TOWN OF DUCK
November 14, 2007
The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 6:30 p.m. on Wednesday, November 14, 2007.
Present were Chairman Ron Forlano, Vice Chair Jon Britt, John Fricker, Joe Blakaitis, and Claiborne Yarbrough.
Also present were Director of Community Development Andy Garman, Council Liaison Denver Lindley, Jr. and Zoning Technician Sandy Cady.
Others Present: Connie Story Pierce, Walter Story, Dave Wessel, Bill Lane of East Coast Construction, Monica Thibodeau, and Willo Kelly of the Outer Banks Homebuilder’s Association.
Chairman Forlano called to order the Regular Meeting of the Planning Board for November 14, 2007 at 6:32 p.m.
A. Discussion/Review of Administrative Policy regarding Permit Application and Survey Submission Requirements (TC ref. 9/5/07)
Director Andy Garman was recognized to speak. Director Garman stated that at the November 7, 2007 Council meeting, the Town Council scheduled the survey ordinance for public hearing. This ordinance would remove the requirement to have a survey dated within nine (9) months of the application for all building and land disturbance permits. Staff has recommended an administrative policy to help determine what types of surveys would be required for various projects. This administrative policy was in the Board’s packet for their review and discussion. He stated that the idea was to have something on paper that allows for consistency and gives flexibility to applicants.
Member Fricker thought it was a good policy. He asked who else was involved in developing the policy. Director Garman stated that Building Inspector Cory Tate and Zoning Technician Sandy Cady were also involved, in addition to discussions held with other municipalities.
Referencing the administrative policy, Chairman Forlano asked if a survey was not required for tree clearing, how would it be determined where a tree was on a lot? Director Garman stated that a vegetation management plan would be required for clearing. He stated that the amount of canopy needed would be verified. He added that trees do not show up on surveys. He stated that if someone wanted to do substantial clearing for a new home and decided to clear the lot before obtaining a building permit, they would need a land disturbance permit. He stated that with a land disturbance permit, a survey is required. Chairman Forlano asked why a health department approval was needed to replace pilings or girders if a homeowner was staying in the same footprint. Director Garman stated that there could be potential for the Town not to require the health department approval in that instance. He thought the Town did not want to get into judgment calls when a health department approval was needed. He thought a health department approval would not be needed if staff could verify the location of the septic system on a survey.
Member Yarbrough asked why engineering for doors would be needed if a project was under $5,000. Zoning Technician Sandy Cady was recognized to speak. Zoning Technician Cady thought it would be a question that Building Inspector Tate could answer. Director Garman thought there were cases where the building inspector could be supplied with the specifications for the product being used without an engineering plan.
Chairman Forlano asked if any more time was needed to work on the matrix. Director Garman stated that staff would continue to review and refine the matrix.
Member Blakaitis thought Council had reviewed the issue at their last meeting. Director Garman stated that Council had scheduled the ordinance amendment for a public hearing to be held on December 5, 2007.
A. Discussion/Review of Tree and Vegetation Preservation and Planting Ordinance with Suggested Amendments
Director Garman stated that a presentation was given to Council at their September 5, 2007 meeting regarding the status of the vegetation ordinance and the permitting process. He stated that approximately forty (40) vegetation management plans have been approved since the ordinance was adopted. He stated that most of the projects were remodels, septic repair, new decks, porch enclosures, and some new construction. He stated that it typically is a simple process. He reviewed with the Board the steps it takes to prepare and approve a vegetation management plan.
Director Garman stated that a few issues have arisen with regard to the ordinance. He stated that one issue was the oceanfront areas; most of the plants allowed by the ordinance do not grow well on the oceanfront. He stated that a number of permits have come in for homes on the oceanfront with the owners wanting to preserve the existing vegetation. Many times, credit cannot be given to retain existing vegetation in oceanfront areas because these plants are not on the approved plant list. He stated that in some cases, the Town may be asking the owners to plant things that would not do well on the oceanfront in lieu of what is well adapted to the area. He stated that the ordinance does not specifically provide for an allowance to retain significant areas of oceanfront vegetation. He stated that he was looking to see if the Planning Board thought it would be good to try to build-in the ability to preserve species that grow well on the oceanfront. He thought a system could be designed that would give homeowners partial credit for vegetation that is native to the oceanfront. He stated that every project on the oceanfront requires a CAMA permit; however, CAMA limits the amount of disturbance to the dune area. He thought that since those areas are limited with regard to disturbance, the ordinance would only give partial credit for retaining those areas. He stated this could also apply to sound side lots as well. Director Garman thought the directive from Council was to make the ordinance as painless as possible so people could comply with it.
Chairman Forlano thought the existing scrub on a lot should be given full credit instead of partial credit as it still serves the intent of the ordinance. He stated it would give homeowners incentive to maintain as much existing vegetation as possible.
Member Yarbrough thought the beach grasses should be added to the list of acceptable vegetation. Director Garman thought it could be included in the list. He stated that there would have to be some way to calculate the canopy for those types of plants versus shrubs. He stated that the Town of Southern Shores has a short list of grass species on their list of vegetation. He stated that they are giving the same amount of credit for the grasses as the shrubs. Chairman Forlano asked how coverage was calculated. He stated they would get the same amount of credit for one sprig of grass as they would for a shrub. Member Yarbrough asked why the square footage couldn’t be calculated and require the homeowner to have a certain number of plants. Zoning Technician Cady stated there was a standard for planting American Beach Grass. She stated that it could be defined as to what would qualify for certain areas.
Director Garman stated that he wasn’t sure that the Town of Southern Shores’ method was the method for Duck, but it was an example where credit was given for grasses. He stated that the question was whether the Town would give the same amount of credit for ornamental grass species as it would for shrubs.
Member Blakaitis asked if a species could be added to the list without an ordinance amendment or would a text amendment be necessary. Director Garman stated that the list could be extended to include the grass species. He stated that language could be put in the ordinance to give credit for the grasses.
Member Yarbrough thought that the grasses were beneficial. She suggested a standard that would require a certain number of sprigs within a defined area. Zoning Technician Cady stated it could be done by square footage. Vice Chair Britt thought square footage would be the easiest way.
Member Blakaitis asked how the last column was interpreted with regard to ornamental grasses. Director Garman stated that ornamental grasses could be treated the same way as shrubs. He asked if the Board wanted to do that. He stated that staff could do some calculations and bring it back to the Board.
Chairman Forlano asked how a homeowner on an interior lot without shrubbery or trees would be allowed to plant the entire lot with Love Grass. Member Yarbrough thought a reasonable calculation would be good. Director Garman asked if Chairman Forlano was referencing an existing house or a site to be developed. Chairman Forlano stated it would be one that would do a sizable improvement to trigger the vegetation ordinance. Director Garman asked if the Love Grass was existing. Chairman Forlano stated it was. Director Garman stated it would not be easy to deal with, but if the homeowner was going to leave a large portion of the site undisturbed and do what is needed to keep the area from being disturbed, he thought credit could be given.
Member Fricker wondered if there were two (2) lots, side by side, each with some trees on them and one lot wanted to take out all of their trees and plant Love Grass and the second lot wanted to leave their trees, should one be treated different than the other. Member Blakaitis thought it depended on the formula to see if it’s possible. He stated that if it wasn’t possible, then other trees or vegetation would need to be planted. He noted that a formula had not been devised yet. He added that he didn’t agree with having all grass. Director Garman stated that a different formula could be achieved. He thought retention areas could be given partial credit for the areas to be retained in grasses. He stated that staff would be happy to do some calculations and come back with some numbers that make sense and get the Board’s input.
Member Fricker didn’t think the Board needed to get into developing formulas. Chairman Forlano agreed. Member Blakaitis suggested coming up with reasonable numbers to discuss. Member Fricker asked if it would be helpful if the Board expressed a philosophy as to whether the Board feels grass should be no less or more favored than any other vegetation. He stated that if the Board felt that way, it could be a formula Director Garman could come up with. He stated that on the other hand, the Board could say they favor bushes or trees, which would lead Director Garman to give grass sixty percent (60%) of the credit. Chairman Forlano stated that he originally wanted 100% credit given, but then wondered what the intent of the ordinance was. Member Yarbrough thought the Board needed to state what the intent of the ordinance was. Member Fricker thought there should be a balance.
Director Garman discussed with the Board how staff calculates canopy coverage for a lot. Member Blakaitis thought the Town was bound by the table in the ordinance with regard to canopy coverage. Director Garman stated he was correct. He thought it gave further incentive to preserve the larger trees.
Chairman Forlano pointed out that the definition of vegetation in the ordinance would have to be changed. Director Garman stated that the Southern Shores ordinance has a definition of grasses, which staff can add something similar to the Town’s ordinance.
Monica Thibodeau of 126 Sea Hawk Drive West was recognized to speak. Ms. Thibodeau noted that the appendix was no longer codified. She wondered if there were changes that would be clarified in the ordinance and if it would give administrative leeway for adding or subtracting species. Director Garman stated that the issue was discussed at the Council meeting. He stated that the appendix was viewed as part of the zoning ordinance before the codification and in order to change it, a public hearing and text amendment would be required. He stated that staff suggested taking it out of the ordinance and having it as a set of guidelines that could be referred to from the ordinance. He stated that the tree and vegetation ordinance was signed by the Mayor and Town Clerk, but the appendix was not. He thought the appendix never made it to the company that does the Town’s codification. He stated that once he finds out, it will be determined whether the appendix was an official part of the code.
Vice Chair Britt stated he would prefer the appendix to be set up as guidelines. Chairman Forlano agreed. Vice Chair Britt thought it would more closely follow the intent of things. Director Garman stated he would find out if the appendix is part of the code. He confirmed with the Planning Board the desire to take it out should it be found to be part of the code. Member Blakaitis thought it should be made simple as he thought Council wanted it that way.
Director Garman asked how the Board felt about trees on the undesirable list. Vice Chair Britt thought if undesirable trees are mature and they are preserved, then they should receive credit. Director Garman thought the biggest example of an undesirable species was the Black Pine. He asked if credit should be given for Black Pines that are preserved recognizing that credit would not be given if they are newly planted. Member Blakaitis thought if they were growing and thriving, homeowners should be given credit for them. Member Fricker asked what the basis was for keeping them off the original list. Director Garman thought it was a nematode problem. Member Fricker stated that a lot of them are dying. Vice Chair Britt stated that they only live for a certain amount of time. Member Fricker agreed with the other Board members – if the tree is thriving, credit should be given. Member Yarbrough agreed. Vice Chair Britt felt the retention and native species should be kept with the overall theme being to keep it simple. Director Garman thought there was a value on limiting the disturbance on properties. Vice Chair Britt agreed.
Chairman Forlano clarified that Director Garman was going to investigate if the appendix could be taken out of the ordinance and then having something brought back for the Board to work with. Director Garman stated he would look at doing a preliminary canopy calculation for grasses, a menu of grasses to choose from, a table of plants by zone with a proposal to include a cross section of the barrier island, and suggest where a distinction needs to be made in the ordinance with regards to how the Town treats retention areas versus newly planted areas.
B. Review of Commercial Sign Regulations based on Discussions at the September 5, 2007 Meeting of the Zoning Ordinance Review Committee (this item includes a staff evaluation of existing signage at the Scarborough Faire Shops on September 12, 2007)
Director Garman stated that Walter Story and Connie Story Pierce were present. He stated that the majority of the discussion would focus on Scarborough Faire. He stated that over the past year, there had been discussions regarding the Village Commercial area with certain business owners as well as the Duck Community and Business Alliance. He stated that there were some concerns about the ordinance and signage provisions as well as what they wanted to see happen in the Village Commercial District. He believed Council discussed the issue at their June meeting and agreed to establish an informal committee to further discuss the issues of signage in the Village Commercial area. He stated that staff was instructed to schedule a meeting on September 5, 2007 with several members of Council, Planning Board, Walter Story, Jerry Davis, Jim Braithwaite, and Don Zerbe. He stated that a range of issues were discussed with the primary issue being signage. He stated that it was agreed that to further investigate the concerns people were having with the sign ordinance, a case study of Scarborough Faire would be conducted. He stated that staff would go out to that site, meet with the owners, answer questions about the ordinance, review how the ordinance is interpreted and take a preliminary look at what was compliant, noncompliant, and what future signage potential existed under the current sign ordinance. He added that staff would listen to their concerns about the ordinance and bring it to the Planning Board meeting to begin discussion on amendments to the ordinance if it was the Board’s desire to do so.
Director Garman stated that all of the signs at the property were discussed when staff met with the owners at Scarborough Faire. They discussed how building frontage was calculated, how permits are administered, and how fees are assessed. He went on to give a short presentation to the Board and the audience regarding signs at Scarborough Faire.
Walter Story was recognized to speak. Mr. Story pointed out where all of his ground mounted signs were located and noted that none of them faced a public right-of-way. He stated that he understood that his signs did not comply with the Town’s sign ordinance. Director Garman stated that this was discussed at the September 5, 2007 meeting with the consensus of the group that Scarborough Faire was a unique situation in Duck.
Member Fricker asked why a shop with two (2) different frontages should get less square footage of signage than a shop with one façade. He thought it would be a disadvantage to a shop with a unique configuration. Director Garman stated that staff was trying to illustrate the difficulty in determining building frontage. He stated that staff’s values were not to say a shop should have more or less signage based on frontage calculation. He asked if staff should determine a method that allows them to give the most signage possible or to come up with something in between. He stated that one method would give more signage than the other. Member Fricker asked how the Waterfront Shops were handled with regard to signage as he figured there were two (2) facades (from the parking lot and from the sound). Zoning Technician Cady pointed out that the Waterfront Shops do not have two (2) frontages. Director Garman stated that only the side with the bonafide entrance was counted.
Director Garman stated that an objective of the presentation was a more detailed discussion on defining building frontage and coming up with a clear standard. Vice Chair Britt felt it needed to be done. He stated that the original discussions with regard to the ordinance were with the perspective that the ordinance apply only to Duck Road. He stated that he knew the ordinance wasn’t perfect and that issues would come up, but something had to be put out to keep the signs in check. He stated that the ordinance needed to be simpler. Director Garman stated that a clear definition had to be established to be consistent.
Member Fricker disagreed. He thought that measuring left to right where a door was, was the way to measure for signage. He thought Mr. Story’s approach was very consistent as he has taken the perimeter into consideration for his measurements. He wondered if it was fair. Director Garman thought there was a question from Mr. Story as to why he didn’t get credit when measured from corner to corner. Mr. Story stated he was correct. He thought he had a unique design and site plan. He stated that modulation on the front of buildings were important to make aesthetics happen.
Member Blakaitis agreed that Scarborough Faire was a unique situation. He asked what was done with regard to other locations in Duck. Director Garman stated that there weren’t a lot of two (2) story commercial buildings. Member Blakaitis clarified that something was to be achieved to benefit Scarborough Faire in addition to clarifying the ordinance. Director Garman thought the idea was to use Scarborough Faire as a case study. Member Blakaitis noted it was a good case study. Vice Chair Britt added that it was one that was completely unlike anything else in Duck. He stated that if the ordinance was changed to accommodate Scarborough Faire, more problems may come up that the Town was trying to avoid. He thought the Board should be looking at frontage that faces Duck Road and internal frontage. He thought they should be differentiated. Member Blakaitis agreed.
Chairman Forlano thought that signage that wasn’t visible to the general public should be considered. Member Fricker asked why Chairman Forlano wouldn’t let a developer put what he wanted. Chairman Forlano felt the Board should stick to its guns on the signage calculations for anything that is visible to the public no matter where it would be located. He stated that internal frontage was like being inside a building, what’s there stays there. Mr. Story thanked Chairman Forlano for his thoughts and stated he appreciated them. He stated the he has tried to keep his signage turned internally. He stated that he hated backlit signs and that his signs are very low level lit. He stated that no one can find Scarborough Faire due to their signage. Member Blakaitis noted that it was good and bad.
Member Fricker clarified that if a business sign was seen from the street, it would have to comply with the existing ordinance. Chairman Forlano thought it had to be a give and take situation all around. He stated that if the sign was visible from the street, the ordinance needed to be complied with. Director Garman stated it was something staff could come up with. Vice Chair Britt thought it would be problematic for staff. Member Fricker stated that the ordinance talked of protecting property values, minimizing visual distractions to motorists, protecting and enhancing the image and economic vitality of the Town. He thought the Town had a legitimate interest in enforcing the ordinance with regard to size of signs where it could be seen. He didn’t think it had the same interest if the sign could not be seen from Duck Road. He suggested changing the purpose of the ordinance to amend it with respect to signage that can be seen from a road. Vice Chair Britt agreed.
Chairman Forlano suggested that terminology be established rather than being restrictive to just Duck Road and secondary streets. He suggested it be worded in such a way so it did not impact the general appearance of Duck. He thought regulations needed to be maintained on the sound side.
Member Yarbrough asked if it would be more manageable to use Option C with just perimeter calculations. She thought there was some recognition from the Planning Board that the actual measurements of frontage may be an issue. She thought there were a lot of loopholes. Vice Chair Britt thought frontage needed to be defined and thought the general intent of the frontage was what was visible to Duck Road or an adjacent property owner. He didn’t think it was smart to let people do what they wanted. He thought it could be loosened up to be done more easily.
Member Blakaitis asked what interior problems were with regard to signage at Scarborough Faire. Walter Story stated that they have not calculated all square footage of signage to see if they would comply with the rules. Member Blakaitis asked if there was push for more signage. Mr. Story stated there wasn’t. Member Blakaitis asked if he was satisfied with what was presently there. Mr. Story stated he was. Director Garman stated there was some discussion on frontage but he wanted to research it further.
Director Garman stated he would like to come back with details from several other municipalities regarding how they define signage, what the intent would be and why they do it. He stated that he was uncomfortable addressing the issue at this point as it wasn’t clear for people. He stated he would like to have diagrams in the ordinance to describe clearly how to measure frontage. Walter Story stated it would be helpful.
Director Garman stated that a lot of effort went into revising the sign ordinance to make it more flexible for the developments. He thought there were some clarifications that needed to be made.
Vice Chair Britt wondered whether one set of rules would apply to each set of shops in Duck. He felt it would be impossible to achieve. He thought it should be done on a case by case basis.
Chairman Forlano reiterated that the ordinance should stay in place and not be loosened up. He stated there was a lot of effort and thought put into it. Vice Chair Britt stated he wasn’t proposing to throw the ordinance out, but was proposing that the Board look at individual groups for a group permit.
Member Fricker asked if a sign was permitted that was prohibited in the ordinance could be undone. Director Garman stated that even though the Town issued a permit for a sign, it wouldn’t make it legal. Member Blakaitis thought a precedent was being set by allowing it. Director Garman stated that just because there was a mistake by an administrative official, it did not make the action legal. He stated that, technically, the Town could take action to have the sign removed. Member Fricker wondered if the Town should investigate the feasibility of going back and revoking the improper permits. He cautioned that the Town attorney should be involved before anything is achieved or it could be a problem. Director Garman agreed. He stated that it should be something that Council, Town Manager Layton and Town Attorney McRee should be made aware. He stated he wanted to bring the issue to the Board to discuss and understand what the underlying values were. Vice Chair Britt thought it should be looked at.
Chairman Forlano suggested the issue be revisited.
Member Fricker asked what the difference was between a sign and a decoration. He asked how a sign was defined. Vice Chair Britt stated a sign has words on it. Member Blakaitis thought a certain number of square feet should be allowed for decorations like in the vegetation ordinance.
Vice Chair Britt suggested relaxing the regulations for internal directional signs. He also suggested dropping the requirement for one sign for every two buildings.
Walter Story requested to be allowed to attach banners on his private street light poles. He thought the banners that he hung at Scarborough Faire looked attractive. He thought the banners for the Jazz Festival were very nice. Chairman Forlano asked how he would feel when the Town puts up banners in December that advertised a business that sponsored the banner. Mr. Story thought businesses should participate in the Town of Duck. He thought the Town and businesses should be in partnership. Chairman Forlano asked if the banners would be advertising the business. Mr. Story thought it would but he did not have an issue with it. Chairman Forlano stated that the ordinance needed to be looked at since it states that banners such as those were not allowed. He stated that having the Town and businesses working as a partnership would be contrary to the ordinance. He stated that the ordinance needed to be either rewritten or not allow any banners. Mr. Story agreed, but stated that the Town has an exception to do things that are deemed necessary. Director Garman stated that it should be that the Town can coordinate events and sponsor seasonal banners. He stated that Council referred the item to the Board regarding the Town Manager’s authority to permit such banners. Chairman Forlano stated he had brought the issue up to Town Manager Layton. He noted that Elizabeth City had tried to do something similar in the past but had to take the banners down because it was in violation of their ordinance. Director Garman stated that Council referred the item to the Board for clarification.
Director Garman asked the Board if they wished to handle the issues individually or all at once. Chairman Forlano suggested bringing back two (2) issues at each meeting for the Board to work on instead of going through all of them at one time. He asked Walter Story to try to encourage Jim Braithwaite or Paul Ford to attend the Planning Board meetings to help them with the issues and provide input. Walter Story stated he would try to encourage more attendance from the shop owners. He thanked the Board for inviting him to the meeting.
C. Discussion of NCDOT Bicycle and Pedestrian Planning Grant Application
Director Garman stated that the Town was trying to obtain a grant through NCDOT to do a pedestrian plan. He stated that the Town tried to do it a few years ago but was unsuccessful. He stated that the Town has dealt with a lot of issues over the years with regard to bicycles and pedestrians on Duck Road. He stated that the Town was now looking at a new sound side boardwalk, crosswalks and connections to the boardwalk, as well as doing a Duck Trail feasibility study to see if there should be a trail on the west side of Duck Road. He stated that NCDOT will only allow a pedestrian or bicycle plan, but not both. He stated that the appropriate way to go would be to do a pedestrian plan. He stated that on November 7, 2007, the request was presented to Council to have them authorize staff to prepare the grant application to NCDOT. He stated that Council adopted the resolution in support of it. He asked the Board if they thought the plan was a good idea and asked for their input. He stated that if the Board thought it was good idea, he would like a letter of support for the grant application.
Vice Chair Britt asked who would be hired. Director Garman stated a consultant would be hired. He stated he was trying to make it as comprehensive as possible.
Chairman Forlano asked why the Planning Board had to be involved. Director Garman thought the more support the Town could show from the various boards and committees, the better for the application. He added that the Planning Board would be kept involved in the project if the Town receives the grant. Vice Chair Britt clarified that Director Garman was asking for support of the project. Member Yarbrough thought Director Garman was also looking for the Planning Board’s continued advisement of the vision of what the Town should be.
Vice Chair Britt asked if the Duck Trail Committee was still intact. Member Yarbrough stated it was as she was a member of it.
Vice Chair Britt moved to have the Planning Board support the resolution with respect to applying for the grant and authorize the Chair to note the Board’s support. Member Fricker seconded.
APPROVAL OF MINUTES
A. Planning Board Meeting October 10, 2007
Member Fricker had a change on Page 7 of the minutes. Chairman Forlano moved to approve the minutes of the Planning Board Meeting of October 10, 2007 as amended.
Minutes for the Planning Board Meeting on October 10, 2007 were approved 5-0.
Zoning Technician Cady thanked Council Liaison Lindley for his term with the Board. Council Liaison Lindley stated it was an honor and privilege to work with the Board. The Board thanked Council Liaison Lindley for serving on the Board.
Chairman Forlano adjourned the meeting.
The time was 9:13 p.m.
/s/ Ron Forlano, Chairman