TOWN OF DUCK
TOWN COUNCIL
REGULAR MEETING
October 6, 2004
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 7:00 p.m. on Wednesday, October 6, 2004.
COUNCIL MEMBERS PRESENT: Mayor Gene Schwarz; Mayor Pro Tempore Allan Beres; Councilor Neil Morrison; Councilor Monica Thibodeau; and Councilor Nancy Caviness.
OTHERS PRESENT: Town Manager and Town Clerk Christopher J. Layton, Town Attorney Donald I. McRee, Jr., Planning Director Suzanne Cotellessa; Fire Chief John Brock; and Deputy Town Clerk Lori Kopec.
Mayor Schwarz called the meeting to order at 7:00 p.m. Mayor Schwarz led the Pledge of Allegiance and moment of silence.
PUBLIC COMMENTS
Mayor Schwarz opened the floor for public comments. He asked that all comments in regard to the Public Hearings be held off. There being no one wishing to speak, Mayor Schwarz closed the time for public comments.
SPECIAL PRESENTATION
Mayor Schwarz stated that in the month of August, there were a few rainy days resulting in some areas of Duck to flood, specifically the Tuckahoe subdivision entrance. The Town called for volunteers to come out and help. He stated the Town cannot compensate the volunteers for what they have done but wanted to recognize them with a Town of Duck t-shirt. Mayor Schwarz showed the shirt to Council and the audience and preceded to hand the shirts to those that volunteered during the August storm events. He thanked the volunteers for their help.
Mayor Schwarz went on to recognize Councilor Thibodeau, Councilor Morrison, Lee Morrison and Rosalie Schwarz for their help with the litter sweep.
APPROVAL OF MINUTES
Mayor Schwarz opened the approval of minutes from the September 1, 2004 regular meeting and the September 15, 2004 mid-month meeting. Mayor Schwarz directed Council to review the minutes from the September 1, 2004 meeting for changes.
Councilor Morrison moved to approve the September 1, 2004 minutes as presented.
Motion carried 5-0.
Mayor Schwarz directed Council to review the minutes from the September 15, 2004 meeting for changes.
Mayor Pro Tempore Beres moved to approve the September 15, 2004 minutes as presented.
Motion carried 5-0.
PUBLIC HEARING
PUBLIC HEARING/DISCUSSION/CONSIDERATION OF ORDINANCE 04-21, AN ORDINANCE AMENDING ARTICLE I OF THE ZONING ORDINANCE OF THE TOWN OF DUCK, NORTH CAROLINA
Mayor Schwarz directed Planning Director Cotellessa to review the ordinance. Planning Director Cotellessa stated the ordinance amendment was introduced to Council at their mid-month meeting. She stated the changes clarify the definitions throughout the zoning ordinance, particularly with respect to what is included in lot coverage, what families are, what bedroom and bedroom-equivalents are, what offices are and defines them more closely. She stated that many of the definitions have recently been adopted with the sign ordinance. She stated the ordinance has been approved at the Planning Board level.
Mayor Schwarz asked for comments. There being none, he closed the public hearing.
Mayor Schwarz asked Council for comments or questions.
Councilor Thibodeau thanked the Planning Board for their diligence.
Councilor Caviness moved to adopt Ordinance 04-21, an Ordinance amending Article I of the Zoning Ordinance of the Town of Duck, as presented.
Motion adopted 5-0.
PUBLIC HEARING/DISCUSSION/CONSIDERATION OF ORDINANCE 04-22, AN ORDINANCE AMENDING ARTICLE II OF THE ZONING ORDINANCE OF THE TOWN OF DUCK, NORTH CAROLINA
Mayor Schwarz directed Planning Director Cotellessa to review the ordinance. Planning Director Cotellessa stated the ordinance amends the sections of the zoning ordinance that deal with various zoning districts in Town and the uses that are permitted. It provides for short term rental housing and staff housing in addition to single family housing; it removes from the Village Commercial District residential uses as a by-right use and adds accessory apartments to the uses that are permitted; it simplifies the lists of uses allowed in commercial districts by combining them into categories such as “retail” and “office”; it limits the maximum by-right size of an individual building in the commercial districts to 5,000 square feet, but provides for larger buildings subject to a conditional use permit process up to 10,000 square feet in the C-1 and V-C districts and up to 15,000 square feet in the C-2 district.
Mayor Schwarz asked for comments.
Joe Britt of 1308 Duck Road was recognized to speak. Mr. Britt asked if the Town is eliminating residential uses from the Village Commercial District. Planning Director Cotellessa stated he was correct. Mr. Britt stated the ordinance is inconvenient to people that already have homes in that district and wish to expand. He asked Council to consider leaving the residential use available for people to use.
Mayor Schwarz asked for any other comments. There being none, he closed the public hearing.
Mayor Schwarz asked Council for comments or questions.
Councilor Morrison stated that as the liaison to the Planning Board, he was contacted by two members of the Planning Board who have reconsidered their position on parts of the ordinance and have requested that Council return the ordinance to the Planning Board for further study. He stated he does not have a problem with sending it back. Mayor Schwarz asked Councilor Morrison to elaborate. Councilor Morrison stated that since Mr. Britt voiced his concern, and the way the ordinance is written, the home would become nonconforming, making it unlawful for him to expand his home. He wondered it this would be fair to him as well as to the citizens of Duck. He stated that in addition to Mr. Britt’s concerns, two members of the Planning Board had the same concerns and wished to have the ordinance come back to the Board for further discussion.
Councilor Thibodeau stated that since there was a concern raised by a citizen in the district mentioned, she would like to send it back to the Planning Board.
Councilor Caviness agreed with Councilor’s Morrison and Thibodeau’s comments. She stated the seriousness is now elevated. She felt the appropriate thing to do would be to send it back to the Planning Board.
Mayor Pro Tempore Beres asked how many properties would be impacted. Planning Director Cotellessa stated she hadn’t counted the properties but would guess it to be about twelve to twenty homes. Mayor Pro Tempore Beres stated that he knew the Planning Board had put a lot of work into the ordinance and thought this issue would have been covered, but if the Planning Board would like to address the issue again, he was fine with it.
Mayor Schwarz stated he had reviewed past Planning Board meeting minutes and noted that on July 14, 2004, the Planning Board met and that the Planning Director had pointed out the changes to the ordinance, including the residential use in the Village Commercial district. He stated it was perfectly clear to the Planning Board what they were doing. He further went on to note that Vice Chairman Jon Britt had made a motion that the Planning Board recommend that the Council adopt this ordinance as proposed in the draft with Member Marilyn March seconding the draft. He stated the only member opposed to the ordinance was Member John Jenkins. He stated that Council is now dealing with a change to the ordinance; which had been thoroughly staffed and approved by four members of the Planning Board. He felt that Council should either approve or not approve the ordinance.
Mayor Schwarz moved to approve Ordinance 04-22, an Ordinance amending Article II of the Zoning Ordinance of the Town of Duck, as presented.
Mayor Pro Tempore Beres stated that after hearing what Mayor Schwarz just pointed out, he did not feel comfortable sending it back to the Planning Board. He stated he agreed with Mayor Schwarz on his motion.
Councilor Thibodeau stated that Council did not wish to show any disrespect to the Planning Board. She stated that the Planning Board does a phenomenal job, but still felt it should be sent back to the Planning Board.
Motion denied 3-2 with Mayor Schwarz and Mayor Pro Tempore Beres approving.
PUBLIC HEARING/DISCUSSION/CONSIDERATION OF ORDINANCE 04-23, AN ORDINANCE AMENDING ARTICLE III OF THE ZONING ORDINANCE OF THE TOWN OF DUCK, NORTH CAROLINA
Mayor Schwarz directed Planning Director Cotellessa to review the ordinance. Planning Director Cotellessa stated the amendments clarify the language regarding exceptions to height limits and reserves to Council the consideration of height variances; changes the venue for consideration of Special Exception applications for small child care homes to the Council from the Board of Adjustment; and increases the minimum lot size for group housing projects from one-half acre to one acre.
Mayor Schwarz asked for comments.
Joe Britt of 1308 Duck Road was recognized to speak. Mr. Britt asked for clarification of Ordinance 04-22. He asked if the ordinance was going back to the Planning Board. Mayor Schwarz stated the ordinance failed. Mayor Schwarz asked Mr. Britt if he had comments regarding Ordinance 04-23. Mr. Britt asked which ordinance was on the floor. He asked that Ordinance 04-22 be sent back to the Planning Board. Mayor Schwarz stated Ordinance 04-22 was finished and the public hearing was now on Ordinance 04-23. He asked a second time if Mr. Britt had comments regarding the ordinance. Mr. Britt stated he did not have any comments.
Olin Finch of 116 Sandy Ridge Road was recognized to speak. Mr. Finch asked if the height limits pertain to commercial or residential structures. Planning Director Cotellessa stated it pertained to both. She stated that any height variance would go to Town Council. Mr. Finch asked if any height variance application would be going to the Town Council instead of the Board of Adjustments. Planning Director Cotellessa stated that any request on a height variance would go straight to the Town Council instead of the Board of Adjustments. Mr. Finch stated he was curious as to why the height variance would be changed to go to Town Council. Planning Director Cotellessa stated the Planning Board briefly discussed the issue and felt that height has a direct impact of the visual aspect of the town. Mr. Finch stated he wasn’t sure why height would be considered as opposed to the width of a building. He felt the ordinance would apply to commercial structures instead of residential ones.
Mayor Schwarz asked for any other comments. There being none, he closed the public hearing.
Mayor Schwarz asked Council for comments or questions.
Councilor Thibodeau asked if there have been a lot of requests for height variances. Planning Director Cotellessa stated that one request has come in which has been deferred to the applicant. Councilor Thibodeau asked how many people are eligible for group development homes. Planning Director Cotellessa stated a person could go through a Conditional Use permit to get a group housing project but under the terms of the ordinance, only on properties of an acre or more.
Mayor Pro Tempore Beres moved to adopt Ordinance 04-23, an Ordinance amending Article III of the Zoning Ordinance of the Town of Duck, as presented.
Motion adopted 5-0.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
PRESENTATION OF CONCEPTUAL PLANS DEVELOPED BY THE MUNICIPAL PROPERTY MASTER PLAN STUDY COMMITTEE
Mayor Schwarz stated that Chris Dewitt of Vanasse Hangen Brustlin, Inc. would be giving a presentation.
Chris Dewitt was recognized to speak. Mr. Dewitt stated he and his company have been hired by the Town as the consultants on the Municipal Property Master Plan. He stated that he and his company have thoroughly enjoyed working on the project with the committee. He went on to give a Power Point presentation on the five concepts for the municipal property.
Mr. Dewitt reminded Council and the audience of the public meeting regarding the alternatives, held on Saturday, October 9, 2004 from 10:00 a.m. to 4:00 p.m. at the Duck Volunteer Fire Department.
Councilor Thibodeau asked if who would be at the public input meeting. Mr. Dewitt stated that he, along with 2 other members of VHB and the committee members would be on hand for the meeting.
Mayor Schwarz thanked Chris Dewitt for his presentation.
APPOINTMENTS TO THE NCDOT CURRITUCK SOUND AREA TRANSPORTATION STUDY COLLABORATIVE GROUP
Town Manager Layton stated that at the public officials meeting that NCDOT held in July, it was mentioned that they would be forming a collaborative group with appointments from the impacted local governments to serve in some capacity as part of the project. He stated he had discussions with representatives from NCDOT and their consultants and asked when the appointments would have to be made and was told to get it done as soon as possible. However, NCDOT is not any closer to organizing the committee. He stated he felt it was appropriate to go forward and make the appointments to submit to NCDOT. Mayor Pro Tempore Beres asked if it was revealed what the purpose of the collaborative group would be or the responsibilities of the individual members. Town Manager Layton stated it was not discussed. Mayor Schwarz proposed that he and Mayor Pro Tempore Beres be appointed to the collaborative group with Town Manager Layton designated as the staff representative. It was consensus of Council to appoint Mayor Schwarz, Mayor Pro Tempore Beres and Town Manager Layton to the collaborative group. Town Manager Layton stated he would let NCDOT know of the appointments.
Councilor Caviness recommended that Anne Darnall also attend the meetings.
DISCUSSION OF STATE REGULATIONS REGARDING STORMWATER
Town Manager Layton stated that at the last Council meeting, there were discussions about pumping stormwater. He stated that the Division of Water Quality does have a policy in regard to pumping stormwater into the sound or the ocean. He stated it is a very simple policy and went on to read parts of the policy to Council and the audience. He stated that as a local government, the Town can request permission to pump water into the sound or ocean if the stormwater is higher than fourteen inches. Once the request is made, the Shellfish Sanitation Section of the Department of Water Quality would have to post notices and begin performing tests.
Town Manager Layton stated there is a discrepancy as to whether the fourteen inches is to be pumped down or if the water can be totally pumped out. He stated that if the Town was in a situation where it was necessary to pump water into the sound or ocean and the water was about fourteen inches, permission could be asked.
Planning Director Cotellessa reviewed major and minor CAMA permits with Council and the audience.
Mayor Schwarz asked how the Town would respond to a request to pump water. Town Manager Layton stated it is undefined and that no internal policy has been set. He stated he would bring the issue to Council for approval. In an emergency situation, the Town would do it and assess it as it goes. If it were an immediate public health safety issue, the Town would do what was necessary at that time. Mayor Schwarz asked if a procedure should be put in place. Town Manager Layton stated it would be a good idea.
NEW BUSINESS
DISCUSSION/CONSIDERATION OF APPROVING A DARE COUNTY TOURISM BOARD SHORT TERM GRANT APPLICATION FOR THE EXTENSION OF THE TOWN OF DUCK MULTI-USE PATH
Town Manager Layton stated that the Duck Trail Committee had sent a memo requesting the approval from Council to apply for a Visitors Bureau Grant application to extend the Duck Trail on the west side of NC 12 from the Southern Shores line a mile towards the Village Commercial area of Town. He stated that $50,000 has been set aside in the budget for improvements to the Duck Trail. The Visitors Bureau Grant is an FY 2006 grant, giving the Town time to make preparations to begin the project. He stated he contacted NCDOT to see if they had any issues and they noted their right-of-way issues; drainage concerns; a need for bulkheads in some areas; and utilities being moved. He stated that these issues should not be a problem. He stated the expected cost is approximately $100,000. The grant would require a percentage of the total cost. He stated the Town would also supply a match as well.
John Summers was recognized to speak. Mr. Summers stated this is a first step for the Duck Trail to get a walking path on the entire west side. He stated that Duck was the catalyst for all the trails on the Outer Banks and had done so without grant money. He felt the Visitors Bureau would approve the grant application.
Councilor Morrison pointed out that the deadline had passed and asked if an extension had been sought. Town Manager Layton stated an extension was given. He stated a grant application is prepared for submission.
Mayor Pro Tempore Beres asked when the trail extension construction would commence. Town Manager Layton stated construction would not commence until the Town was sure that funding was secured from the Tourism Board. He stated that preliminary work with NCDOT could be done beforehand. Mayor Pro Tempore Beres asked if the extension would complete the open stretch between Southern Shores and where the trail ends on the west side. Town Manager Layton stated the goal is to link them up.
Councilor Thibodeau asked what type of authorization would need to be sought by NCDOT. Town Manager Layton stated the extension would be put in NCDOT’s right-of-way and NCDOT will build the trail. He stated the Town would be funding an NCDOT project.
Mayor Schwarz stated that NCDOT has to build the trail. Town Manager Layton stated that was his understanding.
Joe Britt was recognized to speak. He stated that NCDOT was not necessarily the ones to build the trail, but they could contract it out.
Councilor Morrison moved to approve the Dare County Tourism Board Short Term Grant application for an extension of the Town of Duck multi-use path.
Motion approved 5-0.
Mayor Schwarz stated that one person needs to be appointed to the Fireman’s Relief Fund Board of Trustees. Currently, Mayor Pro Tempore Beres and Councilor Morrison are representatives to the Board of Trustees.
Town Manager Layton stated that Mayor Pro Tempore Beres term expires December 31, 2004 and Councilor Morrison’s expires December 31, 2005. He stated that since Mayor Pro Tempore Beres’ term expires in December, he would need to be reappointed for another year or have another Councilor appointed.
It was consensus of Council to reappoint Mayor Pro Tempore Beres to the Local Firemen’s Relief Board for a term expiring December 31, 2005.
Mayor Schwarz stated that three individuals will be attending the annual business meeting – Mayor Pro Tempore Beres, Councilor Caviness and himself. He recommended appointing himself as the voting delegate with Mayor Pro Tempore Beres as the alternate.
It was consensus of Council to appoint Mayor Schwarz as the voting delegate and Mayor Pro Tempore Beres as the alternate for the League of Municipalities Annual Business meeting.
CONSIDERATION/DISCUSSION OF EXTENDING THE OCEAN RESCUE CONTRACT
Town Manager Layton stated that the Ocean Rescue contract expired on September 30, 2004 for this year. Due to two near drownings on September 30, 2004 and October 1, 2004, it was recommended that the contract for this year be extended. He stated the contract has been approved until October 6, 2004, pending Council’s approval for an additional cost of $1,800. He stated the question before Council is whether or not to have someone out on the beach for a longer period of time, such as through October 17, 2004 for an additional $5,000 or October 31, 2004 for a fee of $9,600. He stated that he believed the other towns have an ocean rescue presence through the end of October. He stated a supervisor would patrol the beach in his truck along with a lifeguard patrolling the beach on an ATV.
Mayor Schwarz asked when October 17, 2004 is. Town Manager Layton stated that by extending the contract through October 17, it would get the Town through the Columbus Day weekend and the following weekend.
Fire Chief Brock was recognized to speak. Fire Chief Brock stated he was grateful that Mirek Dabrowski was around for the two near drownings. He recommended the contract be extended through October 31, 2004.
Councilor Thibodeau asked if the contract is extended to October 17, 2004, would the total cost be $5,000. Town Manager Layton stated she was correct.
Mayor Pro Tempore Beres asked if all the other towns have a lifeguard presence through the end of October. Town Manager Layton stated he was correct.
Councilor Caviness stated she would prefer to see the contract extended through October 31, 2004.
Councilor Morrison agreed with Councilor Caviness.
Mayor Pro Tempore Beres moved to extend the Ocean Rescue contract through October 31, 2004.
Motion carried 5-0.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN ATTORNEY
Town Attorney McRee was recognized to speak. He stated he did not have anything to report.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN MANAGER
Update on the Outer Banks Hydrology Management Committee
Town Manager Layton stated that the Outer Banks Hydrology Management Committee, which he was appointed to, has met twice. He stated the goal of the group is to see if there is a region-wide stormwater management system that could be put into place, including recommendations for ordinances to deal with the issues. He stated the committee has been tasked with how to fund the recommendations.
Town Manager Layton stated the first meeting was an introductory meeting. The second meeting consisted of presentations from Quible Engineering and Ed Andrews, a consultant hydro geologist, to learn more about hydrogeology of the area. He went on to review with Council and the audience the rainfall amounts tallied for the summer.
Councilor Caviness asked how often the committee meets. Town Manager Layton stated they meet every two weeks. He stated the meetings are public and the next one will be held in Kill Devil Hills.
Update on the Board of Adjustment Hearings held on September 24, 2004
Town Manager Layton stated the Board of Adjustments had met on September 24, 2004 and a memo from Planning Director Cotellessa was included in Council’s agenda packet, summarizing the outcome of the meeting.
Consideration of Budget Amendments
Town Manager Layton stated that the Town has been working on their audit and during the process it was discovered that the proceeds from the installment purchase contract were never appropriated. It was also discovered that the proceeds from the lease agreement for the purchase of one of the police vehicles was never appropriated. He asked that the amendments be made retroactively.
Mayor Pro Tempore Beres moved to approve the budget amendments.
Motion approved 5-0.
Financial Statement for the Month of September 2004
Town Manager Layton stated he has not received all of the bank statements to date, but presented Council with a financial report on revenues and expenditures. He noted that occupancy tax for this year has decreased from the previous year.
Mayor Pro Tempore Beres asked if the occupancy tax included revenues for the month of August. Town Manager Layton stated the revenues were for the month of August.
Councilor Thibodeau asked if occupancy tax could vary due to the number of weeks in a month. Town Manager Layton stated it could.
MAYOR’S AGENDA
Mayor Schwarz stated he had spoken to each Council member regarding the potential for a retreat. He stated he had asked Town Manager Layton to set it up for January 19, 2005. He asked Council to give topics to Town Manager Layton so an agenda could be started.
Mayor Schwarz stated that the Fall bulk item pick up will be on Thursday, October 14, 2004. He asked how the pick up is being publicized. Town Manager Layton stated that emails have been sent to the Subscriber List; letters have been sent to the Homeowners Association presidents; it has been advertised in the newspapers and is on the website. Deputy Town Clerk Kopec stated it is also on the Government Access Channel.
Mayor Schwarz stated that Council had received a letter regarding the Town including something for the time capsule. He stated that Councilor Caviness had a good idea for an item to be included in the time capsule. Councilor Caviness stated that a fire department and police department patch, the original sign for Duck’s incorporation and any memorabilia from when the Town incorporated be included in the time capsule. Mayor Schwarz asked Councilor Caviness to work with Town Manager Layton to get the items to him.
Mayor Schwarz stated that Paul Sutherland had resigned as mayor of Southern Shores and Hal Denny has been elected as the new mayor.
COUNCIL MEMBERS’ AGENDA
Councilor Thibodeau asked if would be appropriate to discuss Ordinance 04-22 and if possible, sending it back to the Planning Board. Mayor Schwarz stated the ordinance amendment was the key. He stated that staff will have to take a look at it and decide whether or not to send it back to the Planning Board. Councilor Thibodeau reminded everyone to get out and vote.
Mayor Pro Tempore Beres asked Town Manager Layton if he had heard anything from NCDOT for the shared cost of doing the NC 12 study with Duck and Southern Shores. Town Manager Layton stated he hadn’t heard anything. He stated that Duck and Southern Shores had received assurances by Stan White that discretionary funding would be available for the study. A joint letter has been prepared for the signatures of the mayors of Duck and Southern Shores, but he has not received it yet. The letter is asking for a commitment on the funding.
Councilor Morrison stated the Town is now featured on the Government Access Channel. He stated the Power Point slideshow started on Friday, October 1, 2004. He stated that Deputy Town Clerk Kopec put the slideshow together. He stated corrections and improvements have been made. He asked that Council and the audience tune in to channel 20 and that he would welcome suggestions.
Councilor Morrison stated he is not clear on ordinance 04-22. He asked if it should be returned to the Planning Board instead of staff. Mayor Schwarz stated that staff needs to look at it and come up with recommendations to give to the Planning Board.
Councilor Caviness asked if a motion could be made to send it back to the Planning Board.
Councilor Caviness moved to direct the Planning Board to review Ordinance 04-22, looking specifically at the one section regarding residential use.
Town Attorney McRee was recognized to speak. Town Attorney McRee stated that by sending the Ordinance back to the Planning Board, it would then come back to Council for another public hearing. Mayor Schwarz asked if the whole process has to start again. Town Attorney McRee stated he was correct.
Motion carried 5-0.
Councilor Caviness reminded all voters that there will a referendum specific to Duck on the ballot. She stated she is concerned about seeing people continually putting tree stumps and yard debris in the rollout carts for regular trash pickup. She asked that this item be addressed at a mid-month meeting or at the retreat. She stated that while the Town has bulk pick ups, people are still disposing of their bulk items in their regular carts. She stated the fire department had an open house and that it was very well attended.
OTHER BUSINESS
Mayor Schwarz asked for any other business. He stated the next meeting will be Wednesday, October 20, 2004 at 1:00 p.m.
CLOSED SESSION
Mayor Pro Tempore Beres moved to enter closed session to (1) consult with an attorney to establish or to instruct the public body’s staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease and (2) to consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee
Motion carried 5-0. The time was 8:35 p.m.
Upon returning from closed session, Mayor Schwarz stated that Council had voted unanimously to give Town Manager Layton a three percent salary increase and a three thousand dollar bonus.
Mayor Pro Tempore Beres moved to adjourn the meeting.
Motion carried 5-0. The time was 10:05 p.m.
____________________________
/s/ Christopher J. Layton, Town Clerk
Approved: ______________________
_______________________________
/s/ Gene Schwarz, Mayor