What a difference a complaint makes! The photograph above depicts SAGA Construction & Development’s building site at 98 Ocean Blvd. about 11:30 a.m. today. Last Sunday, the site was active with construction workers, one of whom told The Beacon that he expected to work Christmas Eve and Christmas Day.
The Beacon is happy to report that it did not observe construction work at 98 Ocean Blvd. on Christmas Day. At least, not in the morning.
A Southern Shores property owner shouldn’t have to complain to the Town about a builder violating the no-Sunday-construction law in order for the violation to stop. A builder should know and respect the local laws, and the police should enforce them.
My personal opinion is that property owners should supervise the construction of their new homes, whether they intend to live in them or not, and take pains to protect their new neighbors from noise, traffic obstructions and congestion, and other problems caused by the crews they’re paying. Impractical, you say? Why? Those property owners who underwrite construction that lasts a year or two years or even longer show a special disregard for the people affected by the “peripheral damage.”
But back to the noise ordinance, section 22-3 of the Town Code . . . The Southern Shores police should have the noise ordinance on their radar at all times. They should protect homeowners’ interest in the quiet enjoyment of their homes and ensure that “loud, disturbing noises”—such as the loud music that many construction workers play during their work days—do not occur. The police also should be on the lookout for traffic obstructions that constitute a public nuisance under the Town Code. (See The Beacon’s 12/28/18 blog.) A warning from a police officer carries more weight than a request by a nearby homeowner to tone things down or to remove a roadway hazard.
I actually heard a construction worker argue with my neighbor, after she asked him to move his truck, which was blocking her driveway, that he didn’t have to move it because it was in the public right of way! At that point, she said she would call the police if he didn’t, and he backed down. I also quickly put the kibosh on any notion that the end of my neighbor’s residential driveway was a public-parking space.
One Beacon reader commented, in response to recent blogs, that she has had a continuous problem since November with Sunday construction work by a builder on a site across from her home. Rather than call the police, she has sought cooperation directly from the builder, who has complied at times, but has not prevented the practice from recurring. She fears that if she calls the police to complain, the builder will retaliate against her by causing harm to her property.
I’ve heard stories about alleged retaliation—fires, vehicle vandalism, and other property damage—by contractors and subcontractors in Kill Devil Hills, Colington, and Nags Head, but never in Southern Shores. Retaliation is bullying. It’s intimidation by angry, disturbed people. I hate to think that Southern Shores homeowners are living in fear of such ugly behavior if they decide to look out for themselves.
In focusing on those builders who violate the Town Code, I do not mean to suggest that they are the majority in Southern Shores. They are definitely the exception. They’re the bad eggs, and good builders–of which there are many–don’t like them, either.
Reasonable people recognize that builders and homeowners must show each other respect and understanding in order to get along. Builders should understand that they are invading homeowners’ living space and disrupting their quiet enjoyment, and try to keep that disruption to a minimum, just as homeowners should understand that builders have a job to do and contribute to the town’s financial well-being, and try to give them some space.
That being said, The Beacon wonders if SAGA will observe the traditional peacefulness of New Year’s Day, before it resumes its rip-roaring pace. To observe the holiday would be a respectful gesture.
PLANNING BOARD TO MEET IN SPECIAL SESSION WEDNESDAY
The Town Planning Board will resume its discussion of regulations to control high-occupancy large houses at an important special meeting on Wed., Jan. 2, at 5:30 p.m., in the PittsCenter.
The Beacon will post a blog about the definition of a “single-family” dwelling in Southern Shores, and how that definition changed in January 2016, before the Planning Board meeting. Stay tuned.
(252) 473-3444 . . . (252) 473-3444 is the number you call to reach the DareCentralCommunicationsCenter to report a non-emergency police matter, such as a violation of the Southern Shores noise ordinance. A Southern Shores police officer will be dispatched to the scene of the alleged offense. Dare Central 911 is the number you call for emergencies. You need not identify yourself when you call.
In The Beacon’s last blog, I reported that I observed SAGA Construction & Development violating the Southern Shores noise ordinance on Dec. 23, by having workers engage in construction activities at 98 Ocean Blvd. on a Sunday. (See The Beacon’s blog, 12/23/18.)
The noise ordinance, which is section 22-3 of the Town Code, prohibits the erection, demolition, alteration, or repair of “any building” on Sundays or between the hours of 8 p.m. and 7 a.m. on weekdays and Saturdays, except in a case of “urgent necessity” and then only with a temporary permit. (Sec. 22-3(15))
I could have reported SAGA’s violation to the police by calling the Dare Central number printed above. I elected not to, as a courtesy-warning, although the Kill Devil Hills developer surely knows, or should know, the local law.
Instead, I informed the construction workers on-site of their offense. I also reported the offense to Deputy Town Manager/Planning Director Wes Haskett yesterday–the day Town Hall reopened after the Christmas break. Mr. Haskett promptly responded to my email, telling me that he would speak to the contractor. If I observe construction activity at 98 Ocean Blvd. again on Sunday, I will definitely call Dare Central and would ask you to do the same. [Update: See my reply to a comment about this blog post.]
All violations of the Town noise ordinance are class 3 misdemeanors, punishable by a fine of not more than $500. (See Town Code sec. 1-6(b)(5).)
A few days after the SAGA incident, I was conversing with a Chicahauk resident about the no-Sunday construction ordinance—he had never heard of the restriction—and he brought up the problem of barking dogs. He had approached his neighbors about the frequent, continuous barking of their dogs, who keep him awake at night, and received no satisfaction. I suggested contacting the police, but he is loath to do so.
Our conversation led to this blog:
PROHIBITED LOUD NOISES IN SOUTHERN SHORES
The Southern Shores Town Code prohibits any “unreasonably loud noise in the town” and declares certain enumerated acts to be “loud, disturbing noises.” On the list of such noises, which is not meant to be exclusive, are the following, which The Beacon believes you are most likely to encounter in your community:
“The use of phonographs, loudspeakers or sound amplifying devices” (sec. 22-3(b)(3): If music is so loud “as to disturb persons in the vicinity,” then the person creating it may be committing a criminal offense. Call Dare Central.
“Loud animal noises” (sec. 22-3(b)(4): Most of us are willing to tolerate barking dogs every now and then, and the Town Code ordinance reflects our neighborliness. The ordinance prohibits “the keeping of any animal which, by causing frequent or long continued noise, shall disturb the comfort and repose of any person in the vicinity.” I think my Chicahauk friend has a good argument about the dogs barking all night in yards next to his.
“Grating, grinding, rattling noises” (sec. 22-3(b)(5): Any person who uses an automobile, motorcycle, or other vehicle in a manner so as to create “loud grating, grinding, rattling, or other noise,” or “squealing or screeching of tires,” or the propulsion of “rocks, gravel, or sand” violates the Town noise ordinance.
These are just three of the 15 expressly enumerated acts deemed to be legally actionable loud, disturbing noises in the Town Code, with the construction noise I previously mentioned being the 16th. Other prohibited noises include sounding horns or signal devices on vehicles; exhaust noises; mechanical devices using compressed air; and drums or devices for attracting attention to “any performance, show, sale, or display of merchandise.”
The noise ordinance of the first-ever Town Code, enacted in 1988, clearly shows an animus toward what I would call “commercial” noise, such as the “shouting or crying of peddlers or hawkers”—who, in my opinion, were quite charming and convenient in their day—“mechanical loudspeakers on trucks for advertising,” and the “delivery of commercial goods during certain hours.” (The first two raise First Amendment issues.)
Subsequent Town Councils have amended the noise ordinance to exempt noises associated with 1) the dredging of the canals and with 2) public beach nourishment projects approved by the Town.
In prohibiting “unreasonably loud noises,” the Town is exercising its municipal authority to regulate for the health, welfare, and safety of the public. This power is fundamental to a municipality’s governance. But a municipality cannot trample on the First Amendment rights, or any other constitutional rights, of individuals in exercising this power.
PUBLIC NUISANCES IN TOWN
Quite separate, but related conceptually, to the noise ordinance is the Town’s ordinance on nuisances, which you’ll find at Town Code sec. 22-39. Unlike noise offenses, however, public nuisances are civil matters, not criminal matters.
Civil penalties levied in Southern Shores for nuisance violations can be quite severe because each day that a violation continues is a separate violation. So, if you’re ordered to pay a civil penalty of $500 for a nuisance, you will have to pay an additional $500 for every day that the nuisance continues, unabated. (But, see the nuisance investigation process, below.)
It is the Town Manager, not the police, who initiates an investigation of a nuisance complaint, after receiving notice. (Sec. 22-40.)
Among the 13 nuisances enumerated in the Southern Shores ordinance are the following:
“Growth of weeds and grass” (sec. 22-39(1): A person cannot allow the “uncontrolled growth of noxious weeds or grass” to cause or threaten to cause a public hazard.
“Accumulations of animal or vegetable matter” (sec. 22-39(2)): These would be accumulations that are offensive “by virtue of odors or vapors, or by the inhabitation therein of rats, mice, snakes, or vermin of any kind,” such that they are “dangerous or prejudicial” to the public health.
“Accumulations of rubbish” (sec. 22-39(3)): Similarly, accumulations of rubbish, trash, or junk that threaten to cause or do cause a fire hazard, or stagnant water to accumulate, or the vermin listed above to take up habitation, are public nuisances.
“Conditions violating health department rules” (sec. 22-39(4): This is a catch-all provision. Any condition that is detrimental to the public health and violates county health-department rules is a public nuisance.
The ordinance goes on to cite burned or partially burned buildings that are unsightly or hazardous; storm- or erosion-damaged structures and resulting debris; the growth of trees and shrubs on canal banks that threaten to cause or do cause a hazard to boating public safety or to navigation; abandoned personal property; and damaged household contents and buildings, etc.
A condition causing obstruction of any public street, sidewalk, alley, or bridge in town is also defined as a public nuisance. That’s one to keep in mind when monitoring a construction site where vehicles spill out on to the road. (sec. 22-39(7))
Similarly, it is a criminal offense in Southern Shores for a person to “cause a condition” that blocks or damages public streets, sidewalks, alleys, and bridges in town. (Sec. 22-2) All public streets must be open for travel and free of unnecessary obstructions.
If the appropriate county health department or Town official determines after conducting an investigation that a condition constitutes a public nuisance, the Town Manager must notify in writing the person responsible for the condition(s) and order a prompt abatement within 15 days of his/her receipt of the written notice.
As I understand the civil-penalty provision in Town Code sec. 1-6(d)(3), it is only after the nuisance perpetrator fails, neglects, or refuses to abate or remove the nuisance-causing condition that the Town may issue a citation for the violation and assess the $500-a-day penalty.
Noise and nuisance laws are important for the preservation and protection of the public’s health, welfare, and safety, but they should be narrowly drawn, so as not to be oppressive. Although we live in a much busier and noisier town than we did 30 years ago when the Southern Shores laws were first enacted, we have not yet become immune to the damage caused by what they seek to prevent.
(Please forgive the multiple email notices you received for this blog. I had difficulty with posting a photograph, so I twice deleted the blog entry and reposted a photo. My original photo, which was clip art, didn’t take. My apologies.)
The photograph above depicts construction laborers working today—a Sunday—at the house that SAGA Construction & Development is building at 98 Ocean Blvd., in direct violation of the Southern Shores Town Code noise ordinance’s prohibition against erecting, demolishing, repairing, etc., buildings on Sundays. The Beacon took the photograph at 2:35 p.m. today.
Sec. 22-3(b)(15) of the Town Code expressly states that construction work shall occur only between the hours of 7 a.m. and 8 p.m. on weekdays and Saturdays—no Sundays—unless a public emergency exists and the town permit officer issues a special permit.
There is no such emergency here. What there is, apparently, is SAGA’s desire to “outrun” pending litigation so that if the petitioner homeowners prevail in their argument that SAGA should not have received a CAMA permit to build on the site, the developer will be able to plead to the administrative law judge: “But, your honor, we’ve already built the house. It would be prohibitively expensive for us to tear it down.”
This is a common tactic used by builders engaged in zoning litigation. In building “at their own risk,” they are just following their attorneys’ advice and counting on judges’ sympathies.
The Beacon will be happy to tell the administrative law judge in this case that SAGA broke local law in order to rush to complete its construction. The photograph above is clearly dated and timed in The Beacon’s records.
While standing in the driveway at 99 Ocean Blvd., which is the property of petitioner Marvin Tignor, who gave me permission to be there, I engaged in a conversation with one of the construction workers, who stood across the street when I spoke with him. I advised him of the Town noise ordinance and asked him if the crew planned to work tomorrow and on Christmas Day. He replied yes.
The Beacon supposes that this is part of SAGA’s good-neighbor policy: to create construction noise on one of the most sacred days of the year for some of the people who live near 98 Ocean Blvd. The Town noise ordinance does not prohibit construction work on any named legal holidays, but again, The Beacon believes that the administrative law judge in the CAMA-permit case may be interested to know SAGA’s holiday schedule.
The Beacon cannot monitor all construction sites in Southern Shores to ensure that builders respect and observe the no-Sundays noise ordinance.
How many Southern Shores police officers drove past the construction site on busy Highway 12-Ocean Boulevard and did nothing to enforce the local ordinance?
I believe it is long past time for the Town Planning Board, in cooperation with the Town Planning Dept., to come up with a cost-effective method for enforcing important construction-related Town ordinances so that enforcement is not solely complaint-driven. Change is needed—now.
PLEASE NOTE: The Town Planning Board will continue its discussions about potential regulations to control “high-occupancy large houses” in town in a special meeting on Wed., Jan. 2, at 5:30 p.m. in the PittsCenter.
The Town Planning Board continued to express confusion over the new ordinance on nonconforming lots at its regular monthly meeting Monday and also debated the merits and risks of various options for controlling high-occupancy large houses in Southern Shores, with a restriction on septic capacity receiving a strong endorsement from Board member Andy Ward.
The Planning Board is looking again at nonconforming lots, which are typically 50-foot-wide lots, because Town Attorney Ben Gallop prepared a zoning text amendment (“ZTA”) at the Board’s direction, that carves out an exception to the ordinance. After a lengthy discussion, the Board voted unanimously to carve out an exception to the exception. (See below.)
Monday’s meeting was the Board’s first since Chairperson Glenn Wyder’s sudden death on Nov. 25. Vice-Chairperson Elizabeth Morey conducted the meeting, and second Board alternate Michael Basilone assumed the vacant seat.
In an unusual public comment, local attorney Starkey Sharp bombastically argued to the Board, on behalf of his client, Steven Love, who owns a nonconforming lot at 64 Ocean Blvd., that the Town has created “a big mess” and “a big mistake” with its new ordinance.
Mr. Sharp accused the Town of unfairly delaying Mr. Love’s application for a CAMA permit to build on his 50-foot-wide lot. According to Town Permit Officer Dabni Shelton, Mr. Love’s application is “under review.”
Mr. Sharp even went so far as to speculatively link obscene graffiti that was spray-painted on Mr. Love’s house at 62 Ocean Blvd. with the controversy in town over nonconforming lots.
As The Beacon previously reported, Town Councilman Christopher Nason has designed a five-bedroom, 3,600-plus square-foot house that Mr. Love would like to build on the site. The new nonconforming lots ordinance is an obstacle to Mr. Love’s plans; so, too, would be a change in the maximum house size for lots that are smaller in width than the Town Code-required 100 feet, an idea that Planning Board member David Neal brought up Monday in the context of regulating high-occupancy houses.
If you’ve read enough about nonconforming lots, I would suggest that you skip down to the section in this post titled “Potential Regulations to Stop High-Occupancy Large Houses.” If you’re up for more discussion of 50-footers, read on.
EXCEPTIONS TO THE NEW NONCONFORMING LOTS ORDINANCE: ONCE AGAIN, THE LOVE PROPERTY AT 64 OCEAN BLVD. IS IN THE SPOTLIGHT
On Sept. 5, the Town Council voted 4-1 to approve ZTA 18-07, which sought to limit the number of building lots in town that are fewer feet in width than the Code-standard 100 feet, with the understanding that the new regulation would return to the Planning Board for what Mayor Tom Bennett characterized as “refinements.”
What the Mayor actually meant by that is that the Town Council decided that certain property owners were unfairly harmed by ZTA 18-07 and should be protected from its coverage through an exception. (The Beacon has extensively covered ZTA 18-07 in multiple blogs. For reporting on the Sept. 5 meeting, see the 9/6/18 blog.)
ZTA 18-09, which was before the Planning Board on Monday, would allow property owners to sell or develop a nonconforming lot that is located adjacent to other land they own, provided that the adjacent land is made up of no more than two nonconforming lots and a single-family dwelling exists on it. Without this exception, a property owner would have to “recombine” the 50-foot-wide lot that does not have a dwelling on it—which Mr. Gallop called a “satellite” lot—with the two other developed nonconforming lots into a single lot, typically a 150-foot-wide lot.
If, however, the adjacent land under the single-family dwelling has already been “recombined”—meaning that the separately platted nonconforming lots (typically 50-footers) have been legally merged into one conforming lot—then the owner cannot sell or develop the satellite lot.
The reason for this distinction, as Mr. Gallop made clear in his presentation, is that the Town is “trying to minimize nonconformities,” and recombination of lots is now a standard requirement in the construction of new houses. A property owner who is building a new house has the present ability to build on all of the nonconforming lots, i.e., on a 150-foot-wide tract of land.
I call ZTA 18-09 the White exception. It’s also the Ausband exception.
Richard M. White, who attended the Planning Board meeting, bought the land at 85 Ocean Blvd. in the 1990s and built a rental house on it in 1999. The property consists of two uncombined 50-foot-wide lots. Fifteen years later, Mr. White bought an adjoining 50-foot-wide lot, which was a former paper road created by the development company; this property is now known as 85A Ocean Blvd. Mr. White would like to build on the nonconforming, undeveloped lot, but ZTA 18-07 prohibits him from doing so.
In the Ausband case, the property owner owns a 1981 beach box, which sits on two nonconforming lots on Duck Road. In 2017, she bought a nonconforming lot on Trout Run that is adjacent to the Duck Road property, but perpendicular. Like Mr. White, she cannot build on it unless the new ordinance on nonconforming lots is amended.
Application of the ordinance to a given situation can seem confusing but The Beacon believes that if you read the ordinance carefully, you can master it. The language is more confusing than the underlying concepts.
Nonetheless, Mr. Sharp, who is a founding member of the Kitty Hawk law firm, Sharp, Graham, Baker & Varnell, LLP, lambasted the Town for creating a “big mess” and accused the Planning Board of “exposing the Town to litigation and liability.”
There may be no more audacious act by an attorney than to use public comment at a public meeting to threaten public officials with a lawsuit.
Only Councilman Nason voted against ZTA 18-07’s adoption and subsequent fine-tuning on Sept. 5, saying that it takes a sledgehammer approach to the development problems it addresses. Mr. Sharp brought his sledgehammer with him Monday night.
In the process of swinging it, the well-known local lawyer, who has been practicing for more than 40 years, confirmed some facts that The Beacon, heretofore, could only presume, and not prove. One is that Mr. Love did indeed transfer ownership of 64 Ocean Blvd. to a limited liability corporation five days before an expected Town Council vote on ZTA 18-07 BECAUSE of the upcoming vote. Mr. Sharp said this. His client’s ownership transfer was not a coincidence.
This transfer did Mr. Love no good, however, because, as Mr. Gallop pointed out—and as Mr. Sharp would have known if he then represented Mr. Love and had read ZTA 18-07—a property owner cannot create separate ownership on an adjacent lot by setting up a limited liability corporation in which he/she is a member.
(FULL DISCLOSURE: I know Starkey Sharp, or, at least, I did. He performed a lot of real-estate transaction work for my parents in the 1970s and 1980s, and I hired him to prepare my first will many years ago. While doing research on restrictive covenants in Southern Shores, I repeatedly came upon Mr. Sharp’s name in property deeds. I would say that it appears on the majority of the real-estate deeds in our town.)
THE LOVE SITUATION EXPLAINED, AGAIN
The problem Mr. Love has at 64 Ocean Blvd. is that before he built the red-roofed white house that Mr. Nason designed at 62 Blvd., he had to recombine the underlying two nonconforming lots. Mr. Love, therefore, cannot avail himself of the White exception.
You may recall from past Beacon blogs that Mr. Love bought the 50-foot-wide lot at 64 Ocean Blvd. from SAGA on Jan. 25, 2016, three days after the Town Council disrupted the Kill Devil Hills-based developer’s plans to build a wedding-destination house on the site by enacting a 6,000-square-foot, maximum-house-size ordinance, which Mr. Nason opposed. Mr. Love was already then Mr. Nason’s client, as the newly elected councilman informed the Town Council on Dec. 1, 2015.
Mr. Sharp claimed on Monday that his client had bought the lot as a “buffer” from the “monster house” that was going to be built next door.
The Beacon has already exhaustively detailed what occurred on this tract of the Southern Shores oceanfront, but it’s worth recalling some of the facts because the Planning Board voted unanimously to amend ZTA 18-09 by adding a Love exception.
Mr. Sharp’s grandstanding served its purpose. The Planning Board decided that it was unfair to give Mr. White an exception, but not Mr. Love. The Board unanimously moved to amend ZTA-09 to permit the sale or development of a nonconforming lot that is next to a conforming lot that is no greater than 100 feet wide (provided the ownership is the same). Mr. Gallop will revise the ZTA.
The Beacon has to wonder if the members realized that, unlike Mr. White, Mr. Love had a vacant 150-foot-wide lot that he could have developed. Unlike Mr. White, Mr. Love himself created the nonconformity.
On May 16, 2016, the Town Planning Board, sitting as the Board of Adjustment, unanimously granted Mr. Love a side-yard-setback variance on the 50-foot-wide lot of 12 feet. This variance was the first of a number of such side-yard-setback variances granted by the Board of Adjustment to owners of nonconforming lots before the Town Council stepped in to prevent the creation and (re)development of such lots via ZTA 18-07.
Planning Board member David Neal recalled this variance as “opening a can of worms which we did not want to allow.” In past conversations with me, Mr. Neal has described the nonconforming lot at 64 Ocean Blvd. just as Mr. Sharp did, as a “buffer.” That was his understanding.
According to the minutes of the variance hearing (there is no videotape), Mr. Love’s general contractor, Allan Hutton, said, in explaining his client’s position:
“It didn’t make sense to add the 50 foot lot to what [Mr. Love and his wife] already had because for what they paid it would not reflect in the overall property value if combined. Now the Loves are in a position to try and make the best decision. They would like to have a structure next to them that would satisfy them, be aesthetically pleasing to the community and also maybe get some return if they needed to rent.”
When asked by Planning Board Chairperson Sam Williams what he meant by the phrase, “maximizing value,” Mr. Hutton replied that “if you added that 50 foot lot to the Loves’ other adjoining parcel it would not add much value in contrast to what they paid for it.”
The land at 62 Ocean Blvd. was then vacant, the vintage flattop on the site having been demolished.
From the issuing of the variance on May 16, 2016, until Sept. 5, 2018, when the Town Council approved ZTA 18-07, Mr. Gallop pointed out, Mr. Love “had ample opportunity to sell the property or to get a building permit,” and, thus, “to have avoided the issue” presented in the nonconforming lots ordinance, but he did not.
Whether it’s called a White exception, or an Ausband exception, or a Love exception, the Beacon does not believe ZTA 18-09 deserves support. The Town’s policy is to limit the creation of nonconforming lots, not to enable them.
The Beacon also believes that Mr. Nason acted unethically in voting on the nonconforming lots measure on Sept. 5 and in participating/voting during every session of the Town Council in which ZTA 18-07 was discussed. It is clear from site plans in Town permit files that Mr. Nason had been working on the 64 Ocean Blvd. project in early June 2018, if not before. But he never disclosed his financial interest.
Mr. Nason should have recused himself. The outcome of the vote on ZTA 18-07 was “reasonably likely to have a direct, substantial, and readily identifiable financial impact” on Mr. Nason, as the State conflict-of-interest statute requires. If Mr. Love is legally prohibited from building on 64 Ocean Blvd., then Mr. Nason loses his business.
Certainly when ZTA 18-09 reaches the Town Council, after the Planning Board acts on it, Mr. Nason should play no part in its disposition.
POTENTIAL REGULATIONS TO STOP HIGH-OCCUPANCY LARGE HOUSES: STRONG PUSH FOR SEPTIC-CAPACITY LIMITATION
Whether you characterize the large-house “problem” as a problem of population density or of residential occupancy, it boils down to this: 12-bedroom houses like the one SAGA is hurriedly building at 98 Ocean Blvd. are rental machines that do not conform to the Southern Shores land-use plan nor do they perpetuate and preserve the character and appeal of the town.
“How do you call a 12-bedroom, 6,000-square-foot house a single-family home?” asked Mr. Neal, who is a builder.
Planning Board member Andy Ward adamantly supported limiting density and occupancy in town by regulating septic capacity. He argued this point at length—for what Ms. Morey described as 45 minutes, but didn’t seem that long to me—with Mr. Gallop, who disagreed with Mr. Ward’s risk assessment.
Mr. Ward has consulted with his cousin, David Owens, an attorney and N.C. land-use expert who is a professor in the University of North Carolina School of Government. (See The Beacon’s 11/13/18 blog for background.)
According to Mr. Ward, Professor Owens sees less risk of the Town subjecting itself to liability for exceeding its authority, if it were to control occupancy through septic capacity, than Mr. Gallop does. (The principal legal argument against regulating septic capacity is that it’s the same as restricting the number of bedrooms, which is no longer allowed by the State, because septic capacity is based on the number of bedrooms.)
The Owens-inspired ZTA would establish a maximum overnight occupancy for “transient occupancy,” which it defines as occupancy in a residence for less than 30 days, of 14 people. It then specifies that all single-family residences in the RS-1 district shall have a maximum septic capacity of no more than 14 overnight occupants.
(I wish Mr. Ward had read Professor Owens’s proposed language into the record. Because of my recent travel schedule, I was unable to look at any of the Planning Board’s materials before the meeting.)
Mr. Ward was a strong proponent in January 2016 of using septic capacity, rather than house size, to control residential occupancy. He poignantly observed at Monday’s meeting that had the Town left in place its then-septic-capacity limits when it passed the maximum-house-size ordinance, SAGA would not be building now on 98 Ocean Blvd.
Now, as opposed to three years ago, Mr. Ward said, “I’m more inclined to stick by my guns and stay on my soapbox, and it’s septic. . . . I’m going to stick with David Owens and his recommendation and language.”
Beside the septic limit, other regulatory options are on the table, including the overlay-district idea propounded by Councilman Jim Conners in a lengthy motion passed at the Nov. 7 special meeting, which is the subject of proposed ZTA 18-10. The Planning Board has the authority to consider all options. None of the members expressed support for ZTA 18-10.
Ms. Morey described the overlay-district approach as “regulatory overreach” and said that it “will not necessarily arrive at the resolution that we want.”
“I don’t think the overlay district is one I’d like to pursue,” she concluded.
Planning Board member Joe McGraw, who said only a few words during the two-hour meeting, agreed that he’d rather “go after it in a different way.”
Mr. Neal expressed interest in exploring a regulation of density/occupancy by the use of the dwelling. Mr. Neal’s son and fellow builder Matt Neal (of Neal Contracting), who is 2018 president of the Outer Banks Home Builders Assn., has presented, with support from builder Mark Martin (Sandmark), an option that defines a high-occupancy dwelling as one with more than 14 persons and then prohibits such dwellings, when they’re used as short-term rentals, in the RS-1 residential district. (See The Beacon’s 12/13/18 blog for details.)
Another option that has not been discussed much is a reduction of the maximum house size to 5,000 square feet or even less, and a reduction of the maximum house size for nonconforming lots.
I will further discuss any and/or all options, depending on the outcome of the Planning Board’s Jan. 2 special meeting. Please try to attend. This lawmaking is very important for the future of Southern Shores, and it starts with the Planning Board.
Despite being advised by Southern Shores Permit Officer Dabni Shelton that, because of pending litigation contesting the validity of its CAMA permit SAGA should build on 98 Ocean Blvd. “at its own risk,” the Kill Devil Hills-based developer has proceeded to construct its 12-bedroom, 17-parking-space, nearly 6,000-square-foot “mega” house on the site at the Ocean Blvd.-Chicahauk Trail intersection—at a seemingly accelerated pace. (See the photo above, which was taken today, from across the street.)
The Beacon wonders if SAGA, doing business as 98 Ocean Blvd. LLC, thinks it can defeat a judge’s order by finishing the house first, essentially outrunning the litigation.
The Beacon is in close contact with the petitioner-property owners who were granted hearings by N.C. Coastal Resources Commission Chairperson Renee Cahoon on the matter of whether the CAMA permits issued to SAGA for 98 Ocean Blvd. and 134 Ocean Blvd. were inconsistent with the Southern Shores land-use plan. The cases are advancing on schedule.
Pursuant to the N.C. Coastal Area Management Act, a CAMA permit challenged under the section of the statute that the petitioners used remains in effect unless a “stay”—meaning a suspension of the permit, and, therefore, a stop to SAGA’s building—is issued either by an administrative law judge or by a reviewing court.
SAGA, doing business as 134 Ocean Blvd. LLC, finally closed on the property at 134 Ocean Blvd. on Dec. 6, 2018. It now owns the sky-blue flattop with the white tar-heel footprints leading up the driveway. The Beacon saw a bulldozer parked in front of the vintage structure this afternoon.
According to Deputy Town Manager and Planning Director Wes Haskett, with whom The Beacon spoke last night, SAGA/134 Ocean Blvd. LLC has filed an application to “recombine” the two 50-foot-wide lots that make up the land parcel at 134 Ocean Blvd. into one 100-foot-wide lot, as required by the Town Code. As soon as the recombination is complete, SAGA may apply for a lot-disturbance permit in order to demolish the flattop.
SPECIAL MEETING OF THE PLANNING BOARD JAN. 2; BOARD VACANCY
I will file my report on last night’s Town Planning Board meeting either tomorrow afternoon or Thursday morning. ‘Tis the season to be very busy, folks, and I apologize for the delay.
Please take note that the Planning Board engaged last night in an extensive discussion about potential regulations to address large single-family dwellings and will continue this discussion at a special meeting on Wed., Jan. 2, at 5:30 p.m. in the PittsCenter. Planning Board member Andy Ward made a strong argument in favor of limiting occupancy in houses by restricting septic-use capacity. That was one of a handful of options that the Board heard to curtail high-occupancy large houses.
Please also take note that, according to Mr. Haskett, the Town has received two applications from members of the community for the vacancy on the Planning Board created by Chairperson Glenn Wyder’s sudden death Nov. 25. The applicants are Ed Lawler and Pat Regan.
Mr. Haskett told The Beacon that both of the current Board alternates, Leo Holland, who is the first alternate, and Michael Basilone, the second, were offered the opportunity to be appointed to the Board to serve out the time remaining on Mr. Wyder’s unexpired three-year term, and that each declined for reasons related to other time commitments. Mr. Haskett said that applicants for the Board are not interviewed. Their applications are simply passed along to the Town Council for its consideration.
It is likely that the Town Council will appoint an applicant to the Planning Board at its Jan. 8, 2019 regular meeting. If you are interested in serving, there is still time to submit an application. You will find an application form on the Town of Southern Shores website.
In the interest of time, which I have less of this week than usual, I will report on the Dec. 11, 2018 Town Council meeting by category, hitting the highlights. (Paragraphs that appear in boldface were added 12/14/18.) But, first, I must print a retraction.
CORRECTION: I erred in my description of the Mediterranean-style house at 64A Ocean Blvd. as being a 10-bedroom house. I looked at Councilman Christopher Nason’s architectural drawings that are on file in the Town Planning Dept. and wrote down that the house has 10 bedrooms. That was a mistake. Brain fog, perhaps. The house has only seven bedrooms. I regret the error and apologize.
Now, the Town’s Tuesday night meeting:
DRAFT “LARGE HOUSE” ZTA: The Town Council did not discuss the content of the Town staff-prepared draft zoning text amendment (ZTA) to regulate high-occupancy houses. This draft came out of Councilman Jim Conners’s motion at the Nov. 7 special meeting.
Instead, after hearing public comment on the draft and considering a motion by Mr. Nason to recuse himself (see below), Mayor Tom Bennett swiftly moved to refer the draft ZTA to the Town Planning Board, with further instructions. (See The Beacon, 11/7/18 and 12/9/18 for background.)
The Mayor’s motion, which passed unanimously, read as follows:
“. . . to refer the draft ZTA-‘Large Homes’ to the Planning Board with instructions to also consider additional zoning requirements for 1) regulating waste-water treatment capacity; 2) regulating use of residential properties for rental; 3) regulating number of water use fixtures in a residence (using water conversion measures to control occupancy).”
(My thanks to Town Clerk Sheila Kane, who provided me with the text.)
During public comment, two Southern Shores resident-builders offered the Town Council an alternative approach to the ocean overlay district in the draft ZTA. Matt Neal, of Neal Contracting Group, Inc., and Mark Martin, of Sandmark Custom Homes, Inc., focused on the use of a single-family dwelling, rather than on building restrictions.
Mr. Neal, who is 2018 president of the Outer Banks Home Builders Assn., proposed curtailing “large” houses through what he called a use-based “High Occupancy Dwelling Option.” He gave Council members a written outline of it, which you may access here: nealoption. The site plan attached to Mr. Neal’s proposal depicts an 11-bedroom, 5600-square-foot house that, he said, could be built in conformance with the draft ZTA requirements—producing an undesired result.
Mr. Neal’s approach calls for creating a zoning definition for “high-occupancy dwelling” and for designating such a dwelling as a “conditional use” in the RS-1 residential district, which encompasses the oceanfront and most of the residential areas in Southern Shores. It also differentiates between the use of such a dwelling as a residence versus its use as a rental. Mr. Neal proposes prohibiting the use of a high-occupancy dwelling as a rental in the RS-1 district.
Mark Martin told the Council that he and Mr. Neal had discussed the draft ZTA and decided that a focus on the “use issue has a lot of traction.” If the Council were to go in the direction of the draft ZTA, Mr. Martin said, you would end up with “a town that’s full of nonconformities,” and the new structures that would be built would be very narrow because of increased side-yard setbacks and have large parking lots in front.
Mr. Neal characterized the building restrictions imposed by the draft ZTA as “onerous.”
The Planning Board meets Dec. 17 at 5:30 p.m. in the Pitts Center. According to Deputy Town Manager/Planning Director Wes Haskett, the draft large-house ZTA is not on the board’s agenda, but he feels certain that the Planning Board will discuss high-occupancy houses, in general.
The late Glenn Wyder, who assumed the Board’s chairpersonship last summer, indicated at the Nov. 7 special meeting and earlier that he supported “regulating waste-water treatment capacity,” i.e., septic capacity, to control occupancy. Planning Board member Andy Ward has endorsed this approach in many hearings, dating back to January 2016.
MY OPINION: While I am pleased that the Town Council referred the large-house/occupancy issue to the Planning Board, I wish it had done so two months ago. I also wish it had called a special meeting in mid-October—in the evening, when daytime working people could attend—after news of SAGA’s proposed developments surfaced, so that ideas such as Mr. Neal’s and Mr. Martin’s could have been heard and discussed. I, too, have thought about carving out an exception for rental houses, but the idea of a conditional use would never have occurred to me.
Mr. Conners’s prepared motion at the Nov. 7 meeting preempted any genuine discussion about various approaches. In fact, the Town Council rejected, by a 3-2 vote, a motion by Councilman Gary McDonald that morning to draft a different ZTA that would have looked at septic capacity, parking, and the definition of “enclosed living space.” Only Councilman Fred Newberry supported this alternative.
It came out later in the Town Council meeting Tuesday night that Councilmen McDonald and Newberry had requested a special meeting in October and had been denied by the Mayor, who scheduled the Nov. 7 morning meeting. “You blew us off,” Mr. Newberry said. (I will have to clarify when this request was made. The videotape did not clear up the matter.)
According to section 6 of the Southern Shores Town Council Rules of Procedure, “any two members of the Council may at any time call” either a special meeting or an emergency meeting of the Council, but they must observe specific written notice requirements to do so. If Mr. Newberry and Mr. McDonald did no more than ask the Mayor to schedule an October special or emergency meeting, then they did not follow proper protocol, as outlined in the rule. (The Beacon will follow this up.)
PROFFERRED RECUSAL BY COUNCILMAN CHRIS NASON/and my opinion of how things went wrong: Before the Town Council took up the draft large-house ZTA, Councilman Nason read a brief statement, in which he noted that, when he first took office, on Dec. 1, 2015, he asked Town Attorney Ben Gallop if he should recuse himself from voting on the large-house matter, which was before the Council then because of SAGA’s threatened 16-bedroom wedding-destination structure.
“I once again ask Mr. Gallop,” Mr. Nason said Tuesday night, “if I should recuse myself from any further votes on this matter.”
MY OPINION: The discussion about Mr. Nason’s recusal went wrong because of a lack of information and understanding by both the Town Attorney, who determined that the relevant State statutes did not require the architect-councilman to recuse himself, and by Town Council members.
Mr. Gallop’s decision, which he based on a reading of North Carolina General Statutes sec. 160A-75 and 160A-381(d), was prefaced by his statement that “the only issue I’m aware of is that Mr. Nason does work for SAGA outside of Southern Shores.”
Mr. Gallop’s lack of awareness caused problems. It was not Mr. Nason’s business association with SAGA Construction and Development that appeared to disqualify him from voting on large-house matters, but rather his current architectural project at 64 Ocean Blvd., and the ongoing construction of 64A Ocean Blvd., which he designed.
I also question whether Mr. Nason has any other clients who intend to build on the Southern Shores oceanfront, whom he has not disclosed. Mr. Gallop might have asked him that question, but he didn’t.
Mr. Nason’s known projects, and any others like them, constitute Mr. Nason’s “financial interest,” for purposes of evaluating his conflict of interest. (sec. 160A-75)
It is in light of these projects that Mr. Nason’s vote on any zoning map or text amendment must be evaluated. Is the outcome of a ZTA vote “reasonably likely to have a direct, substantial, and readily identifiable financial impact” on Mr. Nason? That’s the standard applied in sec. 160A-381(d), which is part of the State zoning statute. That question cannot be answered until Mr. Nason fully discloses who his current Southern Shores oceanfront clients are and what he is doing for them.
That Mr. Gallop failed to recognize this and assumed that the conflict challenge was based only on Mr. Nason’s business association with SAGA was a disappointment to me. That he later admitted that he could be wrong was equally disappointing.
Mr. Nason’s motion to recuse himself was defeated 3-2, with Mr. Nason and Mayor Bennett supporting it.
On Dec. 1, 2015, Mr. Nason disclosed that he was designing a seven-bedroom home for Steve Love and Kathleen Gorman at 62 Ocean Blvd. Mr. Love and Ms. Gorman subsequently bought a 50-foot-wide lot adjoining their property to the north on Jan. 25, 2015, after the Town Council enacted the 6,000-square-foot maximum house size on Jan. 22, 2015. SAGA split this nonconforming lot off from the larger land parcel on which it had proposed to build the 16-bedroom structure and sold it to them. (See The Beacon, 12/7/18.)
Mr. Nason has designed a five-bedroom, 3,606-square-foot house, with 980 more “unconditioned” square feet on the ground floor, for Love/Gorman at 64 Ocean Blvd. Mr. Nason should have disclosed this. He also should have disclosed what, if any, involvement he currently has with the house construction at 64A Ocean Blvd.
Instead, he stated that “the condition when I entered office is unchanged.” That is clearly untrue. His design work at 64 and 64A Ocean Blvd. attests to that.
After Mr. Gallop relieved Mr. Nason of a statutory conflict of interest and impressed upon the Town Council that a Council member has a “duty” to vote, Mr. Nason was able to shift into talking about “a perception of a conflict of interest” in the community, rather than any actual financial interests that he has.
What seemed to sway Councilmen Newberry and McDonald into voting against the recusal motion was Mr. Gallop’s opinion that the following statement in N.C. General Statute 160A-381(d) imposes a “duty” to vote upon Council members:
“A city council member shall not vote on any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member.”
I do not agree with Mr. Gallop’s interpretation. It does not follow logically that simply because a city council member shall not vote on a zoning text amendment if he/she has a conflict, that the negative is true: he/she has a legal “duty” to vote. Obviously, members can abstain. But this is what Mr. Gallop told Town Council members, none of whom is a lawyer.
The N.C. General Assembly knows how to impose affirmative duties if that is what it intends. It doesn’t need to imply a duty through negative phrasing.
‘PERCEPTION OF A CONFLICT’/MR. NASON SAYS FAMILY FEELS UNSAFE
Once Mr. Gallop misstated the issue, he opened the door to Mr. Nason steering clear of his own business dealings—which he never discussed—and talking broadly about a “perception of a conflict of interest.” From that point, in my opinion, he seemed to cast himself as a party injured by all of the factual reporting that I’ve done—none of which he challenged or disputed.
“Continued discussions have become quite a distraction for the town,” he said, urging his colleagues to vote to recuse him.
“It is not worth risking the safety of my home, my family, for an issue that I feel ultimately will be resolved at the state level,” he elaborated.
“This is tearing the town apart,” he claimed, referencing the “vitriol” and the “animus focused on me,” without giving any examples.
“I do not want my children to feel unsafe in this community,” he implored; but when Councilman Newberry asked for “direct evidence” of his children’s lack of safety, he said, “I’m not going into it.” At no time did he offer any evidence of the claims he made.
This lack of evidence did not stop Councilman Conners from jumping in with yet another attack on “social media,” which, incidentally, he exploited during his 2017 campaign for office when he created a fake persona and set up a fictitious Facebook page. Mr. Conners has admitted perpetuating misinformation through social media and email.
Tuesday night again, Mr. Conners condemned “social media” for the “[negative] attitude within the community” toward Mr. Nason, even though Mr. Nason clearly denied a business association with SAGA, which he, in fact, has and had; did not inform the Town of SAGA’s intentions to build the two 12-bedroom houses on the Southern Shores oceanfront, even though he knew about the plans months in advance; and failed to disclose his business dealings on the oceanfront, despite promoting and voting on changes to the Town lot-coverage ordinance and voting on the nonconforming lots ZTA.
“It has nothing to do with you,” Mr. Conners told Mr. Nason.
In the course of his own vitriolic venting, Mr. Conners implied that social-media-generated hostility had led to “drawing phallic symbols on people’s homes.”
He was referring to vandalism at 62 Ocean Blvd. on a house that Mr. Nason designed. I reported on this crime in a Dec. 6, 2018 blog.
But he didn’t get that phallic-symbol stuff from me, folks. In my report, I described a graphic drawing of “male genitalia,” not a phallic symbol. Maybe I’m playing semantics, but it also may be true that Mr. Conners saw the graffiti before it was removed.
According to the police incident report, which I obtained from the investigating officer, similar obscene graffiti was spray-painted on the concrete walkway at the Southern Shores Civic Assn.’s beach access, which adjoins 62 Ocean Blvd. to the south. The officer did not give me photographs, but he described the drawings as “crude.”
Also, according to the police report, builder Allan Hutton, who built the house at 62 Ocean Blvd. and has a crew working on the house at 64A Ocean Blvd., discovered the vandalism the morning of Dec. 5, 2018, and reported it first to Town Manager Peter Rascoe, who, in turn, notified Police Chief David Kole. The time indicated on the police report for Mr. Hutton’s notification is 7:45 a.m., before Town Hall opens.
The estimated value of the damage on the report is $4,500, not $20-$25,000, as Mr. Hutton’s worker, Chris Smith, told me, and I reported Dec. 6.
TOWN COUNCIL MEETING SCHEDULE: After considerable discussion, the Town Council voted unanimously to eliminate the provision that the Mayor may unilaterally cancel a meeting for “lack of agenda items” and to add a budget planning session on April 30 at 9 a.m. It also approved the dates for the monthly meetings in 2019. The Town Council’s next meeting will be Jan. 8 at 5:30 p.m. in the Pitts Center.
APPOINTMENTS: The Town Council unanimously reappointed three members of the Historic Landmarks Commission, whose terms are expiring, to new two-year terms. They are Lorelei Costa, Richard Perkins, and Tony DiBernardo. The Council also unanimously voted to re-nominate Councilman Nason as the primary Southern Shores representative to the Dare County Tourism Board, starting in January 2019, with Mayor Bennett and Councilman Conners as additional candidates, one of whom the Board may choose, if it wishes.
TIDINGS TO ALL . . . EXCEPT SOCIAL-MEDIA PROPONENTS, AND MORE GRAFFITI:
Mayor Bennett ended the meeting with some good news and kind thoughts. Thank you, Mr. Mayor.
Mr. Bennett spoke of Southern Shores being debt-free, having the lowest tax rate of all towns on the Outer Banks, boasting a large undesignated-fund balance, and building new homes and welcoming new families. He graciously recognized and thanked a great many people, including the Town staff and many dedicated volunteers in area organizations. He concluded by wishing everyone a merry Christmas and a happy new year.
Councilman Nason echoed these sentiments and then paid tribute to Glenn Wyder, noting that he was a leader who could bridge ideological gaps and bring people together. Mr. Nason spoke of continuing in Mr. Wyder’s spirit to “reach out” to each other. Mr. McDonald also recognized Mr. Wyder.
Mr. Newberry spoke of the positive value of social media, of the ability of bloggers like myself to “tell it like it is so people know.” He emphasized that social media “has a way of spreading the word quickly,” of getting information out. He also asked that the Town newsletter have more news in it.
Only Mr. Conners, who spoke last, sounded a sour note. He returned to “social media” once again, to attack bloggers and people on Facebook who make “allegations and insinuations” and pass along “inaccurate information.” He stressed the damage that social media can do, when opinions are “way over the top,” rather than the benefits of free and open communication.
It’s a marketplace of ideas, as I call it, and no one is forcing anyone to shop there.
I feel compelled to quote Mr. Conners’s own allegations and misinformation from his remarks. He said:
“Is that graffiti on that house directly related to [social media]? I don’t know. But the coincidence—is it a coincidence? It’s an awfully strong coincidence.
“. . . If it talks like a duck, quacks like a duck, flies like a duck, it’s a duck, and I don’t need a police investigation to tell me that it’s a duck.”
Fortunately, the rest of us do put our faith and trust in a criminal investigation conducted by the police, and we don’t jump to biased, unsubstantiated conclusions.
There are a number of obvious problems with the draft zoning text amendment (ZTA) that was prepared by Town staff pursuant to Town Councilman Jim Conners’s lengthy motion at the Nov. 7 special meeting on large houses. That draft is on the Town Council’s meeting agenda for discussion tonight.
The Town Council meets at 5:30 p.m. in the Pitts Center.
Overriding them all is this simple question: What effect, if any, would enactment of this draft ZTA, as written, have on the construction of high-occupancy residential structures like the two SAGA Construction & Development has proposed for 98 Ocean Blvd. and 134 Ocean Blvd.?
My own response, upon quick study, is: Not much. Minimal, at best. I believe the draft ZTA functions more as a punitive measure than as a preventive measure. (See my Dec. 9, 2018 blog for proposed requirements to hide trash and recycling cans in “fenced areas” and to create 10-foot-wide landscape buffers with plantings “of a species” known to adapt and survive locally.)
Fortunately, the draft ZTA has a process to go through, including referral to the Town Planning Board and a public hearing before the Council before a vote would be taken.
I detailed in my Dec. 9 blog some of the sections of the draft ZTA, which appears to create an “oceanfront overlay residential district” (called an RSOF-1 district) via a new Town Code section, 36-209. I will not belabor what I presented then, but rather highlight some of what I consider to be obvious problems with it.
PARKING REQUIREMENTS: You Have to Focus Number, not Size
The draft ZTA specifies that, in addition to existing Town Code off-street parking requirements, the following shall apply to single family dwellings in the new RSOF-1 district:
*Parking spaces shall be 10 feet by 20 feet. [Currently, Town Code sec. 36-163(1)(a) requires a minimum length of 18 feet and a minimum width of 9 ½ feet, with no maximum.]
*All parking spaces shall be adjacent to a two-way 18-feet-wide (minimum) drive aisle. [Currently, sec. 36-163(1)(a) requires a minimum of 22 feet.]
*No stacked parking shall be allowed. [The current Code has no provision regarding stacked parking.]
What’s missing from this ZTA, however, is a regulation on the NUMBER of parking spaces. Enlarging the size of the parking space and changing the drive aisle does not necessarily restrict the number of spaces on a land parcel–which, on the oceanfront, can be quite large–and, therefore, the residential occupancy.
The Town Code now limits parking spaces as follows:
*Three parking spaces for each dwelling unit with up to eight-person septic capacity;
*One additional space for each additional two persons of septic capacity, or fraction thereof, over eight people and up to 12-person septic capacity;
*One additional space for each person of septic capacity over 12. (Sec. 36-163(a)(1)(a))
This parking-space regulation made sense when the Town limited septic-use capacity in houses in the RS-1 residential district to 14 people. But when you have a house like the one SAGA is building on 98 Ocean Blvd., which has a septic capacity of 24 people, you can end up with 17 parking spaces.
Under the draft ZTA, you would still end up with 17 parking spaces, albeit of a different size.
This is a problem.
When the Town Council enacted in January 2016 the maximum house-size limit of 6,000 square feet and eliminated the septic-capacity restriction, it should have addressed other areas of the Town Code that were contingent on the septic-capacity limit. It neglected to do so.
DIMENSIONAL REQUIREMENTS: The Restrictions Must Be Complementary
The draft ZTA also specifies in a section titled “Dimensional Requirements” that “dimensional requirements and analysis of the RS-1 zoning district shall apply except the following requirements shall apply to all single-family dwellings”:
Impervious pavement side yard (setback): 10 feet
First, I have to assume that this is an attempt to draft RS-1 zoning district dimensional requirements onto the new RSOF-1 district, but the language does not say that, and it should. Further, it would appear that this non-porous pavement side-yard setback of 10 feet applies to ALL single-family dwellings, either just in RSOF-1 or throughout some other area. The language should be precise, not vague.
But then, consider this: Beneath this provision appears an exception to what has just been stated to apply to ALL single-family dwellings. That exception applies only to single-family dwellings that are between 4,001 and 6,000 square feet in size. For houses of this size, the impervious pavement side-yard setback must be 15 feet.
So which is it for these setbacks? All single-family houses or just some?
ARBITRARINESS OF DESIGNATING 4,000 SQUARE FEET CUTOFF: And What About Nonconforming 50-Foot-Wide Lots?
The draft ZTA differentiates between single-family dwellings that are 4,000 square feet or less in size and those that are between 4,001 and 6,000 square feet. This strikes me as an arbitrary and capricious distinction. Here is how the preamble to the draft ZTA attempts to justify it:
“WHEREAS, the Town finds that having a reasonable maximum size limitation of single-family dwellings of 6,000 sq. ft. and providing additional regulation of single-family dwellings between 4,000 sq. ft. and 6,000 sq. ft. is a fair and equitable balancing of the Town’s interests to regulate size and population density and to maintain the historical and residential character of developed areas of Town compared with property owners’ interests in using their property for residential purposes.”
What’s “fair and equitable” about it? Fairness is not achieved by simply calling a regulation fair. Why not put the cutoff at 3,500 square feet? What’s the “equitable” difference?
Pursuant to this draft ZTA, a property owner could build a 3,606-square-foot house, such as the one Councilman Christopher Nason has designed for his clients Steve Love and Kathleen Gorman at 64 Ocean Blvd., which is a nonconforming 50-foot-wide lot, without having to adhere to the ZTA’s new, more restrictive front- and side-yard setbacks, allowable lot coverage, and height restriction. The Love/Gorman house would be treated the same as a comparable-size house on a conforming lot.
How is that fair? The population density at 64 Ocean Blvd., on which a five-bedroom house with five parking spaces is planned, will increase more than at a 100-foot-wide oceanfront lot on which the same size house could be built.