TOWN OF DUCK
TOWN COUNCIL
REGULAR MID-MONTH MEETING
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 1:00 p.m. on Wednesday, March 17, 2004.
COUNCIL MEMBERS PRESENT: Mayor Gene Schwarz; Councilor Nancy Caviness; Councilor Monica Thibodeau; and Councilor Neil Morrison.
COUNCIL MEMBERS ABSENT: Mayor Pro Tempore Allan Beres was absent due to his vacation.
OTHERS PRESENT: Town Manager and Town Clerk Christopher J. Layton; Town Attorney Donald I. McRee, Jr.; Planning Director Sue Cotellessa and Deputy Town Clerk Lori Kopec.
The meeting was called to order by Mayor Schwarz at 1:00 p.m.
Mayor Schwarz opened the meeting stating that Planning Director Sue Cotellessa would be reviewing the zoning text amendment and explaining the changes and impacts. He encouraged Council as well as members of the audience to ask questions. He also added that changes would not be made immediately, but would come after a public hearing. Councilor Morrison asked if suggested changes could be made. Mayor Schwarz stated that suggestions could be made but that they would not be incorporated until after a public hearing.
Planning Director Cotellessa was recognized to speak. She stated that the Planning Board has been through many meetings on the nonconforming situation issue with a lot of input from the public. Planning Director Cotellessa reviewed the ordinance with Council and the audience.
Pat Pettit of Sandmark Construction was recognized to speak. Ms. Pettit asked what the difference was between a nonconforming use and a nonconforming structure. Planning Director Cotellessa stated that a nonconforming use could be a brick making factory in the middle of a residential neighborhood. Two homes on one lot, where only one is allowed, are considered a nonconforming use. An actual structure could also be considered nonconforming by height, setback and number of bedrooms.
Councilor Thibodeau asked if there were any significance to the shading of the text in the ordinance. Planning Director Cotellessa stated the shading was done to show where the Planning Board had made their changes.
Mayor Schwarz asked for clarification of the term “single family residential”. He asked if it meant all residential homes. Planning Director Cotellessa stated he was correct. She stated there are single family residential homes in the Village Commercial District. She stated that these homes would be able to be reconstructed if they were damaged as opposed to townhomes and commercial structures.
Councilor Caviness asked if a house can be rebuilt, would the pool be affected. Planning Director Cotellessa stated that as long as the pool is not affected and everything else around it can be rebuilt, it can stay in the ground.
Councilor Thibodeau asked if the date of May 7, 2006 under the section for outdoor lighting had to do with the ordinance adopted from Dare County. Planning Director Cotellessa stated that when the Town adopted the zoning ordinance from Dare County, there was simultaneously a section adopted of the zoning ordinance entitled Outdoor Lighting, which was brought forward by the Community Business Alliance. No dates have been changed for that section. Councilor Thibodeau asked if this section could be revisited by the Planning Board. Planning Director Cotellessa stated that it could.
Councilor Caviness asked if the language in regard to outdoor lighting has been on the books since 1996. Planning Director Cotellessa stated she wasn’t sure. Town Attorney Ike McRee stated Councilor Caviness was correct.
Councilor Thibodeau asked if an elevator were to be installed in a home without the footprint changing, would the ordinance affect what people are looking to do or would it have to go through a Board of Appeals process. Planning Director Cotellessa stated the ordinance applies more to casualty loss. The addition of an elevator shaft itself, provided it meets all the setbacks onto a house that is nonconforming, is not a problem. If a homeowner had taken a piece of a bedroom internally, created a hall and put in an elevator shaft, it would not be a problem. Expanding uses versus structures where it does not exist, it will not be affected by the ordinance.
Mayor Schwarz stated that when the public hearing is held, he felt it would be appropriate to review the zoning text amendment again so people are clear on the issues.
Councilor Caviness stated she appreciated Planning Director Cotellessa’s focus on wanting to explain this issue at the upcoming community forums.
Kevin Schwartz of the Outer Banks Homebuilders Association was recognized to speak. Mr. Schwartz stated he appreciated the process that the Planning Board went through to get to this point with the ordinance.
DISCUSSION OF A FIREWORKS DISPLAY ON THE 4TH OF JULY
Town Manager Layton was recognized to speak. He stated he spoke to Carl Miller of the Corps of Engineers in regard to having a fireworks display at the end of the Corps pier. Mr. Miller stated that a display would not be allowed.
Councilor Caviness stated that the Corps property is one of the most feasible areas in Duck at the present time to hold a fireworks display. She stated that possibly when the Town’s property is in a more useable state, the fireworks display may be held there.
Councilor Thibodeau stated that coordinating a fireworks display takes a lot of time and effort but it would be a good tradition to start.
Mayor Schwarz stated that this is something that can be worked on since the Corps property cannot be utilized.
REVIEW OF ORDINANCES
Mayor Schwarz stated that when the Town was incorporated there was a real agenda to get the ordinances passed. He felt it was wise to review them for any errors or changes. He asked how the ordinances should be reviewed. Town Manager Layton stated he would like to go through each section, discussing items as needed along the way.
Councilor Morrison asked if an item is wrong in the ordinance and needs to be changed, what process should take place. Town Manager Layton stated it should be discussed, noted and action can be taken at the next meeting. Mayor Schwarz stated that spelling errors should be noted as well.
Councilor Thibodeau asked what the rationale was in selecting the ordinances to review. Councilor Caviness stated the ordinances were chosen because they had to do with the new municipal property or had to do with issues that are forthcoming.
Town Manager Layton reviewed Ordinance #02-01 with Council and the audience. Town Manager Attorney McRee was recognized to speak. He stated that most of the ordinance is based upon the Open Meetings Law as well as the suggested rules of procedure by the Institute of Government.
Mayor Schwarz asked if the ordinance limits Council to having their retreats only in the Town of Duck. Town Manager Layton stated that, according to the ordinance, it does. Councilor Morrison asked if there could be a section added that referred to retreats. Town Attorney McRee stated that the statute of meeting law lets Council hold their meetings outside of the Town’s jurisdiction as long as a public notice was made. Mayor Schwarz asked if the ordinance prohibited Council from having meetings outside of the Town’s jurisdiction. Councilor Morrison recommended adding to Section 3, paragraph 3 to state: “Annual retreats may be held outside the boundaries of the Town.” Mayor Schwarz stated he wanted clarification on the issue. Town Attorney McRee stated that Council could hold meetings outside of Town, but to make it clear, language could be added to the ordinance. Councilor Thibodeau mentioned that this issue came up at the Essentials of Municipal Government meeting. She stated that several of the towns that attended the meeting had more than the majority of their Council there and some posted public notices.
Mayor Schwarz asked if Council needed to do anything. Town Manager Layton stated he had noted the clarification of permitting retreats off-site. Mayor Schwarz suggested wording it so that it doesn’t just pertain to retreats, but could also pertain to off-site meetings under special circumstances.
Town Manager Layton pointed out that Section 11, Election of Mayor was incorrect in that the mayor is not elected annually but biannually. Town Attorney McRee stated that the Town’s Charter takes precedence but that this should be changed as well as the section in regard to the Mayor Pro Tempore. Councilor Thibodeau asked if the Mayor should be elected by the Council. Town Attorney McRee stated the Mayor should be elected for a two year term and shall not be removed from office. Town Manager Layton then read the section of the Town’s charter on electing the Mayor to Council for clarification. Mayor Schwarz also pointed out that the Mayor does not second motions made by the Council and would like that stricken from the ordinance.
Mayor Schwarz then pointed out that members of Council must be recognized by the Mayor in order to address the board. Councilor Morrison suggested that Council raise their hands in order to be recognized. Councilor Thibodeau asked what the process is to be recognized. Mayor Schwarz stated that no one should talk unless they are recognized by the chair.
Councilor Morrison asked how the changes to the ordinance would be made. Town Attorney McRee stated the Council can adopt an ordinance amending the ordinance.
Mayor Schwarz asked for clarification on “consent agenda” under Section 13 Order of Business”. Town Attorney McRee stated it would be used to release taxes, give authorization for a public hearing, etc. Councilor Caviness asked if the ordinance they were discussing would be put on the consent agenda. Town Manager Layton stated that consent agendas are items that are noncontroversial and self-explanatory. He recommended not putting the ordinance amendment in the consent agenda. Councilor Caviness asked if the consent agenda item should be kept in the ordinance. Town Manager Layton stated he would like to keep it in. Mayor Schwarz suggested putting the minutes in the consent agenda. Town Manager Layton stated he could do that. Councilor Thibodeau asked if it would be done only if there were no changes to the minutes. Town Manager Layton stated that changes could be made. Councilor Caviness asked if Council would then just skip the agenda item “Approval of Minutes”. Town Manager Layton stated that minutes are typically seen as consent agenda items. Councilor Morrison asked if a motion is needed to approve the consent agenda. Town Manager Layton stated he was correct. Councilor Caviness stated that the consent agenda is a blanket approval to accept all the items listed.
Councilor Thibodeau asked who can request to have an item put on the actual agenda. Town Manager Layton stated that anyone can request to have an item on the agenda. He stated he generally asks a person to provide a letter which is included in the agenda. Councilor Morrison asked if a Council member requests an item be put on the agenda, does it need the approval of the mayor. Mayor Schwarz stated the final agenda is approved by the mayor. He stated that if a Council member wants an item put on the agenda and he didn’t feel it was appropriate, he would speak to the member about it. He stated he has the right to leave it off of the agenda, but that the Council member may bring it up during Council member’s agenda. Town Attorney McRee stated a Council member can bring it up during the course of the meeting and during their agenda.
Councilor Caviness asked how much time is needed to put an item in the agenda packet. Town Manager Layton stated he typically needs two to two and a half days to get a packet together. Mayor Schwarz stated that agendas are typically put together the Monday or Tuesday before the meeting. Town Manager Layton stated the agenda goes out the Friday before the meeting. Mayor Schwarz stated that if a Council member has something that they want put on the agenda that will take a lot of work by the staff, it could be delayed by a month unless it’s an urgent matter. Councilor Morrison asked if a member of the public asks for an item to be put on the agenda and is declined, would they be able to bring it up during public comments. Mayor Schwarz stated that he was correct. Mayor Schwarz suggested that Council vote to add or move an item on the agenda. Councilor Morrison asked why a second is not required when voting. Town Attorney McRee stated the first Council decided that since there are only five members and if one person supports an item, it constitutes twenty percent of the vote, making it sufficient support to bring the thought to the whole body.
Councilor Caviness asked for clarification on Section 19, Substantive Motion. Town Attorney McRee stated that a motion cannot be made when there is already another motion on the floor at that time.
Town Manager Layton finished reviewing Ordinance #02-01 with Council and the audience. Mayor Schwarz recommended a five minute recess before proceeding to the next ordinance.
The time was 2:15 p.m.
Mayor Schwarz reconvened the meeting. Councilor Morrison asked if Council should reply to citizens making public comments. Town Attorney McRee stated that most units of government have a policy of not responding to public comments because it is the public’s time to comment. By responding to the citizens, it could start a debate. Mayor Schwarz asked if Council should reply during their time to speak. Town Attorney McRee stated that some boards will make a point at the end of the meeting to respond to the citizens. Councilor Morrison asked if it is proper to respond at the end of the meeting or not. Town Attorney McRee stated that Council makes it clear in the beginning that Public Comments is a time to hear from the public but that Council will not respond to the comments during that period. Mayor Schwarz stated that for some comments, it is important for Council to respond, but other times there is no need for a response.
Councilor Thibodeau asked if items that will be brought up during a meeting should be discussed with the Town Manager or should it wait until the actual meeting. Town Attorney McRee stated he has seen it done both ways, but holding back is not fair to the Town Manager. He suggested that Council discuss the items with the Town Manager before the meeting. Mayor Schwarz felt it was more important to keep other Council members as well as the Town Manager informed.
Town Manager Layton reviewed Ordinance #02-02 with Council and the audience. He stated that Section 2, Regulatory Templates was amended to include the business component. Town Attorney McRee stated he thought the Board of Adjustment section was removed from this ordinance as well and placed in the zoning ordinance. Planning Director Cotellessa stated there is a section on the Board of Adjustments in the zoning ordinance. Mayor Schwarz stated it was also still in Ordinance #02-02. Town Attorney McRee stated he thought another ordinance was adopted to repeal the section on the Board of Adjustments. Town Manager Layton stated he would check the ordinances.
Councilor Morrison asked if the fireworks templates have been placed in the businesses that are selling them in Duck. Town Manager Layton stated he wants to wait another month before doing so.
Councilor Caviness asked if the contracted services include subcontractors that provide services for the Town. Town Manager Layton stated it was considered an administrative function that he is responsible for.
Councilor Morrison asked if the figure of $25,000.00 should be left in Section 3, Authorization for Town Manager to Enter into Certain Contracts. He asked if the figure is too high. Town Manager Layton stated the budget ordinance has a similar threshold, but breaks it into the different service contract areas. He stated that anything that costs $25,000.00 will be shown to the Council for approval. He stated the budget ordinance has a $20,000.00 cap, which he follows. Mayor Schwarz asked if Ordinance #02-02 should be changed to match the budget ordinance. Town Manager Layton stated it could be done. Councilor Morrison suggested changing the ordinance to match the budget ordinance.
Councilor Morrison asked if the Town Manager would always be the Town Clerk. Town Manager Layton stated that he would not be in the long run. Councilor Morrison asked if the Deputy Town Clerk should be listed in the ordinance. Town Attorney McRee stated that the Deputy Town Clerk is not established by the statutes. He stated the Deputy Town Clerk has all the powers and authority of the Town Clerk.
Mayor Schwarz asked if under Division 1, Planning Board, if the Planning Board should be compensated. Town Attorney McRee stated there is no authority for compensation in the ordinance. He stated that Council can authorize by motion to compensate the board. Mayor Schwarz pointed out that the Board of Adjustments can receive compensation and felt that language should be put in the ordinance to allow compensation to the Planning Board. Town Manager Layton agreed. Councilor Morrison suggested putting verbiage in the Planning Board section that is similar to the verbiage for the Board of Adjustments in regard to compensation.
Mayor Schwarz asked if the Chairman of the Planning Board is re-elected each year. Planning Director Cotellessa stated the election is scheduled for May. Mayor Schwarz asked if it was the same for the Board of Adjustment. Planning Director Cotellessa stated the chairman is elected to serve until either a special meeting is called to do an election or at the next available meeting. She stated at their last meeting they decided to call a meeting by July 1, 2004 for the election, if no other meeting intervened. Since a meeting will be held March 19, 2004, they will have an election for the person who will hold office as of July 1, 2004.
Town Manager Layton reviewed Ordinance #02-06 with Council and the audience. Councilor Caviness asked when a vehicle is considered a nuisance. Town Manager Layton stated it is on a complaint basis.
Planning Board Chairman Ron Forlano was recognized to speak. Chairman Forlano asked if his neighbor is repairing his vehicle and taking an extended period of time to fix it, does he have a right as a neighbor to call it a junk car and have it towed away. Town Manager Layton stated that many people have project cars but if the vehicle is sitting there and has the proper tags, it’s considered legal. The vehicle could also be put in a garage or screened so it’s not visible to the public. However if the vehicle is just sitting there, it can be declared a nuisance vehicle. Mayor Schwarz stated that Chairman Forlano does have the right to contact the Town in regard to the vehicle so the Town can take whatever action is necessary.
Councilor Caviness asked if the Duck Trail should be added to Section 8, Exceptions to Prior Notice Requirements. Police Chief Dale Hamilton was recognized to speak. Police Chief Hamilton stated that the parking ticket ordinance covers the Duck Trail. Town Manager Layton stated that citizens parking on the Duck Trail could be told that they are obstructing pedestrian traffic.
Town Manager Layton reviewed Ordinance #02-07 with Council and the audience. Councilor Caviness asked if a house is half built and the owners go bankrupt, causing the construction to stop, is it considered an abandoned structure. Town Attorney McRee stated it could be considered abandoned.
Councilor Thibodeau asked if, under Section 5, Procedure for Enforcement, would a hearing be held by the Planning Board. Town Attorney McRee stated that the building inspector would hold the hearing.
Town Manager Layton directed Planning Director Cotellessa to review Ordinance #03-07 with Council and the audience. Councilor Thibodeau asked if the Planning Board is re-examining this ordinance at the present time. Planning Director Cotellessa stated that the Planning Board is doing a step by step look at every aspect of the zoning ordinance, much like what Council is doing with the ordinances.
Chairman Forlano was recognized to speak. He stated that the Planning Board is presently looking at the permeability of surfaces for driveways and parking areas. He stated that with the recent rainstorm, the water runoff made the main road very hard to drive on. He suggested that Council think about ways to handle the runoff and permeability of the driveways. He suggested looking into other forms of surface paving.
Mayor Schwarz stated he felt strongly about taking a hard look at the twelve foot wide impervious surface for driveways. Councilor Thibodeau stated she agreed with Mayor Schwarz. Councilor Morrison asked if the drive aisle was one way to control house size. Chairman Forlano stated that was exactly what the Planning Board was looking at. Town Attorney McRee stated it had to do with life safety issues. Councilor Thibodeau asked if the Town ordinance in regard to the drive aisle supersedes a subdivision ordinance. Planning Director Cotellessa stated it would affect new houses. Existing homes that are remodeled to add a bedroom would also have to comply with the ordinance. Councilor Morrison asked if a homeowner remodels with a gravel driveway, does the Town require the homeowner to pave the driveway. Planning Director Cotellessa stated the Town does if the homeowner puts in a bedroom or affects the driveway in any way. Councilor Morrison asked if there was any way to withhold enforcing the requirement until the studies are completed. Town Attorney McRee stated there is really no way to ignore the provisions.
Councilor Thibodeau thanked Planning Director Cotellessa and the Planning Board for all of their hard work.
Town Manager Layton reviewed Ordinance #03-11 with Council and the audience. Councilor Morrison asked if the municipal property could be rezoned to C-PR. Town Manager Layton stated it would be a good idea and that the Town can initiate the process of rezoning. Councilor Thibodeau asked if the verbiage would be similar to what is in Ordinance #03-11. Town Manager Layton stated she was correct.
Councilor Morrison asked for an example of a private club that would be allowed in the C-PR district. Town Manager Layton stated The Currituck Club would be a good example.
Councilor Caviness asked if the height limitation on buildings is standard. Planning Director Cotellessa stated it is standard in most residential districts.
Town Manager Layton reviewed Ordinance #03-17 with Council and the audience.
Mayor Schwarz stated the work session was very productive and thanked Chairman Forlano for attending the meeting. He reminded Council of the North Carolina Coastal Community Coalition annual conference, which was held at Jockey’s Ridge on March 18, and 19, 2004. Town Manager Layton stated that each Council member had been signed up to attend. Mayor Schwarz also reminded Council of the League of Municipalities regional meeting, being held at Kelly’s Restaurant on March 30, 2004. Town Manager Layton stated that Deputy Town Clerk Lori Kopec would sign Council up if anyone was interested.
Mayor Schwarz asked for any other comments. There being none, he asked for a motion to adjourn.
ADJOURNMENT
Councilor Caviness moved to adjourn the meeting.
Motion carried 4-0. The time was 3:55 p.m.
__________________________
/s/ Town Clerk
Approved: ______________________
_______________________________
/s/ Gene Schwarz, Mayor