In a surprise move last night, the Town Planning Board voted, 3-2, to include a 5,000-square-foot house-size restriction in one of two “high-occupancy limit” zoning text amendments that it directed Town staff to prepare for its consideration.

Both ZTAs requested by the Board were based on new language emailed to Board members yesterday by Planning Director Wes Haskett, after he received the language in a 10 a.m. email from Town Attorney Ben Gallop. The ZTA language was then posted on the Town website, according to Mr. Haskett, who responded to an email from The Beacon this morning.

Each ZTA requested by the Planning Board would control population density in Southern Shores’ RS-1 and R-1 residential districts by limiting overnight occupancy in “vacation cottages” to 14 people or fewer. A “vacation cottage” would represent a new “permitted use” in these districts.

The Board also rejected, by a 2-3 vote, a motion by member Andy Ward to propose a ZTA that would have controlled high-occupancy dwellings and population density by limiting septic-use capacity to “no more than 14 overnight occupants.”

Mr. Ward, who advocated strongly for a septic-use limit three years ago when the Town Council enacted the 6,000-square-foot house-size limit instead, appeared to be shocked by the new ZTA language, which was attributed to Professor David M. Owens of the University of North Carolina School of Government. Professor Owens is Mr. Ward’s first cousin.

Planning Board Vice-Chairperson Elizabeth Morey, who has been conducting the Board’s meetings since Chairperson Glenn Wyder’s sudden death Nov. 25, is expected to report the Board’s progress to the Town Council tonight during its regular monthly meeting. The Council meets at 5:30 p.m. in the Pitts Center.

According to the Town Council’s agenda, it will appoint someone to fill Mr. Wyder’s unexpired three-year term, which started July 1, 2018. This full member will be on the Planning Board when the two ZTAs authorized last night are taken up by the Board for possible recommendation to the Town Council.

Three Southern Shores homeowners have applied for the Board vacancy. They are Ed Lawler, a semi-retired engineering consultant with experience in house design and construction who has lived in Chicahauk for 28 years; Anthony DiBernardo, a retired parole hearing examiner who has been active in environmental preservation in Southern Shores since he moved here in 2005 and served three years as chairman of the SSCA’s Architectural Review Board; and Patrick Regan, a retired food-industry manager who is involved with the Beach Food Pantry and Caring Hands, a faith-based outreach program affiliated with the Duck United Methodist Church. (See below for more about their qualifications.)

Supporting materials for the meeting, including the Planning Board applications are available here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2019-01-08.pdf.

You may access the Town Council’s agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2019-01-08.pdf.

SURPRISE TALK ABOUT HOUSE SIZE, NEW ZTA LANGUAGE

Last night’s special meeting of the Planning Board picked up where the Jan. 2 special meeting, which recessed because of a power outage in the Pitts Center, left off.

There was considerable public comment, presented formally from the lectern and informally from the audience, during the two-hour session. Ms. Morey allowed a free-flowing, but controlled interactive and inclusive meeting. Anyone who wished to speak was given an opportunity to do so.

In addition to Ms. Morey and Mr. Ward, Planning Board members David Neal and Joe McGraw, both of whom are builders, participated. Board alternate Michael Basilone, a Kitty Hawk firefighter who lives in Southern Shores, assumed the vacant seat, as he had on Jan. 2.

Mr. Neal sought to frame the Planning Board’s deliberations by summarizing the options for controlling high-occupancy houses as just two: 1) to limit by septic-use capacity; or 2) to limit by “use.”

“We are trying to put a cap on the number of people who can be in a vacation rental,” he said, after noting that the Town is prohibited by state law from limiting occupancy by the number of bedrooms and has already set a maximum house size.

Ms. Morey corrected Mr. Neal by saying that the Board was not capping the number of people in a vacation rental, but rather “the number of occupants in a single-family dwelling.”

When the reserved Mr. McGraw, who has a decades-long history with Southern Shores, spoke up about reducing maximum house size in town to 5,000 square feet, an idea that The Beacon knows has support among town citizens, including me, I was frankly stunned. I thought that a change in the maximum house size, which was suggested at the Town Council’s Nov. 7 special meeting, lacked support on the Planning Board.

“I feel like the 6,000 square-foot limit opened up the door for 98 Ocean Blvd.,” Mr. McGraw said, referring to the 12-bedroom, 17-parking-space mega-house being built by SAGA now on the oceanfront.

Mr. Basilone agreed, expressing support for the high-occupancy/use limit, but saying, “I also like what Joe said about changing the square footage of houses.”

Ms. Morey joined them, saying, “I like the idea of 5,000 square feet, too.”

“Adamantly opposed” to reducing the maximum house size, Mr. Ward argued in favor of restricting occupancy in single-family homes by limiting septic-use capacity to 14 people. His motion to direct Town staff to prepare a zoning text amendment that would limit septic-use capacity for single-family dwellings to 14 persons failed, 2-3, however, after discussion about the risk of liability involved in this option and the ways that property owners could get around it. Only Ms. Morey joined Mr. Ward in approving the motion.

See Mr. Ward’s option at: https://www.southernshores-nc.gov/special-planning-board-meeting-recessed-january-7-2019/1-7-19-occupancy-limt-zta-language/

NEW LANGUAGE FROM PROFESSOR OWENS, WRITTEN IN NOVEMBER

Mr. Neal threw his support behind the new draft ZTA language that, Mr. Haskett told The Beacon today, Mr. Gallop emailed to the Planning Director yesterday morning around 10, and Mr. Haskett immediately forwarded to Board members.

This ZTA language is described in a link on the Town website as “11/19/18: Owens High-Occupancy Limit Language.” See https://www.southernshores-nc.gov/special-planning-board-meeting-recessed-january-7-2019/11-19-18-owens-high-occupancy-limit-language/.

Professor David Owens, of the UNC School of Government, is a highly regarded N.C. land-use expert and author of the textbook, “Land Use Law in North Carolina,” with whom Mr. Gallop has conferred. Professor Owens, who lives part-time in Southern Shores, prepared the septic-use ZTA language that Mr. Ward proposed.

The Beacon did not see this new link before yesterday’s meeting. According to Mr. Haskett, the date assigned to it, 11/19/18, “is the date of the correspondence between David Owens and the Town Attorney that included the language.” Why Mr. Gallop, who has described himself as a student of Professor Owens, waited until yesterday to share this nearly two-month-old correspondence with the Planning Board was not made clear last night.

Mr. Gallop stated at the meeting that the language had been drafted by Professor Owens, but he did not provide the specific context. The Town Council held a special meeting on high-occupancy houses on Nov. 7, before this language was allegedly drafted, and the Planning Board did not meet in November.

This new Owens language, which a majority of the Planning Board supported, would amend the Town Code by adding a definition for “vacation cottage”: a one- or two-family residential structure that is offered for rent or use for a period of less than a month. It further would specify that a vacation cottage is a permitted use in the primary residential districts, provided the maximum overnight occupancy does not exceed 14 people.

The language also includes a paragraph that is being called an “optional standard,” which Mr. Gallop characterized as a separate proposal from the rest of the language to provide a “conditional use option.” As currently written, this standard would allow a vacation cottage to exceed the 14-person maximum overnight occupancy capacity if it were built on a lot of at least 80,000 square feet. A majority of the Board supported increasing that square footage and gave Town staff the discretion to decide an appropriate number.

A motion made by Mr. Neal to draft a ZTA in line with the 11/19/18 Owens correspondence was approved by Mr. McGraw and Mr. Neal—and, belatedly, by Ms. Morey, in order to give them a majority.

Ms. Morey then made a motion to draft a ZTA in line with the Owens correspondence that also included a house-size restriction of a maximum of 5,000 square feet. Mr. McGraw and Mr. Basilone joined Ms. Morey in approving the motion. Both Mr. Ward and Mr. Neal expressed strong opposition to the house-size reduction.

The new Owens language clearly caught the professor’s cousin, as well as the public, by surprise.

“This is the first I’ve heard of it,” Mr. Ward said. “I’ve talked to David numerous times, as recently as Saturday afternoon,” and he didn’t mention it.

Mr. Ward seemed both frustrated and dismayed by this turn of events. Frankly, The Beacon believes he deserved more respectful consideration from the Town Attorney and Town Planning Director than he received—as did the other four Board members. But Mr. Ward, in particular, invested a lot of time and energy in exploring and advocating on behalf of the septic-use option, which the late Mr. Wyder also supported.

Both Mr. Gallop and Mr. Haskett should have made an effort to contact Mr. Ward by telephone to advise him of the new ZTA language, which Professor Owens purportedly drafted. Mr. Ward should have been given time to consult with his cousin, who has been an influential, if absent party to the discussions about high-occupancy houses in town for at least the past three months. Instead, he was blindsided.

The Beacon is concerned that the thoughtful months-long deliberations about the very important issues of growth, development, and population density in Southern Shores seem to have been resolved, at least for now, by eleventh-hour maneuvering and Ah-ha! moments.

PLANNING BOARD APPLICANTS

The Beacon interviewed Planning Board applicants, Mr. Lawler and Mr. DiBernardo. Mr. Regan did not return a telephone message left by The Beacon yesterday.

Mr. Lawler said he is a proponent for “slow growth,” and he has always “paid attention” to the environment and water quality. He lived in Corolla from 1977-87 in a house he built himself and moved to Southern Shores, which he called “a place for family,” after the northern beaches began to “deteriorate quickly.” He has extensive experience with water- and wastewater-treatment projects. He is also on the Chicahauk Property Owners Assn., serving as its treasurer.

Mr. DiBernardo served on the Southern Shores Vegetation Board/Committee that developed a vegetation-preservation ordinance for the town. This work came out of an N.C. State University study, but, unfortunately, did not get the support of then-Mayor Don Smith. Mr. DiBernardo has been vice-chairperson of the Southern Shores Historical Landmark Commission since its inception and was recently reappointed to another term.

Mr. Regan’s application indicates he spent more than 30 years in the food industry, and he holds a bachelor’s degree from the New Jersey Institute of Technology.

Both Mr. Lawler and Mr. DiBernardo also have bachelor’s degrees. Mr. Lawler has a master’s degree in marine science.

Ann G. Sjoerdsma, 1/8/19

A month after a luxurious oceanfront home in Southern Shores was spray-painted with obscene graffiti, Town police have made no arrests, but they have identified a “possible lead,” according to the investigating officer.

“Nothing has panned out so far,” Southern Shores Police Sgt. George M. Farrow told The Beacon Saturday about the ongoing vandalism investigation. But, the officer said, “The department is following up on a possible suspect lead.”

The police are trying to get the suspect “to come in,” Sgt. Farrow said.

The Beacon reported Dec. 6, 2018 on the graffiti that occurred at 64 Ocean Blvd., according to police, during the night of Dec. 4-5. It consisted of the word “HOLE” being painted beneath the word “GLORY,” which appears on a house sign above the driveway, and a sketch of male genitalia. The “GLORY” sign is clearly visible from the road.

According to Sgt. Farrow’s police-incident report, which The Beacon obtained from the officer Dec. 13, similar obscene graffiti was spray-painted on the concrete walkway at the Southern Shores Civic Assn. beach access that adjoins 62 Ocean Blvd. Sgt. Farrow did not give The Beacon the photographs that accompany the report, but he did describe the drawings as “crude.”

As reported by The Beacon Dec. 13, contractor Allan Hutton, who built the house at 62 Ocean Blvd. and has a crew working on the house at 64A Ocean Blvd., discovered the vandalism the morning of Dec. 5 and called Town Manager Peter Rascoe, with whom he is friendly, Sgt. Farrow said Saturday. Mr. Rascoe then notified Police Chief David Kole, who, in turn, contacted Sgt. Farrow.

This sequence of events is recorded in Sgt. Farrow’s police report, which also records a 7:45 a.m. incident-report time. The Southern Shores Town Hall and police station do not open for business weekdays until 8:30 a.m. A voice recording on the police station telephone line, however, provides a telephone number for members of the public to reach an on-duty officer.

HOMEOWNER HAD SURVEILLANCE; GRAFFITI UNRELATED TO BEACON

I met Sgt. Farrow at the Southern Shores police station on Dec. 13 at 3 p.m. for a pre-arranged interview.

I had encountered the sergeant the previous day during a visit I made to the police station to request copies of the police reports for the vandalism incident and for a related false trespassing report filed against me. He said he had planned to call me to ask me to come in. We made an appointment.

During the course of the half-hour meeting I had with Sgt. Farrow, he informed me that the homeowners of 62 Ocean Blvd. had operational surveillance at the house, and he had seen a tape of the vandalism being committed.

Sgt. Farrow asked me to keep our discussion confidential, and I honored that request. On Saturday, however, during what I informed him was an inquiry on behalf of Beacon readers, he referred to the surveillance equipment.

Because of this telephone exchange, I no longer feel that I must withhold the existence of the surveillance videotape. I will continue, however, not to report details about the person or persons that Sgt. Farrow told me Dec. 13 he had seen on the tape.

Both Southern Shores Town Councilman Jim Conners and attorney Starkey Sharp, who represents 62 Ocean Blvd. homeowner Steven Love in a matter pertaining to the adjacent vacant lot at 64 Ocean Blvd., which Mr. Love also owns, have sought in public meetings to link the vandalism with this blog. (See The Beacon, 12/13/18, and 12/20/18.)

Both surely knew about the surveillance videotape and what—or, more precisely, who— was on it.

Before the night of Dec. 4-5, The Beacon’s blog reports were focused on SAGA’s proposed “mini-hotel” developments at 98 and 134 Ocean Blvd. I did not bring up the properties at 62, 64, and 64A Ocean Blvd. until after the vandalism occurred.

On Dec. 7, 2018, I published “THE SAGA OF AN ARCHITECT: COUNCILMAN CHRIS NASON AND HIS DESIGNS ON THE SOUTHERN SHORES OCEANFRONT; And What About That 50-Foot-Wide Lot?”

The 50-foot-wide lot between the large houses at 62 and 64A Ocean Blvd.—both of which were designed by architect and Town Councilman Christopher Nason—is a “nonconforming” lot because it does not conform to the Town’s minimum required lot width of 100 feet. According to public record, Mr. Nason is the architect of a 3,600+-square-foot house that Mr. Love would like to build on the narrow vacant lot between the other two houses he designed. (See photo of the site above, taken Dec. 6.)

In 2018, the Town Planning Board and the Town Council grappled over a period of months with revising the Town Code ordinance on nonconforming lots to ensure that development of 50-foot-wide lots is curtailed. That Mr. Nason did not disclose the financial interest he has in the nonconforming lot at 64 Ocean Blvd. and voted on the zoning text amendment, ZTA 18-07, that was proposed to change the Code, was of great concern to The Beacon.

The Beacon’s Dec. 7 blog details Mr. Nason’s professional involvement with the properties at 62, 64, and 64A Ocean Blvd. It is based upon my research in the Town Planning Dept. of public records that any citizen may access and peruse for any reason whatsoever.

On Saturday, I asked Sgt. Farrow if he had found in his criminal investigation of the vandalism at 62 Ocean Blvd. that the graffiti had anything to do with The Beacon, in particular, that the suspected perpetrators had been following this blog.

He answered: “No. I haven’t found that to be the case.”

THE TRESPASS ALLEGATION AGAINST ME

On Dec. 6, the day before I published my “SAGA of an Architect” blog, “someone” falsely reported me to the Southern Shores police for trespassing on the property at 62 Ocean Blvd. which, unbeknownst to me, had been vandalized at least 32 hours earlier.

At 3 p.m. that day, I took a photograph of the nonconforming lot at 64 Ocean Blvd. (see above), so I would have artwork to run with my “SAGA of an Architect” blog the next day. I stayed in the public right of way in front of the properties while I took photos and left the site at 3:15 p.m.

I was stunned and angry when two Southern Shores police officers knocked on the front door of my residence at 4:36 p.m. and asked me if I had been at 63 Ocean Blvd.—the officer’s error—taking a photograph.

I recorded what transpired between Officer Jeremy Hemilright, the policeman who conducted the visit, and me in a blog that I wrote and posted immediately after the two officers left. (See 12/6/18: POLICE PAY ME A VISIT: REPORT IS HARASSMENT BY RED-ROOF HOMEOWNER AT 62 OCEAN BLVD.)

I began to put things together differently than the way I reported them in that blog after I met Dec. 13 with Sgt. Farrow. While discussing with him how I “had been in the wrong place at the wrong time,” he referred to how I had been looking at Town permit files for the three properties a day before the vandalism occurred.

This research was for my blog about Councilman Nason. I was seeking to confirm Mr. Nason’s relationship with the homeowners at 62, 64, and 64A Ocean Blvd. and to obtain dates for his architectural work in their behalf.

On Saturday, I finally asked Sgt. Farrow how he knew that I had been there, looking in permit files, and he replied: “The Town Manager advised me since I was working on the case.” When I asked how Mr. Rascoe had contacted him, he did not answer specifically, saying that my activity was “on the grapevine.”

I had no communication with Mr. Rascoe on Monday, Dec. 3. I saw him pass by the door to the conference room that I used for my file research, but he did not look my way.

Did the police conceal the surveillance videotape from Mr. Rascoe?

Does Mr. Rascoe stalk—or monitor, if you prefer—all citizens who exercise their right to see public records, which, as the North Carolina statute on public records makes clear, are “the property of the people,” or just journalists?

While at Town Hall on Dec. 3, I learned for the first time that Mr. Love had applied for a CAMA permit to build on the 50-foot-wide lot at 64 Ocean Blvd.

I spoke with Town Permit Officer Dabni Shelton about Mr. Love’s legal ability to build there, in light of the recently passed nonconforming lots ordinance (ZTA 18-07), which I believed prevented him from doing so. Ms. Shelton advised me to email Deputy Town Manager/Planning Director Wes Haskett, who was attending training out of town all week, about my concerns, and I did so.

Since my Dec. 13 meeting with Sgt. Farrow, I have done further reporting on the circumstances surrounding the call implicating me in a trespass. I will disclose what I have learned at a later date.

The Beacon’s informal advisory board will be meeting soon to discuss what actions to take on this matter, going forward.

Ann G. Sjoerdsma, 1/7/19

[1/4/19 UPDATE: The Town is calling the adjournment of the Planning Board’s Wednesday meeting a “recess” and notifying the public that the meeting will “resume” at 5 p.m. Monday.]

A power outage in the Pitts Center last night ended the Town Planning Board’s special meeting on “large-house” regulations just as Southern Shores builder and homeowner Matt Neal was shedding some light on what has been called the Outer Banks Home Builders Assn.’s (OBHBA) “option.”

When the room went dark, so did an overhead projection of an outline describing the OBHBA’s suggestion to create new zoning in Southern Shores for “High Occupancy Dwellings.”

Although encouraged by some in the larger-than-usual audience to continue speaking from the shadows—there was some light—Mr. Neal stepped aside while Deputy Town Manager/Town Planning Director Wes Haskett went to investigate the problem. When Mr. Haskett reported no hope of the electricity being restored, the Planning Board rescheduled the special meeting to 5 p.m., Monday, and adjourned.

A meeting that Board Vice-Chairperson Elizabeth Morey had predicted in her opening remarks would last two hours, thus, terminated after little more than a half-hour. Mr. Neal, who was 2018 president of the OBHBA, was the only member of the public heard—albeit briefly.

Ms. Morey has been chairing Planning Board meetings since the November death of Chairperson Glenn Wyder. After the Town Council appoints someone at its Jan. 8 meeting to serve out Mr. Wyder’s unexpired term, the five regular voting Board members will elect a new chairperson and vice-chairperson.

Last night, alternate Michael Basilone sat as a full-voting member of the Board, just as he did at the Dec. 17 meeting. Alternate Leo Holland, who was scheduled to sit on the Board, according to the rotation of alternates, was out of town and, according to Mr. Haskett, will be out of town on Monday, as well.

DESPITE OUTAGE, SOME BUSINESS OCCURRED   

In the time they had, the five Board members made lightning-quick work of some suggestions they have received, or have been directed to consider, regarding new regulations to control high-occupancy large houses. (The Beacon’s preference is to refer to high-occupancy houses, rather than “large” houses, but the Town most often refers to house size, not occupancy.)

Member Andy Ward took the lead in the Board’s discussion by referring to the Town Council’s motion, unanimously passed Dec. 11, that the Board consider draft ZTA 18-10, which, significantly, creates an oceanfront overlay residential district and then imposes regulations on structures within it, as well as other “zoning requirements” based on different approaches.

(You may access the text of ZTA 18-10 here: https://www.southernshores-nc.gov/wp-content/uploads/2018/12/ZTA-18-10-Large-StructuresRegulation-HREMv001-2018.12.05-1.pdf.)

Among the approaches suggested by the Town Council was “regulating number of water use fixtures in a residence (using water conversion measures to control occupancy).”

Of this option, Mr. Ward said, “I’m not sure what this is designed to do other than to befuddle enforcement.”

Member David Neal, who is a builder and the father of Matt Neal, agreed, saying the approach is “totally confusing and overkill.” Member Joe McGraw, another builder, agreed with Mr. Neal, and Ms. Morey concluded, “Check that one off our list.”

The Board then decided to veer away from the Town Council’s directive to consider the applicability to Southern Shores of an ordinance proposed by the Town of Duck to “establish standards for the scale of residential development.”

A draft of this ordinance was in the Planning Board’s “meeting packet” because Southern Shores Town Attorney Ben Gallop’s law firm colleague Robert B. Hobbs, Jr., represents Duck, and Mr. Gallop has been working with him.

(You may access the ordinance here: https://www.southernshores-nc.gov/wp-content/uploads/2018/12/12-31-18-Town-of-Duck-Large-Homes.pdf.)

The discussion on Duck’s proposed ordinance sounded much like the discussion on water-use fixtures. Mr. Ward said, “I don’t see a whole lot there that would pertain to us—as far as what we’re trying to do.”

Mr. David Neal then observed, “I think that we’re a different animal than Duck. . . .  Southern Shores is a monolithic oceanfront, Duck is not. I don’t think Duck’s proposal is appropriate for our situation.”

Mr. Basilone added: “I’m not sure it fits what we need.”

The Beacon appreciates Mr. Neal’s description of the Southern Shores oceanfront as “monolithic.” Rather than this being a pejorative term, The Beacon believes it goes to the heart of what makes Southern Shores unique on the Outer Banks: From its founding in the 1940s, Southern Shores has been a tightly controlled, planned community and, as of 1979, town. It is not a patchwork quilt of development; at least, it has not been, historically.

Having dispensed with the Duck ordinance, the Board returned to the Dec. 11 Town Council motion to consider “regulating use of residential properties for rental,” which the OBHBA’s option does.

The Board was able to establish through questions asked of Matt Neal that its use option “came out of the legislative committee of the Outer Banks Home Builders Assn.” and that this committee had legal advice.

Then the lights went out.

(This is the latest version of the OBHBA’s option on the Town website: https://www.southernshores-nc.gov/wp-content/uploads/2018/12/12-17-18-Homebuilders-Large-Home-Suggestions.pdf.)

MY BOTTOM LINE AND SUPPORT OF SEPTIC-USE LIMIT

I was prepared to speak publicly about the “large-house” problem in Southern Shores, which became acute when SAGA Construction and Development secured CAMA permits for its 12-bedroom, 17-parking-space, 24-person-septic-capacity “mini-hotels” at 98 and 134 Ocean Blvd. These commercial properties are a gross aberration in Southern Shores’s low-density residential neighborhood on the oceanfront and elsewhere in town.

The main points I would have made are these:

KEEP IT SIMPLE.

DON’T REGULATE ANY MORE THAN YOU HAVE TO, in order to restore the status quo that Southern Shores had before the N.C. General Assembly took away in June 2015 the town’s power to limit the number of bedrooms. From October 2001 until June 2015, the Town kept a lid on high-occupancy dwellings by restricting the number of bedrooms in a single-family home to seven and the septic-use capacity to 14. That approach seemed to work.

I frankly don’t see how the Outer Banks Home Builders Assn.’s idea of creating a “use” called a high-occupancy dwelling serves the Town’s goal of limiting occupancy in houses and, thereby, preserving Southern Shores’s unique low-density residential neighborhoods. How do you keep the uncrowded beaches that draw vacationers to Southern Shores uncrowded if you permit high-occupancy houses?

Southern Shores was built gradually—over decades—by people whose vision was to preserve open spaces and minimize congestion caused by too much population. High-occupancy dwellings run counter to that vision and to what a majority of Town property owners seem to want.

At the December 2018 Planning Board meeting, one member of the public suggested that the Planning Board (and the Town) hadn’t identified the purpose of any additional Town regulation: Is it to restrict occupancy? To limit house size? To preserve low-density?

I have no such confusion, nor do I think have Planning Board members. The purpose is to limit occupancy of single-family dwellings, and, as the SAGA houses prove, that cannot be accomplished simply by limiting house size.

I support Mr. Ward’s efforts to limit occupancy in single-family dwellings by limiting septic-use capacity to 14 persons—which is what the Town law was before the N.C. General Assembly acted, and the Town passed the maximum house size ordinance.

Southern Shores can—and should—enact this restriction without reference to the use of the dwelling. It does not matter whether the single-family dwelling is used exclusively by the homeowners or is rented as a vacation rental, as defined by the N.C. Vacation Rental Act. All that matters is that the dwelling is in Southern Shores.

I’ll have more to say about this approach and simple amendments to the Town Code after Monday’s meeting. Please try to attend.

Ann G. Sjoerdsma, 1/3/19

What is a “single-family dwelling” in Southern Shores? How does the Town Code define a “single-family dwelling” for purposes of its single-family residential districts?

These are two of the many questions that the Town Planning Board should take up during its special meeting Wednesday, at 5:30 p.m., in the Pitts Center, when it continues its discussion of regulating high-occupancy, large homes in Southern Shores. The Beacon plans to raise the “single-family” issue in public comments during the meeting.

During the past year, I have had occasion to consult the Code definition of single-family dwelling and have been flummoxed by the awkward and heavy lawyering hand that I found evident in some of the wording. When I connect the dots, I reveal a definition that I consider both nonsensical and damaging—certainly not what homeowners would believe is the case. (See below.)

Most obviously, I consulted this definition in the context of SAGA’s proposed 12-bedroom, 17-parking-space, 24-person-septic capacity, nearly 6,000-square-foot “mini-hotels,” which, if pending litigation is unsuccessful, will be built in the RS-1 single-family residential district on the oceanfront.

As The Beacon has reported, the Southern Shores Civic Assn. objected to the Town’s issuance of CAMA permits to SAGA on the grounds that its mini-hotels are not single-family dwellings and should not be permitted in the RS-1 residential district. The SSCA had standing to be heard on the permits because it owns beach accesses adjacent to the two SAGA properties, at 98 and 134 Ocean Blvd.

Town Permit Officer Dabni Shelton summarily dismissed the SSCA’s objections, and the Civil Association elected not to appeal the permits’ issuance. Board members have told The Beacon that they did not wish to spend SSCA monies on legal expenses.

Here’s the rub, folks: Although the Town Code defines single-family dwelling, in section 36-57, in a clear and unambiguous manner, the Code definition of “family,” which you must look up in order to interpret and apply this definition, is severely compromised and confusing. The Town Council amended the definition of “family” on Jan. 22, 2016, when it enacted the 6,000-square-foot maximum single-family dwelling size.

The Beacon very much doubts that the three Town Council members who approved the change in this definition had any awareness of doing so. And because there is no video or voice recording of the Jan. 22, 2016 meeting—according to Town Clerk Sheila Kane, because it was a “special” meeting—The Beacon cannot determine what was said or not said by Town Attorney Ben Gallop when he explained the various “large-house” zoning text amendments that he had drafted for the Town Council to consider.

The Beacon has confirmed that all of the ZTAs contained the amendment to the definition of family. If they performed their jobs conscientiously, all of the Council members should have been familiar with the wording of each ZTA, including the “family” amendment. Because of the holidays, however, The Beacon has not had the opportunity to contact them.

I can tell you that I attended the Jan. 22, 2016 meeting and elected not to speak publicly because I had not had time to study the language of the ZTAs. I do not recall any discussion about the family definition amendment, and the meeting minutes reveal none.

“SINGLE FAMILY DWELLING” AS DEFINED BY TOWN CODE

A “dwelling, single-family” is defined in Town Code sec. 36-57 as “a detached building designed for or occupied exclusively by one family.” (This is from the definitions section of Chapter 36, which is the zoning chapter.)

“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.”

Before Jan. 22, 2016, when Town Councilmen Leo Holland, Fred Newberry, and Gary McDonald approved the zoning text amendment on maximum house size, the Code defined a family without the italicized reference to the N.C. Vacation Rental Act. Therefore, a single-family dwelling was a detached building designed for or occupied exclusively by an unlimited number of persons, all of whom were related by blood or marriage, or, lacking such familial bonds, by no more than five persons.

I’ve been told by Town staff that the Town sought to discourage boarding houses with this definition of family.

This language is not original. In fact, it is standard, based, as best as I can tell from my research to date, on the N.C. Residential Code, which is a model code of regulations that was based upon the International Residential Code for One- and Two-Family Dwellings, which was promulgated by the International Code Council. The N.C. Building Code Council is the state equivalent of the ICC.

The Kitty Hawk Town Code currently has the same definitions of “dwelling, single-family” and “family” as the Southern Shores Code—absent the N.C. Vacation Rental Act reference.

So far as I can tell, neither Ben Gallop, who has represented Southern Shores since 2008, nor his law-firm colleague Robert B. Hobbs, Jr., who has been the Town Attorney for Duck since 2008, has ever been Town Attorney for Kitty Hawk. Their firm, Hornthal, Riley, Ellis & Maland, has represented Nags Head, but does not now claim the town as a client on its website. Attorney Thomas L. White, Jr., now retired from the firm, represented Nags Head from 1971 to 2001 and Southern Shores from 1979 to 2001, according to his online biography.

EFFECT OF VACATION RENTAL ACT REFERENCE: ABSURDITY

When I asked Town Permit Officer Dabni Shelton in October why the SSCA’s opposition to SAGA’s proposed mini-hotels was not sufficient, she said that the structures were covered by the Vacation Rental Act, which effectively excepted them from the Town’s single-family dwelling requirement.

For me, this interpretation is a mind-bender.

You’ll find the N.C. Vacation Rental Act, which was enacted in 1999, at https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_42a.html.

Any time I’ve raised the point with staff in the Town Planning Dept. that rental machines like SAGA’s proposed structures are not single-family dwellings, they have told me that they are covered by the Vacation Rental Act. Their interpretation eludes me.

The N.C. Vacation Rental Act is all about leases, landlord-tenant-real estate broker duties/obligations/rights, eviction, evacuation, and such. The N.C. General Assembly passed this act, as it states in its purpose section, to regulate “the competing interests of landlords, real estate brokers, and tenants.”

As a N.C. vacation rental property owner since 1991, I have consulted the Vacation Rental Act now and then, but not often because it’s rarely necessary. I have an agent, and the leases that vacationers sign with my agent include the provisions of the Vacation Rental Act.

The act is all about contractual matters. The only mention of single-family dwellings or homes in the Vacation Rental Act appears in its definitions section, which is N.C. General Statutes sec. 42A-4(2). The act defines:

A “residential property” as “an apartment, condominium, single-family home, townhouse, cottage, or other property that is devoted to residential use or occupancy by one or more persons for a definite or indefinite period”; and

A “vacation rental” as “the rental of residential property for vacation . . . for fewer than 90 days by a person who has a place of permanent residence to which he or she intends to return.”

Somehow, the mere insertion on Jan. 22, 2016 of the phrase, “the dwelling unit is being used as a vacation rental under the N.C. Vacation Rental Act, etc.,” into the family definition in Southern Shores has resulted in the Town recognizing any vacation rental house that is occupied by “one or more persons,” regardless of the relationships among them, as a single-family dwelling. This one phrase has succeeded in knocking the “family” out of “single-family.”

It also has created the nonsensical result that those of us who live in a single-family dwelling in the RS-1 district can live with more than four unrelated people—provided we rent the house out to vacationers every now and then, qualifying it as a vacation rental.

This is ridiculous.

The “intent” behind establishing the RS-1 single-family residential district is clearly set forth in Town Code sec. 36-202, to wit:

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

Similar language appears in the Town’s land-use plan. To use the Vacation Rental Act to circumvent the intent, purpose, and scope of the Town’s low-density/low-impact zoning plan is beyond ridiculous. It’s outrageous.

The pre-Jan. 22, 2016 definition of “family” in the Town Code needs to be restored—and frankly, better worded—by the Planning Board and the Town Council and observed by staff in the Planning Dept.

Borrowing from Nags Head’s definition of a family (NH Code, sec. 48-7), The Beacon would rewrite the family definition, for purposes of defining a single-family dwelling, as “one or more persons related by blood, adoption, marriage or law [who are] occupying a dwelling together. A family shall not contain more than five unrelated persons.”

I would like to know why Mr. Gallop thought it was imperative to change this definition and why he did not make a point—if, indeed, he did not, as I recall—of telling Town Council members that he had changed it and what the effect of the change would be.

The Town Attorney has said on more than one occasion that “The Biltmore House is a single-family home.” Perhaps, in the era of robber barons, when the wealthy considered themselves America’s royalty and flaunted their often corruptly gained riches.

Not only was the magnificent 19^th century Vanderbilt estate home built some 10-25 years before the earliest U.S. zoning laws—and on a land tract that, I hazard to guess, was as large as the entire Outer Banks—the single spectacularly wealthy family that lived there did not rent out rooms to vacationing transients. And its members would never have condoned a tiki bar.

Happy New Year, everyone.

Ann G. Sjoerdsma, 12/31/18

(252) 473-3444 . . . (252) 473-3444 is the number you call to reach the Dare Central Communications Center to report a non-emergency police matter, such as a violation of the Southern Shores noise ordinance.  A Southern Shores police officer will be dispatched to the scene of the alleged offense. Dare Central 911 is the number you call for emergencies. You need not identify yourself when you call.

In The Beacon’s last blog, I reported that I observed SAGA Construction & Development violating the Southern Shores noise ordinance on Dec. 23, by having workers engage in construction activities at 98 Ocean Blvd. on a Sunday. (See The Beacon’s blog, 12/23/18.)

The noise ordinance, which is section 22-3 of the Town Code, prohibits the erection, demolition, alteration, or repair of “any building” on Sundays or between the hours of 8 p.m. and 7 a.m. on weekdays and Saturdays, except in a case of “urgent necessity” and then only with a temporary permit. (Sec. 22-3(15))

I could have reported SAGA’s violation to the police by calling the Dare Central number printed above. I elected not to, as a courtesy-warning, although the Kill Devil Hills developer surely knows, or should know, the local law.

Instead, I informed the construction workers on-site of their offense. I also reported the offense to Deputy Town Manager/Planning Director Wes Haskett yesterday–the day Town Hall reopened after the Christmas break. Mr. Haskett promptly responded to my email, telling me that he would speak to the contractor. If I observe construction activity at 98 Ocean Blvd. again on Sunday, I will definitely call Dare Central and would ask you to do the same. [Update: See my reply to a comment about this blog post.]

All violations of the Town noise ordinance are class 3 misdemeanors, punishable by a fine of not more than $500. (See Town Code sec. 1-6(b)(5).)

A few days after the SAGA incident, I was conversing with a Chicahauk resident about the no-Sunday construction ordinance—he had never heard of the restriction—and he brought up the problem of barking dogs. He had approached his neighbors about the frequent, continuous barking of their dogs, who keep him awake at night, and received no satisfaction. I suggested contacting the police, but he is loath to do so.

Our conversation led to this blog:

PROHIBITED LOUD NOISES IN SOUTHERN SHORES

The Southern Shores Town Code prohibits any “unreasonably loud noise in the town” and declares certain enumerated acts to be “loud, disturbing noises.” On the list of such noises, which is not meant to be exclusive, are the following, which The Beacon believes you are most likely to encounter in your community:

“The use of phonographs, loudspeakers or sound amplifying devices” (sec. 22-3(b)(3): If music is so loud “as to disturb persons in the vicinity,” then the person creating it may be committing a criminal offense. Call Dare Central.

“Loud animal noises” (sec. 22-3(b)(4): Most of us are willing to tolerate barking dogs every now and then, and the Town Code ordinance reflects our neighborliness. The ordinance prohibits “the keeping of any animal which, by causing frequent or long continued noise, shall disturb the comfort and repose of any person in the vicinity.” I think my Chicahauk friend has a good argument about the dogs barking all night in yards next to his.

“Grating, grinding, rattling noises” (sec. 22-3(b)(5): Any person who uses an automobile, motorcycle, or other vehicle in a manner so as to create “loud grating, grinding, rattling, or other noise,” or “squealing or screeching of tires,” or the propulsion of “rocks, gravel, or sand” violates the Town noise ordinance.

These are just three of the 15 expressly enumerated acts deemed to be legally actionable loud, disturbing noises in the Town Code, with the construction noise I previously mentioned being the 16th. Other prohibited noises include sounding horns or signal devices on vehicles; exhaust noises; mechanical devices using compressed air; and drums or devices for attracting attention to “any performance, show, sale, or display of merchandise.”

The noise ordinance of the first-ever Town Code, enacted in 1988, clearly shows an animus toward what I would call “commercial” noise, such as the “shouting or crying of peddlers or hawkers”—who, in my opinion, were quite charming and convenient in their day—“mechanical loudspeakers on trucks for advertising,” and the “delivery of commercial goods during certain hours.” (The first two raise First Amendment issues.)

Subsequent Town Councils have amended the noise ordinance to exempt noises associated with 1) the dredging of the canals and with 2) public beach nourishment projects approved by the Town.

In prohibiting “unreasonably loud noises,” the Town is exercising its municipal authority to regulate for the health, welfare, and safety of the public. This power is fundamental to a municipality’s governance. But a municipality cannot trample on the First Amendment rights, or any other constitutional rights, of individuals in exercising this power.

PUBLIC NUISANCES IN TOWN

Quite separate, but related conceptually, to the noise ordinance is the Town’s ordinance on nuisances, which you’ll find at Town Code sec. 22-39. Unlike noise offenses, however, public nuisances are civil matters, not criminal matters.

Civil penalties levied in Southern Shores for nuisance violations can be quite severe because each day that a violation continues is a separate violation. So, if you’re ordered to pay a civil penalty of $500 for a nuisance, you will have to pay an additional $500 for every day that the nuisance continues, unabated. (But, see the nuisance investigation process, below.)

It is the Town Manager, not the police, who initiates an investigation of a nuisance complaint, after receiving notice. (Sec. 22-40.)

Among the 13 nuisances enumerated in the Southern Shores ordinance are the following:

“Growth of weeds and grass” (sec. 22-39(1): A person cannot allow the “uncontrolled growth of noxious weeds or grass” to cause or threaten to cause a public hazard.

“Accumulations of animal or vegetable matter” (sec. 22-39(2)): These would be accumulations that are offensive “by virtue of odors or vapors, or by the inhabitation therein of rats, mice, snakes, or vermin of any kind,” such that they are “dangerous or prejudicial” to the public health.

“Accumulations of rubbish” (sec. 22-39(3)): Similarly, accumulations of rubbish, trash, or junk that threaten to cause or do cause a fire hazard, or stagnant water to accumulate, or the vermin listed above to take up habitation, are public nuisances.

“Conditions violating health department rules” (sec. 22-39(4): This is a catch-all provision. Any condition that is detrimental to the public health and violates county health-department rules is a public nuisance.

The ordinance goes on to cite burned or partially burned buildings that are unsightly or hazardous; storm- or erosion-damaged structures and resulting debris; the growth of trees and shrubs on canal banks that threaten to cause or do cause a hazard to boating public safety or to navigation; abandoned personal property; and damaged household contents and buildings, etc.

A condition causing obstruction of any public street, sidewalk, alley, or bridge in town is also defined as a public nuisance. That’s one to keep in mind when monitoring a construction site where vehicles spill out on to the road. (sec. 22-39(7))

Similarly, it is a criminal offense in Southern Shores for a person to “cause a condition” that blocks or damages public streets, sidewalks, alleys, and bridges in town. (Sec. 22-2) All public streets must be open for travel and free of unnecessary obstructions.

If the appropriate county health department or Town official determines after conducting an investigation that a condition constitutes a public nuisance, the Town Manager must notify in writing the person responsible for the condition(s) and order a prompt abatement within 15 days of his/her receipt of the written notice.

As I understand the civil-penalty provision in Town Code sec. 1-6(d)(3), it is only after the nuisance perpetrator fails, neglects, or refuses to abate or remove the nuisance-causing condition that the Town may issue a citation for the violation and assess the $500-a-day penalty.

Noise and nuisance laws are important for the preservation and protection of the public’s health, welfare, and safety, but they should be narrowly drawn, so as not to be oppressive. Although we live in a much busier and noisier town than we did 30 years ago when the Southern Shores laws were first enacted, we have not yet become immune to the damage caused by what they seek to prevent.

(Please forgive the multiple email notices you received for this blog. I had difficulty with posting a photograph, so I twice deleted the blog entry and reposted a photo. My original photo, which was clip art, didn’t take. My apologies.)

Ann G. Sjoerdsma, Dec. 28, 2018

The photograph above depicts construction laborers working today—a Sunday—at the house that SAGA Construction & Development is building at 98 Ocean Blvd., in direct violation of the Southern Shores Town Code noise ordinance’s prohibition against erecting, demolishing, repairing, etc., buildings on Sundays. The Beacon took the photograph at 2:35 p.m. today.

Sec. 22-3(b)(15) of the Town Code expressly states that construction work shall occur only between the hours of 7 a.m. and 8 p.m. on weekdays and Saturdays—no Sundays—unless a public emergency exists and the town permit officer issues a special permit.

There is no such emergency here. What there is, apparently, is SAGA’s desire to “outrun” pending litigation so that if the petitioner homeowners prevail in their argument that SAGA should not have received a CAMA permit to build on the site, the developer will be able to plead to the administrative law judge: “But, your honor, we’ve already built the house. It would be prohibitively expensive for us to tear it down.”

This is a common tactic used by builders engaged in zoning litigation. In building “at their own risk,” they are just following their attorneys’ advice and counting on judges’ sympathies.

The Beacon will be happy to tell the administrative law judge in this case that SAGA broke local law in order to rush to complete its construction. The photograph above is clearly dated and timed in The Beacon’s records.

While standing in the driveway at 99 Ocean Blvd., which is the property of petitioner Marvin Tignor, who gave me permission to be there, I engaged in a conversation with one of the construction workers, who stood across the street when I spoke with him. I advised him of the Town noise ordinance and asked him if the crew planned to work tomorrow and on Christmas Day. He replied yes.

The Beacon supposes that this is part of SAGA’s good-neighbor policy: to create construction noise on one of the most sacred days of the year for some of the people who live near 98 Ocean Blvd. The Town noise ordinance does not prohibit construction work on any named legal holidays, but again, The Beacon believes that the administrative law judge in the CAMA-permit case may be interested to know SAGA’s holiday schedule.

The Beacon cannot monitor all construction sites in Southern Shores to ensure that builders respect and observe the no-Sundays noise ordinance.

How many Southern Shores police officers drove past the construction site on busy Highway 12-Ocean Boulevard and did nothing to enforce the local ordinance?

I believe it is long past time for the Town Planning Board, in cooperation with the Town Planning Dept., to come up with a cost-effective method for enforcing important construction-related Town ordinances so that enforcement is not solely complaint-driven. Change is needed—now.

Ann G. Sjoerdsma, 12/23/18