TOWN OF DUCK
TOWN COUNCIL
REGULAR MEETING
March 5, 2008
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 7:00 p.m. on Wednesday, March 5, 2008.
COUNCIL MEMBERS PRESENT: Mayor Neil Morrison; Mayor Pro Tempore Monica Thibodeau; Councilor Nancy Caviness; Councilor Bart Smith; and Councilor Dave Wessel.
Council Members ABSENT: None.
OTHERS PRESENT: Town Manager Christopher J. Layton; Director of Community Development Andy Garman; Police Chief Phillip Ferguson; Fire Chief Donna Black; Town Attorney Donald I. McRee; and Town Clerk Lori Kopec.
OTHERS ABSENT: None.
Mayor Morrison called the meeting to order at 7:00 p.m. Mayor Morrison asked former Council Member Denver Lindley, Jr. 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 comments related to the public hearings be held off.
There being no one wishing to speak, Mayor Morrison closed the time for public comments.
Police Chief Phillip Ferguson was recognized to speak. Police Chief Ferguson stated that Officer Gerard Couture recently completed his North Carolina Specialized Firearms Instructor Training. He stated that the Department of Justice issues Advance Law Enforcement certificates on a varying scale for training as well as formal education and that Officer Couture earned his advanced certificate. He added that Officer Couture also received his Emergency Medical Technician certificate and because of the combination of the certificates, it entitled him to be promoted to the rank of Corporal. He went on to transition Officer Couture to Corporal by presenting him with his stripes and service bar. Mayor Morrison and Council congratulated Corporal Couture on his achievement.
APPROVAL OF MINUTES
Mayor Morrison opened the approval of minutes from the February 6, 2008 regular meeting and the February 20, 2008 mid month meeting. Mayor Morrison directed Council to review the minutes from the February 6, 2008 regular meeting for changes.
Mayor Pro Tempore Thibodeau moved to approve the February 6, 2008 minutes as presented.
Motion carried 5-0.
Mayor Morrison directed Council to review the minutes from the February 20, 2008 mid month meeting for changes.
Mayor Pro Tempore Thibodeau had one clarification to Page 6. She had a change to Page 8.
Councilor Smith moved to approve the February 20, 2008 minutes as amended.
Motion carried 5-0.
PUBLIC HEARINGS
Public Hearing/Discussion/Consideration of SE-08-02, a Special Exception Permit Application submitted by Vincenza George related to the Continued Operation of a Small Child Care Home as Defined in Section 156.002 and Provided for in Section 156.057 of the Code of Ordinances for the Town of Duck, North Carolina
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.
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 for several years, a small child care home has been in operation at 105 Jaycrest Drive, operated by Vincenza George. He stated it was a conditional use permitted in the Zoning District RS-1 and RS-2. He stated the Conditional Use Permit was originally issued on May 7, 2004 by the Town’s Board of Adjustment. He stated that in 2006, there was a Code Amendment, making a Conditional Use Permit one that would be heard by the Town Council. He stated that Ms. George received previous re-authorization and this would be another re-authorization to continue for two (2) more years. He noted that the Town Code required re-authorization every two (2) years for small child care homes.
Director Garman stated that Council had in their packet several pieces of information in support of the application such as letters of support and opposition of the application. He stated that there were four (4) letters in support of the application from parents of the children that attend the child care home. He stated that there was one (1) letter of opposition from a neighbor at 111 Jaycrest Drive due to concerns about the appearance of the property.
Director Garman stated that the child care home has been in operation for several years with the Council making findings in previous hearings that the use was consistent with the Land Use Plan and the Zoning Ordinance. He stated that Ms. George was not proposing any changes to her application, but wanted to continue obtaining the Special Exception permit to give her the flexibility to add more full-time children as her program changes. He stated that the Planning Board discussed the issue at their February 27, 2008 meeting and felt the property was not out of character with the surrounding properties in the neighborhood. He stated that they felt the appearance of the property was unrelated to the business use at the site and voted unanimously to re-authorize the Special Exception request. He added that the Planning Board did not recommend any additional conditions regarding the appearance of the property. He stated staff was recommending that if Council found the appearance of the property was not attractive and detracted from the neighborhood due to the child care facility, conditions could be placed in the Conditional Use Permit.
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 her case.
Victor White of Landmark Engineering and Environmental was recognized to speak. Mr. White stated that he was present for the initial application. He stated that his son used to attend the child care home and he was present to lend his support for the Special Exception request. He felt she was an asset to the community.
Raymond George of 105 Jaycrest Drive was recognized to speak. Mr. George reminded Council that Vincenza George held two (2) degrees in Montessori education. He noted that the children in her care have all excelled once they started elementary school.
Paul Tine of 3040 Creek Road in Kitty Hawk was recognized to speak. Mr. Tine stated that he felt Vincenza George’s service was a necessary one on the Outer Banks.
Town Attorney McRee asked if there was any other evidence to add. There being no further additions, he 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.
Vincenza George of 105 Jaycrest Drive stated that she noticed the photograph of her property. She wanted to note that since the photograph was taken, the yard has been cleaned up. Mayor Morrison stated that when something special is happening at a property, it was important to make the property look nice to discourage any negative comments. He thanked Vincenza George for cleaning up her property.
Councilor Wessel stated he had attended the Planning Board meeting on February 27, 2008. He noted that there were a couple of neighbors that attended the meeting in addition to a few parents, all in support of the application. He thought it was admirable. He thought it was telling that no one came forward with any negative comments. He noted that the previous Conditional Use Permit had a condition that stated that any and all licensing requirements of the State and County would need to be met prior to approval. He asked if the business would still need to meet any and all licensing requirements of the State or County in order for the special use to be in effect. Director Garman stated that Vincenza George would. Councilor Wessel asked if routine inspections of the property would be completed by zoning officials. Director Garman stated that he would perform routine inspections at various times of the year. Councilor Wessel stated that he hoped inspections would be completed in case neighbors have complaints but have not voiced them.
Mayor Pro Tempore Thibodeau stated she appreciated all of the background information that was provided to Council including the unanimous recommendation of the Planning Board to approve the Special Exception request. She stated she would support the Planning Board’s findings.
Motion carried 5-0.
Public Hearing/Discussion/Consideration of SE-08-03, a Special Exception Permit Application submitted by Myra Ladd-Bone, Owner, Atlantic Realty, related to the Renewal of a Previously Approved Special Exception for Parking pursuant to Section 156.096 of the Code of Ordinances for the Town of Duck, North Carolina
Mayor Morrison turned the meeting over to Town Attorney McRee.
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.
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 stated that the Conditional Use Permit was for an exception to the parking requirements for commercial businesses. He stated it was originally approved in 2006 and was required to be approved every two (2) years as a condition of the previous permit. He stated that in 2006, Myra Ladd-Bone wished to open a real estate office at the Duck Soundside Shops, which was previously retail space. He noted that office space required a higher parking standard than retail. He stated that during the application process, staff discovered the entire complex had inadequate parking based on the requirements, which required a Special Exception.
Director Garman stated that the Special Exception Permit allowed Council to reduce the requirements for parking based on certain findings which were listed in the staff report. He stated that the exception request was necessary to permit reasonable use of the property and the request would not adversely affect the adjoining properties. He stated that in the previous permit authorization, Council made findings of fact and agreed to authorize the permit based on certain conditions which were outlined in the staff report. He noted that all conditions had been met. He added that the Planning Board unanimously recommended approval and that staff recommended it as well. He stated that staff removed the condition that the Special Exception be re-authorized every two (2) years, based on the fact that the first two (2) years were a trial period. He stated that any changes of use would trigger an analysis of the parking requirements.
Town Attorney McRee asked Council if they had any questions for Director Garman.
Mayor Pro Tempore Thibodeau asked if any type of change in use would require the applicant to come before Council. Director Garman stated she was correct as long as it required a higher parking standard.
Councilor Smith asked how all the conditions were verified that they were met and would continue to be met. Director Garman stated that the language was changed from “install” to “maintain”. He stated that staff could place additional conditions as Council saw fit to require the applicant to present evidence at certain intervals rather than have it come as another Conditional Use Permit re-authorization.
Mayor Pro Tempore Thibodeau clarified that an alternative would be a complaint-driven inquiry. Director Garman stated she was correct. Mayor Pro Tempore Thibodeau pointed out that the date was omitted for the Planning Board meeting. Town Manager Layton stated it would be corrected.
Councilor Wessel asked if Condition 5 with regard to no more than three (3) employees being on the site at one time was only for the applicant’s unit. Director Garman stated he was correct.
Town Attorney McRee asked the applicant if they had questions for Director Garman. There being none, he instructed the applicant to present her case.
John Bone of 3053 Creek Road in Kitty Hawk was recognized to speak. Mr. Bone noted that Myra Ladd-Bone had worked very hard to make things look good.
Town Attorney McRee asked if there was any other evidence to add. There being no further additions, he 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 she was in favor of getting behind what the Planning Board had determined. Councilor Smith, Mayor Morrison and Councilor Wessel agreed.
Councilor Smith moved to approve SE-08-03 as presented with the findings of fact.
Motion carried 5-0.
Public Hearing/Discussion/Consideration of ZTA-Veg, Ordinance 08-01, an Ordinance Amending Section 156.137 of the Code of Ordinances for the Town of Duck, North Carolina, related to the Tree and Vegetation Preservation and Planting
Director Garman stated that a summary was provided to Council at their February meeting regarding the ordinance. He stated that staff was looking at refining the ordinance for a few months. He stated that staff discussed the ordinance at the Planning Board level and decided to make a distinction between the calculations of canopy coverage. He stated that canopy coverage was based on an assignment of canopy for each type of tree and shrub. He stated that the way staff was administering the ordinance was if an owner had an existing property with vegetation on it, an aerial photograph would be used to mark the area of vegetation which would be verified at the site as well as calculating the area. He stated that based on Council’s direction, the intent was to make the ordinance easy for people to move through the process. He stated that it was codified and now canopy could be calculated based on the amount of coverage per each tree and shrub, but also based on the area of coverage on a property.
Director Garman stated that previously, homeowners were awarded credit for certain types of trees or shrubs, but in areas near the ocean, there wasn’t an ability to give credit for beach grass or vegetation that grows well in an ocean environment. He stated that staff came up with a means to give credit for it as well as including ornamental grasses. He stated that staff made some modifications to the appendix to take it out of the Code to make it easier to modify the tree and plant list in the appendix without having to go through a public hearing process. He stated that the Planning Board suggested a clarification on when permits would be required for tree removal within ten (10) feet of a house. He stated that the ordinance clarifies that a permit would not be required in any case to do that. He stated that the Planning Board requested more flexibility be provided to defer planting beyond the Certificate of Occupancy in cases where it was an inopportune time to plant. He stated that the Planning Board discussed the ordinance on January 23, 2008 and unanimously recommended approval. He stated that the ordinance was consistent with the Land Use Plan and staff recommended approval.
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 asked what the rationale was behind the ninety (90) day period for planting with regard to a Certificate of Occupancy. Director Garman stated it was to provide a reasonable period of time for planting vegetation. Mayor Pro Tempore Thibodeau clarified that it was a good faith gesture on the homeowner. Director Garman agreed.
Councilor Wessel thought were was discussion at the Planning Board level regarding planting on the Outer Banks. He stated that it was discussed that vegetation could be planted year-round, regardless of when the time begins. Director Garman agreed. Councilor Wessel pointed out that it would keep the pressure on the homeowner to commit to carry out the plan within a reasonable timeframe.
Councilor Smith asked why the language on Page 5 (2) was added. Director Garman thought that if a homeowner wanted to take one (1) tree down, the language was put in there so they wouldn’t be required to complete a vegetation management plan. Councilor Wessel pointed out it was a nice way of prohibiting clear cutting. Councilor Smith clarified that it would be left up to the applicant to ensure that they have enough vegetation coverage. Director Garman thought that if a homeowner was removing one (1) tree or shrub, they would not be required to complete a vegetation management plan or verify canopy coverage. He added that it was not in conjunction with land development activities.
Mayor Pro Tempore Thibodeau asked what “division” meant on Page 6 (G)(2). She asked if it was a zoning term. Director Garman thought the language appeared after the Town had the ordinance recodified. He thought it referred to a subsection. Town Attorney McRee stated that it was within a certain division of the Land Use ordinance section of code. Mayor Pro Tempore Thibodeau thought the language regarding “no other use” on Page 7 (c) seemed heavy.
Councilor Smith asked how the number of mulched shrubs and ornamental grasses were determined on Page 7. Director Garman stated that the mulched shrubs were in the original ordinance. He thought it was an equivalent number of shrubs that would be in place of a large tree. He stated it was the same for ornamental grasses.
Councilor Caviness moved to adopt Ordinance 08-01 as presented.
Motion carried 5-0.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
Update on Local Elected Officials Meetings and Citizens Informational Workshops of the North Carolina Turnpike Authority regarding the Mid-Currituck Bridge Project
Town Manager Layton stated that he, Mayor Morrison and Director Garman had attended a Local Elected Officials meeting of the North Carolina Turnpike Authority regarding the Mid-Currituck Bridge on February 28, 2008. Town Manager Layton and Director Garman went on to give a short overview to Council and the audience of the presentation that was given at the meeting.
Mayor Morrison summarized that the Turnpike Authority was recommending that NC 12 not be widened and the bridge be built. He stated there would be no negative impact to the Town of Duck based on the Turnpike Authority’s recommendations. He stated that they have decided which route they want the bridge to take out of five (5) or six (6) different possibilities as well as the type of intersection they want to have on each side of the bridge. He added that their recommendations were extremely favorable to Duck.
Mayor Pro Tempore Thibodeau stated that she had attended the public presentation. She noted that this would be the second toll road in North Carolina, which was considered positive. She stressed that they were looking for everyone to make a public input. She encouraged the audience to write a letter to the Turnpike Authority in support of the bridge.
Town Manager Layton stated that the action was to have him be authorized to prepare a letter for Mayor Morrison’s signature to be forwarded to the Turnpike Authority.
Councilor Smith moved to authorize the Town Manager to compose a letter for Mayor Morrison’s signature, in favor of moving forward with the Turnpike Authority options for the Mid-Currituck Bridge.
Motion carried 5-0.
Update on Proposed Commercial Recycling Program
Town Manager Layton stated that he had been working with Waste Management and Tidewater Fibre to determine the best approach for providing commercial recycling in Town. He went on to give a short presentation to Council and the audience.
Town Manager Layton stated his recommendation would be that the Town wait until the fall to start commercial recycling services as he didn’t think the changes could be made before the season starts.
Mayor Pro Tempore Thibodeau clarified that Waste Management worked with a subcontractor to service the dumpsters. Town Manager Layton stated that Tidewater Fibre was used for residential pick up. He stated that Tidewater Fibre did not have the vehicles to deal with dumpsters. He stated they have reached an agreement with Bay Disposal who would be operating as Outer Banks Disposal, which would have the capacity to deal with the dumpsters. He anticipated continuing to keep commercial and residential recycling separate, unless the recycling container was a 95 gallon toter. Then it would be serviced by Tidewater Fibre. He stated that it would be done to make it easier for staff to respond to complaints of missed recycling.
NEW BUSINESS
There was no New Business to discuss.
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
Update on Departmental Activities
Police Chief Phillip Ferguson was recognized to speak. Chief Ferguson 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 NC 12/Tuckahoe Drive Stormwater Project
Town Manager Layton stated that the project continues to move forward. He stated that VHB have finished their 55% plans and should be done by the end of the week. He stated that they would be sent to NCDOT for their review and once they are approved, VHB will prepare the 100% plans. He stated that VHB was anticipating having them done with more than enough time to have them reviewed and any corrections by NCDOT to be completed so bidding could be done for the project to start in the fall. He stated that the big issue was the shortfall in the funding. He stated that $500,000 was set aside, but the actual cost of the project was estimated to be over one million dollars. He stated that Mayor Morrison spoke to Representative Timothy Spear about providing $250,000, which he had said he would take the lead in coordinating with Senator Marc Basnight’s office to obtain the remaining $250,000.
Town Manager Layton stated that he would be meeting with the Tuckahoe Property Owners Association on March 14, 2008 to discuss the project as well as discussing other improvements that may be occurring as a result of the project.
Update on Municipal Property Master Plan Implementation/Town Hall Design
Town Manager Layton stated that things were moving along at the park with the deck being finished up in the next couple of weeks. He stated he would like to have everything done in order to have a boardwalk grand opening on May 1, 2008.
Town Manager Layton stated that the Town Hall design concepts would be brought forward to Council in April. He stated that the Municipal Property Committee would be looking at very general ideas and how they fit into the park at their meeting on March 14, 2008. He noted that no hard core designs would be discussed or presented any time soon.
Financial Statement for the Month of February 2008
Town Manager Layton reviewed the financial statements with Council and the audience.
MAYOR’S AGENDA
Mayor Morrison stated that at the Council’s February mid-month meeting, Council approved the program to put signs on the beaches, marking the streets as recommended by the Fire Department. He went on to read a memorandum from Town Manager Layton that staff would be sending letters to affected property owners, private and community, informing them of the Town’s intent to install the beach signs as well as giving them an option to opt out of the program. He stated that the letters would be mailed out in the next two (2) weeks and would include a sample picture of the signs. He stated that property owners would have until April 1, 2008 to provide the Town with their response. He added that installation would begin the first week of May. He hoped the letter would resolve any issues that several people had brought to the Town’s attention.
COUNCIL MEMBERS’ AGENDA
Mayor Pro Tempore Thibodeau stated she did not have anything to report.
Councilor Caviness stated she did not have anything to report.
Councilor Smith stated that each municipality has to consider and decide whether to approve the annual Government Access Channel budget. He stated that Council would need to approve the 2008-2009 budget, which was voted on by committee members the week before. He added that Council would also have to approve the amended 2007-2008 budget. Town Manager Layton stated that no money would be required from the Town at this time.
Mayor Pro Tempore Thibodeau moved to approve the Government Access Channel’s 2008-2009 budget as presented.
Motion carried 5-0.
Councilor Caviness moved to approve the Government Access Channel’s 2007-2008 amended budget as presented.
Motion carried 5-0.
Councilor Smith stated that the Government Access Committee have held multiple meetings regarding franchise fees being taken away and being replaced with funds that could be applied for. He stated that each municipality could apply for funds based on the number of government access channels that the municipality or county had. He noted that there were two (2) in Dare County. He stated that because of that, a significant amount of money has been coming in to each municipality but the money has so many tags on it that it would be impossible to spend. He stated that the monies could be given to the Government Access Channel Group to be dispersed among the two (2) channels. He stated that the Committee and the Board of Education agreed to combine the monies. He stated that Bobby Outten would be at the Council’s mid-month meeting in April to explain it.
Councilor Wessel stated he did not have anything to report.
CLOSED SESSION
Mayor Pro Tempore Thibodeau moved to enter closed session in accordance with Section 143-318.11(a)(5) to enter closed session to consult with an attorney to establish or to instruct the public body’s staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange or lease.
Motion carried 5-0.
The time was 9:18 p.m.
OTHER BUSINESS
Upon return from closed session, Mayor Morrison stated that the next meeting would be the mid month work session on Wednesday, March 19, 2008 at 1:00 p.m.
There being no further business to discuss, Mayor Morrison moved to adjourn the meeting.
Motion carried 5-0.
The time was 10:00 p.m.
____________________________
/s/Lori A. Kopec, Town Clerk
Approved: April 2, 2008
_______________________________
/s/ Neil Morrison, Mayor