The Southern Shores Civic Assn. has a stake in the Town Council’s vote tomorrow on ZTA 18-07, which seeks to prevent the creation and (re)development of 50-foot-wide “nonconforming” lots in town. If the Town Council fails to pass it, the SSCA may have a proverbial can of worms on its hands.

At the first reading June 5 of the zoning text amendment, the Town Council approved it, 3-2, a vote that fell short of the 4/5 majority needed for passage. Mayor Tom Bennett and Councilman Chris Nason opposed the measure.

A second reading of the ZTA is scheduled for the Town Council’s regular monthly meeting tomorrow, at 5:30 p.m., in the Pitts Center. Only a simple majority approval is now required.

On May 21, the Town Planning Board unanimously approved ZTA 18-07, recommending that the Town Council adopt it.

(The Beacon has extensively covered this proposed amendment: See reports on May 11, 17, 23, and 24, and June 4 and 7.)

In a June 20 special report, I discussed restrictive covenants that run with the land in Southern Shores, focusing in particular on minimum required lot frontages.

My research of the past few weeks, which includes a meeting with the Town Planner, the Town Manager, and the Town Attorney; informal discussions with SSCA Board members; an examination of SSCA documents; and more deed tracking in the Dare County Register of Deeds office, reveals that the SSCA likely has the power to enforce these restrictive covenants.

But, that power may depend on the block location of the subject lot. It’s “case-by-case,” said Town Attorney Ben Gallop.

(Please note: Chicahauk has its own protective covenants. I am not referring here to Chicahauk properties.)

Among the covenants that developer Frank Stick, his partners, and later the Kitty Hawk Land Co. (KHLC) declared in deeds were those requiring lot frontage of 75 or 100 feet. They also established minimum dwelling setbacks from Ocean Boulevard (NC Hwy. 12) and from side and rear boundaries.

Stick and company platted and recorded blocks of 50-foot-wide lots, initially on the oceanfront and the west side of Ocean Boulevard, but they sold the lots in pairs and restricted development on them by imposing the covenants.

It is because the developers chose to plat and record 100-foot-wide building sites as two 50-foot-wide lots, rather than as one 100-foot-wide lot, that we now have an issue with higher-density redevelopment on “nonconforming” lots, such as the two houses that were constructed at 103 Ocean Blvd. (See photograph above.)

By definition, nonconforming lots do not meet the Town’s legally mandated dimensional requirements, which include a minimum width of 100 feet and a minimum size of 20,000 square feet. (See Town Code sec. 36-202(d))

The property owners at 103 Ocean Blvd. disregarded an underlying restrictive covenant dating to 1967—12 years before the Town’s incorporation—that required a minimum building-lot width of 75 feet; and no one sought to stop them. ZTA 18-07 would have.

Beacon editorial board member Ursula Bateman, a native New Yorker and former SSCA Board member, keeps telling me: “Ann, just tell people that you don’t want to be in your living room and hear your neighbor sneezing in his. Like on the Jersey shore. Keep it simple.”

If only it were! I’ll try.

With ZTA 18-07, the Town seeks to amend the Town Code of Ordinances to ensure that housing construction that enables you to hear your neighbor sneezing in his living room while you’re sitting in yours does not continue to occur.

SSCA ENFORCEMENT POWER

As far as I can discern, and Mr. Gallop and SSCA Board member Jeffrey Johnson, who is an attorney, concur, the SSCA does not have the legal “duty” to enforce the restrictive covenants on minimum frontage or any other covenants. A duty would mandate the Association’s intervention; a power makes it discretionary.

It would appear from the SSCA’s bylaws and other written statements, and from its actions, since its 1975 incorporation, that it believes it has the right to enforce such covenants.

In my research at the Register of Deeds, however, I could not find one all-encompassing document recorded by the Kitty Hawk Land Co. that assigns to the SSCA its covenant rights. Instead, I found multiple declarations of “protective covenants and conditions” by the KHLC that are applicable to certain blocks of lots. These declarations specify that the KHLC and its “successors and assigns” have covenant enforcement powers and rights.

For example, the declaration recorded in Dare County deed book 271, at page 447, covers Southern Shores block 92; and the declaration in book 576, page 209, applies to certain sections of block 129.

Each of these documents states that the powers and rights reserved by and to the KHLC and its successors and assigns “shall not . . . inure to the individual lot owners.”

Interestingly, the block 92 declaration, which was executed in 1978, contains a section that requires all property owners in the block to become members of the Southern Shores Civic Assn. It further states that the KHLC’s powers “shall” inure “only” to the SSCA “at such time when the powers are vested in it” or to successors to whom the KHLC expressly assigns powers.

Although I love research, I’m not inclined to search for declarations block-by-block.

If the Town Council rejects ZTA 18-07, a court may have to decide if the SSCA truly does have enforcement rights in a given situation. This should not be allowed to happen.

THE TOWN’S INVOLVEMENT

Certainly, the Town does not have the responsibility, much less the duty, to enforce restrictive covenants. Mr. Gallop adamantly stressed this.

Town Planner Wes Haskett, who co-authored ZTA 18-07 with Mr. Gallop and officially because deputy town manager on July 1, told me that he never deals with them. He does not even have copies of covenants in his office.

As a courtesy, Mr. Haskett said, the Town planning department sends the SSCA a list of lot disturbance-stormwater management (i.e., building) permit application filings every Monday. “We should work together,” he said.

The SSCA’s Architectural Review Board (ARB) follows up by giving each building-permit applicant an “application for deed and covenant restriction approval.” This document directs landowners to familiarize themselves with covenants and refers them to the SSCA office, where you can find them in binders. (All of the ARB documents to which I refer here can be found on the SSCA website.)

The ARB conducts what it calls in a policy document a “covenant review process,” the purpose of which is multifold: One stated objective is “to ensure compliance with the relevant restrictive covenants.”

I contacted Ben Packard, chairman of the ARB, and arranged a meeting with him, which he subsequently canceled after speaking with Rod McCaughey, who is the SSCA Board of Directors’ ARB member. Both considered it more appropriate for me to speak with the Board, which I eventually did through informal means. I spoke with SSCA president Larry Galleck; Mr. McCaughey, who is also in charge of bylaws and long-range planning; and Mr. Johnson, who oversees membership and marina boat slips.

Because my conversations with these Board members could be considered “off the record,” I am not going to quote them. Understandably, no one is keen on getting involved with enforcing restrictive covenants.

On the record, Mr. Packard emailed me: “Any enforcement outside denying a submitted application falls on the SSCA Board.”

The ARB policy document concurs: “Ultimate responsibility for legal enforcement of the covenants on behalf [of] the SSCA is the duty of the SSCA Board of Directors.” (The SSCA may wish to reconsider this representation. Certainly, it needs to change the word duty.)

In a packet of permit-process material that Mr. Haskett provides to contractors and property owners, the Town “strongly” urges applicants to “obtain approval from the appropriate association before you apply for a permit and begin construction.

“Failure to do so,” it warns, “could result in legal action by the association to enforce the covenants.”

While some show of enforcement muscle—for example, informing a property owner that he cannot park a recreational vehicle on his land—would be easy for the SSCA to dispense, and perhaps immediately effective, the enforcement of other covenants could lead to expensive and protracted litigation.

While I am sympathetic to the SSCA’s financial limits and to the argument that it “must choose its battles,” I also am sympathetic to property owners who have reason to believe that the Civic Association will fight important battles for them. Why should an individual property owner, who happens to live in a block where another property owner is violating a restrictive covenant, be out of pocket for enforcement costs?

Southern Shores property owners should know if and when the SSCA will ever intervene, in their behalf, in enforcing restrictive covenants and decide if this is what they expected when they became members.

PROTECTING THE TOWN VISION

Seventy years ago, the founder of Southern Shores envisioned a community of low-density housing with a lot of open space. Artist and conservationist Frank Stick (1884-1966) wanted people of more modest means to enjoy the luxurious privacy that ultra-rich oceanfront property owners in the Northeast enjoyed.

The Town perpetuates his vision in its land-use plan, which states that the “quiet seaside residential community” of Southern Shores is “comprised primarily of low density neighborhoods consisting of single family homes primarily on large lots (i.e., at least 20,000 sq. ft.).”

The preamble to ZTA 18-07, which is the “whereas” section that elaborates upon the Town’s purpose and authority, repeats this language. It refers to the Stick-KHLC  two-50-footers-as-one-100-foot-wide lot system as an “informal” combining of parcels.

“In recent years,” the preamble states, “the Town has seen a trend toward redevelopment of such informally combined parcels . . . back into the smaller nonconforming lots and building dwellings upon the nonconforming lots.

“Such redevelopment is inconsistent with the low density character of the Town.”

ZTA 18-07 would require the “recombination” of adjacent lots under the “same ownership” into a single conforming lot or multiple lots, if certain situations apply.

As Mr. Gallop has explained at hearings, each of five enumerated situations, all of which involve proposed development and/or sale, would “trigger” the “recombination” of adjacent lots, one or more of which is nonconforming.

The Town Attorney has been meticulous about defining the term “same ownership,” so as to prevent “affiliated” legal entities—such as limited liability corporations with different names, but overlapping controlling interests—and individual landowners and their “affiliates” from getting around the zoning law.

ZTA 18-07 also includes a provision that permits the construction of a single-family dwelling in the residential district on what I call a “stand-alone” nonconforming lot—meaning the lot owner does not own any land adjacent to the 50-foot-wide, or smaller, lot.

According to Mr. Haskett fewer than 10 such lots exist.

ZTA 18-07 permits owners of stand-alone lots to use a side-yard setback of 12 feet. The original draft of the amendment proposed a 10-foot side setback, but the Planning Board amended it to 12 feet.

This important zoning text amendment seeks to preserve the Town’s low-density character, which drew most of us to Southern Shores and continues to draw tourists to our beaches. In the process, it also “enforces” crucial restrictive covenants on lot frontage.

It’s a win-win for the SSCA and for the Town’s future. The Town Council must pass it.

Gezundheit!

Ann G. Sjoerdsma, July 9, 2018

 ***

SIDEBAR: THE CASE OF 85A OCEAN BLVD., OR BUILDING A RENTAL COTTAGE ON A FORMER 50-FOOT-WIDE PAPER STREET

During the Town Council’s June 5 hearing on ZTA 18-07, Rick House of House Engineering in Kitty Hawk argued that his client, Richard M. White, would be unduly harmed by passage of the amendment, and that an exception should be created for him.

Mr. White, of Elizabeth City, owns 85 Ocean Blvd., two 50-foot-lots that he bought in 1996 and developed as one 100-foot-wide property.

In 2014, Mr. White bought the vacant 50-foot-wide adjacent lot—to the north, next to 87 Ocean Blvd.—from a subsidiary of the Kitty Hawk Land Co. for $25,000. This lot, according to Mr. Haskett, was a “paper street.”

Paper streets usually occur when developers or planners lay out streets that are never built. They appear on maps, but do not really exist.

Mr. White would like to build a rental house on this former paper street, which he is calling 85A Ocean Blvd. If ZTA 18-07 becomes Town Code, he will be unable to develop or to sell this 50-foot-wide lot separately. The lot would be “recombined” with his adjacent 100-foot-wide tract.

OPINION: This is as it should be. Mr. White is not being blindsided. No inequity would occur in this case.

According to my research, the initial deed for Mr. White’s property at 85 Ocean Blvd. dates to Aug. 31, 1976, and includes a restrictive covenant running with the land that states “no more than one dwelling shall be constructed on each 100 feet of lot frontage.”

Mr. White’s own deed specifies that his land transfer is “subject to restrictions of record.” It is reasonable to presume that his real-estate agent and/or attorney advised him of all restrictive covenants.

Even if Mr. White were unfamiliar with the minimum-frontage covenant, by 1996, the current zoning law, which requires the same minimum 100-yard frontage, had been in effect for years.

Mr. White is not out hundreds of thousands of dollars for an investment property. At the worst, he purchased, at minimal cost, an attractive buffer for his rental house. According to Dare County tax records, the lot is currently assessed at $54,500.

In fact, Mr. White might be able to recoup his $25,000 investment by selling all or a portion of his buffer to the property owner at 87 Ocean Blvd. He can build a larger rental house than the one he currently owns on the combined 150-foot-wide tract or sell the whole tract to someone else who could.

Mr. House sought a side-setback variance for Mr. White. On May 21, the Town Board of Adjustment unanimously denied his request for a reduction from 15 yards to 10 yards.

According to Mr. Haskett, Mr. House filed a new variance application on June 5, requesting 12-foot side-yard setbacks, but he “retracted” it on June 13.

Does Mr. House know something we don’t know?

We’ll find out at the Town Council meeting tomorrow night.

Ann, 7/9/18

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Daphne Porter lives on Sea Oats Trail in the dunes of Southern Shores, at the road’s intersection with Hickory Trail.

During the June 23-24 no-left-turn (“NLT”) trial weekend, Ms. Porter and her housemate stayed home and worked in their yard, observing the traffic. “We were paying attention out in the yard,” she said.

Their opinion of the trial? “We absolutely loved it.”

Besides watching the flow of vehicles turning left from Hickory Trail on to Hillcrest Drive—the customary north-bound vacationer cut-through route—and on to their street, Ms. Porter and Cynthia Barth surveyed conditions on NC 12 : They have a bird’s eye view of Duck Road from their back deck.

When the traffic slowed on NC 12 to between 4 and 11 mph, according to Ms. Porter, who monitored it, WAZE, the free social navigation app that allows drivers to share real-time traffic and road conditions, directed motorists to Wax Myrtle Trail. But not that many Wax Myrtle “rerouters” accessed it via Hickory Trail, she said.

“We didn’t hear the traffic, and we didn’t see the traffic [on and near their street],” Ms. Porter told The Beacon in a telephone interview. The weekend “was nothing but positive for us. . . . It was fantastic.”

As most of you know, the left-turn prohibition at the U.S. Hwy. 158-South Dogwood Trail intersection was in effect from 8 a.m. until 6 p.m. June 23-24, during which time Southern Shores police officers implemented “zero-tolerance enforcement.” They issued 25 citations for illegal turns, all but three of them on Saturday, according to the Police Department’s “summary” NLT report, which is available on the Town’s website.

With the exception of Stephen Uperti, who lives with his wife Tina on Wax Myrtle Trail near its intersection with Porpoise Run—a hop-off point recommended by WAZE, according to a Duck restaurant employee—the cross-section of people in town whom The Beacon called for comment and the people who emailed The Beacon and posted on our Facebook page during the NLT trial and immediately afterward were exceedingly enthusiastic about its results.

“Everybody raved about it,” said Al Ewerling, who lives on South Dogwood Trail at its intersection with North and East Dogwood Trails. “I have not heard anybody on South Dogwood say anything negative about it. . . . [B]icyclists, people walking their dogs, people out jogging, they all said [traffic] was a lot better.”

Even Mr. Uperti, who said that the traffic off of NC 12, onto Porpoise Run, and then driving past his house was much heavier than usual, concluded: “It didn’t really bother us because there was no backup.” He and at least one of his neighbors, who placed an orange cone in the street in front of his house, were concerned, however, about the speed of the motorists, who came careening around the Porpoise Run/Wax Myrtle curve.

By the time the Wax Myrtle traffic reached Vincent Ferretti’s home, however, about a mile west of the Upertis, it was “light,” the former Maryland trial judge said. Mr. Ferretti did not notice the heavy traffic that Police Chief David Kole reportedly told The Outer Banks Sentinel some residents on Wax Myrtle Trail complained about. That’s not what he experienced, Mr. Ferretti told The Beacon. “The traffic was great,” he said. No problems.

On Sat., June 30, Nona Post, who also lives on Wax Myrtle Trail, posted on The Beacon’s Facebook page: “It was hell coming home. Please please stop left turns going forward.”

Indeed, the assessment of The Beacon’s sources, some of them obtained by random calls, contrasts sharply with the pessimistic analysis issued by Chief David Kole to local media on June 28, as well as public comments he reportedly has made—none of which reflects the peace and quiet, the relief, and even the elation that so many residents experienced.

“This has been a wonderful weekend with no backups in our neighborhood!” exulted Lori Harrell Worthington, who lives at the north end of Sea Oats Trail, where traffic backs up each summer weekend as cut-through motorists seek to enter the traffic flow on NC 12, often blocking the intersection and impeding the thoroughfare.

“I was wondering if I was on a different planet last weekend after reading” remarks by Chief Kole to the Sentinel, Ms. Worthington posted on The Beacon’s Facebook page.

According to Jim Kuykendall, traffic was backed up June 30 on 11^th Avenue, the NC 12 “side street” where he lives, for 10 hours. On the NLT weekend, he reported on Facebook, “Traffic on our street was null!!!!”

The Police Department’s summary NLT weekend report contains vehicle counts that purportedly show a minimal impact on South Dogwood Trail traffic and an adverse impact on certain streets, including Juniper/Trinitie in Chicahauk. But John Booth, of Gravey Pond Lane, and Susan Dineen, of Deer Path Lane, told The Beacon traffic was “light” on Trinitie all weekend. They both said they kept an eye on it.

The Beacon has reason to question the relevance of the police vehicle data, as well as their manner, means, and location of collection. Let’s look at the numbers.

NUMBERS ARE INSIGNIFICANT; GO WITH THE FLOW

The police NLT report provides vehicle counts on June 23-24 for northbound traffic on South Dogwood Trail, NC 12, Trinitie Trail, and Sea Oats Trail. It further compares these counts with counts from the previous Saturday and Sunday, June 16 and 17, 2018, and counts from the “same weekend” in 2017, June 24-25.

As hackneyed a phrase as it is, it is appropriate here: The Town is comparing apples and oranges. I will elaborate below. Before I do, though, I have to examine the methodology of the data collection. I can only go so far in such an analysis, however, because the Town has not provided necessary operational facts about the counting process.

What The Beacon has learned is that 1) these counts were obtained at the following locations:

182 South Dogwood Trail

NC 12 (Ocean Blvd.) and Skyline Road

56 Trinitie Trail

286 Sea Oats Trail (between Hickory Trail and Hillcrest Drive)

. . . and 2) the counts were made by visual or sensory or other means of detection by the speed-limit devices that you frequently see on the side of the road. (See the photos above.)

This equipment apparently can calculate the number of vehicles that pass on the road, going in a certain direction, but how? Is it sensitive enough to count only motor vehicles, or does it sense and count bicycles, joggers, and pedestrians, too? How does someone set the counting mechanism on the device? Can traffic be counted for just a specific 10-hour period, or must the count be for a full day? If a counter malfunctioned, how would the Town know? How often are the devices checked during a test period?

I would like to know a lot more about these devices than I currently do. I also would like to know if the same equipment was used the previous week in the same locations during the same times and on June 24-25, 2017 in the same locations during the same times. If you can’t compare apples to apples, then there’s no point in comparing at all.

In past years, the Town has used strips across the road for counting vehicles. If the Town used the strip method on June 24-25, 2017, then a comparison of data between the years is impossible. That’s a fact that a high-school science student would immediately grasp.

I heard Chief Kole explain to the Town Council at one of its meetings that vehicle counts collected by the strip method on South Dogwood Trail were not valid because whenever a vehicle reached a particularly low speed—8 miles per hour comes to mind—it didn’t get counted! I thought this problem arose just last year. If so, then the numbers provided for 2017 may be gross underestimates.

Regardless, here are the Police Department’s vehicle counts for this year, versus last year:

South Dogwood Trail: 1,722 (June 23, 2018); 2,113 (June 24, 2017) [reduction]

981 (June 24, 2018); 1,116 (June 25, 2017) [reduction]

NC 12: 11,201 (June, 23, 2018); 10,843 (June 24, 2017) [increase]

11,273 (June 24, 2018); 11,227 (June 25, 2017) [increase]

Sea Oats Trail: 825 (June 23, 2018); 1,967 (June 24, 2017) [reduction]

215 (June 24, 2018); 275 (June 25, 2017) [reduction]

The Police Department did not provide vehicle counts for Trinitie Trail in 2017.

I frankly don’t see a reason to compare the NLT counts with counts from the June 16-17, 2018 weekend because, traditionally, mid-June is not the high season. Nor, for that matter, is the third week in June, but it’s getting much closer.

Speaking as a Southern Shores rental cottage owner of 27 years, I’ve often had trouble renting early- to mid-June weeks, because schools either are still in session or just letting out for the summer. Speaking as a homeowner on Hickory Trail, near East Dogwood Trail, for the past 20 years–of which only the past eight years or so have been marred by the traffic–I take mid-June traffic in stride, and prepare for traffic backups thereafter.

(Of course, my experience is only anecdotal evidence, just as any opinions on the traffic on Friday, June 22, 2018, which some have suggested was heavier because of the NLT weekend, are. They’re personal anecdote and conjecture about motorists’ motivation.

(I noticed no increase in cut-through traffic on Hickory Trail while I was home Friday evening. Mayor Tom Bennett may have detected an uptick in vehicles, as The Sentinel reported, but I didn’t.)

My opinion aside, here are the week-to-week numbers:

South Dogwood Trail: 1,722 (June 23, 2018); 1,739 (June 16, 2018) [reduction]

981 (June 24, 2018); 1,004 (June 17,  2018) [reduction]

NC 12: 11,201 (June 23, 2018); 11,321 (June 16, 2017) [reduction]

11,273 (June 24, 2018); 11,214 (June 17, 2017) [increase]

Trinitie Trail: 1,109 (June 23, 2018); 841 (June 16, 2018) [increase]

825 (June 24, 2018); 781 (June 17, 2018) [increase]

Sea Oats Trail: 825 (June 23, 2018); 841 (June 16, 2018) [reduction]

215 (June 24, 2018); 153 (June 17,  2018) [increase]

The only statistics that strike me as at all significant are those for Sea Oats Trail, but only because they don’t add up.

Chief Kole has been citing the “more than doubling” of vehicles on Sea Oats Trail from June 16 to June 23, 2018—321 to 825—as a downside to the NLT trial. A closer look reveals this result to be more than a little curious.

The Sea Oats Trail counter was placed only two-tenths of a mile north of Daphne Porter’s house, in the block between Hickory Trail and Hillcrest Drive. Ms. Porter described her experience that weekend to The Beacon as “incredible” and “fantastic.”

I can think of no good reason for vacationers to travel this stretch of the road. If you cut through on South Dogwood Trail, you’re going to take Hickory Trail to Hillcrest Drive and then catch Sea Oats Trail off of Hillcrest; and if you jump off of NC 12, you’re going to take Wax Myrtle Trail, not Sea Oats Trail.

Constance LeSueur, who lives near 286 Sea Oats Trail, did not notice the traffic during the NLT weekend. “We have a problem every now and then,” she told The Beacon, “but not much.”

Over on Hillcrest Drive, Stefan Herzog, who lives about a half-mile north of the Hickory-Hillcrest intersection, noticed that the “traffic was lighter” that Saturday. There was a slight slowdown near his driveway about 4 or 5 p.m., he noted, but it didn’t last long.

The NLT weekend “cut into my neighbor’s lemonade stand,” Mr. Herzog wryly complained.

Where, I wonder, did the 1,722 vehicles that reached 182 South Dogwood Trail that day go? Why would about 800 of them skip a lightly traveled Hillcrest Drive and opt for Sea Oats Trail instead? I certainly didn’t see a diversion to Sea Oats Trail when I drove through the dunes, checking the traffic.

Even more vexing to me is the apparent 58-percent drop in traffic on Sea Oats Trail between the June 24, 2017 count (1,967) and the June 23, 2018 count (825). It makes no sense. There’s no way that 2,113 vehicles drove up South Dogwood Trail, and then 1,967 of them bypassed Hillcrest Drive and got on Sea Oats Trail off of Hickory, instead.

Apples and oranges. The 1,967 figure must reflect traffic on the northern end of Sea Oats Trail, where it always backs up and where a counter should be located; and this year’s count calculates vehicles elsewhere or, perhaps, incorrectly.

TOWN COUNCIL MUST ACT

Daphne Porter would like to see the left-turn ban in effect for about a month to six weeks each summer, starting in late June.

“The traffic was calm,” she said, “and I was calmer.” I agree, and that’s a very good thing.

In previous blog posts about the NLT weekend, I’ve reported that traffic appeared to move at speed on both U.S. Hwy. 158 and NC 12 for most of Sunday, if not all day. (See The Beacon, June 25 and June 29, 2018.) It may well be that the NLT option would inure to the benefit of arriving vacationers, keeping them calmer and less aggressive on and off the road.

All traffic has to merge eventually on to Duck Road and then get through the Duck bottleneck. The speed of the traffic flow on the thoroughfare is not contingent alone on the volume of traffic. The merging of side-street traffic substantially affects it, too.

After Chief Kole gives his summary report on the NLT weekend at the Southern Shores Town Council’s July 10^th meeting, the Council must define a next step for securing cut-through traffic relief on our residential streets. This trial cannot be a “one-time deal,” as our police chief called it at the Council’s May 1 meeting. There’s plenty of the money in the budget to fund another NLT weekend this summer or to exercise another option. It’s a question of priority. (See The Beacon’s budget report, May 29, 2018.)

The community-at-large needs and deserves action, and if our elected officials are truly listening to their constituents, they will deliver it.

Please attend the Town Council meeting, which starts at 5:30 p.m. in the Pitts Center behind Town Hall. If you can’t make the meeting, please let Mayor Bennett and the Town Council know what you think: Email them at council@southernshores-nc.gov.

Ann G. Sjoerdsma, July 6, 2018; updated, July 7, 2018

(Joe Van Gieson, Geri Sullivan, and Ursula Bateman contributed to this report. The photographs are courtesy of Peggy Irvin.)

 

Deeds transferring property in Southern Shores from its developers to initial buyers contained a number of restrictive covenants, a standard one of which specified a minimum lot width of 75 feet or 100 feet for every dwelling constructed.

These covenants expressly ran with the land and, thus, moved from deed to deed as the property was transferred from one owner to the next. They were tied to the land, not to the owner, and did not have an expiration date. Subsequent deeds in a property “chain” commonly referred to them.

I finally had an opportunity to do research at the Dare County Register of Deeds in Manteo. What I discovered in looking up old deeds, which are unavailable online, was a clear intent by Southern Shores developer Frank Stick, his partners, and their business entity and successor, the Kitty Hawk Land Co. (KHLC), to establish minimum dimensional requirements for building lots.

They didn’t have a town zoning code. They had restrictive covenants.

During the past two years, an unwelcome trend has emerged in Southern Shores to redevelop 100-foot-wide land tracts on or near the oceanfront—which are platted and recorded as two 50-foot-wide lots—as two “nonconforming” lots. Since the Town enacted zoning ordinances in the 1980s, the minimum width for a lot has been 100 feet, and the minimum size has been 20,000 square feet.

In proposed Zoning Text Amendment (ZTA) 18-07, which The Beacon has covered extensively, the Town seeks to amend the Town Code of Ordinances to ensure that the development of smaller nonconforming lots does not continue to occur.

Although difficult to understand, ZTA 18-07 essentially requires the “recombination” of adjacent lots under the “same ownership” into a single conforming lot or multiple lots, if certain situations apply. Those situations involve proposed development and/or sale.

ZTA 18-07 would replace the current confusing and inadequate Town Code section on nonconforming lots, which is sec. 36-132.

The proposed amendment received a 3-2 favorable response from the Town Council on its first reading June 5. Mayor Tom Bennett and Councilman Chris Nason, an architect who has designed oceanside houses in Southern Shores, voted against it. The second reading for ZTA 18-07 is expected to be July 10.

Having now unearthed the bedrock restrictive covenants of Frank Stick and his vision of Southern Shores, I’m left wondering: Are these decades-old restrictive covenants legally enforceable? If so, by whom? The Town? The Southern Shores Civic Assn.?

In not enforcing them, has the Town, the Southern Shores Civic Assn., or both allowed illegalities to occur?

In this special report, I will detail three property situations in which restrictive covenants were ignored, to the detriment of the Southern Shores vision and land-use plan. But before I do, I’d like to impart some history.

***

The Beginnings of Southern Shores

 “Founding Father” Frank Stick bought the 2800-acre tract that he named Southern Shores shortly after World War II. He envisioned an ocean-to-sound residential community of open space and luxurious privacy for people of more modest means than the ultra-rich who owned oceanfront property in the Northeast.

According to “Outer Banks Architecture: An Anthology of Outposts, Lodges and Cottages” (©2000), by Marimar McNaughton, Phase I of Southern Shores opened in 1946 with 50 oceanfront building sites. Although they surveyed and platted 50-foot-wide oceanfront lots, Stick and his partners, lawyer son-in-law John B. McMullan and the Aydlett brothers, Elton, Cyrus, and Journeay, of Elizabeth City, sold the lots in pairs for $2,000.

I have referred to this arrangement in previous posts as a non-negotiable “package deal.” Purchasers bought two lots, but always treated them as one lot for development purposes.

The Stick-McMullan-Aydlett partnership was nothing if not orderly: The partners divided the Southern Shores subdivision into blocks, some of which had sections, and decided the minimum building lot size per block, as well as minimum dwelling setbacks from Ocean Boulevard and from side and rear boundaries.

In 1967, my parents bought a pair of oceanfront lots for $10,000. I now know that underlying their 1967 deed was a 1951 deed from KHLC to the initial buyers that restricted the construction of a dwelling to “each 100 feet of property conveyed.” My parents’ deed references this 1951 deed by its recording citation, but I had never looked it up before. The earlier deed also includes a covenant requiring a dwelling to be constructed 100 feet from the east edge of Ocean Boulevard.

Mr. Stick (1884-1966), who was a nationally known wildlife artist, as well as a conservationist, and real-estate speculator, investor, and developer, designed the Southern Shores “flat top,” based on block homes he had seen in Florida. He built his own flat top in 1947 at 60 Ocean Blvd. from cement blocks. For some time after this, flat-top construction was made mandatory through a restrictive covenant in deeds that regulated architectural design.

***

The Irony of 64 Ocean Blvd.

All of the oceanfront properties around the Stick home site were 100-foot-wide lots, made up of two 50-footers, but they were platted in blocks in which the minimum required building lot width was 75 feet.

According to Ms. McNaughton’s book, a cluster of flat tops developed in this area that became known as “The Compound.” In 1948, Edward Spencer Graves of Lynchburg, Va., built an atypical two-story flat top at 64 Ocean Blvd. for his mother, who had 17 grandchildren and entertained “a constant parade of houseguests” from Lynchburg.

Known as the Graves Cottage (pictured above, at top), this historic home was destroyed by SAGA Realty & Construction to make way for its proposed 16-bedroom-with-a-ballroom “event” house, which it planned to build in 2016.

SAGA was forced to abandon its construction when the Southern Shores Town Council, by a vote of 3-2, capped home size at 6,000 square feet. Mayor Bennett and Councilman Nason, who has worked with SAGA, opposed the size limitation.

My research shows that the underlying deeds at 62 and 64 Ocean Blvd. contain the standard Frank Stick-KHLC restrictive covenant about the minimum building lot being 75 feet of frontage, and subsequent deeds refer to “restrictive covenants as may appear of record in the Public Registry of Dare County” or similar language. And yet, a 50-foot-wide lot now exists between the large houses at these addresses.

How did this happen?

It happened because 1) Edward Graves unduly complicated ownership by leaving each of his mother’s grandchildren an undivided interest in Lots 3 and 4, which made up 64 Ocean Blvd. property, and an acquired 37 ½ feet of adjacent Lot 5, originally part of 66 Ocean Blvd.; and 2) the Gupta family, principals of SAGA and related limited liability corporations (LLCs), bought the property through a 2013 court-ordered estate sale.

According to the deed history, Amit Gupta, who is a co-founder and partner of SAGA, submitted the winning bid for 64 Ocean Blvd. Several months later, Amit assigned his bid to 64 Ocean Blvd., LLC, which was managed by his brother, Sumit Gupta, another co-founder and partner of SAGA. Sumit (i.e., 64 Ocean Blvd., LLC), in turn, gifted Lot 3 to Nags Head Freehold, LLC, which their father, Prem Gupta, managed.

SAGA’s website lists Amit Gupta as its president; Sumit Gupta as its Chief Executive Officer; and Prem Gupta as its Chief Financial Officer.

In January 2016, after the Town Council restricted house square-footage, Nags Head Freehold, LLC sold this nonconforming lot, labeled “64A Ocean Blvd.,” to Steven D. Love and his wife, Kathleen Gorman, who own the adjacent property at 62 Ocean Blvd.

As I read the current, albeit fuzzy nonconforming-lot law, Town Code sec. 36-132(a)(2), the Guptas—no matter what corporate veil they use—should have been prevented from selling Lot 3. But, even if you view the law as favorable to them, the restrictive covenant requiring frontage of 75 feet should have run with Lot 3.

Taking no apparent notice of the covenant, however, the Town has treated 50-foot-wide Lot 3 as buildable: On May 16, 2016, the Board of Adjustment unanimously granted Mr. Love and Ms. Gorman a variance for 12-foot side-yard-setbacks.

The land tract at 64 Ocean Blvd., where a large house has long been under construction (see photo above, at bottom), is now 87 ½-feet wide, a size that is permissible under the old restrictive covenants, as are 10-foot-wide side setbacks; but impermissible under the current zoning law. (Would anyone care to measure the setbacks at the site?)

The Board of Adjustment’s approval of a variance on Lot 3 opened the door for other property owners, including those at 103 Ocean Blvd.

***

103 Ocean Blvd.: Did Confusion Lead to Illegality?

 On July 18, 1967, the KHLC transferred two 50-foot-wide adjacent lots at 103 Ocean Blvd., to Moses E. and Mary V. Goldman, a married couple. Among the covenants listed within, the deed restricted the construction of a dwelling on the site to a land width of at least “75 feet of either ocean or highway frontage.”

Subsequent deeds in the chain of title for 103 Ocean Blvd., expressly referred to this and other covenants, even citing the book and page number of the Dare County Registry on which the first deed was recorded.

Thanks to action by the Town’s Board of Adjustment, however, 103 Ocean Blvd. is now the site of two three-story rental houses, each built on a 50-foot-wide lot.

How did this happen? To find out, you have to track the deeds.

 On May 24, 1968, the Goldmans transferred a “one-half, undivided interest” in their property to Frederick and Mary Randall. This deed explicitly referred to the 1967 deed and stated that the transfer was subject to “those certain restrictions set forth in the deed of Kitty Hawk Land Company to the Grantors [the Goldmans].”

Thus, Moses and Mary Goldman had 50 percent, and the Randalls held the other 50 percent—of a 100-foot-wide property. They did not each have a 50-foot-wide lot. They thereafter built a brick duplex on the site that overlapped the two lots

Mary Randall died. On July 15, 1982, Frederick Randall and his second wife, Marguerite Randall, transferred their one-half interest to Edwin B. Goldman and his wife, Dorothea Goldman.

Edwin, you might speculate, was the son of Moses and Mary, but I could not confirm this relationship. Edwin and Dorothea’s deed clearly refers to the restrictive covenants recorded in 1967.

You might suppose that with the Goldman family owning all of 103 Ocean Blvd., the property would end up with the younger generation when the elders died, but that is not what happened. Instead, the one-half interest that Moses and Mary Goldman owned passed under Moses’s will in 1988 to Charles and Paula Pagano. Two trustees, including one named Harry L. Goldman, sold the interest to the Paganos, who sold it, in 2000, to Jimmie and Dana Summerell of East Lake, NC.

The Summerells, who are local investors, had to know they were not purchasing a 50-foot-wide lot. They also should have known the restrictive covenants that ran with the property, as well as the Town’s zoning requirements.

In the meantime, Edwin and Dorothea transferred their one-half interest to the Dorothea B. Goodman Trust, which became known in 2015 as the Georgia J. Goldman Trust.

Apparently with the advice of the Town of Southern Shores—public comments by Board of Adjustment members have indicated such—the Summerells and the trustees of the Goodman Trust executed transfers by gift in January 2017 that split the 100-foot-wide property into two 50-foot-wide lots, one owned by the Summerells, the other by the trust.

Shortly after these transfers occurred, the Board of Adjustment approved side-setback variances that enabled the two sets of owners to build on more lot square footage. They replaced the decades-old duplex with two near-identical three-story rental houses that look like they belong in crowded Nags Head, not Southern Shores. (IMHO)

Was the property owners’ and the Town’s disregard of the restrictive covenant requiring a minimum building-lot size of 75 feet in width legal? Should the Civic Assn. have intervened?

***

 315 N. Dogwood Trail: Divided into A, B, C Lots

I now shift to soundside Southern Shores. In a June 4 blog, I looked at the online deed history of 315 North Dogwood Trail, an approximately 180-foot-wide land tract. (To view a deed recorded before 1999, you must go to the Register of Deeds.)

I took some heat in the June 5 Town Council meeting for referring to this property as being “subdivided,” although I clearly used the word in a non-legal sense to mean dividing a whole into smaller parts. I conceptualize what happened to this tract as an “un-combining” of lots—just like the un-combining at 64 Ocean Blvd. and 103 Ocean Blvd. See what you think about its treatment.

On Feb. 4, 1966, the KHLC transferred the land, designated as lots 34, 35, and 36, Block D, Section B, Soundside, to P.J. M. Bayne and his wife, Margie S. Bayne. Among the “covenants running with the lands and binding on the parties . . . their heirs and assigns,” listed in the deed, was the following:

“No more than one dwelling shall be constructed on each 75 feet of lot frontage, but one guest house may be built on each 100 feet of frontage in addition to the main dwelling.”

In 1973, the KHLC established the new road of North Dogwood Trail, which necessitated a revision of the boundary lines of the Payne property. KHLC and Margie S. Bayne, now a widow, agreed to an amended plat of the three lots, recorded in a new map book.

This agreement specifically stated that the “terms, conditions and restrictions stated in the instruments by which [Mrs. Bayne] initially acquired” her property interest still pertained.

In October 1991, Margie Bayne, now known as Margie S. Young, executed a deed of gift of the three soundside lots to Fred M. Suthard, reserving a life interest for herself. This deed makes no mention of the KHLC’s restrictive covenants, but Ms. Young does take “exception” to any “restrictions and covenants of record and any governmental regulations that may affect” her gift to Mr. Suthard.

Nearly 23 years later, in 2014, the executor of the Estate of Fred M. Suthard transferred title to the three soundfront lots to Raffaele Dibari and Shannon D. Dibari. The Dibaris bought the 37,000-square-feet parcel of land, which had a 45-year-old house on it, for $425,000. The parcel was treated, again, as a whole, not as parts.

Subsequently, the Dibaris subdivided—broke up? partitioned? un-combined?—the parcel by the lots, each of which is approximately 60 feet wide. They designated them 315A, 315B, and 315C N. Dogwood Trail.

Two years later, an Ohio couple paid $255,000 for the 315A lot. I only learned about this property because the Ohioans put “315A” up for sale on May 25. The online multi-listing for the lot indicates a sale is “pending.”

According to their respective deeds, the Dibaris and the Ohio couple both took title to their property subject to “easements and restriction of record, if any, in the Dare County Registry.”

This should mean that 315A is not a buildable lot because it is not 75 feet wide, as the underlying restrictive covenant in the Paynes’ deed requires. If, however, this covenant no longer has legal force, then the lot should be considered nonconforming under current Town Code zoning law.

The Dibaris, who still own adjacent lots B and C, appear to have a right to sell the A lot—because of a gap in the current nonconforming-lot law, which ZTA 18-07 would fill—but building on it is a different matter.

***

Questions arise: Do decades-old restrictive covenants have any meaning today? Does it matter if subsequent deeds do/do not refer to them as conditions of the land transfers? (It is fairly routine for land transfers to be subject to “restrictions of record.”)

What is the value of a restrictive covenant if it is not enforceable or enforced?

Shouldn’t adjacent and nearby property owners be able to trust that restrictive covenants will be enforced?

I am not a real-estate attorney, nor do I aspire to activate my law license in North Carolina and become one. I have not done any legal research on restrictive covenants, and I am not going to render a legal opinion on them. I do remember one guiding principle, however, from my first-year property-law class:

A restrictive covenant generally will not be enforced if the character of a neighborhood has changed so substantially as to defeat the purpose of the covenant.

You have to question the use and value of restrictive covenants if some property owners can blithely ignore them—especially those covenants that serve to regulate the density of development and, thus, have a profound effect on other property owners’ quality of life and land investment and on the character and ambiance of a town.

Restrictive covenants such as the ones I’m highlighting are what make Southern Shores, Southern Shores.

During the Town Council’s June 5 hearing on ZTA 18-07, Mayor Bennett expressed concern that the proposed amendment would “punish” some property owners by depriving them of an anticipated investment.

I would like to meet the Southern Shores property owner who thinks he/she would be “punished,” and then I’d like to go to the Register of Deeds and research his/her chain of deeds.

Frank Stick and company knew what they were doing. Do we, now?

Ann G. Sjoerdsma, June 20, 2018

In a 3 ½-hour meeting Tuesday night at the Pitts Center that featured four public hearings and a surprise announcement by Planning Board Chairman Sam Williams, the Southern Shores Town Council split 3-2 on approving ZTA 18-07, a zoning change intended to halt a recent trend in town to develop nonconforming lots, in particular, lots that are 50 feet wide. Councilmen Fred Newberry, Gary McDonald, and Jim Conners voted in favor of the ZTA, and Mayor Tom Bennett and Councilman Chris Nason opposed it.

A second reading of ZTA 18-07 will likely be held at the Council’s July 10 meeting, although a special meeting could be held earlier. According to Town Attorney Ben Gallop, the ZTA did not “pass.” The vote to approve it on first reading fell short of the required majority. On second reading, only a simple majority is required.

As expected, the Town Council also unanimously approved two other zoning text amendments recommended by the Planning Board, including one that changes the Town Code to allow “small” drive-through facilities to operate in the commercial district, if they front on U.S. Hwy. 158 (ZTA 18-05), and was before the Council on a second reading; and another pertaining to the installation of small-cell facilities in residential districts to improve cellular-phone signals (ZTA 18-06).

Mr. Nason, an architect and owner of Beacon Architecture & Design in Kitty Hawk, did not participate in the drive-through facilities matter (ZTA 18-05), because of a financial interest. He described ZTA applicant 5415 OBX LLC, represented by Spiros Giannakopoulos, who also sought a conditional use permit (CUP) to operate a drive-through ice cream shop on the 18,260-square-foot commercial lot at 5415 N. Croatan Hwy., as “a client.”

The Council voted 4-0 to grant Mr. Giannakopoulos’s CUP.

After a robust discussion led by Mr. McDonald about how Town Manager Peter Rascoe balanced the proposed FY 2018-19 budget that was filed May 1, the Town Council approved the budget, 4-1, with Mr. McDonald dissenting.

Mr. McDonald questioned a transfer of $282,828 from the Capital Reserve Fund, which is used for capital projects, to FY 2018-19 revenues in order to make up for a shortfall in revenues and expenses that appeared in preliminary figures presented April 17 by Mr. Rascoe in a “draft” budget. (See The Beacon, “FY 2018-19 BUDGET SESSION: Preliminary Figures Show Expansion of Capital Projects, Staff; Major Investment in SSVFD, Employee Compensation,” April 24.)

“We’re using money that was designated for a specific project”—in this case, $195,000 for work on Yaupon Trail that was delayed—“to balance the budget,” Mr. McDonald argued.

The Beacon will explore Mr. McDonald’s concern, and Mr. Rascoe’s response, in an upcoming blog post.

In other budget discussions, Councilman Newberry brought up future payments for the proposed new fire station, which has been estimated will cost up to $6 million and has yet to be approved by the Town Council.

Noting that revenues are unlikely to increase, Mr. Newberry asked: “Do we start trimming the budget, or do we raise taxes?”

Councilman Nason agreed that next spring, when the FY 2019-20 is prepared, “A tough discussion [will] be had.”

The May 1 proposed budget differed only minimally from the April 17 draft budget, showing bottom-line expenditures of $6,355,401, compared with $6,388,835 in the draft.

And finally, Planning Board Chairman Sam Williams, who presented the Board’s recommendations on all of the ZTAs and answered Council’s questions, announced that after nine years as chairman, he will not be seeking another three-year term on the Board when his current term ends June 30.

Mr. Williams, a dedicated and diligent public servant who has worked extremely long hours as Board chairman, expressed an interest in having more time with his family.

The Beacon extends its best wishes to Mr. Williams and his family. We hope Mr. Williams enjoys his grandfather time, but also continues to share his knowledge and experience with the Town.

Mr. Williams’s decision creates a certain vacancy on the Planning Board, which the Town Council must fill by majority vote. The three-year term of Board member David Neal is also expiring June 30. He previously has indicated an interest in continuing for another term. In addition, a vacancy currently exists in one of the two Board alternate positions, and the term of alternate Carlos Gomez is ending June 30.

NONCONFORMING LOTS—ELABORATED

I will conclude this post with a few more comments about the discussion on ZTA 18-07, which proved to be confusing and somewhat divisive. To say the least, the issues raised by the ZTA are complicated.

It is unfortunate that the public hearing on ZTA 18-07 was the last one on the agenda, rather than the first, because so many people had left by the time it started. It is also unfortunate that Mr. Gallop did not explain to the remaining public the meaning of the vote.

After the Town Council voted, 3-2, to approve the ZTA, as written, without any changes—on motion by Mr. McDonald, seconded by Mr. Newberry—members of the audience were left asking, literally: What happened? Did it “pass”?

When I posed this question to Mr. Gallop after adjournment, he explained that, to be enacted, the ZTA needed to be approved by a “super majority” of four of the five Council members. On second reading, a simple majority, or three of the five, will be sufficient. Mr. Gallop would not characterize the ZTA as having “passed.”

Southern Shores’ low-density character is a key feature of its land-use plan and of its unique appeal. The Town’s zoning laws specify a minimum lot width of 100 feet and a minimum lot size of 20,000 square feet. These dimensional requirements are listed among those for setbacks, lot coverage, and building height, etc., in Town Code section 36-202(d), which covers the RS-1 single-family residential district.

But many lots in Southern Shores were platted and recorded as 50-foot-wide lots, and then typically sold in combinations of two or more, before the Town was incorporated and the Town Code was enacted. To my recollection, they were sold as “package deals” and developed as if they were single lots of 100 feet or more in width. It is because of this development history that Southern Shores has been able to preserve its open spaces.

It’s also because of this history that the nonconforming-lot dilemma has arisen.

When my parents purchased oceanfront property in Southern Shores nearly 50 years ago, they were offered one tract of land consisting of two 50-foot-wide lots: Take it or leave it.

They were not given the option of buying only one of the 50-foot-wide lots. I don’t know why their land wasn’t platted as one 100-foot-wide lot because, clearly, the developer’s intent was to preserve large lot sizes.

The neighbors to the immediate south of my parents’ property, who were a generation older than they, bought three adjacent 50-foot-wide lots and built a marvelous flat-top house on two of the lots, leaving the lot between my parents’ property and theirs, vacant. (Part of a dune deck overlaps the third 50-foot-wide lot, however.)

In the discussion about ZTA 18-07, Mayor Bennett seemed most concerned about the interests of people like my parents’ original neighbors: The ZTA would prevent such property owners—actually, now their grandchildren and great-grandchildren—from selling their third vacant 50-foot-wide lot.

LOW DENSITY, ABUNDANT SPACE

I think it is relevant to quote in full paragraph (a) under sec. 36-202, which expresses the intent of the regulations:

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

I found it very disconcerting to hear Councilman Nason say during the hearing on ZTA 18-07 that he has “no problem” with developing 50-foot-wide lots and increasing density. He may not, but the Town does and has since its 1979 incorporation.

Mayor Bennett worried about “punishing people”—such as my parents’ original neighbors and their descendants—who would be compelled by ZTA 18-07 to “recombine” their lots into one single lot if they tried to sell a nonconforming lot separately. But, if they were permitted to sell their third 50-foot-wide lot, their buyer would build on the lot, with the aid of variances, in contravention of the intent expressed in both sec. 36-202 and the Town land-use plan.

Mr. Gallop’s explanation that “over time,” the Town’s intent “is to reduce nonconformings” did not seem to resonate with the mayor.

“We need to put more work into [the ZTA],” Mr. Bennett said.

Councilman Conners spoke for Mr. Newberry, Mr. McDonald, the Planning Board, and property owners who publicly supported the ZTA, when he said that it was about “stopping runaway development so [Southern Shores] doesn’t look like Kitty Hawk or Kill Devil Hills.”

He exhorted his Council colleagues: “Let’s move forward.”

Ann G. Sjoerdsma, June 7, 2018

 

A soundfront lot at 315A North Dogwood Trail in Southern Shores came on the market May 25, listed for sale by Beach Realty-Duck. Asking price: $285,500.

What a steal! You think, before wondering: What gives? 315A? When did land on the north end of Dogwood Trail, where the road narrows to a single lane, get subdivided?

(Please note: I am not using the terms, subdivided and subdivision, in a legal sense. The three lots at 315 N. Dogwood were treated for decades as a single parcel, although they were platted separately. I am speaking of that single combined tract as being subdivided.)

Promoted by the broker as “the only soundfront lot” for sale in Southern Shores, 315A N. Dogwood Trail is advertised—and comes up in a multi-listing search—as land. But the property details of the listing (#100656) show a house having been built there in 1970, and the online Dare County property tax records still depict an old colonial on the site.

If you read further in the listing, you’ll soon discover that what is being called 315A N. Dogwood Trail is only about 13,330 square feet in area—a size that makes it 6,670 square feet smaller than the minimum 20,000-square-foot lot size required in Southern Shores. (See Town Code sec. 36-202(d))

Lots that do not meet the Town’s legally mandated dimensional requirements, such as the minimum size of 20,000 square feet and the minimum width of 100 feet, are considered nonconforming. These requirements exist to ensure that Southern Shores retains its desirable low-density character, which is a central feature of its land-use plan.

The Town Council will be voting tomorrow on an important zoning text amendment (ZTA 18-07) that seeks to ensure that nonconforming lots, like 315A N. Dogwood Trail, are neither created nor developed in Southern Shores. The public hearing on ZTA 18-07 is one of four hearings scheduled during the Town Council’s 5:30 p.m. meeting at the Pitts Center, behind Town Hall. (See The Beacon, May 24.)

Not only is 315A N. Dogwood Trail a nonconforming lot, but the broker is encouraging potential buyers to inquire by representing: “Complete site plan with 4 bedroom home and pool available for review.” This lot, the listing pitch continues, is a “great opportunity to build your own soundfront home.”

Under both current zoning law (Code sec. 36-132), and ZTA 18-07, which replaces a section of the current law, however, 315A N. Dogwood Trail is not a buildable lot.

You may access ZTA 18-07 here: https://www.southernshores-nc.gov/wp-content/uploads/2018/05/5-30-18-ZTA-18-07-Nonconforming-Lots.pdf

Caveat emptor?

PREVENTING SUBDIVISIONS

Anyone who buys 315A N. Dogwood Trail, as an Ohio couple did in 2016, according to tax records, will be making a mistake. My research shows that the Ohioans paid $255,000 for this nonconforming lot, which was created by a Virginia couple who purchased 315 N. Dogwood Trail and subdivided it.

Property records reveal that Raffaele and Shannon Dibari of Burke, Va., bought 315 N. Dogwood Trail in 2014 from an estate for $425,000. Talk about a steal.

The Dibaris’ purchase consisted of a combined-three-lot parcel of land that was about 37,000 square feet and 180-feet-wide and had a nearly 45-year-old house on it. Subsequently, they subdivided their parcel into three approximately 60-foot-wide lots, which they designated 315A, 315B, and 315C N. Dogwood Trail. The couple still owns adjacent lots B and C. All three of the lots are vacant: The house is gone.

How, you might ask, did this happen . . . and just two years ago?

The answer: It shouldn’t have. The current zoning law on nonconforming lots says that the Dibaris could not do precisely what they did. At least, it appears to. The law is less than clear. But no one stopped them. Who should have? Would enforcement be any better under the proposed new law?

ZTA 18-07, which the Planning Board recommended with amendments, is a rewrite of Town Code sec. 36-132(a). It intends to stop an unwelcome two-year-old trend in Southern Shores to redevelop 100-foot-wide lots as two nonconforming 50-foot-wide lots. This subdivision has been possible because in old pre-Town Zoning Ordinance Southern Shores, it was standard to plat and record a 100-foot-wide tract of land as two separate 50-foot-wide lots. The original sale of the three lots at 315 N. Dogwood Trail as one land parcel dates to 1969.

ZTA 18-07 posits five “situations” that should “trigger” the “recombination” of adjacent lots—one or more of which is nonconforming, as 315A, B, and C are—that are “under the same ownership.” One of the situations included is “prior to the sale or transfer of land.” Thus, the new sec. 36-132 would prevent the Dibaris from doing what they did, just as the old law did, but the question remains: Who’s going to stop them?

The answer is still, under the new law, no one—not until such time as the owner of the nonconforming lot applies for a zoning or building permit, and the Town Planning Dept. learns about the subdivision and sale. And then what will the Town do?

I think this is unacceptable. The proposed zoning law needs, and the Town Council should give it, sharper teeth.

SHARPER TEETH

My problem from the beginning with ZTA 18-07, which Town Attorney Ben Gallop conscientiously drafted and redrafted with assistance from Town Planner and Deputy Town Manager Wes Haskett, is that it addresses situations that compel “recombining” lots, rather than clearly stating 1) what a property owner can and cannot do; 2) which Town official or department has authority to ensure that property owners do only what they can do; and 3) what penalty, if any, should be assessed against a property owner who violates the law on nonconforming lots.

I understand Mr. Gallop’s approach, but it concerns me. In a May 17 blog, I suggested that the Town think in terms of preventing property owners from what I called “un-combining,” i.e., subdividing. It is not too late to amend ZTA 18-07 by adding a section that states that it is illegal to subdivide adjacent lots that are required under new sec. 36-132 to be recombined, and that any such subdivision is subject to penalty.

Teeth. A property owner shall not subdivide.

In other respects, I believe Mr. Gallop and Mr. Haskett have done a commendable job. They have expanded upon the triggering situations listed in the first draft of ZTA 18-07 to include those that contemplate the sale of land, not just development or redevelopment.

I also believe that the definition of “same ownership,” as that term is used in the proposed new sec. 36-132, has come a long way, but still could use more fine-tuning. I suggest including within the “case of an individual owner,” those who are non-family-member associates or acquaintances of the owner. Sec. 36-132(a)(4).

Under ZTA 18-07, single 50-foot-wide lots that are not adjacent to another lot under the same ownership and that met all legal requirements at the time of their “creation and recording” (which 315A did not) may exist and be developed. The Planning Board wisely recommended that the side-yard setback for these lots be 12 feet, rather than 10 feet, as the original draft of ZTA 18-07 specified. The 12-foot standard has been firmly established in variance hearings before the Board of Adjustment and represents a majority view. The Town Council should endorse it.

GETTING PAST THE ICE CREAM

The other public hearings before the Town Council tomorrow concern the lot size required to operate a drive-through facility on U.S. Hwy. 158 (ZTA 18-05); the erection and appearance of new poles for the installation of small-cell facilities in the single-family residential district (ZTA 18-06); and the proposed fiscal year 2018-19 budget.

I have written extensively in the past two months about all of the above and will make only a few points now concerning the first of them.

Honorable members of the Southern Shores Town Council: Get past the ice cream. ZTA 18-05 is not about opening up an ice-cream shop. It is about radically changing the zoning law on drive-through facilities in Southern Shores.

Please think like legislators, which you are, and ask yourselves: “What if?”

If you approve ZTA 18-05 and thereby allow a “small” drive-through customer-service facility to be located on a lot that is less than 20,000 square feet, provided it has frontage along U.S. Hwy. 158 (and meets other building requirements), what will be the consequences?

The Southern Shores Town Code currently requires a “drive-through facility or establishment” to be located on a lot equal to or greater than 2.5 acres. According to the Planning Board’s Martin’s Point representative, John Finelli, who spoke during the Board’s hearing on ZTA 18-05, the 2.5-acre restriction was enacted because the Town didn’t believe a drive-through business “was appropriate for every location.”

“We were trying to keep congestion off of Juniper Trail,” he explained.

Besides the congestion inevitably engendered by applicant Spiros Giannakopoulos’s proposed ice cream shop at 5415 N. Croatan Hwy., which is only 18,260 square feet, there is the overriding concern of: How would/could the proposed zoning change on drive-throughs affect the redevelopment of other commercial properties that front on Hwy. 158 at the Marketplace and elsewhere?

Just because there are now two banks on either side of 5415 N. Croatan Hwy. doesn’t mean there always will be.

Just because there is parking to the west of the main Marketplace entrance now doesn’t mean that the land couldn’t be used for small drive-through businesses.

And what about the building site where TowneBank is and the land adjacent to it? These properties front on U.S. Hwy. 158, too.

Before the Town Council carves out an exception for Mr. Giannakopoulos’s ice-cream shop, it should know whether it’s opening a Pandora’s box, and, if so, what menaces might be released.

The ultimate what-if is: Suppose Mr. Giannakopoulos decides he wants out or he dies—lawyer thinking—and 5415 N. Croatan Hwy. passes to another business entity. Is the Town going to be OK with a drive-through express KFC or Burger King, a Brew-Thru, or even a drive-through dry-cleaning facility on this highly visible site that fronts on a very busy highway?

We all scream for ice cream, but that’s not what ZTA 18-05 is about.

Ann G. Sjoerdsma, June 4, 2018; updated, June 5, 2018