August 13, 2002 Agenda
August 13, 2002 Minutes

UNAPPROVED
MINUTES OF THE REGULAR SCHEDULED MEETING
OF THE EMERALD ISLE BOARD OF COMMISSIONERS
TUESDAY, AUGUST 13, 2002 – 7:00 P.M. – TOWN HALL             Mayor Art Schools called the meeting to order at 7:00 P.M.  Board members present were Mayor Schools, Commissioners McElraft, Messer, Marks, Farmer, and Eckhardt.  Staff members present were Town Manager Frank Rush, Town Attorney Derek Taylor, Town Clerk Carolyn Custy and Alesia Sanderson Parks and Recreation Director.

PRESENTATION OF PLAQUE TO OUTGOING PLANNING BOARD MEMBER GEORGE MCLAUGHLIN

ADOPTION OF AGENDA

CONSENT AGENDA

a.      Minutes of Regular Meeting – July 9, 2002

b.      Minutes of Special Meeting – May 20, 2002

c.      Minutes of Special Meeting Reconvened – May 21, 2002

d.      Minutes of Special Meeting – July 29, 2002

e.      Minutes of Special Meeting – Budget – July 29, 2002

f.        Resolution Authorizing Governor’s Highway Safety Grant

g.      Approval of Contract with NCDENR for Administration of

CAMA Program in Emerald Isle

h.      Approval of Resolution Authorizing Execution of CAMA

             Planning Grant Contract. 

i.        Budget Amendment - Return FEMA Funds Remitted

To Town of Emerald Isle in Error

BACKGROUND INFO ON CONSENT AGENDA ITEMS:  (f.) The Board of Commissioners is asked to approve the attached resolution authorizing a grant application to the Governor’s Highway Safety Program.  Grant funds will be used to purchase video cameras for two patrol cars and other miscellaneous police equipment.  The total amount of the grant request is $3,250, which represents 25% of the total estimated project cost of $13,000. 

The Police Department has received grant funding from the Governor’s Highway Safety Grant Program over the past several years.  The grant application was due on August 6.  Because the Board would not meet again until August 13, and because the Board approved matching funds in the FY 02-03 budget, Mr. Rush, Town Manager, authorized submission of the grant application and is requesting that the Board retroactively authorize the grant application at the August 13 Board meeting.

(g.) The Board of Commissioners is asked to approve a contract with the North Carolina Department of Environment and Natural Resources (NCDENR) for administration of the Coastal Area Management Act (CAMA) program in Emerald Isle.  Planning and Inspections Department staff review and authorize minor CAMA permits, general CAMA permits, and exemptions, and the Town is reimbursed by NCDENR for these services.  The Town also retains CAMA permit application fees to cover the costs of administering this program. 

Emerald Isle has partnered with NCDENR to enforce CAMA for the past several years.  The Town receives $55 for each permit application processed, $40 for each follow-up inspection, and $25 for each exemption as compensation from NCDENR.  The Town also receives $100 for each minor permit violation that is successfully resolved.  The contract does establish a total cap of $4,500 annually for the reimbursements.

The Town issues approximately 50 CAMA permits annually, and because the Town also receives $100 for each permit application, the FY 02-03 budget anticipates approximately $8,000 in revenue from this contract.

The Town has been awarded $18,750 in FY 02-03, which will be matched with $6,250 of Town funds to provide a total of $25,000 for the first phase of a two-phase project to update the land use plan.  Sufficient funds are included in the FY 02-03 budget for this project.  The Town will request the remaining $18,750 in FY 03-04, and it is anticipated that NCDENR will make those funds available at that time. 

Mr. Bill Farris, the town’s planning consultant who prepared the grant application on the town’s behalf, will be asked to draft a contract between himself and the Town for his services associated with the land use plan update.  Town Manager Rush hopes to have this contract on the Board’s September 10 agenda, along with a timeline and strategy for completing the land use plan update.  Work on the land use plan update will begin sometime this fall, and will continue for approximately 18 months.  Mr. Rush recommend approval of the resolution. 

A budget amendment appropriates an additional $21,763 from General Fund balance to repay FEMA.  Our latest estimates from the end of FY 01-02 indicate that the Town finished the fiscal year in slightly better shape than we anticipated in May and June, and this use of fund balance should be offset by higher than anticipated revenues and lower than anticipated expenditures at year-end.  The town is still awaiting the receipt of FY 01-02 sales tax revenues, and staff will have a clearer picture of our General Fund balance levels later in August after this sales tax distribution is remitted.  Even with this additional use of fund balance, it is expected that the General Fund balance to remain at approximately $1.4 million as of June 30, 2002.

PUBLIC COMMENT

CONSIDERATION OF BELL COVE VILLAGE PRELIMINARY PLAT

BACKGROUND: The preliminary plat for Bell Cove Village subdivision is presented for the Board’s consideration.  Bell Cove Village is an 8-lot subdivision located at the intersection of Coast Guard Road and NC 58, and comprises approximately 8 acres.  In addition to the 8 lots, a separate common area is included in the subdivision, and this common area represents approximately 1.7 acres of the total 8 acres in the subdivision.  A private road, Rose’s Path, occupies slightly less than 1 acre of the total 8 acres in the subdivision.  The applicants are Ronnie Watson, Steve Mathews, and Randy Campbell, and their agents are Alan Bell and John McLean.

This subdivision further divides the two lots recently created under the Reed Drive Commercial Park subdivision, for which the final plat was approved in June 2002.  The 8 new lots proposed in the Bell Cove Village subdivision range in size from approximately 17,000 sq. ft. to 63,000 sq. ft., with most in the 25,000 sq. ft. range.  Each of the lots conform with the Town’s dimensional requirements for the B-3 zoning district, which is the zoning district that this property is located within. 

The Planning Board discussed the approval of the preliminary plat for Bell Cove Village at its June 24 regular meeting, its June 26 map review committee meeting and its July 22 regular meeting.  The Planning Board voted unanimously at its July 22 meeting to recommend approval of the preliminary plat.  

In response to concerns raised by the Planning Board, the applicants and the agents have worked closely with Planning Board member Art Daniel to develop a storm water management plan that is consistent with the requirements of the Town’s new storm water management ordinance.  After two revisions, Mr. Daniel, a licensed professional engineer, has approved the storm water management plan submitted by John McLean for this project.  A copy of that storm water management plan is attached. 

The Bell Cove Village subdivision does not involve the construction of new infrastructure, as the road and associated improvements were completed as part of the Reed Drive Commercial Park.  The applicant has agreed to construct a short right-turn lane along Coast Guard Road into the private Rose’s Path near the NC 58 / Coast Guard Road intersection.  The turn lane will be approximately 150 feet long, and will gradually taper from a maximum width of approximately 11 feet near Rose’s Path to the north to the edge of the existing pavement approaching the NC 58 / Coast Guard Road intersection.  The new right-turn lane will not connect with NC 58.

One positive aspect of the subdivision is that the designated 1.7 acre common area is located at the northern tip of the property and is adjacent to the NC 58 “Gateway” area.  The fact that this property will remain as common area will hopefully enable that area to remain in a primarily vegetated state.  Although it has no bearing on the consideration of the preliminary plat, the applicants have informed me that they hope to use that area for a wastewater system for a restaurant on lot 3 of the subdivision. 

The Board should note that the preliminary plat that was approved by the Planning Board includes a discrepancy regarding the configuration of the intersection of Rose’s Path near Reed Drive and Coast Guard Road.  As the board is aware, the previously approved Reed Drive Commercial Park subdivision was limited to a right-in only feature at that intersection.  The actual map of the Bell Cove Village subdivision indicates that this feature remains the same as approved for Reed Drive Commercial Park, however, the inset detail indicates that a right-turn out feature has been added.  At the June 26 map review committee, the applicants did express an interest in adding this right-turn out feature, however, there was never any other discussion of this issue at subsequent Planning Board meetings.  The issue simply did not arise, and I am not certain if the Planning Board members noticed this detail on the preliminary plat approved on July 22.  As of August 5 Mr. Rush had not yet received clarification from the applicants whether or not this was an intended feature or simply an oversight.  The Board should address this issue during the August 13 meeting if it is not resolved prior to the meeting.  This issue was the subject of considerable Board debate when the preliminary plat for Reed Drive Commercial Park was approved in December 2001.  There also was not clear consensus from the various traffic engineers consulted by the Town at that time.

This request for Preliminary Plat approval for Bell Cove Village has been deliberately placed the on the August 13 agenda so that it appears before the Board’s consideration of Item #9, which contains various amendments to the subdivision ordinance.  The most significant provision in that amendment that affects Bell Cove Village is a requirement for sidewalks on one side of the street in all new commercial subdivisions.  Because this ordinance amendment has been under consideration for the past few months, and because their staff nor the Planning Board have discussed these potential additional requirements with the applicants, it has been scheduled it on the agenda for consideration before the subdivision ordinance amendments are effective.  If the Board believes that Bell Cove Village should be held to these new ordinance provisions, it may want to amend the agenda to consider that ordinance prior to Bell Cove Village.

Copies of the June 24 and July 22 Planning Board minutes have been provided for the board’s review. Also provided was a copy of a June 20 memo that Town Manager Rush wrote to the Planning Board.  (All of the issues that were raised in the June 20 memo have been addressed by the Planning Board in its review.)  Mr. Rush included another June 20 memo that was provided for the Planning Board that summarized the various traffic engineers’ recommendations regarding the NC 58 / Coast Guard Road / Reed Drive intersections. 

ORDINANCE AMENDING CHAPTER 18 – SUBDIVISIONS – REGARDING SKETCH DESIGN PLANS AND OTHER MISCELLANEOUS AMENDMENTS

a.      Public Hearing

b.      Consideration of Ordinance

BACKGROUND:  The Board of Commissioners is scheduled to consider several proposed amendments to the subdivision ordinance at the August 13 meeting.  These ordinance amendments address several separate issues that are summarized with bullets below.  The proposed amendments are indicated in the attached ordinance with the underline feature (identifying new language) and the strike-through feature (identifying deleted provisions). 

The Board discussed this ordinance at the July 9 meeting.  The attached ordinance reflects additional language to address some of the concerns raised at the July 9 meeting.  An explanation of these changes is included in the summary bullets below.  The Board should also note that a formal public hearing has been scheduled to receive public comment on the proposed ordinance.  Town Attorney Derek Taylor recently informed us that state law requires a public hearing on all amendments to the subdivision ordinance, just as one is required for amendments to the zoning ordinance.  It is Mr. Rush’ understanding that the Town has never advertised or conducted public hearings for subdivision ordinance amendments in the past, but the town will do so for all future amendments.

The specific revisions included in the attached ordinance amendment are as follows:

• The most significant revision is a new requirement for a sketch design plan that would be submitted prior to the preliminary subdivision plat.  This sketch design plan would not include the level of detail included in a preliminary plat, and would not necessarily have to be prepared by a design professional.  The sketch design plan would include a general representation of the site conditions and the applicant’s general plan for the subdivision of the site.  The intent of the sketch design plan is to promote dialogue between the applicant, staff, and Planning Board at an early stage of the development review process, prior to the expenditure of significant amounts of time and money on the part of the developer.  This is a fairly common practice in other jurisdictions, and although it represents an additional step in the review process, Mr. Rush believes it would foster better relations between applicants and the Town’s representatives.

• A narrative from the applicant describing the proposed subdivision would be required at the preliminary plat stage.  The new ordinance would also require the applicant to submit a statement that the subdivision proposal is in conformance with applicable town ordinances.

• At the preliminary plat stage, proposed finish grades would be required in addition to existing topographical features.  In practice, it will be important to recognize that the proposed finish grades may only represent the applicant’s best intentions at the time of subdivision (if there are no immediate plans for construction), and that these grades may be adjusted when actual construction occurs on the site.   

• The proposed ordinance requires all new utilities, including electric lines, to be installed underground.  This is a common practice in new subdivisions in other jurisdictions, and will enhance the appearance of the community.  In response to a question at the July 9 meeting, Planning Board member Art Daniel contacted Carteret-Craven Electric Cooperative to discuss this issue.  Carteret-Craven indicated that it is their policy to require all new electric lines to be placed underground in their service area, but that they have deviated from that policy on two occasions in recent years, both in Emerald Isle.  

• The proposed ordinance requires the construction of new sidewalks on one side of the street in new commercial subdivisions.  There was some discussion about the timing of sidewalk installation at the July 9 meeting, but no consensus emerged to change the language that was presented.  As it is currently written, the proposed ordinance would require the installation of sidewalks prior to final plat approval, and would be handled in the same manner as new road construction.  The Board should note that this provision would only apply to new commercial subdivisions, and would not apply to already-subdivided commercial property in Emerald Isle.  In the future, the Board may want to consider whether or not this provision should be extended to all new commercial properties (on already subdivided lots) as they develop.  Such a requirement would be incorporated into the zoning ordinance.

• The proposed ordinance includes more specific guidelines for conditional approval of preliminary plats.  In response to comments at the July 9 meeting, additional language has been inserted that requires the signature of the Planning Board chairperson on an updated preliminary plat (that contains the required changes) that would be submitted to the Board of Commissioners for consideration.  In essence, a preliminary plat granted conditional approval by the Planning Board must be updated to reflect the changes before it is considered by the Board of Commissioners.

• A new requirement for detailed construction drawings for proposed subdivision improvements (streets, drainage features, etc.) to be submitted with the preliminary plat.  This is a common requirement in other jurisdictions.  Mr. Rush will soon be soliciting qualifications from professional engineers to provide periodic general engineering assistance to the Town, and the review of these detailed construction drawings will be one component of the engineer’s work for the Town.

Following the public hearing, the Board may formally consider adoption of the proposed ordinance. 

                        Because of the length of the Ordinance, a copy has been attached at the end of these Minutes.

                        DISCUSSION: Mr. Art Daniel went over the process relating to Sketch Designs.  He said that regarding a comment from the public, the word “church” was changed to “place of worship” and in regard to not bringing a conditionally approved plat before the Board of Commissioners, but rather resolving that in the Planning Board previous to it being submitted, some changes have been made in that area.  The Section 18-21 (bottom of page 8 and on page 9) was rephrased so that three copies would be sent on to the Board of Commissioners from the Planning Board with the appropriate signature from the Chairman of the Planning Board.  On a plat that is granted on a conditional approval, the reasons for the conditional approval and the conditions to be met must be stated in writing and be submitted to the Planning Board as provided in paragraph (4), page 9.  This is saying that the Planning Board has discretion to grant a conditional approval.  That means that the plat is almost in compliance with the Ordinance, in order to save time and to move the process forward, the Planning Board would like the applicant to make those changes that were a condition to the approval and bring that revised plat to the Chairman of the Planning Board. It would then be reviewed to see if it was in compliance with the Ordinance and then it would be submitted to the Board of Commissioners.  The Planning Board also would have the discretion to deny approval of a preliminary plat and in that process the applicant could make the necessary changes and resubmit it to the Planning Board for action.

                        Subparagraph (5) provides for the Board of Commissioners to approve or disapprove the preliminary plat.  There are some side issues that fall into the legal arena as to whether this is a legislative review or a quasi-judicial review. 

                        This ordinance grants the Planning Board more authority than it has had in the past and allows the Planning Board to make the decision as to whether that is appropriate or not and it could be conditionally approved or rejected. It eliminates someone bypassing the Planning Board and going directly to the Board of Commissioners.

                        Mr. Rush clarified that the town subdivision ordinance is primarily the approval of a subdivision and is an administrative exercise in that it only complies with that which is outlined in the subdivision ordinance.  If the Planning Board does not approve it, then the town board should not approve it either. 

                        Commissioner Farmer said the one change she sees is that the town board should not be getting plats in front of them that need conditional approvals.  The Board of Commissioners is no longer giving conditional approval of plats.  If there is a problem, they need to go back to the Planning Board.  Mr. Rush indicated that was correct.

                        Mr. Rush said it also clarifies that plats received by the town board should represent any conditions that the Planning Board places upon it.  It should be an updated version that comes before the town board.

                        Commissioner Marks asked for a correction in paragraph (5), Page 9 where is says one Board of Commissioners approved copy shall be, etc - - - she suggested it say “one copy approved by the Board of Commissioners - - - - “. 

                        Mr. Daniel commented on the underground utilities, and said when he contacted CCEMC, they informed him they have required electric underground utilities for the last 5 years.  Ninety-five per-cent of subdivisions have underground electric utilities in the past 5 years with the exception of two and both of those were in Emerald Isle.

                        Commissioner McElraft made a motion to open the public hearing on this issue.  The board voted unanimously, with a vote of 5-0. Motion carried.

                        There were no public comments.

                        Commissioner Farmer made a motion to close the public hearing and the board voted unanimously, with a vote of 5-0. Motion carried.

                        Commissioner Farmer made a motion to adopt the Ordinance Amending Chapter 18 – Subdivisions – Regarding Sketch Design Plans and Other Miscellaneous Amendments.

                        Commissioner McElraft had one problem with this ordinance in reference to the sidewalk issue.  She thinks that sidewalks should be done as one rather than piece-meal it by different subdivisions because she thinks it will be a liability to the Town of Emerald Isle if someone is walking on a sidewalk and all of a sudden has to go out and walk on the street because there is no sidewalk.  She is aware that the town is working on sidewalks in the commercial area but she is concerned that until sidewalks are installed in the whole commercial area, there are going to be problems with it. 

                        Commissioner Farmer commented it would be nice to be able to do sidewalks in Emerald Isle all at once but it is going to be piece- meal for a while but the Highway 58 Committee is working for that grant right now.  She feels if individual subdivisions put in sidewalks as they go, it would be less of a burden to taxpayers. 

                        Commissioner Eckhardt said Art Daniels has pointed out that sidewalks seem to be step-children in any development but he thinks this is a start and he thinks the town needs to accept some small degree of liability in this case to get sidewalks started.

                        Commissioner McElraft said another problem she has is, when the Bell Cove project is looked at, if the sidewalks have not been put in at the time that road is, you take all the flexibility away from the people who are developing that.  They may put an impervious sidewalk there and maybe the new developers would like to come in and put a sidewalk made out of wood.  She feels that if the flexibility is taken away from the development of these properties by making sidewalks go in the same time as the road, true flexibility is taken away from good things that could happen with that property.  She would not mind seeing the developer putting money in the town sidewalk program so it could all be done at one time.  Making sidewalks go in at the same time as the roads in the subdivision ordinance is the wrong way to go about it.

                        Commissioner Marks commented it would be cheaper to go in at the same time of the roads.  It does not say the sidewalks must be along beside the roadway.  In Bell Cove, the developer will have the option of having sidewalks going in from one business to another.  All it says is there will be a separate walkway for pedestrians, which is desperately needed.

                        Commissioner McElraft said if this part is taken out she will be all for it but for that one reason, she does not support it.

                        Mr. Rush clarified for Commissioner Marks, this ordinance requires construction of sidewalks in the right-of-ways.  If there are additional sidewalks on the individual parcels, it is something that would be handled at the plan review date.  This ordinance deals with sidewalks in the right-of-way.  They could come back and put in additional sidewalks on individual parcels.

                        Commissioner McElraft said she would not mind passing it without the part requiring sidewalks and going back and working on that part. 

                        Commissioner Farmer said there are people walking along side of the road now and she would rather them have a little stretch of sidewalk to walk on for a while and keep them on pavement.  She is happy with it the way it is.

                        Commissioner Messer asked about the possibility later when the actual building starts if some of the sidewalks would have to be torn up to make some changes that were made or do a driveway?  Mr. Rush thought that possibility exists and hopes the developers, when they do the individual lots, they would try to minimize the impact on their sidewalks.  This provision is a fairly standard provision in a lot of communities.

                        Commissioner McElraft suggested that situation would have occurred in Bell Cove because of the way they have resubdivided the lots.  Mr. Rush made note that they are still required in Bell Cove Subdivision to have sidewalks in the right-of-way.  When they actually build a particular building on a lot, they would be expected to replace the sidewalk in a similar manner.  The bottom line is they are required to have sidewalks in the rights-of-ways in subdivisions.

                        Mayor Schools called for a vote.  Voting to approve the Ordinance Amending Chapter 18 – Subdivisions – Regarding Sketch Design Plans and Other Miscellaneous Amendments were Commissioners Marks, Eckhardt and Farmer.  Opposed were Commissioners McElraft and Messer. 

                        NOTE:  This item will appear on the September Agendas for a 2^nd reading since the first reading did not receive 4/5ths vote. A 3/2 vote will be necessary for the 2^nd reading to pass.

ORDINANCE AMENDING CHAPTER 19 – ZONING – TO ALLOW DOG GROOMING AS A SPECIAL USE IN THE B-2 AND B-3 ZONES

a.      Public Hearing

b.      Consideration of Ordinance

BACKGROUND: The Board of Commissioners is scheduled to consider an ordinance amending Chapter 19 – Zoning – to allow dog grooming as a special use in the B-2 (Business-2) and B-3 (Business-3) zones.  This ordinance amendment was requested by a citizen, Ms. Beverly Beasley, who hopes to open a dog grooming business in Emerald Isle in the coming months.  A public hearing is required before the Board formally considers this ordinance amendment, and has been scheduled for the August 13 meeting.

Dog grooming operations are currently not authorized as either a permitted or special use in any zoning district in the Town of Emerald Isle.  The attached ordinance would allow dog grooming operations in the B-2 and B-3 zones if the applicant complies with eight additional conditions.  The most notable of these conditions are a prohibition on any overnight boarding activities, a prohibition on the storage of dogs outdoors, and a requirement to remove excrement from designated outdoor dog walking areas on the premises on a daily basis.  In response to concerns expressed at the Board’s July 9 meeting, the attached ordinance now explicitly includes a condition mandating compliance with provisions in the Town’s animal ordinance that prohibit loud and habitual barking.  The owners / employees of the dog grooming operation, and its customers, must also comply with all of the Town’s other animal ordinances, including leash laws, and the removal of excrement from public and private property.  Repeated violation of the Town’s animal ordinances, and/or failure to remain in compliance with the special use permit conditions would result in a revocation of the special use permit by the Town, and the shut-down of the dog grooming business.

The concept of the attached ordinance, and designation of this use as a special use with conditions was developed by Carol Angus, Planning and Inspections Director, and approved by the Planning Board by a 4-1 vote at its June 25 meeting. 

ORDINANCE AMENDING CHAPTER 19  - ZONING –

TO ALLOW DOG GROOMING AS A SPECIAL USE IN B-2 AND B-3 ZONES

1. Section 19-82, “Tabulation of permitted uses and special uses”, is amended to include “Dog grooming operations (25)” as a special use in the B-2 (Business-2) and B-3 (Business-3) zones.

2. Section 19-83, “Notes, requirements, and conditions for certain permitted and special uses”, is amended by adding a new subsection (25) which shall read as follows:

“All special use applications and special use permits for ‘dog grooming operations’ shall comply with the following conditions:

1. The applicant must submit a copy of the required professional certification for such use.
2. There shall be no overnight boarding of dogs permitted.
3. Dogs must be housed indoors; there shall be no temporary housing of dogs outdoors.
4. There shall be no outside displays, other than signs in conformance with the Town’s sign ordinance.
5. The applicant must comply with parking requirements in the Town’s parking ordinance.
6. The applicant shall adhere to all applicable animal ordinances of the Town, including leash laws, removal of excrement, and other provisions of Chapter 4 of the Code of Ordinances.
7. The applicant shall adhere to provisions in Chapter 4 of the Code of Ordinances that prohibit loud and habitual barking, and shall take appropriate actions to insure that loud and habitual barking does not create a nuisance for nearby property owners.
8. Excrement accumulating in designated outdoor dog walking areas on the premises shall be removed daily.

3.   The Town Clerk is authorized to number the section set forth above and insert the same as appropriate in the Town Code.

4.   This ordinance shall become effective immediately upon its adoption.  If any section, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance.

DULY ADOPTED THIS _________ day of  _____________, 2002 by a vote of

Commissioner(s)___________________­________________________ voting for,

Commission­er(s) _______________________________ voting against and Commissioner(s)__________________________ absent.

Carolyn K. Custy, Town Clerk, CMC

Attorney Taylor called the board’s attention to approve animals is recognizing horses, pigs, goats, etc.  Commissioner McElraft amended her motion to change the word “animal” to “dog” grooming to bring it back to it’s original form.  The board voted unanimously with a vote of 5-0.  Motion carried. 

DISCUSSION – EASTERN PHASE BEACH NOURISHMENT

            BACKGROUND: Coastal Science and Engineering (CSE) is finalizing the bid packages and contract documents for the eastern phase of the beach nourishment project.  There are several important issues associated with the bid packages / contract, and time has been included on the August 13 agenda for CSE, Town Attorney Derek Taylor, and Town Manager Frank Rush to explain these issues to the Board, and hopefully reach consensus on the strategies to address each of these issues, as well as any other issues identified by the Board. 

Tim Kana, Tom White, Town Attorney Derek Taylor, and Town Manager Frank Rush have had numerous discussions about the bid packages and contract terms over the past 3 or 4 weeks.  We have spent considerable time discussing various issues, most notably the following:  the timing of the bid process, availability of bond funds, easement acquisition / condemnation process, the structure of the bids, deadlines, liquidated damages, cutter-head vs. hopper dredges, tires, turtles, sediment quality, progress quantities, and Indian Beach's request to tag-on to our project. Attorney Taylor and Mr. Rush have also consulted with other parties to solicit their knowledge and expertise about these issues, including USACE attorneys, Tom Campbell, Tom Jarrett, Neil Whitford (Pine Knoll Shores/Indian Beach Town Attorney), Buck Fugate, and Rudi Rudolph. 

Mr. Kana, Mr. Campbell, Attorney Taylor, and Mr. Rush have all made a concerted effort to learn from the experiences of Pine Knoll Shores and Indian Beach last year so that Emerald Isle can have a successful project that is completed on time, on budget, and that will satisfy the community’s expectations.

Based on these discussions, and considering CSE's explanation of options and recommendations, Mr. Rush recommended the following strategies to address the various issues.  Attorney Taylor concurs with Mr. Rush’s recommendations.

TIMEFRAME / AVAILABILITY OF BOND FUNDS

CSE is planning to mail the bid packages to dredging companies by mid-August, with a mid-September deadline for dredging companies to submit bids.  That would then give CSE and the Town approximately 1 month to make a contract award and issue the notice-to-proceed (by mid-October), thus leaving approximately 1 month for the successful bidder to mobilize and begin work on November 16.  The first payment, for mobilization of equipment would be due on or around December 1. 

Town Manager Rush has been communicating with the NC Local Government Commission in recent days, and we have established October 15 as the sale date for approximately $9.5 million of the General Obligation Bonds authorized for this project.  (The total budget for the eastern phase is approximately $10.2 million.)  Bond proceeds will be available for drawdown approximately 3 weeks after the sale date, in time for the mobilization payment that is expected to be due on or around December 1.  Mr. Rush is recommending that the Board delay issuance of the notice-to-proceed until after the bond sale on October 15 to insure that the bonds will be sold at a competitive interest rate.  The balance of funds available for the eastern phase will be generated by the issuance of approximately $1,100,000 of bond-anticipation-notes in or around April of 2003, in time to make the final payments on the eastern phase and cover the engineering payments for the western phase / Bogue Inlet project. 

Mr. Rush explained that the reason for this approach is to keep the Town’s total calendar year debt issues less than $10 million, which will result in a lower interest rate.  Bond funds necessary to retire the April 2003 bond-anticipation-notes, provide funding for the construction of the western phase / Bogue Inlet project, and cover future environmental monitoring costs will be included in a second bond sale to be held in or around October 2003.

EASEMENT ACQUISITION / CONDEMNATION PROCEEDINGS

The Town is in the process of sending out the final reminder letter to the oceanfront property owners who have not yet returned the easements.  If the town does not receive signed easements from these property owners by mid-September, the Board of Commissioners will be asked to approve the condemnation of the necessary easements.  The process to condemn the easements is relatively simple.  The Board must determine which properties will be condemned, the Town must send an official notice to the property owners at least 30 days prior to condemnation, and if the easements are not granted by the end of the 30 day period, the Town can condemn the easements simply by placing a deposit with the Clerk of Court.  Because the nourishment project is expected to enhance property values, and the easement will not change the practical use of this property, a minimal or no deposit will be required, according to Derek Taylor.  The Town will have to pay a $65 filing fee for each condemnation, and we would obviously seek to minimize this cost.

It is hopeful that nearly all property owners will return the necessary easements prior to any action to initiate condemnation.  Attorney Derek Taylor and Mr. Rush will provide an update on our status at the August 13 meeting.

BID STRUCTURE / DEADLINES / LIQUIDATED DAMAGES

The bids would be structured such that the dredging contractor will be required to nourish a "base bid" amount of approximately 1.7 million cubic yards over a 4.4 mile stretch of beach from the Indian Beach town line west to approximately Matt Drive / Elizabeth Street.  This "base bid" would have to be completed in the winter 02-03 dredging season, with completion occurring prior to April 1, 2003.  The bids would be structured to include two alternate areas, the first of which might include a specified sand volume over approximately 2.1 additional miles west to approximately Craig Drive / Tracy Drive.  The second alternate would move further to the west, perhaps as far as an additional 2 miles, but this is highly unlikely.  The deadline for completion of the alternate(s) would be April 1, 2004, and the dredging contractor would have the option of completing the alternate(s) in the 02-03 or 03-04 dredging seasons.  If the dredging contractor chose to finish the alternate(s) in 03-04, there would be no additional charge to the Town for mobilization / demobilization in 03-04.  If the Town awards the alternate(s), there will need to be close coordination with Coastal Planning and Engineering (CPE) and the Bogue Inlet project to make sure that the boundaries of the two projects coincide in a cost-effective manner.  It is advantageous to solicit bids for the alternate(s) because the further west that we can take the eastern phase, the easier it is likely to be to accomplish the western nourishment / Bogue Inlet project.

The dredging contractor would be responsible for completing the work on time, or would be liable for liquidated damages of $6 / cubic yard that is not placed by the deadline.  (The Town also would not pay for the quantity that was not placed; i.e., the amount less than the 1.7 million cubic yards in the "base bid".)  The Town would grant time extensions for certain valid reasons (turtle down-time, tire down-time, etc.), and these time extensions would first occur between April 1 and April 15, possibly between April 15 and April 30 (if allowed by the permitting agencies), and then would extend into the 03-04 dredging season, with no additional charge to the Town for mobilization / demobilization in 03-04.

CUTTER-HEAD (PIPELINE) VS. HOPPER DREDGES

The Town would request two sets of bids  - one using cutter-head dredge(s) and one using hopper dredge(s).  The town will not have the permit modification in hand prior to soliciting bids, and will therefore request bids for both types of equipment.  CSE plans to submit the official permit modification request to the agencies within the next week.  There are advantages and disadvantages associated with both approaches, and the Town will need to weigh these prior to awarding the contract.  As mentioned above, the Town will need to award contracts by mid-October, so we'll need a relatively quick decision from the permitting agencies (within 2 months).  Anecdotal comments from the US Army Corps of Engineers (USACE) and NC Division of Coastal Management indicate that this modification should not be a major issue, however, we will not know what concerns will be raised until the formal permit modification request is submitted.  Tim Kana will be in a better position to address the status of the permit modification issue at the August 13 meeting. 

            Mr. Rush made note during the regular board meeting that Coastal Science Engineers has, in fact, submitted the formal Permit Modification request to the Army Corps of Engineers and the Division of Coastal Management.  It was submitted on August 9, 2002.

TIRES

Tires are only likely to cause downtime if a hopper dredge is used.  A cutter-head dredge is not likely to experience significant downtime if it encounters tires, however, the cutter-head dredge would likely leave chunks of tires on the beach.  The cutter-head bids would require the contractor to remove the tire chunks from the beach. 

For the hopper-dredge bids, CSE put forth two options for dealing with tire issues.  One option is to have dredging companies submit a "cost per tire encountered" that results in down-time, and have the Town pay that per tire fee.  This essentially places financial responsibility for tires on the Town, and would likely result in lower unit cost bid prices, because the dredging company would receive additional compensation for downtime caused by tires.  CSE and the Town would certainly provide the best available information about the location and absence of tires in the borrow areas to attempt to prevent this from becoming a widespread problem.

The other option is to simply make any tire-related downtime non-compensable.  This would eliminate the possibility of additional claims from the dredging contractor, but is likely to result in higher unit cost bid prices.  Again, CSE and the Town would provide the best available information about the location and absence of tires in the borrow areas to attempt to prevent this from becoming a widespread problem.  Hopefully this would give the dredging companies greater comfort and result in unit cost bid prices that are not quite as high as they might be with no advance information.

After considerable thought and discussions with others, it is Mr. Rush’s recommendation that the town make any tire-related downtime non-compensable.  This puts all the responsibility on the contractor, and gives the Town greater certainty at the time the contract is awarded that we will not have to "ante up" additional funds and/or reduce the volume of sand pumped in the middle of the project because the town has to compensate the contractor for tire-related down-time.  Town Manager Rush wants to make sure that we have nearly 100% certainty that at the time the town signs the dredging contracts that it actually gets the volume of sand indicated in the bids.  If it winds up being less than we're hoping for, Mr. Rush had rather know that up-front so that the community has realistic expectations for the project.

To be fair to the dredging contractor, tire delays would be eligible for time extensions, and would push the deadline beyond April 1.  This provision would limit the contractor's risk of paying liquidated damages.  We'd need to establish a mechanism to determine that downtime was actually related to tires.  

Tom White is considering the possibility of bidding the project out both ways so we can see what the cost differences would be.  It may be too confusing to bid it both ways, but he is considering that approach, and should have a better idea about this before the August 13 meeting. 

TURTLES

Cutter-head dredges are much less likely to take turtles, and if a cutter-head dredge is used this is not expected to be an issue.  Downtime resulting from the taking of turtles with a cutter-head dredge would be non-compensable.  This is not expected to have a significant impact on the unit cost bid prices because the chances of taking a turtle are slim.

For hopper dredges, downtime resulting from the taking of turtles would also be non-compensable.  Essentially, turtles would be treated in the same manner as recommended for tires.  The ramifications of this approach are similar; the dredging contractor is likely to increase his unit cost bid price to factor in this uncertainty, but the Town would avoid any future claims for downtime.  Again, this would provide greater certainty for the Town at the beginning that we'll actually receive the amount of sand for which we award the contract.  It would also keep the Town out of disagreements with the contractor over downtime compensation.

To be fair to the dredging contractor, turtle delays would be eligible for time extensions, and would push the deadline beyond April 1.  This provision would limit the contractor's risk of paying liquidated damages. 

There was some discussion about specifying that no dredging could occur when the water temperature exceeds 58 degrees.  This was considered as a way to reduce the chances of a turtle-take, but after additional consideration, we believe that this could have the potential to severely limit the dredging window, and therefore do not recommend this approach. 

Most everyone involved with the turtle trawling activities in Pine Knoll Shores and Indian Beach last year agree that the emergency turtle trawling was not beneficial or cost-effective, and our project would not include this activity.  Tom White is, however, investigating the possibility of a more sophisticated computer-monitoring program that is used by the USACE that may provide valuable data that could help to avoid turtle-takes.

SEDIMENT QUALITY / PROGRESS QUANTITIES

The quality of the sediment (percent mud and percent shell) will be monitored daily to identify any problem areas, and if necessary, make any modifications to achieve better sediment quality.  The quantity of the material dredged and placed will be monitored daily to insure that production is meeting desired schedules.  Tim Kana is still finalizing the results of the additional core samples, and can address the Board's sediment quality concerns at the August 13 meeting

INDIAN BEACH REQUEST

The Board received a copy of a July 22 letter from Indian Beach (INDIAN BEACH) Mayor Buck Fugate from Mr. Rush requesting that Emerald Isle (EMERALD ISLE) include Indian Beach within the scope of its project this winter to complete an approximate 2000-2800 ft. section of beach that was not completed in Indian Beach last year.  According to CSE's plan, pumping would begin at the Emerald Isle / Indian Beach town line, with an area directly west of the line (in Emerald Isle) nourished first.  The pumping would then move the opposite direction (east of the Town line) into Indian Beach to finish that 2000-2800 ft section.  The pump setup would then be moved further to the west in Emerald Isle, where a similar setup would occur, and so on.  This would mean that Indian Beach would be nourished prior to most of Emerald Isle.  Tom White has estimated that it would require approximately 150,000 to 200,000 cubic yards of sand to complete the nourishment of Indian Beach, and that the work could be done in about 7 or 8 days at full production.  The risk of this approach to Emerald Isle is that 1) it would take valuable time that may be necessary to finish Emerald Isle later in the winter, and 2) there is a risk of taking turtles for the Indian Beach section that could have significant ramifications on the Emerald Isle project.  The advantage to Emerald Isle is that Indian Beach would be finished up to the Emerald Isle border, and we would not have to taper our project, thus saving us some time and money and strengthening our project at the east end (no end losses because the Indian Beach section would act as a 'bookend' holding our sand in place). 

If Indian Beach is not completed at the beginning, and the project begins at the Town line and moves west to nourish Emerald Isle first, then it might be possible to come back to Indian Beach at the end if there's enough time prior to the end of the dredging season.  This would result in an additional mobilization cost of approximately $150,000 for Indian Beach that could be avoided under the approach described above. 

If Indian Beach is not completed first, Emerald Isle would need to taper its project into Indian Beach for a distance of up to 1,000 feet, with an average of approximately 35 cubic yards of sand per linear foot.  This would result in Emerald Isle pumping approximately 35,000 cubic yards of sand into Indian Beach that we would pay for (because Indian Beach offered to pay for the Emerald Isle taper into Emerald Isle last year), and this would cost us approximately $175,000 to do this.  If Indian Beach completed its project after ours is finished, the fact that ours was tapered would reduce the Emerald Isle volume requirement and essentially save them an equivalent amount of money.  These savings could offset Indian Beach's additional mobilization cost described above, so Indian Beach is facing the same cost regardless of the approach taken.

If Emerald Isle was willing to take the risk of Indian Beach taking a turtle or Indian Beach being done very slowly at the beginning, the Town could save approximately $175,000 because it would not have to taper; i.e., Indian Beach would pay for their own beach, and we'd begin to place 100% of our planned volume of sand at the Town line.

This is perhaps the most difficult issue that the Board will consider relative to the eastern phase of the nourishment project.  On the one hand, Emerald Isle may not be wise to give up the time or take the risk of a turtle-take in Indian Beach; that we should insure the completion of our project first, and then allow the dredger to return to Indian Beach near the end of the dredging season.  If Emerald Isle could be certain that Indian Beach would only take 7 or 8 days, and that they would not take any turtles, it would be my recommendation to direct the dredging company to complete Indian Beach near the beginning of the project.  Unfortunately, there are no guarantees on the time or the turtle issue.  On the other hand, completing Indian Beach will make our project stronger and reduce our tapering costs, and help our neighbor.     

Regardless of the Town’s decision on Indian Beach’s request, both Town Attorney Derek Taylor and Mr. Rush would prefer that Indian Beach enter into a separate contract with the dredging company.  If this proves to be too cumbersome and complicated, there should be an interlocal agreement between the two towns that is very favorable to Emerald Isle and relieves Emerald Isle of all liability associated with the Indian Beach section.

These are the recommendations for the major issues associated with the nourishment project.  For your information, Mr. Rush has attached a copy of Tom White's July 26 correspondence to him outlining these issues, CSE’s initial recommendations, and the Emerald Isle assessment of the advantages and disadvantages associated with the various approaches.  He has also attached a copy of Attorney Derek Taylor's comments (July 29), several of which are recommendations for additional protective language.  Mr. Rush has also verbally discussed my recommendations contained in this email with Attorney Taylor, and he concurs with these recommendations. 

Tim Kana and Tom White is in attendance at this meeting to explain these issues in more detail, answer any questions, and assist the Board in exploring other alternatives that you may want to consider.  The Board can certainly decide to take a different approach on these issues if you believe there are better strategies.   This is the largest project that the Town has ever undertaken, and possibly the largest that it ever will undertake, and it is important that the Board is comfortable with this approach to these issues.

It is hopeful that the Board will reach consensus on these issues at the August 13 meeting so that the bid packages can be revised accordingly and mailed to prospective bidders within 4-7 days after the August 13 meeting.  If the Board is able to reach consensus, a motion to authorize the solicitation of bids is the appropriate Board action at the August 13 meeting.

            DISCUSSION:  Dr. Tim Kana, Project Director started by saying the first thing to do is to go over the big plan.  He is here to address sediment issues and Mr. Tom White, Project Engineer is here to address the big plan.

            Mr. White said he is going to cover several topics quickly.  His preference is to give a very brief description as to how it stands and if there are questions on that topic he would take them then. 

            Mr. White indicated there is a base bid and two alternates that are in the plan.  The base bid is considered to be the minimum that would need to be done.  The base bid is specified to be done in this one dredging season this winter and ending April 1^st, 2003.  The two alternates are in there in case very attractive bids are received and it is desired to award more sand to cover more of the beach.  The base bid is in there to a certain extent for the west and then the next alternate takes over and moves further to the west and then the second alternate takes over.  Mr. White thought what people were going to be interested in is what streets these end at.  The starting point will be at Indian Beach and proceed with 82.6 Cu Yds per foot until 23^rd Street is reached.  Then the plan is to drop back to 58 Cu Yds per foot and proceed past the Point where Ocean Drive starts to have a cross street – almost to Connie Street.  After Connie Street it will be dropped to 35 Cu Yds per foot.  This will be in the bids.  There are iterations on the plans.  It is not known what the bid prices are going to be so always there is a re-survey just before the project starts and then based on the bid price, how much money there is, how sand can be bought and the change in the beach between now and November, will get adjusted.  The way these were arrived at is the same way it has been done for 2 years at Bogue Banks.  This is a base volume that get each profile up to the size basically of Atlantic Beach, plus a 10-year advanced nourishment for 10 years of erosion, so that 10-years after the project if the weather behaves on an average basis Emerald Isle should be back to Atlantic Beach size.

            Mr. Rush clarified the first phase of nourishment is approximately 4.4 miles, in the vicinity of Matt Drive roughly. 

            Mr. White said the next phase is between Fairfax and Clarke Street. 

            Dr. Kana emphasized the idea of having a base quantity is that it is related to how much is being demanded to be done at a minimum during the next environmental window.  It is known from experience at Pine Knoll Shores that they cannot pump 3 Million yards, but they can pump 1.5 million yards comfortably.  The alternates are added to that in the event that they luck out with the weather and have an efficient operation going on out there and the alternates would have a different set of penalities than the base would have. 

            Mayor Schools asked how many yards was that?  Mr. White answered the base amount is about 1.5 million cubic yards and each of the alternates is about 230,000.  The plan is to require that the base bid be done during this winter and the alternates could either be done this winter, if they have an efficient operation, or they are welcome to come back next winter. 

            Mayor Schools asked how much was pumped at Pine Knoll Shores and the answer was about 1.7 million.

            Mr. White said another reason for the adjustments he made and why he was changing the cubic yards per foot was because he wanted to keep the base bid very reasonable so that the dredgers could see there is a very good chance they would finish the base bid.  They would not worry about the liquidated damages so much.

            Commissioner Farmer commented the only thing that concerns her, as she is particularly surprised about 23^rd  Street would be is it possible to do the rest of the beach next year?  Mr. Rush answered the entire Phase I covers the area beginning at the town line up to Matt or Fairfax Street.

            Commissioner Eckhardt asked if the latest estimates on volume, 1.5 and 1.7, is based on the full volume Mr. White just did?  Mr. White confirmed it was.  Mr. White said one big change has been made since the last time numbers were run, because they have recent survey data now.  He has shifted the transition from the biggest until volume, the 86 Cubic Yds per foot and the next transition has both been shifted further east and the reason for that is that the central part of Emerald Isle is in better shape that it was 2 years ago when the profiles were measured.

            Commissioner Eckhardt asked if Mr. White sees like he saw in 2000 when it was acreating since 1999, is it still continuing?  Mr. White said there was two data points, 1999 and now.  The central part has acreated some and is healthier than it was 2 years ago.

            Mr. White moved to other aspects of the bid.  Discussion has been had about what type of dredge and currently they are planning on saying the bidders can submit two types of bids.  One for a shallow cut of sand in the ocean and one for a deep cut.  He said they are trying to keep everything as flexible as possible so that nice bid prices are received so tentatively, and if the board does not agree Mr. White needs to know so, the type of dredge is not being specified because some may want to use a mix of dredges.  They may have a hopper visit for a while but they have a cutter head here most of the time or something like that.  If there are environmental reasons that the board just insists it wants near zero probability of a turtle take, then it will need to be specified that the deep cut has to be done with cutter heads and that is a cutter head only bid, Otherwise some bids for hoppers may be received.

            Commissioner McElraft asked Mr. White if he has a “feel” for how the permitting is going for the cutters because that would definitely be her preference.  It would be cheaper, it doesn’t take the turtles and it can be done quicker.

            Commissioner Farmer said you have to worry about the sea temperature.  Mr. White also said there are pros and cons that have been discussed.  There will be mud and tire chunks on the beach with cutter heads. 

            Dr. Kana interjected he could not say for certain how the permitting is going to go but the folks at the Corps and CAMA have indicated they could probably do this with an informal consultation with the permitting agencies.  Now that the geotechnical data is present and a specific plan in mind, he feels it is consistent with what has been talked about approximately two months ago.  He hopes they don’t find any surprises.  Hopefully there will be pleasant surprises.  They are trying to keep it as simple as they can and provide enough detailed data that they (the permitting agencies) can make a decision. 

            Commissioner Farmer wants to make sure people understand that none of this is easy to do.  It is all trade-offs.  It is, if you go to the hopper dredge, holding off until the water temperature gets cool enough below 58 degrees, which could be December or January, or it is going with a cutter head and ending up with mud and tire chunks.

            Commissioner McElraft commented hopefully a lot of the tires have been located so that tire chunks will not be as big a problem as they were for our neighbors down the road.  She asked if a cutter was used and take a turtle, is the town exempt from the turtle taking of the southeast.  If somebody else shuts down while using a cutter, would Emerald Isle be allowed to continue?  Mr. White said that if they have cutter heads they are limited to the same number of 5 turtles, which should not be a problem with cutter heads.  This is something that neither Mr. White nor Dr. Kana has an answer to.  Commissioner McElraft said she would like for them to get an answer because if we are taking the turtle taking seriously here, yet somebody else is not and they shut us down like we shut the whole southeast down then even though we have chosen the right way using the cutter as much as we can – if we could get an answer to that would be better.

            Glen McIntosh from the Wilmington District asked what was the question again?  Dr. Kana restated the question.  If cutter heads are being used on this project and still subject to the turtle take restriction but if someone else takes the turtles to the point where the southeast is shut down does that apply to Emerald Isle if it has a cutter head operation or does that just apply to hopper operations?  Mr. McIntosh said it applies just to hoppers. 

            Commissioner McElraft said this is very important because we could have somebody else shut us down if we took that option.  She said, as Commissioner Farmer had said before, there are trade-offs.  You will have mud but that is what was pumped in using a cutter down at the Pointe and that mud washed away.  The tire issue – she thinks the Beach Commission is looking at a way to get tire chunks picked up, a rake kind of thing so if they were cut up, it would pick them up.

            Mr. White said if cutter heads put tire chunks on the beach they are going to be required, as they proceed in the project to be actively picking up the tire chunks.  Again, at the very end of the project, they are supposed to do the whole beach because the profile adjusts so that something that was buried might resurface.

            Dr. Kana said that tires have washed up on the beach during hurricanes and if you do enough digging you will find those tires periodically coming out of the sediments.  There will be a question as to if the tires were from the project or tires that the hurricane dumped.  If it is a chronic problem as a result of the tires you already have in there that is not really going to change as a result of this project.  It might prolong the time those get unburied but you may have some new ones too.

            Commissioner McElraft clarified that we would know if it was old tires because they would be cut up if done by a cutter.  Dr. Kana’s answer was “most likely”.

            Dr. Kana responded to a question from Mayor Schools about the depth of dredging.  He said they are told 5 to 6 feet for an ocean certified dredge.  Mr. White said hey can do a shallow cut but it is not cost effective.  What they want is 5 to 6 feet. 

            Mr. White went back to his question about the bids and dredges.  He noted that if they need to require that each type of bid use a certain type of dredge, the decision needs to be made.  It sounds like there are some reasons this is being specified.  If they brought in a mixture of cutter head and hopper, then again all of those turtle rules apply. 

            Commissioner McElraft stated usually cutters are cheaper.  The work faster and they do not take the turtles.  She feels the cutter should be used.

            Commissioner Farmer commented she thinks a big issue is that they will be able to start the project at the beginning as soon as that window is open and not having to wait until the ocean temperature is cool enough.

            Mr. White said they are not proposing that we wait.  Commissioner Farmer noted there has been some discussion among the board about whether it really wants to be using a hopper dredge when the temperature is warmer than 58 degrees.  Commissioner Farmer thinks it would be incredibly expensive and Mr. White agreed.

            Commissioner Messer asked if it could be specified specifically hopper use and at their discretion they could use cutter head.  Mr. White said if they are allowed to use their discretion, if the permit modification for allowing deep cuts is received and some dredger decides to do both types of dredges, if the southeast is shut down or if 5 turtles are taken by the hopper dredge, and you still have a cutter head, then they could continue the project.

    &nb