TOWN OF DUCK
PLANNING BOARD
REGULAR MEETING
March 11, 2005
The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 2:05 p.m. on Friday, March 11, 2005.
Present were Chairman Ron Forlano, Marilyn March, Anne Darnall and John Jenkins.
Also present were 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 was not present.
Chairman Forlano called the meeting to order at 2:05 p.m.
PUBLIC COMMENTS
None.
OLD BUSINESS
A. Zoning Text Amendment regarding Land Disturbing Activities Standards and Permitting, and Building Height (draft fill regulations)
Planning Director Cotellessa explained that, based upon the direction she received from the last joint meeting with Town Council, she tried to find a middle ground that would be acceptable and she suggested reviewing the draft page by page. She pointed out that the ordinance number would now be reflective of the year 05 rather than 04. On page 2, she noted that the diagram illustrating height was much more generic; she eliminated the numeric references to height and top plate as previously requested. Ms. Cotellessa indicated that on page 3, she revised the setback for land disturbing activities and fill from 10 feet to 5 feet from any property line, except, in the case of fill, to directly match a higher adjacent grade at the property line. She also added some language to deal with fill as it relates to septic improvements.
Planning Director Cotellessa advised the Board that they had before them additional comments received from Kevin Schwartz which she would like to see addressed as they go through the draft. The first comment from Mr. Schwartz addressed item 4c, on page 3 also. Previous drafts required that plans be engineered. This draft allowed for general contractors to prepare a drainage plan where the fill is less than 36 inches.
Mr. Schwartz clarified his position. He indicated that a general contractor should be permitted to prepare a plan if they are not filling more that 36 inches above the adjacent grade. The Home Builders Association agrees that anything over 36 inches above adjacent grade should be held to an additional standard and should be engineered.
Ms. Cotellessa suggested they change the language to read 36 inches above the level of adjacent lots.
Mr. Schwartz indicated that this language is currently in place with the temporary regulations and they are not uncomfortable with that language.
Ms. Cotellessa stated she is looking for some general agreement here today so the Board can look at a final draft in April.
Planning Director Cotellessa explained that in addition to the 5 foot fill setback, the draft also requires a 3 to 1 slope to help address runoff; that is also why a drainage plan is being required in cases where fill in excess of 3 feet is proposed. The point of a drainage plan in cases where more than 3 feet is proposed is to address the short term runoff issues.
Member Jenkins questioned the rationale for the 5 feet setback.
Planning Director Cotellessa provided a brief history of the discussions regarding the fill setback; noting her original suggestion of 10 feet, Mr. Schwartz’s argument for 2 feet, Mr. Calfee’s recommendation in support of 2 feet, and the health department regulations. Ms. Cotellessa indicated that she chose 5 feet as a compromise which seemed reasonable between the differing points of view.
Mr. Schwartz added that a 10 foot setback regulation was punitive on narrow lots.
Ms. Cotellessa requested clarification that the Board was in agreement that if you were filling a hole, you do not need an engineered plan. If you are filling up to 3 feet above the adjacent grades, a general contractor can effectively deal with the correct way to slope and drain, and anything above that would require an engineered plan. She indicated she would revise the language accordingly if the Board so desired.
Member Jenkins had a question regarding how filling to base flood elevation would impact flood lines and flood insurance rates. There was a brief discussion that ensued regarding flood mapping, map revisions and the new maps that were expected in the near future.
Member Darnall had a question regarding section 4a and the 2 foot maximum fill.
Planning Director Cotellessa indicated that this section 4a was taken from the initial regulations that were put in place and should be removed entirely from the draft.
Member Darnall also questioned 4b; she did not agree that an additional 12 inches of fill should only be allowed if required by the health department. She indicated that this should be allowed by right and it simply made good sense.
Planning Director Cotellessa explained that this section should be retained but relocated to a different section of the draft. This section is trying to say that you are allowed an additional 12 inches above any fill required for your septic, however if the health department does not require you to fill for the septic, then should you then be allowed to fill your septic 2 feet and your house 3 feet. What if no fill is required for the septic permit?
Member Darnall indicated that she did not see grading to level a lot for construction and adding a few feet of fill as a problem. She did indicate that filling to excessive amounts should not be allowed.
Ms. Cotellessa explained that the whole premise in this draft is that you do not fill above the level of adjacent lots except to get to base flood elevation. She indicated that if the Board wants to allow for more fill, they can, but that is not how the draft reads now. Ms. Cotellessa went over the instances when filling/grading would be permitted under this draft, sections 4 a through d.
There was some discussion regarding the use of bulk heading in cases where adjacent lots vary substantially in elevation. Under the current draft bulk heading is only permitted if you are containing the natural earth; they are not allowed to be constructed and then filled unless permitted by the Board of Adjustment through a special exception request.
Ms. Cotellessa moved on to page 5 where she noted that she had added number 11, which states that fill material must be substantially similar in composition.
Chairman Forlano had a question referring back to page 4 in the last paragraph of section 4 which referenced no fill located within 2 feet of the property lines.
Planning Director Cotellessa explained that this section allows you to put in place some kind of drainage system.
Member Jenkins questioned on page 4 whether section 5 would be an appropriate section in which to regulate vegetation.
Planning Director Cotellessa explained that this draft was meant to focus on the issue of fill and storm water, whereas Mr. Jenkins’ suggestion would be better addressed through a tree ordinance, and she further explained that she would be working on such an ordinance in the future. She indicated that a tree ordinance would entail much policy discussion and felt that it should be addressed separately from this draft ordinance.
Councilor Morrison indicated that he was unclear with number 6 which indicated special exceptions would be granted by the Board of Adjustments; he stated he did not see anything in the zoning ordinance that would charge the Board of Adjustments with hearing special exceptions.
Planning Director Cotellessa explained that the Board of Adjustments can hear conditional use permits and special exceptions by State code, and additionally the term conditional use permit in the State code includes special exceptions. By adopting this draft, the Town Council would be granting the Board of Adjustments the right to hear those special exceptions. This draft could say Town Council, however very often when you are dealing with issues that are dimensional or technical in nature, those issues are heard by a Board of Zoning Adjustments. She further indicated that the Town Council can delegate to the Board anything they so choose.
Chairman Forlano questioned on the same lines, whether it would be more reasonable to have the Planning Board and/or Town Council hear these types of special exceptions because they are the two groups that are well versed on this topic.
Planning Director Cotellessa indicated that any group can hear the special exception requests; she simply put the Board of Adjustments in this draft as a placeholder because a Board of Adjustments is charged with upholding the regulations, the zoning ordinance. A Board of Adjustment decision is quasi-judicial and therefore becomes a legal determination. In the case of a Conditional Use Permit, an applicant must go before both the Planning Board and Town Council which makes for a much longer process.
Member Darnall indicated that she believed these types of matters should go before the Board of Adjustments.
Planning Director Cotellessa further advised the Planning Board that the Board of Adjustments is capable of handling more hearings.
The discussion returned to page 5, where Ms. Cotellessa explained that staff currently requires a site survey performed within 6 months of submission. Mr. Schwartz had indicated that 9 months to a year would be more reasonable. Ms. Cotellessa indicated that she was not opposed to extending the time frame to a year, except if there were some kind of storm event. She indicated that she would like to be able to, particularly in the case of ocean front properties, require a more current survey.
Mr. Schwartz indicated that there are other agency controls in place when you are dealing with ocean front properties; i.e. CAMA and health department.
The Board members agreed to change the site plan requirement to 9 months as it relates to this draft.
Planning Director Cotellessa indicated she would make a note to address this requirement in the parking section of the zoning ordinance as well.
There was a brief discussion regarding the ability of a surveyor to shoot the adjacent grade elevations and access issues. Ms. Cotellessa indicated that there are many ways to obtain topography information without accessing a property. She further noted that both Mr. Calfee and Mr. Valdievioso confirmed this.
Councilor Morrison noted on page 6, number 6 that inches should be added after 36.
Planning Director Cotellessa noted a few additional, minor detail revisions on page 7. She then explained that she was looking to make the changes discussed today and would bring back another draft for a final discussion and recommendation in April.
NEW BUSINESS
A. Zoning Map Amendment 05-001 – The Town of Duck is seeking to reclassify from VC (Village Commercial) to C-PR (Conservation-Public Recreation District) the Town’s municipal property at 1196, 1200 and 1208 Duck Road comprising approximately 10.33 acres.
Planning Director Cotellessa advised the Board that this property was purchased by the Town a couple of years ago and a Master Plan was recently approved. The new future land use map also denotes this area as green for parkland, and Conservation – Public Recreation (CPR) is the appropriate zoning category for parkland.
She further noted that municipal properties are a permitted use in CPR by Conditional Use Permit.
Member Jenkins indicated that he felt it was necessary to preserve the possibility of an assembly and administrative office on this land.
Chairman Forlano expressed concern. He indicated he was concerned with the inequity between residential and commercial properties, and the future impact this could have on the tax base in Town.
Member Darnall stated that she would agree but not in the case of this park. Ms. Darnall commented that this was the only chance Duck had to buy parkland. The Land Use Plan has been adopted, the Municipal Plan has been adopted, and this is just making everything right. Ms. Darnall further noted that the Map sets future policy.
There was some additional discussion regarding the tax impacts.
Member Darnall made a motion to recommend to Town Council an Ordinance Amending the Official Zoning Map to reclassify from VC (Village Commercial) to C-PR (Conservation-Public Recreation District) the Town’s municipal property at 1196, 1200 and 1208 Duck Road comprising approximately 10.33 acres.
Member March seconded the motion.
Motion carried 3-1. Member Jenkins opposed.
B. Zoning Map Amendment 05-002 – The Town of Duck is seeking to classify as RS-1 Single-family residential district) five existing lots [one currently zoned VC (Village Commercial) and four currently split-zoned VC and RS-1] in the Duck Ridge Village subdivision at 102, 104, 103, 105 and 107 Duck Ridge Village Court comprising a total of approximately 1.64 acres.
Planning Director Cotellessa explained that when the Duck Ridge Village Subdivision was developed, it was designed and platted as a residential development. Part of the subdivision runs through the Village Commercial District. The zoning on these particular lots was never changed to residential. This was never a problem until the Town recently amended the zoning ordinance prohibiting new residential construction in commercial districts.
Ms. Cotellessa further explained that she recently received a building permit application for one of these lots for which she cannot issue a permit because the rezoning was never done.
It was clarified that the BD&A model home actually sits on commercial property, however it was not constructed as a commercial structure, nor does the lot meet the minimum requirements for a commercial lot which is 20,000 square feet.
Ms. Cotellessa indicated that the intent was residential and the purpose of this rezoning action was to make what was intended to be residential, residential. She further stated that the individuals that purchased these lots purchased them as residential, and this should have been done at the time the subdivision was approved.
Member Jenkins indicated that he agreed that the original intent of the subdivision was for these lots to be residential, and therefore he recommended approval of the rezoning of the 5 lots in Duck Ridge Village as detailed in the rezoning application from Village Commercial to RS-1.
Member March was not comfortable with the rezoning.
Chairman Forlano agreed with the residential quality of lots 2, 3, 15 and 16, but he questioned whether lot 17, the BD&A model home should be residential, only because of its location with shopping centers on both sides and being adjacent to Duck Road. Chairman Forlano would like to see a compromise of lots 2, 3, 15 and 16 being rezoned and leaving lot 17 commercial.
Planning Director Cotellessa indicated a motion could certainly be made to that effect, but she cautioned against this because lot 2 finds itself in many of the same positions that Chairman Forlano sees lot 17. Additionally, Ms. Cotellessa indicated that if you leave lot 17 commercial, it becomes a substandard lot by Town standards. She again reiterated that when this subdivision was platted, it was subdivided to be a residential lot.
There was some discussion as to why lot 1 was not included in the rezoning.
Chairman Forlano again questioned whether they could rezone all but lot 17.
Planning Director Cotellessa explained the Town can rezone what it likes. She stated she would need to check with the Town attorney to determine whether they could rezone less if they chose to do so. She further noted that the future land use map has these lots indicated as residential.
Member Jenkins made a motion to recommend to Town Council an Ordinance Amending the Official Zoning Map to reclassify as RS-1 Single-family residential district) five existing lots [one currently zoned VC (Village Commercial) and four currently split-zoned VC and RS-1] in the Duck Ridge Village subdivision at 102, 104, 103, 105 and 107 Duck Ridge Village Court comprising a total of approximately 1.64 acres.
Further discussion ensued.
Member Darnall indicated that she had a problem with converting commercial property to residential, and specifically had a problem with the corner lot 17.
Ms. Cotellessa explained that this had only now become an issue since the receipt of a new building permit application on one of these lots.
Councilor Morrison questioned whether they could recommend rezoning of 4 lots and table lot 17.
Planning Director Cotellessa explained the Planning Board can make a recommendation to approve the rezoning, to approve the rezoning in part or to disapprove the rezoning and the Council will make the final decision. The Planning Board is advisory.
No second was offered, and Member Jenkins indicated he was sticking by his motion.
Member Darnall indicated she was also unsure about lot 2 as well.
Member March indicated she was ok with the rezoning of lots 3, 15 and 16, but not with lots 2 and 17.
Mr. Jenkins indicated that there are legal aspects to consider and he further noted that the covenants for the subdivision do not allow commercial applications. Covenants carry deed restrictions.
There was some discussion regarding the impacts on lot 17 if it were left commercial. There was also some brief discussion of rezoning lot 16 only, which Ms. Cotellessa suggested against as it could be construed as spot zoning.
Member Darnall indicated that because of the covenant restrictions, and because she was on the Planning Board that approved the subdivision, she would second Mr. Jenkins’ motion.
Motion failed 2-2. Chairman Forlano and Member March opposed the motion.
No new motion was offered.
There was some procedural discussion; Planning Director Cotellessa explained that the final decision rested with Town Council. She would need to double check with the Town attorney to see if it was acceptable to send a recommendation to Council with a 2-2 vote. She further indicated that the appropriate process to keep lot 17 commercial would be to first amend the Land Use Plan which would then support commercial zoning where it is now residential.
The discussion ended with a failed motion.
C. Conditional Use Permit 05-001 - Amendment to Approved CUP for Waterfront Shops (PIN #985911760387) group development to convert from retail to carry-out deli 843 square feet located in Building A.
Application withdrawn 3/11/2005. No discussion.
D. Zoning Text Amendment - regarding specified permitted improvements to existing single-family homes that do not meet current height and setback regulations.
Planning Director Cotellessa advised that the Board previously recommended an amendment to allow limited improvements to nonconforming properties; a property that met the zoning ordinance when it was built, that does not meet the regulations now and that wanted to go up a level or down a level.
Ms. Cotellessa indicated that now they are dealing with situations involving houses that were approved by Dare County, given Certificates of Occupancy but which do not meet setbacks, where the property owners are looking to improve their property and are unable to do so. These houses are not nonconforming, because they were not legal when they were built. A nonconforming property is one that was built in the right place for the zoning ordinance at the time; the rules were changed and then the property became nonconforming. As-Builts were not required in the past, so if it looked right, a Certificate may have been issued. This is not a unique situation in Duck, and Ms. Cotellessa provided a few examples. This text amendment is meant to provide a means to address these issues.
She went on to explain that there are two levels to this amendment; the first provides the option to go before the Board of Adjustments for a special exception provided they had an approved Certificate of Occupancy on July 1, 2003. There are still a series of standards and criteria that must be met but it allows an option that is not as onerous as a variance.
The second level allows for administrative approval in situations where there is a physical impossibility and Ms. Cotellessa gave the example where the entrance to a property is only 20 feet wide; the standard setback requirements cannot be met. Both of these processes have criteria that must be met.
Member March made a motion to recommend to the Town Council approval of the Zoning Text Amendment regarding specified permitted improvements to existing single family homes.
Member Darnall seconded the motion.
Motion carried 4-0.
APPROVAL OF MINUTES
A. February 11, 2005
Member March made a motion to approve the minutes.
Member Darnall seconded the motion.
Minutes for February 11, 2005 were approved 4-0.
OTHER BUSINESS
None.
STAFF COMMENTS
Planning Director Cotellessa stated again that she would check with the Town Attorney regarding the rezoning issue at Duck Ridge Village and would like the Board to keep open the possibility for a second meeting later in the month to further discuss the issue if necessary.
BOARD COMMENTS
None.
ADJOURNMENT
Chairman Forlano moved to recess the meeting until March 23, 2005 at 6:30 p.m.
Motion carried 4-0. The time was 4:05 p.m.
Approved: ______________________________________________
/s/ Ron Forlano, Chairman