TOWN OF DUCK
TOWN COUNCIL
REGULAR MEETING
June 6, 2007
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 7:00 p.m. on Wednesday, June 6, 2007.
COUNCIL MEMBERS PRESENT: Mayor Neil Morrison; Mayor Pro Tempore Monica Thibodeau; Councilor Nancy Caviness; Councilor Denver Lindley, Jr.; and Councilor Bart Smith.
Council Members ABSENT: None.
OTHERS PRESENT: Town Manager and Town Clerk Christopher J. Layton, Town Attorney Donald I. McRee, Jr.; Director of Community Development Suzanne Cotellessa; Police Chief Dale Hamilton; Fire Chief Donna Black; and Zoning Administrator Sandy Cady.
OTHERS ABSENT: Deputy Town Clerk Lori Kopec.
Mayor Morrison called the meeting to order at 7:00 p.m. Mayor Morrison asked Zoning Administrator Sandy Cady 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 regarding the public hearings be held off.
Haley Chambers of RBC Centura Bank was recognized to speak. Ms. Chambers stated she was the new branch manager of RBC Centura Bank and wanted to introduce herself.
There being no one else wishing to speak, Mayor Morrison closed the time for public comments.
APPROVAL OF MINUTES
Mayor Morrison opened the approval of minutes from the May 2, 2007 regular meeting and the May 16, 2007 mid month meeting. Mayor Morrison directed Council to review the minutes from the May 2, 2007 regular meeting for changes.
Councilor Lindley moved to approve the May 2, 2007 minutes as presented.
Motion carried 5-0.
Mayor Morrison directed Council to review the minutes from the May 16, 2007 mid month meeting for changes.
Mayor Pro Tempore Thibodeau moved to approve the May 16, 2007 minutes as presented.
Motion carried 5-0.
SPECIAL PRESENTATION
Presentation of 2007 Annual Community Appearance Awards
Mayor Morrison stated that there would be a special presentation to the 2007 Community Appearance Awards winners. He stated that Community Improvement Committee Chairwoman Lisa Mann was to present the awards to the winners.
Lisa Mann was recognized to speak. Ms. Mann went on to present the following awards with Mayor Morrison’s assistance:
First Place Subdivision/Homeowners Association – Sea Tern Homeowners Association
Honorable Mention – Sea Hawk Citizens Association
Honorable Mention – Northpoint Homeowners Association
First Place Commercial Business – Duck Soundside Shoppes
Second Place Commercial Business – Duck Village Outfitters
Honorable Mention – Duck United Methodist Church
Mayor Morrison called for a five (5) minute recess. The time was 7:10 p.m.
Mayor Morrison reconvened the meeting.
PUBLIC HEARINGS
Public Hearing/Discussion/Consideration of Ordinance 07-05, an Ordinance Amending the Zoning Ordinance of the Town of Duck, North Carolina, regarding Tree and Vegetation Preservation and Planting
Mayor Morrison stated that at the Council’s May mid month meeting, the ordinance was discussed at length and a preferred second draft was developed for a public hearing. He stated that the ordinance was the consensus as developed by the Town Council.
Director of Community Development Suzanne Cotellessa was recognized to speak. Director Cotellessa stated that the issue was discussed at the Council mid month meeting as well as the last three (3) Council meetings and several Planning Board meetings. She stated that the effect of the ordinance was to recognize the value of vegetation within the Town and provide an avenue for planting to ensure the Town maintains the preservation aspect of the environment. She stated that with new construction, vegetation will be required to be considered the same way with regard to structures and guidelines of development. She stated that the ordinance recognizes the value of native trees and vegetation as well as irrigation. She stated that the Town has received a lot of input including one that was at Council’s seats. She stated that the ordinance was the kind that over time may be amended if something is not working.
Mayor Morrison opened the public hearing for Ordinance 07-05. He asked for public comments.
Sam Taylor of 111 Skimmer Way was recognized to speak. Mr. Taylor stated he was in favor of maintaining and enhancing Duck, but didn’t think the ordinance did much to do that. He felt that the ordinance was totally unnecessary in many ways. He stated that trees that are twenty-four (24) inches in diameter are very large. He stated that despite the fact that he has a heavily wooded lot, he didn’t feel he had a “dog in the fight”. He pointed out that the dune in front of his home was created by people and was not naturally created. He pointed out that the pond behind his home was not a part of the natural environment but was created from a swamp by developers. He stated that the trees in his development have grown to very high heights over the years. He cautioned Council to be careful with maintaining the natural environment as they were not talking about it but the beauty of Duck that has been enhanced by the actions of humans to make it beautiful. He thought Council needed to be very careful about putting an ordinance in that was as detailed as 07-05. He thought the ordinance would be hard to administer and suggested before passing an ordinance that was draconian as 07-05 that Council think about allowing and helping people suggest how to plant and do things in Town. He wondered what would be done with regard to ocean front canopies since trees normally do not grow on oceanfront lots. He pointed out that it was not addressed in the ordinance. He felt the ordinance did not read well and was hard to figure what could and could not be done. He also felt it was hard for anyone that wants to develop a new lot to go through and get everything that needs to be done. He urged Council to think about if the ordinance was needed and if it was, if it would make Duck more beautiful.
Olin Finch of 116 Sandy Ridge Road was recognized to speak. Mr. Finch suggested that Council clarify the violations/penalties for the removal of trees. He hoped Council could address the issue so it was not left up to interpretation.
Willo Kelly of the Outer Banks Homebuilders Association was recognized to speak. Ms. Kelly stated that she realized that both the Council and Planning Board have reviewed the ordinance many times and that Director Cotellessa has worked very hard on it, but pointed out that there were still issues with the builders. She stated that some of the issues were cost, a delay in the permitting process when adding an addition to the footprint of a home, and enforcement issues. She wondered if the ordinance needed to be passed right now or if it should be more of an educational process. She stated that there will be worst case scenarios but pointed out that not every scenario could be regulated.
There being no one else wishing to speak, Mayor Morrison closed the public hearing.
Mayor Morrison opened the floor to Council for discussion.
Mayor Pro Tempore Thibodeau pointed out that Council received an email from a gentleman who raised the concern about Section 43.6(b)(2) where there isn’t one. She asked Director Cotellessa if that was correct. Director Cotellessa stated she was correct.
Mayor Pro Tempore Thibodeau stated that the ordinance is trying to accomplish a lot. She stated she was concerned that it was difficult to interpret but appreciated the opportunity Council had to discuss it. She felt that Olin Finch’s comments regarding violations needed to be discussed in terms of penalizing people that do prohibitive activities. Director Cotellessa stated that any zoning and ordinance section was subject to violations as limited in Section 58 of the ordinance that states there could be civil penalties and fines. She stated that the Town normally issues a notice of violation if there is a problem, with a number of days for the person to resolve the problem. She stated that if it goes beyond that, then a citation is issued up to $500 a day for each separate day that the offense remains unresolved. She stated that if none of those solutions work or is not appropriate; the Town could pursue civil remedies. She stated that all of the remedies are available for any ordinance violation. She stated that the practice has been to give a notice of violation. She expected the process to be a learning one and to work with the realtors, contractors and homeowners.
Councilor Smith stated that whenever he has heard someone speak of the ordinance, they’ve spoken about trees. He pointed out that it is a tree and vegetation preservation ordinance. He stated that the ordinance was not just about trees.
Mayor Pro Tempore Thibodeau asked how easy it would be for someone to come in with a tree that is not on the list. She asked how hard the process would be. Director Cotellessa stated that the ordinance provides for someone to come in with vegetation that is not in the appendix to run it through the local agricultural agents and add it to the appendix. She pointed out that people can plant any type of tree they want.
Councilor Caviness stated that she believed the ordinance as it was presented represented the best thinking of both Council, the Planning Board and the people that have attending the meetings and provided their input. She stated that problems may come up as time goes by or unique circumstances happen, but thought the ordinance was a way of presenting to people that it was a value that is important to the community.
Councilor Caviness moved to adopt Ordinance 07-05 as presented.
Mayor Morrison pointed out that a section of the ordinance was renumbered.
Councilor Caviness moved to amend her motion to adopt Ordinance 07-05 by adding the corrected section.
Councilor Lindley referred to the Duck Vision Statement that was developed as a result of considerable thought, questionnaires and this instance. He pointed out that the Vision Statement reads: “protecting and preserving the natural environment.” He thought it was what the Town was attempting to do. He stated that he has the privilege of sitting on both the Council and Planning Board and has reviewed the ordinance at length. He stated he was convinced that the ordinance had received very careful thought by people who were concerned about the welfare of the community. He stated that no ordinance will ever be perfect, but felt the time had come to enact the ordinance and amend it if it becomes necessary.
Mayor Pro Tempore Thibodeau agreed that a lot of discussion had gone into the ordinance. She thought there was still gray areas in the ordinance, but didn’t know how to get around it as it will be something new that people haven’t had to do before. She stated that she values the environment and wants to preserve it, but thought new homeowners may feel intimidated by the ordinance. She stated that substantial redevelopment will be something people will have to grapple with in Town. She stated her other concern was the interpretation by the Director of Community Development. She pointed out that while Director Cotellessa is extremely capable, she was worried about the new Director coming that there may not be consistent understanding. She stated that she has issues with the ordinance being made into a law and implored that flexibility is needed. She asked that Council and the Planning Board be given feedback if any issues come up.
Motion carried 5-0.
Mayor Morrison thanked the Planning Board and everyone that spent so much time in creating the ordinance.
Public Hearing/Discussion/Consideration of Ordinance 07-08, an Ordinance Amending the Zoning Ordinance of the Town of Duck, North Carolina, adding a Section 29.3, Ocean and Sound Overlay District
Mayor Morrison stated that staff had reviewed the ordinance at the Council’s regular May meeting. He stated that the ordinance adds a new section to the Zoning Ordinance establishing an ocean and sound overlay district within the Town’s extra-jurisdictional territory. He stated that the ordinance defines permitted and prohibited activities from the shoreline of the ocean and sound extending 1000 feet into the Atlantic Ocean and Currituck Sound.
Director Cotellessa stated that the ordinance is unique in that it is one of the few that has direct action items from the Town’s Land Use Plan. She stated that it was modeled after the Town of Nags Head’s ordinance. She stated that it provides for regulation for the waters. She stated that some prohibited activities were signage in the water and filling in wetland areas that are areas of environmental concern.
Mayor Morrison opened the public hearing for Ordinance 07-08. He asked for public comments.
David Tanis of 136 Cook Drive was recognized to speak. Mr. Tanis asked if the ordinance was in violation of federal laws with respect to wetlands. Town Attorney McRee stated that he did not believe it was. He stated that Council has the authority to zone areas and regulate certain uses within their zoning district that they deem advisable. Mr. Tanis asked if filling wetlands would be a violation of federal law. Town Attorney McRee didn’t think it was a violation of federal law. He stated that the Town of Nags Head has had this type of ordinance on the books and has regularly enforced it.
There being no one else wishing to speak, Mayor Morrison closed the public hearing.
Mayor Morrison opened the floor to Council for discussion.
Mayor Pro Tempore Thibodeau asked what the remedy would be for lots that were considered unbuildable. Director Cotellessa stated a variance request would be the remedy. She stated she was unaware of any lots in Duck that were considered unbuildable.
Councilor Smith moved to adopt Ordinance 07-08 as presented.
Motion carried 5-0.
Public Hearing/Discussion/Consideration of TCV 2007-001, a Variance Application submitted by Karen Frey, Agent, for Edward F. and E. Lorraine Sadler, Property Owners at 161 Buffelhead Road, Lot 15, Sandhills Subdivision in Duck, North Carolina, to Allow an Increase in Building Height
Mayor Morrison turned the meeting over to Town Attorney McRee.
Town Attorney McRee 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 to swear people in.
Town Clerk Layton asked for those who were testifying to stand and be sworn in. He then proceeded to swear the people in.
Town Attorney McRee recognized Director Cotellessa to speak. Director Cotellessa offered the staff report into evidence. She stated that the variance request was for 161 Buffelhead Road in the Sandhills subdivision. She stated that the property currently has a home that has come closer and closer to the ocean. She stated that in order to safeguard the safety of the home, the applicants would like to move the existing house further back on the lot landward. She stated that the property is in a V-Zone, which is a specific flood zone with special features such as houses in that area needed to be raised to provide free and clear obstruction under them. She stated that the owners want to move the property landward and raise it three (3) feet but the problem is the house is already thirty-five (35) feet tall.
Director Cotellessa stated that in considering the application, there was a series of criteria which needed to be followed with a variance proceeding. She stated that Council is charged with reviewing the application to make sure it meets the criteria and if the variance is granted, Council has to make the finding that it is the minimum necessary to make possible the reasonable use of the land. She stated that this is important because the applicant wants to bring the property back and raise it but also wants to add onto it. She stated that the applicants went back and re-drew the property to keep the addition in the new position within the thirty-five (35) foot height limit. She pointed out that once the house is brought landward, it will lower the elevation so as it comes down, the relative height difference from where it is now is less than a foot. She stated that staff recommends granting the variance request provided that the addition meets the current height requirements. She stated that staff further recommended that Council make the findings and conclusions that are provided in the order granting the variance based on the findings of fact that there is a special circumstance. She stated that the literal interpretation of the regulations would deprive the applicant of rights enjoyed by other properties, but there are special conditions that it would not constitute a special privilege and meets the minimum requirements necessary.
Town Attorney McRee asked Council for their questions of Director Cotellessa. There being none, he asked the applicant if he had questions of Director Cotellessa. Edward Sadler stated he did not. Town Attorney McRee asked the applicant to present evidence to Council.
Edward Sadler of 161 Buffelhead Road was recognized to speak. Mr. Sadler stated that he and his wife purchased the property three (3) years ago. He stated that they love the house as is but want to expand it a little so they could spend more time in Duck. He stated that they also want to put in an elevator as well. He stated they were here during the 2006 Thanksgiving Nor’easter and lost fifteen (15) feet of dune line as well as their new dune deck, which was why they decided to move the house back.
Town Attorney McRee asked Council for their questions of the applicant. He asked the audience if they wished to present any evidence with regard to the application. There being none, he closed the evidentiary phase of the hearing and turned the meeting over to Mayor Morrison.
Mayor Morrison opened the floor for Council to deliberate.
Councilor Lindley stated that he is a bear on height and has made it publicly clear. He stated that the house is already built and the applicants have agreed that the addition will meet the height requirements. He stated that he has no objection to the variance request.
Mayor Pro Tempore Thibodeau stated she had no objection as well.
Councilor Lindley moved to approve TCV 2007-001, a variance application submitted by Karen Frey, agent, for Edward F. and E. Lorraine Sadler, property owners at 161 Bufflehead Road, Lot 15, Sandhills subdivision in Duck, North Carolina, to allow an increase in building height with the adoption of the proposed findings of fact made by staff.
Motion carried 5-0.
Public Hearing/Discussion/Consideration of the Proposed FY 2008 Budget
Mayor Morrison stated that Council was introduced to the proposed FY 2008 budget by Town Manager Layton. He stated that Council had a work session on May 16, 2007 as well. He stated that the ordinance in front of Council would adopt the proposed budget. He noted that Council can adopt the ordinance after the public hearing or schedule a work session to further discuss the budget.
Mayor Morrison opened the public hearing for the proposed FY 2008 budget. He asked for public comments. There being none, he closed the public hearing.
Mayor Morrison opened the floor to Council for discussion.
Mayor Pro Tempore Thibodeau complimented Town Manager Layton on the thoroughness of the budget as well as his presentation.
Councilor Caviness moved to adopt the FY 2008 budget as presented.
Motion carried 5-0.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
Discussion/Consideration of Ordinance No. 07-09, an Ordinance Amending Ordinance No. 04-11, an Ordinance of the Town of Duck, North Carolina, Regulating Automatic Alarm Systems
Police Chief Dale Hamilton was recognized to speak. Police Chief Hamilton stated that the amendment would change the time from thirty (30) days to ninety (90) days and increased the fines that go along with it. He stated that the whole purpose was because it was unfair to the citizens and hard to track the permits. He stated the new ordinance would give people more time for the police to work with them, making it a smoother process.
Councilor Smith moved to adopt Ordinance 07-09 as presented.
Motion carried 5-0.
NEW BUSINESS
Discussion/Consideration of Changing the Date of the July Regular Meeting due to a Conflict with the 4th of July Holiday
Mayor Morrison stated that Council regularly meets on the first Wednesday of each month. He stated that this year the 4th of July falls on the first Wednesday. He stated that the Council meeting date will need to be changed. He stated that staff has recommended that the meeting be held on Thursday, July 5, 2007.
Mayor Morrison moved to reschedule the regular July meeting to be changed to Thursday, July 5, 2007 at 7:00 p.m.
Motion carried 5-0.
Mayor Morrison reminded Council and the audience of the upcoming 4th of July parade in Duck.
Discussion/Consideration of Resolution No. 07-07, a Resolution of Support for the Restart of Work on Project R-4457 in the NCDOT Transportation Improvement Plan (TIP)
Mayor Pro Tempore Thibodeau stated that she has been attending the meetings and traffic issues in general have been discussed. She stated that there has been discussion about the intersection of US 158 and NC 12 with funding in place. She stated that the resolution asks each town to get behind getting the plan off the ground.
Mayor Morrison stated he wanted to make sure there was no mention in R-4457 of the possibility of widening NC 12 in the future. He stated that he was told there wasn’t.
Town Manager Layton stated that the TIP item was specifically about the planning and design of US 158 and NC 12 in Southern Shores. He stated that one of the delays was that it was put in with the entire Currituck Sound Transportation study.
Town Attorney McRee pointed out that the Town of Southern Shores adopted the resolution at their Council meeting on June 5, 2007.
Mayor Pro Tempore Thibodeau moved to adopt Resolution 07-07 as presented.
Motion carried 5-0.
Discussion/Consideration of Resolution No. 07-08, a Resolution in Support of the Clean Water Act of 2007
Town Manager Layton stated that the Rural Center has been requesting assistance with support for the legislation. He stated that the resolution would provide authorization for a referendum on the State putting out a bond for water and wastewater treatments in economically challenged rural areas. He stated that this would be one of the few ways that small localities and counties can fund water and wastewater treatment systems. He stated that it was an important piece of legislation; however it would not directly affect Duck.
Councilor Lindley moved to adopt Resolution 07-08 as presented.
Motion carried 5-0.
Discussion/Consideration of Renewing a Contract with Coinjock Farms for the Maintenance of the Duck Multi-Use Path and Adding to the Services of the Maintenance of the Town Park
Town Manager Layton stated that for the past few years, Coinjock Farms has been maintaining the Duck multi-use path. He stated that their contract expires on June 30, 2007. He recommended re-contracting with them for the same services. He stated that in addition, the Town park will need maintenance with regard to mowing services and additional services as required. He stated that Coinjock Farms has submitted a proposal where they would mow the grass; maintain trash cans daily and generally make the park presentable. He stated that the cost of the services would be $71,240 annually. He stated that the park adds $24,000 to the annual contract. He pointed out that he could not hire anyone to do all the maintenance as well for the same amount. He added that a 2% cost of living increase was included in the cost after the first year.
Mayor Morrison stated that Coinjock Farms has done an outstanding job on the park.
Mayor Pro Tempore Thibodeau asked if there has been any discussion with Coinjock Farms with regard to special events and post storm clean up. She felt it was a little open ended on their part. Town Manager Layton stated that they would do what they normally do on the trail after a storm, such as picking up limbs. He stated that with the events, they would assist the Town with set up and clean up.
Mayor Pro Tempore Thibodeau moved to authorize the Town Manager to execute a contract with Coinjock Farms.
Motion carried 5-0.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN ATTORNEY
Town Attorney Ike McRee was recognized to speak. Town Attorney McRee stated that he had nothing to report.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN MANAGER
Town Manager Layton stated that the Town has advertised for the Director of Community Development position and received some good applications. He stated that a first run of interviews will be on Tuesday, June 12, 2007 and Wednesday, June 13, 2007. He stated that he felt that of the four (4) candidates that will be interviewed, two (2) of them seem to be highly qualified. He stated that he hoped that one of the individuals would be hired so Director Cotellessa could start training the individual. He stated that if the interviews do not go well, more applications are coming in and he could go from there.
Town Manager Layton stated that the Town has also advertised for the Deputy Fire Chief position and have received a lot of applications for it.
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, Fire Department and building permit activities to Council.
Update on the Implementation of the Municipal Property Master Plan
Town Manager Layton stated that things are progressing smoothly. He stated that the trails are proceeding at a tremendous rate due to the events coming up starting in July. He stated that everything is on schedule with the irrigation finished on the north end. He stated that the trails that are part of Phase I and Phase II are now cut with the gravel down. He stated that delivery of the pilings for the pier should happen by the end of the week. He stated that the whole park is coming together nicely.
Financial Statement for the Month of May 2007
Town Manager Layton reviewed the financial report on revenues and expenditures with Council.
MAYOR’S AGENDA
Mayor Morrison thanked the audience for attending. He stated it was nice to have such a large crowd but noted that a Town Hall is needed.
COUNCIL MEMBERS’ AGENDA
Mayor Pro Tempore Thibodeau thanked the audience for attending the meeting as well.
Councilor Lindley stated that he had performed an informal poll regarding a name for the Town park. He stated that so far the vote has been 2-1 to name the park Fox Run Park.
Councilor Caviness had nothing to report.
Councilor Smith had nothing to report.
OTHER BUSINESS
Mayor Morrison stated that the next meeting would be Wednesday, June 20, 2007 at 1:00 p.m.
There being no further business to discuss, Mayor Morrison moved to adjourn the meeting.
Motion carried 5-0.
The time was 8:38 p.m.
____________________________
/s/ Christopher J. Layton, Town Clerk
Approved: July 5, 2007
_______________________________
/s/ Neil Morrison, Mayor