TOWN OF DUCK
TOWN COUNCIL
REGULAR MEETING
April 2, 2008
The Town Council for the Town of Duck convened at the Duck Municipal Offices at 7:00 p.m. on Wednesday, April 2, 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 7:03 p.m. Mayor Morrison led the Pledge of Allegiance and moment of silence.
Mayor Morrison noted that there were two (2) additions to the agenda. Mayor Pro Tempore Thibodeau moved to approve the amended agenda.
Motion carried 5-0.
PUBLIC COMMENTS
Mayor Morrison opened the floor for public comments. He asked that comments related to the public hearing be held off.
There being no one wishing to speak, Mayor Morrison closed the time for public comments.
APPROVAL OF MINUTES
Mayor Morrison opened the approval of minutes from the March 5, 2008 regular meeting and the March 19, 2008 mid month meeting. Mayor Morrison directed Council to review the minutes from the March 5, 2008 regular meeting for changes.
Councilor Caviness moved to approve the March 5, 2008 minutes as presented.
Motion carried 5-0.
Mayor Morrison directed Council to review the minutes from the March 19, 2008 mid month meeting for changes.
Mayor Pro Tempore Thibodeau moved to approve the March 19, 2008 minutes as presented.
Motion carried 5-0.
PUBLIC HEARINGS
Public Hearing/Discussion/Consideration of CUP-08-002, to Permit a Formula Business (The Fudgery) in Suite A-2 at the Scarborough Lane Shoppes Located at 1171 Duck Road
Mayor Morrison turned the meeting over to Town Attorney Ike McRee.
Town Attorney Ike McRee was recognized to speak. Town Attorney McRee stated that the Council would be sitting as a quasi-judicial body for the public hearing, meaning that they will sit as a court and must make its decision based upon competent material and substantive evidence that will be presented during the course of the hearing. He stated that anyone wishing to give testimony would have to give it while under oath with the applicant afforded due process rights including the right to present evidence, examine and cross-examine witnesses. He asked that anyone wishing to testify come forward to be sworn in.
Town Clerk Lori Kopec proceeded to swear in the applicant 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 The Fudgery would like to locate in Suite A-2 of the Scarborough Lane Shoppes at 1171 Duck Road. He stated that Scarborough Lane housed approximately twenty (20) retail stores and two (2) restaurants. He stated that the space that The Fudgery would want to move into was approximately 1,800 square feet with only an interior remodel to the business. He stated that the applicant did meet the classification criteria for a formula business as they have over thirty-one (31) locations throughout the United States. He stated that the Town ordinance required any business that has more than eight (8) stores that carry similar merchandise or trademarks meet the criteria for formula business for retail. He stated that since they met that criteria, staff asked the applicant to submit a Conditional Use Permit application for a formula business.
Director Garman stated that in order for the applicant to be approved, the business must be located in a unit that was less than 3,000 square feet, in a building that houses one (1) other business that was not a formula business and could not have more than fifty (50) linear feet of street frontage. He stated that The Fudgery met all of the criteria. He stated that the Planning Board and staff looked at the impacts of the business, such as the location of The Fudgery at 1177 Duck Road and the other businesses in Town that meet the formula business criteria.
Director Garman stated that the Planning Board had an issue with whether the business would result in an over-concentration due to The Fudgery also being located at Scarborough Faire. He stated that the language in the ordinance was not specific as to what was intended in the definition of “over-concentration”. He stated that they looked at the visual impacts as well as the type of products offered and how they would compete with other locally-based businesses. He stated that staff found very minimal impacts. He added that the Planning Board and staff recommended approval of the Conditional Use Permit.
Town Attorney McRee asked Council if they had any questions for Director Garman.
Mayor Pro Tempore Thibodeau asked if any of the other formula businesses in Town have come before Council for a Conditional Use Permit or if they were grandfathered when the ordinance was developed. Director Garman thought they were already in existence prior to the development of the ordinance.
Town Attorney McRee asked the applicant if he had questions for Director Garman. There being none, he instructed the applicant to present his case.
Ace Marshall of The Fudgery was recognized to speak. Mr. Marshall stated that he wanted to open the additional store because it was a larger space. He noted that his store was one of the first stores that opened in Scarborough Faire. He stated that because his store was towards the back of the shopping center, it hurt his business in the evenings as people do not realize it’s there. He stated that the size of the new space would allow him to expand the use by providing different flavors of fudge, additional drinks and coffee related drinks.
Mayor Morrison asked Mr. Marshall if he was going to close the store at Scarborough Faire. Mr. Marshall stated he was not.
Councilor Smith asked if The Fudgery was the first one that had opened. Mr. Marshall stated it wasn’t but was the fourth (4th) and oldest remaining store in operation.
Councilor Caviness asked how many stores Mr. Marshall owned. Mr. Marshall stated he owned thirty (30). Councilor Caviness asked if they were all nearby. Mr. Marshall stated they were mostly in tourist destination areas such as Myrtle Beach, South Carolina; Orlando, Florida and Branson, Missouri.
Mayor Pro Tempore Thibodeau asked where the first location was opened. Mr. Marshall stated it was in Sea Holly Square in Kill Devil Hills.
Councilor Wessel asked where their corporate headquarters was located. Mr. Marshall stated it was in Gainesville, Georgia.
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 thought staff wanted Council to focus on over-concentration. She thought one of the contentions of the ordinance was to have a way to control or review any formula business in order to have a mechanism in place to monitor and tone it down so Duck would stay unique looking. She felt that the store would fit in with the ordinance regulations.
Councilor Smith stated that he originally wondered why Mr. Marshall would want to open another store so close to the first one but thought it made sense due to the extra space. He thought both stores would be completely different. He agreed with Mayor Pro Tempore Thibodeau comments.
Councilor Wessel agreed that there wasn’t an over-concentration. He didn’t see any reason not to allow the second store in Town.
Councilor Caviness thought the questions that the Planning Board and staff asked Council to consider were worthwhile, such as the impact of the same business being in separate locations in Town. She agreed that Council wanted to be mindful of appearance and visibility but thought competition was another big point. She noted that if a large book seller moved into Town, it would present a hardship to the two (2) independent book sellers that are currently in business. She thought there was some discussion about it and that Council was concerned and wanted to preserve the independently owned and operated businesses in Duck as well as the experience of Duck by the tourists. She stated that she did not have any angst with The Fudgery locating to the Scarborough Lane Shoppes.
Mayor Pro Tempore Thibodeau didn’t know when the right time would be for discussions on the larger issues that Councilor Caviness brought up. She thought the ordinance provided some methods to restrict people that may not want to come in to a smaller store in Duck. Councilor Caviness stated that when Council discussed the ordinance originally, the issue was discussed at length.
Councilor Wessel felt The Fudgery was capturing the intent and goal of the ordinance. Councilor Caviness agreed. Town Manager Layton pointed out that it was cutting edge ordinance and met the purpose it intended as it did not outright ban formula businesses.
Motion carried 5-0.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
Request to Hold a Public Hearing on Ordinance 08-02, an Ordinance Amending Section 156.092 of the Code of Ordinances of the Town of Duck, North Carolina, Related to Off-Street Parking Requirements for Single-Family and Two-Family (Duplex) Dwellings
Director Garman stated that the issue was brought to the attention of one of the Planning Board members who asked that it be brought before Council. He stated that Council referred the issue to the Planning Board who discussed it at their March 12, 2008 meeting. He stated that the question was raised if it was intended for multiple curb cuts and circular driveways to be prohibited. He stated that some of the standards were changed with regard to lot access width as it was limited to twenty (20) feet. He stated that staff had been interpreting it as cumulative, so no matter how many cuts are on a lot, they couldn’t be wider than twenty (20) feet. He stated that the Planning Board made a finding that it was not the intent of the ordinance to limit those and wanted to create standards that would allow them, however they didn’t want them to get out of control. He stated that the Planning Board came up with a standard that if there was one (1) curb cut, it could be between twelve (12) and twenty (20) feet wide and two (2) curb cuts would be up to twenty-four (24) feet wide. He stated that the Board also came up with the separation requirement where if there were two (2) cuts, they would have to be at least twenty-five (25) feet apart. He stated that the Planning Board recommended approval of the ordinance.
Mayor Morrison clarified that Council had to authorize a public hearing for May. Town Manager Layton stated he was correct.
Councilor Smith moved to authorize a public hearing on Ordinance 08-02 for the May 7, 2008 Council meeting.
Motion carried 5-0.
NEW BUSINESS
Discussion/Consideration of the Renewal of the Lease between the Town of Duck, North Carolina, and Allis Holdings, LLC for Town Administrative Office Space
Town Manager Layton stated that since the Town incorporated, the Administrative Offices have been located at the Waterfront Shops. He stated that the original lease will expire on April 30, 2008 and would need to be renewed. He stated that the lease agreement would have a monthly increase of $210.65, making the rent go from $2,416.00 to $2,626.65 a month. He added that the lease agreement totaled three (3) years with a one (1) year initial term and option to renew for the additional two (2) years. He noted that it was not guaranteed that the Town would receive an extension after the one (1) year is up.
Mayor Morrison asked if the options to renew could be taken one (1) at a time. Town Manager Layton stated they could. He stated that there were several businesses that were interested in renting the space, which was one of the reasons for looking at the lease on a year by year basis.
Mayor Pro Tempore Thibodeau asked if the rent could be changed each year. Town Manager Layton stated it could, but he didn’t expect anything significant.
Mayor Pro Tempore Thibodeau moved to approve the lease agreement as presented.
Councilor Wessel asked if there had been discussion of separating the rent into two (2) since the Town was renting two (2) separate spaces. Town Manager Layton stated that both spaces were considered as one (1).
Motion carried 5-0.
Discussion/Consideration of Revisions to the Town of Duck Fee Schedule Effective July 1, 2007
Town Manager Layton stated that when the fee schedule was adopted, it increased many of the permit fees that were in place since 2003. He stated that as part of the process, staff sought to simplify some areas and found it was simplified too much in some cases. He stated that staff was finding a good argument for a range of fees in areas where it was expected as it was realized that there were additional fees that met the criteria where a graduated system would better serve the citizens and would not be a detriment to the Town. He stated that most the recommended changes were mainly simplifications and clarifications as opposed to changes. He noted that the changes did not increase any of the fees.
Mayor Pro Tempore Thibodeau clarified that the conditional use special exception amendment was not in the previous fee schedule. Town Manager Layton stated that it was more of a clarification.
Councilor Wessel stated that he did not see any specific references to walkways or sound accesses. He asked if they were part of the Land Disturbance permit fees. Town Manager Layton stated they were.
Mayor Pro Tempore Thibodeau clarified that there wasn’t originally a minor home occupation fee in the schedule. Town Manger Layton stated that she was correct and that it was an oversight.
Councilor Wessel moved to approve the revisions to the Town of Duck Fee Schedule as presented.
Motion carried 5-0.
Discussion/Consideration of Resolution 08-02, a Resolution of the Town of Duck, North Carolina, Designating the Building Inspector as the Fire Prevention Inspector
Town Manager Layton stated that recently there had been a rash of people installing fire sprinklers in their commercial buildings. He stated that staff found some confusion in the construction industry as to who was responsible for the inspections. He stated that in some municipalities it was the Fire Marshall who was also the Fire Inspector. However, Duck handles it with the Building Inspector being the Fire Inspector. He stated that both Fire Chief Donna Black and Building Inspector Cory Tate were getting calls for fire inspections and because of that, it was realized that it would be in the Town’s best interest to go forward with officially designating the Building Inspector as the Fire Prevention Inspector. He noted that it did not relieve Fire Chief Black of her duties.
Mayor Morrison asked what the difference was between a Fire Inspector and a Fire Marshall. Town Manager Layton stated that the Fire Marshall was a County position. He stated that he could not find any indication where a municipality could have a Fire Marshall. He stated that a Fire Marshall position would expand the role of the Inspector in a manner that he wouldn’t be comfortable with.
Councilor Caviness asked if fire inspections were being handled completely by the Town. Town Manager Layton stated it would be part of the system that the Town would have responsibility for, but the Fire Inspector would work with Chief Black. Councilor Caviness asked if the Fire Marshall was doing any inspections in Duck. Fire Chief Donna Black was recognized to speak. Fire Chief Black stated that he wasn’t. She stated that the issue was more a point of clarity.
Mayor Pro Tempore Thibodeau asked if the Town had to report back to the Fire Marshall. Town Manager Layton stated that the Town could rely on the Fire Marshall for assistance, but fire inspections as part of a building-related project was the Town’s responsibility.
Councilor Caviness asked if the schedule for inspections was the same for any business or defined by the business. Fire Chief Black stated they were defined by the business.
Mayor Pro Tempore Thibodeau moved to approve Resolution 08-02 as presented.
Motion carried 5-0.
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 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 Communications Survey
Town Manager Layton stated that as part of the Retreat discussions as well as Council meetings after it, it was determined that communication with the Town’s stakeholders needed to be improved. He stated that an internet survey was suggested, asking how best the Town could communicate with the stakeholders. He stated that Public Relations Coordinator Kathy McCullough-Testa came up with a survey instrument which was in Council’s packets. He felt it would be a good first run and would be something staff could learn from. He stated that the intent was to launch the survey by mid-April and around the end of the month the next newsletter would go out with a hard copy of the survey for people to respond.
Mayor Pro Tempore Thibodeau thought the survey was terrific and very well thought out. She stated that she had some grammatical changes that she wanted to suggest. Town Manager Layton asked her to mark the changes and he would pass them on to Public Relations Coordinator McCullough-Testa.
Update on Municipal Property Master Plan Implementation/Town Hall Design – Ribbon Cutting for Boardwalk May 1, 2008, 3:30 p.m.
Town Manager Layton stated that things were being cleaned up at the boardwalk. He stated that everything else was ready to go for the season and staff was waiting for the contractors to finish the gateway to the boardwalk. He stated that once the equipment was removed, landscaping would be completed.
Town Manager Layton stated that there will be a ribbon cutting ceremony on May 1, 2008 to launch the boardwalk. He expected the entire boardwalk to be open before that date. He suggested doing something very simple, utilizing the picnic shelter for refreshments after the ceremony as well as having invitations for the ribbon cutting. He stated it would be scheduled later in the afternoon to allow children and the general public to attend. He noted that property owners along the proposed extension of the boardwalk would be invited.
Mayor Pro Tempore Thibodeau asked if the Visitors Bureau would be invited. Town Manager Layton stated they would. Councilor Caviness suggested that members of the Institute of Government that helped the Town with their incorporation be invited. Town Manager Layton stated he would make sure they were.
Town Manager Layton encouraged Council and the audience to go out and walk the boardwalk.
Update on Commercial Recycling
Town Manager Layton stated that he had met with Waste Management officials the previous month. He stated that he wished to begin a pilot project for recycling, focusing specifically on areas where trash containers could easily be removed and replaced with a recycling one. He stated that the recycling would be picked up every Thursday and would not cost the Town any additional funds. He stated that the areas to be focused on would be the Waterfront Shops, Scarborough Lane, Scarborough Faire and the Village Square Shops/Carolina Designs. He stated that a recycling container would also be placed at Duck Deli due to the volume of cardboard boxes at that site. He stated he would like to get the program started, having the start date be May 8, 2008. He noted that Sunset Grill would be another site but he had not heard back from them. He stated he would send letters to the owners, letting them know the intent of switching out the containers.
Mayor Pro Tempore Thibodeau asked when the containers would be switched. Town Manager Layton stated it would be a week before the start date. Mayor Pro Tempore Thibodeau asked if they would be a different color. Town Manager Layton stated they would be marked as recycling containers.
Financial Statement for the Month of March 2008
Town Manager Layton reviewed the financial statements with Council and the audience.
MAYOR’S AGENDA
Discussion/Consideration of Resolution 08-03, a Resolution of the Town Council of the Town of Duck, North Carolina, in Opposition to an Injunction to Prohibit Access to Cape Hatteras National Seashore Beaches
Mayor Morrison stated that there had been a motion by the Southern Environmental Law Center to obtain an injunction from the federal court to prohibit access to the Hatteras National Seashore beaches. He stated that the Dare County Board of Commissioners, the Tourism Board and every town in Dare County with the exception of Duck and Kitty Hawk had passed resolutions opposing the injunction. He felt it was appropriate to draft a resolution for Council’s consideration. Town Manager Layton stated that the Town of Kitty Hawk did not intend to consider a resolution until after the April 4, 2008 hearing.
Councilor Caviness thanked Mayor Morrison for bring the resolution forward to Council. She stated it was a ninety (90) minute discussion at the Tourism Bureau meeting the last time they met. She stated that it posed a great deal of concern for every community on the Outer Banks, as well as in Hyde and Currituck Counties.
Mayor Pro Tempore Thibodeau stated that the Outer Banks Association of Realtors and Homebuilders Association were opposed to the injunction as well. She noted that there was a negotiating rule-making committee that had been actively trying to find a compromise and the injunction would override any compromise. She thought it seemed severe.
Councilor Caviness stated that on May 8 and 9, 2008 at the Comfort Inn, there would be a public comment period on the issue regardless of whatever the outcome of the injunction. She encouraged Council and the audience to attend.
Councilor Smith asked who would be responsible for enforcing the injunction if it passes. Councilor Caviness thought it would be the National Park Service.
Councilor Wessel recommended adding Hyde and Currituck Counties to the resolution. Town Manager Layton stated he would add it.
Councilor Caviness moved to approve Resolution 08-03 as amended.
Motion carried 5-0.
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 he did not have anything to report.
Councilor Wessel asked if the letters regarding beach signs were sent out. Town Manager Layton stated they had. Councilor Wessel noted that owners were asked to respond by April 1, 2008. Town Manager Layton stated that the date had been changed to April 10, 2008. He stated that he had received approvals from approximately twenty (20) owners to date. Mayor Morrison asked if approvals were sought. Town Manager Layton stated that declinations were, but owners were contacting staff giving their approval.
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 the attorney/client privilege between the attorney and the public body, which privilege is hereby acknowledged.
Motion carried 5-0.
The time was 8:34 p.m.
OTHER BUSINESS
Upon return from closed session, Town Manager Layton stated that the next meeting would be the mid month work session on Wednesday, April 23, 2008 at 1:00 p.m. He added that it would be held a week later than normal.
There being no further business to discuss, Mayor Morrison moved to adjourn the meeting.
Motion carried 5-0.
The time was 8:54 p.m.
____________________________
/s/ Lori A. Kopec, Town Clerk
Approved: May 7, 2008
_______________________________
/s/ Neil Morrison, Mayor