Monday, April 22, 2024

The Point rezoning faces last big hurdle before Topsail planning board vote

Topsail Planning Board held a public hearing for The Point rezoning, the last hurdle before taking a vote later this month. (Port City Daily/Amy Passaretti)

TOPSAIL BEACH — Resident Linda Larkins’ plea to the Topsail planning board sums up what nearly two dozen people have said for six months now: “Leave it as it is.”

She was referring to the southernmost tip of Topsail Beach, considered a prized treasure to residents and visitors alike. Larkins was one of 20 people who spoke in opposition against the proposed development of the area, dubbed “The Point,” as the planning board held a three-hour discussion Wednesday. 

READ MORE: Topsail planning board has 65 days to mull Pendo CEO’s rezoning request for The Point

ALSO: A ‘David and Goliath struggle’ ensues: Topsail residents grapple with potential development of The Point

It resulted in the board adding more conditions to the rezoning request submitted by Todd Olson. The Raleigh tech founder of Pendo is purchasing the property to build a family compound with a dozen structures.

Larkins compared The Point to the Grand Canyon.

“It’s that special and unique,” she said. “Wild, untainted nature is not infinite. Once it’s developed, it’s gone forever.”

Olson is under contract to purchase 150 acres at South Topsail from the McLeod family. Attorney Tom Terrell, representing the McLeods, reminded the town the land has been used by the public for free for six decades.

Residents shared that generations of families have enjoyed fishing, walking the shore and exploring the pristine island on a daily basis.

“They’ve never had anyone arrested for trespassing,” he told the crowd. “They know people have used this for their enjoyment, and I don’t think they’ve had reciprocal thank-yous. … But it is their property. A point that cannot be overstated.”

A petition to deny Olson’s rezoning application, with a few thousand signatures, has been circulating since October.

“It’s in more than 3,000 people’s interest to conserve the point and not allow any future development rather than, quite frankly, for one very rich family,” resident Jim Holland said. 

He compared the development to adjacent neighborhood Serenity Point, which serves 400 to 500 families annually. Three Serenity Point buildings, which equals six units, would fit inside one of Olson’s proposed houses. The proposed development in total is also nearly two times larger than the entire 27-building and 54-unit neighborhood. 

The usual complaints since Olson made his plans public were repeated: environmental concerns, changes to nearby property values, flooding, wildlife conservation, some even urging the town to purchase and protect the land.

“There is a conversation bubbling beneath the surface about taking this land from private landowners and giving it to the public,” Terrell said. “You can’t do that under the U.S. constitution.”

Resident William Snyder proposed looking at grant funding from the North Carolina Land and Water Fund, who doled out $75 million last year for preservation projects. One grant for $4.1 million was given to Carolina Beach’s Freeman Park. With the financial assistance, the town was able to offset its costs and take out a loan to cover the remaining $3 million to purchase the property and preserve it.

“Development, if done right, is great,” resident Judy Compton said. “I’m not against development; I see the good. But in this case I see nothing but bad and potential harm for residents who live here, the wildlife we enjoy and our way of life on this island.”

Topsail planning staff neither recommended approval nor denied the conditional zoning proposal, based on policies within the adopted land-use plan. Noted in staff’s summary of the proposal, a conditional rezoning is designed to provide “certainty” for residents as to what land uses can be expected.

Staff did recommend adding six conditions to the proposal:

  • Dedicating to the town the existing parking lot at the south end, as well as 1 acre of land adjacent to accommodate future public access to the beach
  • No development or land disturbance outside the conditional zoning boundaries and requiring the remaining land to be conveyed to a conservation easement before building permits can be issued
  • Establish public access easements from the public trust area to the first line of stable natural vegetation in perpetuity
  • All dwellings must be equipped with a sprinkler system required by NC Fire Code
  • No additional structures than those proposed
  • A 30-foot access easement dedicated to the town and Pender County EMS/Fire

At the meeting, the conditions were reviewed by the planning board and surveyor Charles Riggs, speaking on behalf of his client, Olson.

Riggs confirmed a few of the items wouldn’t be a problem — such as no land disturbance outside the bounds proposed. Yet, he said he would need to first review them with Olson, not present at the meeting.

The wording of some conditions did concern Riggs. For example, “no more structures than what is being proposed” — which as of now includes seven houses, a boat house, a pool house, a maintenance building, a gazebo, pedestrian walkway and a marina — would need to be assessed.

Also, the 30-foot access easement for emergency vehicles would be acceptable, Riggs said, as long as it’s clear it’s not a “public access” easement.

“There’s a difference,” he said. “Not just for people to drive through whenever they want.”

Riggs confirmed Olson would maintain any private roads built.

Attorney Matt Nichols — hired to represent the town after town attorney Steve Coggins was recused due to a conflict of interest — fired away a number of questions regarding fencing, a lighting plan, how the structures will be built, impervious surface area and more.

Riggs confirmed the compound perimeter will not be fenced, but it will have a gated entrance and a fence around the swimming pool. He also said a lighting plan was not yet devised but assured it would comply with the town’s ordinances.

The application has the proposed structures located within a designated boundary, allowing Olson to have flexibility on their exact location. Riggs said the point is to work with environmental agencies to place the homes in the least obstructive way to the environment.

“So [the structures] can go anywhere within the building envelope provided you meet ocean hazard CAMA setbacks?” Nichols asked. “So they could be pushed farther forward?”

Riggs said he would be open to the town imposing an additional setback restriction from the first line of vegetation. This would also naturally reduce the building envelope up to 8 acres.

The homes are proposed to be constructed 100-feet-by-40-feet; it does not include decking. Town staff and board members requested Riggs bring back an estimated size of any associated decking with the seven dwellings.

The total impervious surface noted on the submitted plans equals 42,752 square feet, so for seven houses, that means an average of 6,107 square feet per house.

Council of government consultant Wes MacLeod — not related to the McLeod land owners — suggested the board impose a maximum square footage of the structure’s floor plans to 4,000 or 5,000 square feet. The board did not come to a decision at Wednesday’s meeting about limiting the building size.

On top of dwellings, Riggs proposed a 5,616-square-foot maintenance building, a 1,276-square-foot pool house, and more than 22,000 square feet for the beach access walkway and associated gazebo.

The pool and boat houses will be equipped with kitchens and bathrooms, essentially making them habitable structures. 

Board member Jerry Hall was not a fan of those plans, but did not receive consensus from the board to make a condition requiring the structures to not be habitable.

“You need to take into account, this is generational planning,” Riggs said. “It could be 20 or 30 years before [other structures are built]; the goal now is to build one dwelling.”

The single-story homes will be constructed on pilings but won’t exceed the height of Serenity Point buildings, 40.7 feet. Olson will be installing a septic system and water wells, since the town will not provide utility connections for fear of losing federal funding.

Since the property lies within a flood hazard zone, it would not receive federal assistance if impacted by a major storm. Staff confirmed with FEMA that regulation only applies to areas that are developed, not the remaining land.

Electricity would be provided through Jones Onslow Electric Membership Cooperative, which submitted a confirmation email to Riggs. As long as Olson receives local, state and federal zoning and permits for construction, the company will provide electricity to the site.

Not included in the application or total acreage was the rezoning of the private roadways.

“So, are you rezoning more than 30.08 acres?” Nichols asked. “It’s part of the project.”

MacLeod said the roads would need to be included, else they would become public streets.

Olson’s proposed six-slip marina also was left out of the application. Riggs said it was “an unusual request,” and he did not think the town had jurisdiction over the waterway. Topsail’s zoning extends into the channel.

“The [conservation district] doesn’t permit marinas,” MacLeod said, meaning the marina has to also be included in the rezoning request, but the current district prohibits its use.

The marina, for private use only, will be roughly 300 feet in length. Two options are being presented for its location, which Riggs said allows more opportunity for the Division of Coastal Management to grant a permit.

“We’ll only have one, but we’ll try to get whichever one the coastal management will get permitted to build,” he said.

Both locations pose a potential barrier to public access, though. The elevated walkways — cutting 150 feet across the dunes — would impact the public land trust area people walk through daily, the oceanfront of the beach from the water’s edge to the mean high-tide line. Resident John Aldersen said it poses a risk.

Of the 150 acres, Olson has said he will conserve about 120. However, planning board members and the public were skeptical of his follow-through upon application approval.

Ward and Smith attorney Dana Lingenfelser, representing Olson, confirmed there have been ongoing negotiations with the N.C. Coastal Land Trust for a conservation easement agreement. Lingenfelser could not speak to specifics, since the deal was not ironed out.

“We anticipate this would be probably close to 80% of the actual acreage, at least 115 acres of this land, placed under use restrictions,” she said. “The exact restrictions I don’t have now, but we have a written letter of intent that sets out ideas.”

She said it would likely restrict any development from occurring, in perpetuity, regardless of who owns the land.

When asked by planning board member David Barnes if they could see the letter of intent, Lingenfelser said it’s proprietary at this time, but she would ask Olson.

McLeod attorney Terrell told the board “over-regulation” of land could be considered a taking, and he thinks Olson’s application is a fair balance of property rights and protecting the public’s interest.

“More than likely we’ll be revising the conditions, to clarify granting of easements, and types of easements, things of that nature,” Riggs told the board.

All conditions are subject to any final recommendation at the planning board’s next meeting, May 24; members will also have to vote on approval or denial at that time.

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