TOWN OF DUCK
December 12, 2007
The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 6:30 p.m. on Wednesday, December 12, 2007.
Present were Chairman Ron Forlano, Vice Chair Jon Britt, Joe Blakaitis, and Claiborne Yarbrough.
Absent: John Fricker.
Also present were Director of Community Development Andy Garman, Council Liaison Dave Wessel. and Zoning Technician Sandy Cady.
Others Present: Connie Story Pierce and Walter Story.
Chairman Forlano called to order the Regular Meeting of the Planning Board for December 12, 2007 at 6:31 p.m.
A. Discussion/Review of Proposed Amendments to the Tree and Vegetation Preservation and Planting Ordinance and Vegetation Ordinance Appendix
Director Andy Garman was recognized to speak. Director Garman stated that at the November meeting, the Board discussed vegetation management and how the process has been working since the ordinance was adopted in June 2007. He stated that several issues were cited that needed to be discussed with the Planning Board. He stated that the Town Council discussed the issue at their September meeting with the feeling that the Planning Board should look at refinements to the ordinance. He stated that the Board discussed at their November meeting whether the appendix to the ordinance was part of the Town Code. He stated that staff researched it and thought it was part of the Town Code by reference, similar to the Town’s fee schedule. He stated that as long as the reference to it is changed in the Code (to refer to it as a set of guidelines versus an actual Code appendix), it would be removed from the Code by reference. He pointed out that there were a few things in the appendix that should be included in the Code. He thought that taking the appendix out of the code would allow modifications to the plant list without going through an ordinance amendment. He stated that there are some things in the appendix that are regulatory in nature that should be included in the Code if the appendix is removed. He suggested taking the regulatory items out of the appendix and putting them in the Code, while leaving the appendix as a list of acceptable plant species with a description of the barrier island zones.
Chairman Forlano asked what items Director Garman was referencing. Director Garman stated that the appendix defines canopy coverage credit for several categories of plants as well as planting specifications. This is not currently included in the text of the code. He stated that if the appendix was taken out of the Code, these items should be put in the vegetation ordinance. Chairman Forlano clarified that items A and B would be moved. Director Garman agreed and added that additional items would need to be added, such as the third paragraph that defines how shrubs and grasses count towards canopy coverage. He stated that the last paragraph would not need to be moved as it did not describe anything that was regulatory, but simply referred to information that follows in the guidelines. He stated that if the Board agrees to have a separate set of guidelines that would not be part of the Code; he would put the regulatory items in the Code.
Director Garman stated that staff addressed a few clerical items within the actual vegetation ordinance as some Code section references were incorrect. One primary change is included in Section G which now makes an additional distinction as to how the Town calculates canopy coverage. He stated that subsection A defines how canopy coverage is calculated when new plants are used to meet the coverage requirements. He stated that Section B provides an additional means to calculate coverage for areas to be retained, which allows one to simply take the area within the perimeter surrounding the vegetation to be retained.
Director Garman stated that the other changes came in the appendix, which would now be referred to as the guidelines. He stated that the major change was that a homeowner would receive credit for planting ornamental grasses and other types of grasses. He stated that the grasses have been added to the table at the end of the guidelines. He stated that ornamental grasses would receive the same credit as one (1) shrub assuming they would meet the three (3) feet height requirement at planting. He stated that the smaller grasses would receive credit based upon a square foot basis.
Director Garman stated he was concerned about retention credit being the same for 100 square feet of Weeping Love Grass versus 100 square feet of Live Oak. He thought that the way the canopy coverage was calculated, there was an incentive to plant the larger trees. He thought it was written in the ordinance to provide an incentive for people to plant larger trees. Member Yarbrough clarified that Director Garman was discussing retaining and not planting. Director Garman stated she was correct.
Vice Chair Britt stated he would want to structure the ordinance to protect trees. Member Yarbrough thought the Board felt there was value in not disturbing any existing vegetation. Member Blakaitis agreed. He thought there was more value in not disturbing the vegetation. He thought staff would have discretion with the way the ordinance was written. Director Garman thought it was up to the applicant to show what they were going to do, whether it be retaining or planting new vegetation.
Vice Chair Britt did not think trees and grasses were equal. He felt the Town should do what it can to protect the trees. Director Garman stated that the ordinance was not written to state that trees and grasses were equal. He stated that on a square foot basis, an existing grass area could be given half credit for retention of grasses. He stated that a formula could be developed to favor retention of trees over grasses. Member Yarbrough thought it wouldn’t work for oceanfront lots. Vice Chair Britt stated that the point was to encourage retention. He stated that he didn’t want to hurt anyone that wanted to retain bushes and grasses. Member Yarbrough wondered how homeowners could be awarded more for trees without penalizing anyone. Director Garman thought there was a mechanism in the ordinance. Member Blakaitis asked if two percent (2%) could be allowed for anything that is retained versus planted. Director Garman stated that staff could come up with a sliding scale. Member Blakaitis stated he didn’t want to complicate things.
Chairman Forlano asked if there had been a situation where a homeowner cut down a tree, leaving them with less than fifteen percent (15%) canopy coverage. Director Garman stated there was. Zoning Technician Sandy Cady was recognized to speak. Zoning Technician Cady stated that it was due to development and not just taking out a tree. Chairman Forlano asked if a homeowner took a tree down but didn’t have the fifteen percent (15%) coverage, would they be forced to come up with the coverage. Member Blakaitis thought it was discussed at a previous meeting and thought that the homeowner would have to.
Chairman Forlano stated that the ordinance read that if a homeowner took down a tree and did not have the coverage; it would trigger having the homeowner come up with the coverage. He stated that the ordinance read that “…any applicant proposing to remove or destroy existing trees or vegetation on a developed lot not in conjunction with a land development activity, shall ensure that total vegetation coverage on the property is equal to…” He clarified that by taking down the tree, it triggered that a homeowner had to come up with fifteen percent (15%) coverage. Director Garman stated it would have to be done in conjunction with a land development activity, which would require a permit. Chairman Forlano agreed and suggested the homeowner was putting an addition on. Director Garman clarified that the homeowner would not just be taking a tree down. Chairman Forlano stated that in one section of the ordinance, a homeowner is allowed to take a tree down within ten (10) feet of their home without a permit, provided that the property retains vegetation. He thought that taking down one tree would force a homeowner to bring their whole lot into compliance the way the ordinance is currently written.
Member Yarbrough pointed out that staff wouldn’t know about the tree coming down if a permit was not required. Director Garman stated that the section of the ordinance Chairman Forlano was discussing dealt specifically with the tree removal permit. He added that the tree removal permit dealt with trees that were twenty-four (24) inches or greater in diameter. Chairman Forlano thought there was a permit issue. Director Garman stated that if a homeowner wanted to remove a tree within ten (10) feet of their home that was greater than twenty-four (24) inches in diameter, a permit would be needed. Member Yarbrough disagreed and pointed out that the ordinance stated “any size tree within ten (10) feet of a house would not need a permit”. Member Blakaitis agreed. Chairman Forlano stated it made sense to remove a tree. He wondered if it would make the homeowner have to come up with fifteen percent (15%) vegetation.
Member Yarbrough thought that without a permit, the Town would not be made aware. She asked how the process would be triggered. Zoning Technician Cady stated that people have been calling in with questions regarding cutting trees. Member Yarbrough asked if the homeowner is asked if the tree was within ten (10) feet of the house. Zoning Technician Cady stated she did not have anyone call where she would have needed to ask that question. Member Blakaitis pointed out that the ordinance allows the tree to come down without the homeowner needing to call the Town. Director Garman stated it would be an enforcement issue. He added that if a homeowner does not have a lot of vegetation and cuts down a tree within ten (10) feet of their house, it will be noticed and they would be told they need to replace the canopy coverage. Member Yarbrough asked why. Director Garman stated that it was because the ordinance required it. Member Yarbrough asked that if the tree was within ten (10) feet of the house, why would they have to let the Town know when a permit would not be required. Director Garman stated that the ordinance does state that the homeowner has to meet the requirement, whether or not a permit was required.
Council Liaison Dave Wessel was recognized to speak. Council Liaison Wessel thought the ordinance read that a permit would not be required if the homeowner was still within the fifteen percent (15%) coverage.
Director Garman stated he wasn’t sure he liked how this section of the ordinance was written as it was a subsection of the tree removal permit and that these permits deal with trees that are greater than twenty-four (24) inches in diameter. He noted that this subsection was speaking of any size tree. He added that it spoke of the vegetation management plan, which was a different permit than the tree removal permit. He suggested the Board figure out where it should be in the ordinance as it dealt with meeting the vegetative canopy requirements.
Member Blakaitis felt it was in the right place. He thought the question was whether a vegetation plan would be needed after cutting one (1) tree down. Vice Chair Britt stated that the vegetation management plan was required for new development and substantial redevelopment. Director Garman pointed out that the Board was discussing the subsection under “Tree Removal Permit”. He felt it was in the wrong place. Vice Chair Britt thought the original discussion was that if a homeowner was to cut down a tree on their property without doing any development, they wouldn’t want to be told they couldn’t do it. Zoning Technician Cady thought that if a single tree was cut down, the homeowner would have to meet the canopy requirements. Member Blakaitis agreed.
Member Yarbrough asked if the Board’s intention was to allow a homeowner to cut down any size tree without a permit if it was within ten (10) feet of a house. Member Blakaitis and Vice Chair Britt stated it was.
Chairman Forlano thought it was harsh to go after an individual that cuts down a tree to tell them they need fifteen percent (15%) coverage. Member Yarbrough agreed. Member Blakaitis asked why it was harsh when the Town was requiring everyone to provide fifteen percent (15%) coverage for new development. He asked why cutting down one (1) tree would be considered harsh if the homeowner did not have fifteen percent (15%) coverage to begin with. Chairman Forlano stated he was looking at personal property rights. Member Blakaitis felt that the rest of the paragraph should be stricken from the ordinance.
Chairman Forlano stated that the issue came up in other areas of the ordinance, such as Section E2. He stated that, keeping in mind the intent of the ordinance as well as property rights, he thought something should be grandfathered. Vice Chair Britt stated it was more about new development and redevelopment than it was about existing homes. Chairman Forlano asked if the ordinance could be reworded in that section, striking out the rest of C4 as well as in E2.
Member Blakaitis stated that Vice Chair Britt was correct with regard to his comments. He stated that the Board also wanted to address the issue of an existing homeowner who wanted to clear cut their lot. He stated that that was why E2 was in the ordinance. Vice Chair Britt felt that E2 needed to stay in the ordinance. He added that clear cutting was addressed in a separate section of the ordinance. Director Garman stated it was addressed under “vacant undeveloped lots”.
Council Liaison Wessel suggested adding “multiple” to E2 with regard to any reference to an applicant proposing to remove or destroy existing trees. Member Blakaitis felt it would separate things.
Chairman Forlano suggested adding a period to C4 after “…shall be allowed without a permit.” Member Blakaitis liked the suggestion. Director Garman stated that under Tree Removal Permit, Section 4 would read; “Removal of any size tree within 10 feet of a house shall be allowed without a permit.” He stated that Section E2 would read; “An applicant proposing to remove or destroy multiple existing trees or existing vegetation…” He wondered how it would be read. Member Blakaitis stated it would be read as one (1) bush or many bushes. Chairman Forlano suggested; “…multiple existing trees or substantial vegetation…” Vice Chair Britt stated he liked the suggestion. Member Yarbrough though there should be some leeway. Vice Chair Britt agreed. Director Garman thought the intent of “substantial” would be understood, relative to multiple trees.
Member Blakaitis stated that F2 did not really go anywhere with regard to how it was written. He stated he did not like it as it would be hard to administer. Director Garman admitted it was a tough section.
Director Garman passed out photographs that showed examples of beach grass planting that meets the CAMA provisions for re-vegetation. He stated that the draft ordinance is suggesting that credit cannot be provided for vegetation in the CAMA small structure setback because in many cases the area would need to stay vegetated according to CAMA regulations. He stated that development was allowed in the small structure setback, but the area would need to be re-vegetated.
Chairman Forlano asked if there was more work to be done on the ordinance before it is sent to Council. Director Garman stated he would like to bring back the changes from the discussions at this meeting. He stated he would take several regulatory items out of the appendix and put it in the ordinance; he would make the changes to C4 and E2; and will complete the remainder of the plant list.
B. Discussion/Review of Proposed Sign Ordinance Amendments
Director Garman stated that the Board met last month with Walter Story and Connie Story Pierce. He noted that they were again in attendance for this meeting. He stated that signage issues were discussed, specifically related to business signage. He stated that a presentation was given with a number of issues discussed regarding the sign ordinance. He thought the consensus of the Planning Board was to have staff bring back one or two (1 or 2) items each month until all issues were reviewed. He stated that the memorandum the Board had in their packets listed several issues for the Board to discuss. The focus of this meeting would be items 3 and 4. He thought the most substantial item was the discussion on group developments with an interior courtyard that has large portion of the signage that cannot be seen from outside the courtyard. He thought the Board wanted staff to come up with language to exempt those signs from the ordinance. He stated that a new Subsection, D8, was drafted under Exemptions for the Board’s consideration. He went on to read the draft language to the Board and audience.
Director Garman stated that staff also included a revision under Canopy Signs. He thought the ordinance wasn’t practical in requiring a nine (9) foot clearance between the walkway and the bottom of the under canopy hanging sign. He stated that in most cases, the ceiling would be lower than nine (9) feet. He stated that Building Code requires an eighty (80) inch clearance. He stated that staff suggested that the ordinance be changed to eighty (80) inches instead of nine (9) feet. He stated that a few other minor changes were made, such as roof signs. He stated that roof signs are allowed but are included in the ordinance under the “Prohibited Signs” section. He stated that staff changed the Business Signs section to add a subsection for roof signs so it would appear in both places.
Director Garman stated that the last item the Board discussed was how to define building frontage. He stated that the Board discussed three (3) possible scenarios to measure building frontage. He stated that he had passed out how staff would interpret calculating building frontage. He thought the draft version would make it a more clear interpretation so it would be easier for people to understand as well as to maintain consistency.
Chairman Forlano asked if the Board was comfortable with the nine (9) foot vertical change in Item 3. It was consensus of the Board that it was a good change. Chairman Forlano asked Walter Story is he was comfortable with the change. Walter Story was recognized to speak. Mr. Story stated he was comfortable with it.
Chairman Forlano asked how the Board felt about the interior signage exemption change with regard to interior courtyards.
Member Blakaitis suggested that the language be revised to exempt signs that are visible from adjacent property. He felt it was only important to regulate signs that are visible from the public right-of-way. Vice Chair Britt stated that he knew what the Board was trying to do, he just wanted to make sure it was worded right in the ordinance. He clarified that the rules would be different in a courtyard than the ones from the side. Member Blakaitis stated he wasn’t thinking about it as having different rules, but wondered why it was important at all if an adjacent property owner could see a courtyard sign. Director Garman stated there could be a situation where a residential property is adjacent to a commercial business. Vice Chair Britt pointed out that no courtyard would be completely closed in. Member Yarbrough asked Member Blakaitis if he was suggesting that the language be stricken from the ordinance. Member Blakaitis stated he wasn’t sure. Member Blakaitis asked Walter Story if anyone could see his courtyard signs from an adjacent property. Walter Story stated they could.
Walter Story thought the section of the ordinance negated the courtyard concept. He stated that the adjacent property would cause problems. Director Garman asked if it should be worded to state “…the property line of an adjacent residential property…” Member Blakaitis didn’t think it should. He stated that if it could not be seen from the public right-of-way, it was a non-issue. Vice Chair Britt and Member Yarbrough agreed with Member Blakaitis’ comments. Director Garman clarified that he would strike “…the property line of adjacent property…” Chairman Forlano stated he was correct. Director Garman noted that the ordinance section would depend on how “courtyard” was defined. He asked if there were any other commercial properties where it would apply. Chairman Forlano thought the alleyways of Osprey Landing and Scarborough Lane would be two places. Vice Chair Britt agreed. Director Garman stated that it would allow interior signage to be put all over the buildings. Vice Chair Britt stated it could be tacky. Member Blakaitis agreed but noted that Scarborough Faire could also have tacky signs as well. Chairman Forlano thought it wouldn’t happen because of the sign ordinance itself. Director Garman stated that because it will be listed as exempt, it would be exempt from permits as well as the ordinance.
Vice Chair Britt thought there should be a stronger definition of “courtyard”. Member Blakaitis stated he would like to see the ordinance designed for the future of Duck as well as what is presently in Town. He stated that a similar situation could occur in other commercial areas. Chairman Forlano agreed.
Director Garman stated that if someone asked staff to define a courtyard, we probably wouldn’t define Osprey Landing as one. Vice Chair Britt stated he did not think of it as a courtyard. He thought a courtyard was one that had three (3) sides. Member Blakaitis disagreed but thought it did fit the definition as not visible from the public right-of-way. Director Garman thought an interior courtyard should be something that was surrounded by buildings. Member Yarbrough clarified that a courtyard was a four (4) sided structure. Director Garman stated it was an open area surrounded on all sides. Chairman Forlano asked if there was a definition of a courtyard in the ordinance. Vice Chair Britt stated it wasn’t defined at all. Director Garman stated that staff could come up with a definition, but thought the dictionary or other references could be used as a general standard.
Chairman Forlano clarified that for any courtyard, anything could be done so long as the owner meets the building code, lighting ordinance and does not have any prohibited signs. Director Garman agreed. Walter Story stated he did not have a problem with the prohibited signs but suggested changing E2 to read that signs could not be posted on any public utility pole, electric pole or other utility pole. Director Garman stated it would allow people to post signs on any private light pole. Member Yarbrough asked Mr. Story why he wanted the change in the ordinance. Mr. Story stated that it was because a flag or any banner could be put on a pole at his property. Director Garman stated that banners will be discussed at a further meeting. He suggested that the Board agree on things collectively and then send everything to Council. Member Blakaitis stated he did not want to send anything to Council until the Board was sure about all the issues.
Member Blakaitis asked if banners would be under Section 12 or listed separately. Member Yarbrough stated they were in Section 5. Director Garman pointed out there was also a section on temporary banners. He stated that there were a lot of ways to treat banners on poles. He thought it needed to be discussed as a separate item. Member Yarbrough thought it would be a complicated discussion. Director Garman agreed.
Chairman Forlano asked if Mr. Story’s concern would not be considered at this meeting. Director Garman stated that the banner issue has been an ongoing one. Chairman Forlano stated he was talking about no signs being posted on public versus private poles. He stated that if the Town allows that, he could see situations where there could be signs on every light post. Vice Chair Britt stated he did not have a problem with it but thought there needed to be a standard.
Walter Story stated he wanted to see the ordinance clarified for a number of reasons for others that may have difficulty understanding it. Director Garman stated he was researching the banner issue for a future discussion. Vice Chair Britt thought it could work but that it had to be done right. Mr. Story stated that he liked the festive banners in Town as well as the banners he had at Scarborough Faire, but understood there needed to be regulation. He hoped that the Town would allow banners on his private utility poles. Vice Chair Britt stated he would like to see that happen as well. Director Garman suggested coming up with a new category for signs that allows banners under certain conditions. Vice Chair Britt agreed. Member Yarbrough felt it was a good idea.
Chairman Forlano asked Director Garman to discuss building frontage. He stated that much of the business sign allowance was based on building frontage. He asked Walter Story if he had any comments. Walter Story asked if the second page measured the offset of the building. He stated he wasn’t clear on the issue. Director Garman discussed the interpretation of how building frontage would be measured. He stated that if the change was adopted to exempt courtyards, it would be a non issue for Scarborough Faire as business signage would no longer be calculated inside a courtyard. Mr. Story stated that he was happy with it. Vice Chair Britt agreed.
Chairman Forlano asked if the Board wanted to discuss wall signs. Director Garman stated that he had addressed the issue of wall signs in his presentation at the November meeting specifically related to the requirement that no wall sign project above or below a roof line or canopy. He recalled that the Board stated they wanted to hold firm on the issue. He stated that if they did, it would bring up the question of amortization as a lot of the signs are past due. He stated that most of the signs in Loblolly Pines would have to be changed out because of the amortization schedule. Chairman Forlano asked how Duck Donuts received permission to put up their sign. Zoning Technician Cady stated that they did not propose to have their sign located where it presently is. Director Garman stated he will bring the issue back at a future meeting for discussion. Vice Chair Britt thought the amortization schedule should be discussed after everything else has been discussed. Director Garman stated that the amortization schedule is currently in place but he would give the Board an idea as to what is coming up for amortization and who would be affected.
Member Blakaitis asked if the Board was happy with building frontage calculations. Vice Chair Britt and Member Yarbrough stated they were. Chairman Forlano stated that all was taken care of. Member Blakaitis stated that something needed to be done with regard to the definition of a courtyard. Member Yarbrough stated that the Board decided earlier in the meeting to rely on the dictionary or other standard definition of courtyard. Member Blakaitis stated he must have missed that part of the meeting.
Chairman Forlano stated at the next meeting the Board would discuss permanent pole mounted signs and banners and tie it in with utility signage and wall mounted signs.
A. Welcome Dave Wessel; the new Council Liaison to the Planning Board
Chairman Forlano welcomed Dave Wessel to the new Council and added that he will be the Council Liaison to the Planning Board. Council Liaison Wessel stated he was pleased to be at the meeting.
APPROVAL OF MINUTES
A. Planning Board Meeting November 14, 2007
Zoning Technician Cady had a change on Page 2 and 5 of the minutes. Member Blakaitis moved to approve the minutes of the Planning Board Meeting of November 14, 2007 as amended.
Minutes for the Planning Board Meeting on November 14, 2007 were approved 4-0.
Director Garman stated that the Town Council had scheduled their annual Retreat for January 16, 2008 and the afternoon of January 17, 2008. He suggested that if the Board had any issues to suggest for the retreat, to please bring them forward. Chairman Forlano pointed out that George Keefe attends the Retreat to represent the Business Alliance. He stated that the Board did not have any topics to have added to the agenda. He asked if the agenda was usually given out beforehand. Zoning Technician Cady stated that the agendas are provided to Council the Friday before their meeting and will be available on the website. Chairman Forlano wondered how the business community could give a presentation at the Retreat. Zoning Technician Cady stated that an email will go out like it does for every meeting. Director Garman asked if Chairman Forlano was suggesting a potential for the business community to give a presentation at the Council Retreat. Chairman Forlano stated he wasn’t and was trying to figure out how to pull in the business community to Council for representation. He thought George Keefe would be able to handle that aspect.
Chairman Forlano adjourned the meeting.
The time was 7:58 p.m.
/s/ Ron Forlano, Chairman