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TOWN OF DUCK

PLANNING BOARD

REGULAR MEETING

August 8, 2007

 

The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 6:30 p.m. on Wednesday, August 8, 2007.

 

Present were Chairman Ron Forlano, John Fricker, Joe Blakaitis, and Claiborne Yarbrough.

 

Absent:  Vice Chair Jon Britt.

 

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

 

Others Present: Bob Fitchett, Monica Thibodeau, Olin Finch, and Bill Lane.

 

Chairman Forlano called to order the Regular Meeting of the Planning Board for August 8, 2007 at 6:31 p.m. 

 

PUBLIC COMMENTS

 

None.

 

OLD BUSINESS

 

A.  Consideration/Recommendation of ZTA on Building Height (TC ref. 1/24/07)

 

Director Andy Garman was recognized to speak.  Director Garman stated that at the Board’s July meeting, a proposal was given to the Board regarding building height with the Board recommending modifications to be brought back to this meeting.  He stated that it mainly involved revising the standards to measure height due to the extensive language in the land disturbing ordinance.  He stated that he would refer to the land disturbance ordinance to rely on what can and cannot be done with regard to fill.  He stated he would also simplify the height definition to measure from the average finished grade or the center of the lot underneath the structure in cases where there isn’t a slab.  He stated that the other issue was measuring height in a flood zone.  He stated that the Board looked at another ordinance with regard to free and clear of obstruction and talked extensively about what it would mean.  He stated that the Board had in their packets the definition of free and clear of obstruction.

Chairman Forlano asked for questions or concerns.

Member Blakaitis asked Director Garman to draw a diagram as he was confused about the base flood elevation and free and clear of obstruction.  Director Garman went on to draw a diagram to visually explain the concept of free and clear of obstruction. 

Member Blakaitis asked if owners could have a three (3) story home on the oceanfront with the proposed amendment.  Director Garman stated that they could, as height would be measured from the bottom of the girder.  Member Blakaitis asked how it would be free and clear.  Director Garman stated there would not be any breakaway walls as it would be open and on pilings.

Olin Finch of 116 Sandy Ridge Road was recognized to speak.  Mr. Finch stated that free and clear of obstruction as written did not address the distance under the house.  He stated that the Board was confusing the word “slab” with “concrete floor” as they were not the same thing.  He stated that a concrete floor can be a structural member whereas a slab will collapse without any support under it.  He noted that FEMA does not address structural floors but does address slabs.  He stated that there can be a slab on grade that is below base flood level as long as it has vents and is not considered habitable space.  He stated that the Board had the choice of giving homeowners an extra element of protection by requiring the visual area under the base flood level.

Member Blakaitis asked Olin Finch if the diagram made sense to him.  Olin Finch stated that the Town of Kill Devil Hills was the only town that requires a one foot elevated above grade.  He didn’t think there was anything wrong with that.  He stated that it did not matter to him if the Board put in a requirement to elevate the lowest floors but wanted whatever is taken away to be put into the height.  He thought the Board was creating problems for themselves that needed to be addressed.  He didn’t think the Board totally understood the free and clear of obstruction requirement as there are different flood zones.  He stated that FEMA does not have any requirements as far as how much a person could go above base flood elevation.

Olin Finch stated that most of the oceanfront homes have finished floors at grade level. He asked what would happen if the Town required a certain clearance for them.  He stated that people would not be able to obtain building permits to improve or maintain the ground floors of their homes unless the Town made an exception.  Director Garman pointed out that the cost of the improvement could go up to fifty percent (50%) of the assessed value of the structure before things would need to be brought up to code.

Olin Finch stated that if a homeowner wanted to make any improvements to the ground floor of their oceanfront home, it would not have to be more than fifty percent (50%) to bring it up to code.  He stated that the Building Inspector told him he could not put in a ground floor entry if the pilings weren’t sixteen (16) feet in the ground.  He stated that in this case, the foundation would not meet the requirements.  He added that the building inspector could interpret that nothing could be done unless the homeowner maintains two (2) feet of clearance.  Director Garman stated that if a homeowner had a ground floor living area that was built at grade in a V zone and was legal at the time it was constructed, as long as it does not exceed fifty percent (50%) of the value of the entire structure, the homeowner would not need to bring the entire structure into compliance.

Member Fricker noted that he didn’t think Olin Finch understood it that way.  Olin Finch stated it was all in how it’s interpreted.  Member Blakaitis stated that what Director Garman stated was true, in that it is in the zoning ordinance. He asked how it could be interpreted any other way than how it’s written in the ordinance.  Olin Finch asked if a homeowner would be able to add a bathroom under the home.  Director Garman stated they could as long as they were not exceeding fifty percent (50%) of the value and not increasing the footprint of the structure to make it more nonconforming.

 

Bill Lane of East Coast Construction was recognized to speak.  Mr. Lane asked if CAMA would allow that.  Zoning Administrator Cady stated that CAMA does not regulate flood.  Mr. Lane pointed out that CAMA regulates bathrooms.  Olin Finch pointed out that he was discussing FEMA regulations and not CAMA ones.  Mr. Lane agreed but pointed out that Director Garman just stated that a bathroom could be added. He asked if CAMA would give permission to do that.  Olin Finch stated that CAMA could.  Director Garman stated that Mr. Lane was talking about a whole other set of rules than what the Board was discussing.  Zoning Administrator Cady stated that the CAMA regulations did not have any impact in terms of flood compliance.  Mr. Lane stated that a bathroom could not be put in a flood zone.  He stated that Director Garman stated that the structure could be added to as long as it is not fifty percent (50%) more.  Zoning Administrator Cady stated that the Board was discussing V zone requirements and how it impacts the ability to improve on the property.  Mr. Lane agreed and thought the Board didn’t understand the thirty-five (35) foot height limit where a building is raised on a wooden floor and not a slab. 

 

Olin Finch pointed out that everything that is built is approximately eight (8) feet above grade. He stated that if there was a house with nothing under it, it would not be able to have anything built under it.  Director Garman stated that currently if the elevations are above base flood level, in a V zone and the homeowner wanted to apply for a permit, one would not be issued for a house that is at grade on a slab.  He thought Building Inspector Tate was using some interpretation of FEMA’s rules to say that it has to be so many feet off the ground.  He stated that Building Inspector Tate was interpreting the rules and applying the standard that is realistic.  He stated that Building Inspector Tate would like the rules codified to assist him in his determinations.  He noted that the current building code does not allow Building Inspector Tate to issue a permit to any structure less than twelve (12) or eighteen (18) inches off the grade.  He stated that he was trying to establish a clear and definable standard. He stated that with the proposed ordinance, the Town would still allow a homeowner to achieve a thirty-five (35) foot high structure if their lot was below base flood elevation.

 

Chairman Forlano stated that the ordinance as it was written would only affect new construction and not pre-existing homes.  Director Garman agreed but stated that if the homeowner wanted to increase the footprint of the area that is nonconforming, it would affect them.  Chairman Forlano asked if someone has an older cottage and wanted to build a larger home, would they have to meet the new requirements.  Director Garman stated they would. 

 

Olin Finch stated that a lot of the issues would disappear if the Town did not require pre-disturbance elevations.  He stated that once a certain number is set up for original grade, it would be impossible to make it work.  Director Garman stated that the Board would talk about that later in the meeting.  Mr. Finch stated that height of the building space based upon what the drawings looked like would need to be measured and not what the ground was doing before the house is built. He suggested the Town go before the flood insurance rating board and ask if the Town could get a lower flood insurance rate.  Director Garman stated that the community rating system is a whole separate program and Duck was not currently involved in it.  He stated that if a freeboard is established for the entire Town for flood zone properties, it would help lower the insurance rates.  He pointed out that Duck is not in the community rating system and it would also have to be done for A zone properties.  He thought the proposed ordinance would make things better. He noted that the Board was trying to define free and clear of obstruction.  He stated that at the last meeting, it was determined that the Board did not want the height penalized, which was what the proposed ordinance is trying to do.  He thought it was a fair solution.

 

Member Fricker agreed.  He stated that the focus of the discussion from last month to now was to see if the Board could make Building Inspector Tate’s job a little easier by codifying something he had been doing informally.  He thought Olin Finch was raising a few points such as using slab and concrete.  Olin Finch stated that the Board sees the lowest horizontal structural member as concrete if it’s being built on grade.  He stated that rather than building on wood grade, contractors pour a concrete structure with steel in it, which becomes the equivalent of the wooden floor.  Director Garman stated that for a V zone structure, the wooden girder would be the lowest horizontal member.  Olin Finch argued that it could be concrete.  He stated that concrete structural floors were better, especially for oceanfront homes because there is sixteen (16) inches of concrete.  Director Garman thought the FEMA technical guidelines encouraged wood pilings in a V zone.  Olin Finch stated that if the Board was discussing free and clear of obstruction because of flood insurance, it would make it safer for oceanfront properties.  He wondered what obligation the Board had to determine how safe the structure was as the owner was taking an unsafe route by building on a dune.  He added that if the Town would not benefit from it, why it would try to introduce an extra element of safety to the homeowner.  He thought the only reason was to obtain a lower flood insurance rating, but added that the Town doesn’t participate in the rating system.  Director Garman corrected Mr. Finch and stated that the Town does not participate in the community rating system but does participate in the National Flood Insurance Program, which was what the Board was discussing.  Mr. Finch agreed.

 

Member Fricker thought Olin Finch was re-arguing and debating what was discussed at the July meeting.  He thought at the last meeting, the Board thought it was advisable to codify a measure of free and clear of obstruction and were persuaded by the presentation by Building Inspector Tate.  He stated that Mr. Finch had argued strongly to the contrary.  He stated that he had asked Mr. Finch to present scientific evidence that shows a half inch was just as good as two (2) feet for the concerns that the Board had expressed, but that Mr. Finch was not able to do so.  Olin Finch stated he hadn’t because the Board was now being forced to deal with the issue as they are enforcing two (2) feet, which was not written anywhere.  He stated that there was nothing written other than no obstructions below base flood level.  Director Garman read that it said “…no obstructions below the structure in a V zone below the lowest horizontal structural member in addition to raising the structure above BFE…”  He stated that it meant the structure had to be off the ground with an open piling foundation where water could pass underneath. He thought at a minimum it would be eighteen (18) inches, but that Building Inspector Tate had suggested two (2) feet because of the technical documents obtained from FEMA.  He stated that if the Board took no action, Building Inspector Tate would still make people build eighteen (18) inches off the grade because of building code regulations.

 

Bill Lane asked if a structure was above the base flood height, why the building should have to be brought up more.  He agreed with Olin Finch that there is nothing that states two (2) feet or eighteen (18) inches, only above the V zone.  Director Garman stated that it says it has to be elevated above the ground so water could pass underneath.  Mr. Lane and Olin Finch disagreed and stated it did not say that.  Director Garman stated that the Board had the technical documentation from the last meeting which defined free and clear of obstruction. 

 

Chairman Forlano asked if the two (2) foot freeboard would be penalizing anyone.  Bill Lane stated that the Town would have to vote to bring up the two (2) foot to meet the VE.  Mr. Lane stated that the Town of Southern Shores did it for better insurance rates.  Director Garman stated that there is a CRS rating that should help individual homeowners obtain a better insurance premium because every foot above BFE allows for a better premium.  Chairman Forlano thought that the insurance company’s mentality was to “wiggle out” wherever possible with flood insurance and not with just oceanfront properties. He stated that if an insurance company comes in and declares the Outer Banks a high hazard area; they could say they would not carry flood insurance.  Director Garman stated that the Town was trying to maintain its status as an active community with NFIP, which states that in V zones there must be a free and clear of obstruction. Chairman Forlano stated that he understood, but thought anything the Town could do to satisfy NFIP would help with insurance.

 

Member Fricker asked why Olin Finch and Bill Lane were opposed to the Board’s proposal. Bill Lane stated he was not opposed to it but did not know why it would have to be done if the structure was already above the VE.  Olin Finch stated he was not opposed to it but was trying to help the Board understand what they were discussing.  He didn’t think the Board had the correct understanding of what he was talking about.  He stated that the better the Board understood things, the better their decision would be.

 

Director Garman stated that the flood maps were re-done in September 2006 which made a lot of properties nonconforming with regard to base flood elevation.  He stated that should there ever be a disaster where homes are destroyed by fifty percent (50%), they would then have to meet the free and clear as well as the higher BFEs if they weren’t built to that in the first place.  He stated that the issues are already there with regard to nonconformities.  He didn’t think the proposed ordinance would make things substantially worse.  Chairman Forlano clarified that the ordinance was an advantage.  Director Garman thought it would help the Town and could not see how it would hurt or penalize people. 

 

Member Fricker thought it may hurt the building industry in that there may be homeowners that want to do some work on an oceanfront home in a V zone where there is a risk that they couldn’t do it because of compliance with the proposed ordinance. Olin Finch stated that the value of the building industry falls below the value of whether it is a good ordinance for the public.  Member Fricker stated he was trying to understand Bill Lane’s objection.  Bill Lane stated he did not have an objection, but didn’t understand why it had to be done if the structure was already above the V zone.  Mr. Finch stated it would ultimately be the property owner who decides if a building should be built or not.  He stated that he could see the problems with changing the ordinance without first having the careful consideration of how it will be administered.

 

Member Yarbrough asked if language needed to be added to the ordinance with regard to renovations.  Director Garman stated it was covered in the model ordinance.  Olin Finch asked if it only applied to VE zones.  Director Garman stated it did.  Mr. Finch asked why all houses didn’t have to be twelve (12) inches above ground level.  Director Garman stated that Building Inspector Tate raised the issue because the FEMA requirements spoke specifically to V zones and defining free and clear of obstruction.

 

Member Fricker asked Zoning Administrator Cady for a copy of the July 11, 2007 Planning Board agenda.

 

Member Yarbrough clarified that the current language lists that structures need to be eighteen (18) inches, and the new language would add six (6) more inches.  She clarified that ultimately the Town would allow for the measurement of the height of the house to be from two (2) feet.  She thought this would be a positive step forward, but thought it had turned into a more technical discussion, causing the Board to get off-track of what they originally were trying to accomplish.  Chairman Forlano didn’t think it would be penalizing the homeowner.  Member Yarbrough stated that initially the Town was counting the eighteen (18) inches against the height of the house but now it’s not.  Chairman Forlano stated that it was penalizing the homeowners.  Member Yarbrough reiterated that the ordinance should be a positive step forward.  Chairman Forlano thought it was.

 

Member Fricker stated that in the packet from the last Board meeting, there were copies of portions of the National Flood Insurance regulations in the packet.  He went on to quote from the regulations to the Board and audience regarding free and clear of obstruction.  Olin Finch pointed out that it did not state “elevated above grade” or “open above grade”.  He stated that the regulations were addressing what people build below the lowest horizontal member.  Member Blakaitis stated that the Board wasn’t discussing it.  Mr. Finch disagreed.  He stated that the sand that is on a lot was nothing more than the existing grade and if there was a certain distance that was better, the ground should be dug out under the house.  Director Garman stated that this is not allowed.  Mr. Finch agreed and stated it wasn’t even recommended.  Member Fricker pointed out that Olin Finch was changing his arguments and his points.  He stated that he had specifically read from the regulations because Mr. Finch had indicated that regulations did not have anything that spoke about the requirement of a space above grade.  He stated that all construction was basically above BFE.  Mr. Finch stated it was only when there was space above grade.  Member Fricker pointed out that the regulations stated in all cases, there shall be a space between the lowest floor and grade.  Mr. Finch pointed out that the regulations also state that there cannot be an obstruction.  He stated that the regulations only allow obstructions if they are open lattice or a wall with vents in it.  He stated that loose sand existing on a lot was not defined as an obstruction.  Member Fricker clarified that Olin Finch was now arguing that sand should not be considered an obstruction so sand should be allowed against the lowest member.  Mr. Finch stated he was correct.  Director Garman pointed out that sand cannot structurally support a house.  Mr. Finch agreed. 

 

Chairman Forlano asked if there was anything negative with regard to the two (2) foot open space.  Member Blakaitis thought it clarified what is already being administered.  He didn’t think it was hurting anyone and thought the Board should move ahead with the rest of the text amendment.  Member Fricker stated he did not see anything negative on the two (2) foot open space.  Member Yarbrough thought it was a positive move.

 

Member Fricker moved that the ordinance amending the zoning ordinance of the Town of Duck, North Carolina, regarding building height as proposed be forwarded to the Town Council for its approval and adoption. Member Yarbrough seconded.

 

Motion carried 4-0.

 

Director Garman noted that the findings were consistent with the Town’s Land Use Plan.

 

B.  Consideration/Recommendation of Flood Damage Prevention Ordinance Amendment Establishing a Definition for Free and Clear of Obstruction

 

Director Garman stated that the amendment would be to the Town’s flood damage prevention ordinance and not the zoning ordinance.  He stated that there would be a relationship between the two (2) ordinances as they would reference each other.  The ordinance would establish the definition of free and clear of obstruction as being essentially two feet off the ground.  This would be the minimum elevation requirement for the lowest horizontal structural member in a V zone. 

 

Member Blakaitis asked if the language was taken from FEMA.  Director Garman stated he was correct.  Member Fricker thought it was consistent with what the Board discussed at their July meeting.

 

Chairman Forlano stated that it spelled out the enclosure of the two (2) feet in that it states: “…nonbearing, solid breakaway walls, open lattice panels, insect screening are not considered obstructions…”

 

Member Fricker moved that the proposed ordinance amending the flood damage prevention ordinance of the Town of Duck, North Carolina, regarding the definition of free and clear of obstruction be forwarded to the Town Council for their approval.  Member Yarbrough seconded.

 

Motion carried 4-0.

 

C.  Consideration/Recommendation of ZTA on Fill/Grading

 

Director Garman stated that at last month’s meeting, the Board discussed the proposal to build in some flexibility to the land disturbance portion of the ordinance to allow people developing residential lots to have more flexibility with respect to leveling a building pad or an area for a driveway or septic system.  He stated the Board had directed him to adjust the proposal to state that a lot for a single-family dwelling, accessory structures and driveway/parking areas can be graded where it is not necessary to raise a house to the base flood elevation a maximum of three (3) feet from the lowest pre-disturbance elevation.  He noted that if a lot is already higher than the adjacent grade or BFE, it would give an additional amount of fill to allow for a level building pad.  He thought the Board recommended a maximum allowance of three (3) feet above the lowest pre-disturbance elevation for the footprint of the structure.  If a homeowner went beyond that, it would be counted against their building height and may require an engineered stormwater plan and a special exception permit.

 

Member Blakaitis noted that the issue was discussed at several meetings and thought the revision said what the Board had discussed at the last few meetings.  He stated he did not see anything missing as far as what the Board had discussed.

 

Olin Finch asked what the Town’s definition was for the footprint of a house.  Member Blakaitis stated that the definition was the average area underneath the house between the pilings.  Mr. Finch asked how the Town quantified it.  Member Blakaitis stated it was four (4) pilings and the footprint was what was under it. Chairman Forlano thought the Board had discussed that the footprint was the total perimeter of the house.

 

Member Fricker asked if it was in the ordinance.  Director Garman stated if you were looking at the lowest pre-disturbance elevation beneath footprint, then you would have to go out and establish the lowest pre-disturbance elevation of any of the fourteen (14) corners.  Olin Finch clarified that it didn’t state if it included a deck, open deck or screened porch.  Member Blakaitis stated it did not.  He asked what the ordinance presently states.  Director Garman didn’t think the ordinance specifically defined the footprint as being a certain corner under the house.  He thought generally, the Town was basing it on the four (4) corners and in a case with fourteen (14) corners; the Town would rely on a survey that established a reasonable number of elevation points beneath the structure.  Member Blakaitis asked if it would be unnecessary with the proposed text amendment.  Olin Finch stated it wouldn’t as it would ask contractors to determine the pre-disturbance location elevations.

 

Chairman Forlano asked what Olin Finch’s recommendation was for the footprint.  Olin Finch stated he wouldn’t be doing anything if there wasn’t some type of solution.  He stated he would like to see it defined with a range with regard to the elevations of the house. Bill Lane stated that he has always known the footprint as being the four (4) corners of the house and not the deck.  Director Garman agreed.  Member Blakaitis asked why the ordinance needed to state four (4) corners.  Olin Finch stated that it’s rare for houses to have four (4) corners.  Member Blakaitis stated that the Board’s intention was to allow a builder to come in and smooth a section within certain guidelines.  Member Yarbrough thought it was the original intent.

 

Director Garman thought it would help to let the surveyor establish four or five (4 or 5) points under the footprint that they think are the lowest points and then stake them so staff can visually inspect them.  Member Blakaitis clarified that the ordinance would no longer require pre-disturbance elevation from the lowest point.  Olin Finch stated it was from the elevation of the corners.  Member Blakaitis noted that with this new ordinance, interior lot depressions could now be filled.  Mr. Finch agreed. 

 

Member Yarbrough pointed out that her house has more than four (4) corners. She stated that she was able to work with the Town with regard to filling in the holes.  She stated that the positive outcome would be any four (4) corners.  Olin Finch stated it may be too liberal.  He stated that there needed to be some way to define four (4) corners.  He stated that four (4) corners closest to the outside of the perimeter of the home would work to stop someone from taking advantage.  Bill Lane asked why it couldn’t be average grade as it would be simpler.  Director Garman stated that there are a lot of pitfalls to it.

 

Chairman Forlano asked if the Board needed to define Section C where it states: “…three (3) feet at any location under the footprint of the dwelling unit…”   He asked if the Board should define how to determine the footprint of the dwelling unit as four (4) corners around the perimeter of the house.  He asked if it could be put in as the definition of the footprint.  Director Garman thought it could be done.  Olin Finch pointed out that it was addressing living area and suggested adding whether decks were included or not.  Chairman Forlano agreed.  He suggested that it be specific about the footprint as living area and the four (4) corners around the closest perimeter.

 

Member Fricker thought the Board was discussing two (2) different issues – one was what the footprint was and if it included decking and the other was where and by what means pre-disturbance ground elevations are measured.  Olin Finch stated it was the decision of the Board on how they will let people grade their lots.  Member Fricker asked if the Board was discussing two (2) different issues.  Mr. Finch stated they were.  He stated that he was addressing language that could be a problem.  Member Fricker asked if the Board could direct staff to propose a definition of what a footprint would be and put it in as part of the introductory language in Paragraph 12.  Chairman Forlano felt the footprint had to be defined.  Member Fricker agreed and proposed that it be defined consistent with what has been the working understanding of staff and the building inspector as to what the footprint was.  Member Fricker felt the definition was more complicated.  Olin Finch stated it was only complicated if a contractor was to tell a surveyor where to establish existing grade.

 

Member Yarbrough asked if the purpose of the discussion was for the Board to address an issue that was a problem and try to make it easier. Member Blakaitis stated that the Board was not going to change the definition of a footprint as far as the Town is concerned.  Olin Finch noted that there wasn’t presently a definition.  Member Yarbrough stated there would be if the Board approves the amendment.  Member Blakaitis disagreed.  Chairman Forlano stated that if the Board defined footprint, it could be relative to the ordinance and didn’t have to be a general footprint.  Member Yarbrough thought the Board should do what was recommended.  Member Blakaitis thought there needed to be another word for footprint as it pertained to the ordinance.  He added that it should be kept with the heated area. 

 

Member Blakaitis asked if the ordinance put forth the Board’s intent to make things easier for builders.  Olin Finch stated it did.  Chairman Forlano agreed.  Member Blakaitis thought only one (1) issue was resolved.  He stated that the other issue was how pre-disturbance ground elevations are determined.  Olin Finch stated that it did not have to be addressed.  Member Fricker agreed but noted that if the Board did not address it, it would lead to vagueness and be subject to interpretation.  He thought it should be addressed now.  Member Blakaitis asked if pre-disturbance location needed to be defined.  Member Fricker stated it wasn’t a matter of defining it, but how it’s measured. 

 

Chairman Forlano asked Director Garman for his suggestion.  Director Garman thought defining it as the heated area was reasonable.  Member Fricker asked Director Garman if he needed time to think about it.  Director Garman stated it would be helpful to have some time.  Olin Finch suggested, “four (4) remotely located corners of the heated area”. He added that the four (4) remote corners could then be left up to the administration.  Member Yarbrough didn’t think the amendment should be tossed out.  She thought the benefit of the amendment was more important than how the Board defined it.

 

Chairman Forlano thought there wasn’t any discussion that the ordinance would be tossed out.  He stated that everything was fine with the amendment, but thought the Board needed to be specific about certain things.  He thought that where to measure and footprint needed to be redefined a little further.  He suggested Director Garman massage the area that was discussed and bring it back at the next meeting.

 

Member Blakaitis stated that Paragraph B (lot depressions), allows depressions inside of ten (10) feet from the lot lines to be filled and the post filled condition could be considered pre-existing ground elevation.  He noted that it did not state anything about how much could be filled or how deep the hole could be.  Director Garman stated that once the hole is filled, it is considered pre-existing grade.  Member Blakaitis asked why a builder could not come in, fill all the holes on the lot and have pre-existing grade from there.  Member Fricker asked if Member Blakaitis was questioning Part B.  Member Blakaitis stated he wasn’t but clarified the meaning of Part B with respect to a hole in the middle of the lot that could be filled and become pre-existing grade.  Member Fricker stated that there was a consequence, which was in Part C.  Member Blakaitis agreed.  Member Fricker stated that Part C stated that fill could be put in but it would come out of the height of the house.  Member Blakaitis disagreed.  Director Garman stated that he understood things were if there was a depression in the lot, it could be filled so it was no higher than the surrounding adjacent grade and then height would be measured from there.  Member Blakaitis agreed.

 

Member Fricker stated he wished to revise his interpretation of Part B and C as Director Garman had explained it.  He asked if Part C was consistent with Part B.  Member Blakaitis stated it was confusing as it was not describing filling a hole or doing more than that.  Director Garman stated that there was some inconsistency in the terminology which could be clarified with regard to pre-existing versus pre-disturbance.  He suggested changing it to pre-disturbance to be consistent.  Director Garman reiterated that he would change pre-existing to pre-disturbance in the ordinance and define footprint to make it clear for the amendment.

 

Member Blakaitis clarified that the ordinance would be going back for clarification and re-writing.  He further clarified that A and B were approved for Council.  He asked if Council should receive all three (3) amendments instead of just two (2) of them.  Chairman Forlano stated that A was related to building height but didn’t know if B was.  Member Blakaitis asked Monica Thibodeau for her thoughts.  Monica Thibodeau thought they were tied together.  Member Blakaitis asked if Council could consider the issues separately.  He wondered if they should be approved and held for now.  Chairman Forlano stated that just because the amendments were approved now did not mean it had to go to Council immediately.  He asked if it could stay with the Board until C was approved.  Monica Thibodeau thought if the Board thought the items should go together, then they should hold them.  Council Liaison Lindley asked if it would be the Board’s recommendation.  Member Blakaitis stated it would be his recommendation.  Ms. Thibodeau stated that it would be easier with regard to public hearings.

 

Member Fricker asked if there was a way the Board could make a motion to send it up to Council based upon what was on the table with the understanding that there would be definitions added or should the Board wait until the next meeting to see the changes.  Chairman Forlano stated he did not feel comfortable doing that.  He stated he would rather wait to see the changes as they seemed to be substantial.  He proposed the Board put the amendments on the table and pass all three (3) up at the same time.

 

Member Fricker moved that the proposed ordinance amending the zoning ordinance of the Town of Duck regarding disturbing activity standards be sent back for further revisions as discussed.  Member Blakaitis seconded.

 

Motion carried 4-0.

 

Chairman Forlano asked for a motion for holding back on agenda items A and B.

 

Member Blakaitis moved that the Planning Board consider holding back on the motion of the consideration/recommendation of the zoning text amendment on building height and the consideration/recommendation of flood damage prevention ordinance amendment where a definition of free and clear of obstruction was established until the Board has reviewed and passed the consideration/recommendation of the zoning text amendment on fill and grading.  Member Fricker seconded.

 

Motion carried 4-0.

 

Director Garman noted that agenda items A and B will not be on next month’s agenda as they will be deferred for presentation to Council until item C was resolved.  He stated that all three (3) items will likely go before Council at their October meeting.

 

D.  Worksession/Discussion on Fence Regulations

 

Director Garman stated that at the last meeting a presentation was given on fencing with a discussion on the various reasons why communities will adopt fence regulations as well as regulations dealing with bulkheading and walls.  He stated that the values that communities express were also discussed.  He stated that the Board discussed fencing pools, vegetation along NC 12 and maintaining the natural appearance of that corridor, allowing fences in the rear yard and only in the front if it was required for the pool barrier.  He stated that additionally the Board discussed other fence regulations such as allowing screening between residential and commercial properties, having fences up to six (6) feet regardless of what yard the fence was in, allowing screening for mechanical equipment and tennis courts, and putting in language with regard to bulkheads and retaining walls.  He stated that the issue was for discussion purposes.

 

Member Blakaitis asked what the rationale was for ten (10) foot high fences versus six (6) foot high ones in residential versus commercial.  He asked if it was standard.  Director Garman stated that it recognizes that there may be certain high intensity uses in commercial areas that may require screening of that nature.  Member Blakaitis asked if there were any ten (10) foot high fences in the commercial area of Duck.  Chairman Forlano stated there was and that Dare County had allowed the ten (10) foot height as a buffer between residential and commercial.  Member Fricker asked where there was such a buffer.  Zoning Administrator Cady thought there was one between the old Swan Cove restaurant and the residential property to the south of it.  Director Garman asked how high the buffer was.  Zoning Administrator Cady guessed it was ten (10) feet. Director Garman stated that fencing was not typical on most commercial properties unless it’s required for a buffer.

 

Member Fricker asked for an explanation for the fifty (50) inch requirement for certain fences.  Director Garman stated it was to allow for some flexibility with regard to pool barriers since they have to be a minimum of four feet to meet the building code.  Member Fricker asked what happens to people with pets that want to fence in their entire yard.  Director Garman stated that it would not be allowed unless it was only in the back yard and set back so far.  Chairman Forlano thought fencing rules might take away a lot of the property rights of pets and children.  He stated that if a parent wants a child to have the entire yard to run around in, he thought the Town could be taking away their rights.

 

Olin Finch suggested allowing two (2) feet off the property lines for fences if the Board wanted to pull them away from the property lines.  Director Garman stated that the language could be clarified as his intent was to say if the pool was in the front yard, the fence would have to meet the setback.  He didn’t think he intended it to mean if the pool was in the rear yard, the pool fence would have to meet the setback.

 

Bob Fitchett of 102 North Bias Lane was recognized to speak.  Mr. Fitchett stated he was in favor of fences, but didn’t believe it was a problem to have a fence go to the property line.  He stated that he didn’t see a problem having a fence in the back yard going to the property line.  Chairman Forlano asked if he had a problem with the proliferation of fencing in Duck.  Mr. Fitchett stated he did not.  He asked if there was.  Chairman Forlano stated he did not know. Member Yarbrough stated that the Board had discussed maintaining open corridors for wildlife and one of the concerns was the proliferation of rear yard fencing.

 

Member Fricker stated that the Board discussed at their July meeting not only areas for wildlife to pass through but also adjacent landowners maintaining their fences.  He didn’t think it was a problem now but thought pool barriers were unattractive.  He stated he would like to try to avoid having them proliferate. He agreed with Chairman Forlano that people should be able to use their property the way they want.

 

Director Garman asked if there were any specific issues that Board wanted to address.  Member Fricker asked what the genesis of the issue was.  Member Blakaitis thought it was discussed briefly at one point and thought Director Suzanne Cotellessa suggested it be discussed at a later meeting as fences may get out of hand.  He agreed with Member Fricker that most fences were unattractive.  Chairman Forlano stated that what is attractive to one person may not be attractive to another.  He asked how the Town could come up with an ordinance.  Member Blakaitis stated the Board could talk about materials and spacing to prevent an egregious situation.  Member Yarbrough pointed out that some of the homeowner associations are handling this issue in their regulations.  Olin Finch stated that the question was if there was potential for a problem.  Chairman Forlano agreed.  Council Liaison Lindley stated there was a safety issue, especially with corner lots.

 

Olin Finch pointed out that by the Town allowing fences to go to the property line, it is directly stating that wildlife corridors are not worthy of consideration.  Director Garman stated he could do some research regarding the subdivisions that have homeowner regulations and what they consist of.  He didn’t think the Town was saying they didn’t value wildlife corridors because it doesn’t have fence regulations. He stated that the impact of the regulations and the existing conditions have to be balanced.  Chairman Forlano stated that there are as many people that want fences as those that do not.  Member Fricker disagreed in that there are very few fences in Duck.  Chairman Forlano asked what the problem was.  Member Fricker didn’t think there was a problem.  He thought the issue arose out of the notion that there could be a problem one day and that it should be discussed.

 

Director Garman asked the Board if there was any situation that the Town would have to come up with to prohibit the proliferation of fences.  He stated that if NC 12 had nothing but six (6) foot privacy fences along it, it would be something that the Board might want to pre-empt.  Chairman Forlano suggested looking at what the fencing situation was.  He stated that the Board did not want to see the proliferation of six (6) foot high fences.  He stated that he didn’t think the Board wanted to look at what was and wasn’t attractive with respect to fences.  Member Blakaitis didn’t think the fencing issue was a problem.  He suggested coming up with something simple to start with and go from there.  Member Yarbrough suggested tying the vegetation requirement in somehow.  Chairman Forlano suggested coming up with suggestions on screening fences with vegetation.

 

Director Garman stated that a lot of communities try to control privacy fences.  He stated that there are some properties with the front driveway on one street but the rear yard backs up to another street.  He stated that in those cases, you will see the rear yard fence from the street. However, in the instances where rear yards back up to one another rear yard, the rear yard fence is not as much of a visual issue.  Member Blakaitis pointed out that a lot of people in Duck use vegetation for the rear yard fence, which the Town encourages.  Director Garman stated that privacy fences seem to be an issue, which is why there are ordinances regulating them as far as the height.

 

Member Yarbrough thought that another Board member had indicated a potential safety issue regarding higher fences in the front yard with respect to visibility. Member Blakaitis agreed and pointed out that there has to be sight corridors.  Director Garman agreed and thought there was something in the ordinance to protect the sight triangle.  He stated that the issue may be something that would have to be dealt with in the future.  Chairman Forlano thought the barriers needed to be pushed back from the street for driveway egress.

 

Chairman Forlano suggested Director Garman bring back a rough draft of alternative language to the next meeting.  Director Garman stated he would.  Member Fricker suggested including anything with regard to materials.  Member Blakaitis didn’t think a rough draft was needed.  He asked if Chairman Forlano was asking Director Garman to bring back a rough draft of a zoning text amendment.  Chairman Forlano stated he was as the Board had to start somewhere.  He didn’t think the Board wanted to get involved with materials.

 

Olin Finch stated that the Board could consider open fences if they decided to address the issue of wildlife.  Member Blakaitis suggested adding language that would talk of open rail fencing. 

 

NEW BUSINESS

 

Director Garman stated that a topic to discuss at a future meeting could be one regarding as-built survey requirements.  He thought it could be on the next agenda as well as how the Town could provide some flexibility.  He stated that the current ordinance requires a survey dated within nine (9) months of the application to apply for a building permit.  He stated that there has been discussion about providing more discretion when the Town requires a current survey, relative to the type of project.  Chairman Forlano suggested adding the element of time with respect to doing work on a home.  He asked if the homeowners would appreciate an extension of time before the building permit runs out without paying an additional fee.  Director Garman stated that presently an owner has six (6) months.  Zoning Administrator Cady added that they have six (6) months to substantially start work.  She stated that after that, the owner receives an inspection and then has one (1) year before another inspection or else the permit expires.  She thought the permit expiration was tied to building code requirements.  Director Garman stated there hasn’t been any problem in Town with the permit expiration.

 

Member Fricker thought there was one (1) house that has taken advantage of the rules.  Zoning Administrator Cady stated that the owner has pulled permits, closed them out and then started a new project.  Member Fricker stated that he would like to see the issue with this particular property addressed as it has become an eyesore.

 

Director Garman asked if there were any other specific issues the Board wished to address.  Chairman Forlano stated that if the Board was going to look at existing ordinances, he would like to look at complaints from citizens regarding permitting in Town, such as obtaining a permit to change out a part of an air conditioning unit.  He thought it was something the Board should look at to help make it easier for the citizens.  Director Garman asked if Chairman Forlano was referring to the fees the Town charges.  Chairman Forlano stated he was referring to permitting.  He stated that he understood there needed to be rules in Town but thought maybe it went too far with some of the permits required and should be looked at.

 

Chairman Forlano thought that licensed electricians and plumbers should obtain permits for their work.  He asked if he wished to change out the siding on his house, it would require a permit.  Zoning Administrator Cady stated that if the cost was $5,000 or more, it would require one as per the building code.  Member Fricker asked if the building code required a permit for installation of carpet.  Zoning Administrator Cady stated it would if the job exceeded $5,000 according to the building code.  Chairman Forlano asked what building code was being referenced.  Zoning Administrator Cady stated it was the residential building code that the Town adopted and the Building Inspector enforces.  Director Garman suggested bringing back some information with regard to requirements for permitting.  Chairman Forlano pointed out that he threw the idea out for discussion purposes.  Director Garman stated that there have been discussions about permit fees but wasn’t sure if the permit itself or the fees were the issue for people.  He thought the fee schedule was fine but wondered if it could be made more palatable for people.  He stated he would discuss the issue with the Town Manager to see what could be done.  He asked if the Board had received a lot of comments from the public about permitting and fees.  Chairman Forlano stated he has heard a lot of complaints about how difficult it was to do anything in Town.

 

Bob Fitchett pointed out that the angst with the people was not just the cost of the permit but in obtaining one and making sure everything is correct.  Member Yarbrough thought nonresident property owners had an especially difficult time.  Director Garman noted that the Town has rules and compliance with those rules needs to be verified.  Chairman Forlano stated that the Town should be more communicative with the public regarding fees and permits.  Member Fricker stated that people also want to have the feeling of rational justification for the cost of the permit.  He thought the Board could use some education on it.  Member Blakaitis asked if the code was part of the State building code.  Director Garman stated that the Town adopts the code.  Member Blakaitis asked if when a town adopts a code, it would have to abide by everything in the code.  Director Garman stated that it would.   Chairman Forlano suggested the issue be discussed at a future meeting.

 

APPROVAL OF MINUTES

 

A.  Planning Board Meeting July 11, 2007

 

Member Blakaitis moved to approve the minutes of the Planning Board Meeting of July 11, 2007 as presented. 

 

Minutes for the Planning Board Meeting on July 11, 2007 were approved 3-0.  Member Yarbrough was not present for the meeting and could not vote.

 

OTHER BUSINESS

 

None.

 

STAFF COMMENTS

 

None.

 

BOARD COMMENTS

 

Member Yarbrough stated that she will have conflicts with upcoming meetings.  She stated she missed July’s meeting because of a babysitting issue.  She stated she would not be able to attend September or November’s Board meetings.  She stated that she checked with Zoning Administrator Cady and found out that a Board member cannot be absent from three (3) consecutive meetings or a total of six (6) in a year.  She stated that the Board may need to make the consideration of appointing another person.

 

Member Fricker asked for clarification on how many meetings a Board member could miss.  Chairman Forlano stated a Board member cannot miss three (3) consecutive meetings.  Zoning Administrator Cady added that a Board member also could not miss six (6) in a calendar year.  Director Garman added that it was in a twelve (12) month period.  Member Yarbrough stated it wasn’t technically a problem but didn’t want it to affect the Board’s ability to effectively handle the work.  Chairman Forlano stated it was not up to the Board to appoint a new member as the Planning Board serves at the discretion of the Town Council.  He stated it was his job to monitor how many meetings are missed and inform the Mayor of it.  He stated that it was moot point as Member Yarbrough hadn’t missed that many meetings.

 

Director Garman stated that Member Yarbrough had discussed the issue with him and he had suggested that he would make an effort to get a packet to her before each meeting so she can submit written comments or suggestions that he can bring before the Board.  Chairman Forlano reiterated that there wasn’t a problem but that he would watch if she missed more than six (6) meetings.

 

ADJOURNMENT

 

Chairman Forlano adjourned the meeting.

 

The time was 9:41 p.m.

 

 

Approved: ______________________________________________

                        /s/ Ron Forlano, Chairman


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