TOWN OF DUCK
BOARD OF ADJUSTMENT MINUTES
MARCH 7, 2003
The Board of Adjustment for the Town of Duck convened at the Duck municipal offices at 2:00 P.M. on Friday, March 7, 2003.
BOARD OF ADJUSTMENT MEMBERS PRESENT: Olin Finch, Denver Lindley, Jr., Alan H. Starr, Sam Taylor, John Brock, Nancy Caviness (alternate), Pat Wardlaw (alternate) and Darwin "Doc" Drewer (alternate). Others present: Town Clerk and Town Attorney Donald I. McRee, Jr., and Town Manager Chris Layton.
The meeting was called to order by Town Clerk Donald I. McRee, Jr. at 2:00 P.M. Upon calling the meeting to order, Town Clerk Donald I. McRee, Jr. administered the oath of office to Olin Finch, Denver Lindley, Jr. Alan H. Starr, Sam Taylor, John Brock, Nancy Caviness, Pat Wardlaw and Darwin Drewer, Jr.
ORGANIZATION OF THE BOARD OF ADJUSTMENT
Motion was made by Denver Lindley, Jr. to appoint Sam Taylor as chair. There being no further nominations, the motion carried 8-0.
Motion was made to elect Alan H. Starr as vice-chair. There being no further nominations, the motion carried 8-0.
Motion was made to appoint Town Manager Chris Layton as Secretary to the Board of Adjustment. There being no further nominations, the motion carried 8-0.
John Brock had to leave the meeting before the hearing began, and Nancy Caviness was appointed as an alternate to serve in his place.
CONSIDERATION AND ADOPTION OF RULES OF PROCEDURE
Town Attorney Donald I. McRee, Jr. presented to the Board of Adjustment proposed Rules of Procedure. After view and discussion, a motion was made to adopt the following Rules of Procedure for the Zoning Board of Adjustment:
RULES OF PROCEDURE
ZONING BOARD OF ADJUSTMENT,
Town of Duck
North Carolina
I. GENERAL RULES
The Zoning Board of Adjustment shall be governed by the terms of Chapter 160A, Article 19, Part 3 of the General Statutes of North Carolina and by the Zoning Ordinance of the Town of Duck. All members of the Board shall thoroughly familiarize themselves with these laws.
II. OFFICERS AND DUTIES
A. Chair. A chair shall be elected by the full membership (including alternate members) of the Board of Adjustment from among its regular members. The Chair's term of office shall be one year and until a successor is elected, beginning on July 1, and the Chair shall be eligible for re-election. The chairman shall decide on all points of order and procedure, subject to these rules, unless directed otherwise by a majority of the Board in session at the time. The chair shall appoint any committees found necessary to investigate any matters before the Board.
B. Vice Chair. A vice chair shall be elected by the Board from among its regular members in the same manner and for the same term as the chair. The vice chair shall serve as acting chair in the chair's absence, and at such times he shall have the same powers and duties as the chair.
C. Secretary. A secretary shall be appointed by the chair of the Board, either from within its membership or from outside, to hold office during the term of the chair and/or until a successor secretary has been appointed. The secretary shall be eligible for reappointment. The secretary, subject to the direction of the chair and the Board, shall keep all records, shall conduct all correspondence of the Board, shall arrange for all public notices required to be given, shall notify members of pending meetings and their agenda, shall notify parties to cases before the Board of its decision on such cases, and shall generally supervise the clerical work of the Board. The secretary shall keep the minutes of every Board meeting in a permanent volume. The minutes shall show the record of all important facts pertaining to each meeting and hearing, every resolution acted on by the Board, and all votes of members of the Board on any resolution or on the final determination of any question, indicating the names of members who are absent or fail to vote. If the secretary is chosen from outside the Board's membership, the secretary shall not be eligible to vote on any matter.
D. Clerk. A clerk shall be appointed by the chair of the Board either from within membership or from outside, to hold office during the term of the Chair and/or until a successor clerk has been appointed. The clerk shall be eligible for reappointment. The clerk shall perform such tasks as the chair may assign and shall assist the secretary generally in performing the clerk's duties. If the clerk is chosen from outside the Board's membership, the clerk shall not be eligible to vote on any matter.
III. ALTERNATE MEMBERS
Alternate members of the Board shall be called on to attend only those meetings and hearings at which one or more regular members are absent or are unable to participate in hearing a case because of financial or other interest. Regular members, on receiving notice of a special meeting that they cannot attend or on learning that they will be unable to participate in a particular case, shall give prompt notice to the Board secretary that they are unable to attend or to participate. On receiving such notice, the secretary shall, by the most expeditious means, notify an alternate member to attend. Assignments shall be rotated among the alternate members. At any meeting that they are called on to attend, alternate members shall have the same powers and duties as regular members.
Except at the election of officers, at no time shall more than five members participate officially in any meeting or hearing.
IV. RULES OF CONDUCT FOR MEMBERS
A. Members of the Board may be removed for cause, including violation of the rules stated below.
B. Faithful attendance at all Board meetings and conscientious performance of the duties required of Board members shall be considered a prerequisite of continuing membership on the Board.
C. No Board member shall take part in the hearing, consideration, or determination of any case in which he is personally or financially interested.
D. No Board member shall vote on any matter that decides an application or appeal unless he has attended the public hearing on that application or appeal.
E. No Board member shall discuss any case with any parties thereto before the public hearing on that case; provided, however, that members may receive and/or seek information pertaining to the case from any other member of the Board, its secretary, or clerk before the hearing.
F. Members of the Board shall not express individual opinions on the proper judgment of any case with any parties thereto before that case is determined. Violation of this rule shall be cause for dismissal from the Board.
V. MEETINGS
A. Regular Meetings. Regular meetings of the Board shall be held provided that meetings may be held at any other convenient place in the town if the chair so directs before the meeting.
B. Special Meetings. The chair may call special meetings of the Board at any time. At least forty-eight (48) hours' written notice of the time and place of special meetings shall be given, by either the secretary or the chairman, to each member of the Board.
C. Cancellation of Meetings. If there are no appeals, applications for special use permits or variances, or other business for the Board, or if so many regular and alternate members notify the secretary that they cannot attend that a quorum will not be available, the chair may dispense with a regular meeting by giving written or oral notice to all members not less than twenty-four (24) hours before the time set for the meeting.
D. Quorum. A quorum shall consist of three (3) members of the Board, but the Board shall not pass on any question relating to an appeal from a decision, order, requirement, or determination of the Building Inspector or an application for a variance or special use permit when fewer than five (5) members are present.
E. Voting. All regular members may vote on any issue unless they have disqualified themselves for one or more of the reasons listed in Section IV. The required vote to decide appeals and applications shall be as provided in Section VI, D, 4, and shall not be reduced by any disqualification. In all other matters the vote of a majority of the members present and voting shall decided issues before the Board.
F. Conduct of Meetings. All meetings shall be open to the public. The order of business at regular meetings shall be as follows: (a) roll call; (b) approval of minutes of the previous meeting; (c) hearing of cases; (d) reports of committees; (e) unfinished business; (f) new business; (g) consideration and determination of cases heard.
VI. APPEALS AND APPLICATIONS
A. Types of Appeals. The Board shall hear and decide all appeals from and review any order, requirement, decision, or determination made by the Building Inspector. It shall also hear and decide all matters referred to it or on which the Zoning Ordinance of the Town of Duck requires it to pass. In deciding appeals, the Board may hear both those based on an allegedly improper or erroneous interpretation of the ordinance and those based on alleged hardship resulting from strict interpretation of the ordinance.
B. Procedure for Filing Appeals. No appeal shall be heard by the Board unless notice thereof is filed within [thirty (30)] days after the interested party or parties receive notice of the order, requirement, decision, or determination by the Building Inspector. The applicant must file his application for a hearing with the Building Inspector, who shall act as clerk for the Board in receiving this notice. All applications shall be made on the form furnished for that purpose, and all information required thereon shall be complete before an appeal may be considered as having been filed.
C. Hearings.
1. Time. After notice of appeal is received, the Board chairman shall schedule the time for a hearing, which shall be at a regular or special meeting within thirty-six (36) days from the filing of such notice of appeal.
2. Notice. The Board shall give public notice of the hearing in a newspaper generally circulated in the Town of Duck by advertisement published at least five (5) days before the date of the hearing. The Board shall mail notices of the hearing to the parties to the action appealed from, and to such other persons as the Building Inspector shall direct, at least five (5) days before the hearing.
Such notice shall state the location of the building or lot, the general nature of the question involved in the appeal, and the time and place of the hearing.
3. Conduct of the Hearing. Any party may appear in person, by agent, or by attorney at the hearing. The order of business for each hearing shall be as follows: (a) the chair, or such person as the chair shall direct, shall give a preliminary statement of the case; (b) the applicant shall present the evidence and arguments in support of his application; (c) persons opposed to granting the application shall present the evidence and arguments against the application; (d) both sides shall be permitted to present rebuttals to opposing evidence and arguments; (e) the chair shall summarize the evidence that has been presented, giving the parties opportunity to make objections or corrections. Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law. The Board may view the premises before the hearing, but the facts indicated by such inspection shall be disclosed at the public hearing and made a part of the record. All witnesses before the Board shall be placed under oath, and the opposing party may cross-examine them.
4. Rehearings. An application for a rehearing may be made in the same manner as an application for an original hearing. Evidence in support of the application shall initially be limited to what is necessary to enable the Board to determine whether there has been a substantial change in the facts, evidence, or conditions in the case. The Board shall deny the application for rehearing if, from the record, it finds that there has been no substantial change in facts, evidence, or conditions. If the Board finds that a change has occurred, it shall thereupon treat the request in the same manner as any other application.
D. Decisions.
1. Time. Decisions by the Board shall be made not later than thirty (30) days from the time of the hearing.
2. Form. The Board's final decision shall be shown in the record of the case as entered in the Board's minutes and signed by the secretary and the chairman on approval of the minutes by the Board. Such record shall show the reasons for the determinations, with a summary of the evidence introduced and the findings of fact made by the Board. When a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the appeal was based and which the Board finds to exist. The decision may reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination appealed from. When a conditional use permit is granted, the record shall state in detail any facts that support findings required to be made before such permit is issued. The record shall state in detail what, if any, conditions and safeguards the Board imposes in connection with granting of a variance or a conditional use permit. A separate record of the decision in each case shall be prepared, filed in the Town Clerk's office, the Planning Department, and furnished to the parties as specified in Subsection 5.
3. Expiration of Permits. Unless otherwise specified, any order or decision of the Board granting a conditional use permit or a variance shall expire if the applicant does not obtain a building permit or certificate of occupancy for such use within six (6) months from the date of the decision.
4. Voting at Hearings. The concurring vote of four-fifths of the Board members shall be necessary to reverse any order, requirement, decision, or determination of the Building Inspector, to decide in favor of the applicant any matter on which the Board is required by ordinance to pass, or to grant a variance from the ordinance provisions.
5. Notice and Public Record of Decisions. The secretary shall give written notice of the decision in the case to the appellant and/or the applicant and to every aggrieved party who has filed a written request for such notice with the secretary or the chairman of the board when the hearing is held. Such notice may be delivered either by personal service or by registered mail or certified mail, return receipt requested. A copy of the decision shall also be filed in the Town Clerk's office as specified in the zoning ordinance. The decision shall be a public record, available for inspection all reasonable times.
VII. AMENDMENTS
These rules may, within the limits allowed by law, be amended at any time by an affirmative vote of not less than [four (4)] members of the Board, provided that such amendment be presented in writing at a regular or special meeting before the meeting at which the vote is taken.
The Rules of Procedure as detailed herein were adopted by motion 8-0.
CONSIDERATION OF APPEAL OF ALL IS GIFT, LLC FROM A DECISION OF THE DARE COUNTY PLANNING DEPARTMENT ACTING AS ZONING ADMINISTRATOR FOR THE TOWN OF DUCK
Chairman Taylor opened the hearing to consider the appeal of All Is Gift., LLC from the decision of the Dare County Planning Department acting as Zone Administrator under the Town of Duck Zoning Ordinance granting final cite approval to I.G. Holdings, LLC for the construction of a Wings retail store at 1188 Duck Road in Duck, North Carolina. All Is Gift, LLC was represented by its attorney, Michael B. Brough, I.G. Holdings, LLC was represented by its attorney, E. Crouse Gray, Jr. and the Dare County Planning Department was represented by Dare County Attorney Norma Mills. Chairman Taylor requested that all persons who would be providing testimony to the Board be sworn upon which Town Clerk Donald I. McRee, Jr. administered the oath to all persons testifying or presenting evidence before the Board of Adjustment.
Having heard all of the evidence and arguments presented at the hearing, and permitting cross-examination, the Board of Adjustments entered deliberations and decided by a vote of 3-2 to make the following findings of fact and conclusion; members Taylor, Finch and Lindley, Jr. voted to deny the appeal and members Caviness and Starr voted to approve the appeal.
NORTH CAROLINA TOWN OF DUCK
DARE COUNTY BEFORE THE BOARD OF ADJUSTMENT
ORDER AFFIRMING ACTION OF ZONING ADMINISTRATOR
The Board of Adjustment for the Town of Duck, having held a public hearing on March 7, 2003 to consider the appeal of All Is Gift, L.L.C. from the decision of the Dare County Planning Department (acting as zoning administrator under the Town of Duck Zoning Ordinance) granting final site plan approval to I.G. Holdings, L.L.C. for the construction of a Wings retail store at 1188 Duck Road in Duck, North Carolina. All Is Gift, L.L.C. was represented by its attorney Michael B. Brough, I.G. Holdings, L.L.C. was represented by its attorney E. Crouse Gray, Jr. and the Dare County Planning Department was represented by Dare County Attorney Norma Mills.
Having heard all of the evidence and arguments presented at the hearing, the Board makes the following:
FINDINGS OF FACT
1. All Is Gift, L.L.C. owns property at 1184 Duck Road, Duck, North Carolina, which property sits directly adjacent to the south side of the property owned by I.G. Holdings, L.L.C. and the proposed location of the Wings retail store.
2. I.G. Holdings, L.L.C. owns property at 1188 Duck Road, Duck, North Carolina and
in November of 2002 submitted a site plan for a proposed new Wings retail store to the Dare County Planning Department which pursuant to an Interlocal Government Agreement between the Town of Duck and Dare County, the Dare County Planning Department is acting as the town’s zoning administrator.
3. The staff person responsible for reviewing the site plan submission from I.G. Holdings, L.L.C. was Dare County Chief Planner Donna Creef. Representatives of I.G. Holdings, L.L.C. met with Donna Creef and several Town of Duck officials in early December to discuss the proposed site plan. On or about December 10, 2002, Donna Creef mailed a list of comments to the engineer for I.G. Holdings, L.L.C. suggesting what she felt would help the Wings project meet the minimum requirements of the Duck Zoning Ordinance, (the “Ordinance”).
4. Based on the information received during the meeting between the representatives
of I.G. Holdings, L.L.C., Donna Creef and Town of Duck officials and the letter of Donna Creef dated December 10, 2002, I.G. Holdings, L.L.C. subsequently submitted a revised site plan and on January 8, 2003 the Dare County Planning Department gave site plan approval to the Wings site plan.
5. As part of its submission, I.G. Holdings, L.L.C. voluntarily provided the Dare County Planning Department with a lighting plan for the project. The lighting plan graphically showed that the center light fixture on the eastern side of the project would generate between 8.3 and 8.1 foot-candle units of illumination which exceeds the 8.0 foot candle units allowed by the Ordinance. Additionally, the lighting plan graphically showed that the illumination of the concrete sidewalk in front of the retail store and the steps and walkway on the north side of the retail store will vary widely from around 0.2 foot candle units to 0.5 foot candle units of illumination. Section 46 of the Ordinance requires a constant 0.5 foot candle units of illumination.
6. Thereafter, All Is Gift, L.L.C. timely filed its appeal of the Dare County Planning Department’s determination that the site plan submitted by I.G. Holdings, L.L.C. met the minimum requirements of the Ordinance. Specifically, All Is Gift, L.L.C. asserted that site plan approval was improperly issued because:
a. the project as presented violated Section 46(e)(B) of the Ordinance which sets forth specific minimum and maximum lighting allowances for specific outdoor lighting uses; and
b. the project as presented violated Section 43 of the Zoning Ordinance which allows sand dunes to be disturbed or removed under some circumstances but mandates that “a horizontal - vertical slope not to exceed 4' to 1' shall be maintained. . . .”.
7. All Is Gift, L.L.C. further asserted that the approved site plan gives incomplete information related to a number of zoning provisions and therefore does not allow the Planning Department to determine, as required by Section 53 of the Ordinance, whether the proposed project will comply with every regulation set forth by the Ordinance. Specifically, All Is Gift, L.L.C. asserted that:
a. as required by Section 44(b) of the Ordinance, the approved site plan offers no
information as to whether a proposed sign on the site will be constructed to withstand wind and load distribution pressures as specified in Section 1205 of the North Carolina Building Code;
b. as required by Section 44(d) of the Ordinance, the site plan fails to indicated whether the sign at the front of the proposed Wings retail store will be illuminated and whether the sign would meet the shielding and glare requirements of the Ordinance;
c. the approved site plan or lighting plan does not mention whether the sign will comply with size and height restrictions provided for in Section 44(g) of the Ordinance; and
d. the site plan and lighting plan do not indicate that security lighting will be provided as required by Sections 46(d)(3), 46(e)(A)(2)a and 46(e)(A)(2)b of the Ordinance.
8. Section 46(d)(7) of the Ordinance provides that:
For any conditional use, an outdoor lighting plan shall be submitted in conjunction with the submission of a site plan for Town Council review. For those projects not subject to conditional use permit review, an outdoor lighting plan may be required for those projects that feature a total of 10 or more exterior light fixtures as depicted on the site plans and/or building plans.
9. The use of the property of I.G. Holdings, L.L.C. for a retail store is a permitted use
in the V-C zoning district and does not require Town Council review. Additionally, the I.G. Holdings, L.L.C. project features nine (9) exterior features as depicted on the site plans or building plans.
10. As provided by Section 46 of the Ordinance, I.G. Holdings, L.L.C. was not required
to submit a lighting plan for approval of its site plan.
11. The lighting plan submitted by I.G. Holdings, L.L.C. is a computer generated graphic
that is used as a tool to exhibit a model of illumination levels that might be expected on a site. It is not uncommon to adjust illumination at a site with the aid of light meters upon installation and electrification of lighting.
12. The computer generated lighting plan does not take into consideration the light
through the structures windows that is expected, or will be altered, to increase the foot candle units along walkways in front and on the north side of the retail store to a consistent 0.5 foot candle unit of illumination.
13. Dare County Planning Department staff is unable to verify whether lighting actually
complies with the Ordinance until such time as the lighting is installed and electrified and the lighting can be measured on site with a light meter.
14. Notes 13 through 15 on the approved site plan provide:
“13. All lighting fixtures shall be 100 watt Dominion Power Ultra Fixtures on 18' poles. Lighting standards shall comply with Section 46 of the Duck Zoning Ordinance.
14. Lighting fixtures shall be located on the site and shielded or oriented in such a manner as to minimize light spill across property lines and prevent undue glare at any location on or off the property.
15. Light fixtures and supporting structures shall be constructed to comply with North Carolina State Building Code requirements.”
15. The notes to the approved site plan are a material condition for approval of the site
plan and the Dare County Planning Department will not issue a certificate of occupancy to I.G. Holdings, L.L.C. until all terms and conditions of the site plan are met.
16. Section 43 of the Ordinance allows sand dunes to be disturbed or removed under some circumstances. If an allowed cirumstance exists, Section 43 provides that “A horizontal - vertical slope not to exceed 4' to 1' shall be maintained unless the dune-disturbing activity is intended to provide elevations that are consistent with abutting properties.”
17. Grading of the sand dune on the I.G. Holdings, L.L.C. property is required for installation of septic improvements as authorized by the Dare County Health Department.
18. The property abutting the I.G. Holdings, L.L.C. property on the north is at an elevation and slope that exceeds a horizontal - vertical slope of 4' to 1'. The maximum slope of the I.G. Holdings, L.L.C. following grading will exceed a horizontal - vertical slope of 4' to 1' only to the extent it is necessary to maintain an elevation consistent with the property abutting the I.G. Holdings, L.L.C. property on the north.
19. Section 44 of the Ordinance provides for the regulation of signs and outdoor advertising structures. Section 44(a) of the Ordinance provides:
No sign or outdoor advertising structure shall be erected or attached to, suspended from or supported on a building or structure . . .until a building permit for the same has been issued by the building inspector.
20. The location of a sign for the retail store on the I.G. Holdings, L.L.C. property is
shown on the approved site plan. There is no requirement in the Ordinance that, for site plan approval, an applicant must at that time provide information as to whether the sign will comply with Section 44 of the Ordinance. Rather, the Ordinance provides for the permitting of a sign independently of a site plan approval and requires that prior to the erection of a sign the applicant must receive a building permit which will necessitate that the applicant show to the building inspector that the sign will be constructed and designed according to generally accepted engineering practices to withstand wind and load distribution pressures as specified in section 1205 of the North Carolina State Building Code; that lighting from the sign be oriented or shielded so that light and glare reflects away from the streets and adjacent property; and that the sign will meet restrictions on size and height.
THEREFORE, based on the foregoing FINDINGS OF FACT, the Board makes the following:
CONCLUSIONS OF LAW
1. As provided by Section 46 of the Ordinance, I.G. Holdings, L.L.C. was not required to
submit a lighting plan and in any event will be required to comply fully with the
provisions of that section prior to issuance of a certificate of occupancy.
2. As provided by Section 43 of the Ordinance, I.G. Holdings may disturb the dune
located on the north end of its property and as provided by that section may exceed a horizontal - vertical slope of 4' to 1' in order to provide an elevation consistent with the abutting property.
3. As provided by Section 44 of the Ordinance, I.G. Holdings is not required at the time
of site plan approval to apply for a building permit and show compliance with the provisions of that section.
4. The Dare County Planning Department, acting as the Zoning Administrator for the
Town of Duck, has properly interpreted the Ordinance and approved the site plan submitted by I.G. Holdings, L.L.C.
THEREFORE, based on the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, it is hereby ORDERED that the decision of the Dare County Planning Department, acting as the Zoning Administrator for the Town of Duck, granting final site plan approval to I.G. Holdings, L.L.C. for the construction of a Wings retail store at 1188 Duck Road in Duck, North Carolina is hereby AFFIRMED.
Entered in open session the 7th day of March, 2003 and signed the 7th day of April, 2003.
ADJOURNMENT
There being no further business, Chairman Taylor adjourned the meeting. The time was approximately 7:30 P.M.
______________________________
/s/ Secretary