An ordinance prepared in December 2015 to regulate “special events” in town came back before the Town Council at its meeting last week at the request of Councilman Gary McDonald. This time around, however, the Council’s discussion lacked the focus, direction, and purpose it had the first time.

The Council’s deliberation suffered, The Beacon believes, because the problem or problems that Mr. McDonald was seeking to address were not adequately defined. Until the Council precisely defines the problem, a solution is going to be difficult to find.

In addition, major changes in the Town’s zoning have occurred since late 2015. Town Attorney Ben Gallop drafted the special-event ordinance long before the Town Council’s enactment last month of a permitted-use distinction between residential dwellings that are “detached single-family dwellings” and those that are “vacation cottages.”

The Beacon asks: Why not build on this distinction and treat differently those special events that are held in vacation cottages and those held in single-family homes that are not vacation cottages?

When the Town Council first considered what is known as the “Special Event and Occupancy Limitation” ordinance, SAGA Construction Inc. was threatening to build a 16-bedroom wedding-destination venue on the oceanfront at 64 Ocean Blvd. The Council’s purpose was clear: Stop this from happening.

Six months earlier, the N.C. General Assembly had cleared the way for the first-ever “special-event house” to be built in Southern Shores by taking away the town’s power to limit the number of bedrooms in dwellings. Southern Shores’ seven-bedroom restriction, in effect since October 2001, became invalid.

Representing the overwhelming public opinion, a majority of the Town Council did not want SAGA to build its 16-bedroom venue. To stop it, the Council had to amend the Southern Shores Town Code: It had to make new law.

Town Attorney Gallop prepared four draft ordinances to prevent SAGA’s project, three of them zoning text amendments (ZTAs) and the fourth, the newly resurrected special-event ordinance, which was Mr. Gallop’s primary effort.

The special-event ordinance is a police-power ordinance, relating to public health, safety, and welfare, not to zoning. Because it is not a zoning measure, the Town Planning Board is not required to review it. The Town Council can move forward on its own, without the Board’s consideration, but it also can seek the Board’s review, if it chooses, and it did, unanimously, on Tuesday.

In its first go-round, the special-event ordinance dropped by the wayside Jan. 5, 2016 when the Town Council decided at a regular meeting to consider only the three ZTAs.

At a special meeting held Jan. 22, 2016, the Council passed into law, by a 3-2 vote, a ZTA that limited maximum house size to 6,000 square feet, thereby defeating SAGA’s plans—at least, the plans the Kill Devil Hills-based developer had then. (See The Beacon, 5/29/19 for background.)

Now, as we all know, SAGA has two oversized dwellings, which The Beacon has called “minihotels,” in construction at 98 and 134 Ocean Blvd. Litigation over these structures is ongoing, and SAGA has built them at its own risk. (See nominihotels.com.)

Despite that risk, SAGA’s investor groups have advertised these minihotels on Carolina Designs Realty’s website as being special-event houses that can accommodate up to 100 guests. (Rentals bookings have been taken for September.)

That the current online rental advertisements for “Aquadisiac” (98) and “Transcendence” (134) no longer use the words “special event” or quantify the number of guests that may party in them does not mean that these minihotels will not be used for pre-planned events.

If the purpose in bringing up Mr. Gallop’s 2015 special-event ordinance is to prevent SAGA’s investor groups, when and if they rent these two minihotels, from being used for large special events, with upwards of 50, 75, 100, or more people, then that is where the Council should start with its brainstorming about a regulatory scheme.

Last Tuesday, however, Mr. McDonald described the Town Council of January 2016—which also included Mayor Tom Bennett and Councilmen Christopher Nason, Fred Newberry, and Leo Holland—as being “more attuned to the size of houses than to events.” Mr. McDonald said only that he would like to look at regulating events “for the benefit of our public-safety folks,” chiefly the police and fire departments.

As an observer in December 2015 and January 2016, I would say that the Town Council was very attuned to the prospect of large special events being held on the oceanfront, but it was bowled over by the special-event ordinance that Mr. Gallop drafted. And it will be bowled over again, if it persists in using this 3 ½-year-old ordinance as its blueprint.

The Beacon asks: Why not ask Mr. Gallop to draft a new ordinance designed to address the perceived problem today?

The Town Attorney clearly stated last Tuesday that he would be happy to work on appropriate regulatory language if the Town Council would give him “direction,” starting with: “What is the problem you’re trying to solve?”

The Beacon beseeches the Town Council to be precise, purposeful, and forthcoming. Give Mr. Gallop the direction he requests and don’t waste any more time.

SPECIAL-EVENT REGULATORY LANGUAGE

You will find the text of the old ordinance in the minutes of the Dec. 18, 2015 meeting, on pp. 8-12:

https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Minutes_2015-12-18.pdf

The old ordinance regulates special events by creating a permitting process and imposing permitting requirements upon those who hold the events. The larger the event, the more permitting requirements are imposed. During last Tuesday’s meeting, the Town Council embraced the permitting concept, but pretty much decimated the ordinance’s provisions.

The old ordinance defines “special events” as “temporary public or private gatherings,” which include, but are not limited to, “pre-planned events, community uses, private parties, and traditional family events.” It imposes permitting requirements on property owners who hold special events that they expect will be attended by more than 25 people.

The Town Council quickly rejected this attendee threshold as being too low. All it took for them to jettison this number was for home builder and homeowner Matt Neal to point out in public comments how quickly a birthday-party guest list for one of his children exceeds 25 attendees.

Pursuant to the old ordinance, permit application and inspection requirements vary and increase according to the number of attendees, with 25 to 75 people being viewed as a “small” special event; 75 to 125 as a “limited” special event, and over 125 attendees as a “large” special event.

Property owners hosting a small special event, for example, must file their permit applications five days before the event, whereas those hosting large special events must file 30 days ahead of the event.

The small-event application requires little more than the date, times, and location of the event and contact information for a person in charge. The host of a large event must permit advance inspections of the property and premises and furnish a detailed site plan, a traffic-management plan, and certifications pertaining to sufficient parking, wastewater facilities, and on-site first-aid supplies.

Last Tuesday, a majority of the Town Council gravitated toward imposing permitting requirements only on those property owners who hold events for 75 people or more.

The old ordinance also provides, significantly, that no more than three special events requiring a permit may occur during a continuous 12-month period on any parcel of property. If more than three occur, then the property’s use is to be considered commercial, rather than residential, and, therefore, in violation of the Town’s zoning code.

“Traditional family events,” which the ordinance defines as gatherings for “traditional events such as holiday parties and meals, birthday parties, funeral services, religious ceremonies and weddings for family members,” are not subject to the three-event limitation.

The Town Council ended up saying that it wanted to exempt all traditional family events from the permitting process.

It also seemed to want to dispense with the three-event limitation altogether. If it does that, what’s left of the old ordinance?

As Mr. Gallop neatly stated: The “essence” of the ordinance is “the bigger the party, the more information you have to provide to the police and fire department so that they can be prepared if there’s an emergency.”

Emergency responders need to know that traffic will not hinder their ingress and egress to the property and that they can readily contact a responsible person on the scene.

The Beacon believes that the real concern here is one that Mr. Gallop pointed out, but no Council member stated. The concern is that the Town regulate special events so as to ensure that they do not become the primary use of a dwelling, in particular, of a large “vacation cottage”—like the two SAGA minihotels.

This is a focused potential problem.

The Town Planning Board will take up the subject at its June 17 meeting. At the same time, pursuant to the Town Council’s directive, Mr. Gallop and Town Planning Director Wes Haskett will consider the ordinance anew and decide whether to bring it back to the Council at its July meeting.

NEXT UP:  THE CUT-THROUGH TRAFFIC COMMITTEE

 Before tackling the traffic, which noticeably increased on the cut-through route yesterday, and the citizens’ advisory committee that the Council approved last week, The Beacon asks you this question: What do arriving northbound vacationers actually gain by cutting through on South Dogwood Trail-to-East Dogwood Trail-to-Hickory Trail-to the streets in the dunes?

As long as there’s a bottleneck at Duck caused by its 25-mile-per-hour speed limit and impeding infrastructure, do the vacationers who cut through Southern Shores actually gain any time? If so, how much, do you think? Eventually, they all end up in gridlock.

If all summertime weekend cut-through drivers inevitably succumb to bumper-to-bumper backups, would they really be harmed if they were prevented from taking all or a portion of the cut-through route?

As things stand now, they unwittingly add to their frustrating predicament by boxing intersections on N.C. Hwy 12 when they finally rejoin the thoroughfare.

Ann G. Sjoerdsma, 6/9/19

The Beacon opposed appropriating $1 million from the Town’s undesignated funds for the 1.3-mile South Dogwood Trail sidewalk, which a simple majority of the five-person Town Council approved Tuesday, and continues to oppose the Town Engineer’s design of the proposed five-foot-wide concrete sidewalk. (See The Beacon, 6/5/19.)

We believe all infrastructure improvements should be funded by the set-aside capital budget, which the Town Council should increase to accommodate long-range planning of projected capital needs. The Town’s undesignated fund balance, which is principally for emergency natural-disaster relief, should only be “raided,” as one resident called the $1 million appropriation at Tuesday’s Town Council meeting, for necessary expenses that all Town Council members approve.

Three people in this town should not be permitted to transfer hundreds of thousands of dollars—much less $1 million—from our emergency “insurance” fund for non-essential capital projects, no matter how popular they may be. If such a financial decision is to be made, unanimity should be required.

Town Manager Peter Rascoe said at Tuesday’s meeting that the Town would notify by U.S. mail all property owners on both sides of South Dogwood Trail about the proposed sidewalk construction, but not meet with any of them unless an owner requests a meeting.

In response to an inquiry from Councilman Fred Newberry, who has shown concern for uninformed homeowners, Mr. Rascoe said he believes the property-owner population on the street is too large for the customary pre-construction meeting with affected owners.

Mr. Rascoe also announced that a public hearing would be held at the Council’s next meeting, currently scheduled July 9, on the proposed design of the sidewalk, which has been envisioned as running along the east side of the road: See https://www.southernshores-nc.gov/notice-public-hearing-july-9-2019-proposed-design-walking-trail-northern-half-east-side-south-dogwood-trail/.

Or, alternatively:

https://www.southernshores-nc.gov/design-plans-s-dogwood-trail-walking-trail/.

The Beacon not only opposes elements of the sidewalk design because of issues we have with its width, appearance, and pathway, we question its location.

Why isn’t this sidewalk projected to run along the west side of South Dogwood Trail, instead of the east side? Or, alternatively, why isn’t it running along some of the west side and some of the east side, with a single crosswalk connecting the sides?

WHAT ABOUT THE WEST SIDE?

According to a member of the Town’s Capital Infrastructure Improvements Planning Committee with whom The Beacon spoke, the committee never had before it the decision of whether to construct the sidewalk on the west side of the road or on both sides. The Town Engineer, they said, resolved the location.

Although the Town has a contract with Deel Engineering, PLLC, exclusively, and the name Anlauf Engineering, PLLC, is not mentioned in that contract, both Deel Engineering and Anlauf Engineering perform work for Southern Shores.

Joe Anlauf, who owns Anlauf Engineering of Kitty Hawk, describes Andy Deel of Deel Engineering on his company’s website as a “common subcontractor” or “project teammate.” See https://www.anlaufengineering.com/about.html.

Mr. Anlauf has overseen the South Dogwood Trail sidewalk project. The Beacon would like Mr. Anlauf to explain publicly to homeowners, or to release in writing for publication on the Town’s website, the comparative cost, engineering, and environmental-impact analysis he did on the two sides of the road to decide the sidewalk’s placement.

It is not enough to say that the South Dogwood Trail sidewalk should connect with the existing sidewalks in front of the cemetery and on East Dogwood Trail and, for that reason, should be on the east side. Crosswalks can be provided.

In fact, The Beacon believes a crosswalk could be easily and safely designated at Wild Swan Lane. The sidewalk could run along the west side south from the North-South-East Dogwood Trails intersection to Wild Swan Lane, and then from there, along the east side, where the land is flat and the right-of-way is already clear, up to the cemetery.

It does not take a land survey to see that most (clearly, not all) of the houses on the west side of the road are built farther back from the right-of-way than those on the east side. Whether or not the west-side lots are generally deeper than those across the street is a question that cannot be resolved by mere visual inspection from the road. But the terrain on the west side certainly does appear to be far less hilly than that on the east side—in toto, not in all areas.

The Beacon believes that far less destruction to the roadside environment and aesthetics would occur if the sidewalk were built on the west side, or, alternatively, if it were to be on the west side between the Dogwoods intersection and Wild Swan and on the east side between Wild Swan and the cemetery. Certainly, fewer yards would be adversely affected.

Of course, we may be wrong about this.

Mr. Anlauf should confirm or refute this observation with his environmental-impact assessment. Further, he should tell homeowners about the engineering challenges he would confront on both sides of the road.

This project is transformative of the signature road in Southern Shores. There is much desirable “old growth” on South Dogwood Trail, growth that developer David Stick sought conscientiously to preserve. In fact, dogwood trees are specifically protected by the Town Code. They cannot be removed from the right-of-way unless the Town Manager gives his or her written permission (TC sec. 28-4).

In the 31 years that have passed since this Town Code protection was enacted, both the Town Council and the Town Manager’s office have become more political. The Beacon believes that the fate of dogwood trees in the right-of-ways of the dogwood trails and elsewhere should be in the hands of a citizens committee.

The Town needs to do far more than it has done to this point to elucidate the nature and consequences of the South Dogwood Trail sidewalk project.

SIDEWALK PEDESTRIAN SAFETY

As for the pedestrians who would use the sidewalk, The Beacon believes they would be at far less risk of being struck by a vehicle driven by a distracted driver that veers on to the right-of-way if they were on the west side of the road than on the east side.

The incoming summertime cut-through traffic on South Dogwood Trail already tends to be faster and more intense than the outgoing cut-through traffic, which trickles off after the morning. After the proposed sidewalk is constructed, arriving northbound tourists will not have to slow down for pedestrians and other obstacles in the road, nor will they be on the alert for them. We can expect them to drive even faster.

The same can be said of the flow of northbound trucks and other commercial traffic that traverses the cut-through route during week-day mornings. I see these “rush-hour” vehicles streaming through every morning on East Dogwood Trail and Hickory Trail when I walk my dog. Homeowners on South Dogwood Trail must see them, too.

The Beacon will further investigate the west-versus-east-side road analysis. Please let us know what you think, especially if you live on South Dogwood Trail. Please send your comments to ssbeaconeditor@gmail.com.

Thank you.

OVERLOOKED TOWER: The Beacon should have mentioned in Wednesday’s post that the Town Council unanimously approved the 20-foot extension of the AT&T cell tower at 148A Ocean Blvd., also known as Triangle Park, bringing its height to 150 feet.

The extension was requested by American Tower LLC and Verizon Wireless for the express purpose of improving Verizon Wireless’s coverage and capacity in the area. Verizon Wireless is not now on the tower.

The Southern Shores Civic Assn., which owns Triangle Park and the adjacent parking lot, receives rent from American Tower for the cell tower. In November 2013, the Town permitted the tower to be a conditional use of the SSCA property, which is in the RS-1 residential district.

According to American Tower attorney David Allen, who testified Tuesday in a public hearing about the corporation’s request to amend its conditional use permit to allow for the extension, the construction is expected to occur from October through May 2020. There will be “some brief outages” of cell-phone coverage, he said, but they will be for hours, not days or weeks.

Mr. Allen also confirmed that there will be no lighting added to the cell tower.

THE TOWN COUNCIL MUST WORK THE DOG DAYS: Councilman Christopher Nason made a motion Tuesday to cancel the Town Council’s August meeting. His motion was defeated 3-2, with only Mr. Conners joining Mr. Nason in seeking a summer break.

In opposing Mr. Nason’s motion, Councilman Gary McDonald spoke of the “duty” the Town Council has to property owners to conduct the Town’s business regularly, and Councilman Newberry pointed out that the Council’s meetings are an opportunity for the public to speak.

AND FINALLY . . .  JUNIPER TO CLOSE TEMPORARILY: Starting around Monday, June 17, Juniper Trail will be closed to through traffic in the area of 32 Juniper Trail in order for street repairs to occur. The road closure is expected to last about a week.

UPCOMING: The Beacon will look next at the special events ordinance discussed by the Town Council Tuesday and at the committee it approved to study ways to restrict and/or reduce cut-through traffic in town.

It is unfortunate that traffic reduction did not factor into the Town’s planning of the South Dogwood Trail sidewalk. It is not too late for planning on traffic reduction and sidewalk construction to proceed hand-in-glove.

***

PLANNING BOARD APPOINTMENTS: The three-year terms of Planning Board Chairperson Elizabeth Morey and Vice Chairperson Joe McGraw expire on June 30. If you are interested in applying for one of these volunteer positions, please see: https://www.southernshores-nc.gov/wp-content/uploads/2012/05/7-22-15-Board-Volunteer-Application.pdf. The Planning Board also serves as the Town Board of Adjustment.

Ann G. Sjoerdsma, 6/8/19  

The Town Council approved last night, by a 3-2 vote, the Town’s proposed $7,450,846 FY 2019-20 operating budget, without amendment, with members dividing on the transfer of $1 million from reserve monies set aside for emergencies to fund a sidewalk on South Dogwood Trail.

As expected, the simple majority of Mayor Tom Bennett and Councilmen Christopher Nason and Jim Conners, who voted at the Council’s April 23 budget work session to appropriate $1 million from the Town’s undesignated fund balance for this infrastructure project, again voted last night in favor of the appropriation. Councilmen Fred Newberry and Gary McDonald, who explained that they do not oppose a walkway on South Dogwood Trail, just the way it is being funded, voted against it.

Mr. Newberry also objected to the budget lacking a “provision for addressing the cut-through traffic.” He pointed out that besides having a “dramatic effect on South Dogwood Trail,” in terms of its aesthetics and environment, the sidewalk is “not the total answer” for problems on the road, such as speeding and other traffic violations routinely committed and routinely observed by Mr. Newberry, who regularly walks on South Dogwood.

There will be a public hearing at the Council’s July meeting to discuss the design of the proposed walkway, which now is envisioned as a five-foot-wide concrete sidewalk identical to the one recently built on East Dogwood Trail. Both Councilmen Newberry and McDonald expressed an interest in a narrower walkway of between three and four feet, a concept that Mayor Bennett said had not been foreclosed.

The Town Council’s next meeting was originally scheduled July 9, when the Republican primary runoff election for the third district U.S. Congressional seat will occur. The Pitts Center is a polling place. Town Manager Peter Rascoe did not announce an alternate date last night.

In other developments during the Town Council meeting, which lasted until past 9 p.m., the Council unanimously approved Town-sanctioned citizens’ advisory committees to study ways in which the cut-through traffic can be curtailed and whether and how to establish a Dare County branch library in Southern Shores. Each committee is to have seven members. Tommy Karole will chair the traffic committee, and Michael Fletcher will chair the library committee.

After considerable discussion, the Council also voted unanimously to refer a Town Code Amendment regulating special events in residential districts to the Planning Board for its review and recommendation and to the Town Attorney and Town Planning Director for revision of its terms, which it specifically requested. (See The Beacon, 5/29/19 for background.) The Planning Board will take up this ordinance at its June 17 meeting.

The Council renewed the Town Attorney’s legal services contract with the increased fee schedule requested by Ben Gallop’s firm, Hornthal, Riley, Ellis & Maland of Nags Head—it is actually the firm, not Mr. Gallop, who represents the Town—and agreed to extend the contract of Deel Engineering, PLLC, for a year.

Both Mr. Newberry and Mr. McDonald expressed disappointment with being presented with renewal of the engineering company’s contract “at the last minute”—the contract expires June 30—so that the Council could not solicit other proposals without putting ongoing projects that require engineering oversight at a disadvantage. (See The Beacon, 6/4/19.)

The Beacon will report further about last night’s Town Council meeting later in the week.

Ann G. Sjoerdsma, 6/5/19

A public hearing on the Town’s proposed fiscal year 2019-20 operating budget and consideration of a citizens’ cut-through traffic committee and further regulations of special events in residences top an unusually varied agenda for the Town Council meeting today, which will be held at 5:30 p.m. in the Kern Pitts Center.

Also on the agenda are announcement of the road projects that the Capital Infrastructure Improvement Planning (CIIP) Committee recommends for FY 2019-20 and appointment of members to an advisory committee to explore opening a Dare County branch library in Southern Shores.

On May 30, the CIIP Committee unanimously approved recommending as its first priority “target” the repair and makeover of Hillcrest Drive, from the road’s intersection with Hickory Trail to the SSCA tennis courts, a length of about 3,700 linear feet. This project, which Mayor Tom Bennett said would cost between $500-$550,000, also would reduce the width at the hilltop once known as Lookout Point.

Rounding out the committee’s top-four recommended projects are 2) East Dogwood Trail, from N.C. Hwy. 12 to Ocean Boulevard, with stormwater improvements; 3) Sea Oats Trail, from Eleventh Avenue north to N.C. Hwy. 12; and 4) Dewberry Lane.

The Council will conclude its new business tonight with a public hearing to consider a 20-foot extension of the cell tower in the SSCA’s Triangle Park, at the Ocean Boulevard-Duck Road split. The Planning Board unanimously approved the extension at its May 20 meeting, subject to explicit conditions. (See The Beacon, 5/21/19.)

American Towers LLC and Verizon Wireless have applied to amend a conditional use permit that the Town issued in November 2013 for the flagpole-style monopole tower, which is currently 130 feet. The extension is being proposed to improve cell-phone coverage and capacity by Verizon, which is not currently on the tower.

If you wish to speak at the meeting, be sure to arrive before 5:30 p.m. to sign up. You will find sign-up sheets on a table in the back of the room, near the entry door. There will be opportunities to speak during both public hearings as well as during two public-comment periods.

(See The Beacon, 5/29/19, for background on issues.)

PROPOSED $1 MILLION APPROPRIATION FOR SIDEWALK

The most controversial proposed appropriation in the $7,450,846 FY 2019-20 budget submitted May 7 by Town Manager/Budget Officer Peter Rascoe is a transfer of $1 million from the Town’s undesignated funds balance (reserves) to pay for construction of a five-foot-wide concrete sidewalk on South Dogwood Trail. (As of June 30, 2018, this fund had $4,752,187 in it.)

A simple majority of Mayor Tom Bennett and Councilmen Jim Conners and Christopher Nason voted at the Town Council’s April 23 budget work session to appropriate these monies from reserves that are maintained principally for natural-disaster relief. The same three Council members rejected an attempt by Councilman Gary McDonald to increase the capital-improvements budget, which is used to pay for all other infrastructure projects. Councilman Fred Newberry supported Mr. McDonald.

Currently, five cents out of every 22 cents per $100 of property value collected in Town real-estate taxes is set aside for the capital-improvements budget. Councilman McDonald proposed increasing that amount to seven cents out of every 22 cents.

In FY 2019-20, the capital budget is projected to be $662,340, which will not go far if a half-million dollars are spent on a portion of Hillcrest Drive. The proposed South Dogwood Trail sidewalk, which has been designed to run along the east side of the road, would have consumed that amount and an additional $300,000-plus.

The Beacon does not support the design of the sidewalk proposed by the Town Engineer, which is on the Town’s website and does not comport with the recommendation of the Dogwood Trails Task Force; nor do we support funding a non-emergency infrastructure project with monies from what is essentially an emergency fund. A simple majority of the Town Council should not be allowed to cherrypick projects it favors for such sizeable funding from the Town reserves.

The Beacon also believes the Town Council should thoroughly explore restricting access to South Dogwood Trail by cut-through drivers and using other traffic-reduction methods before it decides to take $1 million from the emergency reserve fund for a sidewalk that ostensibly would be built for the public’s safety.

The Beacon also questions the wisdom of repairing the section of Hillcrest Drive that is subject to the most wear-and-tear by cut-through traffic without also implementing traffic-reduction methods to protect the finished product.

How the Bennett-Conners-Nason majority can ignore the obvious adverse consequences of cut-through traffic to the health, safety, welfare, and quality of life of hundreds of homeowners on the streets involved—as well as the road damage such traffic causes—eludes The Beacon. It would cost far less than $1 million to erect gates and control access to South Dogwood Trail and Juniper Trail (and perhaps Porpoise Run) on summertime weekends. Controlled access also would be more respectful of the natural environment.

TOWN LEGAL EXPENSES

I conclude with a word (actually many words) about legal expenses.

In the proposed FY 2019-20 operating budget that Mr. Rascoe presented to the Town Council April 23, he highlighted in yellow only one figure among the dozens that comprised expenses that then added up to $6,220,846: that of the $100,000 budgeted for legal expenses.

Legal fees, the Town Manager/Budget Officer told the Council at its April budget work session, had “drastically increased” from “last year’s original approved appropriation in the [FY 2018-19] budget.”

As of April 23, the proposed $100,000 appropriation for legal services represented 0.016 percent of the overall proposed budget. Now that the proposed budget has grown to $7,450,846, it represents just 0.013 percent.

During the 2018-19 fiscal year, Mr. Rascoe explained at the budget session, the Council increased the “line” for legal fees by $50,000 “due to the number of permit appeals” at the level of the town permit officer “and other legal matters” in which the town was involved. (The original budgeted amount was $61,500.)

It bothered me a lot that Mr. Rascoe singled out “permit appeals,” but failed to identify any other “legal matters.”

It also bothered me that he spoke about “the number” of appeals.

There has been only one appeal of a zoning permit in which the Town was a party.

I would like very much to see Town Attorney Ben Gallop’s time sheets for the past fiscal year. Perhaps the Town Council, which is Mr. Gallop’s client, could release the hourly accounting he submitted with his invoices so that the people who pay for all of the legal services that his firm provides could see where their money is going.

In FY 2018-19, Mr. Gallop spent an inordinate number of hours on drafting, redrafting, and redrafting yet again the zoning text amendment to regulate nonconforming lots, which the Town Council spent months trying to understand and still has not completely signed off on.

Mr. Gallop also spent numerous hours consulting with town officials—elected, hired, and appointed—about regulatory options to restrict large, high-occupancy dwellings in town and then countless more on drafting and redrafting proposed zoning text amendments, a process that just concluded May 7 with enactment of the new limitations on septic capacity and occupancy.

As someone who has been involved in the nominihotels.com movement to stop SAGA Construction Inc.’s structures at 98 and 134 Ocean Blvd., I know that the Town is not a party to the appeals filed by two homeowner-property owners of the CAMA (Coastal Area Management Act) permits that the State of North Carolina issued to SAGA.

Town Permit Officer Dabni Shelton conducted a local review of SAGA’s CAMA-permit applications, but the permits are State-issued. The N.C. Dept. of Environmental Quality, which is represented by the N.C. Attorney General’s Office, is a party in this consolidated case, not the Town.

Perhaps Mr. Rascoe could enlighten Southern Shores taxpayers as to the role the Town Attorney has played in this litigation and how much he has charged the Town for this role. According to James L. Conner II, the Durham attorney who represents the two property owners, Mr. Gallop’s name has not appeared on any of the case pleadings or correspondence.

Pursuant to the proposed FY 2019-20 budget presented April 23, an amount of $95,614 was transferred from the undesignated fund balance in order to balance the budget.

In an email yesterday, Mr. Rascoe confirmed that “increases in legal service costs, mandated increases in solid waste tipping fees, and a previous Council directed fence at the new fire department site resulted in the April 23 work-session draft-proposed transfer to balance the budget.”

I frankly do not understand this thinking. Other expenses in the proposed budget, for example, those for computer services in the administration and police departments and for equipment purchases by the public works department, also increased. So why single out legal services? (The solid-waste tipping fee and the fence combine for only $20,000 in expense, and the tipping fee was only a matter of discussion on April 23.)

The proposed FY 2019-20 budget also includes 2.5 percent cost-of-living raises for administration, planning and code enforcement, and public works employees. Why isn’t the $95,614 seen as going toward paying for increased salaries, and increased benefits, rather than for increased legal services?

Expenses do go up.

Why isn’t the additional $23,000 requested next fiscal year by the public works department for equipment purchases implicated in the $95,614 shortfall between projected revenues and expenses?

I’m still trying to figure out a $35,000 request for financial planning, which is included in the budget for streets, bridges, and canals.

In his May 7 budget message, which he filed in writing and read to the Town Council at its last meeting, Mr. Rascoe explains that the proposed FY 2019-20 operating budget shows a transfer of $1,325,614 from the Town’s undesignated fund balance to cover:

1)      Approximately $1 million for construction of the South Dogwood Trail sidewalk;

2)      $220,000 for “Town-owned building updates to meet current building code minimums” [at the April 23 meeting, the Town Council approved “around $200,000” for building improvements]; and

3)      The remainder ($105,614) for “ongoing increased legal costs due to increased Town land-use permit challenges by Town property owners”

See p. 3 of proposed budget at https://www.southernshores-nc.gov/wp-content/uploads/2019/05/FY-19-20-MANAGERS-PROPOSED-OPERATING-BUDGET-1.pdf.

He doesn’t mention any other increased expenses. The Town Manager’s focus on increased legal costs incident to “challenges” by property owners shows a harmful bias that makes my former-practicing-attorney antennae tingle.

Property owners have a legal right to appeal permit decisions, if they have been injured, and the Town should not burden or in any way chill the exercise of this right by suggesting that they hurt the Town financially in doing so. This language about “increased challenges” supports that interpretation and is bullying and offensive.

A Town property owner should not be chastened for “increased legal costs.” You might just as easily say that poor decisions by Town staff have led to permit appeals (the appropriate legal term) and increased legal costs. You also might question Town Attorney Ben Gallop’s competence, efficiency, and work product. I’m not saying I do, but it is certainly reasonable to do so.

NEW LEGAL SERVICES CONTRACT

As it happens, renewal of the Town’s contract with Mr. Gallop’s firm is on the consent agenda for the Town Council’s meeting tonight, as is renewal of its contract with Deel Engineering, PLLC. (Deel’s contract, which originally was for a three-year term, can be canceled by the Town without cause, provided it gives 30 days’ written notice.)

Both of these contracts are patently inappropriate for disposition by “consent,” which should be used only to dispose of routine business that does not merit discussion.

The Beacon would like to know how the Town Council is protecting Town interests by not considering other contractual offers from other legal and engineering professionals.

In an April 16, 2019 memorandum to the Town Council, Mr. Gallop describes changes in the legal fees that his firm, Hornthal, Riley, Ellis & Maland of Nags Head, will charge if the Council renews its contract, effective July 1.

Although he has had the firm’s proposed new legal services contract since April 16, Mr. Rascoe made no mention of fee increases at the April 23 budget meeting or at the May 7 Town Council meeting. In fact, his projected $100,000 factors in the old fee rates.

According to its proposed contract, Hornthal, Riley, Ellis & Maland’s non-refundable monthly retainer would increase to $3,000, from $2,500, and the Town Attorney’s hourly rate for legal services would increase to $195, from $185. As of June 1, 2020, the hourly rate for legal services would go up to $200, and as of June 1, 2021, increase to $205.

Paralegal and law-clerk services are to be compensated, respectively, at $105 per hour and at $115 per hour. Mr. Gallop’s memorandum, which you’ll find in the packet for the Town Council’s meeting, indicates that as of July 1, 2015, when the Town first entered into a contract with Hornthal, Riley, Ellis & Maland, the fees for paralegal and law-clerk services were $105/hour and $95/hour, respectively.

You may access the meeting packet, which contains the contracts, as well many more documents, here: https://www.southernshores-nc.gov/wp-content/uploads/2019/05/6.4.19-Meeting-Packet.pdf.

See you tonight.

Ann G. Sjoerdsma, 6/4/19

 

The formation of a committee to explore ways to curtail the summertime cut-through traffic and the reconsideration of a proposed 2015 ordinance that would regulate the holding of “special events” in residences headline the new business that the Town Council will discuss at its June 4 meeting.

The Council will meet at 5:30 p.m. in the Pitts Center, behind Town Hall.

Other key items on the agenda include a public hearing on the Town Manager/Budget Officer’s proposed fiscal year 2019-20 budget and an announcement by Mayor Tom Bennett and/or Councilman Jim Conners of the construction projects recommended by the Capital Infrastructure Improvement Planning Committee (CIIP) for prioritization in FY 2019-20.

The Mayor and Mr. Conners co-chair the CIIP Committee, which meets tomorrow at 2 p.m. in the Pitts Center to approve its recommended list of projects. A public hearing on the committee’s recommendations will be held during the Council’s July 9 meeting.

June 4 Town Council Meeting Agenda: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2019-06-04.pdf.

May 30 CIIP Committee Meeting Notice: https://www.southernshores-nc.gov/ciip-committee-scheduled-thursday-30-2019/

At the top of the CIIP Committee’s priority list is expected to be the construction of a five-foot-wide concrete sidewalk on South Dogwood Trail.

A majority of the Town Council voted to transfer $1 million from the Town’s undesignated balance fund to cover the cost of the sidewalk, which represents 13 percent of the Town’s proposed FY 2019-20 budgetary expenses of $7,450,846.

Proposed FY 2019-20 budget: https://www.southernshores-nc.gov/town-government/administration/public-documents/fy-19-20-managers-proposed-operating-budget-2/

Councilmen Fred Newberry and Gary McDonald are the proponents, respectively, of the exploratory committee on methods for curtailing summertime cut-through traffic and the Council’s reconsideration of a proposed 2015 “Special Events and Occupancy Limitation” ordinance that it tabled by consensus in January 2016.

Councilman Newberry’s suggestion came in response to public comments by homeowner Tommy Karole at the Council’s May 7 meeting. Mr. Karole, who lives on East Dogwood Trail near its intersection with North and South Dogwood Trails, asked the Council to consider forming a citizens’ committee “to study ways to stop the cut-through traffic in Southern Shores.” He expressed an interest in being on such a committee.

“I see what the traffic is doing. I see the speed,” said Mr. Karole, who has lived on East Dogwood Trail for 18 years. “ . . . Someone is going to get hurt on that road. . . . We can do something to stop it.”

(Despite the wording of the agenda item, Mr. Newberry actually sought more than just a consideration of a committee at next week’s Council meeting. He expressed an interest in hearing from residents affected by the cut-through traffic for more than just the three minutes that are allotted to a speaker during public comments. He sought to engage the public and to hear what people think about the traffic problem and possible solutions.)

Councilman McDonald also cited public comments by residents, including Andy Ward, who is a member of the Planning Board, in recommending at the May meeting that the Town Council reconsider a Town Code amendment that would establish a permitting procedure for public or private gatherings held in residential properties.

Pursuant to the proposed ordinance, “special events” permits would be required of property owners based on the number of people they expect to attend their events.

BACKGROUND ON ‘SPECIAL EVENTS’ REGULATION

On Dec. 18, 2015, during a special meeting of the Town Council, Town Attorney Ben Gallop presented four draft ordinances that he had prepared to address the construction of dwellings that are designed to be used primarily for events rather than as family-vacation rentals or single-family homes.

At the time, SAGA Construction Inc. was threatening to build a 16-bedroom wedding destination venue on the oceanfront at 64 Ocean Blvd. The Kill Devil Hills-based developer had not yet sought any permits from the Town, however.

With SAGA knocking at the door, three newly elected Town Council members—Mr. Newberry, Mr. McDonald, and Christopher Nason—had a steep learning curve to master quickly. Each one had been sworn into office on Dec. 1, 2015.

Three of Mr. Gallop’s proposed ordinances were zoning text amendments (ZTAs). The fourth ordinance was a police-power ordinance, relating to public health, safety, and welfare—not zoning. If it had been adopted, it would have applied throughout the town, not just in particular zoning districts.

In the opinion of The Beacon, the police-power ordinance, known as the Special Events and Occupancy Limitation Ordinance, was too much too soon for the newly constituted Town Council to tackle. (I was present at the 12/18/15 meeting.) The ordinance went by the wayside when the Council decided at its Jan. 5, 2016, regular meeting to consider only the three ZTAs.

According to minutes from that January meeting, Councilman Leo Holland said he thought the special events ordinance was “well-intended,” but “complicated and confusing.” Councilman McDonald purportedly questioned how it would be enforced. No one on the Council proposed taking action on it.

On Jan. 22, 2016, the Town Council voted 3-2, with Councilmen Newberry, McDonald and Holland in the majority, to limit maximum house size to 6,000 square feet, thereby defeating SAGA’s plans—at least, the plans the developer had then.

SAGA’s proposed structures at 98 and 134 Ocean Blvd.—which it is building at its own risk, with litigation pending—represent its second attempt to disrupt the character of our low-density town.

More than three years later, a seasoned Councilman McDonald no longer questions the enforceability of the special events ordinance. Now he wants to take another look at it.

You will find the text of this ordinance in the minutes of the Dec. 18, 2015 meeting, on pp. 8-12:

Click to access Minutes_2015-12-18.pdf

The proposed ordinance regulates special events, which it defines as “temporary public or private gatherings,” including,  but not limited to, “pre-planned events, community uses, private parties, and traditional family events,” according to the number of expected attendees. (All of these terms are also defined in the ordinance.) It imposes permitting requirements on property owners who hold special events that they expect will be attended by more than 25 people. Under 25, no permit required.

Pursuant to the ordinance, permit application and inspection requirements vary and increase according to the number of attendees, with 25 to 75 people being viewed as a “small” special event; 75 to 125 as a “limited” special event, and over 125 attendees as a “large” special event.

The proposed ordinance also provides, significantly, that no more than three special events requiring a permit may occur during a continuous 12-month period on any parcel of property. If more than three occur, then the property’s use is to be considered commercial, rather than residential, and, therefore, in violation of the Town’s zoning code. Traditional family events are not subject to this limitation.

The Beacon will delve into more detail about this ordinance, if it gains traction. We do not view it as confusing or complicated. But we do see the need for “tweaking.”

YAUPON TRAIL INTERSECTION

Besides determining its FY 2019-20 priority infrastructure projects and hearing from the Town Engineer about the design plans for the Fairway Drive-to-the-cemetery segment of the proposed South Dogwood Trail sidewalk, the CIIP Committee will address the recent reconfiguration of Yaupon Trail’s intersection with South Dogwood Trail.

During a repaving project, the two-way entrance on to Yaupon Trail was replaced by a single-lane entrance/exit that is too narrow to accommodate two vehicles at the same time. The Town Council decided at its May meeting to refer Yaupon Trail homeowners’ complaints about the changes to this intersection to the CIIP Committee.

Ann G. Sjoerdsma, 5/29/19

News in Southern Shores has been slow since the Town Council unanimously passed zoning regulations that limit septic capacity and overnight occupancy in vacation cottages to 14 persons. That May 7 breakthrough—the culmination of months of effort by town officials, the Planning Board, the Town Attorney, and many homeowners—deserved to be recognized with a collective sigh of achievement and a break. (See The Beacon, 5/8/19, 5/9/19, and 5/11/19.)

The break is now over.

The Planning Board sprang back into action last night with a short meeting, during which it unanimously approved, with a number of conditions, a 20-foot extension of the cell tower at the Southern Shores Civic Assn.’s Triangle Park, and discussed the possibility of recommending additional restrictions on “events” and “event facilities” in town. (See below.)

The Capital Infrastructure Improvement Planning (CIIP) Committee will meet May 30 and address the proposed sidewalk for South Dogwood Trail, for which $1 million has been appropriated in the Town’s fiscal year 2019-20 budget, and on June 4, the Council will take up a heavy, wide-ranging agenda at its monthly meeting.

You may view the design plans for the five-foot-wide concrete sidewalk proposed for the east side of South Dogwood Trail at:

https://www.southernshores-nc.gov/design-plans-s-dogwood-trail-walking-trail/

The Town’s engineer recently submitted the plans for the section of the sidewalk that would run over the heavily forested and hilly area from Fairway Drive south to the cemetery. He will present these plans at the CIIP Committee’s meeting, which convenes at 2 p.m. in the Pitts Center.

In an unprecedented move, a three-person majority of Mayor Tom Bennett and Councilmen Jim Conners and Christopher Nason approved the transfer of nearly $1 million from the Town’s undesignated fund balance, which serves as a reserve for natural-disaster relief, to the capital budget to pay for the sidewalk project. (See The Beacon’s report on the April 23 budget session, 4/24/19.)

The three rejected an attempt by Councilman Gary McDonald to increase the capital budget itself by dedicating more tax revenue to it.

The Mayor and Mr. Conners co-chair the CIIP Committee.

Prominent on the Council’s June 4 meeting agenda will be a public hearing on the town’s FY 2019-20 operating budget and a discussion about summertime cut-through traffic, which Town Councilman Fred Newberry requested. The meeting will start at 5:30 p.m. in the Pitts Center.

You may view the Town Manager/Budget Officer’s recommended $7,450,846 budget at: https://www.southernshores-nc.gov/town-government/administration/public-documents/fy-19-20-managers-proposed-operating-budget-2/.

The FY 2019-20 budget shows an increase in expenses of 12 percent over the previous fiscal year budget. (See page 10 of the proposed budget.)

The Beacon will provide links to the Town Council’s agenda and meeting packet when they are available and also preview the meeting.

‘EVENT FACILITIES’

The Council’s unanimous May 7 vote on large, high-occupancy dwellings “sends a message that we are united,” Planning Board member Andy Ward said last night at the Board’s regular monthly meeting. We will “take care of the issues of high occupancy and density,” he added with assurance.

Chairperson Elizabeth Morey agreed, but said she was “not necessarily satisfied,” because more can be done, and people may seek to “get around” the new laws. She cautioned her colleagues to be “vigilant.”

In that spirit, the Board placed on its June 17 meeting agenda consideration of how the Town Code can be amended to impose more restrictions on “event facilities,” which are currently defined as properties “designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events,” and restricted to the commercial district.

See Town Code sec. 36-57 at https://library.municode.com/nc/southern_shores/codes/code_of_ordinances?nodeId=PTIICOOR_CH36ZO_ARTIIIINDETE_S36-57DESPTEWO.

Event facilities are a “permitted use” in the town’s C general commercial district, which is detailed in Code sec. 36-207.

Mr. Ward referred to the “stiff language” included in a Town Code amendment that Town Attorney Ben Gallop prepared more than three years ago in order to curtail event facilities. The Town Council rejected this amendment in January 2016 when it enacted the 6,000-square-foot maximum house size and approved other language regulating event facilities. Mr. Ward suggested that the Planning Board look at the rejected ordinance because “it had some teeth in it.”

Councilman McDonald has already requested that the Town’s regulation of event facilities be included on the Council’s June 4 meeting agenda. Mr. Ward expressed the expectation last night that the Council’s discussion will guide the Planning Board in its approach and any recommendation that it may make.

20-FOOT EXTENSION OF CELL TOWER

Also last night, the Planning Board unanimously approved a 20-foot extension of the cell tower at 148-A Ocean Blvd., in the SSCA’s Triangle Park at the Ocean Boulevard-Duck Road split, from 130 feet to 150 feet—subject to conditions, including that the taller tower be in compliance with the town’s setback and fall-zone requirements.

Board alternate Michael Basilone substituted for regular member David Neal, who was absent.

The extension was before the Planning Board as an application from American Towers LLC and Verizon Wireless to amend a conditional use permit (CUP) issued by the Town in November 2013. According to David G. Allen, an attorney with American Tower Corp. who appeared before the Board, the flagpole-style monopole tower will look the same, “except 20 feet higher.”

Mark Landers, an American Tower territory manager who works with carriers, said the purpose of the extension is to improve Verizon Wireless’s coverage and capacity in the area. Verizon Wireless is not now on the tower.

“AT&T is also increasing their capability,” Mr. Landers told the Board.

In a Dec. 17, 2018 letter that Mr. Allen wrote to Deputy Town Manager/Planning Director Wes Haskett about the CUP amendment, he said that the increase will “enable Verizon Wireless to install its equipment at the monopole facility in order to alleviate current reductions and bottlenecks in network connectivity in the area which result in interrupted and dropped calls.”

Mr. Landers told the SSCA membership at a meeting last October that the extension would “accommodate” the explosion in cell-phone traffic, which he described as a 40-percent annual increase in data. Simply stated, too many people are trying to use the network at the same time. (See The Beacon, 10/10/18.)

Mr. Landers said in October that the expansion would take about five months and that American Tower would pay $5400 more in rent to the SSCA, bringing the civic association’s total annual income from the tower to just under $40,000.

It is likely that the Town Council will take up American Tower’s request for the CUP amendment and the tower height extension at its June 4 meeting.

NO! MINI-HOTELS

According to Mr. Gallop, the recently enacted town regulations on septic capacity and overnight occupancy apply only to new building projects that have not yet been permitted. That means that SAGA’s two structures at 98 and 134 Ocean Blvd., each of which has septic capacity and sleeping arrangements for 24 persons, may be “grandfathered in” as nonconforming uses—provided they are allowed to be built.

There currently are two pending cases involving these properties. One of them is in the state administrative courts, before a judge; the other is local and likely headed for the Dare County Superior Court.

You may have noticed that construction at 134 Ocean Blvd., which is a subject of both cases, has essentially stopped, and that construction at 98 Ocean Blvd. is less than vigorous. The Beach does not believe this is coincidental.

At this stage of the litigation, it is difficult to predict the future. Appeals can consume months, even years. The petitioner-homeowners who have contested the permits that are at the center of these lawsuits are determined to protect their properties and the town from these mini-hotels. If you would like to help them, financially or otherwise, please visit www.nominihotels.com.

Ann G. Sjoerdsma, 5/21/19

The Beacon returns today to the new 14-person septic-capacity and overnight-occupancy restrictions in vacation cottages that the Town Council unanimously approved at its meeting last Tuesday. Councilman Christopher Nason raised a question before the Council voted that is worth exploring. (See The Beacon, 5/8/19)

Mr. Nason posed a hypothetical involving Southern Shores homeowners who live out of town and keep their beach home “for family alone,” never renting it.

Now suppose these homeowners, he posited, want to use their beach home periodically for family get-togethers. Are they, he asked Town Attorney Ben Gallop, “subject to the same [14-person overnight] occupancy restriction?”

“They are,” Mr. Gallop replied, “if [their house is] permitted as a vacation cottage under this use.”

If these homeowners are already using their home for gatherings during which more than 14 people sleep overnight, Mr. Gallop continued, then “they’d be non-conforming single-family-dwelling permitted.”

It does not matter if they rent their house or not.

Mr. Gallop’s response will make more sense to you when I quote the definition of “vacation cottage” in the new zoning ordinance, which the Town Attorney himself drafted.

But before I do that, I would like to explain first that, under the new ordinance, a property owner who wants to build a new house in a Southern Shores residential district will have two choices: to build 1) a detached single-family dwelling; or 2) a vacation cottage. The property owner will have to indicate on permitting applications filed with the Town which choice he/she has made.

Those of us who already have homes, regardless of whether we rent them or not, have detached single-family dwellings because up until May 7, when the zoning law changed, that was the only permitted use available for a house.

If we use our single-family dwellings as “vacation cottages,” then we are using them in what now is legally considered a “non-conforming” manner.

WHAT IS A VACATION COTTAGE?

The Beacon has not been keen on differentiating between single-family dwellings and vacation cottages, an idea that emerged during a Planning Board meeting and was developed and supported by local home builders.

In fact, I agreed with a statement made by Councilman Jim Conners during a recent Town Council meeting that “a single-family home is a single-family home.” I did not want to muddy the waters with creating a new permissible use. Eventually, though, I compromised my viewpoint to support the Planning Board, which sought to restrict occupancy according to the use of a property. (The 14-person septic capacity restriction posed no problem. See The Beacon, 5/9/19.)

The new law defines a vacation cottage as “the use of a property and associated single-family dwelling in whole or in part for any part of a calendar year for the purpose of transient occupancy.” It does not say anything about renting. It speaks only to a use for transient occupancy, by the homeowners themselves and by anyone else.

“Transient occupancy” is defined in the new law as “overnight occupancy . . . for periods of less than 30 days for vacation, leisure, recreation, or other purposes by [people] who have a place of residence to which they intend to return including when such property or structure is offered in whole or in part for rent or use by the day, week, or other period of less than 30 days.”

Combining the two definitions, you can see that encompassed within the term “vacation cottage” are second homes that are not rented and used on a transient-occupancy basis, homes that are used exclusively for vacation rentals, and homes that are both rented and used as second homes. You also have the issue of a currently permitted single-family dwelling becoming a vacation cottage.

Mr. Gallop might have created new permitted uses that distinguish second homes from vacation rental cottages, but he did not, and I am not going to second-guess him.

As a practical matter, neighbors may not complain about homeowners using their beach houses for large holiday gatherings or family reunions, so distinguishing between second homes and vacation rental cottages may prove a moot point. But I can appreciate Mr. Conners’s concern that the new single-family dwelling-vacation cottage distinction, as a permitting matter, “may come back to bite us,” as he said Tuesday.

In public comments before the vote on the zoning ordinance, I urged unanimity among Council members, not because I was convinced the Town Attorney had delivered a perfect solution. No, I thought it was important that the Town Council send a clear signal that, as Councilman Fred Newberry said, the Town wants to “prevent the proliferation of large event-type houses in town,” such as those being constructed now at 98 and 134 Ocean Blvd. (See photo above.)

Mr. Newberry stressed the importance of doing something, without further delay.

The new law “may not be perfect,” he said, but “I strongly favor passing it.”

To a member, all five agreed that the new zoning restrictions are not “perfect,” but all five felt compelled to act.

Mayor Tom Bennett remarked that “we can go back with an amendment later if we have to.” But a stop-gap measure now is necessary.

THE LAWMAKING PROCESS

The Mayor’s point is a very important one with which The Beacon agrees. His point indirectly calls into question the Town’s lawmaking—or, if you prefer, zoning chapter-amendment—process.

I attended and reported on every Planning Board session held after news of SAGA Construction’s proposed structures became public last October. I believe it is fair to say that the Planning Board, whose members are, without exception, conscientious and civic-minded homeowners, struggled with deriving a solution for controlling high-occupancy dwellings, apart from limiting septic capacity–which Mr. Gallop did not recommend.

I also believe it is fair to say that the Planning Board deferred to the Town Attorney on the drafting of ZTA 19-01PB and, otherwise, to the legal judgment of Professor David W. Owens of the UNC School of Government, who is a North Carolina land-use expert.

I am not suggesting that the Board’s deference was wrong, per se. I am suggesting, however, that asking five legal laypeople to come up with a fine-tuned legal solution is too much to ask. The Town would be advised to investigate other methods by which intricate legislation is drafted.

It became evident during one of the Planning Board’s meetings on large houses that the Outer Banks Home Builders Assn. had been discussing proposed zoning-text amendments for Southern Shores within its legislative committee.

The Town could form its own legislative committee, chaired by the Town Attorney, and peopled with retired or active attorneys and other legal professionals who live in the community. This committee, which should have no elected officials on it, could report to the Planning Board.

To appreciate how inefficient the current zoning-amendment process can be, you need only look at the history of ZTA 18-07, which addresses nonconforming lots and was enacted into law Sept. 5, 2018. The language of ZTA 18-07 replaced the existing language of Town Code section 36-132, which the Town Attorney interpreted as insufficient, in part, to carry out the intent behind regulating nonconforming structures and uses.

Deputy Town Manager/Planning Director Wes Haskett gave a report Tuesday on the Planning Board’s “on-going work” on nonconforming lots, announcing that the Board will consider a new ZTA, which seeks to amend section 36-132, at its June 17 meeting. (See The Beacon, 4/24/19)

In public comments during the Town Council’s meeting, Planning Board member Andy Ward, speaking as a private citizen, asked the Council to “reexamine the event side” of the large-house problem. He characterized the Town’s event-facility regulation as having been “watered down” and in need of strengthening.

Councilman Gary McDonald picked up on Mr. Ward’s suggestion and eventually requested an agenda item on the matter at the June 4 meeting.

But the Planning Board does not need a directive from the Town Council to revise a zoning ordinance or ordinances. Pursuant to Town Code sec. 24-27, the Board has the power to do that on its own, without intervention by the Council. The Board could have looked at “the event side” while it was considering septic capacity, occupancy, and other regulatory controls during the past months.

An event facility is defined in Town Code sec. 36-57, which is the definitions section of the zoning chapter, and listed as a permissible use in the C general commercial district, Code sec. 36-207(b)(10). Event facilities are not allowed in the residential districts.

Section 36-57 defines an event facility as a property “designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events.”

It does not take a legal education to see the flaws in this definition.

The remainder of the “event facility” definition defines what is meant by “events,” “private parties,” and other gatherings. Certainly, the Planning Board can tackle these terms without the Council’s help.

Also Tuesday, Mr. Conners mentioned, as he did at the April Town Council meeting, his desire to “look at impacts” of large houses, including parking, trash, and noise buffers.

“There is more that we can do,” he said.

I agree with Mr. Conners and have advocated before the Planning Board that more be done to deal with large houses and density problems wholistically, rather than on a piecemeal basis.

If the Planning Board is uncomfortable with viewing a regulatory issue wholistically—as lawyers are adept at doing—a legislative committee could perform that function, too.

Food for thought.

The Beacon will return in the weeks before the Town Council’s June 4 meeting to address the Town Manager/Budget Officer’s proposed FY 2019-20 operating budget and options for traffic reduction on the cut-through route.

Ann G. Sjoerdsma, 5/11/19

 

 

In yesterday’s blog, I promised to publish today a detailed report of Tuesday night’s Town Council meeting.

Unfortunately, I will not be able to deliver on that promise. Please check back over the weekend for the report.

While I do have a moment, I would like to say a word about the possibility of a legal challenge to the new septic-capacity and overnight-occupancy restrictions that the Town Council enacted Tuesday.

You may have read in comments on this blog as well as on Facebook pages elsewhere that the 14-person restrictions indirectly serve as a limit on the number of bedrooms in a dwelling, which the Town legally cannot impose. The premise is that both septic capacity and occupancy are determined by multiplying the number of bedrooms by two.

I believe this argument is faulty, and a challenge based on it would fail.

First, let me say that it is the Dare County Health Dept. that certifies septic capacity for a dwelling, not the Town of Southern Shores. The Town does not participate in the Health Dept.’s permitting process.

Second, the factual evidence simply does not support the bedrooms-times-two contention.

Before the Town Council’s vote on ZTA 19-01PB, I said in public comments that I am a co-owner of a vacation cottage that has four bedrooms and a septic capacity of six persons, NOT eight (4 x 2) persons.

I also informed the Council that I had examined rental listings in the 2019 Southern Shores Realty bulletin/vacation planner and quickly found numerous homes that have a septic capacity that does not equate to twice the number of bedrooms. For example:

16 Pelican Watch: 3 BR, cap. 7

30 Pelican Watch: 4 BR, cap. 7

31 Ocean Blvd.: 6 BR, cap. 14

53 Ocean Blvd.: 6 BR, cap. 14

105 Ocean Blvd.: 5 BR, cap. 12

153 Ocean Blvd.: 4 BR, cap. 10

159 Ocean Blvd.: 6 BR, cap. 18

163 Ocean Blvd.: 7 BR, cap. 21

5 Purple Martin Lane: 5 BR, cap. 13

5 Fourth Ave.: 6 BR, cap. 16

6 Eighth Ave.: 5 BR, cap. 14

2 Eleventh Ave.: 5 BR, cap. 12

I spent just five minutes on this exercise and did not consult other rental companies’ vacation-cottage listings.

Southern Shores Realty (SSR), which is the rental agent that my family has used for nearly 50 years, specifies “capacity” in its listings, rather than “occupancy.” In response to an email that I sent her, SSR Rental Manager Patrina Chappelle, said: Cottage “occupancy is based on the septic capacity. The Health Department would have this information for any property.”

I believe the Town is on firm legal ground.

Ann G. Sjoerdsma, 5/9/19