Letter: Against Tourist Cottages and PC Commissioner Sturgis’s efforts to evade density regulations

The following letter was submitted by citizen Ken Dufty of Wardtown. Mr. Dufty’s points revolve around Tourist Cottages and PC Commissioner Sturgis’s insistence that farmhouses and barns be allowed to convert to apartment complexes. and evade density regulations.

The comments addressed: 1) the proposal by the Northampton County Board of Supervisors (BOS) to remove “tourist cottages” from our 2016 amended Northampton County Zoning Ordinance (“ZO”) a.k.a ZTA 2022-03; and, 2) the deliberation by the PC of the ongoing draft and eventual recommendation to the BOS of a ZO amendment to allow “adaptive reuse” of structures to purportedly address the shortage of affordable and workforce housing in the county.

I. Proposal by the BOS to remove “tourist cottages’ from the definition section 154.2.003 and to remove Category 2-Commercial Uses, line 101, “tourist cottage (not intended for permanent residence up to 12” from Appendix A of the Northampton County Zoning Ordinance.

  On this issue, I adopt by reference and support the Staff Report dated April 27, 2022, by staff reviewer Kelly Parks, CZA, Acting Zoning Administrator.  In particular, the Acting Zoning Administrator holds that: 1) the removal of this use is consistent with the 2009 and 2020 Comprehensive Plan; 2) the use as written can be confusing to an applicant because the more recent adoption of “Short Term Rentals” has a more up-to-date definition of this type of use; 3) the misinterpretation of the Tourist Cottage Use could result in density violations which were set by the majority of residents when drafting and finalizing the 2009 and 2020 Comprehensive Plans; and, 4) the intention of the removal is “only..to clean up the ordinance and delete a conflicting term and use”.

   During the public hearing phase of this proposed action, however, I did point out that the recent applicant(s) Angelo Manuel and Bill Parr are both accomplished and seasoned real estate agents and developers and it is difficult to even imagine that this use included in Appendix A would obfuscate or evade density requirements. In short, there is no language anywhere in our zoning ordinance that would anyone to believe that tourist cottages are exempt from density (dwelling units per acre) regulations. Indeed, it is also close to astonishing that they would think and argue that a tourist cottage is not a dwelling unit, and that their 40+/- acre parcel, by those very defined density requirements, could legally contain 12 dwelling units (Dus) when the ordinance explicitly limits DU’s to 1  per 20-acre parcel of land zoned as Agriculture/Rural Business. I will add to my comments last night that it is equally surreal and impalpable that the applicant argued that the home that he is intending to build on the former Taylor parcel in Townsend does not count for density calculations because it is “by right”.       I pointed out to the Commissioners that I am not an attorney, nor am I a real estate agent. But when it was argued by the applicant that tourist cottages “up to 12” are allowed on A/RB land, I naturally assumed that they would understand that meant that an applicant proposing to put that many dwelling units on a parcel so zoned A/RB, would have to own 240 acres (1 dwelling unit per a 20-acre parcel).  Note that proposing to put 12- or even 6- dwelling units on a 40 +/- parcel is in direct contradiction to our duly and recently adopted Comprehensive Plan (as well as all other archived plans) and stands in stark contrast to the spirit and legislative intent that were adopted when determining zoning districts, their use, and regulation pursuant to 154.2-082.

    Our adopted legislative intent of agricultural zones, including A/RB, which was read into the record last night, is listed as:

        154.2.082 (B)

1. To preserve prime agricultural soils’
2. To maintain the rural character

          5) to provide for low-density rural housing compatible with

            the rural agricultural quality to minimize the impact upon agricultural activities and to maximize open space which may be used for agriculture and forestry. (emphasis added).

    Legislative intent for any particular zoning district, including the spirit and adopted blueprint for the development of each particular zone is ministerial. It cannot be cavalierly discarded, ignored, or eviscerated like the applicant tried to accomplish when proposing the development of the Manuel parcel in Townsend. In short, tourist cottages stand in opposition to the sprit and intent of agricultural districts in Northampton County. They are a commercial use that cannot survive even a cursory challenge when attempting to sidestep density requirements. Indeed, the Supreme Court of Virginia ruled that “legislative intent” is what constrains or enjoins the adoption of a zoning ordinance, which will be discussed below.

    In closing on this point, this letter is to fully support and encourage the removal of “tourist cottages” from our current zoning ordinance because and including the fact that an interpretation that these dwelling units are exempt from density requirements is in contrast to the legislative intent of the district, among other reasons.

    And that nicely segues into my final comment to the Planning Commission last night during their deliberation of a proposed zoning text amendment to allow Adaptive Reuse of buildings built prior to 2009 to be converted into multiple family apartment buildings containing 2 or more dwelling units, mentioning that it could be more.

II. Adaptive Re Use and a PC Commissioner’s spirited insistence that the PC can propose and recommend a zoning text amendment that would allow existing farmhouses, accessory dwellings, and even barns to be converted into apartment houses, sidestepping density requirements ( overriding and elimination the density requirement of 1 dwelling unit per 20 acres in ag districts).

      The Planning Commission has been charged by the BOS with proposing remedies for the fact that Northampton County is in an “affordable” and “workforce” housing shortage. At least one Commissioner conveniently only mentioned in passing the fact that we are indeed in the middle of this crisis because a former iteration of the Commission recommended allowing Short Term Rentals “by right” with little meaningful regulation.  By the hundreds long-term rentals have been and are being converted into mini-motels and Air B &B’s and nothing is being done to correct that with the excuse that both the BOS and the PC are waiting for a A-NDPC housing study which is now 2 months overdue.  As one of our astute writers wrote: “the job of an expert is to tell you what you already know but didn’t want to!”.   Most feel that by the time the BOS admits that they made a grave and irreversible mistake (or was it?), the available housing stock for affordable and workforce housing will be listed on an AiR B&B website for hundreds of dollars each night.

     Now, in a near surreal attempt to clean up this mess, Commissioner Sturgis is aggressively stumping to sidestep density calculations and regulations on our farm fields by allowing farm houses and accessory dwellings to be converted into 2-4 (or more) apartment complexes.  At one point last night she complained that “we are surrounded by agricultural” lands and actually claimed that “affordable” or “workforce” housing would be about $1600/month. She also argued that she indeed lived in a farmhouse that was located on an active farm and was converted to a 4 family apartment complex and she enjoyed living there.

     Other members including Commissioner Wiggins remarked that such a proposal would result in about 400 people packed into the legislative chambers, and we agree.

    During public comment, this writer pointed out that the conversion of farmhouses and barns to apartment buildings in the name of “workforce” or “affordable” housing is disingenuous because there is no mechanism in Northampton County to ensure that rents in a converted barn or farmhouse (in violation of our established density regs) would be affordable or available to workers that certainly could not pony up to Sturgis’s benchmark of $1600/month which she claims is “affordable’.   Indeed, passing an ordinance that supersedes our Comprehensive Plan with the justification that the ZTA will accomplish the goal of providing affordable or workforce housing with no mechanism to ensure the attainment of that goal is a textbook example of an arbitrary and capricious act by local government and it will be challenged in District Court, make no mistake about that.

    During this writer’s oral comment on this very issue last night, the PC was informed that in 2018 the Supreme Court of the Commonwealth of Virginia exclusively looked at language in a zoning ordinance and declared that a proposed or existing ordinance can be overturned if it is not consistent with the “legislative intent”, meaning the spirit and intent articulated when the district was created by the local government. See Board of Supervisors of Fairfax County v. Douglas Cohn, 2018. In this case, the court opined:

                 “When constructing a statute, our primary objective is to ascertain and give effect to legislative intent, as expressed in the statute. If the language in the statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute”  (page 6, emphasis added).

    This is far from an isolated decision by the Supreme Court when reviewing, upholding or overturning a local government’s decision on land use or zoning.  In fact, in Turner v. County Board of Supervisors (2002) [citation omitted], as well as Board of Supervisors v. Snell Corp [citation omitted] the Supreme Court sided with their decision in Rowland v. Warrenton that “a rezoning can be overturned if it ‘bears no reasonable relation to the public health, safety, morals or general welfare “ of the residents.

    To ascertain whether Commissioner Sturgis’s relentless campaign to turn agriculturally-zoned parcels and dwellings into multi-family dwelling units is allowed by land use law and precedent, we merely have to look at the legislative intent of the district as quoted in the section on tourist cottages above and/or turn to Section 154.2.082 of our zoning code.

    Conclusion

   Northampton County is, and remains so because of public participation, one of the most protected pieces of real estate east of the Mississippi. Thanks to input and engagement by thousands of residents in the drafting and adoption of our four (4) Comprehensive Plans over 20 years we: have no industrial poultry farms en masse on our agricultural lands; have no large proliferation of poultry processing plants draining our finite aquifer and creating an industrial flavor to our rural quality of life; are home to one of the most important and preserved (thanks to the Nature Conservancy) migratory bird habitats in the world as recognized by the United Nations; are one of the top tourist destinations in Virginia; lead exports in agricultural produce as well as clams, oysters, and shellfish; have a night sky that enjoys top billing among stellar places to star gaze io the Eastern Seaboard because of the limited artificial lighting that can and does obscure that view; and, most of all, offer a rural quality of life that is becoming very, very scarce during today’s migration of city dwellers into more rural or suburban areas.

    We merely have to travel over the CBBT to see what happens when density regulations are eroded, bite by bite, as has been the trend in Northampton County lately.  How often do we hear Virginia Beach visitors say that Northampton County reminds them of the way it used to be in their town, with rolling farm land, open meadows, and productive farms.

    There are several safeguards that will prevent what happened to Virginia Beach, Hampton Road, Ocean City, Crisfield and now even Chincoteague from happening in Northampton County as it pertains to over development that has ravaged their homeland and sent taxes, crime rates, noise, light pollution, and congestion skyrocketing.  

   First and foremost it is our legislative intent and spirit that defines our rural character and quality of life, as we mentioned before, and is encoded in 154.2.082. It is ministerial, as also argued above, and will be defended if we are forced to do so.    Second, we have one of the most threatened and finite aquifers in the world. We cannot afford to follow in the footsteps of Commissioner Sturgis’s reported homeland of Virginia Beach.  Indeed, because the citizenry there did not fight for their rural quality of life that is now only a memory, they drained the Potomac Aquifer dropping it over 200 feet from pre-mass-development levels and had to pay a half billion dollars to run a pipe from Lake Gaston to the Hampton Roads area, suffering through water use restrictions from 1978 to 1995. We do not have that luxury, even if could afford to apply such a remedy (which we can’t). 

    Third, we have an engaged and ready army of citizens, many of whom are here because they experienced chaos, over-crowding, traffic, noise, high taxes, and higher crime rates elsewhere, and have migrated here to spend their life savings investing in a unique and indeed threatened rural paradise.

    Unlike the citizens in places where what we here in this rural mecca have is simply a distant memory, our people are fully committed to protecting this county and its rural quality of life with everything they have. In short, their rural quality of life depends on it and most know it.

     We must not let our density calculations and regulations be chipped away and eroded by some unsupportable justification that doing so will provide “workforce” and “affordable” housing when that reasoning has no evidentiary basis or weight.

    Therefore, allowing farm houses and barns to be turned into apartment complexes in direct contrast to our Comprehensive Plan and Legislative Intent of Agricultural Districts in our zoning code must be rejected.  There are more suitable zoning districts to allow for Adaptive Reuse to be encouraged and supportive.  Agricultural lands are not one of them