May 7, 2001

Planning Board

MONDAY, MAY 07, 2001

The meeting was called to order at 7:00 P.M. by Chairman Ceil Saunders.

Members in attendance:  Ceil Saunders, Frank Vance, George McLaughlin, Ed Dowling, Phil Almeida, and Fred Josey.  Art Daniel was excused due to being out of town.  Also, attending was Secretary, Carol Angus.

Reed Drive Commercial Park – Commercial lot subdivision and abandonment of town road to W.B. McLean Residuary Trust, for construction and maintenance.  Also, to address some concerns of this project from the Planning Board.  Ms. Paxon Holz and Mr. John P. McLean represented the W.B. McLean Residuary Trust  proposal.

Chairman Saunders asked that all members refer to the notes they had from the previous meeting of April 17.  She also advised the members that Ms. Holz had submitted a letter prior to the meeting regarding an unexpected situation with the Corps of Engineers and 404-wetland jurisdiction. Ms. Holz is asking to bring back the original plan for review with the 3-lot subdivis-ion. 

Ms. Holz asked if the board would follow through with the review of the stormwater plan as it is proposed for the road.  Then the letter she had submitted would be discussed.  Chairman Saunders agreed to the request of Ms. Holz. 

Mr. Almeida said that he had met with Mr. McLean earlier and they have a difference of opinion in the interpretation of the ordinance.  Stormwater computations that he has are good for the road surface area; they do not cover the remaining area.  Mr. McLean’s contention is that, according to the ordinance, it is required to do only the road.  Mr. Almeida asked Ms. Saunders her opinion, due to her experience on the board.  Ms. Saunders said she felt it is only the streets, that are being developed.

Mr. Almeida quoted from the ordinance Sec. 18-21 (b)(10) A preliminary plat shall also indicate and show surface water drainage plans and methods.  It is his interpretation that it should include the area that is being developed not only the road.

Mr. McLean responded that for every lot that is developed on commercial property every single parcel must come before the planning board and show the stormwater plan.  At this point there is nothing to develop, only build a road.  That is the difference, no buildings, just a road.

Mr. Almeida went on to add that the site is landlocked, there is no place for the water to go away, like a giant basin, which consists of three ponds.  The ponds are almost dry now because of the drought. The current ordinance requires that 1 ½” of rainwater be contained.  It will not trap all the water. 

Mr. McLean reminded the board of the stormwater system that was installed at the current CVS Drug Store location.   When the Beachmart (now CVS) was built, a system of huge pipes were put underground that are embedded in rock and the 1 ½” of water goes in that pipe.  If 4” fell it certainly would not hold because of the water table, but then the water would go to the right-of-way swells.  That is all that one has to do is overflow them.  He would be putting water from the roadway (on Reed Drive project) to a natural pond that is there.  The 1 ½” will generate three inches in depth of the pond.  A 4 ½” rainfall will generate 9” of water in the pond. Whenever the properties that develop there and they have wetwater detention or infiltration basins they are allowed to have an overflow.  There is only one place to go, and that  is the hole in the ½ acre on lot #5. 

Mr. Almeida said 1 ½” water will be trapped within the property by french drain or seepage mechanism.  The remaining overflow question is whose responsibility is it to design it to make sure there is enough capacity for the overflow to go somewhere and pond.  At one time one or two ponds were filled, the neighbors are complaining that the area gets flooded because the ponds have become landlocked.  A ditch toward another pond has been blocked because Reed Drive has been filled.  It is, in his opinion, the responsibility of the developer of the subdivision to make sure there are stormwater provisions or drain design for the whole subdivision.  It is the responsibility of the individual lot owner, when he starts building he has more impervious area with all the paved area.  There is much more runoff than there would be in a virgin situation.

Mr. McLean replied that the new owner can have 85% impervious area, and Mr. Almeida agreed.  However, from the impervious area he gets additional water.  Mr. McLean agreed, but the point is that this project has met the ordinance.  He has done what is required by ordinance.

Mr. Almeida said he did not believe so.

Mr. McLean went on to add that lot 5, the largest one, is probably greater than an acre.  It would have to be approved by DEHNR Water Quality, the regional engineers in Wilmington.  It would then have to meet N.C. state regulations, not just Emerald Isle’s regulations.

Mr. Almeida asked if the large lot would remain as one single lot and might not be subdivided. Mr. McLean replied that if it were developed as more than one acre, it has to have state approval.

Mr. Almeida said, the minute it is subdivided it does not need state approval.  We are back to the town basis and require the town approval.

Chairman Saunders said that the meeting tonight is to subdivide the property.  Until such time it is developed, that is when we get into stormwater, because here we are not developing anything.

Mr. Almeida disagreed with this view. 

 Mr. Dowling reminded the members that there was a letter from the commissioners that advised this board to review all the acreage. 

Chairman Saunders said the board had done that (May 07, 2001); however, with this latest development (wetlands) it cannot be done with the entire property.

Mr. Dowling said he felt it is the goal of the Planning Board to keep all water on site and that a statement should be read to the Commissioners so they can make the decision whether to require the entire acreage to be reviewed.  Mr. McLean has done a super job, exceeding the requirements, to contain as much as 3 inches stormwater. 

Mr. McLaughlin said he has mixed feelings about the project.  He agreed that Mr. McLean has done a great job on retaining the amount of water that he has.  However, if all there is to be developed is a road, therein lies the problem.  If you put a road in and bail out on it, then the town is stuck.

Mr. McLean disagreed, that is not the case.  You still have continued commercial review.

Mr. McLaughlin said he felt that when the road is in, then all bets are off on what happens.

Ms. Holz asked if she could inquire about the JTW, Inc. commercial subdivision in Block 15.  She wanted to know what happened there when all they wanted to do was subdivide.  That was quickly approved right after the moratorium had expired.  Where did their storm water go?  They don’t have a development plan, per lot.

Mr. Almeida said it wasn’t like this.  Ms. Holz replied that it was exactly like her plan and the planning board had approved their plan.

Chairman Saunders that there is a ditch with infiltration piping along the southern property line.

Ms. Holz wanted to know the difference between her project and what was approved in February for JTW, Inc.?  They are not proposing a building, or a parking lot, or anything but building a road that has to be built in order to record the map.  That is all there is.  Is there one rule for her and another rule for another family?  Where were these objections for them?

Chairman Saunders said she has no problem with subdividing this problem.  When someone comes in, in the future, to do something with the lots, is when the planning board takes a hard look at it.  Just to subdivide is no need for this comprehensive plan.

Mr. Dowling said they are here tonight to look at the abandonment of Reed Drive.

Mr. Almeida asked if they were not looking at stormwater today?

Ms. Holz said that she had hoped the stormwater plan could be reviewed and be approved.

Mr. Almeida said that because there is a question of interpretation that there should be a legal opinion from the Commissioners.

Mr. Almeida made the motion to send the project to the Town Board for their advice, Mr. Dowling seconded that motion.  The vote was unanimous in favor of the motion

Ms. Holz asked if she could give a brief history of what has taken place to date. Last week she heard from Larry Baldwin, her agent, who she had hired at the request of the planning board. She is to reflag the existing wetlands.  After they were reflagged them he contacted Mr. Mickey Sugg, with the Corps of Engineers, to come out and agree with his flagging. Mr. Baldwin called and said the visit had been made and Mr. Sugg wanted the property resurveyed.  The survey is to delineate wetlands.  At that time, Mr. Baldwin, said that the Corps of Engineers, in spite of the recent Supreme Court decision that these wetlands are not jurisdictional, is claiming that the wetlands are jurisdictional.  Even though parts of the area don’t hold water, Mr. Sugg is claiming that they are connected in a subterranium manner. She asked for an explanation of this claim.

Mr. Baldwin said the only way the Corps can claim jurisdiction over the wetlands is that migratory birds flying from one state to another can land on the water.  Ms. Holz then said to Mr. Baldwin that these birds even though there is no water they dig underground and come up some-where else.  Mr. Baldwin replied “That would have to be.”  This is an example of how silly this is.  However, Mr. Baldwin told her, after the Corps lost the Supreme Court matter, the state of North Carolina Division of Environmental Management enacted a rule that they have jurisdiction over the previous Corps wetlands.  She replied that she was not aware of that; therefore, since either the Corps and N.C. or just N.C. depending on how well those ducks dig, have juris-diction over these dry and wet ponds.  Where the road would go that the Town wants her to build looping around, she respectfully declines to build that loop.  She does not have the permits to do so.  However, if the town desires to go for the permits, she will pay the cost and build the road as the boards have requested.  In the meantime, she withdraws the request to abandon Reed Drive, and return to the original 3-lot subdivision.  Also, to use the existing, dedicated,  and accepted by the town for dedication of Reed Drive.  She will pave in such a way that if the town desires to later abandon  part of it, and stay with a 40’ private road and loop, and get the permits, she will pave the road.  She feels she has no other choice, because she knew nothing of this decision.  She felt that other town officials knew about this but did not share it with her.  If Mr. Baldwin had not called her last week, she still wouldn’t know. 

Mr. Almeida asked which wetland is being discussed.  Ms. Holz said it is the area where the road loops around and runs along the electric company.  The part that was filled in the past was done with permits and permission, from the Corps and DENR. 

Mr. Almeida said he did not understand how the Corps could say in the past it was O.K. and come back now and say otherwise.  He went on to ask about the internal circulation pattern of travel.  Ms. Holz replied that this is not being addressed at this time, just Reed Dr. in and out.

Mr. Almeida said you are not addressing stormwater not addressing traffic circulation.

Ms. Holz said she had addressed stormwater.  Mr. Almeida said that is not true in his opinion. 

Ms. Holz asked how can they address this when there is no plan of a building of any kind.  The square footage of a building will determine parking, etc. so how can anything be calculated?

Mr. McLean returned to the question some time ago about the JTW, Inc. property and said this property will address this property the same way.  Please don’t treat this project differently.

Mr. Almeida said the Reed Drive property is sitting in a fishbowl.  Mr. McLean replied that the JTW, Inc. property also did.

Mr. Almeida said they were not in a fishbowl so they can overflow.  The runoff can go out in the street.  In the Reed Dr. case it cannot it is trapped within the property like a basin.

Mr. McLean asked for some criteria of how many inches per hour, something to go on.  How big is the reservoir going to be on the lot.  Either a wet pond or dry pond or  piping, what?  Normally, he would follow the 1 ½” of stormwater but we followed the 3” guidelines.

Mr. Almeida asked what happens if the rainfall is more than 3”?  Mr. McLean replied that DOT designed roads to flood every 10 years.  Even they know there ARE going to be floods.  Even he cannot design for three hurricanes coming back to back. There will be a flood.

Mr. Dowling read a very lengthy rationale of how the board had arrived to this point with dates, agencies and parties involved, including attorneys.  (Attached to these minutes). 

Mr. Almeida said he is not against the subdivision or abandoning the road, if the traffic problem can be addressed.  He asked Ms. Holz if she was amenable to moving the road further down and finding some layout of allowing circulation of traffic?

Ms. Holz said she is amenable and has said so to putting the main entrance opposite Pebble Beach entrance, but only when and if the town obtains the necessary permits for her to do so.  In the meantime, she requests the use of the existing, dedicated, accepted street that is on the Town of Emerald Isle street system.

Mr. Almeida said he wants a road developed that does not go through the wetland to avoid the problem that has been identified by the Corps of Engineers.  It will be a longer road and use some of the owners property, but would be doable.  Mr. McLean is an engineer and could do this.

Ms. Holz said she has paid him his last dollar.  She advised she has paid thousands of dollars to  answer the boards every request.

Mr. Almeida asked Mr. McLean how long the bulkhead is that goes over the wetland?  Mr. McLean replied it is approximately 42 feet.

Mr. Almeida returned to discuss a way  of developing a traffic pattern to get away from the Reed Dr. extension.  That would be easier to sell to the commissioners as well as to the public.

Ms. Holz said her problem here is that she has been down this road.  If the board was unaware of the other constraints that she has faced, that’s a shame, but if they were aware that’s an even bigger shame. 

Mr. Almeida said he understood that the wetlands were non jurisdictional.  Ms. Holz agreed but said that somebody knew it, not on this board but somebody knew it.

Commissioner Trainham responded from the audience that he was not aware of the ruling.

Mayor Harris asked, from the audience, who called in the Corps of Engineers.  Ms. Holz responded that she did, at the request of the Planning Board to mark the wetlands.  She said Dr. Almeida said the wetlands had changed and he wanted to see them as they exist now.  She then hired Mr. Baldwin, Land Management, and asked him to flag the existing wetlands.  All parties concerned were operating on the assumption that the wetlands were non jurisdictional. The area was flagged and Mr. Baldwin called the Corps to verify the flagging.  The next step is for the surveyors to survey.  Then the Corps signs the map to indicate it is correct.  In this process, Mr. Sugg told Mr. Baldwin these are not non-jurisdictional wetlands.  When the survey comes back they are going to be classified ‘jurisdictional’ wetlands.

Ms. Holz, as soon as she was notified, contacted Mr. Sugg.  He returned her call today (5/07/01) and she wrote the letter that is before each member to withdraw the request for abandonment of the road and to return to her original 3-lot subdivision request.

Mr. Fred Josey asked where the state of North Carolina is in this process?  Ms. Holz replied that she has been told that to, protect and preserve the wetlands, the state has enacted an emergency law that they have state jurisdiction over the former 404 wetlands.

Mr. Almeida said the issue needs to be one that will be easy to sell.  That would be moving the access to the subdivision as far as you can from Hwy 58.  He realizes that Ms. Holz must be very frustrated to be at this for so many months.  She said she is willing to look at an alternative or additional entrance, but she does not believe for a second that this hopeful idea will ever come to pass.  There is a town road and now she wants to use it. She does not know what else she should have to do.  This issue is beyond the town regulations now.

Mr. Almeida asked how trucks would be accommodated to be routed in the subdivision.  She said she will pave a 60' bulb (cul-de-sac).  Mr. Almeida said he still wants the entry moved down.  Ms. Holz said she is willing to put in an additional road later if the town will get the permits.  In the meantime, she wants to build the road that is shown on all the maps.  She will pave a bulb at the end that the Hindenburg can turn around in. 

The members then studied the map at the board table and made several observations.  Mr. McLean said he is willing to pave a 100 foot radius.

Chairman Saunders again said she can see no other choice but to agree to the subdivision.  We do have the Special Use requirement now that will control the use of each of these properties.

That will control what goes on, on the property, impervious surface if it is a large building.

Continued discussion went on regarding the traffic problem. 

Mr. Dowling asked Mr. McLean where he would suggest putting the road.  Mr. McLean responded that he had just told Ms. Holz that he is in favor of suing the town and putting the road right where it is.  He doesn’t know what else to do.

Mr. Vance said this project has been kicked around for months, then this glitch comes up with the wetlands.  Mr. McLean said he had about had it this morning when this came up.  Mr. Vance went on to say that he had looked at this plan dozens of times at home, trying to see another way of traffic.  Continued study then went on with the maps and the developers before some of the members at the board table.  Other members of the board continued with separate conversations.  (Hard to discern).  Mr. Vance noted that it is 170’ from Hwy 58 to Reed Drive.

There was some additional discussion about moving the entrance further south away from Hwy 58.  Discussion was to move the entrance further away and 360’ to be the necessary adjustment.

The Motion was made by Mr. Almeida that the entrance should be located approximately 360 feet from N.C. 58 right-of-way. The road into the subdivision avoid the wetland and a bulb be provided at the end to allow fire trucks to navigate. Also, to vacate the unused portion of Reed Drive Extension.  Motion was seconded by George McLaughlin.  Vote was unanimous in favor of the motion.

Mr. Vance reminded the members that Mr. Art Daniel had agreed to write a letter to the Mayor too ask that lights be timed and other issues looked into by D.O.T. under the Mayor’s signature.

There was continued discussion concerning the width of public streets and private streets.

Ms. Angus asked to have it clarified which of these two categories is to be used. This road will be done as a 50’ right-of-way.

Mr. Almeida asked that the commissioners might look at the plat prior to their meeting.  As a preliminary review of the Preliminary plat. Not to waste too much time……

Ms. Holz injected, that she has been here before, what if the commissioners don’t agree with this recommendation?  Then would you approve the original request for the original road and bulb?

Mr. Almeida said he wanted to see it go to the commissioners first and put them in the “hot seat”.

The motion to adjourn was made by George McLaughlin, second by Ed Dowling with unanimous approval in favor of the motion.

6:36 P.M.

Posted by The Town of Emerald Isle 05/07/2001