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DRAFT TOWN OF NAGS HEADBOARD OF COMMISSIONERS

REGULAR SESSIONDecember 3, 2003

The Town of Nags Head Board of Commissioners met in the Board Room at the Nags Head Municipal Complex at 9:00 a.m. on Wednesday, December 3, 2003.

COMRS PRESENT: Mayor Robert Muller; Mayor Pro Tem George Farah III; Comr. Doug Remaley;

Comr. Brant Murray; Comr. Anna Sadler; Comr. Elect Wayne Gray; and Comr. Elect Bob Oakes

COMRS ABSENT: None

OTHERS PRESENT: Town Manager Webb Fuller; Town Attorney Ike McRee; Deputy Town Manager Rhonda Sommer; Tim Wilson; Bruce Bortz; Butch Osborne; Dave Clark; Roberta Thuman; Don Bailey; Jeanne Acree; Dave Masters; Jeanne Kramer; Nancy Matthews; Kevin Schwartz; Scheryl Gray; Chuck Blazek; Susie Walters; Jody Crosswhite; Donna Crosswhite; Steve Burch; Harry Thompson; James Wentz; Christine Boyle; Camille Lawrence; Deborah Bryant; Louanne Woody; Jo Fessler; Ralph Calfee; Joe Maione; Bill Owen; Gail Anderson; Charles Evans; Colleen Oaksmith; Jennifer Frost; Matt Artz; Julia LeDeux; and Town Clerk Carolyn Morris

Mayor Muller called the meeting to order followed by a moment of silent meditation and the Pledge of Allegiance.

FESTIVAL OF THANKSGIVING CERTIFICATES OF APPRECIATION

Mayor Muller offered to the Board for consideration a Resolution of Appreciation for the Festival of Thanksgiving Committee.

MOTION: Mayor Pro Tem Farah made a motion to adopt the Festival Resolution of Appreciation as presented. The motion was seconded by Comr. Murray which passed unanimously.

Festival of Thanksgiving Chair Dwight Gregory accepted the resolution on behalf of the entire Festival Committee and all who assisted with the 2003 Festival of Thanksgiving.

The Festival Resolution, as adopted, read in part as follows:

"RESOLUTION OF APPRECIATION

'WHEREAS, the Festival of Thanksgiving 2003 was held November 21-23, 2003,

DRAFT Nags Head Board Meeting MinutesDecember 3, 2003

'WHEREAS, the following volunteers were essential to the success of the Festival: Dwight Gregory; Peggy Saporito; Matt Artz; JoNell Belsie; Al Byrum; Don Bailey; Courtney Quillin; Suzy Barrett; Ralph Barile; Kevin Brinkley; Barbara Minter; Dave Morton; Lisa Ward; Perry White; The Sommer Family; Pat Moore; The Gregory Family; Susan and Alex Boncek plus numerous others and local businesses; AND

'WHEREAS, much time was contributed and sacrifices were made during the preparation of the Festival which was very much appreciated by the Town of Nags Head; AND

'WHEREAS, the efforts of the Festival of Thanksgiving 2003 Committee enabled the entire community to come together and enjoy a fun-filled schedule of events.

'NOW, THEREFORE BE IT RESOLVED that the Board of Commissioners of the Town of Nags Head extends its sincere appreciation to each Festival of Thanksgiving 2003 Committee member for their efforts which resulted in a very successful event from Friday, November 21, 2003, through Sunday, November 23, 2003."

PRESENTATION OF EMPLOYEE OF THE YEAR AWARD

Mayor Muller highlighted some of the accomplishments of the following Employee of the Year (EOY) nominees:

Administrative Services Kim ThompsonPlanning and Development Kim AllenPublic Safety – Police Division Kris MerithewPublic Safety - Fire Division John KennyTown Clerk's Office Kim ThompsonPublic Works Doug Huff

Mayor Muller noted that Doug Huff was not present as he was with his father who was undergoing surgery.

MOTION: Mayor Pro Tem Farah made a motion to approve the Certificates of Appreciation for EOY nominees as presented. The motion was seconded by Comr. Murray which passed unanimously.

On behalf of the Board, Mayor Muller presented the 2003 Employee of the Year plaque to Code Compliance Officer Kim Allen, Planning and Development Department.

REORGANIZATION OF THE BOARD

Town Clerk Carolyn Morris summarized her memo dated November 24, 2003, which read in part as follows:

"REPORT ON RESULTS OF ELECTIONThe official results of the November 4, 2003, municipal election are as follows:

'Position of Commissioner No. of votes % of votes received

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Wayne Gray 342 28%Bob Oakes 320 26%Doug Remaley 317 26%George Farah, III 240 20%

'Officially elected to the Nags Head Board of Commissioners for four (4) years as Commissioner are:Wayne Gray and Bob Oakes.

'OATHS OF OFFICEThe Town Clerk will give the oath of office to Comr-elect Wayne Gray and to Comr-elect Bob Oakes.

'SELECTION OF MAYOR PRO TEM AND OATH OF OFFICEThe Board of Commissioners will elect a Mayor Pro Tem who will then receive the oath of office from the Town Clerk."

Town Clerk Carolyn Morris swore in Comr. Elect Wayne Gray and Comr. Elect Bob Oakes as Nags Head Commissioners.

Doug Remaley and George Farah left their seats and the Board reorganized.

MOTION: Comr. Sadler made a motion to nominate Comr. Murray as Mayor Pro Tem which was seconded by Mayor Muller. It was Board consensus to close the nominations. The motion passed unanimously.

Town Clerk Carolyn Morris swore in Comr. Murray as Nags Head Mayor Pro Tem.

A copy of the oaths of office taken are attached to and made a part of these minutes as shown in Addendum "A".

PRESENTATION OF CERTIFICATES OF APPRECIATION

Mayor Muller read a Resolution of Appreciation for former Commissioner Doug Remaley.

MOTION: Mayor Pro Tem Murray made a motion to adopt the Resolution of Appreciation for former Commissioner Doug Remaley as presented. The motion was seconded by Comr. Sadler which passed unanimously.

The Resolution of Appreciation for Mr. Remaley, as adopted, read in part as follows:


'WHEREAS, Doug Remaley has served the Town of Nags Head as Commissioner from December 6, 1995, until December 3, 2003; AND

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'WHEREAS, his service has been marked by exemplary dedication to the best interests of the Town of Nags Head as he worked for the betterment of the town’s economic, cultural and aesthetic development; AND

'WHEREAS, his performance of the duties and responsibilities of a member of the Board of Commissioners has been characterized by excellent and constructive contributions to municipal government in our Town.

'NOW, THEREFORE BE IT RESOLVED by the Board of Commissioners of the Town of Nags Head, herein assembled in regular session on this third day of December 2003, does hereby express its sincere appreciation and thanks to Doug Remaley for his distinguished service to the community, and highly commends him for the manner in which he carried out his duties and responsibilities as a Commissioner for the Town of Nags Head.

'BE IT FURTHER RESOLVED, that the Board of Commissioners extends him best wishes for continued success as he leaves this Board."

Mr. Remaley said that it has been a pleasure serving the people of Nags Head.

Mayor Muller read the Resolution of Appreciation for former Commissioner George Farah.

MOTION: Mayor Pro Tem Murray made a motion to adopt the Resolution of Appreciation for former Commissioner George Farah as presented. The motion was seconded by Comr. Sadler which passed unanimously.

The Resolution of Appreciation for Mr. Farah, as adopted, read in part as follows:


'WHEREAS, George Farah, III, has served the Town of Nags Head as Commissioner from December 6, 1995, until December 3, 2003; AND

'WHEREAS, his service has been marked by exemplary dedication to the best interests of the Town of Nags Head as he worked for the betterment of the town’s economic, cultural and aesthetic development; AND

'WHEREAS, his performance of the duties and responsibilities of a member of the Board of Commissioners has been characterized by excellent and constructive contributions to municipal government in our Town.

'NOW, THEREFORE BE IT RESOLVED by the Board of Commissioners of the Town of Nags Head, herein assembled in regular session on this third day of December 2003, does hereby express its sincere appreciation and thanks to George Farah, III, for his distinguished service to the community, and highly commends him for the manner in which he carried out his duties and responsibilities as a Commissioner for the Town of Nags Head.

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'BE IT FURTHER RESOLVED, that the Board of Commissioners extends him best wishes for continued success as he leaves this Board."

INTRODUCTION OF NEW EMPLOYEES

Public Works Director Dave Clark introduced new Water Plant Operator, Nancy Loomis, to the Board.

Public Safety Director Charlie Cameron introduced new Police Officer, Shawn McKimmey, to the Board.

Assistant Fire Chief Butch Osborne introduced new Fire Fighter, Matthew Laricos, to the Board.

RECOGNITION OF EMPLOYEE WITH YEARS OF SERVICE

Billy Murray, firefighter with Dept. of Public Safety was recognized by the Board for three (3) years of service with the Town and received a Cross pen with Town emblem.

AUDIENCE RESPONSE

No one spoke during Audience Response.

CONSENT AGENDA

The Consent Agenda consisted of the following items:

- Consideration of Budget Adjustment #5 to FY 03/04 Budget- Consideration of Tax Adjustment Report- Request for public hearing to consider modification to Chapter 22 Zoning

pertaining to Village at Nags Head Architectural Point System- Consideration of Personnel Committee recommendations for minor updates to

the Personnel Policy for clarification- Consideration of annual certification of firefighters

MOTION: Mayor Pro Tem Murray made a motion to approve the Consent Agenda as presented. The motion was seconded by Comr. Sadler which passed unanimously.

A copy of Budget Adjustment #5, as adopted, is attached to and made a part of these minutes as shown in Addendum "B".

A copy of the Tax Adjustment Report, as approved, is attached to and made a part of these minutes as shown in Addendum "C".

The Personnel Committee memo dated November 20, 2003, concerning drug and/or alcohol testing, as approved, read in part as follows:

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"Attached for your review is the Substance Abuse and Controlled Substances portion of the Personnel Policy. The personnel committee is recommending several wording changes to the policy to clarify when drug and/or alcohol testing may be requested/required under the town’s policy.

'In addition, the Personnel Committee is recommending that qualified Law Enforcement be specified as the official to administer alcohol testing as we currently do not have local availability of blood alcohol testing. This wording has been added under Article VI, Section 6, Testing Procedures, Item 4, section (e)."

The annual roster of firefighters, as certified, is attached to and made a part of these minutes as shown in Addendum D".

PUBLIC HEARINGS

PUBLIC HEARING to consider proposed amendments to Section 22-153 Definition of Specific Words and Terms and Section 22-255 Outdoor Lighting of the Nags Head Code of Ordinances to allow soft lighting

Zoning Administrator Courtney Gallop summarized the Planning Board and Planning and Development staff memo dated October 28, 2003, which read in part as follows:

“Ms. Kerstin Everhart, a local restaurant owner has filed the attached zoning text amendments which if adopted would:

Allow a business to install up to three lighted merchandise items along each of its right-of-way frontages as long as they are no farther than 12 feet from the principal building. Staff has reviewed this proposal and has several concerns including the following: The proposed text amendment is not consistent with the 2000 Land and Water Use Plan which states;

“The Town shall recognize and shall take appropriate actions to mitigate the effects of commercial enterprises’ such as light, noise, and visual clutter may have on adjacent residential uses.” In staff’s opinion these amendments as written are likely to exacerbate rather than mitigate the effects of commercial activity on residential uses.

The term stock merchandise is not defined. Staff is unclear as to what this term could encompass. This could include a car, a wave riding vehicle, a desk, a trailer, a bicycle, a rack of t-shirts, or a sofa. Each of these items would look dramatically different and have dramatically different impacts when illuminated. It may be the applicant’s intent that the illuminated items be items currently in stock within a premises. If this is the case, it would be difficult or impossible for staff to enforce this requirement on a regular and consistent basis. The proposed 12 foot maximum distance the merchandise could be from a principal building conflicts with the five foot minimum commercial side yard. This ordinance does not clarify where the merchandise would be located if a building is

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located less than twelve feet from the property line. This could lead to an applicant wanting more than three items on a right of way if they could not utilize the allowed 12 foot clearance from the building. The proposed text amendment lacks language to prevent these items from creating a glare and nuisance to adjacent properties. With respect to the proposed ordinance itself, staff finds that if adopted as written, this ordinance would have a generally negative affect on the Town’s visual appeal and would open the door to a general deterioration of the town’s highly effective and valued lighting and potentially sign regulations.

'Planning Board Recommendation:At their October 21, 2003 Planning Board meeting the Planning Board members discussed this request. The Planning Board members concurred with staff that the language as proposed is too broad and lacks the specificity necessary for the ordinance to be applied as intended by the applicant. The Planning Board members determined that attracting attention to a business is more appropriately a signage issue as opposed to a lighting issue. The Planning Board members voted unanimously not to recommend approval of the proposed text amendment.

'Staff recommendation:Staff strongly recommends against the approval of this proposed text amendment for the reasons stated above."

The applicant, Kerstin Everhart, provided the illuminated palm tree from her restaurant Bushwacker's, to show Board members what she would like displayed on her property.

Notice of the public hearing was published in the Coastland Times on Thursday, November 20, 2003, and on Thursday, November 27, 2003, as required by law.

Mayor Muller announced the public hearing open at 9:43 a.m.

Kerstin Everhart, applicant and owner of Bushwacker's Restaurant; stated that she has received positive feedback from her guests concerning the palm tree outside of her restaurant; many guests use it as a landmark for finding her restaurant as it sits back off the bypass and is not in a brightly lit area; she feels it is a good way to attract guests without lighting up the entire restaurant and it fits with her restaurant’s theme; she praised Kim Allen for his work with her on this proposal; she suggested that the ordinance be modified to indicate that only manufactured items that are meant to be illuminated should be included; she asked the Board for some direction as to how they could help her make it work. There being no one else present who wished to speak, Mayor Muller announced the public hearing closed at 9:48 a.m.

Comr. Gray confirmed with Ms. Gallop that with the proposal presented anything in the store can be lit outside of the restaurant.

Mayor Pro Tem Murray said that he has worked hard to retain old Nags Head charm and that while he is sympathetic to the Everharts’ issues, he is concerned that the proposal

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would allow other retailers to push the envelope too far and become too garish; he is not comfortable with approving the proposal.

Comr. Sadler noted that small businesses in Nags Head are decreasing and she noted that Bushwacker’s Restaurant is located in a very dark area. She asked if staff could come up with some language that would not open the door to everything but would allow a palm tree to be lit up.

Mayor Muller expressed his concern that the proposal would, in effect, allow a new sign and that every stretch of road could contain lighted items.

MOTION: Mayor Pro Tem Murray made a motion to deny the proposal to allow for soft lighting. The motion was seconded by Mayor Muller which passed unanimously.

WELCOME TO TOWN OF KITTY HAWK COMMISSIONER

On behalf of the Board, Mayor Muller welcomed Comr. Doug Seay from the Town of Kitty Hawk.

PUBLIC HEARING to consider proposed amendments to Section 22-153 Definition of Specific Words and Terms, Section 22-251 Off-Street Parking and Loading Requirements, and Section 22-307 C-2 General Commercial Zoning District of the Nags Head Code of Ordinances to allow cafés

Zoning Administrator Courtney Gallop summarized the Planning Board and Planning and Development staff memo dated October 27, 2003, which read in part as follows:

"Jody Crosswhite has submitted a zoning amendment to allow café as a permitted use in the C-2 General Zoning District. The Town’s zoning ordinance does not recognize café as a permitted or conditional use. Such a use under today’s ordinance would be classified as a restaurant and would need to meet all the requirements for restaurants. One of the most stringent conditions for restaurants is the requirement for a twenty-five foot setback when the restaurant is adjacent to a residential zoning district.

'In June of 2001 the Town adopted a buffering requirement for “Commercial Transition Protective Yards” (22-403 (b)). These regulations are applied when certain “high impact uses” abut a residential zoning district. Restaurants are classified as a “high impact use” and therefore must meet a twenty-five foot setback in cases where they abut a residential district. In the regulations all restaurants, regardless of size must meet the transition yard setback requirement. A restaurant with 300 square feet of customer service area would need to meet the same setback a restaurant with 3,000 square feet of customer service area. Mr. Crosswhite has plans to establish a small café and feels that the application of high impact transitional buffer yard setbacks for a small café would be excessive. Staff agrees and supports the proposal as written.

'The proposal limits the amount of customer service area and would prohibit drive up or drive through operations.

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'Planning Board RecommendationThe Planning Board voted six to one to recommend approval of the proposed amendments as presented. The dissenting vote was cast by Bob Edwards. Mr. Edwards felt the creation of Cafe’ as a new use would serve to downgrade our existing restaurant ordinance.

'Staff recommends approval of the proposal."



Jody Crosswhite, applicant; stated that a coffee shop is considered "high impact" by the Town's ordinances; in response to Mayor Muller concerning what would occur at a café site, Mr. Crosswhite explained that a coffee shop would be more appropriate as a café more closely resembles a restaurant.

There being no one else present who wished to speak, Mayor Muller announced the public hearing closed at 10:02 a.m.

Comr. Sadler confirmed with staff that the Health Dept. does not require a grease trap.

Comr. Gray stated that this is a small (less than 400 square feet) business and he wants to help small businesses in Nags Head.

MOTION: Comr. Gray made a motion to adopt the ordinance concerning cafés as presented. The motion was seconded by Comr. Sadler.

Mayor Muller, concerned that a drive-in restaurant service such as the Snowbird Drive-In could be considered a café and be excluded from the buffer yard requirements suggested two (2) modifications: change the name to “coffee shop” and add the requirement that no food is to be prepared on-site other than beverages which would require a wastewater standard and would prohibit the need for a grease trap.

Comr. Oakes confirmed that the name change with no food to be prepared on site would mean that it would primarily be a service area; he agreed with Mayor Muller’s suggestions.

Mayor Muller confirmed with Town Attorney Ike McRee that the changes suggested would not be substantive and would not require another public hearing.

Applicant Jody Crosswhite concurred with the proposed changes.

MOTION: Mayor Pro Tem Murray made a motion to table the vote and to bring back a revised proposal to include the modifications suggested later today under the Mayor’s agenda for consideration. The motion was seconded by Comr. Sadler which passed unanimously.

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PUBLIC HEARING to consider proposed amendments to Section 22-307 C-2 General Commercial District and Section 22-834 Hotel District in The Village at Nags Head relating to hotel development regulations

PUBLIC HEARING to consider proposed amendments to Section 22-307 C-2 General Commercial District and Section 22-834 Hotel District in The Village at Nags Head relating to side yard setbacks for hotel

Mayor Muller explained that both public hearings concerning hotel regulations and hotel side yard setbacks are being combined to allow anyone interested in commenting at either public hearing to comment at one time.

Planner Andy Garman summarized the Planning Board and Planning and Development staff memo dated October 27, 2003, concerning staff's comments on the applicant's proposals. Deputy Planning Director Bruce Bortz summarized the Land Use Plan portion of the memo. The memo read in part as follows:

"In recent years, many of the Nags Head hotels and motels have been replaced with vacation rental homes. The number of hotel rooms is rapidly declining and visitors have fewer options for accommodations, especially options that serve visitors staying less than one week. To respond to this trend, the Board of Commissioners has requested that Staff identify factors affecting hotel development and suggest actions the Town could take to balance the development of single-family homes with hotels/motels to preserve a broader range of seasonal accommodations. At the August 19, 2003 Planning Board meeting, Staff presented two options the Town could pursue to increase the potential for hotel/motel development within the Town. The first option includes revising existing hotel zoning standards that have been identified as potentially prohibitive to hotel development. The second option involves the establishment of a hotel floating zone, which could extend the potential for hotel development beyond the existing commercial zoning districts.

'Option #1 – Existing Hotel StandardsAt the Planning Board meeting, a comparison of zoning standards was provided between hotels and single-family homes (see following page). It was clear that lot width requirements, parking regulations, density requirements, and setbacks provide the greatest disadvantage to hotel development when compared to single-family homes. Another stringent requirement that has a strong impact on the ability to develop non-oceanfront hotels is the provision that hotels have a dedicated oceanfront access for guests. Staff has drafted a revision to these standards that would alleviate some of these requirements and also eliminate the requirement for a dedicated oceanfront access. Additionally, larger room sizes are allowed which will foster the development of hotel suites.

Comparison of Zoning Regulations - Hotels vs. Single-Family Homes

Setbacks

Height Lot Width

Coverage

Fire LaneRequirements

Parking Regulations

Density

CRHotel w/ Front = 60’ 150’ 40% All 4 sides of 1 space per 16

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accessory use

75’ from SVDTSide and rear = 2x height of tallest structure

max 50% w/ TS

bldg. unless alternative life safety plan is approved

unit, 1 space per employee, 75% of parking required for accessory use

units for the first acre + 20 units for each additional acre

Hotel w/o accessory use

Front = 75’ from SVDTSide and rear = 2x height of tallest structure

60’ max

150’ 40%50% w/ TS

All 4 sides of bldg. unless alternative life safety plan is approved

1.2 parking spaces per unit, 1 spaces for each 4 employees

16 units for the first acre + 20 units for each additional acre

Single Family

Front = 30’Side = 8’Rear = 20% of lot depth not to exceed 30’

35’ 60’ 33%45% w/ TS

12’ drive aisle Parking = # of bedrooms minus 2

1 principle building up to 8 bedrooms

C-2Hotel All

setbacks = 1x height of building

60’ 150’ 55%65% w/ TS

All 4 sides of bldg. unless alternative life safety plan is approved

Same as CR 24 units per acre

Single-Family

Front = 30’Side = 8’Rear = 20% of lot depth not to exceed 30

35’ 60’ 33%45% w/ TS

12’ drive aisle Parking = # of bedrooms minus 2

1 principle building up to 8 bedrooms

'Floating ZonesIn addition to evaluating existing regulations and standards affecting hotel development, Staff has also examined the possibility of establishing a hotel ‘floating zone’ within the Town. In brief, a floating zone is a zoning district that is established in the text of the zoning ordinance but is not included on the map until application is made to have the zoning map amended to ‘anchor’ the district on a particular site. The

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site must meet pre-specified requirements to ensure it would be a suitable site for the district and compatible with surrounding land uses. Additionally, a site plan meeting the requirements and conditions established for the district must be submitted concurrently with the rezoning application.

'Staff has drafted text for a hotel floating zone that includes both siting requirements and conditional use requirements for hotels within this new zoning district. Staff would propose that hotels be eliminated as a conditional use in the C-2 and CR zoning districts if a floating zone district were established. Hotels could then be established within the C-2 and CR districts if they met the requirements and conditions established for the floating zone. Siting requirements and conditional use requirements would be established for hotels being proposed within the R-2 and R-3 districts. There would be no additional siting criteria to anchor the proposed floating hotel district on properties already zoned C-2 or CR. Additional siting requirements for R-2 and R-3 properties are as follows:

'1) The parcel to be rezoned must be at least five (5) acres in area.2) The parcel must front on either US 158 or NC 12.3) Access to hotel sites shall not be provided from streets other than US 158 or NC 12.

'The floating zone would provide for a uniform set of conditional use and dimensional requirements for hotel development within the Town. Buffering requirements for ‘high impact uses’ would also apply to hotels which may abut a residential district.Land Use Plan Consistency Review

'Staff has reviewed the 2000 Land and Water Use Plan (LUP) to determine if the attached hotel zoning proposal is consistent with the policies in the plan. The LUP does include statements that would support policies to encourage the preservation and development of hotels. However, the LUP is very specific about limiting the height and density of hotel buildings, especially along the oceanfront. The LUP is also very specific about the requirement that hotels have dedicated oceanfront access. Some of the suggested changes included in the Staff proposal are in direct conflict with the statements in the LUP. The following statements from the LUP reflect the Town’s values regarding the future development of hotels:

Important elements in maintaining our economy are:An oceanfront beach that is accessible and usable, not blocked by large structures (Vision Statement) The Town’s current development requirements allow for hotels and motels to be built on the oceanfront. The Town shall not approve any amendment which would allow for a greater density of units, greater height of buildings or allowing these structures in oceanfront districts where they are not allowed now (R-1, R-2, and SPD-C). (Chapter 7, Beach Plan) As the amount of available vacant oceanfront land diminishes the Town can expect redevelopment of existing sites. It is the Town’s position that the existing oceanfront development regulations adequately address concerns such as building height and density, and that currently allowed and permitted uses adequately represent the desired uses for the oceanfront. (Chapter 7, Beach Plan)

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The Town requires and will continue to mandate that any non-oceanfront hotel or motel shall provide private oceanfront beach access facilities for their guests. (Chapter 7, Beach Plan) The primary form of accommodation for both residents and visitors shall be the single-family home. The Town does not wish to become a community of high density, high rise hotels and condominiums. (Chapter 15, Housing).

'Conversely, the Land Use Plan also recognizes the need to provide and maintain a diverse supply of accommodations but does not establish specific goals or actions to achieve this. In May of 2002, the Board of Commissioners adopted the following revisions to the Town’s Vision statement: “The base of that economy is a diverse supply of accommodations, primarily single-family homes but including hotel and multi-family dwelling units.” Important elements in maintaining our economy are:Accommodations that attract and are accessible to visitors from a wide range of economic and social strata.

'The attached proposal includes provisions that could increase hotel building sizes (i.e., setbacks, parking) and would eliminate the requirement that non-oceanfront hotels provide dedicated private oceanfront access. With this proposal, Staff is attempting to strike a balance between the need for a “diverse supply of accommodations”, including hotels, and the longstanding Town value that we preserve our low density, single-family character. Staff feels strongly that increasing the allowable height for hotels would have a negative effect on this character. The setbacks included in this proposal have been significantly relaxed, however, setbacks for hotels greater than three stories become increasingly more stringent for each story above three.

'Staff is presenting this LUP review for the Board’s thoughtful consideration. Given the current market conditions, Staff realizes the possibilities for future hotel development may depend partially on favorable zoning regulations. If the Board votes favorably for some of the proposed changes that conflict with statements in the LUP, Staff would recommend a revision to the LUP to maintain consistency between the zoning ordinance and our adopted policies.

'Staff would also like to advise the Board of a separate proposal that has been submitted by a private individual to revise hotel standards in the C-2 and the Village Hotel Districts (See Consent Agenda – George E. Goodrich). Among other things, this proposal involves revising the height limit for hotels to 90 feet and lot coverage to 80 percent. Staff feels strongly that a hotel of this size and scale could have a severely negative impact on the character of our Town. This development would be completely out of proportion with anything else on the northern Outer Banks and would possibly resemble the type of development that is more familiar with intensely developed resort communities including Ocean City and Myrtle Beach. If the Board decides that some form of revision is necessary to hotel standards, Staff would urge the Board to first consider and test the standards included in the attached proposal, which are substantially more in accordance with the policies included in the LUP than those included in the referenced proposal.

'Planning Board Recommendation

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The Planning Board at their August 19, 2003 meeting voted 4-1 to recommend approval of changes to hotel standards within the C-2 and CR zoning districts (Proposal #1). They did not recommend approval of the hotel floating zone. Bo Taylor cast the dissenting vote stating he would be in favor of the floating zone.

'Staff RecommendationStaff recommends the attached proposal #2 which establishes a Hotel Floating District and removes ‘hotels’ as a conditional use from the C-2 and CR districts."



Eddie Reed, Nags Head resident; there are already rules in place to allow hotels and he wants to see developers make it work as it exists now with large 8-bedroom plus houses; wants to keep sight of the big picture which means no big buildings.

Camille Lawrence, Nags Head resident; with the existing setbacks, many motels cannot make money with a 60-room hotel; however, a 60-foot height limit will allow a hotel to make money; she also feels a required beach access is a good thing.

Dave Masters; Nags Head resident; finds nothing in the two (2) proposals that he finds acceptable; feels hotels will be rented on a weekly basis and not for a few days at a time; he favors a proposal that would limit hotel height to 60' height with setback limits of ½’ extra for each foot above 35'; lot coverage limited to 55%; beach access to be worked out with oceanfront property owners would be acceptable with a dedicated walkway; big building is okay but tall building is not; is not in favor of the proposed ordinances.

Camille Lawrence, Nags Head resident; if you have a 20' building then require a 10' setback, if you have a 60' building then require a 35' setback plus 1' extra for each 1' of height over 35'.

Jeanne Acree, Nags Head resident; spoke against the proposals as presented.

Susie Walters, Nags Head resident; not opposed to hotels but is opposed to anything over 60' in height which will change the character of the Town; setbacks of 10' is very small and not sure how it would affect safety; feels Land Use Plan was developed over a period of time and feels the proposals are in direct conflict to the Plan; feels there is a mandate from the people to disapprove the proposals.

Louanne Woody, Nags Head resident; has serious concerns about opening the door to 80' – 90' height hotels; urged the Board to keep height at 60' and to limit lot coverage to at least below 70%; in favor of the Board voting against proposals today but to continue to study how best to encourage new hotels.

Ralph Calfee, spoke on behalf of Sea Foam Motel on the oceanfront and Forbes properties on the soundfront; cannot build profitable hotel under current Nags Head

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regulations; in general he supports the proposals; he recommended that for all districts which allows hotels that are less than 35' height to keep district setbacks as listed; soundfront hotels should not be required to have a dedicated access; add accessory uses that are allowed with hotels such as recreational uses; hotel lot coverage should be implemented to the satisfaction of Town and State stormwater regulations and on-site sewage disposal regulations.

Harry Thompson, Nags Head resident; is not in favor of the easing of any regulations to allow more hotels/motels; Town has had good zoning; he noted that there are other hotels/motels in nearby Towns such as Kill Devil Hills; urged the Board to maintain hotel regulations as they currently exist.

Eddie Goodrich, applicant; welcomed new Board members; noted the difference between what is good for the Town and what the Town residents want; he urged the Board to make decisions based on what is best for the Town; just wants to replace what was lost due to Hurricane Isabel – 477 hotel/motel rooms.

There being no one else present who wished to speak, Mayor Muller announced the public hearing closed at 10:49 a.m.

Mayor Muller emphasized that the proposals as presented change setback, height, lot coverage, and ocean access requirements for hotels/motels.

Mayor Pro Tem Murray stated that based on the comments received, height is of the most concern; he is in favor of reviewing setback and lot coverage regulations; he feels that ocean access should be a specific walking distance to the hotel; he cannot agree with the proposals as presented.

Comr. Gray said that he feels there may be room for slight changes in height, lot coverage, setback, even porous parking lots for a break in lot coverage; he recommends a discussion with Planning staff to provide specific direction; he wants to listen to the people and they are against the proposals.

Comr. Sadler suggested that the Board reject both proposals as presented; she feels that there is room for compromise but feels that the Board is not ready at this time to make a decision. She would like to see a workshop with Planning staff, Planning Board and the Board of Commissioners to come up with a proposal that may work and afterwards a public hearing to hear comments on a new proposal.

Comr. Oakes encouraged everyone to obtain a copy of the demographic study from the Outer Banks Tourist Bureau and to note the hotels/motels that have been lost in the area. He feels that any changes made should be made incrementally and that a compromise can be made without giving up all regulations; he feels the Town needs balance and diversity.

Mayor Muller said that a change to the ordinance can be made to allow more hotel/motel rooms in the Town; he is not in favor of 90% lot coverage; he has already seen where engineering has expanded the ability to use lot coverage such as with stormwater. He agrees that accessory uses should be allowed and feels that there

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should be a limit as to where hotels/motels can be built. He suggested requiring some design elements that respect the Town's architectural standards; hotels/motels should be included in the Town’s impact fee schedule; does not think 90’ is an appropriate height but is not sure if 60' is either.

It was Board consensus to schedule a workshop between the Board of Commissioners, Planning Board members and Town Planning staff for Tuesday, December 9, 2003, at 7:30 p.m. in the Board Room. Mayor Muller noted that while the workshop will be a public meeting, it will not include a public comment period.

MOTION: Mayor Pro Tem Murray made a motion to deny all proposals from the applicant and staff as presented. The motion was seconded by Comr. Sadler.

Comr. Sadler confirmed that the workshop is scheduled for Tuesday, December 9, 2003, and to look for a public hearing to be scheduled for the January 2004, mid-month meeting.

CONTINUATION OF MOTION: The motion passed unanimously.

Consideration of waiver request by Colleen Oaksmith for Soundside Road Subdivision

It was Board consensus to move agenda item #22 concerning the waiver request by Colleen Oaksmith for a Soundside Road Subdivision to the current position on the agenda.

Planning Director Tim Wilson summarized the Planning and Development staff memo dated November 24, 2003, which read in part as follows:

"On November 5, the Board of Commissioners heard this waiver request from Ms. Colleen Oaksmith (represented by Seaboard Surveying and Planning) who is the owner of two (2) lots shown on the attached location map and highlighted in yellow. The Board of Commissioners determined that when the Planning Board considered this request on October 21, 2003 they failed to make the required findings of fact to either recommend granting or denying the applicant’s request. A copy of Code Section 18-10 setting forth the required findings is attached. The Board members requested that this item be resubmitted for Planning Board review. Staff’s issues and concerns presented in the remainder of this memorandum are essentially unchanged from the Board of Commissioners’ review conducted on November 5, 2003.

'The combined area of the existing lots is 81,484 square feet. The lots are located south of an existing 20-foot wide, section of Soundside Road that currently terminates north of the two lots. To the west, the subject property abuts the Roanoke Sound and to the east the site abuts a portion of the Old Nags Head Cove residential subdivision. The applicant as stated in her attached waiver and variance request would like to subdivide these lots to create one more lot for a total of three lots. Below is a summary of the

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sections of the subdivision ordinance the applicant requests waivers and variances from and these sections are attached for reference:

'According to Section 18-9 subdivisions are not permitted on land that that does not have access to a public street approved to Town standard. Section 18-93 lists the improvements required to be constructed by the subdivider. The improvements required which the applicant would like waived are:

'Establishment of both street rights of way and streets improved in accordance with the Town’s dimensional and construction standards,

- water lines, fire hydrants, and services in accordance with Town standards,- utility easements if needed.- Section 18-94 requires the subdivider to offer the above improvements to the Town.- Section 18-111 establishes the Town’s street classifications and street standards

by which streets are dedicated and improved.

'The applicant, under the provisions of Section 18-10 (attached), is hereby requesting that the Planning Board recommend that the Board of Commissioners grant them the appropriate waivers and variances related to the provision of a public street and utility improvements to the Town’s standards.

'According to their letter, if the waivers and variances are granted, the applicant would provide a minimal 40 foot right of way with a 40-foot by 40-foot gravel turning area to access the three proposed lots.

'Planning Board recommendation:On November 18, 2003, after seeking the advice of Mr. Donald I. McRee, four Planning Board members heard this item. Mr. Oakes recently resigned his seat on the Planning Board, Mr. Royston was absent, and Mr. Oaksmith abstained from the discussion and vote.

'Mr. Taylor, Mr. Jones, Mr. Shafer and Mr. Edwards considered a lengthy presentation from the applicant, her attorney, and her surveyor, Mr. William Owen. The presentation included letters and other exhibits pertaining to among other things, the deeded history of the subject property and the surrounding lots, The Town’s past involvement with the site and the Soundside Road access easement, possible concessions from Ms. Oaksmith for a standard cul-de-sac, a fire hydrant, and upgraded water lines, and future plans for developing the lots. Should the applicant present a formalized, written proposal to provide improvements such as a cul-de-sac to serve the three lots, a fire hydrant, and larger water lines, staff would need sufficient time to review such a proposal for adequacy and safety.

'The Planning Board members mentioned above evaluated the findings of fact necessary under Section 18-10 to either recommend approval or denial of the waiver request. The Planning Board members did not find sufficient evidence of extraordinary and unnecessary hardship of the property and found that public health and safety would be compromised should the waiver be granted. Mr. Edwards moved to

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recommend denial of the waiver request and Mr. Jones seconded the motion. All four voted in favor of recommending denial of the applicant’s waiver request.

'Staff recommendation:Planning staff, Fire Department and Public Works Department staff has considered this request and has not varied from the original recommendations against the granting of the requested waivers and variances for required street and utility improvements. Attached are comments from Public Works Director Dave Clark and Fire Marshall Kevin Zorc concerning this proposal. The reasons for staff recommendation against the requested waivers and variances follow:

Each lot would be large enough to support the construction of eight bedroom homes. Staff anticipates a heavy demand on the proposed gravel road and turn around from a potentially large number of people and vehicles that would need to use the road and turn around facility. Such potentially high use of this limited facility staff believes would likely lead to safety and access problems. Planning staff concurs with the Fire Marshall that future development may exacerbate needs for a fully improved street capable of providing efficient emergency access and fire hydrant coverage. At the time of the preparation of this memorandum, the applicant has not provided conclusive evidence to document the existence of a continual public right of way from the improved section of Soundside Road to the three proposed lots. Staff concurs with the public works director that the Town should not encourage development where existing water service could be strained and inadequate to serve such development. The proposed 40-foot dedication and turn around terminus would increase the degree of the existing dimensional non-conformity of the existing house on lot 1. In other words, the front yard setback that is now non-conforming at approximately 25 feet would be further reduced to 15 feet if the applicant’s request is granted.

'Most importantly, Section 18-10, Variances and Waivers, specifically requires the making of affirmative findings by the Planning Board and Board of Commissioners in recommending and authorizing waivers and/or variances to the requirements of the Subdivision chapter. Findings must be made that the property owner suffers from an extraordinary and unnecessary hardship resulting from the strict application of the regulations on the subject property. This hardship must arise from a special circumstance or condition of the property. Moreover, even when such circumstances are found to be present, it must still must further be found that the granting of the waiver or variance will not be contrary to the public interest, will not nullify the intent and purposes of the master plan or zoning ordinance, and be determined that the provision of required improvements is not requisite in the interest of public health safety and welfare. Staff maintains that the applicant’s request does not provide evidence of the presence of these conditions, would be contrary to public health and safety if granted, and therefore fails to satisfy the criteria of the Code.

'Staff finds that the applicant fails to make an affirmative case satisfying the variance and waiver criteria set forth under Code Section 18-10 and recommends that the applicant be required to provide all public street right-of-way and street improvements and utility improvements necessary to support the proposed subdivision in accordance with Chapter 18 of the Town Code."

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Mayor Muller explained that the subdivision plat provided for Board review does not meet Town standards and the applicant has requested a waiver from the Town Subdivision Ordinance. He noted further that the Planning Board denied the request because it does not meet the Town's Subdivision Ordinance.

Mayor Muller questioned Town Attorney Ike McRee as to available actions the Board can take. Mr. McRee explained that the Planning Board has made findings of fact and denied the applicant request. The Board of Commissioners is to determine if the Planning Board findings of fact should be confirmed. Mayor Muller read the findings of fact from the Planning Board memo and stated that unless the Board finds differently, then the Board will confirm the actions of the Planning Board.

Bill Owen, Seaboard Surveying; summarized the process that has taken place so far.

Attorney Ike McRee explained that the Planning Board received the same plat received by the Board of Commissioners and considered the offer of a fire hydrant and cul-de-sac.

Mayor Muller explained that the application before the Board is for a subdivision plat which has been discussed by the Planning Board in a variety of forms.

Applicant Attorney Charles Evans distributed to Board members and summarized his letter dated December 3, 2003, which is attached to and made a part of these minutes as shown in Addendum "E".

Town Manager Fuller summarized that the issue is that there are two (2) lots and staff cannot make a determination that there are more than two (2) lots; until the number of lots are determined, the issue concerning a waiver cannot be resolved. He stated that with two (2) lots there is no subdivision issue; with three (3) lots, the developer would have to adhere to the Town Subdivision Ordinance.

Planning Director Tim Wilson stated that the waiver request is what is before the Board now and not any determination concerning if the subdivision is “exempt”.

Applicant Colleen Oaksmith stated that at the preapplication conference, she was informed by staff that their position had not changed and that the road still had to be paved.

Mayor Pro Tem Murray stressed that staff is enforcing ordinances that have been adopted by the governing body.

Mayor Muller summarized suggestions made by the Board:

- No requirement for a paved road but as a trade-off the amount of development on the site will be limited, i.e., 5-bedroom houses

- Street design is to maintain an environmental street if the reduction of development density permits an environmental street standard

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- No objections to using a 2" waterline with a fire hydrant at the intersection

- Funds may be requested in order to administratively do more than what is there for access for Public Works vehicles, etc.

- Include proper stormwater controls

MOTION: Mayor Pro Tem Murray made a motion to table discussion of the Oaksmith Soundside Road Subdivision issue until the January 2004, mid-month meeting when a revised plat has been received for review. The motion was seconded by Comr. Sadler which passed unanimously.

RECESS FOR LUNCH

The Board recessed for lunch at 1:48 p.m.

RECONVENED FROM LUNCH

The Board reconvened from lunch at 2:35 p.m.

APPROVAL OF MINUTES

MOTION: Mayor Pro Tem Murray made a motion to approve the following Board of Commissioners meeting minutes as presented:

October 25, 2003, Isabel Community Debrief SessionNovember 5, 2003, Regular SessionNovember 19, 2003; 11:00 a.m. Adjourned Regular SessionNovember 19, 2003; 7:30 p.m. Adjourned Regular Session

The motion was seconded by Comr. Sadler which passed unanimously.

OLD BUSINESS/ITEMS TABLED FROM PREVIOUS MEETINGS

Update on beach nourishment project – Town Manager Fuller

Town Manager Fuller provided the following update on the federal beach nourishment project:

- The next Dare County Beach Nourishment Committee meeting is scheduled for Tuesday, December 9th

- The Committee is in the process of developing a project agreement with COE; beach access points have to be identified for Phase I – there is a gap in South Nags Head and direction will eventually be needed from the Board

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- There is a commitment to meet the project requirements; the valuation district for local taxes will be developed soon

- Project consultant Lee Wrenn will be in the Board Room on Saturday, December 6th at 10:00 a.m. to meet with oceanfront property owners on the project; staff will also be on hand; an individual letter was forwarded to all oceanfront property owners; maps that delineate the project for both the northern and southern areas are complete and available for public distribution and will be available on Saturday

- Project consultant Lee Wrenn will also be meeting in Kill Devil Hills on February 14th and on February 28th

- Federal budget does not currently include the 3 million dollars needed; only 1 million is available – lobbying efforts will continue; Dare County recently completed a six-month review of the lobbyist firm.

Update on Beach Nourishment - Berm project

Public Works Director Dave Clark summarized the agenda summary sheet concerning the berm project which read in part as follows:

"Attached is a copy of the latest Draft Agreement and Proposal for Design and Construction Administration Services for the town’s Emergency Berm project. This agreement and proposal have been reviewed by the Public Works Director and Town Attorney for completeness and as to form. The first step in the process will be to survey the beach throughout town to determine the availability/lack of sand, particularly within the sites identified in the FEMA Project Worksheet (PW). In addition, tests will be conducted on sand from identified mainland (or other “off beach” sites) to determine their compliance with Division of Coastal Management specifications.

'Glen Hitchcock, with FEMA, has been assigned to oversee all emergency berm projects in Dare County north of Hatteras. After meeting with the Public Works Director on Friday, November 21st, he surveyed the beach and determined that additional protective berm was warranted at the north end of town (between Bainbridge and Eighth Streets). A call to Paul Wilson, FEMA’s Public Assistance Officer for Hurricane Isabel recovery in NC, determined that the additional berm could be included on the existing PW, rather than requiring a separate document."

Mr. Clark distributed a revised page 13 for incorporation into the proposal. He noted that the Town Attorney has some concerns about the last two (2) pages of the scope of work of the agreement.

Mayor Pro Tem Murray expressed his concern about length of time to do the project and if it will be done by April 2004. He spoke favorably about the use of beach grass and sand fence.

Mayor Muller expressed his concern that for real protection more sand has to come into the system; he also stated that this winter the Board owes the emergency beach berm to the oceanfront property owners.

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Comr. Sadler questioned the concerns about the agreement; Attorney Ike McRee said that specific areas of the agreement would be replaced with the Town’s language.

Mayor Muller confirmed with Finance Officer Rhonda Sommer that all costs are reimbursable by FEMA/State and that the Town will be using the fund balance until it is reimbursed. The costs are 75% federal and 25% State/local. Ms. Sommer said that the State has said they will provide the funds although nothing has come forward yet; if not, the Town will be obligated to pay the 25%.

MOTION: Comr. Sadler made a motion to authorize Mayor Muller to sign the contract for the berm project after review/approval by the Town Attorney. The motion was seconded by Comr. Oakes which passed 4 –1 with Mayor Pro Tem Murray casting the NO vote.

Discussion of boarding houses/rooming houses

Mayor Muller presented his memo dated December 18, 2003, to the Board which read in part as follows:

"Following a public hearing on the boarding and rooming house issue I indicated that I would attempt to restate the discussion in a format that might help the Board of Commissioners find an acceptable solution to the problem.

'Let me start with some definitions:

'A boarding house is an owner occupied residence where two or more rooms are rented to up to 2 people per room and where the tenants have access to common facilities such as a kitchen.

'A rooming house is an owner occupied residence where two or more rooms are rented to up to 2 people per room where the tenants do not have access to common facilities such as a kitchen.

'A boarding house is not a home rented directly to a group of individuals. The Town does not regulate this arrangement. A boarding house is not someone staying in one room in a house. A boarding house ordinance would not legalize the conversion of single-family residences into duplexes.

'HistoryThe Town has received complaints about several boarding house operations over the last 10 years. The complaints have generally involved the traffic and parking generated by the use and the transient nature of the tenants of boarding and rooming houses. The comment I have heard most is “We don’t know who is staying there”.

'In response to these complaints the staff developed a zoning ordinance proposal that would have limited these uses to the C-2 general commercial zone and the CR ocean front zone. After substantial discussion the Board of Commissioners instructed staff to develop an ordinance that would allow the uses as conditional uses in the primary

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residential zoning districts. The Board then adopted that ordinance and it is in place today.

'The Town received and processed one conditional use application. After a heated public hearing the BOC denied the application. The process raised concerns about whether any community would accept a boarding or rooming house and whether the current ordinance offered a realistic solution to the problem. At this point the BOC asked staff to bring staff’s initial proposal back for a public hearing. That hearing was held mid-month in Oct. of 2003. Following the public hearing substantial discussion took place but no consensus was reached. This memo is an attempt to provide a framework for the interests raised during that discussion so the board can reach some agreement on how to proceed on this issue.

'Dr. Philip Boyle of the UNC Institute of Government has developed a framework for discussing public issues that involves the use of 4 public values as describe in the following passage:

'What Are Public Values?

'Public problems involve four principal values: liberty, equality, community, and prosperity. These values are present in many documents, including the Declaration of Independence, the Constitutions of the United States and North Carolina, and Martin Luther King, Jr.’s “I Have a Dream” speech. Americans believe strongly in these values, but they often disagree about which value is more important and how to best achieve that value.

'Liberty encompasses freedom, choice, and individuality. It means having personal freedom, expressing yourself as an individual, and making your own choices and decisions free from coercion or constraint.

'Equality includes equity, fairness, and justice. It means feeling that you are treated fairly, that you have equal rights and opportunities, that your vote counts as much as everyone else’s.

'Community encompasses safety, security, and social order. It means feeling connected to and sharing a sense of belonging with people where you live and work. It means feeling safe and secure, and having a decent quality of life.

'Prosperity includes efficiency, economy, and productivity. It means being able to support yourself and your family, having resources available to meet your physical needs, and using resources productively and efficiently.1

'The boarding house rooming house discussion has included all 4 of these public values. I will briefly present the arguments inherent in each value. Please remember that I am not endorsing or proposing any of these views. I will state my position during our discussions.1Boyle Philip, “Public Problems, Values, and Choices” Popular Government Fall 2001, p. 18 ff.https://iogpubs.iog.unc.edu/products.asp?page=pg&category=Popular%20Government%20magazine

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'Liberty: Boarding house regulations unfairly restrict how owners may use their property. The impact of a boarding house is no more or less than that of a family with several teenage children. Owners should be allowed to rent rooms especially when it is necessary for them economically.

'Equality: There is an inherent unfairness in the regulations that multi-party rentals are not covered but a homeowner with a 6 bedroom house who want to rent to 3 Nags Head police officers is covered. The ordinances don’t treat the same impact from different sources fairly.

'Community: Boarding and Rooming houses are disruptive to neighborhoods. They generate traffic and parking problem. They should not be allowed because of the transient nature of the tenants and the impacts on neighbors. The residential zoning districts in town should [not] be burdened with this commercial use.

'Prosperity: Boarding houses provide much needed workforce housing and income for home owners in Nags Head. Without boarding houses how will businesses in town find workers, where will they live. Further, the income from these rentals is important to the homeowners, many of whom could not live in Nags Head with these supplements.

'I hope this brief discussion is helpful in putting this issue in perspective. Dr. Boyle’s article is included in the FYI section of the board packer your reference. It is also available online School of Government web site in the back issues section of Popular Government."

Mayor Muller noted the paragraph concerning "Community" contained an error and should read "The residential zoning districts in town should NOT be burdened with this commercial use."

Comr. Sadler said that she feels that a boarding house is a commercial use and should stay in a commercial district; the difference between a boarding house and a rooming house is the kitchen. She is looking to be able to provide short-term stays for this resort area through the use of rooming houses in residential districts as long as it is not a boarding house.

Comr. Gray questioned the issues/problems caused by rooming houses; Mayor Muller stated that many complaints have been received by the Town from residential areas where rooming houses exist.

Mayor Muller stated that he has no problem with being able to rent two rooms for two people each as long as parking standards and stormwater/wastewater requirements are met. He feels that with a zoning permit, any more than two (2) rooms being rented would turn it into a commercial use.

Comr. Oakes feels there is a definite need for alternative housing and that this is one way the Town can help, but without some type of ordinance in place, staff is powerless to enforce anything.

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MOTION: Comr. Sadler made a motion to table the issue of boarding/rooming houses until the Board's first meeting in April 2004, and to re-evaluate the issue at that time. The motion was seconded by Mayor Pro Tem Murray.

Comr. Oakes questioned if it would be worthwhile for staff to go out and look for violators; Town Manager Fuller explained that historically the Town is complaint-driven, i.e., if staff actively seeks violations, it would be obligated to eliminate them.

CONTINUATION OF MOTION: The motion passed unanimously.

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

Presentation of RFP for development of the Town's On-site Wastewater Management Plan

Deputy Planning Director Bruce Bortz summarized staff's request for proposal for the development of the Town’s on-site wastewater management plan; the summary sheet read in part as follows:

"Staff will be presenting a “request for proposals” (RFP) from Septic Health for the development of a Decentralized Wastewater Management Plan. This Plan is the fourth component of the septic health imitative. The management plan will review and analyze the water quality data, weather data, contain a brief soils analysis, water use analysis as well as an analysis of the septic tank inspection reports the Town has been collecting since the inception of the program. The consultant retained will also address any “hot spots” where follow up bacterial trace tracking may be necessary to pin point specific areas of contamination. The plan will also address what legal options are available to the Town should the Town consider any management options developed by the consultant.

'At the December 3rd meeting staff will present a request for proposals and with Board concurrence these RFP’s would be distributed to qualified firms for consideration. Currently there is $30,000 in the Septic Health budget to begin this project. Staff anticipates that the contract period for development of the plan would begin March 2004 with the final draft plan presented to the Board of Commissioners no later than July 2005. Staff is requesting authorization to distribute this RFP."

It was Board consensus to authorize staff to distribute the RFP and analyze the proposals that are subsequently received.

Consideration of preliminary plat for Atlantic Watch Subdivision

Mayor Pro Tem Murray questioned Town Attorney Ike McRee if Mayor Pro Tem Murray and Comr. Oakes should recuse themselves from the Atlantic Watch Subdivision as they are both involved in a contract/agreement with the owner of the Atlantic Watch

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property. Town Attorney Ike McRee questioned if they would see a financial gain with the approval of the Atlantic Watch Subdivision.

Mayor Pro Tem Murray and Comr. Oakes requested to be excused from the discussion to avoid any possible conflict of interest.

MOTION: Comr. Gray made a motion to excuse Mayor Pro Tem Murray and Comr. Oakes from the Atlantic Watch Subdivision discussion. The motion was seconded by Comr. Sadler which passed unanimously. Both Board members left the meeting room.

Zoning Administrator Courtney Gallop summarized the Planning Board and Planning and Development staff memo dated November 24, 2003, which read in part as follows:

"Seaboard Surveying and Planning, representing Forrest Bartlett has submitted the attached preliminary subdivision plat to create five lots off of the west side of NC 12 at Epstein Drive. To the south the 55,417 square foot parcel abuts the Town of Nags Head Municipal Complex. To the west the site abuts the Village Realty property.

'If approved, the applicant is proposing to develop the lots in accordance with the SF-2 detached single-family designation. The lot sizes and setbacks shown satisfy and exceed the dimensional requirements set forth in Section 22-835 Subsection F.

'In accordance with Section 18-12, no proposed lot would have individual access to NC 12. Rather lots 1 through 4 would utilize two (2) shared access easements, within which shared driveways would be installed by the developer. The shared access easements establishing each property owner’s obligations for use and maintenance and use of the driveways would need to be approved by staff and recorded prior to the issuance of a building permit for any of the four lots subject to the agreements. The zoning ordinance would permit lot 5 and lot 1 to access Epstein Drive provided driveways are located at least 100 feet from the NC 12 intersection.

'No additional fire hydrants or street lights are required of the subdivider in conjunction with this application.

'Planning Board Recommendation:At their meeting of November 18 2003 the 5 members of the Planning Board present that evening voted unanimously to recommend approval of the proposed subdivision plat with staffs recommended conditions. Mr. Bob Oakes resigned his seat and was not present and Mr. Paul Royston was not present to vote at the meeting.

'Staff Recommendation:Staff Recommends that the attached preliminary subdivision plat be approved with the following conditions:1. Prior to issuance of a certificate of occupancy for any lot utilizing a shared access easement (proposed lots 1.2.3.and 4), the necessary easements shall be reviewed by staff and recorded.

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Prior to plat recordation the proposed shared accesses and water meters shall be installed in accordance with the approved driveway detail and all applicable Town standards."

Mayor Muller stated that he does not support the proposed subdivision. He said that the subdivision is proposed for the area where the former Village Playhouse was located. The court decided that the Board of Commissioners does not make the zoning decision for this area and the Board has no choice but to approve it as it meets Town standards. He stated that this is one more case of commercial turning into residential based on the wishes of the property owner.

Comr. Sadler also expressed her concern about this area turning residential from commercial.

MOTION: Mayor Muller made a motion to approve the subdivision plat as presented. The motion was seconded by Comr. Gray which passed 3 – 0 (Mayor Pro Tem Murray and Comr. Oakes were excused.).

Mayor Pro Tem Murray and Comr. Oakes returned to the meeting.

NEW BUSINESS

Report from Artwork Selection Committee

The Artwork Selection Committee did not meet in the month of November 2003.

The memo from Administrative Services dated November 24, 2003, was presented to the Board and read in part as follows:

"The Artwork Selection Committee did not meet this month, however, we would like to bring to the attention of the Board the application of Nags Head Board Policy adopted May 6, 1998 and updated June 4, 2003. This policy calls for the funding of the Artwork Selection Committee in the amount of 15% of the net revenues over expenditures up to a maximum of $20,000. Based on the June 30, 2003 audited financial statements, net general fund revenues over expenditures totaled $643,552 (as shown on page 7).

'For fiscal year 2002, staff was given instructions not to appropriate this funding. Please advise if you wish to have this policy applied for fiscal year ending 2003 and have the Artwork Selection Committee funded in the amount of $20,000."

Mayor Muller asked the Board to approve the replenishment of funds in the amount of $20,000 for the Artwork Selection Committee.

Comr. Sadler commended the Committee's work thus far; she expressed her concern about the funds that may be needed after final cost count from Hurricane Isabel. She cannot support funds for the Committee at this time.

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Mayor Pro Tem Murray commended the Committee's work and has no problem with approving funds again.

Comr. Gray agreed with Comr. Sadler and said that he feels that $20,000 at this time is too much but suggested that adding to the existing $12,000 to balance at $20,000 would be sufficient.

Artwork Selection Committee chair Majid Elbers commented that the difference between the art procurement process for the Justice Center or the Outer Banks Hospital is that the Town’s mandate is to create a permanent artwork collection of Town cultural heritage.

Comr. Oakes appreciates the Committee's work and originally saw a need for it; he questioned if there is an end in sight for the artwork procurement.

Mayor Muller stated that the Committee serves an important part of the community's needs by building an outstanding collection of Outer Banks artwork that the Town needs to continue to build.

MOTION: Mayor Pro Tem Murray made a motion to provide funds to the Artwork Selection Committee line item to equal a total amount of $20,000. The motion was seconded by Comr. Oakes with passed 4 – 1 with Comr. Sadler casting the NO vote.

Report from Citizens Advisory Committee

The report from the Citizens Advisory Committee meeting of November 10, 2003, was presented to the Board which read in part as follows:

"Chair Bob Sanders – Minute approvalMinutes from the October 13, 2003 meeting were approved.

'Town Recreation Site - Planning Director Tim Wilson stated that the Town Recreation site plan has been approved, the CAMA application has been submitted and a variance has been requested from the Coastal Resources Commission for the septic system.

'Linking of Westside Neighborhoods - Mr. Wilson stated the linking of the westside neighborhoods will not have any changes until the construction of the elementary school begins which is scheduled in the near future.

'Condition of South Nags Head Ditch - Deputy Town Manager Rhonda Sommer reported the ditch in South Nags Head is the responsibility of NC Department of Transportation. The Town had the ditch cleaned out to allow better drainage before the hurricane. Since Hurricane Isabel, the Town has had prison labor clean around the ditch area of storm debris and Coastal Contractors has cleaned storm debris out of the ditch.

'Commercial Community Appearance Award - Deputy Town Clerk Michelle Gray distributed the scorecards for the Commercial Community Appearance Award. Each

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member was asked to score the ten nominated sites and forward their scorecards to Michelle by November 24th. MOTION: Chairman Sanders made a motion to implement an award for the most improved commercial appearance site beginning next year; Peter Rascoe seconded the motion. The committee voted unanimously to select a most improved commercial appearance site beginning in 2004.

'Discussion of architectural standards for houses and commercial structures - Planning Director Tim Wilson stated the Board has adopted an architectural standard for homes and is now considering an architectural standard for commercial structures. The Board unanimously passed a motion to adopt the moratorium/ordinance, effective through January 21, 2004. [The moratorium instructs staff to not accept/process commercial development plans on structures exceeding 4500 square feet unless at least 13 development points under the building architecture design elements set forth in Section 22-834(f) are met.]

'New BusinessFestival of Thanksgiving – All were reminded of the festivities beginning with the Opening Ceremony on Friday, November 21, 2003 at the Town Hall front courtyard.

'Proposed Hotel/Motel Regulations - Planning Director Tim Wilson explained that a public comment period to discuss proposed zoning changes to Town hotel/motel regulations will be held at the Board of Commissioners mid-month meeting on November 19th at 7:30 p.m. A regular public hearing will be held on December 3, 2003 to discuss the proposed hotel/motel regulations.

'Motion: Chairman Sanders made a motion for the Citizens Advisory Committee to make a recommendation to the Board of Commissioners to look at making changes other than height and to explore all options i.e. setbacks or accesses. A second was made by Mr. Rascoe.

'Pat Moore – announced the annual Community Watch luncheon will be held on December 4, 2003 at 12:00 p.m. at Penguin Isle to honor the Nags Head Public Safety Department. All are encouraged to attend.

'Susan Boncek – asked Rhonda for an update on the berm that is proposed to be placed on the oceanfront. Rhonda stated the permitting process for the berm with FEMA is moving forward. The Town is working with FEMA to try to extend the approved berm to other deserving areas long the beach."

In response to an inquiry from Comr. Sadler, Deputy Town Manager Rhonda Sommer reported on the condition of the ditch in South Nags Head; she stated that the Public Works Director will be meeting with NC DOT concerning their responsibility for the ditch.

Public Works Director Dave Clark reported that NC DOT acknowledges they have responsibility but that their top priorities are Hurricane Isabel clean-up and the First Flight Centennial celebration. Their crews are currently addressing the shoulder issues on SR 1243. The Town should be provided an updated status some time after the first of the year.

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Consideration of Town Board/Committee appointments

Information contained in the agenda summary sheet for this agenda item was presented to the Board and read in part as follows:

"The following positions on Town Boards/Committees are vacant or soon to expire:Name Board/Committee Expiration DateMargaret Suppler Board of Adjustment January 17, 2004Vacant Board of Adjustment July 28, 2006Max Moore Personnel Griev Bd January 17, 2004David Masters Personnel Griev Bd January 17, 2004Vacant Planning Board January 17, 2004Paul Royston Planning Board January 17, 2004Vacant Citizens Advisory Comm January 2, 2005

'Attached please find a list of persons interested in serving on a Town Board or Committee as well as updated rosters for above-listed Boards/Committees."

Mayor Muller asked Board members to be prepared at the January 2004, mid-month meeting to make Board/Committee appointments.

Comr. Sadler emphasized to the viewing audience the importance of applying to serve on a Town Board or Committee if interested. Mayor Muller noted that applications are also provided and may be submitted via the Town’s web site.

Discussion of Business Licenses

Finance Officer Rhonda Sommer summarized the Administrative Services memo dated November 21, 2003, which read in part as follows:

"Initially and with rapid implementation as a priority, all of the 5,921 parcels within the Town were identified as potential rental properties. The Dare County real estate database was used as the original database from which all procedures were derived.

'All property owners were mailed rental house business license applications in June. Bills were generated in July in Munis. Late letters were mailed in August. In September, all of the properties with building values of zero were removed from Munis. Advanced collection proceeded on the remaining bills for all owners who had not responded to the letters, i.e., attaching rents. In October, all collections processes for Rental Homes stopped. In November, a small percentage of the remaining outstanding rental home business licensees were identified as having duplicate parcel numbers. These duplicates were eliminated from the outstanding bills thereby resulting in a single unpaid bill per parcel. These duplicates were also eliminated if payment was shown. The paid bills were also cross referenced for duplicate parcel numbers to ensure that any over payments were identified for refund. The result of this process was creation of the attached list of properties showing as unpaid as of November 24, 2003.

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'Attached are the following reports: a collection report of 2003 business licenses for both regular businesses and rental homes, and a list of properties that are showing as unpaid as of November 24, 2003."

It was Board consensus that staff move forward with the collection of outstanding privilege licenses with a sensitivity to those whose homes were devastated.

Mayor Pro Tem Murray confirmed with Ms. Sommer that the interest and penalties cannot be waived and must be collected per State Statute.

ITEMS REFERRED TO AND PRESENTATIONS FROM TOWN MANAGER

Town Manager Fuller - Update of RFP Status for South Nags Head Fire Station

Public Safety Director Charlie Cameron provided an update on the progress of the South Nags Head Fire Station and stated that a Request For Proposal for architectural design for the fire station was forwarded to 14 vendors this week. The requested return date/bid opening date is January 9, 2004, with a recommendation to be provided to the Board at the February 2004, Board meeting.

Town Manager Fuller - Lease agreement for UNC-CSI

Town Manager Fuller stated that the Council of State approved the lease forwarded from the Town for the lease of the former Outer Banks Medical Center (OBMC) building. He requested authorization for the Mayor to execute the agreement as soon as possible with an effective date of January 1, 2004.

MOTION: Mayor Pro Tem Murray made a motion to authorize Mayor Muller to sign the contract with the State/UNC-CSI for the lease of the former OBMC building on the condition of a favorable review by the Town Attorney. The motion was seconded by Comr. Sadler which passed unanimously.

Town Manager Fuller – First Flight Centennial update

Town Manager Fuller noted that the Town is prepared for the effects of the First Flight Celebration and has met with all appropriate parties; the garbage schedule is being revised for a summer pickup so trucks will be off the road early; a liberal leave policy is in effect for Town employees for December 17th. Mayor Muller confirmed with staff that a list of the shuttle bus stops will be included on the Town's web site.

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Town Manager Fuller – Business Community Figures from Thanksgiving weekend

Town Manager Fuller provided the following figures from the Thanksgiving Holiday weekend: 24.7% more commercial garbage collection than last year and 159.8% more residential garbage collection than last year. He noted that these figures may contain some storm debris pickups.

Town Manager Fuller – Upcoming weekend storm

Town Manager Fuller summarized the latest information on the upcoming weekend storm.

MAYOR’S AGENDA

Mayor Muller – Cafés and coffee shops ordinance

Mayor Muller brought forward a revised ordinance pertaining to coffee shops prepared by staff in response to the Board's requested changes discussed earlier in today's meeting.

Mayor Muller confirmed with Town Attorney Ike McRee that the proposed changes (renaming "café" to "coffee shop" with a revised definition) are not substantive and do not require another public hearing.

MOTION TO AMEND: Comr. Oakes made a motion to amend the motion to adopt the ordinance with the revised language as presented [renaming "café" to "coffee shop" with a revised definition]. The motion to amend was seconded by Mayor Pro Tem Murray which passed unanimously.

MOTION: The motion to adopt the revised ordinance as presented passed unanimously.

A copy of the ordinance concerning coffee shops, as adopted, is attached to and made a part of these minutes as shown in Addendum “F”.

Mayor Muller - Discussion of Hurricane Isabel Community Debriefing

Mayor Muller stated that the discussion of the Hurricane Isabel Community Debriefing would be presented at the next Board meeting. He asked that Board members provide comments to him prior to that time for incorporation into the background materials.

Mayor Muller - Consideration of 2004 Board Retreat dates

It was Board consensus that the Board Retreat be held on January 13-14, 2004, pending concurrence of facilitators Lalla Sidbury and Pat LaCarter.

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Mayor Muller - Consideration of appointment to Government Access Channel Committee

Mayor Muller asked the Board to appoint him to replace former Mayor Pro Tem Farah on the Government Access Channel Committee.

Comr. Oakes requested information concerning the Channel; Mayor Muller responded that he sees future Committee discussions to include programming of a political nature; revisiting issue of broadcasting candidate forums; and efforts to bring forward a community access channel.

MOTION: Comr. Sadler made a motion to approve the appointment of Mayor Muller as the Town’s representative on the Government Access Channel Committee. The motion was seconded by Mayor Pro Tem Murray which passed unanimously.

Mayor Muller – Taxi Committee

Mayor Muller requested a volunteer to chair the Town Taxicab Committee; Comr. Gray volunteered to work with Town Manager Fuller and Public Safety Director Charlie Cameron on this Committee.

Mayor Muller – Red Light Cameras

Mayor Muller instructed staff to bring forward for discussion at the January 2004, mid-month meeting, information pertaining to red light cameras.

Mayor Muller – Board Room Lobby Sign concerning cell phone use

Mayor Muller directed staff to install a sign in the Board Room lobby asking that cell phones be turned off prior to entering.

Mayor Muller – Welcome to new Commissioners

Mayor Muller welcomed new Commissioners Wayne Gray and Bob Oakes.

BOARD OF COMMISSIONERS AGENDA

Mayor Pro Tem Murray – Welcome to new Commissioners

Mayor Pro Tem Murray welcomed new Commissioners Wayne Gray and Bob Oakes.

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Mayor Pro Tem Murray – Relationship with Bob Oakes and Village Realty

Mayor Pro Tem Murray briefly commented on his relationship with Comr. Oakes and Village Realty to clear any misconceptions: Mayor Pro Tem Murray is a minority owner in Village Realty; Comr. Oakes is a majority owner; and Town Manager Fuller's wife Dorie is a minority owner.

Comr. Gray – Sees no issue working with Mayor Pro Tem Murray and Comr. Oakes

Concerning Mayor Pro Tem Murray's comments about his relationship with Village Realty, Comr. Gray stated that he has no issue working with either Mayor Pro Tem Murray or Comr. Oakes.

Comr. Sadler – Welcome to new Commissioners

Comr. Sadler welcomed the new Commissioners to the Board.

Comr. Oakes – Village architectural review points

Comr Oakes suggested that staff review the architectural design review points and consider a proposal that would allow points for built-in benches similar to the ones at Town Hall.

Comr. Oakes – Glad to be Board member

Comr. Oakes stated that he was glad to be a Board member.

Mayor Muller - Request for Closed Session

Mayor Muller requested a brief Closed Session to consider the employment contracts of the Town Manager and the Town Attorney.

CLOSED SESSION

MOTION: Comr. Oakes made a motion to enter Closed Session to discuss the employment contracts of the Town Manager and the Town Attorney. The motion was seconded by Comr. Sadler which passed unanimously. The time was 5:18 p.m.

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OPEN SESSION

The Board re-entered Open Session at 5:29 p.m.

It was Board consensus to continue to retain the firm Hornthal, Riley, Ellis, and Maland as Town Attorney.

ADJOURNMENT

MOTION: Mayor Pro Tem Murray made a motion to adjourn. The motion was seconded by Comr. Oakes which passed unanimously. The time was 5:30 p.m.

_______________________________Carolyn F. Morris, Town Clerk

Approved: ___________________________

Mayor: ___________________________Robert W. Muller

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