Nags Head business owners urge postponement of public hearing on zoning changes

Published 8:42 am Tuesday, February 28, 2023

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Nags Head Café owner Michael Roderer, Brew Thru president Philip Foreman and Kitty Hawk Kites owner John Harris are urging Nags Head commissioners to postpone the public hearing scheduled for tomorrow, March 1 at 9 a.m.

At the public hearing, commissioners will consider zoning changes recommended by the planning board from Hollowell Avenue to Danube Street, between Hwy 158 and NC 12, as well as properties on the east side of Memorial Avenue from Bainbridge Street south to Hollowell Avenue.

The area is currently zoned C-2, or General Commercial. C-2 is a broad zoning designation, offering a wide range of uses and few restrictions.

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The planning staff is recommending that some properties be rezoned High Density Residential (R-3), and others be rezoned to the newly created Historic Character Commercial (C-5).

C-5, while commercial, would be focused more on smaller retail and boutique-style shops, restaurants, personal service establishments, single family dwellings and offices “which is more consistent with the charm and character of the National Register Historic District, Jockey’s Ridge, and existing residential uses,” according to the town’s FAQ page online.

The C-5 district reduces the types of businesses that are allowed and the size of the buildings that are allowed.

Nags Head Café has been in Roderer’s family for 40 years. The building dates back to the 1940s when it was Harris Grocery. The one-acre property now houses the café, a bed & breakfast and a licensed coffee roaster. Under C-2, the business use and the building size are compliant with all current regulations.

The current square footage of Nags Head Café is 4,030, which exceeds the allowable max of the C-5 district (3,500 square feet), making it “noncompliant” should the amendments pass. The type of business, or “use,” would be permitted in C-5 with a special use permit.

“What’s a special use permit?” Roderer wondered in an interview with The Coastland Times on February 27.  “I don’t understand that. Who determines the special use? Who votes on that?”

Roderer and other Nags Head businesses owners have requested that the hearing be postponed to allow them time to fully understand the implications of the proposed changes.

Roderer received a letter from planning director Kelly Wyatt on February 16 notifying him of the public hearing. He immediately contacted Wyatt, then sent a letter to Mayor Ben Cahoon, Mayor Pro Tem Michael Siers and commissioners dated February 27. A portion of the letter states:

“It has been only 6 business days since I received a letter in the mail of the hearing scheduled for Marc 1. I have been seeking to understand the implications of this change since that time. Not only do I believe that some of the information published by the town regarding this matter may inadvertently be conflicting, but frankly, there has not been the level of engagement or discussion with affected property owners that I think has characterized matters of such significance in the past. I am concerned that such a serious decision, made in haste, may have serious implications for the future and therefore request additional time, 120-180 days or more, to understand the significance of the “Historic Character Area” and engage with planning staff and stakeholders.”

Roderer requested that his letter be read out loud and submitted into the record at the March 1 meeting as he had prior plans that caused him to be out of town.

A similar request was made by Foreman to Mayor Cahoon, though Cahoon said in email correspondence that Foreman sent to The Coastland Times that the reading of statements out loud was a practice allowed during the pandemic, but is no longer in effect. Foreman’s email will, however, be entered into the record.

Foreman’s letter states, in part, “What bothers me the most is the way in which we found out that our properties were possibly being rezoned,” said Foreman, who received his letter on February 25.  “That’s only 3 business days and is completely unacceptable. Every property owner, at a minimum, should have received a 90-day notice via certified mail with delivery confirmation. We should have been given the opportunity to understand exactly why Nags Head is trying to rush this rezoning through, why Nags Head is singling out our businesses and properties and be given time to hire legal representations to protect our interests. I hope that the town will choose not to move forward with the proposed rezoning at all, but at least, I urge you to postpone the hearing for 90 or more days so that we have time to prepare and be present at the hearing.

“I hope that you will all take a moment and put yourselves in the shoes of us who have been putting our blood, sweat and tears into our businesses, for multiple generations in many cases. We have been trying to do our best for our families, employees, customers and community. I know and respect each of you and feel in my heart that if you will consider the above, and put yourselves in our shoes, that you will do the right thing and NOT move forward with the unfair proposed rezoning amendments.  In Nags Head, all businesses and property owners should be treated equally,” the letter continued.

Brew Thru, as a drive-through convenience store, is no longer an allowable use, and though it is legally non-conforming currently in C-2, the use would not be permitted in C-5.

If amendments pass, the business would still be able to operate as-is, but would not be allowed to expand.

John Harris, owner of Kitty Hawk Kites, said his business would also be affected should the amendments pass. Kitty Hawk Kites at Jockey’s Ridge Crossing would be a nonconforming use as a shopping center, as well as a nonconforming structure at 20,000 square feet.

“The changes put the businesses between Danube and Hollowell at a disadvantage. It should do the opposite,” he said. “I don’t think that was the intent, but it’s the way that it is currently working out.”

Harris, who founded Kitty Hawk Kites in 1974, said that he has three main concerns about the proposed zoning changes.

The first involves his ability to rebuild in the event of storm damage or fire. Though Wyatt said a nonconforming structure would be allowed to rebuild in the event of a fire, Harris said that the current amendments do not give that allowance and “that’s a concern for all businesses.”

Harris is also concerned about the reduced lot coverage allowed in C-5 and how that may reduce property value for all businesses in the Historic Character Area. In C-2, a business can have up to 55% lot coverage – or the area of the lot that is covered by buildings or parking lots. C-5 is recommending 40% max lot coverage.

Thirdly, Harris questioned why businesses must operate under a special use permit, and if this would discourage people from investing in this part of Nags Head. “Again, then it’s not a level playing field with the town. It’s another level of scrutiny or oversight by the town for the businesses in that district,” he said.

Harris said he thinks C-2 is working for the town and doesn’t “see a strong need to make a change right now.”

“I care about the history and character of Nags Head and I care about the commercial history as well as the residential history. Both need to be considered equally, and I’m not sure of the best way to preserve the commercial history, but I do appreciate all the town’s work trying to do that,” Harris concluded.

Town manager Andy Garman, in an email response to The Coastland Times on February 27, said that the decision to reschedule the public hearing and/or table the item is up to the Nags Head Board of Commissioners. “If this is decision is made, it would likely be done during the [regularly scheduled board] meeting,” Garman said.

The public hearing is item F on the agenda for the March 1 commissioners meeting, after call to order, adoption of agenda, recognitions, public comment and the consent agenda. Generally, changes to the agenda are made when the board adopts the agenda at the beginning of the meeting.