TOWN OF DUCK
January 23, 2008
The Planning Board for the Town of Duck convened at the Duck Municipal Offices at 6:30 p.m. on Wednesday, January 23, 2008.
Present were Chairman Ron Forlano, Joe Blakaitis, John Fricker and Claiborne Yarbrough.
Absent: Vice Chair Jon Britt.
Also present were Director of Community Development Andy Garman, Council Liaison Dave Wessel and Zoning Technician Sandy Cady.
Others Present: Olin Finch and Jay Heyman.
Chairman Forlano called to order the Regular Meeting of the Planning Board for January 23, 2008 at 6:30 p.m.
A. Consideration of Proposed Amendments to the Tree and Vegetation Preservation and Planting Ordinance and Town of Duck Vegetation Planting Guidelines
Director Andy Garman was recognized to speak. Director Garman stated that at the last meeting, the Board discussed the ability of homeowners to post a cash bond to delay planting prior to obtaining a Certificate of Occupancy. He thought the Planning Board had concerns regarding the language that was included in the ordinance and thought that instead of the cash bond, they wanted a cash deposit with a recommended amount of $5,000. He stated that at the time the Certificate of Occupancy was issued, a memorandum of understanding would be drafted between the Town and the property owner or agent specifying the terms of the agreement – meeting the terms of the vegetation management plan in a certain timeframe or the cash deposit may be withheld to be used for the planting. He stated an alternative option to the $5,000 deposit was included, which was a deposit that was based on the cost of the landscaping instead of a fixed amount. He asked the Board for their thoughts.
Member Fricker thought it was a difficult amendment to draft. He thought there were four (4) issues that needed to be discussed. He stated that the amendment was silent on under what conditions a cash deposit or bond would be forfeited either in whole or part. He didn’t know if it was an intentional omission. He felt the language of the memorandum of understanding needed work as it did not state when it would need to be signed. He stated that the forfeiture was not spelled out in the proposed ordinance and thought it should be transparent.
Olin Finch of 116 Sandy Ridge Road was recognized to speak. Mr. Finch stated he would like to see the landscaping kept separate from the actual occupancy permit. He thought it should be kept separate since many building contractors are not landscapers. Chairman Forlano thought the Board took the aspect out of the ordinance so as not to hold up the Certificate of Occupancy. Mr. Finch stated that he understood but wondered why the agreement should be made up before the Certificate of Occupancy was issued. Chairman Forlano stated that Member Fricker was bringing that point up to the Board. Mr. Finch stated that it sounded like the Town was not allowing the issuance of a Certificate of Occupancy until an agreement was made. Chairman Forlano stated it addressed Member Fricker’s concern. Member Blakaitis and Member Yarbrough thought the issue was discussed at length at their January 9, 2008 meeting and decided that it needed to be done at the beginning of the permitting process. Member Fricker pointed out that it has not been stated when the memorandum should be prepared.
Member Blakaitis asked what the content of the memorandum of understanding would be. Director Garman stated it would be a letter that both parties would sign. Member Blakaitis asked what it would say. Director Garman stated it would state that the homeowner shall comply with the terms of the vegetation management plan and from a certain date they would have a set amount of time to complete the landscaping beyond the issuance of the Certificate of Occupancy or a forfeiture would happen if the homeowner failed to complete the planting within the specified timeframe. Member Blakaitis pointed out that it was discussed at the January 9, 2008 meeting. Chairman Forlano felt the language was very broad. Member Blakaitis and Member Yarbrough thought it needed to be broad. Member Yarbrough clarified that the homeowner was not posting the deposit at that point but were signing something stating they would have to. Member Blakaitis stated it would put the homeowner on notice that certain things would have to be done with the construction project. Director Garman stated that when the building permit was signed, it would state that the homeowner has to comply with the terms of the permit prior to the issuance of a Certificate of Occupancy. Member Blakaitis asked if it was the same thing as a memorandum of understanding. Chairman Forlano stated it wasn’t as it didn’t have the cash deposit requirement.
Member Fricker thought that if the homeowner failed, refused or requested to extend the time to comply with the vegetation plan beyond the issuance of the Certificate of Occupancy, then there should be terms with which they would do so. He suggested giving the owner ninety (90) days for an extension. He added that a cash deposit or equivalent should be required, so if they do not comply within the specified timeframe, the Town can take advantage of total or partial forfeiture of the deposit. Member Blakaitis agreed. Member Fricker thought it should be told to the homeowners up front. Chairman Forlano agreed.
Chairman Forlano felt that if the Town does not obtain the deposit up front, there would a chance that the owner may not have the money for landscaping or deposit due to budget constraints. Olin Finch thought that anyone that could afford to build a home could afford the $5,000 deposit.
Member Yarbrough thought the Board had discussed a ninety (90) day timeframe at their last meeting. She noted that she did not see it in the amendment. She clarified that it was changed to the next planting season. Director Garman stated she was correct.
Member Blakaitis wondered how the memorandum of understanding would make things difficult for the contractor if they have to do everything up front. He didn’t think it would be a problem. Member Fricker stated that a vegetation plan would have to be submitted at the time of the permit which would show that nothing would have to be planted. He stated it would only be signed if there was planting required. Member Yarbrough agreed. Director Garman disagreed and pointed out that sometimes the contractor inadvertently destroys vegetation. Member Fricker clarified that $5,000 would have to be put up for everyone. Chairman Forlano disagreed. Member Yarbrough thought it would be that way.
Jay Heyman of 101 Vireo Way was recognized to speak. Mr. Heyman asked if the average cost of a home in Duck was approximately a half million dollars. Chairman Forlano agreed. Mr. Heyman wondered if the Board was belaboring an infinitesimal amount of money. Director Garman noted that a lot of the projects were remodeling jobs and not new construction. He stated that many jobs were anywhere from $5,000 to $40,000. He stated that the fact that many people were unhappy with the Town regarding obtaining as-built surveys made him think the $5,000 deposit would be troublesome for a lot of people, especially if it was required up front. Chairman Forlano pointed out that people will have to do the planting and it would cost more than $5,000. Director Garman agreed that it would in some cases. Member Fricker thought the deposit amount should be reduced.
Member Yarbrough stated she was reluctant to ask someone to have $5,000 sitting out there for twelve (12) months, especially for a remodel. She felt it was better to have a lien put on the homeowner instead. Member Blakaitis agreed. He stated that if the initial vegetation plan showed that no vegetation was needed, the homeowner would still have to sign the note with the explanation that in case something happened during construction, the note would come to bear unless it’s fixed.
Director Garman stated that he had researched options that other jurisdictions used. He stated that cash bonds/deposits, irrevocable letters of credit or other financial sureties were used. He stated he did not see any cases where deeds of trust or liens were used. He thought it would complicate things for the Town.
Jay Heyman asked what the rationale was behind the deposit amount. Member Fricker thought the fixed sum was not designed to be used by the Town to do additional work for the homeowners. He stated it was designed to be an incentive or something that could be forfeited if the owner failed to comply with what they agreed to do. He added that that amount was arbitrary. Mr. Heyman stated it did not make sense for a homeowner that was doing $50,000 worth of work to put up the same amount as someone that was constructing a half million dollar home. Member Fricker stated it didn’t have anything to do with the size of the house. Olin Finch thought the cost would be the same no matter what the cost of the project would be, especially if the owners had to do the same amount of landscaping to meet the vegetation requirements.
Director Garman thought the intent was to make things easier for homeowners to plant vegetation that would have a better chance of survival. He stated that if the Town made it hard for homeowners, they would just plant vegetation to meet the requirement and in some cases it would die. He thought the Board should not assume that everyone would do the wrong thing.
Member Yarbrough reiterated that she didn’t think the Town should tie up $5,000 of a homeowner’s money when the whole process has been working. Director Garman stated that the Town would like to have some guarantee that the planting will occur – whether it’s done by the time the Certificate of Occupancy was issued or whether an agreement is in place to defer planting so the Certificate of Occupancy could be issued. Member Fricker thought there was a consensus that there should be a memorandum of understanding signed at the time of the permit being issued. He stated that there wasn’t an agreement as to when or how the money should be tendered to the Town to secure the agreement. Chairman Forlano thought it was the sticking point. Director Garman thought it should be prior to the Certificate of Occupancy.
Member Fricker asked for an explanation of how the Town would enforce the tendering of the cash deposit prior to the Certificate of Occupancy and when it would be required. Director Garman stated that a final inspection would be called for in order for the Certificate of Occupancy to be issued. Member Blakaitis thought things were again being pushed back to the time of the Certificate of Occupancy. Director Garman stated it could be done at any time during the project to give the Town the landscaping agreement or deposit. He stated that the intent was not to condition the Certificate of Occupancy on meeting the planting requirement.
Olin Finch felt it should not be at the end as the contractor would have to end up paying the deposit. Member Blakaitis thought the deposit should be collected at the beginning of the permit application. Director Garman stated if staff did that, it would have to be done for every single permit application. He stated that the majority of the time, the homeowner will not have to defer planting. He stated it was a lot of administrative work. Member Blakaitis thought the memorandum of understanding should state what would be needed before the homeowner obtains their Certificate of Occupancy. Director Garman stated that it could state that if the homeowner didn’t want to plant vegetation prior to the Certificate of Occupancy. He added that they could pay the deposit to the Town and then the Certificate of Occupancy would be issued. Member Blakaitis thought it would work. Olin Finch disagreed and stated that the contractor would not know if it was paid. Member Blakaitis pointed out that the contractor would not be responsible for the deposit as the homeowner would be required to pay the deposit. Mr. Finch asked what would happen if the homeowner did not pay. Director Garman stated that the amount of money a homeowner would have to pay would be relative to the amount of money in the cost of the landscaping. He stated that the deposit should have been factored into the project.
Chairman Forlano stated he was leaning towards the percentage of the deposit being based on the project costs rather than the $5,000 fixed amount. Member Blakaitis suggested one percent (1%) of the cost of construction or a $2,000 deposit, whichever was greater instead of the $5,000 deposit. Member Fricker stated he didn’t see it as a rational relationship to what the Board was trying to accomplish. He stated it didn’t make any sense. He suggested one and one half (1˝) times the anticipated cost of labor and materials to comply with the vegetation plan, but not less than $500. Member Blakaitis pointed out that it was essentially Option B with a condition. Olin Finch stated it would create more work for the Town staff. Director Garman stated it would not be much more work since it would only be used in a few instances.
Member Fricker suggested doing the same thing with the memorandum of understanding as the Board had done with the appendix to the vegetation plan. He suggested having a form letter that would set forth all the various terms, conditions, penalties, etc. but keep it out of the ordinance and have it be a standard letter that could be tweaked as experience dictates. He suggested substitute language for Paragraph B to read: “…At any time prior to the issuance of the Certificate of Occupancy the property owner may obtain an extension of time within which to comply with the vegetation management plan, up to ninety (90) days beyond the date of the Certificate of Occupancy, provided that the property owner signs a memorandum of understanding…” Director Garman thought it was a good suggestion.
Olin Finch asked if most people meet the fifteen percent (15%) canopy coverage without planting. Director Garman stated that a lot of them do. Chairman Forlano stated that there is more vegetation in Duck.
Member Fricker asked if his suggestion was something that would satisfy the needs of staff in terms of clarity. Director Garman thought it did. Olin Finch reiterated that the suggestion would still turn the contractor into the landscaper as the contractor would have to agree on what would be done in terms of landscaping. Director Garman stated that there would have to be an idea of what would be required to meet the vegetation ordinance. Mr. Finch agreed. He again reiterated that the decision for planting would be put on the contractor. Chairman Forlano disagreed. Member Fricker stated it would not make the contractor the landscaper, but would make the contractor one that would hire a sub-contractor that would deal with the landscaping. He stated that it may require the contractor to discuss the vegetation plan with the homeowner in the beginning. Olin Finch agreed and stated that the contractor would still be the landscaper if the sub-contractor didn’t show up.
Chairman Forlano thought Member Fricker’s suggestion was the best one so far. He stated that it addressed 1, 3, and 4 in the amendment. Director Garman asked when it could be signed. Member Fricker stated it could be at any time. He stated that the issue was if the Board wanted to do a fixed sum or a percentage of the sum. Member Yarbrough thought it should be a percentage that would be related to canopy coverage. She suggested requiring $1.00 per square foot for planting. Member Fricker thought it was a good idea.
Member Blakaitis asked if Option A would stay in the amendment. Member Yarbrough stated it wouldn’t. Member Blakaitis clarified that Option A was coming out completely from the amendment. Member Fricker stated that A could be combined with the second A. Member Yarbrough stated that the second A would stay and the first A would be stricken. Member Blakaitis clarified that the homeowner would still have the option to do 150% of what they think the vegetation would cost. Chairman Forlano disagreed. Member Yarbrough stated it would change to $1.00 per square foot of coverage required. Chairman Forlano clarified that Option A would come out and instead of the $5,000 deposit, it would be $1,000. Member Fricker disagreed. He suggested $1.00 for each square foot of canopy required to be planted. Member Yarbrough added that it would be based on the review of the homeowner’s vegetation management plan. Member Fricker added that other relevant factors would be considered. Member Yarbrough thought it was reasonable.
Jay Heyman thought there should be stages set for the dollar amount. Chairman Forlano stated that the Board was trying to make things as easy as possible. Mr. Heyman agreed. Member Yarbrough thought the new language was very easy and clear for homeowners to understand. Olin Finch suggested coming up with a set amount of money for a deposit that could be forfeited if the homeowner does not plant vegetation.
Director Garman suggested the language regarding the cash deposit be: “…a cash deposit, irrevocable letter of credit or other financial surety in an amount equal to one dollar ($1.00) per every one (1) square foot of canopy coverage required to meet the vegetation canopy requirements as specified in the approved vegetation management plan…” Chairman Forlano clarified that it was all part of the memorandum of understanding. Director Garman stated he was correct. Chairman Forlano clarified that the memorandum of understanding would be taken out of the ordinance. Director Garman thought it was fine as it was written. He stated that language could be added to the vegetation management plan that specified that if a homeowner wanted to defer planting, what their options would be.
Chairman Forlano clarified that both A’s would be taken out of the ordinance. Director Garman stated that only the first A would be removed. Member Blakaitis added that the second A would be rewritten. Chairman Forlano clarified that B would stay as is but the language would have Member Fricker’s suggested wording. Director Garman suggested that it state: “…at any time prior to issuance of a Certificate of Occupancy, a property owner may obtain an extension of time, up to ninety (90) days beyond the date of the Certificate of Occupancy, provided that the property owner signs a memorandum of understanding that specifies the timeframe for installation of all landscaped materials and penalties for failure to abide by the terms of the agreement…” Chairman Forlano asked the Board if they agreed on the language. Member Yarbrough stated she did. Members Blakaitis and Fricker were also okay with the language.
Chairman Forlano asked if there were any other issues. Member Fricker asked if the Board had effectively stated they did not want to use the deposit to handle the dying vegetation. Chairman Forlano stated they did. Member Fricker stated he had no other issues.
Member Blakaitis asked if the whole issue came from Council or if it was something that Director Garman brought forward to the Board. Director Garman stated it did come from Council. Member Blakaitis asked if the discussion was keeping with Council’s objectives. Councilor Liaison Wessel stated that his impression was that it was.
Member Blakaitis had a change to Page 4 of the ordinance regarding removal of a tree near a house.
Chairman Forlano moved to accept the amendment to the ordinance as amended and be recommended to Council. Member Fricker seconded.
Motion carried 4-0.
Discussion of Driveway/Parking Regulations Pertaining to Circular Driveways and Required Surfacing – Member Yarbrough
Member Yarbrough stated that she was bringing the issue to the Board for consideration. She stated that the Board had a discussion on the issue in September 2007 and made changes to the ordinance. She stated that her neighbor was in the process of completing some remodeling on their home and part of the process involved re-doing their driveway. She stated that the Board had discussions regarding the use of concrete in the driveways and the practical uses. She stated that she asked her neighbor to outline the practical uses of what they wanted to achieve by installing the new driveway. She stated that there was a lot of recreational use of concrete driveways by the 18 and under set – such as using it for basketball, bicycling and skateboarding. She stated that her neighbor wanted to leverage their concrete pad for a variety of recreational uses as well as having a circular driveway. She added that they wanted the circular driveway as a safe way to navigate their property. She pointed out that the current ordinance prohibits circular driveways in Town. A twenty (20) foot curb cut is allowed, but drive aisles are required to be twelve (12) feet in width, making it impossible to have two (2) cuts. She didn’t think the Town was intentionally trying to prohibit people from installing circular driveways. She pointed out that a twenty-four (24) foot cut would have to be allowed in order to obtain the two (2), twelve (12) foot wide drive aisles. She stated that there wasn’t much for the Board to do other than to decide if they wanted to ask Council if they should look at the issue again.
Director Garman stated that if the Board had a consensus on whether they would like to discuss the issue further, they could make a motion to send it to Council to have it brought back to the Planning Board. Chairman Forlano didn’t think it was in the Board’s jurisdiction. He thought it would go before the Board of Adjustment. Director Garman thought Member Yarbrough was raising a policy question as to whether or not the Town wants to have the ability to allow people to install circular driveways. Member Yarbrough agreed as circular driveways are prohibited in Town. Chairman Forlano thought the Board discussed driveway openings and brought up eliminating multiple openings on side streets, but allowing circular driveways only on main streets, which would be on Duck Road. He stated it was so people would not back out onto Duck Road.
Member Yarbrough asked why the Town would not allow circular driveways if the homeowner felt it was the safest way to navigate out of their property. She wondered why the Town wouldn’t permit it. Chairman Forlano thought the argument was that it was a necessary allowance on Duck Road but wasn’t necessary on a side street. Member Yarbrough stated an argument could be made that there was a curve in the road or people wouldn’t want to back out of their driveway if they didn’t have a clear line of sight. She stated that the Town could not dictate what people feel is safe. Chairman Forlano asked if there was no possibility of a ten (10) foot turnaround within the confines of that driveway. Member Yarbrough felt a circular driveway was a reasonable request, especially if there weren’t any lot coverage issues. She didn’t know why it should be regulated.
Olin Finch stated that the question was whether the intent was to specifically prohibit circular driveways. He thought it was not the intent to do that. Members Yarbrough and Fricker agreed. He thought the idea was to stop people from having forty (40) feet of concrete from coming onto the main road. He stated that the discussion never came up whether it was okay or not to have circular driveways. Director Garman stated he had reviewed the minutes of the meeting where this issue was discussed and pointed out that there were a few quotes in the minutes that the Board did not want to prohibit people from having circular driveways. He stated that after reading the minutes, he saw a catch-22 with regard to the ordinance. He stated he didn’t want to get into a situation where he would allow more than one twenty (20) foot wide access. He stated that if the intent was to allow circular driveways, he thought it needed to be specifically addressed in the ordinance.
Member Blakaitis stated that he remembered the Board wanted to avoid the impression of homes having a wide cut in front of some homes with vehicles parked in front of the house. Chairman Forlano added that the multiple openings on one lot also came into play.
Member Fricker thought the whole issue was not an aesthetic issue, but a safety issue. He stated that this was not the way for the Board to be conducting business. He stated that if something needed to be discussed, the Board should see it in advance to know the issues, formulate questions and have minutes to review. He didn’t think it was an efficient or fair way to do it the way the Board was doing it tonight. Member Yarbrough thought the Board was trying to decide whether or not to have the discussion. Member Blakaitis asked if the Board would have to be directed by Council as to whether they should have the discussion. Member Yarbrough stated that Council would. Director Garman added that the Town Manager expressed this was how things were done. Member Yarbrough thought it was a housekeeping issue and wanted the Board to be apprised of a valid concern. Chairman Forlano didn’t think it was a housekeeping issue. He thought it should be sent to Council for them to handle. Member Fricker stated he had no problem considering the issue.
Director Garman stated that the intent was to determine whether there is a problem with the ordinance. Olin Finch thought there was a problem with it.
Member Yarbrough moved to refer the issue to the Town Council for referral back to the Planning Board. Member Fricker seconded.
Motion carried 4-0.
Member Fricker asked what happened at the Council Retreat with regard to the signage issue. Director Garman stated that the presentation was shortened due to time constraints. He stated it has been rescheduled for the Council’s mid month meeting on Wednesday, February 20, 2008. Chairman Forlano asked what time the meeting would be held. Director Garman stated it would be held at 1:00 p.m. He encouraged the Board to attend the meeting.
Chairman Forlano asked when the next Planning Board meeting would be. Member Blakaitis stated it was Wednesday, February 27, 2008.
Chairman Forlano adjourned the meeting.
The time was 8:19 p.m.
/s/ Ron Forlano, Chairman