etc.] shall be attached firmly to the primary structure and anchored securely to the ground.”

“Firmly,” the Chairperson said, “is open to interpretation.”

He knows what “firmly” means in Southern Shores, Mr. Ward said, but he does not know what it means “out in Asheville.”

Not relevant. This is a Southern Shores ordinance, not an Asheville ordinance.

Similarly, Mr. Ward proposed replacing the word “securely” with language specifying “in accordance with local coastal building regulations.”

Unnecessary. This is a Southern Shores ordinance. Local building regulations will apply.

One sentence of the ZTA actually states that all manufactured homes must comply with the Southern Shores Code requirements about flood damage prevention.

Mr. Ward also amended a reference to the minimum projection of the homes’ eaves that needed no clarification. He added a qualification about the maximum eave projection, a qualification that exists nowhere else in the Town Code.

He and every other Board member, except Mr. Finelli, got confused about how eaves factor into setback and lot coverage calculations—a topic the Board intends to take up at its May 17 meeting. Mr. Finelli still voted in favor of the inapposite amendment.

And finally, an amendment to the ZTA that excepted temporary health-care structures from the language about attachment and anchoring was off the wall.

A temporary health-care structure is not a single-family dwelling, and the first requirement under the proposed zoning amendment for a manufactured home is that it “be occupied only as a single-family dwelling.”

The Planning Board needs your help, Mr. Haskett, Mr. Gallop, and Mr. Cliff Ogburn. It is in unfamiliar territory and needs guidance. Please extend your hands.   

Ann G. Sjoerdsma, 4/20/21 

A Dare County resident who had been hospitalized with COVID-19 has died as a result of the infection, according to today’s Dare County Dept. of Health and Human Services dashboard report.

Since March 2020, 15 local residents have died from the disease caused by the severe acute respiratory syndrome coronavirus 2, aka SARS-CoV-2.

The DCDHHS reported a “status change” April 9 of two residents who tested positive for COVID-19 having to be hospitalized, but provided no demographic details about them.

One of the two was reported April 10 to have moved to home isolation, while no mention was made of the other until today’s announcement.

No other residents have been reported hospitalized in the past 10 days.

Forty-three people tested positive for COVID-19 in Dare County during the past seven days, 25 of them locals, according to the DCDHHS’s data. That is an increase of 11 over the preceding seven-day period.

Case totals were in the double digits on three of the past seven days: April 14, 16, and 17, all of which had 11 case reports. The cases range across all age groups, from young people under age 17 to people age 65 and over.

The DCDHHS continues to report that COVID-19 is predominantly being transmitted locally by close contact between family members, co-workers, and close friends.     

As of yesterday, 13,149 Dare Countians were fully vaccinated, and 15,369 had received their first doses. Anyone age 16 or older can register with the DCDHHS for a vaccine. There is no waiting list.

The Beacon, 4/19/21

The Beacon has learned that the N.C. Home Builders Assn.’s legislative team drafted the bills introduced March 24 by the N.C. General Assembly to eliminate exclusive single-family dwelling zoning statewide and to force municipalities to allow multi-family dwellings and other dense development in all residential zones within their limits.

See The Beacon, 4/17/21, for a report on the bills, Senate Bill 349 and its companion, House Bill 401, which should be titled “Increase Builders’ Opportunities,” rather than “Increase Housing Opportunities.”

According to news items on the NCHBA’s website, the association’s legislative team drafted this “cutting-edge” legislation and “worked with” Senators Chuck Edwards (R-Henderson), Paul Newton (R-Cabarrus), and Toby Fitch (D-Wilson) to introduce SB 349 and with Representatives Destin Hall (R-Caldwell), Tim Moffit (R-Henderson), Mark Brody (R-Union), and Billy Richardson (D-Cumberland) to sponsor HB 401.

To our knowledge, none of the areas represented by these legislators is a high-dollar area where housing costs would be prohibitive.

Addressing just the Democrats’ home turf: Wilson County, whose largest town is Wilson, is south of Rocky Mount, and Cumberland County is home to Fayetteville.

The bill, according to a March 29 NCHBA news item, “would make it easier for builders to build duplexes, triplexes, and quadplexes in residentially zoned areas.”

In a later news item posted April 5, the NCHBA amends this language to specify that the bill would “allow property owners” to build these multi-family dwellings in “areas zoned for single-family structure.”

The NCHBA apparently thought better of emphasizing how the bill would improve the home builder’s bottom line, rather than the property owner’s freedom of choice, but not enough to delete the first item.

Neither news item mentions townhouses, the fourth type of “middle housing use” that SB 349/HB 401 would require local governments to permit in areas zoned for residential use, including those that allow only detached single-family dwellings.

Southern Shores homeowner Mark Martin, who owns Sandmark Custom Homes, Inc., is immediate past president of the NCHBA and currently serves on its executive committee.

Before his election to the Southern Shores Town Council, builder Matt Neal was active with the Outer Banks Home Builders Assn. (OBHBA), serving as president for two years, and the NCHBA.

Southern Shores and all other Dare County towns should call upon the OBHBA to state its position on this legislation and to reveal its lobbying effort, if any, in support of it. Was anyone from the OBHBA “in the room” when this intrusive and self-serving legislation was being formulated and discussed?

The NCHBA has been a powerful force behind the State legislature’s chipping away in recent years of local governments’ land-use and zoning authority in order to benefit the home-building industry.

That includes passage of SB 25 in 2015, which resulted in the elimination of the bedroom restriction in Southern Shores and the threat of a 16-bedroom wedding-destination venue being built by SAGA at 64 Ocean Blvd. Only a 3-2 majority vote by the Town Council in favor of limiting house size to 6,000 square feet prevented that from happening. The dissenting votes were cast by Mayor Tom Bennett and former Town Councilman Chris Nason, an architect who had a client relationship with SAGA.

See yesterday’s Beacon for a brief recall of that legislation. Pat McCrory, a Republican, was governor of North Carolina then. Current Governor Roy Cooper is a Democrat.

Knowing its origins, The Beacon does not see this bill as a progressive strike for affordable housing, but rather as another means by which the heavy-handed, overreaching home-building industry can profit.

As we said yesterday, if the N.C. General Assembly truly wants to increase affordable housing, it should give municipalities–especially population-dense cities such as Raleigh and Charlotte, which is in Mecklenburg County, not Cabarrus–incentives to build that housing in a rational plan, not strip them of their control.

Ann G. Sjoerdsma, 4/18/21

The N.C. General Assembly is again intent on usurping local zoning authority, this time by preventing municipalities from zoning exclusively for detached single-family dwellings.*

Because Southern Shores is a town zoned primarily for single-family dwellings and committed to low-density development, the Town Council unanimously approved at its Tuesday meeting a resolution in opposition to proposed State legislation that would eliminate exclusive single-family dwelling zoning.

House Bill 401/Senate Bill 349, which was introduced March 24, also requires municipalities to allow all detached single-family homes to have accessory units.

(Councilman Jim Conners did not participate in the vote because he did not attend the meeting or participate by Zoom.)

Town Manager Cliff Ogburn will finalize the wording of the resolution and submit it to Dare County’s representatives, Senator Bob Steinburg (R-1st) and House Representative Bobby Hanig (R-6th), and others for circulation to the General Assembly.

If the legislation becomes law, all locally zoned residential housing districts in North Carolina would have to permit “middle housing” dwellings, which the bill specifies include duplexes, triplexes, quadplexes, and townhouses.

A triplex is a building divided into three self-contained residences. A quadplex has four such residences.

According to the bill, a local government could regulate such middle housing only if its regulations “do not act to discourage development of middle housing types through unreasonable costs or delay.”  

The proposed legislation also requires local governments to allow at least one “accessory dwelling unit” for each detached single-family dwelling in a residential housing zone. Such a unit is “an attached or detached residential structure that is used in connection with or that is accessory to a single family dwelling.”

According to HB 401/SB 349, municipalities may not require accessory dwelling units to have minimum parking requirements or other parking restrictions, conditional use zoning, or owner-occupancy of either the main dwelling unit or the accessory unit.

The only exceptions in the proposed legislation, which is being touted as a means to “increase housing opportunities” and has bipartisan sponsorship, are for areas designated as local historic districts or listed on the National Register of Historic Places.

Also, the middle-housing requirement would apply only to those areas that are served by a public water or sewer system or by a public wastewater collection or treatment works.

The bill also states that “private covenants or other contractual agreements among property owners relating to dwelling type restrictions” would still be valid and enforceable.

Southern Shores currently has a small multifamily residential district that permits detached single-family dwellings, duplexes, and “multifamily dwellings.” See Town Code sec. 36-203. No more than eight dwelling units may exist per net acre in this district.

A “multifamily dwelling” is defined elsewhere in the Town Code as a building, or portion of a building, that is used or designed as a “residence for three or more families living independently of each other and doing their own cooking therein.” Apartment houses and condominiums are included in this definition. See Town Code sec. 36-57.

The Town’s ordinances on accessory structures would have to be rewritten in order to conform to the demands of HB 401/SB 349.  

The promise of federal government benefits would appear to be behind the General Assembly’s sweeping, one-size-fits-all legislation.

President Biden’s $2 trillion infrastructure plan reportedly calls for cities to limit single-family dwelling zoning, which has been criticized as “exclusionary zoning” that results in de facto redlining of low-income Americans and people of color, and to build more affordable housing.

The President’s proposal reportedly would award federal grants and tax credits to cities that change their zoning laws to increase access to affordable housing.

Multifamily zoning also has been promoted as a means to combat the impact of climate change (increased heat) on low-income residents, as well as a way to improve their quality of life and lower their utility costs.

During the Town Council’s discussion Tuesday, Mayor Pro Tem Elizabeth Morey said she would like to include a statement in the resolution that would show the Town’s support, in general, for increasing affordable housing opportunities.

None of the other three Council members thought it necessary to amend the resolution that Mr. Ogburn had prepared and that was in their packet of meeting materials, but not in the packet available online to the public.

The proposed State legislation was not an agenda item for the Council’s meeting. It came up in the “Town Manager’s Report,” which is never itemized on the agenda. We did not request the text of the resolution.

No one on the Town Council brought up the obvious objection to the legislation, although Ms. Morey indirectly referred to it: The N.C. General Assembly is intruding upon traditional local-government territory by using what Ms. Morey aptly called “a sledgehammer approach” to a legitimate problem.

Affordable housing is lacking in many areas in North Carolina, most notably in cities, but also on the Outer Banks.

How long have we been hearing that seasonal workers on the Outer Banks, as well as many members of the local year-round work force, cannot afford to live on the Outer Banks? And what have the Dare County Board of Commissioners and the mayors and town councils of Dare County towns done about this worsening problem? A united collective effort is necessary.

It is fair to question whether residential zoning is excessively restrictive and thereby making it difficult for developers to build new, more affordable housing, as well as driving up rents and housing prices, a trend that has a disparate impact on low- and moderate-income residents.

It is also important to understand how residential zoning in an area dependent on a beach tourist economy differs from zoning in any other area. Local governments in beach towns know better than the State how their land-use plans contribute to the appeal of their towns and thus drive their economies.

It is also beyond doubt that U.S. municipalities historically have used zoning to erect barriers to racial and ethnic minorities. Zoning was initially designed to exclude people who were viewed as undesirable from residing in neighborhoods that were viewed as desirable because of their price and exclusivity.

Many people would say that multifamily housing decreases property values, and that increased density strains existing infrastructures, including schools and public safety services, and diminishes residents’ quality of life.

We are not going to engage in a political discussion about zoning and individual property rights, or embark on a historic exploration of housing discrimination in this country.

We do believe, however, that if the N.C. General Assembly truly wants to resolve inequities in housing and increase housing opportunities, it should offer incentives to municipalities to make smart changes, not impose its will upon them with a sledgehammer that will cause more damage than is either foreseeable or acceptable.

You may access the bills and see their history at:

For H.B. 401: https://www.ncleg.gov/BillLookUp/2021/H401

For S.B. 349: https://www.ncleg.gov/BillLookUp/2021/S349

*You may recall that action taken previously by the N.C. legislature resulted in the invalidation of Southern Shores’ restriction on the number of bedrooms in a single-family dwelling, thus making the town vulnerable to the construction of wedding-destination and convention venues and other types of “mini-hotels.”

In response to the General Assembly’s action, the Town Council enacted in January 2016 a restriction on single-family house size, setting the maximum at 6,000 square feet.

The Council subsequently enacted limitations on overnight occupancy in vacation homes and septic-capacity requirements on all single-family dwellings.  

PLANNING BOARD TO TACKLE PROPOSED TOWN CODE CHANGES

The Town Planning Board will consider six applications from the Town for proposed amendments to the Code of Ordinances at a 5 p.m. meeting Monday in the Pitts Center.

The meeting will be open to the public, subject to COVID-19 restrictions, and available for viewing live on the Southern Shores’ You Tube website.

The Planning Board’s role is strictly advisory. It will either recommend or not recommend to the Town Council each of the amendments. Only the Town Council can make law.

We regret that we do not have the time to detail all of the proposed amendments, which you may access here:

Planning Board will meet on April 19, 2021 at 5:00 p.m.

Among the concerns addressed are:

• Performance guarantees and the procedure for establishing a “minor” subdivision, which consists of four or fewer lots
• Construction of temporary health-care structures
• Elimination of the ordinance regarding protests to zoning district changes
• Elimination of the minimum size requirement for single-family dwellings (currently 1,000 square feet; the State of North Carolina is intruding here, too)
• Construction of manufactured homes, which were previously prohibited (again, the State is requiring that manufactured homes be permitted)
• Clarification that eaves on houses are not factored into setbacks

(For background, see The Beacon, 3/19/21.)

We were the most intrigued by a proposed new ordinance that enumerates all of the prohibited uses of land in all of the town’s districts.

See https://www.southernshores-nc.gov/wp-content/uploads/2021/04/ZTA-21-04-Prohibited-Uses.pdf

Current Town Code sec. 36-89, which is titled “Use, occupancy and construction,” states that permitted and conditional uses are listed by zoning district, and that any use “not specifically designated as a permitted or conditional use shall be deemed to be prohibited.”

Proposed Town Code sec. 36-209 would appear to overrule this method, replacing it with a list of 49 specifically prohibited uses. They range broadly and include, for example:

• Alcohol and drug detoxification, rehabilitation, and treatment facilities;
• Bed and breakfasts;
• Campgrounds;
• Dormitories and residence halls;
• Funeral homes;
• Halfway houses;
• Hotels/resorts;
• Jetpack rentals;
• Motor vehicle body and paint establishments;
• Night clubs;
• Nursing homes;
• Pawn shops;
• Produce stands;
• Sexually oriented businesses;
• Smoke and vapor shops;
• Tattoo, body piercing, and body art establishments;
• Transit stops;
• Use of a boat, houseboat, or other floating structure as a temporary or permanent residence.

We would like to know the impetus for this ordinance and who drafted it.

Retail stores that are currently permitted in Southern Shores’ commercial district include those that sell antiques, books, candy, clothing, craft goods, drugs (pharmacies), food, gifts, hardware, jewelry, office supplies, and other garden-variety, general-interest shops.

Curiously, Town Code sec. 36-207, which deals with the commercial district, allows funeral homes. 

The prohibited uses defined by the proposed ordinance derive from the Town’s comprehensive zoning ordinance and land-use plan, which emphasize that Southern Shores is a town of detached single-family dwellings and low-density development.

Both the Town’s zoning ordinance and land-use plan would have to be revised substantially—a lengthy process—if H.B. 401/S.B. 349 were passed by the N.C. General Assembly and signed into law by the Governor. We would hazard a guess that hundreds of towns statewide would be in the same ridiculous predicament.

Ann G. Sjoerdsma, 4/17/21

The Town Council voted unanimously last night to approve the two proposed municipal service districts, with a modification to MSD-1 so that it includes only those properties that abut the Southern Shores beach and have at least 25 feet of frontage.

The modification means that so-called oceanside properties, which are on the east side of Ocean Boulevard, but are not oceanfront, and those that are oceanfront but have an eastern boundary of less than 25 feet, are now exclusively in MSD-2, not MSD-1.

The vote was 4-0. Councilman Jim Conners did not attend the meeting.

The Town Council also tabled the proposed beekeeping ordinance—apparently having heard from the beekeeping community about its rigors—and delayed action on the noise ordinance until May 18, so that it could be revised.

The North Carolina statute on municipal service districts requires the Town Council to approve proposed districts by majority vote of those present in two votes held at two separate meetings before it can adopt an ordinance establishing them. The Council’s next vote will be at its May 4 regular meeting.

The Beacon will give a full report on last night’s meeting, with editorial commentary, later in the week.

On a personal note: I am moving today from my Hickory Trail home of the past 23 years and will write more when I have somewhat recovered from the experience. I am not leaving Southern Shores, just moving to a house that suits me better. When I hold my obligatory moving sale, I hope some of you will stop by and say hello.

I note in passing that the Titanic sank on this date 99 years ago. The Titanic’s sinking may be a fitting metaphor for my move, but I chose the date as my move day because I wanted to take advantage of the bulk-trash pickup on Friday.

Ann G. Sjoerdsma, 4/14/21

The Southern Shores Town Council will take its first vote next Tuesday on whether to establish two proposed municipal service districts (“MSDs”) in town that would enable it to levy higher ad valorem taxes on properties on or near the oceanfront to pay for its $14.5 million beach nourishment project.

Before the Council votes, according to the meeting agenda. it will rule upon three written requests for exclusion from the proposed MSDs submitted by property owners, only two of which merit any real discussion. (See below.)

The Southern Shores Civic Association, which has substantial land holdings on the oceanfront—an area designated as MSD-1—has submitted a request for exclusion “out of an abundance of caution,” according to its cover letter to the Town Council.

The SSCA is a tax-exempt, non-profit corporation and will not bear any tax burden for the beach nourishment project, which is scheduled to occur from May to October 2022.

See agenda at https://www.southernshores-nc.gov/wp-content/uploads/minutes- agendas-newsletters/Agendas_2021-04-13.pdf.

The Town Council’s meeting will be held at 5:30 p.m. Tuesday in the Pitts Center. Anyone who attends the meeting in person must wear a face covering and observe other COVID-19 safety protocol. The meeting will be live-streamed on the Town of Southern Shores’ You Tube website.

Before the Town Council can establish the proposed Southern Shores MSDs, North Carolina law requires it to approve them by a majority vote of the voting members present at two separate meetings. The MSDs would be effectuated by the adoption of a Town ordinance.

If the Council rejects the proposed MSDs on its first vote, it will not take a second vote. 

While the process for creating MSDs is fairly well defined by N.C. statute, the process for evaluating requests for exclusion is not. Beyond what the exclusion claimant must include in his or her request, the State’s MSD statutory scheme is silent—leaving the municipality to decide how to proceed.

(N.C. General Statutes sec. 160A-536 through sec. 160A-544 deal with municipal service districts. NCGS sec. 160A-537 defines MSDs and outlines the process for establishing them. NCGS sec. 160A-537(c1) gives property owners the right to petition to have their properties excluded from a proposed MSD.)

We believe that in making a “staff recommendation” in his agenda item summary that the Town Council not exclude any properties from the MSDs, Town Manager Cliff Ogburn has exceeded his authority. The exclusion request is made of the “city council,” according to the statute, not the Town or the Manager.

You may access the meeting packet at https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2021-04-13.pdf.

We actually find Mr. Ogburn’s intervention in this matter one of a number of irregularities that occurred in the MSD-creation process in Southern Shores.  

IRREGULARITIES IN THE PROCESS

The first such irregularity dates to a motion unanimously approved by the Town Council at its Jan. 21, 2020, workshop to have its financial consultant, DEC Associates, Inc., of Charlotte, work with Town staff to prepare actual beach-nourishment tax-rate increases, based on whether the Town levied a tax increase town-wide or used MSDs to fund the proposed 2022 project.

The problem that we have with this directive is that it was made without any reference to the legal standard imposed by N.C. statute for establishing an MSD, which requires the Town to find that a proposed MSD is in “need” of beach nourishment to a “demonstrably greater extent than the rest” of the districts in town. (See N.C. Gen. Stat. 160A-537(a).)

In January 2020, the Town Council had not yet approved a project and was considering four options presented by its coastal engineering consultant, Coastal Protection Engineering of North Carolina, Inc. (CPE), then known as APTIM.  

Newly elected Councilman Matt Neal, who made the motion—which Mayor Pro Tem Elizabeth Morey seconded—set forth three tax assessment/MSD scenarios that he said the Council wanted DEC and Town staff to investigate and “price”:

1) A town-wide tax levy in which all property owners would pay the same amount;

2) A tax-increase levy on property owners in an oceanfront MSD, with a contribution made by the Town’s General Fund revenues; and

3) A tax-increase levy on property owners in three MSDs—the oceanfront and two more districts heading west from the oceanfront—with a contribution by the Town.

Both Mr. Neal and Ms. Morey said they wanted to get a sense of the “pain” that beach nourishment would cause taxpayers before they reached a final decision on doing the 2022 project.

(See The Beacon, 2/2/20.)

Less then two months later, Interim Town Manager Wes Haskett announced at the Council’s March 4, 2020 regular meeting, that “We have finalized a map showing proposed MSDs,” whose boundaries were drawn on the basis of property values provided by the Dare County Tax Dept.

These values, Mr. Haskett said, had been forwarded to DEC Associates so it could work up “models and funding options for the County to consider.” (See The Beacon, 3/8/20.)

Subsequently, Mr. Haskett presented to the Town, and disseminated to the public through online Town Council meeting materials, four “beach nourishment financial models,” one for each of CPE’s project options, prepared by DEC. Each showed a proposed town-wide tax rate and tax rates for three MSDs.

You may see these models at https://www.southernshores-nc.gov/wp-content/uploads/minutes- agendas-newsletters/Meeting-Packet_2020-05-19.pdf.

We have long maintained that this exercise in MSD definition and tax-rate assessment was improper and misleading.

In determining district boundaries, Mr. Haskett, who was assisted by Councilman Neal, did not apply the “need to a demonstrably greater extent than the rest” legal standard imposed by N.C. statute.

No, they formed the boundaries of the MSDs on the basis of mathematical calculations, looking at the sum of assessed values of properties on and proximate to the oceanfront—heading westward—proposing tax rates that were comparable to what other Dare County towns have used, and then multiplying the property values by the tax rates to arrive at the number of properties that would need to be in the various MSDs to pay for what was then presumed to be a $14 million to $16 million project.

Their method was a matter of number-crunching, not an assessment of need.

Mr. Neal has since characterized this exercise in a Town Council meeting as “ad hoc,” meaning, we suppose, that it was for discussion purposes only. But we do not believe that it was perceived that way by the public. 

When Southern Shores property owners spoke at the June 16, 2020 public hearing on beach nourishment—before the Town Council voted on whether to move forward with a 2022 project—they did so with what they believed was knowledge of what their likely tax increase would be if the three MSDs were approved.

At the time, the proposed town-wide tax rate was 1.96 cents per $100 of property value.

In fact, Mr. Neal had paperwork with him at this meeting so that he could tell an individual property owner what the likely dollar-amount tax “hit” would be for him or her.

This Town Council-Town staff “ad-hoc” exercise served as the foundation for the two currently proposed MSDs and the statutorily mandated report, prepared by Mr. Ogburn, that demonstrates and justifies the proposed district boundaries.

We understand that Mr. Neal—and the rest of the Council, which backed him—had good intentions in doing these computations.

Nonetheless, we consider this “ad-hoc” exercise to be an irregularity that unduly influenced the June 16, 2020 public hearing on beach nourishment; the Town Council’s decision to pursue beach nourishment; and the creation of the two MSDs upon which the Council will vote on Tuesday.

It was a classic case of putting the cart before the horse. In this case, however, the horse was a well-established statutorily mandated legal process and a legal standard that was ignored.

THE EXCLUSION REQUESTS

In their request to exclude their property at 121 Ocean Blvd. from proposed municipal service district 2, Charles and Janan Usher contend that the Town’s proposed MSDs “were constructed without explicit criteria” and that, as a result, properties were not consistently classified.

The Ushers looked at Dare County’s assignment of oceanfront and ocean influence (OI) ratings to Southern Shores land parcels and determined that “significant groups of OI-rated parcels” in town were arbitrarily excluded from MSD-2, and that other parcels were inconsistently assigned to MSD-1 and -2.

They quite reasonably ask the Town Council to “clarify the criteria used to assign parcels to MSD-1 and -2 and to demonstrate that they were applied consistently across all parcels in the Town.”

The only criterion that the Town should apply is the one pronounced by the N.C. General Assembly: An MSD must “need” beach erosion control to a “demonstrably greater extent than the rest” of the districts in town.

This legal standard was not stated at a Town meeting until Mr. Ogburn presented his proposal and report for the two MSDs at the Council’s Feb. 2, 2021 meeting.  

In a preview of this meeting, we wrote on 1/31/21 that the Town Manager had failed in his MSD report to meet the “need” standard:

“We believe the report that Mr. Ogburn has filed in support of these two MSDs, which are defined solely by their proximity to the ocean, is inadequate to meet the standard imposed by North Carolina law for such special tax districts . . .

“The law requires a showing of need, not benefit, and the Town Manager’s report contains no shoreline data supporting the need for a townwide sand fill. With the exception of the beach section south of Skyline Road, the 2022 project is specifically designed to limit future, speculative damage, not to address current need.”

Homeowner Thomas Peabody, of 13 Sixth Avenue, uses the critical need-benefit distinction to argue in his request for exclusion that the need for beach-erosion control at the Sixth Avenue oceanfront does not exist—and surveys done by the Town’s coastal-engineering consultant evidence the lack of need.

We agree.

We would refer Mr. Peabody, whose property is in proposed MSD-2, to remarks made by Mayor Tom Bennett and other Town Council members at their Feb. 2 meeting about limiting the “scope” of the 2022 beach nourishment project to only those areas of the coastline that have a “critical need.”

The northern section of the town’s 3.7-mile-long coastline, which CPE defined as being from about Third Avenue north to the Southern Shores/Duck line, “has gained sand,” the Mayor said, and is “not as vulnerable as far as the dunes and the properties behind” them.

Addressing complaints last year by Seventh Avenue homeowners about the width of the northern beach, the Mayor said, the beach “is definitely wider this year than it was last year.”

Later in the meeting, he noted: “I don’t see the north beach in trouble.”

Even Councilman Neal, who has been a consistent proponent of beach nourishment, acknowledged at this meeting that Dare County’s 50-percent financial contribution, not the Southern Shores coastline’s need, “has been the driving force” for the Town’s 2022 project.   

(See The Beacon, 2/5/21.)

In recommending that the Town Council not exclude Mr. Peabody’s or the Ushers’ properties from MSD-2, Mr. Ogburn says only that “Staff finds nothing unique about these properties that distinguishes [sic] them from the rest of the district. Granting these requests could imply that those adjacent to these properties were also not in need.”

All that is legally germane for purposes of evaluating an exclusion request is the “need . . . to a demonstrably greater extent” standard stated in the N.C. statute. “Uniqueness” need not be established. If granting these two exclusions would “imply” that adjacent or other properties “were also not in need,” so be it. The MSD boundaries should be changed.

‘FOR DISCUSSION PURPOSES ONLY’

The Ushers point out in their exclusion request that the maps of the proposed MSDs in Mr. Ogburn’s MSD report are labeled as “Conceptual Municipal Service Districts” and described as “preliminary and intended for discussion purposes only.”

The notice of the March 16 public hearing that was mailed four weeks in advance to property owners in the proposed MSDs specifically informed them that the outlined MSDs were preliminary and, therefore, subject to change.

But the proposed Town ordinance—upon which the Council will vote Tuesday—reproduces verbatim the language in Mr. Ogburn’s MSD report about the two proposed MSD boundaries. There has been no discussion. The preliminary “conceptual” MSD boundaries are, in fact, as the Ushers allege, the “final” MSD boundaries. It would seem that the Town has misled people.  

Was the public hearing really nothing more than a pro forma exercise that the Town conducted only because the State required it to do so?

Like the Ushers, we had assumed that the “for discussion only” language meant the Town Council was actually going to listen to what property owners had to say and discuss what they had heard.

We were flummoxed when the Council adjourned the March 16 meeting—the hearing lasted only 70 minutes—without responding to, much less discussing, any of the public comments.

At the conclusion of the June 2020 beach nourishment public hearing, the Council conferred and unanimously voted to “pursue” beach nourishment. At the conclusion of the MSD hearing, it said nothing.

In his recommendation to the Council about the exclusion requests, Mr. Ogburn writes:

“An alternative to the maps as originally presented could be considered by the Council. However, some changes may be considered substantive and could require reinitiating the public hearing process.” (Our italics.)

Members of the Town Council have publicly stated that changes to the proposed MSDs could occur. But Mr. Ogburn’s latter statement clearly discourages members from making any changes—even though they have heard from dozens of property owners in Southern Shores who might have convinced them otherwise.

We don’t like it.

Further, if we are going to be advised about the possibility of “reinitiating” the public hearing process, we would like Town Attorney Ben Gallop to do the advising.

We also view as irregularities the fact that the notice mailed to property owners, many of whom are non-resident, failed to offer them the option of presenting their comments via Zoom—although the general public notice mentioned this option—and did not inform them that their written comments would not be read aloud at the hearing.

We do not believe that posting written comments on the Town website is an acceptable substitute for reading them into the public record and airing them at a public forum. We also wonder how many property owners who submitted written comments know where they ended up.

MISLEADING ‘NEXT DOOR’ THREAD

Finally, we find it inappropriate that on March 24, Town Councilman Jim Conners, who had been circumspect about not commenting publicly about the emails the Council had received regarding the MSDs because of the on-going “legal process,” participated in a comment thread on the social-networking service, Next Door, that was initiated with the misleading title of “New tax districts in Southern Shores.”

The Town Manager has proposed levying an additional ad varolem tax of 23.5 cents per $100 of property value on properties in MSD-1; an additional 9 cents per $100 of value on properties in MSD-2, and an additional 2.75 cents per $100 on remaining properties.

These are not definite tax rates. Only the Town Council can set tax rates, and it will set MSD tax rates only after it approves the MSDs and adopts a Town ordinance.

Unfortunately, a homeowner on South Dogwood Trail did not know this. Her “New tax districts” comment on Next Door, which we believe was posted in good faith, reminded people “to send in comments to the city of southern shores regarding the new districts 1 and 2.” She continued:

“The city is considering having Districts 1 and 2 pay a higher portion of the multi million beach nourishment project as they more directly reap the benefits. There have been a lot of comments from [these] owners . . . that everyone should share the cost equally. There are very few comments from residents outside of these two districts. If you have an opinion, please take the opportunity to read through the information on the city’s website and send in comments so that you can be heard.”

Although the Town gave ample notice of the March 16 public hearing, and no one was precluded from participating in the hearing, this homeowner was unaware of it.

In the conversation that ensued among her and others in Southern Shores, she stated that “I do not believe that a final determination of the increased tax rates for each of three areas has been finalized.”

Councilman Conners intervened in the thread here, replying to this post: “As an individual councilperson, I feel comfortable station [sic] that as of this date, you are absolutely correct.”

We find this comment troublesome. Despite the homeowner’s reference to “district 1 and 2 property owners,” Mr. Conners gave no indication that the municipal service districts had not yet been established. In not correcting this misconception, he perpetuated it.

Subsequently, the Councilman urged property owners to submit comments, writing:

“As an individual councilmember in SShores, I’d like to HIGHLY encourage everyone to relay your thoughts to the town of Southern Shores. Humongous decisions are being discussed and made on beach renourishment, but unfortunately, sites like this have little, if any, influence on those decisions. If you’re a resident or property owner in SShores, PLEASE send your thoughts to the Town.” (The capitalizations are Mr. Conners’s.)

Property owners are certainly free to email their comments to Town Council members at any time, but it seems to us to be both inappropriate and improper for a Council member to encourage people on a subscription social-media website to do so—especially after a duly noticed public hearing has been held and when they clearly are misinformed.

Mr. Conners went a step further when he expressed his belief that off-the-public-record Next Door chat should have more influence on the Town Council’s decision-making than he believes it currently does. Judging from how uninformed the participants in this Next Door thread were, one might more reasonably argue just the opposite.

At no point did the Councilman explain the legal process for establishing MSDs, including the “need to a demonstrably greater extent” standard, and reveal that the public hearing had been held. He also mistakenly implied that residents of Southern Shores who do not own property have a stake in the creation of the special districts.

We consider this social-media exchange both improper and prejudicial. Another irregularity.

Ann G. Sjoerdsma, 4/10/21

The N.C. Court of Appeals overturned on Tuesday a 2019 ruling by a Dare County Superior Court judge that Duck business owner and surfer Bob Hovey could use a beach access at Sea Breeze Drive in Duck because it is public.

In its decision, the three-judge Court of Appeals panel* that heard the case, known as Hovey v. Sand Dollar Shores Homeowner’s Assn. and the Town of Duck, ruled that not only did Mr. Hovey fail to prove, as a matter of law, that the beach access he had sought to use was public, but there are no public beach accesses in Duck, only private ones.

The Court remanded the case to the Dare County Superior Court with an order that summary judgment be entered for the HOA and the town, which did not actively participate in the appeal. 

See Hovey v. Sand Dollar Shores Homeowners’ Assn. and the Town of Duck at https://appellate.nccourts.org/opinions/?c=2&pdf=39934

Bob Hovey, who owns Duck Village Outfitters, was arrested in May 2019 for trespassing at the Sea Breeze Drive access, which he argued in both the media and in court was a dedicated public easement.

Mr. Hovey created a social-media frenzy when he posted videotapes on Facebook of confrontations he had with angry homeowners in the Sand Dollar Shores subdivision of Duck and with police, who ultimately arrested him.

He wrote on Facebook then that he believed he was “the first person in the history of Duck to get arrested for going to the beach.”

Encouraged by public support and financial donations, Mr. Hovey filed a lawsuit, with his wife, Tanya, against the HOA and the town, contending that the language in the 1981 plat map for the Sand Dollar Shores subdivision intended to dedicate a public beach access/easement at Sea Breeze Drive.

When Judge L. Lamont Wiggins of Dare County Superior Court ruled in February 2020 in favor of the Hoveys on summary judgment, the misdemeanor trespassing charges against Mr. Hovey were dropped. 

According to the Court of Appeals’ opinion, which was authored by Judge Lucy Inman, the plat map included a “certificate of dedication” in which developer Sand Dollar Shores dedicated “all roads, alleys, walks, parts, and other sites to public or private use as noted.”

The certification also stated that “the streets and roads in this subdivision are dedicated to public use.” It did not specifically mention the eight-foot-wide pedestrian beach easement.

“Nothing on the face of the plat maps,” Judge Inman wrote, “notes the Easement as for either public or private use.”

Dare County accepted the developer’s plat map for recordation, as well as the developer’s dedication certification.

Two days after this acceptance, according to the Court’s opinion, Sand Dollar Shores recorded restrictive covenants for the new subdivision, among which was a covenant stating that the beach easement was for the sole use of homeowners in Sand Dollar Shores and their guests and that use by anyone else was prohibited and could result in a prosecution for trespassing.

After the Sand Dollar Shores Homeowner’s Assn. was established nine years later, the developer transferred ownership of the beach access to it. The HOA enacted its own restrictive covenants in 2015, making it clear that the easement was for the use of its members and their guests only.

The appellate panel, which consisted of Judge Inman and concurring Judges John M. Tyson and Tobias Hampson, had no difficulty ruling in favor of the HOA and the town as a matter of law.

The Court found that the language used by the developer in the plat map did not establish a “clear” and “unambiguous intention” to dedicate the easement to public use and distinguished all other cases argued by the Hoveys as inapplicable.

Gregory E. Wills, of The Wills Group in Grandy, represented the Hoveys on appeal.

Attorneys in the Raleigh and Greensboro offices of the Washington, D.C.-based law firm, Fox Rothschild LLP, represented the homeowners’ association. The Town of Duck did not file a brief.

Under N.C. appellate court rules, the Hoveys do not have a right of appeal to the N.C. Supreme Court, and it is highly unlikely that the State’s highest court would hear the case on discretionary review.

ACCESS TO PUBLIC-TRUST BEACHES

Local media have picked up on the Court of Appeals’ last paragraph in the opinion in which Judge Inman wrote that the court, in upholding “private property rights under the law,” was aware that Duck lacks public access to its beaches. She went on to say that:

“Plaintiffs are not barred from the beach. They may, as suggested by counsel, negotiate for access with Defendant [i.e., the HOA] or, failing that, drive to nearby municipalities or any unincorporated areas in the county to the north and south that maintain public beach accesses.”

This language may seem like “let them eat cake” language to many Outer Bankers, but the appellate judge was compelled to this conclusion by the law.

Regardless, it is ludicrous that the Hoveys, who own a house on N.C. Hwy. 12 across from Sand Dollar Shores, would have to travel to Kitty Hawk or Kill Devil Hills to access the beach.

The Beacon often hears from readers about the lack of public access in Southern Shores to the beaches, which are owned in trust for the public by the State of North Carolina. Anyone may use and enjoy the dry-sand beach areas, if they can access them.

The beach accesses in Southern Shores are owned and maintained by the Southern Shores Civic Assn., which allows the public to use them freely—but, as readers like to point out, as long as public parking is not provided, that use is more theoretical than real.

The North Carolina General Assembly has acknowledged as much and taken some initiative through the Coastal Area Management Act to incentivize the creation of public beach accesses.

In N.C. General Statutes sec. 113A-134.1(b), the N.C. legislature observed decades ago already that “Public access to beaches and coastal waters in North Carolina is . . . becoming severely limited in some areas. Also, the lack of public parking is increasingly making the use of existing public access difficult or impractical in some areas. The public interest would best be served by providing increased access to beaches and coastal waters and by making available additional public parking facilities. There is therefore, a pressing need in North Carolina to establish a comprehensive program for the identification, acquisition, improvement, and maintenance of public accessways to the beaches and coastal waters.”

We appreciate both private property rights and public access/use and believe it is unfortunate that the parties to this lawsuit could not work out a compromise. Their money—and that of the public—would have been better spent in community mediation than in litigation.

(*The N.C. Court of Appeals, often referred to as the intermediate appellate court because the N.C. Supreme Court is the highest appellate court, is made up of 15 judges who hear appeals in panels of three.)

Ann G. Sjoerdsma, 4/9/21

An illogically constructed and confusing rewrite of the Town’s noise ordinance is among the changes to the Southern Shores Code of Ordinances that the Town Council will consider at its April 13 regular meeting, according to the meeting packet posted on the Town website. 

We hope the Council will not waste much time on this proposed ordinance. It needs a substantial rewrite.

The Town Council will meet at 5:30 p.m. on Tuesday, April 13, in the Pitts Center. You may access the agenda here:

https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2021-04-13.pdf.

While the headliner on the Council’s agenda is its first vote on a Town ordinance that would establish two municipal service districts for purposes of taxing property owners and paying for the 2022 beach nourishment project, Town Code amendments offered by staff are also noteworthy, especially the noise ordinance.

(We will preview the Council’s scheduled actions on MSDs and beach nourishment later in the week. Three parties have filed requests to have their properties excluded from the MSDs: two private landowners and the Southern Shores Civic Assn. If the Council approves the MSDs, it will take its second vote at its May 4 regular meeting, according to Town Manager Cliff Ogburn.)

When the public was surveyed by CodeWright Planners for the Town Code revision, and we last met with principal Chad Meadows more than two years ago, there was interest in bolstering Town regulations about noise. Not many of us enjoy someone else’s loud music at late-night parties—or at gatherings at any other time of day—and Southern Shores definitely has its share of them.

Unfortunately, Mr. Meadows’s proposed replacement of Town Code sec. 22-3, titled “Noises prohibited,” increases the verbiage of the current ordinance five-fold without improving upon its clarity, notice, or substance and without protecting us from unreasonably loud or excessive noise generated by our fellow residents.

It is evidentiary support for the Town Council’s decision to reject as unacceptable most of the Durham-based planning consultant’s work product. 

On March 2, the Town Council tasked Town staff—in particular, Planning Director/Deputy Town Manager Wes Haskett—with trying to salvage any “valuable elements” that might exist in the Adoption Draft of the revised Town Code that CodeWright submitted for final review.  

If the proposed noise ordinance is indicative of the “elements” that may exist in the draft, few can be considered valuable. We challenge you to read CodeWright’s “replacement” noise ordinance and arrive at a different conclusion:  

See pages 69 to 78 in the meeting packet at https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2021-04-13.pdf.

In contrast, a proposed new ordinance about the consent that non-commercial beekeepers in town must obtain from their neighbors before they may keep an apiary, is tightly written and specific, spelling out how they must proceed. (Heretofore, there has been no beekeeping ordinance in Southern Shores. State and federal laws are applicable.)

The intent of the ordinance, which has been proposed because of “changes in state law,” according to Mr. Haskett, is to ensure that a Southern Shores resident’s beekeeping does not adversely affect “the use and enjoyment of neighborhood properties surrounding the property on which the bees are kept.” The new ordinance would be codified as sec. 4-28.

The beekeeper must obtain written consent—the details of which are spelled out in the proposed ordinance—from all adjoining landowners for a proposed apiary site and provide it to the Town Manager. Absent such consent, a beekeeper cannot operate. (See pp. 67-68 of the meeting packet.)

Another proposed change to the Town Code would delete an article in chapter 18 that created an auxiliary police force to consist of as many volunteer members as the Town Council “may, from time to time, deem necessary.”

According to Mr. Ogburn’s summary in the meeting packet, the abolition of the auxiliary police and changes to the noise ordinance “were initially requested by the Police Department.”

Unfortunately, a volunteer auxiliary police force has become an anachronism. Forty years ago it seemed like a good idea.

A CACOPHONY OF NOISE (Yes, That’s Redundant)

The poor construction of the proposed new noise ordinance is immediately apparent.

The so-called “prohibited acts” that constitute “prohibited noise,” for which the police can issue a violation citation, are buried beneath:

• an excessive and unnecessary definition section;
• a listing of exemptions to the prohibitions (exemptions should never come before the standards themselves); and
• confusing and overly complicated language about the difference between “maximum sound levels” and “noise” and what constitutes “maximum permitted sound levels” in different zoning districts.

Consider these three over-the-top definitions:

[Please note: We admit to a pet peeve, left over from our newspaper editing days, about the misuse of “which” for “that,” hence the “sic” signifying improper grammar.]

1. “Noise: Any sound which [sic] annoys or disturbs humans or which [sic] causes or tends to cause an adverse psychological or physiological effect on humans.”  

Any sound that annoys or disturbs—whatever those verbs mean—“humans”? An “adverse psychological or physiological effect”—determined how? By medical judgment or testimony?—on “humans”? How many humans do you need?

Such a vague, overbroad definition has no place in law, on the municipal level or elsewhere. It is better to identify what constitutes unacceptable noise rather than to try to define noise.

2. “Noise disturbance: Any sound which [sic] endangers or injures the safety or health of humans or animals; a noise that disturbs a reasonable person with normal sensitivities; endangers or injures personal or real property; or is unreasonably loud, disturbing or excessive noise.”

Does this definition modify the “noise” definition, so that we now know that only sounds that endanger or injure the health or safety of humans or animals can “disturb”? Or is this a different kind of noise experience? There is no section in the ordinance titled “Noise Disturbances.”

As for animals, are we talking about farm animals here? My dog is traumatized by the sounds emitted by helicopters, backfiring pickup trucks, and a myriad of other loud traffic sounds. They are a hazard to his mental health. Can I call the police and report the offenders? 

And what’s this business about a reasonable person “with normal sensitivities”? The noise definition only dealt with humans, regardless of their reasonableness or sensitivities. Now we’re applying the well-known hypothetical reasonable person who appears in legal cases.

3. “Unreasonably loud, disturbing or excessive noise: Any sound which [sic] because of its volume, level, duration or character disturbs, discomforts, injures or endangers the health, peace or safety of a reasonable person with normal sensitivities. For purposes of this chapter, such a sound shall be deemed to be a noise disturbance.”

If you’re still with us, you must now be wondering what the difference is between a noise that is prohibited—which we’ll get to—and a “noise disturbance.” If there is a legal distinction, it was lost on us until we really dug into the ordinance, and it will be lost on anyone who attempts to read and make sense of this ordinance.

Laws should not obfuscate.

Is it necessary to have three different terms defining “noise”? Of course not. It is confusing.

Even more baffling, after belaboring the definition of noise, the proposed ordinance prohibits “mechanical, amplified or [another type of generated] sound from any source which [sic] registers more than 60 dB(A) [decibels],” between 7 a.m. and 10 p.m. in all residential districts. During the nighttime hours of 10:01 p.m. to 6:59 a.m., such sounds may not exceed 55 decibels in the residential districts.

We ask: Why bother figuring out what noise is, if decibel level and time of day ultimately determine prohibited sounds?

Of course, once decibel levels are introduced, you have to figure out how to measure them. The ordinance seeks to explain how noise can be measured for purposes of proving a violation, but it also creates loopholes that make a sound-emission decibel measurement superfluous.

If you don’t know the decibel level, according to the proposed ordinance, you can substitute “complaints of numerous persons, at least one of whom resides in a different location from the other complaining person or persons” for a decibel measurement on a “sound level meter,” because, after all, people know when sounds are “unreasonably loud, disturbing, or excessive noise.” (See definition.)

Alternatively, you can prove that the noise was of such a “nature that a reasonable person with normal sensitivities should have known that the noise was creating an unreasonably loud, disturbing or excessive noise.” (See definition.)

And round and round, we go.

SPECIFICALLY PROHIBITED NOISES

The prohibited noises enumerated by the ordinance start with this one:

“The playing of any television set, musical instrument, or other electronic sound amplification system in such a manner or with such volume as to annoy or disturb the quiet, comfort, or repose of a reasonable person with normal sensitivities as determined by the Town Manager (or a designee).”

Now it would seem that decibel level no longer determines what constitutes prohibited noise, Cliff Ogburn does!

The second noise prohibited by the proposed ordinance is:

“The keeping of an animal which [sic], by causing frequent or long continued noise, shall disturb the quiet, comfort, or repose of the immediate area to such an extent as to constitute a nuisance.”

We assign a sic here because an animal is a “who,” not a “which.”

To quote the late Dick Enberg: “Oh, my.”

What, we wonder, is the meaning of “frequent,” “long continued,” “immediate areas,” or “nuisance”?

There are definitions of nuisance elsewhere in the Town Code—nuisance being a legal term—but they currently do not apply to barking dogs.

This prohibition is actually a rewrite of the current Town Code noise prohibition about animals that reads:

“Loud animal noises: The keeping of any animal which [sic], by causing frequent or long continued noise, shall disturb the comfort and repose of any person in the vicinity.”

No ordinance is going to solve the everyday problem of how long must a barking dog bark before you justifiably can call the police and report it–and the police can issue a citation. You just know how much time must pass before any “reasonable person” has had enough.

Among the 10 exemptions to the ordinance’s prohibitions, this is our personal favorite:

“The playing of a musical instrument between the hours of 3:00 p.m. and 7:00 p.m. Monday through Friday and 12:00 p.m. to 7:00 p.m. on Saturdays and Sundays provided said sound does not exceed 65 dB(A) at the property line of the property from which the sound emanates.”

So, even though the playing of a musical instrument “in such a manner or with such volume as to annoy or disturb the quiet, comfort, or repose of a reasonable person with normal sensitivities,” as determined by Mr. Ogburn, is prohibited, and sounds “from any source” that register more than 60 decibels are prohibited during the daytime in the residential districts, a person may still play an instrument during afternoons and evenings—provided the sounds he or she creates do not exceed 65 decibels at their property lines.

Another proposed exemption of interest is the following:

“Noise resulting from the loading and unloading, opening, closing or other handling of boxes, crates, containers, building materials, or similar objects between the hours of 7:00 a.m. and 10:00 p.m.”

OK. Certain workers have to work, and they make noise when they do.

Interestingly, this exemption serves to “balance” the following overwritten and poorly constructed noise prohibition:

“The loading, unloading, opening, closing, or other handling of boxes, crates, containers, building materials, garbage cans, dumpsters of similar objects between the hours of 10:00 p.m. to 7:00 a.m., the following day, in such a manner as to cause a noise disturbance across a residential real property boundary or within a noise sensitive zones is prohibited as set forth in the maximum decibel levels set for each zone at the times of day consistent with this chapter.”

For some reason, this prohibition does not parallel the others in sentence structure.

But, aha! Now we know what can constitute a “noise disturbance.” But why is this prohibition among “Prohibited Noises,” instead of in a separate section called “Noise Disturbances”? And do we really want to have differing terms for noise just to stop people from complaining about trash trucks?

Former Town Manager Peter Rascoe once told me that the most common single complaint he received from residents was about the noise caused by early morning garbage trucks.

To complain about this noise under the proposed ordinance, you would have to assert that Bay Disposal created a noise disturbance (see definition above) that crossed your property line or that you live in a “noise-sensitive zone” and that the sounds made by the garbage truck exceeded the maximum decibel levels (see above) for the zone in which you are located.

Noise-sensitive zones are actually buildings, according to the proposed ordinance. They include “rest homes, healthcare facilities, places of worship, educational institutions, and day care facilities.”

What a mess. And we haven’t even touched on CodeWright’s [and potentially others’] attempts to regulate “equipment noise” and motor-vehicle and motor-boat sounds.

Among the latter is a prohibition on motorists playing or operating “any sound system or sound producing instrument, device or apparatus when the speaker volume is elevated to such an extent that the sound is clearly audible more than 50 feet from the vehicle.”

Why would anyone bother with trying to snag the oblivious music boomers who drive through town? What a waste of law enforcement’s time.

And what is the harm really? So what if residents, including myself, gnash their teeth and tolerate some fleeting seconds of head-banging music? It is our neighbor’s hours-long head-banging music that really concerns us.    

As we see it, the only people who benefit from most of the prohibitions against “loud or disturbing” motor vehicle/boat noises are defense lawyers.    

As for equipment noise, we do not think the Town should prohibit people from performing “lawn care” after 8 p.m., which the ordinance does. In the summertime, daylight continues past 8 p.m., and people should be able to take advantage of it and mow their lawns.

We also see a significant contradiction between the sections titled “Prohibited Construction Activity” and “Prohibited Equipment Noise.” While the former continues the prohibition of construction (“the erection, . . . demolition, alteration, or repair of any building”) on Sunday, and from 8:01 p.m. to 6:59 a.m., on Monday through Saturday, the latter permits “equipment being used for construction” every day of the week, between 7 a.m. and 8 p.m. There is no definition of construction in the equipment noise section.

Unquestionably, the Town’s current noise ordinance can be improved upon with more specificity and with some thoughtful additions and deletions, but enforcement is always going to be an issue.

We lean toward criminalizing only those acts that create persistent (duration to be specified) “unreasonably loud noise” that violates residents’ right of use and quiet enjoyment of their properties. Property use and quiet enjoyment are components of the public’s health and general welfare.

We all have to expect and tolerate a certain amount of noise generated by other people, whether they live next to us or just drive past us.  

As it is written now, the current noise ordinance is far superior to what CodeWright has wrought simply because it can be easily read and understood, even if it is not terribly useful.  

Ann G. Sjoerdsma, 4/5/21

Tommy Karole, the chairperson of the citizens’ Exploratory Committee to Address Cut-Thru Traffic, has provided The Beacon with a copy of the written report he submitted to the Town of Southern Shores on March 15. We reproduce it, with editing changes for style and clarity–but with Mr. Karole’s boldfacing and underlining–below:

Traffic Committee’s Recommendation for an Ordinance

All long- and short-term solutions suggested below should be supported by a traffic calming ordinance that prevents cut-thru traffic and excessive speeds on local roads, thereby promoting public health, safety, and welfare for the citizens of the Town of Southern Shores. An ordinance will help ensure that phone traffic navigation apps such as Waze and Google Maps will reroute traffic accordingly. An ordinance alone will go a long way toward accomplishing our goal of eliminating cut-thru traffic in Southern Shores.

Traffic Committee’s Short-Term Traffic Mitigation Recommendations

The traffic committee supports the recommendation of [consultant] J.M. Teague Engineering and Planning to install a gate on South Dogwood Trail, [but the committee recommends that] this gate be closed on Saturdays and Sundays from May 1 through September 30. The committee recommends placement of this gate at the entrance of South Dogwood Trail and [agrees with the J.M. Teague report that it] should be supported by signage on U.S. Hwy. 158, alerting drivers that South Dogwood Trail is CLOSED.  In addition, the left-turn arrow at the U.S Hwy. 158 intersection should remain RED. This short-term, inexpensive solution would offer the citizens cut-thru traffic relief during the 2021 summer season and allow the Town of Southern Shores time to implement a long-term solution.

Radio Frequency-Controlled Gates

The radio frequency-controlled gates, mentioned below in the Long-Term Mitigation Recommendations, are economical and eliminate the need for on-site staff or police. These gates allow a small windshield tag to control opening of the gate from approximately 18 feet. A tamper-resistant option is available at no additional cost. Tags should be distributed to property owners only, in a manner similar to the Town of Southern Shores parking permits. If convenient for the Town staff, tags could be incorporated into Town of Southern Shores parking permits. These gates not only solve the problem of cut-thru traffic traveling north but [they would] also trigger navigation apps to block traffic leaving the northern beaches and traveling south through Southern Shores.  If needed, the traffic committee would be happy to share information and to do additional research on tags and gates.

[Mr. Karole provided an example of a tag that looks like a product bar code.]

Cut-Through Traffic Committee’s Long-Term Mitigation Recommendations

Gates

We recommend installation of TWO year-round radio frequency-controlled gates located at A) the entrance to South Dogwood Trail, OR on South Dogwood Trail near Widgeon Court AND  B) Juniper Trail.  Turnarounds would need to be installed to allow vehicles ample space to maneuver.  A gate at the entrance to South Dogwood Trail would be left open during the school year at pickup and drop-off times (for example, 7 am to 9 am and 2 p.m. to 4 p.m.) to accommodate Kitty Hawk Elementary School parents and staff. Traffic engineers should be consulted to determine the best placement of the gates.

Hinged Seasonal Signage

Hinged folding signs would allow for easy control of seasonal signage. [Mr. Karole’s report includes examples of such signage.]

Signs Saying Road Closed to Thru Traffic and/or Local Traffic Only tell you that you need to take a different route and should only enter if you have no other option to reach your destination.

For example, if the driveway to your home or worksite can only be accessed on the restricted roadway, you are local traffic and not thru traffic. If your destination is beyond that stretch of road, you should take another route. These signs need to be supported by local ordinance. The installation of these signs would trigger traffic apps such as Waze and Google Maps to reroute traffic and would discourage travelers from exiting off Duck Road to access residential streets. The committee suggests consulting with a traffic engineer to discuss the most effective placement of seasonal signage.  The committee would like to share with the engineers the following suggestions:

Seasonal Signage Suggestions

A) A Do Not Enter Sign should be placed on Ocean Boulevard at the cellular tower [Duck Road split] to prevent people from traveling north to Hickory Trail [then cutting over to Duck Road].

B) Do Not Enter Signs should be placed at the east entrance to Porpoise Run, Trout Run, and Dolphin Run [off of Duck Road] (prevents the same cut-over to Duck Road at Hickory Trail).

C) Do Not Enter Signs should be placed at the west entrance to Porpoise Run and Dolphin Run [off of Duck Road] (prevents passage north via Wax Myrtle Trail).

D) Stay on Route 12–No Thru Traffic Allowed signage should be located on Duck Road between Chicahauk Trail and Porpoise Run AND between Trout Run and East Dogwood Trail. 

E)  Local Traffic-Only Signs should be placed at the entrance to Wax Myrtle Trail, Sea Oats Trail, Hillcrest Drive, and Hickory Trail, off of East Dogwood Trail (prevents northbound travel by unauthorized vehicles and triggers navigation apps).

F)  Stay on Route 12—No Thru-Traffic Allowed signage should be located on Duck Road between East Dogwood Trail and Hickory Trail (to discourage cutting through on northern portions of Wax Myrtle, Sea Oats, and Hillcrest). 

Mr. Karole first presented the recommendations of the traffic committee verbally at a public meeting March 11 with the committee’s two Town Council sponsors/advisers, Mayor Pro Tem Elizabeth Morey and Councilman Matt Neal. (See The Beacon, 3/11/21).

Since that meeting the Town Council has held a fiscal year 2021-22 budget workshop during which both techniques and costs for cut-thru traffic mitigation for this summer came up for discussion. (See The Beacon, 3/17/21.)

Council members indicated at this March 16 budget workshop that they support prohibiting the left turn from U.S. Hwy. 158-east on to South Dogwood Trail over eight summertime weekends, starting in late June. Town Manager Cliff Ogburn also made reference to four streets at which, The Beacon confirmed later, the Town is considering erecting “Local Traffic Only” signs and barricades to prevent northbound traffic from entering them off of East Dogwood Trail.

Those four streets are Hickory Trail, Hillcrest Drive, Sea Oats Trail, and Wax Myrtle Trail.

Mr. Ogburn has not yet presented the Town’s plan for mitigating cut-thru traffic this summer, which the Town Manager said he has been developing with Police Chief David Kole’s assistance, and the Town Council has not yet approved any cut-thru traffic mitigation plan.

MSDs, TAXES, AND TOWN COUNCIL’S BUDGET MEETING SCHEDULE

Barring the scheduling of a special meeting before then, the Council’s next meeting is a regular monthly meeting to be held Tuesday, April 13, at 5:30 p.m. in the Pitts Center—a week later than usual because of local schools’ spring break time.

The agenda has not been released yet for the April 13 meeting, but the Town Council will definitely be taking a vote then on whether or not to establish any municipal service districts for purposes of funding beach nourishment by levying higher taxes on property owners on or near the oceanfront.

(The Beacon has written extensively about the proposed municipal service districts, most recently on 3/17/21, in a report on the Town Council’s March 16 MSD public hearing.)

N.C. law requires these service districts to be defined in a Town ordinance and for the Town Council to approve the adoption of that ordinance by a majority vote of the members present at two separate meetings. See NCGS sec. 160A-537(f).

It is likely that a morning budget workshop will be held on Tuesday, April 20, but the Town has not announced one yet. If the Town Council approves the MSD ordinance on April 13, it will likely take its second vote at the April 20 workshop, and proceed to set tax rates for the districts and the Town, to finance both beach nourishment and the general Town operating fund.

The Council could decide to hold another budget workshop on or around April 27, however.

Mr. Ogburn has said that he will have a Town Manager’s recommended FY 2021-22 budget ready to present to the Town Council at its May 4 regular meeting.

This budget must be balanced. At the March 16 budget workshop, Mr. Ogburn reported a shortfall of more than $1 million in his preliminary revenue-expense calculation.

Ann G. Sjoerdsma, 3/29/21

The Town of Southern Shores’ bulk trash pickup date this spring is Friday, April 16. All bulk-waste items that the Town has approved for collection must be placed in the street right-of-way by 5 a.m. that day. The Town requests that you not place any items by the roadside earlier than the previous Friday, April 9.

Among the approved bulk-waste items that can be placed on the roadside are the following, according to a release by the Town:

• Furniture, including sofas, chairs, dressers, mattresses, etc.
• Exercise equipment
• Hot tub covers (but no hot tubs)
• Appliances (refrigerators, freezers, and any other appliances that may contain refrigerant must have a tag on them stating that the Freon has been removed. Refrigerator/freezers doors should be removed, as well.)
• Yard waste and vegetative debris (the debris must be bagged in clear or brown paper bags)

Among the bulk-waste items that will NOT be collected are:

• Televisions (TVs may be taken at no charge to the Kitty Hawk/Dare County Recycling Center or to the Dare County landfill)
• Hot tubs, water heaters (these items also may be taken at no charge to the Kitty Hawk/Dare County Recycling Center and the landfill)
• Hazardous materials, such as paints, solvents, chemicals
• Building materials, including lumber, roofing, doors, screens, windows, stairs, carpet, cabinets, toilets and demolition debris, etc. (these items may be taken with a $50 permit to the Kitty Hawk/Dare County Recycling Center or to the Dare County landfill at no charge)
• Soil, rocks, concrete, and stumps (these items may be taken at no charge to the Kitty Hawk/Dare County Recycling Center or to the landfill)
• Tires and any item containing gasoline (they may be taken at no charge to the Kitty Hawk/Dare County Recycling Center, a maximum of four at a time)

For more information about acceptable items for the Town’s bulk-waste pickup, as well as details about the collection itself, see:

https://www.southernshores-nc.gov/wp-content/uploads/2021/03/Bulk-Pickup-04_16_2021.pdf?fbclid=IwAR1k0l_J4YDRwDIakLc_YjpEXLOX4OlJCsfzUAArsUZ-SrF3ggDfUULYIfg

All items will be picked up by the contractor in one day.

The Town conducts two large-item collections each year, one in the spring, usually in April, and the other in the fall, usually in October.

For more information about the Kitty Hawk/Dare County Recycling Center, see:

https://www.southernshores-nc.gov/wp-content/uploads/2012/07/Kitty-Hawk-RECYCLING-INFO1.pdf.

See also: https://www.kittyhawknc.gov/departments-and-services/public-works/recycling/

The recycling center is located at 4190 Bob Perry Road in Kitty Hawk, which is off of Kitty Hawk Road. You may take Woods Road, which is the extension of South Dogwood Trail, south to Kitty Hawk Road, turn right, and then make a left on to Bob Perry Road.

The center is staffed by an attendant and is open Monday, Tuesday, Thursday, and Friday, from 8 a.m. to 3 p.m., and 8 a.m. to noon on Saturday. It is closed on Wednesday.

If you have any questions, you may call the Kitty Hawk Public Works Dept. at (252) 261-1367.

We have dropped many items off at the Kitty Hawk Recycling Center and have found it to be a well-run operation that is very convenient for Southern Shores residents.

The county landfill is located at 1603 Cub Road in Manns Harbor and is not very convenient. The phone number is (252) 473-2059.

For more information about the landfill, see: https://www.darenc.com/departments/public-works/c-d-landfill-rubble-transfer-station.

Ann G. Sjoerdsma, 3/25/21