TOWN OF EMERALD ISLE
PLANNING BOARD MINUTES
REGULAR MEETING
TUESDAY, MAY 28, 2002

The meeting was called to order by Chairman, Phil Almeida at 7:00 P.M.

Pat Patteson asked if there was anything in the budget for additional staff in that department?

#          Permits                                     Estimated Value

37            Construction Permits                 $1,511,745.00

James advised that the Town had qualified for additional sandbagging at the Point area.

5. Reed Drive Commercial Park, Final Plat – Mr. John McLean represented this item. 

Mr. Patteson asked Mr. McLean about the signs at the two points of entry that were to be placed.  Mr. McLean said they are on order and should be in place very soon.

Mr. Dowling said he still did not see the notation regarding the deed restrictions regarding wetlands filling.  Mr. McLean approached the board table and indicated on the map before Mr. Dowling where this notation had been included.  Mr. Dowling apologized for the oversight and thanked Mr. McLean for pointing this out to him.

Chairman Almeida asked Mr. McLean if it was not correct that there had been some deviation from the typical street section from the Preliminary Plat?  Mr. McLean agreed.  Chairman Almeida asked about the shoulders, the town calls for six feet and there are three feet?  From the letter received, he gathered it is because the stormwater drainage plan had been based on three feet of shoulder.  Mr. McLean replied that he could not disturb more than three feet around the entire project.  The shoulders have been vegetated, mulched, fertilized and seeded.

Chairman Almeida continued that the shoulders still do not conform to the town ordinance. Mr. McLean reminded Mr. Almeida there was no town ordinance for curb and gutter when this was approved.  He does not consider curb and gutter as a shoulder. When the development comes along, they will take out that section of curb to do whatever needs to be done.  They are not 6” vertical cuts that you may see that would stop an automobile, these do allow an auto to roll on over.  Mr. Almeida said that in the future what is necessary is a cover letter with the Preliminary Plat describing in more detail what the scope of work entails so there is no misunderstanding what will be done.  He asked Ms. Angus to be sure that this cover letter is included with each Preliminary Plat, to include a description of the project and any deviation from the town ordinances.

Mr. Daniel referred to Section 18-62 “When local improvements may be installed.”  “No local improvements or utilities, including water, sewer, storm drains, paving, curb and gutter, shall be constructed until the preliminary plat and completed detailed plans for such improvements have been examined, analyzed, and approved by the board of commissioners.”  This section implies that there is supposed to be construction plans submitted and approved before any construc-tion takes place.   

Mr. Almeida said he thought what has been happening is that based on a prelim-inary plat, the construction goes ahead without a detailed set of  construction drawings. It is a question of enforcement, to be taken up separately.

Chairman Almeida asked for any comment from the public. There was none and the discussion to the public was closed.

Ms. Erikson said she is still concerned about the possibility of someone exiting Reed Drive crossing Coast Guard Road and entering via the right turn exit lane of Reed Drive Extension.  Mr. McLean said that this has been discussed before, and the decision was made to paint the two arrows on existing Reed Drive to left or right, and a “No Through Traffic” sign. 

Mr. Taylor, Inspections Director, advised further that the pavement exiting Reed Dr. Ext. has been placed slightly more to the north to give it more curvature so that it would not be as likely for traffic to try to cross.  The roads were intentionally misaligned just to serve this purpose.  With the placement and the installation of the signs is about as good as it can get.

There was some additional conversation to the effect that this scenario is the most effective way to direct the traffic with least amount of conflict.

Mr. Patteson asked that dotted lines (slashes) be placed on the map to indicate where the pavement actually exists.  This will illustrate that the two portions of Reed Drive are not directly opposite each other. Also, show the curve of the exit to the left of the Commercial Park toward Hwy 58.

There was some discussion about photos, but decided that the drawing on the map would be sufficient.

Motion to recommend the Reed Drive Commercial Park be approved was made by George McLaughlin, second by Patteson, with unanimous approval.

Mr. McLaughlin thanked Mr. McLean and Mr. Bell for their tour of the property just prior to the last meeting.

Chairman Almeida brought up the issue of construction drawings for the streets.  He said that once the Preliminary Plat is approved it has been the practice to use it for going and doing the construction, without a set of detailed construction drawings.

Ms. Angus replied that she believed what was submitted with the plats was what was required.  It showed the typical and cross section of the street to be constructed.

Chairman Almeida said this is not sufficient, the cross section is not what was shown at the Reed Drive site. 

Mr. Daniel said a proposed plan shows a profile of how it goes up and down. Then you have cross sections and cut and fill that you have a cross section every 50 feet.  With no real cut or fill to balance you could use a 100 foot stations. As part of that, if you are going from station 0 to station 5 + 45 or something like that, you’ve got one typical section.  When you go from 5+45  to 6+75 you may have another typical section.  It shows the specifics at each location. That has been the policy since the 1800’s.

Ms. Angus asked who she should call to make those determinations? This could be by an engineer that has been included in the proposed budget. Ms. Angus knows she is not qualified to approve them.

Mr. Rush said he believed that would be the person to review the plans, if that budget item is approved by the board.

Mr. Daniel said these plans will show the drainage systems, culverts or whatever will show up in that detail.  All spelled out specifically to where it goes.

Mr. Patteson asked Mr. Daniel if he could do a preliminary review of the construction plans prior to an engineer looking at them.  Mr. Daniel replied he thought that ought to come before the Planning Board for review.  If it necessary may be reviewed by the consultant. There usually changes to plans as work progresses with field changes.

Chairman Almeida said he will be glad to help with this review of construction plans. He also wants the plans drawn up to a larger scale showing the surrounding area.

Mr. Daniel said he would like to work with a ‘sketch plan’.  The developer comes in with a plan and the discussion takes place for development.  It goes ‘sketch plat’, then the plan then the preliminary plat. That does not leave the developer out of the concerns.

Chairman Almeida said there also needs to be a set of procedures for changes made to an approved Preliminary Plat.  He wants to take this to the commissioners.  This would keep the Board of Commissioners appraised of the changes. It would not have to return to the Planning Board.

Mr. Rush said he would see that this would be conveyed to the commissioners.  He would like to see this brought up in the subdivision committee meeting.

6. Rezoning Request from R-2 to B-3 by Wm. Farrington 204-210 Bogue Inlet Drive

Mr. Wm. Farrington was present to represent this request for rezoning.

Mr. Farrington had to indicate on the map that portion of the map that will remain as R-2; however, will not be a buildable area.  It will remain more as a buffer or common area including the creek. 

There was discussion regarding the water line as indicated on the map since the creek is all on this property. Mr. Daniel gave quite a bit of intricacies on land surveying and what should and should not be included on the map. Mr. Patteson added some further views from a contractors perspective. 

 It was determined that the map should show the north and south side of the creek on the plat.  A  northern portion of the property is to stay in it’s present R-2 (residential) zoning with the remainder of the lot as B-3 (commercial) so that there would be a 50’ buffer between the property under discussion and the residential lots on the north side of the creek.

Motion was made by Pat Patteson, second by Ed Dowling, to recommend approval of the rezoning from R-2 to B-3 for a portion of 204 – 210 Bogue Inlet Drive vote was unanimous with Mr. Daniel’s abstention.

7.      Consideration for relief of third story limit for single-family and duplex structures, Sections 19-101, 102, 103, and 106 –

Mr. Rush briefed the members on the background for this request.  The request came before the Inspections dept. several weeks ago involving a fourth floor of a dwelling. The use is for a loft, or viewing area.  After discussion with Ms. Angus and Jim Taylor it was determined that this use would constitute a story according to the town definition, which cannot be permitted with the third story limit on all structures as well as a 40’ height limit.

(Definition of ‘story’ by town codification: Story means that part of the building comprised between a floor and a floor or roof next above, to include ground and having a minimum head space of four feet.)

Mr. Rush met with Mr. Curtis Estes, the contractor making the request, and advised him that he has two options.  One, to appeal the determination to the board of adjustment; or two, approach the planning board and town board about changing the ordinance.  He chose to request an ordinance amendment.  It was briefly discussed at the commissioners May meeting and referred to this board for review.  Mr. Rush added that the inclusion of the single-family and duplex structures included in the March 2000 ordinance change may have been included in error. Mr. Estes would like to see the amendment to read that there be no limit on the number of stories involved but retain the 40’ height requirement.

Mr. Estes addressed the board and advised that the definition of story in state building code is the story above grade. That would constitute a one-story house on pilings. The piling level is not considered a story, by that definition.  The town definition does cause problems in flood zones and on the ocean front.

Chairman Almeida asked Mr. Estes if he understands correctly, that you would have 8 or 10 feet  on pilings and you want to allow another three stories above that?  Mr. Estes said that was correct, and to not exceed the 40’ height limit.

Chairman Almeida asked about attic storage or livable space?  Mr. Estes said, both livable and attic space.  The town definition restricts you from putting plywood in your attic space for storage.

Commissioner Farmer commented from the audience. She said she wanted to comment on the intent of the board.  It is a reverse of the situation we had with Mr. Watson’s hotel. The intent for Mr. Watson’s hotel was that it is in a commercial district, and to limit that district to three stories and allow the extra height for roof configuration.  The intent for residential was never to limit the number of stories at all.  It was limited strictly by height which is 40 feet.  This board can discuss whether this is a good ordinance or not, but it was clear to her that the intent was not to apply it to single-family and duplexes.  She summarized by saying “The way the ordinance reads right now is in error.  It was not written like that, not written to intentionally to limit the number of stories for residential”.

Mr. Rush agreed, after he had reviewed prior minutes, it makes reference to residential multi-family and commercial, but nothing for single-family and duplexes.   Mr. Almeida agreed with this statement, as he remembered it.

Commissioner Farmer said the original amendment was confusing at the time, because when it passed from planning board to the commissioners, instead of following each section of the ordinance on building heights to apply it to Institutional, R-2, RMH and others.  What the planning board did was break it down to residential and commercial.  So what was ended up with was one ordinance that had to be applied to the different zoning.  She specifically remembers a discussion where the ordinance would be changed for residential and the answer was ‘no.’

Mr. Estes then explained the roof  height determination for the 40’ height limit. Mean roof  height as compared to roof ridge.

Mr. Patteson said he thought that from previous discussion with some of the commissioners, this is something that they want changed.  He has no problem with amending the ordinance.  What difference does it make whether he has a four story house or a three story house, so long as it is not more than 40’ from the average grade.  Two identical houses could be built 40’ high and one could have three stories, the other four, and it would not be apparent from the outside.  It is all in how good the architect was in fitting it within the 40 feet.  He knows the intent was to eliminate the business district to have large buildings on the highway corridor, but there was no intent to limit the number of floors for residential. 

Mr. Daniel said someone lives on a second row and has a two story house, and he’s going to come along and block my view of the ocean.  Height is height to him.

Ms. Erikson said she too is second row and those people (front row) do have another choice, they can enclose beneath.  There was a number of disagreeing comments to this remark, that the ocean fronts are in a V-zone (flood zone) and cannot be enclosed beneath.  She then stated that those second row could enclose beneath their residence. She is just as concerned with those properties not on the ocean front.  She is not comfortable with the logic to change the residential when the commercial district was just rejected for the same request.

Mr. Rush added that there are additional inconsistencies about having additional setbacks greater than two stories, other areas greater than three stories.  That needs to be cleaned up. It is the staff recommendation there is no need for that requirement for an additional side or rear yard width.

Chairman Almeida asked about the CAMA setbacks for oceanfront lots.  Mr. Taylor advised him that, depending on the location of the lot, it is either 60’ or 90’ from the oceanward first stable line of vegetation for residential structures.  A commercial structure has to be doubled.

Mr. Dowling asked if the average from ground level to the floor above is about 8’ for pilings?  Mr. Taylor agreed, as an average.  Mr. Dowling said to add three floors, that would be 24 feet, so it would be 36’ from the bottom of the piling to the top?

Mr. Daniel disagreed, there is a floor/ceiling assembly system in each one of those levels.  So you can’t just say 8’ and add another 8 feet.

Mr. Daniel said what he is trying to determine if it would exceed the 40 feet.

Mr. Estes, Mr. Patteson and Mr. Taylor agreed that a house on pilings and four stories can be built. 

Mr. Daniel asked Mr. Taylor the height limitations of structures.  Mr. Taylor said a definition for attic story says that if you have area in your attic that can be used for storage or habitation, with a permanent set of stairs to it, ceiling height of at least 7 feet that is 50% greater of the floor area below, it is considered a story.

Mr. Daniel said he did not see how it could be done with four stories in the Ocean Hazard Area.  Mr. Estes and Mr. Patteson said it has been done.

Mr. Daniel asked at what height of a residential structure that a design professional is required?  Mr. Taylor said it would be two stories above pilings, it would have to be engineered or if you exceed pile spacings.

Mr. Daniel said that height would keep you from using three stories of an elevated structure without engineering.

Ms. Erikson said she was having a problem with this request after just turning down a commercial building with four stories. In good conscience cannot say that he (Mr. Watson) can’t do it but residential can.  What is the logic?

Mr. Estes said you have to separate the zoning, one is commercial the other residential. It is to try to keep the design of the homes aesthetically pleasing and to restrict the look of the commercial district to not have tall buildings through Hwy 58.  Being able to use the space within the roof just seems sensible if it does not exceed the 40 feet.

Mr. Bill Reist commented from the audience that, that wouldn’t give a home owner the incentive to build as high as he could then put on a flat roof.  He was then advised that the roof height for a flat roof is 35’ so it would not be possible to go 40 feet.  It was his understanding the amendment was to keep pitched roofs.

Mr. Ricky Farrington gave some scenarios of how to build in an attic and make it a useable area with roof joists and use of dormers.  It will possibly force a smaller footprint rather than spread out the house on fewer floors.

Further discussion continued reiterating the same issues as discussed.  As a result,

the motion to table the discussion to a later date was made.  Mr. Jim Taylor asked that whatever decision is made for this ordinance to please keep it simple, don’t complicate it with more numbers or stories, otherwise just leave it alone.  This ordinance has been very difficult to enforce and we don’t need it more complicated.

Anne Erikson made the motion to table this discussion to a later date to bring forth the wording if it were to be changed.  The vote was all in favor with exception of  Pat Patteson, who voted against further discussion.

Chairman Almeida asked that Mr. Patteson, Mr. Dowling and Mr. Daniel  serve on a committee to study this issue and submit their findings and pro-posed wording.

Meeting recessed at 8:30 P.M.

Meeting was reconvened after a short recess. (8:40 PM)

8.  Recommendation to the Town Board on June 11, 2002 regarding the degree of completion necessary to qualify for submission of a surety bond, Sec. 18-62 (3) Final Plat. 

Mr. Rush addressed this issue stating that Commissioner Farmer has proposed an ordinance amendment at the last meeting asking this board to look at the degree of completion required for subdivision improvements in order to secure a final plat approval.  Her suggestion is to require 90%, however, she acknowledged that that is a number she ‘pulled out of the air’ and asked the planning board study the issue and make a recommendation to the Town Board.  Mr. Rush further advised that the staff has not, further, made any recommendation on the matter.

When public comment was invited,  Mr. Ricky Farrington came forward.  He said in a situation like Sunset Harbor Condominiums or any project that requires preliminary and final approvals, in an AEC (Area of Environmental Concern) area on the ocean or the sound could trigger a major CAMA permit.  This permit is issued by the state.  In Sunset Harbor’s case only now are they receiving the major CAMA permit. The changes that are all done up to the point that the preliminary plat is approved it is not a situation you can submit another one.  It is a six-month process with the state, if they are backed up, they can send you a letter that you are on a five month extension. That puts us in an eleven-month window of when you get approval from the state after you have preliminary approval from the town.  His opinion is that it can be changed but the 90% complete is too strict. (He made reference to the subdivision before the boards that has brought about this issue. He felt the developer showed nothing forthright in developing the property).  Those in concert with the ordinances, this one year will wear the boards out coming back for ‘preliminary to the preliminary’ before the year is expired.  From his point of view, he thought all construction or improvements must be completed within 2 years of the preliminary plat approval or within one year of a building permit being issued whichever date is first.  There would be no need to get another preliminary approval on an already approved preliminary.

Mr. Farrington went on to add that  he is starting on a project that will be about six month after the preliminary approval.  He has been working diligently with the different agencies other than the town to get to this point to begin construction.  He felt the town looks at things enough now and there should be no need to look at them two and three times because of a timeframe.  There are very large bank loans involved and one year is very tight window of getting the project to 90% completion after that one year preliminary plat approval.  There could be a long lag due to AEC’s or an environmentally sensitive area.  He did not feel the developer should be penalized by the bureaucracy of outside agencies. He does understand why it should be looked at, but the 90% is too strict.

Chairman Almeida asked Mr. Farrington if his suggestion was not to look at the preliminary plat until the CAMA permits are approved?  Mr. Farrington said no that he believes the current ordinance says the final plat has to be presented within one year of  the preliminary approval.  When the boards finish with the preliminary approval it would take the developer at least another six months.  So you can’t get CAMA approval until the board approvals have been obtained so that CAMA is looking at the final changes the town requested.

Getting town approval and some 18 state agencies approval and construction to a point of 90% will be very difficult.

Mr. Almeida asked what would happen if CAMA made changes to the prelimin-ary plat? Mr. Farrington said the plat would have to be brought back before the local boards. This has never been the case in his situation.

Mr. Farrington made it clear that he was not in favor of  a subdivision being able to obtain final plat approval without having done any improvement to the property and post a surety bond to cover it.  He felt this did not protect the prospective land owner. Mr. Farrington said when he did Sunset Harbor they installed water lines, fire hydrants, streets, all public improvements were in before final plat approval.

Mr. Daniel said what works cities where 2 years is granted for submittal of final plat, or 12 months after the building permit is issued, he is more inclined to six months in that regard.  A residence can be constructed in six months.

Mr. Patteson said he cannot build a custom house in six months anymore.

Mr. Daniel said what he is accustomed to is that no construction would take place until the final plat has been recorded.  All public improvements must be in place, no such thing as posted surety bond.  (Currently, no building permits are issued for a single-family or duplex dwelling until the final plat has been approved and recorded; however, with multi-family, the buildings are given final plat approval as they are each phased into completion.)

Chairman Almeida asked Mr. Farrington what he thought would be a good percentage.  Mr. Farrington replied a minimum of 75% complete for a subdivi-sion. Keep in mind you don’t want to force development to meet that one year window.  You are better served to do phases and complete what is being bought up on the market.

Mr. Daniel said the logical way to handle phasing a subdivision is to have a pre-liminary plat of the entire process showing phased construction within that plat.

As the phases are completed that phase can be finaled and recorded, then move on to the next phase until completion of the subdivision.  That entails on preliminary plat, and finals on each individual phase.

Mr. Farrington said if you are waiting on sales for the lots in phase 1, a year would not be practical for such a project.  When does the preliminary die on you?

He does not feel that the developers who have been trying to abide by the regula-tions should be punished over the incident that the board is now dealing with.  In his case, a condominium plat, each building refers back to the preliminary plat.  At the end of the preliminary plat approval, does he have to come in and put up a bond to finish those phases not yet complete because it is more than one year?  To make it two years is more practical, or one year after the building permit is issued, for condominiums. He felt that a project comparable to Sound of the Sea would take over a year.

Chairman Almeida asked why is the preliminary plat of a condominium project cannot be approved, then a final plat of the project when all the improvements are installed.  Then the buildings can be done in the normal fashion of a building permit and subsequent inspections and certificate of occupancy.  The main concern for a project is the public improvements.  Why could that have not been done for Sunset Harbor?  The developers don’t want to do the total package, they want to do piecemeal.  What he gathers is that the subdivision of  the preliminary plat is approved, and then each lot returns for a final approval.

Mr. Rush said we are discussing two different types of subdivision.  The original subdivision of the property, then the subdivision of the condominimization of the individual lot with the six unit building.

Chairman Almeida asked if the boards could side-step that step (final plat approval). Mr. Rush said he could not answer that question.  Mr. Almeida said he means that, as long as all the improvements are installed throughout the property, the developer can go straight to a building permit and complete the project.

Mr. Patteson agreed that the infrastructure should be done for a final plat, to protect the public. 

There was further discussion on the amount of percentage to require.

Mr. Rush further advised the board that he did not think the commissioners were asking the planning board to limit the scope of discussion to just percentages. They would be open to other suggestions to achieve the same end goal.  He added further there are some circumstances that there are no water line, streets, no power lines to be constructed.  In the subdivision that the town is considering now, there are only common driveways to be installed no other public improvements.  There is no need to run a new water or power line from the road.  Not all subdivisions are the same.

Art Daniel said that West End S/D is an example of all the infrastructure is already in place. However, the common drives are not in place.  With an amendment this will not happen.

Mr. Rush said the commissioners do not want to see this type of situation come up again. The board wants to see this for their next meeting.

There was further discussion between the members regarding the use of numbers of percentage. It was decided that “substantially complete” would serve.  The following motion was made to recommend to the board of commissioners.  Mr. Dowling said he felt the recommendations should break out the Area of Environmental Concern (sound and ocean)for two years, and the interior core for one year.

Motion was made by Pat Patteson, second by George McLaughlin with unanimous approval to amend Section 18-22 (3)  “Surety bonds may be required.” Section (3) title to be revised and to further include:

1)      Substantially completed;

2)      Use 110% of cost of punch list to be completed;

3)      Letter of Credit to be submitted;

4)      Final Plat must be submitted within 2 years of Preliminary Plat approval in an Area of Environmental Concern;

5)      Final Plat must be submitted within 1 year of Preliminary Plat approval for interior property.

Mr. Farrington asked that the board separate condominiums from this amendment as well, but Chairman Almeida said it becomes too wordy at this time.  He does not want it repeated that the board is being partial to Farrington, or any specific developer.  Mr. Farrington understood.

8.      Consideration and Discussion of Draft of Revision of the Dunes and

Vegetation Ordinance Section 19-331 to 450 – Ed Dowling

Mr. Dowling brought up the fact that the enforcement of this ordinance is of concern.  Section 19-335 (3) Inspections Dept. to be designated as the enforce-ment agency with authority to issue citations for violations. Inspections Dept. does not have the authority to arrest as the current draft reads. Mr. Dowling went on to advise that he felt that weekends continue to be a problem with enforcement.

Ms. Erikson asked about the person that had been working weekends in the past and was advised that he had not come across many weekend violations.  He does continue to monitor weekends, sometimes Saturday, sometimes Sunday or splitting the hours between the two days.

Chairman Almeida asked how the percentage of natural area, Sec. 19-376, of a site is determined when part of the lot goes into the sound?

Mr. Jim Taylor said that many of the lots extend out into the marsh and he has to consider that as part of the property. For an impervious calculation the property in the water is considered as part of the overall lot.  The building setback line is from mean high water.  So, in theory, a property could remove most of the vegetation and count the marsh as natural area and fall within the regulation.

Chairman Almeida asked how to fix that?  Mr. Taylor said the measurement could be taken from mean high water, not the property line. 

Mr. Patteson advised that when the committee looked at this issue, and they looked at several scenarios.  When the calculation for 50% was done by the high water method, it is almost impossible to make the lot usable with impervious coverage, stormwater, septic area and driveway, etc. 

Chairman Almeida said that something needs to be done to protect the vegetation where a deep cut has been done at a property line. Mr. Taylor advised that he requires a retaining wall or a gradual slope if it should compromise an adjoining property.  Anything that is greater than a 3:1 slope will require a retaining wall.

Mr. Daniel asked if it is possible to add graphics to show the dune system with vegetation for both Oceanside, interior and soundside lots.  Ms. Angus said that the inclusion of graphics has been brought before the Municipal Code Corp, the company that does the ordinances, however, it will be costly.

Mr. Rush said he thought that if  pictures are helpful to public and staff, that there should be a way of including them. 

Ms. Erikson made the motion to recommend approval of the revision of the Dunes and Vegetation ordinance to the Town Board, second by Pat Patteson with unanimous approval in favor of the motion.

COMMENTS:

Chairman Almeida advised that the traffic problems at Coast Guard and Hwy 58.  It took him almost 40 minutes over Memorial Day weekend to get from the entry to Pebble Beach through the light.  Something needs to be done with that intersection.

Mr. Daniel asked the status of the three laning at Lee St.  Mr. Rush said he will look into that.

Pat Patteson made the motion to adjourn, no second noted, with unanimous approval in favor of adjournment.

Respectfully submitted:

Carol Angus,Secretary