TOWN OF DUCK
March 21, 2007
The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 6:30 p.m. on Wednesday, March 21, 2007.
Present were Chairman Ron Forlano, Vice Chair Jon Britt, John Jenkins, Joe Blakaitis, and John Fricker.
Also present were Council Liaison Denver Lindley, Jr., Director of Community Development Suzanne Cotellessa and Zoning Technician Sandy Cady.
Others Present: Mayor Pro Tempore Monica Thibodeau, Bill and Kim Lane of East Coast Construction Group, Inc., and Olin Finch.
Chairman Forlano called to order the Regular Meeting of the Planning Board for March 21, 2007 at 6:35 p.m. He welcomed John Fricker to the meeting as the newest member of the Planning Board.
A. 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 and 4/19/06 and 1/24/07)
Director Suzanne Cotellessa was recognized to speak. Director Cotellessa stated that the Planning Board decided to take a step back from dealing with ordinance language to review the record and look at what the complaints have been with respect to large homes and if the Town is consistent with the vision of the Land Use Plan. She went on to review a spreadsheet of home sizes from 1900 to 2005 and how the size of homes has changed over the years. She stated that homes have gotten bigger. She stated that the Board had excerpts from 2006 building permit applications with the square footage highlighted. She stated that the Board had stated that they wanted to go out in the field and look at homes and see what the issues were. She stated that the Board will have a matrix and as they pass by a particular home, they can check on the sheet to determine some of the issues with the larger homes. She asked the Board for a date and time for the tour. Member Blakaitis felt it should be soon. Director Cotellessa suggested Wednesday, March 28, 2007 from 1:00 to 3:00 p.m. It was consensus of the Board to take a tour on that date. She stated that the Board would look at approximately twelve (12) homes in Town.
Chairman Forlano asked if the Board would need special permission to walk any of the properties. Director Cotellessa stated she would let the owners know in advance if possible. She stated that with homes that she could not get permission from the owners, the Board would stand on the right-of-way. Chairman Forlano asked how the homes would be chosen. Director Cotellessa thought the Board could look at the ones that the Town received the most complaints on and then look at the larger homes and finish up with the most recently built ones.
Director Cotellessa reviewed with the Board some of the previous issues that they have discussed, such as setbacks, height, accessory structures, parking areas, lot coverage and limited landscape areas. She asked if there were any other issues. Vice Chair Britt stated that driveway surfaces and orientation were other concerns.
Kim Lane of East Coast Construction Group, Inc. was recognized to speak. Ms. Lane asked if the complaints were public record. Chairman Forlano stated that anything that the Board is discussing was public record. He stated that the Planning Board is trying to plan for the future of the Town. He stated that the Board relies on public input to help them. Ms. Lane stated that she would like copies of the complaints that were received. Chairman Forlano explained that the Board was not discussing complaints. Ms. Lane stated that she had thought the Town had received complaints from people. Chairman Forlano felt Ms. Lane misunderstood the discussion. He stated that the Board was discussing issues to help them control the size of homes but were not discussing complaints. Ms. Lane asked who had lodged complaints. Member Blakaitis stated that mostly visitors and some homeowners had but that they were mainly comments received by people from various areas through submitted surveys over the years. Ms. Lane asked if they were in written form. Member Blakaitis stated that some were and some weren’t. Ms. Lane stated that she wanted copies of the surveys. Director Cotellessa clarified that Member Blakaitis was talking about the Land Use surveys that went out prior to the Town adopting its Land Use Plan. She stated that the predominant issue was house size and maintaining a smaller house size. Member Blakaitis stated that the comments were general in nature.
Chairman Forlano stated that large homes were a matter of perception. He stated that the Board is looking at all different issues with it going back approximately four (4) years when the Land Use Plan was developed. He stated that the surveys numbered in the hundreds. He stated that the general concept of the comments was that the Town was overbuilding in the area and the perception was that there were larger homes being built. He stated that the Board was trying to determine if they needed to address the issues.
Council Liaison Lindley asked Ms. Lane is she wanted a copy of the Town’s Vision Statement. Ms. Lane stated she did. Council Liaison Lindley stated that he would like to get one to her.
Director Cotellessa asked if the Board had any other issues they wanted to look at while out in the field. She stated that she will try to contact the property owners to see if the Board will be allowed to enter the properties. She stated that the Board had expressed an interest in visiting 1340 Duck Road and asked Ms. Lane’s permission for the Board to look at her property. Kim Lane asked what the purpose would be for the Board to enter her property. Chairman Forlano stated they would like to use it as an example as what may be considered as too large of a home or what may be considered too much fill, or if the home blocks the view of the sound to other people. He stated that there were all sorts of issues.
Bill Lane of East Coast Construction Group, Inc. was recognized to speak. Mr. Lane agreed that there were issues. He stated that if people wanted a view of the sound, they should pay for it. He stated that their property on the sound cost more than the property across the street from it. Chairman Forlano stated that he also lives on the sound. Mr. Lane stated that setback rules were set in the past and now it seemed that the Board was trying to squeeze a tighter or better house on a lot, which would obstruct views of a homeowner to get into their home. He stated that by squeezing things in, the homeowner may not get all the bedrooms or have a view of the sound. He suggested the Board discuss the Town’s property values. Chairman Forlano stated that the Board was also trying to consider the people that have neighboring properties on the sound. He stated that they have to take everyone’s values into consideration. Mr. Lane stated that by lessening the setbacks on a lot, a smaller home could be built but that it would diminish the property values. He stated that if the Board looked at the big picture, they would be encouraging less values coming into the Town of Duck.
Council Liaison Lindley stated that the bigger issue was if the Town let everyone build what they wanted, as values would go downhill. He stated that the Board’s job was to try to find some middle ground as well as letting people do what they wanted to do without infringing on their neighbor’s rights.
Kim Lane stated that they are not blocking anyone’s views with their homes. Bill Lane stated that if a homeowner had a large lot and was able to get the coverage needed, but by lessening the side setbacks and tightening the home, it would lessen the homeowner’s views.
Member Jenkins clarified that Kim Lane did not want the Board to enter her property. Bill Lane stated it was fine for the Board to enter their property. He asked that Director Cotellessa call beforehand with a time so they can be prepared. Director Cotellessa stated that the Board would be visiting properties on Wednesday, March 28, 2007 from 1:00 to 3:00 p.m.
Chairman Forlano stated that years ago the Town had tried to control the size of homes by limiting the number of bedrooms. He stated that the Town then went from limiting the number of bedrooms to increasing the parking requirements. He stated that there were some homes on the list that were 3,200 square feet that had five (5) and six (6) bedrooms on it. He pointed out that one home was 3,100 square feet with seven (7) bedrooms. He stated that by limiting the size of the home by bedrooms, the Town was “barking up the wrong tree”. Director Cotellessa stated that there was discussion regarding the limitation but that it didn’t have to do with just house size but also with the number of people that were in the home. She stated that now, a five (5) bedroom home has a game room, theater room and other amenities that may increase the size of the house but do not increase the number of people there. Chairman Forlano clarified that the Board would be looking at the size of homes. Director Cotellessa stated he was correct and stated that the Board would look at the size of homes with respect to the way it sits on a lot and what it takes up, such as parking, accessory structures, setbacks and height. She stated that the Board would have their field trip, synthesize the results and come back at their April meeting to discuss what they learned.
Vice Chair Britt asked if the copies of permits the Board had were the last permits that have been issued. Director Cotellessa stated that he was correct. She stated that smaller permits were not included. Vice Chair Britt clarified that it was only permits for larger homes. Zoning Administrator Sandy Cady was recognized to speak. Zoning Administrator Cady stated that the Board had permits for all new single family residential construction.
Mayor Pro Tempore Monica Thibodeau was recognized to speak. Mayor Pro Tempore Thibodeau asked if the Board was going to look at just the larger homes or a combination of both large and small. Director Cotellessa thought the Board would be looking at the largest of the most recently built homes to try to see what the issues were as well as those which the Town has heard frequent comments, including the home on Settlers Lane as well as the Lane home on Duck Road. She stated that Buffelhead Road would also be looked at since there are so many large homes there.
Chairman Forlano asked if the Board should look at homes that would be considered an ideal scenario for a certain size lot. Director Cotellessa felt it would be hard to do. She suggested the Board drive through the various neighborhoods and bring back examples of homes that relate appropriately to the lot. Member Jenkins thought the Board could pick examples out at the tour on the 28th. Director Cotellessa stated that they could.
Mayor Pro Tempore Thibodeau clarified that homes like the ones on Buffelhead Road would not be allowed to be built anymore since the Town changed the rules with regard to the first line of stable natural vegetation. She asked if there were any new oceanfront homes that have been built since the regulation went into effect. Director Cotellessa stated that most of them were built prior to passing the regulation. Vice Chair Britt asked if there was any new oceanfront construction since then. Director Cotellessa stated there was. Vice Chair Britt suggested that the Board look at them.
Bill Lane asked if the lot size dictated the size of a home. Chairman Forlano stated that that is the way it has worked in the past but wasn’t sure it would work in the future.
Kim Lane stated that she built to the 40,000 square feet. Chairman Forlano clarified that no one had said she wasn’t within her right as she met all of the requirements. He stated that they weren’t saying she broke the law but were discussing whether or not the Town should continue with that way of building in the future. He stated it would not be taken away from her. Ms. Lane hoped that they wouldn’t. She stated that if the Board looked at oceanfront properties, they had one listed under contract for $1,250,000. She suggested the Board look at that one during their tour. Mr. Lane clarified that Ms. Lane was stating that the buyers would be losing money in value for the oceanfront property. Ms. Lane agreed and stated that the buyers could not have what they wanted on the property. Chairman Forlano stated that with today’s housing market, people are going to lose money.
Chairman Forlano asked for any other discussion. Member Jenkins stated he had no further comments.
Member Blakaitis asked what would happen after the tour. Director Cotellessa stated she would bring information back to the Board.
Council Liaison Lindley felt the tour was a good idea. Member Fricker agreed.
B. Discussion of Potential Zoning Text Amendment Creating Ocean/Sound Overlay District (TC ref.1/24/07)
Director Cotellessa stated that the genesis for the proposed amendment was from language in the Land Use Plan, which states that the Town intends to create an ocean/sound overlay district in which it would protect the shoreline and the waters for environmental purposes as well as sound development. She stated that the draft ordinance was modeled after a similar ordinance in Nags Head. She stated that it has to be defined what area of land is in an overlay district. She stated that the draft ordinance provides that the areas of environmental concern are those that are established by CAMA – seventy-five (75) feet north of the land on the sound side. She went on to give a short overview of the definition of the uses, signs that would be prohibited, beach push restrictions and filling of wetland areas
Member Jenkins asked if the Town could enforce the prohibition of filling of wetland areas. Director Cotellessa stated it could. Member Jenkins asked if within the 1,000 feet zone, the water would be considered a no wake zone for people in boats. Director Cotellessa stated that a no wake zone is not stated in the draft ordinance with regard to boats. Member Jenkins asked if it should be. Director Cotellessa stated that it could be added.
Chairman Forlano asked for an explanation of prohibited signs. Director Cotellessa stated that no real estate signs that abut a public trust area, meaning the beach were allowed. Chairman Forlano clarified that soundfront properties could not have real estate signs. Director Cotellessa stated they could not be directed towards the water.
Vice Chair Britt asked if signs on piers would be allowed. Director Cotellessa stated they would be as long as they are commercial signs.
Member Fricker asked if the “all other use” clause was standard. Director Cotellessa stated it was as it covers things that the Board may not have thought of.
Chairman Forlano clarified that the rental of a sailboat or regular boat in public trust areas would not be affected. Director Cotellessa stated that the Town has an ordinance that prohibits certain commercial activities. She stated that the draft ordinance has additional regulations. She stated that renting a boat would be considered commercial. Vice Chair Britt stated that the ordinance was designed to say that the new regulations are in addition to the previous ones. He suggested the wording be changed. He suggested stating the specified commercial activities that are prohibited.
Chairman Forlano asked if beach pushes are normally done in the summer time. Zoning Administrator Cady stated they weren’t. She stated they cannot be done after May 1st unless it’s an emergency. Vice Chair Britt asked what the timeframe was that pushes could not be done. Zoning Administrator Cady stated it was May 1st through November 15th. Chairman Forlano suggested that the timeframe that Zoning Administrator Cady mentioned be put in the ordinance. Director Cotellessa stated that pushes are already prohibited, but the ordinance states that they cannot be done on the weekends. Chairman Forlano clarified that the Town could not prohibit beach pushes from May 1 to September 30. Director Cotellessa stated that CAMA already does.
Member Blakaitis asked if crabbing and clamming should be listed as prohibited uses. Director Cotellessa stated it could be added.
Member Blakaitis moved to pass the ordinance amending the Zoning Ordinance of the Town of Duck, creating an ocean/sound overlay district with the specified changes. Member Fricker seconded.
Motion carried 5-0.
Mayor Pro Tempore Thibodeau asked how the ordinance would affect house signs on the oceanfront. Vice Chair Britt stated that since they aren’t real estate signs, they would not be affected.
C. Discussion of Potential Zoning Text Amendment Related to Building Height (TC ref. 1/24/07)
Director Cotellessa stated that the item was brought up at the Council’s Retreat that talks about some sticking points with regard to the definition of building height. She stated that the biggest sticking point has been dealing with most of the sites that are not naturally level. She stated that the original memo that Council and the Board received discussed fairly limited situations where a few inches was taken from one place to put in another in a non-flood zone and that added fill was being taken out of the height of a home. She stated that there are instances where a house is built on lots that have a large dune in one corner with one corner of the house sited on that highest point of the lot. She stated that because a lot of the houses are designed to be approximately thirty-five (35) feet tall, the envelope has been pushed.
Director Cotellessa stated that the Town’s code language is not clear but wanted to make sure that the intent of the Town was clearly laid out in the amendment. She stated that staff has been interpreting the language as saying a homeowner can build to the lowest natural grade point. She stated that most of the other jurisdictions do not do that. She stated that the Town allows averaging in height only if no fill is used and if the homeowner is not grading out a lot. She stated that the intent of the ordinance is to build into the natural topography, but it is not a standard way of building on the Outer Banks.
Director Cotellessa stated that the language could be clarified as it stands or it could be made to allow more leeway for minor leveling on sites. She stated that the Board and Council allowed a pressure valve for setbacks in errors in building locations but felt it was a slippery slope for height and wasn’t sure if it would open the door to push the envelope further. She stated that the free and clear of obstruction requirement for a building in high hazard areas is not articulated in the Zoning Ordinance. She stated that to build a three (3) story house in this zone would give a height grade of approximately forty (40) feet. She stated that the Town has to decide if an allowance should be made for that or only allow two (2) story homes on the oceanfront instead of three (3). She noted that the Town of Nags Head has this rule in effect. She clarified that she wanted to make sure that what the Board was doing was clear, understandable and reflects the intent of the Town. She suggested the Board seek input from the builders who were in the audience.
Olin Finch of 116 Sandy Ridge Road was recognized to speak. Mr. Finch stated that he wanted to discuss several different issues. He stated that the definition of fill was one. He stated that all lots are different and it wasn’t a question of when a person fills. He stated that Director Cotellessa’s definition of fill was if sand is put on a lot, then it was considered fill. He stated that there aren’t any homes built that didn’t have fill. He stated that there are no perfectly flat, level lots in Town. He stated a more workable way to design a house would be to do it from finished grade. He stated that the Town of Southern Shores is the only municipality that uses original grade. He asked for the difference between finished grade and original grade. Director Cotellessa read the definition to the Board and audience. She stated that the language would need to be tweaked if the Board wanted to change the definition.
Olin Finch stated that homes need to be designed to meet the Town’s guidelines. Member Blakaitis agreed.
Member Jenkins clarified that Mr. Finch considered grading only as fill. Mr. Finch disagreed.
Bill Lane pointed out that if a two (2) story structure is built with parking under it, the house would still be measured from the lowest part of the lot.
Kim Lane felt the definition of fill needed to be changed.
Director Cotellessa stated that she was happy to have the definition of height be from finished grade, but the Board needed to more clearly define what that finished grade could be. She stated that she cannot determine how a lot has changed unless she knew what it was like in the beginning and the end if the Town was going to limit the amount of fill on a lot.
Bill Lane stated that there are a lot of lots in Duck that have holes and are unbuildable because fill is not allowed to be brought in. He stated that it is extremely hard to build on these types of lots with the regulations that are in place.
Kim Lane noted that she owns a piece of expensive property in Town and brought in dirt but was told it was fill and had to conform with the fill requirements.
Director Cotellessa stated that there are properties that have a high end in the back and low in the front. She stated that if the front is raised, fill is effectively being added, as per the Town’s definitions. She stated that because of that, it comes out of the height of the house. She stated that if a homeowner wants to pour slab on grade and build a three (3) story home, the slope would need to be cut into. She stated that there are times where the excess dirt from the slope is used to raise the front of the lot to accommodate the parking. She stated that that sort of fill does not affect the height of the house. She went on to read the definition of fill from the Zoning Ordinance to the Board and the audience.
Olin Finch agreed with Director Cotellessa that grading is fill. He thought that there was no point to having a code which differentiates between lots that are filled and not filled as they are all filled. He agreed with how Director Cotellessa was handling things but felt it was still an unworkable situation since it is up to her interpretation.
Director Cotellessa stated the Board could look at either adjusting the rules to allow people to put pre-designed homes on lots or make the rules more understandable to people. She suggested doing something in between.
Chairman Forlano asked Bill Lane when he designs a house, if he looks at the lot and takes the topography into consideration before building. Bill Lane stated that if the lot looked like it would be difficult to build on, he would stay away from it. He stated that they do look at it but that it wasn’t simple to design a house based on the topography of the land. He pointed out that most homes in Duck are similar looking. Chairman Forlano agreed but didn’t think it was necessarily a good thing. Mr. Lane stated he would rather design more contemporary looking homes instead of the beach-type ones. Chairman Forlano thought that creativity was a good thing for the Town. He thought there were too many cookie-cutter type homes built over the years. Member Blakaitis thought that that was what peopled wanted. Chairman Forlano didn’t think it was what people wanted but thought it made it easier for builders to build homes that looked the same.
Olin Finch stated that if homes with basements could be built, the code could be followed. Chairman Forlano felt it would diminish the visual aspect of the house. Mr. Finch stated that by sinking the home into the ground, it could be considered a better alternative. He stated that he had not seen any evidence of actual functional problems from large homes. He stated that fill and draining can be addressed on a lot. He stated that builders always look at a lot before designing and building a home. He felt that sinking a house was not a good policy as homes have not been built like that for the last fifty (50) years and now the Town is telling builders to build with basements. Chairman Forlano stated that no one was telling builders to do that. Olin Finch agreed and stated that if the Town states that a builder has a homeowner that wants to build a thirty-five (35) foot home, and the Town feels that three (3) stories is too much, then it would be cut down to two (2) stories. He stated that there is a big advantage to three (3) story homes as the Town needs to provide for more people that will be living in Duck in the future.
Council Liaison Lindley cautioned that if the Board lets the issue go and lets everyone build exactly what they want, the community will be destroyed. He stated that communities on the Eastern Seaboard that do not control growth have areas that look like amusement parks.
Olin Finch asked the Board not to continue to cut things so that builders have to build less. Council Liaison Lindley felt that that was the decision, but whether things go as is, things will get out of hand as opposed to trying to tighten things up slightly.
Bill Lane thought the discussion was regarding height. Chairman Forlano agreed and stated that the Board had digressed but would get back on track.
Olin Finch stated that the Town still had to deal with the issue of fill with FEMA regulations and the requirement of two feet. He stated that the Town’s interpretation was two (2) feet freeboard. He thought that FEMA says freeboard is required to be below, which means a home cannot be set so that it is buried in the ground. He stated that if the ground is washed away, a homeowner could lose the ground that holds the house, and it would fall down. Director Cotellessa clarified that the FEMA regulations state that you have to stay free and clear of obstruction on the lowest structural member to the ground. She stated that in the Town’s flood development ordinance, it states a home must be free and clear of obstruction. She stated that the Town’s floodplain ordinance was the model ordinance that FEMA developed a few years ago. She stated that since then, FEMA has changed their ordinance to clarify some issues, specifically what the instances are that free and clear obstruction should be. She stated that the current model ordinance states it should be two (2) feet, which is what other jurisdictions are using.
Olin Finch stated that the Town of Kill Devil Hills only uses one (1) foot and put it into law. He stated that Currituck County allows builders to pour slab on grade for homes. He felt if something was not in writing, it should not be enforceable. He stated that the public should be entitled to the most lenient regulations. Director Cotellessa explained that there are options available to individuals but if the issue is recurring, the Board and Council should be looking at the regulations.
Olin Finch stated he would like to see things be more workable. He suggested that the Town separate the fill from the height elevation as two (2) separate issues. He stated that once a house is started, there would not be any question regarding the height of the house. Chairman Forlano clarified that Mr. Finch was suggesting the two (2) issues be separated, fill would be allowed up to three (3) feet and the house would be measured from the finished grade. Mr. Finch stated that the Town used to measure from the top of the concrete slab as well as from the bottom of the concrete.
Member Jenkins stated he was leaning towards simplification, finish lot grade with a maximum of three (3) feet of fill, but not on a ten (10) foot setback line as it cannot be graded 3.1 and stay out of the five (5) foot area. Director Cotellessa stated that if a house is placed on the ten (10) foot setback line, the maximum fill that could be put there is twenty (20) inches.
Vice Chair Britt agreed that it should be simplified. He agreed with Olin Finch’s comments. Olin Finch stated that the height issue could be debated for a long time. He felt the hot issue was the two (2) foot freeboard. He felt it needed to be put in writing. Director Cotellessa clarified that the FEMA regulations were necessary for the Town to receive federal flood insurance. She stated that the new model ordinance identifies free and clear as two (2) feet. She stated that the Town could change and submit the changes to FEMA to see if they would allow it. She proposed to identify the key features of the Town’s ordinances for the next meeting to include allowing reasonable grading on a lot and measuring the height from the final finished grade.
Member Blakaitis asked if there could be a provision for not cutting a certain percentage into a dune for oceanfront properties. Director Cotellessa stated there was in terms of CAMA regulations. She stated that the Town’s regulations state that a sand dune cannot be cut into unless it’s in the way of a house. Member Blakaitis asked why a slab cannot be placed for a house with that regulation. Olin Finch stated that Director Cotellessa could not take into account how much the slab is raised.
Member Fricker stated he appreciated Olin Finch’s comments but wanted to hear the other side of the issue so that it could help the Board understand the pros and cons.
Kim Lane stated that she agreed with Mr. Finch’s comments.
Chairman Forlano stated that the issue would be tabled until the next meeting after the Board does their tour. Director Cotellessa stated she would bring back a series of points to help the Board deal with the issue.
Chairman Forlano stated there wasn’t any new business to discuss.
APPROVAL OF MINUTES
A. Planning Board Meeting February 14, 2007
Chairman Forlano had one change to Page 3 of the minutes.
Member Jenkins moved to approve the minutes of the Planning Board Meeting of February 14, 2007 as amended.
Minutes for the Planning Board Meeting on February 14, 2007 were approved 4-0. Member Fricker could not vote as he was not present for the meeting.
Director Cotellessa stated she was meeting with the Coastal Resources Commission on March 22, 2007 to give them a report on the Town’s Land Use Plan and what has been accomplished.
Chairman Forlano thanked Kim and Bill Lane for attending the meeting and providing input. He encouraged them to attend more meetings in the future.
Chairman Forlano adjourned the meeting.
The time was 8:50 p.m.
/s/ Ron Forlano, Chairman