The Southern Shores Town Council unanimously voted at its meeting last night to send the latest version of the nonconforming-lots zoning text amendment back to the Planning Board for further work and to table action on the ZTA creating an oceanfront overlay district until it receives the Planning Board’s recommendations for how to restrict high-occupancy large structures in town.

On Jan. 22, the Planning Board unanimously voted, with one abstention, not to recommend ZTA 18-10, which came out of a motion unanimously supported by the Town Council at its Nov. 7 special meeting on large houses. ZTA 18-10 would have defined an overlay district that encompassed the oceanfront and regulated housing within it according to specific factors, such as building height and setbacks.

During an unusually active session, the Town Council also took up or heard public comments last night on a wide range of issues, including the proposed widening of South Dogwood Trail, the threat of coyotes, damage repair on Juniper Trail, the town’s recent targeting of yard signs, and the response from Southern Shores’ representatives in the N.C. General Assembly to the town’s resolution seeking legislative approval to regulate density and occupancy by restricting the number of bedrooms in dwellings. (Resolution #2019-01-01)

The Planning Board is expected to take up the zoning text amendments that it directed Town staff to prepare in order to preserve low-density development in Southern Shores at its Feb. 19 meeting. (The meeting will be 5:30 p.m. in the Pitts Center.)

At least, this is The Beacon’s expectation. After last night’s hearing on the nonconforming lots ZTA 18-09 (see below), I’m not quite sure.

Although the Planning Board approved various means for controlling density and occupancy, such as limiting septic capacity in dwellings, as well as some of the language for a ZTA, it has not yet seen the Town Attorney’s drafts.

It has now been more than four months since the Town officially learned of SAGA’s proposed mega-structures at 98 and 134 Ocean Blvd., and it has taken no action to prevent other such structures from being built.

Neither Senator Bob Steinberg (R) nor Representative Bobby Hanig (R) supported Resolution #2019-01-01, according to Mayor Tom Bennett, who, along with three members of the Outer Banks Homebuilders Assn., met with the two legislators and members of the N.C. Homebuilders Assn. and their legal counsel, in Raleigh Jan. 29. According to the Mayor, with whom The Beacon spoke after the meeting, Duck Mayor Don Kingston did not attend.

Twelve people spoke during the general public-comment period of the Town Council meeting, five of them about the town’s coyote population and three about the possibility of widening South Dogwood Trail. Neither the coyotes nor the road widening, which was promoted at last week’s Capital Infrastructure Improvements Committee meeting, received support. In fact, comments offered about South Dogwood Trail’s future became quite heated.

Homeowner Tommy Karole, who lives near the intersection of South Dogwood Trail with East Dogwood Trail, pointedly asked: “Where does the idea of widening of South Dogwood Trail come from?”

Public sentiment in recent years has been squarely against such an idea.

The Beacon plans to address both South Dogwood Trail and the coyote threat, separately and in detail, in future blogs.

Last night’s meeting was so chock-full of business and commentary, and the phrases turned by some of the participants so critical, that The Beacon will be delaying its full meeting report until after the videotape is online and after it does additional reporting.

THE PLANNING BOARD, NONCONFORMING LOTS, & A RECUSAL OFFER

The Planning Board has been struggling for some time with “refining” the new nonconforming lots ordinance, which passed last September and is codified in Town Code sec. 36-132.

The nonconforming lots ZTA version (ZTA 18-09PB) that Town Attorney Ben Gallop said last night was recommended by the Planning Board was the third it had considered and was not actually seen in final form by the Board.

This irregularity troubled The Beacon, but no one on the Town Council seemed concerned. In fact, Town Councilman Jim Conners made a motion to approve the so-called “PB” version; but his motion died without a second.

While Mr. Conners’s motion was pending, Councilman Christopher Nason offered to recuse himself because of his business relationship with Steven Love and his wife, Katherine Gorman, who own the nonconforming lot at 64 Ocean Blvd. through their limited liability corporation, For the Love of Pete. “Pete” has applied for a CAMA permit on the site, but the Town has not issued it because the current Town Code ordinance on nonconforming lots (sec. 36-132) prevents Mr. Love and Ms. Gorman from developing it.

Mr. Nason admitted that he had prepared building plans for the site—which are on file in the Town Planning Department—but said last night that he is no longer “the architect of record.” In assessing his recusal, Mr. Gallop did not inquire as to when Mr. Nason ceased to be the Loves’ architect, nor did he ask any other questions.

The exchange between Mr. Gallop and Mr. Nason struck The Beacon as incomplete.

Mr. Nason indicated that he had spoken with Mr. Gallop before the meeting, but Mr. Gallop did not divulge the facts of their conversation. (The Beacon will review the videotape for the precise representations each public official made.)

The Town Attorney represents the Town Council, as a whole body, not its individual members, so Mr. Nason does not have attorney-client privilege.

Although Mr. Gallop rendered an opinion that Mr. Nason should be recused, no one on the Town Council made a motion to effect a recusal, purportedly because no motion arose on which Mr. Nason had to recuse himself.

Usually, Deputy Town Manager/Planning Director Wes Haskett presents a staff report on a ZTA before a public hearing is held. This time, he deferred to Mr. Gallop, who explained the three ZTA 18-09 versions that the Town Councilmen had before them. (See The Beacon’s report, 2/4/19, for background.)

Councilman Gary McDonald also ended up deferring to the Town Attorney in framing a motion that he made to send ZTA 18-09PB back to the Planning Board with specific instructions.

The rather convoluted motion that the Council passed unanimously, with Mr. Nason’s vote, seeks a comprehensive identification and equitable assessment of the (vacant) nonconforming lots in town. Heretofore, the Planning Board has sought to carve out exceptions for certain property owners because of the circumstances by which they acquired their nonconforming lots and the value of their investments.

Among the Town Council members, Councilman Fred Newberry objected most strenuously to “changing ordinances to accommodate individual circumstances.”

“There may be an approach that’s more wholistic,” Planning Board Chairperson Elizabeth Morey told the Council, later adding “There should be a better way to get to where we wanted to be.”

Mr. McDonald asked the Planning Board to “look at them all” [nonconforming lots in town] and then “come back with something that works.” That task is expected to be undertaken by Ms. Morey, Planning Board member Andy Ward, Mr. Gallop, and Mr. Haskett.

“The four of us will hash this out,” Mr. Ward told the Council.

The Beacon will conclude its meeting report there, with the assurance that it will revisit many of the issues discussed at a later date.

Folks who live in Chicahauk can expect Juniper Trail to be closed for a week while damage done during the recent road-improvement project near the south end is repaired. More on that later, too.

Ann G. Sjoerdsma, 2/6/19

During an interview that The Beacon had last June with then-Town Planning Board member Elizabeth Morey, she said that she thought Town Code update/rewrite consultant, Chad Meadows, had submitted an “unacceptable work-product.”

And she told me I could quote her on that.

Until today, I have had no reason to quote Ms. Morey, who, as of Jan. 22, is the chairperson of the Planning Board. Today, however, I have attempted to access Mr. Meadows’s December 2018 “public hearing draft” of the proposed new Southern Shores Town Code of Ordinances, and I could not help but recall Ms. Morey’s assessment.

This 381-page document is big and bloated and, despite Mr. Meadows’s express goal of making the Town Code more “user-friendly,” it is decidedly unfriendly. (In my opinion.)

Mr. Meadows, who is owner of CodeWright Planners, LLC, of Durham, will be presenting the draft Town Code at a public forum tomorrow, 5:30 p.m. to 7 p.m., in the Pitts Center. (See The Beacon, 1/28/19.)

The new Town Code does not make a good first impression.

I am not a fan of its page layout—the font size, “navigational aids,” heading text, etc., that Mr. Meadows refers to as “technical changes” and justifies as “modern.” I think they, as well as illustrations and graphics (for example, flow charts, summary tables), just get in the way of important business. They make the Town Code of Ordinances appear busy, distracting, and even frivolous. I prefer well-chosen words.

Style aside, however, The Beacon believes that, at the least, Mr. Meadows should prepare a summary of all of the substantive changes that he integrated into the current Town Code. What key regulations, or sections thereof, were deleted, revised, added?

Mr. Meadows knows the issues of most concern to property owners, who are the ultimate “stakeholders” in this project. He should address them directly.

As the draft is now, you have to go painstakingly through it, finding the new number for the chapter you’re interested in and then perusing a lot of verbiage, much of it unnecessary, to find what you’re looking for.

While doing such perusing today, my thought was one that Ms. Morey expressed more than six months ago: “The consultant needs to do a better job.”

MORE THAN THREE YEARS

Mr. Meadows started the “Town Code Update Project” in September 2015, over the protests of many resident homeowners, 44 of whom signed and submitted a letter to the Mayor and Town Council on Jan. 4, 2016, asking that they suspend the consultant’s authority immediately. (I was one of the signees.)

“Contrary to repeated representations by TOSS [the Town of Southern Shores], including in its Dec. 22, 2015 holiday newsletter,” the homeowners wrote, “the project team will not be merely ‘correcting conflicting and ambiguous language in the Code, addressing recent changes in state and federal laws, and reorganiz[ing[ some sections to make the Code more user-friendly and easier to understand.’ Rather, it will be substantively assessing—and, to a great extent, already has assessed—the Town Code for the purpose of drafting new building and other laws to propose to TOSS for codification.”

There is little doubt that the December draft goes far beyond the Code cleanup that Town Manager Peter Rascoe described in FY 2015-16 budget hearings: Mr. Meadows did not just edit for consistency, clarity, and conformity with state and federal law. His Code rewrite is essentially a new planning document for Southern Shores.

The Planning Board began its review of Mr. Meadows’s work, which was organized into several “modules,” in April 2017. Current regular members Joe McGraw and David Neal were on the Board then, but Mr. McGraw, who is vice-chairperson, was an alternate until September 2017, when he was appointed to a regular, full-voting seat. Sam Williams was the chairperson.

The Town Council “dumped the Code rewrite on us,” Ms. Morey told The Beacon on June 29, 2018, “and it doubled or tripled our workload.”

The Board’s review, she continued, “was made more difficult by how the consultant presented the Code. . . . It was extremely difficult to determine what was old and what was new.” Such difficulty should have been corrected by the consultant.

Although the December 2018 draft does not look the same as the Code rewrite version that the Planning Board spent months reviewing, it still suffers in the presentation. The public, the Planning Board, and the Town Council still cannot readily distinguish old from new, not without great commitment of time and task.

Before a final draft reaches the Town Council, the Planning Board, whose membership now includes Andy Ward and Ed Lawler, must consider it for recommendation. The Beacon strongly encourages the new Board to take a fresh look and to hold Mr. Meadows accountable for an easy-to-read written summary of changes. No public official should be recommending or approving a code of ordinances just to move it along.

Fundamentally, The Beacon finds that the revised page layout, the new graphics and illustrations, and, most of all, the excess verbiage (such as the proposed “Purpose and Intent” sections, but also the language of the regulations themselves) just obscure the core substantive content, and in a code of ordinances, content—the regulations governing the Town of Southern Shores—is everything.

This draft cries out for another independent review—of the zoning chapter and any other important regulations identified by the public and the Planning Board.

‘CODE ASSESSMENT’

A final note for those of you who are inclined to plunge into the December draft: You’ll find before the Code a section titled “Guidance from Code Assessment.”

“Code Assessment” refers to a document prepared by Mr. Meadows in October 2016 that purportedly summarized the “input” he received from the Town Council—Mr. Meadows interviewed members of the 2011-15 Council, all three of whom were defeated for reelection in November 2015; the Planning Board; the Town Manager and other Town staff; and about 900 respondents to a public survey, which was controversial for alleged bias in the framing of questions.

You may access this more than two-year-old document here: https://www.southernshores-nc.gov/wp-content/uploads/2015/10/TOSS-Code-Assessment-Final-10-3-16.pdf. The December draft does not include updates since October 2016.

Each chapter in the draft also has a blue-highlighted section titled “Guidance from Code Assessment,” which refers to this document and will not be a part of the finalized Town Code. None of the blue-highlighted language in footers throughout the draft will be part of the final draft, either. That this language is included in the draft just makes processing it all that more tedious. Perhaps the Planning Board, which presumably did such processing, could release a report on how it tackled it.

The Town Code Update Project has taken far longer than anyone anticipated. The Beacon trusts that Town officials will take even longer to ensure that they know and approve all significant changes within the proposed draft and communicate them to Southern Shores property owners.

Ann G. Sjoerdsma, 1/30/19

Planning Board Vice-Chairperson Elizabeth Morey was elected chairperson, and member Joe McGraw was elected vice-chairperson at last night’s Planning Board meeting. Both votes were unanimous.

The positions are for the current fiscal year, which ends June 30, 2019.

Ms. Morey, a self-employed political consultant, has been acting chairperson since Glenn Wyder’s death in November. In an interview last year with The Beacon, Ms. Morey said she served two years as a Planning Board alternate before being appointed a full member of the Board. Her current three-year term expires June 30.

Mr. McGraw, who owns Albemarle Contractors with his wife Lori, was serving as a Planning Board alternate when the Town Council appointed him in September 2017 to complete the unexpired term of regular member Gray Berryman, who resigned. Mr. McGraw’s term also expires June 30.

All Planning Board appointments are made by a majority vote of the Town Council.

In other business last night, Deputy Town Manager/Planning Director Wes Haskett reported that American Towers LLC/Verizon Wireless had asked that their application to amend an existing Conditional Use Permit in order to extend the height of the cell tower at 148A Ocean Blvd. be tabled until February or March.

According to a letter from an attorney included with the application, American Tower seeks to extend its “Monopole Facility,” which is located in the SSCA’s Triangle Park at the Ocean Blvd./Duck Road split (see photo above), by 10 feet, bringing it to 150 feet, its “final height.” (See The Beacon, 1/21/19.)

The extension would accommodate Verizon Wireless, which is not now on the tower, and expand AT&T’s cellular capacity, improving “network connectivity in the area.”

The Planning Board accepted a tabling of the application “until further notice.”

A WORK IN PROGRESS

I am going to do something unusual in regard to the remainder of the business taken up, and the public comments heard, last night by the Planning Board, and that is not to report on them, except in a broad fashion.  I also will editorialize.

I found much of the substance discussed by the Board last night to be confusing and the over-all process of the meeting to be disruptive. There were quite a few breaches in the order of the proceedings.

I will tell you what the Planning Board did. But rather than explain the actions it approved in any detail, I am going to wait until I see them in writing.

The Planning Board definitely recommended, with amendment, a version of Zoning Text Amendment 18-09, which seeks to except certain property owners’ circumstances from the nonconforming lots ordinance that the Town Council enacted in September. The Board refers to the property owners whom it is trying to shield from the operation of the new ordinance, which rewrote sec. 36-132 of the Town Code, as “outliers.”

A homeowner with an outlier case that the Planning Board had not previously considered spoke during the public-comment period last night. His case drew a sympathetic response from the Board, but it was unclear to me how the Board plans to address it. (The Beacon recalls that Town Councilman Jim Conners tried to bring up this homeowner’s case in a Planning Board meeting chaired by Mr. Wyder and was prevented from doing so. That was unfortunate.)

A public hearing on ZTA 18-09 is scheduled Feb. 5 before the Town Council. I will report on that version of the proposed Code amendment when I am confident it is in final form. The version of the ZTA that is currently online under the Town website notice of the Feb. 5 Town Council meeting is not the one that the Planning Board discussed last night. (See https://www.southernshores-nc.gov/public-notice-two-public-hearings-february-5-2019.)

The legal language of the ZTA is complicated and confusing.

In my opinion, Planning Board member David Neal hit the nail on the head when he said: “We’re trying to stop the cutting up of 100-foot-wide lots into 50-foot-wide lots on the oceanfront and elsewhere.”

There was definitely a sense of frustration last night that this has not been achieved—but not for a lack of trying. Perhaps Town Attorney Ben Gallop, who is creative, can come up with a fresh approach or a fresh perspective. The Board expressed a need for his guidance.

Board member Andy Ward made two motions that amended motions passed by majority vote on Jan. 7, in regard to controlling high-occupancy (“large”) dwellings and population density in Southern Shores. Through these motions, both of which were approved, the concept of using septic capacity as an occupancy control was resurrected, and the movement to limit maximum house size to 5,000 square feet was defeated.

(Note: I think both the septic-capacity limit and the reduction in the maximum house size are options that the Town Council should consider. I have been a proponent in previous Planning Board meetings of the former.)

The vote on including septic capacity in a ZTA, along with the high-occupancy use concept previously approved by majority vote, was approved unanimously. The vote on maintaining the 6,000-square-foot maximum house limit was 3-2, with new Board member Ed Lawler, who did not attend the Jan. 7 Board meeting, being the swing vote.

Mr. Gallop advised the Planning Board that he would integrate these decisions into the zoning text amendments that he was directed to prepare Jan. 7. I will report on those ZTAs when I see them.

The Board also formally voted 4-0, with Mr. Lawler recusing himself, not to recommend ZTA 18-10, which creates an ocean overlay district and regulations within that district. This is the ZTA that came out of the Town Council’s Nov. 7 special meeting on large houses. A public hearing on ZTA 18-10 is also scheduled before the Town Council on Feb. 5.

INTEGRITY OF THE PROCESS

For the newly constituted Planning Board to be successful, the process by which it operates publicly must be fair, open, respectful, and disciplined. I strongly believe that integrity in the process—which is a democratic process—is far more important than the ends achieved.

There must be meeting rules, and they have to be enforced. Members of the public should not be permitted to interrupt people while they are giving public comments, nor should they be permitted to speak from their seats in the audience.

When speaking from the lectern, all members of the public should begin by giving their names and addresses, as they are asked to do. If there is going to be a three-minute rule in effect for public comments, then it should be applied consistently to everyone who speaks—and speakers should be informed that it is in effect.

New Chairperson Elizabeth Morey may wish to consider a sign-up sheet for public comments. That would end the practice of allowing people to speak emotionally in reaction to what they have just heard someone else say in public comment.

Planning Board members also must be prepared to participate meaningfully in the weighty matters before them and to listen to each other and to the public with the goals of mutual understanding and cooperation.  The Beacon believes the Board is a team, as well as a group of individuals with varying personalities and styles.

There will inevitably be differences of opinion and/or interpretation, but they do not preclude respectful discussion. Rarely is there a right or a wrong in a given situation.

I will conclude with a sentiment expressed by new Vice-Chairperson Joe McGraw, who said: “We’ve been good stewards of Southern Shores. I love Southern Shores.”

The Beacon believes that the concept of stewardship is an excellent one to apply to service on the Planning Board. The Beacon loves Southern Shores, too.

Ann G. Sjoerdsma, 1/23/19

 

The Town Planning Board will continue its important deliberations about how to regulate occupancy in residential dwellings in order to preserve Southern Shores’ low-density character at its monthly meeting tomorrow at 5:30 p.m. in the Pitts Center.

The Board also will look at proposed exceptions to the town’s new nonconforming-lots ordinance (Town Code sec. 36-132), which the Town Council passed last September, and consider permitting a 10-foot extension to the cell tower at 148A Ocean Blvd., in what property owner Southern Shores Civic Assn. calls Triangle Park.

Before the Board takes up any of this business, however, it will elect new officers for the remaining fiscal year and approve its 2019 meeting schedule.

Vice-Chairperson Elizabeth Morey has been acting Planning Board chairperson since Glenn Wyder’s death in November. With the Town Council’s Jan. 8 appointment of Ed Lawler to serve out Mr. Wyder’s unexpired three-year term, the Board now has a full complement of five regular voting members. They will elect a new chairperson tomorrow night, and, if necessary, a new vice-chairperson.

The Beacon has written extensively about the Planning Board’s discussions regarding available options to control occupancy in single-family homes, in light of SAGA’s proposed 12-bedroom, 12-bathroom, hotel-like structures on the oceanfront and the Town’s inability to limit the number of bedrooms in houses, as well as about refinements to the new nonconforming lots regulation. We will not say anything more here about either subject, but just report on new developments that arise in tomorrow’s meeting.

On 10/10/18, The Beacon reported on American Tower Corp.’s plan to extend the cell tower at the Duck Road/Ocean Blvd. split, in order to accommodate Verizon Wireless, which is not now on the tower, and to expand AT&T’s cellular capacity.

American Tower representative Mark Landers told the SSCA at its October membership meeting that the extension, which he said then would be 20 feet, not 10, would be done to “accommodate” the explosion in cell-phone traffic. Mr. Landers explained that too many people are trying to use the network at the same time, causing disruptions and deficiency in service.

The current “straight pole-like structure,” which American Tower calls its “Monopole Facility,” “will look exactly the same on the outside” as it does now, Mr. Landers said, just taller.

In order for the extension to be allowed, an amendment to American Tower’s existing Conditional Use Permit from the Town must be approved. In a letter accompanying its application for the amendment, an attorney for American Tower writes that the additional 10 feet will bring the height of the Monopole Facility to 150 feet, its “final height.”

This increase, according to attorney David G. Allen, will enable Verizon Wireless to install its equipment “in order to alleviate current reductions and bottlenecks in network connectivity in the area.”

The Planning Board will hear tomorrow from American Towers/Verizon Wireless about the 10-foot extension and then vote on whether to recommend a CUP amendment to the Town Council.

See https://www.southernshores-nc.gov/wp-content/uploads/2019/01/CUP-Amendment-Application_Site-282219.pdf.

Mr. Landers told the SSCA last fall that the expansion would take about five months to complete and would bring in $5400 more in annual rent for the SSCA, making the association’s total income from the tower just under $40,000. These are strictly tentative figures. (Mr. Landers also told the SSCA that a 20-foot extension was needed to bring the tower up to 130 feet.)

PLEASE TAKE NOTE: There are two public-comment periods scheduled during the Planning Board meeting. If you have news or an opinion that you’d like to share with the Board, this would be a good time to do so.

Ann G. Sjoerdsma, Jan. 21, 2019

It is hardly a coincidence that less than one week after NO! MINI-HOTELS signs began appearing on property owners’ yards and vacant lots—at their request—that the Town of Southern Shores decided to warn people in its newsletter about posting signs in the public right-of-way (ROW).

The item about yard signs—which appears as the second-ranking item in the Jan. 18 newsletter—asks: “Did you know that signs posted in a street right-of-way may be subject to removal?” (See “Southern Shores News,” Jan. 18, 2019.) It then refers to the Town Code sign regulation, sec. 36-165, and quotes a prohibition against any signs being located within the public right-of-way.

The Beacon believes that this item not only reflects a shocking pettiness and bias by the Town–which The Beacon is hopeful the Mayor and Town Council do not share–it misinforms the public by misrepresenting the law.

Perhaps Town Manager Peter Rascoe can refer The Beacon to the Town Code section that gives the Town the right to remove a yard sign, without first issuing the requisite warning citation, simply because it is in the public right of way.

Even more egregious, the Town’s sign regulation has been unconstitutional, at least in part, for nearly four years. Ever since the U.S. Supreme Court decided Reed v. Town of Gilbert in 2015, a section of the Town’s regulation that permits real estate signs to be in the public right of way, but not other signs, has been clearly unconstitutional.

It’s a First Amendment issue: The Town cannot favor the speech–i.e., a sign’s message–of one speaker (a real-estate agent) over another, such as a NO! MINI-HOTELS proponent, unless it can meet a very high constitutional standard, and it cannot.

How much of sec. 36-165 is invalid because of the holding in Reed v. Town of Gilbert? It’s quite possible that a court would strike down sec. 36-165(7), which the newsletter cites as authority for removing yard signs.

According to the U.S. Supreme Court, a town “may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.” Evenhanded. Content-neutral. These are weighty words. The Supreme Court always chooses its words carefully.

It is not remotely evenhanded and content-neutral for the Town to prohibit all signs in the public ROW except those in the residential districts that have real-estate content on them. (See Town Code sec. 36-165(8)(c).) In fact, it’s blatantly unconstitutional, if the regulation does not serve a “compelling governmental interest” (the high standard I mentioned above), which an exemption of real-estate signage clearly does not.

Mr. Rascoe is an attorney, and the Town has its own attorney. Why hasn’t the sign regulation been “repaired” so that it’s constitutional? Surely, both are familiar with Reed v. Town of Gilbert.

Now that the Town has made a public show of cracking down on signs in the ROW, is it going to start removing “For Sale” and “For Rent” signs in front of houses that are closer than “8-12 feet from the edge of street pavement,” as the Jan. 18 newsletter item defines the ROW? Or is it just going to target NO! MINI-HOTELS signs, in a discriminatory fashion?

Judging by the Town’s history of non-enforcement, it was quite reasonable for property owners who posted NO! MINI-HOTELS signs to believe that the Town had ceded the public ROW to yard signs.

The Town didn’t warn Mayor Tom Bennett’s supporters to remove their signs from the public right of way during his 2017 reelection campaign. The Town has never taken any action against election signage, even though it’s prohibited by the same Town Code section that the newsletter item cites. (Reed v. Town of Gilbert prohibits election signage from being given special treatment.)

Any signs in the public ROW that protest oil drilling off of the North Carolina coast also violate the ordinance. Town Manager Rascoe did not authorize a newsletter item warning about placement of no-drilling signs in the ROW when those signs started appearing.

Actually, there’s a procedure outlined in the Town Code for the enforcement of zoning ordinances, and it begins with the Town issuing a warning citation to the alleged violator, not with confiscation of his/her private property.

According to Town Code sec. 1-6, a violation of the zoning chapter subjects the offender to a civil penalty “upon the issuance of a citation” for the violation. The Town must “cause a warning citation to be issued to the violator setting out the nature of the violation, the section violated, the date of violation, [and] an order to immediately cease the violation.” (Code sec. 1-6(m).)

Has anyone with a NO! MINI-HOTELS sign in his/her yard been served with such a citation? If you have, please contact The Beacon.

The Beacon has been advised by organizers of the NO! MINI-HOTELS campaign that they will begin moving any of their signs that are in the ROW back onto the private property of the land- or homeowner. They also will be watching to see if all real-estate companies who have posted “For Sale” or “For Rent” signs in the public right-of-way do the same.

The Town cannot constitutionally exempt real-estate signage from its ROW prohibition, nor can it enforce the ROW prohibition only against those citizens whose signs it doesn’t like. That the Town Manager and/or other Town staff decided to target yard signage at this time leaves The Beacon feeling that they are not serving many of the people they were hired to serve. In fact, they are biased.

Ann G. Sjoerdsma, 1/20/19

 

Early in the Town Planning Board’s special meeting Jan. 7, Board member David Neal reduced its analysis for controlling high-occupancy “large” houses to two basic options: 1) restricting septic-use capacity per home; and 2) restricting occupancy by the nature of the home’s use, in particular, by its use as a vacation rental.

During the ensuing discussion of these two options, several members of the Planning Board brought up a third option: that of reducing the maximum house size in town from 6,000 square feet to 5,000 square feet.

The idea of reducing the maximum house size had been advanced by members of the public at the Town Council’s Nov. 7, 2018, special meeting on large houses, along with other good suggestions. A majority of three Town Council members did not choose to consider any of these suggestions, however. They exclusively endorsed Councilman Jim Conners’s motion, prepared by Town Attorney Ben Gallop, to create an ocean overlay district and to regulate properties within this district by setbacks, landscaping buffers, building height, and other permissible curbs. (See The Beacon, 11/8/18.)

Councilman Gary McDonald made a motion at the Nov. 7 meeting to have Town staff prepare an alternate zoning text amendment (ZTA) that included redefining the concept of living space for determining house size and restricting the number of parking spaces and the septic capacity per home. Only Councilman Fred Newberry joined Mr. McDonald in support of this motion.

The majority, who defeated it, erred.

The Beacon believed then, and still believes, that an alternative ZTA, with a different approach to tackling the high-occupancy control problem, would have been a great help, not a hindrance, to the Town’s problem-solving process. It would have allowed for the expansion of control options available now to the Town, without having to change districting, as Mr. Conners’s overlay “concept” proposed doing. (The Planning Board summarily rejected the overlay concept. See The Beacon, 1/3/19.)

A second ZTA also would have given the Planning Board a better sense of the big picture before it. Mistakes were made by both the Planning Board and the Town Council three years ago, when they hurriedly considered zoning text amendments prepared by Mr. Gallop to address the high-occupancy housing problem then. These mistakes must be corrected now.

Planning Board Chairperson Glenn Wyder’s death Nov. 25 has left a huge void on the Board at an unusually critical time in the town’s history, a time that Mr. Neal, who is a longtime Southern Shores builder and homeowner, poignantly has called a “crossroads.”

The Beacon recognizes that the Board members have been operating under difficult circumstances and empathizes with them in their decision-making task. They are all conscientious people who have the Town’s best interests at heart.

The Beacon also believes that, in order to serve responsibly, all Planning Board members must know the duties and powers that they have under the Town Code and be willing to exercise the latter in furtherance of the former.

The Planning Board is an independent planning agency that has broad authority to ensure a “coordinated and harmonious development” of Southern Shores. Town Code sec. 24-27 gives it considerable powers and duties. The Board’s actions and recommendations are fundamental to an orderly development of the town.

If it chooses, the Planning Board can commission studies and task forces. It can be out front on zoning issues confronting the town, acting in anticipation, rather than always in remediation. And it need not defer to any Town official or adviser.

The Beacon encourages Board members to think about all of the elements that currently exist in the Town Code that have a bearing the construction of single-family dwellings, as Councilman McDonald tried to do in the motion he proposed.

In coming up with measures to control “large” houses, Planning Board members should strive to be as comprehensive in their analysis as the Town Code is in defining their powers and duties.

The Beacon commends to their attention the following Town Code provisions and proposed changes:

Analyzing “Enclosed Living Space”

The maximum size of a single-family dwelling in Southern Shores is no more than 6,000 square feet of “enclosed living space.”

Town Code sec. 36-57 defines such living space as “enclosed conditioned areas within a structure that are designed or constructed for human habitation.” This means that any un-conditioned storage rooms or unconditioned space—no heating or air-conditioning—does not count toward the maximum-size limit, even though a homeowner may convert such space later to a conditioned room, such as another bedroom.

The Code definition of living space leaves a loophole, which SAGA Construction & Development exploited in its design of the “mini-hotel” it is building at 98 Ocean Blvd. SAGA excluded from its living-space calculation a 124-square-foot unconditioned room on the ground floor. If it had been compelled to calculate “total floor area,” which is the standard applied in the N.C. Coastal Area Management Act, then this storage space would have been included in the structure’s size, and it would have exceeded the 6,000 square-foot limit.

This is an important distinction that the Planning Board should know and consider changing.

Changing Minimum Off-Street Parking Requirements

In January 2016, when the Town Council enacted the maximum house size restriction, it eliminated the maximum 14-person septic capacity of single-family dwellings, but it did not change the Code-specified minimum parking requirements, which are based on a dwelling’s septic capacity. This was a huge oversight. It needs to be corrected now.

The unfortunate truth is that the Town Council and the Town Attorney are directly responsible for the 17 parking spaces that SAGA is proposing to construct with its 12-bedroom mega-structures.

The Town Code currently requires a minimum of 17 parking spaces for a “single-family dwelling” with a 24-person septic capacity.

Here’s how the minimum parking for a dwelling is calculated: Town Code section 36-163(3)(a)(1) specifies that each residential dwelling unit with up to an eight-person septic capacity must have three parking spaces. Beyond these three, the Code says there must be one additional space for each additional two persons of septic capacity in excess of an eight-person septic capacity and up to a 12-person septic capacity. Over a 12-person septic capacity, the Code requires one additional space for each person.

If you do the math for a dwelling with a septic capacity of 24 persons, you get 3 + 2 + 12 = 17.

This formula for calculating minimum parking requirements must be changed, and it is within the authority of the Planning Board to recommend to the Town Council a different calculation.

Redefining a “Single-Family Dwelling”

The Beacon has previously addressed the Town Code definition of a single-family dwelling, which turns on the definition of “family.” (See The Beacon, 12/31/18.) The Town Council changed this definition in January 2016 when it enacted the maximum dwelling size restriction of 6,000 square feet. It made a mistake.

The Planning Board must address this definition now, not later. SAGA used this definition to mischaracterize its mini-hotel structures as single-family dwellings. Other developers can do the same.

Town Code sec. 36-57 defines a “dwelling, single-family” as “a detached building designed for or occupied exclusively by one family.”

“Family” is defined in this same section as “one or more persons occupying a single-family dwelling unit, provided that unless all members are related by blood or marriage or that the dwelling unit is being used as a vacation rental under the North Carolina Vacation Rental Act (N.C.G.S. Chap. 42A), then no such family shall contain more than five persons.”

The italicized reference to the N.C. Vacation Rental Act was inserted into the zoning text amendment on maximum house size by Mr. Gallop, who said at the Jan. 7 Planning Board meeting that I have a “misconception” about the intent of the language.

Regardless of what Mr. Gallop’s intent may have been, the effect of the change has been damaging.

The new language is misleading and must be deleted, and the Planning Board has the authority to direct this change.

Last October, the Southern Shores Civic Assn. objected to both of SAGA’s proposed mini-hotels by claiming that they are not “single-family dwellings,” as the Town Code defines such residences. When The Beacon asked Town Permit Officer Dabni Shelton why the SSCA’s opposition was not sufficient, she said that SAGA’s structures were covered by the Vacation Rental Act., which effectively excepted them from the Town’s single-family dwelling requirement.

But the Vacation Rental Act says nothing about the definition of a single-family dwelling. It pertains to leases, the duties/obligations/rights of landlords, tenants, and real estate brokers, eviction, evacuation, and the like. The N.C. General Assembly passed it to regulate “the competing interests of landlords, real estate brokers, and tenants.”

The Planning Board needs to recommend a new definition of family that does not refer to the Vacation Rental Act. The effect of the January 2016 amendment has been to allow residential structures that are not single-family dwellings to be built in the single-family dwelling residential districts, as long as they are vacation rentals. This is just plain wrong.

Regulating House Size on Nonconforming lots

The Beacon also believes that the Planning Board must specifically address maximum house sizes for single-family dwellings that are built on lots that are smaller than the mandatory minimum size of 20,000 square feet. The Town Code is silent on this issue. It is currently possible for a property owner to build a 6,000-square-foot home on a smaller “non-conforming” lot—such as a 50-foot-wide lot—provided the 30-percent lot-coverage limit is not exceeded.

The Beacon has suggested that the following language be added to all of the zoning ordinances that address dwelling size in the residential districts:

“Single-family dwellings built on lots that are 20,000 square feet or larger shall not exceed 6,000 square feet of enclosed living space [or, preferably, total floor area]. Single-family dwellings built on lots that are between 15,000 and 19,999 square feet shall not exceed 4,000 square feet of enclosed living space. Single-family dwellings built on lots that are between 10,000 and 14,999 square feet shall not exceed 3,500 square feet of enclosed living space. Single-family dwellings built on lots that are 9,999 square feet or smaller shall not exceed 3,000 square feet of enclosed living space.” 

In the interest of preserving the low-density character of development in Southern Shores, the Planning Board must limit maximum house size on smaller nonconforming lots. This is an oversight that it must address.

Putting Teeth into Enforcement

In discussing the septic-capacity and house-use options for restricting high-occupancy houses in Southern Shores, Planning Board members considered how enforcement of such options would occur. According to Deputy Town Manager/Planning Director Wes Haskett, enforcement of zoning restrictions and requirements is generally “complaint-driven.” But it need not be that way.

The Planning Board has the authority to recommend changes in the methods of enforcement. It can even suggest penalties for zoning violations. This is something that Mr. Gallop could assist the Board with doing. Although the ultimate decision-maker on enforcement would be the Town Council, the Planning Board can give it much-needed direction.

If the Board decides to recommend a ZTA that limits the occupancy in “vacation cottages” to no more than 14 overnight occupants, how will this occupancy limit be enforced—other than through community complaints? A door-to-door police check is neither feasible nor desirable. Where is a likely point of enforcement to exist? In rental agents’ offices? With online booking agents, such as VRBO.com or airbnb.com?

The Beacon encourages the Planning Board to get past its collective “complaint-driven” shrug—oh, well, what can we do?—and to engage in a discussion about what it can do to enforce the Code and prevent zoning violations.

Comprehensive analysis. That’s what Southern Shores needs from its Planning Board now. The Beacon is confident that its members can deliver.

Ann G. Sjoerdsma, 1/17/19