TOWN OF DUCK
PLANNING BOARD
REGULAR MEETING AND JOINT WORKSESSION WITH TOWN COUNCIL
February 11, 2005
The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, February 11, 2005.
Present were Chairman Ron Forlano, Marilyn March, Anne Darnall and John Jenkins.
Also present were Mayor Gene Schwarz, Mayor Pro Tempore Allan Beres, Councilor and Council Liaison Neil Morrison, Councilor Monica Thibodeau, Planning Director/Zoning Administrator Suzanne Cotellessa, Town Manager and Town Clerk Christopher Layton, Town Attorney Donald I. McRee and Administrative Assistant Sandy Cady.
Kevin Schwartz representing the Outer Banks Home Builders Association and Association of Realtors, resident Charlie Pratt, resident Horace Layton, representative of Scarborough Faire Connie Pierce and Eddie Valdevieso of Quible and Associates were also present for the meeting.
Vice-Chair Jon Britt and Councilor Nancy Caviness were not present.
Chairman Forlano and Mayor Schwarz called the meeting to order at 2:00 p.m.
CONVENE INTO JOINT WORKSESSION WITH TOWN COUNCIL
Planning Director Sue Cotellessa was recognized to speak. Planning Director Cotellessa stated that the Council and the Planning Board have put together a question and answer work session with a presentation from Eddie Valdevieso of Quible and Associates to give a background and ask questions regarding fill and how it affects development and stormwater activities on properties.
DISCUSSION/PRESENTATION BY TOWN ENGINEER ON ISSUES RELATED TO FILL REGULATIONS
Eddie Valdevieso of Quible and Associates was recognized to speak. Mr. Valdevieso stated that his colleague prepared most of the presentation and that they have been going to the towns to give a discussion regarding stormwater and flood events as well as being part of the Outer Banks hydrology study group. Mr. Valdevieso went on to give an overview on rainfall, how it cycles through the system, what impacts it has on the current situation and what fill does to it.
Councilor Thibodeau asked if the groundwater levels are monitored and measured. Mr. Valdevieso stated that physically there is not a system. He stated that only Nags Head Woods monitors their groundwater, but for different reasons.
Member Jenkins asked if there was a measurement system to determine groundwater levels, such as a probe. Mr. Valdevieso stated there are and it is very simple technology.
Town Manager Layton stated there is no simple system that regularly monitors it.
Member Darnall stated that a person could go out and use a shovel or an auger to figure out where the groundwater is. She stated that a system of wells is not available in Town and would be too expensive to put in and maintain.
Mr. Valdevieso stated that well systems are used in larger wastewater systems before they go in. Groundwater is documented before the well system goes in. He stated the solution to all the flooding is to intercept the groundwater coming up and send it somewhere else.
Member Jenkins stated that a person could tell how much groundwater is around. They could predict how much is there by the upper levels of soil. He wondered if State owned roads have a right-of-way that could have a containment area put in. Mr. Valdevieso stated it could be accomplished, but cutting a swale in to the groundwater would not be a solution because there aren’t any outlets for the water to go to.
Member Darnall suggested that Council and the Planning Board discuss what the rainfall amount is in an average year rather than the rainfall amount for last year.
Mayor Schwarz stated that Council and the Planning Board were digressing from the fill aspect of the meeting. Mayor Schwarz asked if runoff does not impact neighbors in each community. Mr. Valdevieso stated that the perception that fill is causing the flooding is not the case. He stated he truly thinks that if things are done right, there is not one blanket ordinance that can handle fill. It should be handled on a case by case basis.
Member Darnall wondered if the Town should be implementing a stormwater management program.
Councilor Morrison asked how much the sod in the Four Seasons subdivision contributes to the groundwater flooding problem. Mr. Valdevieso stated he had received a few calls from the homeowners association and told them that if there weren’t any roads or homes in that development before the rain, a person could go up and down. After the rain, without any development, if a person walked on high ground but if a low spot was hit, there would be water. Development and lot coverage is not going to change the amount of rainfall or increase the amount of rain.
Mayor Pro Tempore Beres stated that the hydrology report contradicts what Mr. Valdevieso was saying. He asked if trees are cut down, would it affect the groundwater table. Mr. Valdevieso stated it would.
Mayor Schwarz stated that prior to putting in a development; the water would always be there when it rains. He stated that in a perfect world, this would be taken into account before the development is built. Mr. Valdevieso agreed.
Member Darnall stated that some places have been taken into account already since there isn’t flooding in certain areas. She guessed that no matter which development, there aren’t factors that influence groundwater.
Kevin Schwartz was recognized to speak. Mr. Schwartz asked if there is any design that could have prevented the flooding that occurred last summer. Town Manager Layton stated there could have been something in place.
Mayor Schwarz stated that the Sanderling subdivision has talked about flooding for over ten years. He stated it is not something that has happened recently, but has been brought to the Town’s attention because of last summer.
Kevin Schwartz stated that the Town could have had a design or measures in place that would have prevented flooding from the amount of rainfall from last summer. He asked how the Town could get to the level of controlling the flooding.
Mayor Schwarz stated that it denies what happens at the entrance of the Tuckahoe subdivision when it rains. Mr. Schwartz stated he was talking about the lesser levels. Mayor Schwarz stated that the problem is still there.
Member Darnall stated that when Tuckahoe is pumped, it disappears, but once the pump is shut off, the water returns. She stated that pumping solves the groundwater, but not the surface runoff. Town Manager Layton agreed.
Planning Director Cotellessa stated that the reason Council and the Planning Board are talking about these issues is because of the obvious issues resulting from last August. She stated that fill may be a good answer for high groundwater. She stated it needs to be addressed how to control both stormwater runoff and the groundwater issues. She stated that the issue of fill needs to be dealt with. She asked if there is a best way to control short term effects of stormwater runoff and what is the best way. She asked how the Town should deal with the aesthetics of differing heights due to fill and the eventual height of the house with respect to the fill. She stated that if the Town could look at a tree program and a way to deal with the short-term effects, a lot could be accomplished.
Kevin Schwartz stated that irrigation could be regulated. He stated that potable water in an automatic irrigation system will increase the water level, but a well would lower the groundwater level. Town Manager Layton stated that a well recirculates the water.
Planning Director Cotellessa stated that the Four Seasons subdivision has two wells that the owners tap into for their sprinkler systems.
Chairman Forlano stated that the purpose of the joint meeting was to discuss fill. He stated that at the last Planning Board meeting, Ralph Calfee had given a presentation on various reasons for stormwater runoff. He stated that Council and the Planning Board were meeting to discuss fill and its relationship to Duck and stormwater runoff. He felt both Council and the Planning Board should concentrate on the one aspect and recognize that there are many reasons for stormwater runoff that won’t be cured today. He felt the discussion was digressing.
Member Jenkins asked what do Council and the Planning Board focus on. Planning Director Cotellessa stated that values need to be established as to what is needed.
Chairman Forlano stated that the Planning Board had discussed the other aspects, but right now a fill moratorium is in place. He felt that fill should be the main topic of discussion. He asked if the Town could design a well thought out plan for fill. Mr. Valdevieso stated the Town could.
Eddie Valdevieso asked what the reason was for adopting the fill moratorium. Chairman Forlano stated it was adopted to study the impacts of stormwater as a result of the flooding. Mr. Valdevieso asked if a contractor adds fill, would it exacerbate the problem. He stated from his perspective, this should not be a reason for adopting the moratorium. He didn’t feel that fill causes flooding.
Mayor Schwarz felt that Council needed to provide guidance to the Planning Board. He stated that fill is not the culprit, but is the culprit from an aesthetics standpoint. He stated the other issue to consider is if people are allowed to put in five feet of fill, will they be allowed to build their house thirty-five feet from the top of the fill.
Councilor Thibodeau asked if there were any statistics on how many people have been filling on lots. Planning Director Cotellessa stated that almost all lots fill to the base flood elevation in order to have three full floors of living space. Member Darnall stated that some people will fill because their lot is uneven. Planning Director Cotellessa stated there is grading activity with fill.
Eddie Valdevieso stated that the Four Seasons subdivisions have flooding, yet the subdivision is not in a flood zone. He stated that FEMA and the flood maps are based on storm surge and storm events. He stated there is a misconception that if the home is not in a flood zone, it won’t flood. Planning Director Cotellessa stated there are people in flood zones that never flood.
Planning Director Cotellessa asked if fill is not the enemy for groundwater, if the Town is looking at the aesthetic issues, how high does a contractor fill a lot and how is the edge tapering dealt with as well as height.
Member March stated the major issue is how fill can be measured in regard to height.
Mayor Schwarz stated that people that tear down existing homes to build new ones will put in fill. Councilor Thibodeau asked if that has been documented. Planning Director Cotellessa stated it has. She stated the majority of calls have come in regarding a home on Bufflehead, a home on Duck Road and several in the Sound Sea Village subdivision.
Councilor Thibodeau stated that in the case of Sound Sea Village, she felt that fill has not exacerbated the neighbors or the views. She felt there wasn’t an issue with fill in regard to the Sound Sea Village subdivision because the views are not impacted. Planning Director Cotellessa stated that the same thing could be accomplished by putting the house on pilings, but could not get a third level. Councilor Thibodeau stated that it would restrict the value of the property if it could not have a third level.
Mayor Schwarz disagreed. He stated it would limit the values of the Sanderling subdivision. Councilor Thibodeau stated that the Sanderling subdivision has a covenant that has to be adhered to. Mayor Schwarz stated that by not having a third level living space, it has not hurt the property values in the Sanderling subdivision.
Member Darnall asked if the health department has guidelines on the specific number of feet that can be filled on a lot. Planning Director Cotellessa stated that they do. Member Darnall asked if it is written in a way that a person could fill more than two feet but would need to fill at least so many feet if they are below flood level. Eddie Valdevieso stated that he was sure of it.
Member Darnall asked if there was a way to build the ordinance. Kevin Schwartz stated that the Town’s temporary ordinance states that a homeowner can fill their lot to get above base flood with health department approval.
Planning Director Cotellessa stated that the health department can allow a homeowner to raise their lot two feet for the septic area, not that the homeowner can raise the house. She stated that in the Sanderling subdivision, it is allowed for a homeowner to raise to the level of the road and no greater than the adjacent properties except when the health department requires the septic to be raised. She stated it does not mean the whole lot can be raised to meet the septic; it’s only for the septic area. She stated that Council and the Planning Board have to ask themselves if there should be, as a community, a regulation for fill to allow the whole lot to be filled to the level required by the health department or just fill for the septic.
Member Jenkins asked if the health department specified a gradient maximum for the drainfield and do they fall under State regulations. Kevin Schwartz stated they are State regulations. Eddie Valdevieso suggested the Town build on it.
Member Darnall asked how the Town deals with the lots that have already been filled. Planning Director Cotellessa stated that the Town is seeing as many building permit actions for redevelopment as they are for new homes. She stated that health department setbacks may be as much as twenty-two feet, but it is not suitable for the Town as per Ralph Calfee. She stated that she would prefer an administrative review to see if the engineers could come up with a plan to keep the water on the property. However, if it is an aesthetics issue, it should not come under administrative review.
Councilor Morrison felt it was wrong to fill in a lot six feet above a neighboring property. He thought that a homeowner should be allowed to fill up to the level of the neighboring property and higher only if it needs to get to the base flood elevation or for the health department requirements.
Eddie Valdevieso stated that he could justify controlling how much fill is put on a property. He stated that if a homeowner wanted to go beyond it, they should come in and get an in-depth review of the adjacent properties. He stated that the health department cannot spec out more than two feet of fill as the maximum. He thought, from an engineering perspective, a gravity sewer system is more dependable than a pump system. He asked that property owners be allowed three feet for their homes for fill.
Kevin Schwartz asked what the three feet would be relative to – the natural grade, the level grade or the adjacent grade. Eddie Valdevieso stated he did not get into those details with his thoughts.
Councilor Thibodeau stated she could not envision encouraging homeowners to build below the base flood elevation unless the house is on pilings. Planning Director Cotellessa stated that the homeowner would have to build above base flood elevation, but the house would have to be on pilings.
Mayor Pro Tempore Beres stated he likes the current direction of the moratorium.
Councilor Morrison stated it would be good to address the type of fill to be used.
Councilor Thibodeau stated she would like to allow people to get to the base flood elevation as well as having a regulation that would allow a homeowner to fill their lot to come up to their neighbor’s lot. She stated she understands that there may be special circumstances that will need leniency or an exception. She stated that the Town may want to have a more lenient slope into the setbacks. She stated she agrees with not having excessive fill and likes the three feet benchmark.
Mayor Schwarz stated that one of the issues that the Council hasn’t dealt with is how to handle the exceptions. He stated that Council did not want to put staff in a position to make a decision on a case by case basis. He stated it would be difficult for them to operate under any circumstances.
Councilor Morrison asked if Planning Director Cotellessa should make a preliminary decision and if the Planning Board disagrees, the case could go through the Board of Adjustments, as per the ordinance.
Town Attorney Ike McRee was recognized to speak. Town Attorney McRee stated that the administrative official should have an objective set of factors to make the determination.
Planning Director Cotellessa stated that the Town wants to be practical. She stated that the Town could allow homeowners to fill to base flood elevation, fill to the level of the adjacent lots or fill up to a foot above any required fill by the health department. She stated that if a homeowner fills above three feet and wants to bulkhead the fill, they would have to come before a Board.
Member Darnall stated that if a homeowner needed to bulkhead, they should come before a Board. Town Attorney McRee stated the homeowner should also show a hardship as well. Member Darnall stated that there are a lot of topographically challenged lots in Duck. Planning Director Cotellessa stated that standards would have to be determined.
Kevin Schwartz stated he liked Planning Director Cotellessa’s criteria, but thinks an intermediate step is needed before a hearing is held, such as having engineered plans. Councilor Thibodeau felt it would be too subjective.
Mayor Schwarz stated it needs to be written to cover the majority of cases. He stated he wasn’t sure where the line could be drawn. He stated that if it could be made that the majority of the cases will go through and then from there, they would come to Council.
Chairman Forlano asked if the guidelines on the fill are objective now. He asked if something equally objective on the height limitation of the home could be drawn up. Planning Director Cotellessa stated it could be done.
ADJOURN TOWN COUNCIL MEETING/JOINT WORKSESSION
Councilor Thibodeau moved to adjourn the meeting.
Motion carried 5-0. The time was 3:20 p.m.
RECONVENE PLANNING BOARD REGULAR MEETING
Chairman Forlano reconvened the meeting at 3:25 p.m.
PUBLIC COMMENTS
None.
APPROVAL OF MINUTES
A. January 14, 2005 and January 26, 2005
Member March made a motion to approve the minutes.
Member Jenkins seconded the motion.
Minutes for January 14, 2005 were approved 4-0.
OTHER BUSINESS
None.
STAFF COMMENTS
None.
BOARD COMMENTS
Member Jenkins asked where the Planning Board goes from here. Chairman Forlano stated that Planning Director Cotellessa will prepare a draft ordinance based upon the discussions with Council for review at the March 11, 2005 meeting.
Member Jenkins stated he is in favor of retaining the sideline clearances with the intent of improving, increasing and maintaining green space and vegetation.
Chairman Forlano asked if it would fall into a fill ordinance. Member Jenkins felt the fill should be restricted accordingly. He stated he did not agree with two feet on the sideline, as it would create runoff. Chairman Forlano asked Member Jenkins to clarify that he would like to allow the fill, note the toe of the fill, no closer than ten feet from the sideline. Member Jenkins stated that this was his opinion.
Planning Director Cotellessa stated that the Planning Board can look at both of the issues.
Member Jenkins stated he would also like to preserve the trees and the shrubs. Member March agreed.
Planning Director Cotellessa stated that the Planning Board will have to make some value judgments with respect to the trees and shrubs. She stated that some homeowners associations make the decision on whether or not to save the trees and shrubs.
Chairman Forlano asked Planning Director Cotellessa to give her main points. Planning Director Cotellessa stated she is looking at devising regulations to bring back that covers the majority of the cases. She stated that if people wish to fill to base flood elevation, that they not do it any greater than three feet above the adjacent lots, no bulk heading associated with fill and to look at the type of fill.
Member Darnall asked if there a way to give an incentive through planting for a homeowner’s lot coverage. Planning Director Cotellessa stated that the issue of vegetation as an incentive gets to many other issues, such as maintenance. She stated it could be required of a homeowner to have a certain amount of tree cover to be established or to be maintained. She wondered if accessory structures should be treated the same as a new house with respect to the administrative entitlement of fill for them.
ADJOURNMENT
Chairman Forlano moved to adjourn the meeting until March 11, 2005 at 2:00 p.m.
Motion carried 4-0. The time was 3:50 p.m.
Approved: ______________________________________________
/s/ Ron Forlano, Chairman