TOWN OF DUCK
TOWN COUNCIL
REGULAR MEETING
May 3, 2006
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 7:00 p.m. on Wednesday, May 3, 2006.
COUNCIL MEMBERS PRESENT: Mayor Neil Morrison; Councilor Nancy Caviness; Councilor Denver Lindley, Jr.; and Councilor Bart Smith.
Council Members ABSENT: Mayor Pro Tempore Monica Thibodeau
OTHERS PRESENT: Town Manager and Town Clerk Christopher J. Layton, Planning Director Suzanne Cotellessa; Attorney Ben Gallop; Police Chief Dale Hamilton; Fire Chief Donna Black; Building Inspector Cory Tate; Administrative Assistant Sandy Cady and Deputy Town Clerk Lori Kopec.
OTHERS ABSENT: Town Attorney Donald I. McRee, Jr.
Mayor Morrison called the meeting to order at 7:00 p.m. Mayor Morrison asked former Mayor Pro Tempore Allan Beres to lead the Pledge of Allegiance. Mayor Morrison led the moment of silence.
PUBLIC COMMENTS
Mayor Morrison opened the floor for public comments. He asked that all comments related to the public hearings be held off.
There being no one wishing to speak, Mayor Morrison closed the time for public comments.
Town Manager Chris Layton was recognized to speak. Town Manager Layton stated that two (2) new employees have started with the Town. He introduced Donna Black to Council and the audience as the new Fire Chief. Fire Chief Black stated that she looks forward to working with the Town and moving Duck Fire ahead.
Town Manager Layton introduced William Cory Tate to Council and the audience as the new Building Inspector. He stated that Mr. Tate is replacing Mike Goodwin, who passed away recently. He gave a short background on Mr. Tate’s employment background.
Mayor Morrison welcomed Fire Chief Black and Building Inspector Tate to the Town.
APPROVAL OF MINUTES
Mayor Morrison opened the approval of minutes from the April 5, 2006 regular meeting and the April 19, 2006 mid month meeting. Mayor Morrison directed Council to review the minutes from the April 5, 2006 meeting for changes.
Councilor Lindley moved to approve the April 5, 2006 minutes as presented.
Motion carried 4-0.
Mayor Morrison directed Council to review the minutes from the April 19, 2006 meeting for changes.
Councilor Smith moved to approve the April 19, 2006 minutes as presented.
Motion carried 4-0.
PUBLIC HEARINGS
Public Hearing/Discussion/Consideration of Ordinance 06-02 (Revised), An Ordinance Amending the Zoning Ordinance of the Town of Duck, North Carolina regarding Lot Coverage and Lot Area
Mayor Morrison recognized Planning Director Suzanne Cotellessa to speak. Planning Director Cotellessa stated that Ordinance 06-02 has been through Planning Board review and recommendation to Council. She stated that this is the third (3rd) public hearing before the Council. She stated that as originally proposed by the Planning Board, it was a two (2) part ordinance with the first part assessing lot coverage determination for oceanfront properties based on lot area from the first line of stable natural vegetation; the second part dealing with lot coverage calculations for driveways and parking areas regardless of the composition being included in lot coverage. She stated that following the Planning Board’s recommendation of approval of the ordinance, Town Council met on March 15, 2006 and April 5, 2006 to discuss the ordinance and hear public input. At its April 19, 2006 meeting, Council chose to take the ordinance and split it into two (2) parts and bring forward for public hearing tonight with the part of the ordinance that deals with measuring the lot area of oceanfront lots to the first line of stable natural vegetation and at the same time providing additional flexibility to use either that measurement or the Dare County Tax Assessor’s lot area determination, whichever is greater for lot coverage calculations and determinations. She stated that the second part of the original ordinance was taken away and sent back to the Planning Board for further discussion and review. She stated that the ordinance on the table for the meeting will only be for oceanfront lot coverage determination.
Mayor Morrison opened the public hearing for Ordinance 06-02. He asked for public comments.
Tom Yates of 165B Buffelhead Road was recognized to speak. Mr. Yates stated he is not sure he understood what was causing the hearing to take place. He asked why the Town is looking at the lot sizes. He stated that he looked at his property and he has twenty-seven thousand (27,000) square feet of property that comes from the mean high water mark. He stated that if the mean high water mark is taken away, he would be down to thirteen thousand (13,000) square feet. He stated with his driveway and existing pool, he would not be able to do anything with his lot. He stated that it seemed to him that there needs to be a way to protect people that own oceanfront property, especially if a hurricane hits. He asked if anyone has completed any planning of looking at all of the oceanfront lots in Duck and applying the rules to determine how much space is left on each of the lots to be built on. He asked if they would still be able to be built on or would Duck lose their oceanfront properties. He asked how he could get his questions answered. Mayor Morrison stated that at the end of the public hearing, Council would discuss the matter.
David Jones of 131 Olde Duck Road was recognized to speak. Mr. Jones stated that he is in a similar situation to Mr. Yates. He stated that his wife owns an oceanfront property in Duck. He stated that he found out about the meetings through others as they are not residents of Duck. He stated that it seemed to him that with the number of properties that people have, he has a hard time thinking that the oceanfront property owners are represented and understand the economic impacts. He stated that the ordinance would not improve the value of their property and if they decided to sell, the value would decrease. He stated that the property owners were specifically notified that if this would become part of an ordinance it would have a huge impact economically. He stated that he understood that there are reasons behind passing the ordinance, but to do it because it is the same as other municipalities would be unwise for Council to make that decision without proper notification of the property owners to make sure that the representation of that body is heard and then make the decision that is right for the community. He stated that since there is not an overwhelming, mandatory, driving force to make the ordinance happen, he felt that more patience and a continued open dialogue with the property owners would be in Council’s best interest. He stated that he knows there are oceanfront properties that shouldn’t be there due to overzealous interpretation in building homes. He cautioned Council to be careful not to hurt the person that pays the highest tax rates. He stated that he would like Council to go slower than it appears they are going in passing this ordinance. He pointed out that this is the first time this ordinance has been discussed since it’s been revised.
Karen Barnett of BD&A Realty was recognized to speak. Ms. Barnett handed out a site plan from Michael Rivera to Council to review.
A member of the audience was recognized to speak. He stated that he owns an oceanfront lot. He felt that Council should take a better look at what they are changing with regard to oceanfront lots. He stated that all of the lots will become nonconforming if the ordinance passes. He didn’t feel that Council needed to take the route of passing the ordinance. He didn’t feel it was fair. He stated that oceanfront property owners need to be notified of what is going on so they could have input on the ordinance.
Ginger Jones of 131 Olde Duck Road was recognized to speak. Ms. Jones stated that her statements were not based on facts but on emotions. She stated that she built the first house on the oceanfront and her family had a problem with her renting it. She stated that after thirty (30) years, she no longer rents her home. She stated that there are a lot of older homes on her street. She stated that she has thought to herself if she wanted homes around her to look like her small home or like the larger ones throughout Town. She stated that it is confusing for her as to what people want in Duck. She stated that development cannot be stopped and couldn’t understand why Council would want to “put the squeeze” on people so that they cannot build a house that is deserving of the assessment of the lot. She stated that she and her sister called two (2) different Council members and never received a call back. She invited Council to walk down her street and look at all of the houses to see that they are not eyesores. She stated that if Council decreases the size of homes on oceanfront lots, they will all look like three (3) story row homes.
Sam Taylor of 111 Skimmer Way was recognized to speak. Mr. Taylor asked if he could ask Planning Director Cotellessa a question. Mayor Morrison allowed the question. Mr. Taylor asked if all of the other towns have the same rule that the Town is proposing for oceanfront lots. He stated that he had read that Dare County uses the rules for their tax assessments. He asked if the other towns use the same rule for their lot size determination. Planning Director Cotellessa stated that other towns use the first line of stable natural vegetation to determine the lot area for the purposes of lot coverage. She stated that the Town’s ordinance will use that standard or the Dare County Tax Assessment lot area, whichever is greater. She stated that the Town’s will be slightly more flexible than other towns.
Mayor Morrison asked if anyone else wished to comment on the public hearing. There being no one else wishing to speak, he closed the public hearing.
Mayor Morrison opened the floor to Council for discussion.
Councilor Lindley felt there was a misunderstanding on whether a house on an oceanfront property is destroyed could be rebuilt. He stated that the structure could be rebuilt. He stated that the Town discovered that taxes are not paid on any land between permanent vegetation and the mean high water mark, so oceanfront homeowners would not be losing any value.
Councilor Smith agreed with Councilor Lindley’s comments. He stated that oceanfront properties are an investment and with any investment, there are variables and risks. He stated that one of the biggest variables of oceanfront lots is that the property is not very stable to begin with. He didn’t believe it was entirely fair for the person who has a lot across the street from an oceanfront lot to be limited to what he/she pays taxes on and yet someone who has an oceanfront lot be allowed to build based on property that they do not pay taxes on. He stated that he has been attending many Council meetings, even before he was elected, and didn’t remember many public hearings where there were three (3) on one issue. He felt that the Town has had an open dialogue all along. He stated that he has taken a number of telephone calls from concerned citizens both for and against the ordinance. He stated that he has been impressed with those that did speak at the meetings. He stated that there have been a lot of suggestions with the revision to the ordinance being one of the suggestions. He stated that the Town did look at all of the oceanfront lots at the last meeting via a Power Point presentation from Planning Director Cotellessa, where she explained the effects that the oceanfront lots would have. He stated that sixty-five percent (65%) of the homes on the oceanfront that have pulled permits since 2003 would lose one (1) bedroom if the ordinance passed. He thought it was important that as far as nonconforming, the existing structures are grandfathered; however, if a homeowner wants to rebuild a home as it stands today, it has to be proven by having an as-built survey. He stressed to the audience that they obtain as-built surveys for their properties.
Councilor Caviness felt that it was important to clear up a question that seemed to be circulating in this meeting and the last one – one where people are asking where the ordinance is coming from and why the Town is considering it. She held up a copy of the Town’s Core CAMA Land Use Plan to the audience and stated that this ordinance and everything that has to do with Planning and Zoning that comes before Council are because of the Land Use Plan. She stated that it is one of the most important documents that will determine development patterns for residential and commercial for the Town for now and in the future. She stated that everything that comes before the Planning Board and Council is because they are charged with making sure the goals and objectives of the Plan are enacted. She stated that the ordinance is coming from a policy objective in the Land Use Plan that states that it is important for the Town to manage residential development along the coast. She stated that it is also stated in the ordinance. She stated that the ordinance is not from a random, arbitrary discussion that came out of nowhere, but is what Council and Planning Board are charged to do. She stated that she appreciates the economic arguments that people had and agreed with Councilor Smith that some of the suggestions made were important, but as a Council Member she feels the Town has to balance the economic values and arguments with things that are equally important, such as environment, protection of the coast and equity for all of the property owners in Duck, and to do what is right for both the residential and commercial properties. She stated that Council has heard from the business community on the ordinance and they fully support it passing.
Mayor Morrison stated that individuals in the audience had mentioned properly notifying property owners. He stated that the Town has bent over backwards to notify everyone by running ads in the newspapers, run notices on the Town’s websites, having the proposed changes on the website and had three (3) public hearings with nineteen (19) speakers at the first hearing, a few less at the second and six (6) speakers at the meeting tonight. He stated that he has met individually with each Council Member along with the Town Manager and the Planning Director to discuss the matter and address any questions Council may have had. He stated that the Town has bent over backwards to try to be fair and to do what he believes is in the best interest for the Town of Duck.
Mayor Morrison asked if Council had any further comments.
There being no further comments, Mayor Morrison moved to approve Ordinance 06-02 as presented.
Motion approved 4-0.
Mayor Morrison thanked the audience for coming and appreciated their input.
Public Hearing/Discussion/Consideration of CUP 06-001, Renewal of Conditional Use Permit for Model Home/Builder Showcase at 103 Duck Ridge Village Court
Mayor Morrison stated that the Council is a quasi-judicial body and therefore certain safeguards must be in effect. He stated that the public hearing is not a debate and turned the meeting over to Town Clerk Layton.
Town Clerk Layton asked for those who were testifying to stand and be sworn in. He then proceeded to swear the people in.
Mayor Morrison recognized Planning Director Suzanne Cotellessa to speak. Planning Director Cotellessa stated that the Conditional Use Permit is a renewal for a model home for BD&A Homes at 103 Duck Ridge Village Court. She stated that Conditional Use Permits for model homes are authorized in the Zoning District. She stated that a model home is able to be approved and authorized for a period of no more than two (2) years. She stated that in January 2005, Council approved a one (1) year Conditional Use Permit for this model home, which expired January 5, 2006. She stated that the applicant wished to continue the use after that time, and he was contacted to let him know that he needed to come back and go through the process again. She stated that the proposed use will be continued as a model home, keeping in place the same conditions that were in place with the original approval with the exception that staff recommends that the CUP be renewed for a period to end on January 5, 2007 to keep up with the original two (2) year term of approval. She stated that the Planning Board reviewed the proposal and recommended approval.
Attorney Ben Gallop pointed out that Eric Avery of BD&A should be allowed to question Planning Director Cotellessa, if needed. Mr. Avery had no questions.
Eric Avery was recognized to speak. Mr. Avery stated that BD&A would like to have the model home remain through the end of October 2006, understanding that the permit would be terminated January 5, 2007.
Mayor Morrison asked for public comments. There being none, he asked Council for questions of the applicants. There being none, he closed the evidentiary portion of the hearing.
Mayor Morrison opened the floor for Council to deliberate.
Councilor Caviness stated that she was on Council when the original CUP was considered. She thought the property has been exceptionally maintained and had not brought about any ill effects to the Village Commercial area. She didn’t see any reason why the CUP could not be continued.
Councilor Lindley stated that he was with the Planning Board when they reviewed the CUP. He stated he is prepared to approve the CUP.
Councilor Lindley moved to approve CUP 06-001 as presented based upon the findings of fact and conditions as presented.
Motion approved 4-0.
Public Hearing/Discussion/Consideration of Ordinance 06-03, an Ordinance Establishing a Local Management Program for the Implementation and Enforcement of Minor Development Permits in Areas of Environmental Concern
Town Manager Chris Layton was recognized to speak. Town Manager Layton stated that upon adoption of Ordinance 06-03, Administrative Assistant Sandy Cady would be the Town’s Local CAMA Permitting Officer. He stated that a few months ago, the Council moved to approve a draft Local Enforcement and Implementation Plan for the CAMA program. He stated that on March 24, 2006, the Coastal Resources Commission approved the draft plan as presented, making it possible for the public hearing to move forward. Upon adoption of Ordinance 06-03, the Town would officially take over CAMA local permitting on July 1, 2006. He stated that prior to July 1, 2006; Administrative Assistant Cady would be attending on the field training with the Elizabeth City CAMA office. He stated that she has completed all of the initial training and would be good for the job.
Councilor Lindley asked if a uniform would have to be worn. Administrative Assistant Cady stated that she hoped to order more Town of Duck shirts. Town Manager Layton stated that she would have to wear waders and snake boots.
Councilor Caviness moved to approve Ordinance 06-03 as presented.
Motion carried 4-0.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
Update from the Build the Bridge – Preserve Our Roads Committee
John Wander was recognized to speak. Mr. Wander gave a short update on the Build the Bridge activities to Council and the audience.
Councilor Smith asked how long the study with ECU would take. Mr. Wander stated that in the grant, they proposed eighteen (18) months for the study with ECU.
Town Manager Layton stated that there was a collaborative group for the Corridor study. He stated that the group was supposed to meet about a month ago, but have not. He suspected that the group has not met because everything has been transferred to the Toll Authority.
Mayor Morrison thanked Mr. Wander for his update.
Appointments to the Board of Adjustment
Mayor Morrison stated that this was an important appointment to a Town Board and in the absence of Mayor Pro Tempore Thibodeau; he suggested deferring the item until the Council’s mid month meeting.
It was consensus of Council to defer this item until May 17, 2006.
Appointment to the Planning Board
Mayor Morrison stated that this was also an important appointment to a Town Board and suggested deferring the item until the mid month meeting.
It was consensus of Council to defer this item until May 17, 2006.
Discussion of Issues Related to the Compensation of Town Council
Mayor Morrison asked Councilor Smith for an update. Councilor Smith stated that Mayor Pro Tempore Thibodeau was following up with Melva Garrison of the Board of Elections and he was not contacted as to whether contact was made.
Mayor Morrison suggested deferring the item until the May 17, 2006 meeting.
It was consensus of Council to defer this item until May 17, 2006.
NEW BUSINESS
Presentation regarding the Outer Banks SPCA Summer Program for Vacationers and their Pets
Sarah Tyler of the Outer Banks SPCA was recognized to speak. Ms. Tyler went on to make a presentation on the organization’s summer program for vacationers and pets to Council and the audience. She asked for Council’s permission to provide vacation packets to the Police Department to hand out to vacationers for their pets.
Mayor Morrison asked if there was a cost to join the program. Ms. Tyler stated there wasn’t.
Councilor Smith felt this was a good program for vacationers.
Councilor Smith moved to begin participating in the pilot program presented by the Outer Banks SPCA for vacationers and their pets.
Motion carried 4-0.
Mayor Morrison thanked Ms. Tyler for her presentation.
Acceptance of the Donation of the Winged Horse at Herron’s Restaurant from Cathy Herron
Town Manager Layton stated that the Town received a letter from Cathy Herron recently stating that she wished to donate the winged horse that sits outside of Herron’s Restaurant. Town Manager Layton went on to read the letter to Council and the audience.
Town Manager Layton felt it would be appropriate for Council to officially accept the winged horse. He stated that Council may wish to add a plaque to the horse stating that it was donated by Rick and Cathy Herron and that a letter could be drafted from Mayor Morrison, thanking her for the donation.
Councilor Lindley moved to accept the winged horse from Cathy Herron and consider providing a plaque to commemorate the donation.
Motion carried 4-0.
An Ordinance Amending Ordinance 05-10, an Ordinance Prohibiting the Parking of Certain Vehicles within the Town of Duck
Town Manager Layton stated he had received a letter from the Sanderling Homes Association, Inc. requesting that the following streets of the Sanderling Subdivision be added to the list of subdivisions in which parking can be enforced by the police department: Oyster Catcher Lane, Skimmer Way, Bunting Lane, Bunting Way, Shearwater Way, Sandpiper Cove and Pelican Way.
Councilor Caviness moved to approve Ordinance 06-04 as presented.
Mayor Morrison asked if the homes on Duck Road would be included in the ordinance. Town Manager Layton stated that Duck Road is already covered under the ordinance.
Motion carried 4-0.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN ATTORNEY
Attorney Ben Gallop was recognized to speak. He stated he did not have anything to report.
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 building permit, Fire Department and Police Department activities to Council.
Update on the NCLM Town Hall Day
Town Manager Layton stated that the North Carolina League of Municipalities Town Hall Day will be held on Wednesday, June 7, 2006 in Raleigh, North Carolina, which is the same day as Council’s regular meeting. He encouraged Council to attend and to let him know for registration purposes.
Councilor Caviness asked John Wander if the Build the Bridge meeting is confirmed for June 7, 2006. John Wander stated that it has been accepted and is possible that it may be changed.
Councilor Lindley asked how the transportation to Town Hall Day works. Town Manager Layton stated that usually everyone goes together in one vehicle with him driving.
Budget Amendments
Town Manager Layton stated that the budget amendment was for a transfer of funds to cover costs associated with painting the Public Safety building and changing the exterior lights to be dark-sky friendly. He recommended Council transfer twenty-five thousand dollars ($25,000) from Capital Outlay: General Government to Public Buildings: Repairs and Maintenance.
Mayor Morrison moved to approve the budget amendment as presented.
Motion carried 4-0.
Financial Statement for the Month of April 2006
Town Manager Layton stated he had not received all of the bank statements to date, but presented Council with a financial report on revenues and expenditures.
MAYOR’S AGENDA
Mayor Morrison stated that did not have anything to report.
COUNCIL MEMBERS’ AGENDA
Councilor Caviness made a short slideshow presentation to Council and the audience on the Arbor Day activities in Town.
Councilor Lindley stated he had nothing to report.
Councilor Smith stated he had nothing to report.
OTHER BUSINESS
Mayor Morrison stated that the next meeting will be a work session on Wednesday, May 17, 2006 at 1:00 p.m.
CLOSED SESSION
Councilor Caviness moved to enter closed session pursuant to Section 143-318.11(5) 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 related to property located at 1202 Duck Road.
Motion carried 4-0.
The time was 8:24 p.m.
Upon return from closed session, Mayor Morrison stated he would like to discuss compensation for Planning Board members who do not attend the meetings at the Council’s mid month meeting.
There being no further business to discuss, Councilor Lindley moved to adjourn.
Motion carried 4-0.
The time was 8:42 p.m.
____________________________
/s/Christopher J. Layton, Town Clerk
Approved: ______________________
_______________________________
/s/Neil Morrison, Mayor