July 22, 2002 Agenda
July 22, 2002 Minutes

Town of Emerald Isle
Planning Board Minutes
Monday, July 22, 2002

 The meeting was called to order at 7:00 P.M. by Chairman Phil Almeida.  Members present were: Phil Almeida, Pat Patteson, Frank Erwin, Ed Dowling, Art Daniel, and Richard Brauns.  Anne Erikson had been excused.  Also attending, Frank A. Rush, Town Manager; Carol Angus, Secretary; James Taylor, Building Inspector.

Approval of the Planning Board Meeting, May 28, 2002 – Ed Dowling made the motion to approve the minutes, as written.  Art Daniel seconded, with unanimous approval in favor of the motion.

Report from Building Inspector – James W. Taylor, briefed the members on the month of June with $7,635.00 fees collected; with 24 permits with a monthly construction value of $108,210.00 which brings year to date value $17,359,549.00.  One thing that was unusual for June was that there were no full building permits issued; only accessory and miscellaneous permits.

Report from Town Manager – Mr. Frank A. Rush, briefed the members on the Board of Commissioners meeting on July 9, 2002.  He stated that the recent subdivision revision was presented to the board.  There are a few suggested changes that Mr. Daniel and Mr. Rush will work on before it returns to the Board on August 13, 2002.  The dog grooming ordinance will also reappear on the August agenda. Mr. Rush then introduced Michael Harvey, Benchmark, Inc.; who will be assisting town staff in reviewing development plans, and, as time permits, also with ordinance amendments for the next year.  He is with a highly reputable firm and is very knowledgeable.  He will be working closely with Mr. Rush, Carol Angus, and Jimmy Taylor on the various issues.  He will be attending most of the Planning Board and Town Board  meetings.

Chairman Almeida asked Mr. Rush about the legal opinion regarding changes on an approved preliminary plat.  Mr. Rush said he has not secured an opinion on that, he will have it available for the August meeting.

Mr. Daniel asked that two issues be discussed on the Subdivision Ordinance revision.  Chairman Almeida said he would add that to the end of the agenda.

Bell Cove Village, 8-lot subdivision, Block 42, Corner of Coast Guard Road and Emerald Drive (Hwy 58).   

Chairman Almeida commented that he felt the project had been done very well.  Mr. Daniel said there had been a meeting with the developers and the engineering surveyor.  He has reviewed Mr. John McLean’s submittal for the stormwater plan and found it to be an excellent presentation.  Only one minor thing left off of one lot, which should have no impact on the stormwater management.

Mr. Daniel made the motion that the Preliminary Plat for Bell Cove Village be recommended to the Town Board, with 3 copies attached, to establish good precedence, signed by the chairman.  Second by Ed Dowling,  with unanimous approval in favor of the motion. 

Ms. Angus asked where the three copies go that Mr. Daniel mentioned.  Mr. Daniel advised that the three copies will be forwarded to the town board; if there is any reason for disapproval of the project two copies will be returned.  One copy will go to the developer for changes and one copy to be retained by the Planning Board.  When all conditions are met, one signed copy will be retained by the Town Clerk, one with the Planning Director, and one by the developer.

Chairman Almeida advised that there was some confusion on when projects must be submitted. Whether the deadline is 12:00 noon or 5:00 PM.  He suggests that a notice be posted on the board indicating the time.

Mr. Rush advised that he, Ms. Angus, and Mike Harvey had discussed the deadline for submittal.  Possibly as early as the last day of the preceding month.  This is not set as yet.  We hope to have this type of information ready for the next meeting.

Mr. Almeida said he still wanted to see the time of day posted and/or displayed for any future projects. 

Mr. McLean was advised that 10 copies of the map will be required to go before the board of commissioners as well as 10 copies of the stormwater plan.  Some of the members here allowed Mr. McLean to reuse the stormwater plans for this submittal due to the cost of copying them again.

7. Consideration of Electrical/Electronic Panel Assembly to be added to the Permitted/Special Use table as a permitted or special use.  Mr. Rush advised that the plan

before the members is similar to the one that was presented last month.  He understood there was general acceptance of the type of project the applicant was proposing.  All that was changed was the name of the use with the following conditions.  This board may want to consider panel assembly a permitted use; or as a special use with the attached conditions or additional conditions.

Chairman Almeida asked the difference between a permitted use and a special use.  Mr. Rush advised that there are no conditions placed on a permitted use, only the special use.

Mr. Erwin said the issue had come up as to whether it is a permitted use already. He has no problem with some minor fabrication of product if it is in conjunction with other services normally provided.  He does have a problem with making a permitted use or as a special use something that would allow fabrication of a product without some other service provided.  He is opposed to any change to allow this as a special use.  He does not think it is something we need to have on the island.  Referring to the conditions cited, he has no idea what a small power tool is, is it a quarter horse power hand drill or a 1 and half horse power drill, or is it a drill press?  He also wants further description of the delivery truck, is it a van type, or step van, and how do you control these trucks? If it adjunct to an existing permitted use, he doesn’t know.

Mr. Daniel said there is a side issue that he brought up last month. His application showed on his letterhead that he practiced electrical engineering. In accordance with the state statutes that deal with licensing, engineers and surveyors, it is incumbent on a licensed engineer or surveyor when they are presented with information that may indicate that a person is practicing engineering or surveying without license.  It is incumbent on that engineer or surveyor to so inform the board of examiners.  Since Mr. Meier did not see fit to take his hint to contact them, he, Mr. Daniel, was bound to contact them himself.  He wrote them a letter. Until such time the board’s investigation is complete and a determination made as to whether he is actually practicing engineering or not and what restraints will be placed upon him, if any, he will not be able to consider this issue.

Chairman Almeida asked how to control the limit of 10 employees? Also how would you know the delivery trucks will be restricted to the size of a van? This will be difficult to enforce.  Mr. Rush said he said these things could easily be determined by making an inspection of the facility if believed to be in violation.  We will see the trucks that would trigger some action. 

Mr. Rush added that Mr. Meier did present a plot plan showing the parking plan and where the employees will be located.

Chairman Almeida said he did not see any handicap parking.  It was agreed that Mr. Meier will indicate one of the spaces with the correct measurement.

Mr. Dowling asked if there is adequate parking space for offloading from trucks without congestion.  Mr. Rush reminded him that needs to be discussed after this item.  Right now we are considering the permitted or special use only, not the application.

Mr. Patteson said that if the ordinance it may open the ordinance to more and more production oriented assembly type of business.  That is not something he wants to see. If it is done as a special use, other conditions should be included.  He added if the ‘engineering’ is the primary use, and do ‘some’ assembly then that would not be the primary business.  He would not object as long as it was light assembly.

Chairman Almeida added that there is no guarantee of the mix of the business would not change over time. Mr. Patteson replied that he understood the reason this particular building has not been used in the past is because of the limited parking.  Only half of the building can be used as office space, due to the parking available. We don’t have a parking enforcement agency to see if someone has added personnel. If there should be a complaint, then the town could look into it.

Mr. Daniel asked if this was the structure that was built by Bruce Hughes and Will Fowler?  He was advised that is correct.

(Several side bar conversations took place, not audible)

Mr. Andy Underseth, with Island Automation, Inc. made a statement that Mr. Meier is out of town but he would like to address this issue.  He said he thought, at the last meeting, there seemed to be approval if the panel assembly was an ancillary part of the business. Now it sounds like you don’t want this kind of business at all.  He went on to advise that the firm is in process of trying to resolve the “engineering” issue.  The licensing board had contacted Mr. Meier and it is being investigated.

Mike Harvey, Benchmark, Inc., added that he has read the facts and knows what got this issue to this point, you might want to look at this as ancillary use to the principle use of the property. As long as there is a way to mitigate any of the negative singular effects that could be generated. It may allow you a better mechanism to control the use. From his point of view, there may be a way to fashion this where everybody‘s comfort level is at the point this could be addressed successfully without trying to create a second problem. That would be, from what he is hearing, allowing this an independent use in another cell. That seems to be the main concern.

Mr. Daniel said the point he was making, Mr. Erwin asked a question as to what is the principle use, design or assembly?  There was a semblance of agreement that if it was an ancillary use, it may be acceptable.  Would it be prudent to table this matter for further consideration at this time to get an answer as to whether they have a legal design service?

Chairman Almeida added that the two components to the business, depending on the economic cycles, one part of the business may go down.  In this case the owner might want to pick up the other part. So what you call ancillary today, may not hold true ten years down the road.  How to address that issue is the concern he has.

Mike Harvey said checking the gross receipts would answer that.  If the principle use of the property becomes what was ancillary, you are in violation and are closed down.

Chairman Almeida asked how to check gross receipts.  He used an example of today’s large corporations working unscrupulously.  Mr. Harvey said the burden of proof falls on the applicant.

Frank Erwin said when you look at the ancillary use, and somehow figure out what they are doing there, if there is a problem with deliveries. He said Mr. Daniel was kind in tabling this issue for attention, but there is not anything that would make him change his mind to make this as a permitted use under any circumstance.

Pat Patteson advised the members that there are other businesses that are a lot less wholesome than this proposal.  There is a glass company that manufactures, a stone company that uses big machines, this project is talking about small hand tools.  It is a much cleaner type of business, it may provide jobs for people in town.  It is a good use for this property, it has been sitting for some time with no use.  He understands that half the building cannot be used for office space.  The way it is divided they cannot divide into more office space, because they are not permitted to do so because of the parking. He feels there are a lot of pluses for the building, and he would like to work on the ancillary portion.

Mr. Daniel said when he was last in that building it was unfinished on the east half. The west side had been used as a mortgage company office.  It seemed to be appropriate as a construction office.

Chairman Almeida asked when the building was built, he was advised it was mid 80’s. Ms. Angus said it was not a question of not completing the building, he was not permitted to do so, due to the parking ordinance.  The east side was left to be considered as ware-housing which is minimal parking.  The building was built too big for the site.

Mr. Rush asked if he could convey some wording that may help.  The town code would be amended to allow electrical/electronic panel assembly as an ancillary use to professional services, provided that the gross floor area is dedicated for electrical or electronic panel assembly shall not exceed ____________% of the floor area.  And also to be considered a special use with the appropriate conditions.

Mike Harvey said it would probably be better to have a designation for professional services and say such services that offers a certain level of manufacturing with a special use permit.  He does not know how legal it would be to get a special use permit for a subordinate use.  He agreed that if you stipulated professional services that had limited manufacturing capability, have to get the special use permit and abide by the conditions, including a percentage limitation of gross floor area of the building devoted to assembly. That should address a lot of the concerns he is hearing this evening.  You would not have ‘electric panel assembly’ as a special use, you have it connected with a professional service.  That would mean it is connected to a use that is permitted and still have to go through the special use process.

Mr. Daniel said that if the board of examiners determines that this use requires licensing in electrical engineering and they are not qualified, or in the process of getting qualified, he said he had offered the opportunity to pull this and Mr. Erwin said he did not wish to table it, if you don’t wish to table it he will entertain, and second a motion to deny the request.  He further commented that he did not know how the town could determine a percentage of how someone operates their business.  He does not feel you can set a number and make that an ancillary use.

Frank Erwin made a motion to deny the amendment to make electrical/electronic panel assembly a special use. Second by Art Daniel, those voting for the motion were, Mr. Erwin, Mr. Daniel, and Mr. Brauns; those opposed, Pat Patteson and Ed Dowling.

Mr. Daniel said that, to him, it does not kill the issue. If they had brought their request to him with the description as ‘computerized control system design’ he would have not had any problem. 

Mr. Underseth asked if they can reapply.

Mr. Daniel said what they are saying is that the board of examiners is going to have to make their determination as to what type of business you are actually in. If you are required to have a license as an engineering firm, so be it.  If not, your computerized control system design is not regulated by that board, then the air has been cleared.  It would be incumbent on you to strongly state and determine what percent of your business is design and what percent is fabrication.

8.  Island Automation, Inc. for Special Use for Electrical/Electronic Panel Assembly -

Due to the fact the previous agenda item was denied, this item will not be discussed.

Mr. Rush did advise the members that even with the decision to deny the special use to be added to the table, the applicant does reserve the right to take this on to the board of commissioners. Obviously, it would be with the recommendation that the planning board is against the ordinance.

9.  Residential Building Height/Height and Associated Setbacks – Mr. Rush said this had been on the board of commissioners agenda to correct an error that limited residential single-family and duplex construction to three stories.  According to minutes and to everyone’s recollection that limitation was placed in error.  There was additional building code information available after their packets were prepared.  What this ordinance amendment does is amend our definition of a story. In our zoning ordinance, we have one definition of a story and that is not consistent with the definition in the building code. After reviewing the issue, talking with Jim and Carol, and NC Building Code Officials we felt a better approach was to go about amending the definition of a story to be consistent with the building code.  The staff met with Ed Dowling, Pat Patteson and Curtis Estes, who requested the ordinance amendment to talk about amending the ordinance.   It would allow some of the structures you see in town that appear to be four story.  It would allow the structure that Mr. Estes is proposing on Bogue Ct. which is 3 stories with a viewing on top within the roof.  By our ordinance that would be defined as a fourth story, and not permitted.  Building code would refer to it as three stories. 

An integral part of the ordinance that you have is the definition of an attic story. It is defined in NC Building Code as an attic story is defined that if it is less than 50% of the floor below, it is considered attic, therefore, not an additional story. 

One issue he is aware of is that has been discussed is that Ronnie Watson had approached the Planning Board earlier about an ordinance change to remove the limit on the number of stories in commercial districts. Because that is still fresh in everyone’s mind and what this will mean to that project.  It would not allow the project he proposed earlier, he had an entire fourth floor within the attic/roof area.  If this is approved, he would be able to use half of that area if he chose. He did not like to have to single out this project; however, he knew it would be a controversial issue on everyone’s mind.

Several scenarios were discussed that would fall into the category of whether a use was or was not a story.  Mr. Patteson gave a number of examples.

Mr. Daniel said he feels that a duplex or townhouse is a commercial arena and should not be considered as residential but the same as a motel.  Business is booming in real estate since people aren’t investing in the stock market.  When you build duplexes and town-houses, you’re in a different perspective from single family residence. To him, what is fair for one is fair for the other. He has no problem with four story motels.

Mr. Patteson disagreed to the use of duplex or townhouse as a business.

Chairman Almeida said he read the definition from the building code for a motel as “any building that houses more than six units”.  If you had six bedrooms and you were renting it, it probably is classified as a motel.

Mike Harvey said construction standards for townhomes have to have independent lavatory facilities. If you have a house that has six bedrooms with lavatories facilities for each, there are some hard lines being blurred.  In coastal communities that is a problem.

Mr. Rush said the way the proposed ordinance is written you could have an attic story in a commercial building or condo or townhouse.

Mr. Dowling added that the issue of the additional setback requirements is also part of this discussion.

Chairman Almeida said he wanted to see this issue go back to committee so that Mr. Daniel can attend with Mr. Patteson and Mr. Dowling.  In the time period of one month surely a date can be agreed on.

Mr. Daniel asked if another meeting would change the result? Mr. Almeida said it may not change the result.

Mr. Dowling said with Mr. Daniel’s input this evening, gives him cause to rethink the matter, and he would be in favor of another meeting of the committee.

Unidentified party from the audience said he felt that if any portion of an attic were to be made habitable, it is a story by his definition, not an attic area whether it be 50% or less or not.

Mr. Rush added that if Emerald Isle had no restrictions, Mr. Estes would be able to build the house that he has proposed by the North Carolina Building Code.

Mr. Daniel went on to say that the septic facilities are based on bedrooms. A bedroom is not a bedroom until you put a closet in it.  Has to have a window in it with adequate egress from the window.  You run the kids up there in bunk beds and just a hanger on one wall and call it a bedroom, so that doesn’t overload your septic field.  It is not so simple.

Pat Patteson said he has to sign a statement upon completion of a structure that any room not specified as a bedroom will not be used as a bedroom.

Mr. Daniel said he knows of a lot of things going on in Emerald Isle that shouldn’t be going on.  He gave additional scenarios of probable issues to be dealt with.

Mr. Rush further noted that the building height would remain the same at 40’ for a pitch roof in residential zoning. The setback issue came about as, possibly, an oversight.  It was meant for condominiums and larger projects that would need to meet more setback area.  The ordinance did not exclude residential for the additional setback.  There had been discussion with the fire chief on whether or not the additional side or rear setbacks would be an issue for fire protection.  He replied that it would not.  The staff made the recom-mendation that this additional setback be removed. 

Mr. Patteson said the committee had gone over this in depth and could find no real reason to require this additional setback; especially after the fire chief had said it would not cause any effect on fire protection.

Mike Harvey agreed that the additional setback is not needed for residential, only in multiple housing projects.

Mr. Dowling commented that it would seem that uniform setbacks would be simpler for the inspections department to administer.

Pat Patteson added, in regard to the fire protection, that the fire chief had said that he will not take his equipment into the lots because he would get the equipment stuck; also, in many cases the vegetation would not allow access.  So there just is no reason for additional setback on a single-family or duplex.

The subcommittee meeting was set for Tuesday, July 30 at 10:00 A.M. to revisit the 3 story versus 4 story and the additional setback.

10. Discussion – Planning Board Priorities – Chairman Almeida said he thought this was to be

discussed at the next Planning Board and Board of Commissioners workshop.  It was decided to go over the list at this time. 

Mr. Rush addressed each item on the list of June, 2002 which was most current

Mr. Rush asked the members if they had any objection to having projects submitted for review as early as the last day of the month prior to the meeting, which would be almost four weeks in some cases. (i.e. an August consideration to be submitted July 31) If this is acceptable, the staff will notify the developers that we most often deal with, of the proposed changes we will implement.

Pat Patteson said he would like to see the packets delivered to the members sooner. He realizes that Carol works very hard to get them out sooner, but it would be nice get them out sooner.

Chairman Almeida said he thought that this new schedule would get the packets out a little sooner, possibly early in the week prior to the meeting.

Mr. Rush said there is some internal changes among staff that will be taking place.  Mr. Harvey is assisting us in that attempt.  We hope to have a more thorough before it gets to the planning board level.

Chairman Almeida asked for an overview of why the town attorney feels that the 8,000 sq. ft. special use permit issue was thrown out in court.  Mr. Rush said that the legal documents will go to the members for the August meeting.  Mr. Harvey will be addressing this issue for revision.

Chairman Almeida addressed the issue of mixed zoning. This item and underground utilities should be discussed with the board of commissioners at the workshop July 29. We need to be sure of what the concepts are.  Also, to discuss conditional uses.

The issue regarding removal of hotels and/or motels from residential zoning had been discussed previously and determined that it was too complicated an issue to resolve.  Perhaps Mr. Harvey will be able to suggest a method to handle this issue.

Chairman Almeida said he felt that the Planning Board has addressed some of the glaring  issues that needed attention over the past few years, but still quite a few need addressed. The major issues have been taken care of, in his opinion.  He feels that the appearance commission should fall with the board of commissioners.  It was originally brought up to determine whether it would fall under the jurisdiction of the planning board, the board of commissioners, or a separate entity.

Chairman Almeida went to the issue of requiring construction drawings for new subdivi-sion improvements. This is something that he feels needs addressed.  Once a plan is developed you have to go for a construction permitting process, whether it be a building or a subdivision. Then you have a full set of drawings that are detailed completely.  What exactly are you going do? How are you going to do it?  Specifications, height, type of materials, everything is spelled out. That makes it easy for the town staff to look at in the field when they want to check up from the set of drawings that are submitted.  That may require an ordinance change.  Mr. Rush said he believes this is addressed in the current subdivision ordinance revisions being addressed.

Mr. Daniel wants to see another category added, ‘completed activities’, so we can see what is going on?  Some of these issues may need to be revisited.

Mr. Rush addressed the need for Special Use Permits for projects covered by general ordinance requirements.  It is an unnecessary step for applicants to go through in some instances. An example of this was the Village Market several months ago.

Chairman Almeida asked the members to present any other issues that might want to  discuss.  Email their suggestions to Frank Rush. 

Mr. Dowling asked that, regarding the remaining parcels that are currently mobile home parks, could be subdivisions eventually.  Do we need estate lots as part of the planning process along the estuary? Mr. Rush said he will add that to the list of items for discussion.  He also added, the JLUS will be finalized in the next few months, which will contain some recommendations developing future ordinances.

Mr. Frank Erwin asked to make a comment on the Dunes & Vegetation issue that is now under revision. There has been a lot of work and hours put into this ordinance and they are close to completion. The committee is not sure how to tackle the issue of clear cutting.  As it is being proposed reads that the DVPO can authorize removal of any live vegetation over 3”.  There is some language in the proposal which states ‘total site clearance less than 3” is strictly prohibited in the natural area.  Approval must be obtained from the DVPO prior to selective thinning of trees less than 3 inches”.  So, we have more than three inches you’ve got to have it and got something that says less than three inches you have to have it (approval). Actually, it says clear cutting or total site clearance is totally prohibited in the natural area.  Most of the commissioners welcome that language because signals a return to an embracing of the natural vegetation instead of clear cutting and having grass lawns. We, the committee, think there is going to be a problem as far as how to detail and delineate it.  What we are saying is that you can’t have a grass lawn.  Before the committee goes back and spends more time on this, they want to know if they are barking up the wrong tree?  Does the planning board want the committee to spend more time on this? Or do you not want the committee to tackle? The committee feels there is a pretty good method to increase the natural area to 50% and that is a good approach.  Does the planning board want to retain these few remaining lots in their natural state?

Chairman Almeida said he would be concerned about the roots of bushes and trees getting into the pipes and dislocate the piping. 

Mr. Erwin continued to advise that some of the lots, after the disturbed area has been identified, the remaining natural area may all be less than 3” in diameter. What happens, historically, is that they go in a clear that all out and make a grass lawn. There was discussion that is not what you wanted to see.  You wanted to see the natural area left, even if it is less than 3 inches.

Mr. Daniel commented that  when he used to go camping, he went to Hatteras Island and Frisco and camp at Mitchell Airfield.  Then when he really wanted to venture and primitive camp, he went to Ocracoke Island with no amenities at that time.  He did not come to Emerald Isle to go camping at Frisco and Ocracoke. He came to have a residential environment in which he could have a choice to live in brush or live with a manicured lawn.  He would be opposed to maintaining the natural area of less than 3 inches.

Mr. Patteson said that the reduction from 4” to 3” that you cannot cut, so you are already forcing owners to leave more vegetation as well as the additional 5% vegetation.  The committee discovered, the current Dunes & Vegetation Ordinance is more restrictive than Pine Knoll Shores.  Chris Jones, inspector at PKS, told the committee that it is an attitude there on how lots will be approached.  It is accepted that more of the lot will remain natural, and the attitude in Emerald Isle is not that way. 

Mr. Daniel said he had intended to have more trees on his property, but when the hurricanes went through and knocked down most of them, he decided that a manicured lawn may be best and let the lawn grow as it may.  He also feels that the portion of the lot that will be used for septic and drainfield area should be removed from the “natural area” and adjust the percentage amount accordingly. 

Mr. Patteson said that all septic systems are not the same so that may not be as easy as that.

Chairman Almeida said he would like to see some typicals that can be used at the Board of Commissioners level to better understand the issues to be addressed.

To move to another topic of concern, Mr. Daniel advised that when he reviewed the proposed amendments to the subdivision ordinance, there were additional comments that had been raised. He has since made those revisions.

Mr. Daniel said he had a statement regarding underground equipment.  He had contacted the power company and they told him that it has been the policy for the past 5 years to supply underground electrical service.  That 95% of their customers install underground service.  The exception to that is Emerald Isle, with two subdivisions that had not opted to have underground service.  It appears the requirement to install underground service is completely in line with the electric company.

Motion was made to adjourn by Pat Patteson, second by Ed Dowling, with unanimous approval in favor of the motion.

Respectfully submitted by:

Carol Angus, Secretary,
Planning Board