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Given the alternative, Woods decision baffling
Members of the audience without a dog in the fight were probably left incredulous Wednesday after the Nags Head Board of Commissioners voted to deny a site plan for cluster housing submitted by Andy and Laura Deel.
The Deels wanted to build three 2,500-square-foot houses on 12 acres within the Nags Head Woods Nature Conservancy Preserve. They would live in one home and market the others to eco-oriented tourists as weekly rentals.
Wednesday’s decision still left the door open to projects many times larger and much more threatening to the environmentally sensitive area. And they would not require the approval of the Board of Commissioners.
Nags Head Woods is zoned SED-80, a classification aimed at minimal impact on a protected area. The designation was entered into the town code in 1987. Before that, the area was zoned SPD-40, a less restrictive environmental classification.
As far back as the 1970s, “cluster housing” has been a conditional use in the zone, even surviving a 1990 updating of SED-80. Over three decades, elected officials and town planning staff were aware that the vast majority of lots in SED-80 lack town water and fire hydrants.
One can only conclude that cluster homes would not have been a problem for those creating and enforcing the town code. As a conditional use, cluster housing would require a public hearing and approval by the Board of Commissioners.
When the Deels’ plan came before the board, the focus of the naysayers, Commissioners Anna Sadler, Wayne Gray and Rene Cahoon, revolved around three issues: connection to town water, fire control and plans to phase in construction of the three houses rather than build them all at once. A final source of confusion was interpretation of the term “single-family” home as it applied to cluster housing.
And here is where the Board’s decision becomes curious. In SED-80, the town staff can approve on their own authority without the commissioners’ involvement a single-family home of virtually unlimited size in the same zoning district. For example, had Deel chosen to build just one home on his 12 acres, the only restrictions are that he not exceed 15 percent lot coverage or eight bedrooms. There are no square footage limitations.
Andy Deel explains his project to Nags Head commissioners. (Voice photo)
The same 15 percent rule applies to a cluster houses with the added restriction that a maximum of four homes can be built. Thus, the applicant could have built four 15,000-square-foot building pads or 180,000 square feet of living space if each home were three stories.
We now move from curious to inexplicable in trying to interpret the actions of the three commissioners.
Regardless of whether there was one huge mansion on the parcel (a permitted use) or four cluster homes equal in square footage to one single house, there is no town water or fire protection servicing the 12-acre parcel. It was with a sense of being in an alternate universe that I witnessed Sadler, Gray and Cahoon appear to struggle over the fire hazard these three homes would present.
Sadler conveyed the image of a fire at the houses spreading uncontrolled into the preserve. Cahoon stubbornly clung to a fuzzy ordinance interpretation that exempts single-family dwellings from the burden of connecting to town water and fire hydrants, but not, apparently, three single-family dwellings on the same lot.
When the commissioners finally rendered a verdict, it was the lack of a proper fire hydrant and the lack of town water — a requirement for every type of development in SED-80 except a “single family home,” whatever that really means — that brought the application down.
Had Deel merely applied for a 20,000-square-foot, single-family home, town staff would have been required to approve it administratively. This 20,000-square-foot home would have had no access to town water or a fire hydrant. In short, it would be a major fire hazard, just like every other single-family dwelling in the vicinity. And this large house could legally be a seasonal rental home filled with 16 people and free to host parties and weddings thrown by the tenants.
But we’re still not finished. Remember, the applicant applied for only three homes, rather than the four allowed. He agreed to stipulate that the three homes would not exceed 2,500 square feet each, for a total of 7,500 square feet. There are single-family homes in SED-80 that come close to that total by themselves.
Further, he agreed before coming before the board to put a fire control sprinkler system in every house, something not required anywhere in Nags Head.
Finally, as an engineer, he submitted a plan for water to be piped from an 18,000-gallon swimming pool to two “dry” fire hydrants. He also gave up some lot coverage to provide ample parking and turn-around space for fire trucks, given the narrowness of Old Nags Head Woods Road. He even agreed to sign a maintenance agreement for the dry hydrant system and regular town inspection. The hydrants would also be available to fight any fire near his property.
None of this would have been required or, I suspect, even offered by an applicant proposing a single home on a parcel in SED-80. The applicant voluntarily agreed to meet, exceed and even give up some of his property rights to make his site plan safer and disturb less land than any other parcel in the area. This is why the town’s fire chief approved the planning, and even sought the opinion of the state fire marshall’s office regarding the proposed system. And it is also why the Planning Board approved the site plan unanimously.
So what were the commissioners thinking?
For one, the plan received a lot of public attention. Part of it grew out of a letter posted on a local Web site by Sarah Morris, who according to an obituary on the late Paul Shaver in The Virginian-Pilot was the well-known entrepreneur’s “soulmate and lifetime companion.” The Paul Shaver Family Trust owns 30-plus acres in Nags Head Woods that includes more than 5,000 square feet of enclosed space, an asphalt drive, a bulkhead on the shoreline, two covered gazebos and a boat lift.
Morris wrote a joint letter sounding an alarm about the proposed houses and suggesting the possibility of commercial development. She was also quoted on another online news site saying the vehicular traffic generated by the modest complex would jeopardize the safety of walkers, bikers and children.
Soon local bulletin boards were filled with angry moms who would be scared to walk their children down the old dirt road. Others decried the greedy developers who wanted to put a commercial wedding operation on the site, making assumptions that were never true.
E. Crouse Gray Jr. represented the Shaver Family Trust. (Voice photo)
Given the fact that the Deels could build a single-dwelling up to five times the size of the proposed cluster project, it is difficult to imagine why the Shaver trust is fighting the young couple.
It is even more difficult to understand why Nags Head’s board denied the project, leaving the applicants the option of now building something larger and less safe.
Cover/top photo: A pond in Nags Head Woods. (Town of Nags Head photo)
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Mike says:
I wish I made my comment on this article instead of the other one now. I will just summarize it. I have a more thorough argument in the first article.
There are five other lots that can built cluster housing. This would set a precedent that would make it more difficult to disallow others from doing it. Others will not be as conservative in their number of homes or square footage as the Deel’s plans were. If all the parcels back there were developed as single family the number of houses will double. If they are clustered then the number more than triples.
After reading your article I had a few more thoughts. If you want to say that the makers of the ordinance knew that the houses would have trouble meeting the water and fire requirements, then maybe that was the point. They were more concerned with people who owned property by the Villas and Brithaven. They might have assumed that houses on the road wouldn’t meet the requirements so they didn’t need to set them into another zone. From my listening to the meeting It seemed that the ordinance was made to sell certain land in order to buy more Nags Head Woods property, and that land that was sold would keep the houses on the borders of the Woods. They let people cluster houses on the border to protect the inside. This property does not do that. Most of his 10 acres were in the marsh on the other side of the road that was undeveloped, and the houses he was presenting went right into the heart of the woods to the property border. So in no way does this proposal fit with the point of the ordinance. It’s an old rule that has out lived it’s point since the town got most of the land it wanted in the savings and loan debacle.
As for building a giant house and renting that out. Good luck. Though it may be legal, I think economics and reality rule that out. He can totally build one house with a mother in law suite on the side and a second house on the other lot to rent. He can build more square footage, and not have to worry about the cluster thing.
You also neglected to mention that the board was very concerned with the fire issue with regular single family houses, and discussed making all houses in the woods install a sprinkler system like he was planning.
Lee says:
Thanks for a clear reporting on this story. What Andy & Laura Deel want to do on their property could only be an asset to the Town of Nags Head and Nags Head Woods.
Duke Geraghty says:
Reminds me of when the Rial Group was trying to permit the area where Soundside Pavilion was located. they met all of the requirements and exceeded the fire protection involved. They agreed to sprinkler the entire building but economically could not afford to give up 1 building in order for fire trucks to drive around the entire complex. Fire protection was the reason given even after the fire commissioner signed of on the project. But we all know what the real intention was, The Town of Nags Head, along with Dare County, wanted the property for themselves and later bought it. They did not care that the developer spent tens of thousands of dollars on attorney fees, building plans, site engineering and surveys and engineers to study the feasibility of the project. Property rights are not important in the State of Nags Head. I do not know the layout of the subject piece of land, but I imagine they can run a dry hydrant to the sound for an unlimited amount of water and resubmit. Another good story Russ.
Frank Cloyes says:
Laura Deel is my daughter & Andy my son in law. They are good people, who have lived on the Outer Banks for many years. They were( and are) trying to do something good for the Town & the property they purchased. To see them railroaded like this makes me ill. What ever happened to fairness & good old common sense? Now I understand better why we are becoming a 2nd class nation. Apparently, it is a classic case of, “we’ve got ours, but you can’t have yours.”
Russ Lay says:
Mike: Economics aren’t the issue, nor the business of the town council. The applicant could build a 8,000 s.f residence of their own in any event, which would still be fire hazard and larger than the 3 cluster homes.
And I didn’t mention the ‘talk’ about their concern over fire hazards on existing homes because it was just that–talk. They may change the law in the future (which will do what to current vacant lot owners who merely want to build a single home?) a form of ‘taking’ that I bet would face a successful court challenge, and I seriously doubt the council can force existing homes to install sprinklers retroactively, which means those hazards still exist–including the road and access issues you mention.
Finally, it doesn’t matter what people think the ordinance ‘really meant”. The fact is, the ordinance was on the books, and the applicant not only checked with town staff before purchasing the land, but also worked with staff through the entire process and was more or less assured the site plan complied. This wasn’t a case of ‘wishful thinking’ or an applicant trying to circumvent the town codes. That was obvious from staff testimony, given under oath, I might add.
In many ways, this also can be considered a taking. If someone expends a sizable amount of money on a parcel after going through exhaustive due diligence with town staff to comply with an ordinance, how do you compensate them for the value lost?
From the testimony, part of the rationale in buying the lot was the fact the two rental homes would help pay for the cost. Now that cash flow has been taken away even though an ordinance was on the books that specified cluster homes could be built.
As to changing the laws for the future, I might agree that the need for cluster homes no longer exists given other testimony. But that doesn’t change the current situation nor the contradictions present in the BOC’s actions regarding the site plan submitted and the manner in which the BOC rationalized their decision to deny the plan.
If the BOC really believed cluster homes were no longer compatible, the right thing to do would have been to acknowledge that, grant the permit to the applicants and change the ordinance. Instead, they denied the ordinance, adjourned the meeting, entered into a closed session, and then returned with the ‘reason’ they denied the plan based on fire and water issues that would still be present if the owners build any house on the parcel.
woodslover says:
Only about half of the parcel is buildable area of this lot – the SED -80 goes into clearly vegetation and trees over certain sizes for any building – whether single family or cluster. Either way – this area the Deels want to develop has nothing around it and again, would just set precedence as to what the neighboring properties or other parcel owners could do. I have no problem with a single family home that follows all the other rules in this zoning – again, I am familiar with the parcel. Were they really going to market to eco-tourists?
bubba says:
I lived on 80 acres with 4 homes. The majority of it was woods. The owner of the property built 3 houses to rent out. There were no sprinkler systems. No fire hydrant. Of course that was in Oklahoma where they have a little more freedom to do what they want with their property.
ekim says:
Something smells bad here and it aint the swamp, smells bad on both sides
MIke says:
Russ,
Thanks for the reply. I’m not a lawyer but I am pretty sure the intent of the law makers is taken into account when laws are interpreted. The intent was to minimize impact to the woods by clustering houses, and this proposal doesn’t do that.
As for the issue of “taking”. I think you out on a limb there. You could argue that the decision caused damages to the property value, but you could not claim any property was taken. He knew what conditional use meant. He knew this step would have to come to a public hearing, and I think it was naive for him to think people wouldn’t be upset about trying to increase the amount of people and traffic in the woods.
Like I said earlier I appreciate his conservative proposal, but we can’t be sure that the other SED-80 property owners will be as sensitive to the woods. If they allowed his and took the rule off the books I personally wouldn’t mind.
I still don’t like the idea of tourist renting houses back there, but like you said, any house back there can do that.
Russ Lay says:
Mike: We are working on a possible op-ed piece that would take a different approach than mine. ‘Takings’ as a legal concept does not involve only the taking of property; it also refers to the use of property. For example, if you purchased a lot zoned commercial and the town changed it to residential, that could be argued as a taking if residential use were less lucrative than commercial use. ‘Eminent Domain’ is one example of a taking, but property rights and use in general also fall under the term.
John VanderMyde says:
It’d be one thing to reject this project when our economy was doing well… it’s practically a crime to deny the carpenters and contractors the work they so desperately need now… when will Nags Head realize how their arbitrary and capricious decisions continue to destroy the incomes and property values of their own citizens?
I’ve designed, built, and continue to own property in Nags Head. I truly feel sorry for anyone who has to deal with the town. The byzantine nature of their regulations gives them the excuse to do whatever they want with “your” property.
ekim says:
John I agree there’s alot of work dogs out of work, But do we bulldoze every tree left to give the guys a few weeks work? You are so right about N.H. they dont care about what voters vote or properties owners rights