MINUTES OF THE REGULAR SCHEDULED MEETING
OF THE EMERALD ISLE TOWN BOARD OF COMMISSIONERS
TUESDAY, MAY 8, 2001 – 7:00 P.M. – TOWN HALL
Mayor Barbara Harris called the meeting to order at 7:00 P.M. Present for the meeting were Mayor Harris, Commissioners Wootten, Trainham, Murphy, McElraft, and Farmer, Town Attorney Derek Taylor, Interim Town Manager Mitsy Overman, Town Clerk Carolyn Custy, Planning Board Chairman Ceil Saunders, Public Works Director Robert Conrad, Inspection Department Head Carol Angus, Parks & Recreation Director Alesia Sanderson, Fire Chief William Walker and Police Chief Mark Wilson.
Mayor Harris announced Agenda changes. Number 6 – Mr Lew Ewen of the Carteret County Historical Society has notified the Board that he has a conflict with this meeting tonight and would not be able to attend. This item will be replaced by a Resolution to appoint a new Town Manager.
Item 8 – Public Hearing/Intent to Close Reed Drive Extension will not be held due to some last minute changes concerning Reed Drive Extension. Mrs. Holz has been asked to attend to address the Board on some of the changes.
Commissioner Trainham moved, Commissioner Murphy seconded and the Board voted unanimously to accept the Agenda.
Commissioner Murphy moved, Commissioner McElraft seconded and the Board voted unanimously to approve the Consent Agenda ( Minutes of Budget Workshop of March 27, 2001, Minutes of Sign Ordinance Workshop of April 9, 2001, Minutes of Regular Meeting April 10, 2001).
Commissioner Murphy moved, Commissioner Farmer seconded and the Board voted unanimously to approve the Routine Tax Refunds and Releases in the amount of $66.87.
LES EWEN/HISTORICAL SOCIETY
Mr. Ewen representing the Carteret County Historical Society has requested to appear before the Board to talk about the Society and to request assistance.
NOTE: Mr. Ewen notified Mayor Harris that he would be unable to attend this meeting due to a conflict; Therefore his request was withdrawn.
RESOLUTION APPOINTING A TOWN MANAGER
Mayor Harris commented the Board received 97 applications for the position of Town Manager. Applications were received all the way from Washington State, New Mexico and others. All were highly trained and some were Town Managers of larger cities. The Board reviewed all 97 applications and narrowed them down to 20. Of those 20, it was narrowed down to 5. Mayor Harris said that Resolution Number R01-5-8-01 A is a Resolution Appointing Town Manager of The Town of Emerald Isle, North Carolina. The date of employment will be 1 July 2001. At this time she introduced Mr. Frank A. Rush, Jr. who is at this time Assistant County Manager for Carteret County. He and his wife Suzanne live on Indigo Street in Emerald Isle and are expecting their first son in August.
Commissioner McElraft moved, Commissioner Murphy seconded and the Board voted unanimously to approve the Resolution appointing a Town Manager of the Town of Emerald Isle.
WASTE INDUSTRIES CONTRACT RENEWAL
The Waste Industries Contract for garbage pick-up services is up for renewal. They are, at this time, not requesting an extension of time but they are requesting an increase in their rates. Due to the high cost of gasoline, etc. the increase requested is 2.9% over last year’s rates. A copy of the Contract has been incorporated at the end of these Minutes.
Commissioner Farmer moved, Commissioner Wootten seconded and the Board voted unanimously to approve the Waste Industries Contract for a period of 48 months beginning 1 July 2001.
PUBLIC HEARING/INTENT TO CLOSE REED DRIVE EXTENSION
A Resolution of Intent to close Reed Drive Extension was approved at the regular meeting of the Town Board on April 10, 2001. The Public Hearing has been advertised for 4 consecutive weeks, the owners and adjoining property owners have been notified by Certified Mail and hand delivering of notices that were signed for.
This item has been withdrawn due to some changes that have recently occurred. Attorney Richard Stanley came forward and said “We have found it necessary to withdraw the petition and have you consider withdrawal from the Reed Drive Extension because it was learned last Thursday through Larry Baldwin who was working with the Corps of Engineers that there is some section 404 wetlands on the proposed road. You will recall that the existing Reed Drive is now dedicated to the public and is the existing public road that Mrs. Holz was going to use but as a result of you granting preliminary subdivision approval last time, we ask that it be withdrawn based upon Reed Drive looping around and coming back out to Pebble Beach.”
Mr. Stanley continued with “In the area where you wanted it to loop around, there are section 404 wetlands that the Corps is claiming jurisdiction over and also the Division of Environmental Management. With your policy on wetlands we are not in a position to proceed. I would say to you that what we would like to do is to have you give us revised preliminary approval of the 3-lot subdivision on the north side of Reed Drive and keep it public. We are willing to pave it and put a turn-a-round at the end of it so that the Fire Department could get in and out and then if you decide that you would like to pursue getting a permit to have the road constructed, we would then go ahead and loop it and construct it and make it a private road. I think this is essentially what our position is now because we can’t have you withdraw our own business access into the road knowing that we can’t continue it on out to Coast Guard Road and Pebble Beach. That is the reason we ask that you withdraw it. We are not able to do what you asked us to do which was to continue around and bring it out to Coast Guard because we cannot get a permit. We would like, like I said, for you to – last time you gave us preliminary subdivision approval based upon the withdrawal of that road. Tonight we simply ask that you give us preliminary approval for a 3-lot subdivision that has already been before the Planning Board on the north side of the existing public road and then we will work with you on how you want us to do the south side of Reed Drive, the undeveloped that she (Mrs. Holz) still has.”
Commissioner Wootten asked Mr. Stanley “Why the Corps of Engineers determine that they have jurisdiction on that piece of property?” Mr. Stanley answered “Apparently the wetlands are of such significance there that they didn’t feel like it could be filled or disturbed without a permit having been applied for.” Commissioner Wootten said, “So the fact that they have jurisdiction does not necessarily mean you still can’t do what you want to do.” Mr. Stanley answered “Yes sir. I understand the Town’s policy that you do not want wetlands filled so we are saying to you that if you would like to apply for or be responsible for the application for the filling of it, we will be glad to do the work and pave it but the Town needs to decide how they want to go.”
Commissioner Wootten said his point is “1) the fact that the Corps has claimed jurisdiction on this thing does not mean that it still cannot be permitted to do exactly what we were talking about doing last month.” Mr. Stanley said, “It is going to require a permit from the Corps and the Division of Environmental.” Commissioner Wootten said this does not necessarily mean that it cannot be done. Mrs. Holz interjected “I am not going to apply for a permit to fill wetlands.” Commissioner Wootten said “That was my next question is to why the town and not you?” Mrs. Holz said “Because I do not want to fill them in. I do not want to fill them.”
Mayor Harris said, it would now go back to the Planning Board. Mr. Stanley said “If that is the position of the Board, we are going back to the Planning Board with only the 3-lot subdivision on the north. I would like to know your position on whether or not you would like the wetlands filled and whether or not you would like to apply for a permit? That gives us some balance as to where we are going to go.”
Commissioner Murphy said he just understood that it is up to her to apply for that permit. “She does not want to fill the wetlands correct?” Mr. Stanley replied “She is saying she is not going to apply for the permits herself. If the Town chooses to do that I think she would be willing to construct the road.
Commissioner Farmer commented “The Corps of Engineers has jurisdiction over adjacent wetlands. That is the reason why the Corps is saying you need a permit. It has nothing to do with the North Carolina Environmental Management Commission. The North Carolina Environmental Management Commission has jurisdiction over isolated wetlands. The difference is that the Corps feels that the wetlands on your property communicates hydraulidy, not above the ground but below the ground that counts and that is why they are saying “ No”. As for the Town applying to fill a wetland not on Town property , I cannot image why they would be doing that.” Mr. Stanley replied “Because it would be a street as part of the subdivision but like I said, that is a decision you all have got to make.”
Commissioner McElraft asked “How can we ask them to put a road where we will not let them fill? We are asking them, it was our opinion that we needed to go out in that position there near the Pebble Beach exit and at the time we decided that did we not know that those were 404 wetlands?” Commissioner Farmer said “Not unless they got a determination from the Corps.” Mr. Stanley interjected “I think you knew before we did.”
Commissioner Farmer asked to comment on this. She said, “I find this whole thing fascinating and I will illuminate the public. It was suggested at the Planning Board meeting last night, I was not there, that I notified the Planning Board and Board of Commissioners that this wetlands would not be allowed to filled. What I actually did was I sent a copy of an article to the Planning Board and Board of Commissioners about an entirely different kind of wetlands. You have an adjacent wetlands. The article I sent to everyone was about isolated wetlands. They are entirely different wetlands. They have nothing to do with your property. “
Mrs. Holz said “The Corps has not told us what kind of wetlands they are.” Commissioner Farmer replied “Yes they have because they said they have jurisdiction.” Mrs. Holz said again, “They have not told us.” Commissioner Farmer said “It they are saying you need a permit they are saying they have jurisdiction over it. If they have jurisdiction over it then it is not isolated wetlands.” Mrs. Holz replied, “You know more about it than I do. I don’t want to fill wetlands. I was forced to agree because that is the only way my subdivision would get approved. I never wanted to build that road. There is an existing dedicated Town road that I should be allowed to use. It has been on record since 1971. I never wanted to fill wetlands. I never wanted to make a loop road. I was coerced into agreeing to do it and now that my consultant has told me, and you know much more about this than I do Mrs. Farmer,” - Commissioner Farmer interjected “I didn’t know what kind of wetlands they are.” - -Mrs Holz continued “I still don’t know.” Commissioner Farmer said “Have you asked for a determination?” Mrs. Holz said “No. I have not. I have been instructed to survey.” Commissioner Farmer replied “It may be an isolated wetland but if it is, in that case it is the North Carolina Environmental - - - .” Mrs. Holz continued “Either way I have to get a permit, more than one permit. I don’t want to build two roads instead of one road. I don’t want to fill wetlands. If the Town wants to force me to fill wetlands to satisfy their road requirement then let the Town get the permit and I will pay for the work. It is that simple. Otherwise let me pave the Town road which contains NO WETLANDS!”
Mayor Harris asked if the Board wished to send this back without any further comments to the Planning Board?
Commissioner Trainham replied in the form of a motion, “Yes Ma’am. I think it needs to go back to the Planning Board. This is a new thing and we have not had a chance to mull it over. I hate to say it but the lady is right.”
Mr. Stanley said we have been before the Planning Board now for almost a year. Commissioner Trainham said “I know you have but this is a situation that has come as a surprise to us. You say it was a surprise to you, it was a surprise to us too because we did not know anything about this until yesterday morning. In the meantime I have a question I would like to ask. Is it prohibited financially to think in terms of bridging the wetlands and put the road around it?”
Mr. Stanley said the only thing they know at this point is there is going to have to be an application and permits secured. Knowing the Town’s policy on that we are not going to do anything until you all decide what you want done.
Commissioner Farmer said “ I will also say that I think anyone who has wetlands on their property knows that the Corps is going to have to come out and take a look at them. It is going to have to be surveyed. I don’t understand why this would come so late in the process.”
Mr. Stanley said, “We would like to proceed with the subdivision only on the north side. You are the ones who said go ahead and loop it and do it as a total subdivision. We did not have any plans for the southern portion of this. This all came up last month so this was a thing that came up on us very quickly.”
Commissioner Farmer said, “I think the Planning Board has been very clear, and I should not speak for them though, that all along they wanted the whole parcel subdivided. I remember them saying that when Cary Harrison was on the Planning Board. Mr. Stanley said “This is the only place in North Carolina that I know of that has told a land owner how to subdivide their property. This is an existing public road. All she wanted to do was to create 3 small lots on north side and instead she is told she has to subdivide the whole property. That is what caused the problem.”
Commissioner Farmer said “ The reason being that we have understandable traffic concerns with development on that parcel. We have an obligation to the residents of Emerald Isle to make sure that their safety is first.” Mr. Stanley said, “You have adopted that Amendment. What we are doing here has nothing to do with the use of the property, only the division of the land and the lots. You have adopted an Amendment to the Zoning Ordinance that specifically asks for the uses. This does not have anything to do with that. All we are trying to do is subdivide our land. We don’t even know what the use is going to be.”
Mayor Harris said, “We understand that you want to take this back for the 3 lots and extension. That is what you have proposed. You will take this back to the Planning Board. I have a motion from Mr. Trainham. Do I have a second?”
Commissioner Farmer seconded Mr. Trainham’s motion.
Commissioner McElraft said she would like to hear what Commissioner Wootten has to say.
Commissioner Wootten said he does not want to let this go without reviewing how we have got to this situation. “Back in 1999 the previous Board was asked to just abandon the road (Reed Drive Extension) altogether and it was determined by the previous Board that was not the thing to do because that would not allow the Town to have any control over the traffic pattern in and out and around that area at all. At the same time the State D.O.T. did a general study that said it was a bad idea for a piece of commercial property to be developed in that particular plot of land. This generalized but that is basically what it said. The Town spent almost $27,000 to get advice as to how to find a middle ground so that the land owner would be able to continue to develop her property that she has owned for a long time in a commercial zone in the same way that we could safeguard the welfare, the health and safety of citizens of Emerald Isle. These studies told us that there was a point that square footage would break down traffic and the other thing it told us was that we had to have an exit from the property over on the Pebble Beach side. Two things we were told had to happen if this was going to be a viable developing piece. In order to do that, this Board and the Planning Board made a statement that we needed a total plat plan, infrastructure, not what was going to go on that side, infrastructure including that road and we will proceed down that path to do that with the Planning Board with this latest development. I don’t think you turn around and what you seem to be saying is that this latest development is a big stop, let’s forget the progress we have made toward solving the problem, let’s go back to just developing 3 lots, where we were three months ago. That is not going to work. We have to together keep working toward solving the problem. I don’t know what the solution is here. Maybe it is going to take carrying the Corps of Engineers to court. Maybe the Town and the developer will go to court. I don’t know. Build a bridge. There has to be a way to develop that property with the entrance down by Pebble Beach.”
Mr. Stanley said “What she is proposing to do is to turn Reed Drive, when they come back out, to turn them South so they go to the Pebble Beach, they cannot turn left, they have to turn right.” Commissioner Woottenreplied, “Richard, we were there last month and that was looking good.” Mr. Stanley said, “If anything has been developed on Coast Guard Road south of Reed Drive it would also be moved toward that same intersection.” Commissioner Wootten replied, “We have to have this thing all worked out.” Mr. Stanley said, “You have the right on your Commercial Review for anything done to require that.”
Mr. Stanley congratulated the Board on their choice of a new Manager. He is here tonight and will learn what he is going to go up against here.
Commissioner Farmer commented “There were a number of irregularities with this Preliminary Plat Approval at the last Board meeting. We were given a form stating that this was a Preliminary Plat approved by the Planning Board and it was not. I got a number of calls from Planning Board members who were very upset. They have issues about where the entrance goes into your property is located. They felt that Reed Drive Extension was too close to Highway 58. Not only do I feel that way, which is not very important, but the D.O.T. felt that way as did Kimely Horne.”
Mr. Stanley said, “Do you understand that there is nothing we can do about that. That was created in 1971?” Commissioner Farmer replied, “ I disagree with you. I think there are solutions. I don’t think the solutions should be worked at the Board of Commissioners meeting. I think it should go back to the Planning Board.”
Commissioner Trainham called the question at this point as he had made a motion.
Commissioner Trainham had made a motion previously to send the Reed Drive Extension back to the Planning Board as soon as possible in the near future, Commissioner Farmer had seconded the motion at this point.
Commissioner McElraft said, “As this goes back to the Planning Board, I would like for you to think of private property rights here also. We have held these people up for a long time telling them where we wanted the road. At that time, we should have investigated if it was over wetlands when we required them to do that. What I would like to see is that it go back to the Planning Board with the hope that we can let them develop those 3 lots and with the future of that road to go around however we get those permits and they not develop the other part until we have the road going around it. This would eliminate any problem with traffic because that would create the problems with all of the lots developed. Those 3 lots are not going to create enough traffic that the one road could not handle.”
Mrs. Ceil Saunders, Chairman of the Planning Board, interjected, “It could take 3 years for those permits she is asking for. The suggestion at the meeting (Planning Board) last night was to move the entrance down 360 feet from North Carolina 58 right-of-way. To take a road into the subdivision with a bulb at the end for a turn-a-round for the fire trucks. This has been going on for a long time. I feel like we have hashed this thing out at the Planning Board. There is nothing more we can do with it. I personally, and I am sure that the rest of the Planning Board does not see anything wrong with subdividing the property. She is not building on it. There is a difference. She is not putting anything on it. All she is asking is to subdivide. With or without a road, all she wants is to subdivide. I don’t know what more the Planning Board can do with it.”
Town Attorney Derek Taylor said, “Just for purposes of meeting procedural requirement, we are asking that they present you (the Planning Board) with a new plat. It’s probably going to be an old plat.” Mr. Stanley commented, “Since you have 6 or 7 versions, one of them may be 12 years old.”
Mr. Taylor continued, “Whatever the plat is, some plat with the current plan with how you want to proceed. The Planning Board should review that plat, make a determination, go for it, recommend any changes, this is perfect for us, we have no problems or give us anything you see problems with. This time we should make sure we cover all the infrastructure issues that apparently the Planning Board has been hashing over, get a consensus and make a recommendation to the Town Board. We are not asking you to change anything or do anything different than what you normally do in application process. Once you have made the recommendation, cut it loose because it is then the Town Board’s decision. We can’t approve a plat that we haven’t had go through you (the Planning Board) before.
Commissioner Trainham asked, “Mr. Attorney, we could then go ahead with a Public Hearing at that time could we not?” Attorney Taylor’s answer was “That is right.”
Commissioner Farmer said, “It sounds to me like the Corps of Engineers just told her they wanted her to survey it. They have not said whether you could fill it or not. They have not said if they even have jurisdiction over it?” Mrs. Holz answered, “That is correct. I have commissioned a surveyor.” Commissioner Farmer said, “OK because certain ways that will be important information for the Planning Board and if you feel strongly about not wanting to fill that wetland, you could fill it and mitigate it too but if
you absolutely do not want to fill the wetland that’s one thing the Planning Board needs to know too.” Mrs. Saunders said, “No matter who applies for that permit, it will take years to get a permit to do that.” Commissioner Farmer replied, “No, it doesn’t. If it were an emergency or if it turns out to be an isolated wetland, the kind of wetland the Corps does not have jurisdiction over, that will take a long time because the Environmental Management Commission has just taken jurisdiction over those wetlands.
They have yet to write guidelines for under what circumstances they can be filled. I was told by someone on the Environmental Management Commission this morning, when I
heard about the wetland issue, and asked them what size wetland would their regulations cover and they said as small as one-third of an acre. Anything greater than one-third of an acre would be covered by the new guidelines that don’t exist yet.”
Commissioner Wootten said he thinks it is important for the Planning Board to recognize that at least the majority of the Town Board has made the determination that that land will be developed commercially. That decision has been made and he suggested that we move on and figure out the best way to do it.
Mayor Harris called for a vote. The Board voted unanimously to return this project to the Planning Board.
APPROVAL OF FINAL PLAT SUNSET HARBOR CONDOMINIUMS LOT 1.
One recommendation on the plat under notes #4, word “minimum” is to be “maximum.” The Sepia is to be on hand for signatures.
Commissioner Farmer made a comment regarding this item which was directed a little more to the Town Attorney than anyone else. She said, “Those of you who attended the April Board of Commissioners meeting heard me talk about Cherry Point recently designating the flight path over Emerald Isle as an Accident Potential Zone or APZ. The APZ-II designation, according to Department of Navy's guidelines, for safety reasons limits density to 1 to 2 single-family houses per acre and prohibits such uses as condominiums, and gathering places like shopping centers, day cares, hotels, churches and gas stations. Even Town Hall. All of these land uses are already here in Emerald Isle in the Accident Potential Zone.
“Last week I went to a public information meeting in Cape Carteret, held by Cherry Point, where they displayed a revised map. This map shows a strip along Bogue Sound that is now designated an APZ-I. According to Department of Navy guidelines, all residential development should be prohibited. Sunset Harbor falls within this APZ-I zone.
We can't do anything about this final plat, or the marina and other houses and trailers that are already in this accident potential zone. It's too late. But my question for the town attorney is what sort of liability does the town have for approving incompatible development in this hazardous area and other APZ areas in town now that the Marine Corps has notified us? And are there measures the Town should be taking to limit that liability?”
Attorney Taylor replied, “Unless they have some statutory authority for controlling how the Town does its approvals in its own ordinance scheme, I doubt
seriously that they do. There is no direct jurisdiction over the issue. Is there any indirect liability, because having been forewarned that this is in a dangerous area and then if in face the danger were to occur would the Town be liable? My first impression without having done any research on the issue is “No”. That is a wild guess. That is based on sovereignty, doing the best job you can, the property owner being forewarned that they might be in a dangerous spot and continuing on – these are all general principals that I am applying to a specific situation which I have not researched.”
Commissioner Farmer said, “There is no requirement for anyone buying property to be forewarned. I guess my question is, I think this is fairly important and I think we really should have a clear idea of what sort of liability. If anyone comes back and says we don’t have any, I would be one happy camper.”
Commissioner McElraft commented, “There are areas, Emerald Landing for one, where people are forewarned. They have to sign disclosure statements and they move in there anyway.”
Commissioner Farmer replied, “Emerald Landing is not in the ATZ Zone at all.” Commissioner McElraft replied, “It is also in an ATZ Zone.” Commissioner Farmer disagreed stating, “They say that they fly east of Emerald Landing.”
Commissioner Trainham asked to go on record supporting what has already been said. He feels town citizens should know that this is not propaganda that we have been hearing about. This is no joke. It is a very real problem. A crash zone is real. It has already been delineated that way and he asked to go on record as supporting any kind of question that the attorney might be able to come up with some solutions in regard to our liability.
Mayor Harris requested that the Board go back to Sunset Harbor Final Plat Approval for Lot 1.
Commissioner Wootten moved, Commissioner McElraft seconded and the Board voted unanimously to approve the Final Plat of Sunset Harbor Condominiums, Lot 1.
A 10 minute break was taken at 8:00 P.M and the Board returned to session at 8:10 P.M.
AMENDMENT TO SECTION 15-3 OF THE SOLID WASTE ORDINANCE.
The Town Board at the regular meeting on April 10, 2001 instructed the Town Attorney to draw up an Amendment to Section 15-3 of the Solid Waste Ordinance to require containment to include 30 gallon per bedroom.
The Mayor read the Ordinance Amendment that follows and made the corrections where it says “Administrator” should be “Manager:
2001 - 5 - 8 - 01
An Ordinance Amending Section 15-3 of
the Emerald Isle Solid Waste Management Ordinances
Codified in Chapter 15 of the Emerald Isle Town Code
WHEREAS, the Town has recognized the need for better control of solid waste disposal, particularly on sites of residential rental properties; and
WHEREAS, the report of a specially appointed solid waste committee made recommendations to the Town Board of Commissioners for more specific storage requirements on such properties; and
WHEREAS, the Town Board of Commissioners has considered the recommendations of the solid waste committee and has heard public comment on such matters during its regularly scheduled meeting held on this date;
NOW, THEREFORE, BE IT ORDAINED by the Board of Town Commissioners of the
Town of Emerald Isle that Chapter 15, Section 15-3 of the Code of Ordinances,
Town of Emerald Isle, North Carolina, is hereby amended to read as follows:
(a) Every business location and owner or occupant of a house or residence in the residential area where garbage or refuse exists shall provide a sufficient number of containers for each business location and residential unit in which shall be deposited all garbage or refuse existing at such buildings or premises. Each business location shall have a minimum of two (2) plastic containers, and each container shall be made of heavy duty plastic with at least a thirty(30) gallon capacity. Each house or residential unit shall have a minimum of 30 gallons of solid waste containment capacity per bedroom and each container shall be made of heavy duty plastic with at least a thirty (30) gallon capacity. For purposes of this ordinance, a bedroom will be any room which provides a facility for sleeping, including, but not limited to, day beds (or any other convertibles), couches, sofas (sleeper or otherwise), sectionals, hide-a-beds (including drop- downs), cots, and cribs. All containers shall have drain holes and shall be provided with handles and with a tight-fitting cover made of the same material as the container. All
containers shall be placed in a rack or some other suitable receptacle designed to prevent dogs or other animals from overturning the trash containers.
(b) Every house, residence or business shall place all plastic containers used for refuse containment in racks designed to hold the refuse until collected from each house, residence or business building. If the town administrator determines from garbage and refuse practices existing at the location over a reasonable length of time that more than the minimum requirement for container capacity is necessary in order to handle accumulation of garbage, refuse and trash at the location, then the town administrator shall notify the owner and/or occupant by letter as to the minimum number of containers and/or containment capacitynecessary at the site in order to handle the amount of garbage and refuse being collected, and failure of the owner or occupant to acquire and place at the site the number of containers and/or capacity specified by the town administrator shall constitute a violation of this chapter and will authorize the town to cease garbage collection practices at the site until the deficiencies are corrected. Provided however, as to any new houses orresidential units completed and being granted a final inspection by the town building inspection department from and after the November 1, 1993, such houses or residential units shall provide a sufficient number of ninety-gallon roll-out cart containers which shall meet the minimum containment requirements of this Chapter. All such roll-out cart containers shall meet the specification of the town with regard to color, size, material, construction and style for refuse collection.
(c) (Same as currently written.
(d) If the minimum requirement for containers and/or container capacity is not sufficient to accommodate the amount of garbage or refuse at the site, then all excess garbage or refuse shall be placed in a heavy dutyplastic bag, one point seven (1.7) mil minimum weight, tied, secured and placed on or in the garbage rack at the site. If the owner or occupant of the house, residence or business uses any containers for garbage and refuse collection other than the approved containers and/or the heavy duty plastic bags specified herein, then the town is authorized to confiscate the unauthorized containers or not remove the garbage and refuse placed in the unauthorized containers. Other than the containers or heavy duty plastic bags (minimum of one point seven (1.7) mil) approved by this chapter, any other type of container to be used must be first approved by the town administrator prior to such use.
I. (Same as currently written.)
II. (Same as currently written.)
This ordinance shall become effective on May 9, 2001. If any section, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance.
DULY ADOPTED THIS 8th day of May, 2001, by a vote of
_______________________________________ voting for, Commissioner(s)
___________________________________________________ voting against
and Commissioner(s) ____________________________ absent.
Town of Emerald Isle
ATTEST: By: ______________________________
Mayor Barbara M. Harris
Carolyn K. Custy, Town Clerk
Town Attorney Taylor commented that the only thing changed in Item (d) was the first line “If the minimum requirement for containers and/or container capacity - - - “ It’s moving toward capacity as well as the number of containers.
Commissioner Farmer commented she thinks the public needs to understand that most of this Ordinance is the current one. The changes recommended by the Solid Waste are capacity per bedroom. The thing about stopping collection if you don’t do what you are told to do is already on the books.
Mayor Harris asked for Public Comments on the Solid Waste Amendment issue.
Mr. Dick Eckhardt who resides at 4304 Ocean Drive commented on the ordinance changes beginning with paragraph (b) on page 3, second or third line “containment in racks designed to hold the refuse” does not mention the recycle as well as garbage
and wonders if somehow that could be clarified because the same problem is caused if they are left at curbside? He is not sure where it would be added but if there is someway it could be clarified so it can be said if anything is left at the curbside, whether it be garbage or recycle, be contained in a rack.
Commissioner Murphy suggested inserting recycling materials between the words refuse, and trash in the 9th line down. It would then read refuse, recyclables and trash.
Commissioner Farmer said she does not recall if it was the Board’s intent to make everyone use racks. Some people do roll out and roll back in. She does not think it was the Boards intent. Attorney Taylorsaid it is in the ordinance now. All he did was to put container volume versus bedrooms. The rest of this ordinance is exactly the same.
Commissioner McElraft said she thinks this ordinance amendment needs to be reworked.
Commissioner Farmer said there are a lot of folks who do roll out and back in. The other thing, at the time of the break, sounded like they were to throw tomatoes at her about the container capacity. The container capacity that the Board came up with was really addressing the need of Ocean Drive rental houses. There are people who are residents here who do not have that kind of capacity and do not need it.
Mayor Harris said this is where it was started from day 1. This is what the Board required and asked the Committee to do and it is before the Board now. She asked if they wanted to accept it with the mentioned changes or not. Commissioner Trainham felt there are some more changes that need to be made. Commissioner McElraft agreed.
Commissioner Farmer said it has been a difficult job to try to come up with something that will handle the trash problems on Ocean Drive in the summer because so many tourists pack into houses and at the same time residents not be required to have all the extra containment.
Mr. Eckhardt went on to line 6 of paragraph (b), the term “over a reasonable length of time” which again would give me no importance. He suggested a time guideline of over a two week period, some guideline not only for the citizens but also for the Town Administration who have to back this up.
Mr. Eckhardt continues that toward the bottom of the page 3, 4th line from the bottom where it states “authorize the town to cease garbage collection practices at the site
until the deficiencies are corrected.” That is in the current ordinance and Mr. Eckhardt believes it does not work. In the committee recommendation, it was recommended that rather than ceasing service which is not only tough on Waste Industries but is also tough on citizens because of a bigger mess, that a citation be given rather than ceasing service.
On Page 4, paragraph (d) – the committee struggled with this one. It says, starting at the end of line 3, “all excess garbage or refuse shall be placed in a heavy duty plastic bag, one point seven (1.7) mil minimum weight” – this has not worked in the past and Mr. Eckhardt is not sure it will work now because he can see someone using it as some type of loop hole. He suggested is that if there is access, if it is a rental property, call the rental manager and the excess can be taken to a transfer station. If it is a resident or homeowner or whatever, they can also take that excess to a transfer station rather than having to increase containers.
Mr. Eckhardt went on to say that trying to set some guideline as far as the capacity using bedrooms is a difficult one. It would be much simpler to go with the number of people that a residence sleeps. That way it is felt we could get around someone who has a 5 bedroom house and two people live in it. The designation could be simplified. All the rental managers advertise in their books how many people a unit sleeps. Commissioner Wootten said, “You mean have the town staff do a bed count?” Mr. Eckhardt suggested letting the property managers do this. Property managers are operating as homeowners. If the owner does not have private ownership then it is up to the property manager. If they can’t look at their brochures and see that it sleeps so many people, then so many gallons of container will be needed, there is something wrong.
Commissioner Murphy agreed. Commissioner Farmer said that would also get around the problem with what she was hearing during the break, that I have a 3 bedroom house and only two living there and we don’t need ever how many gallons it would take.
Gus Farmakidis who resides at 322 Lobolly referred to page 3, very last sentence, commented that contained within this paragraph are two or three different meanings. This one says “Provided however, as to any new houses or residential units completed and being granted a final inspection by the town building inspection department from and after the November 1, 1993” – his house was built April 1984. He asked if he had to get a 90-gallon container? One way to look at it is that if the Town Manager finds him wrong, then if his house was built after 1993 he has to get a new container, but if the town wants him to get a big one, 90-gallon, then make a separate paragraph.
Commissioner McElraft commented this should be deleted and make it for everybody.
Mayor Harris said the Board would take his suggestion into consideration. Mr. Farmakidis was told at this time he would have to get one. Mr. Farmakidis said, “We are to start getting these 90-gallons and you are going to give the library $50,000 and develop all of this stormwater, you should reimburse some of the cost of these 90-gallon cans. If you really want us to buy, do it for everyone. Lets just don’t pick out.”
Commissioner McElraft commented she totally agrees with Mr. Farmakidis. She thinks 1993 verbage in there and everyone should be able to use the 90-gallon or contain plenty of the 30-gallon.
Mr. Hal O’Neal 109 Jackson Avenue thinks he might be confused. He has a big green garbage can, 90-gallon. He tore his rack down because he bought the green container. He does not want to go back to building more rack. Those things are too big to put into a container. When it is emptied he rolls it back. Why would you need a rack?
Mayor Harris replied the idea of a 3-sided rack came up because when the garbage people come and empty them, they blow around.
Mr. O’Neal said he now has to go out and buy lumber to build another rack because he torn the other one down.
Commissioner McElraft said that was never the Boards intention. When they talked about racks for the 90-gallon, it was more for the rental units. Commissioner Farmer said the language in this amendment is all wrong. Commissioner McElraft agreed and thinks it should be reworked.
Mr. Charles Vinson asked if there was a difference between rentals and residents? He said there should be. Commissioner Farmer said she agrees and she wishes there was some way it could be done that way but she does not see Carol Angus or whoever going from house to house saying, do you rent here or are you a resident. You cannot enforce that. The problem is Ocean Drive. It is not so much a problem on the interior lots.
Mayor Harris asked that this item be tabled since there are so many comments on it.
Mark Brennesholz, resident of 9322 Ocean Drive, asked about the number of bedrooms. He assumes that everyone’s living room is a bedroom also? The answer given was that if you have a couch, yes. Another question was on excess garbage and now he understands that. Sometimes if you are discarding a chair, scrap wood, or something like that, it does not dimensionally fit in the garbage can, it will not fit into a plastic bag either, is there a way that you can say Waste Management does not pick that up at all and you have to hand carry that stuff up to the dump. There needs to be some provisions made for this. Commissioner Murphy asked Mr. Conrad, Public Works Director, if there was a number that could be called to get this stuff picked up? Mr. Conrad answered “Yes”.
Mr. Brennesholz said there is for the third Wednesday every month pick-up but that is yard debris.
Commissioner McElraft said if (b) is eliminated as suggested, that would take care of the plastic bag thing. The Board wants them to have enough containers that they don’t have to use plastic bags outside. She questioned if rental units could be considered business? Her rationale was if they could be considered a business, then the Board can require businesses to have all these cans and leave the residents alone. Attorney Taylor said you are saying a rental unit has to have them. A business is only required to have 60 gallons of containment. Commissioner McElraft said “But if we could classify these houses as businesses and require them to have one 30 gallon trash can per bedroom, but we would not have to require the residents to have them. It would be only on rental units.
Mrs. Ceil Saunders added that the rental agencies have check sheets to check off things like dishes, linens, etc., so why could they not just add trash containers on it? Commissioner McElraft said they would work with the Board but it is just getting it in the ordinance where everyone else is not punished.
Mr. Brennesholz said currently his rental unit has two 30-gallon containers for a small 4 bedroom house. This is now saying that needs to go to four 30-gallon containers for a small 4 bedroom house and then that is going to improve the appearance of Ocean Drive or go to two roll-a-ways. Going from two 30-gallon to one 90-gallons is a 50% increase and it is twice per week pick-up during the rental season. It seems like we are going way overboard. He was here all last summer. The house next door, once in a while, had an extra bag and that was it.
Commissioner Wootten interjected these definitions came from the committee that reviewed this. Mr. Brennesholz said he understands that and he is asking them to re-review them. His observation as a resident of Ocean Drive is that the problems with doubling or tripling the capacity are probably going to be worse.
Commissioner McElraft noted that she went out and for two days painted her trash containers white and somebody said they came and looked at mine to make sure that they were pretty and she found out they were not really as pretty as she thought they were. She then went out and bought all new trash cans. This project has cost her a whole lot of money and a lot of paint in her hair. If she has to go back to 90-gallon containers, she will really be upset.
Mayor Harris clarified the Board has received 4 or 5 good suggestions. The Board would meet with Mr. Eckhardt if this is tabled. She asked for a motion at this point.
Commissioner Trainham moved, Commissioner Farmer seconded the motion
Commissioner Wooten asked who was going to fix the problem with the words? The committee should have done that in his mind right from the beginning. Mr. Eckhardt replied it was not a part of their charge. Commissioner Wootten said, “Then if not you, the Town Attorney. He asked again, who is going to work the problems?
Mayor Harris said that is the reason she said the Board would meet with Mr. Eckhardt again. She asked Mr. Wootten if he would like to meet with Mr. Eckhardt? She then asked the new Town Manager if he would like to meet with him? There was a lot of laughter after this question. A comment was made the new Town Manager does not start until July 1.
Commissioner McElraft said she would meet with him and try to get this straightened out and then get it to the Town Attorney and let him write it legally.
Mayor Harris called for a vote. The Board voted unanimously to send this back to the committee for further study.
DOG WARDEN CONTRACT
During a Budget Workshop it was suggested that the fine for impoundment of d0gs be changed from $20.00 to $50.00 for the first day. It was also suggested that the daily fee be changed from $6.00 to $10.00 for each additional day and to make a change in the period time of the contract from 1 year to 6 months. These changes have been made and the Contract is presented to the Town Board for approval or denial.
Attorney Taylor asked Mrs. Custy, Town Clerk, if the changes he suggested to the contract had been made and she verified they had. Commissioner Farmer asked if Hadnot Creek Kennels had agreed to the changes. Mayor Harris said we are going to propose it to them.
Ms. Laura Pittman of 118 Stuart Avenue said the recommendations about the Leash Law, she has a dog, she believes a dog should be on a leash on the beach and she believes in the Pooper Scooper Law. She questioned the recommendation about walking dogs on the beach between the hours of 9:00 A.M. to 6:00 P.M. during the summer months and also about the two dogs per household. She does not understand the logic on those two recommendations.
Mayor Harris answered one of the questions saying the two dogs has always been on the ordinance. That was not changed.
Commissioner Farmer said as for not being able to walk the dogs on the beach only at certain times during the summer, she thinks the Board has decided not to go that route, that in fact they were going to try educating.
Ms. Pittman asked, “If they are on a leash, what is the purpose of not being to take the dogs on the beach?” Mayor Harris said that the animal report would probably be on for next month to go through.
Ms. Pittman asked if there was anyone with dogs on the committee? Mayor Harris told her that there were 3 with dogs, 3 without dogs and a dog trainer. Those meetings are open to the public.
Ms. Pittman was also informed that the meetings are posted on the Bulletin Board in the entrance area of Town Hall.
Mr. Charles Vinson asked why is it against dogs and not cats? Why can you own 100 cats and only 2 dogs? Mayor Harris said, “You cannot own a cat by the State of North Carolina Law. This has been talked about, I have gotten calls complaining about the cats. The Police Department gets all the complaints about the dogs. We are not picking on dogs but there is nothing we can do about cats.
The fees were also asked about and Mayor Harris said this was coming up in June.
Commissioner Murphy said, “to keep in mind that this is an ordinance that has been in place for years and years by our predecessors. I don’t have any dogs but I have more than 2 cats and they don’t belong to me according to North Carolina. As your Commissioner I do not feel like it is fair for me to have 3 cats and you to be limited to two dogs.”
The question was asked as to how this would be challenged if they did have more than 2 dogs? If you come to someone’s house, they would not be happy. Commissioner Murphy said we are talking about the same thing, an ordinance that is not enforceable. These recommendations were put together by a very good committee and we take their recommendations very seriously. We realize that we have to live here. There are some parts of that which will definitely be adopted and be strictly enforced.
Mayor Harris encouraged the public to prepare themselves for June. There are copies of the report at the front desk for review.
Mr. Charles Vinson asked if that meant that cats who go out at night are feral? Commissioner Farmer said there are either feral or Commissioner McElraft!
Commissioner McElraft replied that hers come in at night, watch TV until 10 and then go to bed.
Mrs. Brownie Trainham who resides on Archer’s Creek Drive said she has two indoor cats that never go outside and she is feeding 7 feral cats and is in the process of neutering and spading them. She has caught 3 of them so far. There is a difference between cats. They use litter and they also bury their waste. There is a big difference in walking down the street and seeing dog waste that has not been removed.
Mr. Dick Eckhardt, 4304 Ocean Drive, when the committee report was made, some comment was made about the horses. Both he and his wife have been bicycling about the island. The problem was reported and it was taken care of immediately. It does work well.
Mrs. McCabe, 321 Cape Fear Loop said the other day her neighbor found a dog in the neighborhood that did not have a tag on. This dog is not really causing a problem but it is missing from home and has not been able to find it for whatever reason. She asked if this was a complaint? She said that it is not chasing after children nor causing any problems. She is concerned that the number of complaints are not a true number.
Commissioner Murphy moved, Commissioner McElraft seconded and the Board voted unanimously to accept the Contract as Written.
Attorney Taylor reminded the Board that since some of the terms of the contract have been changed, they have essentially made a counter proposal which will now have to be accepted by Hadnot Creek Kennels.
DEBRIS REMOVAL CONTRACT
A Debris Removal Contract is being presented for the Board’s consideration before the storm season is upon us. It is requested by Ms. Overman, Interim Manager, that she be allowed to go out for bids for the debris removal hurricane season arrives. In the event one would strike this area getting bids now would eliminate waiting to the last minute to secure bids from contractors.
Commissioner Murphy asked Mrs. Overman if the debris removal would be done by the yard or by the ton? Mrs. Overman replied it would be done by the cubic yard. Commissioner Murphy asked if this was the way it has been handled in the past? The answer was yes from Mrs. Overman. Mrs. Overman said the bids would be good until June 2, 2002.
Commissioner Trainham moved, Commissioner Farmer seconded and the Board voted unanimously to authorize Mrs. Overman, Interim Town Manager, to proceed with obtaining bids for debris removal for the storm season 2001 until June 2002.
Mrs. Dojy Marks, 134 Sandcastle Drive, addressed the Board on the issue of Reed Drive property since the Planning Board, for the last two meetings, has not allowed public comment. She wanted to make everyone aware of the fact that this is a one-way road. It should have a No Outlet sign or something to that effect. There is no other entrance or egress from the western end of Emerald Isle. She did a study and there are 346 condominiums, 32 townhouse units, 1450 lots on Coast Guard Road, with a potential for 1800 families living on a two-lane road and that is the only access to those properties and from those properties. If more congestion is added at the Reed Drive/Coast Guard Road intersection she just doesn’t see how this property can be addressed until the traffic concern and the safety and health of the people who live on Coast Guard Road is addressed. She has read the D.O.T. study.
Mr. Charles Stuber, 1106 Timber Trail said he has an unusual request concerning the tax rate. With an increase in the reevaluation of approximately 25%, he feels there will be a temptation to reduce the tax rate. Although he knows it sounds strange, he does not want his taxes reduced. With all the problems with beach nourishment and storm water, etc., he feels the town would be prudent in building up some sort of storm chest and building up a surplus and leave the tax rate as it is unless the budget goes up 25%. He suggested leaving the tax rate where it is to build up money for some of these problems. He is on the beach nourishment committee. A survey is going out soon to residents and if the task is done that has been suggested, it will take some money.
Commissioner Farmer said it is not often the Board has someone coming before them asking not to lower the tax rate.
Mr. Dick Eckhardt, 4304 Ocean Drive, said the term “lowering the taxes” is somewhat a misnomer and he thinks everyone knows that. He does not understand the term “lowering taxes”. The rate may be lowered but the taxes are not being lowered. He asked that the Board consider the “things that the taxes are raised for should be something we believe in.” With the things facing us he does not feel we can cover everything. It is not lowering the taxes, the taxes remain the same.
Mr. Charles Vinson, 7209 Ocean Drive, said “he has been informed that Mayor Pro-Tem Farmer attended the Coastal Resources Commission yesterday and today, on beach nourishment. Mayor Pro-Tem Farmer was introduced either by list or by word as Mayor Pro-Tem of Emerald Isle and therefore she may not have intended it, but being introduced or being listed as Mayor Pro-Tem gives the impression that she represents the board and represents the boards feelings, attitudes and ideas about things. The main thing that was discussed there was beach renourishment and I personally feel that the single most important thing that is facing our community is the protection of our economy and our tax base. If we don’t protect the beach, we lose it. I think at this time, I would like to say that perhaps some of the attendees might have felt or gotten the impression that all of us down here were not as enthusiastic about beach renourishment as we might have been and he would like to ask each member of the board, in a nutshell, in a word, to give their position and their feeling toward the dire need to attend to our beach problems.”
Mayor Harris replied, “The board, as a whole, except for Commissioner Trainham has sponsored and gone out publicly for beach renourishment. We all have. We all believe in it very strongly.”
Mayor Harris asked Commissioner Farmer if she spoke for the Board? Commissioner Farmer replied, “No, I did not. I introduced myself as Emily Farmer, Commissioner of the Town of Emerald Isle which is what I am. They did have me on the program as Mayor Pro-Tem.” Mayor Harris said “Therefore she did not represent the majority of this board.” Mr. Vinson said, “The impression.” Commissioner Farmer said she would like to say “that at no time did she indicate that she is opposed to beach renourishment at all. I am not opposed to beach renourishment. However, I think there are concerns in addition to the tax payers concerns which we need to pay attention to and certainly those concerns are environmental.” Mayor Harris said “We do support it and I don’t want anyone in town to think this board does not. We have worked very hard on it. Spread the word around that we do.”
COMMENTS FROM DEPARTMENT HEADS
Alesia Sanderson from Parks and Recreation has submitted the preliminary application for CAMA funding for reconstruction of the Wyndtree walkway and for Phase III of the Western Regional Access. Phase I was acquisition, Phase II is construction of the bathhouse and Phase III grading and rocking of the remainder.
Chief William Walker, Fire Department, reported a trailer fire on Reed Drive. The trailer was made back in the 1960’s so it went up rapidly. It didn’t take but 4 minutes from the fire department to respond after receiving the dispatcher’s call.
Chief Walker also commented that hurricane season is only 4 weeks away. He and Emergency Management of Carteret County have agreed that we are not going to have any storms this year.
Police Chief Mark Wilson reported that a lot more crimes are being seen this time of year. As a matter of fact, a call was received this afternoon to go to the 3600 block. When police arrived, there were 3 or 4 black males and white males that broke into a house. The police confiscated two cars, marijuana was in the house already packaged to be sold. The drug officers from Havelock Police Department and they found some Cocaine. Also found was a 410 sawed-off shotgun, plus another shotgun. He feels that the reason no police were hurt in this afternoon’s event was because the suspects were surprised.
Mayor Harris reminded everyone to be on the watch in their community. Some meetings with Community Watch will be held.
Planning Board Chairman Mrs. Ceil Saunders – No Comment.
Mr. Conrad, Public Works Director – No Comment.
Inspections Department Carol Angus – Inspections took in $18,843.30. She is working on a new building inspections report on the computer and since her right arm is not here to tell her exactly how to read it she is going to have to study it.
TOWN CLERK - Welcomed Mr. Rush and “look forward to working with him and want him to come on and get settled in.”
Commissioner McElraft said even though the committee is working on beach nourishment right now they have not forgotten the Point. The situation there is different from beach nourishment and she understands that maybe some hydrology work is being done out there by Moffatt and Nichol by Swansboro and people from Hammocks Beach. She said “We are going to try to set up something with the Corps of Engineers, the people at the Point, the people in Swansboro, the commercial fishermen who cannot get through there and have to go all the way to Beaufort to get out, to try to solve this problem with several communities rather than just Emerald Isle. We have to relocate that channel.
There is no way that the Band-Aid we wanted to do is going to work. I want the people at the Point that we have not forgotten you and we know how serious the situation is there.”
Commissioner Murphy welcomed Mr. Rush and said he has a good group of people to work with and he thinks Mr. Rush will enjoy it. Commissioner Murphy commented he has also spoken with Emergency Management and like Chief Walker said, we are three weeks away from hurricane season. Even though we have been assured by Chief Walker we are not going to have any hurricanes this year, the threat is still there.
Commissioner Murphy said he has talked with some of the employees and at this time there is a Hurricane Committee in place. The people he has talked to would rather those that are together and involved together have expressed their concerns that they would like for those people to be the ones that deal with the public before the hurricane arrives, while it is here and when it leaves, rather than a citizens committee. Commissioner Murphy asked Chief Walker “ Billy if you did not have a citizens committee, could you still do your job effectively or could you do your job better?” Fire Chief Walker said, “We have made it through the last six without them so I think we can get along.”
Commissioner Murphy moved to disband the Emerald Isle Hurricane Committee and Commissioner McElraft seconded the motion.
Commissioner McElraft said if Chief Walker doesn’t think he needs it and he would prefer the town people be involved, it is fine with her.
Chief Walker said there is a policy in place and as it is written now it would be up to Mr. Rush and Chief Walker to make the decisions.
Commissioner Wootten said he didn’t think it still existed. His intention was that it was for that season and we got through that. As far as he is concerned it does not exist now.
Commissioner Farmer commented, “This is called an ambush but I will comment anyway. The Hurricane Advisory Committee was formed last Spring at the request of Emerald Isle Realty and a couple of other property managers who felt that they were not getting the information that they needed from Town Hall and they also felt that there was no system set up for them to notify Town Hall of such critical things as how many tourists were here at a time. They felt there was a great need for this and the Board agreed to appoint a committee. Happily we really didn’t need them last summer. We don’t know if we are going to need them again or not. We don’t know whether the problems the property managers felt they had have been fixed. I think this is too bad.”
Commissioner McElraft said she thinks what the committee did was admirably, they worked well and she thinks they came up to some completions there needs to be communication but when the Chief of our Fire Department and some other employees of this town tell us it is time to let them do their jobs now, that is fine with her.
Commissioner Farmer replied “This was not an issue of not doing their jobs.”
Mayor Harris called for a vote.
The Board voted, with a vote of 3 in favor of (Commissioner Wootten, Murphy and McElraft) and 2 opposed (Commissioner Farmer and Trainham) to disband the Emerald Isle Hurricane Committee.
TOWN ATTORNEY - Commented that at the last meeting there was a request from the Board, at least most of the Board, that he look into. Having investigated the issue of whether or not the town could exercise any jurisdiction over wetlands in a more restrictive sense than the federal or state government has. The answer is, “Yes, I think so.
You would be one of the first in the state to have done so. Dare County has made summary rules and have backed away from some of their stronger positions so there is no model ordinance for us to use. The ordinance would have to be drafted in such a manner that recognizes federal jurisdiction as being supreme so if they were to give some major permits to someone the town could not take that away. But anything the federal or state government doesn’t do or act would allow you some regulation capability here within the town. It is going to be a relatively sophisticated ordinance and probably if you are going to draft one, you should get some professional assistance or go ahead and put me on the payroll or contract basis. It is going to take some time to put that one together properly. Also in that vein, because I ended calling around to several people to discuss their opinions on it, Mr. Mickey Suggs with the federal government Corps of Engineers suggested he has got a road show. If you would like an education about the federal wetlands jurisdiction and the Division of Water Quality wants to do a pony show with them, they would be enjoy the opportunity to do so. I said I would bring it up and leave it at your discretion.”
Commissioner Wootten said he thinks that is great!
Commissioner Farmer said New Hanover County in its comprehensive plan has a wetlands ordinance now.
Attorney Taylor said it must be new enough the Institute of Government doesn’t know about it.
Commissioner Farmer said “Could be and what most of these ordinances do is they don’t say you can’t fill wetlands, they say if you fill, I wish I could remember three words, one is first of all you try to avoid, second of all you minimize the filling you have to do and third you mitigate. So if you fill in one spot you create a new one two times the capacity of the old one or you extend the old one.”
Attorney Taylor said his suggestion is for the presentation where they would give you an idea of how they do it. One of the mechanisms is to educate the Corps of the mechanisms by which you would want to create or draft your own ordinances to follow is apparently what you are saying is the same sort of mythology they use for permitting.
Commissioner McElraft said the only problem with that is the United States Supreme Court just ruled against the Corps of Engineers that they could not prevent people from filling isolated wetlands. She feels we are going to be doing a stormwater public hearing and maybe that’s when the Board should go into all of this. She thinks the town needs to be careful in making an ordinance.
Attorney Taylor said there is a Supreme Court Decision that shot that down. A lot of it was based on jurisdictional issues, and what the Corps did and did not have authority for. Whether or not a municipality could do what the federal government cannot creates a different issue. The Supreme Court has not acted on it. If the town wants to jump on this thing, he would be more than happy to end up in Supreme Court with it.
Commissioner Farmer commented that the Supreme Court ruled that the Corps of Engineers was exceeding their authority by having jurisdiction over isolated wetlands. That led to immediate ditching in New Hanover County of thousands of acres of wetlands. The state stepped in. An e-mail article she sent to the Board was about the North Carolina Environmental Management Commission ruling to take over jurisdiction of isolated wetlands. The jurisdiction of the Corps dropped. She talked to someone with the Environmental Management Commission who said they are meeting tomorrow. Some of the work they will be doing is setting up guidelines for Division of Water Quality to come up with a permitting system for these isolated wetlands. Until that ruling goes through, as things stand now, you can’t fill until isolated wetlands. When the rule making is finished, it will probably apply to the wetlands that are one-third to one-half acre or more.
Commissioner Farmer suggested inviting the Corps and the Division of Water Quality to put on a pony show for the Board maybe at the next meeting.
Mayor Harris said the town would certainly invite them to the June meeting if this is what the Board would like to do. All agreed to do this.
Commissioner Farmer was going to tell the Board about the meeting Mr.Vinson had spoken about earlier which was a beach renourishment workshop of which the Coastal Resource Commission, Duke Marine Lab, North Carolina Coastal Federation, North Carolina Environmental Defense, North Carolina Sea Grant, Marine Fisheries Commission and UNC Chapel Hill Institute of Marine Science were sponsors. It was a two day workshop. The concern that the people who brought this workshop together had was that there were conversations taking place about beach renourishment over here that were mostly economic questions, there were conversations taking place over there that were mostly environmental and the question was how to get all of these people in one room and try to come up with some direction. This will end up being a white paper that will be published. There were four groups. The first was a round table on public policy of which she took part in. The second was a round table on physical design and durability of beach renourishment projects. The third was a round table on biological impacts. The fourth was a round table on economic consequences. This was a wonderful opportunity to be in a room full of public policy people. The Town should get that report when it comes out.
Commissioner Farmer made the following statement: “As a board we have made ordinance enforcement a priority. And we recognized early on that many of the current ordinances on the books are either outdated or don't address the growing pains we're experiencing. Consequently we have been extremely busy this past 1-1/2 years redoing a number of the more pressing ones.
“The group that has born the brunt of all this activity has been the planning board. These volunteers have had more work and pressure heaped on them than should be asked of anyone. The workload has led to the resignation of three of the members. And we as a board discussed several times the need to get them some relief.
“We had an opportunity to get that relief when Benchmark offered to work up a planning grant proposal at no cost or obligation to the town. We happily took them up on their offer. Benchmark took the time to work on the proposal and then submitted it to Division of Coastal Management for CAMA funding.
“I am extremely disappointed that the board has now reversed its decision by our usual 3-to-2 split and instead of seeking funds for the planning help we so desperately need, has decided instead to go for funding to reorganize our code book. We had an opportunity to lighten the planning board's load and the majority decided not to take it. How too bad. I would like to publicly thank Michael Harvey at Benchmark for his efforts on behalf of Emerald Isle.”
Commissioner Trainham said, “Since Mr. Vinson has asked the question he did, it would be belittle me not to make some response regarding the beach nourishment program. I think most everyone here knows the position that I have taken over the past year and one-half. I am still looking for a better answer than placing sand paid for by tax payers on the beach. I am in the minority but I don’t mind being in the minority. I am concerned about the problems down at the Point. I would like to see that taken care of. I am also concerned about the fact that the discussions about what is happening to the sand on the beach has got to be resolved. The resolving of this is going to have to be in the hands of the Corps of Engineers and others who must take pains to make sure that we are not wasting tax payers money. The room tax is probably a very good band aid to use and I am certainly in favor of this because I don’t think this is taking money from the tax payers but I am still concerned that putting sand on the beach is going to be a losing matter. I think I need to make that statement clarifying I am standing alone in this but I don’t mind standing alone. I feel that I do represent a certain group of our constituency for the position I am taking.”
Commissioner Wootten referenced to Commissioner Farmer’s comments regarding Benchmark. He said “She would have you believe that members of the Board don’t care about planning, don’t care about the workload on the planning board by not supporting this allocation or request for funds from a grant for planning assistance. It is not so. The judgment call, at least on my part, was that we stood a much better chance of getting funding under the headlines of rewriting the code and making it much easier to deal with. We would have a better chance of getting the money, therefore get on that horse and get that money. Planning is a problem. Planning is going to take some funding and this Board I think is committed to deal with planning consultants in order to help the planning. Please don’t tell me that I am not interested in the planning board or planning because of that decision.
INTERIM MANAGER – No Comments
Commissioner McElraft moved, Commissioner Murphy seconded and the Board voted unanimously to go into closed session to discuss litigation at 9:00 P.M.
CLOSED SESSION TO DISCUSS LITIGATION.
Commissioner Farmer moved, Commissioner Murphy seconded and the board voted unanimously to return to open session at 9:15 P.M.
Commissioner McElraft moved, Commissioner Murphy seconded and the board voted unanimously to adjourn.
The meeting was adjourned at 9:20 P.M.