mincom091404

MINUTES OF THE REGULAR SCHEDULED MEETING
OF THE EMERALD ISLE BOARD OF COMMISSIONERS
TUESDAY, SEPTEMBER 14, 2004 – 6:00 P.M. – TOWN HALL

The regular monthly meeting of the Emerald Isle Board of Commissioners was called to order by Mayor Art Schools at 6:00 P.M.

Present for the meeting: Mayor Art Schools, Commissioners Nita Hedreen, Pat McElraft, Floyd Messer, and John Wootten.

Absent for the meeting: Commissioner Robert Isenhour.

Others present: Town Attorney Richard Stanley, Town Manager Frank Rush, Town Clerk Rhonda Ferebee, Planning Director Kevin Reed, Fire Chief Bill Walker, and Town Engineer Greg Meshaw.

Others present: Bill Farris, Land Use Plan Consultant.

Motion was made by Commissioner Messer to excuse the absence of Commissioner Robert Isenhour. The Board voted unanimously 4-0 in favor. Motion carried.

Mayor Schools commented that Commissioner Isenhour had been injured in a fall, and was back home now hoping for a full recovery within six weeks.

After roll call all who were present recited the Pledge of Allegiance.

4. ADOPTION OF AGENDA

Town Manager Frank Rush asked if Item 13. Commercial Site Plan Review – Emerald Oasis Car Wash could be moved up to Item 9.5 on the Agenda.

Motion was made by Commissioner McElraft to adopt the Agenda to include the revision requested by Mr. Rush moving Item 13 to Item 9.5. The Board voted unanimously 4-0 in favor. Motion carried.

5. PROCLAMATIONS / PUBLIC ANNOUNCEMENTS

Mayor Schools stated that October is Emerald Isle Firefighter Appreciation month, and recognized Fire Chief Bill Walker in attendance tonight. He also mentioned there was a bike rally here in Town the previous weekend, and they raised $2,700, of which they plan to give $1,350 to EMS and $1,350 to the Fire Department.

Mr. Rush added that he had been contacted by the Muscular Dystrophy Association and they were exceedingly pleased and grateful for the Fire Department’s help with the “Fill the Boot” campaign. They raised over $3,000 for that effort, and they wanted to convey to Fire Chief Walker and our staff what a great job they did.

Mayor Schools noted the following announcements:

Thursday, September 16 – 5:30 pm to 7 pm – Beach Jive After Five – Western Ocean Regional Access
Saturday, September 18 – 9 am – Emerald Isle Fall Cleanup Day – Western Ocean Regional Access
Saturday, September 25 – 8 am – Emerald Isle Triathlon – Eastern Ocean Regional Access
Saturday, September 25 – 9 am to 5 pm – Dog Days Celebration – Western Ocean Regional Access
Monday, September 27 – 6 pm – Planning Board Meeting – Town Hall
Tuesday, October 12 – 6 pm – Board of Commissioners Meeting – Town Hall

Mayor Schools noted that also on September 25^th, the Health Department in Morehead City would be collecting hazardous waste from 8 am – 1 pm.

Diane Schools announced that on Saturday, November 27 the Emerald Isle Business Association and the Town of Emerald Isle would hold its 1^st Holiday Parade at 4 pm beginning at the Western Ocean Regional Access and ending with a tree lighting, caroling, cider and cookies at Merchants Park. She asked that everyone mark their calendars and discuss with organizations or business about participating with a float, boat or creative entry. Mrs. Schools encouraged Scouts, neighborhoods, clubs, etc. to participate for a big, happy, wonderful parade for Emerald Isle.

6. CONSENT AGENDA

Minutes – July 17 Special Meeting
Minutes – August 10 Regular Meeting
Resolution Rejecting NC 58 Bicycle Path Bids
Tax Refunds / Releases

Motion was made by Commissioner Wootten to adopt the Consent Agenda. The Board voted unanimously 4-0 in favor. Motion carried.

7. PUBLIC COMMENT

There were no comments from the public.

8. 2004 CAMA LAND USE PLAN

Bill Farris, Land Use Plan Consultant, presented the final version of the 2004 CAMA Land Use Plan for formal adoption by the Board. He stated that it had been almost 24 months since beginning this process. He said there had been a lot of good work done by the Town and the citizens that participated in the process. Mr. Farris stated that the Plan had been to the Division of Coastal Management and had received a thorough review. He said they had addressed the comments concerning technical changes made by the Division of Coastal Management, and the staff at the Division of Coastal Management had signed off on those changes. He noted the policies and maps are the same. Mr. Farris highlighted the real operational piece of the plan beginning in Part 3 – Land Use Plan – Goals, Policies, and Future Land Use Map. He mentioned that in the beginning they talked and wrote a good deal about a planning vision for Emerald Isle, and that vision was the framework of the template for developing the goals and ultimately the policies in the Plan.

Motion was made by Commissioner Wootten to open the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

There were no comments from the public.

Motion was made by Commissioner Messer to close the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

Commissioner Wootten asked regarding the section New Tools / Reviews and Amendments / Projects, if Mr. Farris could explain where this came from, why it is there, whose requirement, since he didn’t remember this being part of the documentation reviewed before.

Mr. Farris stated it is there for two reasons - because the policies by themselves are not necessarily useful to the Town, you need some mechanism for implementing the policies, and some of the policies are decision guidelines, and other of the policies are project oriented, and this is also a required part of the Plan by CAMA.

Commissioner Wootten questioned on Page 99, Number 3 which states “Establish a program to improve water quality in Archers Creek and Town Creek”. He said when they went through this plan they very carefully said they need to study and get a cost feasibility on the project. He felt this was different than establish a program. After discussion it was suggested that the wording be changed to “Investigate options to improve water quality in Archers Creek and Town Creek”.

Commissioner Wootten questioned the section on Page 99, Projects and Plans, Number 1, the 3^rd bullet item which states - “Implementation of best management practices in new development and redevelopment”.

Commissioner McElraft said they took that terminology totally out of the Land Use Plan.

Commissioner Wootten said they had used the wording “encourage innovative development techniques”.

Commissioner McElraft asked why they needed this as a Plan since they already have a storm water ordinance that is probably stricter than anyone else’s.

Mr. Farris said his view was that this was broader than what was in the ordinance. He said there were storm water issues not related to new development.

Commissioner McElraft stated that this is talking about development and re-development.

Mr. Rush said Item Number 1 is talking about a comprehensive grouping of all of our efforts, development ordinances, storm water control projects, public education campaigns in the future. The 3^rd bullet is clearly related to new development and re-development, but overall the Plan identified as Number 1 is a comprehensive approach that includes a lot of things they are already doing, as well as anything new they may come up with.

Commissioner McElraft said she felt they could leave the 1^st and 2^nd bullet point, but implementation of best management practice in new development and re-development, she felt we already have the strictest storm water ordinances, and to have that as a plan for the future looks as though they haven’t done enough, and she felt they had done enough in that part as far as development and re-development.

Commissioner Wootten pointed out the section on Page 79, 5.3.3 which states “Review current development requirements to identify opportunities to reduce impervious surfaces”.

After discussion it was suggested to substitute the language on Page 79, 5.3.3, in place of the 3^rd bullet under Number 1 on Page 99.

Motion was made by Commissioner Wootten to adopt the 2004 CAMA Land Use Plan as adjusted and agreed to, and submit it to the NC Coastal Resources Commission. The Board voted unanimously 4-0 in favor. Motion carried.

9. ORDINANCE AMENDING CHAPTER 16 – STORM WATER MANAGEMENT – TO REVISE REQUIREMENTS FOR RESIDENTIAL CONSTRUCTION

Town Engineer Greg Meshaw stated that during the work session on August 30^ththe essential elements of two alternatives to an earlier attempt to revise the town’s storm water ordinance were presented to the Board. He said they were presented as alternatives to a much more sweeping revision that was brought to the Board on August 10^th. He said the two alternatives - Alternate #1 which reduced the threshold at which an engineered storm water management plan would be required for single family and duplex development projects from a 5,000 square foot impervious surface threshold to a 2,500 square foot impervious threshold. This Alternate #1 further proposed that below the 2,500 square foot threshold, a plan would still be required, however, the plan would essentially only need to show that reasonable steps would be implemented to insure that storm water runoff would be retained on the site and would not adversely affect surrounding properties. Mr. Meshaw said that Alternate #1 also exempted subdivision projects that only involved the delineation of lot lines.

Mr. Meshaw said they also discussed Alternate #2 which maintained the 5,000 square foot threshold for single family and duplex projects, however, it did away with the requirement that storm water runoff from the first 2” of rainfall on impervious surfaces be controlled in favor of stipulation that 16.67 cubic feet of storage be provided for every 100 square feet of impervious surface. This revision therefore, basically took away the need for someone to have to calculate the storage requirement from an impervious surface subject to 2” of rainfall. He said it is hoped by deleting the need to perform this calculation that the Board of Examiners for Engineers and Surveyors will be placated. He noted that this version also exempted subdivision projects that merely involved the platting of parcels.

Mr. Meshaw said the Board at the end of the August 30 work session decided to pursue Alternate #2 in lieu of Alternate #1, and the more sweeping revisions proposed on August 10^th. He said as promised during that session they had since completed additional “house-keeping” revisions so as to make the ordinance consistent with current town practices when projects are reviewed, and to have agreement between passages within the ordinances. Mr. Meshaw said one of the more notable “house-keeping” revisions eliminates the requirement that wetland mitigation activities must be performed on the same site if the project is a public project that provides storm water management benefits. The revisions now state that mitigation activities for these types of projects can be performed on other sites within the town limits.

Commissioner McElraft noted that these revisions were done not to water down the ordinance. Engineers were saying that the way the present ordinance was written engineering was actually being done without Engineers. She said this revision makes the calculations for the builders, etc. so they are not doing any of the calculations themselves, and therefore they are not doing engineering. She noted that they still have to retain 2” of storm water on the property.

Mr. Meshaw said that was correct, basically the result is the retention of 2”, it merely gives the volume that must be provided.

Motion was made by Commissioner McElraft to open the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

Clint Routson, 9721 Green Glen Road, addressed the Board noting Ward & Smith as the law firm he works with, stated that he had reviewed the modifications and appreciated the fact that the modifications with respect to keeping the original intention was still there. He said there were additional modifications made that caused concern. He referenced Section 16-6 (a) (1) Storm Water Management Standards concerning the requirement that the storm water that leaves the property after the development is equal to the storm water that left it prior to the development. He said this is true up to the 2” period but once you pass the 2” period which is all the town requires you retain, then you exceed that. He felt that language should be modified to recognize that it retains the 2” as otherwise provided.

Mr. Rush said this was intended to be a general statement that they wanted for the same amount of water to be kept from running off the property after development as was coming off prior to development. If the Board felt it more prudent to include the 2” language he did not see a problem. The Board agreed to change the wording in Section 16-6 (a) (1) to read as follows: “….runoff that would have occurred following the 2” rainfall…….

Mr. Routson then referenced paragraph (11) in the same section 16-6 (b) where it refers to detention ponds. He said this is requiring you to use a detention pond because it states “shall”. The Board agreed in Section 16-6 (b) (11) to use the word “may” in place of “shall”.

Mr. Routson next referenced paragraph (14) in the same section 16-6 (b) regarding the highest seasonal water table requiring a 2 foot separation. He questioned how that could be done in some areas. Following discussion the Board agreed to change the wording in Section 16-6 (b) (14) to read “All underground storage of runoff…..”

Mr. Routson then referenced paragraph (17) in the same section 16-6 (b) which he felt needed an exception added for bulkheading, because you wouldn’t have the slope to meet that requirement. The Board agreed to change the wording in Section 16-6 (b) (17) to read “…..except for bulkheaded ponds….”

Mr. Routson’s last comment concerned paragraph (19) in the same section 16-6 (b) which talked of fill of no more than 1,000 sq. ft, specifically the added portion regarding expansion or new retention area shall be constructed on-site. He said this was not a requirement previously and he noted that the Town was exempt from that requirement. Following discussion the Board agreed to change the wording in section 16-6 (b) (19) by changing the phrase “constructed on-site, and be” to “constructed in Emerald Isle” and delete the last sentence in that same paragraph.

Motion was made by Commissioner Messer to close the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

Motion was made by Commissioner Wootten to adopt the Ordinance Amending Chapter 16 – Storm Water Management – To Revise Requirements for Residential Construction as modified in discussion. The Board voted unanimously 4-0 in favor. Motion carried.

9.5 COMMERCIAL SITE PLAN REVIEW – EMERALD OASIS CAR WASH (originally scheduled as Item 13)

Planning Director Kevin Reed stated that Mrs. Linda Ladd had submitted a request for commercial review for the proposed Emerald Oasis Car Wash to be located on Crew Drive immediately east of the existing Citgo Convenience Store. He said the car wash is intended to be a stand alone facility and is not associated with the Citgo store. The property is currently zoned B-3 (Business) and a car wash is a permitted use in this zoning district. He noted that properties to the west, east and south of the subject property are currently zoned B-3 (Business) and the property to the north is currently zoned MH-1 (Mobile Home). Mr. Reed noted that the Town’s newly adopted CAMA Land Use Plan projects this area as being part of the commercial corridor, therefore this proposed development is consistent with the Plan.

Mr. Reed explained that the car wash will use a two-bay automated system that will not involve any full-time employees, access will be provided by two driveways along Crew Drive, the western most driveway approximately 40 feet in width, the eastern driveway approximately 20 feet in width, and the plans show storm water collection facilities infiltration grates located along the entire length of each driveway. He said the proposed storm water system is designed to store in excess of the anticipated amount of runoff. He also noted that the storm water addressed the runoff associated with the impervious area on site, the actual wash systems themselves are what the regulatory folks call an enclosed loop non-discharge system, meaning that the applicant will have to have a Division of Water Quality Permit that shows that the water used as part of the washing process is essentially re-used as part of the washing process, and is not discharged off-site in any means. Mr. Reed said they are proposing two signs, which as a double frontage lot this is permitted. He said the Board had in their packets not only the site plan showing improvements to the property, but also architectural renderings of the proposed structure, as well as proposed building colors. He concluded by saying they are proposing an on-site lighting plan that will utilize four 400 watt metal halide lights. He said the project had been through the Technical Review process, and had found the plan to be in technical compliance. He said the project was presented to the Town’s Planning Board meeting held on August 23^rd, and following discussion the Planning Board voted unanimously to recommend that the Board of Commissioners approve the commercial review for this project subject to the issuance of a permit from NC DENR-DWQ. Mr. Reed noted that the applicant, as well as their engineer was present to answer questions from the Board.

The applicant’s engineer, Joe Dunnehoo, answered questions from the Board describing the details of the car wash water system process. He noted this is the same type of system, different brand as used by Joe Nance, owner of the other car wash on Emerald Drive. Mr. Dunnehoo noted that the plans show a self-service, however self-service does not work well with a closed loop system, and he said they had taken this off.

Commissioner Hedreen asked for more information concerning the collection system, and the mechanics of it. Mr. Dunnehoo provided a detailed description of the water collection system.

Mayor Schools asked about the type of lighting as compared to some other businesses in town. Mr. Reed compared the lighting to the adjacent property, the Citgo station which is a slightly larger site, utilizes six 1000 watt exterior lights that light up the property itself. In addition to that they use sixteen 320 watt canopy lights. Another similar situation would be the Sea Oats Village commercial complex with a series of 27 or 28 - 400 watt lights, their lights can be directed to be horizontal with the ground.

Commissioner Wootten asked about the height of the lights. Mr. Reed said they are proposed to be 30 feet tall. Mr. Dunnehoo explained the type of lights to be used, noting how the lights will be angled overlapping light to the area where people will be washing their cars, the lights can be directed like a flashlight to shine on the area you want to be defined, adding that the light won’t be going outside the property lines. The lights can be adjusted to fit exactly the footprint you want.

Commissioner Hedreen asked how far the light would project, expressing concern about a neighboring residential lot. Mr. Dunnehoo said the light will project about 1000 feet, which is why it must be projected onto the footprint of the lot.

Commissioner McElraft asked about the noise. Mr. Dunnehoo stated that you will hear the splatter of water against the metal as cars are washed.

Commissioner Hedreen questioned Mr. Dunnehoo about his plan for taking care of the water in the paved driveway areas so as not to go into the street. Mr. Dunnehoo described the method to be used to capture any water coming down in these areas, by the use of shallow grates.

Commissioner McElraft asked the applicant if there was a complaint that the light was being directed onto someone else’s property if they would make an adjustment. The applicant Mrs. Ladd acknowledged that she would.

Motion was made by Commissioner McElraft to approve the commercial site plan, including architectural renderings, lighting plan, and exterior color scheme, for the proposed Emerald Oasis Car Wash, contingent upon the DWQ permit being issued.

Mr. Rush clarified that the DWQ permit was for the car wash water reclamation system, not for the surface storm water runoff. The storm water runoff on-site is controlled by the Town, and based on Town Engineer Greg Meshaw’s review of the design it meets our ordinance.

The Board voted unanimously 4-0 in favor. Motion carried.

At the request made by Mayor Schools, motion was made by Commissioner Hedreen to move Item 14 ahead of Item 10 on the Agenda. The Board voted unanimously 4-0 in favor. Motion carried.

DISCUSSION – BOGUE FIELD AICUZ OVERLAY DISTRICT (originally scheduled as Item 14)

Planning Director Kevin Reed updated the Board on the staff’s and Planning Board’s efforts to develop policies to minimize impacts associated with Bogue Field flight operations. Mr. Reed stated that the Planning Board at its meeting held in July, directed staff to proceed with possible amendments to the zoning ordinance which would establish a Bogue Field AICUZ overlay district. He said they directed staff to incorporate several measures as part of the requirements within this overlay district that included; indicating on tax parcel identification cards whether a property was in the footprint of the AICUZ and whether or not it was in an Accident Potential Zone or noise contour; to require or at least urge real estate disclosure for any property transfer located with the AICUZ footprint as well as any lease greater than 90 days for a property located in the AICUZ footprint. In addition the direction by the Planning Board was to ask that staff provide provisions that any new subdivisions or group housing developments that might have restrictive covenants or similar type developments, include language on those plats and the covenants that indicated whether or not a parcel was in an Accident Potential Zone or noise contour, and finally to require, prior to the issuance of any building permit for construction activity within the AICUZ footprint, that the owner or applicant sign a required disclosure form. The Planning Board reviewed staff’s proposed amendments at their August 23^rd meeting, and following discussion voted unanimously to recommend to the Board of Commissioners that the zoning ordinance be amended to establish the AICUZ Overlay District for Bogue Field, and secondly to put the other land use requirements and zoning restrictions in place.

Mr. Reed pointed out that after consulting with Town Attorney Richard Stanley concerning the practical side of requiring disclosure and the Town being party to that process it was determined that the best measure to pursue would be to strongly recommend that anyone selling or transferring property within the AICUZ footprint participate in the disclosure process whether or not the parcel was in an Accident Potential Zone or noise contour. He also noted that the recently adopted CAMA Land Use Plan does include measures to support mitigation of aircraft accident potential and elevated noise levels, and he felt that the establishment of the Bogue Field AICUZ Overlay District and the additional measures was a step in fulfilling that goal.

Mr. Reed said one of the recommendations not before them tonight was a requirement for noise attenuation or any kind of measures for noise attenuation. He said the Technical Advisory Committee of the JLUS process is currently working on a noise attenuation handbook, and they anticipate in the future having two sets of informational documents to provide to the citizens, and the development community.

Commissioner McElraft stated she was glad they were not requiring the real estate organizations to do this, but she mentioned several communities that are already doing this and have done it very well, for example Emerald Landing. She asked if the Town would provide an educational piece too. Mr. Reed said that relates to the next step in the process relative to the Bogue Field Overlay District. He said the Technical Advisory has a grant to do a series of things, and they are currently finalizing an educational piece which consists of a map, and noise attenuation guidelines.

Commissioner Hedreen felt this was a step in the right direction for our community.

Commissioner Wootten asked the status concerning notification of those in this district of this change. Mr. Reed said the initial query into the county database to give all the properties in the AICUZ footprint resulted in excess of 2300 parcels being identified. He said they are currently on schedule to have a mailing in place so they can satisfy the notification requirements and the Board can conduct a public hearing at the October meeting.

Tyler Harris who was in attendance at the meeting, spoke concerning JLUS, in response to a question by Mayor Schools concerning the noise attenuation document. He said that in the interim period within the JLUS plan there are recommended voluntary standards that can be used. He said they hope to condense and have something relatively simple for the general public.

Mayor Schools said if that document was not too long he would like to see it issued with each permit issued in that area. Mr. Reed said that was certainly their goal, as people come in and are identified as being in the AICUZ footprint.

Clint Routson, 9721 Green Glen Road, had comments about the language that the development has to be compatible with the use standards as specified in section 19-87 in the definitions, and he did not see use standards in section 19-87.

Town Attorney Stanley said that should probably read – disclosure standards.

Mr. Routson then said the disclosure section (2) had some language – “failure to do so may be deemed as misrepresentation.” He questioned whether that was appropriate when it is not a mandatory requirement.

Town Attorney Stanley said the Town is not party to these transactions, but they are advising property owners that if they clearly know that you are in the zone and you don’t disclose it then it could be construed a misrepresentation. Attorney Stanley said it states may be deemed not will be deemed.

Mr. Routson asked about section (3) concerning all the subdivision plats. He felt it needed to state that - “all plats approved after the date this plan was approved”.

Town Attorney Stanley said he didn’t see a problem using “all subdivision plats hereafter approved”.

10. PROPOSED REZONING – CERTAIN RESIDENTIAL MOTEL /HOTEL (RMH) PROPERTIES TO RESIDENTIAL-2 (R-2) – PHASE I: EASTERN EMERALD ISLE

Planning Director Kevin Reed summarized for the Board this proposed rezoning. He stated that one of the implementation measures set forth in the 2004 CAMA Land Use Plan was to look at all areas within the Town of Emerald Isle currently zoned Residential Motel / Hotel (RMH) where the underlying land use is currently one and two-family dwellings, and where the future land use map doesn’t project it being mixed residential. He said they’re simply looking at wholesale rezoning from Residential Motel / Hotel (RMH) to Residential-2 (R-2) with the understanding that it will insure that development and redevelopment is consistent with the Town’s small town atmosphere. Mr. Reed said they have divided the Town into sections and started at the eastern most part of Town and identified the areas between 21^st Street and 23^rd Street as being the first area in the Town that meets that criteria that is not shown on the future land use plan as being developed for mixed residential or multi-family residential. Mr. Reed said they decided to pursue this rezoning on a piecemeal basis since it involves large tracts of land, and sending out multiple notices. He said they presented the first rezoning issue to the Planning Board at its August meeting to look at rezoning all the parcels between 21^st Street and 23^rd Street from RMH to R-2, and following Planning Board’s discussion they voted to recommend to the Town Board that the rezoning of this area be approved.

Motion was made by Commissioner McElraft to open the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

There were no comments from the public.

Motion was made by Commissioner Wootten to close the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

Motion was made by Commissioner Wootten to approve the rezoning of all parcels between 21^st Street and 23^rd Street from RMH to R-2. The Board voted unanimously 4-0 in favor. Motion carried.

11. ORDINANCE AMENDING CHAPTER 19 – ZONING – REGARDING NEW OFF-PREMISES SIGNS (BILLBOARDS)

Planning Director Kevin Reed presented information to the Board regarding the proposed ordinance amendment pertaining to the regulation of billboards and other off-premises signs. He referenced his memo to Town Manager Frank Rush which states that the Town has historically interpreted Section 19-138 of the Zoning Ordinance to limit commercial signs in districts to on premise advertising signs. He said in discussing the matter with Town Attorney Richard Stanley it was realized that this needed clarification with a few amendment changes to the zoning ordinance. Mr. Reed said those issued were presented to the Planning Board at their August 23^rd meeting and essentially the amendments are clarifying that permitted signs within the commercial districts are simply advertising signs which is defined as on-premise signs. He said in addition to that are a couple of minor changes proposed to Section 19-134 and Section 19-135 that clarify further what is permitted with regard to an off-premise sign, and what is not permitted. Mr. Reed said the Planning Board considered these amendments at their August 23^rd meeting with the exception of the change to Section 19-135, and did recommend to the Town Board that the amendments be approved. Mr. Reed said the reason the one issue wasn’t presented to the Planning Board at its meeting was that staff was not aware of that possible discrepancy in the ordinance before the Board tonight.

Motion was made by Commissioner McElraft to open the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

Tom Minnick, 9803 Sandy Ct., said it seemed unfair that they are grandfathering all of the signs for everyone but if the movie theatre sign is blown down they are not able to replace it. He said all of us go there and it’s nice to know what is playing. He thought the Board may want to reconsider how that would be handled if it is demolished.

Motion was made by Commissioner McElraft to close the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

Motion was made by Commissioner Wootten to adopt the Ordinance Amending Chapter 19 – Zoning – Regarding New Off-Premises Signs (Billboards).

Commissioner McElraft felt the movie theatre sign was an educational sign, and hoped that staff could come up with something in the event the sign was blown down in a hurricane. Mr. Reed said in discussions with Mr. Rush and a representative of the theatre, he made it very clear that he felt they could work with the Planning Board to come up with an alternative possible amendment to the zoning ordinance that would allow a business such as the movie theatre located in the shopping center to have some additional exposure relative to possible increased square footage in signage or additional signage on-site.

Commissioner Messer asked about situations where a billboard was vandalized. Mr. Reed said the intent of the non-conforming section relative to signage is very clear in the zoning ordinance, it currently says the goal is to get rid of these signs. He said there is a set of criteria, and in looking at the issue of damaged or destroyed it simply says damaged or destroyed greater than 50% of its square footage. He said the language doesn’t allow a lot of latitude.

Commissioner Hedreen asked if this was something that could be looked at down the road. Mr. Reed said he would be pleased to work with the Planning Board to see if the language could be adjusted in order to make some clarification.

There being no further discussion the Board voted unanimously 4-0 in favor. Motion carried.

12. ORDINANCE AMENDING CHAPTER 19 – ZONING – REGARDING EXTERIOR COLOR SCHEMES

Planning Director Kevin Reed said that previously they had asked the Planning Board to look at the requirements for exterior colors relative to commercial structures. He said this was brought about by the repainting of the Eagles Store in Emerald Isle, and the subsequent approval of that color as part of the repainting process. Mr. Reed said the Planning Board at its July 26^th meeting asked staff to look at possible changes to the zoning ordinance which essentially would accomplish two things, first of all, it would simplify the color chart for the Town and get away from a brand specific manufacturer name specific color chart, and secondly it would require all commercial structures regardless of when they are constructed to have to comply with the Town’s color chart requirements with regards to painting and repainting of the structure. He said currently only those commercial structures permitted after January 13, 1998 are subject to the Town’s color scheme requirements unless their repainting exceeds 15% of the value of the building. He said the Planning Board in directing staff to incorporate those two things considered at their August 23^rd meeting a revised color chart, as well as potential changes to Sections 19-71 of the ordinance to clarify that the painting and repainting of structures regardless of when the structure was constructed and permitted would be subject to the Town’s color chart requirements, and following discussion the Planning Board voted to recommend to the Board of Commissioners that Section 19-71 be amended as presented, and the attached color charts become the new color charts of the Town of Emerald Isle.

Motion was made by Commissioner McElraft to open the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

There were no comments from the public.

Motion was made by Commissioner Wootten to close the Public Hearing. The Board voted unanimously 4-0 in favor. Motion carried.

Following discussion, the general consensus of the Board was that Commissioner McElraft and Commissioner Hedreen work with Planning Director Kevin Reed to further review the proposed color charts.

15. ORDINANCE AMENDING CHAPTER 5 – BEACH AND SHORE REGULATIONS – TO ENHANCE THE PROTECTION OF ENDANGERED AND/OR THREATENED SPECIES RELATIVE TO BEACH DRIVING

Town Manager Frank Rush presented information to the Board concerning this ordinance amendment to Chapter 5. Mr. Rush said they have brought back to the Board some additional language for the beach driving regulations that are intended to further protect endangered or threatened species out on the beachfront, primarily turtles, and birds.

The following is information from Town Manager Frank Rush’s memo to the Board provided for background:

The attached ordinance indicates the proposed amendments using the “strikethrough” and “underline” features. The proposed amendments are summarized as follows:

Definitions for ‘closed sections of the beach’, ‘endangered species’, ‘harm’, ‘take’ and ‘threatened species’ have been added to the ordinance to clarify the meaning of new ordinance provisions. These definitions are nearly identical to the definitions used in the Federal Endangered Species Act and used by the US Fish and Wildlife Service.

The provision authorizing the Town Manager to close the beach or certain sections of the beach for health, safety, and welfare reasons has been amended to allow the Town Manager to make this determination for a period of up to 30 days. The current ordinance allows a 10-day period, and the additional time frame is suggested to adequately cover the period of time after the April 1 date when no driving will be allowed at The Pointe (as per the Waterbird Management Plan). The 30-day period will also adequately cover the period of time between regular Board meetings.

A new section entitled “Protection of endangered and/or threatened species” has been added. This section specifically makes it unlawful to take or harm any endangered and/or threatened species, either intentionally or unintentionally. This section also retains the requirement that the permit applicant sign a statement acknowledging their sole liability for any penalties associated with the take or harm of a protected species.

This section also authorizes the Town Manager to close sections of the beach to vehicular traffic if necessary to protect endangered and/or threatened species. The same 30-day time period is included in this provision. The intent of this section is to allow areas immediately adjacent to sea turtle nests and between the nest and the surf zone to be posted and flagged to prevent vehicles from traveling in that area. The intent is not to close an entire block or wide area of the beach; only enough area to prevent driving over nests and to limit impacts from tire ruts on the turtles’ journey from the nest to the sea. If a nest is located directly at the base of the dune, I envision posting and flagging a corridor from the nest to the surf zone, but retaining a sufficient passageway for vehicles to travel through. This approach would reduce the area that turtle volunteers would need to rake. This provision would also allow the Town to post and flag an endangered and/or threatened bird nest if necessary

Finally, this new section also indicates that the Town will alert the US Fish and Wildlife Service about any known violations of these provisions so that they can follow up with the appropriate enforcement actions.

· The penalty provisions would also be amended. Violations that are considered motor vehicle moving violations (speeding, reckless driving, DWI, etc.) would be addressed with penalties spelled out in the NC General Statutes, and would be considered infractions with a maximum fine of $50 (plus court costs; similar to all other moving violations on public roadways). Other non-moving violations (driving without a permit, taking or harming endangered and/or threatened species) would be considered a Class 3 misdemeanor, and would result in a maximum penalty of $500 per offense (the current ordinance specifies a $50 civil violation). These penalties would be in addition to any penalties imposed by the US Fish and Wildlife Service.

The Board should note that the penalties imposed by the US Fish and Wildlife Service under the Endangered Species Act for taking or harming endangered and/or threatened species are very severe. These penalties include a maximum civil fine of up to $25,000 and/or a criminal fine of up to $50,000 plus up to 12 months in jail. (I have attached an excerpt from the Endangered Species Act that outlines the penalties.) I suspect that the severity of the penalty imposed would be heavily dependent upon the circumstances surrounding the offense, and I would surmise that a truly accidental offense would not be handled as severely as one with malicious intent.

The proposed amendments will enable us to provide additional protection for endangered and/or threatened species on the beach strand in Emerald Isle (primarily for sea turtle nests and bird nests). We are hopeful that the additional language about endangered and/or threatened species and the harsher penalties will also further deter beach drivers from any behavior that might result in the taking or harm to an endangered and/or threatened species. At a minimum, the implications of such behavior will likely result in an even higher level of awareness among beach drivers, the vast majority of whom are already very careful and responsible on the beach. Additionally, we believe that the addition of this language will strengthen the Town’s defense if the US Fish and Wildlife Service and/or any other entity attempts to hold the Town liable for the taking or harm of an endangered and/or threatened species.

Mayor Schools asked if there were comments from the public.

Emilie Zucker, Cape Emerald, said she appreciated the time and effort taken by Mr. Rush and Mr. Stanley to work on this because it may help. She commented that when you put cars and critters together, critters lose. She said she attended a workshop here on July 17^th and felt if these new provisions raised the awareness of folks that were here that would be a benefit. She felt maybe it would also provide safety and protection for the Town if there is an accident or a take of an endangered species by one of the vehicles on our beaches.

Tom Minnick, 9803 Sandy Ct. stated that for the past 2.5 weeks the water had been up to the dune levels. He said they had 100% occupancy in beach homes this week in his area and there were a lot of people on the beach. He had noticed visitors digging a huge hole in front of his property, and he thought what would happen if that hole was there come September 15^th and someone is driving at night, they might not even make it because the water is up to the dune. He asked that the Board give Mr. Rush authority to shut down beach driving when the water is up to the dunes because there would be those who would try to go to the Point regardless.

The Board pointed out that Mr. Rush already had this authority.

Bernie Zucker, Cape Emerald asked for clarification on fines for driving on the beach in terms of enforcement. He asked what mechanism was in place for someone who gets a fine and doesn’t want to pay.

Mr. Rush said that as with any law or ordinance that they enforce, they do the best they can with the manpower available. He said they do the best they can with the Police Department patrolling the beach, checking for stickers, speeding violations, etc. He said if it is a moving violation it is processed through the state system, if it is simply a matter of a person not having a proper permit that is treated as a civil violation currently, and we are now changing that so it proceeds through the state system, a violation with a penalty not to exceed $500.

Mr. Zucker mentioned a rumor that someone had been telling people who come for permits that a summons is only $50, so therefore, don’t get a permit, get the summons, and based on that law, which has now been changed, they wouldn’t have anything to worry about. He felt the Board should be aware and that it should be addressed.

Town Attorney Stanley said that rumor could now cost them up to $500. Attorney Stanley explained that state law is very specific on moving offenses or infractions with fines up to $50, he said they would have like to gone higher on the speeding or other moving violations but they were limited by state law.

Commissioner Wootten referenced the police report that is included in the Managers Report to the Board. He said he would like to give guidance to Mr. Rush that the Police Chief expand his reporting mechanism to show hours spent at the beach, on the ramps, the objective being that they do everything possible to enforce the regulations on the beach, primarily to stop people without permits from going on the beach.

Doje Marks, 134 Sandcastle Drive, liked Commissioner Wootten’s suggestion. She said listening to her scanner she had always felt that the biggest problem was reckless driving on the beach.

Motion was made by Commissioner Wootten to adopt the Ordinance Amending Chapter 5 – Beach and Shore Regulations – To Enhance the Protection of Endangered and /or Threatened Species Relative to Beach Driving Activities. The Board voted unanimously 4-0 in favor. Motion carried.

16. ORDINANCE AMENDING CHAPTER 5 – BEACH AND SHORE REGULATIONS – TO AMEND BEACH HORSEBACK RIDING REGULATIONS

Town Manager Frank Rush stated that this ordinance amendment will simply change the dates for horseback riding to be consistent with beach vehicle driving. He said approximately 1.5 to 2 years ago they amended the horseback riding ordinance to be consistent with beach driving. Now with the recent changes in the beach driving dates, some of the horseback riding interests had requested that they amend the ordinance again to be consistent with beach driving, allowing horseback riding on the beach from 5 am on September 15 until 9 pm on April 30, with the exception of the period from 9 pm on the Thursday before Easter until 5 am on the Monday that occurs 8 days after Easter Sunday.

Mayor Schools asked if there were comments from the public.

Tom Minnick, 9803 Sandy Ct. said the biggest problem with horses is they do not clean up after themselves at all, and it is an issue that needed to be addressed.

Commissioner Wootten spoke concerning horses on the beach at night, and also the hours of operation of driving on the beach period. He felt they should revisit that 9 pm deadline for certain months because no one needed to be on the beach at 9 pm in the November, December, January timeframe.

Motion was made by Commissioner McElraft to adopt the Ordinance Amending Chapter 5 – Beach and Shore Regulations – To Amend Beach Horseback Riding Regulations.

The Board following discussion voted unanimously 4-0 in favor. Motion carried.

17. COMMENTS FROM TOWN CLERK, TOWN ATTORNEY, AND TOWN MANAGER

Town Clerk had no comments.

Town Attorney Stanley stated that the Judge entered the order in McCann vs. the Town granting summary judgment has been filed, and that ends that rezoning lawsuit.

Attorney Stanley provided the status of easements for the inlet project.

Town Manager Rush stated that they had received the 401 Water Quality Certification, the state CAMA permit, approval of the Biological Assessment by the US Fish & Wildlife Service, and that he had reviewed the draft of the Corps of Engineers permit today. He would be going to sign tomorrow, so they would have all permits for the Bogue Inlet project tomorrow at this time.

Mr. Rush said he would be meeting with Tom Jarrett to review the plans and specifications, hoping to take bids in mid to late October, dredge out there in November. He said the permit limits the work to November 16 and March 31, so the earliest date work would begin would be November 16^th.

Mr. Rush said they had signed a contract with Emerald Isle EMS for four months which will expire at the end of October. Mr. Rush said at that time they decided they would get back with Emerald Isle EMS in September and renegotiate the contract and extend it for a full year. Mr. Rush said it would helpful for him if the Board could designate two of the six Board members to work with him in negotiating with Emerald Isle EMS, and then come back at a future meeting with a contract for formal Board approval. It was decided by the Board that those two board members would be Commissioner Hedreen and Commissioner Wootten.

18. COMMENTS FROM THE BOARD OF COMMISSIONERS AND MAYOR

Commissioner Hedreen had no further comments.

Commissioner McElraft had no further comments.

Commissioner Messer had no further comments.

Commissioner Wootten asked Mr. Rush about the pipe in the inlet. Mr. Rush said this was an issue they would work out with the dredging contractor.

Mayor Schools had no further comments.

19. ADJOURN

Motion was made by Commissioner Messer to adjourn the meeting. The Board voted unanimously 4-0 in favor. Motion carried.

The meeting was adjourned at 8:35 pm.

Respectfully submitted:

Rhonda C. Ferebee
Town Clerk