DRAFT TOWN OF NAGS HEAD€¦ · Web viewTOWN OF NAGS HEAD. BOARD OF COMMISSIONERS. REGULAR...

DRAFTTOWN OF NAGS HEAD

BOARD OF COMMISSIONERSREGULAR SESSION

March 4, 2009

The Town of Nags Head Board of Commissioners met in the Board Room of the Nags Head Municipal Complex located at 5401 South Croatan Highway at 9:00 a.m. on Wednesday, March 4, 2009.

COMRS PRESENT: Mayor Renée Cahoon; Comr. Wayne Gray; Comr. Doug Remaley; and Comr. Bob Oakes

COMRS ABSENT: Mayor Pro Tem Anna Sadler

OTHERS PRESENT: Town Manager Charlie Cameron; Town Attorney John Leidy; Cliff Ogburn; Wayne Byrum; Tom Gilliam; Butch Osborne; Ralph Barile; Angela Welsh; Kelly Wyatt; Tim Wilson; Bruce Bortz; Roberta Thuman; Debo Cox; George Barnes; Bob Edwards; Eddie Goodrich; Jessica Bowen; Veronica Barrett; Sean Boyle; Jim Geraghty; Sheila Davies; Roc Sansotta; Paula Donaghy; and Town Clerk Carolyn Morris

CALL TO ORDER

Mayor Cahoon called the meeting to order at 9:00 a.m.

Mayor Cahoon thanked Police Division Office Manager Lisa Ward for filling in for IT Director Allen Massey whose mother recently passed away. Mayor Cahoon also mentioned Alan Hurdle, husband of employee Bonita Hurdle, who recently had surgery. A moment of silent meditation was followed by the Pledge of Allegiance.

ADOPTION OF AGENDA

MOTION: Comr. Oakes made a motion to adopt the March 4th agenda with the removal of item #7 (financing of capital items) and item #9 (W. Oak Knoll Drive temporary No Parking). The motion was seconded by Comr. Gray which passed 4 - 0 (Mayor Pro Tem Sadler was not present.).

Draft Nags Head Board Meeting MinutesMarch 4, 2009

AUDIENCE RESPONSE

AUDIENCE RESPONSE - PAULA DONAGHY

Paula Donaghy, representing the League of Women Voters; she presented the Board with the 2009 League of Women Voters Citizens Guides and thanked the Board for its monetary support of the Guide and for the use of the Board Room for candidate forums; Mayor Cahoon thanked Ms. Donaghy and emphasized the good job done by the League of Women Voters.

AUDIENCE RESPONSE - ROC SANSOTTA

Roc Sansotta, South Nags Head property owner; after a recent storm, a Dominion Power representative mentioned to him that Oregon Inlet is taking the sand from Nags Head; the sand keeps building extra islands.

AUDIENCE RESPONSE - SHEILA DAVIES

Sheila Davies, Dare County Project Manager of the Dare County Substance Abuse Program; Ms. Davies reported on New Horizons - A Dare County Initiative; she presented a powerpoint slideshow detailing the program; one of the programs - "Positive Action" is presented to all 11 local schools and focuses on substance abuse prevention; she thanked the Board for the opportunity to provide the presentation.

There was no one else present who wished to speak during Audience Response.

MAYOR CAHOON - RECOGNITION

Mayor Cahoon recognized Planning Board Chair Bob Edwards in the audience.

CONSENT AGENDA

The Consent Agenda consisted of the following agenda items:

Consideration of Budget Adjustment #9 to FY 08/09 Budget Ordinance

Consideration of Tax Adjustment Report

Approval of Minutes

Consideration of tax delinquent report to be advertised

Consideration of request for financing of capital items (Removed from Consent Agenda)

Consideration of modification to Personnel Policy to reward 30 years of service

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Consideration of temporary amendment to Traffic Control Map re: No Parking on W. Oak Knoll Drive March 13 - 15, 2009 (Removed from Consent Agenda)

Consideration of Proclamation proclaiming Multiple Sclerosis Awareness Week

MOTION: Comr. Oakes made a motion to approve the Consent Agenda with the removal of item #7 (financing of capital items) and item #9 (W. Oak Knoll Drive temporary No Parking). The motion was seconded by Comr. Gray which passed 4 - 0 (Mayor Pro Tem Sadler was not present.).

Budget Adjustment #9, as adopted, is attached to and made a part of these minutes as shown in Addendum "A".

The Tax Adjustment Report, as approved, is attached to and made a part of these minutes as shown in Addendum "B".

The Tax Delinquent Report summary sheet, as approved, read in part as follows:

"State Statute requires that the advertisement of tax liens, to include the listing of all to whom property is delinquent - be provided for Board information. The attached listing identifies the 2008 listing and associated ad for Board information at the March 4th Board of Commissioners meeting.

'Tax delinquent ad, as approved, read in part as follows:

'Under and by virtue of the authority vested in me by section 105-369 of the North Carolina General Statutes and pursuant to an order of the Board of Commissioners of the Town of Nags Head, dated February 18, 2009, I am hereby advertising tax liens for the year 2008 upon the real estate and personal property described below. The amount advertised will be increased by interest and costs, and the omission of interest and costs from the amount advertised will not constitute a waiver of the taxing unit’s claim for those items. The real estate that is subject to the lien, the name of the person to whom the property is delinquent for taxes at January 6, 2009 and the amount of the taxes and interest due are set out below. If the taxes remain unpaid after this advertisement is completed, the lien may be foreclosed by the taxing unit and the property sold to satisfy the taxing unit’s claim for taxes."

The modification to the Personnel Policy recognition of employees page, as approved, read in part as follows:

"Amendment to Town’s Personnel Policy, Article IV – Pay Plan, Section 12. Recognition of Employees.

'Section 12. Recognition of Employees The recognition of service awards for employees has six (6) separate categories of service time. Recognition of service awards shall be made on the employee's anniversary date in accordance with the following schedule:

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'3 Years of Service Cross ink pen with the Town Seal

'5 Years of ServiceChoice of a $50 Bond or $25 Gift Certificate to a "Nags Head" Business(Purchase Amount $25)

'10 Years of ServiceChoice of a $75 Bond or $37.50 Gift Certificate to a "Nags Head" Business(Purchase Amount $37.50)

+ one (1) day off with Pay



'20 Years of Service Tie tack or pendant with the Town Seal+ one (1) day off with Pay



'30 Years of ServiceChoice of $500 Bond or $250 Gift Certificate to a “Nags Head” Business(Purchase Amount $250)


'The employee would be required to take the one (1) day off with pay during their anniversary year. The years of service shall be based on the number of full years of regular full-time service completed during the twelve (12) month period prior to the employee's anniversary date of that year. Awards will only be made to those employees in regular employment on their anniversary date. Years of service must be continuous, except for extended leave approved by the Town."

The proclamation proclaiming Multiple Sclerosis Awareness Week, as adopted, read in part as follows:

"WHEREAS, Multiple Sclerosis (MS) is a chronic and disabling disease of the central nervous system in which the progression, severity and specific symptoms cannot be foreseen; AND

'WHEREAS, every hour of every day someone new is diagnosed with MS, a disease that can erode a person's abilities and hopes, halt a career and unravel the fabric of families; AND

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'WHEREAS, the North Carolina Chapters of the National Multiple Sclerosis Society reports that in our state more than 10,000 people are affected by this devastating ,disease and multiple sclerosis generally strikes young adults aged 20 through 40, attacking them in the prime of their lives; AND

'WHEREAS, the North Carolina Chapters of the National Multiple Sclerosis Society have been committed throughout the years to heightening public knowledge and insight about this devastating and disabling disease, and raising more than $8 million to find the cure for MS and develop effective treatments for the disease, as well as provide a wide range of client programs; AND

'WHEREAS, research advances have brought us closer to finding the cure, much remains to be done, and services must continue to be provided to those who live with the disease; AND

'WHEREAS, finding the cause and developing a method of prevention for multiple sclerosis is an important task that all Americans and North Carolinians should support.

'NOW, THEREFORE, on behalf of the Nags Head Board of Commissioners, I do herebyproclaim March 2 - 8, 2009, as "MULTIPLE SCLEROSIS AWARENESS WEEK" in the Town of Nags Head, North Carolina and commend this observance to all our citizens."

MAYOR CAHOON - MAYOR PRO TEM SADLER ABSENT FROM TODAY'S MEETING

Mayor Cahoon noted that Mayor Pro Tem Sadler was out of Town and not present at today's meeting.

PUBLIC HEARINGS

Public Hearing to consider Certificate of Public Convenience and Necessity for Outer Banks Transportation Company - Veronica Barrett, owner

Town Attorney John Leidy introduced the Public Hearing at 9:20 a.m. to consider a request for certificate of public convenience and necessity for Outer Banks Transportation Company.

Police Lt. Tom Gilliam stated that the applicant meets all the requirements as set forth in the Town Code; included in the package is additional information justifying her application.

The memo from Town Clerk Carolyn Morris to the Board read in part as follows:

"On March 12, 2008 the attached application for a Certificate of Public Convenience and Necessity was received in the Town Clerk’s office, the applicable fee was paid, and a copy forwarded to the Police Division for investigation.

'This application is from Outer Banks Transportation Company, Veronica Barrett, owner.

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'The application was verified by the applicant under oath and the applicant has paid the $50.00 application fee.

'Section 46-73 of the Town Code requires the Board of Commissioners, before making any decision with respect to the issuance of a Certificate, cause to be made a full and complete investigation of all facts and may, if it desires, subpoena witnesses and utilize the services of the Public Safety Director, or his designee, or any officer or employee of the Town.

'In determining whether a public convenience and necessity requires the granting of a certificate, Section 46-74 of the Town Code requires the Board of Commissioners to take into consideration the following factors:

'1. Whether or not the public convenience and necessity satisfies the requirement for public safety and availability within the town.

'2. The financial responsibility of the applicant and the likelihood of the proposed service being permanent, responsible, and satisfactory.

'3. The number and conditions of taxicabs to be operated.

'4. The schedule of the proposed rates and fares to be charged.

'5. The experience of the applicant in the taxicab business.

'6. Consideration of GS 160A-304, regulation of taxis.

'7. Such other relative facts as may be deemed necessary and advisable.

'Section 46-76 (a) of the Town Code requires the Board of Commissioners to grant a certificate when the applicant has established to the Board of Commissioners’ satisfaction that the public convenience and necessity would be served, that the requirements of this chapter are complied with, and that the factors considered by the Board, as set out in Section 46-74 favor the issuance of a certificate. Each certificate may contain such terms and conditions as the Board of Commissioners may consider desirable to impose for the public welfare, safety, convenience or necessity.

'Section 46-76 (b) of the Town Code requires the Board of Commissioners to deny a certificate to an applicant who does not establish to the Board's satisfaction that the issuance of a certificate would serve the public convenience and necessity, or when, in the considered opinion of the Board, the applicant would not comply with the provisions of Chapter 46 of the Town Code, or that the requirements in Section 46-74 favor disapproval of the application.

'The application and background information were forwarded to the Police Division for investigation; memo from Lt. Gilliam is attached and reports positive findings."

There being no one present who wished to speak, the Public Hearing was closed at 9:22 a.m.

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Notice of the Public Hearing was published in the Coastland Times on Thursday, February 19, 2009 and on Thursday, February 26, 2009, as required by law.

MOTION: Comr. Gray made a motion to approve the application from Veronica Barrett, owner of Outer Banks Transportation Company for a Certificate of Public Convenience and Necessity as presented with compliance by means of the following seven (7) factors as required by Town Code:

1) The public convenience and necessity satisfies the requirement for public safety and availability within the town.2) The financial responsibility of the applicant and the likelihood of the proposed service being permanent, responsible, and satisfactory.3) The number and conditions of taxicabs to be operated.4) The schedule of the proposed rates and fares to be charged.5) The experience of the applicant in the taxicab business.6) Consideration of GS 160A-304, regulation of taxis.7) Such other relative facts as may be deemed necessary and advisable.

The motion was seconded by Comrs. Oakes and Remaley which passed 4 - 0 (Mayor Pro Tem Sadler was not present.).

Public Hearing to consider zoning ordinance text amendment application submitted by Jockey’s Ridge State Park to Town Code Section 48-441(b)(9), Permitted Uses within the SPD-20 Special Planned Development District. This amendment would increase the maximum allowable height of wind turbine towers within parks from 60 feet to 75 feet

Town Attorney John Leidy opened the Public Hearing at 9:24 a.m. to consider a zoning ordinance text amendment, submitted by Jockey's Ridge State Park, which would increase the maximum allowable height of wind turbine towers within parks from 60 feet to 75 feet.

Planner Angela Welsh summarized her memo which read in part as follows:

"The attached proposed zoning ordinance amendment has been initiated by George Barnes Superintendent of Jockey’s Ridge State Park. The ordinance proposes to allow wind turbines 75’ or less in height in the SPD-20 District. On October 18, 2006, the Board of Commissioners unanimously adopted a text amendment to Town Code Section 48-441 (b), Permitted Uses, SPD-20 District to list wind turbine towers, 60 feet in height, as an accessory use to a principal park use. This text amendment proposes to increase the permitted height from 60’ to 75’.

'Previously, the only type of tower structure permitted in the SPD-20 district was a minor communication tower, which by definition is a tower measuring 70 feet or less in height for radio, television or telephone communications. The wind turbine proposed in 2006 did not fall under the minor communication tower use classification. While it involved a tower structure less than 70 feet in height, the proposed purpose of the tower (generation of electricity) was not for communication purposes.

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'Jockey’s Ridge State Park constitutes the majority land area of property found in the SPD-20 District. The Park has been designated by the State Coastal Resources Commission as a unique geologic formation and area of environmental concern. The Park has additionally been designated as a National Natural Landmark by the United States Department of the Interior. Listed first among the stated intent of the SPD-20 District is to “Preserve the natural features and visual attractiveness of the area.”

'The Town Land and Water Use Plan 2000, under Chapter 16 Visual and Aesthetic Resources, recognizes the importance of public open spaces and recognizes Jockey’s ridge as one of these valued resources and states that “A primary reason people are attracted to Nags Head is the aesthetic and visual quality of the environment, including its beaches and open spaces, and the relatively low density of its development.”

'It is the finding of staff that the proposed ordinance if adopted would be in accordance with the provisions of the land and water use plan in preserving the integrity of open spaces as important visual resources. Wind turbines are already a permitted use in this SPD-20 District. The maximum height of the proposed wind turbine tower would be 5 feet more than the maximum height of the already permitted minor communication tower.

'Staff RecommendationStaff recommends adoption of the proposed amendment to allow wind turbine towers, 75 feet in height, as an accessory use to parks.

'Planning Board RecommendationThe Planning Board met on February 17, 2009 and recommended adoption of the proposed amendment to allow wind turbine towers, 75 feet in height, as an accessory use to parks."


Former Jockey's Ridge State Park superintendent George Barnes, applicant, spoke of the wind turbine pole and blades being a total height of 71' so 75' was requested to be safe; the turbine will also be an educational tool for the public and since wind formed Jockey's Ridge, it is very fitting to install a wind turbine. Mayor Cahoon commended former superintendent George Barnes on his diligence and perseverance on this issue and many issues over the years; she thanked him for all his dedicated years of service to the State, to Nags Head, and to Jockey's Ridge.

There being no one else present who wished to speak, the Public Hearing was closed at 9:31 a.m.

MOTION: Comr. Gray made a motion to adopt the ordinance increasing the height of wind turbines in State parks as presented. The motion was seconded by Comr. Remaley which passed 4 - 0 (Mayor Pro Tem Sadler was not present.).

The ordinance concerning an increase in height for wind turbines in parks, as adopted, is attached to and made a part of these minutes as shown in Addendum "C".

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Public Hearing to consider preliminary minor subdivision plat application submitted by Quible & Associates on behalf of Links Group, LLC to create two lot subdivision and coinciding Site Plan Amendment Application to the approved South Beach Plaza office/retail group development project. The property is located at 2424 S. Croatan Highway, Nags Head

John Leidy opened the Public Hearing at 9:32 a.m. to consider a preliminary minor subdivision plat application to create a two-lot subdivision and coinciding site plan amendment application to the approved South Beach Plaza office/retail group development project. He pointed out that the Board would be sitting as a quasi-judicial body and each person who wishes to speak will need to be sworn in by the Town Clerk.

Planning Director Tim Wilson, Zoning Administrator Kelly Wyatt, Applicant Jim Geraghty and Quible and Associates Sean Boyle were sworn in by Town Clerk Carolyn Morris.

Zoning Administrator Kelly Wyatt summarized her staff report which read in part as follows:

"Applicant: Quible & Associates, P.C.

'Property Owner: Links Group, LLC

'Application Request: Final Plat, Minor Subdivision Approval accompanied by a Conditional Use Permit/Site Plan Amendment.

'Purpose: Creation of a two lot commercial subdivision of property with Parcel “A” measuring 1.05 acres in size and Parcel “B” measuring 3.81 acres in size. This minor subdivision request is accompanied by a site plan amendment request which is necessary in order to establish the necessary cross easements such as access, parking, stormwater management and waste water disposal.

'Property Location: 2424 S. Croatan Highway, Nags Head

'Property Size: 4.86 acres

'Existing Land Use: The use will remain Office/Retail Group Development.

'Zoning Classification of Property: C-2, General Commercial Zoning District.

'Zoning Classification of Surrounding Properties: Property north of the site, directly across Oak Knoll Drive, is zoned C-2, General Commercial. Property south of the site is zoned C-2, General Commercial. Property west of the site is zoned R-2, Residential and property east of the site, directly across S. Croatan Hwy. is zoned C-2, General Commercial.

'Zoning History:

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- On April 19, 2006 the Board of Commissioners approved the site plan, conditional use, vested right application for South Beach Plaza, an Office/Retail Group Development.

- On July 11, 2007 the Board of Commissioners approved a Site Plan Amendment which included eliminating the north east building, converting the north west building to one story retail, converting the south east building to a “food court” with 5 units, modifications to parking, drive aisles and loading zones to accommodate building modifications and architectural revisions.

- Building Permit 2007-423 was issued on December 3, 2007 for construction of the food court building, occupancy permit was issued May 28, 2008.

- On March 5, 2008 the Board of Commissioners heard a Site Plan Amendment request to South Beach Plaza which included construction of financial office building, modifying the north west building by combining the two currently approved buildings into one building, modifying parking, drive aisles, loading zones and stormwater management controls to accommodate the requested modifications and to allow for the phasing of site improvements. The Board voted to deny the proposed financial office and the proposed single building on the northwest corner due to failure to meet the minimum architecture requirements. The Board voted to approve the revised site plan as submitted as well as to approve the phasing of site improvements.

- Building Permit 2008-54 was issued on February 21, 2008 for interior renovations for Dunkin Donuts. An occupancy permit was issued on May 28, 2008.

- On April 18, 2008 Planning Director, Timothy Wilson reviewed and administratively approved a minor site plan amendment for the relocation of some HVAC stands servicing the Food Court building and modifications to the landscape plan.

- On January 7, 2009 the Board of Commissioners adopted a text amendment to Town Code 48-7, Definitions including services and indoor recreation facilities as a permissible use within the “Office/Retail Group Development”. A zoning permit has been issued to locate an indoor recreation use within the south west building, no building permits have currently been issued.

'Other Information: Subdivision Ordinance Section 38-6, Subdivision of land in conjunction with site plan approval for commercial development, allows the processing of a subdivision application to follow the same review and approval procedures as a site plan under the Zoning Ordinance. This minor subdivision application meets the provisions of this section as it is connected to the site plan approval for South Beach Plaza. Accordingly, this minor subdivision application will be reviewed by the Planning Board for recommendation of preliminary subdivision plat approval and will then be forwarded to the Board of Commissioners for final subdivision plat review and approval.

'SPECIFIC INFORMATIONProposed Lots: All lots meet the minimum lot size and minimum lot width requirements of the C-2, General Commercial District. The existing Food Court Building will be located upon Parcel “A”. The existing building in the southwest corner of the property will be located entirely within Parcel “B”. Existing improvements on site such as site access, traffic circulation, parking, stormwater management facilities and wastewater disposal will be shared between Parcels A and B.

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'Required Site Improvements: No site improvements are required by the proposed subdivision of property as all proposed lots have frontage on existing public streets and have available public water service. Improvements on the site and individual lots including but not limited to street access, lighting, stormwater management, wastewater disposal and other improvements typically associated with subdivision approval will be regulated and controlled by the zoning site plan approval for the property.

'ANALYSISPreliminary Subdivision PlatThe proposed two lot subdivision is compliant with the dimensional requirements of the C-2, General Commercial Zoning District and no site improvements are required in the division of this property. The appropriate setbacks for the approved use of Office/Retail Group Development have been depicted.

'By definition an Office/Retail Group Development means a group of buildings located on a single site. A site may be one or more subdivided lots, unsubdivided parcels, tracts or areas of land which join and are being developed under a common scheme of development.

'The execution of cross easements for the shared use of site improvements between Parcels A and B as shown on the amended site plan is required prior to any sale or transfer of the lots. This requirement needs to be clearly stated on the final plat for recordation. Draft language of cross easement documentation is currently being reviewed by the Town Attorney.

'CUP/Site Plan AmendmentThe creation of two lots on this site necessitated the requirement for a site plan amendment depicting the two lots, compliant setbacks and the required cross easements. The proposed subdivision of the property does not create any changes in site improvements, only the need to obtain necessary cross easements.

'STAFF RECOMMENDATIONBased on the above analysis staff recommends approval of the proposed minor subdivision as presented and the associated conditional use permit/site plan amendment request with the following conditions:

- Master Declaration of Covenants, Easements and Restrictions for South Beach Plaza shall be in a form approved by the Town Attorney and recorded before any lots are conveyed or the property is developed or improved. A note to this effect shall be placed on the final plat prior to recordation.

- A note shall be placed on the final plat that the division of property is pursuant to Conditional Use Permit/Site Plan Approval as approved by the Nags Head Board of Commissioners.

'The two conditions noted above have been addressed on the final plat.

'Planning Board RecommendationThe Planning Board, at their February 17, 2009 meeting voted unanimously to approve the preliminary plat contingent upon review and approval of the easement language by the Town Engineer and with the two conditions noted in staff recommendation. These items have all been addressed.

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'The Board of Commissioners is required to make the following affirmative findings of fact for this and all conditional use applications:1. The applicant has met the requirements of the Town of Nags Head Zoning

Ordinance, Subdivision Ordinance and other applicable ordinances. 2. The use will not materially endanger the public health and safety if located where

proposed and developed according to the plan as submitted.3. The use as proposed will not overburden the fire fighting capabilities and the

municipal water supply capacity of the Town."

Planning Board Chair Bob Edwards was sworn in by Town Clerk Carolyn Morris and noted one concern by the Planning Board; approval of the occupancy of the donut shop last spring could be approved with a bond; this subdivision does not affect the bonding of that work.

There being no one else present who wished to speak, Attorney Leidy declared the Public Hearing phase closed at 9:40 a.m.

MOTION: Comr. Gray made a motion to approve the subdivision plat application to create a two-lot subdivision and to approve the associated site plan amendment to South Beach Plaza as presented with the following required findings of fact:

- The applicant has met the requirements of the Town of Nags Head Zoning Ordinance, Subdivision Ordinance and other applicable ordinances. - The use will not materially endanger the public health and safety if located where proposed and developed according to the plan as submitted.- The use as proposed will not overburden the fire fighting capabilities and the municipal water supply capacity of the Town.The motion was seconded by Comr. Remaley which passed 4 - 0 (Mayor Pro Tem Sadler was not present.).

Public Hearing to consider zoning ordinance text amendment initiated by the Nags Head Board of Commissioners to delete Town Code Section 48-405(c)(2)(v) in its entirety. This section pertains to offsite drainfields serving hotel uses within the CR, Commercial Residential Zoning District

Town Attorney John Leidy opened the Public Hearing at 9:41 a.m. to consider a zoning ordinance text amendment to delete Section 48-405(c)(2)(v) concerning offsite drainfields serving hotel uses.


"At the Board of Commissioners January 7, 2009 meeting, the Board unanimously adopted a text amendment to Section 48-85 (subsections a, b and c) for commercial use to utilize offsite drainfields in any commercial district. The Board met on January 21, 2009 and voted unanimously to initiate a text amendment to delete Section 48-405(c)(2)(v).

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'Staff is requesting the Board delete Section 48-405(c)(2)(v) in its entirety, as this amendment is specific to hotel offsite drainfield use in the CR district. Whereas the amendment adopted by the Board of Commissioners on January 7, 2009 to Section 48-85(subsections a, b and c) is applicable to all commercial use utilizing offsite drainfields in any commercial district thus making the previously adopted change to Section 48-405(c)(2)(v) redundant and no longer necessary.

'Staff RecommendationStaff recommends the Board adopt the proposed zoning text amendment as presented.

'Planning Board RecommendationThe Planning Board considered this amendment at their February 17, 2009 meeting and recommended adoption."



MOTION: Comrs Gray and Remaley made a motion to adopt the ordinance amendment to delete the portion of Town Code that pertains to offsite drainfields serving hotel uses as presented. The motion was seconded by Comr. Oakes which passed 4 - 0 (Mayor Pro Tem Sadler was not present.).

The ordinance concerning deletion of the portion of Town Code that pertains to offsite drainfields serving hotel uses, as adopted, is attached to and made a part of these minutes as shown in Addendum "D".

Public Hearing to consider zoning ordinance text amendment to Town Code Section 48-121(a), Intent of Nonconformities Ordinance and Section 48-123(a)(2), Nonconforming Structure with Conforming Use to exempt all structures destroyed by accidental loss

Town Attorney John Leidy announced the Public Hearing open at 9:54 a.m. to consider a zoning ordinance amendment to exempt structures destroyed by accidental loss.

Zoning Administrator Kelly Wyatt summarized her memo which read in part as follows:

"The Planning Board on April 15, 2008 established the Non-conforming Commercial Committee. This committee was established to address nonconformities with the intent to help non-conforming small businesses stay in business. This committee met several times last fall and at the September 2008 meeting the Chairman of the Nonconforming Commercial Committee, Clyde Futrell gave the entire Board an update on what the committee had been discussing and the direction in which they were proceeding. The Committee discussed two main items:

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1) Extending the relaxation of the 50% rule to small business/commercial uses in the event of accidental loss as was recently done for residential non-conforming structures; and

2) Reduction or relaxation of parking standards to allow restaurants to have outdoor dining service

'At their December 16, 2008 meeting the Planning Board voted unanimously to initiate zoning ordinance text amendments to Town Code Section 48-121(a), Intent of Nonconformities Ordinance and Section 48-123(a)(2), Nonconforming Structure with Conforming Use. The proposed change would exempt all nonconforming structures when destroyed by accidental loss from the fifty percent value requirement as well as amend the Intent of the Nonconformities Ordinance to address those structures destroyed by accidental loss.

'At their June 4, 2008 meeting the Board of Commissioners adopted an ordinance exempting nonconforming structures used for single-family dwelling use when destroyed by accidental loss regardless of the dollar amount from that provision of the Ordinance. The Board then voted unanimously to extend this exemption to multi-family dwellings at their January 7, 2009 meeting. With the adoption of these ordinance amendments the only structures remaining which are not exempt from the fifty percent rule were Duplex Use, Commercial Use and Hotel Use. After discussion between the committee members and the entire Planning Board the Planning Board voted unanimously to initiate an ordinance amendment which would exempt those remaining uses from the fifty percent rule when those structures are destroyed by accidental loss.

'Land Use PlanAlthough the Land Use Plan does not directly discuss nonconforming structures Staff submits the effect of the approval of the proposed text amendment is inconsistent with the Land Use Plan for the reasons noted below.

'Through the years the Town has enforced existing regulations as well as adopted new ones to control the quality, density, appearance and location of growth as the Land Use Plan recommends. Chapter 3 of the Plan states “the Town must make sure that when the marginal land is developed and the existing housing stock improved, that it is developed or improved in a fashion consistent with the Town’s desire to retain the “Nags Head” image.” Chapter 16 of the plan also addresses community appearance stating “The Town shall continue to address community appearance concerns through the existing boards (Planning Board, Citizens Advisory Committee and Board of Commissioners).”

'The Towns’ actions in trying to regulate nonconforming structures through the Zoning Ordinance are consistent with the Land Use Plan. Chapter 3 of the Plan states “Zoning is usually coordinated with a land development plan, such as a land use plan. Together, they form the framework for the Town’s development.” Chapter 6 discusses development regulations and states “The tools and techniques included in this category are those which seek to manage growth by directly regulating it. Included here are traditional regulating devices such as zoning and subdivision ordinances.”

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'Staff submits allowing the redevelopment of nonconforming structures to survive does not demonstrate the development attributes which the Land Use Plan recognizes as important to retain the Nags Head image.

'Staff RecommendationAs stated above, Staff has determined the effect of the approval of the proposed text amendment is inconsistent with the Land Use Plan. Staff maintains the proposed ordinance would negatively impact the effectiveness of the zoning ordinance to implement the stated policies and goals of the Land Use Plan when it comes to redevelopment of nonconforming structures. Staff continues to maintain that administration and enforcement, being the verification of claimed structural nonconformities, will be problematic as staff has already recently asserted in the single-family dwelling and multi-family dwelling text amendments referenced in this report.

'As noted throughout numerous publications from the UNC School of Government, including Introduction to Zoning Practice and Land Use Law in North Carolina, virtually all zoning ordinances allow the continuation of nonconformities however the vast majority of ordinances substantially restrict them to encourage eventual compliance with the ordinance. The fifty percent rule is a consistent dollar limitation found commonly in zoning ordinances, as well as the nonconformity restrictions of other development ordinances including the Flood Ordinance, CAMA and Building Code. By approving this text amendment and allowing nonconforming structures to be substantially repaired and replaced staff would submit that the purpose of the nonconforming ordinance is essentially defeated. The only mechanism currently available for ensuring future zoning compliance among nonconforming structures will be drastically reduced, aiding in the indefinite continuance of existing nonconforming structures.

'Based upon the above, staff would recommend denial of the proposed zoning ordinance text amendment.

'Planning Board RecommendationAt their meeting on January 27, 2009 the Planning Board voted unanimously to adopt this proposed ordinance."


Bob Edwards, Planning Board Chair; he stated that the Planning Board was concerned about Beach Road businesses and looked for ways to support small businesses which are a big part of Nags Head's history.


In response to Comr. Oakes, Ms. Wyatt stated that the Land Use Plan does not directly speak to nonconformity structures.

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MOTION: Comr. Oakes made a motion to adopt the ordinance concerning nonconforming structures destroyed by accidental loss. The motion was seconded by Comr. Remaley which passed 4 - 0 (Mayor Pro Tem Sadler was not present.).

The ordinance concerning nonconforming structures destroyed by accidental loss, as adopted, is attached to and made a part of these minutes as shown in Addendum "E".

Public Hearing to consider zoning map amendment request by Eddie Goodrich to rezone a 2.5 acre tract of land located east of US Highway 158, west of NC 12 and north of Mall Drive from Village Hotel Zoning District to Detached Single Family (SF-2) Zoning District

Town Attorney John Leidy opened the Public Hearing at 10:06 a.m. to consider a zoning map amendment to rezone land from Village Hotel to Detached Single Family located east of US 158, west of NC 12, and north of Mall Drive. He noted that the Board would be acting as a quasi-judicial Board in this instance.

Planning Director Tim Wlson, Deputy Planning Director Bruce Bortz, Applicant Eddie Goodrich, and Planner Angela Welsh were sworn in by Town Clerk Carolyn Morris.


"Eddie Goodrich is requesting a zoning map amendment to reclassify a 2.5 acre parcel from Hotel District to Detached Single-Family District SF#2. The property requested for reclassification is currently undeveloped and located in the SPD-C Village at Nags Head Zoning District at the corner of Mall Drive and NC 12 (South Virginia Dare Trail).

'The property is bounded by properties to the north by Village Hotel District, West by Village Commercial 1 District, and partially to the south by Village Commercial 2 District. The majority of these properties have already been developed with commercial uses. Remaining property to the south (across from Mall Drive) and to the east (across NC 12) are zoned Single-Family District SF#1 and #2. These properties are developed with single-family dwellings.

'Town Code Section 48-822 previously provided that a property owner in the Village could redesignate the zoning classification of their property, without review or approval by the Board of Commissioners, as long as the redesignation was to a less intensive land use classification as listed in the hierarchy of land uses for the Village.

'The property was previously granted preliminary subdivision plat approval by the Board of Commissioners on May 4, 2005 for a 14 lot residential subdivision. The preliminary plat approval allowed the redesignation of the property from Village Hotel District to Village Detached Single-Family District SF#2. The preliminary plat approval expired on May 4, 2006 due to no actions being taken by the property owner in the furtherance of the approval.

'On July 6, 2005 the Board of Commissioners amended Section 48-822 to require that any change in zoning district classification for properties in the Village follow the same procedure as other properties in Town, which requires public hearing and approval by the Board of Commissioners. Since the preliminary plat approval never progressed to

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final plat approval and plat recordation, the zoning classification of the subject property was never officially changed from the present Hotel District.

'Due to the change in Town Code Section 48-822 as well as the expiration of the preliminary plat approval the applicant has submitted this zoning map amendment request to reclassify the 2.5 acre parcel from Hotel District to Detached Single-Family District SF#2.

'Hotel District BackgroundWhen the SPD-C Village at Nags Head District was originally created in 1986 there were two properties designated hotel district. A third Hotel District site encompassing 2.27 acres located on the west side of US Highway 158 on the north side of Lakeside Street was added to the Village District in 2005. Of the two originally designated hotel district sites, the large oceanfront hotel district has since been redesignated and developed with detached single-family dwelling uses and is no longer available for hotel development. The remaining small hotel district, located between Highways 158 and 12 and originally containing 10.26 acres of property, has also seen the majority of property redesignated from Hotel District to Commercial 2 District and developed with other commercial uses. The 2.5 acre parcel being requested for zoning reclassification is the last remnant of the original small Hotel District. No hotel development has occurred on any of Village Hotel District properties. While there has been no hotel development within the Village, this 2.5 acre small Hotel District did receive site plan approval on April 5, 2006 for a 90 unit hotel. Some of the permitted uses currently allowed in the Hotel district are hotels, motels, restaurants, retail uses up to 10,000 sf, and customary accessory uses and structures. Some of the conditional uses allowed are child care centers and drive-in restaurants. Rezoning the property to residential would allow a maximum density of 8.5 dwelling units per acre.

'Land Use PlanThe Town Land and Water Use Plan classifies the property as being in a Transition T-1 zone. Transition zones in general are vacant land for future intensive development. The T-1 classification is more specifically anticipated for high intensity development.

'The Land Use Plan does not specifically address rezoning in the village Hotel District. Chapter 23 policy #6 of the Land Use Plan states that the “Town will consider reducing the size of the town’s commercial zoning districts.” As well as “consider reducing and/or redistributing the amount of land available for commercial development.” The policy further states “the Town should not reduce, and shall consider increasing, the amount of land zoned residential.” Chapter 15 of the plan states “while single-family homes are the primary form of accommodation, the Town shall seek to encourage a wide range of compatible accommodations and housing densities for our residents, workers, and visitors.” The Town’s Vision Statement from the Land Use Plan was revised in 2002 by the Board of Commissioners to include the following statement regarding the Town’s economy “the base of that economy is a diverse supply of accommodations, primarily single-family homes but including hotel and multi-family dwelling units.”

'Staff RecommendationStaff recommends denial of this rezoning request. Staff maintains the reclassification of this property would further diminish the opportunity for future hotel use, especially in light of the significant loss of most of the Hotel District property which has already

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occurred in the Village. There are two areas in Nags Head zoned to allow hotels to reach a maximum height of 60 feet. The first one is in the Hotel Overlay District (Section 48-446) and the other is the Village Hotel District (Section 48-864). Staff also finds that while the proposed rezoning request is consistent with Policy #6 from Chapter 23 of the Land Use Plan it does not support the Board’s ongoing efforts to try to stimulate new hotel development within the Town as demonstrated through various text amendments in the last five years to encourage hotel development.

'Planning Board RecommendationAt their meeting on January 27, 2009 the Planning Board voted unanimously to adopt this proposed map amendment change."


Deputy Planning Director Bruce Bortz explained that the original Planned Unit Development had 38 acres devoted to hotel use; if rezoned, there would be no land use in the Town designated as hotel use.

Mr. Goodrich pointed out that he has tried, with the Board's help, to build a hotel; with today's economy the Town will probably not see a hotel application for 4 - 5 years; he stated that this is not the only parcel where a hotel can be built; his proposed development will provide jobs and allow some people to buy lots at reduced prices.


Comr. Oakes commented that the Town has always allowed the C-2 District to develop single family homes; he feels that the Board should allow this requested less-intensive use as is consistently done throughout the Town.

MOTION: Comr. Gray made a motion to rezone the property as requested to include the following required findings of fact:

1) Size of the tract is favorable2) Compatibility of proposed zoning action is consistent with existing zoning

plan3) Benefits and detriments resulting from this action for owner of property and surrounding community would justify this action4) Relationship of existing uses and new uses justifies this action

The motion was seconded by Comr. Remaley which passed 3 - 1 with Mayor Cahoon casting the NO vote (Mayor Pro Tem Sadler was not present.).

Town Attorney Leidy noted that a second reading is required as a 4 - 0 positive vote is required for first time ordinance adoption.

Mayor Cahoon stated that the second reading of the rezoning request and the subsequent agenda item concerning a preliminary subdivision plat to create 14

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detached single-family residential lots (Seven Sisters South Subdivision) will return for Board consideration at the April 1, 2009 Board of Commissioners meeting.

REPORTS AND RECOMMENDATIONS FROM THE PLANNING BOARD AND THE PLANNING AND DEVELOPMENT DIRECTOR

Discussion of zoning ordinance text amendment initiated by the Nags Head Planning Board to Town Code Section 48-167(4), Required Parking by Use, Restaurants - to establish a definition for “neighborhood restaurant” and provide a reduced parking requirement for outdoor seating at such restaurants

Deputy Planning Director Bruce Bortz summarized his memo concerning neighborhood restaurants which read in part as follows:

"The Planning Board on April 15, 2008 established the Non-conforming Commercial Committee. This committee was established to address non-conformities with the intent to help non-conforming small businesses stay in business. One suggestion at the April meeting would be that this Committee may want to look at a relaxation of non-conformities and/or relaxation of parking standards. It was mentioned at that meeting that there were several beach road businesses that have problems with parking. The Non-conforming Committee met on several occasions last fall and on December 16th the Committee forwarded to the Planning Board a number of possible changes to the zoning ordinance that address non-conforming businesses. One change suggested by the Committee was to exclude the outside customer service area from parking calculations for restaurants. The Planning Board at their December 16 th

meeting voted to initiate the review of this proposed ordinance change.

'Restaurant parking standards for Nags Head have developed over time based upon the use patterns in other similar municipalities and use patterns observed within the Town. In 1980 restaurant parking was based upon the number of customer seats and employees. In 1990 the standard for parking is the same as we have now, one parking space for every 55 square feet of “customer service area” and no separate requirement for employees. Customer service areas are those locations on a restaurant site which are open to the public which are designated for the purchase and/or consumption of food, drink, or other similar items. Staff is not aware of any restaurants which utilize approved outside customer service areas that are currently nonconforming in regards to parking. The current parking standard in staff’s opinion is not adequate in that the ordinance does not address the true need for parking on some restaurant sites. Zoning ordinances are usually based upon a balance or compromise between maximum use as typified by the July 4th weekend and reduced use standard representing an average summer parking demand. Parking standards for restaurants also represent a compromise realizing that there are some restaurants that are more popular than others and thus creating more of a parking demand than a restaurant that does not have a large following.

'Staff has observed that when a restaurant is popular, the required number of parking spaces required by the Town’s regulations is inadequate. An example of the inadequate parking is demonstrated throughout the summer at Basnight Lone Cedar Restaurant, Sonics and Sugar Creek. These three restaurants exceed the minimum

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parking standards of the Town and these restaurants have parking demands that exceed the number of required parking spaces available during the summer. To alleviate some of the parking problems Basnight’s Lone Cedar has installed an additional parking area for employees. This area is adjacent to the sound and is non-improved and can accommodate approximately 20-25 vehicles. Last year Sugar Creek Restaurant patrons had to resort to parking in the right-of way along Virginia Dare trail on the Causeway when the parking lot was full. Parking in the right of way especially on a curve creates a safety concerns for not only through traffic on Virginia Dare Trail, but also to customers leaving the restaurant in that their view of the road was impeded by parked cars in the right of way. The speed limit in this area of the Causeway is 50 MPH. In response to these safety concern, the Town installed no parking signs in the right of way. Two other restaurants (Kelly’s and Tale of The Whale) have experienced parking problems have partially solved their parking problem by utilizing additional parking areas. Kelly’s shares parking with the adjacent office building and the Tale of the Whales has an adjacent unimproved lot to accommodate peak over flow parking. In all the cases cited above, the restaurants meet or exceed the minimum parking standard established by the Town. The discussions at April 2008 Planning Board meeting mentioned that several businesses along the “Beach Road” have parking problems. While parking in the right of way is an option in some areas, parking along Virginia Dare Trail and South Old Oregon Road would be limited due to the multiuse path in the eastern right of way the fact that the western right of way is primarily unimproved. Recently, upon request the Board of Commissioners did remove some no parking signs along Virginia Dare Trail in the Vicinity of Kitty Hawk Kites and Kitty Hawk Sports to address parking issues created during schedules special events.

'Staff has consistently addressed the use of decks, porches and outside areas if the intended or resultant use is for customer service. In staff’s opinion there is no difference in parking demand between a restaurant customer sitting at a picnic table enjoying their meal outside than a patron seated inside a restaurant. The Town does not restrict customer service areas to only inside seating. During the site plan review process for restaurants, staff encourages applicants to provide more parking than what is required by the ordinance. Any restaurant may have outdoor seating provided they meet Town regulations including parking and all Health Department standards.

'To help alleviate some parking concerns and to provide relief the Board of Commissioners over the last ten years have made several changes to the zoning ordinance that will allow shared parking and utilization of a parking reduction schedule for shopping centers and developments that have several businesses grouped together. Outback Steak House in the Outer Banks Mall was able to utilize a parking reduction based upon sharing parking spaces with abutting businesses along with a reduction (as provided by the ordinance) in the required number of parking spaces based upon the number of available parking spaces in the entire Mall.

'In other localities that are more pedestrian and public transit oriented such as Chapel Hill and Raleigh, a lesser parking requirement might be in order because not all restaurant patrons will drive a vehicle to the restaurant and in many instances there maybe municipal and private parking lots. In Nags Head the vast majority of patrons drive to the restaurants. To exclude outside seating or customer service areas from parking calculations in Nags Head will exacerbate the parking difficulties exhibited at some restaurants and in staffs opinion represents poor planning.

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'At the January 27th Planning Board meeting, the Board discussed at length a proposal submitted by staff which relaxed the parking requirement for outdoor seating throughout the Town. After a lengthy discussion the Planning Board focused on the need for encouraging outdoor seating at smaller restaurants fronting on South Virginia Dare Trail. Following that discussion, staff was requested to bring back an ordinance specific to the smaller restaurants along South Virginia Dare Trail.

'At the February 17th Planning Board meeting the Planning Board discussed the attached ordinance. This ordinance if adopted would provide some relief from the parking standards for outside customer service areas. The attached ordinance is comprised of two parts; one would establish a definition for “neighborhood restaurant” and the other part would provide reduced parking requirement for outdoor seating. As defined a “neighborhood restaurant” is a restaurant situated and designed to serve a small client base fronting on South Virginia Dare Trail and comprised of less than 1,000 square feet of customer service area. The attached parking standard would allow a neighborhood restaurant to provide outside customer service area in an amount equivalent to 50% of the indoor customer service area which would be exempt from the parking standard for restaurants. For example, if a restaurant had 800 square feet of indoor customer service area, they could have 400 square feet of outside customer service area that would be excluded from parking calculations.

'Staff has inventoried the restaurants fronting along South Virginia Dare Trail and the vast majority of these restaurants have less than 1,000 square feet of customer service area. Only two restaurants have greater than 1,000 square feet of service area as shown on the chart below. As pointed out by the Planning Board, the smaller restaurants do receive some walk in foot traffic from local residents and visitors as well as beach goers. Staff’s concern was, and still is, that many of these restaurants during the summer cannot accommodate parking on site for their clients. When parking can not be found on site, few choices remain. The two most likely areas patrons will park will be on street right of ways and in town beach access parking lots. In response to some safety conditions along South Virginia Dare Trail the Town has posted “no parking signs” in front of several restaurants. The beach access parking lots are funded by the State and Federal government to provide parking for beach access and not designed or intended to serve as an accessory parking lots for businesses.

'RESTAURANTS FRONTING ON VIRGINIA DARE TRAILRESTAURANT CUSTOMER SERVICE AREAA. 747 square feetB. 864 square feetC. 594 square feetD. 286 square feetE. 660 square feet F. 940 square feetG 750 square feetH. 3,400 square feetI. 1,705 square feet

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'Land Use Plan ConsistencyThe 2000 Land and Water Use plan does not specially address relaxation of parking standards. The Land Use Plan does have a policy (Chapter 14. Economic Development, policy 6) that states. “The Town shall recognize and shall take appropriate actions to mitigate the affects commercial enterprises’ such as light, noise, and visual clutter may have on adjacent residential uses”. Parking in the right of way would increase light, noise and visual clutter by having vehicles parked in the right of way of Town streets. Most of the lots adjacent to Virginia Dare Trail and South Old Oregon Inlet road have been developed residentially even though many areas are zoned commercial. The Land Use plan also has a policy (Chapter 24, policies and Implementation Methods, policy 32) that the town shall consider the impact of site plans on public safety in the review of site plans and zoning text amendments. If the relaxation of parking standards encourages parking in the right of way, the proposed text amendment would be inconsistent with the Land Use Plan in that there would be an increase in noise, light from vehicles at night, visual clutter and an impact on public safety of pedestrians, drivers and passengers exiting vehicles on the right hand side as well as vehicles entering onto streets from driveways and side streets. Additionally, allowing parking in the right of way will negatively impact of the Town’s ability to safely and efficiently collect solid wastes from the rollouts.

'Staff recommendation. While this proposal is an improvement over the previous proposal presented to the Planning Board on January 27th which would have relaxed the parking standard for all restaurants in the Town, Staff would still recommend that this proposed ordinance be denied on the basis that any relaxation of parking standards for restaurants will only further exacerbate the inadequate parking that we have now. While the goal expressed by the Planning Board to encourage survival of small restaurants along Virginia Dare Trail is commendable, staff continues to recommend denial in that passage of this ordinance would encourage off site parking on street right of ways and beach access parking lots. Staff is recommending that any reduction in parking standards should only be tied to the construction of public parking lots and the implementation of a public transportation system.

'Planning Board recommendation. The Planning Board at their February 17th meeting and after a lengthy discussion, expressed the need to encourage the survival of small restaurants along South Virginia Dare Trail and voted 4 to 1 to recommend approval of the attached ordinance."

In response to Comr. Gray, Mr. Bortz stated that if the ordinance is adopted, which reduces parking standards for Beach Road restaurants, the Board may see requests from US 158 restaurant owners requesting a relaxation of parking standards.

Comr. Oakes applauded the Planning Board for pursuing some change; he spoke in favor of outdoor seating and dining; he would like to see parking in the right-of-way on the west side of the Beach Road and multi-tasking on beach access parking lots allowed after 6:00 p.m. He would like to see Planning Board/Board of Commissioners and a group of the restaurant owners meet and talk about changes in parking requirements and other issues concerning small businesses - parking is just one of the issues.

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Mayor Cahoon commended the Planning Board for looking at these types of Beach Road neighborhood issues. She confirmed with Planning Board Chair Bob Edwards that the Planning Board would be willing to meet with restaurant and business owners from the Beach Road along with Board members to discuss all pertinent neighborhood issues at one time instead of "piece mealing" issues. Mr. Edwards stated that this is more than just a parking issue - the Planning Sub-committee has been looking at increasing the beach experience for families.

It was Board consensus to move forward and have two (2) Board members meet with the Planning Board and Beach Road restaurant owners to discuss all neighborhood issues at one time - to include discussion of the definition of "neighborhood restaurant" and reduced parking requirements for outdoor seating. Planning Chair Bob Edwards noted that the Planning sub-committee has been looking at maintaining the beach/family atmosphere on the Beach Road.

Town Attorney Leidy spoke of an inquiry received from Attorney Andrew Keeney on behalf of Mr. Keeney's client, Dunkin' Donuts; Mr. Leidy stated that he explained to Mr. Keeney that this issue did not apply to Mr. Keeney's client whose business is located on US 158.

NEW BUSINESS

Annual OBX Marathon Report to the Board - Mike Kelly and Webb Fuller

Annual OBX Marathon directors Mike Kelly and Webb Fuller presented a video report of and distributed written statistics from the November 2008 OBX Marathon.

A video of the 2008 Marathon activities was presented which focused on all parts of the Marathon to include the Fun Run as well as the actual Marathon.

It was reported that the Outer Banks Relief Fund and the Dare Education Foundation were the beneficiaries from the run's proceeds.

On behalf of the Board, Mayor Cahoon thanked Mr. Kelly for his report and she thanked all Town employees who participated in and assisted with the Marathon.

Mr. Kelly presented 2008 OBX Marathon photographs to Fire Chief Butch Osborne, Deputy Public Works Director Ralph Barile, and Police Chief Wayne Byrum.

ITEMS REFERRED TO AND PRESENTATIONS FROM TOWN ATTORNEY

Town Attorney - Discussion of white paper re: offsite advertising signs - from January 21, 2009, Board meeting

Town Attorney John Leidy summarized his memo concerning offsite advertising signs which is attached to and made a part of these minutes as shown in Addendum "F".

The Agenda Summary Sheet, Town Attorney comment portion, read in part as follows:

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"After reviewing the relevant ordinances, discussing this matter with Tim Wilson, and performing some legal research, I have prepared a memo for the Board about commercial uses using their permitted signs to advertise off-premises commercial activity. For the reasons discussed in the memo, I think this practice is prohibited by the ordinance."

Mayor Cahoon said that if allowed, the business referred to on the signage could be located anywhere; Mr. Leidy agreed that the Town cannot limit location information.

Comr. Oakes questioned the billboard signage issues back in the 1980's. Mr. Leidy noted that permits from the State are required for billboards. Comr. Oakes said he would like to bring this issue back up at some point.

No action was taken by the Board concerning offsite advertising signage.

Request for Closed Session to discuss possible land acquisition (Gilliam Wood property on US 158) in accordance with (IAW) GS 143-318.11(a)(5); to discuss possible litigation and Beacon Motor Lodge IAW GS 143-318.11(a)(3)

Town Attorney John Leidy requested a Closed Session to discuss possible land acquisition (Gilliam Wood property), possible litigation, and Beacon Motor Lodge litigation.

ITEMS REFERRED TO AND PRESENTATIONS FROM TOWN MANAGER

Town Manager - No Parking on W. Oak Knoll Drive - from Consent Agenda

The agenda summary sheet concerning parking on W. Oak Knoll Drive during the upcoming St. Patrick's Day events read in part as follows:

"At the February 18, 2009 Board of Commissioners meeting, the Board passed a motion to approve the temporary designation of "No Parking" on W. Oak Knoll Drive in Nags Head Pond during St. Patrick’s Day Parade events March 13 – 15, 2009.

'Attached please find ordinance amending the Traffic Control Map and associated map."

Town Manager Cameron stated that it is not the intention of the Town to tow any vehicles; he is concerned that the parking situation may reach the same situation as last year and there needs to be access for emergency vehicles.

Mike Kelly, St. Patrick's Day event coordinator; he explained that a meeting was held last year with the Nags Head Pond Property Owners Association to address the issues; he stated that he would rather take care of the parking problem without adoption of an ordinance as he is concerned about other events; he would prefer to take care of issues without having to involve the Town.

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Police Chief Byrum emphasized that street parking in the Nags Head Pond Subdivision cannot be enforced without regulations adopted in the Code.

It was Board consensus to allow Kelly's Restaurant owner Mike Kelly to take care of the parking/traffic issues through self-policing during the St. Patrick's Day Parade and associated events March 13 - 15, 2009.

Town Manager - Update on sand fencing - from December 3, 2008 Board meeting

Deputy Public Works Director Ralph summarized the Public Works memo concerning the Sand Fencing Project which read in part as follows:

"The Board of Commissioners discussed the Dare County Shoreline Management Commission’s sand fencing program at their November 5th and December 3rd

meetings. During the last discussion, it was decided to wait to see how the beaches fared over the winter before moving forward with this year’s project. On the 3 rd of December, Lee Wrenn, Dare County’s Shoreline Manager, notified the Town that this year’s funds could be carried over to next year if the Town decided that the beaches were too badly battered to place fencing this year. This would give us roughly $48,000 in FY 2009. Last year, in addition to Town beach accesses, we placed fencing on 69 private properties. A total of 58 additional applications had been received that could not be fenced due to narrowness of the beach, or time constraints. An additional 92 applications have been received since last spring.

'$25,000 of revenues and expenditures is included in the current year's operating budget for these costs. These can be removed and added to next fiscal year should the Board decide to delay work until then."

Town Manager Cameron recommended that the sand fencing project move forward; he thanked Dare County for the grant so the funds can transfer to the current year; he feels the project should be started as soon as possible.

It was Board consensus to move forward with the Sand Fencing Project and not wait until the fall of 2009.

Town Manager - Nags Head Woods yellow house update

The Agenda Summary Sheet concerning the Nags Head Woods yellow house read in part as follows:

"Attached please find a memo with photo from Aaron McCall, Steward for The Nature Conservancy, concerning the disposition of the yellow house on Old Nags Head Wood Road. The house is no longer being used by The Nature Conservancy and Mr. McCall is requesting that it be torn down."

Town Manager Cameron noted the letter from Nature Conservancy Steward Aaron McCall and the recommendation from staff to demolish the yellow house which is in major disrepair. The Town's MOU with the Nature Conservancy contains nothing that

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would disallow removal of the structure. He recommends working with the Nature Conservancy to tear down the yellow house.

Comr. Gray said the yellow house has some history with the Town and he does not want to see the landmark demolished; he has been in the area of the house many times and never seen any violators.

Mayor Cahoon stated that she is concerned that the Nature Conservancy does less with their property and no longer wants to be in a partnership with the Town.

It was Board consensus that staff provide additional information concerning the yellow house in Nags Head Woods and to return this item to the Board for further discussion.

Town Manager - Update on beach nourishment

Town Manager Cameron stated that staff has been working with the Corps of Engineers (COE) and has had a conference call with Coastal Science Engineering (CSE). Tim Kana, President of CSE, has been authorized to move forward with the erosion monitoring updates and to work with COE Raleigh Bland to complete an updated Environmental Impact Statement (EIS). Per Board of Commissioners direction, a stakeholders meeting will be held on the Outer Banks; Town Manager Cameron is to provide additional information at the March 18, 2009 Board of Commissioners meeting.

In response to Mayor Cahoon, Town Manager Cameron said that he is not aware of how much COE will receive from the economic stimulus package for beach nourishment.

Town Manager - Request for Closed Session to discuss personnel

Town Manager Cameron requested a Closed Session to discuss a personnel issue.

Town Manager - Dominion Power removal of vegetation in South Nags Head

Town Manager Cameron reported that some South Nags Head residents are very concerned about the amount of vegetation Dominion Power has removed for maintenance of power lines. A meeting has been scheduled with the residents, a Dominion Power representative and Town staff to make sure fire lines and unnecessary vegetation are not disturbed.

Town Manager - Nuisance property on public trust land

Town Manager Cameron reported on three (3) structures located on the beach in the public trust land - 9209 S Old Oregon Inlet Road, 9633G Spencer, and 9701 Nansemond. In accordance with Town Code Chapter 16, Article 32, these structures constitute nuisances. Based on the Town Code, Town Manager Cameron said that he

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will be giving authority for appropriate action to Dep. Mgr Ogburn, Planning staff, and attorneys John Leidy and Ben Gallop.

Comr. Oakes feels the pictures displayed of the three (3) structures speak for themselves; Comr. Gray said that he would like to see the Town's Nuisance Ordinance enforced.

Town Manager - Finch Street drainage issues

A conference call has been scheduled for tomorrow, March 5, 2009, with two (2) Finch Street property owners to discuss Finch Street drainage issues that the property owners claim were caused by the Town's work in that area.

Town Manager - Conch Street Ocean Outfall Project

Town Manager Cameron provided an update on the Conch Street Ocean Outfall Project. Option 1 has been approved which would award the construction contract as soon as possible and complete the project before Memorial Day. The pre-construction meeting was held this week and the project is moving forward.

From Consent Agenda - Lease/Purchase of Capital Items

The Agenda Summary Sheet concerning the lease/purchase of capital items read in part as follows:

"The Board approved within the budget financing the purchase of replacement vehicles in various departments including a dump truck in Public Works Sanitation, a patrol vehicle in Police, and pickup trucks in Planning, Public Works Facilities, and Ocean Rescue.

'Based on the responses received, Staff recommends that Southern Bank be awarded the financing contract based on the lowest total cost to the Town with interest rates quoted of 2.75% for the three year portion of the debt and 2.75% for the five year portion of the debt with one time fees of $300.00. The total cost, inclusive of interest, over the financing period is $178,234.21. Annual principal payments for the first three years will be $48,736.20 and during the final two years will be $12,636.20. Accrued interest of 2.75% will be due annually with the principal payment with total interest over the five years of $6,453.21. The total amount budgeted for the initial year’s debt payment among all departments is $56,376.

'Attached is the resolution for your consideration."

Town Manager Cameron recommended awarding the financing of the vehicles as requested; the resolution does not recommend the actual purchase of the vehicles as that was previously approved during the budget process by the Board. The request is just for the financing of the vehicles. He commended Senior Mechanic Charlie Bliven and his staff who have maintained the Town's vehicle fleet very well.

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MOTION: Comr. Remaley made a motion to adopt the resolution awarding financing of the listed vehicles to Southern Bank as presented. The motion as seconded by Comr. Oakes which passed 4 - 0 (Mayor Pro Tem Sadler was not present.).

The resolution awarding financing of the vehicles to Southern Bank, as adopted, read in part as follows:

"WHEREAS, the Board of Commissioners approved within the budget financing the purchase of replacement vehicles and equipment in various Town departments; AND

'WHEREAS, the Town of Nags Head through its Mayor, with the consent and approval of the Board of Commissioners, has entered into a contract with Southern Bank for the purchase of capital items to include:

'Planning Pickup truckPublic Works Facilities Pickup truckOcean Rescue Pickup truckPolice Patrol carPublic Works Sanitation Dump truck

'WHEREAS, the said contract, bearing the date _______________ qualifies as a tax-exempt obligation of the Town, pursuant to the Internal Revenue Code of 1986.

'NOW, THEREFORE BE IT RESOLVED, that the Nags Head Board of Commissioners authorizes the aforesaid contract, bearing the date ______________ by and between the Town of Nags Head and Southern Bank together with the amount to be paid thereunder, be and the same are hereby designated as a qualified tax-exempt obligation of the Town for purposes of Section 265 (b) (3) of the Internal Revenue Code of 1986."

BOARD OF COMMISSIONERS AGENDA

Comr. Oakes - Thanked Town Manager Cameron - Dominion Power vegetation removal

Comr. Oakes thanked Town Manager Cameron for addressing the South Nags Head Dominion Power issue concerning vegetation removal.

MAYOR’S AGENDA

Mayor Cahoon - Board Retreat

Mayor Cahoon thanked staff and Board members for a positive Board Retreat; the minutes from the Retreat will become part of the Board's goals.

Mayor Cahoon - Town drop-off point for Albemarle Food Pantry

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Mayor Cahoon reported that the Town has become a drop-off point for the Albemarle Food Pantry and she encouraged everyone to drop off a can of food.

Mayor Cahoon - Advice from Announcer Paul Harvey

Mayor Cahoon spoke of some good advice from Reporter/Announcer Paul Harvey who recently passed away: "And now for the rest of the story". Mayor Cahoon encouraged everyone to find out all relevant information concerning any issue before forming an opinion.

CLOSED SESSION

MOTION: Comr. Oakes made a motion to enter Closed to discuss possible land acquisition (Gilliam Wood property on US 158) in accordance with GS 143-318.11(a)(5); to discuss possible litigation and Beacon Motor Lodge litigation in accordance with GS 143-318.11(a)(3). The motion was seconded by Comr. Remaley which passed 4 - 0 (Mayor Pro Tem Sadler was not present.). The time was 12:33 p.m.

OPEN SESSION

The Board re-entered Open Session at 12:57 p.m. Town Attorney John Leidy reported that during Closed Session the Board stayed within the purposes of the Closed Session that were identified and no action was taken.

COMR. REMALEY - MAY 6, 2009 BOARD MEETING

Comr. Remaley noted that he may not be back from a trip in time for the May 6, 2009 Board of Commissioners meeting.

COMR. GRAY - LEAVING FOR BUSINESS TRIP MARCH 28, 2009

Comr. Gray noted that he would be leaving for a business trip on March 28, 2009 and did not have a definite day that he would be returning.

ADJOURNMENT

MOTION: Mayor Cahoon made a motion to adjourn to a mid-month meeting on Wednesday, March 18, 2009 at 7:30 p.m. in the Board Room which passed 4 - 0 (Mayor Pro Tem Sadler was not present.). The time was 1:00 p.m.

_______________________________

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Carolyn F. Morris, Town Clerk

Approved: ___________________________

Mayor: ___________________________M. Renée Cahoon

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