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January 10, 2007



The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 6:30 p.m. on Wednesday, January 10, 2007.


Present were Chairman Ron Forlano, Vice Chair Jon Britt, John Jenkins, and Joe Blakaitis.


Member Anne Darnall was absent.


Also present were Council Liaison Denver Lindley, Jr., Director of Community Development Suzanne Cotellessa and Zoning Technician Sandy Cady. 


Others Present: Wallace Duncan, Attorney E. Crouse Gray, Jr., Joseph Speight and Olin Finch.


Chairman Forlano called to order the Regular Meeting of the Planning Board for January 10, 2007 at 6:30 p.m.






Chairman Forlano stated that with the Board’s permission, he would like to move New Business up on the agenda before Old Business.  It was consensus of the Board to move the agenda item.




Consideration/Recommendation of RZ-06-02, Application of Joseph P. and Catherine Speight, Property Owners, by E. Crouse Gray, Jr., Attorney for Joseph P. Speight, to Rezone a Portion of Lot 20, Station Bay from RS-1 to C-1, Concurrent with a Lot Line Adjustment to Recombine the Rezoned Portion with Lot 19 which is Zoned C-1


Director Suzanne Cotellessa was recognized to speak.  Director Cotellessa clarified that the issue is a rezoning action and not a Conditional Use Permit.  She stated that the applicant is requesting to move a lot line between his property to make it result in two (2) conforming properties.  She stated that the boundary line between the properties that is shown on the Town’s Land Use map and the future land use show the appropriate boundaries between residential and commercial in this corridor.  She stated that an adjustment of 4400 square feet of land will result from this rezoning and will be combined with the commercial property.  She stated the primary purpose will be to offer breathing room with respect to vegetative buffer requirements and setback requirements.  She stated that the applicants are asking for the rezoning to bring the property into conformance with the Town’s regulations so that the restaurant could re-open.  She stated that the request is consistent with the CAMA Core Land Use Plan and the future Land Use Map and with the Town’s goal to ensure continued existence of small businesses in Town.  She stated that staff recommended approval.


Member Jenkins clarified that the rezoning would solve the setback line problem.  He asked if there was a septic problem.  Director Cotellessa stated that there are several issues that will be addressed with a conditional use permit for restaurant use of the property.  She stated that the issue on the table is purely the land use aspect of it.  She stated that the job of the Planning Board was to look only at the zoning issue and whether or not the 4400 square feet should be rezoned for commercial uses.


Chairman Forlano asked if the restaurant wished to re-open, would they have to come back to the Board for a CUP to satisfy parking and other issues.  Director Cotellessa stated that he was correct.


E. Crouse Gray, Jr. of Gray and Lloyd was recognized to speak.  Mr. Gray stated that the issue was to simply move a lot line so the property could be brought into conformity.  He stated that the property is presently nonconforming with regard to the setbacks.  He stated that this is the first step in a long process to fix a laundry list of problems with the property.  He stated that they are presently in litigation with the existing tenant and subtenant.  He stated that the subtenant has some concerns which were forwarded to Director Cotellessa.


Member Jenkins asked if the litigation part was the reason for redoing the restaurant.  Mr. Gray stated he was correct.  He stated that there needs to be a determination as to whether there have been breaches of the lease and whether there has been illegal construction.  He stated that they are moving forward to fix the problems.  Member Jenkins clarified that there were other parties involved.  Mr. Gray stated he was correct.


Member Blakaitis asked if there was only one structure on the property.  Mr. Gray stated he was correct.


Member Jenkins felt there was no reason not to recommend approval of the rezoning.  Member Blakaitis and Vice Chair Britt felt the rezoning was straightforward.


Vice Chair Britt moved to recommend approval of RZ-06-02.  Member Jenkins seconded.


Motion carried 4-0.




A.  Consideration/Recommendation of Tree/Vegetation Preservation Ordinance (TC Ref 3/15/06)


Director Cotellessa stated that item was the subject of a lot of discussion at the last meeting.  She stated that the ordinance has been revised to accomplish limiting the permit requirements for removal of trees on developed lots.  She stated that the ordinance would allow removal of trees of any size within ten (10) feet of an existing house provided that the minimum tree canopy is retained. She stated that it would also limit the requirement for submission of a tree management plan to new development and substantial redevelopment and clarified that alternative vegetation could be used instead of trees for certain lots.  She stated the final revision was to require rain sensors in various irrigation systems that use public water systems instead of wells.  She stated that the appendix contained the language regarding canopy requirements that provided a requirement for half of the canopy consisting of large trees.  She stated that the Board also had input on another way to get at the issue via a vegetation density concept.  She stated that the Board seemed to go in the direction that simple was better.  She stated that a lot of the discussions had to do with why the Board is working on this issue and the purpose of trees and vegetative preservation planting.  She stated that it is contained in the ordinance under “Purpose”.  She stated that she has seen the final draft agenda for the Retreat and it includes this issue as well as lot coverage.  She stated that once she has the agenda, she will provide the Board with copies.


Wallace Duncan of 110 South Snow Geese Drive was recognized to speak.  Mr. Duncan stated that he was concerned if he would have a problem removing a tree on his property, specifically a pine tree near his hot tub.  He stated that he sees a lot of pine trees being planted that are growing out of control.  He wondered if there was a height restriction on trees. 


Chairman Forlano asked if the pine tree Mr. Duncan was referencing was more than ten (10) feet from his home.  Mr. Duncan stated it was. 


Member Blakaitis stated that he understood that the way the ordinance was written, Mr. Duncan would not have a problem taking the tree down.  Director Cotellessa stated that the ordinance states that no matter what size the tree is, it could be removed if it is within ten (10) feet of a home, provided that there is fifteen percent (15%) canopy.  


Member Blakaitis asked what discussion Council had regarding this ordinance when it was handed down to the Planning Board.  Council Liaison Lindley stated that it had to do with the vision of the Town and that greenery is important to the Town.  Director Cotellessa stated that it also dealt with the direction of the Land Use Plan.


Director Cotellessa clarified that Page 3 of the ordinance states that removal of any size tree within ten (10) feet of a house shall be allowed without a permit; provided the property owner demonstrates it will retain vegetation or plant new.  She stated that it meant to her that if a tree is taken out, the homeowner would still need to replace it with something.  Member Blakaitis asked if it would have to come through the Town.  Director Cotellessa stated they would have to show the canopy coverage.  Member Blakaitis asked what would satisfy the paragraph.  Director Cotellessa stated that it was discussed previously by the Board and that the Board wanted to make sure that homeowners did not clear cut lots and retain vegetation on the site but that the Board did not want them to come in for permits or the tree management plan.


Member Blakaitis stated that the ordinance states that the property owner would not need a permit “provided they demonstrate…”  He asked how a property owner could demonstrate without coming to the Town Administrative Offices.  Director Cotellessa stated that she expected the homeowner would bring in a survey that shows the trees on their property.  She stated it would not be an extensive requirement.  Member Blakaitis stated it was still backing into the twenty percent (20%) canopy.  Director Cotellessa stated it was fifteen percent (15%).


Chairman Forlano asked if it would be clearer to take the sentence and make it Item 4.  He felt it was conflicting with the issuance of a permit.  He suggested taking it out and making it Item 4.  Director Cotellessa stated that the Board needs to think about if all trees on a lot are within ten (10) feet of a house and if the ordinance states that trees could be taken out within ten (10) feet of the house, the lot could be clear cut.  Member Blakaitis felt that if that situation arose, it should be up to the homeowner to make the decision.  Chairman Forlano clarified that Member Blakaitis felt it should be up the homeowner to clear cut their lot.  Member Blakaitis stated he was correct, as long as it was within ten (10) feet of his home but not to clear cut the lot.  Director Cotellessa stated that it was fine as long as the homeowner planted vegetation elsewhere on the lot.  Member Blakaitis stated he didn’t mind that.  He didn’t want the ordinance to be too intrusive for homeowners.


Wallace Duncan asked what the definition of canopy was.  He stated that he only has one (1) tree on his lot.  Director Cotellessa stated that the ordinance states that a lot needs to be planted at fifteen percent (15%) tree canopy.  She stated it is defined as taking fifteen percent (15%) of the area of a lot.  She stated that tree canopy is measured by having a large tree represent four hundred (400) square feet and a small tree represent two hundred (200) square feet and add them up.  If a homeowner doesn’t want trees, they don’t have to plant them but for every large tree the conversion is either two (2) small trees or ten (10) shrubs that are twenty-four (24) inches in height.  Mr. Duncan asked if shrubbery was considered canopy.  Director Cotellessa and Chairman Forlano stated that in this ordinance, it would be.  Member Blakaitis stated it wasn’t but was an allowance toward canopy.  Vice Chair Britt stated the Board is considering it as there are lots that do not have trees.


Director Cotellessa stated that the idea of the ordinance is not to reach the shade tree canopy but to provide vegetation to help transpire water and provide wildlife habitat.  She stated that it should get something green on the lot and keep people from clear cutting their lots or not putting anything on the lots.


Chairman Forlano stated that on Page 4 it speaks of the footprint of the structure and then total renovations.  He stated that total renovation could be completely gutting the interior of a home but not changing the footprint.   He asked how this would affect the shrubbery and vegetation on the outside.  Director Cotellessa stated that the homeowner would have to come into conformance with the tree requirements.  She stated that it is a threshold that is established for what is considered substantial.  Vice Chair Britt pointed out that it was the same definition for substantial redevelopment that the Town uses wherever it’s applied.  Chairman Forlano reiterated that the footprint would not be changed.  Director Cotellessa stated it was up to the Board.  Chairman Forlano thought it was another issue that the homeowner would need to bring up to speed.  Vice Chair Britt stated that trees are a good thing and the purpose was to try to encourage trees in Duck.


Chairman Forlano had a change to Page 5 to change the word “Division” to “Section”.


Chairman Forlano asked what the cost of the permit would be.  Director Cotellessa stated it would have to be established in the fee schedule.  Director Cotellessa suggested changing “canopy cover required” to “vegetative cover required” to get at the issue of trees. 


Chairman Forlano asked about the Town irrigation systems.  He asked if they were in the right of way.  Director Cotellessa stated they were.  She stated that public facilities are usually permitted in the rights of way.  She stated that ordinance speaks of private property.


Member Blakaitis asked if the Town would go back to existing irrigation systems and make people put new ones in.  Director Cotellessa stated that it would not be retroactive and the Town would not address existing irrigation.


Member Blakaitis stated he could not see how the ordinance would affect individual property owners.  He felt it still impacted the property owner but only if he was going to make substantial redevelopment of his property, except if he wants to take any tree down he would need to come to the Town Office.  Director Cotellessa stated that at the last meeting, the Board did not have a problem with the property owner retaining the appropriate level of vegetation but that the Board did not want homeowners to have to come in to get a permit.  She stated that the language could be changed. 


Member Blakaitis asked if the fifteen percent (15%) vegetative coverage would apply to every homeowner.  Director Cotellessa stated he was correct.  She stated that if a tree is removed on a property, the owner needs to make sure they retain the fifteen percent (15%).  If a homeowner has one (1) tree, and it’s taken out, the ordinance states that he would have to make sure he planted the fifteen percent (15%); otherwise he cannot remove the tree.


Chairman Forlano stated that the ordinance would prohibit certain activities such as parking and permeable storage.  He asked how it addresses paving under a tree.  He asked how the Town could get around someone who wants to put in permeable paving to allow parking under a tree.  Director Cotellessa stated that on Page 6, item b discusses limited activities and addresses paving under a tree. Chairman Forlano asked about Page 6, item A which talks of prohibited activity and parking.  Director Cotellessa stated that it should state that during construction the activities should be limited.


Member Blakaitis felt the Board should wait until after the Retreat before the ordinance is passed on since it will be discussed there.  Chairman Forlano suggested making the minor changes that were discussed and submit a rough draft to Council to discuss at the Retreat so they can comment on it. 


It was consensus of the Board to submit a rough draft of the ordinance to Council for their Retreat.


Olin Finch of 116 Sandy Ridge Road was recognized to speak.  Mr. Finch asked if there was a definition for a tree protection zone.  Chairman Forlano and Director Cotellessa stated there was.  Mr. Finch stated that if a homeowner has to come to the Town to demonstrate, it would seem to him to be a defacto permit in itself.  Chairman Forlano asked if the homeowner could have a consultation on site with Director Cotellessa instead of them coming into the office.  Director Cotellessa stated it usually happens that way.


Wallace Duncan felt the ordinance was extremely intrusive to homeowners.


Olin Finch suggested that the ordinance be renewable in twelve (12) months.  He stated that it could also be modified.  He stated it would force the Board to have hindsight to work with.  Chairman Forlano asked if an ordinance could be drafted with an expiration date.  Director Cotellessa stated it could.  She stated that normally an expiring ordinance is a moratorium or a short term issue.


Chairman Forlano stated that the two (2) points would be brought forward to Town Council.


B.  Consideration/Recommendation of Formula Business Ordinance (TC Ref. 3/15/06)


Director Cotellessa stated that the Board had a lengthy discussion on the issue at the last meeting as well as input from the Town Attorney on it.  She stated that they discussed the types of businesses that the Town could and could not regulate.  She stated that the ordinance has been redrafted to provide a conditional use permit process for formula businesses.  She stated it would strictly control them and does have limits with regard to size (not to exceed 3,000 square feet), street frontage no more than fifty (50) linear feet and limiting the size of logos and advertising.  She stated that if a formula business is authorized by the Council, it would be through a Conditional Use Permit process.  She stated that while it does not completely prohibit them, it does strictly control them and allow a case by case examination of the characteristics of the business with the various criteria that have been established on Page 2 of the ordinance. 


Vice Chair Britt asked if Town Attorney McRee had read the draft ordinance.  Director Cotellessa stated he had.  Vice Chair Britt pointed out that Town Attorney McRee would not approve it.


Member Jenkins stated that the draft motion carries forward the Planning Board’s strong conviction that formula businesses were not welcome in Town. Director Cotellessa agreed and stated that the Board had agreed that based upon the advice of the Town Attorney that this would be the best way to handle the businesses.  She stated that if a motion was made to Council to recommend adoption, the Board may want to consider language similar to the draft motion.


Member Blakaitis asked if Council would rewrite the ordinance.  Member Jenkins stated they could.  He stated that the Town Attorney would rewrite it.  Member Blakaitis asked if Council would do the same thing to the ordinance that the Board did with regard to changing it.  Director Cotellessa stated that Council can change ordinances.  She stated that if there was a substantial change to the ordinance, it would be sent back to the Planning Board for review.


Member Blakaitis clarified that the issue would not have any impact on locally owned businesses.  Director Cotellessa stated it wouldn’t have any impact on a local business that is not a formula business as defined in the ordinance.  She stated it would have an impact on a locally owned business that falls under the definition of a franchise business.


Vice Chair Britt asked if Kitty Hawk Kites was considered a franchise business. He pointed out that they have more than five (5) locations, but the architecture is different.  Director Cotellessa stated it would depend on if it met the criteria of the ordinance as to if it was substantially the same as their other establishments and if it requires having a standardized array of services and merchandise.  She thought they would be a formula business and need to be looked at.  Vice Chair Britt thought they would have to fall under the more restrictive rules that are in the ordinance.  Director Cotellessa stated they would.  She stated that Gray’s and Nags Head Hammocks could be considered franchise businesses as well.  She stated that the ordinance could be changed to state that formula businesses are ones that include up to ten (10) branches.  She cautioned the Board to be aware of what they are walling in and walling out.


Member Blakaitis asked if Director Cotellessa had any discretion before it comes to the Planning Board to allow a business in Town.  Director Cotellessa stated that there is no administrative discretion.  She stated that the Board could add language that would state the discretion would be allowed if Council waived it.  She stated it could be done on a case by case basis.  Member Blakaitis stated it was obvious what the Town is trying to prevent.  Director Cotellessa stated that the Board needs to be careful when deciding what businesses are allowed and which ones aren’t.  She stated that they need to determine why they are ok and define it well enough.


Vice Chair Britt thought the number of businesses should be raised.  Olin Finch thought the number should be ten (10).  Chairman Forlano stated that no matter what the number is, the businesses would still need to go for a CUP.  He stated the he couldn’t see any of the large chains coming in for a CUP.


Director Cotellessa stated that the Board could either up the number or eliminate from #8 the size limit.  Chairman Forlano stated he would rather up the number.  It was consensus of the Board to up the number to eight (8).


Member Blakaitis asked if it would be sent to Council.  Chairman Forlano thought it should be sent to Council the way the recommendation was worded.  Member Blakaitis asked if the Board should wait until after the Retreat.  Chairman Forlano felt there wasn’t a reason to wait as the issue was cut and dried.


Member Jenkins moved to have the Planning Board send the issue to Town Council regarding formula businesses as written.  Member Blakaitis seconded.


Motion carried 3-1 with Vice Chair Britt dissenting.


Worksession on Parking and Driveways for Residential Properties (Lot Coverage, Maximum Driveway Widths, Parking Configuration and Number of Space Requirements, Number of Curb Cuts) ref by TC 3/15 and 4/19/06)


Chairman Forlano stated that Member Darnall wanted to be part of the discussion but was not present.  He suggested that the Board hit on a few ideas and then bring this up at a Retreat with Council.  He stated that at the last Council meeting he indicated to Council that the Board was having a hard time with this issue.  He thought that the Board needed some communication from Council on the issue. He suggested the Board kick around some ideas so that they know what to ask Council to tell them.  He stated that after the Retreat, the Board can figure out where to go next.


Wallace Duncan stated that the ordinance affects him directly and found it intrusive.  He stated that he is maxed out with regard to coverage on his property.  He stated that with the ordinance, he would not be able to make any changes to his property.  He thought there could be some consideration for homeowners with smaller lots that are not adding any capacity.  He reiterated again that the ordinance was intrusive.  Chairman Forlano asked if he was over lot coverage.  Mr. Duncan stated he could not add anymore concrete without taking out something.  Director Cotellessa stated that under the current ordinance, Mr. Duncan could add gravel to create new parking spaces.  If gravel and required driveways are included in lot coverage, then he would not be allowed to make any changes.  She stated that one way to deal with the issue is to allow stacking in the driveway.  Chairman Forlano asked Mr. Duncan if he had small lot.  Mr. Duncan stated he did.


Vice Chair Britt asked if the Board could look at different rules for smaller lots.  He thought by taking that route, it would encourage people to preserve existing structures.  Mr. Duncan stated that if the Town would encourage gravel, it would help the runoff situation.  Chairman Forlano stated that the Board is redoing the ordinance but now looking at the possibility of counting gravel as lot coverage.  Director Cotellessa stated that the Town did allow gravel not to be counted as lot coverage.  She stated that it did not accomplish having more porous space as there is a maximization factor and people were putting it elsewhere, such as around the pools or larger homes.


Member Jenkins stated that there is a home on Bayberry Drive for sale that has a 10,000 square foot lot with a pool, six (6) bedrooms, four (4) baths and 2,025 heated living area.  He stated that it’s a generous house but not much could be done to it.  Director Cotellessa reminded the Board that the Town does have a zoning ordinance limitation on the number of bedrooms based on lot size.


Director Cotellessa stated that the Board discussed parking under the house which could accomplish allowing for a larger house.


Member Blakaitis asked if the Town’s flood ordinance prohibits building out the bottom floor of a home.  Director Cotellessa stated that some areas do not allow it such as Sanderling as it is one of the biggest flood zone areas.  Member Blakaitis wondered how many people in Duck can build out without a problem.  Director Cotellessa stated that homes in the middle of Duck are in an X flood zone and could build out the bottom floor.  Member Blakaitis asked if it was enough to be a consideration.  Director Cotellessa stated it could.


Olin Finch stated that the maximum number of bedrooms allowed based upon lot size is barely workable.  He stated that the ordinance will leave no room for play for homeowners.  He stated that the Town is creating a substandard type of housing with the current limitations.  He stated that the change would make it impossible to do anything and that it’s barely possible now.  Chairman Forlano stated that the Board has not done anything with the lot coverage issue for close to three (3) years.  He stated that in that period of time, there have been some pretty sizable homes put on 15,000-16,000 square foot lots.


Vice Chair Britt stated that the Board has been taking one aspect to try to limit the size of homes.  He stated that if that is the goal, the Board should change the bedroom requirements.  He thought that the reason the Board was where they were with the ordinance was because they could not come to some agreement with the changes.  He stated that if the houses tend to be smaller, the Board should start from there.  He suggested that the Board should say they want the homes to be smaller.  If not then, they will keep having loopholes and problems with the public.


Member Blakaitis pointed out that this was just a brainstorming session.  He felt the Board should be concentrating more on square footage and eliminating the concern with regard to driveways. He asked if there was another way the Board could do what Council wanted, which was to limit the size of homes in Duck.  He stated that you can’t satisfy everyone.


Vice Chair Britt asked where the complaints regarding the driveways were coming from.  Director Cotellessa stated that they have come from a survey for the Land Use Plan.  Chairman Forlano stated the complaints also came from large homes, not from the smaller homes with pools.  Member Blakaitis felt it was a perceived impression as well.


Member Blakaitis stated that Council wanted the Board to do smaller homes.  He stated that the only way to do that is to adopt some sort of square footage plan or do something like the Town of Southern Shores did.  He didn’t feel that that was the way to go.


Olin Finch suggested that the Board should wait for clearer direction.  He asked if there was any disadvantage in anticipating what they may misinterpret.  Chairman Forlano stated that he wanted the Board to touch on the subject briefly.  He suggested that they ask Council what their interpretation of a large and a small home was.  Vice Chair Britt suggested asking if they need to change the ordinance at all.


Member Blakaitis stated that the Board is now considering the effect of driveways and lot coverage.  He stated they heard a lot of public comments on it.  He wondered if they wanted more houses in Duck, he didn’t know if the Planning Board should decide on it.  He stated that the perception is not always the fact.


Chairman Forlano suggested the Board table the discussion until they get more direction from Council.  Vice Chair Britt pointed out that the discussion would not move forward until after the Retreat.  He stated he wanted Council to tell them what to do.  Chairman Forlano stated that it will be brought up to Council that the Board is hung up as to whether they should concentrate specifically on the size of the home or the effects of the size of the home.  Director Cotellessa stated the discussion would continue after the Council Retreat.




A. Planning Board Meeting December 13, 2006


Vice Chair Britt moved to approve the minutes of the Planning Board Meeting of December 13, 2006 as presented.


Minutes for the Planning Board Meeting on December 13, 2006 were approved 4-0. 








Director Cotellessa stated that the next meeting will include the Planning Board annual report from 2006.  She encouraged the Board to stop at the Town Park to see the gravel pave. She stated that the hole at the former Herron’s building is being filled in.  She stated that the Retreat will have heavy planning issues on January 24, 2007 from 9:15 a.m. – 2:00p.m.  She stated that some items that will be discussed will be construction management, ocean/sound overlay districts, building height issues and property addressing.  She stated that Council will discuss the future Town Hall in the afternoon.  She encouraged the Board to attend both days of the Retreat.




Vice Chair Britt stated he would not be available to attend the Retreat.




Chairman Forlano adjourned the meeting.


The time was 8:37 p.m.



Approved: ______________________________________________

                        /s/ Ron Forlano, Chairman

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