TOWN OF DUCK
PLANNING BOARD
REGULAR MEETING
October 8, 2004
The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, October 8, 2004.
Present were Chairman Ron Forlano,Vice-Chair Jon Britt, Marilyn March, John Jenkins and Anne Darnall. Also present were Town Council Liaison Neil Morrison, Planning Director/Zoning Administrator Suzanne Cotellessa and Administrative Assistant Sandy Cady.
Gene Schwarz, Town of Duck Mayor, Kevin Schwartz representing the Outer Banks Home Builders Association, a representative from BD&A and two (2) Duck property owners were also present for the meeting.
Chairman Forlano called the meeting to order at 2:00 p.m.
PUBLIC COMMENTS
None.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
A. Zoning Ordinance Review: Article VII. Administration and Enforcement – Discussion and Recommendation (Draft 10/1/2004)
Planning Director Cotellessa began the discussion noting that this particular zoning text amendment deals with Article VII. The changes that have been revised by the Planning Board thus far provide for the revocation of Conditional Use Permits and the procedure therefore. A provision has been added to allow the Town to impose fines for zoning violations; this is in addition to the legal recourse that is presently found in the code.
The main point still under discussion has to do with the regulations with respect to Model Homes and builder showcases. This particular issue is found on page 4 of the draft. The current provisions allow for temporary real estate offices so builders can showcase a model home, however that model must shut down once 80% of the lots in the subdivision have been sold.
Ms. Cotellessa pointed out that the language in the draft before the Board today was crafted based upon their input from previous meetings. The additional language that has been added in section (d) provides for a Conditional Use Permit process to allow model homes and builder showcases. This section further clarifies the types of impacts that should be addressed in granting the use; it further clarifies that this is different than a standard open house on an individual property and it also distinguishes when a Conditional Use Permit is not necessary.
Planning Director Cotellessa directed the Board members to Page 9 of the draft where she has made a new change that simply revises the notice of hearing requirements that are currently in the Town code so they reflect State code requirements. The Town of Duck currently requires that notice of hearing the first time must be no less than 15 days, nor more than 25 days prior to the hearing. The state code provides for 10 days and 25 days.
Vice-Chair Britt went back to the Model Home issue, and asked for clarification on how the Conditional Use Permit process would progress.
Ms. Cotellessa explained that all Conditional Use Permits run through the Planning Board and then on to Town Council.
Chairman Forlano questioned whether the first sentence of Section 56 dealing with Certificates of Occupancy read correctly.
After some discussion, Planning Director Cotellessa noted in the last part of the section “…the Building Inspector or…” should be deleted and it should be revised to read “…stating that the proposed use thereof complies…” .
Chairman Forlano had additional questions related to temporary certificates and the release of power.
Planning Director Cotellessa explained that there are other provisions in the code under Building for Temporary Certificates of Occupancy and those are supposed to be issued only in situations where the building has met all of the state building codes for final occupancy, but there are outstanding zoning issues that must be resolved. Additionally state building code says you cannot release power until a final certificate of occupancy has been issued. Ms. Cotellessa explained that there are other jurisdictions that will perform “pre-final” inspections and then release power, however that is prohibited by state code. The Town’s building inspector, Mike Goodwin, will not perform pre-final inspections nor will he release power prior to final occupancy.
Kevin Schwartz commented that the release of power prior to final occupancy is not prohibited in state code, however it is not expressly provided for either. Most contractors utilize the temporary pole to meet their building needs.
Chairman Forlano confirmed that all of the members were ok with the changes to this ordinance and asked for a Motion to send this to Council with the two minor changes on page 4 and page 9.
Gian Hasbrook, resident of Nantucket Village and BD&A representative was recognized to speak and noted two typographical errors that should be corrected on page 4, and Councilor Morrison noted a third typographical error on the same page. All errors were to be corrected by Planning Director Cotellessa.
Chairman Forlano asked the Board again if they were happy with the changes and whether they had a motion to recommend to Council.
Vice-Chair Britt asked Planning Director Cotellessa whether she was happy with the model showcase language.
Ms. Cotellessa expressed that this language provides for a process that calls for a Conditional Uses Permit that can be evaluated by elected officials on a case by case basis; it provides for identification of potential impacts and provides an avenue to allow something that is a reality on the Outer Banks. She believes it makes sense to provide for it rather than to try and fit it into a category that just does not work.
Vice-Chair Britt stated that he was happy with it.
Member Jenkins thanked Sue for a nice job on the model home language.
Member Jenkins further made a motion that the Planning Board recommend that the Town Council adopt an ordinance to amend Article VII of the Zoning Ordinance of the Town of Duck as proposed in the draft revisions of 10/1/2004 and as further amended this day.
Vice-Chair Britt seconded the motion.
Motion carried 5-0.
B. Zoning Text Amendment: amending Article I, Section 2, Definitions, and adding a new Section 29.1, Sexually Oriented Businesses, under Article II, Exceptions and Modifications Generally – Discussion and Recommendation (Draft 9/7/04)
Planning Director Cotellessa reminded the Board members that they studied this issued last fall and reminded them of the 6 inch packet of reading material they plugged through. That 6 inch packet addressed a series of findings and how various jurisdictions deal with the issue of sexually oriented businesses.
The draft ordinance before the Board has a lot of “Whereas” statements that detail why the Town is looking at this issue and why the Town is looking to deal with it in the way that is presented. The draft provides a series of definitions that are very similar to the ordinance adopted by Southern Shores several years ago. Many of these definitions are also similar to the definitions found in the state code relative to these types of issues. Essentially, the ordinance make a long series of findings, some medical findings, some findings with respect to the Town’s demographics and findings with respect to the impacts of these types of businesses on a community. The Ordinance ends with a prohibition on all sexually oriented businesses based on the findings contained therein.
Ms. Cotellessa explained that the Town is presently under a moratorium with regard to these issues and the moratorium is slated to end with the Town Council next month. Council is looking for the Planning Board’s input so they can move forward with this issue.
Chairman Forlano asked whether this ordinance as proposed has been tested on the 1st amendment right in most of the jurisdictions.
Planning Director Cotellessa explained that it has been in place for several years in Southern Shores; several different ordinances have been tested, but none that she is aware of locally. She noted that the ordinance has been reviewed and approved by the Town attorney for appropriateness with respect to constitutional issues and state issues.
Vice-Chair Britt briefly mentioned his recollections regarding this matter when Dare County enacted such an ordinance and at that time the 1st amendment right had not been tested in the state.
Planning Director Cotellessa commented that it is best to have something in place with respect to the direction that this Town wants to go.
Chairman Forlano asked whether there were any other comments from the Board.
There was no further discussion.
Member March made a motion that the Planning Board recommend that the Town Council adopt an ordinance to amend Article I., Section 2 Definitions, and adding a new Section 29.1, Sexually Oriented Businesses under Article II, Exceptions and Modifications Generally as proposed in the draft revisions of 9/7/2004.
Motion carried 5-0.
NEW BUSINESS
A. Zoning Text Amendment: Vertical additions to nonconforming properties – Introduction and Discussion (Letter from property owner recommending zoning text amendment and draft amendment language attached)
Planning Director Cotellessa advised the Board members that this is an issue that was brought to her attention by a pair of property owners in Poteskeet Village, Mike and Sandy Cusick. These property owners have purchased a fairly small old beach box and would like to upgrade the home. The house was previously a year round rental which has had several separate zoning enforcement issues with respect to junked cars and construction storage. The renters are now gone and the new homeowners simply want to make some improvements. The house was originally built before zoning setbacks were established and as a result, under the Town’s current ordinance, an expansion upward would not meet setbacks because it would be expanding the degree of nonconformity.
The language that Planning Director Cotellessa presented to the Board would allow for what she referred to as “pop-ups” or the ability to add an addition over an existing footprint. To provide an example, perhaps there is an existing house footprint with decking around; this language would allow you to pop the house up and put up another story of decking around but you would not be able to go out and up to where there is currently decking with the house. The footprint of the existing structure, minus the outside decking would have to remain the same.
Member Jenkins commented that this house is not the only one with this problem. There are several other houses in Poteskeet Village with similar situations. Member Jenkins stated that he felt good about approving this amendment.
Planning Director Cotellessa commented that Member Jenkins made an excellent point. She explained that because the Cusick’s situation is not unique in nature, they would fall short in trying to meet the requirements for a variance. This situation is not extremely widespread in Duck, but there are enough that this matter should be looked at more closely.
Member Britt questioned why Ms. Cotellessa put a date in the language.
Planning Director Cotellessa advised that July 6, 1982 is the date when zoning was adopted in Duck. Therefore, anything built after that date should meet zoning requirements.
Vice-Chair Britt commented about how zoning was handled back then.
Member Darnall suggested that the incorporation of the Town is when you can only really say that zoning started being checked and cleaned up.
Vice-Chair Britt indicated that he did not want to see someone penalized for something that may have been done back in 1983 or 1984 when zoning was not enforced.
Planning Director Cotellessa suggested perhaps going with July 3, 2002 as the cut off date because this is the date the Town adopted Dare County’s zoning ordinance.
Vice-Chair Britt and Member Darnall both agreed with that date.
Sandy Cusick was recognized to speak and explained their situation. She indicated that she and her husband would like to see the Board put codes in place to encourage homeowners to make renovations. They believe that they are proposing a common sense renovation that makes sense; it would allow them to make their property consistent with the rest of the homes in the community.
Vice-Chair Britt commented that he completely agrees with the concept of having ordinances that do not make it more difficult to renovate older homes. He then asked Ms. Cotellessa where she came up with the 8 and 15 feet setback lines.
Planning Director Cotellessa indicated that even on Duck’s smallest lots, 8 feet is the smallest side setback line. When you start getting closer to the property line and then go up a story, you begin to have an effect on light and air. Rather than a wholesale approach, Ms. Cotellessa felt setbacks should be defined, and even then if someone has a really unique situation, they can then apply for a variance.
Planning Director Cotellessa asked for the Board’s recommendation on the date.
Vice-Chair Britt suggested July 3.
Councilor Morrison asked if there was any reason why they should not change the date to July 3, 2002.
Planning Director Cotellessa said the Board can change the date to anything they choose; she was simply trying to tie it to zoning.
Member Jenkins recommended approval; he feels that if someone wants to improve their property they should be able to do so. He further made a motion that the Planning Board recommend that the Town Council adopt an ordinance to amend Article III, adding a new Section 24.3, Vertical additions to nonconforming structures as presented and further amended this date to reflect “…dwellings built prior to July 3, 2002…”
Member Darnall seconded the motion.
Motion carried 5-0.
B. Fill Moratorium and Pending Ordinance Review (Town Council approved a moratorium on fill, attached, and ordinance revisions are pending)
Planning Director Cotellessa explained that this is a point of information for the Planning Board. She wanted to let them know that they would be seeing very shortly some draft regulations with respect to storm water and fill. There will be more detail forthcoming.
The current moratorium allows no more than 2 feet of fill within 10 feet of any lot line which then needs to be tapered to the property line.
Kevin Schwartz commented that Kitty Hawk and Nags Head have regulated fill; they have not banned it completely. In any case, he explained that you have to show the town that you can contain the storm water.
C. Zoning Text Amendment re Article II, previously recommended by the Planning Board on July 14, 2004 (On October 6, 2004, Town Council redirected this zoning text amendment to the Planning Board for additional consideration with respect to future improvements to nonconforming single- family residences in commercial districts; 7/14/04 minutes and recommended text language attached)
Planning Director Cotellessa explained that Article II was recommended by the Planning Board to Town Council. There were a lot of features that were addressed. The feature under discussion now is taking Single Family residences out of uses permitted in the commercial zoning districts; VC, C-1 and C-2. She explained that in previous discussions, single family dwellings were taken out as conventional uses and their dimensional requirements were eliminated in these districts. She explained that there was some discussion at the Town Council meeting on Wednesday night with concerns that were expressed by the Britt family. They were concerned that they would be unable to take their existing single family and improve or add on to because they were in a commercial zone. Under the current nonconforming regulations, it states that if the use is not permitted in the zoning district, then you cannot expand, enlarge or extend that use. Ms. Cotellessa explained that this is the basis of the whole tenet of nonconforming uses that has been discussed before. In the draft of Article II that was proposed to Council, if you have an existing nonconforming single family house that is actively being used as a single family house (there are approximately 6 or 7 currently in Duck) and it were to burn down, it could be rebuilt, however you could not do anything to modify it in the meantime.
The Town Council remanded this back to the Board because there was some concern as to whether the Planning Board adequately considered this issue before it was passed on to Town Council.
Chairman Forlano asked what the negative impact would be on the commercial district if one or more of the 6 single family structures were enlarged?
Ms. Cotellessa explained that the big issue is perpetuation of use; it does eliminate that area of land to eventually turn over to commercial use.
Vice-Chair Britt stated that this issue was probably a great deal his fault. He indicated that he did not think that it was the Board’s intent to penalize existing residents that are in commercial zones. He commented that he felt the intent was to protect the existing commercial land from being converted to residential.
Member Darnall stated that she was the one that brought this issue up and her intent was to keep commercial property from being redeveloped for residential use. She agreed that they should have looked at this issue more closely.
Member Jenkins went over several of the properties that are affected with respect to this matter. He believed that Ms. Cotellessa’s initial estimate of 12 properties at the Council meeting may have been overstated.
Chairman Forlano suggested that eventually these few residential homes will economically outsource themselves and naturally become commercial.
Member Jenkins disagreed commenting that he can’t think of anything that would damage the value of sound front property in this market, even reverting the use to residential.
Planning Director Cotellessa handed out some language for consideration that would get at the concerns expressed at the Town Council meeting. This language would add a new Section H. to the nonconforming uses section in Article IV and it would leave in Article II that residential uses are not permitted in commercial districts. The language would read:
(h) Notwithstanding any other regulation with respect to the nonconforming use of single-family homes in commercial districts (VC, C-1 and C-2), single-family dwellings that were existing and occupied as single-family homes as of November 3, 2004 may be maintained, repaired, reconstructed, altered, improved, enlarged, extended, or moved on an existing parcel subject to the dimensional requirements of the RS-1 zoning district.
The November 3, 2004 date is a draft date that Ms. Cotellessa would expect Council to hear the issue again. This would not allow you to build a new single family house on a commercial lot; it would not allow you to subdivide a commercial lot and construct new single family homes; all it does is allow you to alter an existing home that is being used as a home subject to setback requirements in the RS-1 district.
Planning Director Cotellessa advised the Board that Council is looking for either a reaffirmation of Article II to keep single family dwellings out of the mix, or they can reaffirm Article II and add a recommendation to amend Article IV as presented in Section h.
It was suggested that “dimensional” be removed from the language and “all” be used in its place.
There was some discussion regarding re-advertising and how best to recommend the reaffirmation and addition of Section h. to Council Ms. Cotellessa suggested that the Board may want to recommend Ordinance 04-22 which replaces Article II in its entirety and provide a new section amending Article IV, Section 34h at the end of the ordinance. She would recommend re-advertising as one ordinance as well.
Chairman Forlano and Vice-Chair Britt both agreed that would be cleaner.
Vice-Chair Britt stated he was happy with this language. Member Jenkins had no further comment. Member March and Darnall were both ok with the changes.
Kevin Schwartz took this opportunity to bring up an issue in Article II that he failed to address before. The home builders and association of realtors would like the Board to reconsider the language that was put in place identifying seasonal rental homes as a permitted use. They do not believe that anyone would prohibit seasonal rental homes in the Town of Duck but by identifying them, you do open the door for potential problems in the future.
Planning Director Cotellessa reminded the Board and the
public that there was long discussion regarding this matter. They had
discussed generally the nature of single family dwellings and how they are
normally used. It was understood that the short term rentals do not fall
within the standards of residential single family dwelling use
characteristics. They had discussed the intent section of the districts
and decided to change them to reflect orderly development. It was felt
that as a matter of practicality that not only were these seasonal homes being
used as traditional single family dwellings but that short term rentals and
staff housing both did not normally fit within those definitions. In
recognizing their existence, the Board wanted to identify them as uses that are
permitted. Ms. Cotellessa argued that by not identifying them now,
someone could later challenge them as permitted uses because again they do not
fall within the traditional definition of single family dwellings.
Member Darnall noted that making seasonal rental homes defined uses makes it easier to amend if necessary. While she sees Mr. Schwartz’ point, she noted that she did see a danger that someone would come along and try to make seasonal rentals non-permitted uses.
Vice-Chair Britt indicated that he could see both sides of the argument.
Chairman Forlano indicated that he likes the Article as is reads with the seasonal and staff housing.
Vice-Chair Britt made a motion to send Article II back to Town Council as it was provided to them in Ordinance 04-22, with the addition of a new section amending Article IV, Section 34h at the end of this ordinance, and replacing the word “dimensional” from the language in Section 34h with the word “all”.
Member Darnall seconded the motion.
Motion carried 5-0.
APPROVAL OF MINUTES
A. September 10, 2004
Minutes for September 10, 2004 were approved 5-0.
OTHER BUSINESS
None.
STAFF COMMENTS
None.
BOARD COMMENTS
Vice-Chair Britt inquired as to whether there was any update on the potential subdivision north of Ships Watch.
Chairman Forlano inquired as to whether there as any update on the plans for the lot next to Roadside.
Planning Director Cotellessa commented that she had not heard anything further regarding the subdivision north of Ships Watch and she had not seen anything further regarding the lot next to Roadside.
ADJOURNMENT
Chairman Forlano moved to adjourn the meeting.
Motion carried 5-0. The time was 3:14 p.m.
Approved: ______________________________________________
/s/ Ron Forlano, Chairman