The three-year terms of four Planning Board members, including those of Chairman Sam Williams and full member David Neal, and two alternate seats, expire June 30, according to documentation on the Town of Southern Shores website.

One of the two alternate positions has been vacant since April 3, when the Town Council appointed then-alternate Glenn Wyder to the Board to fill an unexpired term. The other position is held by Carlos Gomez.

The Town Code (sec. 24-24(a)) requires the five Planning Board members and two alternates to be appointed by the Town Council, for staggered terms of three years. It further requires the Town Council to fill vacancies occurring for reasons other than term expiration as they occur, for the period of the unexpired term.

The Town Council appointed Mr. Wyder to the Board during its regular April meeting, but failed to fill his vacated alternate seat for the remaining three months of his term. Alternates are non-voting members of the Planning Board who may be called upon to participate and vote on Board business in the absence of a regular member.

The Planning Board advises the Town Council by making recommendations on matters pertaining to the physical development of Southern Shores. It is the front-line watchdog or enforcer of the Town’s land-use plan, which supports “small low-density neighborhoods,” achieved by “single-family homes primarily on large lots.”

The Planning Board does not make law; the Town Council does.

Since April 1, 2014, the Planning Board has served in a dual capacity as the Town’s Board of Adjustment (BOA), whose decisions are subject to court appeal, not to Town Council approval. The BOA is a quasi-judicial body that has legal representation and conducts due-process hearings. (See Code sec. 36-365.)

Among its duties, the BOA has the power to grant variances from dimensional lot requirements, such as the side-setback variances that it granted during the past two years to Southern Shores property owners of 50-foot-wide nonconforming lots. (The Beacon has covered these cases extensively. See last month’s blog posts.)

According to the minutes of the Town Council’s April 1, 2014 meeting, Town Planner Wes Haskett recommended the abolition of the Town’s separate Board of Adjustment and its consolidation with the Planning Board, pursuant to action by the N.C. General Assembly that took effect in October 2013. The separate BOA reportedly had not met since Nov. 20, 2008.

Mayor Tom Bennett and Council members Jodi Hess, David Sanders, Larry Lawhon, and Leo Holland unanimously approved ZTA 14-01, which consolidated the two boards and specified the BOA’s powers, duties, hearing requirements, review standards, etc. This ZTA became Article XII of the Town Code’s Chapter 36, which is about zoning.

CHAIRMANSHIP

According to the Planning Board records online, Mr. Williams has been Board chairman since his July 1, 2009-June 30, 2012 term, reelected by the full Board each year.

The Town Code requires the Planning Board to elect a chairman and vice-chairman, subject to the approval of the Town Council, for one year; it also provides that a chairman may be reelected. (Sec. 24-24(c)) There are no term limits for the chairman or for any Planning Board members. Board member Joe McGraw is listed on the Town website as vice-chairman.

Mr. Neal is finishing his first term, as is Mr. Gomez, and The Beacon believes both should be reappointed. They are thoughtful, open-minded, and conscientious public servants with experience in the building industry.

Mr. Williams has served on the Board since March 25, 2008, the past nine years as chairman. While The Beacon believes Mr. Williams has been an asset to the Planning Board and the Town, and merits reappointment, we also believe that a change in chairmanship is overdue. We hope the other Planning Board members will consider the advantages of bringing a “fresh eye” to the chairmanship.

Municipal planning boards, whose members are usually appointed, not elected, should not be dominated by one individual, whose personal leadership style, land-use and development perspectives and priorities, and even personal and professional relationships within the municipality inevitably affect the Board’s business and its recommendations. Any one of the current Planning Board members, who include Elizabeth Morey in addition to Mssrs. Wyder, McGraw, and Neal, would do an excellent job as chairman and should be given an opportunity.

BOARD APPLICATION

I have often heard Town officials and staff lament that Town residents do not apply for Planning Board vacancies, and recruitment is difficult. Judging from my online research about municipal planning boards and boards of adjustment nationwide, this lament is common. I do not know how much actual recruitment is done in Southern Shores, but I will do my part here in digging up the application, which can be hard to find on the Town website. Here it is:

https://www.southernshores-nc.gov/wp-content/uploads/2012/05/7-22-15-Board-Volunteer-Application.pdf

Please consider serving your town, your neighbors, and the greater Outer Banks community by applying for a position. Regardless of how the Town Council handles the expiring terms of Mssrs. Williams, Neal, and Gomez, there is a vacant alternate seat, with no obvious candidate. You must submit your completed application to Town Manager Peter Rascoe, who will forward it to the Town Council.

DEBRIEFING

Finally, in light of the flurry of activity before the Board of Adjustment in recent years, The Beacon would like to suggest that the Planning Board take time to review and evaluate its performance as the BOA, as well as Article XII of Town Code Chapter 36, especially the language on the standard of review for granting a variance. Questions about “hardship” to a variance applicant proved somewhat confusing in hearings.

The Beacon also would like to know if the Planning Board, which unanimously recommended ZTA 14-01 to the Town Council, still believes the consolidation of the two boards is in the best interest of Southern Shores. Besides variance requests, the BOA is responsible for hearing appeals of certain administrative decisions.

Ann G. Sjoerdsma, June 2, 2018

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The revenues-expenses shortfall seen in preliminary figures for the Town of Southern Shores’ fiscal year 2018-19 budget has been eliminated with a transfer of nearly $300,000 from the Town’s capital projects savings account. The proposed budget, which Town Manager Peter Rascoe submitted on May 1 and which will be subject to public hearing on June 5, is now balanced at $6,355,402. You may access the budget at:

https://www.southernshores-nc.gov/town-government/administration/public-documents/final-fy2018-2019-proposed-operating-budget/

The public hearing will be held during the Town Council’s regular monthly meeting, which starts at 5:30 p.m. in the Pitts Center behind Town Hall. (See The Beacon, May 24, 2018, for other public hearings scheduled next Tuesday.)

The Council has until June 30 to adopt the recommended budget, with any changes it wishes to make, but it has been customary during Mayor Tom Bennett’s time in office for the Council to approve the budget, as submitted, immediately upon conclusion of the mandatory public hearing.

Transfer of Funds

The preliminary budget that Mr. Rascoe and Town Finance and Personnel Officer Bonnie M. Swain presented to the Town Council at an April 17 work session showed expenses exceeding income by $296,261.

Obligated by law to submit a balanced budget, Mr. Rascoe dealt with the shortfall chiefly through the transfer of $282,828 from the Capital Reserve Fund (CRF) to the General [Operating] Fund. According to Ms. Swain, with whom I met at Town Hall, the Capital Reserve Fund is a “savings account for capital projects.” The shortfall, she said, “was because of capital projects.”

As Ms. Swain explained, the $282,828 transferred from the CRF is made up of $20,000 “reserved for canal and channel maintenance” and $262,828 in “unassigned funds that can be spent at the Council’s discretion.”

At least $195,000 of the CRF’s unassigned funds came from monies allocated in FY 2017-18 for the Yaupon Trail capital project, which had to be postponed, and another $60,000 was money set aside for an update of the Town’s land-use plan, which did not occur, she said.

According to Ms. Swain, the Town has three different funds: The General Fund (GF), which covers nearly all of the budget expenses, including monies budgeted for capital improvements; the Capital Reserve Fund; and the Cemetery Fund. Both the GF and the CRF have unassigned fund balances, she said.

Although the exact amount in the GF unassigned fund will not be determined until FY 2017-18 ends, Ms. Swain estimated that its balance is about $3.4 million, just as it was a year ago. By Town resolution, a minimum of $1.75 million must be maintained in the GF unassigned fund balance, for emergencies related to natural disasters. In FY 2016-17, the GF unassigned fund had a balance of $5.5 million, said Ms. Swain, who expressed an interest in not disturbing this balance.

No Funds for Traffic Reduction

During his presentation of the proposed budget to the Town Council at its May 1 meeting, Mr. Rascoe made a point of saying that it “does not include any costs for traffic reduction.”

Later in the same meeting, Mr. Rascoe described a no-left-turn trial at the intersection of U.S. Hwy. 158 and South Dogwood Trail over the June 23-24 weekend, which the Town Council voted to reaffirm. Police Chief David Kole characterized this trial as a “one-shot deal.”  (See The Beacon, May 3, 2018.)

But is a budgetary inclusion of expenses for traffic reduction really necessary? Can’t unassigned fund monies be transferred to the General Fund to cover such costs as they were used to cover the expenses-revenues gap for the upcoming fiscal year?

According to an email from Ms. Swain, “Once the $282,828 is transferred from the CRF to the GF, the balance in the CRF will be $137,794 plus any interest it makes between now and June 30. Of that amount, $79,794 is unassigned.”

OPINION: That $79,794 would go a long way toward supporting a restriction of cut-through traffic in Southern Shores’ residential districts and enforcing that restriction for 10 weekends this summer. If more money were needed, the GF’s unassigned fund balance would be healthy enough to bear a tap. An added bonus: Less traffic on town roads means less wear-and-tear which, over time, means fewer repairs and improvements to be made.

Big-Ticket Items

The Beacon does not recall a preliminary Town budget ever showing a gap between revenues and expenses. It was clear from the data submitted by Mr. Rascoe in April that the Town’s projects and staff costs are expanding rapidly.

OPINION: The way the Town is spending money, it is easy to envision a property tax-rate increase in the near future. Property taxes account for $2,903,049 in FY 2018-19 revenues. The remaining revenue comes primarily from Southern Shores’ share of county occupancy, sales, and land-transfer taxes.

OPINION: The Beacon would like to see the Mayor and Town Council actually deliberate over how the Town can economize and cut expenses or direct the Town Manager to cut 5 to 10 percent of expenses. I have never seen the Town Council try to tighten the municipal belt. Even Ms. Swain spoke about the Town Council taking a “long, hard look” at the budget.

Southern Shores is only about four square miles in area. We are a town of about 2900 residents with a number of very active homeowner associations, next-to-no crime, and a small commercial district. Granted, our population surges during the vacation months, but does that surge justify such a hefty budget?

Here is a list of the major proposed expenses in the FY 2018-19 budget:

$1,007,163 for the Administration Dept., which includes only four full-time employees (Mr. Rascoe, Ms. Swain, the town clerk, and an administrative assistant), whose combined salaries and benefits, including those paid directly to them and paid in their behalf, equal $499,204. That’s nearly a half-million dollars spent on four employees, and it doesn’t include the costs incurred for their additional training, their wellness, and other initiatives.

The last page of the proposed line-item budget contains the Town’s “pay scale” for its employees as of July 1, 2018. Conspicuously missing from the listed positions is that of Town Manager. (See “Salaries” section below.)

The Town contributes to Medicare; health, life, and dental insurance; state retirement, and a 401k plan for each full-time employee in all of its departments. It also gives each $7800 “in lieu of benefits,” which the employee may use to buy health insurance for dependents, which the Town does not routinely provide, Ms. Swain explained, or simply pocket, if he or she chooses. The combined-department total for in-lieu-of benefits in FY 2018-19 is $187,200.

(You may be interested to know that the budget contains allocations of $61,500 for legal services, an amount that represents a $30,000 annual retainer plus $185/hour for the Town Attorney; and compensation for the mayor of $4,200/yr. and $3,600/yr. for the four Town Council members. Many Southern Shores residents still believe that Town officials serve as volunteers, without remuneration. They don’t receive much, but they do receive something.)

$1,692,147 for the Police Dept., which has a payroll of $1,248,019, including all salaries, benefits, employer expenses for employees, and other budgeted compensation. According to Ms. Swain, the Police Department has 12 full-time officers.

$1,123,597 for Streets, Bridges, and Canals, which includes $654,870 for infrastructure projects, whose priority is recommended by the Capital Infrastructure Improvement Plan Committee; and $250,000 to get started on a five-foot-wide multi-use walkway on East Dogwood Trail, extending from its intersection with North-South Dogwood trails to N.C. Hwy. 12.

Although the CIIP Committee made its recommendations at an April 4 meeting, the Town Council is not planning to consider them until its July 10 meeting, after it has approved the FY 2018-19 budget. See the last page of the following report for the CIIP’s priorities:

https://www.southernshores-nc.gov/wp-content/uploads/2018/04/CIIP-Apr-4-2018-Meeting-Minutes.pdf.

Mayor Bennett and Town Councilman Jim Conners co-chair the CIIP Committee.

$813,614 for Fire Contracted Service, which includes, according to Ms. Swain, $220,000 of an anticipated annual $440,000+ debt for a 15-year loan to pay for construction of a new fire station, which has been estimated will cost up to $6 million and has yet to be approved by the Town; and $545,914 for contracted fire protection, up from $481,925 in FY 2017-18, the difference being the costs for a new deputy fire chief.

Mr. Rascoe announced at the April budget work session that the town’s 10-year contract with the SSVFD will expire in 2019 and, therefore, need to be negotiated anew. You can anticipate the cost for the Fire Department’s services will increase.

$688,465 for Sanitation Services, which includes $176,690 for residential collection; $172,725 for a “landfill tipping fee”; $156,200 for recycling collection; and $130,000 for limb and branch removal.

$546,444 for the Public Works Dept., which includes $379,262 for salaries, benefits, and employer expenses, as described above, for five full-time employees and one part-timer.

Salaries

In an earlier blog about the Town budget, I published some data about employee salaries that I obtained from an informed Town source who did not wish to be identified. My information was accurate. The following is an excerpt of what I wrote:

“Town Manager Rascoe is slated to earn nearly $159,656 in salary in FY 2018-19. In FY 2011-12, Mr. Rascoe earned a salary of $112,238. His salary, therefore, has increased 42 percent in seven years.

“When town expenses for Medicare, health, life, and dental insurance, state retirement, and his 401k plan are added to Mr. Rascoe’s salary, the total cost to Southern Shores for his position in FY 2018-19 is nearly $207,000.”

To my knowledge, Mr. Rascoe is the highest paid town manager on the beach. Having a law degree and N.C. law license, as Mr. Rascoe does, is not prerequisite to doing a town manager’s job.

A member of the Town Council thought my reporting of this information, which is a matter of public record and should be readily available to all members of the public, was inappropriate and took me harshly to task—identifying me, without naming me—at the May 1 Council meeting for being “irresponsible.” He further accused me of “doxing” Town employees.

After the meeting, I approached Councilman Jim Conners and asked him what “doxing” means. I’d never heard the term. Mr. Conners refused to define it, telling me “to look it up.” He further declined to discuss what I perceived as his bullying of a journalist in his official capacity during a public meeting.

I looked up doxing. According to Wikipedia.com, doxing or doxxing is “the Internet-based practice of researching and broadcasting private or identifiable information about an individual or organization.”

There is nothing private about a public employee’s salary and benefits and what they cost the municipality and its taxpayers. Inflated salaries—as well as excessive perks, junkets, luxuries, etc.—are an issue for our local, state, and national governments, and taxpayers want and deserve accountability. (The Beacon had hoped to have by now a comparison of Southern Shores’ payroll with other towns on the beach, but this report has been delayed.)

I’ve lost track of the number of Cabinet-level and other senior U.S. officials who have flown pricey private jets, instead of traveling commercial, during President Trump’s and President Obama’s administrations.

Just last month, Dr. Robert Redfield Jr., the newly appointed chief of the U.S. Centers for Disease Control and Prevention, asked for and received a sizable pay cut after his annual salary, set to be $375,000, became a distraction. He reportedly was going to make $150,000 more per year than his predecessor had and quite a bit more than other high-level U.S. government officials, who work in public health and elsewhere.

On Dictionary,com, I read that “to dox” is to “search for and publish private or identifying information about a particular individual on the Internet, typically with malicious intent.”

Once again, I distinguish private from public information. As for malicious intent, I had none, but I’m left wondering if Mr. Conners did.

Ann G. Sjoerdsma, May 29, 2018; updated, June 3, 2018

 

 

The Town of Southern Shores announced today that the Town Council will hold hearings during its June 5 meeting on the zoning-law changes recommended by the Planning Board this week to restrict the creation and (re)development of nonconforming lots and to regulate the installation of small-cell wireless facilities in residential districts.

The Town also announced that the Town Council will hold a second reading of zoning text amendment (ZTA) 18-05, which would allow a “small” drive-through facility to operate on a lot that is less than 20,000 square feet, provided it fronts on U.S. Hwy. 158.

The Town previously gave notice that a public hearing on the proposed fiscal year 2018-19 budget would be held on June 5, too, making the agenda on the Town Council’s only meeting of the month a very heavy one. The session will be held in the Pitts Center, behind Town Hall, starting at 5:30 p.m.

The Beacon reported May 23 on the action taken by the Planning Board on ZTA 18-07 (nonconforming lots) and ZTA 18-06 (small cells). We also posted blogs on May 11 and 17 that examined concerns over the creation of nonconforming 50-foot-wide lots and the granting of side-yard setback variances on them. On May 14, we looked at the Town’s authority to regulate small cells, which are radio-access nodes installed on existing or new utility or other poles to improve cellular-phone coverage.

The Planning Board has recommended that the Town Code be amended to differentiate between “small” and “large” drive-through facilities, so that 5415 OBX LLC may open a drive-through ice cream shop on the commercial lot at 5415 N. Croatan Hwy., between Wells Fargo and First National banks, which is only 18,260 square feet.

The Town Code currently requires a drive-through facility to be located on a lot that is equal to or greater than 2.5 acres, in order to minimize traffic congestion.

The Beacon reported May 3 on the Town Council’s first reading of ZTA 18-05, which would establish the new two-sized drive-through facility distinction. It failed 3-1.

Ann G. Sjoerdsma, May 24, 2018

In an attempt to end an unwelcome recent trend in Southern Shores to redevelop 100-foot-wide lots on or near the oceanfront as two “nonconforming” 50-foot-wide lots, the Town has proposed amending the Zoning Ordinance to require the “recombination” of adjacent lots under the same ownership into a single conforming lot or multiple lots, if certain situations apply. The Town Planning Board will hold a public hearing on this zoning text amendment, ZTA 18-07, next Monday, at 5:30 p.m., in the Pitts Center.

Ironically, the Planning Board, in its capacity as the Town Board of Adjustment, is also scheduled Monday to hear a minimum side-setback variance request (from 15 feet to 12 feet) from applicant House Engineering, P.C., for development on a 50-foot-wide lot that property owner Richard M. White has numbered 85A Ocean Blvd.

Mr. White, of Elizabeth City, owns the adjacent property at 85 Ocean Blvd., which is a developed 100-foot-wide tract of land that is actually recorded as two 50-foot-wide lots.

In a May 11, 2018 blog about building on smaller nonconforming lots, The Beacon asked: Is Southern Shores going to start looking more like the beach towns to the south of it, where there are more houses on less land, and the population density is greater? Will ZTA 18-07 prevent that from happening?

The answer, we believe, is ZTA 18-07, if approved by the Planning Board as written, and then later enacted by the Town Council, will be a step in the right direction. But The Beacon does not believe that the proposed changes in the law go far enough to prevent the continued subdividing of previously combined-lot land tracts on both sides of Ocean Boulevard and elsewhere in the beach zone. We also find the ZTA difficult to interpret.

Such higher-density development has changed, and will continue to change, Southern Shores’ “existing community appearance and form,” which the Town Land-Use Plan seeks to preserve and which vacationers here choose over other Outer Banks environments. Our pristine, uncongested beaches are our siren song.

The Beacon also opposes establishing 10-foot side-yard setbacks for stand-alone existing 50-foot-wide lots, as ZTA 18-07 does. The editorial board is split in supporting the 12-foot side setbacks that the Board of Adjustment has been approving.

We do not wish to second-guess the drafters of ZTA 18-07, Town Attorney Ben Gallop and Town Planner and Deputy Town Manager Wes Haskett, who have been on the front lines of the nonconforming-lot controversy. We also believe that members of the Town Planning Board, led by Chairman Sam Williams, will robustly debate the amendment’s language and ask the right questions about its effect.

Nonetheless, we do offer a more detailed assessment of the ZTA at the end of this blog. But, first, as always, some background:

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What Is Nonconforming? 

According to the Town Code, a lot in the RS-1 single-family residential district, which encompasses the majority of Southern Shores, including the oceanside areas, is said to be “nonconforming” when it does not conform to legally mandated dimensional requirements. (See sec. 36-202(d)) Since the town’s 1979 incorporation and its subsequent enactment of a zoning ordinance, the minimum width for a lot has been 100 feet—a longtime norm—and the minimum size has been 20,000 square feet.

The required minimum yard setbacks—i.e., the distance between any construction on the subject lot and its property lines—are 25 feet for the front yard; 15 feet for the side yard; and 25 feet for the rear yard. Until 2000, the minimum side-yard setback was 10 feet.

The maximum allowable lot coverage is 30 percent, but, as The Beacon reported on April 12, and April 20, a majority on the Town Council is apparently seeking to redefine how residential lot coverage is calculated and, thereby, allow larger homes to be built. The Beacon believes that any relaxing of current lot-coverage restrictions would greatly benefit people who own nonconforming lots, but not the general community.

The Southern Shores Land-Use Plan clearly endorses “small low-density neighborhoods,” achieved by “single-family homes primarily on large lots.”

In the old pre-Town Zoning Ordinance Southern Shores, it was standard to plat and record a 100-foot-wide tract of land as two separate 50-foot-wide lots. Although Mr. Haskett has said that the number of single vacant 50-foot-wide lots in Southern Shores is only about 10, there is a much higher uncalculated number of 100-foot-wide lots that are actually two combined 50-foot-wide lots. (Full disclosure: I am a co-owner of at least two such properties, only one of which is developed. I also co-own land adjacent to such properties.)

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Variances for Side-Yard Setbacks 

If the Board of Adjustment hears Mr. White’s variance application for 85A Ocean Blvd., it will be the sixth such request that the Board has heard in the past two years for a nonconforming 50-foot-wide lot. It approved the previous five requests.

According to Dare County land records, Mr. White purchased the nonconforming lot from Boddie Noell Enterprises in 2014 for $25,000. The lot’s pre-2014 history is not readily available online, nor is Mr. White’s ownership history at 85 Ocean Blvd.

The Town Board of Adjustment—which is the Planning Board wearing a different hat—is a quasi-judicial body whose decisions are subject to review by the Dare County Superior Court, not by the Southern Shores Town Council. Its duties, powers, standards for granting a variance (not easy to understand!), etc., are spelled out in the Town Code, at sec. 36-360 to 36-369. I will refer to it henceforth as the BOA.

The discussions recorded in the minutes for all five of the BOA’s nonconforming-lot/side-setback variance hearings document considerable confusion on the part of its members and the public about what current Town Code zoning law on nonconforming lots requires. One look at current Code sec. 36-132(a), and you can see why ambiguity triumphs. It needs to be replaced, as ZTA 18-07 seeks to do.

Although each case that came before it was different, the BOA granted reductions from 15 feet to 12 feet to all, thus permitting the construction of 26-foot-wide houses on 50-foot-wide lots. Its approval on March 19, 2018 of side-setback variances on two 50-foot-wide lots that comprise the property at 155 Ocean Blvd. finally compelled the Town to act by drafting ZTA 18-07.

Since the 1950s, a modest bungalow that sits across both lots, numbered 9 and 10, has occupied 155 Ocean Blvd. This structure, as well as an accessory building, would have to be demolished before redevelopment could occur.

Variance applicant Gray Berryman, a former member of the Town Planning Board who represented property owner James A. Miller, succeeded in getting a setback variance for both lot 9, which he told the Board he intended to buy and develop, and lot 10, which he said his friend and associate, Olin Finch, planned to buy and develop. Thus, there would be two houses on a building site where there once was only one, and each would have a different owner.

The BOA approved both variance requests, 4-1, with Glenn Wyder, a current Planning Board member who was acting in March as an alternate, dissenting.

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Confusion, Not Harmony 

My research indicates that the first application heard by the BOA for a side-setback variance on a 50-foot-wide lot was filed by Steven D. Love and Kathleen Gorman, a married couple who live in Virginia. Mr. Love and Ms. Gorman bought and redeveloped 62 Ocean Blvd., which is on the oceanfront. Instead of a flat top, a large red-roofed white house that seemingly defies completion now sits on the site.

Reportedly to protect their investment, the Loves purchased an adjacent 50-foot-wide lot that was apparently part of a multiple-lot combination at 64 Ocean Blvd. from the SAGA construction company, which was planning to build a 16-bedroom wedding-destination inn next to their property. SAGA’s construction was derailed by the Town Council’s enactment of a 6,000-square-foot limit on “single family homes.” On May 16, 2016, the BOA unanimously approved the Loves’ side-setback variance of 12 feet.

(For the record, the Council approved the 6,000-square-foot size restriction, 3-2, with Mayor Tom Bennett and Councilman Christopher Nason, who is now mayor pro tem, voting against it. Current Councilman Jim Conners was not in office for this 2016 vote; his predecessor, Leo Holland, was.)

It now appears from online Dare County land records that a limited liability corporation known as 64A Ocean Blvd. LLC owns the 100-foot-wide lot at 64 Ocean Blvd., which is being developed, and the 50-foot-wide lot, which the parties may wish to call 64A Ocean Blvd., is owned by the Loves. If anyone can figure out what’s going on in this stretch of the oceanfront, please let The Beacon know.

The ownership history of 103 Ocean Blvd. similarly eludes easy tracking. Owners there managed to subdivide a 100-foot-wide lot into two 50-foot-wide nonconforming lots and build two new detached single family homes on each.

Before the BOA unanimously approved side-setback variances on March 20, 2017, for what was described as lot 5 at 103 Ocean Blvd., and on June 18, 2017, for what was described as lot 6, an old brick duplex sat centered on 103 Ocean Blvd.’s 100-foot-wide lot. The duplex had been there for decades.

According to BOA hearing minutes, Rick House of House Engineering, P.C., which you’ll recall is representing Mr. White on his application for a variance at 85A Ocean Blvd., also referred to the lots as 103A and 103B Ocean Blvd.

I’ve done enough online land-record research to know that the owners of lot 5, now said to be Jimmie and Dana Summerell, and the owners of lot 6, now represented as Gretchen Owens and Edwin Goldman, co-trustees of the Georgia J. Goldman Trust, were not strangers. They achieved their ownership interests, at least in part, by transferring each other property by gift, not sale.

The Beacon does not seek to deprive any individuals of their private-property rights. But zoning laws came into being to preserve and protect the general public health, safety, and welfare, not to advance individuals’ personal interests. By local law, the Southern Shores Planning Board is further charged with bringing about the “coordinated and harmonious development” of the town. (Town Code sec. 24-27(a)) Redevelopment is development.

On March 19, 2018, the Board of Adjustment finally opened Pandora’s box when it approved the two side-setback variances at 155 Ocean Blvd.

Although Chairman Williams said at this hearing that he didn’t personally favor these variances “as a matter of land use planning and policy,” he also said he was committed to performing his BOA duties and could be impartial. The current confusing town law on nonconforming lots had all BOA members asking questions.

(Note: I should have mentioned earlier that the minutes for the March 19 Planning Board/BOA meeting have not been approved yet by the Board. The Chairman has indicated that the Board will take them up at its June 18 meeting, and he has amendments to make to them.)

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ZTA 18-07

The Town’s intent in establishing the RS-1 district is clearly stated in the zoning law: “to provide for the low-density development of single-family detached dwellings in an environment [that] preserves sand dunes, coastal forests, wetlands and other unique natural features of the coastal area.” The district is intended to “promote . . . abundant open space, and low impact of development on the natural environment and adjacent land uses.” (Code sec. 36-202(a))

In their preamble to ZTA 18-07—the “whereas” section of the proposed ordinance—Mr. Gallop and Mr. Haskett reinforce this intent, stating that the 50-foot-wide lot “redevelopment” that has occurred is “inconsistent with the low density character of the Town,” which it seeks to maintain.

You may access the ZTA in its entirety here:

https://www.southernshores-nc.gov/wp-content/uploads/2018/05/ZTA-18-07-Nonconforming-Lots.pdf

They then go on to state—in a manner that would benefit from less legalese and more plain English—that a single-family dwelling may be built on any single nonconforming lot that met all legal requirements at the time of its creation and recording, provided no adjacent lot is under the “same ownership.” If such lots are 50 feet wide or less, the proposed law states, their owners “may use a side yard setback of ten (10) feet.”

I asked Mr. Haskett about the 10-foot setback, and he advised me by email that he and Mr. Gallop “drafted the ZTA to include 10 ft. side setback requirements based on the side setback requirements that were in effect until 2000 when the requirement was amended to 15 ft. . . . It is a starting point that may be subject to change following Planning Board consideration. Ultimately, the Town Council could decide to accept it, keep it at 15 ft., or decide on a different requirement.”

Ten-foot-wide side setbacks have not been the norm in Southern Shores for nearly 20 years. The Beacon believes that turning back the clock will only result in the crowding (density) that the Town seeks to prevent.

The crux of ZTA 18-07 concerns the recombination of all adjacent lots under the same ownership into a single lot or multiple lots if any of the following occur:

1)      Development is proposed upon land under the same ownership which includes one or more nonconforming lots adjacent to one or more other lots under the same ownership;

2)      Demolition or redevelopment exceeding 50% of an existing structure’s value is proposed and any portion of the existing structure or associated use is located on two or more lots under the same ownership; or

3)      Development is proposed of a new structure or use to be located on two or more lots under the same ownership.

I’m not fond of regulatory language that has to be read, reread, and reread, in order to be understood by both lawyers and laypeople alike, and I believe this language fits that description. If the Planning Board embraces the ZTA’s approach, I would encourage it to find a simpler way to state these “situations” and then to include a “catch-all” situation that would discourage property owners, both sellers and buyers, from finding a way around 1-3, above.

Does the ZTA cover the situation at 155 Ocean Blvd.? I’m not sure. If I own two adjacent 50-foot-wide lots on which I’ve built a house, and I sell each lot to a separate buyer without demolishing the house first, must I “recombine” the lots? I’m not proposing any development or demolition. I’m just selling.

The reality is that the lots that the ZTA proposes to recombine have already, for all intents and purposes, been combined. Longstanding street addresses evidence this. I believe the Town should think in terms of preventing property owners from un-combining.

The history of Southern Shores is that small lots that became nonconforming when the Town enacted its Zoning Ordinance were developed by owners as if they were combined with one another. Owners and their successors in interest should not be allowed now to un-combine them. Preserving the character and appeal of the Town, and protecting the Town’s development intentions, are more important than an individual property owner’s financial gain.

A better understanding of Southern Shores’s development history would be helpful in deciding the nonconforming-lot issues that have arisen. When the Kitty Hawk Land Co. called my father 50 years ago and offered to sell him an oceanfront lot, it did not give him the choice of buying only one of the two platted 50-foot-wide lots. The two lots were a package deal.

ZTA 18-07’s definition of “ownership” also needs some tweaking. Although the ZTA states that the definition of “same ownership” should be broadly construed and is not limited to the meanings listed—which is good—it would benefit from more specificity.

What constitutes a “group of persons,” as this phrase is used? How do people become grouped? Do two people constitute a group or are at least three required? This definition is an important one to nail because the ZTA makes same ownership of adjacent lots so critical.

Ann G. Sjoerdsma, May 17, 2018

 

The Town Council voted unanimously at its May 1 regular meeting to proceed with a no-left-turn trial at the intersection of U.S. Hwy. 158 and South Dogwood Trail over the June 23-24, 2018 weekend. The vote was 4-0, with Mayor Tom Bennett and Councilmen Fred Newberry, Gary McDonald, and Jim Conners voting in favor. Councilman Chris Nason was absent.

According to Town Manager Peter Rascoe, who described details of the traffic trial at the meeting, all motorists traveling east on Hwy. 158 from 8 a.m. until 6 p.m. on that June weekend will be prohibited from turning left on to South Dogwood Trail. This turn, which is at the second traffic light after the Wright Memorial Bridge, is routinely taken by arriving vacationers who seek to avoid gridlock on N.C. Hwy. 12, as they travel through Southern Shores and Duck to the Currituck beaches.

Residents along South Dogwood Trail, East Dogwood Trail, Hickory Trail, and Sea Oats Trail have complained for years about the safety hazards (motorists run stop signs and drive perilously close to pedestrians), inconvenience (residents have trouble exiting their driveways or getting anywhere on the roads by vehicle), and other impositions (e.g., motorists and their passengers exit their vehicles and urinate in yards) generated by cut-through traffic on these residential streets.

Since the advent of cell-phone navigation apps, such as Waze, which direct motorists away from congestion, the residential-street traffic flow has worsened and now typically comes to a standstill at the intersection of Sea Oats Trail with Duck Road (Hwy. 12), as well as the intersection of Hillcrest Drive and Duck Road.

(Full disclosure: I live on a heavily traveled section of Hickory Trail and have seen a tremendous increase in traffic during the past 20 years. Just 10 years ago, I was only concerned about the oppressive traffic on Hwy. 12!)

Mr. Rascoe said that “heavy barrels” will be placed in the left turn lane on Hwy. 158 and that two Southern Shores police officers will be posted at the intersection to ensure “zero-tolerance enforcement” on both weekend days. He also said the cost for this “exercise” would be $6200, $3400 for the barrels and $2800 for police overtime pay.

The no-left-turn trial could not occur without the cooperation of the N.C. Dept. of Transportation, which, Mr. Rascoe said, has an agreement with the town. The Town of Kitty Hawk, which has jurisdiction over the subject area of Hwy. 158, has deferred to Southern Shores and will not participate in the trial, he explained.

(It is important to understand that the Town of Southern Shores owns South Dogwood Trail and the vast majority of other residential roads within its boundaries. Some residential roads are private, but none is state-owned.)

After Mr. Rascoe’s presentation, Southern Shores Police Chief David Kole rose to inform the Council that he considers this trial a “one-time deal.”

“I do not have enough officers to do this through the summer,” Chief Kole said.

Both the police chief and Mr. Rascoe stressed that the town currently does not have the “manpower” to continue enforcing a left-turn prohibition at the Hwy. 158-South Dogwood Trail intersection this summer or to consider it next year. If it were to be repeated, new police hires would have to occur, according to Chief Kole.

While Mayor Bennett expressed concern about the “unintended consequences” of the left-turn prohibition, such as the possibility that traffic may divert to other residential streets in town, he supported the June 23-24 trial. The Mayor and all members of the Town Council agreed that this trial would give them data with which to assess the impact of any action they may take to minimize the cut-through traffic in town.

In public comments later, Glenn Wyder, who is president of the Chicahauk Homeowners Assn., expressed concern that this trial will “significantly affect Juniper and Trinitie Trails” in Chicahauk. Juniper Trail intersects with Hwy. 158 at the east end of the Marketplace; Trinitie Trail is a continuation of Juniper.

Mr. Wyder asked that the Town Council come up with a solution to the traffic that addresses both South Dogwood Trail and Juniper Trail.

In previous town discussions about the cut-through traffic on South Dogwood Trail, the Mayor and Town Council have been mindful of diversion to Juniper Trail and have stressed the need to control access to both roads on high-traffic summer weekends. When the Town Council passed its directive Sept. 5, 2017, for the no-left-turn trial, however, it elected to keep control and cost modest by focusing only on Dogwood Trail.

IN OTHER ACTION . . .

The Town Council did not approve a zoning ordinance change proposed by the Planning Board that would have allowed a drive-through business that fronts on U.S. Hwy 158 to operate on a lot less than 20,000 square feet. Current Town Code (sec. 36-57) requires all drive-through facilities in the C general commercial district, which includes the Marketplace, to be located on a lot equal to or greater than 2.5 acres.

The zoning change failed by a vote of 3-1, with Councilman Newberry dissenting. According to Town Attorney Ben Gallop, a unanimous decision was required in order for the zoning amendment, known as ZTA 18-05, to be enacted on its first reading. A second reading of ZTA 18-05 will be held at the Council’s June 5 meeting.

The Planning Board devised the new zoning plan, which categorizes drive-through facilities as either “small” or “large,” allowing both, in response to an application by Spiros Giannakopoulos to operate a drive-through ice-cream shop at 5415 N. Croatan Hwy. Mr. Giannakopoulos’s lot is located between Wells Fargo and First National banks on Hwy. 158 and is only 18,260 square feet, or 0.42 acres.

While the public hearing on ZTA 18-05 tended to focus on the desirability of having an ice-cream shop in the Marketplace and on the Elizabeth City resident-applicant’s business and community reputation, rather than on the proposed zoning changes, the Town Code amendment would apply to any lots smaller than 20,000 square feet that front on Hwy. 158.

Being burdened with a legal mind, I can readily see the what-ifs inherent in this situation, for example: What if the Town Council approves the proposed zoning plan, allowing a drive-through business on a very small lot, as well as Mr. Giannakopoulos’s site plan, and his ice-cream shop must close because of an unanticipated change in circumstances? His lot could be sold to a drive-through business applicant who wants to open a fast-food burger joint there, the type of establishment that Planning Board Chairman Sam Williams said Southern Shores property owners and residents have indicated they do not want. Other subsequent businesses might not seem as desirable as Mr. Giannakopoulos’s family-friendly restaurant.

I also wonder about other locations at the Marketplace that front on Hwy. 158. Currently, there is parking to the west of the main entrance into the shopping center, but that conceivably could change in the future. Brainstorming the possible adverse effects of the zoning amendment is a worthwhile exercise for the Town Council. The ZTA should be evaluated separately from Mr. Giannakopoulos’s business intentions.

In dissenting, Mr. Newberry said he was concerned about the “process” that resulted in the Planning Board’s new zoning proposal and with possible traffic congestion at 5415 N. Croatan Hwy. The prevention of congestion, particularly backups on Juniper Trail, was the reason the 2.5-acre restriction for drive-through businesses in Southern Shores’ commercial district was enacted, according to Planning Board member John Finelli, who represents Martin’s Point, at the Board’s April 16 hearing on ZTA 18-05.

Ann G. Sjoerdsma, May 3, 2018