PLANNING BOARD
REGULAR MEETING
January 14, 2005
The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, January 14, 2005.
Present were Chairman Ron Forlano, Marilyn March, and John Jenkins. Also present were Town Council Liaison Neil Morrison, Planning Director/Zoning Administrator Suzanne Cotellessa and Administrative Assistant Sandy Cady.
Kevin Schwartz representing the Outer Banks Home Builders Association and Association of Realtors, and resident Charlie Pratt were also present for the meeting.
Vice-Chair Jon Britt and Member Anne Darnall were not present.
Chairman Forlano called the meeting to order at 2:00 p.m.
PUBLIC COMMENTS
None.
OLD BUSINESS/ITEMS DEFERRED FROM PREVIOUS MEETINGS
A. Final Draft CAMA Land Use Plan (discussion and recommendation to Council
Planning Director Cotellessa explained that Council has a copy of the Draft CAMA Land Use Plan and the formal process is for the Planning Board to make a recommendation to the Town Council. There needs to be, according to State Law, a thirty (30) day period of advertising and availability to the public of the Draft Plan; that period began at the beginning of January. Town Council will look at the Plan in public hearing at its first meeting in February. Therefore, the Town has met all advertising requirements, and it is now in its formal public comments period.
Ms. Cotellessa pointed out that the insert the Members received of WS-1 lays out the history of the development of the Plan. She noted that at the meeting last month, the Board had several constructive comments which resulted in some changes to the Plan as detailed in the additional inserts they received this month. There were several public input meetings.
Once Town Council adopts the CAMA Land Use Plan, it will then go to the Coastal Resource Commission for certification; the Commission’s next meeting occurs in April. The goal is to go forward from the February Town Council meeting with a First Draft Plan in place. Ms. Cotellessa commented that there may be some rezoning actions coming forward so having this Plan in place will be beneficial.
Planning Director Cotellessa gave a brief overview of the plan. The first phase was an information gathering process which outlined the existing conditions in Duck; physical, demographics, natural resources, what we are and who we are. It also outlined the topics that CAMA, the Coastal Area Management Agency, requires the Town to look at. The Plan serves two purposes; it’s a way for the State to determine that the Town’s policies are in concert with the State’s policies for the natural environment and water resources and it also allows the Town to lay out a roadmap for the future. The Plan has to be approved by Council from a policy perspective and then by the State from a management perspective.
Phase II lays out the plan for the future and begins in Chapter 9; it lays out 23 different areas of concern and what the Town’s local policies are. This was the part of the Plan on which Ms. Cotellessa had previously indicated the Board Members should focus their attention for discussion and comments today.
Chairman Forlano indicated that he was involved in the development of the Plan as a member of the Land Use Committee and therefore had no further comments for discussion.
Member Jenkins indicated he had no further comments other than those made at the last meeting.
Member March had a question on page IX-4 and the use of should vs. shall.
Planning Director Cotellessa explained that both of these terms are used. In some cases the Plan’s policies say should and in some cases they say shall. It is up to the Town Council to decide in policy direction when we say should versus shall. Staff at the State has simply requested that these terms be defined.
Member March also had a question on page IX-7 which states the Town will enforce and amend as necessary the Town Beach driving ordinances.
Planning Director Cotellessa explained that in some cases the policy and objectives are to adopt new ordinances; in other cases, they are to continue to maintain and refine as necessary. There is currently a beach driving ordinance in effect. She further explained that these are policies and as such they are broad.
Member March indicated she had no other comments or questions.
Chairman Forlano commented that over the course of the development of the plan, many of the goals came to fruition.
Ms. Cotellessa stated that this document, much like the zoning ordinance, is a living document and as such it may and should be amended as needed to properly reflect the goals of the community.
Member March made a motion to recommend the final Draft CAMA Land Use Plan to Town Council.
Member Jenkins seconded the motion.
Motion carried 3-0.
B. Zoning Text Amendment regarding Land Disturbing Activities Standards and Permitting, and Building Height (draft fill regulations in anticipation of moratorium end)
Chairman Forlano began the discussion indicating the goal here is to get the moratorium lifted as soon as possible. He suggested the Board go as far as possible today with the small number of members present, and then recess to a second meeting this month so Council will be able to look at this matter at their February meeting.
It was decided that at the end of discussions today, this meeting would recess until Wednesday, January 26, 2005 at 6:30 p.m.
Planning Director Cotellessa explained that the purpose of this discussion today was to try and develop some regulations with respect to fill, and how that may affect issues of storm water, building height and impacts on adjacent properties both visually and from run off. She further noted that most of the language in this draft was taken from what is currently in place in Currituck County in their Unified Development Ordinance which was put in place in November, 2004; this draft is very similar in nature. With respect to the building height issues, Ms. Cotellessa indicated that she pulled that language from the Nags Head Ordinance.
Ms. Cotellessa noted that the Board had before them today a marked up draft with red questions from Kevin Schwartz. There were photographs taken from a lot on Duck Road provided to the members today and there was a photograph of a lot in Sound Sea Village provided in their package; both of these lots depict the use of extensive fill. The Planning Board packages also included additional photographs of a property in Sand Dollar Shores where storm water practices have been implemented. Lastly, she noted that she had provided the Board with some background information on hydrology in their package.
Planning Director Cotellessa moved the discussion on to the draft. She noted that the first section deals with height. In the drawing provided, height is measured not from the finished grade but rather from existing grade IF that existing grade is already above base flood elevation. Basically the height of your house will be required to include the fill that you add to the lot unless you are in a flood zone. Mr. Schwartz questioned whether this would allow more than a 42’ high structure? In the example of #1, if you measured from ground level, then the house would be above 42’, but if you were measuring from base flood, the height would be at 42’. The idea being that you do not penalize a property for not placing fill. This draft ordinance allows you, when you are building on a site that has an established base flood elevation, to fill up to that base flood elevation.
The next big issue deals with setback of fill from lot lines. Ms. Cotellessa explained to the Board the current moratorium and this draft ordinance limits fill to no closer than 10 feet from any property line, except to accommodate a driveway. Concurrent with this limitation, for any fill used, the slope of the fill can not be greater than 3 to 1; that means for every foot of fill you put in place, you need to spread out its demise over 3 feet.
Mr. Schwartz’ concern is that by setting this 3:1 ratio, you effectively change the setbacks of your lot if you want to fill your lot, and this becomes an area of concern especially when you are dealing with substandard lots. Ms. Cotellessa noted that in these circumstances you can choose not to use fill and this is a policy issue that the Town will need to decide how to address. The Town does already have in place concessions for substandard lots and it can decide that fill regulations would be applied in these cases as well.
Ms. Cotellessa stated that this regulation pushes the building envelope inward if we require the completion of the fill slope at the setback lines. That then provides for an 8 or 10 foot side yard area to accomplish the kind of things the will afford good storm water practices.
Kevin Schwartz was recognized to speak. Mr. Schwartz commented that regulating fill to no closer than 10 feet from a lot line, effectively creates a huge 20 foot conveyance and infiltration area between two properties and the Home Builders Association questions whether that is necessary. They have had engineering studies that indicate that in the right soils, a 4 foot conveyance, 2 feet on each side, is adequate to drain and infiltrate a ten year, two hour storm for an 18,000 square foot lot. They would like to see the science to back the reasoning behind the numbers recommended by staff. He further commented that he has been to all of the Outer Banks Hydrology Committee meetings, and would point out that controlling fill is only a small part of the problem. One of the things that the hydrology committee is working on are ways in setback areas to make water infiltrate greater than it does just through sand through landscaping, rain gardens, sand filters, bio retention ditches and other better management practices. Mr. Schwartz indicated that once the Hydrology Committee’s recommendations come out, the Home Builders’ Association would like to see the science of those recommendations applied to whatever fill setbacks the Town is looking at implementing.
With regard to the use of Currituck’s language, Mr. Schwartz indicated that two detailed engineering presentations were given before the Currituck Ordinance was adopted. The Home Builders’ Association believes that without some kind of engineering recommendation, the Planning Board cannot properly assess what the storm water impacts of this language are and or will be. The Home Builders’ Association further believes that the current draft ordinance before the Planning Board has the effect of diminishing returns due to its regulation intensity and a less restrictive position would offer a higher return. Mr. Schwartz indicated that the Home Builders’ Association does have an engineer looking at this draft, but the Town’s engineer should also be looking at the draft.
Chairman Forlano questioned whether a lot that sits in a hole would be required to meet these fill setback regulations.
Planning Director Cotellessa indicated they would not because you are allowed to fill to the level of adjacent properties. These regulations would apply in cases where you are filling above the level of adjacent properties.
Ms. Cotellessa went on to respond to Mr. Schwartz’ comments. With regard to engineering input, she indicated that the Town’s engineer will be consulted and he too was involved in the formulation of the guidelines that these regulations were taken from. Additionally, she too has been listening to the results of the Hydrology Committee. There are many ways to engineer a site, and there are many ways to contain storm water, but some of the engineering recommendations like bio retention area and rain gardens are not going to work in this area because the ground water table is just too high. Straight engineering may not be enough, especially when you are dealing with an area that does not have a storm water system in place. The difference between infiltration and conveyance needs to be looked at very carefully, along with many other aspects. The Town does need to get an engineering recommendation, however Ms. Cotellessa stressed that engineering is not the only issue that needs to be looked at.
There was discussion regarding the filled lot at 1340 Duck Road. It was suggested by Ms. Cotellessa that the fill on this lot has the capacity given its slope/angle to create a velocity issue versus a volume issue which again speaks to the fact that this is not simply an engineering issue.
It was noted that the other property photograph in the Planning Board package depicted the filling of a 7500 square foot lot in a flood zone that was filled for the sole purpose of obtaining a third level of living area on a small lot.
Kevin Schwartz pointed out that at both the original passing of the moratorium and again at the extension of the moratorium Town Council noted the work of the Outer Banks Hydrology Committee as a reason for extending the moratorium. Ms. Schwartz suggested that in keeping with the spirit of the moratorium language, the work of the committee should be incorporated or at least evaluated for incorporation into this ordinance. The Hydrology Committee’s recommendation however will not be complete before the expiration of Duck’s current moratorium.
Planning Director Cotellessa explained that staff has had the benefit of the ongoing meetings and noted that this ordinance was not expected to be designed by the Hydrology Committee. The committee is an information source and they are dealing with a number of issues, not just fill.
Mr. Schwartz indicated that there will be surface runoff mitigation recommendations forthcoming. He further suggested that an attempt to finalize this ordinance before the committee has made its recommendations would not be in keeping with the spirit of the moratorium.
Member March asked what the fallout would be if we said no to any fill.
Planning Director Cotellessa explained that there are some sites in Town that have chronic issues resulting from ground water that would benefit from fill for health department/septic maintenance and vector (mosquito) control. This ordinance has provisions for fill as it relates to health department requirements, including gravity fed septic systems, which would allow up to 3 feet of fill on a site.
Mr. Schwartz indicated that there is a bigger responsibility of government; it would be an abdication of responsibility for government to say you cannot fill your lot when government created the lots and, to some degree, government created the fish bowl situation that is present today.
Planning Director Cotellessa indicated that it would be wrong for a government to create a lot that was not buildable, but a government created lot does not guaranty a build out level of development, wall to wall, on any particular lot. Each lot has its own constraints. The runaway development that has occurred in the past has obviously exacerbated some existing situations. The goal of government is to create regulations that have fairness and allow for reasonable development. There is no requirement for maximum development on every lot in Duck; you don’t even need to allow fill up to base flood elevation. She explained that the Town is trying to achieve a balance that works.
Mr. Schwartz agreed that we do need to find a balance, but where is that line.
Ms. Cotellessa pointed out to the Board that another big issue that Mr. Schwartz has raised has to do with the requirements for the Land Disturbance Application. There are certain requirements such as checking the elevations on adjacent properties and providing 1 foot topographic intervals which Ms. Cotellessa pulled from the standards in Currituck County’s Unified Development Ordinance. These standards were developed by their engineers in consult with outside engineers. Mr. Schwartz questioned whether an engineer, surveyor or landscape architect is needed to design these plans; he has suggested that a general contractor is capable of designing at 30 inches above neighboring grades.
Mr. Schwartz indicated that the 30 inch limitation was derived from a North Carolina Licensing Board opinion.
Planning Director Cotellessa advised the Board that she spoke to Currituck County regarding their regulations and originally there was concern regarding the timing necessary when engineering is required, however if the development of the site is worked up in the normal course of development then the timing should fall in line in a normal fashion. Ms. Cotellessa indicated that Mr. Schwartz had some concerns regarding the elevations of adjacent properties. Ms. Cotellessa argued that without adjacent site levels, you cannot get a grasp on what you are dealing with and cannot properly analyze the permit application.
Mr. Schwartz noted for the record that they do not disagree with the concept of a land disturbance permit; they actually think it’s a good thing. They do have a concern with the requirement for engineering; there are not enough engineers locally as it is and engineers typically do not like to do residential site plans. Going back to the concept of regulatory intensity and diminishing returns, Mr. Schwartz suggested that this requirement was on the far end of the spectrum.
Chairman Forlano questioned whether topdressing gravel driveways would require a permit.
Planning Director Cotellessa indicated that she would consider that to be maintenance and would not require a permit. If, however they were expanding their driveway or parking area, they would be required to obtain a permit.
Chairman Forlano suggested rewording section (b)1 to clarify any “new” installation so as to clarify the difference between repair and maintenance.
Chairman Forlano questioned on page 3 the sentence which indicated “stormwater retention areas may be located up to property lines provided no fill therefor is located within two (2) feet of the property lines”. He thought it was 10 feet from any property line.
Planning Director Cotellessa indicated that her understanding of this language was that this was to facilitate storm water retention within the 10 foot area by allowing for swales, ditches and bio retention areas. The photographs taken of 130 Sand Dollar Shores in Sand Dollar Shores were brought up as an example. Ms. Cotellessa noted however, that if you limit the buffer area to 5 feet, you may not be able to do something like they did at 130 Seabreeze.
Mr. Schwartz questioned whether the Town could have their engineer, Eddie Valdevieso, present at the meeting on the 26th.
Planning Director Cotellessa indicated she would check into it. Again she noted that while Mr. Valdevieso may have the engineering answer, the Board will still need to look at all of the aspects.
Member March questioned what kind of pressure the Board was under to get this up to Council.
Planning Director Cotellessa advised the Board that Council would like to see an end to the moratorium however if the Planning Board does not feel they have adequate information in order to make a recommendation, then that is what they should relay to Council. Council may have to extend the moratorium again. The moratorium and these regulations have an impact on the whole community, and the Board may want to look at recommending some interim regulations within the moratorium much like Council did last time.
Chairman Forlano asked what the feelings of the Hydrology Committee were with regard to fill.
Mr. Schwartz indicated that a noted hydrologist, Ed Andrews, indicated that fill contributes to immediate surface runoff issues during and immediately following a storm, but that only accounts for about 20% of the problem which is primarily below the surface. Even if you were to retain 100% of the storm water the falls on your lot, that water will still go into the ground, and it’s going to move to the lowest point in that area. Fill is part of a bigger problem which is storm water runoff; you can capture runoff, filter it, slow it down, bio treat, etc. Quantity has been a major focus of the committee however they are also looking at water quality issues as well.
Chairman Forlano wondered whether these studies regarding 10 feet, 2 feet, 5 feet were going to solve any problems.
Mr. Schwartz suggested that you won’t solve any existing problems, but the Hydrology Committee is going to provide recommendations to retrofit your lot; ways to help address existing conditions. Mr. Schwartz indicated that this ordinance is not going to solve anyone’s problems from this past August; all you can do at this point is try and mitigate future development patterns which the Home Builders agree needs to be addressed.
Planning Director Cotellessa wanted to address the point of ground water and fill. She indicated that fill is not necessarily a bad thing because it does provide more area to help absorb rain and runoff. In heavy rain situations however, the slope of that fill can cause velocity issues and in that capacity it does have negative impacts.
Mr. Schwartz commented that Joe Anlauf of Quibble has indicated that the judicious use of fill is going to be one of the solutions to the problem.
Member Jenkins asked Mr. Schwartz about the Whalehead subdivision problems and what answers they came up with.
Mr. Schwartz explained that there were a number of issues that pre-empted the storm water issues in Whalehead; drive aisle and parking requirements and lack of DOT enforcement, in addition to the mere fact that they are in a low lying area. They promoted the use of a lot of impervious surfaces which is not the case in Duck. They now have a nine million dollar plan to put in infrastructure which was a determining factor in setting their setback regulations when dealing with fill. Mr. Schwartz indicated that Currituck admittedly wrote their unified development ordinance for Whalehead even though they are applying it countywide. He also noted that the soil in Whalehead is different also; they have a peat layer which is a big problem. So, while Mr. Schwartz believes that pulling from Currituck’s and Nags Heads’ Ordinances are a good starting point for Duck, he does not agree that they should transfer over absolutely.
Chairman Forlano moved to recess the meeting on this issue until January 26, 2005 at 6:30 p.m. The time was 3:15 p.m.
NEW BUSINESS
None.
APPROVAL OF MINUTES
A. December 10, 2004
Member Jenkins made a motion to approve the minutes.
Member March seconded the motion.
Minutes for December 10, 2004 were approved 3-0.
OTHER BUSINESS
None.
STAFF COMMENTS
Planning Director Cotellessa advised the Board that staff is working very hard on all of the sign permits that have come in thus far, and hopefully staff will be in a position to begin enforcement activity with regard to those that have not come into compliance. For the most part, staff has gotten cooperation from the businesses, although staff does expect to run into some unhappy and uncooperative businesses. She further noted that the DCBA sent out an email prior to Christmas to remind businesses of the end of the amnesty period and once we get through the permits that resulted, it is Ms. Cotellessa’s expectation that enforcement will begin. She is hoping that she may be able to use the carrot and stick approach if Council decides to move forward with the grant program.
BOARD COMMENTS
None.
ADJOURNMENT
Chairman Forlano moved to recess the meeting until January 26, 2005 at 6:30 p.m.
Motion carried 3-0. The time was 3:20 p.m.
RECONVENED MEETING
The Planning Board for the Town of Duck reconvened at the Duck Municipal Offices at 6:30 p.m. on Wednesday, January 26, 2005.
Present were Chairman Ron Forlano, Vice-Chair Jon Britt, Marilyn March, and John Jenkins. Also present were Town Council Liaison Neil Morrison, Planning Director/Zoning Administrator Suzanne Cotellessa and Administrative Assistant Sandy Cady.
Kevin Schwartz representing the Outer Banks Home Builders Association and Association of Realtors, and engineer Ralph Calfee were also present for the meeting.
Member Anne Darnall was not present.
Chairman Forlano called the meeting to order at 6:30 p.m.
Continuation of Discussions on Zoning Text Amendment regarding Land Disturbing Activities Standards and Permitting, and Building Height
Planning Director Cotellessa began the discussion. She indicated that she had a 3 hour conversation with Eddie Valdevieso from Quibble regarding fill and storm water issues and she would detail his recommendations as they work through the draft before them.
Ms. Cotellessa explained that the first issue that needs to be addressed when dealing with fill has to do with the definition of height. The Town of Duck currently measures height from the finished grade below the approximate center of a structure to the highest point. Other localities measure height based upon the average grade, the existing grade or even the average grade of the four corners of a house. She directed the Board to the illustration in the draft; she indicated that she pulled this directly from Nags Head’s Ordinance for illustrative purposes only. Ms. Cotellessa explained that Nags Head has taken the position that they should allow property owners to build to their maximum height limit from base flood elevation plus two feet. If the property is already above base flood plus two feet, then you would measure from the existing grade to the highest point.
Councilor Morrison inquired as to the basis for the allowance of the additional two feet above base flood.
Mr. Schwartz and Mr. Calfee indicated that Nags Head encourages raising homes above base flood; it helps with insurance rates. Base Flood Elevation (BFE) plus 2 offers a substantial discount with regard to flood insurance, and Nags Head rather than requiring a 2 foot freeboard decided to give it to the property owners with the idea that most if not all will take those 2 feet.
Councilor Morrison asked that the references to 42 feet in the Nags Head illustration be removed if this goes before Duck’s Town Council.
Planning Director Cotellessa indicated she would; she further noted that the numeric references to height and top plate reference could be removed completely. Ms. Cotellessa reminded the Board of the conversations that occurred when the Town’s Flood Ordinance was adopted; she noted that there was a general consensus not to require a freeboard at that time. She suggested that if this is now a good thing, offering an additional height benefit can be used as a carrot. If however, the Town chose to require a freeboard, it would have a community wide effect on insurance rates.
Planning Director Cotellessa asked the Board if they felt comfortable with this Nags Head model the way in which height is determined. She suggested that another alternative is to say your height is your height, and measure from existing grade regardless of the flood zone. This alternative would be similar to Southern Shores, but the Nags Head model offers more flexibility. The Nags Head model allows for 3 full levels of living space. Ms. Cotellessa indicated that she believes the flexibility found in the Nags Head model is something the building community would support.
Several concerns regarding runoff as a result of filling were expressed by the Members which Planning Director Cotellessa indicated would be addressed as they get further into the draft. There was some discussion on how fill is measured and how areas of shallow flooding, also known as AO zones, or even uneven lots are dealing with the current moratorium regulations.
Planning Director Cotellessa explained that she wants to come away with an understanding that what ever the Board decides to do with respect to fill, how it is allowed, setbacks, sloping, etc is going to affect the final height of the house. She indicated a need to control the final height of the structure not related to the final finished grade but rather by taking into account fill that is used on the property. Ms. Cotellessa tried to a get a consensus whether the Board agreed with the direction she was going with regard to height and how it relates to fill.
Chairman Forlano asked Mr. Calfee for his view point from an engineering standpoint on the issue of fill.
Mr. Calfee was recognized to speak and indicated that the first thing the Board needs to determine is what or who the enemy is when discussing fill. Is it development intensity or is it storm water runoff and flooding.
The Board agreed the enemy was storm water run off and flooding.
Mr. Calfee went on to indicate that the two fundamental but very different issues that need to be addressed are rising water tables and storm water runoff; each have very different solutions. Storm water runoff is usually a short term problem that is typically the result of sloping surfaces that allow water to run off; these problems are easy to see. These situations can be reasonably addressed and are usually site specific. He indicated, we can see it, we can fix it and we can define it. Mr. Calfee stated that one of the best regulations available in this circumstance is already in place and that is the maximum 30% lot coverage allowance.
The other issue is rising water table. He indicated that this issue is not site specific; it’s a community wide problem. The rising water table problem explains most of what is going on with flooding 90% of the time. He explained that if for instance you were to measure the water level immediately following a storm, that level may actually be lower than it is several hours later because of the mechanism of rising water tables and water infiltration. Another part of the problem can be explained by development. For example, a 15,000 square foot lot will, with an average rainfall amount, give you approximately 1500 gallons of rainfall a day. Then, if you add a 6 bedroom house, you can add another 600 gallons of water a day. Now, you have increased the water dosage on your lot by 40%. If you also have a period of rainfall that is approximately 40% greater than normal, as it occurred this past August, you are going to have an extraordinary situation and you are going to look for solutions. Development increases the amount of water thereby naturally increasing the water tables. On top of that, trees are being cleared, concrete and septic drain fields are being added, and so now water infiltration areas have been decreased by another 30% - 40%. Mr. Calfee explained that water is removed from a site in different ways; most of it soaks in and has a soak surface flow which means that it moves subsurface towards the sound and ocean. Another mechanism for water to remove itself from a site is through evapotranspiration which refers to trees and vegetation sucking the water out of the ground and rejecting it to the atmosphere. Trees are much better for evapotranspiration than grass or sod which has a very limited and shallow reach. Evapotranspiration, during the summer, represents 2-4 times more water movement than the lateral movement underground; evapotranspiration is really what removes the water during the summer. The bottom line is that development is recharging the land with 20%-30% more water than occurred pre-development and the capability of removing that water has been decreased by 40%-60% during the summer. The net result of development is inevitably increased water tables. Mr. Calfee explained that this is an inescapable result, and it has nothing to do with storm water runoff. He further suggested that if rising water tables are the problem, then the solution is elevation. The only way to escape the problem is to get higher. Mr. Calfee suggested that, in some cases, fill is not the bad guy but rather the ideal answer.
Mr. Calfee further commented that yes there is still the issue of the roads which are flooding because they too need to be raised, but that is a community wide issue. The solution on an individual site may simply be to raise up.
It was clarified by Mr. Calfee that if you fill a hole or area that has surface ground water, it is true that the water will displace. He explained that sand will hold approximately 20% of its volume in water. This means that a 1 inch rainfall will raise the water table in sand by 5 inches.
When Nags Head wrote their storm water ordinance approximately 15 years ago, they realized that they could not expect the individual property owner to deal with rising water tables, but they did expect individual property owners to deal with runoff. Nags Head’s approach was to require development to retain the first inch and a half of rainfall/water on site; the theory being that by requiring on site retention, they were matching pre-development conditions and thereby eliminating much of the runoff problem. In cases where there is no drainage ditch or swale with an outlet, you were then required to manage up to 4 inches on site which addressed nearly 99% of all rainfall events. Mr. Calfee stated that this has been a very effective ordinance; there have been few storm water runoff problems in Nags Head from development that has occurred since this ordinance. He explained that they do however still have rising ground water problems but that is not to say that by enacting a few prescriptive requirements that you cannot prevent new development from becoming part of the runoff problem.
Mr. Calfee commented again that fill is not necessarily wrong. He further noted that there are a lot of aesthetic issues associated with fill that clearly need to be addressed. If you do not want a house or site to have 8 feet of fill next to another site then you need to regulate that, but not necessarily because of storm water.
Mr. Calfee referred to the draft that Planning Board had before them and suggested by requiring a ten foot fill setback with a 3 to 1 slope, you are setting up a situation where the water-producing development, which is primarily the roof of the house, is going to shed at the perimeter of the fill which is at the top of a slope that slopes to the property line, and potentially run off on to your neighbor’s property. He suggested that you may be better off with a flat zone or slightly depressed zone at the eaves of the house so the water can shed from the roof and infiltrate rather than run off. By creating a flat or depressed zone, the sharper slope at the edge of the property line is only getting run off from sand or other lightly developed finish, and the runoff is only coming from a 2-3 foot wide strip because the majority of the run off will infiltrate below the eaves. This scenario will not necessarily work on every site but it will work in most cases. Mr. Calfee’s point being that a 20 foot wide buffer strip is not necessary to manage flowing storm water.
Aesthetically, Mr. Calfee indicated that the Planning Board and Council have an obligation to the community to deal with fill so it is done in a reasonable manner. In the meantime, Mr. Calfee suggested that Nags Head has a good model, and their current moratorium provides for a maximum of 3 feet of fill. You are exempt from that moratorium if you submit a plan that demonstrates you are retaining 2 inches of storm water on site for residential development.
Chairman Forlano asked for clarification that we have no control over the ground water elevations, and Mr. Calfee stated that there is essentially no way to control it. Chairman Forlano further questioned whether the run off is relative to the amount of fill/sand or is it relative to the impervious areas of the 30%. Essentially, Mr. Forlano wanted to know where the run off is coming from.
Mr. Calfee indicated that most of the run off that goes from your property on to adjacent properties or into the roadway during a rainfall comes from the impervious surfaces on a lot. If you are on a relatively flat site, most of the runoff from your roof will infiltrate locally and will never reach your neighbors property. Rainfall that lands on sand in most cases will infiltrate, so in most cases runoff is generated from impervious surfaces. Sod can also lend itself to runoff as well. Trees with mulch are the best natural means to help water infiltrate during a rain event and immediately thereafter.
Chairman Forlano asked if the use of a shallow well for irrigation would help in reducing the ground water levels.
Mr. Calfee indicated the well-drawn irrigation would definitely help, however imported water for irrigation will only exacerbate the water levels.
Mr. Schwartz indicated that the Hydrology Committee addressed the topic of irrigation in their findings which should be available shortly.
Mr. Schwartz suggested that the regulations that the local jurisdictions have put in place over the last three (3) years requiring concrete drive aisles, to eat up lot coverage and to make smaller houses has caused a lot of these current problems. He did note that Duck has revised their regulations.
Planning Director Cotellessa respectfully disagreed with the effects of reversing Duck’s regulations because every bit of the 30% lot coverage is still being covered despite Duck no longer requiring concrete drive aisles. There was a brief discussion regarding what is currently included in lot coverage. Ms. Cotellessa further noted that Duck does not have any regulation limiting the amount of clearing which does not help with evapotranspiration. Duck does not require re-planting either. She also pointed out that outside of the 30% lot coverage limits, there are also propane tanks, heating and air units, pool pumps and other mechanical devices that are not traditionally included in lot coverage calculations. She suggested that the Board may want to look at some of these mechanical devices as well as limitations to clearing and/or requirements for replanting.
Mr. Calfee commented that while he is an advocate for preserving trees, it is wise to cut down the tallest trees and maintain the smaller trees so as to maintain a forest canopy. Otherwise you open yourself up to the potential for wind damage from trees that stand alone simply to be preserved. He suggested that the trade off between clearing and not clearing is very tricky and must be managed very carefully.
Chairman Forlano thanked Mr. Calfee for his input and asked Planning Director Cotellessa to continue working through the draft. Ms. Cotellessa explained that the next section deals with standards for land disturbing activities and setbacks and slope for fill. Ms. Cotellessa went over the proposed 10 foot set back explaining that the idea behind the toe of the slope being no closer than 10 feet was in essence to create more of a swale rather than a ditch effect. She noted that the Department of Transportation (DOT) uses a 3 to 1 slope ratio to define the difference between a swale and a ditch. Ms. Cotellessa reminded the Board that Mr. Schwartz had argued that a fill setback of two feet would suffice, thereby creating a 4 foot buffer; this would provide adequate area to transport water and to allow for infiltration and evapotranspiration according to Mr. Schwartz. Ms. Cotellessa questioned whether this 4 foot area is enough space to plant. She also noted Mr. Calfee’s suggestion that a slightly depressed zone around the house may be more effective; however this is often achieved through bulk heading. She noted that Currituck, for instance, did not allow this because of the aesthetic effect it can have; it can create an alley effect.
She indicated that they need to deal with two different scenarios; when fill is necessary for safety reasons, to get up out of base flood, and when dealing with a runoff issue. Ms. Cotellessa indicated that the issue of run off even though it may be a short term problem still needs to be addressed. Health Department regulations currently require a 3 to 1 slope with the toe of the slope at 10 feet from the property line.
Mr. Calfee indicated that when dealing with the health department setbacks for septic you need to add twice the slope plus 5 feet.
Ms. Cotellessa explained that the health department typically measures a lot’s suitability for septic as well as the ground water levels to determine if fill is necessary. Depending on the fill, your septic may need to be x number of feet off of the property line.
Mr. Calfee indicated that the health department regulations are applied statewide and it is an entirely unsuitable regulation for the soils locally. He indicated that the setback criteria are based upon the needs in other parts of the state that do not have the same soil composition. These regulations, according to Mr. Calfee, have only marginal benefit in this area because water does not migrate laterally as it does in other parts of the state; it simply goes down.
Ms. Cotellessa questioned Mr. Calfee on what would be a reasonable setback.
Mr. Calfee indicated that if you implement a 1 to 1 side slope, filling 2 feet at 2 feet inside the property line, virtually all of the water that lands on the flat will infiltrate. The only run off you will have, if you get any, will be from the area that is 2 feet wide with the steeper slope. He indicated you may get some run off, but you are only getting it from a 2 foot wide piece of property. The need for setbacks for storm water management with fill is often not good science. Mr. Calfee did clarify that the type of fill used can impact the degree and impact of run off if you are dealing with clay bearing soils but that is not typically the case locally. With a 1 on 1 slope in sand, you can stabilize it and the run off you get will be very modest and only coming from a strip of land 2 feet wide. Mr. Calfee further noted that once the ground water levels rise, you will see water in that depressed area, but that is not run off.
Ms. Cotellessa questioned how a 1 to 1 slope with a limited depressed zone of only 2 feet would limit the ability to plant.
Mr. Calfee argued that you can still plant on the filled flat area between the house and the 2 foot fill setback.
Ms. Cotellessa and Mr. Calfee discussed the location and ability to plant on a sloped plane and or in a flat that is infiltrated with water. Mr. Calfee argued that when you are dealing with these types of issues, you are no longer dealing with storm water issues but rather the aesthetics associated with storm water management. He indicated that you can probably manage storm water whether you implement a very mild slope or a steep slope with a flat, but the question then becomes what the aesthetic values are, and that is something that needs to be addressed.
Planning Director Cotellessa brought up the idea of safe height which Mr. Calfee had mentioned earlier. She asked how he measured “safe height”.
Mr. Calfee indicated that your base flood elevation if you believe FEMA’s maps, will tell you what the risk elevation is. He suggested that sometimes FEMA’s numbers are on target and sometimes they are way off. Mr. Calfee commented that you then need to take into consideration the seasonal high water table which is sometimes as high as if not higher than base flood elevation. In Duck, he offered that the base flood elevation is probably the best indicator of “safe height”. He indicated he was not aware of any lots flooding in Duck that are above 8-9 feet.
Planning Director Cotellessa explained that Duck has numerous lots not located in flood zones (X zones) that have experienced substantial flooding.
Mr. Calfee indicated that you must be careful about “X” zones because some of them are badly mapped. He said it is important to know the actual elevation of the lot.
Ms. Cotellessa indicated that there are several locations with standing water issues despite ground elevations of 8+ feet.
Mr. Calfee noted that the health department is the “other” gage for determining “safe height”.
Ms. Cotellessa questioned in the case where the health department does not require any fill for septic, should the Town allow fill? Is there a reason for fill in that situation?
Mr. Calfee indicated that often times it is very difficult to determine the true seasonal high water tables in our sandy soils.
Ms. Cotellessa then asked whether Mr. Calfee would suggest that every lot should be allowed to fill up.
Mr. Schwartz indicated that you need a level building pad to begin so some fill will have to be necessary.
Ms. Cotellessa indicated that a level building pad can be accomplished with grading as opposed to filling.
Mr. Calfee indicated that one of the rules of development is to be sure that your lowest finished floor space is higher than the ground around you. Some amount of fill is probably reasonable on most sites to get your building pad above the adjacent terrain. He does not believe that is unreasonable.
Mr. Schwartz indicated fill costs $100 a load, and suggested that no one is going to bring in a bunch of fill if it is not necessary. Mr. Schwartz indicated that the Home Builders agree with the principal that filling should not be used simply to get higher.
Members of the Board inquired as to what amount of fill is reasonable.
Mr. Calfee indicated that he would like to know that his yard will flood before his house. He indicated that a foot to a foot and a half above local grade is not in his opinion unreasonable.
Ms. Cotellessa asked what if the local grade was at the height of the road bed.
Mr. Calfee stated that gets a little tougher, but you want to be at least as high as the road; otherwise the road will create a dam effect.
Member March asked if the filling done at 1340 Duck Road was an unreasonable excessive amount of fill.
Chairman Forlano suggested that was done simply for aesthetics.
Ms. Cotellessa indicated that these are the kind of things that the Board needs to make a determination on. The property at 1340 Duck Road did not need to fill to get out of the flood zone, however the property owners chose to fill partly to get up to the level of road.
Councilor Morrison indicated that the property owner told him that they wanted to be able to see the ocean.
Member March again indicated that she still felt the fill at 1340 Duck Road was excessive.
Mr. Calfee indicated that he was not familiar with the site and therefore was not able to comment on whether the fill at 1340 was justifiable. He commented that there did appear to be an aesthetics issue that should be dealt with.
Member March asked for Mr. Schwartz’s feeling regarding the fill at 1340 Duck Road.
Mr. Schwartz indicated that he could not fairly evaluate what is an aesthetics issue without having seen the finished product.
Planning Director Cotellessa commented that with regard to the adjacent property owners, this new house going up at 1340 Duck Road with 4-6 feet of fill is out of context, which again is an aesthetics issue. There is a viewshed issue, a streetscape issue, as well as other issues. Ms. Cotellessa reminded the Board that the Town currently measures height from the finished grade. She questioned again whether height should be measured from the existing grade.
Mr. Calfee indicated that many communities base their height on original grade.
Mr. Schwartz commented that locally only one community measures height that way.
Mr. Calfee indicated that Nags Head changed their ordinance, but originally, they dealt with height in similar fashion.
Ms. Cotellessa commented in regard to Sanderling. She indicated this is a subdivision that is located primarily in a flood zone, and they do not permit any ground floor living space. All of the houses are on pilings, and you cannot fill your lot above the adjacent properties or roadways; the end. She indicated that they also have a 25% lot coverage limitation along with a large amount of trees. You are permitted to fill to the road level plus what ever the health department requires for septic only; you are not allowed to fill the house pad. There is very limited damage to these homes in Sanderling due to flooding. They have much tighter regulations than the Town.
Ms. Cotellessa then brought up Four Seasons.
Vice-Chair Britt commented that the topography between the Sanderling and Four Seasons is completely different.
Mr. Schwartz further commented that there are other longer term economic issues if all of Duck had been developed like Sanderling; you would not be a Town now because there would never have been enough tax money to incorporate. He indicated you are what you are and no matter what regulations you put in today, you are only going to affect the remaining undeveloped lots and you will still need to look at the hydrological issues for every other lot that flooded in August. Mr. Schwartz suggested that this may be a situation where the Planning Board and Council need to profess their values and goals in regulating storm water, but then they need to have an engineer write it. He also emphasized that Duck is clearly not Currituck.
Mr. Calfee stated that you need to be careful about finding a political solution to a technical problem.
Ms. Cotellessa agreed that defining values is critical.
Vice-Chair Britt commented that much of what he learned tonight is that what he believed to be storm water problems are not in fact storm water problems.
Planning Director Cotellessa indicated that she would like to see an analysis of short term storm water run off based on slope and setbacks from lots in addition to the ground water discussion. How do we get our arms around this, she questioned.
Mr. Calfee offered some examples of short term storm water run off. He noted the basin in front of Hooters which will fill just to the road level from 1 ½ inch of rainfall, but it will recede within 24-36 hours. Then on the other hand, down the road in front of Bank where this is no basin, there is almost a permanent lake present; at this location, it does not matter how much rain fell that day, but rather how much rain has occurred in the past week, month, etc.
Chairman Forlano suggested that 90% of the problems are a result of rising water tables.
Mr. Calfee and Mr. Schwartz both agreed that it may be more around 80%.
Mr. Schwartz indicated that Mr. Calfee was only available for a fixed amount of time, and he was hoping that Ms. Cotellessa would detail her conversation with Mr. Valdevieso from Quibble.
Planning Director Cotellessa explained that Mr. Valdevieso had echoed some of the same things that Mr. Calfee had indicated. He agreed that fill is not the enemy. The type of fill does play a part. He further agreed with Mr. Schwartz in that you do not need engineered surfaces for minor amounts of fill less than 30 inches and he suggested adding licensed soil scientists in addition to a licensed general contractor to the list of approved professionals capable of planning a site. With regard to the adjacent property elevation, Mr. Valdevieso did indicate that you could potentially have access issues; however Ms. Cotellessa indicated that perhaps that can be addressed through satellite imagery or Lidar data. Mr. Valdevieso also suggested that the health department is a good gage as to the amount of fill required but this amount certainly can vary depending on the seasonal high water level. He indicated that there was no reason not to provide existing elevations of adjacent streets. Mr. Valdevieso did not comment regarding Mr. Schwartz’ topography questions. He did suggest considering varying slopes depending on the amount of fill on relation to lot lines.
There was some discussion regarding health department fill regulations. Ms. Cotellessa met with Mr. Crawford from the Health Department who indicated that the maximum fill required by the Health Department is 24 inches.
There was further discussion regarding conventional systems, low pressure systems and peat systems; their setback regulations, fill requirements and effectiveness.
Planning Director Cotellessa explained that the Board would have another meeting to discuss this ordinance and suggested that a joint meeting with Town Council might be in order. She was expecting that the Town Council would be extending the fill moratorium through April. That would allow time to revise this draft in terms of the technical and aesthetic issues.
Chairman Forlano asked if Ms. Cotellessa could see that someone like Mr. Calfee is present at the next meeting because he felt that Mr. Calfee was very helpful and he felt that Council needs to hear what the Planning Board heard this evening.
Mr. Schwartz suggested that the Town may want to have Joe Anlauf from Quibble present. He is Quibble’s hydrology guru.
Planning Director Cotellessa asked the Board members to each make a short list of topics related to fill that they would like more information on and/or that they feel need to be addressed as they work through this issue. She indicated that they should include any issues they feel relevant including lot coverage, trees, lot clearing, height, public safety, any another other issues.
Mr. Schwartz indicated that the Hydrology Committee should have their report complete prior to the next meeting also.
Chairman Forlano questioned whether a straight forward approach of Base Flood Elevation plus two feet might be the answer.
Planning Director Cotellessa indicated that there are numerous lots in Duck that are not in a flood zone so there is no established base flood elevation and yet they are experiencing flooding; she suggested that it’s not quite that simple of a solution. She gave the example of 132 Four Seasons Lane which is located in an “X” zone, and which has experienced on average 12-20 inches of flooding.
Chairman Forlano moved to adjourn the meeting.
Motion carried 4-0. The time was 8:35 p.m.
Approved: ______________________________________________
/s/ Ron Forlano, Chairman