Town of Emerald Isle
Minutes of Regular Planning Board Meeting
Monday, April 28, 2003
7:00 P.M. Town Hall The Meeting was called to order by Vice-chairman, Anne Erikson. Members present: Ed Dowling, Anne Erikson, Pat Patteson, Pam Minnick and Jim Craig. Chairman Daniel and Frank Erwin were out of town. Also attending was Secretary/Planning Director, Carol Angus; Michael Harvey, Planning Consultant from Benchmark, LLC.

Report from Planning Director – Carol Angus

a) Town Board Meeting, April 8, 2003 – Ms. Angus advised the members that the Commissioners had unanimously adopted the recommendation to remove automobile lots from the B-3 Permitted Use Table. And, the rezoning request for the 4.03 acres from B-3 to RMF by Randy Campbell was denied by a vote of 3-2.

b) Land Use Plan Update Steering Committee Meeting, April 9, 2003 – The information from the April meeting is attached to these minutes. Ms. Angus advised that the Update is progressing on schedule. Mr. Farris is sending a survey to the members for their opinions on a number of issues.

The survey concerns future land use preferences by the property owners and will be mailed to the property owners. Ms. Minnick asked whether there might be recommendations from this committee regarding rezonings. Ms. Erikson advised that she felt there may be suggestions, but not to have a recommendations.

c) The May planning board meeting date was rescheduled to Thursday, May 22, at 7:30 P.M. to accommodate the Holiday on the regular meeting date as well as affording the applicant ample time to get any information back from the technical review in a timely manner to the board. (Time change due to use of the board room).

Citizens Comments: Vice-chairman Erikson informed the members that Mr. Ricky Farrington has approached her to ask for more time than is generally allotted for a the Dunes and vegetation revision. It was unanimously agreed that Mr. Farrington may have the additional time, up to 15 minutes at that point on the agenda.

Preliminary/Final, Phase IV, Spinnakers Reach Subdivision, Block 47, Lots 82 through 114 (exception of lot 112 previously approved), RMH zoning – John Odom, Prestige Land Surveying; Randy Campbell – Mr. Odom represented the project and advised that this is the final phase for the entire subdivision.

Ms. Minnick asked about the isolated 404 wetlands assuming that they must be left alone. Mr. Odom said they are not classified as isolated wetlands, or have not been as yet. She made reference to a note on the plat regarding wetlands. Mr. Odom said that they have been designated isolated; however, they have not been so designated under the Wilson case, so they are still considered as not isolated. Further wetland filling is not permitted according to the Corps of Engineers previous permit. Also, there is a restrictive covenant that is enforced in conjunction with the town that no further wetland filling is permitted.

Mr. Odom relayed to the members that this subdivision was given preliminary approval in 1996 when all the roads were built and then segments of the subdivision were recorded and sold. The reason for the phasing was caused by the long wait by Carteret County Environmental Health department to issue septic permits. As the health department finished with a series of lots, they asked for final approval of that phase. There are now 29 lots available for recording in this final phase. The roads are in and it is just a matter of recording the plat.

Mr. Dowling had some concerns about runoff at specific sites and Mr. Odom advised that as the lots are developed each property owner will have to submit a stormwater plan for their proposal. In some places they will have to install retaining. Mr. Dowling read three statements from the Land Use Plan, 1) The filling of ponds to get required separation from surface water is not encouraged; 2) To encourage the protection of the natural system and use in ways that do not impair the beneficial function; 3) Protect the interdunal troughs groundwater recharging areas. He would like recommend that a note to be recorded on the map that the drainage areas issues be illustrated. Mr. Odom said he could not say that such a note would be placed on the final plat; however, he felt that this subdivision has done more than any subdivision in the past as far as protecting wetlands. To him it seems quite redundant with the covenants having been done and enforcement by the town of that covenant as well as Corps input. Mr. Dowling asked that the town manager come up with some wording to this effect. Mr. Rush asked Mr. Dowling to clarify what he wanted on the plat. Mr. Odom interjected at this point to ask Mr. Dowling if he had read the restrictive covenants for Spinnakers Reach to which Mr. Dowling said he had not. Mr. Odom said he would like to get a set of covenants to Mr. Dowling and he would be satisfied that all the issues he has may be addressed there. Mr. Rush agreed and stated that the stormwater ordinance requires that each developer retain 2” of stormwater on their own site, so that should cover it. Also, the ordinance requires if there is any filling of more than 1,000 square feet of wetlands, the wetland area must be replaced on the same site. The covenants are stronger in this subdivision.

Michael Harvey, Benchmark, referred to his memo submitted to the members. He reiterated that there will be no 404 wetlands unless an appropriate Corps permit is issued. And, any development must adhere to the stormwater ordinance. Mr. Harvey went on to advise that there are similar conditions in phases 1, 2, and 3 that are not unique to phase 4. He feels the covenants are restrictive enough and the proposals do meet the conditions of the land use plan and recommends approval of the plan.

Mr. Dowling he will then drop this issue if Mr. Harvey will brief the commissioners on this issue at the meeting in May. Mr. Harvey said he will answer any question that the board presents.

Mr. Craig said he is satisfied with the discussion with what Michael Harvey and Frank Rush have said, that the covenants are sufficient.

Motion to recommend approval the preliminary and final plat for Spinnakers Reach S/D, Phase IV, was made by Pat Patteson, Pam Minnick made the second with unanimous approval.

Preliminary/Final, South Beach Subdivision, Block 14, 7 Lots, John Odom, Prestige Land Surveying; Ricky and Billy Farrington – This project had originally be submitted as The Farrington Brothers S/D, recently changed to “South Beach”. Mr. Ricky Farrington advised that this property is immediately west of Pier Point West at the ‘old dog leg’ of Ocean Drive. There are letters from each of the utilities that service can be supplied to the subdivision, as well as a letter from Bogue Banks Water that a new hydrant at lot 6 will be installed by the end of May to service this property. The cost of this hydrant will be borne by the developer. Septic tank applications have been approved for each of the seven lots for 5-bedroom homes. There are 3 oceanfront, 2 second row, 1 third row and 1 fourth row lot. The septic permits are each issued for single family dwellings. This is an environmentally sensitive area and they want to minimize the impervious surfaces and natural areas. The storm drainage in the past has been able to dissipate very quickly. Also, there is a viable hydrant at the Pier Point complex.

Chairman Erikson asked for an explanation of the dotted lines that are shown off Ocean Drive into several of the lots. Mr. Farrington responded that that is for a potential shared driveway. It would be access for an easement to reduce the impervious area and eliminate drives onto Hwy 58. On lot 3 there would be a long driveway to go from Hwy 58. To be able to use this easement, like an alley to give access to all three oceanfronts and the second row. This is a classic example of shared drives as opposed to a driveway for each lot. The ordinance requires that any lot with street frontage must have a minimum of 30’ in width. Lots 3 and 5 could, by ordinance, may put in their own driveway; however, it will be the owners choice as to access but to encourage the shared drive.

Mr. Farrington advised that all the land is in a VE flood zone which does not permit any fill and Coastal Area Management Agency (CAMA) regulations must be adhered to.

Mr. Harvey added that there are no inconsistencies with the zoning ordinance or Land Use Plan as this area encourages single family development. Therefore, an affirmative recommendation comes from the staff for this project.

Motion was made by Jim Craig second by Pat Patteson to recommend approval for the South Beach 7-lot S/D, Block 14, with unanimous approval in favor of the motion.

Large structure Committee Report – Pam Minnick, committee chairman, advised that after direction from Chairman Daniel at last month’s meeting Mr. Harvey was to contact the Raleigh office of DOT. He was told to contact the New Bern district office as Mr. Harvey had said he would have to do at the March meeting. Therefore, there is no proposal before the members tonight because the DOT Raleigh office will not get involved in a project that should be handled through the New Bern office.

Ms. Minnick said she felt this proposal should be forwarded in it’s present form with the contingency that there will be an amendment as to the “c” level traffic service forthcoming. She is concerned that postponing the ordinance again is that a project submitted prior to it’s adoption and would not be required to comply with the requirements that have been recommended.

Mr. Harvey reiterated that Ms. Minnick is correct that there is no information available from DOT as he was instructed to work through the Raleigh, not the New Bern office. He advised Ms. Minnick earlier that it may be prudent to proceed with the ordinance and continue to address the traffic level issue. Then if there were a project to be submitted they would have to follow the guidelines that have been recommended from the committee.

Vice-chairman Erikson asked if the present ordinances did not cover the “Wings” type of building? Mr. Harvey replied that if it is over 10,000 sq. ft. the present ordinances do not establish additional development criteria to address the concerns as addressed by the committee.

Vice-chairman Erikson advised she does not feel comfortable to continue without having what Mr. Daniel wanted to see.

Mr. Harvey said he recommended approval, knowing that the board will be back to address the traffic level issue. It would put the ordinance in place for a potential large structure now.

Ms. Erikson advised that she did not want to recommend something that was not in there packet. Mr. Harvey said he did not have it included because he did not have the information that Mr. Daniel wanted from Raleigh, so, being incomplete, it was not included. Mr. Harvey then went over the highlights of the recommended ordinance which included: buffering; setbacks; stormwater storage; mandatory setbacks from secondary buildings on site; walkways or boardwalks from one business to another separated from vehicular traffic; an internal vehicular traffic circulation plan will have to be approved; a traffic study will be required; installation of sidewalks; to make the project a pedestrian-friendly site. He went on to advise that the issue can be tabled until the next meeting or to call a special meeting.

Jim Craig said he is not comfortable with recommending something that he is not familiar with being the new member; he would prefer a special meeting.

Pat Patteson made the motion to table the large structure ordinance. There are two issues, 1) satisfying Mr. Daniel who has had a lot of input on the issue; 2) Frank Erwin is not here and he had a lot of input on this. He hates to see it sit, but he would like to see it be tabled to the May meeting for their input. Mr. Dowling seconded the motion with unanimous approval in favor of the motion. Mr. Harvey wanted to reiterate that this information would have been completed and in the packets if he had been able to gather the information that Mr. Daniel had wanted.

Mr. Dowling asked if a developer were to demolish an existing structure, can he rebuild on the old footprint? Ms. Minnick replied that, if the new ordinance were in place, they would have to follow the new guidelines.

Dunes and Vegetation Ordinance Revision Update – Vice-Chairman Erikson then asked that Mr. Harvey address this revision. He reminded the members that the most recent version of the ordinance is before them. He had also outlined in his memo how the board had reached this point from the joint workshop meeting. It reflects the results of that workshop where the board asked the commissioners for their feelings and feedback. He has outlined those issues. The commissioners were asked if they were comfortable with the changes in the proposed format. The following direction was taken by staff that the format was acceptable:

· The intent and applicability sections.

They ere comfortable with the mandatory 35% natural area that would be on the front, sides

and rear property lines, referred to as the fringe areas.

There was discussion as to removal of the ‘nuisance’ type of vegetation from the natural area.
The septic area will now be excluded in the natural area;
Two methods for the 35%

ü If the mandatory vegetation on the fringe met the 35% then the ordinance was

satisfied., if it did not meet the 35%…..

ü It would be necessary to designate vegetation elsewhere on the lot to meet 35%.

He has tried to provide greater explanation of the process and how a permit is obtained.
The proposal provides different procedures for vacant lots, developed lots,
Procedure for property owners that want to remove vegetation more than 3” in caliper.
The cutting of vegetation over 3” will require a permit. The current ordinance specifies 4” in caliper.
To protect CAMA Estuarine and Ocean Hazard Areas, specifically, only pruning of these areas will be permitted except for construction of walkways or other types uses.
Does allow pruning of vegetation in natural area, and removal of nuisance vegetation.
Topographic surveys will continue to be required to aid and identify stormwater problems
The penalty for violations are now to be a $500 fine for each individual offense, i.e. each tree involved will constitute an offense.
A specific replacement height has been recommended if a tree is removed illegally.
Any request to waive or vary any requirement will be referred to the Board of Adjustment.
New definitions have been added, some from CAMA text.
The fringe area is designated as 10’ on front and rear with 5’ side property lines.
To protect trees that are of significant of size and height that are soil stabilizers.
The exemptions are the same as what had been previously reviewed.
Designs standards are more specific and rationale for the standard
Encourage the use of shared driveways
Follow the natural contour of a property wherever possible.
Reiterates the driveway specifications
Focus on what can and cannot be done in a natural area; i.e. removal of dead tress; trees that may be a threat to public safety or to a building or inhibits growth of surrounding trees and vegetation. The Dunes & Vegetation Officer must grant permission for such removal.

Mr. Rush, town manager, reminded the members of the map that was available that breaks out the individual lots that remain undeveloped and color coded to provide the square footage category that each of those lots falls in.

Ricky Farrington then presented a 15 minute Power Point presentation that illustrated the points that he disagreed with the submitted revision. His points dealt with topography primarily, stormwater issues, the use of the setbacks as natural area (fringe) on lots that have no natural vegetation in that area will preclude the stripping of vegetation from within the site. Mr. Farrington had a number of site specific instances with photographs of sites at Emerald Isle. He compared some of the projects he has done and how this revision would have adversely affected these sites. He feels that the owner and the developer ought to have the flexibility of determining the 35% to remain natural on the lot and not have 35% dictated. He thinks the homeowner and building can work for the better good of the lot. Mr. Farrington is also opposed to having the marsh area on soundfront lots and the ocean erodible area being excluded from the 35%, because in some instances a property would not be able to be developed with this requirement, he would construe that as a “taking”.

The members thanked Mr. Farrington for his in depth presentation and would take his concerns into consideration.

Hugh Geiger, general contractor, commented that if he were to have to adhere to the proposal before the board he would not be able to build a house in Pointe Bogue as it exists today. Implementing a side loading garage, as this homeowner preferred, would be impossible if the side fringe must be done. This proposal seems to “make poverty righteous” and force owners to smaller houses. For those property owners that have boats they would not be able to keep them in their back yard because they cannot go through the natural area. Most property owners feel that it is their land and they don’t like having so many regulations. Mr. Geiger commented that this is a better version than what had been previously submitted. He asked that the members reconsider and allow the 35% to be determined by the owner and contractor. To say that “one thing fits all” is not the case on many of the lots to be developed. He agreed with removing the septic area out of the calculation of natural or undisturbed area.

The members thanked Mr. Geiger for his comments.

Doje Marks, spoke as a property owner, to clarify that the reason for the ordinance changes was to protect the vegetation. It has been a long ongoing topic that many residents and owners are concerned about. It is important to the water table, stormwater, winds, and salt intrusion. She said she totally disagreed with Mr. Farrington that any constitutional rights would be violated. (Ms. Marks turned from the microphone and some comments were inaudible.) She and Mr. Farrington had some conversation regarding the Point Bogue S/D specifics on Corree Cove Road. Ms. Marks also felt that should an owner want to build a large home they should buy a large lot. Mr. Farrington took exception to this comment and advised that is what most of his development has been, being large lots with large homes.

Jim Davis, general contractor, then addressed the board. He told the board that he has been building here is 1981 and homes are much less than the size of the ones Mr. Farrington is building. He appreciates all the time that has been spent on the revision of this ordinance as he was Planning Board member from 1982 to 1998. He does not feel he is a developer, he is an agent for the home owner. Mr. Davis felt the current ordinance had served the town very well for a number of years. To remove the septic area from the natural or undisturbed area does make more sense because it takes away the public’s perception that there was more disturbance than what had been permitted. He felt that several hundred of the undeveloped lots will be difficult to deal with because of the problems that someone else caused this problem. The choice lots are almost gone, and the remainder of the lots are owned by individuals, not by large tracts development. He wants to keep Emerald Isle green but he sees the beard (fringe) as a problem. It would require the use of retaining walls in some cases, where the owner may have an entirely different option without being dictated that the fringe must be left natural. Mr. Davis recommended that the board reconsider the designation and let the 35% be a floating 35% and not a fringe area.

Vice Chairman Erikson thanked Mr. Davis for his comments.

Billy Farrington then addressed the board. Mr. Farrington apologized to the board for an incident that had occurred in a previous meeting. He has worked doing drywall since 1976 and began building on his own since 1985. He has drawn over 125 permits for construction with septic tanks. A septic tank must be installed, a house, driveway and now a stormwater system must be placed on the lot. There are several hundred lots that are less than 12,500 square feet that will be affected by all these necessary inclusions. If there is a smaller lot that has vegetation in places other than the fringe area they will have to cut that vegetation to comply and the contractors don’t want to do that. They want to preserve the vegetation even though others have accused them of wanting to cut trees for sport.

If the town wants to encourage shared driveways to reduce impervious area, how can that be done with the 5’ fringe on each property? The septic tank rules have 5’ setback requirements, from an area that has been leveled. If the area has to be level, if you leave it on a slope they will say 5’ plus an additional 7’. The reason being that if you put a system in the ground 2’ and it’s next to a slope you can experience a blowout of the line. This would create some potential problems on smaller lots. His perception of the fringe is that there is a taking when someone cannot use the setback area for their driveway and/or septic tank installation. He agreed on the issue of a side loading garage, the natural fringe would make entry very difficult on a ranch style house. Mr. Farrington agreed that taking the septic area out of the undisturbed is a great idea, but to please allow the 35% to be a floating determination to be made by the owner and builder.

Vice Chairman Erikson thanked Mr. Farrington for his comments.

John Odom asked to make comment and approached the board. Mr. Odom is a land surveyor that has worked with properties in Emerald Isle for a number of years. He would like to have the exemptions portions mention that land surveyors do not require a permit, that they will only be cutting the lot to be able to gain foot access for a survey. The board agreed that this would be considered. He went on to remind the members that small lots that were developed prior to 1977, by county health department regulations, can be placed from five feet of any property line, which would be a problem for the 10’ fringe requirement on the front and rear lot lines.

Clint Routson, a resident in Dolphin Ridge, agreed with the comments he had heard and that the fringe will be creating some problems especially with shared driveways. He would also like to see an ordinance that would allow the DVPO to modify the fringe requirement in certain situations. The board of adjustment could not issue a variance if a unique circumstance does not exist to the land. It comes down to being a dollar issue, as to whether one is willing to build retaining walls because they have 5’ fringe requirements. It would be beneficial to the town to have the DVPO be able to make those kind of decision and allow modifications rather than have to go to board of adjustment and not really have the standards be met so that a variance can be granted. He also wants the ordinance written in terms that intended interpretation is obvious to anyone who reads the ordinance.

Vice chairman Erikson thanked Mr. Routson for his brief comments.

Billy Farrington asked again be heard on an important topic that he thinks need to be addressed. On commercial properties that are condominimized that are on zero lot lines. He is concerned about what would happen if the building were to be destroyed with the proposed ordinance. If someone who owns a unit on the setback portion would not be able to have their unit. Would these buildings be grandfathered? There was no immediate answer to that question and must be considered.

Ronnie Watson reiterated that the 45% rule had been working. If this were a perfect world and perfect topography the fringe would work, but that will not work here. The 35% can work but the fringe is not going to work, the 35% needs to be floating. It will be a problem with residential and commercial property. If you never had to figure out how all the improvements to a property are to be applied you don’t understand the problems that can appear. Mr. Patteson is the only one on the board that deals with this on a day by day basis. The 35% needs to be on a floating designation.

Ed Dowling made the points regarding the applicant going to the board of adjustment. He disagrees with the term “taking” being used for the fringe requirement and read the state regulations as it reads from the definitions for a taking. After practical use and reasonable value have been established it cannot be classified as a taking. These regulation are constitutional. Mr. Dowling said he was not in favor of shared driveways with single family dwellings, but only for commercial uses. He was in favor of the 35% floating on lots less than 7,000 square feet, separating them from the larger lots. He went on to personally thank each of the parties that had just addressed the board.

Jim Craig said he did not know the history of the 45% over the 35% regulation since he is new to the board. He has faith in people and does not think that “one size fits all”. He does not like to see the ‘cookie cutter’ effect is best. He does not feel the fringe concept is appropriate. The intent is to preserve vegetation and people want individuality with their property.

Pam Minnick said she has not like the fringe concept since it was presented and she still does not like it. The 35% floating is fair to her and she is happy with that. If the fringe were to be implemented she is glad she has already built her house and did not have to comply with that requirement. She is thinking in terms of going out to build another home and how she would want to go about designing her own property.

Pat Patteson said he wants to see more green and the 35% will bring more green. He sees it as an increase because when you look at the septic system, as a genera rule, it gets vegetated and will then add to the 35% that needed to be determined. He referred to the map that had been distributed and indicated that the lots that remain undeveloped are scattered throughout the island and are not in an area that large amounts of vegetation is left. The ‘junk’ lots are difficult to deal with and trying to develop them with even more requirements makes it so much harder. He doesn’t want to punish an owner that wants to improve a lot that, over the years, has become the stormwater reception for the entire area. He does not like the fringe idea, but does want the 35% at the owners discretion and in the end we will get more green. Mr. Patteson said that he also would like to see something added that if it is not necessary to destroy something, dunes or whatever, that it not be destroyed. Also, Ms. Angus had talked to him about it that we do not want to create a situation that will require the board of adjustment making decisions that should not be coming before them.

Vice-chairman Erikson said she would prefer not to vote on this issue because Frank Erwin is not in attendance, and he had a lot of input into this ordinance. She preferred to table it to May.

Mike Harvey said he advised that he thought it is best to table the revision because there are two members that have been staunch advocates for different concepts that are absent this evening. It needs to be remembered that the Joint Workshop session in March staff took two concepts to the workshop. One the 35% floating concept, the other the fringe. Floating 35% is one he personally recommended to Mr. Rush in a second draft of the ordinance and what he had written the board in the past year and a half. Mr. Harvey said he agrees with Mr. Rush. The fringe was developed as a compromise to address other concerns. Both concepts went to the workshop and asked for guidance. They gave directions, and if that is not acceptable, let staff go back and rework the draft until this board is comfortable. Remember, the town board had given staff an opinion of what they want to see. What opinion the staff has is immaterial. Their opinion is the what he and staff work under; however if you want more information on the floating concept versus the fringe so that you are more comfortable in making additional recommendations.

Ms. Erikson said she likes the two comparisons that Ms. Angus submitted to illustrate the lot the way it is being developed today and how it would be developed if the revision were applied. She knows there are always going to be exceptions. She then thanked all those who participated in the discussion.

Mr. Dowling said he wants two phases of the directive, one with the 35% floating for the lots less than 7,000 sq. ft. and the fringe for those larger than 7,000 sq. ft.

Ms. Minnick said Mr. Dowling is asking for a third version, one for less than 7,000 sq. ft. with floating vegetation; second for fringe for lots over 7,000; and third for the floating for all lots with no square footage distinction.

Ms. Erikson then asked that this topic be tabled to the May meeting. Mr. Rush said he wanted to be sure that it was being tabled for Mr. Erwin and Mr. Daniel’s input, as well as going with the 35% floating vegetation requirement. Mr. Dowling made the motion to table, second by Pat Patteson with unanimous approval.

Meeting was adjourned at 9:15 PM

Respectfully submitted Carol Angus, Secretary
Town of Emerald Isle
Planning Board Planning Director