The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, September 12, 2003.

Present were Ron Forlano, Chair, Linda Nave, Vice Chair, John Jenkins, Marilyn March and Jon Britt. Also present were Suzanne Cotellessa, Planning Director/Zoning Administrator, Chris Layton, Town Manager, Neil Morrison, Duck Town Council , Ike McCree, Town Attorney, and Sandy Cady, Administrative Assistant.

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

PUBLIC COMMENTS

Mr. Forlano opened the meeting for public comments.

No public comments were made.

OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS

DISCUSSION OF ZONING TEXT REGARDING NONCONFORMING PROPERTIES:

Planning Director, Sue Cotellessa, opened the discussion by refreshing the Board on the topics discussed at the last meeting. The board at that time decided that they wanted to get a better handle on what the Town Council was looking for the Board to do with respect to amending the zoning regulations regarding nonconformities. The Town Council wants the Board to review and study the issues and then provide a recommendation to Council.

One of the concerns expressed at the last meeting was obtaining legal advice; how different localities deal with nonconforming issues, and what the general consensus was regarding these properties. Ms. Cotellessa discussed Agenda Item 3A which was a matrix detailing the regulations adopted by surrounding jurisdictions. Ms. Cotellessa further indicated that despite requests to those surrounding jurisdictions, she was unable to secure any further feedback regarding the matrix she had prepared and her interpretation of their regulations. Ms. Cotellessa pointed out specifically that there are two different types of rules from the different jurisdictions. The first column reflects what the different localities allow you to do to nonconforming properties; can you add on to them in anyway, can you modify them, if you can modify them, to what extent? The Town of Duck’s regulations generally say that you can modify a nonconforming structure so long as you do not increase its nonconformity. Most of the other jurisdictions allow some improvement to nonconforming properties, but many of them limit, within a twelve (12) month period, the extent in which you can improve the property. The surrounding jurisdictions are very tight with regard to what you can do with nonconforming properties. The second column of the matrix deals with whether or not you can re-build a nonconforming structure, and under what circumstances you can do so. In some localities, if the property is more than 50% destroyed, you can only rebuild it in accordance with the current ordinances. Some of the other jurisdictions have differing percentages, allowing single families to be re-built, but not commercial properties. Still other jurisdictions have disaster ordinances which allow a special hearing by the Board of Commissioners to rebuild properties that are more than 50% destroyed.

Having provided an overview of the subject, Ms. Cotellessa introduced Ike McCree, Town Attorney, to provide the Board with a brief history and status regarding nonconforming use regulations.

Ike McCree stated that the history of nonconforming regulations date back as far at the 1930’s, at which time, it was ruled that there would be no nonconforming properties and that immediate compliance was required when regulations were changed. This was the history of nonconforming properties until the Courts made a distinction between policing and zoning.

As a standard, nonconforming uses are not favored in law. Therefore, having recognized that it is necessary to amend or adopt an ordinance in the interest of the public health, safety and welfare, there is the belief and reasoning that something that is in violation of that ordinance or amendment should cease to exist, either immediately or some time in the future. Consequently there are three (3) standard methods of dealing with them:

a) immediate compliance;
b) grandfather clause –
           allows for the nonconformity to continue to exist with restrictions relating to enlargement, intensification and use until such time as deemed by the ordinance;
c) amortization process –
           allowing the property a specified number of years before compliance is necessary.

The goal is to eventually remove all nonconforming properties, keeping in mind that zoning is not a contractual agreement between a community and citizens or property owners. Further, there can be no expectation that zoning ordinances will never change.

Items to consider:

a) ability and/or inability to enlarge and/or intensify a property;
b) what does the community want?
c) what extent of nonconforming properties will be allowed to continue?
d) the extent of repairs to nonconforming properties that will be permitted;
e) change in use provisions – must nonconforming properties cease?
f) Resumption/abandonment of nonconforming use/properties after a specified number of days??

Leeway is given to the policy makers in determining the zoning regulations, consideration should be given to all aspects including the equity and fairness argument. Mr. McCree pointed out from the matrix prepared by Planning Director Cotellessa that while each of the jurisdictions regulations are similar in nature, they have each molded their own regulations and procedures on how to deal with these situations as it relates to their specific needs.

Planning Director Cotellessa addressed the Board indicating that they need to narrow down the specific issues as we plan to go forward with a recommendation to Council; i.e. dimensional regulations, setbacks, parking, number of bedroom requirements, etc. She further discussed the current regulations and how they will impact pools and large houses that do not have enough parking. Under the Town’s current regulations, there is already a certain amount of grandfathering and continuation allowed for small lots of record. If these nonconforming properties are destroyed, do we let them rebuild? Do we want to consider a disaster ordinance? Do we want to leave the Ordinance as is? Or can we do something in between? Do we want to set specific requirements for single family homes vs. commercial structures, principal structures vs. accessory structures?

Mr. Forlano confirmed that the Board can pick and choose from all of the nonconforming issues.

Planning Director Cotellessa emphasized that the Board needs to determine what the Town wants to accomplish in terms of how the Town will look in the future, while balancing that against protection of economic interest. Planning Director Cotellessa further stated that she felt the Town’s current regulations are reasonable and generous with respect to nonconforming properties. It is a policy decision as to whether or not we want to loosen them further or tighten them. The Board needs to keep in mind that the ultimate goal of nonconformities is for them to go away.

Mr. Forlano invited the members of the Board to discuss the issues set forth by Planning Director Cotellessa.

Board Member Britt questioned the effects of the new setback requirements.

Planning Director Cotellessa indicated that the largest issue will be the pools and parking.

Board Member March commented “you can’t have your cake and eat it too”. If it doesn’t fit, you just can’t have it.

Planning Director Cotellessa added that many of the contractors and engineers are learning to adapt to the new regulations, using quite clever ways to meet the Town’s dimensional and setback requirements when it comes to parking, septic and pools.

Mr. Forlano asked for suggestions.

Planning Director Cotellessa suggested that she craft something that looks at maintaining the important features of the large residential structure ordinance, again encouraging them and/or requiring them, to the extent possible, to conform in terms of rebuilds and add-ons, and eliminating exceptions for accessory structures.

Mr. Forlano inquired as to whether these will be within the same time limitations that were previously discussed, and then what happens after thirty years or twenty five years to these nonconformities.

Planning Director Cotellessa stated that you can set a date deadline for conformity. This means that nonconforming properties will be permitted up to “x” date, but after that date, the nonconformity must meet the full code. This is one way to utilize the amortization that Mr. McCree spoke of. The other way is to say in perpetuity, if you own and keep in good repair a nonconforming structure, and if there is a casualty loss, then there should be special accommodations.

Mr. Forlano questioned, rather than considering nonconformities in perpetuity, can we look at them like banks do. For instance when they give you a loan, they do it for a period of time and then they review your loan, at which time, they will determine what they will do for the next 5-10 years. He asked if we could put language in the ordinance specifying dates for review before expiration?

Planning Director Cotellessa indicated that specifying dates can be done, but recommended avoiding specific date limitations, and emphasized the need to establish rules that are rational with respect to treatment of these nonconforming properties and what the important features of them are.

Mr. Forlano asked for other comments from the board and none were offered.

Mr. Kevin Schwartz was recognized to speak. Mr. Schwartz clarified a recent change in the Nags Head ordinances, stating that Nags Head allows 100% rebuilding resulting from catastrophe, believed to be in perpetuity.

Planning Director Cotellessa indicated that by next meeting she will make sure that all of the jurisdictions have responded to her matrix to confirm their regulations.

Mr. Forlano commented that he is worried about the perpetuity clause.

Planning Director Cotellessa commented that “in perpetuity” may not be something that the Board wants to recommend so she will prepare it both ways.

NEW BUSINESS

a) Major & Minor Home Occupations

The Board briefly discussed resident businesses and the distinction between major and minor home occupations.

Planning Director Cotellessa stated that minor home occupations set specific limitations on the amount of space in the home that can be used, identified the type of businesses that cannot be considered minor, and indicated that there would be no signs whatsoever.

Planning Director Cotellessa said that major home occupations are characterized by the following:

1) the need for additional parking;
2) employees coming and going from the home;
3) foot traffic/customers;
4) hours of operation/signs, lighting

Planning Director Cotellessa further stated that resident businesses and major home occupations in commercial areas will be required to obtain a conditional use permit.

Mr. Forlano questioned whether Jay Ball is a resident business or whether he is a minor home occupation.

Planning Director Cotellessa advised that he is actually a major home occupation. Jay Ball obtained a conditional use permit for his business; people come to and from the house; he might have an employee in the business; and his business is subject to a series of conditions set by the Council. He actually has two (2) businesses; he has a sign business and a bed and breakfast, and both are conditional use permits.

Mr. Forlano raised the question of eliminating major home occupations in residential zones.

Planning Director Cotellessa advised that we do not have to allow major home occupations anywhere, but by providing an ordinance for same allows and provides Council with the opportunity to review the requests on a case-by-case basis. Not allowing the use entirely, precludes the Council from reviewing something that may be a reasonable and beneficial use to the community. There is always the potential for a negative impact on the community, but that is the whole purpose of this conditional use permit. The Council can always say no.

Board Members Britt and Nave suggested leaving the major home occupation in the amendment.

Mr. Forlano clarified that minor home occupations do not eliminate legal and medical businesses.

Planning Director Cotellessa advised that minor home occupations set specific performance limitations, so while legal and medical are not necessarily precluded in the minor home occupations, they are not likely to be minor occupations if customers come to the house. Planning Director Cotellessa further clarified that any existing minor/major home occupations, without permits, would need to obtain permits following this amendment.

Board Member March moved to recommend to the Town Council that the zoning text amendment regarding minor and major home occupations be approved.

Board Member Jenkins excused himself from the vote due to his personal interest as an independent real estate broker.

Motion carried 4-0.

b) Sexually Oriented Businesses (herein after referred to as “SOBs”)

Planning Director Cotellessa began the discussion by advising the Planning Board that while the moratorium regarding SOBs does not expire until November, 2004, there are extensive issues to be studied, and material to be reviewed as evidenced by attachments included with this Agenda item. Planning Director Cotellessa further explained that there could be legal ramifications if this ordinance was not addressed thoroughly and meticulously.

Planning Director Cotellessa indicated that she intends to begin condensing the extensive findings and court cases so that we can make sure that the language in the zoning ordinance deals specifically with the types of businesses that will be restricted. She further indicated that legal advice will be necessary to make sure the ordinance is crafted properly.

Mr. Forlano addressed Mr. McCree with the question, “..legally, can we categorically restrict them?”. Mr. McCree indicates that there is a U.S. Supreme Court case from 1981 which does seem to suggest that you can totally ban SOBs in your jurisdiction if there are alternative sites available in nearby jurisdictions.

The Board discussed Currituck County’s ongoing situation with Mermaids and Mr. McCree brought up the point that Currituck County has been battling with Mermaids for over ten (10) years, and has won in the North Carolina Court of Appeals two (2) times, yet Mermaids remains open. Mr. McCree raised another U.S. Supreme Court case from a couple of years ago that said you can do a number of things to regulate these businesses such as requiring that their lights stay on and requiring that their dancers remain fully clothed.

Planning Director Cotellessa raised the issue of free speech which must be considered when planning for this ordinance.

APPROVAL OF MINUTES

Mr. Forlano made mention of two corrections on page 4 (last paragraph) of the minutes; one of which was a comment made by Planning Director Cotellessa. Mr. Forlano reads “Planning Director Cotellessa explained that variances are used strictly to keep nonconforming structures alive.” and questions whether that should say “are not used”.

Planning Director Cotellessa 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.

Mr. Forlano further mentions on page 4 also (top paragraph), a comment made by John Jenkins wherein the minutes reflect the Mr. Jenkins believed there were nonconforming issues with regard to Advice 5 Cents, when in fact, the minutes should reflect that there were not any nonconforming issues.

Planning Director Cotellessa indicated the necessary changes would be made.

Board Member March moved to approve the minutes from August 8, 2003.

Motion carried 3-0; Board Members Nave and Britt abstained from the vote because they were not present at the August 8, 2003 meeting.

OTHER BUSINESS

Planning Director Cotellessa advised that the Commercial Development Questionnaire was up on the web-site now. The Consultants are working with the information obtained to date, specifically the complete surveys (21) obtained at the fire house; however, the Town has not yet seen any of the raw data from the consultant.

STAFF COMMENTS

Planning Director Cotellessa introduced administrative assistant, Sandy Cady. She further made mention to the Board that she planned to address sign issues as a major focus in the upcoming months.

BOARD COMMENTS

None.

ADJOURNMENT

Mr. Forlano moved to adjourn the meeting.

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

Approved: ______________________________________________
                  /s/Chair