When a builder hauled in more than the amount of fill that the town allows on a building lot, a trench was created at the rear of the property, which is on Woodland Drive, backing up to Hickory Trail. The uneven ground elevation remains even after completion of the new dwelling and installation of a swimming pool.
The Southern Shores Planning Board will meet Monday at 5:30 p.m. to elect new officers for the 2019-20 fiscal year and to discuss the town’s building and fill requirements, which it took up last fall when a builder requested a change in the applicable zoning ordinance that the Board tabled.
The membership of the Planning Board, which also serves as the Board of Adjustment, will look a little different when it kicks off the new fiscal year.
The Town Council filled three Board vacancies at its Tuesday meeting, unanimously reappointing Elizabeth Morey for another three-year regular term and appointing newcomers Donald D. Sowder and Tony DiBernardo to a three-year regular term and a three-year alternate term, respectively.
Ms. Morey has been serving as chairperson of the five-person Planning Board since chairperson Glenn Wyder’s death last November. She initially served in an interim capacity and was elected in January. The Board also has a vice chairperson.
Two public-comment periods will be held during the Board meeting.
TOWN COUNCIL ELECTION: Three four-year Town Council terms of office are expiring this year: those of Councilmen Christopher Nason, Gary McDonald, and Fred Newberry.
According to the N.C. State Board of Elections website, Ms. Morey filed yesterday to run for one of the Town Council offices, and Councilmen McDonald and Newberry filed earlier in the week for reelection. Applicants have until noon July 19 to file their notices of candidacy with the Dare County Board of Elections.
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PLEASE EXCUSE THE DELAY
Dear Readers: Because of challenging circumstances this week, I have not had an opportunity to prepare a full report of Tuesday’s Town Council meeting. To quote the late John Lennon: “Life is what happens when you’re busy making plans.” I hope to be able to publish a meeting post this weekend.
Many in the meeting audience attended out of concern that Southern Shores was considering unnecessary and burdensome special-event legislation. Some public officials have worried about the use of SAGA Construction Inc.’s proposed structures at 98 and 134 Ocean Blvd. as special-event houses that would be frequented by upward of 100 guests at a time.
The Beacon would like to remind everyone that these structures are still the subject of pending litigation. Please see www.minihotels.com for details.
N.C. State Representative Greg Murphy, who is a urologist in Greenville, defeated first-time candidate Joan Perry, a Kinston pediatrician, in yesterday’s runoff election for the Republican nomination in North Carolina’s third U.S. Congressional district.
With all precincts reporting, Dr. Murphy had 59.7 percent of the vote, which represented nearly 7,000 votes more than Dr. Perry.
According to the Raleigh News & Observer, 312,562 voters were eligible to vote in yesterday’s second primary, but only 11.5 percent of them did.
Dr. Murphy will face Democrat Allen Thomas, Libertarian Tim Harris, and Constitution Party candidate Greg Holt in a special election Sept. 10. The winner will serve out the two-year term of the late Congressman Walter B. Jones Jr., who was reelected to the third district seat last November and died in February.
CLOSER TO HOME . . . Last night’s Town Council meeting was both politically charged and divisive, and at times seemed more like a campaign rally than an ordered meeting of a government body. The boisterous crowd in attendance, seemingly drawn by the prospect of special-event regulation in town, often applauded public speakers.
For the second time in as many Council meetings, Mayor Tom Bennett did not enforce his well-known—and heretofore rigidly applied—rule requiring people who speak during the two general public-comment periods to sign up before the meeting.
On June 4, the Mayor made an exception for Porter Graham, the new lobbyist for the Outer Banks realtors and home builders association, whose highly inflammatory and factually inaccurate opinion piece in The Outer Banks Voice incited a pushback on “special events” from people in the real estate and/or tourism industries.
The Beacon is a strong proponent of the First Amendment; but we are just as strongly opposed to writing falsehoods and propagating misinformation.
The Beacon will publish a full report of the meeting later in the week. Among the results were:
*A 3-2 decision to take no further action now on the possible regulation of special events in Southern Shores residences, an about-face from the posture the Council unanimously took June 4 when it directed the Town Attorney and the Town Planning Director to prepare a proposed Town Code amendment and the Planning Board to have a “community discussion,” as Councilman Jim Conners phrased it;
*A 3-2 decision to move ahead swiftly with the South Dogwood Trail sidewalk project— with no design modifications—seeking construction bids and giving Town Manager Peter Rascoe “sole discretion” for project management, according to a lengthy prepared motion that Councilman Conners read as soon as the perfunctory public hearing was over (The Beacon will quote this motion in full after the meeting videotape is available);
*A decision to table the Planning Board’s unanimously approved latest effort to address nonconforming lots, known as zoning text amendment 18-09PB01, until December, when Councilman Christopher Nason, who has had reason to recuse himself from voting on nonconforming-lot ZTAs and who made the motion, will no longer be in office; and
*A unanimous vote to approve, without any comment or discussion, Mayor Bennett’s motion to reappoint Elizabeth Morey to a three-year regular term on the Planning Board and to appoint the Mayor’s friend and Southern Shores newcomer Donald D. Sowder to the other vacant three-year regular membership on the Planning Board and highly qualified longtime homeowner Tony DiBernardo to a three-year alternate term on the Board. (Yes, there’s opinion in that statement, and it goes to cronyism. At the very least, the Council should have discussed the relative qualifications of the candidates.)
For background and context for last night’s meeting, please see The Beacon’s preview posted 7/7/19.
AS OF THIS MORNING, only two candidates had filed with the Dare County Board of Elections for the three four-year terms on the Town Council that are expiring this year. Both Councilmen Gary McDonald and Fred Newberry have filed for reelection. As previously reported, Councilman Christopher Nason has announced that he is not seeking another term. Mayor Bennett and Councilman Conners were elected in 2017.
The Board of Elections’ candidate filing period for the three nonpartisan Town Council offices continues until noon on July 19.
Scooby, the elderly, deaf Chihuahua (mix, it appears) who ran off after his owner and he were involved in yesterday’s four-vehicle collision in Point Harbor, was found last night and is now safe at home. The Beacon hopes Scooby’s and his owner’s recovery from their traumatic incident will be swift and uneventful. We wish the same to the other victims of the crash.
With the high volume of traffic that we have on the Outer Banks, its stop-and-go nature, the tendency of some drivers to speed when the road opens up for a few car lengths, and other hazards unique to our roadways (sudden turns without signals, e.g.), we have to be alert to all that is happening around us when we drive. I often muse that some drivers don’t see farther than the bumper in front of them. Those are the people we have to be aware of and stay clear of.
On rainy days, like today, when people abandon the beach for the shops, such drivers are seemingly everywhere. They put me in mind of a “rule” I learned from my driver’s education instructors many years ago when I was in high school: Always leave yourself an out. There were more “outs” on the roads when I was learning to drive.
I often visit the Washington, D.C. and Baltimore metropolitan areas. They are former stomping grounds for me, and I love “getting away” to the city for a few days. Before I go or upon my return, my friends always ask me: “How can you stand the awful traffic?”
I typically respond by extolling the public-transportation system and explaining that the worst part of my trip is the coming and going on the interstates. Once I’m in the city, I have no trouble getting around.
When you spend 2 1/2 hours crossing the Wright Memorial Bridge, as Chicahauk homeowner John Booth did yesterday, you might as well be on Interstate 95, stuck behind a multi-vehicle pileup. Actually, the bridge is far worse, because you can’t bail to U.S. Hwy. 1. Even the D.C. Beltway moves faster than 3 miles per 2 1/2 hours during the worst Friday rush hour.
Have a safe and relaxing Monday, folks. And if you have to drive on the congested roadways, please try to leave yourself an out.
Tuesday’s Town Council meeting promises to be a marathon session, with three public hearings scheduled, and further consideration of whether and how to regulate “special events” in residences, on the agenda. Three Planning Board appointments also are expected to be made.
The meeting will be held at 5:30 p.m. in the Pitts Center, overlapping for two hours with Republican primary election voting there. (For more about the primary, see The Beacon, 6/27/19.) According to Michele Barnes, director of the Dare County Board of Elections, voting will take place in a room other than the main meeting room.
SOUTH DOGWOOD TRAIL SIDEWALK & PRIORITY CAPITAL PROJECTS
Among the public hearings will be the first and only town-wide forum of any kind on the sidewalk proposed to be constructed along the east side of South Dogwood Trail, from the Dogwood trails intersection to the Southern Shores cemetery.
On June 4, the Town Council, by a 3-2 vote, appropriated $1 million from the Town’s undesignated fund balance to pay for this sidewalk project because the annual capital infrastructure improvement budget, which consists of monies set aside for streets and sidewalks, is insufficient.
The undesignated fund balance is intended principally for emergencies, but it has a sufficient surplus above the $3 million that the Town Manager has advised the Town Council to maintain to pay for the sidewalk, provided no major natural disasters occur.
The Beacon believes the South Dogwood Trail construction project merited a separate special meeting later this month, during which the Town’s contractual engineer could have presented his design, discussed the impact it would have on the environment, and answered any questions that Town residents have.
The Beacon would have liked to have been given more than just links to diagrams on the Town website.
We believe that addressing the project during a busy regular meeting as just another item of new business is giving the project and all homeowners short shrift. We hope that the majority of the Town Council that approved the $1 million appropriation will not regard the public hearing as merely pro forma. The aesthetics, as well as the safety, of South Dogwood Trail are of concern to all Town residents, regardless of where they live.
Aside from the hearing about South Dogwood Trail, the Town Council will hold public hearings Tuesday regarding the latest zoning text amendment on nonconforming lots, ZTA 18-09PB01, which carves out exceptions to the Town Code for certain individual property owners; and adoption of the Capital Infrastructure Improvement Planning (CIIP) Committee’s recommendation for target improvement projects in fiscal year 2019-20.
The Town has $662,340 in its FY 2019-20 budget to spend on capital improvements. The CIIP has recommended that the following projects be given priority status for these funds:
Hillcrest Drive: from the intersection of Hickory Trail to the SSCA tennis courts, a length of 3,700 (+/-) linear feet. During this project, the width at the hilltop once known as Lookout Point would be reduced.
East Dogwood Trail: from N.C. Hwy. 12 east to Ocean Blvd., a length of 670 LF (+/-), including stormwater improvements.
Sea Oats Trail: from Eleventh Avenue north to N.C. Hwy. 12 (no length provided).
Dewberry Lane: 230 LF (+/-).
In their most recent meetings, CIIP Committee members have indicated that the $662,340 in the capital budget will likely not cover more than the first two projects, i.e., Hillcrest Drive and East Dogwood Trail.
POTENTIAL SPECIAL EVENTS REGULATION: A CONTINUED DISCUSSION
Southern Shores has been maligned in recent weeks on local social media because of a grossly inaccurate article/press release written by Porter Graham, a non-resident paid lobbyist for the Outer Banks realtors and home builders associations, that The Outer Banks Voice published, without fact-checking.
Mr. Graham falsely asserted that an ordinance to regulate all special events attended by more than 25 people has been “proposed” in Southern Shores.
Although I commented on The Voice’s blog beneath Mr. Graham’s distorted and biased story about the many errors he committed, and many of those errors were corrected by The Voice, the damage was done. Uninformed people writing on various social media sites have applied the snob label to Southern Shores, saying that the Town is anti-party, anti-fun, anti-the-masses-having-a-good-time-on-the-beach.
The truth is that the Town Council is considering regulating “special events” so as to require residential property owners to obtain permits and to provide information designed to ensure public safety; but the Council has done nothing more than discuss various options. The Town is not forming a Fascist regime intent on quashing birthday parties.
The matter of special-event regulation came up at the request of Town Councilman Gary McDonald, who asked Town staff to present for discussion at the Council’s June 4 meeting a “Special Events and Occupancy Limitation Ordinance” that Town Attorney Ben Gallop drafted in December 2015, and the Council rejected in January 2016.
You will find the text of this ordinance in the minutes of the Dec. 18, 2015 meeting, on pp. 8-12, as well as in Tuesday’s meeting packet:
Mr. Gallop prepared this ordinance as a means by which the Town Council could prevent SAGA Construction Inc. from building a threatened 16-bedroom wedding-destination house on the oceanfront at 64 Ocean Blvd. Instead, the Council defeated the event house by enacting the 6,000-square-foot maximum house size ordinance.
On Tuesday, the Town Council is expected to hear from Town staff about a new version of the 2015 Town Code amendment (TCA) on special events and from the Planning Board about its suggestions. (The Planning Board has no authority in regard to Town Code amendments, but the Town Council asked for its advice.)
The new version of the special events ordinance is being called TCA 19-01. Both it and a redlined version of the 2015 TCA, which shows the changes suggested by the staff, are in the Town Council’s meeting packet.
In 2015, the THEN-proposed ordinance defined special events as “temporary public or private gatherings,” including, but not limited to, “pre-planned events, community uses, private parties, and traditional family events.” It imposed permitting requirements on property owners who hold special events that they expect will be attended by more than 25 people.
Pursuant to the THEN-proposed ordinance, permit application and inspection requirements would have varied and increased according to the number of attendees, with 25 to 75 people being viewed as a “small” special event; 75 to 125 as a “limited” special event, and over 125 attendees as a “large” special event.
The THEN-proposed ordinance also provided, significantly, that no more than three special events requiring a permit could occur during a continuous 12-month period on any parcel of property. If more than three occurred, then the property’s use would be considered commercial, rather than residential, and, therefore, in violation of the Town’s zoning code.
The CURRENT definition of an “event facility” in the Town Code is “an establishment, structure or property designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events.”
Event facilities are not permitted in Southern Shores’ residential districts, only in its commercial district, which is on the south edge of town.
Nearly four years ago, the THEN-proposed ordinance did not subject “traditional family events” to this three-within-12-months limitation.
The Beacon has reviewed both the new redlined version of the 2015 Town Code Amendment (TCA 19-01), prepared by the Town Attorney presumably with the assistance of other staff members, and the suggestions submitted by Planning Board Chairperson Elizabeth Morey and member Andy Ward. Most noteworthy in the new version are the following:
The exclusion of all traditional family events from the definition of special event;
The imposition of permit and other requirements only on those property owners who hold events with at least 75 attendees;
A limitation of 10 special events per property owner during a continuous 12-month period.
Ms. Morey and Mr. Ward also suggest exempting traditional family events from the definition of special event, but they propose a permit-requirement “threshold” of 50 attendees, not 75. They also recommend limiting property owners annually to no more than six special events with 50 to 100 attendees and no more than three special events with 100 or more attendees.
You will find the Morey/Ward suggestions on page 40 of the Town Council meeting packet.
The Beacon supports the Morey/Ward suggested threshold of 50 attendees and is undecided about the annual limits. We would like to know more about how many special events are currently being held in Southern Shores and what kind of events they are.
There are many more details contained in TCA 19-01 and in the Morey/Ward suggestions, all of which, The Beacon is certain, will receive the Town Council’s attention in due course. The public will have ample opportunity to comment on any special-events Town Code Amendments that are “proposed.”
PLANNING BOARD VACANCIES/APPOINTMENTS
The three-year terms of two regular members on the Planning Board expired June 30: those of Ms. Morey and Joe McGraw, who also served recently as vice chairperson. The Beacon has previously reported that Ms. Morey would like to be reappointed to another three-year term and that Mr. McGraw has elected not to seek reappointment.
The Beacon was unaware until reading a memorandum from Mr. Haskett to the Town Manager, which is in Tuesday’s meeting packet, that Planning Board alternate Leo Holland resigned, effective June 30.
Mr. Holland was appointed to a three-year term just one year ago. The Beacon wonders if Mr. Holland, who won election to the Town Council when he ran unopposed in 2013, might be contemplating another run for Council.
The filing period for candidates interested in one of the three Southern Shores Town Council seats up for election in November started July 5 and continues through noon on July 19.
According to Mr. Haskett’s memorandum, Planning Board alternate Michael Basilone has said he cannot serve as a regular member. Mr. Haskett further writes that previous Board applicants Anthony DiBernardo, of Ninth Avenue, and Donald D. Sowder, of Ginguite Trail, have expressed an interest in being appointed to a three-year term, i.e., to Mr. McGraw’s seat.
Whoever is appointed to the vacancy created by Mr. Holland’s resignation will serve until the expiration of his term, which is June 30, 2021.
The Planning Board will select its chairperson and vice-chairperson at its July meeting.
Mr. DiBernardo is a retired hearing examiner in the Pennsylvania criminal justice system. He received a B.A. in anthropology from Temple University in 1972.
Mr. DiBernardo has been active in Southern Shores Civic Assn. affairs, serving for three years as chairperson of its Architectural Review Board and on the SSCA committee that developed a vegetation ordinance for Southern Shores. He has been vice-chairperson of the Southern Shores Historical Landmark Commission since its inception.
Mr. Sowder is a retired colonel in the U.S. Army Reserves who spent his career in pharmaceutical and health-care industry management. He received a B.S.degree in food science from Virginia Tech in 1959. He previously served on the Chesterfield County, Va. Board of Supervisors.
Colonel Sowder is currently commodore of the Southern Shores Boat Club.
A four-vehicle collision occurred today on U.S. Hwy. 158-west around 8:30 a.m. near the entrance to the Parker’s Landing development, just east of the BP service station in Point Harbor, according to witness reports.
No fatalities occurred, and a report of injuries could not be obtained.
The collision caused a miles-long backup in traffic exiting the Outer Banks that extended across the Wright Brothers Memorial Bridge to the North-South-East Dogwood Trails intersection, for those drivers using the Southern Shores cut-through route, and to U.S. Hwy. 158 and N.C. Hwy. 12, for drivers traveling on these roads from the northern and southern beaches.
A Southern Shores Beacon correspondent who was driving east on U.S. 158 came upon the aftermath of the crash, above, and interviewed some people on the scene. She learned that the driver of the gray pickup truck, seen on the tow truck, was allegedly at fault, and that alcohol may have been a factor. The truck had an OBX license plate.
According to witnesses, two of the vehicles ended up off the road, in the woods, after the collision.
A resident of Parker’s Landing involved in the crash was transported to Chesapeake Memorial Hospital for treatment of her injuries. Witnesses said she had an old, deaf Chihuahua traveling with her who escaped from an EMS responder. If you see this frightened dog or know anything about his whereabouts, please contact The Beacon, and The Beacon will contact the owner. The dog’s name is Scooby.
The Beacon also invites you to contribute to this report if you have factually reliable information to share.
This section of the highway is becoming increasingly dangerous. Beacon editor Ann Sjoerdsma witnessed the aftermath of a collision in the same location at 6 p.m. last Tuesday, and other correspondents have reported accidents there this summer.
The Beacon made a jaunt to Old Town Alexandria recently and enjoyed sightseeing in the highly coveted, old-growth sanctuary neighborhoods south of Old Town. In a beautiful section called Hollin Hills, the local civic association ensures the preservation of mostly single-story mid-century contemporaries that were designed to bring sunlight and nature indoors. Neither sidewalks nor garages are a standard feature of Hollin Hills.
The photo above illustrates how Fairfax County, Va., uses speed humps and reduced speed limits to slow down traffic cutting through one of its heavily wooded desirable neighborhoods between Old Town Alexandria and Mount Vernon. The street depicted is a connector between the thoroughfare Fort Hunt Road, which intersects at its north end with U.S. Hwy. 1, and the George Washington Memorial Highway, which runs along the Potomac River and is used by commuters.
The Southern Shores Town Council has approved a cut-through traffic committee to study and reports on ways to better manage the heavy flow of traffic through Southern Shores’ year-round residential areas on summertime weekends. Installing temporary or permanent speed humps and lowering speed limits have been suggested in the past.
Speaking of sidewalks, the big concern in Old Town Alexandria and elsewhere in the greater-Washington, D.C., area is their disappearance, as the popular new trend of riding motorized scooters has chased pedestrians away.
Scooters are easily available on Old Town and D.C. street corners for rent, as are bicycles. With pedestrians, joggers, bicyclists, skateboarders, and scooter riders all vying for roadside space, sidewalks have become more dangerous for those on foot.
TWO FIRES IN SOUTHERN SHORES SUNDAY CAUSE MAJOR DAMAGE
You probably have heard by now that two fires were reported in Southern Shores within minutes of each other after 2:15 a.m. Sunday. The first fire occurred in the 100 block of High Dune Loop and was reportedly caused by a barbecue grill being too close to the house; the second fire occurred in the 300 block of Duck Road and was attributed to an electrical problem in a detached garage.
The Fourth of July is a holiday when fire hazards such as still-burning barbecue coals and fireworks, detonated or not, can result in tragedy. Please be mindful of fire (and other) risks while you enjoy your celebrations.
Early voting in the Republican primary runoff election for the third district U.S. congressional seat starts today and continues daily through July 5, except over the June 29-30 weekend and the July 4 holiday. Polls will be open from 7 a.m. to 7 p.m. in the Baum Senior Center in Kill Devil Hills, the Dare County Administration Building in Manteo, and the Fessenden Center Annex in Buxton. The election is July 9.
The second Republican primary for the office left vacant by the death of longtime Congressman Walter B. Jones Jr. pits two physicians against each other: Dr. Greg Murphy, 56, a urologist in private practice in Greenville, and Dr. Joan Perry, a private pediatrician in her early 60s who works and lives in Kinston.
Dr. Murphy is currently serving in the N.C. House of Representatives. Dr. Perry has never held political office.
All registered Republicans in Dare County may vote in the July 9 second primary, as may registered unaffiliated voters who did not vote in the first primary election or who voted for a Republican in the first primary.
The winner of the primary runoff will face Democrat Allen Thomas, Libertarian Tim Harris, and Greg Holt of the Constitution Party in the Sept. 10 general election.
The U.S. congressional third district encompasses all or part of 17 eastern N.C. counties, including all of the Outer Banks.
A spokeswoman for the Dare County Board of Elections confirmed today that the Pitts Center will serve as a polling place for both the July 9 primary election (6:30 a.m. until 7:30 p.m.) and the Sept. 10 general election.
As early as May 30, The Beacon questioned Town Manager Peter Rascoe about the scheduling of the Town Council’s July meeting on July 9 at 5:30 p.m. in the Pitts Center, but he gave no indication of a conflict with the election. Notices for public hearings on July 9 in the Pitts Center have been posted on the Town website.
SOUTHERN SHORES TOWN COUNCIL ELECTIONS: 3 SEATS AVAILABLE
The candidate filing period for the nonpartisan Nov. 5 elections in Dare County, which include three Town Council offices in Southern Shores, opens at noon on July 5 and continues until noon on July 19. All candidates must file a Notice of Candidacy at the office of the Dare County Board of Elections in Manteo. See:
The four-year terms of Councilmen Fred Newberry, Gary McDonald, and Christopher Nason expire this year. None of the three has made an announcement about his intentions, but The Beacon has learned from reliable sources that Mr. Nason will not be seeking reelection and that Mr. Newberry and Mr. McDonald are considering it.
The four-year terms of the other two members of the Southern Shores Town Council, Mayor Tom Bennett and Councilman Jim Conners, expire in 2021.
The Towns of Duck, Kitty Hawk, Kill Devil Hills, Nags Head, and Manteo also will be holding elections for seats on their governing boards. Kill Devil Hills and Manteo voters will be electing a new mayor, respectively, who will serve for two years. The Town of Duck elects a town council, and the members of the town council, who each serve a two-year term, select the mayor and mayor pro tem from among themselves.
This Facebook page reports the news that the Graves Cottage, built in 1948 at 64 Ocean Blvd., would be sold at an estate auction. Amit Gupta of SAGA submitted the winning bid. Subsequently, he assigned his bid to a limited liability corporation owned by his brother Sumit, and the corporation demolished the cottage on April 30, 2014. As of that date, the entire 137 1/2-foot-wide parcel became vacant.
The question of giving certain property owners exceptions to the new nonconforming lots ordinance is a complex one that deserves much more thought and time than the Planning Board gave it Monday night, which was the first opportunity for the public to comment on the newly drafted zoning text amendment that defines those exceptions.
You will find the text of ZTA 18-09PB01, the proposed exceptions amendment, here:
The new nonconforming lots ordinance, which ZTA 18-09PB01 proposes to amend, replaced the former nonconforming lots ordinance on Sept. 5, 2018.
The former ordinance was codified at Town Code sec. 36-132, as the new one is, and is still available through the version of the Town Code that is on the Town website. The former sec. 36-132 had been on the books for at least 30 years,
During the past year, The Beacon has repeatedly pointed out to the Planning Board that the Town has had a nonconforming lots ordinance on the books for decades that it has not enforced. Matt Neal, president of the Outer Banks Home Builders Assn., and Mike Stone of Southern Shores Realty Co. publicly have stated the same proposition.
It is The Beacon’s contention that the Town’s failure to enforce the former sec. 36-132 has led to the mischief of allowing some nonconforming lots to exist that never should have been created to begin with.
The Former Ordinance and the Town Council’s Intent
As previously explained, lots that are not 100 feet wide or 20,000 square feet in area are “nonconforming” because they do not meet the minimum lot width and area standards established by in the Town Code for most of the residential districts. (See The Beacon, 6/20/19.)
A key provision in the former nonconforming lots ordinance was the following, which I hope, when I read it Monday night to Planning Board members, they were not hearing for the first time:
“If on or after July 7, 1981, two or more adjacent and vacant nonconforming lots are in single ownership at any time, and such lots individually have less frontage, area or width than the minimum requirements of the district in which such lots are located, then such lots shall be considered and treated as a single lot or several lots that meet the minimum requirements of this chapter for the district in which such lots are located.”
The Beacon believes that both the intent and the plain meaning of this provision, which is subsection (a)(2)(a) of former section 36-132, were to require the treatment of two or more adjacent and vacant nonconforming lots in single ownership at any time after July 7, 1981, as a single lot. The two or more lots became one, in combination.
The Town Council that enacted this provision knew that the 100-foot-wide parcels developed in Southern Shores—especially on the oceanfront—were comprised of two 50-foot-wide lots, and it sought to prevent those smaller lots from being sold separately and developed.
That Town Council most likely also knew that restrictive covenants running with the deeds to the oceanfront properties and other parcels along Ocean Boulevard required a minimum building lot width of 75 or 100 feet.
Town Attorney Ben Gallop does not agree with this. He says the plain meaning of the ordinance quoted above is not what the Council intended.
Why not? Because, Mr. Gallop says, and he said it again Monday night, the Council did not use language about “combining” the lots, such as it used in the two sections of the ordinance that immediately follow this section.
The Beacon cannot begin to ascertain how often the Town has enforced these two sections, which address situations when a nonconforming lot is adjacent to other lots under the same ownership.
Monday Mr. Gallop cited a “principle” of statutory construction for his viewpoint about the ordinance’s language, but I can tell you that the overriding principle in any interpretation of any regulation or statute is to discern the intent of the legislating body.
The result of Mr. Gallop’s analysis is a nullification of the subsection I quoted above; ergo, it existed in the Town Code, but it meant nothing. That is a conclusion that the principles of statutory construction seek to avoid, and it does not make sense.
Undeserving Exceptions, Case by Case
The reason this dispute between Mr. Gallop and The Beacon is relevant is because in the case of some of properties that get exceptions under ZTA 18-09PB01, there was—or may have been—a time after July 7, 1981, when they were part of a tract of two or more adjacent and vacant nonconforming lots that were in single ownership. It is also possible that one of the other sections of the former sec. 36-132 that required recombination applied. Consider:
The 50-foot-wide lot owned by Love-Gorman at 64 Ocean Blvd., formerly known as lot 3 in block 6:
This nonconforming lot is a hot potato.
And it is a clear case of the Town having dropped the ball.
This nonconforming lot was originally part of a 137 ½-foot-wide parcel that the Guptas, who are principals of SAGA Construction, Inc., bought through a 2013 court-ordered estate sale.
SAGA co-founder and partner Amit Gupta submitted the winning bid on Nov. 27, 2013. He later assigned his bid to 64 Ocean Blvd., LLC, a limited liability corporation managed by his brother and partner, Sumit Gupta.
Once owned by the Graves-Sackett family, this 137 ½-foot-wide oceanfront property consisted of two 50-foot-wide lots, known as lots 3 and 4 in block 6, and 37 ½ feet of lot 5 in block 6, which is to the north of lot 4. The family acquired the 37 ½ foot-wide tract long after Edward Spencer Graves of Lynchburg, Va. built an atypical two-story white flat-top house at 64 Ocean Blvd. for his mother.
According to Marinara McNaughton’s book, “Outer Banks Architecture,” Graves Cottage (see above) was designed by Harry Lawrence and built in 1948. It was part of what was known as the “Compound,” a collection of early beach homes in the vicinity, including founder Frank Stick’s flat top.
Writes Ms. McNaughton in her book: Mrs. Graves needed a second story because she had 17 grandchildren and entertained a “constant parade of houseguests.” (p. 87)
The deed conveying the Graves-Sackett property to 64 Ocean Blvd. LLC was executed March 20, 2014.
On April 30, 2014, according to the “Southern Shores Historic Flat Top Cottages” Facebook page and administrator Sally Gudas’s records, the Guptas’ 64 Ocean Blvd., LLC, demolished the Graves Cottage.
This date is critical.
This means that as of April 30, 2014, a single owner (64 Ocean Blvd., LLC) held title to three adjacent and vacant nonconforming lots at 64 Ocean Blvd., which, by operation of Town Code sec. 36-132, should have been considered and treated as a single lot.
This did not occur. Because it did not, what happened thereafter was a disgrace and, in The Beacon’s opinion, a betrayal of Southern Shores and its homeowners, especially those who are neighbors of what are now 64 and 64A Ocean Blvd.
On June 15, 2015, 64 Ocean Blvd., LLC, conveyed by gift the 50-foot-wide lot 3 to Nags Head Freehold, LLC, which was managed by the Gupta brothers’ father, Prem Gupta.
Not only did 64 Ocean Blvd., LLC, disregard the town’s nonconforming lots ordinance, it created two separate nonconforming land parcels: one 50-feet wide and the other 87 ½ feet wide, now known as 64A Ocean Blvd. (You may have noticed that there now is a sizeable house on the nonconforming 87 ½-foot-wide parcel, which has been under construction for years.)
On Jan. 22, 2016, Nags Head Freehold, LLC, executed a deed of sale to Steven Love and his wife, Kathleen Gorman, owners of 62 Ocean Blvd., for the 50-foot-wide lot known as lot 3. This deed was recorded Jan. 25, 2016.
Not coincidentally, on the afternoon of Jan. 22, 2016, the Southern Shores Town Council, by a 3-2 vote, thwarted SAGA’s bid to build a 16-bedroom wedding-event house on the entire 137 ½-foot-wide site by enacting the 6,000-square-foot house size limitation. (The Beacon previously erred in believing this 2016 meeting was in the evening. In fact, it convened at 3 p.m.)
Contrary to what Planning Board member David Neal said Monday night and others have said publicly at town meetings, Mr. Love did not buy the nonconforming 50-foot-wide lot 3 to “save” the town from SAGA’s development. The Town Council had already done that. According to witnesses, members of the Gupta family attended the Council’s meeting and, therefore, knew by the afternoon of Jan. 22, 2016 that their event-house project had been defeated. One reported Starkey Sharp, Mr. Love’s attorney, being present, but The Beacon could not confirm this with a second witness’s recollection.
The Beacon does not believe that Mr. Love and Ms. Gorman should profit from SAGA’s (64 Ocean Blvd. LLC’s) violation of the town ordinance, and they certainly would, if the Town Council approves the exception in ZTA 18-09PB01 that favors them.
They are not innocent bystanders in this transaction. Clearly, they had contact with SAGA principals before they bought their lot, and they had legal representation.
They also bought the lot with either implied or actual knowledge of the minimum dimensional requirements for buildable lots in Southern Shores and with either implied or actual knowledge of a restrictive covenant running with the lot that requires 75 feet of frontage. They should have known that they were buying a lot that did not meet Town Code standards.
The 50-foot lots at 76A, 76B, and 76C Ocean Blvd.:
These lots make up a curious situation that involves what I called at Monday’s Planning Board meeting “shenanigans.”
On June 21, 1971, Mary A. Price, C. Lee Campbell, and Ruth A. Dial, all of the same address in Falls Church, Va., jointly purchased a house built on three adjacent 50-foot-wide oceanfront lots from Kenneth and Jean Neland. These lots, nos. 3, 4, and 5 of block 7, comprised 76 Ocean Blvd. The original deed to 76 Ocean Blvd. dates back to 1947.
Subsequent to their purchase, Ms. Dial, Ms. Price, and Mr. Campbell—whom I speculate, but could not confirm, were a mother and her two children—changed their ownership so that they were not just tenants in common, they were joint tenants with right of survivorship (JTWROS). Attorney John G. Gaw Jr. handled this for them in a deed dated Aug. 11, 1981.
In a JTWROS, all of the tenants share equally in the property, and when one of them dies, his or her share passes by law to the surviving tenants.
Twenty years later, however, these three JTWROS divided up the three lots among themselves and sold them individually to Billy G. Roughton (lots 3 and 5, from Price and Dial, respectively) and his wife, Mildred Roughton (lot 4, from Campbell). This is not how a JTWROS generally resolves.
Where was the Town of Southern Shores when these conveyances occurred? Nowhere. Should the division of this prime 150-foot-wide oceanfront tract into three 50-footers have been allowed to occur under then-Town Code sec. 36-132?
The three lots comprising 76 Ocean Blvd. were not vacant on or after July 7, 1981, so that provision would not have applied.
But the former nonconforming lots ordinance, which was in effect in 2001, also provided that when a nonconforming lot was adjacent to one or more lots under the same ownership and any portion of a “proposed structure or required use” was located on two or more lots, the lots were to be combined into one single lot of record. (36-132(a)(3))
This provision of former sec. 36-132 had no ownership-date qualifications.
It is clear from the record of deeds for 76 Ocean Blvd. that whoever built the “proposed structure” (house) on the site, a portion of which was most likely located on two lots, also owned the adjacent nonconforming lot. (I could not discover when the house was demolished.)
Fourteen years later, when Billy Roughton, a very wealthy real estate investor and developer, died without a will, his widow arranged to give each of their three daughters one of the underlying 50-foot-wide lots. The same law firm that handled the dissolution of the Price-Dial-Campbell JTWROS, Vandeventer Black, assisted Mildred Roughton with inventorying and administering her husband’s estate.
Inasmuch as the Roughtons worked the deal with the JTWROS trio to split into three sections a parcel that should have been treated as a single lot, The Beacon does not regard them or their children as “innocent” bystanders.
ZTA 18-09PB01 gives the Roughton sisters a special pass. It exempts a lot that is:
“one of three or less [sic] adjacent nonconforming lots under the ownership of related siblings on September 5, 2018.”
How is this even remotely fair to neighboring homeowners and to the community at large? How does it conform to the land-use plan?
Not only does this breakdown of a 150-foot-wide developed parcel into three 50-foot-wide lots appear to violate the former nonconforming lots ordinance, it overrules the restrictive covenant running with the land that requires all lots in the block to have 75 feet of frontage.
If this exemption is permitted, in time three large houses will likely occupy the now-pristine beach at 76 Ocean Blvd. in our “low-density” town. That should not happen.
2 Trout Run: This is a 50-foot-wide lot purchased by the current owners on July 27, 2017 from a family trust that also owned two adjacent, vacant 50-foot-wide lots.
The lot that fronts on Trout Run, which runs perpendicular to Ocean Boulevard, is known as lot 56 of block 31. The other two, identified as lots 1 and 2 of block 31, front on Ocean Boulevard. The two lots on Ocean Boulevard were sold to another party on Aug. 22, 2017 and remain vacant, as does 2 Trout Run.
If the former nonconforming lots ordinance that Mr. Gallop claims has no effect had been applied, these three lots would have been treated as a single lot and not been subject to division.
Just as was true with Mr. Love and Ms. Gorman, the buyers of 2 Trout Run had either implied or actual knowledge of the minimum dimensional requirements of lots in Southern Shores and of any restrictive covenants running with the lot. Most likely, a covenant requires 75 feet of frontage, but The Beacon did not confirm this. In any case, the Trout Run buyers should have known they were purchasing a lot that did not meet Town Code standards.
Just last year a widow sold off a large vacant tract of land on Porpoise Run that she had purchased with her husband in 1972. He died in 1999. Two of the sales she made were of 50-foot-wide lots. Had Town Code sec. 36-132 been enforced, as The Beacon interprets its meaning, she could not have sectioned off her vacant tract of multiple adjacent nonconforming lots. She would have had to have treated it as a single lot.
The Beacon is greatly concerned about these nonconforming properties and others that have been created on the Town’s watch. We are seeking an independent legal opinion.
***
During the discussion that the Town Council had at its June 4 meeting about renewing its contract with Mr. Gallop’s law firm, Hornthal, Riley, Ellis and Maland, he said that “through the merger of multiple firms, essentially, our firm has been the Town Attorney since 1979,” when Southern Shores was incorporated—and, therefore, when it enacted all of its Town Code ordinances.
The firm has represented the Town “by name since 2001 or 2001,” Mr. Gallop said. According to his firm website profile, Mr. Gallop has been Town Attorney since 2008.
In March, Carolina Designs Realty advertised this structure, being constructed by SAGA at 98 Ocean Blvd. and photographed here June 9 from the rear, for rent for “special events” with up to 100 guests. It did the same for SAGA’s construction at 134 Ocean Blvd. Both houses are the subject of pending litigation.
A zoning text amendment that carves out exceptions for known individuals and their properties to the new nonconforming lots ordinance passed by the Town Council last September received a unanimous endorsement from the five-member Town Planning Board Monday night.
The Board also decided to have two of its members, Chairperson Elizabeth Morey and Andy Ward, meet with Planning Director Wes Haskett to discuss how a special-events ordinance, considered and rejected by the Town Council in January 2016, might be modified to protect the town today.
A report of the Planning Board’s treatment of the special-events ordinance, which is a proposed Town Code Amendment (TCA), not a zoning amendment, follows below.
As The Beacon has previously reported, the TCA requires property owners who host “special events,” as defined by the ordinance, to obtain permits and meet other requirements, depending on the number of guests they anticipate. The ordinance sets a threshold of 25 attendees. See The Beacon, 5/28/19, 6/5/19, and 6/9/19.
The Beacon will take up ZTA 18-09PB01, the exceptions amendment, in detail tomorrow. It will come before the Town Council for consideration at its July meeting. You may access the text of the proposed amendment here:
Of the four exceptions that the Planning Board recommended, The Beacon supports only one. It exempts a nonconforming lot that meets or exceeds the Town’s “lot area requirements for the district” and is located “adjacent to a single conforming lot under the same ownership on which is located an existing single-family dwelling.”
After the town’s 1979 incorporation, the Town Council codified minimum dimensional requirements for all lots in the various residential districts. Most of us live in the RS-1 single-family residential district, which is described and regulated in Town Code section 36-202.
In the RS-1 single-family district, as well as in the RS-8 multifamily residential district (sec. 36-203), and the R-1 low-density district (sec. 36-205), the minimum lot area size for a detached single-family dwelling is 20,000 square feet.
Buildable lots in the RS-1 single-family and the R-1 low-density residential districts must be 100 feet wide, whereas those in the RS-8 multifamily district must be at least 75 feet wide. The issue with all of the properties that the Planning Board seeks to except from operation of the current nonconforming lots ordinance, Code sec. 36-132, is that they are too narrow. All but one of them is only 50 feet wide.
The Beacon can endorse the principle that a nonconforming lot located in one of these districts that is at least 20,000 square feet, or even 18,000 or 19,000 square feet, should be considered conforming. The Town Council’s intent in regulating these districts was to restrict the density of development. Building only on 20,000-square-foot-or-larger lots in the RS-1 single-family residential district would preserve the low-density environment and character of the town and would be consistent with the town’s land-use plan.
No such principle underrides the other three exceptions that the Planning Board has recommended. In fact, it is the opinion of The Beacon that if the previous nonconforming lots law—also codified at sec. 36-132 and on the books for at least 30 years before the Town Council replaced it with the current version last September—had been properly enforced, the nonconforming lots the Planning Board is excepting would not have existed and been sold. The Town allowed these nonconformities to occur.
By operation of the former Code sec. 36-132, owners who held title to these lots before the current owners should have been required to treat them, in combination with other adjacent, vacant lots that they owned, as a single lot. The Beacon will explore these properties and their ownership in tomorrow’s blog.
We realize that this area of regulation is confusing, but it’s also very important for the town’s future. When I spoke for three minutes during the public-comment period of Monday’s Planning Board meeting, I encouraged the Board to look at the underlying facts of these properties—not just the immediate facts, but facts going back decades.
Unfortunately, owing to a personal calamity last week that prevented me from doing all of the necessary research, I did not have all of the facts that I wanted to present to the Planning Board and could not have done so in three minutes, anyway. This week I have been able to gather all of the facts—I had to go to the Register of Deeds Office in Manteo—and will present them in an analysis tomorrow.
Now, I return to the matter of regulating “special events” in Southern Shores residences.
DISCUSSING SPECIAL-EVENTS ORDINANCE
Town Attorney Ben Gallop prepared the special-events Town Code Amendment that the Planning Board considered Monday in December 2015. It was intended as a means to defeat SAGA Construction’s plan to build a 16-bedroom wedding event house at what was then 64 Ocean Blvd. and is now 64 and 64A Ocean Blvd.
The Town Council decided instead, by a vote of 3-2 on Jan. 22, 2016, to limit the size of houses to 6,000 square feet. This decision, made during a special afternoon meeting of the Council, which was not videotaped, thwarted SAGA’s proposal
On Monday night Planning Board member Andy Ward showed great concern for the adverse consequences to residents and vacationers if the two houses that SAGA is now constructing on the Southern Shores oceanfront are used for events. Each of these structures is adjacent to a popular beach access maintained by the Southern Shores Civic Assn., which objected to them last autumn when notified by the Town Permit Officer.
“We want to allow events at houses. We don’t want event houses,” Mr. Ward said emphatically.
Mr. Ward further characterized the current Town Code treatment of event facilities as having “no meat.” The Beacon agrees and applauds Mr. Ward for speaking out.
Currently, an “event facility” is defined under Code sec. 36-57 as an “establishment, structure, or property designed, maintained, advertised or actually used for the primary purpose of hosting pre-planned events.” (my emphasis added)
The definition of event in the same section is very broad, encompassing private parties; weddings; corporate meetings; retreats, sporting, cultural, and musical events; and just about any event that is planned in advance.
If a property is used primarily for events, it is considered a commercial property and must be located in the C general commercial district of town. But establishing and proving that events are the “primary purpose” of a structure or property presents a major hurdle for town enforcement of the zoning regulations—especially if the Town continues its unsatisfactory passive approach of enforcing the Town Code only when it receives complaints. (Planning Board: Why don’t you recommend changing this dreadful policy? You have the authority to do so.)
The Beacon would like to remind readers that the 12-bedroom, 24-person septic capacity dwellings under construction at 98 and 134 Ocean Blvd. are the subject of pending litigation. (See nominihotels.com)
But The Beacon agrees with Mr. Ward that, if the homeowners contesting SAGA’s structures lose, the dwellings represent “the door wide-open for a lot of action, a lot of events.”
Chairperson Morey opted to have an informal free-flowing discussion, with no time limits imposed, on the special events ordinance. Unfortunately, that discussion turned out largely to be an exchange between Ms. Morey and Mr. Ward, on the one hand, and Porter Graham, the recently hired “shared” government affairs director for the Outer Banks Assn. of Realtors and the Outer Banks Homebuilders Assn., on the other.
When questioned by Mr. Ward, Mr. Graham, who was hired in May out of Washington, D.C., showed no familiarity with the town of Southern Shores, acknowledging that he does not know our oceanfront. Although Mr. Graham touted Duck’s ordinance on special events, which reportedly kicks in with 100 event guests, he could not answer Mr. Ward’s questions about how that ordinance has fared, i.e., what the effects on the community have been.
Ms. Morey held up the Duck ordinance as a possible prototype for Southern Shores.
Mr. Graham also spoke at the Town Council’s June 4 meeting on the special-events ordinance. He is a lobbyist with no local connections beyond his new employers. At both the Town Council and Planning Board meetings, Mr. Graham described himself in his introduction as being from Kitty Hawk, but he gave no address. Neither public body insisted on one.
The Beacon strongly encourages Mr. Ward to pursue the ideas he brought up at Monday night’s meeting about how to modify the permitting process for special events that the Town Code Amendment proposes. In particular, The Beacon liked his statement that “the larger the event, the fewer you [the property owner] get to have.” The current version of the TCA imposes a limit of three special events per year on a property owner. The limit does not apply to traditional family events.
It is unfortunate that the other three members of the Planning Board did not contribute to the discussion on special events. The Beacon trusts that the smaller group of Ms. Morey, Mr. Ward, and Mr. Haskett will come up with meaningful suggestions for the Town Council to consider.
PLANNING BOARD TERM EXPIRATIONS: The three-year terms of Ms. Morey and member Joe McGraw expire June 30. The Beacon has learned that Ms. Morey would like to be reappointed to another three-year term, but Mr. McGraw would not. The Town Council typically gives first consideration for regular-member appointments to alternates. The Planning Board’s current alternates are Michael Basilone and Leo Holland, who has previously indicated that he cannot take on the commitment of a regular-member term.
If you would like to apply for a Planning Board appointment, see:
POTENTIAL SOUTHERN SHORES LIBRARY: The “Exploratory Committee for Potential Branch Library” will meet today at 6 p.m. in the Pitts Center.
HISTORIC LANDMARK HEARING: The Historic Landmarks Commission has postponed the public hearing on the landmark designation application submitted by Dave Mackey for the Mackey Cottage at 218 Ocean Blvd. from next Tuesday to July 23.
Yesterday, in discussing ZTA 18-09PB01, the latest proposed amendment to the nonconforming lots ordinance enacted by the Town Council last September, The Beacon wrote the following:
“If the Planning Board recommends allowing three sisters to divide a 150-foot-wide oceanfront parcel owned by their father, a multimillionaire real estate investor and developer who died without a will, The Beacon believes it would be contravening both the letter and intent of the Town Code sec. 36-132 that was in effect when the patriarch owned all three. Owning nearly $13 million in real estate, and much more in stocks and other assets, according to the estate inventory, the deceased father-property owner would have been well-advised to plan his estate and write a will.”
Upon further research, The Beacon has learned that the deceased father owned only two of the three 50-foot-wide lots at 76 Ocean Blvd., and his widow owned the third. He owned the northernmost and southernmost lots, and she owned the lot in the middle, such that the decedent’s two lots were not adjacent.
The Beacon regrets this error. Mea culpa for writing under time pressure on a Sunday afternoon.
The Dare County Register of Deeds records show that the three 50-foot-wide lots were acquired by husband and wife on June 6, 2001 from three different individuals, who, until they altered ownership two weeks before the sale, had owned them together.
According to the subject deeds, each of these lots was owned jointly by three unmarried persons who did not share a common surname, but shared a home address. They may have been siblings. One of their signatures on the deeds shows signs of age, so they may have been a mother and her two children.
(The Beacon does not have the time to go to the Register of Deeds Office in Manteo to research old deeds that are not online in an effort to try to establish their likely familial relationships. Online deeds only date to 1999.)
On May 21, 2001, the three jointly transferred ownership to the three 50-foot-wide lots so that each ended up owning only one. Each then sold his or her lot to either the decedent or his wife. The law firm of Vandeventer Black made all of this happen for the parties involved. The same firm assisted the decedent’s widow with administering his large estate.
The decedent was a longtime real estate investor and developer. He was a player on the Outer Banks.
Although the decedent and his wife apparently did not violate the letter of Town Code sec. 36-132, The Beacon still believes they contravened the spirit and intent of the law, as did their predecessors in ownership. If their three daughters, who each now own one of the 50-foot-wide lots, are given an exception to the new sec. 36-132, this contravention will continue.
If the sisters are allowed to sell their lots, individually, and their buyers develop them, or they develop them themselves, there will not be low-density development along this 150-foot-wide section of the oceanfront, and both the intent of the law and the vision of Southern Shores will be thwarted. This should not happen.
It is fair to say that “shenanigans” accompanied more than a few of the real estate transactions in Southern Shores. Deals were made informally, and lawyers have always known how to skirt the law, especially when it’s not tightly written.
The Beacon asks the Town Planning Board to delve into the facts behind those transactions that it would give an exemption to Town Code regulation and ensure that it is perpetuating fairness, not just enabling shenanigans that benefit the few and harm the many. The Board should protect the town, especially the oceanfront, and its land-use plan from further degradation.
The Southern Shores Beacon 