The tail wagging the dog... | Eastern North Carolina Now

Washington's use of Special Use Permits in land use planning

    The Washington City Council, meeting in its regular monthly meeting December 13, 2010 considered two zoning issues. It approved one and denied the other.

    The first was a request from Bridge Harbor, LLC to build a marina on Business US 17 at the south end of the bridge east of US 17. You can review the agenda material on Pages 54-60, including a map of the property on Page 55. The Council denied the request, sending it back to the Planning Board. You can watch the action in this video:



    Presumably, it will go back to the Planning Board for more negotiations.

    If this situation is handled like most that come before the City Council here's what will happen.

    It will go back to the Planning Board. The concerns of individual council members will be considered and a deal will be struck that will result in some special conditions being put on the property owner and then it will be approved by the Board of Adjustment, one way or another, by the City Council.

    There were apparently two concerns, at least, that will have to be addressed. Mr. Mercer's is the easy one. His concern is that dry stack boat storage should not be a permitted use in Office and Institutional (O&I) zones. They fixed that by making it a "special use." They've actually already done this. You can see it on Page 58-60. Two pages of "special use" conditions. We're going to guess all of these conditions have previously been discussed with the property owners, if indeed it was not the property owners who drafted them.

    So you can see in this case how Washington uses "special use permits" to control how private property owners can or cannot use their property.

    So what's our complaint? It is essentially this.

    Less than a year ago this same Council adopted a land use plan called the "Harbor District." This parcel was included in the Harbor District. But the Harbor District plan did not contain all these marina specifications. Nor did it even allow building a marina as a permitted use. Marinas are not listed in the O&I classification.

    Within the last three months the same Council considered public access to the river vis-à-vis the renovation of Havens Gardens. At that time the issue of more public access to the river was raised. Everyone seems to agree that more public water access is a good idea. But remember, O&I does not provide for marinas (boating access). So we have to wonder why not.

    Was it because the City Fathers believed that this land should be reserved for Office and Institutional use? Obviously not. As well it should not be so restricted. What more natural use of this parcel than a marina? That would improve public access to the river. So why did they not reclassify the area when they adopted the Harbor Plan? They could have created a "Harbor Overlay" district that allowed all property owners in a similarly situated area to qualify to build a marina. But they didn't do that.

    Commentary

    Being the libertarian cynics we are we think there is a high probability the motive in this case is rooted in a bogus planning mindset we have seen exhibited over and over. We call it the "Tail wagging the dog" method of land use planning.

    It goes like this. We could develop a comprehensive land use plan. By comprehensive we mean we would look at the best use of land in relation to how it fits into the overall planning jurisdiction's scheme. We would then designate certain areas for certain classifications or zones. Property owners who buy property zoned a particular way would know before they bought not only how they could use their property, but also how neighbors would use theirs. That is the nature of sound land use planning. The fundamental principle could be that a person has a right to use their private property as they see fit, as long their use does not actually harm the public interest.

    But while we could do it that way, that's not the way the "Tail wagging the dog" does it.

    In that case what we do is draw up a nice multi-colored "Comprehensive Land Use Plan" with zoning classifications. Then we wait until an existing property owner or a potential new property owner decides what they want to do with a piece of property. If that use conforms to the "permitted uses" no problem. They fill out the forms, pluck down the gold and get the permit.

    But often as not the property owner wants to do something a bit unique. Like run a rehabilitation program for troubled youths. Or a marina. Or as was the case in Chocowinity a few years ago, build a car wash or a Bojangles in a residential neighborhood that's really a commercial area. Or put video games in his store.

    Lets use the case of Turn Around, a ficitious name for a program that helps at-risk youngsters get back on track. The property owner finds a piece of property that is zoned O&I and looks at the "permitted uses" and finds "Rehab Or Counseling Services." He buys the property and applies for a permit to open his business. Some neighbors complain and he is told what he wants to do is a "non-conforming use" and he has to get a "Special Use" permit. Oh, oh. They've got him. To get the Special Use permit he has to fill out more forms, on which he has to give much more specific information. And all of a sudden he finds out that he can't run the "rehab" program he envisioned, in spite of the fact that many of the same clients who attended a school in the exact same building before, now will be prohibited from doing so because of the way they are now classified by the funding sources. Never mind there is a very similar program within 800 feet. He's denied a Special Use and can't use his property as he intended.

    So the same kind of thing happens to the marina guy except the City Fathers actually want a marina there. But they want to dictate the specific details. See page 58-60 for the nitty gritty of the details.

    Now, let's take one of those details to examine, since one of the City Fathers mentioned this particular one. Height. Note that Section 3(5)8 says "The maximum height of the drystack boat storage shall be sixty five (65) feet. The maximum height of all accessory buildings shall be fifty feet."

    Well first, what's the point in one building being 50 feet while another can be 65 feet? And sixty-five feet from what? The water? The mean high water mark? Above the land it sits on? If the latter (above grade elevation--but then from the lowest grade, the highest or the average) then what about the fact that this parcel has been filled in and its elevation raised, let's say 15 feet. Nearby parcels are 15 feet lower. So can the owner of the lower lot build an 80 foot dry stack storage? Both will be equal in height if you shoot a level beam from the top on one to the other. Then go across the river. Measure the height of existing structures. What if some are higher than the dry stack shed just across the river? What difference is that going to make? And while we're at it, what's the difference, in terms of the "public interest," between a 65 feet high dry stack board shed "covered by appropriate building material" and a bunch of condominiums that rise to the same height on this filled in lot? After all what is the actual difference in terms of the public interest between 50 feet and 65 feet? Or 95 feet for that matter?

    Now we don't really know what is going on behind the scenes (or under the table) on this marina deal. All we know is that Bridge Harbor will have to wait for a permit and they will have to negotiate some details to satisfy whoever is really calling the shots on this deal. We suspect we know, but that is all it is...a suspicion.

    Of this we're pretty sure. The marina will get built and it will have a dry stack boat shed. We've seen who owns Bridge Harbor. Apparently it is one Parker Overton; as in Overton's, the "World's Largest Water Sports" outfit.

    But we do have to wonder if Mr. Overton doesn't accept the conditions The Powers That Be put on him whether the City will buy his track of land like it did the other O&I parcel to keep it from being used as a program to take troubled youth off the streets.

    You see what we mean when we suggest it is the "Tail wagging the dog." We'll leave it to you to decide who's the tail and who's the dog, in each case, because it's not always the same. It just depends on who you are and what the deal is. But mostly it depends on who's calling the shots.

    And that is what is wrong with "Land Use Planning" in most small towns in North Carolina. It is a "fly by the seat of your pants" operation. It is not a system of laws, it is a system of men. A system of a small group of unknown people telling others what they can or cannot do with their property.

Here's how we think it should be. The City draws up a Comprehensive Land Use Plan that designates major areas that will be used a particular way. The classification should be based on a fundamental concept: The property owner should be able to use his/her land however he/she wants unless it does demonstrable, substantial damage to the public's interest. That damage should be proven by the substantial weight of actual evidence. People who make assumptions, such as "damage to surrounding property values," should have to show documented evidence of such damage. Absent such a showing by the substantial weight of the factual evidence, the land owner should be permitted to do what they want with their property. Any "special use" restrictions should have to meet the test of "necessary and essential to accomplish a demonstrable public purpose." Arbitrary, capricious and discrimnatory conditions should be prohibited and if the city is found to have acted thusly it should have to pay the property owner's legal bills. That is how the dog wags the tail.

    But that is not what we've got and every time you see a case of "special use permit" zoning you should check out whether its the dog or the tail doing the wagging.

    Someone once said: "the most despotic government every invented is the local planning board...and a city council is nothing but a planning board on steroids." We believe this. It is not just Washington but rather it is the nature of the beast.

    We'll tell you about the other case tomorrow. It's even worse.

     Publisher's Note: We've been a bit short of staff this week, so we here at BCN do very much appreciate this excellent submission from the staff of the Beaufort Observer.