Topsail considers new zoning ordinance at request of tech entrepreneur

TOPSAIL BEACH —The Town of Topsail Beach is weighing its options to change its land development code. If approved, a new “conditional zoning” would attach certain conditions to proposed projects, enabling more flexibility in future development.

“It allows more or less a legal negotiation process between an applicant and the town,” local government services director Wes MacLeod said to Topsail commissioners at a meeting last Wednesday.

MacLeod provides planning and zoning technical assistance to the town as part of its service agreement with the Cape Fear Council of Governments. He noted to the planning board in June the main benefits of conditional zoning are to allow for public feedback, which a special-use permit, for example, doesn’t require. It also would authorize the town to define requirements based on comments and concerns expressed.

The potential modification to town ordinances came at the request of Todd Olson, a Topsail Beach property owner, in coordination with law firm Ward and Smith P.A. Olson submitted the application to the planning board two months ago.

Olson is the CEO and founder of Raleigh startup Pendo, a software production company. The billion-dollar technology hub opened in North Carolina in 2013 and now has locations in New York City, San Francisco, Israel, the U.K., Tokyo and Australia.

Ward and Smith attorney Clifford Parson confirmed Olson does have an “intent” with his plea for adding a conditional zoning but would not detail to the board what it is this time. He also said the amendment, if approved, would apply communitywide and be available for any applicant to use.

During June’s planning board meeting, Litcher asked twice about Olson’s agenda for proposing this change. “If Todd Olson hired you, and you submitted this and you’ve been working with the town, there’s no intent for this particular process?” she asked Parson.

Parson explained he approached the town with the request and staff suggested crafting up an ordinance.

“They put the burden on us,” he said, “as Todd’s attorney to present the item, but this is not a property-specific request.”

Parson detailed the process as a “team effort” allowing the town to work directly with the developer to ensure a project is acceptable to the community and town’s standards. It also only applies to a specific site, not an entire zoning district.

On June 22, the planning board voted 3-1 (Chair Cathi Litcher dissenting) to recommend the change to commissioners. Litcher expressed concerns about overburdening the “small” town staff with another application process and wanted community feedback on the proposed change prior to making a recommendation.

Topsail town planner and code enforcement officer Stephanie Moore explained it wouldn’t be any different than a special use permit and said the staff could handle the requests.

Planning board vice-chair Randy Leesburg was open to the idea of conditional zonings: “People should have options.”

The board of commissioners held a public hearing Wednesday, but no members of the community spoke for or against. Also no vote was taken by commissioners, who all seemed in favor of the idea.

Both MacLeod and Parson compared the conditional zoning to a special use permit, citing the differences between the two. A conditional zoning application goes through a legislative process and allows public comment. Special use permits require a quasi-judicial hearing by the board of commissioners that is highly regulated; the town is legally required to approve any requests able to show proof of why it’s needed.

The approval of a conditional zoning allows an applicant to apply non-traditional standards that would provide flexibility in density and site dimensional requirements.

MacLeod called it “creative development.”

Moore explained all conditional zoning applications are approved at the board of commissioners’ discretion. They are under no obligation to sign off on any request.

While many neighboring towns and counties already have this inclusion — such as North Topsail Beach, Surf City, Pender County and Wilmington — it’s the first time it’s ever been considered in Topsail.

City of Wilmington spokesperson Jennifer Dandron explained conditional districts are beneficial to the city “because some land uses have significant impacts on the immediate surrounding area (as well as the entire community), which cannot be predetermined and controlled by general district standards.”

For example, Wilmington approved a conditional zoning for a 72-unit multi-family senior affordable housing development on Middle Sound Loop Road on June 7. While a cluster of affordable housing units in a single location is typically “cautioned against” by the city’s comprehensive plan, the need for affordable housing outweighed those concerns.

Wilmington city staff decreed multiple conditions on the property prior to approval, including the installation of a 5-foot sidewalk, restrictions on tenant age to 55 years and older, retention of protected trees and certain final approvals and walk-throughs from the city before completion.

There are some limitations to a conditional zoning in Topsail, MacLeod explained.

If a conditional zoning is requested in a residential district, the proposal must comprise a minimum of 25 acres. “So, folks aren’t just coming to apply on single-family, small lots,” he said.

The 25-acre minimum does not apply to commercial areas in Topsail, allowing for requirements that may differ from the norm.

“It’s not the simplest tool but local governments who have put it in place find it to be very successful,” MacLeod said. “It results in a project you deny or you’re happy with. The goal is to have a fair solution.”

The Town of North Topsail Beach recently adopted conditional zonings, and the planning board recommended approval of its first case June 9. Property owners on Island Drive requested a rezoning from R-20 (single-family, low density) to R-15 (single-family and duplex development allowed) but with conditional zoning. They requested the R-15 district, but that the neighborhood remain single-family only to maintain the “integrity” and also allow for wider property lots than what is typically required.

There were some modifications requested to the proposed text amendment change though.

As part of a conditional zoning, an applicant must hold a public input meeting prior to submitting a proposal to the planning board. Town staff recommended a 10-day notice to the public for such meetings, but commissioner Frank Braxton asked to extend that request to 30 days. Other commissioners agreed, as Topsail has a large population of out-of-town residents and second-home owners.

The extended time would allow anyone wishing to speak in favor or opposition to a proposed development adequate advanced notice to be in town.

The board of commissioners may include a vote on conditional zonings at its Sept. 14 meeting, “if they feel they are ready after any further discussion on the topic,” deputy town clerk Rochelle Jagst confirmed.

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