APPROED  TOWN OF DUCK PLANNING BOARD REGULAR MEETING October 18, 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, James Also present: Director of Community Development Joe Heard, Senior Planner Sandy Cross, Others present: Attorney Robert E. Hornick, Jr. and Great Escapes Real Estate owner Leslie Chair Murray called to order the Regular Meeting of the Planning Board for October 18, 2023 at  Wednesday, October 18, 2023.  Cofield and Council Liaison Randy Morton.  Community Planner. Jim Gould and Deputy Town Clerk Melissa Felthousen  Gilmore 6:30 p.m.  PUBLIC COMMENTS  None. NEW BUSINESS  ZMA 23-001: Application for a Zoning Map Amendment by Attorney. Robert Hornik representing the Ships Watch Association, Inc., property owners, to rezone the property at 1251 Duck Road,  from Single-Family Residential (RS-1)t to Village Commercial(V-C).  Community Development Director Joe Heard gave an overview of the proposal to rezone 1251 Duck Road from Single-Family Residential (RS-1) to Village Commercial (V-C). He explained the owners desire to change the: zoning to accommodate ai real estate: rental/management marketing office that will serve both Ships Watch Community and properties in other neighborhoods. Heard noted that under the current standards, the location can be used to serve the Ships Watch community only. He outlined the details of the current location and described the adjacent properties surrounding 1251 Duck Road. Heard pointed out that the Future Land Use Map designates the subject property as "Cottage Residential Area" and therefore, the request is inconsistent with the recommendation of the Future Land Use Map in the CAMA Land Use Plan. He added that the property abuts a large parcel with V-C zoning and the subject property could provide a logical extension of this zoning district with a boundary at the Ship Watch Drive intersection. Heard also noted the property is sufficient in size and layout that is functional as a V-C property. He asked the board to consider that although the applicant is requesting rezoning for their particular use, the subject property could be redeveloped in the future with any use and in any manner permitted in the V-C district. Heard stated that staff is recommending denial of the    proposed zoning map amendment consistent with the Future Land Use Map and guidance in the Chair Murray disclosed that the law firm representing the applicant also represents a client of Mr. Murray'si in an unrelated action, that is related to something with the Town. He stated the attorney Attorney Robert E. Hornick, Jr, of the Brough Lawn Firm, PLLC in Chapel Hill, NC was recognized to speak. He introduced himself and noted his representation of the Ships Watch Association. Hornick acknowledged Leslie Gilmore, owner of real estate company Great Escapes, who conducts business on the subject property. He noted the company's ongoing real estate services for Ships Watch Association that have occurred at the subject property over the last five years. He described the applicant's1 request for rezoning oft the property as the result oft the' Town's denial of a sign permit application submitted by Great Escapes Real Estate. Hornick pointed out the desire of the applicant is to take advantage of a co-marketing opportunity with a sign for Great Escapes located on the property, in addition to the Ships Watch sign. Hornick asserted there are noj plans to change the use of this one-acre lot. He asserted that the Future Land Use Map is not a static document and that it can be amended. Hornick added that if zoning of the property is Mr. Hornick stated that Ms. Gilmore informed him that Great Escapes has been performing real estate services ini the subject property since 2018 and occasional phone calls and emails regarding business outside of Ships Watch have been handled. He insisted that everything is intended to remain the same, except the additional signage. Hornick reminded the Board members that the prompt forzone change ist to allow signage tol let the public know Great Escapes' location. Hornick described the adjacent V-C properties and noted the subject property would not be an isolated island of V-C amidst residential zoning. He agreed with Heard and noted one must consider the suitability of the property for the full range of use that would be permitted in the V-C district. Hornick pointed out that the subject property is part oft the Ships Watch development andi is subject to the covenants that restrict uses in Ships Watch Community to residential. He explained that Ships Watch allows marketing and this kind of use as well as amenities such as the tennis courts on the subject property. He explained that it would not be a simple matter for Ships Watch, Great Escapes or anybody to change the use of this property without getting the Ships Watch covenants amended. Hornick stated that typically it would take 75% of all members of the Association to amend covenants, which would be no simple task. Rezoning the property would be less ofat threat Member Brenda Chasen questioned if all property owners in the association had been notified of this potential change. Hornick responded that his understanding was that they had been notified. He stated that the Ships Watch Board of] Directors have had several meetings about the potential rezoning over the last couple of months with the first discussions in August. Hornick deferred to Leslie Gilmore to give more detailed answers related to same question. He stated per his conversations with the Ships Watch President and Board Members, that all are aware of the potential rezoning of the subject property. Chasen questioned if the 413 Ships Watch property owners were aware as well. Mr. Hornick stated that based on his knowledge, the President and  adopted Comprehensive and CAMA Land Use Plan for the Town of] Duck.  involved is not Attorney Hornick and it has no bearing on this application.  changed, the Land Use Map might be amended at the same time.  because of those restrictions.    Board Members havel had conversations but cannot guarantee that every one oft the 400 plus owners Member James Cofield inquired about the absence of Ships Watch Board Members and President. Hornick stated there had been a death in the family and therefore the President was unable to attend the meeting. Cofield questioned ift the activity from Great Escapes occurring presently is unrelated toShips Watch. Hornick replied that an occasional email and call is handled at the current location. Cofield questioned if the Board and property owners in Ships Watch were aware of the outside work. Hornick stated yes. Cofield described commercial activity in V-C zoning immediately south of the property and stated the CAMA and Land Use Plan does not lock the Planning Board or Town Council into a decision, but the purpose is to look into the future. Hornick indicated that this property, due to location and historical use, is never going to be used for residential purposes and has been used as reception area. Hornick affirmably requested rezoning of the property. Murray questioned if the intent was to continue business as usual and not feel guilty about fielding outside calls or emails. He asked ift there was any other way to meet that goal considering that use is going on without such a massive change to zoning. Heard stated the staff's understanding is that Real Escapes would like toj provide more services and function like any other real estate office, notj just servicing the Ships Watch community. He added the desire to use iti for a broader purpose requires commercial zoning, which is the breaking point. Hornick explained that Real Escapes would like to proceed with their business without feeling like they are sneaking around. Murray stated the concern he was hearing from the Board members is not the intended use for the property, but the rezoning of the property potentially opening the possibility of a restaurant or any other commercial use at this location. He added that the covenants may limit such use but that is Member Blakaitis stated he was confused and questioned what prompted this application and why. Hornick replied that the purpose is for the existing business to market itself better and install as sign Member Wetzel questioned if all property owners had been notified and if any negative comments had been received. Hornick stated he was not aware of any. Great Escapes ownerLeslie Gilmore was recognized to speak and introduced herself. She added that no one has come in with complaints. She described her business and expressed the desire tol have al business front and sign on Duck Road. Gilmore added that there would be minimal check-in traffic as most rentals are now keyless entries. She noted her lack of awareness of the space not being zoned commercial. Gilmore concluded that she values keeping Duck the same and her desire is to put a sign on the road. Wetzel asked Gilmore if Great Escapes has other locations. Gilmore replied that their former location was in Corolla, however when the lease was negotiated with Ships Watch in 2018, Murray asked Gilmore how many properties outside of Ships Watch are managed by Great  received notice oft this request.  not enough.  for Great Escapes.  their sole location is now at the subject property. Escapes. Gilmore stated 11 properties.    Wetzel inquired if there would be aj practical way for Great Escapes to continue operation without being in violation ifr rezoning was not approved. Gilmore responded that she is willing to explore options as she cares about the Ships Watch community and that it is imperative to have business outside of Ships Watch. She described the importance of having a storefront, her desire to grow Chasen raised concern as to the possible lack of awareness the property owners may have as it relates to the rezoning. She stated her research had indicated that the property owners would prefer the private community to stay the same and continue to have limited traffic. Chasen questioned if the property across the street would be a suitable location. Heard responded that the suggested Murray inquired about Ships Watch prior management company. Gilmore commented that she was not certain as to specific details related to the prior management. She reiterated the goal is to provide value and credibility with ai roadside sign and storefront. She described the minimal traffic that would be generated should the property be rezoned. Murray asked for clarification regarding Ships Watch's need for a realtor and if outside business was needed for Great Escapes business model to work. Gilmore stated that to have a viable business, outside business is necessary. Wetzel inquired about the amount oftraffic that is generated on a weekly basis. Gilmore responded that most of the foot traffic is for Ships Watch related business. She asserted that people feel comfortable having a brick-and-mortar location, but real estate is mostly a virtual business. Wetzel questioned staff as to what would be required from a Town standpoint that may cause issues for Real Escapes to operate in the current space other than rezoning. Heard responded that there is not a proposal to change the layout of the site or business. As the property is already developed, there is nothing else necessary except rezoning. Heard explained the conflict as the applicant wishes to operate their business on al broader scale to perform sales and rentals unrelated Murray questioned staff if parking would need modifications because of rezoning. Heard stated Cofield moved that the ZMA 23-001 application for a Zoning Map Amendment to rezone the property at 1251 Duck Road from Single-Family Residential (RS-1)to Village Commercial (V-C)  as al business and to be honest and compliant in her business's operations.  property is not zoned commercially.  to the Ships Watch community. parking on site is sufficient.  be denied. Chasen seconded. Motion carried 4-1 with Wetzel dissenting.  ORD23-14: Text Amendment to the Definition of Building Height in. Section 156.002 oft the Zoning Ordinance Outlining Standards for Measuring Building Height in Coastal. High. Hazard Areas Heard reminded the Board of the prior discussions related to the amendments proposed in Ordinance 23-14. He noted the amended copy of Ordinance 23-14 that addresses how to measure building height and setting a standard for where that begins in Coastal High Hazard areas which would close the loophole as it relates to building height. The amended section of the definition would read, "In a Coastal High Hazard Area (as defined in Chapter 150), the height measurement    shall begin at the bottom of the lowest horizontal member consistent with the town' s standards for free and clear of obstruction (as defined in Chapter 150). Such measurement shall being no higher Murray suggested two clarifications be made in the language as it relates to the wording of the ordinance. He recommended using the language "highest finished adjacent grade" or "highest pre- disturbance adjacent grade". Murray also recommended consistency across the ordinance giving Cofield asked Murray if graded, existing dirt or imported dirt would increase the pre-disturbed finished grade. Murray questioned staff regarding policies related to imported fill. Cross explained the' Town's limitations and guidelines related toi fill. She stated iti is not typical toi import fill. She added that the pre-disturbance elevation will be different than the finished grade after lot clearing. Cross added that more complicated wording could be added that would address pre- disturbance elevation and finished elevations. Heard commented that he felt there was no benefit to adding pre-disturbance ini the wording. He opined that Murray' 's second point is more valid as Cofield questioned Murray if he noticed enough differences in pre-disturbance or post in his practice. Murray stated he establishes grade and building height with his applications prior to building SO that issues don'ta arise when the house is complete. He added that even though it's not written in the ordinance, during the application process there are permit conditions and the height certificate must match. Murray noted he has used pre-disturbance information in the past to prove material was not imported. Cross stated highest finished adjacent grade" is sufficient wording. At Chasen's request, Murray pointed out the difference between the required two feet (2')offree- and-clear and the additional two: feet (2')ofheight allowance he is suggesting. Chasen questioned if adding said wording would close the loopholes. Cross responded that the wording would Murray asked the Board to consider amending the wording to four feet (4') free and clear. Heard referenced the section of the ordinance, "provided that the top of the lowest floor does not exceed two feet (2') above the regulatory food protection elevation" to explain Murray's proposal. He noted the purpose would be to create consistency in all zones. Murray noted the reduction in flood insurance premiums as aj practical reason toi increase the clearance. To be consistent with standards for other flood: zones, Heard suggested that the measurement could be to the top oft thel lowest floor Cross suggested a compromise of three feet (3') in the V Zones. Murray pointed out the issue is the requirement tol have two feet (2')and that sand moves, therefore making it finished grade helps. He added that it seems unreasonable for the regulation to be exactly two feet (2') and a range makes more sense, SO he also sees the point in establishing an allowance of three feet (3'). Heard  than two feet (2') above the highest adjacent grade."  up to four: feet (4') above the highest adjacent grade rather than two feet (2').  far as consistency with the other flood zones.  eliminate the potential for discrepancies.  and not to the girder below.  suggested it best to be consistent with other: flood zones.    Murray noted that there has not been widespread abuse of the current rules and added that his interest is simply providing the same type of allowance for building height as presently found in other flood zones. He offered an example of how aj property could be developed with additional fill, elevating the house to meet the two-foot (2') free-and-clear requirement, then having an allowance for the floor system similar to other flood zones. Heard pointed out the need to amend the wording to accommodate both these factors. Cross stated that the floor system was already Cross added that from a floodplain perspective, a greater free-and-clear allowance of three feet (3') to accommodate wave action makes sense. Heard raised concerns that the Board is getting outside of the parameters of what the Council authorized the Board to review. He added that the purpose is to align the standards in the CHHA with other flood zones, not to redefine the term and standards for free-and-clear. Heard stated that if the Board would like to see a change in the Blakaitis questioned ift three feet (3')really makes such a change. Murray responded that three feet (3')i is better than two. Chasen added that al little more space would be beneficial. Blakaitis moved to recommend to Council that ORD: 23-14 be approved with the modification "by adding a maximum allowance of three feet (3') above the highest, finished adjacent grade below  accommodated by al building height allowance elsewhere in the ordinance.  definition of free-and-clear, staff could take that to Council.  the structure". Chasen seconded. Motion carried 5-0.  APPROVAL OF MINUTES  Minutes from the September 13,2023, Meeting  Chasen motioned to approve the minutes from September 13, 2023 as presented. Cofield  seconded. Motion carried 5-0. STAFF COMMENTS  Heard gave as summary of the October 4, 2023 Town Council meeting. Cross provided a short overview of various projects going on in the' Town.  BOARD COMMENTS  Chasen noted her approval of safety occurring with new BRIC project.  ADJOURNMENT    Wetzel moved to adjourn the meeting. Blakaitis seconded. Motion carried 5-0. The meeting was adjourned by consensus of the Board Members at 8:02 p.m.  Approved:  Marc  K2  Murray, Chpijrman