TOWN OF DUCK
TOWN COUNCIL
REGULAR MEETING
April 6, 2005
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 7:00 p.m. on Wednesday, April 6, 2005.
COUNCIL MEMBERS PRESENT: Mayor Gene Schwarz; Mayor Pro Tempore Allan Beres; Councilor Neil Morrison; and Councilor Nancy Caviness.
OTHERS PRESENT: Town Manager and Town Clerk Christopher J. Layton, Planning Director Suzanne Cotellessa; Police Chief Dale Hamilton; Fire Chief John Brock; Town Attorney Donald I. McRee, Jr.; and Deputy Town Clerk Lori Kopec.
ABSENT: Councilor Monica Thibodeau.
Mayor Schwarz called the meeting to order at 7:00 p.m. Mayor Schwarz led the Pledge of Allegiance and the moment of silence.
SPECIAL PRESENTATIONS
Presentation of a Child’s Safety Seat from the Outer Banks Kiwanis to the Town of Duck Police Department
Mayor Schwarz recognized Paul Keller to give a special presentation.
Paul Keller stated that he was representing the Outer Banks Kiwanis. He stated their total mission is to take care of children across the world. He stated that one of their projects is to protect children when they are riding in vehicles as passengers. He stated that the Duck Police Department did not have a child safety seat and it was decided by the Kiwanis to provide them with a seat. Mr. Keller went on to present Police Chief Dale Hamilton with a new child safety seat.
Police Chief Hamilton stated that the seats are not used all of the time, but there are times when a situation arises that there is a need for the seat. He thanked Mr. Keller for the seat.
Recognition of Sergeant Kevin Moye and Officer Phillip Ferguson
Mayor Schwarz recognized Police Chief Dale Hamilton to give a special presentation.
Police Chief Hamilton stated that on February 10, 2005, as Sergeant Kevin Moye was leaving his home in Manns Harbor, he noticed a house with the front porch engulfed in flames. Sergeant Moye knocked on the door of the home to alert them of the fire but could not get anyone. He then went back to his police vehicle, retrieved his fire extinguisher and attempted to extinguish the flames himself with the help of neighboring deputy. Sergeant Moye was not successful in extinguishing the flames but was able to contain it to the porch until the fire department arrived. Police Chief Hamilton recognized Sergeant Moye for his selfless act and presented him with a Chief’s Commendation Award.
Police Chief Hamilton stated that on February 20, 2005, Officer Phillip Ferguson was dispatched to a house fire on Spinnaker Court and used his fire extinguisher to help contain the flames until the fire department arrived. He recognized Officer Ferguson for his selfless act as well.
Recognition of Jon Britt and Scott McCaulley of the Duck Volunteer Fire Department for Earning their EMT Certifications
Mayor Schwarz recognized Fire Chief John Brock to make a special presentation.
Fire Chief John Brock stated that both Jon Britt and Scott McCaulley had recently earned their EMT certifications. Fire Chief Brock presented Jon Britt with a certificate as well as his 10 year service pin. He stated that Scott McCaulley was not available to attend the meeting, but wanted to recognize him for his hard work in obtaining his certification.
PUBLIC COMMENTS
Mayor Schwarz opened the floor for public comments. He asked that all comments regarding the public hearings be held off.
George Keefe of North Beach Outfitters was recognized to speak. Mr. Keefe stated that several years ago, the Town had a 5k race on the multi-use path. For safety reasons, the race had been discontinued. He stated that the Town is planning to hold a 4th of July parade on one of the traffic lanes and inquired if the same safety considerations will be used.
John Summers of 123 Sea Hawk Drive West was recognized to speak. Mr. Summers complimented the Council for tabling the resolution from the Tourist Bureau regarding commercial fishing licenses. He stated he has a problem with the Tourist Bureau lobbying the various towns. He felt it wasn’t right for them to lobby the towns for controversial issues such as fishing licenses or beach renourishment.
Bart Smith of 121 Sea Hawk Drive West was recognized to speak. Mr. Smith stated that the repeater for the fire department has been ineffective lately. He stated that Fire Chief Brock has been working on the issue as well as the fire chief of Southern Shores. He stated that something needs to be done to get the repeater fixed before someone gets seriously hurt.
Marilyn March of 103 Mallard Court was recognized to speak. Ms. March stated she would like to see a consideration of a tax rebate for senior citizens and VA members. She stated that when she lived in New Jersey, it was offered and felt it would be a big help to the Town’s senior citizens and VA members.
Police Chief Dale Hamilton was recognized to speak. Chief Hamilton introduced the newest police officer, Michael Torres, to Council and the audience. He stated that Officer Torres comes to the Town with nineteen years of experience.
There being no one else wishing to speak, he closed the time for public comments.
APPROVAL OF MINUTES
Mayor Schwarz opened the approval of minutes from the March 2, 2005 regular meeting. Mayor Schwarz directed Council to review the minutes from the March 2, 2005 meeting for changes.
Councilor Caviness moved to approve the March 2, 2005 minutes as presented.
Motion carried 4-0.
PRESENTATION BY VIRGINIA CANDELORA, EXECUTIVE DIRECTOR, INTERFAITH COMMUNITY OUTREACH, INC.
Mayor Schwarz stated that Virginia Candelora would be making a presentation.
Rae Mangun of Interfaith Community Outreach was recognized to speak. Ms. Mangun stated that Ms. Candelora could not attend the Council meeting, but Theresa Stanley, Care person of the Board, would represent Interfaith Community Outreach.
Ms. Mangun went on to give a short presentation to Council and the audience on the background of the Outreach and what their purpose is on the Outer Banks.
Theresa Stanley was recognized to speak. Ms. Stanley stated that they are going around to the different municipalities to introduce the organization. She stated she hopes that the Town would consider becoming a partner of the Interfaith Community Outreach when going into the budget process. She asked that the Town consider giving $2,000 as a way to be involved in the Outreach.
Mayor Schwarz thanked Ms. Mangun and Ms. Stanley for their presentation.
PUBLIC HEARINGS
Public Hearing/Discussion/Consideration of RZ 05-01, Ordinance 05-02, Municipal Property Rezoning
Planning Director Sue Cotellessa was recognized to speak. Planning Director Cotellessa stated that the action is to rezone the Town’s municipal property to the appropriate zoning district. She stated that the Town’s first Land Use Plan calls for the area to be parkland. She stated that staff and Planning Board are recommending approval.
Mayor Schwarz asked for comments.
Ron Forlano of 1378 Duck Road was recognized to speak. Mr. Forlano stated that he appreciates what the Town wants to do with the property and knows the community wants it as well, but he did some research and found that between the Village Commercial Area and the General Commercial Area there are 77 acres that is zoned commercial. Of that, the total acreage in Duck is 1,297.9 acres. He stated that 6% of the Town is zoned commercial and the rest is residential. He stated that he is not sure of the proper percentage of commercial to residential areas, but found that between sales tax, mixed beverage, and beer and wine, the Town is making $553,000 in income. He stated it goes a long way to pay the police department and fire department. He cautioned Council to be careful with the rezoning.
Paul Keller of 125 Wiroans Court was recognized to speak. Mr. Keller stated that the Town had made it very clear that the property would be used as a park. He stated that in the past, people have taken advantage of the zoning and put things on property that didn’t fit in. He felt that if the Town moved backward, it would be a big mistake. He strongly urged Council to move forward with the rezoning.
John Summers of 123 Sea Hawk Drive West was recognized to speak. Mr. Summers agreed with Paul Keller’s comments. He stated there is enough commercial property in Duck and wants the Town to stay as a “village”.
There being no one else wishing to speak, Mayor Schwarz closed the public hearing.
Mayor Schwarz asked Council for comments or questions.
Mayor Pro Tempore Beres stated that the reason Council came up with the zoning designation was to apply it to the Corp of Engineers property in the event that some future use could be made of it if they decided to sell portions of it. He stated the Town Park is a more ideally-suited property to be put into the designation. He stated he is in favor of the rezoning.
Councilor Caviness agreed with Mayor Pro Tempore Beres’ comments and stated that it is consistent with the Land Use Plan.
Mayor Pro Tempore Beres moved to approve the rezoning of the municipal property to Conservation-Public Recreation.
Motion approved 4-0.
Public Hearing/Discussion/Consideration of RZ 05-02, Ordinance 05-03, Duck Ridge Village Rezoning
Planning Director Sue Cotellessa was recognized to speak. Planning Director Cotellessa stated that in February, 2003, the Planning Board approved a final subdivision plat for the subdivision known today as Duck Ridge Village. A portion of the subdivision was in the RS-1 and a portion was in the Village Commercial zoning district. The lots were sized at 15,000 square feet, covenants were written so that it would be a residential subdivision without commercial uses allowed. The front part of the subdivision was left in the Village Commercial district at the behest of the then-owner of the property who wanted to retain a small lot behind Wee Winks in case an issue arose that he would need to build on that area. However, the unintended consequence was that single family dwellings have been removed from the list of uses that are permissible in the Village Commercial district. She stated this is basically a housekeeping rezoning to turn the five lots into RS-1 zoning district that was approved and intended by the Planning Board. The rezoning action was recommended for approval by staff, but the Planning Board has made no recommendation to forward to Council.
Mayor Schwarz asked for comments.
Marilyn March of 103 Mallard Drive was recognized to speak. Ms. March stated she is a member of the Planning Board and does not agree that the issue is a housekeeping recommendation. She stated that the house at the front of the subdivision is being used as a model home, which, in her opinion, is a business. She stated that the model home and the property behind Wee Winks should not be changed and should still be considered commercial.
John Jenkins of 104 Dune Road was recognized to speak. Mr. Jenkins stated he is a member of the Planning Board and that the intent of the original Planning Board was to have Duck Ridge Village as residential property. He stated that there were mapping errors and the change was made to accommodate Burger King. He stated the model home has a conditional use permit, so it would not be considered commercial, since residents can apply for a conditional use permit for their homes. He stated the model home is a builder’s showcase with no contracts being written. He didn’t feel that the other property owners should be penalized. He felt the rezoning should be approved.
Ron Forlano of 1378 Duck Road was recognized to speak. Mr. Forlano stated he was a member of the Planning Board and that the Planning Board had a lengthy discussion regarding this subdivision. He stated he has an issue with the lot behind Wee Winks, which is part of the subdivision, but is zoned commercial. He stated he did not understand how some of the lots in the subdivision could be rezoned to residential, while ignoring the lot behind Wee Winks based on an agreement that was made when the subdivision was put in. He felt the whole subdivision should be rezoned, since the restrictive covenants state that no commercial enterprises are allowed in the subdivision. He stated that he agrees that the people that bought the interior lots should be allowed to build their homes and understands why the owner of Wee Winks wants to keep his lot commercial, but feels that the model home is commercial on three sides and is not used as a residence.
There being no one else wishing to speak, Mayor Schwarz closed the public hearing.
Mayor Schwarz asked Council for comments or questions.
Councilor Morrison asked Planning Director Cotellessa to comment on the lot behind Wee Winks and why it is not being considered for rezoning. Planning Director Cotellessa stated that when the subdivision was created in February, 2003, access to the subdivision was provided by the property owner of Wee Winks. He was willing to give access to the subdivision, but wanted to retain an area behind the existing Wee Winks in the Village Commercial District, so that if in the future there were an action to do some road widening and he would lose his parking in the front, he would be able to combine the lot in the back with his current lot to maintain his business at that location. She stated that in order to accomplish that and to get an access to the residential subdivision, the front section was left in the Village Commercial District. The lot behind Wee Winks is completely in that Village Commercial District; however the one behind that one is partially in the Village Commercial. The BD&A model home lot is within the Village Commercial District and the two lots behind it are partially in the Village Commercial District. At that time the subdivision was approved, the Village Commercial District provided for and permitted single family residential dwellings. The subdivision met the requirements of the subdivision ordinance. The Planning Board reviewed and approved the subdivision as a residential subdivision, made some changes and essentially created a residential subdivision with the understanding that the front section would be left commercial to accommodate the original property owner.
Planning Director Cotellessa stated that she believed it would have been preferable at the time to appropriately rezone the lots but that did not occur. The rezoning would now make it so that people that want to come in and build a house on the lots in this district, would be able to do so. She stated that staff, on their own initiative, brought it forward to rezone only five of the six lots since the property owner of Wee Winks does not desire to build residentially at this time on the lot.
Councilor Morrison stated he was a member of the Planning Board when the subdivision was created. He read an excerpt from a letter that Donna Creef had written regarding the Duck Ridge Village Subdivision to Council and the audience, stating that a note should be added to the covenants that restricts use of the lots for residential purposes only.
Councilor Caviness asked if it was keeping with the Land Use Plan to have two of the lots be Village Commercial and the other four be RS-1. Planning Director Cotellessa stated that on the future Land Use map, the lot that the BD&A home is located at now is designated residential. She stated that if it were more appropriate for the lots to be commercial than residential, it would be designated on the Land Use map and in future rezoning, Council would fall back on it. She stated the future Land Use map supports the rezoning.
Mayor Pro Tempore Beres stated that after hearing all the comments, it is clear the Town acted through the Planning Board and the Council to approve the lots as residential so construction could be started. He agreed with Planning Director Cotellessa that this is a housekeeping matter and the ordinance should be approved.
Mayor Schwarz stated the original Council had approved the subdivision with the intent of it being a residential subdivision. He stated they had struggled over it and learned from the experience. He stated he agreed with Mayor Pro Tempore Beres and Planning Director Cotellessa’s comments that this is a housekeeping matter.
Mayor Pro Tempore Beres moved to adopt Ordinance 05-03, amending the official zoning map of the Town of Duck, North Carolina, for the five lots under Duck Ridge Village Subdivision at 102, 104, 103, 105 and 106 Duck Ridge Village Court.
Councilor Caviness asked what presently exists on the lot that the BD&A model home sits on. She asked if it would be nonconforming. Planning Director Cotellessa stated that the lot was approved and built as a single family home. She stated it has a conditional use permit as a model home, which is allowed.
Motion adopted 4-0.
Public Hearing/Discussion/Consideration of Ordinance 05-04, an Ordinance Amending the Zoning Ordinance of the Town of Duck, North Carolina, regarding Special Exceptions and Administrative Reductions for Specified Improvements to Single Family Dwellings in Existence on July 1, 2003
Planning Director Sue Cotellessa was recognized to speak. Planning Director Cotellessa stated that the Town Council had looked at this previously in March, 2005 and remanded it to the Planning Board for consideration. She stated that there is a situation in Duck where there are houses that have been built over the years that did not conform to the regulations with regard to setbacks. When a homeowner would come in to apply for a building permit to make alterations, they would not be allowed to do so because of the setback requirements. She stated that staff is looking to give the homeowners the opportunity to improve the houses without undue difficulties given the original siting of the house. She stated that the ordinance would allow for administrative approval or discretionary consideration for these houses. She stated that staff and the Planning Board reviewed the text amendments and recommends approval of the amendment.
Mayor Schwarz asked for comments. There being no one wishing to speak, he closed the public hearing.
Mayor Schwarz asked Council for comments or questions.
Mayor Pro Tempore Beres felt this was a reasonable approach to a sticky problem in Town.
Councilor Morrison moved to approve Ordinance 05-04.
Motion adopted 4-0.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
Update on the Community Improvement Committee
Town Manager Layton stated that the Community Improvement Committee had their first organizational meeting to discuss public advertising, putting application forms together and developing criteria for awards. He stated that he is looking at implementing these issues after the first of the fiscal year. He stated the Committee has made an initial request of $40,000 to be included in the budget to initiate programs. He stated the Committee will be meeting again in the near future.
NEW BUSINESS
Appointment to the Dare County Shoreline Management Commission
Mayor Schwarz stated the Town had recently received a letter from Stan White, the chairman of the Dare County Board of Commissioners. He stated that the County had approved the 1% sales tax at their meeting, effective January 1, 2006. Mayor Schwarz recommended that the current mayor be appointed to the position.
It was consensus of Council to appoint whoever is the current mayor to this position.
Town Manager Layton stated he had received a letter from the Wild Duck Dunes Landowners Association requesting that the subdivision be added to the list of subdivisions in which parking can be enforced by the police department.
Councilor Caviness moved to approve Ordinance 05-05.
Motion approved 4-0.
Discussion/Consideration of the Approval of the FY 2006 Government Access Channel Budget
Town Manager Layton stated that each year the Government Access Channel develops a budget and this year their total budget developed is $14,875 for the fiscal year. Of that, they are asking for $1,000 for each member, which represents a member of the six municipalities and the County. They are asking for approval of the budget, with appropriations subject to budget appropriations, and wanted Council’s approval on the budget itself.
Councilor Morrison moved to approve the FY 2006 Government Access Channel budget.
Motion approved 4-0.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN ATTORNEY
Town Attorney Ike McRee was recognized to speak. He stated he wanted to comment on Marilyn March’s comments regarding tax rebates. He stated that in North Carolina it is unconstitutional for any government body to abate taxes or to give a rebate, except if the tax is an illegal tax, if the tax is for an improper purpose, or due to a clerical error.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN MANAGER
Update on Departmental Activities
Town Manager Layton stated that he had the department heads prepare reports before the meeting on their activities. He went on to hand out the police department activity, and permit activity reports to Council. He stated he did not have the fire department activity and would hand that out later.
Update on CAMA Core Land Use Plan Certification
Town Manager Layton stated that on April 7 or April 8, 2005, the Coastal Resources Commission will consider the Town’s CAMA Core Land Use Plan. He stated that approval is anticipated. Staff for the Commission has recommended approval as well.
Report on Sister Cities Program
Town Manager Layton stated that the Town of Kitty Hawk was contacted by Sister Cities International to develop a sister cities program with an area in France that is tied to the Outer Banks due to the Wright Brothers. Kitty Hawk is pursuing the issue. He stated that the Towns of Kill Devil Hills and Nags Head are also interested in developing a program. He stated that Council will be hearing about it as well. He stated that if there is interest, it can be pursued.
Upcoming Planning Board and Board of Adjustment Appointments
Town Manager Layton stated that in May, 2005, Ron Forlano and Jon Britt’s terms are expiring. Appointments will have to be made at the May Council meeting. He stated that all of the Board of Adjustment member’s terms are expiring on July 1, 2005, which will also have to be addressed.
Joint Planning Board Meeting for April 15, 2005 (if necessary)
Town Manager Layton stated that the joint Planning Board meeting will not be necessary.
Financial Statement for the Month of March 2005
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.
MAYOR’S AGENDA
Mayor Schwarz stated that he wanted to comment on the fire department’s repeater situation. He stated a meeting was held on Friday, April 1, 2005 with Rodney Midgett, who is responsible for all of the funding for the systems. He stated that as a result of the meeting, the repeater was placed on the Duck water tower and, to the best of his knowledge; the fire department is receiving their alerts now. He stated there is a problem communicating with hand-held radios between each other and Dare Central, which he hopes will be resolved soon. He stated that Commercial Radio Service understands the problem and is working on it.
Mayor Schwarz stated that he had attended two homeowners association meeting with Councilor Thibodeau attending one homeowner’s association meeting. He felt it was a valuable tool that Council can provide information to absentee homeowners at their annual meetings. He stated the meetings were well received and felt Council should continue to attend them. He stated that the homeowners want recycling and are very enthusiastic about the Town’s website and newsletter. He stated that one of the main issues was speeding in the Village during the off-season, especially with construction vehicles.
COUNCIL MEMBERS’ AGENDA
Councilor Caviness stated that Dare County Emergency Management JIC will be meeting at the end of April to review their standard operating procedures. They will also be having a mock readiness drill on May 25 and May 26, 2005, led by the United States Fire Administration.
OTHER BUSINESS
Mayor Schwarz asked for any other business. He stated the next meeting will be Wednesday, April 20, 2005 at 1:00 p.m. with Stan White of the Dare County Board of Commissioners speaking as well as Town Manager Layton presenting the FY 2005-2006 proposed budget.
CLOSED SESSION
Councilor Morrison moved to enter closed session to 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 or other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease and 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 4-0. The time was 8:20 p.m.
Upon return from closed session, Councilor Caviness moved to adjourn the meeting.
Motion carried 4-0.
The time was 8:45 p.m.
_________________________________
/s/ Christopher J. Layton, Town Clerk
Approved: May 4, 2005
_______________________________
/s/ Gene Schwarz, Mayor