TOWN OF DUCK
TOWN COUNCIL
REGULAR MID-MONTH MEETING
October 17, 2007
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 1:00 p.m. on Wednesday, October 17, 2007.
COUNCIL MEMBERS PRESENT: Mayor Neil Morrison; Mayor Pro Tempore Monica Thibodeau; Councilor Nancy Caviness; and Councilor Bart Smith.
Council Members ABSENT: Councilor Denver Lindley, Jr.
OTHERS PRESENT: Town Manager and Town Clerk Christopher J. Layton, Director of Community Development Andy Garman; Town Attorney Donald I. McRee, Jr.; Building Inspector Cory Tate; and Zoning Administrator Sandy Cady.
OTHERS ABSENT: Deputy Town Clerk Lori Kopec.
Mayor Morrison called the meeting to order at 1:02 p.m.
ITEMS REMAINING FROM THE COUNCIL’S OCTOBER 3, 2007, REGULAR MEETING
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
Town Manager Christopher Layton was recognized to speak. Town Manager Layton stated that staff had been working on the codification for the past year with American Legal Publishing. He stated that the codification process has been completed and in order to put it into effect, Council would need to adopt an ordinance that would re-codify every ordinance the Town has.
Mayor Pro Tempore Thibodeau asked if the ordinance was boiler plate language. Town Manager Layton stated it was. Town Attorney McRee agreed and stated that whenever ordinances are codified, a town basically re-adopts their ordinances for codification. Mayor Pro Tempore Thibodeau asked if the ordinance covers typographical errors in the book. Town Attorney McRee stated that there was an editorial process to pick up the errors.
Councilor Caviness moved to adopt Ordinance 07-16 as presented.
Motion carried 4-0.
Town Manager Layton stated that over the next few weeks, the Town ordinances available online would be replaced with a link to the American Legal Publishing site. Mayor Pro Tempore Thibodeau asked if the American Legal Publishing site would have the same search capabilities as what was presently on the website. Town Manager Layton stated there presently are no search capabilities, but there will be.
Budget Amendment
Town Manager Layton stated that when the Town re-appropriated the grant funding for the park, he inadvertently left out the NCDOT reimbursable agreement the Town has for the redesign of Tuckahoe. He stated that the amendment would re-appropriate that unspent portion.
Councilor Smith moved to approve the budget amendment as presented.
Motion carried 4-0.
PRESENTATION/DISCUSSION OF THE NATIONAL FLOOD INSURANCE PROGRAM’S (NFIP) COMMUNITY RATING SYSTEM (CRS)
Building Inspector Cory Tate was recognized to speak. Building Inspector Tate stated that included in the Council agendas was a community rating system (CRS), which was an off-shoot of the National Flood Insurance Program. He stated that the community rating system provides an evaluation system whereby communities can receive a credit or discount on their flood insurance premiums for enacting standards that go above and beyond the minimum requirements of the National Flood Insurance Program. He stated that currently, every community in Dare County with the exception of Duck participates in the CRS, which includes unincorporated areas of Dare County. He stated that the Town currently is involved in enough activities to qualify it as a Class 9 community, which would qualify the Town for a five percent (5%) discount across the board on flood insurance policies that are in effect within the Town of Duck. He stated that with a small amount of finessing, the Town could gain enough credit to become a Class 8 community, which would entitle the citizens to a ten percent (10%) discount on their flood insurance premiums.
Building Inspector Tate stated he was asking for permission from Council to pursue the process. He stated that he would have to fill out an application and send it to the Region 4 office with FEMA. He stated that after that, FEMA would send a representative to Duck to review the Town’s records in order to verify that the Town was in compliance with the basic tenets of the National Flood Insurance Program. He stated that once that is completed, he would compile the application to allow the Town to become a member of the community rating system. He stated that CRS encourages initiating building practices that would implement protecting windows and doors from debris that would be born by heavy windstorms.
Mayor Pro Tempore Thibodeau asked for an explanation of the protection from the wind. Building Inspector Tate stated it could be plywood cut to fit the windows, operable storm shutters or windows that have impact resistant glass. Mayor Pro Tempore Thibodeau asked what the ratings were for other towns. Building Inspector Tate stated that to be able to participate, a town has to be classified at a minimum of a Class 9 community. He stated that some communities were 5 but when the windborne debris issue came up, they went up to Class 8. He stated that most of the towns are 7 or 8.
Mayor Morrison asked if the Town becomes a Class 8 or 9, it would automatically receive the discount or if the individual property owners would have to apply. Building Inspector Tate stated that the discount would be automatically applied by participating in the CRS. He stated it would go into effect for all current and new policies issued after the Town comes online for the CRS.
Councilor Caviness asked if it was similar to the Fire Department’s ISO rating. Building Inspector Tate stated she was correct. Councilor Caviness asked if it was similar in that there would only be so high of a standard the Town could achieve because it’s a barrier island. Building Inspector Tate stated she was correct. Councilor Caviness asked if there was a re-inspection process. Building Inspector Tate stated that every five (5) years the Town has to go through a recertification process.
Mayor Pro Tempore Thibodeau moved to approve the request to move forward on participation in the CRS program of NFIP.
Motion carried 4-0.
PRESENTATION/DISCUSSION OF THE NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION’S PROPOSED CHANGES TO THE COASTAL STORMWATER PROGRAM
Director of Community Development Andy Garman was recognized to speak. Director Garman stated that the State was proposing amendments to the coastal stormwater regulations. He stated that there has been a lot of discussion in Dare County regarding the rules, with other towns and the County passing resolutions stating their opposition to the rules. He stated that the rules were currently in effect in three (3) counties – Brunswick, Onslow and New Hanover – with the State looking to extend it to the rest of the coastal counties. He stated that Council had in their packets the reasons for the rules from the Division of Water Quality (DWQ). He noted that stormwater has been cited as the biggest detriment to water quality and the current threshold for State stormwater permits are too high. He stated that based on these findings, DWQ feels that ten to fifteen percent (10-15%) was typically the threshold where impacts were felt with regard to water quality.
Director Garman stated that DWQ was looking at reducing the coverage mutations or providing engineer controls for stormwater onsite to limit the runoff from the first inch of rainfall. He stated that the public comment process has begun with a public hearing that was held in September with representatives from the County. He stated that most people were opposed to the rules. He went on to review the changes with Council and the audience.
Town Manager Layton noted that if the rules go into effect and a homeowner was at twenty-four percent (24%) lot coverage, they would have to obtain a State stormwater permit. Director Garman agreed.
Director Garman pointed out that Duck has approximately 2,670 parcels, with ninety percent (90%) built out, leaving 255 vacant properties left. He stated that the lots equaling 10,000 square feet or more would have to be required to obtain a stormwater permit if the new rules go into effect. He stated that coverage would be limited to twenty-four percent (24%) and if the coverage goes beyond that, an engineered system would have to be installed to keep the stormwater on the site.
Director Garman stated that there would be a meeting held on October 18, 2007, called by Senator Basnight, to discuss the potential solutions for Dare County that may be different than what was proposed by DWQ. He thought that people in the County feel that the rules aren’t going to have a great impact since it will only deal with ten to fifteen percent (10-15%) of development. He stated that Nancy White of the Coastal Development Institute felt the same way.
Mayor Pro Tempore Thibodeau stated she had heard a lot of opposition to the rules. She clarified that DWQ would entertain having special rules for Dare County. Director Garman didn’t think there would be special rules, but the Town had the option with existing regulations to pursue stormwater measures on its own. Mayor Pro Tempore Thibodeau asked if DWQ was a higher authority. Director Garman stated they were. Mayor Pro Tempore Thibodeau felt the permitting process would slow people down. Town Manager Layton stated that the Town had to go through the permitting process with regard to the park property.
Zoning Administrator Sandy Cady was recognized to speak. Zoning Administrator Cady pointed out that if the new regulations go through, properties on the soundfront that need a permit through the State agency would need a CAMA Major permit as opposed to a CAMA Minor one. She added that it takes over ninety (90) days to obtain a Major permit.
Mayor Pro Tempore Thibodeau clarified that grandfathering would not be allowed once the rules go into effect. Director Garman stated that the Town of Manteo asked for an additional consideration for grandfathering in their resolution. He stated that it would have to be done through a legislative review.
Councilor Caviness asked if there would be any discussion that would look at the municipalities in Dare County and shake out the rules that would be applicable to counties where undeveloped land was at a percentage greater than counties that were already developed. She stated that it seemed like that was where the problem would be. Director Garman stated he could not say whether that would be the case or not. He thought it would be discussed at the October 18, 2007 meeting. Councilor Caviness asked about the connection with the Clean Water Act. Director Garman stated he wasn’t sure about it.
Ron Forlano of 1378 Duck Road was recognized to speak. Mr. Forlano stated that in 2006, Suzanne Cotellessa and he had sat in on a seminar on the same topic. He stated that Nancy White was there along with people from NC State as well as representatives from DWQ. He stated that there seemed to be a conflict as some of the studies Ms. White accomplished proved that a lot of the deterioration of the water quality was not related to over-development. He stated that her studies of more rural areas showed the water quality to be worse than in high density areas. He stated that the whole premise was based upon the fact that the State wants to limit the coverage on lots as they feel that was what was causing the deterioration. He thought there was water deterioration due to runoff, but didn’t think it was the whole issue. He pointed out that the regulations would affect not only new development but existing homes as well. He thought it would be disastrous to go along with the new regulations as it would affect everyone that lives on the water. He thought the Town could take a pro-active step and tailor make their own wastewater products.
Director Garman stated that Nancy White was currently doing a study in Nags Head on the ocean outfalls to determine the cause of pollution on stormwater. He stated that they wanted to tailor a solution to their findings but wasn’t sure what was proposed.
Mayor Pro Tempore Thibodeau noted that there was a tremendous amount of water frontage in eastern North Carolina. She stated that the concepts were noble and thought stormwater should be preserved. She thought the rules would be harmful to Dare County and would create a hardship. She suggested Council pass a resolution that would require further study and information.
Councilor Smith suggested that possible inland sources of water pollution be studied. He stated that there should be some type of solution to the receiving end of pollutants that were generated further inland.
Councilor Caviness stated that the report in Council’s packets was disturbing. She stated that there was a lot of consideration Council had to give to the impacts on commercial shell fishing, recreation and tourism. She felt Council needed to realize that when those industries were harmed, Duck would be harmed. She stated that after hearing the presentation, she was alarmed that more consideration wasn’t given to shake out things that were more applicable where there was less development versus where there was a lot of it, as well as trying to have rules that would help where there is over-development and other rules for places that can start from the beginning. She agreed with Councilor Smith’s comments regarding looking at other areas of the state and their impact.
Mayor Pro Tempore Thibodeau felt there were a lot of good practices that an area like Duck could put into effect as far as being conscious to stormwater runoff. She stated that she could not support the wholesale changes that DWQ wants to make.
Town Manager Layton suggested that rather than the Town coming up with a resolution, he thought it would be more effective to draft a letter from Mayor Morrison, outlining Council’s concerns. Councilor Caviness agreed and felt a resolution would not make an impact. Mayor Pro Tempore Thibodeau agreed.
Mayor Morrison asked if the letter needed to be drafted before the October 18, 2007 meeting. Town Manager Layton thought it should be sent before end of business on October 19, 2007. He thought it would take some time to draft it properly.
Councilor Caviness asked what the agenda was for the meeting. Director Garman stated he did not know. Town Manager Layton stated that Senator Basnight was looking for an elected official and thought an elected official and/or staff person could go to the meeting. He thought that regardless of whether Council wanted to go, he felt that Director Garman should attend the meeting.
Councilor Caviness wondered if development on Dare County was much different than other coastal areas in North Carolina. She thought they were similar in terms of how built out they were. Director Garman thought New Hanover County was more heavily developed than Dare County.
Mayor Morrison stated that Mayor Renee Cahoon of the Town of Nags Head contacted him to ask which representative would be sent to the meeting from Duck. He stated that he told her that Director Garman would. He stated that Mayor Cahoon felt Director Garman would be a good representative. He stated that he had thought of sending Director Garman since he was more knowledgeable on the issue. He stated that if any Council member wished to attend, they could join Director Garman.
Councilor Smith thought the letter should state that Duck understood there was a certain degradation of the State’s coastal waters and that Council was not opposed to certain changes being made in a way that stormwater runoff is handled. He added that it should be noted that the proposed rule making would be potentially detrimental and burdensome to homeowners. Town Manager Layton felt it would be good to talk about the pro-active steps the Town has taken, such as the vegetation ordinance as well as how the park was developed.
Councilor Caviness felt that resolutions did not demonstrate towns being cooperative or recognizing that changes will not be easy. She stated that things needed to be done and the Town needed to come forward with wanting to be responsible as well as being concerned. Director Garman thought that one of the reasons for having a hard time with the rules was if they would help. Town Manager Layton stated that when Senator Basnight had a study conducted in the past, the issue of lot coverage came up during the discussion. He stated that there was great concern about the water quality with regard to the ocean outfalls to the extent that there was discussion about obtaining grant funds to perform retro-filter systems in Nags Head.
Mayor Pro Tempore Thibodeau stated that she had heard Currituck County Manager Dan Scanlon discuss ocean outfalls for Currituck and Whalehead as it was the way to go. She thought it would be great if DWQ could come up with other solutions. Town Manager Layton agreed and stated that the easiest way to do things was to pump to the ocean or sound, however that solution was rejected.
Ron Forlano pointed out that the Tuckahoe subdivision was a good example of how Duck was being pro-active in taking care of stormwater issues. Mr. Forlano asked what side of the fence Senator Basnight was on. Mayor Morrison stated he wasn’t sure. Councilor Caviness didn’t think he was sitting on the fence based on how the issue was started. Mr. Forlano asked if Senator Basnight was for the program. Mayor Pro Tempore Thibodeau stated he was for stormwater management. Councilor Caviness agreed. She added that he has been in the forefront with regard to the issue. Town Manager Layton didn’t think Senator Basnight’s desire for environmental management and stormwater applied to individual lots.
Mayor Pro Tempore Thibodeau stated that there were many things individual lots could do, such as cisterns. Councilor Caviness stated there was always a local solution that would be more affordable or more effective than changing the rules.
Mayor Morrison stated that staff would draft a letter with Director Garman attending the meeting. He reiterated that Council was welcome to join Director Garman. Councilor Caviness stated she may be able to attend but wasn’t sure.
Mayor Morrison asked of other business that needed to be discussed.
Town Manager Layton passed out a letter from Ron Forlano to Council regarding his concerns about the banners along Duck Road, specifically whether Town Manager Layton had the authority to do it. He stated that he didn’t want Mr. Forlano or the Planning Board to think he wasn’t aware of the comments. He stated that he had discussed the issue with Town Attorney McRee, Director Garman and Suzanne Cotellessa and felt there was justification for his actions. He went on to pass out a memorandum that stated there was room for clarification. He suggested at the next Council meeting that the ordinance be re-referred to the Planning Board for clarification. He stated he was not looking for action from Council, but wanted to give them a heads up.
Mayor Morrison thought the ordinance gave the Town Manager broad authority to do anything in Town that he deems appropriate. Town Attorney McRee stated he was correct. Mayor Morrison stated that if the issue was referred back to the Planning Board, they may feel the language was too broad. He stated that the way it reads now, he agreed with what Town Manager Layton has been doing. Town Attorney McRee stated that he had expressed some concern with the language regarding “...any sign posted at the direction of the Council and Town Manager…” was egregious. He stated that it would be an issue if Town Manager Layton approved signage for one organization and not another without stating a reasonable basis for it. Town Manager Layton stated that his authorization of the banners was not an attempt to “hijack” any authority he had. He stated that he didn’t think about whether he had the authority or not with regard to the banners since he had used it previously without concern. He thought there was some confusion in the ordinance that could benefit from being cleaned up and pointed out that he did not have a desire to have too much broad authority.
Mayor Pro Tempore Thibodeau thought it would be nice to get specifics about the policy and the intent of the authority. She thought it was a good idea to have the Planning Board look at the ordinance.
Mayor Morrison stated that the ordinance did not mention the rule of not putting signs on telephone poles. He thought the wording should be looked at since Town Manager Layton contacted the utility company for permission to use the poles. He suggested the wording be clarified. Town Manager Layton agreed.
Councilor Smith stated that at the meeting he and Mayor Pro Tempore Thibodeau attended with the shop owners, they had mentioned that they liked the idea of certain banners throughout the Village to draw the public’s attention to a festive atmosphere. He stated that these banners were actually mentioned at the meeting and was a suggestion from the shop owners.
Ron Forlano didn’t think there was any argument on having banners. He stated that the issue was re-working the sign ordinance to make sure the banners were not being used as signs for businesses. He stated he did not have a problem with banners put up wherever they could be put up for a festive atmosphere, but felt the sign ordinance wording needed to be re-worked. He added that he did not have a problem with Town Manager Layton having as much authority as he wanted as long as the sign ordinance was followed.
Councilor Caviness clarified that the intent was that the banners would promote an idea or season and not a specific commercial entity. Town Manager Layton stated she was correct. He stated that the proposed banners were snowflakes for the winter season. He stated that staff has received calls from approximately twenty (20) businesses wanting to sponsor the banners and that they are trying to accommodate all of them. He thought one could argue that it would be considered an advertisement for a business, but thought it could be looked at it either way. He stated that staff was looking at it as an opportunity to have the banners paid for and didn’t think it was inconsistent with actions that towns can take when they are trying to highlight certain areas. He pointed out that the only reason there weren’t any sponsorships on the jazz festival banners was there wasn’t enough time.
Mayor Morrison stated that the cost was $100 per sponsor, which would be something that any business in Duck could afford to pay. He thought the Town would accept all offers and put up as many banners as needed to accommodate any business that was willing to pay for the cost. He stated that it not only pays for the sign but also draws the businesses together in participating in the festivities in Town. He thought this was a positive thing. Councilor Smith felt people should be proud of the shops in Duck. He stated that the Town should be proud that the businesses that want to come together for this.
Councilor Caviness thought that the residents would be relieved to know the banners were not being paid out of tax dollars but by the businesses. Mayor Pro Tempore Thibodeau felt that if the banners were overly commercial, people would speak up. She suggested having a turquoise banner put up next year in celebration of the OBX marathon. She thought it would be a nice way for the Town to show their support of the marathon.
There being no further business to discuss, Mayor Morrison moved to adjourn the meeting.
Motion carried 4-0.
The time was 2:37 p.m.
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/s/ Christopher J. Layton, Town Clerk
Approved: _____________________
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/s/ Neil Morrison, Mayor