Counterpoint: Law is clear on Woods development
Few issues arouse more public concern than Nags Head Woods. Preservation of the woods through conservation ownership and aggressive zoning rules is a victory Outer Banks residents are justifiably proud off.
Anything that threatens the Woods gets e-mails zipping and phones ringing. But it is not public opinion that governs development in Nags Head Woods; it is a set of rules in the Nags Head Town Code.
Russell Lay’s critique of the Nags Head Board of Commissioner’s decision regarding proposed development in Nags Head Woods raises questions about the wisdom and fairness of the Board’s decision.
In my view, the board’s decision is the only one it could have made given the rules that govern development in the woods. Those rules are the reason we have Nags Head Woods today.
The fundamental question raised by the proposed development was whether the developer was required to extend town water service to his three-home project. The answer is yes. The only time a home can be built without service by city water is as a single home on a single lot. Anything more requires city water.
The exact text reads: All new development shall be connected to the town water system, in accordance with standards and specifications then in effect, for water supply, with the exception of a single-family residence that meets all of the following requirements: . . .
This section of the Town code was added to allow development on lots that were not located near a town water line. Those lots are primarily in Nags Head Woods. It was crafted to allow a single-family home, the minimum use generally allowed by zoning. It was not intended to permit nor does a reasonable interpretation permit multiple dwellings on a lot not served by town water.
By the way, Russ contends that the vast majority of lots in Nags Head Woods are not served by city water. This is not correct. In fact, about half the privately owned lots in the woods are served by city water. Of the remaining 10 to 12 lots, several have been developed with single-family homes using well water, as permitted by the code. The remaining undeveloped lots represent less than 5% of the total acreage.
The vast majority of Nags Head Woods is owned by the Town and The Nature Conservancy. It will remain pristine and has no need of water service.
The proposed development was not a single-family residence but a group of single-family residences called a residential cluster. Even Bill Clinton would have a hard time saying a group of homes is the same as single home no matter what the meaning of is is.
Residential clusters are allowed as an alternative to standard subdivisions. Residential clusters are a good choice for development in Nags Head Woods. They require the same amount of land per home as a subdivision but allow the homes to be sited in the least sensitive areas, providing larger areas of undisturbed land.
Residential clusters require a different development process and have different requirements than single-family homes. Residential clusters simply are not the same thing as a single-family home.
If a three-lot subdivision in Nags Head Woods must install city water service, then a three- home residential cluster should meet the same requirement. There is no common sense reason why it should not.
There is an additional limitation in the Town Code that specifies that well water can be used only for “buildings on individual lots.” The clear intent is not to allow well water to be used for multiple buildings on a single lot.
Russ spends much of the critique discussing what might be permitted under the current rules, something larger and presumably more damaging to the Woods. In fact, under the interpretation proposed by the developer, he could build a residential cluster just as large as Russ’s gargantuan single home, and do so without extending water. The fact that the proposed development was not the maximum allowed development does not entitle it to special treatment under the rules.
Russ calls the commissioner’s thinking fuzzy when they determined that “a single-family residence” does not mean three single-family residences. In my opinion just the opposite is true; the only element that is not clear is how anyone could confuse the intent and meaning of the ordinance.
Elected leaders have a lot of leeway in writing development rules. They can limit or allow across a broad range. In this case development is severely limited to protect a precious community treasure. These rules were developed when much of the woods were in private hands and large scale development loomed as a threat to the woods. Those days are past and it may be time to revisit the rules. If changes are needed the board can do it through the zoning process but they cannot and should not do it through the development process. If there is a problem it is with the rules not the rulers.
The full text of the relevant sections of the Nags Head Town Code are posted on my blog.
Former Mayor Bob Muller served on the Nags Head Board of Commissioners from 1985 to 2005 when the rules governing development in Nags Head Woods were developed and adopted.
Previous stories:
Given the alternatives, cluster housing decision is baffling »
Town rejects houses proposed for maritime forest »
Quarter-century-old ordinance sets off an alarm »
My good friend Bob makes some excellent points. The gist of the article wasn’t the debate over the finer points of the town code. It was the irony that the applicant’s proposal was far less intrusive environmentally and safer than what he could do as a permitted use.
But I still contend his own citations lead us into a circular logic that is indeed fuzzy. Here are the terms Bob cites, with the definitions from the code. The highlights are mine:
Dwelling, single-family, means a detached building designed for or occupied exclusively by one family.
Now, the definition of residential clusters:
Residential cluster means the grouping of attached or detached single-family dwellings, whether for one or more families.
And in Sec 44-63:
All new development shall be connected to the town water system, in accordance with standards and specifications then in effect, for water supply, with the exception of a single-family residence that meets all of the following requirements:
(1) The structure is proposed for a lot of at least 40,000 square feet in size, or is an existing lot of record that does not front on a dedicated right-of-way, or a lot that has been previously developed without benefit of a water tap;
(2) The lot is located in excess of 500 feet from an existing water main;
The ordinance does not specifically preclude well water serving more than one single-family dwelling on a single lot, in my opinion. Here’s why:
Bob writes: . . . “The Town Code . . . specifies that well water can be used only for buildings on individual lots. The clear intent is not to allow well water to be used for multiple buildings on a single lot.”
My reading of this part of the code is that a well cannot serve buildings on multiple lots. For example, I cannot provide water to my neighbor from my well. But if it meant one well could not serve multiple buildings on one lot, I wouldn’t be able to run water to a garage.
Nowhere do any of the ordinance sections cited by Bob say that a detached single-family dwelling is “one house on one lot.” The use of the plural ‘buildings’ includes residences, so the use of a well also seems a non-starter.
Of course, we now understand the town is hanging its hat on another section dealing with fire hydrants. I challenge anyone to find a good definition of a fire hydrant in the town code.
I think Bill Clinton would make mincemeat of the entire “residential cluster,” which itself appears to be one big cluster.
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Outer Banks Serf says:
I think the last sentence aptly explains the opinion of the author, “If there is a problem it is with the rules not the rulers.” Whatever is decided by our “rulers” is correct.
Who would have a better opinion on the nature of government and its workings in Nags Head, than Mr. Muller who spent 20 years as one of our, “rulers”?
Bob Muller says:
Russ,
I was explaining my view of the Town code. I was not explaining the Commissioner’s decision. If you want to know whether the proposed development is a single family residence just look at the development application. If they wanted a single family dwelling they would have applied for one. They didn’t; they applied for a residential cluster The code does not say a residential cluster can be served by well water. I accept that if you take each unit in cluster as a separate development they be eligible for well water but that is not how the code works. The development must be considered as a whole not as its separate components.
Russ Lay says:
LOL Bob. I disagree for the reasons stated..I see ‘buildings’ as plural, I see the word ‘a’ as an article, not a single home on a single lot–’a’ is just ‘a’ reference to the word single-family dwelling (or residence). It is obvious from the vote, staff interpretation and the Planning Board that if this were crystal clear, there would be far more unanimity for your position. There isn’t, and I suspect if this goes to court, that fuzziness will be at the core of the argument. The town code is a mess, amendments have been made with sloppy definitions, conflicting language, and it needs to be cleaned up. Applicants should not have to wade through this kind of morass.
Tom Haddon says:
Russ and Bob,
You both make good points, but they beg a larger question in my opinion.
If the ordinances being cited really do prevent this development in this zoning district, how did this development application get to the Board of Commissioners before these ordinances came to light? How did these ordinances not come under consideration during the planning phase?
Well, I suppose the public outcry after the Planning Board’s unanimous approval of the plan got some folks digging through the Town code and some old ordinances got unearthed and dusted off. The ordinances being cited to prevent this development are at best arcane, vague and require some interpretation. When interpretation is required, politics comes into play.
The residential cluster development that is a conditional use in this development zone is not in question. So here we have a case where the spirit of the law is being overturned by the “interpretation” of the letter of the law. In this case the letter “a”.
I think that any citizen that took the care and planning that the Deels did in terms of working with Town officials and being very engaged with the Town throughout their development process would feel abused.
As a Town, we can and should do better.
Tom Haddon
Town of Nags Head Planning Board member
bobxnc says:
Tom,
I am not sure how this development came to move through the process to the board. I can tell you that one thing that would help would be if the planning board published an agenda and provided the same types of materials that the BOC does. It is impossible for the public to know what the PB is considering unless one attends every meeting. If the agenda was published then public (political?) review can be heard earlier in the process.
To your other point, all ordinances are open to interpretation at some level. There are processes for hearing and ruling on whose interpretation is correct. the Board of Adjustment and the courts serve that purpose admirably.
You are certainly right that in this case the disconnect between staff’s view and Board’s view of the code was striking and certainly the Deel’s were not well served by one side or the other. That said anyone with any experience around developing understands that staff opinions don’t give you the right to build, only a permit does. There are a myriad of challenges that can derail a project.
Finally it points out just how hard it is to craft a clear ordinance. I helped write all the code involved in this and I am not sure that I know what we could have done better in section 44-63 but obviously we should have been clearer. Smart people see as allowing something other that what those who wrote it intended.
Mike says:
Tom,
I think it’s funny you accuse people of digging up an old ordinance and dusting it off. The whole SED-80 thing is old and outdated. When was the last time it was used? If you want to call something “arcane” I think you should start with the cluster development ordinance.
As someone who attended the meeting I can see why the Deels would be angry. They had done a lot of work and planning. Their request was not ridiculous and they took effort to protect the woods. The board was also not that clear during the deliberation about why they were denying it. So I felt confused and thought the board just hatched it down because so many people came out against it.
After reading Bob’s article and the responses, I must say that trying to call three to five clustered houses the same as one single family residence is more of a stretch than assuming a letter “a” means a single house.