TOWN OF DUCK
TOWN COUNCIL
REGULAR MEETING
October 3, 2007
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 7:00 p.m. on Wednesday, October 3, 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 Andy Garman; Interim Police Chief Phillip Ferguson; Fire Chief Donna Black; and Deputy Town Clerk Lori Kopec.
OTHERS ABSENT: None.
Mayor Morrison called the meeting to order at 7:02 p.m. Mayor Morrison led the Pledge of Allegiance and moment of silence.
PUBLIC COMMENTS
Mayor Morrison opened the floor for public comments. He asked that any comments regarding the public hearings be held off.
There being no one wishing to speak, Mayor Morrison closed the time for public comments.
Interim Police Chief Phillip Ferguson was recognized to speak. Interim Chief Ferguson stated that Officer Gerard Couture had recently obtained his general instructor’s certificate through the North Carolina Department of Justice. He went on to present Officer Couture with a framed certificate and service bar.
Interim Chief Ferguson stated that Officer Tara Armstrong had recently obtained her intermediate law enforcement from the North Carolina Department of Justice. He went on to present Officer Armstrong with a framed certificate and service bar.
Mayor Morrison and Council congratulated both Officer Couture and Officer Armstrong on their accomplishments.
APPROVAL OF MINUTES
Mayor Morrison opened the approval of minutes from the September 5, 2007 regular meeting. Mayor Morrison directed Council to review the minutes from the September 5, 2007 regular meeting for changes.
Councilor Caviness moved to approve the September 5, 2007 minutes as presented.
Motion carried 5-0.
PUBLIC HEARINGS
Public Hearing/Discussion/Consideration on CUP 07-001, CUP 07-002 and CUP 07-004, submitted by Ben Cahoon on behalf of Duck Land Company, LLC, to Approve a New Real Estate Office Building at 1181 Duck Road
Mayor Morrison turned the meeting over to Town Attorney Ike McRee.
Town Attorney Ike McRee was recognized to speak. Town Attorney McRee stated that the Council would be sitting as a quasi-judicial body for the public hearing, meaning that they will sit as a court and must make its decision based upon competent material and substantive evidence that will be presented during the course of the hearing. He stated that anyone wishing to give testimony would have to give it while under oath with the applicant afforded due process rights including the right to present evidence, examine and cross-examine witnesses. He asked that anyone wishing to testify come forward to be sworn in.
Deputy Town Clerk Lori Kopec proceeded to swear in the applicants and staff for the public hearing. Town Attorney McRee opened the evidentiary portion of the hearing. He stated that Director of Community Development Andy Garman would present an analysis.
Director of Community Development Andy Garman was recognized to speak. Director Garman stated that there were three (3) Conditional Use Permits for the Twiddy Realty building at 1181 Duck Road. He stated that several of the existing features that the applicant wished to retain do not meet the Town’s by-right standards for commercial development such as the internal circulation areas, the driveways, some parking spaces and two (2) driveway accesses on to NC 12. He stated that the two (2) driveway accesses would not be permitted on a by-right scenario due to Town ordinances that would limit the ability to place driveways within a certain distance of each other. He stated that the applicant presently has two (2) driveways within thirty (30) feet of one another as well as within thirty (30) feet of the intersection. He stated that under a highway scenario, more than two (2) driveways would not be allowed every eight (8) feet, nor would a driveway be allowed closer than eight (8) feet to an adjacent intersection. He stated that under by-right scenarios, the Town ordinance states that access has to be provided from a side street rather than directly to NC 12. He stated that the other two (2) issues were to allow a building larger than 5,000 square feet and the group development. He stated that the applicant is considering increasing the parking on the site significantly to account for the additional office space.
Mayor Pro Tempore Thibodeau asked if the drive aisle that was recommended by the Planning Board was on the northern or southern side. Director Garman stated it was on the southern side. He went on to show a color rendering of the proposed building to Council and the audience as well as discussing the vegetation, signage and lighting. He stated that the Planning Board and staff recommended approval of the CUPs conditioned on the findings of fact.
Town Attorney McRee asked Council if they had any questions for Director Garman. He asked the applicant if they had questions for Director Garman. There being none, he instructed the applicant to present his case.
Ben Cahoon of Cahoon and Kasten was recognized to speak. Mr. Cahoon thanked staff for working with him. He stated that the primary reason for the redevelopment was because the office space was substandard. He stated that the building has been in place since 1978 and has grown over the years. He stated that the office has substantial check-in traffic but not a lot of lobby space for it. He stated that the increase in building size was related to giving the employees standard office space as well as providing public accommodations to the building. He stated that the applicant was not planning to increase staff or the number of units rented through the site.
Ben Cahoon stated that the north driveway was discussed at great length at the Planning Board meeting. He argued that the Town’s ordinance reads “no new driveways for redevelopment…” which would not include existing driveways for redevelopment. He pointed out that the driveways have been in place for a long time with Town staff taking the position that it should come up to current standards. He stated that his second argument was the absence of accidents at the site with regard to the driveways. He stated that there has not been a significant traffic problem at the site. He stated that the business did not create the conflict with the multi-use path as two (2) of the driveways were there before the path was put in. He stated that Mr. Twiddy believes that his repeat customers have become accustomed to the traffic pattern that is currently in place and by eliminating the one driveway it would hinder traffic on check-in days.
Town Attorney McRee asked Council if they had any questions for the applicant.
Councilor Smith asked what the size of the original building was. Mayor Pro Tempore Thibodeau thought it was 5,000 square feet. Director Garman believed it was closer to 4,000 square feet. Mayor Morrison stated it was 3,800 square feet.
Mayor Pro Tempore Thibodeau clarified that the increase in square footage was coming from a second story. Ben Cahoon stated she was correct. He stated that the ground floor would be getting smaller as some parking would be put under part of the building. Mayor Pro Tempore Thibodeau asked if there was an overhang on the second floor where the parking spaces would be put. Mr. Cahoon stated she was correct. Mayor Pro Tempore Thibodeau asked what the size of the parking spaces would be. Mr. Cahoon stated that there will be seven (7) spaces that would be nine (9) feet to accommodate the handicap spaces that will be moved.
Councilor Smith asked what the reason for the seven (7) substandard spaces versus six (6) standard spaces. He asked if it was to get more parking. He pointed out that most tourists drive large vehicles and the substandard parking spaces would be worthless. Ben Cahoon stated the process was started with the intent of going for a more conventional approach at the site by trying to achieve all of the parking spaces that were required by the Town’s ordinances. He stated they were able to achieve that by removing the old post office building. He stated that they had an exact calculation and the full number of spaces with the seven (7) smaller spaces to make the calculation. He stated that he understood that with the Village Commercial option, the applicant could go down slightly with the spaces to meet the full ratio for parking. He stated that after discussing with Town staff about putting the post office back, two (2) spaces were lost. He stated that they went below the required parking standards and did not think it would be a problem.
Town Attorney McRee asked Council if they had further questions of Ben Cahoon. There being none, he asked if there was any other evidence to add. There being no further additions, Town Attorney McRee closed the evidentiary portion of the hearing and turned the hearing back over to Mayor Morrison.
Mayor Morrison opened the floor to Council for discussion.
Mayor Pro Tempore Thibodeau stated that the plans were impressive. She stated that she saw improvements all around on the project, especially with the care and consideration they put into the project. She thought she needed more rationale behind why the one (1) driveway would need to be removed.
Councilor Lindley thought it was an excellent plan. He thought the parking seemed to be workable. He thought the Town should not always do away with things because they are different. He felt the driveway should be considered to be kept.
Councilor Smith stated he understood the reasoning for curb cuts. He thought the parking lot would be a mess on weekends. He suggested only allowing the second entrance to be used on weekends, with removable bollards to close it during the week. He stated that he would rather have six (6) normal parking spaces instead of seven (7) tight ones.
Councilor Caviness stated she would prefer not to have two (2) driveways as it could be hazardous to pedestrians. She stated she would rather see the one (1) driveway removed.
Mayor Morrison thought the building was beautiful. He stated that his first inclination was that the Town did not want buildings greater than 5,000 square feet, however, there are seven or eight (7 or 8) buildings at the present time that are between 5,000 and 10,000 square feet. He believed safety needed to be an important factor with regard to driveways. He stated he could visualize vehicles trying to exit the three (3) driveways onto Duck Road. He pointed out that the Town’s zoning ordinance specifically states: “…if there is an entrance on a side street, no other entrances are allowed…” He stated that the Planning Board suggested closing the north entrance. He suggested closing both entrances and having one (1) entrance in the middle to help with traffic. He stated that in lieu of the zoning ordinance, it specifically states that the driveways are not allowed. He stated he would go along with leaving the south entrance or a new entrance in the middle of the lot, but felt the north entrance should be closed for safety reasons.
Councilor Caviness asked if there was a way to have the driveway be in more of a circular movement if the driveway was in the center. Ben Cahoon stated that there were issues with the driveway in the center, mainly that there is presently a catch basin in the center. He stated they would be concerned about draining and pointed out that existing vegetation would be lost.
Councilor Smith asked if the north entrance were closed, where the turn around would be located. Director Garman stated it would be left or right of the dead end portion of the driveway. He stated that one (1) parking space would be eliminated to provide space for the turn around.
Town Manager Layton asked if there was a second entrance or driveway on Christopher Drive. Director Garman stated there was. Town Manager Layton clarified that the property has four (4) entrances/driveways. Director Garman stated he was correct. Town Manager Layton asked if the entrance on Christopher Drive was proposed to be improved as part of the project. Director Garman stated it was.
Mayor Morrison stated he was not convinced that closing the north entrance would affect Mr. Twiddy’s business in any way.
Councilor Smith asked if people could exit the property from the south driveway by driving behind the building. Director Garman stated they could. Councilor Smith clarified that there were two (2) exits onto Christopher Drive and one (1) onto NC 12. Director Garman stated he was correct and that they were two-way drive aisles.
Mayor Pro Tempore Thibodeau clarified that the main by-right allowance was for parking as well as the size of the building. Director Garman stated that the Village Commercial Development Option currently allows drive aisles to be twenty-four (24) feet wide under the by-right scenario. He stated that the applicant was proposing twenty (20) foot drive aisles in all locations except for the southern parking lot which would be twenty-four (24) feet wide.
Mayor Pro Tempore Thibodeau stated that because there have not been any accidents at the site, she would be in favor of keeping the second driveway onto NC 12 as well as reducing one (1) parking space so they are not substandard.
Councilor Lindley felt things were working and that the driveway should be kept.
Mayor Pro Tempore Thibodeau moved to approve the CUP applications, allowing the two (2) driveways and reducing the substandard parking in the one area.
Motion carried 4-1 with Mayor Morrison dissenting.
Public Hearing/Discussion/Consideration on CUP 07-003, a Conditional Use Permit submitted by Greg Dickerson on Behalf of the Duck United Methodist Church related to the Town of Duck Zoning Ordinance Section 23(c)(8), for the Construction of 30 Additional Parking Spaces at 1214 Duck Road
Mayor Morrison turned the meeting over to Town Attorney Ike McRee.
Town Attorney Ike McRee was recognized to speak. Town Attorney McRee stated that the Council would again be sitting as a quasi-judicial body for the public hearing, meaning that they will sit as a court and must make its decision based upon competent material and substantive evidence that will be presented during the course of the hearing. He stated that anyone wishing to give testimony would have to give it while under oath. He asked that anyone wishing to testify come forward to be sworn in.
Deputy Town Clerk Kopec proceeded to swear in the applicants and staff for the public hearing. Town Attorney McRee opened the evidentiary portion of the hearing. He stated that Director Garman would present an analysis.
Director Garman was recognized to speak. Director Garman stated that the Duck United Methodist Church was proposing to improve parking to the church building. He went on to review the site plan with Council and the audience. He stated that the applicant was proposing approximately thirty (30) parking spaces that would meet the conditional requirements and the Town standards. He stated that the applicant was proposing to use Gravel Pave for the parking area. He stated that vegetation was discussed as there was a significant amount of vegetation on the site. He noted that the applicant would be losing a parking space to save a tree on the lot. He stated that several knolls would be cut on the property along with some filling, which would match the adjacent grade. He stated that the Planning Board recommended approval based on the findings of fact.
Town Attorney McRee asked Council if they had any questions for Director Garman.
Councilor Lindley asked for an overview on wetlands. Director Garman stated that the Town has an ordinance in place that would prohibit the filling of wetlands within the CAMA area of environmental concern, which was seventy-five (75) feet of the low water mark. He stated that the project is proposed outside of the seventy-five (75) foot area of environmental concern.
Mayor Pro Tempore Thibodeau clarified that environmental health approval had been obtained. Director Garman stated that the Town received a letter from the Department of Environmental Health that the preliminary site plan had been reviewed, but he had not received the wastewater approval yet. Mayor Pro Tempore Thibodeau asked what the Health Department would be doing. Director Garman stated they were looking for conflicts with existing wastewater systems.
Town Attorney McRee asked for further questions from Council for Director Garman. He asked the applicant if they had questions for Director Garman. There being none, he instructed the applicant to present their case.
Greg Dickerson of 166 Chickahauk Trail in Southern Shores was recognized to speak. Mr. Dickerson stated he was at the meeting on behalf of the Duck United Methodist Church as both a member and trustee. He stated that he was there because the church was a conditional use on the property. He stated that everything was within the guidelines of the Town. He stated that they are outside of the wetlands and have worked very closely with the Town on the suggestion of saving the one tree. He stated that the vegetation that would be removed would be scrub brush and nothing significant. He stated it would be a beautiful enhancement to the property. He noted that the neighbors to the north, south and east have been gracious in allowing the church to use their parking lots. He noted that the church’s septic system is in front of the property, so there would not be any issues with that.
Town Attorney McRee asked Council if they had questions of the applicant.
Mayor Morrison stated that the site was a beautiful, heavily vegetated part of the Maritime Forest. He asked if Council would have assurances that no trees would taken down that did not need to be removed. Greg Dickerson stated they would give Council that assurance.
Councilor Smith asked what the number one reason of the board of trustees was for the need to have more parking. Greg Dickerson did not think it was because of the board of trustees but thought it came from the administrative council a few years back. He thought the number one issue, other than safety, was the burden on the neighboring properties especially if the properties ever changed hands.
Councilor Caviness asked if there was an aerial photo that would show the area of vegetation that will be removed. Bill Owen of Seaboard Surveying was recognized to speak. Mr. Owen showed the area of vegetation to be removed on an aerial photo. Greg Dickerson added that the site will look a lot like the Town parking area. Mr. Owen noted that there would be minimal clearing on the site. Councilor Caviness clarified that only scrub brush would be removed while a significant portion of the taller canopy would be preserved. Mr. Owen agreed. Councilor Caviness asked where the closest fire hydrant was located. Mr. Owen stated he was not sure. Fire Chief Donna Black was recognized to speak. Fire Chief Black stated that the closest hydrant was at the corner of Schooner Ridge Drive and NC 12. She noted that there was also one near Nags Head Hammocks.
Councilor Smith noted that the aerial photo showed a significant amount of canopy on the site. Bill Owen stated that there would be some canopy removed.
Councilor Caviness asked what the minimum amount of parking spaces the church would accept to move forward with the project. Bill Owen thought it would be as many as possible. Greg Dickerson agreed. He stated they are trying to do as much as possible to provide enough parking to alleviate the burden of the properties to the north and south. He stated that there wasn’t a negative side to removing the canopy. Councilor Caviness asked how far back the parking extended to. Mr. Owen stated it extended to the upland area.
Town Attorney McRee asked Council if they had any further questions. He asked the applicant if they had any further evidence to add. He asked the audience if anyone had further evidence to present.
Town Manager Layton pointed out that the Town was getting ready to embark on the second phase of their boardwalk project. He thought the site would be an interesting, possible access point at a future date to have the boardwalk come through.
Town Attorney McRee closed the evidentiary portion of the hearing and turned the meeting over to Mayor Morrison.
Mayor Morrison asked for discussion from Council.
Councilor Smith noted that the church has had a good working relationship with Jerry Davis and Nags Head Hammocks. He wondered how accommodating the church has been with regard to the adjacent shopping centers. He stated that there has been no mention of the church changing their hours during the summer for Sunday school and regular services. He felt the vast number of tourists come to church at the 10:00 a.m. service. He felt that if the church changed their hours during the summer, it would make a difference with regard to parking. He stated that he found it irritating that the adjacent properties were being accommodating while the church didn’t seem to be.
Mayor Pro Tempore Thibodeau stated she did not like to see trees removed, but saw a benefit with the plan. She believed the removal of trees would be an invisible impact from the road. She thought it was a huge benefit to the church and Jerry Davis. She stated she was in favor of the plan as long as the applicant gave their assurance that as much vegetation as possible will be saved.
Councilor Caviness thought it was a great opportunity to have the shared parking but preferred that that parking not be extended beyond the existing chapel. Councilor Smith pointed out that the chapel is an existing open area. Councilor Caviness pointed out that it would be a significant amount of vegetation to lose. Mayor Pro Tempore Thibodeau pointed out that there would be a buffer on either side of the building as well as a lot of nice overhang that would be kept. Councilor Caviness clarified that Town Manager Layton had mentioned the soundside boardwalk having an access point near the church. Town Manager Layton stated she was correct. Councilor Caviness asked if it should be included in the CUP application. Town Manager Layton stated it was a last minute idea, with no firm plan as to where the Town was going. Town Attorney McRee pointed out that it would not be an appropriate condition as it was not related to the use of the property. He explained that it had to be a reasonable use related to the applicant’s property and its use.
Councilor Lindley moved to approve CUP 07-003, a Conditional Use Permit for the construction of 30 additional parking spaces at 1214 Duck Road.
Councilor Caviness stated that because the soundside boardwalk had been discussed, she wondered if it was germane to the project. Town Attorney McRee stated it was not a condition Council could impose against the will of the applicant. He stated that if it was challenged, the Town would not withstand the challenge.
Motion carried 4-1 with Councilor Caviness dissenting.
Public Hearing/Discussion/Consideration on Ordinance 07-13 (ZTA-Land Disturbance), an Ordinance to Amend the Zoning Ordinance of the Town of Duck, North Carolina, Section 43.4 to Modify Requirements for Land Disturbing Activities
Mayor Morrison asked Director Garman to give an overview.
Director Garman stated that the text amendment was discussed at length by the Planning Board. He stated that the intent of the ordinance was to allow additional flexibility when trying to level a lot to create a single family pad for construction. He noted that the Town has land disturbance regulations that limit the amount of filling and grading activity that can occur on a lot, which limits the elevation that a lot can be raised with fill. He stated that under certain circumstances, a homeowner can place fill to match the adjacent grades of higher properties, to raise the lot up to base flood elevation and to place fill for installation of a septic system. He stated that the ordinance allows individuals to fill lots that are above base flood elevation and already above the adjacent grade. He also noted that the ordinance allows an individual to fill a lot depression up to five (5) feet from the property line. He stated that the Planning Board recommended approval of the ordinance.
Mayor Morrison opened the public hearing. There being no one wishing to speak, he closed the public hearing.
Mayor Morrison opened the floor for Council discussion.
Mayor Pro Tempore Thibodeau stated that she had sat in on a few Planning Board discussions with regard to the issue. She thought that because the Town has unusual topography on different lots, it would allow people to create a level surface for building. She felt the ordinance would be workable and would be easier for homeowners to build a house in Duck.
Councilor Smith thought the ordinance was hard to read. He asked what could be done with a property that has a lot depression on it. Director Garman explained that the depression could be filled and then the Town would measure the pre-disturbance elevations from the level of the depression after it was filled. Councilor Caviness thought a depression would need three to four (3 to 4) feet of fill. Councilor Smith felt it could take up to twenty (20) feet of fill. Director Garman stated he could not imagine a situation that would require an exorbitant amount of fill. He stated that the intent of the ordinance was to encourage people to work with the topography and not drastically cut and fill lots. Councilor Caviness clarified that the measurement for building height would start once the depression is filled. Director Garman stated she was correct.
Councilor Smith asked if height was measured within the lowest point of the square of the four (4) corners of a lot. Director Garman stated that the Planning Board wanted something definitive that could be agreed on.
Councilor Caviness wondered if the ordinance was really about having a level pad to build a structure or people having a depression on their lot and wanting it higher than they are entitled. Director Garman stated he could not speak for everyone, but the intent of the Planning Board was to provide flexibility to create a level building pad.
Councilor Smith agreed with Councilor Caviness’ comments. He stated that there are lots on his street that have a steep drop off. He asked if those types of lots were considered ones with depressions. Director Garman stated that there will have to be room for administrative interpretation.
Mayor Pro Tempore Thibodeau stressed those regular lots that need material to smooth out what is already there was considered fill. She did not think Council anticipated the ordinance being so strict. She stated that she liked that the ordinance gave staff administrative flexibility.
Mayor Pro Tempore Thibodeau moved to adopt Ordinance 07-13 as presented.
Motion carried 4-1 with Councilor Smith dissenting.
Public Hearing/Discussion/Consideration on Ordinance 07-14, an Amendment to Article 2 of the Flood Damage Prevention Ordinance of the Town of Duck, North Carolina to Establish a Definition for Free and Clear of Obstruction
Mayor Morrison asked Director Garman to give an overview.
Director Garman stated that the ordinance was recommended by Building Inspector Cory Tate. He stated that Building Inspector Tate had been trying to administer FEMA’s requirements for free and clear of obstruction. He stated that properties in a V Zone not only have to be elevated to meet base flood elevation (BFE), but have to be free and clear of obstruction or constructed on a piling foundation, elevated above the ground so water can pass under the structure. He stated that the purpose of the ordinance was to define what that meant and define a standard by which the structure needed to be elevated to meet the requirement. He stated that if a home is below BFE and in a V Zone, it would have to be elevated on pilings to meet the BFE requirements, which would take care of the free and clear requirement. He stated that there are a lot of cases in Duck where the existing ground in a V Zone is higher than the base flood elevation. He stated in those cases, there would be no requirement to meet the base flood elevation, but the free and clear requirement would have to be met. He went on to show an illustration to Council and the audience.
Mayor Morrison opened the public hearing.
Olin Finch of 116 Sandy Ridge Road was recognized to speak. Mr. Finch stated that the Town has to make judgment calls because the floodplain map changed. He stated that as a builder, he has dealt with V Zones for a long time. He stated that the Town is trying to establish a minimal distance from the lowest horizontal member to the original grade. He stated that it was a reasonable argument, but pointed out that the FEMA document deals with manmade obstacles such as breakaway walls and does not address original grade or maintaining a clearance. He stated he did not see any problem with passing the ordinance but would like to see it tabled to study how existing homes would be impacted.
There being no one else wishing to speak. Mayor Morrison closed the public hearing.
Mayor Morrison opened the floor for Council discussion.
Mayor Pro Tempore Thibodeau stated she was concerned about the ordinance as it was written, with regard to existing homes. She stated she would like to get into a discussion of who would be impacted by the ordinance, other than oceanfront homeowners. She thought the ordinance could hamper existing homeowners if they wanted to improve more than fifty percent (50%) of the value of their homes. She stated that she did not have a problem with new construction. She felt it was a huge penalty to existing homeowners. She wondered how Council felt about grandfathering existing homes. She thought it was a serious and broad reaching change and that Council should not rush into approving the ordinance. She asked how many homes were in a V Zone. Director Garman stated that it included approximately all oceanfront lots. Mayor Pro Tempore Thibodeau asked if it would include areas such as Sea Hawk East, where homes are five (5) to six (6) lots back from the ocean. Director Garman started it would. Mayor Pro Tempore Thibodeau stated she wanted to make sure Council understood how broad reaching the ordinance was. She stated she wanted more input from people as she felt people did not know what would happen.
Town Manager Layton stated that builders have contacted the Town based on the ordinance as they were waiting to close deals upon the passing of the ordinance. Director Garman stated that the free and clear standard was something that Building Inspector Tate has been administering. He stated that people are waiting for the ordinance to pass so they can get the two (2) feet back. He thought the ordinance was flexible with regard to height. He stated that Building Inspector Tate has taken the position he has based on being the floodplain administrator.
Mayor Pro Tempore Thibodeau stated she was not sure how Council would feel about allowing the ordinance to pass and having it apply strictly to new construction. She stated she did not know how Building Inspector Tate was administering existing ad-ons. She thought it would be far reaching for existing homes. She stated she would be in favor of passing the ordinance if it was strictly for new construction with further investigation on how it affects existing homes. Director Garman pointed out that if a home is in a V Zone, it is on a slab and lateral additions are allowed. However, the addition would have to meet base flood elevations. He stated that Council could approve the two (2) feet as long as it is free and clear. Mayor Pro Tempore Thibodeau stated that she appreciated what can be done with existing homes but didn’t think it addressed significant damage from a fire or storm. She stated that she still felt the ordinance was far reaching. Director Garman stated that any project that is more than fifty percent (50%) of the value of the structure would have to be brought into compliance.
Councilor Smith clarified that Mayor Pro Tempore Thibodeau was worried if an existing home wanted to make some changes that would be equal or greater than fifty percent (50%), they would have to come in to conformity. He asked if it was an existing federal law. Director Garman stated it was for the BFE. Mayor Pro Tempore Thibodeau asked if a house was above the BFE and in a flood zone, it would have to have to come into compliance. Director Garman stated it would. Mayor Pro Tempore Thibodeau thought it was an odd requirement for properties that are already elevated. She thought the ramifications needed to be explored. She suggested the ordinance apply to new construction only and allowing grandfathering until further consideration could be made.
Mayor Pro Tempore Thibodeau moved to approve 07-14, but only as it applies for new construction.
Mayor Morrison pointed out that Council had not had a public hearing on Ordinance 07-15 yet. Mayor Pro Tempore Thibodeau asked if she should table her motion. Town Attorney McRee suggested the motion be withdrawn.
Mayor Pro Tempore Thibodeau withdrew her motion.
Public Hearing/Discussion/Consideration on Ordinance 07-15 (ZTA-Building Height), an Ordinance to Amend Article I, Section 2 of the Zoning Ordinance of the Town of Duck, North Carolina to Modify the Definition of Building Height
Mayor Morrison opened the public hearing. There being no one wishing to speak, he closed the public hearing.
Mayor Morrison opened the floor for Council to discuss.
Town Manager Layton asked if grandfathering would need to apply to both ordinances. Director Garman stated it would apply to both. He asked if it should be noted in the ordinance that only new construction projects have to meet the free and clear requirement. Town Manager Layton thought it was what Mayor Pro Tempore Thibodeau wanted and not the BFE. Mayor Pro Tempore Thibodeau agreed. Director Garman clarified that if a house that is built on a slab in a V Zone and the owner wanted to add a lateral addition. Town Manager Layton added that it would not exceed fifty percent (50%). Director Garman stated if the lateral addition was built on a slab it would not have to meet the free and clear requirement. Mayor Pro Tempore Thibodeau clarified that it would have to meet the BFE requirement. Director Garman stated it would. Town Manager Layton cautioned that Council would not want to endanger the Town’s NFIP, so the BFE should be left alone. Mayor Pro Tempore Thibodeau agreed. She stated that she wasn’t sure if the fifty percent (50%) issue was relevant to her concern as she thought it was over fifty percent (50%). She suggested refining the ordinance so it applies to new construction only with regard to free and clear of obstruction in a V Zone. Director Garman stated that Building Inspector Tate was currently administering the free and clear requirement for new construction and additions. He added that free and clear is the minimum requirement of NFIP and not just the BFE.
Councilor Smith clarified it would be for additions. He asked if there would be a similar argument if the addition is greater than fifty percent (50%) of the existing structure with the entire structure meeting the two (2) foot free and clear. Director Garman stated it would be if it was exceeding fifty percent (50%).
Mayor Morrison clarified that Mayor Pro Tempore Thibodeau did want to add the free and clear requirement on additions or if the structure is more than fifty percent (50%) destroyed. Mayor Pro Tempore Thibodeau stated she was looking at it in how it’s affecting the whole Town. She stated that that Town is administering it but it was interpretative and never defined by FEMA. She felt it was a penalty and would hamper people’s ability to improve their property. She didn’t think people understood how they would be affected. Councilor Smith pointed out that it would only be if it was more than fifty percent (50%). Mayor Morrison explained that a person could put in an addition and elevate it two (2) feet with nothing being done to the rest of the structure. Mayor Pro Tempore Thibodeau stated it was only if a homeowner was adding on fifty percent (50%) or if the house is damaged.
Councilor Caviness clarified that if what needs to be built exceeds fifty percent (50%) of the value, then FEMA would dictate whether it was a loss or not. She stated that if someone wanted to add on to their house and it doesn’t exceed fifty percent (50%) of the value of the house, then only the new area would have to meet the new requirements. Director Garman stated she was correct.
Councilor Smith stated it was a FEMA regulation and the Town was keeping in line with FEMA. Town Manager Layton thought the confusion was with the free and clear. He stated that Building Inspector Tate has been interpreting it in a way that is the minimum based on the research and answers he has obtained. He stated that the confusion comes from getting FEMA to put things in writing as they won’t do it.
Mayor Pro Tempore Thibodeau thought other towns do not administer the free and clear the same way as Building Inspector Tate does. Director Garman stated he wasn’t sure it was done exactly the same way. Councilor Smith pointed out that it still has the same effect. He stated the structure would have to be raised if it was greater than fifty percent (50%), no matter if it was eighteen (18) inches or two (2) feet. Mayor Pro Tempore Thibodeau thought eighteen (18) inches could make a difference if a homeowner tried to add on to the ground floor. Director Garman stated that FEMA will tell what free and clear of obstruction was but not how much.
Councilor Lindley didn’t think the issue was as drastic as Mayor Pro Tempore Thibodeau thought. Mayor Pro Tempore Thibodeau pointed out that people like to build on the ground level and with the new ordinance they would not be able to. Director Garman noted that the floor system adds two (2) feet. Mayor Pro Tempore Thibodeau asked what the Town of Nags Head’s requirement was. Director Garman stated that it was twelve to eighteen (12 to 18) inches above grade for decay and free and clear.
Councilor Caviness clarified that the free and clear zone has been clearly established and promoted by FEMA. Director Garman stated she was correct.
Mayor Pro Tempore Thibodeau asked if all pilings in a V zone would have to be sixteen (16) feet deep. Director Garman believed they would. Mayor Morrison pointed out that free and clear is a good thing for homeowners. Mayor Pro Tempore Thibodeau stated that she had heard that sixteen (16) foot pilings would give the building structural integrity. She asked if homes would need new pilings to meet the standards. Director Garman stated it was beyond his level of expertise. Councilor Smith stated that pilings could be sistered.
Mayor Pro Tempore Thibodeau hoped Council would be able to come up with something for hardships to be addressed. Councilor Caviness pointed out that there is an existing mechanism in place now. Mayor Pro Tempore Thibodeau felt it was cumbersome. Mayor Morrison explained that with any ordinance, if something is not working, it could be changed.
Councilor Caviness asked if it was possible to pass the ordinance specific to new construction and put a moratorium on changes, additions, etc. for properties in flood zones until it can be discussed further. Mayor Pro Tempore Thibodeau stated she appreciated the idea but thought it would still be a hardship. She didn’t think it would work.
Councilor Lindley asked if the Town can be prepared for appeals. Councilor Caviness thought staff would be. Councilor Lindley stated that a lot of work went into the ordinances. He stated that his instinct would be to pass them.
Mayor Pro Tempore Thibodeau didn’t think Council knew enough but didn’t want to hold people up. She stated she wasn’t sure how to get around the issue for existing homes. She suggested that free and clear of obstruction be as low as possible.
Councilor Smith stated he liked the two (2) feet. He stated that he had faith in Building Inspector Tate’s decision.
Councilor Caviness moved to adopt Ordinance 07-14 as presented.
Motion carried 4-1 with Mayor Pro Tempore Thibodeau dissenting.
Councilor Lindley moved to adopt Ordinance 07-15 as presented.
Motion carried 5-0.
Mayor Morrison called for a five (5) minute recess. The time was 9:41 p.m.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
Mayor Morrison reconvened the meeting.
Discussion/Consideration of Establishing a Salary for the Town Council Beginning December 2007
Mayor Morrison stated that in November 2006, a referendum passed allowing the Town Council to be compensated beginning after the November 2007 election. He stated that the compensation would begin with the new Council seated in December 2007.
Mayor Morrison handed out material that he and Mayor Pro Tempore Thibodeau came up with, including a copy of the letter that Council sent to the voters of Duck back in 2006. The letter stated that the amount of compensation would be modest, at or below the average paid to Council members in other jurisdictions, except for Southern Shores as their council does not receive compensation.
Mayor Pro Tempore Thibodeau stated that Council had an overview of what compensation the other towns receive. She stated that her original overview included Southern Shores. She then reviewed her new overview, which omitted Southern Shores. She stated that the average for mayor was $511.25, mayor pro tempore was $398, and council was $366.25. Councilor Lindley asked if it was per month. Mayor Pro Tempore Thibodeau stated it was.
Mayor Morrison noted that Southern Shores had discussed over the past year compensating their council but the vote was defeated 3-2. Town Attorney McRee stated it was discussed at their October 2, 2007 meeting.
Mayor Pro Tempore Thibodeau thanked Deputy Town Clerk Kopec for obtaining the figures from the neighboring towns. She stated that some of the figures are odd due to the towns building in a cost of living factor. She thought the Town could do that as well. She stated that she included in her overview the compensation for the Planning Board as well. She asked if the Board of Adjustment was compensated. Mayor Morrison stated they were but felt the issue should be revisited.
Mayor Morrison asked if there was a suggestion on the Council compensation. Mayor Pro Tempore Thibodeau stated that she wanted to be as conservative as possible, but believed Council should be compensated. She suggested $500 for the mayor and $350 for council members including the mayor pro tempore.
Mayor Morrison asked Council for their thoughts.
Councilor Lindley agreed with Mayor Pro Tempore Thibodeau’s suggestion. He thought it was fair that Council received compensation but that it should be as low as possible. He suggested the compensation be the same as the Planning Board - $300 for the mayor and $100 for the mayor pro tempore and council – per meeting.
Councilor Smith stated that he would lean more towards Mayor Pro Tempore Thibodeau’s suggestion but suggested the mayor pro tempore received more than council. He suggested $500 for the mayor, $400 for the mayor pro tempore and $350 for council.
Councilor Caviness stated she was comfortable with the figures suggested at the beginning of the discussion - $400, $300, $300. She agreed that the mayor pro tempore could be compensated more. She suggested $400 for mayor, $350 for mayor pro tempore and $300 for council.
Mayor Pro Tempore Thibodeau agreed and liked Councilor Caviness’ suggestion of $400, $350 and $300.
Mayor Morrison felt the compensation should be kept slightly below the averages. He suggested $500 for mayor, $400 for mayor pro tempore and $350 for council.
Mayor Pro Tempore Thibodeau summarized that Mayor Morrison and Councilor Smith agreed on one set of figures, she and Councilor Caviness on another set and Councilor Lindley on a third set. Mayor Morrison stated that Council should not sell themselves short as they have done an outstanding job.
Councilor Caviness stated she was in support of $500, $400 and $350. Mayor Pro Tempore Thibodeau was ok with the figures as long as the cost of living increase was not included. Councilors Caviness and Smith were fine with it. Town Manager Layton stated the cost of living could be put in future budgets.
Mayor Morrison stated he appreciated the conservative leanings of Council. He thought there was more to the job than people realize.
Councilor Smith moved to set the Town Council compensation at the levels of $500 for Mayor, $400 for Mayor Pro Tempore and $350 for Council.
Motion carried 5-0.
NEW BUSINESS
Discussion/Consideration of Ordinance 07-16, an Ordinance Enacting a Code of Ordinances for the Town of Duck, North Carolina, Revising, Amending, Restating, Codifying and Compiling Certain Existing General Ordinances of the Town Dealing with Subjects Embraced in such Code of Ordinances
Mayor Morrison stated that New Business would be deferred to the mid-month meeting.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN ATTORNEY
Town Attorney McRee stated that he had nothing to report.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN MANAGER
Mayor Morrison stated that Items Referred to and Presentations from the Town Manager would be deferred to the mid-month meeting.
MAYOR’S AGENDA
Mayor Morrison stated he did not have anything to report.
COUNCIL MEMBERS’ AGENDA
Mayor Pro Tempore Thibodeau suggested that Council consider holding an annual meeting for anyone to attend on a weekend day to socialize with Council and staff as well as to gather, having a small agenda. She suggested it be done next fall and then have one in early spring just for business owners.
Councilor Caviness stated she had nothing to report.
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 would be Wednesday, October 17, 2007 at 1:00 p.m.
CLOSED SESSION
Mayor Pro Tempore Thibodeau moved to enter closed session in accordance with Section 143-318.11(a)(3) to consult with an attorney employed or retained by the public body in order to preserve attorney client privilege between the attorney and the public body, which privilege is hereby acknowledged and Section 143-318.11(6) of the North Carolina General Statutes 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 10:10 p.m.
Upon return from closed session Mayor Morrison moved to offer the Town Manager a 3% cost of living allowance plus a $5,000 cash bonus, effective immediately.
Motion carried 5-0.
Councilor Lindley complimented Deputy Town Clerk Kopec for her thorough minutes. Mayor Pro Tempore Thibodeau stated it was great for people who are not around. Councilor Caviness stated that the level of detail was great. Mayor Morrison and Councilor Smith agreed.
There being no further business to discuss, Mayor Morrison moved to adjourn the meeting.
Motion carried 5-0.
The time was 11:24 p.m.
____________________________
/s/ Christopher J. Layton, Town Clerk
Approved: ______________________
_______________________________
/s/ Neil Morrison, Mayor