The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, August 8, 2003.

Present were Ron Forlano, Chair, John Jenkins and Marilyn March. Also present were Suzanne Cotellessa, Planning Director/Zoning Administrator, Chris Layton, Town Manager and Neil Morrison, Duck Town Council.

Linda Nave, Vice Chair was absent due to a family emergency. Jon Britt was absent due to a fire department call.

Mr. Forlano called the meeting to order at 2:00 p.m.

PUBLIC COMMENTS

Ron Forlano opened the meeting for public comments.

There being no one wishing to speak, Mr. Forlano closed the time for public comments.

OLD BUSINESS

DISCUSSION OF ZONING TEXT REGARDING NONCONFORMING PROPERTIES

Ron Forlano asked for old business items. Planning Director Sue Cotellessa went over the attachments to the Planning Board packets in regard to nonconforming properties. She stated the first attachment in regard to nonconforming uses had typographical errors, which she corrected.

Planning Director Cotellessa stated that she understood from the Town Council that the Planning Board members were charged with looking at the issue of nonconformities, specifically with respect to a natural disaster and what would happen if the Town were hit by a hurricane and buildings were destroyed. She stated she had done some research on disaster planning and how nonconformities are treated in general communities. From a planning perspective, nonconformities are to be rebuilt in accordance with the code, even after a hurricane. Every ordinance she read all had the 50 percent rule, where if a building is destroyed by a hurricane and would be rebuilt, it would have to meet the current codes – building, flood and zoning. She stated she read several cases where there was a push in a community when a disaster happened, that people wanted things back as quickly as possible to the way they were. Planning Director Cotellessa presented the Planning Board with language in a draft ordinance that deals with a declared disaster. It states that all language in regard to nonconformities is invalid at this point for a short period of time, to let the building be put back the way it was. However, a person cannot come back 20 years later and ask to rebuild the home to the way it was. She stated she has seen ordinances in other towns that have a shorter rebuild time. Planning Director Cotellessa stated she felt the intent of the Planning Board was to have the Town Council look at the issues from that perspective. She felt it was not necessarily good planning and thought that if the community decides it wants to design the community a certain way and pass good rules, then all should get an equal “playing field” with the rules. A hurricane or disaster offers an opportunity to accomplish the change in rules. Planning Director Cotellessa recommended not changing that, due to the public push during a disaster to put things back the way they were. She asked the Planning Board members to ask themselves if they are going to let people build with the new rules or for a short time allow homes to be rebuilt the way they were.

Planning Director Cotellessa gave some examples of rebuilding nonconforming homes with the old rules and with the new rules. She felt that people who have had their homes for 20 years or more, may decide they don’t want their homes built the way it was and would want changes to improve the home. She stated the 50 percent rule exists due to flood insurance regulations, which state a home can be rebuilt in accordance with the flood regulations, which could mean elevating the home.

John Jenkins asked if the national flood insurance rules cover CAMA setbacks. Planning Director Cotellessa stated the flood insurance rules and CAMA setbacks are two different things. Mr. Jenkins asked if they were separate issues. Planning Director Cotellessa stated they were. Flood insurance regulations have to do with elevating a home out of the flood level. She brought up a scenario of having an older beach house that is over 30 years old that is in the flood zone and is destroyed by more than 50 percent. Flood insurance would require the home be rebuilt and raised above the flood level. The Town’s regulations would let the home be rebuilt exactly as it was, which could not be done in order to meet the flood insurance regulations. The home would also have to be rebuilt in accordance with the new building code.

Ron Forlano asked why the language in the draft ordinance states the home has to be built to the same configuration. Planning Director Cotellessa stated the theory is a person can keep what they have, but cannot change it. Mr. Forlano asked if the home could be reconfigured internally. Planning Director Cotellessa stated the existing ordinance is more liberal than most. In most jurisdictions, a person cannot alter a nonconforming building, which means changing the configuration. Duck’s ordinance allows a person to alter it, as long as it has not expanded or expended the degree of nonconformity.

Planning Director Cotellessa recommended treading very carefully in what needs to be done. She felt the regulations were very open and generous with respect to small lots and nonconforming uses. She felt the only thing that would need to be dealt with is a whole sale loss of structures resulting from a natural disaster.

Ron Forlano asked if the draft ordinance was drafted just strictly for natural disasters, i.e. a hurricane. Planning Director Cotellessa stated it couldn’t be one house that is hit by lightning or a wildfire. If the Town were declared a natural disaster, the ordinance would apply.

Mr. Forlano asked if it is the Planning Board’s job to look at just natural disaster wipeout or should they look at the nonconforming issue as a whole. Planning Director Cotellessa stated the Planning Board should look at the ordinance as a whole as opposed to the individual sentence that indicates how many bedrooms a homeowner could have. A clause was put in with regard to number of bedrooms that states that an 8-bedroom home could be rebuilt as long as it meets the ordinance requirements. Council had raised a concern in regard to a natural disaster and what would happen to the homes affected by one. The language was put in to give time for the Planning Board to work on the ordinance.

Councilor Morrison stated he thought the language would mean any natural disaster; such as a tidal wave, fire, meteor, etc. and not just hurricanes. Ron Forlano stated that the language is in the present ordinance. He asked if the new ordinance drafted was strictly for hurricanes. Planning Director Cotellessa stated he was correct and that it also applied for any declared natural disaster. Mr. Forlano asked if it referred to one single structure being hit. Planning Director Cotellessa stated the Town already has regulations with respect to single buildings that limit the time in which they can be rebuilt.

Ron Forlano asked if the cost of repair has to be greater than 50 percent. Planning Director Cotellessa stated that if the cost of repair is less than 50 percent, it could be repaired automatically.

John Jenkins asked who determines the replacement cost. Planning Director Cotellessa she would take the tax records to a certified appraiser and have them give a valuation.

Ron Forlano asked if a building could be damaged more than 50 percent without it affecting the structural strength and stability of the building. Planning Director Cotellessa stated it could. If the home is flooded and damaged by more than 50 percent, the National Flood Insurance regulations would not allow a homeowner to rebuild the home unless it met the regulations, which could mean raising the structure. John Jenkins stated that flood insurance is limited to the number of claims that are made. Planning Director Cotellessa guessed that is why most communities use that as a rule with nonconforming properties.

John Jenkins asked why removal of debris from destruction is not in the ordinance. He asked if it should be included or if it was in another section of the ordinance. Planning Director Cotellessa stated the ordinance would let a homeowner go two years to get a building permit to get things started and another two years to finish building the home, giving a homeowner four years to put back what they had from the date of the disaster.

Kevin Schwartz was recognized to speak. Mr. Schwartz asked if nonconforming lots on record prior to 1975 would be protected and would the section of the ordinance in regard to the lots be retained. Planning Director Cotellessa expected the section would be retained.

Ron Forlano asked if there are any properties in Duck that are nonconforming uses of land. Planning Director Cotellessa stated she thought there were probably a few.

John Jenkins asked why Colony By The Sea is nonconforming. Planning Director Cotellessa stated that the building district does not allow condominiums. The condominiums were built prior to the change of the regulations that would remove condominiums. Mr. Jenkins stated the condominiums were built on 16 acres and the number of units in the 4 buildings complies with the code that Dare County had as far as units per acre. Planning Director Cotellessa stated at some point the regulations were changed with respect to the zoning district and removed condominiums as a use in the district. Kevin Schwartz stated that there are several districts in Duck with similar regulations.

John Jenkins stated that village commercial has minimum lot sizes of 20,000 square feet and some that are smaller. He stated it also applies to the S-1 district, which consists of Advice 5 Cents Bed and Breakfast and the lot across the street from it. Planning Director Cotellessa stated that all uses are permitted in an S-1 district and no non-conforming uses could be had.

Ron Forlano asked if there were any non-conformities in an S-1 district. Planning Director Cotellessa stated there might be non-conformities but not necessarily with respect to use. John Jenkins asked if the S-1 is flexible. Planning Director Cotellessa stated it was but there might be structures that are non-conforming due to not meeting the setback requirements.

Ron Forlano asked if anything happened to Advice 5 Cents, does it have a duration for non-conformity of 15 years. John Jenkins stated he sold the lot to the present owners and the home only has 5 bedrooms, but has a capacity of 10. Mr. Forlano asked if there were any non-conforming issues. Mr. Jenkins believed there were not.

Ron Forlano stated he was reading through the non-conforming issues and questioned the time limits going back to 1997. He asked if, in regard to restaurants, the non-conforming issue only has 33 years left. Planning Director Cotellessa stated there was 40 years total. She stated the rules were a reasonable amortization of the life of a structure. It doesn’t mean that after the time period, that the buildings have to be torn down, it means that after that time if they are not kept up and have fallen into disrepair, they cannot be replaced except in conformance with the Town’s current regulations.

Ron Forlano asked about residential structures and their non-conformity time limit. Planning Director Cotellessa stated all structures in general with the exception of those called out, that are non-conforming, do not have a time period in which to reconstruct; it must meet current regulations. She stated that this is standard non-conforming structure language.

Marilyn March asked if a home is destroyed by a natural disaster, does the homeowner have a year to rebuild. Planning Director Cotellessa stated that that is exactly what the ordinance says and that she is not in support of it. Ms. March stated she felt the language was contradictory. Planning Director Cotellessa agreed. She stated it provides a special set of rules for an occurrence that is of a widespread nature. She stated it puts a huge push on political bodies to put back what was there and recover the need. When lightning burns down a home, the push is not as great to change things.

Planning Director Cotellessa stated she would recommend not seeing the ordinance pass, but if it is the will of the Planning Board and Council, the Board should craft some language to “keep it tight”.

Ron Forlano asked if the current ordinance if tougher than the one being drafted. Planning Director Cotellessa stated the new one is an addition and not a replacement to the current one. The new one would add in provisions for a disaster, but not change what is currently in the ordinance. She stated the Town needs to be reasonable on a case-by-case basis.

John Jenkins asked if the Board knew how many lots were on record or how many subdivisions were on record as of November 20, 1975. Planning Director Cotellessa stated she didn’t know and that a majority of the information is not available on the tax records section of the Dare County website. She stated that she could try to get the information if he needed it. Mr. Jenkins stated he was curious as to what portion of Duck it would apply to due to many subdivisions being built after November 20, 1975.

Ron Forlano asked if a homeowner has a home with a swimming pool in the setback line that burns down, does the homeowner have to fill in the pool if they are going to comply. Planning Director Cotellessa stated that the homeowner would have to. Mr. Forlano asked if the homeowner could be given a variance for the pool. Planning Director Cotellessa explained that variances should not be used strictly to keep nonconforming structures alive. She recommended creating special non-conforming language with respect to setbacks for pools. Planning Director Cotellessa further clarifies that a variance, when it is granted, does not have an end date. If you grant a variance for a setback, you are granting that variance in perpetuity, so you are creating on that lot a nonconformity.

Ron Forlano asked if he put in a circular concrete driveway at his home, with the purpose avoiding backing out of his driveway onto N.C. 12, giving him more lot coverage than what is allowable, and his home burns down, would he have to remove his driveway. Planning Director Cotellessa stated she wasn’t sure how he was able to achieve more lot coverage than what was allowable. Mr. Forlano stated he put in the driveway without permission ten years ago. Planning Director Cotellessa stated that even if it was allowed, it is illegal. Mr. Forlano asked if it is presently non-conforming. Planning Director Cotellessa stated it is illegal. Kevin Schwartz stated the driveway is illegal because it was done without a permit and that a permit is needed. Planning Director Cotellessa stated a street opening permit from NCDOT is also required.

Ron Forlano asked what the Town Council wanted the Planning Board to do in regard to the ordinance. Planning Director Cotellessa stated that Council wants the Board to look at it and make recommendations. Councilor Morrison stated he believed the Council wanted the Board to look at the ordinance in respect to non-conforming situations. Planning Director Cotellessa stated that Council had asked the Board to look at the whole ordinance to see what needs to be done. She asked if the Planning Board wanted to recommend Council look at the ordinance with respect to anyone being able to rebuild what they have, which staff will recommend against.

John Jenkins stated he had no problem with the rebuilding language in the event of a lightning strike or fire and wouldn’t mind letting people rebuild their homes as they originally were. Ron Forlano stated he didn’t have a problem with it as well, as long as the time limits are kept in place. Marilyn March felt that the Board needed to know what kind of interest Council had with regard to the nonconforming properties and what they want.

Planning Director Cotellessa recommended asking Town Manager Chris Layton to go to Mayor Gene Schwarz and see if a joint work session could be achieved. This way both groups could work to identify the policy direction that everyone wants to follow. Mr. Forlano felt that was a good decision. Marilyn March stated she is confused as to what Council wants from the Board. Mr. Forlano suggested having the joint meeting with the Council to find out what their thinking is in regard to the nonconforming properties. Town Manager Layton felt it was a good idea and is a big enough issue to warrant discussion.

NEW BUSINESS

Ron Forlano opened the discussion.

Planning Director Cotellessa stated that Council took the Board’s recommendations to look at minor and major conditional use permit applications. Ron Forlano asked what needed to be done. Planning Director Cotellessa stated a zoning text amendment would need to be done to split major and minor home occupation applications.

Ron Forlano closed the discussion.

APPROVAL OF MINUTES

Ron Forlano asked the Board if they had reviewed the minutes for July 11, 2003. The Board approved the minutes unanimously.

OTHER BUSINESS

Ron Forlano asked for other business.

There being none, Mr. Forlano closed the discussion.

STAFF COMMENTS

Ron Forlano asked for staff comments. Planning Director Cotellessa stated that the Conditional Use Permits for Finch and Harrison were approved by the Council as well as the zoning text amendment for the conservation-public recreation district and the Corps of Engineers rezoning to C-PR.

BOARD COMMENTS

Ron Forlano asked the Board for comments. There being no comments, Mr. Forlano moved for adjournment.

ADJOURNMENT

Ron Forlano moved to adjourn the meeting.

Motion carried 5-0. The time was 3:30 p.m.

Approved: ___________________________________
                    /S/ Chair