Agenda Town of Duck Council Town of Duck Meeting Hall April 1, :00 p.m. Regular Meeting. B. Minutes from the March 4, 2015, Regular Meeting

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1 Agenda Town of Duck Council Town of Duck Meeting Hall April 1, :00 p.m. Regular Meeting 1. Call to Order 2. Public Comments 3. Consent Agenda 4. Public Hearings A. Pledge of Allegiance B. Moment of Silence A. Minutes from the February 18 th and 19, 2015, Council Retreat B. Minutes from the March 4, 2015, Regular Meeting C. Resolution 15-02, a Resolution of the Town Council of the Town of Duck, North Carolina, Declaring the Month of April as Child Abuse Prevention Month A. Public Hearing/Discussion/Consideration of CUP 15-01, a Conditional Use Permit application by C.S. Friedman, on behalf of 4 Seasons Resort, Inc., property owner, to consider a conditional use permit to establish a 28-seat restaurant in the existing Duck Commons Plaza located at 1211 Duck Road, The applicant intends to convert 2,770 square feet of retail space at 1211 Duck Road for use as a restaurant and storage area. B. Public Hearing/Discussion/Consideration of Ordinance 15-04, an ordinance to amend Town Code Section , Interpretation of District Boundaries. The proposed ordinance amendment seeks to eliminate and correct unnecessary wording. 5. Old Business/Items Deferred from Previous Meetings A. Discussion/Consideration of an Interlocal Agreement among Dare County, the Town of Duck, the Town of Kill Devil Hills and the Town of Kitty Hawk related to the financing and construction of beach nourishment projects

2 April 1, 2015 Regular Meeting (continued) 5. Old Business/Items Deferred from Previous Meetings (continued) 6. New Business B. Discussion/Consideration of authorizing the following text amendments for Public Hearing: 1. An Ordinance Amending the Buildings and Structures Ordinance of the Town of Duck, North Carolina by Defining the Activities that Constitute Commencement of Work 2. An Ordinance Amending Tree and Vegetation Preservation and Planning Standards in the Zoning Ordinance of the Town of Duck, North Carolina A. Overview of Senate Bill 369, The Sales Tax Fairness Act and SB 160, Enhance Safety & Commerce for Ports/Inlets B. Planning Board Appointment 7. Items Referred To and Presentations from the Town Attorney 8. Items Referred To and Presentations from the Town Manager A. Update on Departmental Activities B. Project Update on Beach Nourishment Project C. Police Chief Search D. Financial Statement for the Month of March for FY Mayor s Agenda 10. Council Members Agenda 11. Other Business A. Additional Public Comments 12. Adjournment

3 AGENDA: April 1, 2015 Regular Meeting ITEM #1: Call to Order A. Pledge of Allegiance B. Moment of Silence RECOMMENDED ACTION: Call the Town Council to order Conduct the Pledge of Allegiance Hold a Moment of Silence SUMMARY OF INFORMATION: The Mayor will call the Council to order and the Council will lead the audience in the recitation of the Pledge of Allegiance and will hold a Moment of Silence. ATTACHMENTS: None

4 AGENDA: April 1, 2015 Regular Meeting ITEM #2: Public Comments RECOMMENDED ACTION: None required. SUMMARY OF INFORMATION: The Council shall receive comments from the public. ATTACHMENTS: None

5 AGENDA: April 1, 2015 Regular Meeting ITEM #3: Consent Agenda A. Minutes from the February 18 and 19, 2015, Council Retreat B. Minutes from the March 4, 2015, Regular C. Resolution 15-02, a Resolution of the Town Council of the Town of Duck, North Carolina, Declaring the Month of April as Child Abuse Prevention Month RECOMMENDED ACTION: Approve the Consent Agenda (As a reminder, the Consent Agenda is intended to be voted on and approved as one motion. If discussion is required on individual items, a motion must be made to remove that item from the Consent Agenda and add it to the Regular Agenda.) SUMMARY OF INFORMATION: The Consent Agenda includes minutes from the February 18 and 19, 2015, Council Retreat, the March 4, 2015, Regular meeting and Resolution 15-02, declaring the month of April as Child Abuse Prevention Month. The Council is requested to approve the minutes and the budget amendment. ATTACHMENTS: Minutes Resolution 15-02

6 TOWN OF DUCK TOWN COUNCIL RETREAT February 18 & 19, 2015 The Town Council for the Town of Duck convened at the Duck Meeting Hall at 9:00 a.m. on Wednesday, February 18, COUNCIL MEMBERS PRESENT: Mayor Don Kingston, Mayor Pro Tempore Monica Thibodeau; Councilor Nancy Caviness; Councilor Chuck Burdick; and Councilor Jon Britt. OTHERS PRESENT: Town Manager Christopher Layton, Director of Community Development Joe Heard; Fire Chief Donna Black; Deputy Fire Chief William Walker; Fire Captain Jeffrey Del Monte; Police First Sergeant Jeffrey Ackerman; Police Sergeant Melissa Clark; Master Police Officer Joseph Knight; Ocean Rescue Director Mirek Dabrowski; Building Inspector Cory Tate; Town Attorney Robert Hobbs; Public Information Officer Denise Walsh; Administrative Assistant Bethany Morr; and Town Clerk Lori Kopec. ABSENT: None. Mayor Kingston called the meeting to order at 9:03 a.m. He welcomed everyone to the Retreat. PUBLIC SAFETY UPDATES Police Department Police First Sergeant Jeffrey Ackerman and Police Sergeant Melissa Clark were recognized to speak. First Sergeant Ackerman and Sergeant Clark gave a presentation on the Duck Police Department s community service as well as the community policing efforts they provide to citizens of the Town to Council and the audience. Master Police Officer Joseph Knight was recognized to speak. Master Police Officer Knight gave a presentation on ways the Police Department gets information out to the community as well as the various programs the Department participates in to Council and the audience. First Sergeant Ackerman and Sergeant Clark gave a presentation on the Police Department s future activities and initiatives to Council and the audience. They discussed the replacement of three vehicles for the Department, touching on the replacement schedule. They stated that they wished to replace the vehicles with Chevrolet Tahoes as they have had great success with the ones that are in the current fleet. Councilor Burdick noted that Ford just announced an SUV specifically for police use. He suggested that the Police Department look into them. First Sergeant Ackerman stated that the new SUV was similar to the Chevrolet Tahoe but was more expensive and was not part of the bid for the State contract. Mayor Pro Tempore Thibodeau asked if the officers are kept in the same vehicles when they are replaced. First Sergeant Ackerman stated she was correct. He added that the officers know when their vehicles are up for replacement and take good care of them. 1

7 Mayor Kingston asked what the preference was for the color of the Police vehicles. First Sergeant Ackerman stated that silver was the preference. Councilor Burdick asked if there wasn t an advantage to have multi-colored vehicles. First Sergeant Ackerman stated that he could see some advantages but wasn t sure if it was enough of an advantage to have multi-colored vehicles. Sergeant Clark noted that the Department would be retaining one unmarked vehicle. First Sergeant Ackerman and Sergeant Clark discussed the mobile data terminal replacement schedule, the importance of body cameras and the future replacement of the in-car cameras to Council and the audience. Mayor Kingston thanked First Sergeant Ackerman and Sergeant Clark for their presentations. He called for a five minute break. The time was 10:07 a.m. Mayor Kingston reconvened the meeting. Fire Department Fire Chief Donna Black and Deputy Fire Chief Bill Walker were recognized to speak. Fire Chief Black and Deputy Fire Chief Walker gave a presentation on the Fire Department activities to Council and the audience. Bob Mack of 107 Ruddy Duck Lane was recognized to speak. Mr. Mack gave his perspective on being part of the firefighting personnel to Council and the audience. Fire Captain Jeffrey Del Monte was recognized to speak. Fire Captain Del Monte gave his perspective on being part of the fire shift personnel to Council and the audience. Pat Scarlett of 102 Mallard Drive was recognized to speak. Ms. Scarlett gave her perspective on changes to the Fire Department to Council and the audience. Fire Chief Black stated that she was asking for three additional full-time firefighters to make up for the shortfall in staffing for the Fire Department. She went on to review how the three new firefighters would be scheduled to work to Council and the audience. Councilor Burdick stated that he needed to think about things. Mayor Pro Tempore Thibodeau agreed. Councilor Burdick stated that Fire Chief Black put forward an interesting proposal, but felt that Council needed time to think it over. Mayor Pro Tempore Thibodeau clarified that Fire Chief Black was asking for two full-time firefighters. Fire Chief Black stated that she has three full-time firefighters currently on staff and was asking for three more. Mayor Pro Tempore Thibodeau clarified that there will be no change in the part-time firefighters. Fire Chief Black stated she was correct. Councilor Burdick thought the Fire Department would have a six month problem as well as six months without a problem. He added that based on the incidents and response the Department has to do; indicated the issue was during the summer months. He asked if Fire Chief Black looked at ways to bridge the gap instead of asking for additional full-time firefighters. Fire Chief Black stated that the Fire Department has a volume issue for six months out of the year, but the protection and response issue was an entire year. Mayor Kingston thanked Fire Chief Black and Deputy Chief Walker for their presentations. 2

8 Surf Rescue Ocean Rescue Director Mirek Dabrowski was recognized to speak. Ocean Rescue Director Dabrowski gave a short presentation on the activities of his surf rescue staff to Council and the audience. Mayor Kingston thanked Ocean Rescue Director Dabrowski for his presentation. He recessed the meeting for lunch. The time was 11:52 p.m. Mayor Kingston reconvened the meeting. DEPARTMENTAL UPDATES Community Development Director of Community Development Joe Heard was recognized to speak. Director Heard gave a short presentation on the activities of the Community Development Department to Council and the audience. Councilor Caviness asked which agency oversees the Community Rating System. Director Heard stated that the National Flood Insurance Program set the standards and the ISO insurance office oversees it. Building Inspector Cory Tate was recognized to speak. Building Inspector Tate reviewed what the Town could expect moving forward with regard to the Community Rating System to Council and the audience. Mayor Kingston thanked Director Heard and Building Inspector Tate for their presentations. PR/Events Public Information Officer Denise Walsh was recognized to speak. Public Information Officer Walsh gave a presentation on activities and events going on in Town to Council and the audience. Public Relations Assistant Beth Morr was recognized to speak. Public Relations Assistant Morr gave a presentation on the Town s social media outlets and how the Town gets information out to the public to Council and the audience. Mayor Kingston thanked Public Information Officer Walsh and Public Relations Assistant Morr for their presentations. He called for a 10 minute break. The time was 2:49 p.m. Mayor Kingston reconvened the meeting. FINANCIAL OVERVIEW FY 2015 and Preliminary FY 2016 Analysis/Update Town Manager Christopher Layton was recognized to speak. Town Manager Layton gave an analysis and update on Fiscal Year 2015 as well as a preliminary Fiscal Year 2016 analysis to 3

9 Council and the audience, touching on budgetary goals, building permits, the beach nourishment project, revenues and expenditures. Draft FY 2016 Capital Improvements Program Town Manager Layton gave a presentation of the Draft FY 2016 Capital Improvements Program to Council and the audience. Overview of the Soundside Boardwalk Phase IV Study Director Heard gave a short presentation on the Soundside Boardwalk Phase IV Study, including the challenges and opportunities with regard to extending the boardwalk, to Council and the audience. Town Manager Layton stated that he wanted to discuss the soundside boardwalk because Councilor Burdick had expressed a desire for moving the project forward into He noted that it was originally shown in later years. He asked Council for direction in moving forward and whether they wanted to explore the extension or not. Mayor Kingston stated that between the beach nourishment project and the pedestrian plan, the extension would be nice to have, but further in the future. He added that it would take a lot of effort to design and engineer and felt that other projects took precedent at this time. Councilor Britt stated that he would support the project further in the future. He added that he and Councilor Burdick had discussed getting pedestrians off the road near Sunset Grill as it was a dangerous area. He thought that with the pedestrian plan starting, it may make things more difficult. He thought the pedestrian plan should take precedence and felt the extension of the boardwalk should wait. Councilor Burdick felt that the boardwalk extension needed to tie in with the pedestrian plan. He added that it needed to be thought of as part of the pedestrian plan. He stated that as the Town completed the pedestrian plan design, there should be a pretty good idea with regard to the extension. He didn t feel that the project should wait. He added that to do the pedestrian plan design and not include the boardwalk extension may change the plan for both. He suggested taking the $12,000 for the boardwalk extension and put it into the pedestrian plan to make sure that it will accommodate the extension. He didn t see it as a delay, but more of how it would fit. Mayor Pro Tempore Thibodeau agreed that the Town had a lot of projects before it, but thought it would make sense to look at the west side of Duck Road when completing the pedestrian plan, even if it was just to perform a cursory surveying. She agreed that there will be challenges with extending the boardwalk especially when it comes to viewsheds. She suggested that the Town think of ways of creating a hybrid boardwalk/west side walkway. Town Manager Layton stated that the $12,000 would allow the engineers to perform a conceptual level item that could be taken to the property owners. He added that the next phase would be the engineering and permitting. He thought the Town could add some accommodation for it in the pedestrian plan. He noted that because the area was constricted, sidewalks could not be used in more than one area, so the boardwalk would make sense. Allan Beres of 146 Dune Road was recognized to speak. Mr. Beres stated that he didn t see the attraction to extend the boardwalk to Sunset Grill Restaurant. He stated that there were very few 4

10 areas where the sound could be viewed and this particular area is the only one that remains. He asked why it should be blocked by a boardwalk, adding that it made no sense. He thought there was another way to provide safe passage in that area to pedestrians other than constructing a boardwalk that would block views. John Wander of 119 Sandcastle Court was recognized to speak. Mr. Wander agreed with Allan Beres comments. He thought the area near Sunset Grill Restaurant was one of the prettiest spots for people to see the sound. He thought a boardwalk would destroy that view. He noted that Sunset Grill Restaurant was already overloaded and didn t think they needed help with getting more customers to their restaurant. He stated that parking was a premium in Town and to use those spaces for the extension would be a bad move. Stormwater Improvements Town Manager Layton gave a presentation on the stormwater improvements to Council and the audience. Repaving of Duck Trail Director Heard gave a short presentation on the repaving of the Duck Trail to Council and the audience. Pedestrian Plan Implementation Town Manager Layton gave a short presentation on the pedestrian plan implementation to Council and the audience. Councilor Britt moved to authorize the Town Manager to execute the agreement for the pedestrian plan implementation. Motion carried 5-0. Park Shoreline Stabilization Town Manager Layton gave a short presentation on the park shoreline stabilization project to Council and the audience. Mayor Kingston thanked Town Manager Layton and Director Heard for their presentations. He thanked everyone for attending the Retreat. Mayor Kingston moved to recess the meeting until Thursday, February 19, 2015 at 9:00 a.m. Motion carried 5-0. The time was 5:39 p.m. RECONVENE The Town Council for the Town of Duck reconvened at the Duck Meeting Hall at 9:00 a.m. on Thursday, February 19,

11 COUNCIL MEMBERS PRESENT: Mayor Don Kingston; Mayor Pro Tempore Monica Thibodeau; Councilor Nancy Caviness; Councilor Chuck Burdick; and Councilor Jon Britt. OTHERS PRESENT: Town Manager Christopher Layton, Director of Community Development Joe Heard; Fire Chief Donna Black; Deputy Fire Chief William Walker; Police First Sergeant Jeffrey Ackerman; Police Sergeant Melissa Clark; Town Attorney Robert Hobbs; Ken Willson of Coastal Planning and Engineering; Julien Devisse of Coastal Planning and Engineering; Dare County Chairman Bob Woodard; Public Information Officer Denise Walsh; Administrative Assistant Bethany Morr; and Town Clerk Lori Kopec. ABSENT: None. Mayor Kingston called the meeting to order at 9:04 a.m. DUCK MERCHANTS ASSOCIATION Public Information Officer Denise Walsh was recognized to speak. Public Information Officer Walsh gave a short history on the formation of the Duck Merchants Association to Council and the audience. David Facenda of the Duck Merchants Association was recognized to speak. Mr. Facenda gave a presentation on the activities of the Merchants Association to Council and the audience. Mayor Kingston thanked Public Information Officer Walsh and Dave Facenda for their presentations. He called for a 15 minute break. The time was 9:56 a.m. Mayor Kingston reconvened the meeting. OUTER BANKS VISITORS BUREAU Councilor Caviness introduced Lee Nettles and Tim Cafferty from the Outer Banks Visitors Bureau. Tim Cafferty gave a short presentation on the activities of the Outer Banks Visitors Bureau to Council and the audience. Lee Nettles gave a presentation on tourism statistics and reviewed the Tourism Bureau s website and new brochure with Council and the audience. Mayor Kingston thanked Tim Cafferty and Lee Nettles for their presentations. He called for a 20 minute break. The time was 11:07 p.m. Mayor Kingston reconvened the meeting. LUNCH WITH BOB WOODARD, CHAIRMAN, DARE COUNTY BOARD OF COMMISSIONERS Dare County Board of Commissioners Chairman Bob Woodard was recognized to speak. Commissioner Woodard gave a short update on the various happenings with Dare County to Council and the audience. He then took questions from the audience. 6

12 Mayor Kingston thanked Commissioner Woodard for his time. He recessed the meeting for lunch. The time was 12:12 p.m. Mayor Kingston reconvened the meeting. BEACH MANAGEMENT PROJECT Presentation by Coastal Planning and Engineering Ken Willson and Julien Devisse of Coastal Planning and Engineering were recognized to speak. Mr. Willson and Mr. Devisse gave an update on the Town s beach nourishment project to Council and the audience. They reviewed the progress of the project and what would be happening as it progressed. Mayor Kingston then allowed the audience to ask questions of Ken Willson and Julien Devisse. He thanked Ken Willson and Julien Devisse for their presentation. Overview of Municipal Service Districts Town Manager Layton gave an overview of the proposed Municipal Service Districts to Council and the audience. He reviewed the public notice that was mailed property owners, the areas of the proposed MSDs as well as reminding everyone of the upcoming public hearing on the MSDs that was set for March 4, 2015 at 7:00p.m. After his presentation, Town Manager Layton took questions from Council and the audience. Mayor Kingston thanked Town Manager Layton for his presentation. He called for a 15 minute break. The time was 3:21 p.m. Mayor Kingston reconvened the meeting. OTHER ISSUES Discussion of 2022 Vision Town Manager Layton gave a short overview of the 2022 Vision to Council and the audience. He asked Council if they wished to tweak things in it. He didn t think Council should go through the Vision line by line, but to look at the overall Vision to see if there were tweaks that could be listed for a future meeting. Mayor Kingston thought Council could have a discussion on the 3-5 year goals and the action steps to see if more goals or steps needed to be added. Mayor Pro Tempore Thibodeau stated that she couldn t see making major changes to the Vision. She asked what was happening with the living shoreline erosion project. Town Manager Layton stated that Council had a memorandum from VHB in their packets with a status on the project. He went on to review it with Council and the audience. Mayor Pro Tempore Thibodeau asked if it would make sense to annotate that the project has been removed from the Vision. Town Manager Layton stated that he could add verbiage that would clarify that it wasn t ignored. Mayor Kingston suggested having a status column on the 3-5 year goals where the statuses could be updated, making it a living document. Councilor Britt thought what the Town has accomplished to date could be put in it. Mayor Pro Tempore Thibodeau thought dates could be 7

13 put in it to give it a sense of history. Councilor Caviness thought it was simple enough to show when goals were set with the dates. Town Manager Layton stated that he could come up with a template based on the CIP and some other items and how they reflect back to the Vision and bring it back at a future meeting. Mayor Pro Tempore Thibodeau asked if Council was going to come back at 5 years to look at the Vision to come up with new 3-5 year goals or if it was ongoing. Councilor Burdick thought Council needed to come back at the end of 5 years to assess things. Town Manager Layton noted that it should be re-evaluated after each election. Town Manager Layton and Council discussed the wall art that was drawn during the 2012 Vision Retreat and what should be done with it to preserve it. Council Member Issues Councilor Burdick congratulated Town Manager Layton and Town staff on an excellent Retreat. Mayor Pro Tempore Thibodeau thanked Town Manager Layton and Town staff for all of their hard work. She suggested having an additional microphone available for people to use when they wish to speak at the meetings. Councilor Caviness stated that several people had come up to her during the breaks to tell her how impressed they were at how much the Town does with such a small staff. She commended Town staff for their hard work. Councilor Britt echoed Councilor Caviness comments. He thanked the Tourism Bureau for attending the Retreat, but was upset about the blatant neglect in their new brochure with regard to the Town of Duck. He stated that he would like to have something put together to the Tourism Bureau about it. Councilor Caviness stated that the Tourism Bureau s meeting will be on Thursday, February 26, 2015 and she would bring it up. Mayor Kingston thought something from Council could be sent to the Tourism Bureau to thank them for attending the Retreat and to let them know of the issues. Councilor Caviness agreed. Councilor Burdick noted that the Tourism Bureau contributes so much to help the Town of Duck and thought it was an oversight. He thought a formal letter may work better. Mayor Pro Tempore Thibodeau stated that she was not asked for input on the brochure, but knew that the staff at the Tourism Bureau was stretched due to the seafood festival. She agreed with Councilor Burdick that a formal letter would be better. Councilor Britt stated that he was fine with Councilor Caviness delivering the message to the Tourism Bureau and felt Council should back her up. Councilor Caviness noted that the omission was not only in the brochure but also on the Tourism Bureau s website. Mayor Kingston asked if there should be a formal letter or if Councilor Caviness should express the concern verbally. Councilor Britt thought having something in writing would be better. Councilor Caviness stated that she will talk to the people at the upcoming Tourism Bureau meeting and go from there. Councilor Britt stated that the Retreat was great overall. Mayor Kingston thanked Town staff and Council for a great Retreat. 8

14 ADJOURNMENT Councilor Caviness moved to adjourn the meeting. Motion carried 5-0. The time was 4:13 p.m. Lori A. Kopec, Town Clerk Approved: Don Kingston, Mayor 9

15 TOWN OF DUCK TOWN COUNCIL REGULAR MEETING March 4, 2015 The Town Council for the Town of Duck convened at the Duck Meeting Hall at 7:00 p.m. on Wednesday, March 4, COUNCIL MEMBERS PRESENT: Mayor Don Kingston; Mayor Pro Tempore Monica Thibodeau; Councilor Nancy Caviness; Councilor Chuck Burdick; and Councilor Jon Britt. COUNCIL MEMBERS ABSENT: None. OTHERS PRESENT: Town Manager Christopher Layton; Director of Community Development Joseph Heard; Police First Sergeant Jeffrey Ackerman; Police Sergeant Melissa Clark; Fire Chief Donna Black; Town Attorney Robert Hobbs; Public Information Officer Denise Walsh; Administrative Assistant Bethany Morr; and Town Clerk Lori Kopec. OTHERS ABSENT: None. Mayor Kingston called the meeting to order at 7:02 p.m. He asked Mayor Pro Tempore Monica Thibodeau to lead the Pledge of Allegiance. Mayor Kingston led the moment of silence. PUBLIC COMMENTS Mayor Kingston opened the floor for public comments. He asked that any comments related to the public hearings be held off. Lorelei DiBernardo of the League of Women Voters was recognized to speak. Ms. DiBernardo handed out the 2015 Citizens Guide to Council. She thanked Council for their generous contribution to the League. There being no one else wishing to speak, Mayor Kingston closed the time for public comments. CONSENT AGENDA Minutes from the January 21, 2015, Regular Meeting; Minutes from the February 4, 2015, Regular Meeting; and Budget Amendments Councilor Burdick moved to approve the Consent Agenda as presented. Motion carried 5-0. PUBLIC HEARINGS Public Hearing/Discussion/Consideration of the Establishment of Two Municipal Service Districts (MSDs) related to the Town of Duck Beach Nourishment Project Mayor Kingston turned the meeting over to Town Attorney Hobbs. 1

16 Town Attorney Robert Hobbs was recognized to speak. Town Attorney Hobbs stated that the public hearing was open. He asked Town Manager Layton to give a presentation. Town Manager Christopher Layton was recognized to speak. Town Manager Layton stated that the Town has been working on the engineering and planning for the Town s Beach Nourishment Project. He stated that as part of the project, the Town was proposing to establish two Municipal Service Districts (MSDs) to assist with the funding of the debt service on the Town s portion of the project s cost. He noted that the total cost was estimated to be $14,589,000, with Dare County providing $7.7 million from the Dare County Shoreline Management Fund and the remaining $6,889,000 being funded through the issuance of Special Obligation Bonds by the Town. Town Manager Layton stated that with the additional annual funding being provided by Dare County and the Shoreline Management Fund, the Town s expected annual debt service for a five year payback will be $1,221,390. He stated that under the proposed plan, 20% or $244,278 annually of this debt service would be provided by the entire Town and the remaining 80% would be split between the oceanfront and non-oceanfront property owners in the project area, which would be an annual total of $488,556 from oceanfront property owners and $488,556 from nonoceanfront property owners. He noted that the amounts would be an equivalent of an additional ad valorem tax of $0.463 per $100 of assessed property value for oceanfront owners and $0.148 per $100 of assessed property value for non-oceanfront owners. Town Manager Layton stated that the proposed project area was comprised of all properties contained within the Atlantic Ocean to the east and the Currituck Sound to the west, from and including 137 Spindrift Lane north to and including 140 Skimmer Way and including 1308 Duck Road north to and including 1456 Duck Road, including 133 and 135 Skimmer Way and including 100 through 112 Oyster catcher Lane. Town Manager Layton stated that after the public hearing, Council will have the option to approve Resolution as it was presented, modify the resolution and then adopt it or defer action on the resolution until a future meeting. He noted that he actual tax rates associated with the MSDs will be adopted as part of the FY 2016 Budget. Town Attorney Hobbs asked Council if they had any questions for Town Manager Layton. There were none. Town Attorney Hobbs opened the public hearing for the public to comment. He noted that Council was not required or obligated to respond to any questions or comments from the public. John Hughes of 108 Sandy Ridge Road was recognized to speak. Mr. Hughes stated that he was in favor of the project and would support MSD A if it was expanded so that everyone in Town paid to help build up a fund in case of re-nourishment. Fred Vallade of 102 Flight Drive was recognized to speak. Mr. Vallade stated that he was against beach nourishment. He thought if it affected everyone, everyone should be taxed the same amount. Dick Allerton of Sanderling Property Owners Association was recognized to speak. Mr. Allerton stated that Town funds should not be used to pay for the project. He stated that he was concerned with the financial onus on the oceanfront property owners regarding the project. 2

17 There being no one else wishing to speak, Town Attorney Hobbs closed the public hearing and turned the meeting back over to Council. Mayor Pro Tempore Thibodeau thought it was interesting that there hadn t been a lot of public comments, but there were differing opinions. She stated that the formula was a good, workable solution because it allowed the entire Town to have some of the financial stake while not having things totally out of proportion to the people that would directly benefit from the project. She added that the oceanfront owners were greatly protected by the additional sand and will benefit greatly from the project. She stated that she was in favor of the project as presented. Councilor Britt stated that he was in support of the formula as each area benefits from it. He added that he appreciated all of the input that has been received. Councilor Burdick stated that the project needed to be done and this was an equitable way to do it. He added that he was in support of the project as presented. Mayor Kingston stated that Council has been involved in the process for multiple years with a lot of pros and cons as well as a lot of interaction with the public. He thought the formula will work for the Town. Resolution 15-01, a Resolution of the Town Council of the Town of Duck, North Carolina, Establishing and Creating Two Municipal Service Districts for the Purposes of Beach Erosion Control and Flood and Hurricane Protection Works Mayor Kingston moved to adopt Resolution as presented. Motion carried 5-0. Mayor Kingston thanked the public for all of their input. Public Hearing/Discussion Consideration of SE , a Special Exception Application Submitted by Ken Green & Associates, LLC, Agent for Jeffrey T. Scott, Property Owner at 111 Bunting Lane to Allow an Increase in Building Height for an Addition to Match the Existing Building Height of 35.3 Feet where a Maximum Height of 35 Feet is Permitted in the RS-1 Zoning District Mayor Kingston turned the meeting over to Town Attorney Hobbs. Town Attorney Hobbs stated that the Council would be sitting as a quasi-judicial body for the public hearing, meaning that they will sit as a court and must make its decision based upon competent material and substantive evidence that will be presented during the course of the hearing. He stated that anyone wishing to give testimony would have to give it while under oath with the applicant afforded due process rights including the right to present evidence, examine and cross-examine witnesses. He asked that anyone wishing to testify come forward to be sworn in. Town Clerk Lori Kopec proceeded to swear in staff for the public hearing. The following persons were sworn to provide testimony during the hearing: Joe Heard. 3

18 Town Attorney Hobbs opened the evidentiary portion of the hearing. He stated that Director Heard would give an overview. Director of Community Development Joe Heard was recognized to speak. Director Heard stated that the applicant was seeking a special exception permit to allow the highest point of an addition to their existing residence at 111 Bunting Lane to encroach 0.3 feet above the maximum building height requirement of 35 feet in the Single-Family Residential (RS-1) zoning district. He stated that if Council approved the special exception request, the highest point of the roofline would be permitted to reach a height of 35.3 feet. Director Heard stated that the Planning Board voted unanimously at their February 11, 2015 meeting to recommend approval of the special exception application and that staff was also recommending approval. Town Attorney Hobbs asked Council if they had any questions. Mayor Pro Tempore Thibodeau thought the request seemed reasonable. She asked if administrative latitude was not something that was available for height issues. Director Heard stated that the ordinance had provisions related to eaves encroaching into the setback. He added that staff could not grant a variance administratively. Mayor Pro Tempore Thibodeau asked if Council would see more special exceptions like this one in the future. Director Heard stated that there have been similar ones and there may be a chance that the Town could see others. Mayor Kingston pointed out that no one on behalf of the applicant was present for the public hearing. He asked if the owner or the contractor were present at the Planning Board meeting. Director Heard stated that the contractor was present for the Planning Board meeting. There being no one else wishing to speak, Town Attorney Hobbs closed the evidentiary portion of the hearing and turned the meeting back over to Mayor Kingston. Mayor Pro Tempore Thibodeau moved to adopt SE , granting the special exception as presented. Motion carried 5-0. Public Hearing/Discussion/Consideration of Ordinance 15-01, a Text Amendment to the Town s Subdivision Ordinance Proposing to Add Section (E), Exemptions, which would Establish Provisions for Exempt Plats Consistent with the Standards of the North Carolina General Statutes Mayor Kingston turned the meeting over to Town Attorney Hobbs. Town Attorney Hobbs stated that the public hearing was open. He asked Director Heard to give a presentation. Director Heard stated that the proposal would amend the Town s Subdivision Ordinance with the addition of Section (E), Exemptions, establishing standards for exempt plats consistent with the provisions of NC General Statute 160A

19 Director Heard stated that the Planning Board voted unanimously at their January 14, 2015 meeting to recommend approval of the proposed text amendment and staff was also recommending approval. Town Attorney Hobbs asked Council if they had any questions for Director Heard. There were none. Town Attorney Hobbs asked if members of the Planning Board wished to comment or make a presentation. There were none. Town Attorney Hobbs asked if members of the public wished to make a statement. There were none. There being no one else wishing to speak, Town Attorney Hobbs closed the public hearing and turned the meeting back over to Council. Councilor Burdick moved adopt Ordinance as presented. Motion carried 5-0. Public Hearing/Discussion/Consideration of Ordinance 15-02, a Text Amendment Proposing to Amend the Definition of Free and Clear of Obstruction in Section of the Town s Flood Damage Prevention Ordinance to Require that Structures in VE Flood Zones have Two Feet of Clearance above the Highest Adjacent Grade, rather than Finished Grade or Average Finished Grade Mayor Kingston turned the meeting over to Town Attorney Hobbs. Town Attorney Hobbs stated that the public hearing was open. He asked Director Heard to give a presentation. Director Heard stated that the proposal would amend the definition of Free and Clear of Obstruction in Section of the Town s Flood Damage Prevention Ordinance to require that structures in VE flood zones have two feet of clearance above the highest adjacent grade, rather than the finished grade or average finished grade. Director Heard stated that the Planning Board voted unanimously at their January 14, 2015 meeting to recommend approval of the proposed text amendment and staff was also recommending approval. Town Attorney Hobbs asked Council if they had any questions for Director Heard. Councilor Burdick clarified that the VE zone included every oceanfront property, regardless of the height above the mean water line. Director Heard stated he was correct. Councilor Burdick clarified that if a structure was 12 feet or 20 feet, it made no difference. Director Heard stated that it there was no difference regarding the zone, but there was as far as whether a structure will need to be elevated further or not. Councilor Burdick asked if this would apply to renovations only. Director Heard stated that it would apply if repairs or renovations exceeded 50% of the value of the structure. 5

20 Town Attorney Hobbs asked if members of the Planning Board wished to comment or make a presentation. There were none. Town Attorney Hobbs asked if members of the public wished to make a statement. There were none. There being no one else wishing to speak, Town Attorney Hobbs closed the public hearing and turned the meeting back over to Council. Councilor Caviness moved to adopt Ordinance as presented. Motion carried 5-0. Public Hearing/Discussion/Consideration of Ordinance 15-03, a Text Amendment Proposing to Correct and Clarify Several Typographical Errors in Sections (A), (D) and (F) of the Town s Zoning Ordinance Mayor Kingston turned the meeting over to Town Attorney Hobbs. Town Attorney Hobbs stated that the public hearing was open. He asked Director Heard to give a presentation. Director Heard stated that the proposal would correct several typographical errors by amending Section (A); Section (D)(8) and Section (F). Director Heard stated that the Planning Board voted unanimously at their January 14, 2015 meeting to recommend approval of the proposed text amendment and staff was also recommending approval. Town Attorney Hobbs asked Council if they had any questions for Director Heard. There were none. Town Attorney Hobbs asked if members of the Planning Board wished to comment or make a presentation. There were none. Town Attorney Hobbs asked if members of the public wished to make a statement. There were none. There being no one else wishing to speak, Town Attorney Hobbs closed the public hearing and turned the meeting back over to Council. Councilor Britt moved adopt Ordinance as presented. Motion carried 5-0. OLD BUSINESS Discussion/Consideration of Authorizing the Following Text Amendment for Public Hearing: Text Amendment Regarding the Elimination and Correction of Unnecessary Wording in Section Interpretation of District Boundaries 6

21 Director Heard stated that during Council s December 3, 2014 meeting, they voted unanimously to authorize the Planning Board to evaluate and prepare recommendations regarding several text amendments identified by the Community Development staff. He stated that this proposal would amend Section to eliminate Subsection (D), referencing boundaries along railroad lines, in its entirety and all subsequent subsections would be renumbered accordingly. He added that the amendment would also change both references from city to Town in Subsection (C). Director Heard stated that at its February 11, 2015 meeting, the Planning Board voted unanimously to recommend approval of the proposed text amendment for public hearing. Councilor Burdick moved to authorize the public hearing for April 1, Motion carried 5-0. NEW BUSINESS Discussion/Consideration of Items Related to the Government Access Channel Proposed FY Budget Town Manager Layton stated that each year, the Government Education Access Channel provides a budget overview to each participating entity: Dare County, the Towns of Duck, Southern Shores, Kitty Hawk, Kill Devil Hills, Nags Head, Manteo, Dare County schools, the College of the Albemarle, and the UNC Coastal Studies Institute. He stated that each member entity was required to approve the proposed budget. He noted that this year s request from the GEAC remains the same at $1,000, and highlights of the budget included funding for two positions and a Local Programming Development Initiative and the development of local programming for each participating entity every two months as opposed to every month. Mayor Kingston moved to approve the Proposed FY GEAC Budget as presented. Motion carried 5-0. Amended Interlocal Agreement Town Manager Layton stated that the amended Interlocal Agreement clarified how candidate forums were produced. Mayor Kingston moved to approve the Amended Interlocal Agreement as presented. Motion carried 5-0. ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN ATTORNEY Town Attorney Hobbs stated that he had nothing to report. ITEMS REFERRED TO AND PRESENTATIONS FROM THE TOWN MANAGER Update on Departmental Activities 7

22 Fire Chief Donna Black was recognized to speak. Fire Chief Black gave a brief overview of the past month s fire activities to Council and the audience. Police First Sergeant Jeff Ackerman and Sergeant Melissa Clark were recognized to speak. First Sergeant Ackerman and Sergeant Clark gave a brief overview of the past month s police activities to Council and the audience. Director Heard gave a brief overview of the past month s permit activities to Council and the audience. Public Information Officer Denise Walsh was recognized to speak. Public Information Officer Walsh gave a brief overview of the past month s activities to Council and the audience. Project Update on Beach Nourishment Project Town Manager Layton stated that Council had the latest letter from CP&E, which indicated that they were about 90% completed with the permitting and design and 95% completed with the sand search and borrow area. He stated that he received some additional comments from Fish and Wildlife and Marine Fisheries regarding the permit. He added that they posed some objections to some of the dredge windows in terms of its potential impact on sea turtles and other wildlife. He noted that it wasn t unexpected and the Town s consultants would be responding to the agencies. Town Manager Layton stated that, originally there was to be an Interlocal agreement with Dare County; however, it wasn t ready yet so he will bring it back to Council at their April 1, 2015 meeting. NCBIWA Annual Meeting Town Manager Layton stated that the North Carolina Beach, Inlet and Waterway Association meeting will be held at the Town of Pine Knoll Shores on March 16 and 17, He noted that he was not able to attend, but if any Council members wished to attend, to let him or Town Clerk Kopec know. Police Chief Search Town Manager Layton stated that, to date, he has received approximately 100 applications for the Police Chief position. He stated that the position closes on March 16, 2015 and the process he was looking at would be to use Fire Chief Black and Master Police Officer Joe Knight to assist him in going through the applications and sort through to find applicants that will likely to be good candidates for interviewing. He anticipated that after the candidates are interviewed, he would have a second set of people comprised of him, Fire Chief Black, an outside law enforcement person and Public Information Officer Walsh to perform the second round of interviews. He stated that a lot of applications were received and finding a good fit was paramount. He thought the process would not be unnecessarily rushed since First Sergeant Ackerman and Sergeant Clark, both candidates for the position, were doing a great job. Financial Statements for the Month of February for FY 2015 Town Manager Layton reviewed the financial statements with Council and the audience. MAYOR S AGENDA 8

23 Mayor Kingston recognized Linda Nave in the audience. He noted that she was a member of the original Council. He stated that his mayor s lunch will be on March 17, He stated that Mike and Willo Kelly have asked him to judge their annual St. Patrick s Day parade on March 15, He stated that he, Town Manager Layton and either Mayor Pro Tempore Thibodeau or Councilor Britt will be meeting with the Army Corps of Engineers on March 12, 2015 in the Duck Meeting Hall. He noted that he was caught by surprise with the pending legislation for dredging Oregon Inlet. He explained that the bill that was pending would give the Dare County Board of Commissioners authority to spend as they see fit, occupancy taxes funds. He added that it created controversy for multiple reasons and suggested that the Town send a letter to Senator Bill Cook, stating its opposition to this legislation. It was consensus of Council to have a letter sent to Senator Cook. COUNCIL MEMBERS AGENDA Mayor Pro Tempore Thibodeau stated that she was glad to see that so many people had attended the meeting. She thanked those that participated and gave comments. Councilor Burdick thanked Director Heard for leading Council through all of the public hearings. Councilor Caviness stated that she wanted to follow up with a conversation she had with Lee Nettles of the Dare County Tourism Board. She stated that she relayed Council s concerns regarding the discrepancies on their brochure and website. She stated that Mr. Nettles was appreciative that the concerns were brought forward and he assured her that Duck was a strong partner in tourism but that he couldn t do anything about correcting the printed guide; however, he would make the necessary corrections to the website. She commended the Police Department and Fire Department for keeping everyone advised of the range of demands they have encountered. Councilor Britt thanked Joe Blakaitis for his continued service on the Planning Board. OTHER BUSINESS Additional Public Comments Mayor Kingston asked the public for comments. There being no one wishing to speak, Mayor Kingston closed the time for public comments. Mayor Kingston noted that the next meeting would be the Regular meeting on Wednesday, April 1, 2015 at 7:00 p.m. ADJOURNMENT Councilor Britt moved to adjourn the meeting. Motion carried 5-0. The time was 9:18 p.m. Lori A. Kopec, Town Clerk 9

24 Approved: Don Kingston, Mayor 10

25 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF DUCK, NORTH CAROLINA, DECLARING THE MONTH OF APRIL AS CHILD ABUSE PREVENTION MONTH Resolution No WHEREAS, children are vital to our state s future success, prosperity and quality of life as well as being our most vulnerable assets; and WHEREAS, all children deserve to have safe, stable, nurturing and healthy homes and communities that foster their well-being; and WHEREAS, child abuse and neglect is a community responsibility affecting both the current and future quality of life of a community; and WHEREAS, parents need support and resources to cope with stress and nurture their children to grow to their full potential; and WHEREAS, effective child abuse prevention strategies succeed because of partnerships created among citizens, human service agencies, schools, faith communities, health care providers, civic organizations, law enforcement agencies, and the business community. NOW, THEREFORE, BE IT RESOLVED, this 1 st day of April, 2015, that the Town Council of the Town of Duck, North Carolina, hereby declares the month of April as Child Abuse Prevention Month; and BE IT FURTHER RESOLVED that the Town Council calls upon all citizens, community agencies, faith groups, medical facilities, elected leaders and businesses to increase their participation in their efforts to support families, thereby preventing child abuse and strengthening the community in which we live. Adopted this 1 st day of April Mayor ATTEST: Clerk

26 AGENDA: April 1, 2015 Regular Meeting ITEM #4: Public Hearings A. Public Hearing/Discussion/Consideration of CUP 15-01, a Conditional Use Permit Application by C.S. Friedman, on behalf of 4 Seasons Resort, Inc., Property Owner, to Consider a Conditional Use Permit to Establish a 28-Seat Restaurant in the Existing Duck Commons Plaza, Located at 1211 Duck Road B. Public Hearing/Discussion/Consideration of Ordinance 15-04, an Ordinance to Amend Town Code Section , Interpretation of District Boundaries. RECOMMENDED ACTION: See attachments SUMMARY OF INFORMATION: See attachments ATTACHMENTS: See attachments

27 AGENDA: April 1, 2015 Regular Meeting ITEM #4A: Public Hearings A. Public Hearing/Discussion/Consideration of CUP , a conditional use permit application, submitted by Chip Friedman representing Four Seasons Resorts, Inc., property owner of 1211 Duck Road. Pursuant to the Town of Duck Code of Ordinances, Section , the proposed conditional use permit would convert 2,770 square feet of retail space to use as a restaurant and storage in the existing Duck Commons Shopping Plaza at 1211 Duck Road. RECOMMENDED ACTION: Conduct the Public Hearing Consider Approval of the Conditional Use Permit Application SUMMARY OF INFORMATION: The applicant is requesting approval of a conditional use permit to convert 2,770 square feet of retail space to use as a restaurant and storage in the existing Duck Commons Shopping Plaza at 1211 Duck Road. A restaurant is a conditional use in the Village- Commercial (V-C) zoning district. There are no changes proposed to layout of the site or dimensions of the existing building. At its public meeting on March 11, 2015, the Duck Planning Board voted unanimously (5-0) to recommend APPROVAL of this conditional use permit to establish a restaurant in the existing shopping center at 1211 Duck Road, subject to the conditions outlined in the staff report. ATTACHMENTS: Staff Report Location Map and Property Information Conditional Use Application and Cover Letters Site Plan Proposed Restaurant Floor Plan Shared Parking Easement (recorded 8/14/07) Shared Parking Agreement (recorded 4/29/09) Special Exception Findings & Conditions for Parking (approved 7/1/09) Draft CUP Findings & Conditions

28 Town of Duck, North Carolina Department of Community Development CUP , Duck Commons Shopping Plaza 1211 Duck Road Agenda Item 4a TO: FROM: DATE: RE: Mayor Kingston and Members of the Duck Town Council Joe Heard, AICP, Director of Communityy Development April 1, 2015 Staff Report for CUP , 1211 Duck Road (Duck Commons Shopping Plaza) Application Information Application #: Project Location: Dare County PINs: Zoning: Property Owner: Applicant/Contact: Public Hearing Date: Public Hearing Advertised: Public Hearing Notices Sent: Public Hearing Sign Posted: Public Hearing Town Website: CUP Duck Road Village Commercial (V-C) Four Seasons Resort, Inc. Chip Friedman, Duck Commons Shopping Plaza Tom Yurasek, Restaurant Owner April 1, 2015, 6:300 pm March 15 & Marchh 29, 2015 (Coastland Times) March 18 & 25, 2015 (Outer Banks Sentinel) March 12, 2015 March 11, 2015 March 12, 2015 Proposal As outlined in the application materials for the proposedd project (Attachments B, C, and D), the applicant is requesting approval of a conditional use permit to convert 2,770 square feet of retail space to use as a restaurant and storage in the existing Duck Commons Shopping Plaza at 1211 Duck Road. Specifically, this proposal includes: Conversion of the middle unit formerly occupied d by Savvy Home. o 1,400 square feet of actual restaurant space (kitchen, seating, bathrooms, etc.). o 400 square feet containing an arcade game room. o 970 square feet of storage space related to thee restaurant (lower and upper floors) ). o Approximately 1,000 square feet in a separatee unit (presently unoccupied). The other existing tenants will remain in the samee layout. There are no changes proposed to layout of the site. There are no external improvements proposed to the building. 1

29 Town of Duck, North Carolina Department of Community Development CUP , Duck Commons Shopping Plaza 1211 Duck Road Agenda Item 4a Property Information The property at 1211 Duck Road is 33,9399 square feet (0.78 acre) in size and zoned Village Commercial (V-C). The property contains the Duck Commons Shopping Plaza, a multi-unit building totaling 6,706 square feet (5,636 square feet according to Dare County tax records). The center presently contains four units: Sweet T s restaurant, Savvy Home furnishings (now vacant), Duck Cycle, and offices for the Outer Banks Real Estate Group. The adjoining property to the south is zoned Village Commercial (V-C) and contains a BP gas station/convenience store and Coastal Cravings restaurant. The abutting property to the east is zoned Single-Family Residential (RS-1) and contains a single-family residence. Three properties zoned RS-1 are located across Schooner Ridge Drive too the north of Duck Commons. Each of these properties gains access from the north off of Duck Ridge Village Court. Two of these parcels contain a single-family residence while the third is presently undeveloped. The Duck United Methodist Church, zoned V-C, is located directlyy across Duck Road to the west. Prior Approval History When originally approved and developed in 1987 under the jurisdiction of Dare County, Duck Commons contained a four (4) unit commercial building totaling 6,706 square feet, including 3,770 square feet of retail space and 2,936 square feet of office space. Following the initial approval, there have been several other approvals and modifications to the building as tenants have changed over the years. In 1994, Dare County approved a conditional use permit to establish a restaurant in 930 square feet of the front unit. Occupied by several different tenants over the years, this space presently contains Sweet T s restaurant. SE : In July 2009, Duck Town Council approved a special exception allowing a shared parking arrangement between the Duck Commons Shopping Plaza and Duck United Methodist Church to meet the minimum parking requirements for the shopping center. This approval will be outlined in greaterr detail later in the staff report. Staff Analysis The proposed project does not involve any changes to the site layoutt or existing improvements on the property. Therefore, theree is no consideration necessary for many of the development standardss that might typically be reviewed for a commercial development. Effectively, the only significant issue concerns the amount of parking available to accommodate the proposed change of use. Staff has covered a few of the basic development t standards to help outline the status of the existing property, but most of the standards unaffected by this proposal are not covered in this staff report. 2

30 Town of Duck, North Carolina Department of Community Development CUP , Duck Commons Shopping Plaza 1211 Duck Road Agenda Item 4a Proposed Use (B): Conversion of 2,770 square feet of retail space to use as a restaurant with associated arcade game room and storage areas. A restaurant is a conditional usee in the Village Commercial (V-C) zoning district. Lot Area (D)(1): The parcel at 1211 Duck Road is 33,939 square feet (0.78 acre) in size, which exceeds the minimumm lot size of 20,000 square feet for the V-C district. Lot Coverage (D)(5): The proposed project will not change the existing site layout or lot coverage. Existing Lot Coverage Estimates: Driveway/Parking 8,800 s.f. Building 4,335 s.f. NOTE: uncovered decks and walkways are not counted toward lot coverage. Based on these figures, the estimated existing lot coverage is approximately 13,135 square feet or nearly 39%. As the maximumm lot coverage requirement in the V-C district is 60%, the existing developmen t appears to comply with this standard. Building Setbacks (D)( (2), (3) & (4): The proposed project will not expand or change the location of the existing building. The existing building has the following setbacks: Setback Distance Front (Duck Road) 90 feet Rear 10 feet South Side 6 feet North Side (Schooner Ridge Dr) 0 feet Minimumm Setback 15 feet 20 feet 10 feet 15 feet The existing building does not comply with the Town s minimum setback standards from the rear and sides of the property. However, as an existing structure developed priorr to adoption of the Town s setback standards, the building is consideredd to be a legal, nonconforming structure and can continue to be used in its current location. Access (G) & : The Duck Commons Shopping Plaza presently gains access from two driveways, both of which provide ingress and egress. One driveway is located off of Duck Road while the other accesses Schooner Ridge Drive. There are no changes proposed to access as part of the proposed project. 3

31 Town of Duck, North Carolina Department of Community Development CUP , Duck Commons Shopping Plaza 1211 Duck Road Agenda Item 4a Waste Management: The Duck Commons Shopping Plaza has used roll carts to accommodate its trash needs. However, the restaurant owner has expressed a strong interest in adding a dumpster to serve his needs. The submitted site plan shows an approved location for a dumpster just west of the driveway off of Schooner Ridge Drive. A site inspectionn by staff revealed that there appears to be enough room to accommodate a dumpster in this location. The applicant has solicited input from Waste Management concerning the location and orientation of the dumpster, but staff has not received that information at the time this staff report was written. If approved, the dumpster would require a fence or wall enclosure around three sides. The Planning Board recommended that screening for the dumpster must be constructed so that the dumpster cannot be seen from Duck Road or Schooner Ridge Drive. NOTE: If a dumpster is to be located elsewhere on the property, it iss not clear where it could be located without resulting in the loss of any on-site parking spaces. Wastewater Disposal ( ): The Duck Commons Shopping Plaza is presently served by an on-site septic system. The applicant has submitted an application seeking approval from the Dare County Environmental Health Department that either the existingg septic system can accommodate the proposed restaurant or can be upgraded to accommodate the restaurant prior to the issuance of a building permit. Signs ( ): There is no new signage proposed as part of this project. Any new signs will be reviewed and approved under a separate permit by the Community Development Department. Building/ /Fire Codes: The applicant has discussed this project with the Building Inspector. If this conditional use permit is granted, the applicant will need to obtain a building permit for all of the necessary interior renovations. The Building Inspector will inspectt all of this work to ensure compliance with the N.C. Building Code and N.C. Fire Code. Parking Spaces ( & ): When Dare County approved the conditional use permit to establish the Cravings restaurant in 1994, the approved site plan depicted 31 required parkingg spaces. Twenty-four (24) of thesee spaces have been provided on the same property as the shopping center. Seven (7) parking spaces were to be installed on a small, RS-1 zoned property on the opposite side of Schooner Ridge Drive. This property is listed in the Dare County tax records as owned by the Schooner Ridge Property Owner s Association. However, based on title research by the Town Attorney, the property was never deeded to the Association and is therefore still owned by Four Seasons 4

32 Town of Duck, North Carolina Department of Community Development CUP , Duck Commons Shopping Plaza 1211 Duck Road Resort, Inc. as they were the original developers of the Schooner Ridge subdivision. It appears that thesee seven (7) parking spaces were never installed. Section (O) of the Zoning Ordinance states, off-street parking spaces in conjunction with commercial and industrial uses in other districts shall not be permitted in a residential district. Therefore, the property across the streett cannot be used to provide additional parking for the Duck Commons Shopping Plaza at this time. An estimate of the minimum number of parking spaces for the Duck Commons Shopping Plaza (including the proposed restaurant) is calculated below: Use Retail (Duck Cycle) Size 5000 s.f. Ratio 1/200 s.f. # Required Spaces 2.5 spaces Office (OBX Real Estate) Restaurant (Sweet T s) Restaurant (proposed) Arcade (proposed) Vacant (office) TOTAL 5000 s.f/4 empl 15 seats/3 empl 28 seats/3 empl 4000 s.f. 1,000 s.f. 1/ /2 employees 1/3 seats + 1/3 employees 1/3 seats + 1/3 employees 1/ /2 employees 1/ /2 employees 3.5 spaces 6.0 spaces 10.3 spaces 4.0 spaces 8.0 spaces 32.3 spacess **The estimated minimum parking requirement rounds up to 333 parking spaces. The parking requirement for Savvy Home was 18.9 parking spaces (3,770 square feet at one parking space per 200 square feet). As restaurant parking is based on seating and a significant portion of the space will be used as storage, the parking requirement for the proposed restaurant and associated arcade room is only 14.3 spaces. However, working under the assumption that the remaining 1,000 square feet will be used as office space (which could potentially add 8 additional parking spaces), the total amount of parking required for this portion of the building would be 22.3 parking spaces. So, the proposed conversion of the Savvy Home unit would potentially increase the parking requirements by 3.4 parking spaces. The applicant presently has 24 parking spaces available on site, leaving a shortfall of approximately nine (9) parking spaces to serve the existing and proposed uses in the shopping center. As shown in Attachments E and F, the applicant has obtained a shared parking easement and agreement between the Duck Commons Shopping Plaza and Duck United Methodist Church. Special Exception (Attachment G), approved by Duck Town Council in 2009, allows the use of this shared parking agreement to meet a portion of the on-site parking requirement for Duck Commons. Althoughh the amount of parking needed would potentially increase by 3.4 parking spaces with the proposed project, it is staff s opinion thatt this increase can be accommodatedd under the existing shared parking agreement and the Town s special exception approval. The Town s special exception approval does not state or limit the amount of parking that can be providedd on the Duck United Methodist Church property. The sharedd parking agreement also does not limit the amount of parking that can be used by Duck Commons. Therefore, it appears that the 5 Agenda Item 4a

33 Town of Duck, North Carolina Department of Community Development CUP , Duck Commons Shopping Plaza 1211 Duck Road Agenda Item 4a existing approval and agreement can accommodate the potential increase in parking requirements for the subject property. Planning Board Recommendation At its public meeting on March 11, 2015, the Duck Planning Board voted unanimously (5-0) to recommend APPROVAL of this conditional use permit to establish a restaurant in the middle unit of the Duck Commons Plazaa at 1211 Duck Road, subject to the following conditions: 1. Duck Commons Shopping Plaza must operate in a manner consistentt with its shared parking agreement with Duck United Methodist Church and the special exception permit granted by the Town of Duck in If a dumpster is to be added, the location must bee shown on the site plan and approved by staff in coordination with the waste contractor. Prior to installation, three-sided screening for the dumpster must be constructed so that the dumpster cannot be seen from Duck Road or Schooner Ridge Drive. 3. The applicant must obtain approval from the Dare County Environmental Health Department that the existing septic system can accommodate or be upgraded to accommodate the restaurant prior to the issuance of a building permit. 4. The applicant must obtain necessary permits from the Dare County Environmental Health Department for establishment and operation of the restaurant prior to the issuance of a building permit. 5. Any new signs or changes to existing signs must be reviewed and approved under a separate permit by the Community Development Department. 6. This conditional use permit will expire in 12 months from the date of approval, unless construction has commenced with the required building permit approval. 7. The applicant must submit a revised floor plan showing the use, size, and dimensions of each unit in the shopping center, including the upper floors. ATTACHMENTS Attachment A Attachment B Attachment C Attachment D Attachment E Attachment F Attachment G Attachment H Location Map and Property Information Conditional Use Application and Cover Letters Site Plan Proposed Restaurant Floor Plan Parking Easement (recorded 8/14/ /07) Parking Agreement (recorded 4/29/09) Special Exception Findings & Conditions for Parking (approved 7/1/09) Draft CUP Findings & Conditionss 6

34 WAMPUM DR DUCK RIDGE VILLAGE CT Original Approved Parking SCHOONER RIDGE DR Town of Duck, North Carolina 1201 Property Location Map Duck Commons DUCK RD Wee Winks Square Duck United Methodist Church "= 100' 1200 Prepared by the Town of Duck Last Updated June 5, 2009 ²

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49 NORTH CAROLINA Town of Duck RE: Application by Mr. Chip Friedman, on behalf of Four Seasons Resort, Inc., to permit a Special Exception to the Town s requirements for off-street parking and loading to support intended uses for the property located at 1211 Duck Road. This request would approve a shared parking arrangement between the Applicant and the Duck United Methodist Church, located at 1214 Duck Road, which would allow the use of the Church parking area by employees of the Duck Commons Shopping Center to satisfy a portion of the on-site parking requirement for the Duck Commons Shopping Center. Special Exception Permit No Duck Zoning Ordinance Sections and On July 1, 2009, the Town of Duck Council considered the application of the Petitioner above named which application is on file with the Town of Duck Department of Community Development, and the Town Council, FINDS AS FOLLOWS: 1. That the written application of Petitioner with attachments has been duly submitted to the Duck Town Council as required by Sections and of the Duck Town Code (hereinafter referred to as "Code"); 2. That the application substantially complies with the requirements of the Code in that it requests uses permitted by Special Exception under the Code; 3. That the proposed use IS consistent with the CAMA Land Use policies, goals, and objectives for commercial development and uses in the VC - Village Commercial district; 4. That the Petitioner intends to lease three units in the Duck Commons Shopping Center located at 1211 Duck Road, which is identified on the Dare County Tax Records as PIN , for a combination of uses including restaurant, retail, and office totaling approximately 6,480 square feet; 5. That the Petitioner has twenty-four (24) parking spaces available on-site to support the uses on the property and intends to satisfy the remainder of the parking required by the Town of Duck Zoning Ordinance though a shared parking arrangement with the Duck United Methodist Church located at 1214 Duck Road, identified on the Dare County Tax Records as PIN ; 6. That the Duck United Methodist Church has seventy-three (73) parking spaces located on the property, which are used primarily for Sunday Services and Church events; 7. That the applicant HAS clearly demonstrated compliance with the findings and criteria established for approval in Sections and of the Town Code, subject to appropriate conditions; 8. That the Duck Town Council is empowered under sections of the Code set out above to grant uses such as allowed herein and insofar as the special exception is hereinafter allowed it will not adversely affect the public interest, with appropriate conditions;

50 9. That the hereinafter described request IS deemed to be reasonable and IS NOT in derogation of the intent of the ordinance, with appropriate conditions. NOW, THEREFORE, under the provisions of the Code, the following special exception is GRANTED to Mr. Chip Friedman, as requested, to allow for approval of the shared parking arrangement with the Duck United Methodist Church with shared parking located at 1214 Duck Road, SUBJECT TO SUCH CONDITIONS AS ARE HEREINAFTER SET OUT: CONDITIONS: 1. To address pedestrian safety and to limit confusion for patrons of the Duck Commons Shopping Center as to the location of available parking, primary parking for the employees of the Duck Commons Shopping Center shall be the thirty parking spaces located in the rear parking lot of the Duck United Methodist Church, as depicted on the attached as-built survey. 2. The employees of the Duck Commons Shopping Center shall not use the parking located at 1214 Duck Road during Sunday Church services or during Church special events at the request of the Duck United Methodist Church. 3. At such time subsequent to this approval but prior to occupancy of all three units of the subject property, the applicant shall submit a site plan drawing depicting the three units located in the building as well as the gross floor area and use of each unit with a tabulation of parking as required by Town Code Section The site plan shall depict the twentyfour (24) on-site parking spaces and shall reference this special exception permit to indicate that the remainder of the parking spaces required by Town Code Section is satisfied through approval of a shared parking arrangement with the Duck United Methodist Church. 4. Should this shared parking agreement be terminated by either party at any time subsequent to this approval, this approval will no longer be considered valid and shall void the Permit in the manner prescribed in the Code. 5. At such time where there is a proposed change of use of the subject property and the Town of Duck Zoning Administrator determines that the proposed use would result in an increase in the number of required parking spaces based on the administrative provisions of the Town of Duck Zoning Ordinance, the applicant shall apply for an amendment to this special exception permit consistent with the procedures established in Town Code Section All required building and sign permits, health department approvals, and other state and federal approvals shall be obtained for the project prior to issuance of a certificate of occupancy for such use. 7. A violation of the conditions of this Permit or applicable zoning regulations shall be a violation of the Code punishable as therein provided, and shall void the Permit in the manner prescribed in the Code. 8. The Petitioner shall accept these terms as indicated by appropriate signatures on this form before this Permit shall be effective.

51 THIS 1 st date of July, 2009 SEAL: ATTEST: TOWN OF DUCK By: By: Christopher J. Layton Neil Morrison Town Clerk Mayor THIS PERMIT AND THE CONDITIONS ARE ACCEPTED: By: Chip Friedman, Four Seasons Resort, Inc.

52 Return to: Town of Duck Document Prepared by: Town of Duck P.O. Box 8369 P.O. Box 8369 Duck, NC Duck, NC NORTH CAROLINA TOWN OF DUCK RE: Application of Four Seasons Resorts, Inc., owner of the property at 1211 Duck Road for a conditional use permit to convert 2,770 square feet of retail space to use as a restaurant and storage in the existing Duck Commons Shopping Plaza at 1211 Duck Road. A restaurant is a conditional use in the Village-Commercial (V-C) zoning district. There are no changes proposed to layout of the site or dimensions of the existing building. Conditional Use Permit Conditional Use Permit to convert 2,770 square feet of retail space to use as a restaurant and storage in the existing Duck Commons Shopping Plaza at 1211 Duck Road. On April 1, 2015 the TOWN COUNCIL OF THE TOWN OF DUCK, NORTH CAROLINA considered an application for a Conditional Use Permit to establish a restaurant in the Duck Commons Shopping Plaza in the Village Commercial (V-C) zoning district in the Town of Duck, and the Town Council FINDS AS FOLLOWS: 1. That the written application of Petitioners with attachments have been duly submitted to the Town of Duck Planning Board as required by Town Code Section and of the Town of Duck Zoning Ordinance (hereinafter referred to as Code ); 2. That the application substantially complies with the requirements of the Code in that it requests uses permitted by Conditional Use Permit, including a restaurant; 3. That the Petitioners own the property at 1211 Duck Road, further identified as Parcel Identification Number (PIN) ; 4. That the Town of Duck Planning Board recommended approval of the Conditional Use Permit with conditions as described in the draft meeting minutes of the Planning Board meeting of March 11, 2015 and as described in a transmittal letter to the Town Council dated March 26, 2015;

53 5. That the Town of Duck is empowered under sections of the Code set out above to grant conditional uses such as allowed herein and has received testimony at public hearing and considered the application and received input as shall be reflected in the approved meeting minutes; 6. That the hereinafter-described conditional use is deemed to be reasonable and is not in derogation of the intent of this ordinance; and, 7. That the application IS consistent with the Town s adopted CAMA Core Land Use Plan related to the stated goals and objectives for commercial development. NOW, THEREFORE, under the provisions of the Code, the following conditional use permit, , is APPROVED WITH MODIFICATIONS AND CONDITIONS to Four Seasons Resorts, Inc., to convert 2,770 square feet of retail space to use as a restaurant and storage in the existing Duck Commons Shopping Plaza at 1211 Duck Road, subject to such conditions as are hereinafter set out: CONDITIONAL USE: This conditional use permit amendment hereby authorizes the conversion of 2,770 square feet of retail space for use as a restaurant and storage in the existing Duck Commons Shopping Plaza at 1211 Duck Road. There are no changes proposed to the layout of the site or dimensions of the existing buildings as depicted on the attached site plan dated January 23, 1989, which is attached to and made a part of this Permit. CONDITIONS: 1. Duck Commons Shopping Plaza must operate in a manner consistent with its shared parking agreement with Duck United Methodist Church and the special exception permit granted by the Town of Duck in If a dumpster is to be added, the location must be shown on the site plan and approved by staff in coordination with the waste contractor. Prior to installation, three-sided screening for the dumpster must be constructed so that the dumpster cannot be seen from Duck Road or Schooner Ridge Drive. 3. The applicant must obtain approval from the Dare County Environmental Health Department that the existing septic system can accommodate or be upgraded to accommodate the restaurant prior to the issuance of a building permit. 4. The applicant must obtain necessary permits from the Dare County Environmental Health Department for establishment and operation of the restaurant prior to the issuance of a building permit. 5. Any new signs or changes to existing signs must be reviewed and approved under a separate permit by the Community Development Department.

54 6. This conditional use permit will expire in 12 months from the date of approval, unless construction has commenced with the required building permit approval. 7. The applicant must submit a revised floor plan showing the use, size, and dimensions of each unit in the shopping center, including the upper floors. THIS 1st date of _April, 2015 SEAL: ATTEST: TOWN OF DUCK By: Lori A. Kopec Town Clerk By: Don Kingston Mayor I,, a Notary Public of County and State of, certify that personally appeared before me this day and acknowledged the execution of the foregoing instrument. Witness my hand and official stamp or seal, this day of, 20. My Commission Expires: Notary Public STATE OF COUNTY OF 3

55 THIS PERMIT AND THE CONDITIONS ARE ACCEPTED: BY: President or Vice-President Four Seasons Resorts, Inc. 4

56 AGENDA: April 1, 2015 Regular Meeting ITEM #4B: Public Hearings B. Public Hearing/Discussion/Consideration of Ordinance #15-04, a text amendment eliminating and correcting unnecessary wording in Subsection , Interpretation of District Boundaries. RECOMMENDED ACTION: Conduct the Public Hearing Consider Approval of the Text Amendment SUMMARY OF INFORMATION: The proposed wording to be eliminated or corrected appears to be boilerplate wording cut-and-pasted from another community s zoning ordinance. As the wording is not relevant to the Town of Duck, it can be removed from the Town s ordinance without any impact to the Town s development standards. At its public meeting on February 11, 2015, the Duck Planning Board voted unanimously (5-0) to recommend APPROVAL of this proposed text amendment eliminating and correcting unnecessary wording in Subsection , Interpretation of District Boundaries. ATTACHMENTS: Staff Report Draft Text Amendment Ordinance

57 Town of Duck, North Carolina Department of Community Development Text Amendment: Interpretation of District Boundaries Agenda Item 4B TO: FROM: DATE: RE: Mayor Kingston and Members of the Duck Town Council Joe Heard, AICP, Director of Communityy Development April 1, 2015 Staff Report for Text Amendment Regarding the Elimination and Correction of Unnecessary Wording in the Interpretatio on of District Boundaries Section Application Information Application #: Public Hearing Date: Public Hearing Advertised: Public Hearing Town Website: Text Amendment Ordinance April 1, 2015, 6:300 pm March March March 15 & Marchh 29, 2015 (Coastland Times) 18 & 25, 2015 (Outer Banks Sentinel) 12, 2015 Proposal During its meeting on December 3, 2014, Duck Town Council voted unanimously to authorize the Planning Board to evaluate and preparee recommendations regarding several potential text amendments identified by Community Development staff. This specific proposal involves the following amendments to Section : 1. Subsection (D), referencing boundaries along railroad lines, would be eliminated in its entirety. All subsequent subsections wouldd be renumbered accordingly. 2. In addition, the wording manner: of Subsection ( (C) would be amended to the following Boundaries indicated as approximately following city town limits shall be construed as following the city town limits. Background Information The wording in question can be traced back to the Town s original zoning ordinance was largely based on the wording and standards found in Dare ordinance that governed development in the Duck community forr decades. ordinance. This County s zoning As the Town of 1

58 Town of Duck, North Carolina Department of Community Development Text Amendment: Interpretation of District Boundaries Agenda Item 4B Duck updated its zoning ordinance to better meet the needs of its citizens, the Town borrowed wording and ideas from other sources. Staff Analysis The wording in question appears to be boilerplate wording cut-and-pasted from another community s zoning ordinance. As the wording is not relevant to the Town of Duck, it can be removed from the Town s ordinance withoutt any impactt to the Town s standards. As the Town of Duck contains no railroad lines, subsection ( (D) dealing with zoning boundaries following railroad lines should be eliminated d as it is irrelevant to the Town. Both references to city in Subsection (C) should be changed to town in order to accurately reflect the status of the Duck community. Consistency w/ Land Use Plan The Town of Duck s adopted CAMA Land Use Plan does not specifically address this type of amendment. As part of its recommendation, the Planning Board made a determination that the proposed text amendment is consistent with the adopted CAMA Land Use Plan. Planning Board Recommendation At its public meeting on February 11, 2015, the Duck Planning Board voted unanimously (5-0) to recommend APPROVAL of this proposed text amendment eliminating and correcting unnecessary wording in Subsection For the Town Council s reference, a draft ordinance reflecting the Planning Board s recommendation has been included in the packet as Attachment A. ATTACHMENT A. Draft Text Amendment Ordinance 2

59 AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE TOWN OF DUCK, NORTH CAROLINA BY ELIMINATING OR CORRECTING UNNECESSARY WORDING IN THE INTERPRETATION OF DISTRICT BOUNDARIES SECTION Ordinance 15- WHEREAS, the Planning Board has recommended approval of this ordinance; and WHEREAS, the Town Council has found this ordinance to be consistent with the Town s adopted CAMA Land Use Plan; and WHEREAS, the Town Council has determined that is in public interest that the Zoning Ordinance contain accurate and relevant information. NOW THEREFORE BE IT ORDAINED by the Town Council for the Town of Duck, North Carolina that the Zoning Ordinance shall be amended as follows: PART I. 1. That Town Code Section (D) be eliminated in its entirety. 2. That all subsequent subsections be renumbered accordingly. (E) to (D), (F) to (E), and (G) to (F). 3. That Town Code Section (C) be amended by changing both references from city to town. PART II. This ordinance shall be effective upon its adoption. ATTEST: Don Kingston, Mayor Lori Kopec, Town Clerk Date adopted: Motion to adopt by: Vote: AYES NAYS

60 AGENDA: April 1, 2015 Regular Meeting ITEM #5: Old Business/Items Deferred from Previous Meetings A. Discussion/Consideration of an Interlocal Agreement among Dare County, the Town of Duck, the Town of Kill Devil Hills and the Town of Kitty Hawk related to the Financing and Construction of Beach Nourishment Projects B. Discussion/Consideration of Authorizing the Following Text Amendments for Public Hearing: 1. An Ordinance Amending the Buildings and Structures Ordinance of the Town of Duck, North Carolina, by Defining the Activities that Constitute Commencement of Work 2. An Ordinance Amending Tree and Vegetation Preservation and Planning Standards in the Zoning Ordinance of the Town of Duck, North Carolina RECOMMENDED ACTION: See Attachments SUMMARY OF INFORMATION: See Attachments ATTACHMENTS: See Attachments

61 AGENDA: April 1, 2015 Regular Meeting ITEM #5A: Old Business/Items Deferred from Previous Meetings A. Discussion/Consideration of an Interlocal Agreement among Dare County, the Town of Duck, the Town of Kill Devil Hills and the Town of Kitty Hawk related to the Financing and Construction of Beach Nourishment Projects RECOMMENDED ACTION: Authorize the Mayor to execute the Interlocal Agreement SUMMARY OF INFORMATION: Over the past several months, representatives from Dare County and the Towns of Duck, Kill Devil Hills and Kitty Hawk have been working on an Interlocal Agreement that finalizes the previously discussed financial details related to the beach nourishment projects. The Interlocal Agreement, as presented, has been approved by the Town Manager and the Town Attorney. The Town Manager will review the proposed Interlocal Agreement for the Council and request that the Council authorize the Mayor to execute it. ATTACHMENTS: Proposed Interlocal Agreement

62 Parker Poe Draft 3/18/15 INTERLOCAL AGREEMENT This INTERLOCAL AGREEMENT dated as of April, 2015 (the Interlocal Agreement ) among the COUNTY OF DARE, NORTH CAROLINA, a political subdivision of the State of North Carolina (the County ), the TOWN OF DUCK, NORTH CAROLINA, a municipal corporation organized under the laws of the State of North Carolina (the Duck ), the TOWN OF KILL DEVIL HILLS, NORTH CAROLINA, a municipal corporation organized under the laws of the State of North Carolina (the KDH ) and the TOWN OF KITTY HAWK, NORTH CAROLINA, a municipal corporation organized under the laws of the State of North Carolina (the Kitty Hawk and collectively with Duck and KDH, the Towns ); W I T N E S S E T H WHEREAS, the Towns have each determined to undertake a beach nourishment project within its Town as they are authorized to do under North Carolina law; WHEREAS, the County has determined to assist the Towns in financing the beach nourishment projects from the County s beach nourishment fund; WHEREAS, the Towns and the County have determined that they can achieve significant cost savings by cooperating to construct the beach nourishment projects by entering into a single construction contract for such projects; WHEREAS, under Article 20 of Chapter 160A of the North Carolina General Statutes, as amended (the Interlocal Act ), municipalities and counties are authorized to enter into interlocal cooperation undertakings with other local governments for the joint exercise of any power, function, public enterprise, right, privilege, or immunity of local governments in North Carolina; WHEREAS, the parties to this Interlocal Agreement desire to set forth their agreement herein; NOW THEREFORE, the parties hereto agree as follows: ARTICLE I DEFINITIONS In addition to the terms defined above, the following terms have the meanings herein as set forth therefor, unless the context otherwise requires: Beach Nourishment Fund means the fund held by the County from occupancy tax proceeds and dedicated to beach nourishment projects in the County. Contracts means, collectively, the Dredge and Construction Contract and the Project Management Contract. Construction Fund means the fund established under Section 4.2. County Contribution means the amount that the County will pay from the Beach Nourishment Fund towards each Project as set forth Section 4.1. PPAB v4 1

63 Dredge and Construction Contract means the primary contract with the winning bidder for the construction of the Projects. Duck Project means the portion of the Projects within the Town limits of Duck. Hills. Kill Devil Hills Project means the portion of the Projects within the Town limits of Kill Devil Kitty Hawk Project means the portion of the Projects within the Town limits of Kitty Hawk. Project Manager means Coastal Planning & Engineering, Inc. Project Management Contract means contract with the Project Manager to monitor and manage the construction of the Projects on behalf of the Towns. Projects means the beach nourishment projects in each of the Towns that will be described in detail in the Dredge and Construction Contract. Town Representatives means the duly authorized representative of each Town authorized to execute all documents contemplated by this Interlocal Agreement and to administer this Interlocal Agreement on behalf of the Town. ARTICLE II STATEMENT OF PURPOSE The Towns and the County are entering into this Interlocal Agreement under the Interlocal Act to cooperate in the construction of the Projects by having the County enter into the Contracts for the Projects to achieve overall savings on the construction costs. This Interlocal Agreement sets forth the terms under which the County will enter into the Contracts for the Projects and the parties understanding as to the administration of the construction process, the financing of the Projects and the liabilities associated with the construction of the Projects. ARTICLE III CONSTRUCTION AND ADMINISTRATION OF PROJECTS Section 3.1. Administration of Projects. The County will enter into the Contracts for all of the Projects. The Projects are comprised of three parts, the Duck Project, the KDH Project and the Kitty Hawk Project. The Dredge and Construction Contract will set forth separately the plan, design and cost of the Duck Project, the KDH Project and the Kitty Hawk Project; or, if the Dredge and Construction Contract does not separate the costs associated with each Project, the Project Manager will do so based on its best professional judgment. Duck will be solely responsible for the administration of the Duck Project. KDH will be solely responsible for the administration of the KDH Project. Kitty Hawk will be solely responsible for the administration of the Kitty Hawk Project. Each Town will designate a Town Representative or Representatives that are authorized by his or her respective Town to execute all documents contemplated by this Interlocal Agreement and to administer this Interlocal Agreement on behalf of the Town. The Project Manager will manage the Projects on a day-to-day basis on behalf of PPAB v4 2

64 each Town under the Project Management Contract. The Project Manager will provide periodic updates to the Towns and the County on the Projects as required by the Project Management Contract. Section 3.2. Project Modifications. Each Town shall have the right, power and authority to cause modifications to the design, scope, construction and other aspects of its Project (the Project Modifications ). Each Town shall have the right to enact a Project Modification that increases the cost of its Project as long as the Town accepts in writing the sole responsibility for the additional cost of its Project unless the County and the Towns agree otherwise in an amendment to this Interlocal Agreement. Any Project Modifications shall be memorialized in writing and a copy of same shall be submitted by the Town implementing the Project Modification to the County and the other Towns at least ten (10) business days before the effective date of the Project Modification. In no event shall a Project Modifications (i) materially impact any of the other Projects without the applicable Town s prior written consent or (ii) increase the County Contribution for such Project without the County s prior written consent. The County agrees to sign any change order to the Contracts submitted in accordance with the terms of this Section 3.2. Section 3.3. Construction Meetings. In addition to the construction meetings required in the Dredge and Construction Contract, the County may call joint meetings of the County and the Town Representatives to receive construction updates and to discuss matters pertaining to the Projects and this Interlocal Agreement. Section 3.4. Payment of Invoices. All invoices submitted pursuant to the Contracts for the Projects will be reviewed by the Project Manager and submitted to each Town for approval. Once approved by the applicable Town, unless payment is to be made to the Project Manager, the Project Manager will submit the invoice on behalf of each of the Towns to the County for payment. Unless the County has been informed in writing by a Town Representative of an objection to paying a particular invoice, the County will promptly pay all invoices submitted and approved by the Project Manager in accordance with the instructions on the invoice. The County is not responsible for independently reviewing the validity of the invoices for payment under the Contracts. The County will make all reasonable efforts to effect the payment of the invoices in accordance with the Contracts. With respect to the invoices submitted under the Dredge and Construction Contract, as part of its approval and submission to the County, the Project Manager will identify the Project with which the payment is associated, or if associated with multiple Projects, how the cost should be allocated among Projects. The County will allocate the Project costs under the Dredge and Construction Contract to each of the Projects as set forth in the Project Manager s submission. The Project costs for invoices submitted under the Project Management Contract will be allocated among the Projects on pro-rata basis based on total costs of the Projects. Section 3.5. Insufficiency of Funds. The County will account for the amount of Project costs that are allocable to each Project as set forth in Section 3.4. Notwithstanding anything herein, the County will not be responsible for paying Project Costs from the Construction Fund allocable to a particular Project if the County s records show that there are insufficient funds available from the sources for payment of that Project as set forth in Article IV. In such event, the Town for which funds are insufficient will be solely responsible for payment of such excess costs of the Project. ARTICLE IV FINANCING OF PROJECTS PPAB v4 3

65 Section 4.1. Project Funding. The County and the Towns will contribute the following amounts to the cost of the Projects: Duck Project Duck Contribution $6,889,000 County Contribution 7,700,000 Total Project Cost $14,589,000 Kill Devil Hills Project Kill Devil Hills Contribution $4,962,691 County Contribution 5,045,309 Total Project Cost $10,008,000 Kitty Hawk Project Kitty Hawk Contribution $10,185,309 County Contribution 11,254,691 Total Project Cost $21,440,000 The County will pay its share of the Projects as set forth above from the Beach Nourishment Fund held by the County. Each Town will pay its share of the Projects as set forth above from a special obligation bond financing procured separately by each Town. Each Town will be assisted in its financing by Parker Poe Adams & Bernstein LLP, as bond counsel, and by DEC Associates Inc., as financial advisor. The Towns and the County will cooperate in seeking the approval of the North Carolina Local Government Commission for the financings. Each Town will have received all required approvals and will close its financing on or before the date that the County signs the Dredge and Construction Contract. The County is spending a portion of its County Contribution on pre-construction activities as provided in a prior interlocal agreement among the parties. The County will allocate such amounts against the total County Contributions as set forth above towards the Projects. Section 4.2. Construction Fund. The County will establish a Construction Fund to be held by a depository to be selected by the County. Upon the closing of the financings described in Section 4.1, each Town will deposit the amount described in Section 4.1 as its contribution to its Project. Once the Town has deposited its funds into the Construction Fund, all costs of the Contracts will first be paid from and allocated to the bond proceeds (including investment earnings on the bond proceeds) deposited in the Construction Fund until depleted, then from the County funds. It is the intent of the parties hereto that each of the Towns will be required to pay their entire contribution towards the Projects as set forth in Section 4.1 and that any savings from the total Project costs will be retained by the County in the Beach Nourishment Fund. Funds will be requisitioned from the Construction Fund as set forth in Article III. If funds in the Construction Fund are insufficient to complete a particular Project, the applicable Town will be solely responsible for any deficiency for such Project. If the actual costs of any of the Projects is less than the Total Project Cost as set forth in Section 4.1, then the excess funds will be retained by the County in the Beach Nourishment Fund. PPAB v4 4

66 Section 4.3. County Contributions to the Towns to be used for Debt Service. The County will transfer to Duck the amounts and in the years as follows to be used towards the payment of debt service of its special obligation bonds issued to finance the Duck Project: Fiscal Year ending June 30 Amount 2017 $397, , , , ,633 The County will transfer to Kitty Hawk the amounts and in the years as follows to be used towards the payment of debt service of its special obligation bonds issued to finance the Kitty Hawk Project: Fiscal Year ending June 30 Amount 2017 $1,627, ,556, ,484, ,413, ,342,382 ARTICLE V DISPUTES AND MEDIATION Section 5.1. Agreement to Work Together to Settle Disputes. This Interlocal Agreement shall be liberally construed in order to promote a harmonious relationship between the parties with regard to the completion of the Projects. The County and the Towns accept the relationship of trust and confidence established between each of the parties by this Interlocal Agreement. If a problem or dispute arises that this Interlocal Agreement does not directly or indirectly address, the County shall call a meeting with the Town Representatives to discuss and the County and the Towns covenant to work with one another in good faith to determine a mutually satisfactory solution. Section 5.2. Mediation. a. Agreement to Mediate Dispute. The County and the Towns will attempt to settle any dispute, claim or controversy arising out of this Interlocal Agreement through consultation and negotiation in good faith and in a spirit of mutual cooperation as set forth in Section 5.1. If those attempts fail, then the claim or dispute will be mediated by a mutually-acceptable mediator before any party resorts to court action. Mediation is a process in which parties attempt to resolve a dispute by submitting it to an impartial, neutral mediator who is authorized to facilitate the resolution of the dispute, but who is not empowered to impose a settlement on the parties. b. Demand for Mediation. A demand for mediation must be submitted in writing to the other parties to this Interlocal Agreement. The demand for mediation shall proceed in advance of PPAB v4 5

67 legal or equitable court proceedings, which shall be stayed pending mediation for a period of 60 days from the date of the demand for mediation, unless stayed for a longer period by agreement of the parties or by court order. c. Selection of Mediator. The parties shall jointly select a mediator within 45 days after written notice by either party demanding mediation. The mediator shall be a member of the North Carolina State Bar and residing in the First Judicial District of North Carolina. Failing this joint action, the parties shall each separately designate a mediator and, within 15 days after their appointment, the two designated mediators shall jointly designate a third mediator. The third mediator shall then become the sole mediator for purposes of this paragraph. The failure of either party to appoint a mediator within the time allowed shall be deemed equivalent to appointing the mediator appointed by the other party. Each mediator shall be disinterested in the subject matter of this Interlocal Agreement. d. Mediation Procedure. The mediation procedure shall be that which is contained in the Rules Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions adopted pursuant to N.C. Gen. Stat. Sec. 7A-38.1 as same may be amended from time to time. e. Miscellaneous provisions. involved. (1) The mediation fee, if any, shall be divided equally among the parties (2) Each party shall pay its own attorneys' fees and other costs. (3) Before the mediation begins, the parties agree to sign a document limiting the admissibility in arbitration or any civil action of anything said, any admission made, and any documents prepared, in the course of the mediation. (4) If any party commences a court action based on a dispute or claim to which this paragraph applies without first attempting to resolve the matter through mediation, then, in the discretion of the judge, that party shall not be entitled to recover attorney's fees even if they would otherwise be available to that party in any such court action. However, the filing of a judicial action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not in itself constitute a loss of the right to recover attorney's fees under this provision. (5) The following matters are excluded from the requirement of mediation hereunder: (a) good faith efforts to resolve the dispute under these procedures have been unsuccessful, or (b) interim relief from a court is necessary to prevent serious and irreparable injury to one party or to others. PPAB v4 6

68 ARTICLE VI LIABILITIES AND INDEMNIFICATION Any liabilities arising from the Duck Project will be the sole responsibility of Duck. Any liabilities arising from the KDH Project will be the sole responsibility of KDH. Any liabilities arising from the Kitty Hawk Project will be the sole responsibility of Kitty Hawk. Any liabilities arising from the Construction Contract or the Projects as a whole will be the responsibility of each of the Towns in proportion to the cost of its particular portion of the Projects to the overall costs of the Projects. The Towns, in the same manner as set forth in the paragraph above with respect to their liabilities under this Interlocal Agreement, will indemnify, protect and save the County and any member of the governing body, officer, agent or employee thereof, acting in such capacity, harmless from all liability, obligations, losses, claims, damages, actions, suits, proceedings, costs and expenses, including reasonable attorneys fees, arising out of, connected with, or resulting, directly or indirectly, from the Projects or the Contracts, or from injuries to person or property occurring from or related to the Projects or the Contracts. The indemnification arising under this Article shall survive the termination of this Interlocal Agreement and continue in full force and effect notwithstanding the payment in full of all obligations under this Interlocal Agreement. The Towns recognize that the County is entering into this Interlocal Agreement for the purpose of assisting the Towns in the execution and administration of the Contracts in order to achieve savings in the costs of the Projects. The County will indemnify, protect and save the Towns and any member of the governing body, officer, agent or employee thereof, acting in such capacity, harmless from all liability, obligations, losses, claims, damages, actions, suits, proceedings, costs and expenses, including reasonable attorneys fees, arising out of, connected with, or resulting, directly or indirectly the failure of the County to provide the funding and enter into the Contracts in accordance with the terms of this Interlocal Agreement and to pay the invoices under the Contracts in accordance with the terms of Section 3.4. The indemnification arising under this Article shall survive the termination of this Interlocal Agreement and continue in full force and effect notwithstanding the payment in full of all obligations under this Interlocal Agreement. ARTICLE VII PERFORMANCE OF GOVERNMENT FUNCTIONS Nothing contained in this Interlocal Agreement shall be deemed or construed so as to in any way estop, limit, or impair the Towns or the County from exercising or performing any regulatory, policing, legislative, governmental, or other powers or functions pursuant to applicable law. ARTICLE VIII DEFAULTS AND REMEDIES The County and the Towns, or any one of them, will be in default under this Interlocal Agreement if it fails to comply with the terms of this Interlocal Agreement. If an event of default occurs as set forth in the preceding paragraph, and after following the procedures and requirements of Article V herein, each party hereto will have all remedies available at law or in equity to enforce any of the terms and provisions hereof, including, but not limited to, or actions at law for damages and equitable actions seeking rescission of this Interlocal Agreement and/or injunctive PPAB v4 7

69 relief (mandatory or prohibitory) to prevent the breach or threatened breach of any term or provision thereof or to enforce the performance of all terms and conditions of this Interlocal Agreement. All remedies are cumulative; the exercise of any one or more of them will not in any way alter or diminish the rights of the exercising party to any other remedy provided herein or at law or in equity. Action under this Interlocal Agreement will not be taken, however, until the non-defaulting party or parties gives the defaulting party or parties written notice of the event of default and a reasonable opportunity to cure the event of default. ARTICLE XIII NOTICES Except as otherwise provided in this Interlocal Agreement, all notices, certificates, requests, requisitions, or other communications given pursuant to this Interlocal Agreement must be in writing and will be sufficiently given and will be deemed given when delivered by hand or mailed by certified mail, postage prepaid, addressed as follows: County: Duck: KDH: Kitty Hawk: Attention County Manager PO Box 1000 Manteo, NC Attention Town Manager PO Box 8369 Duck, NC Attention Town Manager PO Box 1719 Kill Devil Hills, NC Attention Town Manager PO Box 549 Kitty Hawk, NC ARTICLE IX MISCELLANEOUS Section 9.1. Amendment. This Interlocal Agreement may be amended through a supplement approved in writing by the County, Duck, KDH and Kitty Hawk. Section 9.2. Severability. If any section of this Interlocal Agreement is deemed to be illegal or otherwise unenforceable, it is the intent of the parties hereto that all other provisions of this Interlocal Agreement shall remain in full force and effect. Section 9.3. Governing Law. This Interlocal Agreement is to be governed by and interpreted in accordance with the laws of the State of North Carolina. Section 9.4. Time is of the Essence. Time is of the essence in this Interlocal Agreement. PPAB v4 8

70 Section 9.5. Execution in Multiple Counterparts. This Interlocal Agreement may be executed in multiple counterparts, each of which constitutes a completed document. Section 9.6. County and the Towns. Effective Date. This Interlocal Agreement takes effect on its execution by the Section 9.7. Termination. This Interlocal Agreement shall terminate under either of the following two (2) circumstances: (1) when all of the following events have occurred: (a) the completion of all of the Projects as evidenced by certificates of completion issued to the County and the Towns by the Project Manager, (b) the balance in the Construction Fund is zero, and (c) all duties and responsibilities of the County and Towns set forth in this Interlocal Agreement have been completed or waived in writing by the parties; or (2) the date on which the County and Towns mutually agree to terminate this Interlocal Agreement by action of their respective governing boards or councils. Section 9.8. Public Information. All public information related to the Projects shall be the responsibility of the applicable Town. IN WITNESS WHEREOF, the Chairman of the Board of Commissioners of the County, the Mayor of Duck, the Mayor of KDH and the Mayor of Kitty Hawk have each executed this Interlocal Agreement to evidence the agreement of the parties hereto and the respective Town Clerks and the Clerk to the Board of County Commissioners have affixed the seal of the Town and the County, as applicable, this Interlocal Agreement. [SEAL] COUNTY OF DARE, NORTH CAROLINA By: Chairman Attest: Clerk to the Board of County Commissioners This instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act. Finance Officer County of Dare, North Carolina PPAB v4 9

71 [SEAL] TOWN OF DUCK, NORTH CAROLINA By: Mayor Attest: Town Clerk This instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act. Finance Officer Town of Duck, North Carolina [SEAL] TOWN OF KILL DEVIL HILLS, NORTH CAROLINA By: Mayor Attest: Town Clerk This instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act. Finance Officer Town of Kill Devil Hills, North Carolina PPAB v4 10

72 [SEAL] TOWN OF KITTY HAWK, NORTH CAROLINA By: Mayor Attest: Town Clerk This instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act. Finance Officer Town of Kitty Hawk, North Carolina PPAB v4 11

73 AGENDA: April 1, 2015 Regular Meeting ITEM #5B1: 5. Old Business/Items Deferred from Previous Meetings B. Discussion/Consideration of Authorizing the Following Text Amendments for Public Hearing 1. Discussion/Consideration of a text amendment to the Town s Buildings and Structures Ordinance adding Subsection (B) defining the activities that constitute Commencement of Work. RECOMMENDED ACTION: Discuss the Proposed Text Amendment Consider Authorizing a Public Hearing for the 5/6 Town Council Meeting SUMMARY OF INFORMATION: During its meeting on December 3, 2014, Duck Town Council voted unanimously to authorize the Planning Board to evaluate and prepare recommendations regarding several potential text amendments identified by Community Development staff. This text amendment proposal would define the activities that constitute Commencement of Work in Subsection (B) of the Town s Buildings and Structures Ordinance. Staff and the Planning Board have recommended approval of the proposed text amendment. A draft ordinance has been prepared for the Town Council s consideration. ATTACHMENTS: Letter of Transmittal from the Planning Board Chair Staff Report Draft Text Amendment Ordinance

74 March 26, 2015 Mayor Don Kingstonn Members of the Duck Town Council P. O. Box 8369 Duck, NC RE: Text Amendment Defining the Activities Constituting Commencement of Work Dear Mayor Kingstonn and Town Council Members: The Planning Board discussed the proposed text amendment at its regular meeting on March 11, 2015 and voted unanimously (5-0) to recommend approval of thiss amendment defining which activities constitute Commencement of Work in Section of the Town s Building & Structures Ordinance. As part of this recommendation, the Planning Board made affirmative findings that the proposed text amendment is consistent with the Town of Duck CAMA Land Use Plan. The Planning Board agreed with the staff s premise that establishing clear boundaries for when work commences is important for all parties involved in the construction process. The Board members reviewed a variety of activities suggested by staff and decided to include only the five activities recommended in the attached draft ordinance. During our discussions, the Board members consideredd the typical timing of certain construction activities and whether or not it seemed reasonable to prevent certain activities from occurring at the beginning of a project. Sincerely, Joe Blakaitis, Chair Town of Duck Planning Board P. O. Box 8369 Duck, North Carolina (fax)

75 Town of Duck, North Carolina Department of Community Development Text Amendment: Commencement of Work Agenda Item 5B1 TO: FROM: DATE: RE: Mayor Kingston and Members of the Duck Town Council Joe Heard, AICP, Director of Communityy Development April 1, 2015 Staff Report for Text Amendment Addingg Subsection (B) Defining the Activities that Constitute Commencementt of Work in the Town s Building & Structures Ordinance Proposal During its meeting on December 3, 2014, Duck Town Council voted unanimously to authorize the Planning Board to evaluate and preparee recommendations regarding several potential text amendments identified by Community Development staff. This specific proposal recommended by the Planning Board includes the following amendments to Section : 1. Put the existing wording under Section into a new Subsection (A). 2. Add the following wording as Subsection (B): (B) The term COMMENCEMENT OF WORK shall include any of the following activities relating to a building or structure: (1) Initiation of any construction or repair work; (2) Clearing or grading not specifically permitted under a land disturbance permit; (3) Excavation or batter boards set for a foundation; (4) Demolition; and (5) Delivery of construction materials, equipment, or dumpsters. Background Information In order to discourage contractors and property owners from engaging in construction work without necessary permits and inspections, Section of the Building Ordinance presently states, If any person commences any work on a building or structure before obtaining the necessary permit from the town, he or she shall be subject to the additional fees as prescribed in the adopted fee schedule of the town. As such additional fees can be substantial in certain instances, defining when work commences is an important factorr to the contractor, property owner, and Community Development staff involved withh a construction project. 1

76 Town of Duck, North Carolina Department of Community Development Text Amendment: Commencement of Work Agenda Item 5B1 Community Development staff recently ran across an issue with a contractor who began work without a permit. During the ensuing discussion, the contractor questioned what defines the commencement of work. Staff made what we felt was a rational and reasonablee interpretation in resolving that situation, but is bringing this proposal forward as it is in the interest of all parties to have clearly defined criteria for when the Town deemss construction to begin. Staff Analysis Staff has the following comments on the five criteria suggested as logical breaking points when construction has commenced. 1. The initiation of construction n or repair work clearly shows that a project has commenced. 2. General clearing and gradingg under a land disturbance permit would still be allowed. However, furtherr site work not included under the land disturbance permit (such as creating a house pad or installing a septic tank) would constitute commencement of work. 3. Digging and/or setting forms for a foundation typically involves significant work and equipment that would constitute commencement of work. 4. Whether interior or exterior, demolition is consideredd part of the constructionn project by the N.C. Building Code and may require review and inspection. 5. The delivery of construction materials, equipment, orr dumpsters is when most observers would consider a constructionn project to have started. It is effectively the moment that neighbors have notice that work is beginning. So, delivery of materials can serve as a logical trigger for commencement of work. Consistency w/ Land Use Plan OBJECTIVE #19b: Adopt regulations and procedures that provide clear direction to assist local decision making and consistency findings for zoning, divisions of land, and public and private projects. While it does not offer direction on the specific text amendment proposal, this objective clearly supports the intent of the text amendment to provide a clear definitionn for the commencement of work. Otherwise, the Town of Duck s adopted CAMA Land Use Plan doess not specifically addresss this type of amendment. As part of its recommendation, the Planning Board made a determination that the proposed text amendment is consistent with the adopted CAMA Land Use Plan. Planning Board Recommendation At its public meeting on March 11, 2015, the Duck Planning Board voted unanimously (5-0) to recommend APPROVAL of this proposed text amendment adding Subsection (B) defining the activities that constitute Commencement of Work. For the Town Council s reference, a draft ordinance reflecting the Planning Board s recommendation has been included in the packet as Attachment B. 2

77 Town of Duck, North Carolina Department of Community Development Text Amendment: Commencement of Work Agenda Item 5B1 ATTACHMENTS A. Letter of Transmittal to Town Council B. Draft Text Amendment Ordinance 3

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80 AGENDA: April 1, 2015 Regular Meeting ITEM #5B2: 5. Old Business/Items Deferred from Previous Meetings B. Discussion/Consideration of Authorizing the Following Text Amendments for Public Hearing 2. Discussion/Consideration of text amendments to of the Town s Zoning Ordinance changing several standards in Section , Tree and Vegetation Preservation and Planning. RECOMMENDED ACTION: Discuss the Proposed Text Amendment Consider Authorizing a Public Hearing for the 5/6 Town Council Meeting SUMMARY OF INFORMATION: During its meeting on November 5, 2014, Duck Town Council authorized the Planning Board to evaluate and prepare recommendations regarding potential text amendments to the Town s Tree and Vegetation Preservation and Planning standards in Section of the Zoning Ordinance. This text amendments propose the following changes to Section : Adding standards for the measurement of multi-trunk trees Adding requirements for documentation of emergency tree removal Not permitting shrubs to be planted as a substitute for replacement trees Eliminating a prohibition against tree topping Adding greater requirements for replacement tree planting as a penalty for improper tree removal Establishing provisions for off-site planting or payment-in-lieu for situations where it is infeasible to replant all required plantings on site Staff and the Planning Board have recommended approval of the proposed text amendments. A draft ordinance has been prepared for the Town Council s consideration. ATTACHMENTS: Letter of Transmittal from the Planning Board Chair Staff Report Draft Text Amendment Ordinance

81 March 26, 2015 Mayor Don Kingstonn Members of the Duck Town Council P. O. Box 8369 Duck, NC RE: Text Amendments to the Town s Tree & Vegetationn Preservation & Planning Ordinance Dear Mayor Kingstonn and Town Council Members: The Planning Board thoroughly reviewed and discussed potential text amendments to the Town s Tree and Vegetation Preservation and Planning Ordinance at its regular meetings on January 14, February 11, and March 11, After receiving information on a variety of issues from Community Development staff, the Board members thoroughly discussed a number of issues and developed the draft ordinance attached with the staff report. At our meeting on March 11, 2015, the Board members voted (4-1) to recommend approval of several standards outlined in the attached draft ordinance. As part of this recommendation, the Planning Board made affirmative findings that the proposed text amendment is consistentt with the Town of Duck CAMA Land Use Plan. Sincerely, Joe Blakaitis, Chair Town of Duck Planning Board P. O. Box 8369 Duck, North Carolina (fax)

82 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 TO: FROM: DATE: RE: Mayor Kingston and Members of the Duck Town Council Joe Heard, AICP, Director of Communityy Development April 1, 2015 Staff Report Concerning Potential Text Amendments to the Town s Tree & Vegetation Preservation and Planning Standards Proposal On October 15, 2014, the Town of Duck cited the owners of the Osprey Landing Shops at 1190 Duck Road with a violation of the Town s Tree Preservation Ordinance for removal of a large live oak tree on an adjoining property without a permit. Per the ordinance, the Town fined the owners the maximumm amount of $1,000 and required submission of a replanting plan for the installation of six (6) new trees to replace the removed oak tree. (The replacement trees will be planted soon) In response to this incident and recognition that the ordinance has not been thoroughly evaluated in recent years, the Duck Town Council expressed interest in reviewing the Town s Treee and Vegetation Preservation and Planning Ordinance to ensure that its standards meet the current needs and expectations of the Duck community. Several Council members expressed specific interest in reviewing the fines and penalties section. During its meeting on November 5, 2014, Duck Town Council authorized the Planning Board to evaluate and prepare recommendations regardingg potential text amendments to Section of the Zoning Ordinance. The specific amendments to Section recommended by the Planning Board can be summarized as follows: Adding standards for measurement of multi-trunkk trees Adding requirements for documentation of emergency tree removal Not permitting shrubs to be planted as a substitute for replacement trees Eliminating a prohibition against treee topping Adding greater requirements for replacement tree planting as a penalty for improper tree removal Establishing provisions for off-site planting or payment-in-lieu for situations wheree it is infeasible to replant all required plantings on site The exact wording of the changes proposed can be foundd in the attached draft ordinance. Background Information 1

83 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 In June 2007, the Duck Town Council adopted a Tree and Vegetation Preservation and Planning ordinance. This ordinance established standards concerning if/when trees can be removed, minimumm requirements for tree canopy coverage, and vegetation protection during development. The ordinance was updated in March 2008 with additional canopy coverage standards and other minor amendments. In March 2010, the Duck Town Council adopted an ordinance establishing a new set of fines and penalties for violation of the Town s Tree Preservation Ordinance. Thesee standards were incorporated into Section , Tree and Vegetation Preservation and Planning, attached for your review (Attachment A). Planning Board Review & Discussions The Duck Planning Board reviewed the Town s existingg Tree and Vegetation Preservation and Planning standards and discussed a variety of ways to address several issues over the course of three public meetings on January 14 th, February 11 th, andd March 11 thh. More detailed descriptions of the Board s discussions can be found in the Planningg Board minutes and staff reports, but the following summary is being provided for Town Council to better understand the thoughts and considerations that went into the Board s decision. Planning Board Meeting 1/14/15 Community Development staff presented the Planning Board with information about the Town s current ordinance, information about other communities ordinances in North Carolina, and suggestions for sections that the Board could consider reviewing. The Board members discussed a variety of potential changes and agreed that the following amendments should be includedd in a proposed ordinance: 1. Allow tree removal within ten feet of a commercial structure (C)(4) The Board members thought that the broader term structure would permit this allowance for removal of a tree within ten feet ( 10 ) of a house to be used in other types of similar situations commercial buildings, multi-family residences, churches, sheds, etc. 2. Require documentation of tree damage in tree emergencies (D)(3) The Board felt it was reasonable to require that a property owner provide documentation of a tree emergency photographs, police report, letter from tree expert, etc. 3. Ensure that penalties also apply to vegetation guideline violations (J)(5) The Board clarified that the listed penalties alsoo apply to violations of the commercial tree/landscaping standards in Section The Planning Board members also requested that thee Community Development Department compile information and preparee potential text amendments relating to the following issues: Providing greater protection to trees less than 24 inches dbh. Adding alternative standards and measurements for multi-stem/multi-trunk trees. 2

84 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 Developing greater requirements for mitigation/ /replanting of trees as a remedy for tree removal violations. Planning Board Meeting 2/11/15 The Board members came to conclusions on the following issues: 1. Providing greater protection to trees less than 24 inches dbh (C)(1) There was a lot of discussion about the ramifications of bringing smaller trees (16 dbh) under greaterr review and protection. There was debate about the intentt of the ordinance to protect and preserve trees as part of the Town s character versus flexibility and the rights of private property owners to remove trees to allow development or better views. A majority of the Board members agreed that the size of protected tree should not be reduced. 2. Adding alternative measurements for multi-stem/multi-trunk trees (A) )(3) After reviewing U.S. Forest Service guidelines for measuring multi-trunk trees, the Planning Board opted to incorporate these standards into the text amendment proposal. 3. Developing greater requirements for mitigation/replanting of trees as a remedy for tree removal violations (J)(5) & (6) After reviewing standards from several other communitiess and receiving advice from Town Attorney Robert Hobbs, the Board members added more substantial replanting penalties and a payment-in-lieu option when replanting is not feasible on the subject property. 4. Substituting bushes and shrubs for replacement trees (F)(2)(a)3 & 4 The Board members voted to eliminate any option for replacing removed trees with shrubs. 5. Eliminating provisions preventing tree toppingg ( (H)(3)(a)7 The Board members voted to remove limitations on pruning or topping trees as they directly conflict with at least several neighborhoo od association bylaws and covenants. Planning Board Meeting 3/11/15 The Planning Board reviewed the draft ordinance to ensure that all of its proposals were properly addressed. With one minor change, the Board memberss voted to approve the recommendedd text amendments and forward the proposal to Town Council. Background information on several specific issues is provided below: Protection for Trees Less than 24 dbh The Town of Duck presently requires a permit and more detailed review for removal of a tree 24 dbh or greater ( NOTE: a tree management plan is required forr removal of trees 6 dbh or greater on undeveloped lots). There is no nationally recognized standard for the size of tree to be regulated. Therefore, selecting the most appropriate sizee of tree for greater protection will be up to the Duck Planning Board and Town Council. Selecting a smaller diameter would result in a 3

85 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 greater number of trees undergoing a more detailed review process, which may result in the preservation of some of these trees. This type of change would also lessen the impact of a loophole that allows the removal of significant trees under 24 dbh after the initial development of a property. To help with this decision, staff has provided the following list of tree size criteria for Tree City USA communities in North Carolina. COMMUNITY SIZE OF REGULATED TREES Currituck County Live Oak 12 dbh, Other Trees 24 dbh Pine, Gum, Mulberry, Pear & Maple not protected Town of Manteo Encourages 12 dbh, Stronger Protection for 18 dbh Town of Burgaw Pine 12 dbh, Canopy 8 dbh, Understory 4 dbh Town of Cary Canopy Tree 40 caliper, Understory Tree 15 caliper Town of Chapel Hill Pine 36 dbh, Other 24 dbh, Native 12 dbh Town of Beaufort 8 dbh City of New Bern Pine 12 dbh, Other - 8 dbh Town of Riverbend 4 dbh City of Wilmington Pine 12 dbh, Canopy 8 dbh, Understory 4 dbh Stronger Protection for 32 Pine, 24 Canopy, 8 Understory City of Wilson Canopy Tree 20 dbh, Understory Tree 8 dbh As you look over the table, I want to caution that nearlyy every community s treee ordinance is set up differently. So, a regulated tree in one community may not provide much protection, but a regulated tree in another community may make it very difficult to remove a large tree. ** The Planning Board opted not to propose a change too the current Town standard regarding the size of trees to receiving greater protection. Standards for Multi-Trunk Trees After discussion of how to deal fairly with situations involving multi-trunk trees (most commonly live oaks in Duck), the Board members seemed to reach a consensuss that multi-trunk of trees. The trees need to be measured differently and different standards applied to these types Planning Board considered several specific issues: Measurement of multi-trunk trees (measuring each trunk, then adding together vs. measuring based on the total circumference around all the trunks) Where or what height to measure multi-trunk trees. Allowances for trimming of branches and removal of trunks when appropriate. One of the challenges in developing standards dealing with multi-trunk branches can quickly grow outward at trees is the variety of circumstances, even among multi-trunk trees. Trunks and low heights. For some trees, the multiple trunks beginn below ground. When developing this proposal, staff was guided by the following principles: 4

86 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 1. Fairness/Reasonableness of the Standards althoughh different from the standards for typical trees, the standards for multi-trunk trees should not be significantly more burdensome on property owners. 2. Broad Applicability/Ease of Enforcement the standards should be clear and allow for consistent enforcement with a minimal amount of interpretation. 3. Legal Concerns the standards should contain clear justification and have a strong legal basis. Rather than developing or proposing an alternative measuring height, the Planning Board is proposing to continue with the practice of measuring at diameter breast height (dbh), as it is the most common and generally accepted form of measurement for trees in the United States. By proposing to measure the diameter of each trunk individually at breast height (4.5 feet) ), the standardss can be applied appropriately in most circumstances. NOTES: 1. If a treee trunk is growing parallel to the ground, then standard practice is for the measurement to be taken perpendicular to the trunk, rather than perpendicular to the ground. 2. If a tree abnormally swells at breast height, then standard practice calls for the measurement to be taken at the closest location below the swelling and the height from ground noted. Most of the standards for measuring multi-truntotal together, then using a multiplier of some kind. After trees involve measuring the diameter of each trunk individually, adding the reviewing situations in the field, staff supports this mode of measurement as it can be applied in all situations and better reflects the actual size of the tree (rather than measuring the total circumference around all the trunks). In the draft ordinance, the Planning Board has proposed using a measurement promulgated by the U.S. Forest Service, but also found in several other sources the dbh for a multi-trunk tree is calculated by taking the square root of the sum of squared dbhs off all trunks. Admittedly, it s a relatively complicated formula, but the results seem to make sense. The following example shows how this formula would be applied: EX: Multi-trunk tree with four 10-inch trunks 1. Find square of each trunk. 10 x 10 = Add squared numbers together = Calculate square root of total. Square root of 4000 = This multi-stem tree would be treated as a 20 dbh tree. Preserving portions of a multi-trunk tree is preferable to removing the entiree tree. The draft ordinance proposes giving the property owner and Director of Community Development the flexibility to deal with situations where a particular trunk or branches need to be removed to accommodate reasonable development of a property. 5

87 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 ** The Planning Board has recommende ed using the U.S. Forest Servicee guidelines for calculating the dbh of multi-trunk trees. Mitigation/Replanting of Trees After discussion of fines and penalties, theree seemed to be a generall consensus among the Board members that adding more stringent replanting requirements could result in more effective penalties that better match the intent of the tree preservation ordinance. The Board s discussion included the following concepts for tree removal violations: Consider a tree mitigation program similar to the Army Corps of Engineers wetland mitigation bank (when necessary and appropriate, allow off-site planting). Develop a priority scale for replanting under the tree mitigation program: 1. Plant on the subject property 2. Plant on public/neighborhood association property within close proximity 3. Plant elsewhere on public property 4. Pay into a public tree maintenance fund Consider using the caliper of trees to be planted, not canopy coverage. The following list summarizes the fines and penalties used by some other communities in North Carolina when trees are improperly removed. All of these communities have a tree protection ordinance and have earned Tree City USA certification from the National Arbor Day Foundation. COMMUNITY Town of Beaufort Town of Cary Town of Chapel Hill Town of Edenton City of New Bern Town of Oriental Town of Oak Island FINE $500 $1, /2 times the value of the trees removed (max. $20,000) $500, days $1,500 ( 61-90) $50/inch dbh (max. $500/ tree) $500 OTHER PENALTY Replant double the number of trees removed, each replacement tree min. 8 dbh Replant inchh per inch based on the caliper of tree(s) removed Civil penaltyy determinedd by Town Manager based on replacement cost of the tree removed Plant min. 2 caliper treee for each tree removed NOTE: each h tree removed is subject to a separate fine Option of obtaining approval of a tree replanting plan in lieu of the fine 6

88 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 Town of Riverbend City of Rocky Mount $50 City of Southport $50 City of Whiteville $1,000 City of Wilmington City of Wilson Value of trees removed OR Replant 30 trees/acre, 2 caliper Plant one treee for each tree removed Regulated Trees - replantt total dbh x 1/3 Significant Trees - replant total dbh x 2/3 Replant in compliance with landscaping ordinance standards It appears that the Town of Duck s monetary fines for tree violationss are already at or above most of the communities throughout the state. So, the Planning Board is not recommending changes to the amounts listed in Section (J). Instead, the Planning Board has taken the position that requiring more stringent replanting requirements could result in more effective penalties thatt better match the intent of the tree preservation ordinance. While using the existing canopyy coverage calculations may be the best way to deal with lot clearing violations, adding replacement standards based on tree caliper may be a better way of dealing with the removal of individuall trees 24 or greater in size. These concepts have been included in the draft ordinance. Regarding the size of replacement trees to be planted, staff has compiled the following table of minimumm tree sizes from communities throughout the state. COMMUNITY Town of Burgaw City of Elizabeth City Town of Grifton City of Jacksonville Town of Riverbend City of Rocky Mount TYPE OF TREE Canopy Understory Canopy Understory Evergreen Deciduous Small Tree 8 height 5 height 8 height, 2 caliper 6 height, 2 caliper 8-10 height, 2 caliper 8 height, 1 caliper 2 caliper 6 height 8 height, 2 caliper 4 height MINIMUM SIZE Staff has different also consulted with two local nurseries to estimate the cost of purchasing and planting sized trees. The estimated costs are as follows: SIZE OF TREE 2 caliper, 8-10 height 3 caliper, height ESTIMATED PURCHASE & PLANTING COST $150 tree/$150 delivery & planting $180 tree/$180 delivery & planting 7

89 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 4 caliper, height $300 tree/$300 delivery & planting Based on this information, the Planning Board has incorporated a provision into the draft ordinance requiring replacement trees to be at least threee inch (3 ) caliper and ten feet (10 ) in height. Staff has asked Town Attorney Robert Hobbs to review and comment on the concept of off-site planting or payment-in-lieu as they become available. The City of Wilmington has a payment-in-lieu of planting program that offers some ideas for how such a program could be operated. City of Wilmington (payment-in -lieu/off-sitee tree planting) If in the determination of the city manager, the site cannot accommodate the required numbers of trees or pine plugs, then only the amount of trees or pine plugs which can be accommodated on the site will be replaced and the remainder of caliper inches shall be mitigated through a of planting. The Town Attorney s comments will be provided to the Board members payment in lieu of providing on-site trees. This paymentt shall be made into the City Tree Improvement Fund to be used for plantings of public spaces in the general vicinity of the project. The amount of the payment shalll be in accordance with the pricing standards of the respective jurisdiction. Mitigation payment in lieu will not be required if in the judgment of the reviewing agency trees are retained on the site to the maximum extent practical, and the following conditions are met: 1. The site has a definable street yard with canopy that exceeds the standardd width made up at least in part by retained tree clusters; 2. The site exceeds the buffer requirements, at least in part by retained trees, tree clusters, and vegetation; 3. The site exceeds the interior parking area landscaping minimum percent coverage requirements, at least in part by retained trees andd tree clusters; and 4. A minimum DBH of one hundred seventy-five (175) inches per acre of trees of two (2) inches DBH or greater is retained on the site in natural clusters. CAMA Land Use Plan The Town of Duck s adopted CAMA Land Use Plan contains the following goal, policies, and objectives relating to landscaping and tree preservation: GOAL # 5: Remain aesthetically pleasing while maintaining coastal village image. POLICY #24b: Duck supports the concept of combiningg natural resources and tourism to promote the area s ecological values, known as eco-tourism and supports passive recreation activities such as biking and walking/jogging. 8

90 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 POLICY #28c: Create landscaping provisions in Town ordinances to create vegetative buffers to assist in improvemen nts of water quality. OBJECTIVE #5d: Encourage landscaping and landscaping features maintenancee throughoutt the Town s commercial areas by business owners and in residential neighborhoods through neighborhood community associations. OBJECTIVE #1c/#6a/#12a: Adopt and apply development policies that balance protection of natural resources and fragile areas with residential and economic development. OBJECTIVE #19g: Encourage new residential development to respect the rights and consider the concerns of adjoining property owners with respect issues such ncluding stormwater runoff, line of sight, and vegetative buffer installation. With the frequency of mentions in a number of different categories in the Land Use Plan, it is clear thatt the Town of Duck places high importance on trees as part of its community character. Althoughh the plan does not make specific recommendations on standards, these goals, policies, and recommendations underscoree the value of tree preservation and landscape improvements in the community. As part of its recommendation, the Planning Board madee a determination that the proposed text amendments are consistent with the Town s adopted CAMA Land Use Plan. Planning Board Recommendation At its public meeting on March 11, 2015, the Duck Planning Board voted (4-1, Murray opposed) to recommend APPROVAL of these proposed text amendments to Section , Tree & Vegetation Preservation and Planning. Member Murray stated that he would not vote in favor of the ordinance as he disagreed d with staff s interpretation allowing large trees (24 or greater) to be cut down for development (such as a house or pool), but not for non-developm ment purposes (such as obtaining better views). The proposed amendments would not change this interpretation. For the Town Council s reference, a draft ordinance outlining all of the Planning Board s recommendations has been included in the packet as Attachment B. ATTACHMENTS A. Letter of Transmittal from the Planning Board Chair 9

91 Town of Duck, North Carolina Department of Community Development Text Amendment: Tree Preservation Agenda Item 5B2 B. Draft Text Amendment Ordinance 10

92 AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE TOWN OF DUCK, NORTH CAROLINA REGARDING TREE AND VEGETATION PRESERVATION AND PLANTING Ordinance No. WHEREAS, the Town s adopted CAMA Core Land Use Plan provides in Chapter IX, Plan for the Future, a series of goals, policies, and objectives that support the adoption and enforcement of regulations to regulate land use, development and redevelopment of properties in accordance with the Land Use Plan in order to protect the public health, safety, and welfare; and WHEREAS, the Town Council and the Planning Board have determined that the regulation of tree and vegetation preservation and planting is reasonable and consistent with the CAMA Core Land Use Plan; and WHEREAS, the Town Council and the Planning Board have solicited public input and professional advice regarding tree and vegetation preservation and planting regulations; NOW THEREFORE BE IT ORDAINED by the Town Council for the Town of Duck, North Carolina that the Zoning Ordinance shall be amended to read as follows: ** PROPOSED AMENDMENTS IN RED** PART I. Amend section TREE AND VEGETATION PRESERVATION AND PLANTING. (A) Purpose. (1) The purpose of this section is to preserve, protect, and replace trees and vegetation within the Town because such plantings: (a) Are an important public resource. (b) Preserve and enhance the Town's physical and aesthetic environment, especially its natural and unique atmosphere; (c) Enhance the air quality by filtering air pollutants; (d) Reduce topsoil erosion by the holding effect of their roots; (e) Reduce storm water runoff; (f) Provide a buffer and screen against noise pollution; shade; (g) Reduce energy consumption by acting as a wind break and producing

93 (h) Preserve and enhance nesting areas for birds and other wildlife which, in turn, assist in the control of insects; (i) Protect and enhance property values; Town; (j) Protect and enhance the quality of life and the general welfare of the (k) Improve the compatibility of uses by providing privacy and enhancing the aesthetic transition between uses. (2) For the purpose of this section, tree is defined as a self-supporting, woody plant, together with its root system, having a well-defined stem or trunk or a multistemmed trunk system, a more or less well-defined crown, and a mature height of at least 8 feet. Tree does not include trees in containers or nursery stock trees kept or maintained for resale. Vegetation is herein defined as perennial bushes and shrubs or ornamental or other grasses meeting minimum size requirements at planting. (3) Multi-trunk trees. (a) For the purposes of this section, multi-trunk trees are defined as trees that have more than one trunk growing from a single root mass or trees that split into multiple stems below breast height (4.5 feet above ground). (b) The diameter at breast height of multi-trunk trees shall be measured according to the following formula from the U.S. Forest Service National Core Field Guide: the dbh for a multi-trunk tree is calculated by taking the square root of the sum of squared dbhs of all trunks. The following example shows how this formula is intended to be applied: Example: Multi-trunk tree with four 10-inch trunks 1. Find square of each trunk. 10 x 10 = Add squared numbers together = Calculate square root of total. Square root of 400 = This multi-stem tree would be measured as a 20 dbh tree. (c) Preserving some trunks of a multi-trunk tree is preferable to removal of the entire tree. The Director is authorized to allow the pruning or removal of an individual trunk to accommodate reasonable development of a property. (B) Clear cutting. On a vacant, undeveloped parcel, removal of any tree greater than 6 inches in diameter at breast height is prohibited except after receiving an approved development site plan and issued building permit, an approved tree management plan and any required tree removal permit. 2

94 (C) Tree removal permit. (1) Permit required. No person shall remove or destroy any tree which is 24 inches or greater diameter at breast height on any lot without first obtaining a tree removal permit from the Director of Community Development (Director) in accordance with the procedures set forth in this section. Further, no person shall remove or destroy any tree located in the common open space of any development without first obtaining a tree removal permit. (2) Issuance of permit. Tree removal permits shall be issued only after the Director has received the required tree management plan and a completed application for such permit which has been signed by the property owner. In determining whether to grant or deny a permit, the Director shall consider: (a) The effect of the proposed tree removal upon the stabilization of soil; (b) The intended use of the property and feasible alternatives which would preserve existing trees; (c) The existing topography, proposed changes in the topography and proposed landscaping; (d) The hardship imposed or the reasonable use denied to the applicant as a result of permit denial; (e) Historical value of the trees; (f) Good horticultural and forestry practices; (g) The effect of the proposed tree removal on the deadening and absorption of sound; (h) The likelihood that the proposed action will adversely affect the control of flooding or soil erosion; (i) The impact of such action on surrounding property or persons; section. (j) The consistency of the proposed action with the purpose of this (3) (a) A permit shall expire and become null and void if work authorized is not commenced within 6 months from the date of the permit or if such work when commenced is suspended or abandoned at any time for a period of six (6) months; (b) If work has commenced and the permit becomes null and void or expires because of lack of progress or abandonment, a new permit for the proposed tree removal activity shall be obtained before proceeding with further work. 3

95 (4) Removal of any size tree where the tree trunk is within ten (10) feet of a house structure shall be allowed without a permit. (D) Tree emergency exception. (1) A tree emergency shall be deemed to exist when: (a) A tree has become an imminent danger or hazard to persons or property as a result of fire, motor vehicle accident, or natural occurrence such as lightning, windstorm, ice storm, flood, or other similar event; or (b) A tree must be removed in order to perform emergency repair or replacement of public or private water, sewer, electric, gas, or telecommunications utilities. (2) In the case of a tree emergency, the Director is hereby authorized to: (a) Issue a tree removal permit without an application; section; or (b) Waive the requirement for a tree removal permit set forth in this (c) Waive any of the other regulations of this section. (3) Notwithstanding any other regulations, a person otherwise required to obtain a tree removal permit may take any reasonable action necessary to avoid or eliminate the immediate danger or hazard, or conduct emergency repair or replacement of the public or private utility. The person taking such action shall file an application for a tree removal permit within seventy-two (72) hours after a tree is removed in a tree emergency. In these instances, documentation of the need for the emergency tree removal must be provided. Such documentation can include (as applicable): (1) Documentation from a certified arborist; (2) Police report; (3) Photographs; and/or (4) Other information documenting the condition of the tree and circumstances surrounding its removal. (E) Vegetation management plan required for new development and substantial redevelopment. Any addition to the footprint of a structure, increases in lot coverage, changes to driveway and parking areas, or total renovation cost greater than or equal to 50% of the assessed value of the principal structure and for tree removal permits as required in division (C)(1). 4

96 (1) Any applicant proposing to remove or destroy existing trees or vegetation in conjunction with any land development activity, including the moving of buildings, shall submit a vegetation management plan containing such of the following information as deemed necessary by the Director: (a) The location, size and species of all trees which are at least 6 inches diameter at breast height, indicating which are to be preserved, which are to be removed, and a description of the condition of trees or vegetation that are to be preserved; construction; (b) Specifications for the removal of trees and protection of trees during (c) Proposed grade changes or other potentially injurious work adjacent to trees or vegetation designated for preservation with specifications for maintaining ground drainage and aeration around such trees; (d) The location, size and species of all vegetation to be planted; (e) An estimate of the vegetation canopy coverage to be provided as required in division (G) via retention or new planting (f) Such other information that the Director deems essential. (2) Any applicant proposing to remove or destroy multiple existing trees or substantial vegetation on a developed lot not in conjunction with a land development activity shall ensure that the total vegetation cover on the property is equal to or greater than the minimum requirement through retention of existing vegetation or planting of new vegetation to meet ordinance requirements. (3) Although not required, any person or firm subject to the requirements of this chapter is encouraged to seek professional assistance from a certified arborist, landscape architect, or similar professional. (F) Acts harmful to trees. (1) No person shall abuse, mutilate or otherwise damage any tree or vegetation located on public property, or any tree or vegetation protected by this section, including those located in the public right-of-way along street frontages within subdivisions. However, nothing in this section shall be construed to prevent reasonable and proper trimming of trees or vegetation located on public property by authorized persons in accordance with accepted horticultural practices. (2) No person shall attach any sign, notice, placard, electrical wire or other injurious device to any tree, nor shall any person cause any substance harmful to trees to come in contact with them, or prevent water and oxygen from reaching their roots. (G) Canopy cover required. 5

97 (1) New development and substantial redevelopment as defined in section (E) on any property shall provide for the planting or retention of trees (or approved substitute vegetation in the Town of Duck Vegetation Planting Guidelines ) on the site to provide for a minimum vegetative lot coverage as follows: (a) Ten percent for a lot within any commercial zoning district. (b) Fifteen percent for a residential lot. Required vegetative lot coverage will be calculated based on the total lot area minus the footprint of the principal building. (2) To meet the minimum requirements of this division, vegetative lot coverage shall be calculated using the following methods: (a) Vegetation that is newly planted to meet vegetative lot coverage requirements shall include only vegetation on an approved list of local vegetation, as provided in the Town of Duck Vegetation Planting Guidelines, or other trees, bushes, shrubs, or grasses as approved by the Director of Community Development upon submission of a landscape plan with assessment of local hardiness and calculation of canopy. All vegetation planted to meet these requirements shall be a minimum size as specified in the Town of Duck Vegetation Planting Guidelines and shall be planted as described in the technical standards included within the Guidelines. Palm trees and tropical vegetation cannot be counted to meet vegetative lot coverage requirements. If the canopy coverage is accomplished by installation, canopy credit shall be provided based on the categories listed below. The plant list contained in the Town of Duck Vegetation Planting Guidelines defines the plant species that are included within each category. 1. Large trees, provide a 400 square foot canopy credit. 2. Small trees, provide a 200 square foot canopy credit. 3. Mulched bushes or shrubs (18-24 inches minimum height at planting or a three gallon size) provide a 40 square foot canopy credit. 4. Ornamental grasses (18-24 inches minimum height at planting or of a three gallon size) provide a 20 square foot canopy credit. Credit for smaller coastal grasses and forbs, such as American Beach Grass, will be provided at 100 sprigs or plants for every 100 square feet of lot area. Credit will not be provided for retention of existing vegetation in oceanfront areas within the CAMA small structure setback. (b) Existing vegetation that is retained to meet vegetative lot coverage requirements may be calculated based on the methods described in division (a) above based on the allowable square footage as shown for large and small trees, shrubs, and grasses. Areas of significant, mature vegetation that will remain undisturbed may also be calculated on a square foot basis by determining the area within the perimeter surrounding the vegetation to be retained. Existing vegetation to be retained need not be 6

98 on the approved list of local vegetation as provided in the Town of Duck Vegetation Planting Guidelines, provided it is a native or locally adaptive plant species. (c) For trees to be eligible for any tree canopy cover credit, the required amount of open soil surface must be present and protected around the tree. The area of vegetative canopy cover for which credit is given shall always remain in vegetative cover and there shall be no other use of the area other than for vegetation growth or passive recreation except as otherwise provided herein. Developed properties shall be required to maintain the minimum vegetative canopy described above and must provide for replacement of or vegetations that are removed, per division (E)(2). (H) Vegetation protection during and post development. (1) During development or razing activity, the builder shall install effective dripline protection around all vegetation preservation areas, and shall further install tree wells, retaining walls, construction fencing, or other structures necessary to protect individual trees designated for preservation. The protective measures shall be specified on the vegetation management plan and shall be designed and installed in a manner consistent with good horticultural practices and subject to the approval of the site plan approving agent. (2) If vegetation is not listed for removal on the tree removal permit but is destroyed or receives major damage due to construction activities, it must be replaced with vegetation sufficient to reach the required vegetation canopy, subject to review and approval of the Director of Community Development. (3) Trees conserved and planted to meet vegetation canopy requirements shall be actively protected during development activity and passively protected throughout their life in accordance with requirements for protected trees set forth below: (a) Prohibited activities. During lot clearing, grading, building, and all construction activities, the following activities and conditions, and any other activities and conditions harmful to a tree s roots, trunk, or crown, within the vegetation protection zone are prohibited: 1. Vehicle or equipment traffic, parking, or storage, except as provided for in limited activities below. 2. Materials or supplies storage. 3. Placement of temporary or permanent structures. 4. Equipment maintenance or washout. 5. Wounding of trunk. 6. Wounding or breakage of scaffold limbs or branches greater than six (6) inches in diameter. 7

99 cuts. 7. Topping or other improper pruning, such as stub cuts or flush Fires; excessive heat from equipment exhaust pipes. (b) Limited activities. During lot clearing, grading, building, and all construction activities, the following activities and conditions within the vegetation protection zone are limited to one (1) side of the tree in the outer 1/2 of the dripline, but in no case closer than 2.5 feet to the trunk of a planted tree and ten (10) feet to the trunk of a conserved tree: 1. Site or lot clearing or grubbing. 2. Soil excavation. 3. Soil cuts. 4. Soil fill. 5. Grading. 6. Trenching. 7. Tilling. 8. Edging. 9. Soil compaction. 10. Top dressing with soil greater than two inches in depth. 11. Paving. (I) Preservation of special trees. (1) The Town Council may, by ordinance, designate any tree as a heritage, memorial, or designated specimen tree. A heritage tree means any tree which the Town Council has designated by ordinance to have notable historic or cultural interest. A memorial tree means any tree which the Town Council has designated by ordinance to be a special commemorating memorial. A designated specimen tree means any tree which the Town Council has designated by ordinance to be notable by virtue of its outstanding size and quality for its particular species. No designated tree shall be removed, damaged or disturbed in any way unless the Town Council finds that: (a) There is an overriding need for public improvements; (b) A severe hardship exists in developing a site; or 8

100 (c) The tree dies, becomes irreversibly diseased or irreversibly damaged by natural causes. In permitting such action, the Town Council may require that the tree be relocated on-site or to another site designated by the Town, or be replaced with a similar tree or trees to approximate the canopy lost. (2) The provisions of this section shall not apply to: property; (a) Work conducted on federal, state, or local government owned (b) Emergency work to protect life, limb or property; (c) Routine installation, maintenance and repair of utilities; (J) Violations and penalties. (1) It shall be a violation for any person to remove a tree without having first obtained a tree removal permit, if so required under the provisions of this section Sections and of the Town Code. It shall be a violation for a property owner to employ, authorize or direct any third person or entity to remove a tree without having first obtained a tree removal permit, if so required under the provisions of this section. (2) A separate violation shall be deemed to have occurred for each tree removed without a tree removal permit in violation of the provisions of this section. (3) Each violation of the tree removal permit requirements of this section shall subject the offender to a civil penalty in the amount of one thousand dollars ($1,000). (4) Removal of a tree greater than six (6) inches in diameter at breast height on any vacant, undeveloped parcel without the necessary permits and approvals as defined above in section (B), shall subject the offender to a civil penalty according to the following procedure: (a) If the number and type of removed trees and/or vegetation can be determined, the civil penalty shall be assessed as follows: 1. Unauthorized removal of large trees as defined by the Town of Duck Vegetation Planting Guidelines shall subject the offender to a civil penalty in the amount of four hundred dollars ($400) per tree. 2. Unauthorized removal of small trees as defined by the Town of Duck Vegetation Planting Guidelines shall subject the offender to a civil penalty in the amount of two hundred dollars ($200) per tree. 3. Unauthorized removal of shrubs as defined by the Town of Duck Vegetation Planting Guidelines shall subject the offender to a civil penalty in the amount of forty dollars ($40) per shrub. 9

101 (b) If the number and type of removed trees and/or vegetation cannot be determined, a civil penalty can be determined based on the square footage of disturbed area and/or area of canopy coverage removed. The penalty shall be equal to one dollar ($1) for every one square foot of canopy coverage removed. In no instance shall the civil penalty exceed five thousand dollars ($5,000). (5) Unauthorized removal of trees and vegetation shall also subject the offender to mitigation requirements as specified herein. (a) When dealing with violations of clear-cutting standards under section (B) or canopy coverage standards in section (G), the required canopy coverage of replacement trees shall be no less than the canopy coverage which has been determined to have been removed for the assessment of the required civil penalty. The mitigation requirements shall be calculated using the formula to determine canopy coverage as defined above in section (G). Replacement trees and vegetation, to the extent that it can be determined, shall of a similar type to that which has been removed. (b) When dealing with tree removal violations of section (C), the diameter at breast height measurement of the trunk shall be used to determine the number of replacement trees. Trees of similar type must be planted such that the total caliper inches of trees planted is no less than the dbh of the tree(s) removed. In cases where the size of an individual tree(s) cannot be determined, the canopy coverage of replacement trees and vegetation shall be no less than the canopy coverage which has been determined to have been removed for the assessment of the required civil penalty. (c) The size of such replacement trees at the time of installation shall be a minimum of three inches (3 ) in caliper and ten feet (10 ) in height. Each tree must be planted at least thirty feet (30 ) from any other tree. (6) If in the determination of the Director, the site cannot reasonably accommodate the required numbers of replacement trees, then only the amount of trees which can be accommodated on the site will be replaced and the remainder of replacement trees and vegetation shall be mitigated through a payment in lieu of providing on-site trees. This payment shall be made to the Town of Duck to be used for tree and vegetation planting and maintenance in public spaces. The amount of the payment shall be in accordance with the costs for purchase, delivery, and planting of the required replacement trees and vegetation. (K) Conflicting provisions. (1) Where provisions of this zoning ordinance dictate conflicting landscaping or screening requirements, the more stringent requirements shall prevail. (2) Except under the following conditions, no certificate of occupancy or other final approval shall be issued until the relocation or replacement of trees and/or vegetation, as required by the tree removal or vegetation management plan, has been 10

102 completed and the final approval has been given by the Director of Community Development. To address temporary adverse conditions during the current planting season, at any time prior to the issuance of the certificate of occupancy the property owner may request to defer installation of vegetation for a period not to exceed ninety days beyond the date of the certificate of occupancy. This request will be accompanied by the following: (a) A cash deposit, an irrevocable letter of credit, or other financial surety shall be provided to the Town to be held until the planting is completed. The amount shall be equal to $1 for every one square foot of canopy coverage required to be installed to satisfy the canopy coverage requirements as specified in the approved vegetation management plan. (b) A signed Memorandum of Understanding between the property owner or authorized agent and the Town specifying the timeframe for installation of all vegetation and the penalties for failing to abide by the terms of the agreement. This agreement shall also include terms for refunding the cash deposit upon verification of compliance with terms of the vegetation management plan or tree removal permit. (L) Special exceptions. Town Council may, upon application of the property owner, grant special exceptions modifying the requirements of this division in accordance with the procedures and limitations established for conditional use permits in Special exceptions shall be granted only if the applicant has clearly demonstrated a situation of extreme topography, unusual lot shape or extraordinary circumstance. In addition, the requested special exception shall only be granted if the Town Council finds that the proposed development will not be inconsistent with the CAMA Core Land Use Plan and the purpose of this division, and otherwise will not result in inadequate on-site amenity or any condition which will adversely affect nearby property. Requests for special exceptions may be granted in whole, in modified form with conditions or denied by the Town Council after consideration of the requisites presented in this section. (M) Irrigation. Vegetation that is well-adapted to the local environment does not generally require irrigation. Irrigation systems are not required; however, all irrigation systems installed subsequent to this section must meet the requirements of this section. If irrigation systems are used, the preferred source for their water is from individual or community wells rather than from the county water supply. For irrigation systems which use county water, the installation shall include rain sensors so that unnecessary watering does not occur and thereby add to the local high ground water table. No components of an individually owned private irrigation system shall be installed in any right-of-way. Water from sprinkler heads of an irrigation system shall be appropriately directed to retain the flow of water on the site for which it has been installed and to avoid run-off to adjacent properties and rights of way. PART II. This ordinance shall be effective upon its adoption. 11

103 Don Kingston, Mayor ATTEST: Lori Kopec, Town Clerk Date adopted: Motion to adopt by: Vote: AYES NAYS 12

104 AGENDA: April 1, 2015 Regular Meeting ITEM #6: New Business A. Overview of Senate Bill 369, The Sales Tax Fairness Act and SB 160, Enhance Safety & Commerce for Ports/Inlet B. Planning Board Appointment RECOMMENDED ACTION: See attachments SUMMARY OF INFORMATION: See attachments ATTACHMENTS: See attachments

105 AGENDA: April 1, 2015 Regular Meeting ITEM #6A: New Business A. Overview of Senate Bill 369, The Sales Tax Fairness Act and SB 160, Enhance Safety & Commerce for Ports/Inlet RECOMMENDED ACTION: Per discussion SUMMARY OF INFORMATION: Two pieces of legislation have been introduced that could have a significant impact on the Town. The first, SB 369, would redistribute sales tax revenues to less urban areas by tweaking the current formula for the distribution of the revenue source. If passed, and if fully implemented in FY 18-19, the impact on the Town could be a loss of $468,880 to $1,030,251! This equates to a 3.01 cent to a 6.6 cent real estate tax increase. The loss of this revenue could also impact the financing for the Town s beach nourishment project. In addition, SB 160, which would allow Dare County to utilize occupancy tax proceeds to fund dredging projects, i.e. Oregon Inlet, is currently still alive in the Senate, although Senator Cook has promised to remove Dare County from the legislation. This could also potentially impact a vital Town revenue source. Dare County is proposing that it be authorized to levy a ½ cent sales tax increase to fund dredging and is set to make a decision on a resolution to request legislation for this purpose on Friday, March 27, The Town Manager will provide an update on these issues for discussion. ATTACHMENTS: SB 369 and graphics provided by Senator Brown Estimated Impacts to Dare County and its Municipalities NCLM Impact Analysis SB 160

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142 AGENDA: April 1, 2015 Regular Meeting ITEM #6B: New Business B. Planning Board Appointment RECOMMENDED ACTION: Per discussion; either re-appoint Joe Blakaitis to the Planning Board for a term to expire on May 1, 2017, or appoint another individual to the position SUMMARY OF INFORMATION: The appointment of Mr. Joe Blakaitis to the Planning Board expires on May 1, Mr. Blakaitis has indicated his desire to remain on the Planning Board. The Council is requested to either re-appoint Mr. Blakaitis to the Planning Board for a term to expire on May 1, 2017, or appoint another individual to the position. ATTACHMENTS: None

143 AGENDA: April 1, 2015 Regular Meeting ITEM #7: Items Referred To and Presentations from the Town Attorney RECOMMENDED ACTION: Per discussion SUMMARY OF INFORMATION: None ATTACHMENTS: None

144 AGENDA: April 1, 2015 Regular Meeting ITEM #8: Items Referred To and Presentations from the Town Manager A. Update on Departmental Activities B. Project Update on Beach Nourishment Project C. Police Chief Search D. Financial Statement for the Month of March for FY 2015 RECOMMENDED ACTION: See attachments SUMMARY OF INFORMATION: See attachments ATTACHMENTS: See attachments

145 AGENDA: April 1, 2015 Regular Meeting ITEM #8B: Items Referred To and Presentations from the Town Manager B. Project Update on Beach Nourishment Project RECOMMENDED ACTION: None required SUMMARY OF INFORMATION: The Town Manager will provide the Council with an update on the beach nourishment project. ATTACHMENTS: March Letter from CP&E

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148 AGENDA: April 1, 2015 Regular Meeting ITEM #8C: Items Referred To and Presentations from the Town Manager C. Police Chief Search RECOMMENDED ACTION: None required SUMMARY OF INFORMATION: The Town Manager will provide the Council with an update on the Police Chief position. ATTACHMENTS: None

149 AGENDA: April 1, 2015 Regular Meeting ITEM #8D: Items Referred To and Presentations from the Town Manager D. Financial Statement for the Month of March for FY 2015 RECOMMENDED ACTION: None required SUMMARY OF INFORMATION: The Town Manager will provide the Council with an overview of the March financial reports. ATTACHMENTS: March FY 2015 Financial Statement March FY 2015 Beach Activities Report

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