DRAFT TOWN OF NAGS HEAD



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TOWN OF NAGS HEAD

BOARD OF COMMISSIONERS

REGULAR SESSION

July 1, 2009

The Town of Nags Head Board of Commissioners met in the Board Room of the Nags Head Municipal Complex located at 5401 South Croatan Highway at 9:00 a.m. on Wednesday, July 1, 2009.

COMRS PRESENT: Mayor Renée Cahoon; Mayor Pro Tem Anna Sadler;

Comr. Doug Remaley; and Comr. Bob Oakes

COMRS ABSENT: Comr. Wayne Gray

OTHERS PRESENT: Interim Town Manager Cliff Ogburn; Town Attorney John Leidy; Tom Gilliam; Butch Osborne; Ralph Barile; Tim Wilson; Angela Welsh; Kelly Wyatt; Ronnie Ballance; Dave Clark; Ralph Barile; Roberta Thuman; Greg South; Earl (Ray) Midgett; Kim Allen; Dabni Shelton; Bonita Hurdle; Joe Maione; Sally Berra; Eddie Goodrich; James Oehrli; Judah Argaman; and Town Clerk Carolyn Morris

CALL TO ORDER

Mayor Cahoon called the meeting to order at 9:00 a.m. A moment of silent meditation was followed by the Pledge of Allegiance.

COMR. GRAY NOT PRESENT

Mayor Cahoon noted for the record that Comr. Gray was not present.

ADOPTION OF AGENDA

MOTION: Comr. Remaley made a motion to adopt the July 1, 2009 agenda as presented. The motion was seconded by Comr. Oakes which passed 4 - 0 (Comr. Gray was not present.).

AUDIENCE RESPONSE - JOE MAIONE

Joe Maione, Nags Head resident; president of Northridge Subdivision Property Owners Association (POA); at an association meeting this past Monday many issues were discussed and he would like to bring several to the Board's attention: 1) use of the right-of-way - he asked the Board to consider amending the Town Code to clarify that streets and right-of-ways are to be used only for motor vehicles and not for the storing of boat trailers; 2) home occupations - Town Code indicates outside appearance should remain the same as a residential neighborhood; storage equipment is prohibited; he asked the Board to raise the home occupation license fee to be commensurate with regular businesses and to require the home occupation to be subject to inspections; 3) he spoke in favor of Interim Town Manager Cliff Ogburn as permanent Town Manager.

AUDIENCE RESPONSE - SALLY BERRA

Sally Berra, Village at Nags Head Homeowner's Association; after explanation from Mayor Cahoon, Ms. Berra decided to wait for and speak at today's Public Hearing on freestanding signage in the Village at Nags Head.

RECOGNITION OF EMPLOYEES

Police Chief Wayne Byrum introduced Police Investigator Greg South; on behalf of the Board, Mayor Cahoon presented and congratulated Investigator South on receiving the Advanced Law Enforcement Certificate - from the NC Criminal Justice Education Training and Standards Division.

Public Works Director Dave Clark introduced Water Service Supervisor Earl (Ray) Midgett; on behalf of the Board, Mayor Cahoon presented Mr. Midgett with an engraved tie tac and framed Certificate for 20 years of service.

Planning Director Tim Wilson introduced Code Compliance Officer Kim Allen; on behalf of the Board, Mayor Cahoon presented Mr. Allen with a Certificate for 15 years of service.

Planning Director Tim Wilson introduced Zoning Administrator Dabni Shelton; on behalf of the Board, Mayor Cahoon presented Ms. Shelton with a cross pen for three years of service.

CONSENT AGENDA

The Consent Agenda consisted of the following items:

Consideration of Budget Adjustment #1 to FY 09/10 Budget Ordinance

Consideration of Tax Adjustment Report

Approval of Minutes

Consideration of resolution in support of the Nags Head Surf Fishing Club request for the

59th Annual Invitational Surf Fishing Tournament - October 7 - 10, 2009

Consideration of ordinance licensing solid waste collectors (hauler license) - first reading

Request for Public Hearing to consider a zoning ordinance text amendment by Quible & Associates on behalf of the State Employees Credit Union to amend Town Code Section 48-167, Required Parking by Use - to reduce the current parking standard for financial institutions from one parking space per 200 square feet of gross floor area to one parking space per 300 square feet of gross floor area

 

Request for Public Hearing to consider a zoning ordinance text amendment initiated by the Board of Commissioners to amend Town Code Section 48-7, Definition of “Customer Service Area” by removing the phrase “and/or consumption” thus removing areas where food, drink, or other similar items or consumed by the general public from calculated customer service areas.  An alternate ordinance has been included by the Planning Board which would amend the definition of Customer Service Area by removing the phrase “and/or outdoor” thus removing outdoor areas of customer service from the parking requirements - from May 20, 2009 Board meeting

MOTION: Comr. Remaley made a motion to approve the Consent Agenda as presented. The motion was seconded by Mayor Pro Tem Sadler and Comr. Oakes which passed 4 - 0 (Comr. Gray was not present.).

Budget Adjustment #1 to FY 09/10, as adopted, is attached to and made a part of these minutes as shown in Addendum "A".

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

The Resolution in support of the Nags Head Surf Fishing Tournament, as adopted, read in part as follows:

"WHEREAS, the Nags Head Surf Fishing Club is sponsoring its annual Nags Head Surf Fishing Tournament on October 7, 8, 9, and 10, 2009; AND

'WHEREAS, in accordance with Section 8-83 (b)(3) of the Nags Head Code of Ordinances, the Nags Head Surf Fishing Club submitted a request on June 17, 2009 for the Town of Nags Head to issue 282 (3 per team plus 42 for judges and scorers) short-term beach driving permits to the Nags Head Surf Fishing Club to be distributed to participants in its annual Nags Head Surf Fishing Tournament.

'NOW, THEREFORE BE IT RESOLVED by the Town of Nags Head Board of Commissioners that the Town of Nags Head is pleased to offer its assistance for the Nags Head Surf Fishing Tournament again this year.

'BE IT FURTHER RESOLVED as follows:

1. The Town Clerk is authorized to issue 282 short-term beach driving permits to the Nags Head Surf Fishing Club to be distributed to participants in its annual Nags Head Surf Fishing Tournament to be held Wednesday, Thursday, Friday, and Saturday, October 7, 8, 9, and 10, 2009.

'2. These special permits will be valid for a four-day period from Wednesday, October 7, 2009, through Saturday, October 10, 2009.

'3. Only three (3) shall be allowed per team fishing in the tournament.

'4. The Nags Head Surf Fishing Club is responsible for the distribution of all short-term beach driving permits for the 2009 Nags Head Surf Fishing Tournament. No short-term permits for the tournament will be issued by Staff at Town Hall.

'5. The name of the team and town to whom a permit is issued shall appear on each permit.

'6. Prior to the start of the tournament, the Nags Head Surf Fishing Club shall provide the Nags Head Town Clerk with a list showing the team name or tournament official and the numbers of the permits issued to each.

'7. A pamphlet (to be provided by the Town) on Regulations Governing Beach Vehicular Traffic in the Town of Nags Head shall be supplied with each permit distributed by Nags Head Surf Fishing Club.

'8. Each permit shall be displayed on the inside front windshield on the passenger side of the vehicle, even if a normal Nags Head Beach Driving Permit is already displayed.

'9. All three short-term beach driving permits MUST be in the possession of the team at all times. The permits are not transferable.

'10. The Town of Nags Head Beach Driving Ordinance is to be strictly enforced by the Nags Head Police Department.

'11. Should the weather or high tide call for the closure of the beach or a section of the beach, the Town Manager will close the beach."

The memo concerning the first reading of the solid waste haulers ordinance, as approved, read in part as follows:

'First Reading of the proposed ordinance licensing solid waste collectors is on schedule for the July 1st Board of Commissioners meeting. Dare County Attorney Bobby Outten has indicated that participating municipalities approved a solid waste agreement earlier this year and as a part of that agreement each is required to adopt an ordinance requiring haulers in their respective entities to deliver their waste to Republic through the Dare County transfer station.  The attached Hauler License Ordinance is intended to meet that requirement.  

 

'Republic has agreed to extend the date for adoption until September 1, 2009.  In addition, once all have adopted the ordinance, the tipping fee will be reduced. With the First Reading at the July 1st Board meeting, the second reading has been scheduled for the Board's August 5th meeting."

PUBLIC HEARINGS

Public Hearing to consider zoning ordinance text amendment by Judah Argaman to amend Town Code Section 48-862(g), Signage within the Village at Nags Head Commercial-2 District - to allow one freestanding sign not to exceed 16 square feet on a site which meets the development requirements of Town Code Section 48-371(d), Alternative Commercial Exterior Design, regardless of the number of design points attained

Town Attorney John Leidy introduced/opened the Public Hearing concerning freestanding signage within the Village at Nags Head. The time was 9:26 a.m.

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

"Judah Argaman submitted the attached zoning ordinance text amendment application, which if adopted would permit a freestanding sign of up to 16 sq. ft. for businesses located within the Village at Nags Head Commercial-2 District when such business has met all the design requirements of Town Code Section 48-371(d), Alternative Commercial Exterior Design.

'Currently Section 48-862(g) Village Commercial Signage states that one freestanding sign may be located onsite provided that architectural, site and building design standards are adhered to. The permissible area of signage within the Village at Nags Head is governed by a point system whereby the amount of signage allowed is dependent upon the number of design points received by the incorporation of specific design elements, including but not limited to type of siding, type of windows, amount of lot coverage & innovative stormwater measures. As the number of design points earned increases, so does allowable area of signage. For instance a site that earns 16 development points will be permitted a sign of eight square feet. A site that earns 24 or more design points will be permitted a freestanding sign of up to 32 square feet. If a site does not incorporate these design elements and does not earn a minimum of 16 design points no freestanding sign is permitted. This portion of the Code is attached for your review.

'The applicant is proposing an amendment which would grant a commercial business on individual lots within the Village at Nags Head a maximum 16 square foot freestanding for compliance with Town Code Section 48-371(d), Alternative Commercial Exterior Design, regardless of the number of design points earned.

'The requirements of Town Code Section 48-371(d), Alternative Commercial Exterior Design are enforced throughout the Town, including within the Village at Nags Head whereas the requirements of Town Code Section 48-862(g) Village Commercial Signage, applies only to business located within the Village at Nags Head.

'Land Use Plan Consistency Review

Staff finds no inconsistencies between the proposed ordinance and land use plan.

'Staff Recommendation

Staff would submit that the standards of Town Code Section 48-862(g) are in place to help preserve and promote open space, landscaped area, reduce impervious surface and promote design standards indicative of Nags Head style within the Village at Nags Head. These standards were created based upon the Village being a Special Planned Development, therefore the requirements of Village Commercial-2 are different and often times more stringent than that of the Towns C-2, General Commercial District. There are numerous businesses located within the Village at Nags Head that have specifically designed their building so as to earn enough design points to obtain a freestanding sign. Staff would submit that due to the special nature of the Village at Nags Head the applicants request for a 16 square foot freestanding for a structure and site which does not meet the desired design criteria is excessive. Staff would however recommend consideration be given to allowing a smaller sign on those sites which do not earn adequate design points.

'The attached ordinance reflects the applicant’s request that Section 48-862(g) be amended to permit a 16 sq. ft. freestanding sign for commercial development within the Village at Nags Head when the requirements of Town Code Section 48-371(d), Commercial Alternative Exterior Design are met.

'Planning Board Recommendation

The Planning Board, at its May 19, 2009 meeting, voted unanimously to recommend denial of the requested zoning ordinance text amendment."

Judah Argaman, applicant; he stated that he emailed his comments to all Board members yesterday; small businesses are suffering and he would like to install a sign so people know where his business is located; the business is his livelihood and is how he supports his family.

Mayor Pro Tem Sadler asked if he had been informed by the Village of the type/size of signage allowed; Mr. Argaman said that he was not informed; in response to Mayor Cahoon, Mr. Argaman said that the architectural review took place during the construction of his business.

Sally Berra, Village at Nags Head property owners association; she said that she feels the problem lies with Mr. Argaman's architect; the point system at the Village should remain as it maintains the Nags Head architecture and style; for the Village it would not be right to change the rules for one business who may want a larger sign.

Mayor Pro Tem Sadler questioned when would the owner/builder have known about the sign requirements; Mr. Wilson explained that people come in to obtain sign permits after construction has begun; both the Town's ordinance and the Village regulations have to be satisfied; Comr. Oakes stated that the business strip warranted one sign but then the businesses split up.

Mayor Cahoon noted that staff recommended an ordinance modification for smaller signage, if the Board was interested.

There being no one else present who wished to speak, Town Attorney Leidy declared the Public Hearing closed at 9:45 a.m.

Comr. Remaley said that there appeared to be a breakdown in communications between the owner and the architect.

It was Board consensus to direct Planning staff to meet with the Village at Nags Head Architectural Committee to bring back a joint proposal re: signage that would work in Mr. Argaman’s situation – without sacrificing the integrity of the Village.

MOTION: Comr. Remaley made a motion to deny, with the caveat that staff try to help with signage, Mr. Argaman’s request for freestanding signage at the Village at Nags Head. The motion was seconded by Mayor Pro Tem Sadler which passed 4 - 0 (Comr. Gray was not present.).

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

Discussion of request from Eddie Goodrich to amend Town Code 44-251. Sewage tie ons

Planning Director Tim Wilson summarized his memo which read in part as follows:

"Mr. Eddie Goodrich representing KDHWWTP, LLC has requested to address the Nags Head Board of Commissioners regarding the possible amendment of Town Code Section 44-251, Sewage tie-ons. This code section prohibits the connection of sewage treatment facilities to properties and development that such facilities were not originally approved for by the town.

'Mr. Goodrich’s June 18, 2009 letter to Interim Town Manager Ogburn and Mayor Cahoon explaining the nature of his request and a copy of current Town Code Section 44-251 are attached.

'Today Mr. Goodrich wanted to see if there was any interest by the Board to pursue his request to extend his sewage tie-on to the Town's C-3 district from Kill Devil Hills just beyond Harris Teeter."

Eddie Goodrich, applicant; his plant is a re-usable irrigation system; owners in the north end of Nags Head want him to extend his sewer system from Harris Teeter south; Mr. Goodrich questioned if the Town is interested/would allow this extension into the Town's C-3 area. In response to Comr. Remaley, Mr. Goodrich stated that they do not have an odor problem; several commercial businesses in Kill Devil Hills have been added to his irrigation system since last year; in response to Mayor Pro Tem Sadler, Mr. Goodrich said that there is "no way" adding these businesses would max-out his system's capacity.

Mr. Goodrich displayed a diagram of customers currently hooked to his plant; he is not required to offer service to everyone; EnviroTech runs his treatment plant system.

Comr. Oakes pointed out that he has an interest in property in the C-3 District; he feels this is a strong case because of the Area of Environmental Concern (AEC). He feels the plant would provide some good environmental protection and he is in favor of the request.

Comr. Remaley spoke in favor of the central sewage extension request.

Mayor Cahoon expressed her concern that this request, if approved, would open up the door to other areas of the Town; she also expressed concern about the plant changing hands and crossing Town lines - it may eventually mean the entire Town would be in central sewage.

Mayor Pro Tem Sadler said that she feels central sewage is beneficial but also brings forth other problems.

Comr. Oakes said that he feels it would be a good idea to go through the process of a Public Hearing even though the Board may not take any action – He pointed out that he has personal interest in two (2) properties in that area (C-3 District).

Mayor Cahoon said that there is no direction to be given at this time with two Board members in favor and two against Mr. Goodrich’s sewage tie-in proposal. She stated that she would rather discuss this issue when all Board members are present.

OLD BUSINESS/ITEMS TABLED FROM PREVIOUS MEETINGS

Discussion/approval of revised/new Personnel Policies

- from June 17, 2009 Board meeting

Interim Town Manager Cliff Ogburn summarized his memo which read in part as follows:

"Attached you will find six documents to help explain the changes to town policies that were introduced during the 2008/2009 budget discussions. As requested red-line versions are shown of each of the policies.

1. Article IV with changes to Longevity and Career Development. The Board discussed and approved these changes during budget workshops in 2008.

2. Article VI with on call and travel policies added and changes to substance abuse shown.

3. Article VII with the addition of light duty added in.

4. FY 08-09 Town Manager Budget Message

5. Old Travel Policy

6. Old On-Call Policy with marked changes from then Town Manager Charlie Cameron"

Mayor Pro Tem Sadler praised the red-lined format; she confirmed that the career development program is on hold unless the Board decides to re-activate.

Mayor Cahoon mentioned the possibility of a workshop on the 40-hour work week vs the 37.5-hour work week.

Mayor Pro Tem Sadler questioned the substance abuse policy which states that if vehicle damage exceeds $500, then drug testing is required. Attorney Leidy explained that he spoke with the School of Government who pointed out that the amount of monetary damage should determine drug testing but the Town still has the right to drug test at any time, if desired. Mayor Pro Tem Sadler suggested that common sense be used in these situations.

MOTION: Comr. Oakes made a motion to adopt the resolution approving the modified Personnel Policies as presented. The motion was seconded by Comr. Remaley which passed 4 - 0 (Comr. Gray was not present.).

The Town Personnel Policies, as approved, are on file in the Town Clerk's office. The resolution to approve the modified Personnel Policies, as adopted, read in part as follows:

"WHEREAS, the Town of Nags Head Personnel Policies require revisions periodically in order to ensure their compliance with current laws and practices; AND

'WHEREAS, the Board of Commissioners desires to adopt a resolution approving revised/updated personnel policies; AND

'WHEREAS, the Board of Commissioners of the Town of Nags Head is authorized to approve the revised Personnel Policies; AND

'WHEREAS, the following personnel policies/changes have been presented to the Board of Commissioners for its consideration and acceptance:

'Article IV - Longevity policy

Article IV - Career Development policy

Article VI - On Call policy

Article VI - Travel policy

Article VI - Substance Abuse and Controlled Substances policy

Article VII - Light duty policy

'NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the Town of Nags Head that the Interim Town Manager is hereby authorized to implement the revised Personnel Policies as presented."

Discussion of stand-alone vegetable/fruit stands - from May 6, 2009 Board meeting

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

"At their May 6, 2009 meeting the Board of Commissioners approved a text amendment to permit outdoor fresh produce stands as an accessory use to shopping centers in the C2 General Commercial District and in the Village at Nags Head Commercial 1 and Commercial 2 Districts. At that time, the Board stated they would like to see this use broadened to allow a stand alone business on a separate lot with designated parking. The Board directed Staff to prepare an Ordinance permitting outdoor farmers markets (produce stands) as a “stand alone” use in the Town.

'The proposed zoning ordinance amendment would change four provisions of the Zoning Ordinance. The first change would be to Section 48-407(b) to allow farmers markets as a permitted use in the C2 General Commercial District. Section 48-407 was created to provide an area to group and develop commercial facilities that serve the entire community. Some permitted uses in this district are offices, retail establishments, and service establishments such as dance schools, barbershops, restaurants and theaters.

'The next change would be to Section 48-7 to provide a definition for farmers market. As defined, a farmers market is “an establishment primarily engaged in the selling of local seasonal produce and plants, seafood, wines, sauces, cheeses, teas, baked goods, and crafts by one or more vendors. The sale of other items shall be incidental and limited to no more than 10 percent of the display area or 10 percent of sales.” Staff is cognizant that many local farmers, artisans and fisherman could potentially benefit monetarily from a venue in which they could sell their goods, directly to the consumer, throughout the year.

'The third change would be to Section 48-167 required parking by use. Staff has used the same parking standard that would be required of a retail store (1 parking space for every 200 sf of gross floor area) plus parking space for one (1) employee.

'Retail uses are subject to the commercial design standards, Section 48-371, of the Ordinance. Farmers markets are typically open sided buildings which don’t lend themselves to dormers, covered porches and watchtowers and would be exempt from this section of the Ordinance as written. While farmers markets would be exempt from the commercial design standards of the ordinance, as written, Staff maintains they should have to meet the minimum commercial landscaping requirements of the Ordinance.

'Currently the Ordinance allows only one (1) principle building per site (Section 48-76). It is not uncommon to see farmers markets on sites large enough to have multiple buildings. If the Board decides to allow farmers markets to have more than one (1) principle building per site, Section 48-76 of the Ordinance will have to be amended to exempt them from the requirement.

'Staff has gathered information from other municipalities regarding the permitting of produce stands and farmers markets. A majority of the respondents did not allow produce stands. They allowed farmers markets instead. Farmers markets are usually larger than a produce stand and allow multiple vendors to sell produce, plants, wines, sauces, crafts, etc. Chapel Hill and Wilmington simply let vendors set up in a designated parking lot or downtown street on designated days. Raleigh, West Jefferson and Hillsborough have permanent farmers markets which were built on City property. Vendors pay the City a set amount each day to utilize a space at the markets. The Town of Hickory’s farmers market operates two (2) days a week and they do not require a permanent structure be erected. Vendors may use tents. Currituck County requires a farmers market to have a permanent building and 1 parking space for every 1,000 sf of retail area.

'On June 2, 2009 Staff made a site visit to two produce stands in the Town of Duck. As well as the recently permitted Nags Head Produce stand in Nags Head. The first produce stand, The Tomato Shack, is a refurbished shed. The Town permitted the produce stand as a retail use. The Town applied their existing retail parking standard and the produce stand was required to provide three (3) spaces and one (1) employee space for a total of four (4) spaces. The produce stand does not have a bathroom or water. The Town of Duck required the stand owner to provide a written agreement with a business across the street so that the stands employees could utilize their restroom facilities.

'The other produce stand was permitted as an accessory use to a shopping center. The stand does not have running water or restroom facilities as they are provided for within the shopping center. The parking is shared with the shopping center. The requirements for running water and restroom facilities are both building code and health department issues and not zoning.

Staff also paid a site visit to the recently permitted Nags Head Produce stand located at Central Square. The produce stand was permitted as an accessory use to a retail shopping center in the C2 and Village Commercial 1 and Village Commercial 2 districts. The stand is only allowed to operate May 1 through November 1 of each year. The stand size is limited to 400 sf and sales other than fresh produce are limited to 10% of the stand area or 10% of the total sales. The stand is also required to comply with all of the district dimensional requirements such as yard setbacks, lot coverage etc. The stands parking is provided by the existing parking at the shopping center and the signage is limited to 15 sf in size and must be attached to the stand.

'Per the Board's request, Staff is forwarding a draft Ordinance for your consideration. If the Board wants to formally consider an ordinance change to permit this use, the Board must make a motion to initiate the text amendment process.

'Attached is the Draft farmers market Ordinance for your review and discussion. Staff has also attached the PowerPoint presentation. Staff will also present the PowerPoint presentation at the July 1, 2009 Board of Commissioners meeting."

MOTION: Comr. Remaley made a motion to initiate the text amendment for stand-alone vegetable/fruit stands modifying "floor area" to read "covered area of the establishment" or "use area". The motion was seconded by Mayor Pro Tem Sadler which passed 4 - 0 (Comr. Gray was not present.).

NEW BUSINESS

Consideration of Personnel Policy modification to incorporate new FMLA update

Human Resources Coordinator Bonita Hurdle summarized the agenda summary sheet which read in part as follows:

"Attached is a draft FMLA policy with required updates regarding Military Exigency.  This revised policy is provided to the Board of Commissioners for their review and approval and will bring the Town into compliance with required posting.  The previous/current FMLA policy is also attached for your information."

MOTION: Comr. Oakes made a motion to adopt the updated FMLA policy which incorporates military exigency, as presented, for inclusion in the Town’s Personnel Policy. The motion was seconded by Comr. Remaley which passed 4 - 0 (Comr. Gray was not present.).

The updated FMLA policy section, as approved, read in part as follows:

"Military Exigency is a qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military service member (reserve or national guard) under a call or order to federal active duty in support of a contingency operation. Qualifying events are:

1. deployment of service member with seven or fewer days notice;

2. military ceremonies and events such as family-assistance or informational programs related to the family member’s active duty or call to active duty;

3. urgent, immediate childcare or arranging for alternative childcare for the children of service members;

4. attending school or daycare meetings relating to the child of service member;

5. making financial or legal arrangements related to a family member’s active duty status or call to active duty; or

6. post-deployment activities for a period of ninety days after the termination of the service member’s active duty status.

'Military Caregiver Leave: An employee whose spouse, son, daughter, parent or next of kin is a current service member who is undergoing treatment, therapy, recuperation or outpatient treatment or has temporary disability retirement for injury or illness sustained in the line of duty, is eligible for 26 weeks of leave in a single 12 month period. During a single 12 month period, the employee is eligible for a total of 26 weeks of all types of FMLA leave."

Consideration of Wooten design for National Park Service waterline replacement

Public Works Director Dave Clark summarized his memo which read in part as follows:

"For several years, representatives of the town have asked local National Park Service – Outer Banks Group (OBX Group) officials to seek funding to replace the water distribution system within the portion of the Cape Hatteras National Seashore (CHNS) served by the town’s water system. These requests resulted from several deficiencies in the current system. This is the same system that was in service when the town first began serving the portion of the CHNS between the south end of Nags Head and Oregon Inlet. The system is old and hard to repair. It is constructed of Asbestos Cement pipe and, while no meter is located at the south end of town which would allow us to measure the total amount of water entering NPS property, the amount of lost water (for which no bill is paid) is reliably estimated to be considerable. Available plans do not show all portions of the system. The waterlines do not follow the road system in all areas, and some sections go cross-country in unknown paths. In addition, the line to the Bodie Island Lighthouse is only a 4-inch diameter pipe, too small to provide adequate fire suppression in the event of a fire at the Keeper’s Quarters/Museum/Gift Shop, or Oil House. The lack of adequate fire flows in certain areas, led to the Town to allow the agreement for fire protection within the northern portion."

Mayor Cahoon stated that her biggest concern is the Park Service's failure to sign the Fire Service Contract.

Mr. Clark explained that there are 2.4 miles of waterline associated with the project - the first phase leads to Coquina Beach and the Bodie Island Lighthouse.

MOTION: Mayor Pro Tem Sadler made a motion to approve the proposal for the National Park Service waterline replacement with funding to come from water fund retained earnings in an amount not to exceed $36,800. The motion was seconded by Comr. Oakes.

Comr. Remaley questioned when the project would take place; Mayor Cahoon directed the Interim Town Manager, Town Attorney, and the Fire Chief to expedite this project with the Park Service.

CONTINUATION OF MOTION: The motion passed 4 - 0 (Comr. Gray was not present.).

Discussion of possible funding source, to include sales tax increase, for beach nourishment

Mayor Cahoon reported that she has been approached by Sen. Basnight who questioned if Nags Head would be interested in a 1% sales tax for beach nourishment.

Comr. Oakes questioned if the Town could use occupancy or another tax rather than sales tax; Mayor Cahoon said that she was not given that option.

Finance Officer Kim Kenny is to obtain occupancy and meals tax figures from last year for Board review.

Mayor Cahoon stated that a detailed discussion on a possible sales tax increase for beach nourishment will take place at the next Board of Commissioners meeting.

Consideration of resolution accepting transfer/assignment of Charter restructuring

Interim Town Manager Cliff Ogburn summarized his memo which read in part as follows:

"We have been receiving information from Charter Communications for sometime concerning their Chapter 11 reorganization process. Chapter 11 is specifically designed to enable companies to continue to operate while they develop and implement financial restructuring plans. This plan will ultimately result in the cancellation of current stock which will be replaced by new stock.

'Pursuant to federal law, a request for transfer or a change of control of a cable franchise must be transmitted to a municipality on Federal Communications Commission Form 394.  Once this form is transmitted to a municipality under the federal Cable Act, a municipality has 120 days to complete its review of the proposed transaction and act on the request for transfer or change of control of the cable franchise. FCC Form 394 is designed to provide you with the relevant information needed to assess the financial, legal, and technical qualifications of the various equity holders after the restructuring.

'Town Attorney Leidy believes that you will need to pass a resolution accepting the transfer/assignment of Charter’s Chapter 11 plan. This resolution will have no affect on revenues that the Town receives through its franchise agreement.

'Attached is a letter from Mark Brown, Senior Director and Counsel of Legal and Government Affairs for Charter, before and after plans of the restructuring, a sample resolution, FCC Form 394, a sample letter if you choose to take no action. Also attached is information on the various equity holders."

MOTION: Comr. Remaley made a motion to adopt the resolution accepting the transfer/assignment of Charter Communications restructuring as presented. The motion was seconded by Mayor Pro Tem Sadler which passed 4 - 0 (Comr. Gray was not present.).

The Charter restructure resolution, as adopted, read in part as follows:

"WHEREAS, [Charter Entity] ("Franchisee"), an indirect, wholly-owned subsidiary of Charter Communications, Inc. ("Charter"), owns a cable television system (The "System") in the [LFA Type] of [LFA Name], [State] (the "Franchise Authority"); AND

'WHEREAS, on March 27, 2009, Charter and certain of its subsidiaries filed voluntary petitions in the United States Bankruptcy Court for the Southern District of New York ("Bankruptcy Court") seeking relief under the provisions of Chapter 11 of Title 11 of the United States Code in order to effectuate a financial restructuring (Case No. 09-11435).

'WHEREAS, pursuant to the terms of agreements entered into between Charter and its key bondholders, Charter's current Class A Common Stock and Class B Common Stock will be cancelled and replaced with new voting stock owned by Paul G. Allen and such bondholders, as described in filings with the Bankruptcy Court (the "Transaction"), copies of which have been provided to the Franchise Authority.

'WHEREAS, the Franchise Authority has concluded that its approval is necessary for the above described Transaction and has been provided a FCC Form 394 and related information for such Transaction; AND

'WHEREAS, the Franchise Authority has considered and approves of the Transaction described above.

'NOW, THEREFORE IT IS RESOLVED AS FOLLOWS:

'1. The foregoing recitals are approved and incorporated herein by reference.

'2. The Franchise Authority consents to the Transaction described herein.

'3. This Resolution shall be deemed effective upon adoption.

'4. This Resolution shall have the force of a continuing agreement and the Franchise Authority shall not amend or otherwise alter this Resolution without the consent of the Franchisee."

ITEMS REFERRED TO AND PRESENTATIONS FROM TOWN ATTORNEY

Town Attorney John Leidy - Revised dangerous animal ordinance

- from June 3, 2009 Board meeting

Town Attorney John Leidy summarized his memo which read in part as follows:

"At the June 3, 2009 meeting, we presented a proposed ordinance to regulate dangerous animals within the Town limits as authorized by NC General Statute 67-4.5. The State "Dangerous Dog Statute" expressly provides that "The owner of a dangerous dog that attacks a person and causes physical injuries requiring medical treatment in excess of $100 shall be guilty of a Class 1 misdemeanor." The proposed ordinance expressly adopted this standard. (A Class 1 misdemeanor is punishable by 6 months imprisonment and a fine of up to $500.)

'The Board has asked for an opinion on whether the Town may impose more severe penalties against the owner of a dangerous dog. This leads to several considerations as follows:

'1. The Town may not impose more strict penalties for violation of State law than are imposed by State law.

'2. The Town may impose no greater penalty than a Class 3 misdemeanor (that is punishable by a fine of up to $500) for any violation that does not directly contradict the terms of NC General Statute 67-4.5. If the penalty sought is to be greater than $50, then the ordinance must explicitly say so, but the penalty must be less than or equal to $500.

'3. The Town may adopt an ordinance prohibiting certain conduct that is not expressly regulated by State Statute. This would include, for example, the following:

a. Making the owner guilty of a Class 3 misdemeanor if they own a dangerous dog which bites another person in violation of the ordinance provisions, where such bite does not result in serious injury requiring medical treatment costing at least $100.

b. Making the owner of a dangerous dog guilty of a Class 3 misdemeanor if their dog bites another animal, without provocation, on property other than property owned, leased, or occupied by the owner, and under circumstances which are otherwise prohibited by the Dangerous Dog Ordinance.

'Accordingly, the Town can prohibit additional conduct by the owner of a dangerous dog, and impose additional criminal penalties for such violations. We can draft these but need guidance from the Board as to what acts it feels should be prohibited."

In response to Attorney Leidy, Comr. Remaley said that he would like to expand the ordinance as much as possible for more penalty on the animal owner. Mayor Pro Tem Sadler agreed with Comr. Remaley.

It was Board consensus to direct the Town Attorney to modify the Town's dangerous dog ordinance incorporating items (2), (3) (a) and (b) from his memo as presented. The Board is to consider the revised dangerous animal ordinance at its August 5, 2009 Board of Commissioners meeting.

Town Attorney John Leidy - Revised taxicab franchise ordinance

- from June 17, 2009 Board meeting

Town Attorney John Leidy summarized his memo which read in part as follows:

"The Town's authority to regulate the grant of taxi franchises and driver permits is regulated by NC GS 160A-304. This statute sets forth various criteria which a municipal body may use as grounds for refusing to issue a permit or revoking a permit already issued. These criteria have been incorporated into the Town's ordinance in Article III, Section 46-101, 104 an 106. The constitutionality of this statutory scheme has been upheld by the NC Supreme Court in Victory Cab Co. v. Shaw, 232 NC 138 (1950).

'The operation of a taxicab franchise and work as a taxicab driver are both privileges, not matters of absolute right. A municipality has the authority to regulate the grant of such privileges so long as the actions are not discriminatory, arbitrary or capricious.

'The Town's ordinance provides legitimate and permissible criteria to be used for permitting decisions. The decisions of Town officials are final unless an appeal is taken to the Board of Commissioners. On such an appeal, the Board of Commissioners review is limited to determining whether the applicant or permittee is entitled t the issuance or reinstatement of a permit based on the terms of the ordinance. Were the Board not bound by the ordinance's provisions, the Board's decisions would be unbounded an could be based on improper criteria. As such, the Board's decisions could be discriminatory, arbitrary or capricious.

'Stated otherwise, the Board is bound by the same criteria as is staff in making permitting decisions. Were it otherwise, the Board would have unbounded discretion to grant or deny a permit.

'A redline version of the ordinance showing the revisions we propose is attached. These provisions include the following:

'1, Changing the official charged with initial permitting decisions fro the "Director of Public Safety' to the "Chief of Police.'

'2. Giving a right of appeal to a permittee whose permit is revoked.

'3. Making clear that the scope of the Board's review on appeal is whether the permit should be denied or revoked under the ordinance.

'4. Stating the burden of proof - i.e., that the burden of showing that a permit should be issued or reinstated rests with the applicant/permittee."

Comr. Oakes disagreed with Attorney Leidy that the Board should not have any discretion on an appeal to staff’s denial of a taxicab driver permit application.

Police Chief Byrum explained that the ordinance, as currently written, provides no leeway for the Police Dept to approve a permit application even if someone was criminally convicted many years ago.

It was Board consensus that the Town Attorney, the Police Dept, and the Interim Manager meet to discuss the taxicab ordinance to include adding a provision that would allow the Board to make an exception to the ordinance, on appeal, based on staff recommendation.

James Oehrli, who is appealing his taxicab driver permit revocation from the Police Dept spoke to the Board; he said that he just wants to find out why his permit was revoked after the Board had approved it.

Chief Byrum said that he felt that Mr. Oehrli provided false information to the Board; Sgt. Tom Gilliam said that he has some information for discussion in Closed Session.

CLOSED SESSION

MOTION: Mayor Pro Tem Sadler made a motion to enter Closed Session IAW GS 143-318.11(a)(7) to discuss James Oehrli's taxi-cab driver permit revocation. The motion was seconded by Comr. Remaley.

Comr. Oakes said that if not necessary he does not need to hear the specifics about Mr. Oehrli's case. Attorney Leidy felt it was best to enter Closed Session as details may emerge that require confidentiality.

CONTINUATION OF MOTION: The motion passed 4 - 0 (Comr. Gray was not present.). The time was 12:05 p.m.

OPEN SESSION

The Board re-entered Open Session at 12:16 p.m.

Attorney Leidy reported that the Board, during Closed Session, conducted a hearing on the appeal by Mr. Oehrli for the revocation of his permit to drive a taxicab; the Board took no action.

MOTION: Mayor Pro Tem Sadler made a motion to uphold the Police Dept recommendation to revoke James Oehrli's taxicab driver permit; the proposed taxicab ordinance with more detailed information is to include adding a provision that would allow the Board to make an exception to the ordinance, on appeal, based on staff recommendation.

Town Attorney John Leidy - Status report on MOU between the Town and OBVB for the land that is co-owned at former Windmill Point Restaurant site

Town Attorney John Leidy stated that he was not yet able to meet with the Outer Banks Visitors Bureau (OBVB) attorney. He stated that his understanding from a conference call with the Manager concerning the scope of the Memorandum of Understanding (MOU) between the Town and the OBVB is that it should include information concerning what is to be done with rental proceeds, how maintenance/repair costs are to be handled, long-range decisions for the property as well as restricting either property's ability to convey, and that the adjacent property has a wastewater system.

Fire Chief Butch Osborne noted that there are several fire issues that need to be addressed.

It was Board consensus that Attorney Leidy meet with the OBVB Attorney to discuss/prepare a Memorandum of Agreement to address the jointly owned Windmill Point site prior to returning to the Board for discussion – tentatively scheduled for the first Board meeting in September 2009.

Town Attorney John Leidy - Update on Beacon Motor Lodge litigation

Town Attorney John Leidy reported that the Beacon Motor Lodge litigation has been concluded; he reported that the consent judgment has been signed by both parties and the court. The Beacon Motor Lodge settlement is attached to and made a part of these minutes as shown in Addendum "C".

ITEMS REFERRED TO AND PRESENTATIONS FROM TOWN MANAGER

Interim Town Manager Cliff Ogburn - Update on Fresh Pond

Public Works Director Dave Clark reported that at a recent Board meeting, the Board authorized the shut down of Fresh Pond; Fresh Pond is now physically disconnected from the Town and the Dare County water system.

Interim Town Manager Cliff Ogburn – Crosswalk at Jennette’s Pier / Traveler’s Inn

Interim Town Manager Ogburn discussed the crosswalk at the Jennette's Pier construction site in front of the Traveler's Inn, with Board members. This was first discussed at the June 17, 2009 Board of Commissioners meeting.

Public Works Director Dave Clark noted that he has not received a response from NC DOT re: installation of the temporary crosswalk across from the Traveler's Inn to the Jennette's Pier site.

It was Board consensus to facilitate the crosswalk at the Jennette's Pier construction site in front of the Traveler's Inn location.

Interim Town Manager Cliff Ogburn - Little Bridge safety

Board members recently received an email from a concerned citizen regarding the need for a crosswalk at the Little Bridge site on the Nags Head/Manteo Causeway.

Interim Town Manager Ogburn is to follow up on Mayor Pro Tem Sadler's suggestion of a temporary flashing light at Little Bridge on the Nags Head/Manteo Causeway to warn traffic of the people fishing at the Little Bridge site.

Interim Mgr Ogburn reported that NC DOT, Chad Edge, has indicated that he will forward a formal response to the Town and include the pros and cons of a crosswalk at the Little Bridge site.

Interim Town Manager Cliff Ogburn – Village Wastewater Treatment Plant

The Village at Nags Head Wastewater Treatment Plant was discussed. On Monday, July 6, 2009 Interim Town Manager Cliff Ogburn, Septic Health Coordinator Todd Krafft and the Treatment Plant Operator will meet to discuss odor issues. Problems this year started at the treatment of 100,000 gallons in one day; another issue is that there is no operable flow meter so the operator is guessing on the amount being treated. It was pointed out that the facility is up for sale.

MOTION: Comr. Remaley made a motion to file a formal complaint about the Village Wastewater Treatment Plant odor issues with the State Utilities Commission. The motion was seconded by Comr. Oakes which passed 4 – 0 (Comr. Gray was not present.).

Interim Town Manager Cliff Ogburn – Beach nourishment permits

Interim Mgr Ogburn reported on the Town's application for beach nourishment, originally forwarded to the Army Corps of Engineers (COE) in July 2006. A response letter was received from David Lekson, of COE June 30, 2009. The US EPA provided comments on the Draft EIS by letter dated June 3, 2009. Mr. Lekson's letter requests the Town's opinions on the US EPA comments on or before July 9, 2009.

Interim Town Manager Cliff Ogburn – Eighth Street Beach Access for handicapped

The Eighth Street handicapped access mat that allows wheelchairs to travel to the beach from the walkway was displayed on the screen for the audience.

Interim Town Manager Cliff Ogburn - Outer Banks Medical Center renovations

Deputy Public Works Director Ralph Barile reported that renovations to the former Outer Banks Medical Center where the Coastal Studies Institute is located are almost complete.

BOARD OF COMMISSIONERS AGENDA

Comr. Oakes - Consideration of a change in policy on health insurance paid by the Town for families and spouses

Comr. Oakes has received information from other towns and how they pay for health insurance for employee spouses/families. He feels this is one area where the Town can tighten belts.

Staff was directed to review the past two (2) years and see what the Town would have saved if paying less for health insurance for dependents; this issue is to be brought back for Board discussion.

Comr. Oakes – Village Wastewater Plant

Comr. Oakes expressed his concern about the Village Wastewater Plant.

Comr. Oakes - Trash Pickup at Old Nags Head Place Subdivision

Comr. Oakes reported on an email received by Board members from Mr. Gentry concerning his trash pickup concerns at Old Nags Head Place.

Deputy Public Works Director Ralph Barile and Board members discussed the trash pickup process during the summer season. Board members emphasized the importance of informing rental companies to notify their tenants of the process.

Comr. Oakes - Critique for Milepost 10.5 Shoppes

Comr. Oakes stated that he recently received a call from the Milepost 10.5 Shoppes developer who would like to meet with Town staff and Board members for a constructive critique of the building process of the Shoppes.

Mayor Pro Tem Sadler - Jennette's Pier construction summary

In response to Mayor Pro Tem Sadler, Interim Mgr Ogburn stated that he is to start receiving Jennette's Pier construction summaries which he will forward to Board members.

Mayor Pro Tem Sadler - Discussion/update of Town Boards and Committees

Mayor Pro Tem Sadler discussed with Board members the listing of Town Boards and Committees that was included in their Board packages. Several updates were provided:

Outer Banks Transportation Task Force - Organization has been discontinued.

Outer Banks Community Development Corp - Bob Muller is chair.

Nags Head Leasing - Emily Lewis now lives in Manteo; check on her applicability to serve.

Regional Solid Waste - Comr. Gary Perry from Kitty Hawk is the municipal representative.

Town Cemetery Committee - Replace Charlie Cameron with Interim Mgr Cliff Ogburn.

Mayor Pro Tem Sadler reminded Committee members to provide an update of any meeting they attend on behalf of the Town.

Mayor Pro Tem Sadler - Northridge property owners association meeting

At Mayor Pro Tem Sadler's request, Police Chief Byrum provided background on one of the concerns mentioned by Northridge Subdivision Property Owners Association president Joe Maione during Audience Response - the right-of-way issue. Chief Byrum explained that vehicles, boats/trailers are allowed to be parked in the right-of-way unless otherwise posted. He stated that he informed Mr. Maione that Police would not be ticketing vehicles/boats/trailers parked in the right-of-way.

Referring to another issue reported by Mr. Maione, Interim Town Manager Ogburn said that Northridge Subdivision does not allow home occupations per its covenants but the Town does not enforce subdivision covenants.

Mr. Maione had suggested that the Town require year-round rental houses to post basic information; Mayor Cahoon suggested including information on the Town's web site; Mayor Pro Tem Sadler suggested that the Property Owners Association be a better neighbor by providing more information to property owners; the association has asked NC DOT for a deceleration lane; speeding is a problem and the association will be forwarding to Interim Manager Ogburn information concerning a different type of speed bump.

Comr. Remaley - Channel 20 Government Access Channel Committee

Comr. Remaley stated that the Channel 20 Government Access Channel Committee is interviewing for a part-time coordinator position - an approximately 17 hours/week position.

MAYOR’S AGENDA

Mayor Cahoon - Request for Closed Session

Mayor Cahoon requested a Closed Session to discuss the Interim Town Manager's review.

Mayor Cahoon – Financial reports/1% sales tax for beach nourishment

Mayor Cahoon reported on the financial reports she received from Finance Officer Kim Kenny for occupancy and meals for the month of May 2009. She reported that as of yesterday, financial reports indicate that occupancy was up 4% and meals down 3% for May, rental houses are up 5.8% and hotels are up from last year at this time.

Mayor Pro Tem Sadler confirmed that the legislation would give the Board authorization to enact the 1% sales tax for beach nourishment but would not require that the Board take action.

MOTION: Comr. Oakes made a motion to ask for legislation for authorization to levy a 1% sales tax for the exclusive use of beach nourishment. The motion was seconded by Comr. Remaley.

It was noted that an implementation date would be set after a Public Hearing is conducted by the Board of Commissioners.

CONTINUATION OF MOTION: The motion passed 4 - 0 (Comr. Gray was not present.).

ADJOURNMENT TO TOWN MANAGER'S REVIEW

MOTION: Comr. Remaley made a motion to adjourn, pursuant to GS 143-318.11(a)(3), to the Interim Town Manager’s review. The motion was seconded by Comr. Oakes which passed 4 – 0 (Comr. Gray was not present.). The time was 1:36 p.m.

_______________________________

Carolyn F. Morris, Town Clerk

Approved: August 5, 2009_____________

Mayor: ___________________________

M. Renée Cahoon

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