TOWN OF DUCK
TOWN COUNCIL
REGULAR MEETING
November 7, 2007
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 7:00 p.m. on Wednesday, November 7, 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, Director of Community Development Andy Garman; First Sergeant Jeff Ackerman; Fire Chief Donna Black; Town Attorney Ben Gallop; and Deputy Town Clerk Lori Kopec.
OTHERS ABSENT: Town Attorney Donald I. McRee, Jr. and Interim Police Chief Phillip Ferguson.
Mayor Morrison called the meeting to order at 7:00 p.m. Mayor Morrison stated it was nice to have such a large crowd in attendance. He congratulated his fellow Council members for their victory in the November 6, 2007 election and welcomed them back for another two (2) year term. He stated that Councilor Lindley had decided to retire from politics and did not run in the election. He welcomed incoming Council member Dave Wessel and asked him 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 any comments regarding the public hearing be held off.
Rosalie Schwarz of 103 Quail Way was recognized to speak. Ms. Schwarz stated that she represented the Duck United Methodist Women. She stated that last winter, she had heard a rumor that there was a jazz festival that would be held in Town. She stated that she discussed it with Town Manager Layton and asked if the United Methodist Women could be part of it. She stated that the Women were a part of the festival and thanked Council for the opportunity. Mayor Morrison stated that Council and the Town greatly appreciated what the Methodist Women did to help with the jazz festival.
Allan Beres of 146 Dune Road was recognized to speak. Mr. Beres stated that he wanted to express his disappointment with Council’s decision concerning the CUP for the Twiddy office building. He pointed out that the building is in the heart of the Village Commercial District and has two (2) drive entrances on Duck Road within thirty (30) feet of each other as well as one within thirty (30) feet of a side street. He noted that it also has two (2) drive entrances on the side street. He stated that Town ordinances require that no Duck Road entrances were allowed if a property can be accessed on a side street. He stated that the Planning Board had recommended that Twiddy be allowed only the south entrance on Duck Road because of the two (2) entrances on the side street. He stated that it was quite obvious that eliminating the north entrance would not have had any negative impact on customer traffic or the business. He felt it would have had a positive impact on the safety of the pedestrians that frequent the Duck Trail as well as a positive impact on the flow of traffic on Duck Road. He stated that he was dismayed that Council showed little concern for the ordinances, the recommendations from staff and the Planning Board, and enhancing the safety of pedestrians using Duck Trail. He noted that Mayor Morrison was the only one that defended the Town’s ordinance and the Planning Board recommendation. He stated that despite the clear evidence to the contrary, Council allowed Twiddy to keep both entrances on Duck Road. He believed if a new, unknown owner had come before Council with the same issue, Council would have decided on either one entrance on Duck Road or none at all. He felt that the Council action was a case of favoritism for a highly respected member of the business community. He stated that no individual, regardless of status, should receive preferential treatment. He stated that if Council wished to ignore an ordinance, they should take action to eliminate it and be prepared to defend their rationale. He summarized that he was shocked and amazed at the conclusions and decision in the matter. He felt it did not make good sense and was not in the best interest of the community.
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 October 3, 2007 regular meeting and the October 17, 2007 mid-month meeting. Mayor Morrison directed Council to review the minutes from the October 3, 2007 regular meeting for changes.
Councilor Lindley moved to approve the October 3, 2007 minutes as presented.
Motion carried 5-0.
Mayor Morrison directed Council to review the minutes from the October 17, 2007 mid-month meeting for changes.
Mayor Pro Tempore Thibodeau moved to approve the October 17, 2007 minutes as presented.
Motion carried 5-0.
PUBLIC HEARINGS
Public Hearing/Discussion/Consideration on CUP 07-005, Conditional Use Permit Application submitted by Wine Ducks, LLC, Contract Purchaser, to reopen the Former Swan Cove Restaurant, located at 1174 Duck Road as a Restaurant and Day Spa
Mayor Morrison turned the meeting over to Town Attorney Ben Gallop.
Town Attorney Ben Gallop was recognized to speak. Town Attorney Gallop 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 Gallop 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 the Conditional Use Permit was for 1174 Duck Road which was the site of the former Swan Cove Restaurant. He stated that the permit also involved the property across the street at 1167 Duck Road, which was currently undeveloped. He stated that the permit was submitted under the Town’s Village Commercial Development option and the property had a lot of existing nonconformities mostly related to CAMA, Health Department approval, parking and lot coverage. He stated that the project submitted was for an eighty-two (82) seat restaurant on the first floor and a day spa on the second floor. He stated that both businesses would be run by the same owner.
Director Garman stated that with regard to CAMA, the property was permitted prior to the existing buffer rules that are presently in place. He noted that a large portion of the building currently exists in the CAMA buffer area. He stated that the applicant has taken out all of the coverage from the thirty (30) foot buffer and made the seventy-five (75) foot buffer more conforming than what existed. He added that the applicant has reconfigured the parking, added twenty (20) new parking spaces in the lot across the street, improved the drive aisle and parking spaces, widened one drive aisle to accommodate a fire vehicle, and aligned the drive aisle across the street with the entrance on the south side. He stated that the applicant would utilize the existing septic system and are proposing significant improvements to the building, mostly aesthetic in nature. He stated that the dumpster was proposed to be relocated away from the property line and put it closer to the building and provide a new screened pad and additional vegetation. He stated that the applicant had addressed the Town’s vegetation management and commercial design guidelines with regard to plantings. He stated that the applicant was proposing new signage and lighting as well that will comply with the Town’s lighting requirements. He stated that staff recommended approval based on the draft findings of fact in Council’s packets.
Town Attorney Gallop asked if anyone had any questions for Director Garman.
Mayor Pro Tempore Thibodeau asked for a clarification on the lighting for the site. Director Garman stated that the applicant was proposing fifteen (15) foot high fixtures on the site with the building and eighteen (18) foot high fixtures on the site across the street. He stated that the third type of fixture was proposed along the pedestrian path, which would be low level bollard lights. He stated that all of the fixtures would be fully cut off and directed towards the ground. Mayor Pro Tempore Thibodeau clarified that the eighteen (18) foot high lights would be like street lights. Director Garman stated it would be a flat fixture with the bulb shielded inside it with no spillage of light. Mayor Pro Tempore Thibodeau asked how many would be put in. Director Garman thought approximately four (4) to five (5) lights.
Town Manager Layton pointed out that the Fire Department had lights that were approximately eighteen (18) feet high. Mayor Pro Tempore Thibodeau asked if the lights at Wings were the same height. Town Manager Layton stated he wasn’t sure. Mayor Pro Tempore Thibodeau stated that she considered the lights at Wings high lights. Director Garman stated that eighteen (18) feet was the maximum that the ordinance allows. He thought that trying to reduce the number of fixtures would help with the cost. He reiterated that the fixtures do meet the Town’s requirements.
Councilor Smith clarified that Director Garman walked the area with NCDOT. Director Garman stated he was correct. He stated that the current crosswalk puts pedestrians in the street for a longer period of time than the proposed ninety (90) degree one. He stated that staff met with the Division of Traffic Engineer to see if there was potential to relocate the crosswalk. He stated that the applicant has a need to move people from the parking area across the street to the restaurant. He noted that the Town has a conceptual plan for a soundside boardwalk that will end at this property. He stated that the applicant would provide an easement on the property for the public to access the boardwalk. He stated that the Division of Traffic Engineer was going to make a recommendation to NCDOT to install the proposed crosswalk.
Councilor Smith asked what would happen if NCDOT decided they didn’t want to install the proposed crosswalk. He asked if it would cause any changes to the site. Director Garman stated that the crosswalk was shown for conceptual purposes. He stated that if NCDOT decided they did not like the location, they could work with the applicant to relocate the pedestrian access. He noted that the applicant was also proposing a walkway on their site for pedestrians as an entrance to the building. He stated that the Division of Traffic Engineer did not seem to see any problems with the sight distances.
Town Attorney Gallop asked for further questions.
Dale Schultz of 1172 Duck Road was recognized to speak. Mr. Shultz stated he owned the property adjacent to the applicant’s property. He stated that he had submitted written comments to the Town. He pointed out that on the south property line, there was a transition from RS-1 to Commercial Village and felt that sensitivity needed to be shown as it was an inherent conflict between residential and commercial activities. He stated that commercial activities have a greater negative impact on residential properties. He stated that he was concerned about the lighting on the site. He didn’t think the current site plan reflected a light on a pole near his property that was partially shielded. He requested that the pole light be removed. He stated that the applicant’s plan showed the dumpster in the same location as the existing dumpster, which was a major problem for him due to the noise from the trash trucks and the restaurant dumping their trash after it closes for the night. He added that the trash would attract rats and flies and the odor would be unbearable during the summer months. He encouraged Council to relocate the dumpster to the north side of the property. He stated that the applicant failed to provide any vegetative buffer on their application between their property and his. He encouraged Council to request the applicant provide a ten (10) foot wide vegetative buffer on the south property line. He stated that the sight distance on the plan failed to show the curve in Duck Road. He felt this would be a hazard to pedestrians crossing Duck Road after dark. He summed up his concerns that there needed to be a vegetative buffer on the south side of the property, the dumpster needed to be relocated to the other side of the building and the sight distance for the crosswalk needed to be more closely examined.
Town Attorney Gallop asked Council if they had any questions for the applicant or Mr. Schultz.
Mayor Pro Tempore Thibodeau asked Mr. Schultz how long he owned his property. Dale Schultz stated he owned it for two (2) years.
Dave Ryan of Bissell Professional Group was recognized to speak. Mr. Ryan stated he was representing the applicants. He stated that he wished to respond to Mr. Schultz’s comments. He stated that the applicant spoke to Planning staff regarding the dumpster issue and tried to work with the comments provided by Mr. Schultz as well as looking at the operation itself to find a viable location for the dumpster. He stated that the applicant tried to increase the distance between the residence and the final location of the dumpster. He stated that there would be a six (6) foot high screening as well as Oleanders to provide visual relief. He stated that the applicant looked at the possibility of relocating the dumpster to the north side but it did not seem to work well with the terminus of the soundside boardwalk. He stated that they were trying to address Mr. Schultz’s comments, but at the same time look at the bigger picture.
Dave Ryan stated that Mr. Schultz had requested a ten (10) foot wide buffer and suggested plantings for it along the boundary line. He stated that one of the items the applicant tried to address was parking and stormwater management. He stated that the fence that borders the property line goes from four (4) feet high and runs up to nine (9) feet high. He pointed out that Mr. Schultz had a large oak tree on the northeast front corner of his property with an approximate forty (40) foot canopy that takes up the first third of the fencing and overhangs onto the applicant’s property. He stated that it already provides visual relief on the lower portion of the fence. He stated it was hard to address the landscaping in conjunction with providing stormwater management as there will be a swale put in adjacent to the fence line.
Dave Ryan stated that the proposed crosswalk was in the best location based on the sight distances as well as trying to minimize the number of curb cuts. He stated that it had been reviewed by the Town’s engineer who agreed it was a good plan. He noted that NCDOT reviewed the plan and determined it was a better solution than what presently exists. He pointed out that the proposed crosswalk would reduce the amount of time a person would be in the road by over fifty percent (50%).
Director Garman asked Mr. Ryan to discuss the pole light that Mr. Schultz had discussed. Dave Ryan stated that the pole light would not be incorporated into the lighting plan. He stated that the lighting will be improved and remove any potential glare on the adjacent property.
Mayor Pro Tempore Thibodeau asked if the existing fence on the property would be kept as is. Dave Ryan stated she was correct. Mayor Pro Tempore Thibodeau asked if a vegetative buffer would be added on the southern end. Mr. Ryan stated that the swale would run along the length of the fence, which would prohibit additional landscaping enhancements. He noted that the dumpster would be relocated as close to the building as possible as well as providing a six (6) foot high screen and Oleander plantings for visual relief. Mayor Pro Tempore Thibodeau asked how far the fence would be from the dumpster. Mr. Ryan stated it was previously twelve (12) feet and would be twenty-four (24) feet.
Councilor Caviness asked if the proposed lighting near the south drive would be a taller light fixture or a lower bollard one. Dave Ryan stated that the lower bollard fixtures would be along the pedestrian crosswalk. The others would be fifteen (15) feet high on the site and eighteen (18) feet high across the street.
Councilor Smith asked how it was determined where the lights would be put. Dave Ryan stated that an outside consultant had determined it. He stated that the applicant was trying to achieve the average minimum foot candles as specified in the Town ordinance. He stated that they had received initial comments from the Planning Board and Mr. Schultz and tried to achieve adequate separation from Mr. Schultz’s residence.
Mayor Pro Tempore Thibodeau asked how many lights would be on the site. Dave Ryan believed there were seven (7). He added that there were three (3) existing light poles on the site which would be replaced with the new light fixtures.
Councilor Caviness asked if a level of lighting for safety reasons was achieved by using lower lighting poles or bollards. Dave Ryan stated that as per the Town ordinance, the minimum average foot candle was one (1) with the maximum being eight (8). He stated they had the ability to meet the criteria because of the averages. He stated that the problem with lower light fixtures, there was a need for an increase in them. He stated that by raising the height of the fixtures, there would be a need for less. Director Garman pointed out that the lighting plan was part of Council’s packets for their reference.
Councilor Smith asked how deliveries would be achieved on the site. Dave Ryan stated there would be a dedicated loading zone on the south end of the property. Councilor Smith clarified that deliveries would be brought in from the north entrance. Mr. Ryan stated he was correct. Councilor Smith asked if the space in front of the building would be wide enough for delivery trucks. Mr. Ryan stated it was. Director Garman noted that typical travel lanes were eleven to twelve (11 – 12) feet in width.
Dale Schultz stated that even though the dumpster distance would be doubled, there would still be odors in the summer. He stated that the noise would be an issue as well. He noted that the applicant was not responding to the issue of the odor of the dumpster. He stated that he strongly felt that the dumpster needed to be moved to the north side of the property. He stated that he doubted the proposed crosswalk would be safe. He encouraged Council not to vote on the CUP and take the time to walk the site after dark with what the applicants were proposing to see how hazardous it will be. Dave Ryan explained that the facility has been on the site since 1994 and the residence has been adjacent for two (2) years. He stated that the situation was existing when Mr. Schultz purchased his home and the dumpster was already on the property line. He stated that he knew it was a bad situation, but that the applicant was trying to make the best of it and address Mr. Schultz’s concerns. He thought by relocating the dumpster to the north would not work due to the soundside boardwalk. Mr. Schultz stated that the dumpster could be screened on the north side. Mr. Ryan stated that logistically it would not work to relocate the dumpster as they are usually close to the kitchen of an establishment.
Mayor Morrison clarified that the kitchen was on the south side of the building. Dave Ryan stated he was correct.
Councilor Lindley clarified that the residence was built after the restaurant was already in existence. Dave Ryan stated he was correct. He noted that the Four Seasons subdivision was platted in 2000 and the restaurant was constructed in 1994. He clarified that the residence was in existence for two (2) years. Dale Schultz stated he was the second owner and thought the residence was there three (3) years before he purchased it. He thought the residence was there approximately five (5) years. He stated that it was agreed that if the applicant was trying to build a new restaurant, that they would not be allowed to build it where it currently sits. Dave Ryan stated he was correct. Mr. Schultz stated that because it is presently there, it didn’t mean it was acceptable for the current use. Mr. Ryan stated that one of the things the applicant tried to achieve was removing the gravel parking out of the CAMA buffer. He stated that to relocate the dumpster would add impervious coverage within the thirty (30) foot buffer. Mr. Schultz stated that the dumpster did not have to go in the CAMA area and suggested giving up a parking space. Mr. Ryan stated that forty-eight (48) parking spaces were proposed pursuant to the Town’s ordinance, which requires fifty (50) spaces.
Town Attorney Gallop asked Mr. Schultz to stick with the subject. He asked for other questions.
Dale Schultz asked how far the dumpster was currently located be from the property line. Dave Ryan believed it was within a half foot.
Councilor Smith noted that parking spaces were discussed at the Planning Board level. He asked Dave Ryan to point out which spaces were nine (9) feet and which were ten (10) feet. Dave Ryan showed on the site plan the parking spaces to Council and the audience. Councilor Smith asked how wide the parking spaces were near the loading dock. Mr. Ryan stated they were parallel spaces and ten (10) feet in width.
Councilor Caviness asked if the dumpster should be relocated to another spot on the north side. Dave Ryan stated that in order to achieve that, one (1) parking space would be lost and the dumpster would sit near the deck where people would be sitting. Councilor Caviness asked if locating the dumpster across the street had been considered. Mr. Ryan stated he did not know where it would be put as there would have to be trash truck access. He didn’t think it would work as it would be difficult for the trash truck to maneuver in the area. Councilor Caviness asked if it was something that could be investigated. Mr. Ryan stated it could but would result in a major modification to the plan.
Councilor Smith asked how the trash was presently picked up. Dave Ryan stated that they come from the north and head south. Councilor Smith asked if the issue has been discussed with the waste removal company that the proposed location for the dumpster would be viable. Mr. Ryan stated it had not. Director Garman thought that one of the possibilities was that the trash truck would circulate the wrong way during non-business hours. Mr. Ryan stated he was correct. Councilor Smith asked what time the trash would be picked up. Councilor Caviness stated that it gets picked up around 5:00 a.m. She felt it was a valid argument for the property owner to raise the concern about trash pick up but thought it was valuable to state that relocating the dumpster would not reduce the sound. Dale Schultz asked what distinction was made between it not being desirable for the patrons on the deck to have a dumpster close by and his family on the other side of the fence. He stated that there was an issue with odors and sound. He stated it was not desirable to patrons or his family.
Town Attorney Gallop asked for other questions.
Mayor Morrison asked if the dumpster could be relocated across the street to the southernmost parking space and have the space removed. Director Garman stated that a dumpster pad is typically 10 x 10. He stated he wasn’t sure how the trash truck would exit the parking area without backing onto Duck Road. Dave Ryan stated he did not know the turning radius of a trash truck nor how difficult it would be for the driver to pull straight in and then try to exit. Mayor Morrison asked if he was referring to a 5:00 a.m. pick up. Director Garman stated that if the space was extended further east, it may work but would encroach on the eastern property line. Mr. Ryan stated that it was not something the applicant had investigated but there would be a good chance the driver would run over the curbing. Director Garman noted that another consideration was that the property to the south was zoned RS-1.
Councilor Smith asked what size the dumpster would be. Dave Ryan stated it would be a 10 x 10 dumpster pad with an 8 cubic yard dumpster.
Mayor Pro Tempore Thibodeau asked why the parking across the street was kept to the west side of the property. Dave Ryan stated that the applicant went through numerous iterations to find the best way to maximize parking on the parcel and found the only way to do it with one curb cut was to have the parking be kept more to the west side. Mayor Pro Tempore Thibodeau thought a golf cart would be needed if the dumpster was relocated across the street in order to take the trash out.
Councilor Smith noted that the prevailing winds in the summer are out of the southwest and northeast in the winter. He stated that if there was a significant odor from the dumpster, it would waft across the entire entrance of the restaurant. He stated it would affect everyone where it was currently located. Dave Ryan thought that it should be taken into consideration that the dumpster has been in the same proximity with the past business without an issue. He thought the odor issue was speculation.
Town Attorney Gallop asked for further questions.
Dale Schultz asked if a vegetative buffer could be put in the swale to soften the transition. Dave Ryan stated it would be minimal since the swale will be so close to the parking spaces. Mr. Schultz clarified that the driving factor was the parking spaces. Mr. Ryan disagreed. He noted that the applicant had to deal with the Division of Coastal Management, coverage within the thirty (30) and seventy-five (75) foot CAMA buffers, reducing the coverage in the thirty (30) foot buffer by fifty-five percent (55%), reducing the coverage within the seventy-five (75) foot AEC, bringing the building into compliance and the aesthetics, the parking was nonconforming, the sight lighting was insufficient, the landscaping, drainage on the site and runoff, internal traffic circulation, curb cuts, pedestrian access, emergency vehicle access, and wastewater treatment. He thanked Director Garman and the staff for helping them address all of the issues. He thought the layout proposed addressed all of the nonconformities. He agreed there was a problem with the dumpster and tried to address it. He asked Council to think about all of the challenges the applicant had to face when considering the Conditional Use Permit.
Mayor Pro Tempore Thibodeau asked if a vegetative buffer could be put in near the far western part of the fence. Dave Ryan stated that they are providing additional landscaping and screening around the dumpster. Mayor Pro Tempore Thibodeau asked if more planting could be done along the fencing where the swale ended. Mr. Ryan stated that planting could be done, but it may not mature for many years.
Dale Schultz asked Dave Ryan if he was comfortable with the proposed crosswalk in his professional opinion, pointing out that it will be a hazard after dark. Dave Ryan thought there were some inaccuracies. He stated that the area will not be pitch black and lighting would be provided for pedestrians to cross Duck Road. He thought it was a vast improvement over the existing crosswalk by reducing the travel time in the road. Mr. Schultz pointed out that Mr. Ryan did not answer the question. Town Attorney Gallop asked Mr. Schultz to refrain from arguing.
Town Attorney Gallop asked if there were other questions. There being none, he closed the evidentiary portion of the hearing and turned the meeting over to Mayor Morrison.
Mayor Morrison opened the floor to Council for discussion.
Mayor Pro Tempore Thibodeau commended everyone for their hard work. She stated that she saw inconvenience with regard to the dumpster. She noted that the restaurant has been in existence a lot longer than the house. She encouraged the applicant to do as much as possible along the fence area to increase the vegetation. She stated that she was concerned with the lighting. She stated that she felt that the lighting would overwhelm people coming into Town. She stated that she understood the lighting ordinance was needed, but often took exception to it. She stated that she also understood the need for downward lighting. She thought the Town has gotten away from low impact up lighting on small signs and required down lighting. She thought by doing that, it made for high light poles. She thought the site would be flooded with light. She stated that she had reservations with regard to the number of lights, but thought less was more.
Councilor Caviness stated that she was also concerned with the lighting. She stated that she had concern about eighteen (18) foot light poles in the lot across the street and didn’t like the number that were proposed. She stated she would prefer an alternative lighting instead of the high poles. She stated that she was not convinced that maneuvering the trash truck on the lot on the east side of Duck Road would be any better or worse than what would happen on the site. She stated there was a “quality of life” issue that existed for both the business and adjacent property owner. She thought moving the dumpster across the street should be investigated thoroughly to see if it would work there. She stated she was concerned about the crosswalks and pointed out that people do not usually use the crosswalk when they cross Duck Road.
Councilor Lindley stated that in the interest of the Town, there should be a solution for the property. He thought a good solution had been offered. He stated that he had concerns with the dumpster. He stated that if someone owns a restaurant, the owner has the job of controlling refuse, aromas and ventilation. He stated that he feels for the adjacent property owner, but pointed out that the house was built with the restaurant already in existence next door. He didn’t think the application should be delayed.
Councilor Smith agreed with Councilor Lindley’s comments. He stated he was excited about the potential and liked the elevation drawings. He stated that the applicant had done an outstanding job working with the limitations they had. He agreed with Councilor Caviness’ comments that people will cross Duck Road whether there is a crosswalk or not. He stated that he did not like pole lighting and thought it would stress people who come to the spa. He hoped the lighting would have a minimal impact. He stated that it was unfortunate that the adjacent property owner lived next to a restaurant but pointed out that there was a ten (10) foot setback. He suggested that additional vegetation be planted on the south side. He didn’t think the dumpster could be put anywhere it would make a difference. He agreed with Councilor Lindley that the management of the restaurant needed to ensure that the dumpster stayed maintained. He stated that after listening to the discussion, he did not know what could be changed to make it better than what it was.
Mayor Morrison thought the comments were excellent. He stated that he worried about the dumpster but pointed out that the dumpster was on the property line when the adjacent owner purchased his home. He thought it was in the best interest to the management of the restaurant to do whatever necessary to control the odors of the dumpster. He thought relocating the dumpster across the street would not work as it could be a hazard to the employees trying to cross the street. He suggested considering lowering the eighteen (18) foot light poles. He stated he was impressed with the overall plan and was prepared to support it as presented.
Mayor Pro Tempore Thibodeau asked if the poles in front of Scarborough Faire were not in compliance with the Town’s lighting ordinance. Director Garman thought the lights the applicant was proposing would work as they were cut off fixtures as opposed to lantern style fixtures that were at Scarborough Faire.
Councilor Lindley asked if the lighting were lowered, there would be a need for more of them. Dave Ryan stated he was correct. Councilor Lindley thought the applicant should consider additional lower lights. Mr. Ryan pointed out that the lighting plan had various light fixtures that would be used at the site. Director Garman pointed out that the Waterfront Shops used gooseneck fixtures.
Mayor Pro Tempore Thibodeau asked why gooseneck fixtures could not be used all across the site. Mr. Ryan stated that it was an economy issue as well as following the letter of the ordinance. Mayor Pro Tempore Thibodeau stated she would be in favor of using lower level lighting. Director Garman stated he had met with the lighting consultant and the reason for the tall fixtures was to separate the parking lot from the right of way. He stated that the consultant was trying to achieve not having any light spill over into the right of way. He stated that the tall fixtures were proposed on the east side of the parking lot to provide enough light for people to get through the parking lot. Mayor Pro Tempore Thibodeau thought there was light spill over presently at the site. Director Garman stated there was, but there would be substantially more. Mayor Pro Tempore Thibodeau clarified that there would be four (4) lights. Director Garman stated she was correct. Mayor Pro Tempore Thibodeau clarified that lower lighting would not be enough to meet the Town’s ordinance. Director Garman stated there may not be enough lighting on the west side of the parking lot as it may not project as far as needed. He stated that a change in the lighting could be a condition of the approval.
Mayor Morrison asked for other discussion.
Councilor Caviness asked about the possibility of locating the dumpster on the north side of the parking lot. She thought the trash truck could use a section of the drive on the northern part of the property as it would be just as spacious as where the dumpster would be on the south side. She thought it could be done but would not completely eliminate the noise.
Councilor Lindley asked how trash would be transported from the kitchen to the dumpster. He thought the logical place to put the dumpster would be near the kitchen. Councilor Smith agreed with Councilor Lindley’s comments.
Mayor Pro Tempore Thibodeau amended her motion and moved to accept the findings of fact by the Planning Board and adding a sentence on the second #5 that states: “The granting of the Conditional Use Permit will not adversely affect the public interest.”
Councilor Caviness asked if the lighting plan would be brought back to Council or handled at staff level. Town Manager Layton stated that under the motion, it would be handled by staff as an administrative approval. Councilor Caviness stated she was not entirely comfortable with it but knew staff was aware of Council’s concerns.
Mayor Pro Tempore Thibodeau asked if there would be a thorough presentation of the final lighting from staff. Mayor Morrison stated that Director Garman could report back to Council at the December 5, 2007 meeting to let them know what the consultant decided. Director Garman thought the applicant would be trying to get a building permit as soon as possible. He stated he could talk to the lighting consultant to have him revise the plan as soon as possible, but wondered if the Conditional Use Permit should be withheld until Council saw the new lighting plan. Mayor Morrison suggested doing what needed to be done and provide Council with a memorandum explaining what transpired.
Town Manager Layton suggested that if the intent was to have a revised lighting plan, it should be part of the motion. Otherwise it gives discretion to staff to accept the original plan or a revised plan. He didn’t think it was the intent of the motion and suggested amending the motion to require a revised plan. He stated that Council could also leave it at staff’s discretion, which would mean it would be brought back to Council as a formality.
Mayor Pro Tempore Thibodeau stated that with her motion, she wanted discussions with the lighting consultant to be done and not something that would hold up the Conditional Use Permit. She envisioned that the lighting consultant and staff would come up with minimal lighting necessary so as not to have a huge impact. Director Garman stated that he understood that the objective was to evaluate tract 2 using similar features on tract 1 by using gooseneck fixtures. He stated he was sure the applicant could achieve a reasonable solution. Councilor Lindley stated that he was confident with Director Garman making the decision.
Councilor Smith clarified that the gooseneck fixtures were brighter due to a lack of shielding. Mayor Pro Tempore Thibodeau stated she wasn’t sure. Director Garman stated that both fixtures were cut off fixtures. Councilor Smith stated that he wanted the consultant to take Council’s concerns into consideration and make changes accordingly.
Motion carried 4-1 with Councilor Caviness dissenting.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
Overview of 2007 Jazz Festival
Mayor Morrison stated that Public Relations Coordinator Kathy McCullough-Testa would be giving a presentation.
Public Relations Coordinator Kathy McCullough-Testa was recognized to speak. Ms. McCullough-Testa went on to give a short overview of the 2007 jazz festival to Council and the audience.
Councilor Caviness asked what the cost was of the sponsorships. Ms. McCullough-Testa stated that there were two (2) $5,000 sponsorships and three (3) $2,500 sponsorships. She stated that the in-kind donations were from Atlantic Realty and Ocean Atlantic Rentals.
Mayor Pro Tempore Thibodeau clarified that the summer events for 2008 would still be held on two (2) evenings for six (6) weeks. Ms. McCullough-Testa stated they would.
Councilor Caviness asked if the time would be adjusted. Ms. McCullough-Testa stated that it would not as the bands perform in other places on the same evenings.
Mayor Morrison thanked Ms. McCullough-Testa for her presentation.
Update on the Implementation of the Municipal Property Master Plan
Update on the Request for a CAMA Permit Modification
Town Manager Layton stated that the permit modification was with the person at CAMA that needs to sign it. He stated that the Town has not been notified that it has been signed, but hoped it would be signed soon. He stated that in order to finish the pier, the permit modification would need to be in house. He stated that the remaining portions of the boardwalk were substantially complete but not ready to be opened to the public. He stated that the gazebo, picnic shelter and signs were left from the Municipal Property Master Plan. He stated that the signs were completed and were pending installation. He noted that one would be erected on the south end, one of the north end and one in the middle of the park.
Mayor Pro Tempore Thibodeau asked once the CAMA permit was signed, what the timeframe would be for construction to start. Town Manager Layton stated that as soon as the Town is alerted that the permit has been signed and on its way, preparations would be made to get the contractors in. He stated that he hoped to have construction completed by December 31, 2007. Mayor Pro Tempore Thibodeau asked if the existing signs would be moved. Town Manager Layton stated that they may move but wasn’t sure at this time what would be done.
Budget Amendment
Town Manager Layton stated that the budget amendment was to fund the completion of two portions of the pier, the picnic shelter and the gazebo. He stated that he was asking for an additional appropriation of $75,000 to finish Phase I and Phase II of the project.
Councilor Lindley asked where the $75,000 would be coming from. Town Manager Layton stated it would be appropriated from the undesignated fund balance.
Mayor Pro Tempore Thibodeau moved to approve the budget amendment as presented.
Motion carried 5-0.
Discussion/Consideration of Awarding a Contract for the Construction of the Picnic Shelter and Gazebo as part of the Implementation of the Municipal Property Master Plan
Town Manager Layton stated that he was asking for authorization to enter into a contract for construction of the picnic shelter and gazebo. He stated that he was recommending the contract be awarded to Coinjock Farms. He noted that they were the second lowest bidder of the three (3) received by $547.00. He stated that with the work they have completed in the past, he didn’t feel comfortable justifying a different contractor for a difference of $547.00. He noted that a letter was received objecting to his recommendation, which he would respond to.
Councilor Lindley moved to authorize the Town Manager to execute a contract with Coinjock Farms for the construction of the picnic shelter and gazebo.
Mayor Pro Tempore Thibodeau asked what the timetable was. Town Manager Layton stated it would be immediate.
Motion carried 5-0.
NEW BUSINESS
Discussion/Consideration of Resolution 07-12, a Resolution Confirming Verification of the Relationship of the Duck Volunteer Fire Department and the Town of Duck, North Carolina
Fire Chief Donna Black was recognized to speak. Fire Chief Black stated that every five (5) years, the Fire Department has to be inspected by the Department of Insurance. She noted it was a minimum standard set by the Department of Insurance where they look at the call response, membership and training. She stated that because the Town was an incorporated entity, the Fire Department needed a resolution stating that they are associated with the Town as a municipality.
Mayor Pro Tempore Thibodeau moved to adopt Resolution 07-12 as presented.
Motion carried 5-0.
Discussion/Consideration of Resolution 07-13, a Resolution of the Town Council of the Town of Duck, North Carolina, requesting State Grant Funding Assistance to Develop a Comprehensive Pedestrian Plan for the Town of Duck
Director Garman stated that the Town had applied for the grant in 2005. He stated that the funding ratio was eight percent (8%) to twenty percent (20%), with the Town being responsible for twenty percent (20%) of the funding to complete the plan. He stated that the grant was for municipalities and counties to allow them to prepare a bicycle or pedestrian plan. He stated that staff thought the pedestrian plan would be more widespread as well as addressing some of the bicycle issues in completing the pedestrian plan. He noted that there was a considerable amount of activity happening in Town with regard to pedestrians such as the sound side boardwalk and Duck Trail. He stated that the grant would garner support for these projects as well as getting ideas for new projects and needs for pedestrians. He stated that with Council’s support, staff would like to move forward in preparing the application as well as receiving letters of support from the Planning Board, community groups and the Albemarle Commission.
Mayor Morrison clarified that the total cost for the Town would be $6,200. Director Garman stated he was correct.
Mayor Pro Tempore Thibodeau asked how many grants were awarded each year. Director Garman stated he wasn’t sure. Mayor Pro Tempore Thibodeau asked if it was competitive. Director Garman stated it was. He thought the more comprehensive in scope the application was, the better the chance of being awarded the grant.
Councilor Caviness asked if all of the streets would be looked at. Town Manager Layton stated that they were proposing taking a comprehensive look as it would enhance the chances of getting a grant. He stated that it would be good to have a public discussion on an initial planning level regarding issues the Town may have. He stated that the primary focus was the serious issues on the multi-use path. He stated that the grant would help the Town do that as well as garnering support from NCDOT to do anything on NC 12. He stated that subdivisions and pedestrian connections could be explored as it would be proposed in the grant application.
Councilor Smith moved to adopt 07-13 as presented.
Motion carried 5-0.
Discussion/Consideration of Scheduling a Public Hearing for Ordinance 07-17, related to Pump and Haul Systems
Director Garman stated that Council referred the item to the Planning Board at their September 5, 2007 meeting. He stated that it was an issue that arose out of the Town of Nags Head in that they had the issue with properties that were suffering substantial erosion with not enough room for a conventional septic system. He stated that pump and haul systems were used in lieu of conventional systems. He stated that the Planning Board discussed the issue and agreed with the Town of Nags Head that it wouldn’t be a good idea to allow them in Duck if it ever became an issue. He stated that an ordinance was drafted that the Planning Board recommended Council adopt the ordinance.
Town Manager Layton clarified that the Planning Board’s recommendation was to authorize a public hearing. He stated that he had suggested that if Council was not comfortable holding the public hearing in December, it could be held off until January 2, 2008. Mayor Morrison didn’t see a reason why it couldn’t be held at the December 5, 2007 meeting.
Mayor Morrison moved to authorize a public hearing on Ordinance 07-17 for December 5, 2007.
Motion carried 5-0.
Discussion/Consideration of Scheduling a Public Hearing for Ordinance 07-18, related to Survey Requirements
Director Garman stated that Council referred the item to the Planning Board at their September 5, 2007 meeting. He stated that discussions in the past on the current ordinance required all building permit and land disturbance permit applications to be accompanied by a survey that was dated within nine (9) months of the application. He stated that the ordinance could be considered overly burdensome for some projects. He stated that the intent of Council was to direct staff to bring the item to the Planning Board so they could create more flexibility for staff to consider the type of surveys and timeframes for permit applications to give staff more discretion to require only what was needed to verify compliance with the ordinance. He stated that the draft ordinance strikes the requirement for surveys dated within nine (9) months of the application. He stated that there was other language in the ordinance to give staff the discretion to verify what would be needed to verify compliance with permits. He stated that an administrative policy would be followed that would describe the type of projects and what contractors would be required to submit with their application. He stated that he was asking Council to consider holding a public hearing for the ordinance.
Mayor Pro Tempore Thibodeau asked if a survey would be required if a homeowner wanted to replace an existing hot tub. Director Garman thought staff would require something that showed the conditions of the property. He added that it wouldn’t have to be current but would have to be a survey.
Mayor Pro Tempore Thibodeau moved to authorize a public hearing on Ordinance 07-17 for December 5, 2007.
Mayor Pro Tempore Thibodeau asked what “reserved” meant in the draft ordinance. Director Garman stated that the section would be stricken from the ordinance and for codification purposes as well as to keep the number in the ordinance, “reserved” would be put in there as a place holder.
Motion carried 5-0.
Discussion/Consideration of Referring the Issue of the Clarification of the Town’s Authority to Post Signs and Banners to the Planning Board
Mayor Morrison stated that at the mid-month meeting, the issue of the Town’s authority to post signs and banners was discussed with regard to seasonal banners mounted on utility poles. He stated that current regulations provide broad authority to Town Manager Layton to permit the signs and banners. He stated that it was recommended that the regulations be reviewed for clarification.
Mayor Pro Tempore Thibodeau moved to refer the issue to the Planning Board.
Motion carried 5-0.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN ATTORNEY
Town Attorney Gallop stated that he had nothing to report.
ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN MANAGER
Update on Departmental Activities
First Sergeant Jeff Ackerman was recognized to speak. First Sergeant Ackerman gave a brief overview of the past month’s activities to Council and the audience.
Fire Chief Donna Black was recognized to speak. Fire Chief Black gave a brief overview of the past month’s activities to Council and the audience.
Town Manager Layton gave a brief overview on the building permit activities to Council and the audience.
Update on the BB&T Loan Refinancing
Town Manager Layton stated that interest rates have dropped since the summer when the Town tried to refinance their existing loan. He stated that if the Town did try a refinancing, the potential to save more than what was anticipated would be there. He stated that BB&T had quoted a rate of 3.71%, down from the 4.07% earlier in the year. He stated that if the Town was to stay with BB&T, there would be two (2) options – go for a full refinancing by going through the Local Government Commission with BB&T waiving the prepayment penalty or a contract modification which wouldn’t require going through the Local Government Commission. He stated that another RFP process could be done to see what other rates were available. He stated that RBC Centura Bank quoted 3.82%, which was significantly higher than BB&T and the Town would have to pay a prepayment penalty. He proposed coming back to Council in December with a report and recommendation on how he would proceed.
Mayor Pro Tempore Thibodeau asked if the contract modification would waive the prepayment penalty. Town Manager Layton stated it would.
Update on the Outer Banks Transportation Task Force
Town Manager Layton stated that the Outer Banks Transportation Task Force had a meeting recently. He stated that the focus for the Task Force was narrowed to looking at a Transportation Management Authority (TMA) and whether it would be something that should be explored and created for Dare County and its municipalities. He stated that a TMA was an organization that primarily focused on items such as rideshare programs and some public transportation. He stated it did not typically include capital projects such as roads. He stated that during the discussions, there was a very significant gap in the idea of a TMA and what it would mean. He stated that he suggested spending money to figure out what a TMA would be and what long-term requirements would be needed from municipalities as well as the cost implications. He stated that it was unclear whether it would go forward, but if it did, he suggested volunteering to be the fiscal agent for the study with Council’s permission. He thought the Town could come up with $1,000 to research answers as to whether it was worth further study. He stated that he wasn’t sure it would come to fruition.
Paul Keller of 125 Wiroans Court was recognized to speak. Mr. Keller thought that the committee had exhausted all potential for Dare County sponsoring or going after any funds. He stated that the support was just not there, which was frustrating. He stated that Dare County Commissioner Warren Judge got energized when told about the TMA since it was a combination government/business operation. He stated that a person that runs a TMA from the Philadelphia area talked to the Task Force last year and would be coming back to speak again. He stated that there was opportunity to find a possibility for a comprehensive approach to transportation. He stated that they also asked the State to come up with a comprehensive plan for the area for all transportation but it would be years away. He thought for a modest amount of money, the issue could be looked into.
Mayor Pro Tempore Thibodeau thought that the business plan was a good idea to explore. She asked if the business organizational model would look at the cost of running it as well as how it would function with NCDOT. Town Manager Layton stated the scope of work would be defined for the business plan. He thought it needed to define what it would be and how it would function as well as having suggestions as to who would be members of it.
Financial Statement for the Month of October 2007
Town Manager Layton reviewed the financial statements with Council and the audience.
MAYOR’S AGENDA
Mayor Morrison stated he did not have anything to report.
COUNCIL MEMBERS’ AGENDA
Mayor Pro Tempore Thibodeau thanked the Fire Department for hosting their fire awareness picnic. She thought it was a great day with a lot of good information for everyone.
Councilor Caviness stated she had nothing to report.
Councilor Lindley congratulated Council for removing their campaign signs so quickly after the election.
Councilor Smith stated he had nothing to report.
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 9:54 p.m.
OTHER BUSINESS
Upon return from closed session, Councilor Lindley moved to authorize the Town to pay 100% of the employee/spouse medical insurance cost for Town Manager Layton.
Motion carried 5-0.
Mayor Morrison stated that the next meeting would be Wednesday, December 5, 2007 at 7:00 p.m.
There being no further business to discuss, Mayor Morrison moved to adjourn the meeting.
Motion carried 5-0.
The time was 10:01 p.m.
____________________________
/s/ Christopher J. Layton, Town Clerk
Approved: December 5, 2007
_______________________________
/s/ Neil Morrison, Mayor