Commissioner's Minutes

January 14, 2003 Agenda
January 14, 2003 Minutes

Action Agenda
REGULAR MEETING OF THE EMERALD ISLE
BOARD OF COMMISSIONERS
TUESDAY, JANUARY 14, 2003
7:00 PM - EMERALD ISLE TOWN HALL

1. Call to Order
2. Roll Call
3. Pledge of Allegiance
4. Adoption of Agenda
   (Adopted 4-0)
5. Public Announcements
6. Consent Agenda
   1. Minutes of Regular Meeting – December 10, 2002
   2. Tax Refunds / Releases
   3. Resolution Authorizing Adjustment to Contract with EDA-Morehead for NC 58 Sidewalk Project
   4. Budget Amendment – NC 58 Sidewalk Project
   5. Budget Amendments – Police Beach Vehicle
   6. Resolution Authorizing Grant Application to the NC Division of Water Resources for Entrance Channel Dredging
   7. Resolution of Intent to Amend Boundaries of Primary Benefit Municipal Service District and Secondary Benefit Municipal Service District
      (Adopted with changes)
7. Public Comment
8. Parks and Recreation Trust Fund Grant Application
   1. Public Hearing
   2. Resolution Authorizing the Town Manager to Submit a Parks and Recreation Trust Fund Grant Application for Park Development at the Coast Guard Road Storm Water Site
      (Approved split vote 3-1, Marks, Farmer, Eckhardt For, Messer Against)
9. Ordinance Amending Chapter 19 – Zoning - Dunes and Vegetation
   1. Public Hearing
   2. Consideration of Ordinance
      (Split vote 3-1 Marks, Farmer, Eckhardt For, Messer Against - will be back for 2nd reading at February meeting)
10. Ordinance Amending Chapter 19 – Zoning - Regarding Building Offsets and Roof Lines
    1. Public Hearing
    2. Consideration of Ordinance
       (Approved 4-0)
11. Special Use Permit - Emerald Forest Miniature Golf
    1. Public Hearing
    2. Consideration of Special Use Permit
       (Approved 4-0)
12. Commercial Review – Emerald Forest Miniature Golf
    (Approved 4-0)
13. Ordinance Amending Chapter 4 – Animals – and Chapter 5 – Beach and Shore Regulations – Regarding Horses on the Beach
    (Approved 4-0)
14. Discussion – Flood Insurance Study Report and Flood Insurance Rate Map Changes
    (No action)
15. NC 58 Sidewalk Project Design
    (No action)
16. Discussion - Solid Waste Service Options
    (No action)
17. Biological Monitoring - Bogue Inlet Project
    1. Resolution Authorizing Amendment to Contract with Coastal Planning and Engineering
    2. Capital Project Ordinance Amendment
       (Approved 4-0)
18. Comments from Town Clerk, Town Attorney, and Town Manager
19. Comments from Board of Commissioners and Mayor
20. Adjourn

MINUTES OF REGULAR SCHEDULED MEETING
OF THE EMERALD ISLE BOARD OF COMMISSIONERS
TUESDAY, JANUARY 14, 2003 – TOWN HALL – 7:00 P.M.             Mayor Art Schools called the meeting to order at 7:00 P.M.  Board members present were Mayor Schools, Commissioners Messer, Marks, Farmer and Eckhardt. Other staff members present were Town Manager Frank Rush, Assistant Town Manager/Finance Officer Georgia Overman, Town Attorney Derek Taylor, Town Clerk Carolyn Custy, Parks & Recreation Director Alesia Sanderson, Inspections Department Head Carol Angus and Building Inspector James Taylor.

Absent was Commissioner McElraft due to a business conflict.  The board excused Commissioner McElraft by a motion made by Commissioner Farmer and the board voted 4-0.  Motion carried.

ADOPTION OF AGENDA

Commissioner Farmer asked that item 6f., Resolution Authorizing Grant Application to the NC Divison of Water Resources for Entrance Channel Dredging be moved to a spot on the agenda after item 8b.

Mr. Rush pointed out there were a couple of minor changes to the Minutes of December 10, 2002.  The Town Clerk has made those changes and a revised copy has been furnished to the board members.

Commissioner Marks made a motion to approve the Minutes of the Regular meeting of December 10, 2002.  Commissioner Farmer amended the motion to include the modified agenda.  The board voted unanimously with a vote of 4-0

CONSENT AGENDA

PUBLIC ANNOUNCEMENTS

PUBLIC COMMENTS

PARKS AND RECREATION TRUST FUND GRANT APPLICATION

There were no more comments on this public hearing.

Commissioner Eckhardt made a motion to close the public hearing and the board voted unanimously, 4-0.  Motion carried.

Commissioner Farmer asked if the town was going to run into the same problem that it ran into with CAMA where they are going to say “this is a road and we don’t fund roads”?  Ms. Sanderson answered “No we are not – not my opinion anyway”.  The authority could address it anyway it chooses but this is something that PARTF has funded in the past so she does not foresee this as a questionable item.

Commissioner Farmer asked if we were retaining the deck at the end of the pier, like a “T” for the future.  She asked how difficult would that be to put that in at this time and remove something else.  Ms. Sanderson answered there is a lot more expense involved that did not show on this budget simply because she did leave it for future development.  Working with Tim Reid, the engineer from Moffatt and Nichol, it was a lot more expense than she had anticipated in order to meet ADA specifications.  It would require a gangway and it would be around $30,000 to $40,000  to do everything necessary to construct that walkway in order to accommodate.  She felt it was best to provide water access first and then develop this for future use and stay within the budget that PARTF could fund a portion of.

Ms. Sanderson continued that one important aspect of PARTF is you need to provide three new recreational opportunities.  Putting the walkway in you are providing one.  We could say to cut the Picnic Shelter and put an extended area down there but then we are back to two because then the walkway and the “T” area are going to service one recreational opportunity.  This was her logic behind planning for the future.

Ms. Sanderson commented that in looking at the lay of the land she feels a natural access for nonmotorized craft can be provided just as it is at Cedar Street Park.  It is simply a pathway but it is narrow.  It won’t be as nice as the town would like for it to be in the end but it will be accessible.  There is always the possibility this walkway, which is 8 ft. wide, will be wide enough, even with the hand carrier, you could pull a canoe or kayak down and as wide as it is you could simply toss them over the side.   The water will be accessible to the public.  There is a two-year time frame to complete this park.  It is a little bit different in respect to their funding and if you are funded when the contract is returned, she could petition the town for the $250,000 and work can be begun and will have two years to complete it.  This would actually leave a two-year funding cycle within the development period to apply for this funding as well.  This is a 50/50 split where CAMA is 75/25.

Ms. Sanderson touched on the fact that inmate labor will begin on January 27^th and they will begin clearing the road way first.  It is most important to try to get the roadway itself open to the sound by the season.  The trails will be marked from there and the prisoners will come in.  They will work in two week time frame.  After that she would like to mobilize volunteers in the interim of these two week periods.  It will take at least three or four contracts of inmate labor to do what needs to be done in that area.

Commissioner Messer asked if the money for the matching funds would be borrowed money in addition to the project?  Mr. Rush said the town match will be $250,000 and it would be borrowed at the same time that the money is borrowed to finance construction of the pipes and pumps for storm water.  It will be financed over a 10-year period.  It has been based on a 6% interest rate the debt service payment will be about $278,000 a year for the entire project.  We have $250,000 earmarked in the current budget.  In the worst case, it will require around an additional $18,000 per year in appropriations and it may wind up being very minimal or nothing at all. If the town does get the grant it could depend on spending about $18,000 for 10 years.

Commissioner Farmer made a motion that the board adopt the Resolution authorizing the Town Manager to submit a Parks and Recreation Trust Fund Grant Application for Park Development at the Coast Guard Road Storm Water Site.  The board voted a split vote.  Commissioners Farmer, Eckhardt and Marks voted for and Commissioner Messer voted in opposition.  Motion carried.

RESOLUTION AUTHORIZING GRANT APPLICATION TO THE NC DIVISION OF WATER RESOURCES FOR ENTRANCE CHANNEL DREDGING

Commissioner Eckhardt asked, Mr. Tom Hoover who resides in that area, if the board decided that the alternative should be that the property owners fund the match, how would the town do that?  The town would have to access the property owners.  It would not be like, in other words when the town builds a walkway to the beach it was done within the community and then the money was handed over to the town.  Mr. Hoover replied it possibly could be done that way also.  He would think that accessing the homeowners would be more efficient.

Mr. Rush said that would be the fairest way.  The residents could organize themselves and then make a donation to the town for that purpose. 

Commissioner Eckhardt asked how would the town know the majority of the property owners would buy into that.  Mr. Hoover replied they would have to apply for a major CAMA permit and if the board approves to go forward for the grant money, a letter will be sent out to the property owners which will state the intent and they have the option of coming back and stating whether they like it or they don’t.

Commissioner Farmer commented she wanted to make it clear that she thinks this is what the town should be doing.  They should be going for grants to help out neighborhoods.  Her concern is while the town does have an easement, a walkway, which is essentially community property. The launching ramp has no parking. 

Mr. Hoover said the people living there could take their trailers and cars and trucks back to their property.  It is similar to the beach.

Commissioner Farmer had a concern about having it on the consent agenda.  She wanted to make sure that Mr. Hoover understood that was not a guarantee that the town would be paying for it.  Mr. Hoover indicated he did understand.

Commissioner Messer made a motion to approve the Resolution Authorizing Grant Application to the NC Division of Water Resources for Entrance Channel Dredging and that $6,000 match will be committed by the Town of Emerald Isle.

Mr. Hoover interjected that the funds can be collected from residents and given to the town so the town could pay the whole amount.  The town must administer part of the grant and that is part of it. 

Mr. Rush said the language that came out on this came from a suggestion of the Division of Water Resources and he feels if that language were removed, the town would not receive the grant. 

Mr. Rush said that language should not mind how the particular financing is done.  If the town accepts property there, it is still town money and it could allocate it even though the property owners are paying for it.  Commissioner Farmer said she just didn’t want them to come back and say “You said you were going to pay for it”.

Attorney Taylor said there is no commitment to making any financial resources under any of the three options. 

Mayor Schools called for a vote on the motion.  The board voted unanimously, 4-0.  Motion carried.

ORDINANCE AMENDING CHAPTER 19 – ZONING – DUNES AND VEGETATION

• The proposed ordinance has been slightly reorganized to provide for a better flow of information.

• Several sections have additional language to clarify the requirements of the dunes and vegetation ordinance.

• The proposed ordinance clarifies that the ordinance applies to all properties, both undeveloped and developed.

• The proposed ordinance makes it clear that normal lawn maintenance, replacement and relocation of existing shrubs, removal of weeds and other undesirable growth, removal of dead vegetation, and removal of vegetation less than 3 inches in diameter at a height of 36 inches are all exempt from the ordinance requirements.  No permit or approval is necessary for these activities.

• The proposed ordinance contains strong language prohibiting the intentional harm to vegetation to render it dead, therefore allowing removal without a permit.

• The Town’s current ordinance allows removal of trees with a diameter of 4’ or less without approval of the DVPO.  The proposed ordinance reduces this threshold to 3” in an effort to preserve more of the smaller, developing trees that will eventually grow into larger trees, and also to reduce the appearance of clear-cutting.

• The proposed ordinance seeks to minimize alteration to interior dunes to the maximum extent after considering practical issues such as setbacks, wastewater system requirements, driveways, and storm water systems.

• As is already required by the Town’s storm water ordinance, the proposed ordinance requires the submission of a topographical map with permit applications.

• The percentage of a lot or parcel that must be retained as “natural area” would increase from 45% to 50% of the lot with the adoption of the proposed ordinance.  Wastewater systems would remain as permitted disturbances in natural areas, however, the ordinance requires the wastewater repair area to be preserved until it is needed, unless the Carteret County Health Department determines otherwise.

• The owner of a lot or parcel has two options to meet the 50% threshold.  The simplest method is to retain 50% of the lot or parcel in its natural, undisturbed state.  The proposed ordinance does provide the option for the owner to temporarily disturb and then revegetiate 5% of the area of the lot in order to meet the 50% natural area requirement. 

• The proposed ordinance requires the use of retaining walls for slopes greater than 3:1.

• The proposed ordinance prohibits nearly all disturbance within the CAMA setback area.  The only disturbances permitted in the CAMA setback area are for water-dependent structures, for the installation of rip-rap or bulkheads, poisonous plants, and selective pruning (but not removal) of trees.

• The proposed ordinance prohibits the clearing of a lot or parcel prior to the issuance of a building permit.  Clearing of lots or parcels for marketing purposes or the installation of a wastewater system would no longer be permitted.  Minimal clearing and/or grading to secure a wastewater permit would be allowed, but not to construct the wastewater system.

• The proposed ordinance would require the site to be staked out to indicate the locations of natural areas, structures, driveways, wastewater systems, and other significant features on the lot before a permit is granted.

• The proposed ordinance contains very stiff penalties for violation.  A violation would subject the offender to a $500 civil fine, and also a requirement to restore the areas illegally disturbed.  If those areas are not restored in a timely manner, the offender would be subject to additional civil fines up to $5,000, in addition to having the Town restore said areas at the offender’s expense. 

• The proposed ordinance contains two updated appendices that outline suitable, native species to meet revegetation requirements.

•  The proposed ordinance seeks to minimize alteration to interior dunes to the maximum extent after considering practical issues such as setbacks, wastewater system requirements, driveways, and storm water systems.

These are the basic policy changes amended. 

      Commissioner Farmer made a motion to open the public hearing and the board voted unanimously, 4-0.  Motion carried.

            Mr. Guy Autorino 8611 Powell Drive, commented he has been a resident of this island since 1969.  He spent 30 years in the Marine Corps fighting exactly what this piece of paper is saying.  Telling him that he cannot do on his property what he wants to do.  It says Dunes and Vegetation but on the first page is says “all property”.  He does not believe anyone has a right to tell him what he can do.  In the ordinance amendment the board is saying if he puts a house on the property, they are going to tell him where to put it.  As long as he meets the criteria of the off-sets, the town has no right to tell him that.  It is his property.  He paid for it.  He bought it.  He said he does not come to these meetings and this is the first one he had attended.  It is because of this piece of paper he came tonight.  There is someone listed as DVPO.  KGB would be better the way this thing is written up.  Phase II the town is going to tell him that he has to move someone in his house because he has too much property.  This is something that has been in existence for a long time, and it is previous, and  the town has done nothing to help stop these people from clearing.  Now all of a sudden you are coming up with a bunch of bologna telling the small people they cannot do it. They cannot cut a tree down. Mr. Autorino said he does not believe this and he does not believe it is even being put out.  He noted he voted for the board to look after his interest and they are not doing it, not with this.  This problem existed before.  Mr. Bill McLean, went out on the Pointe in 1967 and cleared out all of the dunes so he could build houses and there was a loss of ¼ mile of road.  Mr. Watson tried to stop it.  The Building Inspector would not even go out there.  Now is the time to put a stop to it.  The town needs to rewrite this thing.  It is wrong!

Mrs. Mary Ann Smith, 10514 Island Circle, agreed with Mr. Autorino.  She has worked hard on her property and she does not think she has done anything detrimental, but for the town to be able to tell her what kind of trees she can plant.  Her trees are getting real big and some of the limbs need to come down because she does not want them to fall on her house.  She lives next to a beach access and she does not see the town coming out and doing anything at all to that walkway.  The neighborhood has to do it.  It is so overgrown now, you have to bend over to get through the beach access. She does not want to have to come and get permission to cut a Willow tree.  She does not know how long they will grow.  Mrs. Smith did agree the vegetation is needed for the island.  As she said before about the Christmas Trees, does that mean she cannot go out there and put her Christmas Tree to make a dune?  Does it mean she cannot take out a Yucca plant that has washed in and newly planted itself and put on her dune?  Mrs. Smith believes the board needs to think a little more about this.

Mr. Mark Reynolds, 134 Page Place, commented he pays 100% of the taxes owed on his property.  He does not like being told he can only use 50% of his property to do what he wants to and the other 50% he has to leave it to “you people” to decide to leave it natural.  If he wanted yard, he wants to be able to put a yard out there.  He owns two lots on Emerald Isle. One of the lots is completely wooded to where you cannot walk through it, but he has to come here to get a permit to plant grass on his property?  He thought this was wrong.

Mr. Emory Trainham, 7102 Archers Creek Drive, commended the board for what they have here.  From the comments received, he gets tired of people who own property saying “I own property and I expect to do anything I wish to do with it” with little consideration of neighbors or little consideration of what the island is supposed to look like.  Mr. Trainham commented it is nice to have Greensboro, Raleigh and Durham here on Emerald Isle but it is not Emerald Isle.  It is not what he came to live in.  Mr. Trainham has been a homeowner in Emerald Isle for 16 years and he just wanted the board to know he is supportive of what they have.  It has been a long time coming.  Again, he said he is tired of hearing people saying “I own this property and I want to do with it what I want to do with it.  Mr. Trainham asked, “How selfish can we be”?

Mr. Elton Matheson, 7008 Sound Drive in Archers Point, is tired of people telling him what to do with his property.  He has been on Emerald Isle for 15 years.  The property was developed responsibly and has already exceeded the town’s requirements including this proposal.  What bothers him more than anything else is the invasion into property rights.  He asked if it was necessary to do it this way.  He felt it really is not.  This is a very draconian ordinance that is being proposed.  It is probably not enforceable.  There is an authority granted by the State, G.S. 168 – 174 that is cited in the ordinance.  There are two points that have been missed.  The ordinance cannot infringe on him.  People are guaranteed not to infringe on the State or Federal Constitution.  The ordinance cannot interfere with existing State regulations like CAMA, which has been done.  Requirements are being laid on top of requirements in the same physical space.  This cannot be done.  The town does not have the authority.  The Constitution of the United States says people have a right to their property and he feels that should be respected.  The town goes way over the edge when limiting the size of parts that can be used.  That is ridiculous.  It is juvenile.  Mr. Matheson said, “You should be ashamed of yourselves”. “It makes no sense”. Mr. Matheson commented he still wants to know what the end gain is?  What is the objective?  Where are you going with this thing?  What is the outcome?  Does anyone know?  What do you hope to accomplish?

Mr. Matheson noted the town had an ordinance that protected the dunes and it was a good ordinance and it worked.  It survived 6 hurricanes.  The hurricanes blew down all of the pine trees.  Some of them hit his house and he is not going to plant anymore pine trees near his house.  The pines trees are being replaced by indigenous growth that has been here for the last 200 to 300 years.  The pine trees are not indigenous to this island.  They are crowding everything else out.  Nature is taking care of the problem.  It is happening every day.  Cedar trees and oak trees are replacing the pine trees because now they have a chance.  Mr. Matheson noted, “We just don’t need this kind of thing.  It is ridiculous”.  The State Constitution also prohibits this.  Article I, Section 5 says that every citizen in this State owes paramount allegiance to the Constitution and government of the United States and no law or ordinance of the State in contravention or subversion thereof can have any binding force. Mr. Matheson asked where the board stands on this thing?  He suggested that they go back to the beginning and start over.  This “one size fits all” ordinance is not going to work.  It is not enforceable. 

Mike Stanley, owner of the Bogue Inlet Pier, asked Mr. Rush a technical question?  He asked if you have to have a building permit before you can get a vegetation permit?  Mr. Rush said yes.  Mr. Stanley gave an example that he has recently purchased property on Sound Drive with the intent of building a house on one day.  However, he wanted to improve the property so he could put his boat there.  Does this ordinance mean he could not put anything there on the property until he builds a house on it?  Mr. Stanley felt this was not fair.

Carolyn Hargett, 123 Shell Drive, asked a question about Shell Drive.  123 Shell Drive is a fairly wide lot which she purchased a couple of months ago.  She was told, when she bought it, that she could not build another house on it but she could connect a duplex to it because it is wide enough.  The lot that is next to her house is absolutely terrible.  She asked if this was saying she could not clear that at all and clear enough for a connecting duplex.  She said there are dead trees and it was messed up during one of the hurricanes. 

Mr. Rush commented he does not know enough about her situation here but he would be glad to sit down with her and talk about it.  Mr. Rush said if she has a lot right now that has several dead trees on it, they could be cleared.  Nothing in the ordinance prevents the clearing dead trees.  She would not need a permit for that as long as the trees cut were less than 3 inches in diameter and dead trees.

Mr. Jim Heatherly, 8512 Woodcliffe Dr., agreed that some places on the island have storm water problems but he cannot agree that this ordinance provides the solution.  Most areas have vegetation cut back.  This ordinance appears to him to be an attempt to strike back at developers.  It is an unreasonable imposition on rights of the citizens to use their property.  Mr. Heatherly said that beauty it in the eye of the beholder and to some scrubs are beautiful and to others they are offensive.  Some places in the ordinance does not allow him to remove those offensive items.  They need not be briars and they need not in the ordinance to be offensive. Mr. Heverly referred to Section 19-376 goes into what he can build and where he can build it and how he can build it and has to do with the minimum disturbance of vegetation.  When Mr. Heatherly purchased his property he agreed to certain set-backs, sanitation provisions and he agreed not to harm neighboring property. That does not mean he cannot remove vegetation.  No removal of vegetation would harm his neighbors property. He should have the right as an owner to specify and to locate his home where he wants to without regard to vegetation.  Property is purchased with a vision of its use, a vision of where you place that house and a vision of what you are going to see when you look out the windows and not simply preservation of the trees on it.  Mr. Heatherly referred to 19-374 where it says that the DVPO has authority to attach provisions that he thinks or prescribes that will strengthen the property against wind and water.  Mr. Heatherly has no problems with wind or water.  There may be a problem on the ocean front. Mr. Heatherly feels a very broad definition of the word “dunes” has been taken.  As defined by Webster, dune is a pile of sand put up by wind and has nothing to do with what has been there for years.  Mr. Heatherly touched on a few other areas, such as set-backs, revegetation, restoration for septic tanks etc., and gave his feelings on them.  Mr. Heatherly does not agree with a lot in this ordinance.  Mr. Heatherly thinks the boat has been missed and he suggests going back and coming with something that would not infringe on people.

Mr. Heatherly also mentioned that his neighbor tried to get a tree cut and was not allowed to do that but if it falls on the neighbors house the town can expect to see the neighbor in court.

Mr. Gordon McAdams, 325 Loblolly Street, commented there probably has not been any ordinance the town has that has been anymore discussed, reviewed, and studied over the years as Dunes and Vegetation.  There have been a lot meetings, a lot of committees formed and a lot of controversy.  A perfect ordinance may never be achieved but he thought the one the town had was pretty close and pretty good.  He does not understand the reason for changing from the 45% to 50% rule.  If that rule had been in effect when he built his home, it could not have been build the way it was.  He can recall, over the years, a number of instances of where he felt that people in town had gone overboard in their criticism of certain things that were being built and three that had to be cut down in order to allow those things to be built.  The Food Lion at Emerald Plantation Shopping Center was a prime example.  When that site was cleared, initially some people in town went ballistic.  It was in the middle of an election and some were trying to make politics out of it but the bottom line is he has never seen a Food Lion with a tree growing up in the middle of it.  Shortly after it was opened, Mr. McAdams was in Food Lion one day and happened to run into one of the individuals who was most vocal about that center and about the trees that had been cut down in order for it to be built, but she was in there shopping.  Someone earlier has said that some of those of us who like to maintain some rights to do on our property what we would like to do, given certain rules and set-backs and zoning issues, are considered selfish. He guesses the public can put him in that category because he thought the Constitution of this Country guaranteed certain property rights to individuals.

Mr. McAdams continued that earlier Ms. Sanderson, Parks and Recreation Director mentioned, and this is not germane and he would have brought this up under the Parks Grant, but she mentioned that inmates were going to be arriving on the 27^th to begin clearing your park.  From what he understands here, you have to have a building permit in order to do any clearing.  He is just pointing that out.  He does not know what type of clearing they are going to be doing, but she had indicated they were going to be clearing for roads.  You are not building a structure at this point but it is a thought.

Mr. McAdams thought this ordinance is good like it is.  It should stay like it is.  There are probably some housekeeping and administrative things that maybe need to be changed but he is definitely opposed to going with the 50% rule.  He thinks this is going overboard.

Clint Routsen, 9721 Green Glen Landing, wished he could say this is his first time with this ordinance.  He continues to oppose the rewrite.  He appreciates everything the board has done with working with the Town Attorney and the Town Manager in relation to making modifications to the ordinance to make it at least a little more palatable than it was when it started.  With that said, Mr. Routsen asked to go on record as being opposed to it.  He spoke with Mr. Rush, Town Manager and offered some more revisions.  Mr. Rush said only one-half of what Mr. Routsen had asked for has been included in this ordinance.  Mr. Routsen asked that the board consider not enacting this ordinance.

Commissioner Farmer thanked Mr. Routsen for sitting through all of the meetings and giving his input.  He may not be happy with the results but the board did take him up on a lot of his suggestions.

Mr. Rush informed the board that most of the corrections were typographical errors or small clarifications.  The one thing that was added by Mr. Routsen’s request just made it clear that when you are calculating the area for waste water, that is not subject to the revegatation requirements.

Mr. Rush said a lot of hard work has gone into this ordinance revision and a lot of meetings were held.  The Planning Board felt this was the best way for the Dunes and Vegetation Ordinance to go.

Mr. Routsen implied this is just an example of when you need to stay in contact with what is happening in town.  There has been many meetings where the issues were addressed.  Unfortunately, what happens is when you show up at the last meeting, the one where the board is supposed to adopt the ordinance, “the ship has sailed”.  That is what is going to happen.  It is very unusual that the opposition this late in the game is going to change what the commissioners are going to do.  Mr. Routsen said, you need to get involved with the town at the beginning.  It was wise to read the paper or look at the website.

            Mr. Powell disagreed with Mr. Routsen and said the first thing he knew about this was in December. There was nothing at the beginning about this in the paper.  There was nothing in the Island Review.

            Mayor Schools said he was sorry Mr. Powell did not get the word.  Mr. Powell said nothing was sent out – and asked Mayor Schools if he sent Mr. Powell a letter?  Mayor Schools said he did not send a letter personally to Mr. Powell but it was in the newspaper and on the website.

            Commissioner Eckhardt made a motion to close the public hearing and the board voted unanimously, 4-0, with Commissioner McElraft being absent.  Motion carried.

Commissioner Farmer noted that someone asked why the board was doing this ordinance?  She said most of the calls and e-mails she gets are from people on Emerald Isle are about lot clearing and how much vegetation is being lost.  People may not be speaking up about vegetation tonight but their concern is definitely out there.

            Commissioner Marks commented this island is a very unique environment.  Most have come from other cities where there are creeks where water drains off.  This is a very unusual situation here.  It depends on the vegetation to maintain the stability of the island and grass is not the type of thing to plant.  She was very impressed when she moved here because the ordinance said you had to maintain 45% vegetation.  That has routinely been ignored for more than 20 years and there are lots that have grass planted from lot line to lot line.  Once a lot is opened up you not only affect your lot but other lots near by.  There is nothing in the ordinance that requires the planting of pine trees.  Commissioner Marks said all the board was trying to do was educate people on what type of plants and trees will grow on the island.  If all of the vegetation is cleared, eventually there will be no island.  That is happening now at Shackelford Banks in places where the vegetation has been removed and it is no longer suitable for habitation.  What we are trying to do is get away from having to have a $4.5 million storm water project because we have lost vegetation.

Commissioner Messer said he opposes the changes in the ordinance.  He felt the ordinance the town had before was perfectly all right.  From the first workshop he opposed it and he will not support it tonight.

            Commissioner Marks made a motion to adopt the Ordinance Amending Chapter 19 – Zoning – Dunes and Vegetation with the revisons that were presented.  The board voted, with a split vote, 3-1, with Commissioners Eckhardt, Farmer and Marks voting for and Commissioner Messer voting against.  Commissioner McElraft was absent.

NOTE:  This ordinance will appear on the Agenda for the February 11^th meeting for a second reading because it was not passed with a 2/3’s vote.

ORDINANCE AMENDING CHAPTER 19 – ZONING – REGARDING BUILDING OFFSETS AND ROOF LINES

            Mrs. Angus said this amendment is a clarification for the ability to be able to include porches as  offsets and that type of thing as a break in the wall rather than have to discount a porch.  Section 19-74.1 does just that.  Another change was from 40 feet in the long wall to 20 feet.  A change was made in this section deleting the portion of the ordinance that would provide for the town board to vary the terms of this ordinance.  That seems to be an issue that would be going to the Board of Adjustment.

            Commissioner Farmer made a motion to open the public hearing and the board voted unanimously, 4-0.  Motion carried.

            No comments were forthcoming from the public.

            Commissioner Marks made a motion to close the public hearing and the board voted unanimously, 4-0.  Motion carried.

            Commissioner Farmer commented when this ordinance was originally written it was to try to get away from the warehouse look that some of the buildings have.  It was felt that the offsets would help get rid of the box look.  There was one building that was passed, as it was not clear at that time what would happen to porches. 

            Commissioner Farmer made a motion to adopt the Ordinance Amending Chapter 19 – Zoning – Regarding Building Offsets and Roof lines. The Board voted unanimously, 4-0.  Motion carried.

SPECIAL USE PERMIT – EMERALD FOREST MINIATURE GOLF

            Mayor Schools asked for a motion to open the public hearing for the Special Use Permit Request for a Miniature Golf Course located at 8716 Reed Drive.

            Commissioner Marks made a motion to open the public hearing and the board voted unanimously, 4-0.  Motion carried.

            Mayor Schools continued that The Town of Emerald Isle Board of Commissioners has now opened a public hearing to review and take action on a Special Use Permit request. The Board of Commissioners, in reviewing this request, is acting as a quasi-judicial body and will base their decision to approve this request on the sworn testimony of the applicant, as well as local residents who potentially could be affected by any decision by this board in approving the submitted request.  Whereas, I frequently allow and encourage citizens to ask questions of other speakers, I will not be able to do that in this situation.  The commissioners however, will be able to ask each speaker questions as they wish.

The Board of Commissioners is concerned with ensuring that the proposed Special Use will adhere to the following criteria:

1. The request will not materially endanger the public health, safety, or welfare if located where proposed and if developed according to the plan as submitted;
2. The request is considered to be consistent with the Town of Emerald Isle Land Use Plan as well as the Town of Emerald Isle Zoning Ordinance;
3. That adequate safeguards do exist within the Zoning Ordinance to afford protection of surrounding property owners from any potential negative secondary impacts that may be generated by the proposed use;
4. That the proposed use will not impose an undue burden on the Town of Emerald Isle in providing essential services to the parcel where this use is intended to be developed, such as fire protection, police protection, and water service, and that the proposed use will not create a problem in the provision of these services to local residents.

Mayor Schools said, all individuals wishing to speak on this item need to be sworn in.  The Town Clerk shall swear in individuals who wish to speak on the issue, utilizing a basic oath such as: “I swear to tell the truth, the whole truth, and nothing but truth”.

      Town Clerk Carolyn Custy swore in Bob Cook, applicant’s agent, Mr. & Mrs. Rick O’Neal, residents of Reed Drive who is in close proximity of the proposed area, Mr. John McLean, Surveyor, Carol Angus Planning Director, James Taylor Building Inspector, Mary Smith, and Carolyn Hargett.

      Mrs. Carol Angus, Planning Director, was asked by Mayor Schools to present the overall case to the Board for review and the applicant and all other persons to present their facts to the board for consideration.

            Mrs. Carol Angus said the Emerald Forest Miniature Golf Project has been reviewed in the in-house technical review, and the Planning Board.  The project was recommended for approval in the Planning Board meeting, Wednesday, December 18, 2002, finding all conditions met.  The project is located East of the Pacific Store at the intersection of Highway 58 and Loon Drive.  I did have an overhead but there are some things on the table and I am afraid to touch it.  Would you rather we move them?  Mr. Rush said he would take care of that for her.  The project is located immediately East of the Pacific Store at the intersection of Highway 58 and Loon Drive and will only be opened through the tourist season.  It is a 136 x 250 foot parcel of land that is zoned B3, which is the town’s highest density in the commercial district.  They have attempted to retain the existing vegetation as well as adding considerable vegetation to represent foresting.  Because it is an outdoor amusement intended for commercial use, Section 19-82, Outdoor Activities, requires that the project has to be approved for a Special Use with the findings to be determined at this public hearing, one of these issues being the hours of operation.  It has been determined at the Planning Board level to close all operations by 11:00 P.M.  The project is located immediately adjacent to residential zoning.  The party owning the first lot adjacent as well as the Trustee across Reed Drive of a 17-acre tract have been notified of this Special Use request.  The Trustee of the 17-acre tract, also zoned B3, has responded that he is opposed to this use and his memo is enclosed. All conditions and additions to the map have been met and indicated in regards to the findings of the Technical Review, the Review Committee and the Planning Board. There are several issues that were of concern during the appropriate discussions.  These conditions are as follows:

(1)    The applicant shall be required to maintain 15-foot vegetative buffer along the entire Eastern property.  Any damage or destruction of vegetation, whether natural or caused by man, will require the applicant to revegetate the damaged or destroyed area in the manner prescribed by the Town DVPO for disturbed natural areas.

(2)    The applicant shall be required to submit a detailed foot-candle lighting plan indicating the dispersal of light on the property vindicating no more than 1-foot candle of light generated at all property lines.  The application shall be required to maintain this standard and actual operation in perpetuity. The applicant shall be required to utilize cut-off fixtures to achieve this standard.

(3)    The Miniature Golf facility shall close no later than 11:00 P.M. on any night of operation.  All lighting, with the exception of indoor lighting, which will be turned off no later than 12:00 P.M.

(4)    Any trimming, cutting or clearing of landscape material within the State Right-Of-Way of NC 58 must be authorized by the NC Department of Transportation and the Town of Emerald Isle Dunes and Vegetation Protection Officer. 

This Special Use will be valid for a period of 12 months from the date of approval and at such time, the applicant must file for renewal of the Special Use.  If any of the conditions of the Special Use or any part thereof, shall be held invalid or void and the permit will be Void and in no effect and the applicant will have to reapply. 

            Mr. Rush added that the conditions just read by Ms. Angus are at the Commissioner’s places on the board table. 

            Ms. Angus showed an overhead of the property and pointed out the location of the project, the location of the Pacific Store, the location of Food Lion and the location of the 17-acre tract of land that goes to the ocean, for the public and the board. She said this is the property that is being talked about.  Ms. Angus said letters were mailed to properties adjacent to the project and the one across the street were the ones letters were mailed to.

            Ms. Angus said this is an overall view, the parking area being on Reed Drive and the vegetated area along the side with lighting in this area and then down the side, immediately adjacent to the property there.  That will remain totally vegetated and there is an option for a 6-foot board fence for separation.  There also will be a cyclone fence for separation there.  There will be a handicapped space for parking here, dumpster, and the possibility of some additional overflow parking into the Pacific Store in the event it is necessary.  There are 20 parking places.  She said Mr. Bob Cook is here tonight if anyone has any questions and he does have something he needs to address.

            Mayor Schools asked Mr. Cook if he had a copy of the criteria and Mr. Cook answered “Yes” and asked Mayor Schools if he would like him to address those items?  Mayor Schools said that would be great. Mayor Schools said he does not think there is a need for a long explanation but whatever Mr. Cook has that needs addressing.

            Attorney Derek Taylor interrupted at this point and said some of the questions that have to be answered would be reasonable to get some sort of response from the town board on some of those.  In the Inspections Department opinion some of the criteria is met.  For instance does it meet with the town’s plan, etc. etc.  They are people that would be able to give testimony to that effect now or later, it does not make any difference.  If those issues are not addressed for some of the original criteria that we have read out loud then you can ask the Inspections Department.

            Mr. Bob Cook said concerns for the first criteria was materially endangering the public health, welfare and safety of the community.  After meeting with the Public Works, Fire Chief and Police Chief, it was determined at a staff meeting there is nothing, the way the property is designed, that would create any concern in this area and Mrs. Angus would agree.

            The request and consideration would be consistent with the Town of Emerald Isle’s Land Use Plan as well as the Town of Emerald Isle Zoning Ordinance.  Once again, this is a family entertainment.  It parallels the season that I feel is already part of the Emerald Isle process.  So there is nothing in conflict there. It was brought to our attention that there are no zoning ordinances violated or in conflict at this time.

            Mr. Cook said, as far as I know, the guidance of the Planning Department, we have met all of their requirements and submitted all of our writings that we need to have this Special Use considered and I think Ms. Angus will say that we have submitted everything in terms of those items.

            Mr. Cook continued that adequate safeguards do exist within the Zoning Ordinance to afford protection of surrounding property owners from any potential negative secondary impacts that may be generated by the proposed use.  I know we have some owners here who are concerned and I have listened to some of the concerns and some of the earlier issues that you folks dealt with and in a nutshell, basically when we design this, we want to design something that was indigenous to the area.  We wanted to do something that the area would be proud of and also wanted to save as many of the indigenous trees that were here.  There are several large old Live Oaks on the property and the design was actually incorporated into where these trees were located and in their spot elevations.  The large trees pretty much dictated the way the lay of the land went.  Of course, in this kind of business, it gave us the opportunity to do that.  We gave special consideration to our residential property owners, I guess on the East boundary.  We exceeded what we needed to do for a buffer and we feel by exceeding that and giving them the 15-foot buffer and keeping that natural that any negative impacts would certainly be enhanced by maintaining that buffer in that area.  The idea of the fence, everybody has different views, sometimes fences close you in.  After looking at the 15-foot property line, the fence is something that we are required to do, a 6-foot, an opaque fence, we would be more than happy to put that in if the land owner there would want us to do it.  Once again, it is a fence and we would like to give them the option, with your blessing, as to whether that fence would actually even go in or not.  We are protected on our side because we have a cyclone fence on a retaining wall where the mountain is.  The 15-foot buffer also gives us a little bit more control with our lighting.  I know lighting is a concern just as vegetation is and I feel we want to light up our property and no body else’s.  We are going to be sure to keep our light on our property because that is where we want it to be.  We want people to see our property and not anybody else’s.  You can see from the lighting poles that we have got some kind of pattern to make sure that the light does not project onto Highway 58 or to any adjacent properties.  Once again, that 15-foot buffer helps us with any back overspill in that case. So we feel that we have tried, either through design or through meeting with city staff to head off any negative impact that we might unintentionally or intentionally might have with any of our neighbors.  We want to have a good neighbor policy, especially the residential people on each side. 

            Mr. Cook said, “The final criteria that the proposed use will not impose an undue burden on the Town of Emerald Isle.  We have talked, once again, with the buyer and the Police Department and they have asked us to put some gates to allow them to have quicker access for emergency purposes so after a staff meeting with them, I think that we have pretty much filled that criteria also.  We are not going to put any undue burden on Police, Fire or any of the public utility people.  In regards to these criteria we feel that we have met this criteria and would like to be considered as an application for Special Use”.

            Mayor Schools said he would like to get some comments from others and then come back with some questions.  Mayor Schools asked Mr. Rick O’Neal if he had any questions or comments.

            Attorney Derek Taylor said, Mayor, there is another issue just to be brought up and I am sure he has probably thought about because of his answers to it.  There are considerations for outdoor amusements Special Use Conditions, which need to be addressed by the applicant as well.  They are listed in 19-83 Subparagraph 3 and the handout that I have got has those things listed so you should have one in front of you and it might be a good idea for the board to get answers to those questions.

            Mayor Schools said they have been read.

Attorney Taylor agreed with Mayor Schools but said for the record it might be a good idea for the board to make sure for their deliberations that these issues are discussed.  If you have any questions about what you see in front of you and to share with the group also because the folks may oppose this need to know what was said so they can address these issues. It has to be in a document and it has to be in Testimony as well. 

            Mr. Cook said, we might answer some of the questions I guess, when we go through this and perhaps it will even further give you an idea that we are considering neighbors.  We are not going to have any sound on the property, no sound amplification of any type.  We will once again close at 11:00 O’clock and the lights will be out by 12:00.  We will open up early in the morning but not before 9:00 O’clock.

                        Mr. Cook said, we talked about 9:00 O’clock and I talked with our owner and he said he would probably not  open until 10:00 o’clock so if this is a condition, I do not see that as a problem at all.  From what I understand, the town gets a little sleepy by 11:00 O’clock anyway and but it was felt that 11:00 O’clock would be our time. 

Mr. Cook said, pretty much what it dictates and I know she mentioned Myrtle Beach.  When your crowd dies down you close.  When your first nine holes are empty you close.  You do not stay open after a certain period of time.  But I think these guidelines are to insure our neighbors that we are not going to have people on that course at 12:00 or 1:00 O’clock in the morning, which in other areas you do see that happen but I mean that won’t happen here.

            Mayor Schools asked, Mr. O’Neal do you have some comments to make.  Mr. O’Neal answered yes.

            Mr. O’Neal identified himself as Rick O’Neal, 8714 Reed Drive.  He said one thing, I guess, you are talking about leaving the 15-foot natural and the 6-foot fence would be right here (made an indication on the map). 

Mr. Cook interjected split the difference, instead of putting it on the property line, perhaps putting it right there (indicated on map).  Mr. Cook said his opinion was to put it on the property line to close you folks in and it would be a negative impact.  Some people don’t feel that way.  To me it was whatever these folks want to do.  If you would like the fence closer here (indicated on map) now I can understand why.

            Mr. O’Neal said I would prefer that the 15-foot be natural and right there within 15-foot.  Mr. Cook interjected this is a retaining wall by the way.  I am going to put a cyclone fence on top of that.  Mr. O’Neal asked, do you understand what I am saying.  Mr. O’Neal asked, what do you mean by a cyclone fence?  Mr. Cook answered a link fence. Explain that.  Mr. Cook said, chain link fence.  Mr. O’Neal said, OK a chain link fence. 

Mr. Cook said, we are going to have a chain link fence on top of the retaining wall for our safety and comfort.  We feel comfortable about this barrier and anyone coming – we are not worried about that.  Mr. O’Neal said you are going to have a chain link fence down the whole side.  Mr. Cook answered, yes from here to here (pointing to the map).  Mrs. Cook asked how high up is this going to go and Mr. Cook answered it would be I believe 9 foot at its high point. 

Attorney Taylor said, for the purposes and so that everyone will know what is going on up there, and you folks have to make a decision, it would be good to point to the overhead.

Mayor Schools said, what he was going to do was after they got through with their discussion to get them to come around and point to the overhead.

Mr. O’Neal said there is another golf course within a quarter of a mile.  Is this consistent with the town’s policy.  Mayor Schools asked you mean planning?  Mr. O’Neal answered planning, yes.  Mayor Schools said I don’t think there is any restriction. They can be right next door to each other. 

Commissioner Farmer said, she supposes the argument that can be made is that we lost one at CVS.  Mr. O’Neal said, I understand they went out of business, I think.  Mr. O’Neal said the big question I have is the buffer zone of existing trees along my side sufficient.  I guess that is the question I have and the time it closes which you are saying 11:00 P.M. and opening at 10:00 A.M.  You said the lighting will not impinge on the property next to his property. 

Ms. O’Neal asked about how high the fence would be and Mr. Cook said it would be 9 feet here (referred to the map).  She said our property is not very high up and their bedroom window is going to be facing on this side where it appears to be there are some poles that they have got. 

Mr. Cook said 4 on this side are coming this way so none of it falls on your way.  The poles that are going to be going in your direction are this side of the property and these poles are going to light this area.  We are not asking anything that will light this area (referring to the map).

Mr. O’Neal said, You are saying the lights that are coming there are not going to be shinning on my property with an adverse effect, like coming through my bedroom window, shine on my deck, and light up everything.

Mr. Cook said “No”.  Once again, we have more light pole locations so we can spotlight.  We are not asking that the lights here to be lighting this area.  We have got lights there.  Light poles that are in this location (referring to a map) are to light this part of the property.  In addition to that, once again, the buffer is really going to help.

Mr. O’Neal said I agree with the buffer.  That is one thing I thought about coming here was that the buffer would be the most important thing.  I understand the reason for the Special Use Permit and the changes and all of that but I was just next door and I do not want anyone to harm my property.

Mayor Schools asked Ms. Angus to make sure that these conditions are attached.

Mrs. O’Neal said as far as the natural buffer on that side, due to the hurricanes, there was very little there  Mr. Cook said one of the conditions were in case that happens again, it is some kind of natural act wipes those things out we are going to be required to go back in there and replant.  Mr. Cook said the formula that Frank (Mr. Rush) mentioned before for very 100 square feet will have to have a tree and 4 shrubs.  Mr. Cook said when I drive by there I see a lot of Pine Trees and a lot of bushes.

Mrs O’Neal said we have trees planted on our side, yeah.  Mr. Cook asked was that years ago and Mrs O’Neal answered “Yeah”.

            Mayor Schools said the only thing he has been given was what has been quoted in the conditions.  Mr. Cook said it is for Mr. O’Neal’s benefit as well as mine to have the buffer in there.  I will be quite honest with you.  It is not just an issue, it is good to have that in there.  Mr. O’Neal said I understand, I was in the car business and I know exactly what you are talking about.

            Mr. O’Neal asked, Bob, right here, (referring to a map for the area) back property right there, there is not very much there because of the hurricane or whatever could you …… Mr. Cook, said you want some trees in there and Mr. O’Neal answered “Yes”.  Mr. Cook said one of the things we were told in a committee meeting was we were not to do anything but walk on that property, not to cut, not to plant or anything.  That came to us from the town. 

            Mr. O’Neal asked the town, can they put some trees there on the buffer zone.  Ms. Angus clarified, additional vegetation in the buffer area.  Mr. Cook asked if Mr. O’Neal feels they can satisfy him by going back to the 15-foot buffer line and go along that 15-foot buffer line with vegetation as opposed to going between because I think that is where the problem was; they not wanting us to plant anything in there that had been undisturbed.  We wanted to but once again our hands were semi-tied.  Mr. Cook said if you think we can go on that line, that 15-foot line and give you a line there, if you think that will be helpful, we can do that for sure.  Mr. O’Neal answered “Yes”.  Mrs. O’Neal said I think it would be helpful because a lot of vegetation is going to be cleared out when you fix the parking lot.  It will increase the noise level.    

Mayor Schools asked if anyone from the Planning Board would comment.  Brad Fischer came forward to be sworn in by Carolyn Custy,Town Clerk. 

            Mr. Fischer said the discussion was that it was natural area and trying to preserve the natural area.  I think that adding more vegetation to the area would not be bad.  Of course, once again, the collection of plants to use would be used. Mr. Fischer asked, you are talking now about actually planting closer now to the edge of the lot? 

Mr. Cook said I was trying to present a solution before the problem poped up; if we would be allowed to go within that 15-foot natural area if it would satisfy the property owners on the other side.  Perhaps if we went right on the 15-foot line and give them a tree line there, we would not have to intefere with the undisturbed, but just to satisfy them, I think it could be accomplished.  Mr. O’Neal said, “That will be fine with me right there”.  If you just put it on the property line and you would not have to disturb anything else.

            Mr. Cook said we are going to keep trees and all those Live Oaks they are going to keep but they are also planting additional  material on the proptery that is indigenous and will grow.  We will put an irrigation system down.  We are going to be putting material out there and we want it to survive.  If the Commissioners would agree to letting us go on that line.

            Mayor Schools said I do not want to put words in your mouth but you (Mr. O’Neal) would like them to put it on the property and he asked about putting the fence all the way.  Mr. Cook said I think they are talking about just this area where the retaining wall ends.  The retaining wall is here (referring to the map) and it ends and it kills out here.  This is the 15-foot undisturbed.  What they are talking about is us coming here (referring to map) and put a tree line right on the property line right here.  Put is on the 15-offset right through here.  Mr. O’Neal said that will be fine.

            Mr. O’Neal said all the natural vegetation comes right through here.  Mr. Cook said the reason he is asking is because all of the natural dies out right in here.  There isn’t hardly anything.  I think that is why you are requesting, is to go ahead and lets do that there.  If you (Mr. O’Neal) would like us to, and if they (the town) would let us we would probably go all the way back through here but basically, you are concerned about this area here (referring to map) where the natural vegetation dies out.        

Mayor Schools said the vegetation is not on their property line.  Mr. Cook said it would be right on our buffer line.  Mr. O’Neal said what is suggested is fine.  Commissioner Farmer said part of the retaining is not, right?  Mr. Cook answered “exactly”.

Mr. Cook said I guess we would look at the retaining wall being the 15-foot line and just taking it and extending it out to this area.  Mr. O’Neal said that will be fine with us.  Mr. O’Neal said if you have got a fence going all the way inside on the interior, is that correct?  Mr. Cook said that is correct.  That is to keep our people--- Oh yes.  Mrs. O’Neal said if the chain link fence there – and it is going to be how high? Mr. Cook said the fence would be a normal chain link fence 48” high.  Mrs. O’Neal said this is going to approximately 9 feet higher up on the property, kinda like the water amusement park’s chain link fence.  Mr. Cook answered Yes.  That is to keep our people on our property.  Mrs. O’Neal asked what about a little more privacy.  I don’t want to – that’s my bedroom, you know.  My bathroom is on that side as well as the bedroom.  The chain link fence will not hold back on the noise. 

Mr. Cook said we have an extensive landscape on this side and you are going to be – it is going to landscaped heavily as we can get it through there.  Mr. O’Neal said our house is higher up and I have a deck there where I can basically look over on the golf course and that is why the existing vegetation, the 15-foot there on the front side is probably adequate. 

Mayor Schools said we have been trying to get in touch with you.  Mr. O’Neal said I have been out of town and that is why you could not contact me.  Mayor Schools asked Mr. O’Neal what the biggest concern was.  Mr. O’Neal said the biggest thing is the buffer zone and noise and lights that would adversely affect us.

Mrs. O’Neal asked what about the property here.  Mrs. Angus said it should not change.  The zoning stays the same.  Mr. O’Neal asked you have been in the golf court management business for how long?  Mr. Cook answered he has been in the golf course business since 1989.  Mr. O’Neal said so you have adequately maintained your other golf courses.  Mr. Cook said they have won a National and local awards for their maintenance, those that he is in control of.  Mr. Cook said they did not want to see dinosaurs and space ships out there.  Mr. O’Neal said I don’t think the Town of Emerald Isle would have gone through the planning stage so it is probably OK.  The only thing is like the buffer, putting trees right through there where they were deleted by the hurricane or whatever, and leave everything else natural.  You have a chain link fence here.  I don’t know if a low fence is even enough to - - -

Mr. Cook asked is it possible that, and I don’t know if it is normal or not, but perhaps as we construct, before we get our CO, if he (Mr. O’Neal) decides he wants that fence somewhere between that 15-foot buffer and you folks ( the board) agree, I don’t know if you can do that kinda of thing but we would like to extend the option of letting him make that decision.  Mr. Cook said I think for me, and once again I don’t walk in his shoes everyday, but for me I know what it is going to look like.  I know what the buffer is.  I think the fence will be a fence, an additional barrier as opposed to the trees but I do not want to try to convince him.  I think once we get going on the project and you decide I have to have that fence put up we will be willing to put it up.  But on the other hand if you say I think this is going to be OK we would not like to be forced to put it up.

Mayor Schools asked is this something that we could put in there that gives the property owner the option to require a fence. Attorney Derek Taylor said, yes you can give some control over the process to the adjoining property owners and it seems like they are going to be cooperative here.  The towns objective is to protect the public interest, do everything they can with the application to get conditions that you want to place. I think the fence conditions could go to the property owners and the builders could work it out themselves and have shown the willingness to do so.

Attorney Taylor said the conditions you have here are designed to meet those criteria.  Where you put the divisions of labor in this thing is not as important as making sure the criteria are met.  The good part about dealing with it now is if there is any reason they don’t actually do what they said they were going to do here, it is not only a CO wager, you still cannot do it.  It does the use no good if they do not meet these conditions.  After a 12-month period, if any of these things have been violated and you feel that is not something you want there anymore because it has not been in the criteria or other problems that come up in the meantime, you can address it again in a1-year period. 

Mr. O’Neal said he was figuring Labor Day and it being a new business and everything.  The thing about the fence there, I agree.  That is the only thing that I have got any concerns about right now; prefer to put a fence or not put a fence.  If he goes around there and the vegetation and everything is in there and it looks great the way it is, I say “fine.  OK.  Don’t worry about it”.  Somewhere in the building process and we see that it looks good like it is, say no fence.  If we would like to have a fence, say yes a fence and that is it.

Commissioner Farmer asked is there any way we can say at adjoining property owner’s option.

            Attorney Taylor said I am going to give an idea. If you want to put that in there and you have cooperative parties, we will put that condition in there that the adjoining property owners will make a determination whether they think it is necessary to prescribe where a fence needs to be placed, that is fine.

            Mayor Schools said the conditions are (1) No music or sound amplification is permitted on-site, (2) The Applicant shall construct a solid 6-foot fence along, or within, the east buffer, if required by immediately adjacent property owners and (3) Special Use Permit shall b valid for a period of twelve (12) months.

            Attorney Taylor suggested that the applicants agree to place a fence along within the buffer area and to revegitate the buffer area where the vegetation is currently dying off.  The fence issue will depend upon whether the adjoining neighbor desires for it to be there or not.

            Carolyn Hargett lives across the street and I know you said the person who owns the property right beside her is considered across the street but her property is also right across the street, once I can clear those trees out, if I ever can.  My concern, one would be, of course, lights on her property as well which is across the street.  So that is my concern as far as lights coming my way.  I walk from Kelsey’s  at night so quite frankly I enjoy the lights on main street  As far as shinning on my property that will be an issue. 

            Mr. Cook said we should never get that far.  Ms. Hargett said that was fine but keep them on the street so she could get through there.  But the other issue was trash.  How are you going to handle this, the town picks up the trash on the streets, but as far as people in your parking lot, how are you going to handle that in your parking lot. Are going to keep that that clean, at least the front.  Mr. Cook said we are a service industry with needless counts and he cannot imagine this would be a problem. He said when we leave it, and we are going to be for a couple of weeks after the project is completed, it will almost look like Disney and we expect that to be maintained.  Mr. Cook said he does not see anything here that would be a problem.

Attorney Taylor said the board members should ask any questions they need to ask to get what they need out of this public hearing to make the determination they need to make and then there will be other periods of time when you will be able to discuss amongst yourselves, your feelings about this particular application when the Public Hearing will be closed.  If you feel it is necessary the applicant or anyone else would like to have a summary statement that is basically a summary of what they have agreed to do and what, if anything, they feel is something important for your consideration, that would also be appropriate before you close the public hearing but you will have time at the deliberation to ask questions and to have questions if you have any.

            Commissioner Farmer said she does not really have a question but she has to say she is concerned about how late this is staying open because you are right next door to a neighborhood.  There is something in there that says if it turns out it does fall off your property, it has to be fixed so that will solve some of the problems but it will not solve the problem of noise I don’t think.

            Mr. Cook said we do other amusements other than miniature golf, in a lot of places, is very low noise.  It is not like that of Go-Carts.  There is an occasional yell or scream but it is not like the kind of thing that is a constant sound.  Once again, when the town is busy with people and there is people on the highway shopping is when this will be busy.  People usually go after they have dinner.  You folks are not cursed with nightclubs and bars on every corner like a lot of areas that are developed.  The point being is we watched this beach and at a certain time it is a family stop and you get the guys drinking and looking for a good time.  I don’t see that happening here because these don’t jump from one to the other and even though we have 11:00 and 12:00 with lights off, from past experience of 20 years in the business, it not like we are gang busters loud noise at the end of the night.  Usually by the end of the night you are winding down and the noise peak is during that Peaking time, between 7:00 and 10:00 when the most of your people are there.  It kinda of winds down.  That is when you will close.  Our rules are first 9 holes are empty, we close at 10:00 instead of 11:00 o’clock.  I really, being involved with this in the past with businesses of miniature golf, it is pretty low in terms of noise.

            Mr. Cook said we have no sound or amplifications. No music or anything like that.  The only sound will be a rushing waterfall or water going through the creeks in the forest, etc. 

            Commissioner Farmer said I actually have a question of the Town Attorney or the Town Manager.  If down the road they decided they wanted to add some piped in music, would that require another permit or do we need to stipulate here, no piped in music. 

            Mr. Rush said the application they submitted does indicate there will be no music.  Attorney Taylor said there is something in the application that we were looking at before.

            Commissioner Farmer asked what would they have to do to change that?  Attorney Taylor said they would have to get permission from the board or they would be violating their Special Use Permit.  It would essentially allow the town to shut them down because of the violation of the Special Use Permit.  Commissioner Farmer asked even though it is not one of the conditions?  My concern is once you have built this thing.

Mr. Cook said put stronger language in here with no sound. We will have no problem.  But I think you need to have some other avenues.  Every year I think we have to go through the Special Use Application over and over again.  Don’t they have to review and we have already agreed not to have sound, I see a built in deterrent or a built in check.  If they decide in 10 years, and I am gone, that they want to put sound in there, they go for the review for 5 years, and they have got sound, you can shoot them down.

            Commissioner Farmer asked how difficult would it be to just say – Attorney Taylor interjected how about there will be no music or sound amplification.  He asked is there a problem with that.  Mr. Cook answered “No problem”.  Commissioner Farmer said it has been said that people are quiet when they play miniature golf.  Personally I have never been quiet.

            Attorney Taylor said the natural voice issue should be OK for the bulk of the thing but you don’t want speakers on all of the light poles with announcements and music playing.  Commissioner Farmer said it tends to be louder if you are up. 

            Mr. Cook said initially when I was doing the take-off on the project, I thought it would be really neat to pipe in crickets and birds, like a forest but after reading your ordinances and talking to Carol (Ms. Angus) I don’t even want to approach that topic.  Attorney Taylor said as long as the crickets will hum you will do all right.

            Mr. Cook said really folks, there is no sound going in and for neighbors we don’t plan on putting any sound or music and I know some courses do and it is tacky.

            Commissioner Eckhardt questioned the opening and closing saying closing at 11:00 and lights out at 12:00 and asked if that was consistent with the other concessions we have in the area?  I think the 11:00 stuff was made as far as, in other words, no more activity.  I guess the thing that surprised me was lights out at midnight.  Ms. Angus said to tell you the truth, I would prefer to see gates closed at 10:30 and lights out at 11:00. 

Mr. Cook said the difficult thing about that, I can see where you are coming from, is what we did when we discussed these times.  Many years of business, 11:00 you are not rushed but if someone comes in at a 10:45, you do not want to turn them down, you don’t want to rush them but you do want to let them know we have a curfew and the lights have to be out by 12:00. Two people can take 20 minutes to play 18 holes.  Two people can take 45 minutes to play 18 holes.  If they are a young couple, they can take an hour and 15 minutes but there is no way that you really know, and I think what we were trying to do was to say “Hey we are not going to take any more customers after 11:00 and anybody else that is out there, we are going to say, you have time to complete your round.  Ever now and then I might encroach my curfew but it will be so rarely, sometimes someone will be slow and you cannot push them and then all of a sudden they would say why did we pay our money.  We want to get them out but we do not want to push them. I think that is why that gap is in there and once again, from what I have heard about the town, I would be surprised, and of course you cannot go to the bank on this, but it has been my experience that this is not going to be closing at 11:00 and shutting lights off at 12:00.  Maybe midseason but the majority of times we will be closing at 11:30.

Commissioner Eckhardt agreed and said I don’t want to see you push anybody but the lights out at midnight, is that consistent with others..

Mr. Rush said I don’t know about what the operation time is for the Lighthouse Golf Court and perhaps Carol (Ms. Angus) does. 

Commissioner Eckhardt said really the thing that stimulated that was the lighting and I am glad you addressed the lighting but when I counted up the watts I came with 23,000 watts of light and that did not include any of the building lights or the sign lights.  I went back over to the small course that is not functioning behind CVS and they didn’t seem to have the same saturation of light.  They have the box light like I assume you will be using and there was another word that I didn’t understand when discussing the lighting, but I think I heard someone mention box lights, which shine the light down.  Mr. Cook said these are stadium lights.  These aren’t box lights.  Commissioner Eckhardt said that concerns me even more.  When I consider 43,000 watts of light, that concerns me.  I don’t know if we can even address it here to tell you the truth.  But that is the thing that I am concerned with 12:00. 

            Mayor Schools said number 2 (condition) says “one foot candle of light at all property lines”.

Mr. Cook said that is a mouth full right there. But not allowing us to have more than one foot candle light on our property line.  Our concern is that we have to have enough light out there for safety and of course that is anywhere from 12 to 15 candles and as you get back into the parking lot and get to the perimeters of our property, the lights are going to be less and less.  We don’t want to light the area around it. We are going to light a lot of the older trees.  You can’t access those threes and your waterfall if you are lit up like those to begin with.  What we have done is we have submitted a plan showing the location of our light poles, where we are going to basically project those lights.  We will show the exact candles and are going to adjust.  We might not need as many fixtures.  I over did the fixtures because I wanted to make sure to show any potential place we could put lights, showing here is where it is going to be.  We are going to use as many poles so we don’t have to require this pole to light that area.  You want to light a specific area.  We are going to use substantially less fixtures to get the amount of lumens that we need.  I didn’t want to give you a lighting plan that was less, I wanted to give you the optimum.  In other words, I wanted to show you all of the possible areas where the light was going to be projected so you can see where our concerns were.  The only area that really concerns me is the area that is going toward the residential section here. We have a pole here and here and here to light this area.  We have poles here that are going to light this area ( referring to the plans).  They say that 70 feet is the optimum range if we angle these things.  70 feet is going to put that pole that is here right on this tree line here and we really don’t want to light up these properties and we don’t want to light this up where we can’t access the features we have.  We do have a lot of features. 

            Commissioner Eckhardt asked, So the single lumen is part of the Special Use Permit?  Mr. Rush interjected, that provision was recommended by Michael Harvey.  Our ordinance does not require anything specific about the lighting plan.  Prior to the lighting plan we were receiving some measurable standard that we were addressing about lights.  This one-foot candle standard is a common one used in other communities and was recommended by Michael Harvey to apply to this situation. I don’t know much about foot candles myself but it looks standard as measurable and is commonly used in other communities.  Simply, if the board adopts this condition, we would not issue a building permit until sometime they submit a lighting plan that meets that standard and by someone who is familiar with foot-candles. 

            Mr. Cook said, one-foot candle is about pre-dark.  In parking lots we like to see 3 to 5 and the least we like to see in a parking lot is 3.  It is getting to the point where you’re not even adding any light.   That will give you some idea.  That one-foot candle is nothing on this property line.

            Mr. Eckhardt said, good luck because I don’t see how you are going to do it to tell you the truth.  Mr. Cook said we are over located and the reason we have so many pole locations is because we are going to locate them down right at a certain spot.  We are not going to ask these poles to light something 40, 50 or 60 feet away.  They are going to be projecting straight down and we have located those things paying particular attention to overspill.

            Commissioner Eckhardt said I couldn’t find in here how high the poles were.  I was comparing other poles in town.  Mr. Cook said we go as high as 30, how big is this park, 20 to 30 feet depending on where they are.  Most of them will probably come in at 25 feet.

            Commissioner Eckhardt said, one other item.  On the fencing now, when I looked at the original plan I thought it was solid fencing all the way around.  In other words, on the O’Neal side and yet when I go back to the fencing plans, it seems like it is cyclone fencing.  I didn’t understand that.  In other words it seems to be depicted as solid fencing.  Mr. Cook said the solid fencing is supposed to go between two properties.  That was the solid 6-foot fence.  Commissioner Eckhardt said yet that is not specified on your fence and sign plan.  It is a cyclone fence on your fence and sign plan.  Mr. John McLean, Surveyor, said I believe the discussion was it would be a retaining wall with cyclone fence if it became an issue and the owners next door wanted it.  We put it on there because we can always not put it on there, but if we don’t put it on there, we won’t be able to. 

            Commissioner Eckhardt said, I like it at the owner’s option, by the way. I think that is the one it should be.  I mean at the residential owner’s option.

            Commissioner Marks said, I wonder if the lighting for each pole was on a separate switch and when he starts closing time would it be possible, when there are one or two, to shut off the lights behind them.

Mr. Cook said he never gave that any consideration but something that we do at our place; in some areas you can’t but there are some areas you could close and I also tell the public that we are closed.  We put our big sign lights out and then as soon as they get off hole number one I turn that pole light out.  That is the way I do things.  Once again folks I understand the lighting concern and the staff and Planning Board that I have met with have beat it into my head and I know that we have got to satisfy them in terms of getting this project through.  We are going to have to present it because we don’t want to light other peoples property but we want our property to be safe, we want it to be lit, but we don’t want to over light because we want to ask everybody.  I understand this is a thread that cuts through a lot of items here but they are not going to give us the building permit until I submit that particular photometric  plan which we will do. 

Commissioner Messer asked the question “Did your board tell them they could not plant any more trees on that barren area.  Mr. John McLean said we were told if we went out and plundered that 15-foot barrier, it was not natural anymore.  We had to leave that alone.  Mr. Cook said there were some other concerns about areas we had to incorporate to get our 15% natural and I like to frame my property using natural things and when I brought that up half of the group said that was a great idea and the other half spoke up, unnatural, that is an area you cannot disturb.  We would be willing to do more landscaping of some of those areas but it really wasn’t clear and I don’t think anything was said but I think coming out of the meeting, it was like you cannot touch it.

Brad Fischer said, people wanted to know how the ordinance stated, and we were trying to work within the confines of the ordinance and at the same time allow building what they wanted to.

Commissioner Messer said, heaven forbid after the Dunes and Vegetation Ordinance is approved, we will get somebody for planting a tree.

Commissioner Farmer said I have one additional concern, which is storm water, which is always a thorn in Emerald Isle.  Parking lot – does it have some sort of plan?  Mr. John McLean said it has an infiltration base, which is a grease and oil sand separator before it goes into that and if I am not mistaken, there are three pipes that are buried in a rock envelope such as you have seen in other places.

Commissioner Farmer asked how difficult is it to put, I know it has a sprinkler system, a rain gauge on that.  I know you can do it for residential.  Can you do it for commercial or do they not work?  Mr. Cook said it is not difficult to do.  Your gauge has to be in an optimum situation.  Commissioner Farmer asked do they work.  Mr. Cook said yes they work.  He asked are you concerned about over watering areas?

Commissioner Farmer’s answer was “Yes”.  Mr. Cook said I doubt if the project would be over watered but I understand your concern. Are you looking at the resource of the water, is the resource or over watering?

Commissioner Farmer said all of the above.  Mr. Cook said he really can’t address that. Once John (McLean) got involved it went way over my head. We do have an irrigation system and we do irrigate the shrubs and grass frequently.

            Mayor Schools asked for any more questions.  None were forthcoming.

            Mayor Schools said the next step will be the closing of the public hearing.  He said if anyone wants to make any additional questions, now is the time, because once the public hearing is closed that ends comments and questions.

            Mr. O’Neal came forward and said the closing I understand is 11:00 and lights off at 12:00?  Does that mean all the big lights stay on until 12:00?  Mr. Cook said if nobody is there at 11:00 o’clock when they close, the lights are going off.  That one hour is just a grace period for anybody that might come in at that particular time.  There is no magic – I wasn’t aware of any other restrictions placed on any of the other businesses in town.  It just seemed like a common sense situation which you have to give the guy time to accomplish it but I am like a restaurant.  If they come in at 11:00 you have to give them time to finish but there is no reason to keep the lights on at the course.  I think, but I am not sure, you know when is your peak season here, we are talking about peak season weeks.  You have 6 or 8 of them, I don’t know.  Those will be the weeks when the 12:00 lights out would probably be tested, which might be 6 weeks out of the year and it becomes less and less.  You might be looking at maybe one month or a month and one half with that 12:00 shutoff.  I am not even sure that is going to happen but I can’t say that it is not.  It looks to me this is a reasonable and manageable guideline, especially since we are going to be trying so hard to keep our lights on our property.  If we do that job and there is no noise, I don’t see where the concern is going to be going onto the adjacent lines. We do our job to keep the light there, which we will end up doing.  Whether it is 11:15 or 11:30.  Once we get that project finished it would seem to me 12:00 is a reasonable time for those lights to be gone as well. I don’t think it is going to be every night that they are on.  I honestly don’t. 

            Mayor Schools asked what is your opinion of a reasonable time?

            Mr. O’Neal said another Council member brought it up. I don’t really know what is consistent with Emerald Isle when you turn the lights on or when you close a golf course and you turn the lights off. I was under the impression it was 11:00 that they turn all the big lights off and 12:00 they turn off the secondary lights or whatever.

As long as we do our job and keep the light on our property, I don’t know.  I understand you are next door and you are concerned but if we don’t over extend our borderline I don’t see any light going over to your property. 

            Mr. O’Neal asked, what about the mikes and all of that?  When you are going to do that. Mr. Cook said during the daytime.  Mr. O’Neal said you don’t do it when the lights go out do you?  Mr. Cook said it was just a warning and it will not be done when the lights are out.  Mr. O’Neal said I do not know what you all feel like is an adequate time to shut the lights off, midnight for how many weeks?  You know this is something that has to be in the Special Use Permit. 

            Mayor Schools said the Planning Board did look at this and he does not know where they got 11:00 and 12:00 but I am sure they did not pull it out of a hat.

            Mr. O’Neal said 11:00 is when you close but there might be someone else who might want to come on and finish the round.  At 12:00 they go off.  Mr. Cook said my understanding is we can’t take another customer after 11:00.

            Mayor Schools said, this time next year and those lights were on all summer long and if there is anything the board does not like, it can be addressed at that time.  Mr. Cook asked can they do that on the review process as we apply every year as a special use to build in a safeguard once again. 

            Town Clerk Carolyn Custy swore Mrs. Marianne Schmitt in.

            Mrs. Marianne Schmitt, who owns an amusement park in Atlantic Beach.  I can agree with this man that miniature golf is not noisy when compared to - - we have a miniature golf next to our property.  The tourist that come down are looking for somewhere quiet, a family oriented type business.  11:00 is a very reasonable hour.  Our park stays open until 1:00 or 2:00.  We do have a noise ordinance in Atlantic Beach that we have to go by.  Lighting is the same.  The lighting he is talking about is exactly what he needs.  I don’t see where it would be any harm to anyone else.  The sound of someone getting a hole-in-one, of course might be a very enjoyous sound but that is a noise of happiness and people having fun and that is what we need on this island.  Sometimes they are bored after 10:00 and there is nothing running.  Everything is shut down and our tourist who are coming here more and more every year, they are young people and young families.  They are on vacation.  They don’t have to get up and go to work.  They come here to go on vacation.  I just don’t think we should be too concerned about a lot of noises.  That would be detrimental.  It won’t be loud.  It will just be people having fun.

            Commissioner Marks said since this is a special use permit, it is good for only 1 year.  The other comment was you asked about opening hours for other businesses and this special use has a cut-off time but other businesses don’t.  For example Wings stays open until midnight or 1:00 A.M. I believe.  That is another potential business for them is something like that. 

            Mayor Schools asked for any other comments from the people who were sworn in.  None was forthcoming.

            Mayor Schools asked, Do I have a motion to close the public hearing?

            Commissioner Dorothy “Doje” Marks said so moved.  Mayor Schools asked for a vote of all of those in favor.  The Board voted unanimously, 4-0, with Commissioner McElraft being absent.

            Mayor Schools read the following for the record:

            There are certain facts that I believe are universally accepted, and are not in dispute.

            Is there a motion to accept the following facts:

1. Isaac Shamah is the owner of real property located at 8716 Reed Drive that is located within the Town of Emerald Isle and under local zoning Jurisdiction;

2. The owner of the property is proposing to develop a miniature golf course on site, consistent with the Special Use Permit application submitted by Mr. Shamah;

3. The Town of Emerald Isle’s Zoning Ordinance, specifically Section 19-82 Outdoor Activities and Amusements, where operated as a commercial activity is allowed for development of such uses only when a Special Use Permit has been approved;

4. Proper notice of the Public Hearing has been given to all parties, advertised on January 01, 2003 and then again on January 10, 2003.  Notice of the hearing was mailed to adjoining property owners to the east, at 8714 Reed Drive, and to the owner of a seventeen (17) acre tract on the ocean front;

5. The Board has jurisdiction over the parties and the issue before it.

Mayor Schools asked if anyone wished to make that motion.

Commissioner Farmer made that motion.  The board voted unanimously in favor, with a vote of 4-0.  Commissioner McElraft was absent.  Motion carried.

Mayor Schools asked does each Commissioner believe that the applicant has meet all applicable requirements, the criteria as stated earlier, associated with obtaining approval of the Special Use permit including meeting all submission and design requirements included within the Zoning Ordinance?  Ms. Angus has recommended, and I will read them out later, that the board include conditions where we talked about there would be no music amplification.

Attorney Taylor said that language should be included about the fence along the eastern buffer area if so required by the property owners immediately adjacent east of the development.

Mayor Schools asked for a motion as follows:

1.      The request will not materially endanger the public health, safety, or welfare if located where proposed and if developed according to the plan as submitted;

2.      The request is considered to be consistent with the Town of Emerald Isle Land Use Plan as well as the Town of Emerald Isle Zoning Ordinance;

3.      The applicant has complied with all submittal requirements and conditions imposed on such uses as outlined within the Zoning Ordinance;

4.      That adequate safeguards do exist within the Zoning Ordinance to afford protection of surrounding property owners from any potential negative secondary impacts that may be generated by the proposed use;

5.      That the proposed use will not  impose an undue burden on the Town of Emerald Isle in providing essential services to the parcel where this use is intended to be developed, such as fire protection, police protection, and water service, and that the proposed use will not create a problem in the provision of these services to local residents.

6.      With inclusion of the following conditions:

a                    Applicant shall be required to maintain a 15-foot vegetative buffer along  the entire eastern property line.  Any damage or construction of vegetation whether natural or caused by man will require the applicant to revegetate the damaged or destroyed areas in the manner prescribed by the Town of Emerald Isle Zoning Ordinance (Dunes and Vegetation) for disturbed natural areas.

b                    The applicant will be required to submit in detail foot-candle lighting plan indicating the dispersal of light on the properties, indicating no more than one foot of candle light generated at all property lines.  The applicant shall be required to maintain the standards of actual operation, in perpetuity.  The applicant shall be required to utilize cutoff fixtures to achieve this standard.

c                    The Miniature Golf course shall close no later than 11:00 p.m. on any night of operation.  All lighting with the exception of indoor lighting shall be turned off no later than 12:00 P.M.

d                    Any trimming, cutting, or clearing of landscape material within the state right-of-way of NC 58 must be authorized by the NC Department of Transportation and the Town of Emerald Isle Dunes and Vegetation Protection Officer.

e                    There will be no sound or music amplification permitted on-site.

f                      The applicant shall construct a solid 6-foot fence along or within the east buffer if so required by the property owners immediately adjacent to that eastern buffer.

g                    If any of the conditions affixed to this Special Use Permit, or any part thereof, shall be held invalid or void, then this permit shall be voided and of no effect and the applicant shall have to reapply.

Mayor Schools asked for a motion for approval.

Commissioner Marks said I so move. 

Mayor Schools asked if there was any discussion on the motion?  There were none forthcoming.

COMMERCIAL REVIEW – EMERALD FOREST MIMIATURE GOLF

Option 1 – No Use of Town Streets / Ocean Drive Ramp Only

The two issues that do not have consensus among the Board are temporary use of town streets by horses and authorized access points.  Option 1 does not allow horses to temporarily travel on any town streets.  This option also authorizes horses to access the beach only at the existing vehicle access at the “dog-leg” on Ocean Drive near Mile Marker 15 and the Fire Station.  Horse riders will not be allowed to utilize other access points in town.  Because temporary travel on town streets is prohibited, horse owners will have to drive to the “dog-leg” to unload their horses and then park either at the Eastern Ocean Regional Access or make arrangements to park on private property adjacent to the “dog-leg” access.  If the horse rider does not have permission to park on private property nearby, they’ll have to have someone stay with the horse while they park their vehicle at the Eastern Ocean Regional Access. 

Option 2 - Use of Town Streets to Travel to Beach Access Points Only / Travel allowed from Public Parking Areas to Ocean Drive and Black Skimmer Ramps. Option 2 does allow horses to temporarily travel on town streets only from the nearest public parking area to the authorized access points.  This option authorizes horses to access the beach only at two access points - the existing vehicle access at the “dog-leg” on Ocean Drive near Mile Marker 15 and the Fire Station, and the existing vehicle access at Black Skimmer Drive.  Horse riders would not be allowed to utilize other access points in town.  This option would enable horse owners to park at Town Hall and ride their horses down Black Skimmer Drive to the access or park at the Eastern Ocean Regional Access and ride their horses on NC 58 and Ocean Drive to the authorized access.   

Option 3 – Use of Town Streets to Travel to Beach Access Points Only / Travel allowed from Public Parking Areas and Private Residences to Ocean Drive, Black Skimmer, and Doe Drive Ramps. Option 3 does allow horses to temporarily travel on town streets from the nearest public parking area to the authorized access points.  Option 3 also allows horses to temporarily travel on town streets from a private residence to the authorized access points.  This option authorizes horses to access the beach at three access points - the existing vehicle access at the “dog-leg” on Ocean Drive near Mile Marker 15 and the Fire Station, the existing vehicle access at Black Skimmer Drive, and the existing emergency vehicle access near Doe Drive.  Horse riders would not be allowed to utilize other access points in town.

Each of the three options does not require the use of diapers, but does require the horse rider to remove any feces deposited.  There appears to be consensus among the Board that the diaper provision should be eliminated.  The Board should also note that the penalty provision in Chapter 4 – Animals – would be changed from a misdemeanor to a civil violation, consistent with our efforts to rely more heavily on civil violations.  The three options represent many of the ideas expressed over the past two months by the Board and by members of the horseback-riding community, but certainly not all.     

DISCUSSION – FLOOD INSURANCE STUDY REPORT ON FLOOD INSURANCE RATE MAP CHANGES

Mr. Rush informed the board that the Federal Emergency Management Administration is currently in the process of updating flood insurance maps for the Town of Emerald Isle.  The Town has received drafts of the updated maps, and these maps include changes in flood zone designations in Emerald Isle.  At this time, the maps are still in draft form and have not yet been finalized.  Planning and Inspections staff expect these new flood maps to be finalized this spring, and they will be presented to the Board of Commissioners for formal adoption at that time.

James Taylor and Ms. Angus went over the previous revisions to the 1998 maps this past Spring and forwarded our Letter of Map Amendment (LOMA) after that review.  These are changes that we felt needed to be made for better records keeping and review. Primarily they were name changes and/or corrections, or comparing any increase or decrease in specific flood zones. 

Mr. James Taylor, Building Inspector, informed the board that the previous mapping had included almost, but not all, of the oceanfront in a V-zone.  The majority of oceanfront property prior to 1998 had been in a C-zone, which did not reflect any great hazard and did not require flood insurance.  The 1996 storms indicated this was not the best practice for our oceanfront properties, therefore, the maps were brought up to date.  Any oceanfront property within this zone, and by CAMA guidelines, must be elevated on pilings, require breakaway walls, no electrical outlets, to insure minimal damage and be able to submit a claim for flood insurance.

One FEMA Flood map panel was received with a letter dated December 09, 2002 from Michael M. Grimm, Acting Chief, Hazard Study Branch of the Federal Insurance and Mitigation Administration.  This panel was the portion that Spencer Rogers, North Carolina Sea Grant Extension Program, had made some appropriate recommendations.  The panel is that portion of town from Sea Dunes S/D east to East Seaview from the Atlantic Ocean to Bogue Sound. 

The most significant change on this panel from Mr. Rogers  includes the portion of oceanfront property along Ocean View Drive through the commercial districts and Islander Motor Inn that had previously not been included in the V-zone. The entire oceanfront in all other portions of the island are located in a V-zone, being the most restrictive flood zone classification. Mr. Taylor and Ms. Angus concur with Mr. Rogers’ recommendations to include all of Emerald Isle oceanfront property within the V-Zone. We feel that any oceanfront property should be designated to require more restrictive codes. 

On the maps that James Taylor and Ms. Angus reviewed last Spring, portions of property on the south side of Coast Guard Road were put into an A-Zone from an X –zone which is a classification in which flood insurance is not required. These new V and A-zone properties will reflect the need for flood insurance for mortgage requirements or flood damage claims. There will be additional building requirements, including raising the first habitable floor to two feet above the indicated flood stage; flow throughs of one inch for each square foot of enclosed area for garage or storage area that may be contained below this base flood elevation (BFE). The BFE’s changed slightly, lowering one foot in most areas. However, the actual point does not change, only the point from what it was first measured in 1929 as compared to newer data from 1988.

This is a brief overview of the revisions that have been made.  In Mr. Taylor’s and Ms. Angus’ opinion, they are reasonable and necessary changes that reflect the true need for inclusion.

When the decision has been made to accept the final draft of these all four panels, they will have to be adopted by the town board. When the final draft has been adopted by FEMA, inspection office will begin implementing the newer maps as of the date on the maps, and formal adoption by the town board.  That timeframe will possibly be March.

Ms. Angus said she will take necessary steps to advise property owners of these changes and advise that should they not presently carry flood insurance that they should purchase it immediately. By entering the flood insurance program now, prior to current, or future, changes the owners will be paying a lower base rate flood insurance.  To wait until after the change has taken place the purchase of new insurance coverage could more than double in premiums.

            Commissioner Eckhardt, looking at a different scenario, commented if someone owns a lot, right now or has a residence and it has changed, from someone who did not have Flood Insurance to someone who did need insurance.  He asked what impact does that have on the town, if any?   Mr. Taylor said it does not necessarily have an impact on the town per se, however, if you currently had developed piece of property and was not in a special flood hazard area, were subject to the regulatory requirements.  Flood insurance was not required.  However, if you purchased it when it was not required, then you are paying base flood premium prices.  After looking at the map revision, you are now in V Zone. If you had previously purchased Flood Insurance when it was not required and now that you are placed in a special flood hazard area, you are grandfathered to those old premiums.  If you were not in a flood hazard area when you built and now that you have been placed in one and you did not have flood insurance prior to that, then you are going to be paying premium prices for it.  You do not get the grandfathered clause.

            Commissioner Eckhardt asked if it were up to the town to notify the homeowners?  Mr. Taylor said on the map revision, there is a 90-day appeal process, if you advertise and have public hearings and meetings, like in Morehead.  They had the opportunity to voice their concerns through an appeal.

            Commissioner Eckhardt again asked if it were up to the town to notify someone that has changed and/or is the bank notified.  It’s the bank.  Ms. Angus said she thinks it is both.  She is going to make every effort during the next several weeks to notify everybody that is affected.  Mr. Rush is going to put something in the Island Review again.  Maybe ask the newspapers to put a little blurb in about it.  Mr. Taylor said those parcels that are undergoing a significant change, it would be a good time for them if they do have property that is still under federal loan to go ahead and purchase and be grandfathered in when the map does come effective.

            Commissioner Farmer noted that is the critical thing right now.  If people get the word ahead of time and buy their insurance now, they will get it at the lower rate      

            Town Manager Rush clarified it is his understanding that the town is not required to notify people.  We certainly want to do it to educate our people so they are aware of it. 

            Commissioner Eckhardt mentioned all he could think about was the mess the people had at Topsail Beach.  Commissioner Farmer added to Commissioner Eckhardt’s comment, that people were sold flood insurance and it turned out that they were in a cobra zone.  Ms. Angus said homeowner associations.  You get a big concentration there.

NC 58 SIDEWALK PROJECT DESIGN

The original scope of the project included the construction of a new sidewalk along the north side of NC 58 from the Eagles to Live Oak Street.  After receiving input from the NC 58 Committee and considering an opportunity involving Jordan’s Seafood, the scope of the project has been modified and expanded.  The Town has a total of $50,000 available for the construction of the new sidewalk.  The project is being funded 50% by a grant from NCDOT, and 50% by the Town’s Powell Bill reserve funds.  The modified and expanded scope of the project has increased the total estimated construction cost to approximately $85,000 - $90,000.  Because this is obviously more than the amount available, Mr. Rush recommended that the bid package be structured to include a base bid and 3 alternates.  Based on preliminary cost estimates, it is hopeful that the Base Bid and Alternate 1 can be completed for $50,000 or less.  Depending on actual bid prices, the Board can then consider other alternates if funds are available. 

BASE BID

The Base Bid for the project includes the total distance from the new Jordan’s parking lot on Bogue Inlet Drive south to NC 58, then east on NC 58 from Jordan’s to Live Oak Street.  This would result in approximately 1,350 linear feet of new sidewalk (subtracting out driveway and intersection crossings), and provide a continuous, attractive, functional walking area from the center of “downtown” to a point near the Town Hall complex. 

Mr. Rush called the board’s attention to the fact that the Base Bid also includes elimination of perpendicular on-street parking on Bogue Inlet Drive adjacent to Jordan’s, and the construction of approximately 160 linear feet of curb and gutter and parallel parking spaces in this area.  This aspect of the project will greatly improve the safety and appearance of the Bogue Inlet Drive / NC 58 intersection, and is enthusiastically welcomed by the owner of Jordan’s Seafood.  The NC 58 Committee also enthusiastically endorsed this aspect of the project.  Although his participation has not been confirmed, I remain hopeful that the developer of Sea Oats Village, directly north of Jordan’s, will construct a 5 ft. sidewalk across his frontage on Bogue Inlet Drive that will connect to the Town’s new sidewalk and provide a continuous sidewalk from Piney Creek to near Town Hall.  

The Base Bid includes a 5 ft. sidewalk on Bogue Inlet Drive with new curb and gutter, and a 6 ft. sidewalk along the entire section of NC 58.  The Base Bid also includes the construction of small retaining walls adjacent to existing ditches in order to maintain proper drainage adjacent to NC 58.  Please note that the Base Bid does not include construction of sidewalk across existing business driveway cuts.   

ALTERNATE 1

Alternate 1 includes at-grade sidewalk construction across existing driveway cuts.  There are a total of 12 existing driveway cuts included in the Base Bid distance.  At an average of 25 feet each, a rough estimate of the total linear feet of sidewalk to be constructed at-grade across existing driveway cuts is approximately 300 linear feet.  The scope of Alternate 1 will include cutting and removal of existing asphalt, and placement of concrete sidewalk at-grade through the driveway cuts.

As mentioned earlier, preliminary cost estimates indicate that the Town could construct the Base Bid and Alternate 1 for approximately $50,000. 

ALTERNATE 2

It is highly desirable to connect the Town Hall complex, particularly the Recreation Center, to the “downtown” area with the new sidewalk.  Alternate 2 includes the distance from Live Oak Street over to the Fire Station and through Town property to the Recreation Center. 

The total linear feet of sidewalk included in Alternate 2 is approximately 800 linear feet.  Alternate 2 does not include any existing driveway cuts that would involve the construction of an at-grade sidewalk across the driveway cut.  Preliminary cost estimates indicate that the Town could construct Alternate 2 for an additional $20,000.

ALTERNATE 3

The NC 58 Committee highly recommended working with the business community to eliminate duplicative driveway cuts in the project area.  This would result in a more continuous stretch of sidewalk, improve traffic and pedestrian safety, and improve appearance.  Several business owners have been approached about this possibility, but Mr. Rush was unable to secure a firm commitment to close any existing driveways. 

The area west of Bogue Inlet Drive has 3 existing businesses with more than one driveway cut, and this layout results in a “choppy” sidewalk design.  Because of the difficulty persuading businesses to eliminate some of the existing driveway cuts west of the intersection of Bogue Inlet Drive, the NC 58 Committee has recommended that the area between Eagles and Jordan’s be delayed until the next phase of sidewalk improvements.  This will provide more time for negotiation with the affected business owners, and will also enable the Town to display the finished sidewalk on the east side of Bogue Inlet Drive.  The temporary delay of this area of Town should also make it easier for the Town to complete the current project prior to the upcoming tourism season.

Because the design for this area has been completed anyway, Mr. Rush recommended that the Town go ahead and include this area as Alternate 3 with the slim hope that some of the driveway issues can be resolved in a short time frame or that bid prices are extremely attractive, thus making it worthwhile to construct this area even with the driveway cuts remaining.  Alternate 3 will assume that all existing driveway cuts remain in place, but will include at-grade sidewalks across the existing driveway cuts (in the same manner as Alternate 1). 

Although the actual construction of Alternate 3 is unlikely, Mr. Rush felt it would be valuable to have a bid price for this work so that the Board of Commissioners can consider this option.  The preliminary cost estimate for Alternate 3 is approximately $13,000.

NCDOT has not yet signed off on these plans.  A copy has been sent to NCDOT for review, and we expect feedback shortly.  EDA-Morehead and I have engaged in previous dialogue with NCDOT about this project, and do not anticipate any significant changes.  In the event of minor changes necessary to satisfy NCDOT’s concerns, Mr. Rush asked the Board to grant him the authority to approve these changes.  Any significant changes mandated by NCDOT would be discussed with the Board prior to proceeding further with this project.  The town is still on track to complete the project prior to Easter weekend; however, the project schedule is very tight.

Mr. Rush, before the next item, informed the board that he is waiting for a fixed proposal on the projector system that would hang the projector from the ceiling so it would be over the top of the heads of the Mayor and Commissioners so the audience could see visuals better. Later on he would like to install LCD monitors so the Board Members could see without having to move or turn around in their seats.

Commissioner Marks interjected she is on the Highway 58 Committee and this has been envisioned a lot more than just the initial sidewalk project.  It is hopeful that benches, additional planting so there will be shade and you can take a rest on your walk.  Bicycle and walking on the south side of Emerald Drive that would not be just a straight shot, it would meander away from the roadway.  There are 24 members on that committee and they have put lots and lots of work into it.  Everyone is very excited about the potential for getting people out of their cars and doing some walking, such as they do in Beaufort.

            Commissioner Farmer made a motion to approve the Highway 58 Sidewalk Project Design and Authorize the Town Manager to Move Forward with this project.  The board voted unanimously, with a vote of 4-0.  Motion carried.

DISCUSSION OF SOLID WASTE SERVICE OPTIONS

These options are presented for discussion purposes only at the January 14 meeting, and it is not envisioned the Board making a decision on this issue at that meeting.  The Board and the community will need additional time to digest these three service options, and Mr. Rush has encouraged the Board to solicit public comment on these options before making any changes to our solid waste program. Mr. Rush has requested that the Board provide preliminary feedback on these 3 options at the January 14 meeting, including any requests for additional information.  Mr. Rush will then compile any additional requested information and present it to the Board at a special workshop meeting on this issue.  A special Board workshop has been recommended for either Monday, January 27 or Tuesday, January 28 early in the morning.  It will be important for the Board to make a decision on any desired changes to the solid waste program by late February or early March if the Board intends to implement any changes for the next summer season.

The three options included in the attached report were developed after a year and a half of experience with the Town’s current solid waste ordinance and program.  Although the new ordinance (with the resulting cooperation from some property owners and rental managers and the Town’s enforcement efforts) has improved conditions, it is apparent that the Town will need to take additional steps to completely address community concerns about insufficient containment capacity, unsanitary conditions resulting from overflowing trash, unsightly racks, and empty containers left at the roadside.  The three options in the attached report were developed to address exactly these concerns, and were developed with input from concerned citizens, rental agency personnel, Waste Industries, and individual Board members.  The three options were also developed with the intent to make a relatively immediate impact on these concerns.  Each of the three options has an excellent chance of nearly solving these problems within a very short time frame. 

The three options are explained in detail in the attached report, but the following provides a brief summary of each option:

OPTION 1 – REQUIRE ROLL-OUT AND ROLL-IN OF 90-GALLON CONTAINERS; TOWN CREWS PROVIDE ROLL-IN SERVICE AS NECESSARY

This option would require 90-gallon containers exclusively in Emerald Isle.  Each rental unit would be required to utilize at least one 90-gallon container for each 3 bedrooms, and permanent and second homes would be required to utilize at least one 90-gallon container.  Any housing units that exceed these guidelines would be required to utilize a sufficient number of 90-gallon containers to insure that all trash is adequately contained. 

Option 1 would eliminate the use of racks, and would require 90-gallon containers to be rolled out and rolled in by the property owner, rental company, tenant, or other responsible party within 24 hours of collection.  Recognizing that roll-back is difficult for many second home owners and rental units, Town crews would be assigned to roll-back any containers remaining on the right-of-way 24 hours after collection. 

All other aspects of the Town’s current solid waste program would continue to operate in a similar manner.  There would be a change in the collection schedules so that all of the prime rental areas (i.e., Ocean Drive) would be collected on Mondays (and Thursdays in the summertime). 

In order to finance this higher level of service, with Town employees routinely rolling-back containers from the right-of-way, the annual solid waste fee would increase from $130 to $145.  This fee increase equates to $15 per year, or an additional $1.25 per month.

This option would also require 90-gallon containers exclusively in Emerald Isle.  Each rental unit would be required to utilize at least one 90-gallon container for each 3 bedrooms, and permanent and second homes would be required to utilize at least one 90-gallon container.  Any housing units that exceed these guidelines would be required to utilize a sufficient number of 90-gallon containers to insure that all trash is contained. 

Option 2 would eliminate the use of racks, and would involve the Town’s solid waste contractor rolling-out and rolling-in the 90-gallon containers from the housing unit to the street and back.  Containers would be permanently stored adjacent to the housing unit or under the housing unit, and the property owner or tenant would simply wait for the contractor to collect the trash according to the designated schedule.  Participation in this program would be mandatory for all housing units in Emerald Isle.

The Town’s contractor would accomplish this by deploying 2-man crews in small vehicles (i.e., cushman, small pickup truck) ahead of and behind the large trash trucks.  These crews would simply go door-to-door and roll-out and roll-in the containers.  The 2-man crews would not necessarily be directly in front of or behind the large trash trucks, but would roll the containers out and in not more than 24 hours before or after the large trash truck actually collects the trash.

All other aspects of the Town’s current solid waste program would continue to operate in a similar manner.  In order to finance this higher level of service, the annual solid waste fee would increase from $130 to $170.  This fee increase equates to $40 per year, or an additional $3.33 per month.

OPTION 3 – BACKYARD / UNDER HOUSE COLLECTION; OPTIONAL SELF ROLL-OUT; REQUIRE 90-GALLON CONTAINERS

This option is identical to Option 2, with one important exception.  Property owners would have the ability to apply for an annual discount in exchange for taking responsibility for rolling-out and rolling-in their containers.  This option would not be automatic.  Interested property owners would be required to apply for this discount, and would need to provide sufficient proof that their containers would be rolled-out and rolled-in in a timely manner.  Sufficient proof would consist of any of the following:  1) a valid voter registration card indicating Emerald Isle as the permanent residence,  2) a valid NC drivers’ license indicating Emerald Isle as the permanent residence, or 3) a written agreement with a private commercial entity to provide roll-out and roll-in service in accordance with the Town’s requirements.  If the application is approved, the property owner would receive a $40 discount on the annual solid waste fee.

All other aspects of the Town’s current solid waste program would continue to operate in a similar manner.  In order to finance this higher level of service, the annual solid waste fee would increase from $130 to $170.  This fee increase equates to $40 per year, or an additional $3.33 per month.  Those who receive the self roll-out discount would pay a net fee of $130 per year, or no increase over the current annual fee.

As the Board considers these options, it should take note of three important points.  First, it will be important for all members of the community to consider these options in a cooperative spirit and focus more on a solution to our common problems rather than dwelling primarily on who pays more, who pays less, or  who is responsible for the problem.  The status quo does not appear to be solving our common problems, and the community must be open minded about other solutions if there is any hope of improving our community.  Second, the Board must recognize that the cost figures provided are preliminary at this point, and are based on assumptions that, while reasonable and logical, may or may not hold true in practice.  It is simply impossible to predict the costs associated with these options without making assumptions, however, I have discussed these assumptions with Waste Industries personnel and others, and believe they are relatively accurate assumptions.  Finally, because each of these options involves the mandatory use of 90-gallon roll-out containers, the Town would work with Waste Industries to coordinate a bulk purchase of containers to provide our property owners with the lowest possible price on new containers.

            Mr. Heatherly suggested that instead of taking and providing a couple of town employees to ride around ahead of garbage trucks and wheel out the carts, just have one person and send him around to punish the violators.  Those people who let their garbage sit out, give them a citation and enforce it.  People that maintain their racks and maintain their garbage can and maintain their garbage, let them alone.  Don’t put additional burden on people like having the roll-out cart, etc. 

            Mr. Heatherly said there is one more alternative to what is already mentioned.  Take the extra fee and punish the violators.  He does not have any problems with garbage. He does not have any garbage spread out on his street nor do his neighbors.  He suggested this is another “one size fits all”.  He urged the board to change their mind on this a little.

            Mr. Bill Reist, 8520 Woodcliffe Drive, agreed with Mr. Heatherly, but it seems to him the problem is on Ocean Drive.  Here again, why aren’t the realtors held responsible for it.  They collect the money, they supply the linen service, they put the candy on the beds, they do all of this.  Realtors can certainly enforce it and should be responsible for the trash.

            Mr. Wayne Cunningham, 2001 Emerald Drive, who comes down about 3 or 4 months in the year.  He owns a house that he does not rent.  He was wondering, as it says in Option #3 property owners will have to have a valid license, they roll the container down and all of that.  Why wouldn’t he be able to get a discount.  He does not have a written agreement, no NC License for identification.

             Mr. Rush, said if you are here on Sunday and you leave to go back to your permanent home, the trash is picked up on Monday.  You would have it rolled out on Sunday but who would roll it back after that time.  Mr. Cunningham said, “We don’t do that.  Whenever we leave we take our trash with us or leave it inside the garage all the time and then take the can out when we collect both the trash and recyclables.

            Mr. Rush said, that is a valid concern that the board could consider but the paraphrase Mr. Heatherly used “one size fits all”, you have to in some ways make it one size fits all.  It is very admirably that you take that approach.  There are many who do not.  Mr. Cunnighman related they leave their carts out in the street.  They are now putting them in a case now, which is an improvement over what has been.

            Commissioner Eckhardt asked who would get the rebate if it is a property that all he has is a tax receipt.  That is another thing to consider.  Mr. Rush said he would consider that but the problem is everyone who has property here pays taxes and if we could find some easy logical way to make that distinction, it would be fantastic.  He has racked his brain and has not been able to come up one that the end result would be good. 

            Mr. Rush suggested January 27^th or 28^th to do a workshop. He tries to schedule things for Mondays or Fridays.  It seems like it works best on those days.

            Commissioner Farmer mentioned Monday, February 3^rd.  Mr. Rush said he could schedule it for 9:30 A.M. in the morning and should be through in time for Commissioner Farmer’s other meeting, which starts at 2:00 P.M.  Everyone agreed on this date and time.

BIOLOGICAL MONITORING – BOGUE INLET PROJECT

The Town’s July 2002 contract with CPE included an allowance of $35,000, payable on a time and materials basis, for pre-project biological monitoring.  CPE’s original proposal noted that the level of pre-project biological monitoring could increase depending on the input of federal and state regulatory agencies.  CPE personnel have had an ongoing dialogue with federal and state regulatory personnel, and have devised a pre-project monitoring plan based on that input.  CPE has devised pre-project monitoring plans for birds, macroinvertebrate / infaunal, and saltmarsh.  A copy of the proposed pre-project monitoring plans was distributed to the Board previously, and is also attached to this memo.  The total estimated cost of this pre-project monitoring program is $140,000, payable on a time and materials basis.  The attached resolution authorizes a contract amendment with CPE for an additional $105,000 to complete the proposed pre-project monitoring plans.  The Board should note that CPE initially indicated that it would utilize the Land Management Group, Wilmington, NC, to perform this work.  Due to insurance issues, Land Management Group will not be subcontracting with CPE. CPE personnel will complete the macroinvertebrate / infaunal and saltmarsh monitoring.  CPE is still seeking a competent subcontractor for the bird monitoring, and is pursuing an arrangement with the NC Division of Wildlife Resources at this time.

RESOLUTION AUTHORIZING AMENDMENT TO CONTRACT WITH COASTAL PLANNING & ENGINEERING

Whereas, the Town is entered into a contract with Coastal Planning and Engineering for consulting services associated with the Bogue Inlet Channel Relocation Project in July 2002, and

Whereas, said contract includes a total of $35,000 for pre-project biological monitoring services, with a stipulation that additional monitoring may be required by federal and state regulatory agencies, and 

Whereas, Coastal Planning & Engineering has engaged in ongoing dialogue with federal and state regulatory agencies regarding the pre-project biological monitoring that will be required, and

Whereas, Coastal Planning and Engineering has prepared pre-project biological monitoring programs for birds, macroinvertebrate / infaunal, and saltmarsh, and the estimated cost of this monitoring is $140,000, 

Now, therefore, be it resolved by the Board of Commissioners that an amendment to the Town’s contract with Coastal Planning and Engineering for additional pre-project biological monitoring is hereby authorized.  The contract with Coastal Planning & Engineering includes the following services indicated in their proposal dated May 18, 2002:

-          Project Management and Federal Coordination

-          Environmental Tasks

-          Geotechnical Investigations

-          Geomorphic Analysis

-          Project Performance Modeling

-          Final Design of Channel and Beach,

                                                                        Arthur B. Schools, Jr., Mayor

A capital project ordinance allocates an additional $105,000 for this purpose.  A total of $32,000 of this amount will come from the recent remittance of grant funds from the NC Division of Water Resources.  The NC Division of Water Resources awarded these grant funds to fund 50% of the cost of the original Bogue Inlet study completed by Coastal Science and Engineering in December 2001.  The Town paid for the full cost of that study in FY 2001-2002, and is just now being reimbursed by the grant.  These funds will be credited to the “old” Beach Nourishment Fund and would be transferred to the capital project ordinance for the Bogue Inlet project.  The remaining $73,000 would be transferred from the contingency line for the pre-project monitoring.  This capital project ordinance amendment would leave the overall Bogue Inlet project with a total contingency of $227,000.

            Commissioner Farmer made a motion to adopt the Project Ordinance, Beach Nourishment – Western Phase.  The board voted unanimously, 4-0.  Motion carried.

COMMENTS

There were no comments from the Town Clerk.

Attorney Taylor spoke about condemnation procedures, of the suits that have been filed there are 6 that are being dropped because he has received voluntary easements from them and they are sorry for the hold up.  A lot more are anticipated to occur. There is one situation in Marlin Point that has a ton of owners, he is getting a lot of those in.  Several others have contacted him and said they are going to send it in. 

Each one of the folks that a law suit has been filed against has 120 days within which to provide him with an answer.  If that is not received bythe 120 day mark, he will petition the court to give us entry default so that is the end of the law suit.  There is nothing left to fight about.  Those that who do respond within the 120 days, or ask for a 30 day extension which they can do and get another 30 days automatically, then we will be in court action with those folks and the only thing that will be part of that court action is to make a determination of the value, if any taking, where we took easements on the property.  It is not a issue of if we have easements, it is an issue of how much money do you have to pay these folks.

Attorney Taylor continued that if we proceed through that litigation and they answer, there will be a period of discovery, which is we ask them questions and they ask us questions, depositions.  Primarily it will be a period where each team will select experts, which will give their evaluations and expert opinions as the value of the property.  We will provide some experts who say no value was taken, they will give experts who will say “Oh, you took several thousand dollars worth of value” and ultimately, we will go to trail before a jury to make a determination of which side is correct.  After that there is a right of Appeals.  Who knows when these things will actually get scheduled.  It is Attorney Taylor’s opinion that with the current court docket, you will not see the first of these cases before a Judge much more quickly than 2 years or so after we get the answer.

            Commissioner Farmer noted she would hope that our expert witness would be impressed that we added property and they owe us.

            Attorney Taylor said he was looking to the middle of March to have these things done.  There are several different dates that are grouped in that period time.

            Mayor Schools asked if Attorney Taylor had heard back from anyone about they are not going to sign and Attorney Taylor said he has not heard from anyone about negotiating anything.  He has heard through the grapevine that there are a couple there that we may have to have a wrestling match before it is over with.  He doesn’t know for sure.  It will be one of those situations where the folks on the other side will have to decide whether it is economical and justifiable to fight this thing to get what they think they can get out of it and that is what each person will have to make an independent decision on. 

            Mayor Schools asked that when he gets a notification to please let the board know.  Attorney Taylor said all of them would know even if he is given offers of things, he will be in communication with the board then.  So far this is the quiet period.  This is an unusual situation.  Condemnation Acts allow 120 days for an answer.  You don’t get that with anything he can think of. That will give folks time to go out and talk to experts, and make a determination of whether or not they want to answer. 

            Attorney Taylor said the only thing to fight over is whether there is any money paid not the easements.  The easements are in place. The General Assembly provides Quick Take capability and we are allowed to do that for beach nourishment projects.

            Lessons learned in Phase 1 will be applied to Phase II and we don’t want to wait too long to start Phase II within the budgetary restraints we have to deal with but in particular, it is Attorney Taylor’s suggestion that we contact the  Condominium Associations, the large complexs, Homeowners Associations, whomever, well in advance so we can hope to make a presentation at their annual meetings.  Attorney Taylor believes that communications in larger groups of what we are trying to accomplish and why, etc. would probably diffuse some of the issues we have and.He also suggested that the By-Laws and Restricted Covenants and Declarations of Condominium, etc. be reviewded and see who it is that has authority to sign.

            Commissioner Eckhardt asked if the town should be setting up a legal defense fund?  Attorney Taylor said certainly any would be greatly appreciated he is sure.

            Mr. Rush commented that the NC 58 Committee Report is Delayed.

Annual Planning Workshop

EI EMS Annual Report

Public Works Director

Planner / Enforcement Officer

Potential Placement of AIWW Dredge Spoils on Beach Near Point Emerald Villas

New Format for Monthly Budget Report

Commissioner Marks commented there was an excellent turn out Wednesday night on the Land Use Plan Update.  She expressed her appreciation to everyone who made that meeting and hopefully they will turn out for the workshops.

Respectfully submitted,

Carolyn K. Custy, CMC