APPROVED  TOWN OF DUCK PLANNING BOARD REGULAR MEETING June 14, 2023  The Planning Board for the Town of Duck convened at the Paul F. Keller Meeting Hall on Present: Chair Marc Murray, Vice-Chair Bob Wetzel, Joe Blakaitas, Brenda Chasen and James Also present: Council Liaison Sandy Whitman, Senior Planner Sandy Cross, Director of Community Development Joe Heard, Community Planner Jim Gould and Deputy Town Clerk Chair Murray called to order the Regular Meeting ofthe Planning Board for. June 14, 2023 3at6:30  Wednesday, June 14, 2023.  Cofield.  Melissa Felthousen.  p.m.  PUBLIC COMMENTS  None. NEW BUSINESS  SUP23-005: Application by Un Yong Karl & Eva Chinforaspecial use permifprthe/plowing fill and grading activities at 1156 Duck Road: (1) to allow bulkheads or retaining walls to support and contain fill, which is not permitted underSubsection 156.128(A)(6); (2) to allow up tofour feet (4') offill behind the upper retaining wall where a maximum of three feet (3') is permitted in. Subsection 156.128(A(2)(); and (3) to allow up tofivefeet (5')offill behind the lower bulkhead where a yAnptd)ermaiA in Subsection 156.128(A)(12)4) Director of Community Development Joe Heard stated the subject property features a tall bluff erosion that now threatens the stability of the swimming pool and its surrounding years. concrete located at the top of the bluff. Heard displayed photographs showing the impacts of erosion patio and existing situation. He explained the reason: for the applicant's special use permit ist toj protect these existing improvements by stabilizing the bluff by constructing a sound front bulkhead and retaining wall higher up the bluff. Heard stated the proposed project involves the addition separate off fill and grading to accommodate the construction ofa sound front bulkhead and retaining wall the rear oft the property to support the existing swimming pool and pool decks. Heard described the proposed improvements as including construction of a vinyl sheet bulkhead approximately five feet (5') in height at the base oft the bluff adjoining the Currituck Sound with fill approximately five feet (5) in depth behind to support the retaining wall and construction ofa vinyl sheet retaining wall approximately four feet (4) in height along the middle ofthe bluffwith  adjoining the Currituck Sound that has been subject to erosion over the  He described the  along    fill approximately four feet (4) in depth behind to support the retaining wall. He noted that the bulkhead and retaining wall are proposed to extend across the entire property from north to south. Heard outlined the special use permit criteria for consideration during the Planning Board's review. He detailed the staff findings, noting that staff found the proposal met Findings 1,2,3, and 5. Heard expressed concerns about Finding 4, as the bulkhead could potentially have a negative impact by deflecting erosive wave energy toward the unprotected shoreline to the south. He also noted that the applicant had not submitted a distinct stormwater drainage plan prepared by an N.C. licensed engineer and the Planning Board will need to determine if the submitted Heard explained if the Planning Board members determine that all required findings have been met, then the Board should recommend approval of this special use permit application. Heard stated if recommending approval, staff asks the Board members to consider the following  information is sufficient and the application meets Finding 6.  conditions:  1. The applicant must. submit required application materials and obtain necessary land 2. All areas of land disturbance must be stabilized prior to issuance ofa Certificate of  disturbance and building permits prior to commencing work.  Completion for the project.  Applicant representative, Eli Barrett, of139 Walnut Island, described the erosion occurring at 1156 Duck Road and stated that Four Seasons wasi in favor oft the: special permit approval. Barrett added Member James Cofield motioned to approve SUP 23-005 with the condition an  that a stormwater management plan would be submitted ifi required.  stormwater  acceptable  management plan is prepared by an engineer or other qualified design professional.  Member Brenda Chasen seconded the motion. Motion carried 5-0.  Heard clarified with the applicant that the stormwater management plan needs to be provided Barrett stated he would work to obtain a stormwater management plan, including an evaluation of the potential impacts to the adjacent property's rip rap to the south. He acknowledged that this plan would need to be made available a week prior to the Town Council meeting. SUP 23-006: Application by Rosemary Gordon for a special use permit for the following and grading activities at. 103. Amy Lane: (1) to allow the lower and middle retaining walls fill to eight) feet (8') in height where a maximum of six feet (6) in height is permitted in Subsection up 156.050; (2) to allow the retaining walls to support and containfill, which is not permitted under Subsection 156.128(A)(6); (3) to allow up tos sixf feet (6') offill behind the middle where a maximum of three feet (3') is permitted in Subsection 156.128(4/(12)(); retaining and wall to allow up to eightfeet (8)offilll behind the lower retaining wall where a maximum of three) (4) feet  one  least week prior to the Town Council meeting.  at  (3') is permitted in Subsection 156.128/A)(12)(4)    Director of Community Development Joe Heard stated the subject property at 103 Amy Lane includes a swimming pool, surrounding concrete patio, and wooden deck located to the rear ofthe residence and that the improvements on1 the property appear tol be compliant with Town standards. He described the improvements sited on a bluff that sits at an elevation of approximately 30 feet above mean seal level with an existing bulkhead protecting the western edge oft the property located along the Currituck Sound at an elevation of approximately six feet (6') above mean seal level. He described the erosion to the bluff that now threatens the stability oft the swimming pool and pool deck located at the top and the applicant's desire to protect these existing improvements by Heard outlined the proposed project which involves the addition of fill and grading to accommodate the construction ofthree, tiered retaining walls along the Currituck Sound att the rear of the property to support the existing swimming pool and pool decks. He stated the proposed improvements would include construction ofa wooden retaining wall approximately eight height at the base oft the bluff along Currituck Sound with fill approximately eight feet (8") in depth behind to support the retaining wall; ai retaining wall approximately eight feet (8') in height along the middle of the bluff with fill approximately six feet (6') in depth behind to support the retaining wall; and construction of a retaining wall approximately four feet (4') in height cut into the existing slope along the top oft the bluff. Heard noted that this last element of the project does Heard stated that the proposed retaining walls stretch approximately 60 feet in length across the middle oft the property, located only in the area below the pool and not extending to neighboring properties. He also noted that the existing bulkhead directly adjoining the Currituck Sound will Heard outlined the special use permit criteria for consideration during the Planning Board's review. He detailed the staff findings, noting that stafff found the proposal met Findings and 5. Heard explained that the applicant had not submitted a distinct stormwater drainage 1,2,3,4, prepared by an N.C. licensed engineer and the Planning Board will need to determine if plan the  stabilizing the bluff through a three-tiered system ofretaining walls.  in  feet(8)  not involve fill or require special use permit approval.  remain and not be impacted by the proposed construction activities.  submitted information is sufficient and the application meets Finding 6. Heard explained if the Planning Board members determine that all required met, then the Board should recommend approval of this special use permit findings stated if recommending approval, staff asks the Board members to consider application. the Heard  have been following  conditions:  1.The proposed retaining walls must be certified by al N.C. licensed engineer. 2. The applicant must obtain a CAMA minor permit from the N.C. Division ofC Coastal Management prior to issuance of a land disturbance permit for the fill/grading or 3.7 The applicant must submit required application materials and obtain necessary land 4. All areas ofland disturbance must be stabilized prior to issuance ofa Certificate of Kevin Lineberger, representative for the applicant Rosemary Gordon introduced himself.  permit for the retaining wall.  building  disturbance and building permits prior to commencing work.  Completion for the project.    Applicant, Rosemary Gordon, of 103 Amy Lane described the methods for capturing rainwater she currently uses at her property as well as the importance of trees for helping mitigate stormwater. She displayed photos of and described the ongoing erosion issue that threatens the Chasen questioned Gordon ift the fig trees would be disrupted as a result of this project. Gordon Cofield inquired about Gordon'srainwater practices. Gordon described her use of gutters and rain Cofield questioned Gordon iffill was going tol be used from her property. Gordon: stated the  stability of her property.  stated her plan is to save the fig trees. barrels for capturing rainwater.  would take fill from the front of property to be used in the back.  project  Murray questioned if the applicant would be willing to submit a stormwater management plan. Lineberger requested the stormwater management plan be waived due to his opinion that the bulkhead would improve its current situation, there is no impact on the adjacent properties and would be an undue expense for Gordon. Heard stated the Board does not have the waive ordinance requirements. Murray stated for reasons of consistency with the ordinance authority his recommendation is to move forward with the requirement. Heard explained thej plan does not have tol be completed by al licensed engineer and that other designprofessionals: may offer less expensive Chasen motioned to approve SUP 23-006 with the condition that a stormwater management completed by a design professional be submitted, as well as the applicant adhere to staff plan recommended conditions. Cofield seconded the motion. Motion carried 5-0.  to  options.  OLDI BUSINESS  ORD 23-08: Text Amendment, Adding a Definitionfor) Drug Paraphernalia Sales Heard explained that businesses primarily engaged in drug paraphernalia sales are not in any zoning district in the Town ofDuck. He explained during the past year, staff was contacted permitted by two different businesses about selling items that would be considered includes equipment, products and materials designed or intended drug to introduce controlled substances into the human body. He noted among many items, examples of include pipes, bongs, rolling paper, small spoons, and roach clips. He described drug the challenges paraphernalia for staff to interpret and define what type and how many of these items would constitute a Heard stated staff asked the Town Attorney Robert Hobbs to develop a proposed definition for in the future. He stated as drafted by the Town Attorney, Ordinance 23-08 types ofinterpretations  paraphernalia, which  paraphernalia business.  drug  Drug Parqphernalia Sales toj provide guidance to staffwheni making these  proposes to add a    definition for Drug Paraphernalia Sales in Section 156.002 of the Zoning Ordinance. Heard explained the proposed definition ties back to the State's definition in the General Statutes and provides guidance forir interpretation ofwhether a business is primarily engaged in the sale of drug paraphernalia. He noted that staff recommends approval of the proposed text amendment in Chasen questioned the evaluation of potential businesses seeking approval from the Town and how the ratio for drug paraphernalia is determined, as well as ift the Town requires product lists for new Heard stated the Zoning Ordinance needs to define a use: in order to exclude it. He stated staffwill still have toi interpret its findings under the proposed text amendment, but adding a definition more substance to this interpretation. He described how the businesses that recently considered gives were asked to provide aj product list and some items were required to be excluded. Senior Planner Sandy Cross stated most businesses contact the Town to ask if there is anything needed. She explained if the list of products is questionable, more information is requested Murray questioned the phrase "evidence of ratio" yet no defined ratio is provided. Cofield also questioned thel lack ofa defined: ratio. Heard stated there is no case lawi that saysag given is too much and the proposed change will still require some interpretation on the Town's percentage Given this fact, he added that the Town Attorney is not comfortable with quantifying a part. ratio. Cross stated that by having this general criteria in the ordinance, it gives staff the ability specific to Member Wetzel question the use oft the word "primarily engaged in drug paraphernalia in the staff report and whether any paraphernalia is allowed. Heard responded that the sale of paraphernalia may be okay in small quantities, but not primarily. He stated that the Town is drug not trying to change the state definition of drug paraphernalia because the State supersedes the Town Chasen stated that in her opinion primarily is defined as 51%. Heard reiterated the' Town isn not comfortable with defining an exact ratio or percentage. He explained would  Ordinance 23-08.  business.  stafffrom the potential new business tol help clarify.  by  say there is ar ratio, and then an internal policy can be used as a standard.  ini that regard.  Attorney be difficult to  define a percentage because of the standard to which to square footage or the number of products.  it  such as  measure could be any number of items  Murray agreed with Chasen that primarily implies 51% and stated that if staff feels will be useful to them, he is certain that Town Council will review the  as though it  and address any issues with the Town Attorney.  Planning Board minutes  Member Blakaitis moved to recommend approval of proposed text amendment in Ordinance ORD 23-07: Text Amendment to Sections 30.35 through 30.40 of the Town Code  08 as presented. Wetzel seconded the motion. Motion carried 5-0.  23-  Description and Duties of the Planning Board  Providing a    Heard stated at their public meeting on May 10, 2023, the Planning Board members voted to recommend the following changes to the draft ordinance and Rules ofProcedure: 30.37(A)-I Require full-time residency for Board member eligibility. 30-37B)-Specify Board member eligibility for reappointment for additional terms. Correct a mistaken reference from "bylaws" to "rules ofprocedure". attendance policies, but decisions were not made on these matters.  Ordinance:  Rules ofProcedure:  Heard mentioned there was discussion about the Chair's ability to make motions and  meeting  Heard stated Staffl has provided copies ofPlanning Board ordinances and Rules ofE Procedure from other communities on the Outer Banks and has also provided an article from the UNC School  Government concerning board attendance policies.  of  Heard advised that the Town Attorney is recommending the Planning Board no role in the review of Special Use Permits. He stated more details regarding this recommendation longer have any will bei forthcoming in. July and the Town. Attorney has been invited to attend the. 12th Cofield questioned the rationale for striking the reference to Capital Improvement stated the Planning Board traditionally has not had any role in those decisions as plans. Heard the annual budget process with the Town Council. Cofield questioned if this they are part of be put before the Town Council. Heard stated the Town Council will make the proposition decision should or not grant that authority and Staff is proposing it be removed. Cofield stated the Town Council should give the removal of the bylaws thought, rather than adopting the ordinance. Cross stated that such is standard procedure. Cofield opined that Planning Board attendance policy absences should not exceed consecutive absences and three total in a year. Heard noted that if wording removal, whereas attendance requirements in the ordinance would be Cofield stated the oath of office is not written anywhere and feels it should Heard stated the Town Clerk swears in members after  Board Meeting to answer questions about his proposal.  July Planning  to grant just  more than two have to vote on binding on the Town be a: formal procedure.  is placed in the Board's rules of procedure, then the Planning Board would regarding attendance  Council.  check into code as it relates to swearing ini members. appointment. Cross stated that she will  Chasen agreed with the attendance policy that absences should not exceed consecutive absences and three total in a year. Wetzel stated he attendance policy. He mentioned the ambiguity of excused  more than two  supports some tightening oft the  details would have to be worked out. Murray suggested the verses faithful unexcused and suggested those ordinance but the enumerated number ofa absences be in the rules and attendance language bei in the including faithful attendance as defined in the Board's rules and procedures procedures. similar Cross to suggested  Chasen agreed with Murray and Cross.  Nags Head.    Cofield stated he would like to see something more concrete and attendance rules that can be applied to everyone. Murray agreed with Cross' suggestion to mimic Nags Head's language. He stated he isn'topposed to putting standards in, but at times as a Board, vague things must be dealt with. Cross reiterated having the language in the rules and procedures rather than the ordinance allows for flexibility. Heard explained the Board would have to discuss and make a recommendation before the Town Council would consider removing a member. Wetzel questioned if faithful attendance must be physical and in person. Heard stated virtual attendance is no longer an option per State guidelines. He noted members not in attendance can Murray stated the Board is going to revisit attendance in the future. He questioned the Board if they would like for staff to create a draft based on any of the existing town policies. Cofield Chasen asked for clarification about wording that defines a year. Murray stated that  submit comments ahead oftime but cannot vote,  mentioned that a draft from Staff would be helpful. should be from May to May as the year.  wording  Cross suggested staff could create a spreadsheet for the Board to review regarding attendance  policies and standards from other communities. Murray agreed with Cross'  asked or not.  Staff to also investigate oath ofoffice code.  suggestion. He  Wetzel mentioned the discussion surrounding the chair being permitted to make motion  Cofield recommended it be minimized but not outlawed.  APPORVAL OF MINUTES  Minutes from the May 10,2023, Meeting  Wetzel motioned to approve the minutes from May 10, 2023, as presented. Chasen  Motion carried 5-0. STAFF COMMENTS  seconded.  Summary ofJune 7,2023, Regular Town Council Meeting Heard gave a short summary of the recent Town Council meeting.  Project Updates  Cross gave a short overview of various projects going on in the Town.  BOARD COMMENTS  None.    ADJOURNMENT  Blakaitis moved to adjourn the meeting.  The meeting was Approved:  of the Board Members at 8:29 p.m.  Marc Murfy, Chairman  E