Action Agenda
REGULAR MEETING OF THE EMERALD ISLE
BOARD OF COMMISSIONERS
TUESDAY, APRIL 8, 2003
7:00 PM - EMERALD ISLE TOWN HALL

1. Call to Order
2. Roll Call
3. Pledge of Allegiance
4. Adoption of Agenda
   (Approved 5-0)
5. Public Announcements
6. Consent Agenda
   1. Minutes of Regular Meeting – March 11, 2003
      (Approved 5-0)
   2. Tax Refunds / Releases
   3. Budget Amendment -- Solid Waste Containers
   4. Resolution Authorizing Governor's Highway Safety Grant Application
   5. Resolution Authorizing Grant Application for 2nd Phase of Emerald Isle Land Use Plan
   6. Resolution Authorizing Unsealing of Closed Session Minutes
   7. Resolution Authorizing Purchase of Solid Waste Containers
7. Public Comment
   (None)
8. Installment Financing  Agreement -- Solid Waste Containers
   1. Public Hearing
   2. Resolution Authorizing Installment Financing Agreement
      (Approved 5-0 vote)
9. Ordinance Amending Chapter 19 -- Zoning -- Removing Automobile Lots from the Table of Permitted Uses
   1. Public Hearing
   2. Discussion / Potential Consideration of Ordinance
      (Approved 5-0)
10. Rezoning Request -- 4.03 Acres from B-3 (Commercial) to RMF (Residential Multi-Family) -- Oceanfront Near Janell Lane and Boardwalk RV Park (memo from Carol Angus, Planning Director to  Frank Rush, Town Manager)
    1. Public Hearing
    2. Consideration of Rezoning Request
       (Motion Denied 3-2 vote Farmer, Eckhardt, Marks Against,   Messer, McElraft For)
11. Eastern Phase Beach Nourishment (memo from Alesia Sanderson, Parks & Recreation Director to Frank Rush, Town Manager)
    1. Revised Dune Planting Plan
       (Approved 5-0 vote)
    2. Public Access Reconstruction Plan
       (Approved 4-1 vote Marks, Messer, McElraft, Eckhardt For,   Farmer Against)
    3. Capital Project Ordinance Amendment
       (Approved 5-0 vote)
12. Discussion / Potential Consideration -- Ordinance Amending Chapter 5 -- Beach and Shore Regulations To Protect Frontal Dunes
    (Revised version approved 5-0)

    12.5.  Resolution supporting Post-Labor Day commencement of annual Public School year
    (Discussion Only)

13. Proclamation -- 2003 Emerald Isle Spring Cleanup Day
    (Approved 5-0 vote)
14. Comments from Town Clerk, Town Attorney, and Town Manager
    (None)
15. Comments from Board of Commissioners and Mayor
    (None)
16. Adjourn

MINUTES OF THE REGULAR SCHEDULED MEETING
OF THE EMERALD ISLE BOARD OF COMMISSIONERS
TUESDAY, APRIL 8, 2003 – 7:00 P.M. – TOWN HALL             Mayor Schools called the meeting to order at 7:00 P.M.  Board members present were Mayor Schools, Commissioners Eckhardt, McElraft, Messer, Marks and Farmer.  Staff present was Frank Rush Town Manager, Georgia Overman Assistant Town Manager/Finance Officer, Derek Taylor Town Attorney, Carolyn Custy Town Clerk, Carol Angus Inspections Department Head and Alesia Sanderson Parks & Recreation Director.

ADOPTION OF AGENDA

ANNOUNCEMENTS

a.      Minutes of Regular Meeting – March 11, 2003

b.      Tax Refunds / Releases

c.      Budget Amendment – Solid Waste Containers

d.      Resolution Authorizing Governor’s Highway Safety

Grant Application

e.      Resolution Authorizing Grant Application for 2^nd Phase of

Emerald Isle Land Use Plan

f.        Resolution Authorizing Unsealing of Closed Session

Minutes

     g.  Resolution Authorizing Purchase of Solid Waste Containers  (Added)

Commissioner Eckhardt made a motion to approve the Consent Agenda.  The board voted unanimously, 5-0.  Motion Carried.

PUBLIC COMMENTS

            None.

INSTALLMENT FINANCING AGREEMENT – SOLID WASTE CONTAINERS

The Town has two options for the purchase of solid waste containers.  One option is to simply appropriate funds from General Fund balance.  As you know, the Town intends to recover the cost of the new containers through an additional one-time $40 fee per container in the FY 03-04 solid waste fee.  The bulk of revenues from the solid waste fee are not received until December and January, and the Town’s fund balance would be decreased by the amount of the solid waste container purchase from May until the following January. 

Because interest rates are currently low, and because staff would prefer to maintain our General Fund balance levels, Mr. Rush recommended that the Town finance the initial purchase of the containers until such time that the FY 03-04 solid waste fees are received.  Approval of the attached installment financing agreement would result in a maximum interest charge of $3,447.50 over the full one-year term of the installment financing agreement.  This interest cost would be recovered in the $40 solid waste container fee.

A public hearing is required before the Board considers the attached installment financing agreement, and has been scheduled for tonight’s meeting.  Following the public hearing, the Board may formally consider the attached resolution.

If the board approves this financing agreement with BB&T, they also should approve 8c, which recognizes the proceeds from the financing agreement and authorizes the expenditure for the trashcans.

Commissioner McElraft made a motion to open the Public Hearing for the Financing Agreement.  The board voted unanimously, 5-0. Motion carried.

Commissioner Farmer made a motion to approve the Resolution Authorizing Installment Financing Agreement.  The board voted unanimously, 5-0.  Motion carried.

Commissioner Messer made a motion to approve the Budget Amendment for Solid Waste Containers and the board voted unanimously, 5-0.  Motion carried

ORDINANCE AMENDING CHAPTER 19 – ZONING – REMOVING AUTOMOBILE LOTS FROM THE TABLE OF PERMITTED USES.

ORDINANCE AMENDING CHAPTER 19 – ZONING

Deletion to the Permitted Use Table

Section 19-82 through 19-100

WHEREAS, the current ordinance does include the specific use for the sale of new and/or used automobiles and accessory sales;

WHEREAS, the Town of Emerald Isle desires to provide an array of business that is necessary and in harmony with the vision of the commercial district;

WHEREAS, it is determined that there is sufficient availability for this type of product in the surrounding communities;

WHEREAS, the deletion to the table would enable the commercial district to remain as a beach community type of environment, void of open sales lots;

NOW, THEREFORE, BE IT ORDAINED by the Emerald Isle Board of Commissioners that the Permitted and Special Use Table be amended to delete Automobile (new and used) and accessory sales, immediately following Athletic clubs and facilities.

Adopted this the _________ day of ____________________, 2003, by a vote of

Commissioner(s) ________________________________________________voting for

Commissioner(s) ________________________________________________ voting against and

Commissioner(s) _________________________________________ absent.

                                                                        ______________________________

                                                                        Arthur B. Schools, Jr.,  Mayor                                                                 

ATTEST:

_____________________________

Carolyn Custy, Certified Municipal Clerk

Commissioner Eckhardt made a motion to open the Public Hearing.  The board voted unanimously, 5-0.  Motion carried.

Attorney Taylor had some reservations.  He thinks “illegal” might be a very strong term.  He wanted to just give a caution early on in the process that if you are going to exclude a business that is currently allowed from the entire zone, it is what he considers to be a non-use of business, that is not a cement plant or something to that effect, then he could challenge down the line.  There is no way to tell exactly when.

Commissioner Farmer commented she is fairly comfortable that what the board is saying is not one of the Permitted Uses, but there is nothing to prevent someone from coming back before the board and ask for a Special Use Permit.

Attorney Taylor said, “You are just dropping something off that does not affect anybody at this point.  Under the concept no harm no foul, you are not terribly concerned about it at this point.  If you get an application for a car dealership, then we can start talking about if that meets with the towns ideas as to what should and what should not be in the town.

Commissioner Eckhardt made a motion to adopt the Ordinance Amending Chapter 19 – Zoning – Removing Automobile Lots from the Table of Permitted Uses. The board voted unanimously, 5-0.  Motion carried.

At this point, Mayor Schools asked Alesia Sanderson, Parks and Recreation Director to update everyone on the fund raisers held for Roddy Chaney. Friends of Roddy Chaney have held fund raisers  to raise  funds to  provide the $5,000 match for the town’s CAMA Grant for the reconstruction of the Seagull walkway.  Quite sometime back the Emerald Club held a fundraiser.  They raised approximately $1,200.  This past weekend, a group of friends, Dawn Maynard, John André and Bailey Spears made up another fundraiser which was an exercise type of thing called “Sweating for Seagull” and the total for that fund is now $5,800.00.  They are still raffling off a swing.  They plan on putting bronze plaques memorializing Roddy at both ends of the walkway and some of the local landscapers are also going to be doing plantings on the street side.  They were very successful and they worked very hard and the town really appreciates it.

REZONING REQUEST – 4.03 ACRES FROM B-3 (Commercial) TO RMF (RESIDENTIAL MULTI-FAMILY) – OCEANFRONT NEAR JANELL LANE AND BOARDWALK RV PARK

            Ms. Angus of the Planning Department explained that this rezoning request came from Randy Campbell, L.B. Page Partners and Larry Spell to rezone a certain parcel of property located on the oceanfront between the Boardwalk RV Park and Daisywood Subdivision, which is Janell Lane.  It is currently zoned B-3 and their request is to rezone it to RMF, which is Residential Multi-Family that would allow one and two family homes, Condominiums, Townhouses, Apartments etc.  There would be no Motels and Hotels, no commercial use.  As it stands today, B-3, there is a potential without a Special Use Permit, for amusement enterprises, outside entertainment, Billiards, Arcades, Bars and Lounges, Building Supply Sales, Car washes, clothing stores, Hotel or Motel, Commercial Parking Lot, Plumbing shops, printing and publishing establishments, Restaurants and Seafood Markets.  This is just a few that are from the Permitted Use Table.  In the RMF it would be a residential type zoning.  The original request was for RMH and the Planning Board was concerned about the Motel/Hotel connection to the RMH so the applicant was asked to reconsider to RMF, which he did.  This approximately 4 acres of property and with the work that Chairman Daniels did with the Planning Board, as Planning Board Chairman, it was determined that 32 condominium units, could possibly be placed at the site.  If there are concerns about the height limit, the height requirements for the residential district would apply so there would not be a 6 story building like Sound Of the Sea.  There are some restrictions that are in the RMF that are not in B-3.  This recommendation was voted, 3-2, by the Planning Board and is presented for the Town Boards consideration.

            Commissioner Marks asked how Mr. Campbell has access to that property and is it a single-family subdivision?

            Mr. Campbell said it is not private.  It is a public road. The main thing he looked at is it is in the middle of a residential area.  There are a lot of options with it.  It seemed like the best use of it would be some residential implication instead of Hotel/ Motel which is why he went along with the Planning Board’s request to go from RMH to RMF which is fine.

            Mayor Schools noted that using it as commercial use they would still use Janell and Reed Drive and Mr. Campbell confirmed this.

            Commissioner McElraft asked that if it were used as commercial use, could they build a hotel there and Mr. Campbell confirmed this was correct also. 

He commented that would be what would happen with a piece of property like that.  If you look at the highest and best uses, people would say that is what it is.  If that is the smartest thing to do there from a town standpoint depends on how you look at it.  Mr. Campbell said he feels it would be better with a residential use there.  He background is more in line with lots, houses, duplexes, single family, etc.  The Motel/Hotel is a feasible option along with the complete list of things Ms. Angus mentioned.

            Mayor Schools asked for a motion to open the Public Hearing on this item.

            Mr. Rush noted that the adjacent property owners were notified, the property was posted and it has been advertised for a Public Hearing.  There were no comments that came from the adjoining property owners.

            Commissioner McElraft made a motion to open the Public Hearing and the board voted unanimously, 5-0.  Motion carried.

            There were no public comments on this issue.

            Commissioner McElraft made a motion to close the Public Hearing and the board voted unanimously, 5-0.  Motion carried.

Commissioner McElraft made a motion to approve the RezoningRequest for 4.03 Acres tract from B-3 (Commercial) to RMF (Residential Multi-Family) – Oceanfront near Janell Lane and Boardwalk RV Park.

            Commissioner Farmer asked for discussion said what this is all about is planning.  What the board does now affects what Emerald Isle is in the future and the outcome of the future.  The board has a town survey where a question asked was “What kind of growth should be encouraged in Emerald Isle?”  On multi-family 56 respondents said encourage, 180 said neutral, 662 said discourage.  Commissioner Farmer continued that the town is in the middle of a Land Use Plan project that we hope that it will make it even clearer to us which direction Emerald Isle wants to go.  Commissioner Farmer commented she thinks if they are looking at multi-family, they have to look the densest development that could go in there and she also thinks the board has to look at the implications that density will bring and traffic is certainly a big one. 

            Commissioner Farmer further commented she was not at the Planning Board meeting but she understands that one of the members of the Planning Board suggested, who is also a member of the Land Use Plan Committee, that the town go to a moratorium on zoning changes until such time the Land Use Plan is done.  She would like the board to consider doing that.  It may be at that time that the Land Use Plan will say the town survey was wrong,, but she strongly suspects that is not going to be the case.  The community meeting that was held on the Land Use Plan indicated concerns about density in Emerald Isle.  She does not support the zoning change at this time but she would support a moratorium on any rezoning.  She guessed she should be asking Mr. Campbell if he would consider rezoning to R-2 (Single family & Duplexes).  She would certainly support that.

            Mr. Campbell asked if that existed anywhere now?  Commissioner Farmer replied that the parcel next door is RMH, which has been developed R-2.  Mr. Campbell asked is there any more R-2 on the Island?  Commissioner Farmer answered, “Yes”.

            Commissioner Eckhardt commented he is torn because it is the right move to residential.  The only thing that concerns him is the density.  The board could choose to ignore the survey.  Certainly they cannot count on the Land Use Plan coming up because it hasn’t been adopted.  The Land Use Plan in 1997 certainly talked about density.  The survey addressed it directly.  The board could ignore the survey if it wanted to but is that what they really want to do, when there was such a strong answer back.  When he looked at the property, and as Commissioner Farmer said, the property next door is RMH (Residential Motel/Hotel) but the whole entire eastern lot line is basically R-2.  There are no multi-family units on that whole lot line.  Commissioner Eckhardt said again that he thinks it is the right move to go to Residential but he cannot support the multi-family.

            Commissioner Messer commented that he did not have his copy of the survey but wasn’t there a question on there about reducing the Commercial area and not allowing any more commercial area?  If he recalls, the majority of this board prefer any type of residential to commercial. 

Commissioner Farmer said that was correct and she thinks that is the reason why she is saying wait until the Land Use Plan is complete.  People do not want to see more commercial.  This parcel is already in commercial so it is not being added to commercial area.

Commissioner Messer remarked, “We would be taking away”.  Commissioner Farmer said it is just that there was such an over whelming response against multi-family.  The survey was not in support of multi-family but was supportive of single family.

Commissioner Messer said it seems the board could eliminate some commercial and add to the residential would be the right thing to do.

Commissioner McElraft noted that she finds it very interesting that the survey is quoted in so many different contexts.  When the board was looking at the B-3 property at the corner of Coast Guard Road and Reed Drive, the survey was quoted to get rid of B-3.  They were trying to force down zoning to RMH from B-3.  Now there is someone who is willing to take a B-3 property and down zone it themselves and we are refusing to let them do that?  It makes no sense.  When that survey went out, we had high-rise condos.  We didn’t have a height limit.  We didn’t have a story limit when that survey went out.  Now we do have a height limit.  Now we have seen some of the things like Pier Point.  When you are talking density, we are only talking probably several months because most of these are going to be rental units anyway.  Those duplexes on Heverly, when you are talking about Janell Drive, probably hold more than a 4-unit condo as far people go.  When you are talking density, 32 unit condos are no denser than the property that is next door with those duplexes. 

Commissioner McElraft is amazed that someone is willing to do something, she knows Mr. Campbell and she knows the kind of project he does and she knows it is going to be a wonderful project and to turn that possibility down, where he can now build a Hotel/Motel in the B-3.  It just makes no sense to her. 

Commissioner Farmer noted she thinks the issue is planning, that’s what the board has going to do now and what they approve affects the future of the town and she would like to hold off until the Land Use Plan is completed to give the board more darts.  The board should not be talking about a Motel/Hotel now, they should be talking about a moratorium. 

Commissioner McElraft commented even if the moratorium went on, the use of B-3 is already there.  There is a Hotel use on it already.  Commissioner McElraft thinks the citizens of the town want to see something nice there instead of a big Hotel/Motel, or Lowes or something else.

Commissioner Farmer replied she does not think we are going to have an ocean front Lowes.

Mr. Art Daniel, Planning Board Chairman said in discussing this issue with the Planning Board when they had it on the agenda, he would offer some reasons why the application should be approved and some reasons why it should be denied.  Two reasons for denial. One was the survey and the other was the leaning of the Land Use Plan Update.  The reasons for approval is that they were looking at the change from B-3, water downed somewhat with the applicant’s approval, to allow Multi-Family Residential and in comparing the maximum density allowed, based on the current zoning ordinance, they could build 32 Multi-Family Units.  You could build 22 duplex units or you can build 14 single-family units.  Mr. Daniel could not justify any reasoning to say that 10 additional units would create any problems.  In respect to residential versus commercial, this has been watered downed and the permitted uses would be changed.  The traffic would be less with the residential zoning than with commercial and the difference between the traffic with 32 units versus 22 units versus 14 units, to him was negligible.

            Attorney Taylor noted generally the rezoning comes from the person who owns the property on a voluntary basis.  A forced rezoning which would entail some major rezoning changes on the map, is a different procedure. 

            Mr. Rush said he thinks it is legal to force a down zoning on some other highly controversial things. 

            Mr. Michael Harvey, who is with the firm Benchmark, Inc., said what the board has here is a voluntary request where the property owner has come to the town and made application.  If the town decides to take action on it’s own to rezone a piece of property, first of all it has to identify the reasons why, very bluntly and specifically, that there is some detriment potential to public health, safety and welfare.  That is number one.  Number two; you have to prove that this is necessary to protect a given area or to “show cause”. You, if he is not mistaken, have to do two public hearings.   You cannot do just one and then make a decision. You have to actually hold two public hearings and if you cannot prove or justify the down zoning against the property owner as warranted, the courts are unfavorable on that change.  The process is about 4 months longer than a normal review. 

            Attorney Taylor said there is also a substantial issue about how you publish, if there are a large number of people you have to have page ads.  You must show generally some change of circumstances that have generated, i.e. the plan that was generated now needs to be different, and you must have some pretty strong evidence of what has changed.  It is a whole different ballgame going from a voluntary to an involuntary process.

Mr. Rush said he thinks that if any of the adjacent property owners object to it then it can be derailed. 

            Mr. Harvey said the General Statutes say that if you get a certain number of people protesting the move, then instead of having a super majority, you have to have a majority of the vote or it dies.  It is almost like a Board of Adjustment case where a variance or interpretation doesn’t get over ruled.  It is a much more lengthy and time consuming and it involves process and it revolves a lot of T crossing and I dotting. He made a comment on the rationale that is important for the change.  When you look at what could be generated from traffic generation standpoint and density standpoint and the potential impervious surface that could be generated by commercial. From his perspective he did not have a problem for this to go to residential, looking at where this property is situated and located.  Recognizing that there is going to be some physiological changes to the Land Use Plan, they still thought this was consistent with portions of the survey as well as the current and proposed Land Use Plan, which was what has been recommended to Chairman Daniel to be approved.  There was some very lengthy discussion at that meeting as to if this was going to be acceptable or not acceptable.  From a planning standpoint, from Mr. Harvey’s perspective, it would be a lot better to have a residential neighborhood in a residential zoned property and avoid some of the problems and concerns that the Town Board and Planning Board have been trying to address for a number of years.

            Mr. Daniel noted that looking back at the survey, single family residential and although it appears the majority that responded to the survey, they are in favor of single-family residential.  Mr. Daniel said there is no R-1 zoning district.  There are no maps for R-1 single-family area so it could not go to an R-1 even though the town wanted to.  Mr. Daniel also noted that he thinks it will have to be addressed later on after the Land Use Plan is updated and a new zoning ordinance is written so there would be R-1 districts as well as R-2 districts. 

            Mr. Daniel said it appeared to him that the Planning Board was slanted toward approval.  Moratoriums are one way of resolving an issue.  He would be reluctant to considering that as a viable alternative in as much as the Planning Board has already asked the applicants to down grade their zoning request.

A vote was called for on Commissioner McElraft's previous motion to approve the Rezoning Request for 4.03 Acres tract from B-3 (Commercial) to RMF (Residential Multi-Family) – Oceanfront near Janell Lane and Boardwalk RV Park, the board voted with a split vote 2-3 with Commissioners Messer and McElraft voting for and Commissioner Farmer, Eckhardt and Marks voting in opposition.  Motion denied.

EASTERN PHASE BEACH NOURISHMENT

a.      Revised Dune Planting Plan

The lone remaining task from the original project scope is the planting of dune grass on newly constructed dunes.  The original project scope did not include a continuous dune line, instead identifying various “weak” spots in the existing dune that would be augmented.  After observing this approach in practice, the original project scope was adjusted to include the construction of a continuous new dune line from 10^th Street west to the Eastern Ocean Regional Access (EORA), with various “weak” spots between 1^st Street and 10^th Street augmented as needed.  This adjustment has resulted in a better overall project, however, it has caused staff to revise the dune planting plan to accommodate a longer dune line.

The attached memo from Alesia Sanderson, Parks and Recreation Director, and Staff recommends the planting of approximately 45,875 plants between 10^th Street and the EORA, in ten rows on 24-inch centers.  The recommendation also includes approximately 4,166 additional plants for various locations between 1^st Street and 10^th Street.  Staff also recommends the installation of sand fencing along the entire stretch from 1^st Street to 10^th Street in an effort to accumulate sand for naturally forming dunes in this area.  The total cost of this recommendation is approximately $51,345.  The project budget currently includes $44,000 for dune plantings, and an additional $8,000 is included in the subsequent capital project budget ordinance amendment to accommodate this expanded scope of dune plantings and sand fencing.

The Board should note that all property owners will be permitted, and are encouraged, to plant additional dune plants on the new and existing dunes and install additional sand fencing on their own.

Dune planting is scheduled for later this month.

Commissioner McElraft made a motion to direct the staff to proceed with the revised Dune planting and sand-fencing plan.

Commissioner Farmer asked Commissioner McElraft to modify her motion to Dune Planting only.  She does not support the sand fencing but she does support dune planting and she wants to be able to go forth.

Commissioner McElraft modified her motion to direct the staff to proceed with the revised Dune planting.  The board voted unanimously, 5-0.  Motion carried.

b.     Public Access Reconstruction Plan

            Commissioner McElraft asked for clarification if it was 1^st Street to 30^th Street and if it was just where