Town of Nags Head



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Planning Board Minutes - DRAFT - April, 2011

Town of Nags Head

Planning Board

April 19, 2011

- DRAFT -
The Planning Board of the Town of Nags Head met in regular session on Tuesday, April 19, 2011 in the Board Room at the Nags Head Municipal Complex.
Chairman Robert Edwards called the meeting to order at 3:30 p.m. as a quorum was present.
Members Present
Clyde Futrell, Robert Edwards, Angelina Lowe, Marvin Demers, Susie Walters, Carl Worsley, Tom Haddon
Members Absent
None
Others Present
Cliff Ogburn, Elizabeth Teague, Dr. Bruce Bortz, Dabni Shelton, Kelly Wyatt, Angela Welsh, Lily Nieberding
Approval of Agenda
There being no changes, Chairman Edwards moved that the Agenda stand approved as submitted.
Approval of Minutes
Chairman Edwards asked that the minutes from the March 2011 meeting be amended by changing the last sentence on Page 4 to read “Mr. Deel does not believe that this is the intent of the ordinance.” Susie Walters moved to approve the minutes as amended. Tom Haddon seconded the motion. The motion carried by unanimous vote.
Report of Board of Commissioners Actions
Zoning Administrator Kelly Wyatt gave the Board an update on recent BOC actions:
Both the Public Hearing on the Site Plan/Conditional Use Application submitted by David Deel and the Public Hearing on the Zoning text amendment submitted by Attorney Crouse Gray to amend the SED-80 Special Environmental Zoning District were tabled until the Commissioners’ April 20, 2011 mid month meeting
The Commissioners approved the preliminary subdivision plat and street design waiver request submitted by Bill Owen with the condition that necessary easements be obtained to loop the water line and that the entire turn radius be paved.
The Commissioners also adopted the zoning text amendment submitted by Village at Nags Head POA to permit beach chair and umbrella rental at private beach access, with the condition that signage not be visible from NC 12 and that the ordinance be revisited in December 2011.

New Business
Consideration of a zoning ordinance text amendment, submitted by Thomas Musika of Beach Cabana Services, to amend Town Code Section 48-405(c)(1).

Zoning Administrator Kelly Wyatt presented a zoning ordinance text amendment submitted by Thomas Musika of Beach Cabana Services. If adopted, the proposed amendment would allow the onsite rental of beach equipment as an accessory use to Fishing Piers located in the CR Zoning District. There are two fishing piers located within the CR District, the Nags Head Fishing Pier and the Jennette’s Pier and North Carolina Aquarium.

Ms. Wyatt explained that the conditions that the applicant has proposed for the rentals are similar to the ones placed upon recently adopted amendments. These include: Storage of beach equipment shall be located westward of the first line of stable natural vegetation and shall not be noticeably visible from the beach; Beach chairs and umbrella’s to be placed upon the beach shall contain no commercial signage, and any other signage shall not be visible from the beach; Placement of beach chairs and umbrella’s shall not restrict or impede the flow of vehicular, pedestrian or emergency service traffic; All exchange of money for rental transactions shall occur inside the principal structure which would be the fishing pier itself; and that Rentals shall be limited to pier patrons.

Ms. Wyatt noted that as long as the rentals are limited to pier patrons only that there is not a need to require additional parking on-site.

Ms. Wyatt also noted that should this zoning ordinance amendment be adopted, the vendor would be required to obtain a Town of Nags Head business license as well as apply for any necessary zoning and building permits.

Ms. Wyatt stated that Staff does not feel that the rental of beach chairs and umbrellas is a use customarily found in conjunction with a fishing pier. Staff finds that the rental of fishing poles, tackle, etc., items to be used upon the pier itself, is customary however the rental of items such as beach chairs and umbrellas which would be taken off of the pier and used upon the nearby beach is not customary.

Ms. Wyatt also explained that Staff found that the proposed amendment is not consistent with the Town’s Land Use Plan in that the Plan prohibits the commercialization of the Town’s ocean beaches. Planning Staff has consistently stated that so long as there is no commercial signage visible from the beach and so long as there is no exchange of money on the beach then it is not deemed commercialization. Fishing piers are generally located east of the first line of stable natural vegetation on the beach and therefore the exchange of money within the pier would be considered commercialization of the town’s ocean beaches and therefore not consistent with the Land Use Plan.

Ms. Wyatt explained that based on their findings Staff would recommend denial of the zoning ordinance text amendment as presented. However, if the Planning Board is inclined to recommend adoption of the text amendment request Staff would ask that consideration be given to including language which would prohibit the visibility of any signage from NC12 and NC1243.

Ms. Wyatt stated that she as well as Mr. Musika and Mark Joyner from the NC Aquarium and Pier were present and available to answer any questions.
Ms. Lowe questioned how they were going to control the rental to pier customers only as a pier is generally open to the general public. Ms. Wyatt stated it would be the Pier’s responsibility to ensure that the people renting the equipment are indeed customers of the pier.
Mr. Edwards pointed out that under the Town’s definition all transactions on a fishing pier could be considered commercialization of the beach. Ms. Wyatt explained that most transactions on a pier are for uses that are found customarily in a pier whereas this particular request is for a use, which would be considered an accessory to the principal use.
Mark Joyner from the North Carolina Aquarium Society spoke in front of the Board. Mr. Joyner stated that Jennette’s Pier opens in about a month and pointed out that there is a lot that is not traditional about this pier. Mr. Joyner stated that the pier will have wind turbines, educational classrooms and a rental space on the second floor in addition to more commonly found services such as food and beverage sales and bait and tackle. Mr. Joyner explained that The Aquarium Society, which is the non profit group he represents, will be handling those operations within the pier house and he feels that the service that Mr. Musika is offering would be a wonderful amenity for their customers. Mr. Joyner also stated that the service would be for pier customers only, as people would have to come into the pier house to rent the equipment.
Mr. Joyner confirmed for Mr. Futrell that it was the Aquarium’s intention that the equipment would be for use on the beach.
Mr. Joyner confirmed for Ms. Walters that the pier would be providing storage which would keep the equipment locked up under the pierhouse or bathhouse and not visible from the beach or highway.
Mr. Joyner confirmed for Mr. Demers that under the Pier’s definition, the rental of the beach equipment would make those renting the beach equipment a patron of the pier and would also encourage them to come into the pier house for the other services such as food and drinks.
Mr. Worsley stated he could foresee the service being used by those staying around south Nags Head as well those staying in several of the condos which are just a short walk away from the Pier. Mr. Musika confirmed for Mr. Worsley that the equipment would be available for hourly and daily rentals only and that there would be some type of labeling on the equipment.
Mr. Futrell expressed concern that if the intent of the rental of beach equipment was to contribute to the convenience of the patrons of the pier by having it be for pier customer use only then the Pier’s definition of patron was somewhat confusing and contradictory.

Mr. Joyner explained that there are many ways to use the Pier and that people will not just go there to fish, but also use it for educational purposes, for food and for shelter from the sun.



Mr. Joyner stated that based on the amenities it will offer, including the rental of beach equipment, that the definition of patron has to be interpreted broader than just people who pay to fish all day.
Mr. Haddon agreed with Mr. Futrell and expressed concern that the request had changed coming into the meeting based on the definition of pier patron.
Mr. Edwards agreed and reminded the Board that two piers would be affected if the proposed text amendment is approved.
Mr. Futrell noted that when the Board discussed a similar proposal for a hotel, it was limited to guests of the hotel only, and that this proposal seemed to move away from that.
Mr. Demers pointed out that one of the conditions of the proposed ordinance was that rentals be limited to pier patrons. However, if anyone can go up there and rent the equipment then it is no longer is a limitation and contradictory to how it’s presented.
Mr. Musika presented his case to the Board. He stated that he has been working with Staff since January of 2011. He views himself as providing an amenity for the principal use and not just as an outside vendor offering an accessory service. He is doing a business but it also helps the Aquarium as well because they will get a percentage of the sale. Mr. Musika also agreed with Mr. Joyner stating that the minute that someone comes into the pier they become a patron of the pier. Mr. Musika believes that the service he provides will be a big draw and entice people to stay and visit and enjoy the pier for longer periods of time as well as an amenity to those that may be renting out the Pier for special events. With regards to the concern about commercialization of the beach, Mr. Musika pointed out that every pier is commercialization of the beach because every pier does business on the beach.
Mr. Edwards explained that the difference was that a fishing pier is a permitted use whereas what Mr. Musika is proposing would be an accessory use. Mr. Edwards stated that he was having a hard time reconciling the rental of equipment for beach use adjacent to the pier as being an accessory use to a pier.
Mr. Haddon expressed concern about parking if people just come to the pier for the purpose of renting equipment and taking it out on the beach.
Mr. Joyner confirmed for Ms. Walters that the Aquarium Society does have the blessing of the aquarium and that they would be installing the point of sale for all the amenities within the pier, including the rental of beach equipment if it is approved.
Interim Planning Director Bruce Bortz reminded the Board that as far as signage goes the code does not make a distinction between profit and non profit entities so even an Aquarium logo would not be allowed. Dr. Bortz also told the Board that there had been considerable discussion of commercialization of the beach at the last commissioners meeting and further stated that at their previous meeting one of the commissioners made it clear that money exchanged on the public beach was commercialization of the beach.
Susie Walters moved to recommend approval of the zoning text amendment with the following changes: 1) Remove the word “noticeably” from Part I, Section g.i. 2) Revise Part I, Section g.ii. to read “Any other signage shall not be visible from the beach or NC 12”. And 3) Strike Part I, Section g.v. to remove the limitation that rentals be limited to pier patrons only.
Clyde Futrell seconded the motion.
Mr. Haddon reiterated his concerns about parking, stating that if instead of restricting the rental of equipment to pier patrons they open it up to all beach goers, although he does not know how that might affect the parking regulation, he does see parking becoming a potential problem.
Mr. Edwards agreed stating that he did not view the rental of equipment for use on the beach as an accessory use to a pier; if the code does not restrict the rental to pier patrons only, then it becomes a principal use and he can’t support it. Mr. Edwards stated approval of this proposal could open the door for other commercialization of the beach.
Ms. Lowe also cannot support the proposal. She sees a big difference between Jennette’s pier and a hotel because non-hotel guests are less likely to go into a hotel to rent equipment. However Jennette’s Pier will have a large volume of people walking through which will be good for the pier but to extend to them the ability to rent equipment for use on the beach would in her opinion add to the commercialization of the beach. Ms. Lowe stated that one of the things that draw tourists to the Town beaches is the fact that they are not commercialized.
Mr. Futrell stated that speaking as a member of the beach road committee and a South Nags Head resident, he views the proposal as an enhancement to the Whalebone District and something that will draw more people to that area of the beach.
Ms. Walters agreed, stating that the proposal is an amenity that adds to the beach-going experience. Ms. Walters does not see the difference between what the applicant is proposing and what they have allowed for other similar requests. Ms. Walters also believes that parking will be self-regulating stating that if there is no parking, people will just go to another beach access.
Mr. Worsley agreed with Ms. Walters; the Pier will be huge attraction for years to come and if they can enhance the experience of its visitors by providing this type of service he sees nothing but positives; he can visualize it as a day-tripper’s destination.
Mr. Demers stated that while he is a supporter of the pier he is also a believer of the Land Use Plan and the LUP discourages commercialization of the beach. Mr. Demers believes that this service would transition a commercial activity that is currently available off the beach onto the beach and would set a precedent for other things.
Being that there was no further discussion, Chairman Edwards called for a vote and the motion failed with a vote of three to four with Robert Edwards, Tom Haddon, Marvin Demers and Angelina Lowe casting the Nay votes.


Discussion
Discussion of side yard setback requirements for corner lots.
This item was presented by Zoning Administrator Dabni Shelton. Ms. Shelton explained that at the March 15, 2011 Planning Board meeting, the Board requested that Planning staff research information, to bring back for their discussion and consideration, lessening the requirement for side yard setbacks for corner lots.

Ms. Shelton explained that through research Staff had discovered consistency with more restrictive side yard setbacks for corner lots as far back as 1966. The Zoning Ordinance Dimensional Requirements in the R-2 Residential District stated that any side yard abutting a street shall be at least 15 feet. That was also found in 1972 as noted in the Staff memo.

Ms. Shelton stated that in the current Town Code Zoning Ordinance for detached single family dwellings and duplex use, on lots located in the R-1, R-2, R-3, C-2 and CR zoning districts, the dimensional requirements for side yard setbacks for corner lots is the same and the language states “that in the case of a corner lot, to ensure adequate sight clearance, the minimum width of the side yard adjacent to the right-of-way shall be no less than fifteen (15) feet”.

Ms. Shelton pointed out that several municipalities within Dare County, North Carolina have similar standards within their zoning ordinances for side yard setbacks for lots adjacent to a street or right-of-way.

Ms. Shelton further stated that since 2008 the Board of Adjustments have heard two requests for variances from Town Code Section 404(d)(5), Dimensional Requirements within the R-3 High density Residential zoning District, Side Yard Setbacks on corner lots. In one case a side yard setback variance for the purpose of sistering pilings was granted only to the extent necessary to form around the horizontal and vertical planes of the planned six pilings. The other request was for a 2.5 feet variance from the minimum 15-feet side yard setback requirement to allow the construction of a proposed porch addition and that variance was denied.

Ms. Shelton explained that to the best of Staff’s knowledge, no one has been denied the right to build a home on a corner lot because of the setback requirement difficulty, due in part that a property owner with a corner lot has the option to designate which is the front and side yard.


Ms. Shelton stated that she was available to answer any questions for the Board.
Mr. Worsley explained that he brought up the topic as a result of a request from a local builder. As the Town builds out there is going to be reconstruction as older homes get torn down on corner lots. The concern is that corner lots can be challenging to build on. He would like to see if the Board would consider some sort of relief. Mr. Worsley pointed out that in Kill Devil Hills the setback is incremental based on the size of the lot. Mr. Worsley is thinking of future development and would like the Board to consider some kind of compromise.
Ms. Walters reminded the Board that they had recently approved some relief as far as heat pumps. She also pointed out that most corner lots don’t have traffic lights so public safety becomes a bigger issue.
Ms. Lowe pointed out stated that in Kill Devil Hills especially the older subdivisions have small corner lots but newer subdivisions have very large corner lots with a good amount of open space.
Mr. Edwards noted that the Town of Duck has a special section on non conforming lots of record. They do give some relief on the smaller lots in those non conforming lots of record but they do not give relief for conforming lots.
Mr. Worsley confirmed for Mr. Haddon that he is thinking more of future reconstruction and remodels/additions. Someone may want to update their house or even demo and rebuild new on a smaller size lot.
Mr. Edwards suggested that Mr. Worsley form a small committee to review the issue and maybe come up with some options. Marvin Demers volunteered to work with Mr. Worsley on the committee.
Ms. Lowe expressed concern about how reducing setbacks might impact Public Safety.
Mr. Demers inquired if the Town Public Safety Department had given an opinion on the topic and if there were any public safety records related to size of the setbacks. Ms. Shelton stated that she had not had any discussions with Public Safety related to the topic but she can. Ms. Shelton stated that she will work with the committee and bring them the needed info.

Appointment of Planning Board member to serve on a committee as it concerns non-profit signs located within the street right-of-way.
Chairman Edwards explained that at their March 21, 2011 Meeting, The Board of Commissioners established a committee to address the issue of nonprofit signs in the public right-of-way and suggest possible ordinance changes, if any, to allow nonprofit signs in the right-of-way. At that meeting the Commissioners requested a volunteer from the Planning Board to serve on the Committee. Angelina Lowe volunteered and was appointed to serve in that committee.
Adjournment
With there being no further business to discuss, the meeting was adjourned at 4:30 p.m.
Respectfully submitted,

Lily C. Nieberding




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