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September 17, 2001 Agenda
September 17, 2001 Minutes

Town of Emerald Isle Regular Planning Board Meeting
Monday, September 17, 2001
7:00 P.M. - Town Hall

Call to Order
Roll Call
Report from Town Manager
Report from Inspections Department
OLD BUSINESS:
Reed Drive Commercial Park, Revised Preliminary Plat, Block 42, 3-lot Subdivision at corner of Coast Guard Road and Emerald Drive – Paxon Holz, John McLean, Alan Bell

NEW BUSINESS:
Sunset Harbor Preliminary Plat, Block 38, 8626 Sound Dr, Lot 5 – Ricky Farrington
Sunset Harbor Preliminary Plat, Block 38, 8624 Sound Dr, Lot 6 - Ricky Farrington
Sunset Harbor Preliminary Plat, Block 38, 8622 Sound Dr, Lot 7 - Ricky Farrington
Rezoning Request by Martha Howe to rezone a portion of Island Harbor Mobile Home Park/Marina from B-3 to Mobile Home (MH) – Georgia Murray

Comments:
Adjourn
Mary Ceil Saunders, Chairman
Town of Emerald Isle Planning Board

Town of Emerald Isle
Regular Planning Board Minutes
Monday, September 17, 2001 The meeting was called to order at 7:00 P.M. by Chairman Saunders. Those in attendance: Ceil Saunders, Frank Vance, George McLaughlin, Phil Almeida, Ed Dowling, Art Daniel, and Fred Josey. Others attending: Frank A. Rush, Town Manager; Carol Angus, Secretary; and Building Inspector, James W. Taylor.

Approval of Minutes of August 20, 2001 – There were changes made to the minutes that were noted and will be made to the original minutes. Motion to approve the minutes was made by George McLaughlin, with the changes, second by Ed Dowling and unanimous approval in favor of the motion.

Report from Town Manager – Mr. Frank A. Rush, Town Manager, gave a brief summary of the Town Board of Commissioners meeting of September 11, 2001.

Report from Building Inspector – Mr. James W. Taylor, advised the board that the estimated value of construction for the month of August, 2001 was $1,633,150.00 with 6 new residential starts.

OLD BUSINESS:

Reed Drive Commercial Park, Revised Preliminary Plat, Block 42, 3-lot subdivision –

Mr. John McLean was representing this project for the W.B. McLean Residuary Trust.

Mr. Rush advised the board that the previously approved project for the closing of Reed Drive, as a public street to a private street, was withdrawn from the Commissioners meeting. It was discovered that there is no provision within the subdivision ordinance that allows private streets. Due to this discovery, no further action could be taken by the Commissioners. Mr. Rush advised that he is going to recommend to the Board of Commissioners that an amendment be made to the ordinance that allows private streets, since there are many such subdivisions throughout the town. He will bring it up at the workshop on September 24.

There are only design standards in Chapter 17 relating to private and/or public streets.

Mr. Josey said he did not understand why, but, at the last town board meeting the town attorney said that because another situation had been allowed to continue for this long, through interpretation, that it had set precedence and could stand. Why cannot this same decision prevail?

Mr. Rush replied that in the previous instance, the stormwater ordinance, there is a section that requires a drainage plan. It is a one-line statement that requires a stormwater management plan. That was considered to be more of an interpretation issue. Mr. Derek Taylor, Town Attorney, suggested that the town continue with past practice. In the current situation, it is clearer that it is only mentioned in planned unit developments to have private streets.

Mr. Daniel asked what the largest commercial area is in Emerald Isle, and, what type of street entry is there? He was advised it is Emerald Plantation and the entry is a private street to the Emerald Plantation Shopping Center. He felt that precedence had been set with that street.

Chairman asked the members if they would like to go back to the August plan and ask that it be approved with an ordinance amendment to allow the private road? This would allow the taxpayers to not have to pay for the upkeep of the road.

Mr. Rush said they certainly could ask the Board of Commissioners to make that change, going on past precedence of private streets being approved. He went on to advise that he felt that the amendment done in 1987 to the Streets and Sidewalks ordinance, concerning private and public streets, did not get carried through to the Subdivision ordinance. He felt that it was the intent to have it included in Subdivision; however, it did not get carried through. An amendment would make all the private streets in compliance. There are certain places in the ordinances, such as planning unit developments, that does specify public or private streets; however, not in the subdivision ordinance.

Mr. Daniel then made a motion to recommend to the Town Board of Commissioners to amend the ordinance to allow private streets, Mr. Josey seconded. Mr. Dowling asked about the width of the street right-of-way and it was agreed that private could be 40’ and up to 60’ for public streets. Ms. Saunders then asked for a vote to the motion.

Mr. Almeida asked what was the motion? Chairman Saunders responded that it was to send the August plan back to the commissioners with the stipulation that the ordinance be changed to allow private streets.

Mr. Almeida asked why this board is sending it back? Is the August plan being returned to the Planning Board? Ms. Angus clarified that the August plan did not go before the Town Board of Commissioners, only the closing of Reed Dr. Ext. was on that agenda. She added that the motion might be to proceed with the August plan of Reed Drive Commercial Park with the amendment to the ordinance to allow private streets. Mr. Almeida added that the August plan has already been forwarded to the Town Board of Commissioners.

Mr. Rush said if it is the desire of the Planning Board to continue with the previous plan and to suggest an ordinance amendment, he will bring it up at the Town Board of Commissioners

Workshop on September 24^th. There would be discussion and possibly get the project back on schedule for the October 09 meeting of the Commissioners. He went on to advise that he would suggest that if this is the wish of the Planning Board, to refer to the previous plan, that the plan submitted for this meeting not be considered.

Mr. Dowling asked what will become of the plan before them now, the 3-lot subdivision Reed Drive Commercial Park. Should it be tasked first?

Chairman Saunders said she felt it should be rejected because the Planning Board would prefer the entrance be at Reed Drive and exit at the south side across from the Pebble Beach entry.

Mr. John McLean, representing the property owner, said he would withdraw the plan before them tonight.

The project for the 3-lot subdivision for Reed Drive Commercial Park was withdrawn from the agenda.

Mr. Dowling said that (amendment re: private streets) is not in existence, in the ordinance, so therefore, how are you going to discuss it? We have no parameters to go by, we need the Commissioners to tackle that first and give us guidance. We are going out in left field on an issue, according to the Mayor’s statement, she doesn’t want us to touch.

Mr. Daniel said that in deference to that, the Town Manager had just said it would be brought before the board at their workshop on the 24^th.

Mr. Almeida said they had been directed not to take up any issue concerning any ordinance unless directed by the Board of Commissioners. If that is true why are we considering this motion?

Chairman Saunders said they are considering it with a recommendation for the ordinance change.

Mr. Almeida went on to say they were not to go on with it unless they are directed to do so.

Mr. Dowling said this came about when two members went to the fire department and they were told that their purpose was a new issue and you were not to go without specific guidelines from the Mayor or the Board of Commissioners.

Mr. Rush said he is again suggesting that this be brought before the commissioners at their workshop on Sept. 24^th. Following that workshop we can bring that back to the Planning Board in October, with the suggested language. That should satisfy the concerns with being tasked to be able to continue. He does not think it was the boards intent.

Mr. Almeida said he wanted the group to decide, he is against it.

The motion made by Mr. Daniel was withdrawn, second withdrawn by Mr. Josey.

Mr. Rush added that recently there had been discussion that another loop road plan would be submitted, with a public road, to exit at Pebble Beach. That did not materialize.

Mr. Almeida said he felt they had considered the plan submitted tonight some time ago, and it was turned down.

Mr. McLean said he wanted to be turned down, he, too, needed direction. He submitted a plan and needs to know something.

Chairman Saunders said she felt the precedent has been set, with all the private road subdivis-ions. This (project) has been going on for over a year. A decision has to be made, and it should be at the commissioner’s level, not the Planning Board. A recommendation was made to the Board of Commissioners in August, and she felt they should stick with it.

Mr. Vance agreed that the previous submission should have been considered. Who stopped it being considered Sept. 11^th at Town Board? Mr. Rush replied that he stopped it.

Mr. Vance asked Mr. Rush if he had that authority? Mr. Rush said he felt he did, because the plan submitted was not in conformance with the Town subdivision ordinance. He had also spoken with the Town Attorney who agreed with this decision. He went on to add that the plan for the subdivision was not on the agenda, only the Resolution of Intent to close Reed Drive. The subdivision could not be considered until the road situation had been resolved. It is a legal requirement. The timeframe for closing a road is considerably longer than for subdivisions approval, so it had to be held until such time the road had been closed. Then the subdivision would have been considered.

Chairman Saunders then called on Commissioner Wootten who was in the audience.

Commissioner Wootten said he wanted to clarify that the previous plan had not been rejected, it was not on the agenda. The commissioners can pick up that plan at any time they choose, but it must be done in conjunction with closing the road. The commissioners, at their 24^th workshop, are going to discuss modifying the ordinance to allow private roads, so there may be no need of any action by the planning board at all.

Mr. McLean asked if he could make a statement regarding water main line. He said the board may be interested in knowing that the water company services 76 miles of water main. The Powell Bill application is somewhat less than 50 miles. There is a 10-mile road that goes down Hwy 58, so there may be about 15 miles of private streets to date.

NEW BUSINESS:

A. Sunset Harbor Preliminary Plat, Lot 5, 8626 Sound Drive

B. Sunset Harbor Preliminary Plat, Lot 6, 8624 Sound Drive

C. Sunset Harbor Preliminary Plat, Lot 7, 8622 Sound Drive

Motion was made by George McLaughlin to withdraw these three projects due to no representation; second by Fred Josey. Mr. Almeida said there were some items missing from the plans and wanted to give the Secretary his list of items so they can be added for review for next month. Mr. Daniel said there was not to be any discussion at this point; Mr. Almeida withdrew his recommendation for these additions. The vote was then unanimous in favor of the motion.

D. Rezoning Request by Martha Howe to rezone a portion of Island Harbor Mobile

Home Park from B-3 to Mobile Home (MH).

Ms. Georgia Murray was attending to represent Ms. Howe for this rezoning request.

Chairman Saunders complimented Ms. Murray on the map that was submitted, being done in colors and graphics.

Ms. Angus, Secretary, indicated on the map she had submitted, just where the zoning areas crossed and the proposed area to be contiguous with the existing mobile home zoning. The rezoning will also bring seven of the mobile homes in the park into com-pliance, since they were put in the park in the commercial zone a number of years ago. The two areas of development (.) on the North side of the map were the marina store and the marina fuel tanks, which will remain in B-3.

Mr. Josey asked that the specific Mobile Home zone, I or II, should be noted on the request. Island Harbor Mobile Home Park should be noted Mobile Home I, being in conformity with those existing.

There was further discussion regarding the traffic pattern. Further discussion about the ownership of the existing road into the marina. There is a general feeling that the Powell Bill Map is incorrect and the road belongs to the owners of the property. This matter will be researched and determined for the next meeting by Mr. John McLean who prepares the Town of Emerald Isle Powell Bill Map. The number of units that may be permitted will not be more than two, at the center of the area, and possibly one on the east side which is already in the mobile home zone.

Mr. Daniel asked when the adjoining property owners will be properly notified of this rezoning request. A notice will be mailed to each of the adjoining property owners for the time of Public Hearing at the Town Board of Commissioners meeting. Mr. Daniel also asked when the discussion would be held for the highest and best use of the property? He was advised that, this request is only for rezoning, the use is not to be considered until it is requested. Mr. Daniel said he felt the state of North Carolina had gotten left behind in the Eastern United States statewide planning effort.

Secretary Angus read a statement she had received from Richard Ducker, Institute of Government in Chapel Hill. He had concurred with the scenario that has been presented for this rezoning request; rather than to rezone Ms. Howe’s first request to me to rezone just a portion of the B-3. She was not comfortable with the initial request because it may be construed as spot zoning. Ms. Secretary then read the statement from Mr. Ducker:

“This one is a bit hard to visualize, but I’ll give it a try. I guess my first question is whether rezoning is the only solution for the property owner. Would a proposed text amendment to allow mobile homes as a principal or accessory use in a commercial district make any sense? I suggest this, not because it is such a good idea, as I do because rezoning a donut hole may be such a bad idea.

If the proposed zoning district boundary is not described as a property line in a deed or on a plat, it is certainly legitimate to ask for a metes and bounds description. Or, if there is some other sort of a boundary that is described elsewhere, you could say that the new district boundary lies parallel to and 50 feet south of a northern property line, for example.

The situation you describe certainly sounds a bit suspicious and might amount to spot zoning. Joining newly rezoned land to contiguous land already zoned the same way is a means of avoiding a spot-zoning claim. Yes, that might make the rezoning appear to be logical. However, the matter ultimately depends on all of the circumstances surrounding the zoning amendment.

Let me know whether you want to pursue this matter or if I can be of any other help.

Rich Ducker

Institute of Government

919/966-4179

ducker@iogmail.iog.unc.edu

Motion was made by Ed Dowling to proceed to review committee, Wednesday, September 19, 2001, second by Phil Almeida, with unanimous approval in favor of the motion.

Mr. Dowling asked, in view of what has happened in our country this past week (World Trade Center tragedy) that all bow their heads for a moment of prayer.

Fred Josey advised members that they might like to have a copy of the Powell Bill Map (street map).

Mr. Almeida was concerned that he had seen evidence that there may be some widening of Coast Guard Road. If that is true, he wanted to protect the oleander plants.

Mr. Rush advised that the markings Mr. Almeida sees is the flagging for the irrigation project that the town has undertaken to irrigate the plants in that area.

Mr. Almeida said, “I think the planning board has done an excellent job this year fori all the work they’ve put in. I want to go over some of the areas where we might be able to improve.

Here are some of the suggestions I have made. Take it in the spirit that I make them. One area is communications. I think the communications between the Planning Board and the Board of Commissioners has not been very smooth. Here are two examples. One is the Paxon Holz case previously. The Planning Board had never approved it as it was presented to the Board of Commissioners as having been approved. Some of you may have been present , it never should have brought it up to the board of commissioners. That is one instance. The second instance is, as discussed earlier, subidivsion ordinance. Because there are some deficiencies in the subdivision ordinance, it is my suggestion that we study it. Of course, a decision was given that was not communicated, at least I did not know about it till I raised the issue. So I would suggest that we improve on that communication. While we are are it on the subdivision ordinance, I think the Board of Commissioners may have overlooked what the town ordinance says regarding planning board functions. Referring to Chapter 13. You will see in items four and I will read it. Develop and recommend policies, ordinances, administrative procedures, and other means for carrying out the comprehensive plan in a coordinated and efficient manner; I submit that that gives the Planning Board the authority to look some issues that we feel are deficient. What I would suggest is that the chairman take it up with the Board of Commissioners. Point this out to them and maybe we can look it over and discuss it and let us know their decision.

Chairman Saunders agreed that some changes have been made that the Planning Board had not been aware of. Mr. Dowling said he wanted the Planning Board to go on record to improve the communication between the two boards. He wants free latitude, they are all mature adults, they all took an oath, and are not going to be improper in their conduct.

Mr. Almeida said the current ordinance does not protect the public, but gives shelter to the developer. He feels that the ordinance allows the Planning Board to look at issues without a directive from the Board of Commissioners.

Mr. Rush said he will bring up this issue at the workshop, as well on the 24^th.

Commissioner Trainham then spoke from the audience, to advise that they do not want to micro manage and wants things to go through the Town Manager.

There being no further business before this board, motion to adjourn was made by Phil Almeida, second by Frank Vance to second with unanimous approval in favor of the motion.

Respectfully submitted by:

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Carol Angus, Secretary
Town of Emerald Isle Planning