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February 14, 2007



The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 6:30 p.m. on Wednesday, February 14, 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: Ben Vorndran.


Chairman Forlano called to order the Regular Meeting of the Planning Board for February 14, 2007 at 6:35 p.m.








A.  Consideration/Recommendation of Vegetation Preservation Ordinance (TC Ref. 3/15/06 and 1/24/07)


Director Suzanne Cotellessa was recognized to speak.  Director Cotellessa stated that most of the Planning Board members were at the Council Retreat in January where Council discussed the issue.  She stated that with respect to trees and vegetation, Council was concerned about some of the activities and that the language needed to be simplified.  She stated that the draft ordinance has been revised to reflect the changes.  She reviewed the changes to Page 4 with the Board.  She stated that the only way the Town would deal with the issues would be on a complaint driven basis.  She stated that the ultimate responsibility will lie with the property owner.


Vice Chair Jon Britt asked if a homeowner has only one (1) tree on their lot and they remove it, would they have to bring their canopy up to fifteen percent (15%).  Director Cotellessa stated they would.  Member John Jenkins pointed out that under the tree emergency section of the ordinance, a homeowner would not be required to bring their canopy back.  Vice Chair Britt agreed with Member Jenkins comments, stating that if the tree were close to the house, the canopy would not need to be brought up.


Council Liaison Denver Lindley asked if a homeowner would be told who filed a complaint against them.  Vice Chair Britt stated he did not like the ordinance being complaint driven.  Director Cotellessa stated that almost everything ends up being complaint driven.  She stated that the Town will take anonymous complaints.  She stated that if the complaint is public record, it would be available for anyone to view.


Member Joe Blakaitis asked if an owner could clear cut their lot if they wanted to as long as the vegetation was somehow replaced.  Director Cotellessa stated they could.


Chairman Forlano asked what kind of specifications would be needed for removal and protection of trees during construction.  Director Cotellessa stated she would be looking for how the homeowner would take the trees out and how they would protect the ones that will stay.  She stated that she is not looking for specifications in terms of calculations but how it will be done. Vice Chair Britt clarified that she would not be telling them how to protect the trees, but making sure they have a plan.  Director Cotellessa stated he was correct. Chairman Forlano asked if it would be a verbal communication between the builder and the homeowner.  Director Cotellessa stated she would want something in writing.  Chairman Forlano felt the ordinance was asking homeowners for too much information with regard to tree removal and protection.  Director Cotellessa stated it was done in conjunction for new development and substantial redevelopment. She explained that when a survey is brought in for new development or substantial redevelopment, spot elevations and grading will need to be shown.  She went on to show how a tree management plan would work to the Board. 


Chairman Forlano asked if the building inspector would have to monitor the sites for infractions and what would the penalty be.  Director Cotellessa stated that it would be something the building inspector would look at out in the field, just like he does with other building sites.  Chairman Forlano asked if the building inspector would be equipped to make judgment calls on wounding of trees.  Director Cotellessa stated that he may not be equipped for everything but he would be equipped enough to see what is happening on the site and report back if there is an issue.  She pointed out that not everything will be caught.  She stated that the prohibition on topping and improper pruning by existing homeowners were removed from the ordinance at the request of the Board and Council.


Director Cotellessa and the Board discussed the definition of substantial redevelopment in the ordinance.  She asked the Board for their input.  Chairman Forlano stated that one of the Council members felt the sentence “…other information that the Director deems essential…” was too subjective.  He asked if the sentence was a subjective issue.  Director Cotellessa stated it could be.  She stated the Board could remove the sentence.  Vice Chair Britt stated he was not in favor of removing the sentence.


Director Cotellessa pointed out that the Town of Southern Shores is going through a similar process and carried forward to their Council four (4) different options for tree ordinances with one being the Town of Duck’s version.


Chairman Forlano asked what the ordinance meant by “each offense shall be punishable by a penalty”.  Vice Chair Britt stated that each tree that was removed would be an offense.  Director Cotellessa added that for each day the offense continues, it would be considered a separate offense.  She stated that usually a notice of violation is sent asking the homeowner to let the Town know how they will rectify the situation.  She stated that the homeowner is given guidance and the issue is completed.  However, if a notice of violation is sent and the homeowner doesn’t want to deal with the Town, she would send a citation.  She stated that to date, she has never written a citation as it is not something she is here for or wants to do.  She stated that the citation could range from $50 up to $500 per day.  She stated that the offender could also be taken to court.


Member Blakaitis stated he still had an issue with clear cutting being allowed on a new lot.  He wondered if there was any way to meet with the builder to have them save some of the older trees.  Vice Chair Britt agreed with Member Blakaitis and stated he had the same reservations.  Director Cotellessa stated that by having a homeowner submit a vegetation plan was her way of seeing what is on a lot so she can do what she can to save trees.  She stated that she has heard from a lot of people that do not like trees – not just the builders but the homeowners.


Member Jenkins suggested that the ordinance state that there should be no clear cutting in the side and rear setbacks of lots unless plans are submitted.  Director Cotellessa stated that plans would have to be submitted to do any clear cutting.


Vice Chair Britt moved to recommend to Town Council the approval of the vegetation preservation ordinance as presented.  Member Blakaitis seconded.


Motion carried 4-0.


B.  Worksession/Discussion on Parking and Driveways for Residential Properties (Lot Coverage, Maximum Driveway Widths, Parking Configuration and Number of Space Requirements, Number of Curb Cuts, House Size, Setbacks (Ref. by TC 3/15/06, 4/19/06 and 1/24/07)


Director Cotellessa stated that a recap of the Council minutes from the Retreat was in the Board’s packets.  She stated that an email was also included regarding the Municipal Property update from a citizen concerned about the size of homes being built and development in sensitive environmental areas.  She stated that a survey from the Town of Kitty Hawk was included as well.  She stated that several people, including the building inspector, have suggested that the Board look very strongly at the issue of setbacks.  She stated that by looking at setbacks, it could get at the balloon effect that the Town is presently dealing with.  Director Cotellessa and the Board went on to discuss various larger homes in Duck with regard to setbacks.


Director Cotellessa stated that she will bring back to the Board a breakdown by year the number of larger homes that have been built.  She stated there have been a lot of additions to homes.


Chairman Forlano felt the reason that people are getting upset is because of the fifty (50) homes that are more than 5,000 square feet.  Member Jenkins thought it had to do with where the homes were sited.  He felt that the Town should not be purely tourism oriented.  He thought the Town should lean toward second homes and retirement. 


Director Cotellessa stated that she wanted to get to the Board a listing of homes built during the 1970’s, 1980’s and 1990’s that were torn down and replaced with newer homes and what the old and new home sizes were.  Vice Chair Britt thought it would be good to see a listing. 


Member Jenkins stated that he had sent an email to the Town with an article from the Boston Globe.  He stated the article was from a writer who was on the Outer Banks on February 4, 2007 who wrote about her negative impression of the Outer Banks because of the larger homes.


Director Cotellessa pointed out that larger homes are appropriate on larger lots.  She stated that to some extent on the oceanfront; Buffelhead Road was the tragic result of the Town’s allowing lot coverage to the mean high water mark.  She stated that she had no doubt that that was the reason for the larger homes.  She stated that ten (10) foot setbacks are a big deal.  Member Blakaitis asked how they were a big deal.  Director Cotellessa stated that because the effects are seen with the newer homes.  She stated that homes are built to the maximum setback line.


Chairman Forlano stated that he had originally thought the Sanderling subdivision was a little restrictive on their covenants.  But after talking to Member Blakaitis, he thought the Board could set a limit to the house size.  He stated that three (3) Council members wanted smaller homes.  He suggested setting a size on the homes with no home larger than X number of square feet.   He stated that a formula could be used for setbacks based upon the size of the home.  Member Jenkins asked if the formula would be used on a 10,000 square foot lot.  Member Jenkins felt it would be more important on the smaller lots.  Vice Chair Britt stated the formula needed to be based on a 15,000 square foot lot or greater.  He stated that smaller lots have different rules for setbacks if they were platted before a certain date. He thought the setback issues and the house size needed to be connected to height.  He thought the Town needed to address impacts of house size.


Member Blakaitis asked for the definition of impacts.  Vice Chair Britt stated it was trash, lights, traffic, etc.  He stated that these are the impacts of the people in the homes.  He thought that was what people were referring to when they complained of impacts.  Chairman Forlano disagreed as the reporter from the Boston Globe’s perception was the large homes and not trash or parking.  Councilor Lindley pointed out that the reporter drove the length of the Outer Banks and her comments were of the buildings in general.


Councilor Lindley asked if the Board was going to discuss lot coverage.  Vice Chair Britt stated they would but that they hadn’t gotten to it yet. 


Member Jenkins passed out notes to the other Board Members regarding his thoughts on graduated lot coverage allowance.  Chairman Forlano felt it was a great idea.  Member Blakaitis stated that he did not like formulas.  He stated that he would rather come up with a number that meets every criterion, even though it’s not always possible.  Member Jenkins clarified that Member Blakaitis wanted it to be “one size fits all”.  Member Blakaitis stated he was correct. Vice Chair Britt asked if it should be looked at from a tiered approach.  He thought the basis of the discussion should be what the average is, which was 15,000 square feet.  Member Blakaitis asked if that was the minimum average.  Director Cotellessa stated it was the minimum average for lot size of any new subdivision.


Member Jenkins stated he wanted to tie the formula in to total lot coverage.  Director Cotellessa suggested that the Board may want to set a maximum for lot coverage.


Director Cotellessa stated that she could bring back house size tied to coverage tied to the lot size.  She asked the Board if they wanted to look at larger homes in Duck during the daytime.  It was consensus of the Board to take a daytime trip to look at the newer, larger homes in Duck.


Chairman Forlano asked if the side yard setback requirements could be tied in to size as well.  Vice Chair Britt felt it was key.  Director Cotellessa stated that the Board could do a field trip and be shown homes built at the ten (10) foot line of a certain size so they could get a look at the actual massing and see how it relates to other homes. 


Chairman Forlano asked for clarification of nonconforming issues for the Board.  Director Cotellessa stated the Town has written into the ordinance that once the house is in and is destroyed by an act of God; it may be put back to the extent it was before except that it must meet the setback requirements.  She stated that it offers a safeguard for homeowners.


Director Cotellessa asked if she should bring back a type of tool kit to get at the issues.  She asked if the Board wanted to schedule something for a daytime tour.  She suggested meeting the second Wednesday in March.  Vice Chair Britt stated he was open to any date.  Member Blakaitis agreed.  Director Cotellessa pointed out that it would be considered a special meeting and would need to be advertised.  Chairman Forlano suggested having the tour and then coming back to the Town Offices for a work session to discuss the issue. 


Chairman Forlano asked if design elements would be getting at the architectural points. Vice Chair Britt pointed out that several Council members had stated they did not want to get at architectural review.  Member Blakaitis felt it should be up to the individuals.  Director Cotellessa stated that the Town does not have an architectural control committee but would reserve building height and roof pitch for a later discussion.  Vice Chair Britt agreed. 


Chairman Forlano asked if lot coverage issues would also be discussed.  Director Cotellessa stated it would.  Vice Chair Britt pointed out that the Board hadn’t discussed it at this meeting.  Director Cotellessa stated that there was some discussion about altering the percentage.  She stated that the gorilla in the room was whether to include driveways or not.  She stated that all of the other jurisdictions now include driveways in lot coverage. 


Chairman Forlano thought driveways included wouldn’t have that big of an impact on homes if the Town comes up with formulas and has a limit on house size.  Member Blakaitis stated that if gravel is encouraged, he didn’t think driveways would be an issue.  He didn’t think the Board should approach driveways until they decided whether they wanted to go with the square foot limitation.  He didn’t think gravel should be discussed at this meeting.  Vice Chair Britt stated it would be an education process. Councilor Lindley asked if the Board would consider the impacts of reducing lot coverage.  Vice Chair Britt stated he would rather deal with the house size project first.  Member Blakaitis felt the Board should stay away from the fifty percent (50%) credit for decks.  Vice Chair Britt agreed. 


Director Cotellessa suggested the Board look at limiting accessory structures to house size.  She felt that things needed to be kept proportionate. Vice Chair Britt stated that if the Board was going to discuss house sizes, they should also discuss accessory structures. 


Member Jenkins felt the Town should encourage gravel pave for driveways and give them a sixty percent (60%) credit.  Member Blakaitis stated that there are topographical considerations that do require concrete for driveways.  Vice Chair Britt thought that if there was a consideration – like a steep driveway – the homeowner should receive some type of concession.  He stated that there have been several concerns with regard to the visual impacts and parking of cars.  He suggested that the parking area have a vegetative buffer around it.


Director Cotellessa stated she would come back at the next meeting with items dealing with house size and accessory structures related to the house, setbacks related to the house and height and limiting curb cut lengths.




Planning Board Annual Report 2006


Chairman Forlano asked if the Board had to do anything with the report. Director Cotellessa suggested they make a motion to accept the annual report.


Vice Chair Britt moved to accept the Planning Board Annual Report 2006 as presented.  Member Jenkins seconded.


Motion carried 4-0.


Discussion of Ocean/Sound Overlay District


Director Cotellessa stated that per the Town’s Land Use Plan, the Town should be in the process of developing and adopting overlay zoning.  She stated that overlay zoning establishes a jurisdiction of 1,000 feet out into the water by Charter and is based upon population.  She stated that it can address stricter development policies than CAMA.  She stated that the Town of Nags Head has a very minimalist version.  She stated that issues such as sea planes, jet skis and competing interests have been discussed in the past.  She stated that water billboards would also need to be discussed.  She stated that she was looking for input from the Board on the types of activities and uses that should be looked at.


Member Jenkins stated he would agree to limiting the lot area on the sound to a non-wetland area. 


Director Cotellessa stated that the Town requires that a subdivision create a lot for a building with square feet that does not include wetlands.  She stated it was something the Board could look at.  She stated she wanted to get at the whole cafeteria of uses and things in the ocean and soundfront before she crafts anything.  She stated that counting or not counting wetlands would be one issue to consider as she wanted to bring back a list to the Board. 


Member Blakaitis clarified that Director Cotellessa was discussing counting and not counting wetlands in lot size.  Director Cotellessa stated she was.  She suggested the Board discuss whether or not beach pushes would be allowed on the weekends.  She stated that staff has told people that beach pushes are not a good idea. Vice Chair Britt agreed. 


Chairman Forlano asked where the Town stands with regard to pools and oceanfront homes.  He asked how close they can be to the setback.  Director Cotellessa stated that the Town allows what CAMA allows.  She stated that the Board can put in the zoning that the community does not believe there should be pools ocean ward of a home or ocean ward of the sixty (60) foot setback line.  Zoning Technician Sandy Cady pointed out that it would be hard to limit or prevent a homeowner from putting a pool in oceanside of their home with the current CAMA regulations.


Chairman Forlano asked if a homeowner digs into a sand dune by ten percent (10%) to put in a pool, would it be injurious to the dune.  Zoning Technician Cady stated she wasn’t sure.  She stated that it would depend on the shoreline.  Vice Chair Britt agreed.  Chairman Forlano asked who’s problem it would be if the pool is damaged by a storm.  Zoning Technician Cady stated it would be the property owner’s issue.  She stated that under CAMA’s regulations, pools cannot be considered as an imminently threatened structure as they are an accessory structure. 


Director Cotellessa thought that the Board may want to discuss commercial activities on the beach as there aren’t any commercial activities allowed now.  She stated that the biggest concern was conflicts between various uses, particularly close to shore.  She stated that other issues to think about were seaplanes, parasailing and tubing.  Vice Chair Britt pointed out that if the Board discusses the issue of ocean/sound overlays, there is a large loophole in the Town’s jet ski ordinance that needs to be straightened out.


Director Cotellessa stated she was looking at putting in the discussion that any future recreational uses that are not now out on the sound must come through a CUP process.  She stated that signage on the water would be another issue that the Board will need to discuss. Councilor Lindley suggested that they be prohibited.  Director Cotellessa stated that the Town of Nags Head has dealt with the issue.  She stated she would tend to put all signage in the overlay district.  Vice Chair Britt asked if signage on sails would be prohibited.  He stated he would have an issue if they were prohibited and would sit in the audience and voice his opposition.  Member Jenkins pointed out that Vice Chair Britt would have to recuse himself from the meeting.  Vice Chair Britt stated he would sit in the audience.  Director Cotellessa explained that signs are not allowed on cars that advertise a business.  Vice Chair Britt again reiterated that he would be opposed to prohibiting signs on sails.


Director Cotellessa stated she would take a stab at the language for the next meeting.


Discussion of Potential Zoning Text Amendment Related to Building Height


Chairman Forlano assumed from discussions that this was discussed earlier in the meeting.  Director Cotellessa stated that the Town has had issues with building height, particularly as it relates to building on undeveloped sites.  She stated that people have been trying to level and build on sites, which the Town’s ordinance does not allow in non-flood zones.  She stated that the Board may want to have a level allowance for a site to give a homeowner more room.  She stated that encouraging the use of existing topography is ideal but is not happening in Town.  She proposed revising the language of the amendment so that it would be easier to read and understand.


Chairman Forlano asked how builders could be encouraged to work with the existing topography.  Director Cotellessa stated that she did not know. She suggested bringing contractors in to a future meeting to discuss the issue.  Vice Chair Britt stated it would be hard to convince him to accept the amendment.




A. Planning Board Meeting January 10, 2007


Member Jenkins moved to approve the minutes of the Planning Board Meeting of January 10, 2007 as presented.


Minutes for the Planning Board Meeting on January 10, 2007 were approved 4-0. 












Vice Chair Britt stated he would not be able to attend the March meeting as he will be away.  Director Cotellessa stated that the date could be changed.  Vice Chair Britt stated he would be away the first two Wednesdays in March.  Director Cotellessa suggested that the meeting be held on the third Wednesday in March.  Member Jenkins thought it was a good idea.  Chairman Forlano stated that the first meeting for March would be held on March 21, 2007, which is the date for the Board’s second meeting.


Director Cotellessa stated that she will be attending a meeting at the Coastal Resources Commission on March 22, 2007 to give a report on how the Town is doing in implementing the Land Use Plan. She stated that the Town is doing real well.




Chairman Forlano adjourned the meeting.


The time was 8:58 p.m.



Approved: ______________________________________________

                        /s/ Ron Forlano, Chairman

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