TOWN OF NORTH TOPSAIL BEACH
REGULAR BOARD MEETING
August 2, 2007
7:00 P.M.
PRESENT
The Board of Aldermen of the Town of North Topsail Beach met in regular session on August 2, 2007 at 7:00 P.M. in the meeting room of the Municipal Administration Building, 2008 Loggerhead Court, North Topsail Beach, North Carolina. The following were present: Mayor Rodney Knowles; Mayor Pro-Tem Larry Hardison; Aldermen Dan Tuman; Richard Peters; Fred Handy; Richard Farley; Acting Town Manager /Town Clerk, Kathleen Clough; Planner / Zoning Administrator, Deborah Hill; Town Attorney, Robert Kilroy.
QUORUM
Mayor Knowles called the meeting to order, and declared a quorum present.
INVOCATION
Duane Collins, of the North Topsail Shores Baptist Church, gave the Invocation.
PLEDGE OF ALLEGIANCE
Mayor Knowles led the Aldermen and Citizens present in the Pledge of Allegiance.
ANNOUNCEMENTS
Mayor Knowles made two (2) announcements:
1. The resignation of Bradley Smith as Town Manager for health reasons.
2. The introduction of Kathleen Clough as Town Clerk and Acting Town Manager, until an Interim Town Manager is found. Also, a reception for Ms. Clough will be held on Wednesday, August 8, 2007, at 6:00 pm.
APPROVAL OF THE ADGENDA
Alderman Hardison made a motion that the “agenda that was originally on the agenda be put back there” regarding an article in the Jacksonville Daily News, titled “Who’s Telling the Truth?.” A lengthy discussion followed, regarding the motion to clarify Alderman Hardison’s request. The motion was seconded by Alderman Farley. The item was again discussed, at length, as to the reason for the original motion.
The motion passed and was placed under OLD BUSINESS.
COMMITTEE REPORTS
BEACH NOURISHMENT
Mayor Knowles introduced Tom Jarrett and Dawn York of Coastal Planning and Engineering with a Prospectus Update on Beach Nourishment (Pay-As-You-Go) system.
Dawn York, of CPL, had those present, follow her handout as she went over the current status of the progression of events for Beach Nourishment. A handout was given containing all of the information that CPL presented
Tom Jarrett and Dawn York discussed cost, phased construction, and alternatives. Mr. Jarrett stated that the E.I.S. was not a decision document, but lays out “The Good, The Bad, and The Ugly” of each alternative and should lead to a logical conclusion of what is the best alternative. He states that the phased-construction implements the plan that the town was seeking bonds for. He states that due to the “funding stream” 4 or 5 phases may be needed rather than 2, with allocations for each phase. He does state that with more phases, more cost is added for remobilization cost for the dredge and increases the cost a bit. He does state that “on the positive side, if you are only going to build a mile or two of the project at a time, generally speaking, the agencies favor that sort of sequential development of a project rather than a whole eleven miles in two years. Their main concern is that this material that goes on the beach smothers out organisms and it takes at least a year for them to recover, and it could take longer if you’ve nourished all eleven miles over a two year period. If you are only nourishing a couple of miles every two years you have adjacent beaches that are not being nourished and studies have shown that these organisms migrate back into those nourished areas in about six months to a year. On the positive side and from an environmental standpoint it seems that the phased construction will probably be looked on favorably. Dawn alluded to the state on the issues permits that are good for one-time. So, they will probably have to go back and get a major modification to the permit each time you want to go in and do a new phase. It wouldn’t require all new environmental documentation, but that is one thing we will have to investigate to make sure that kind of approach is feasible and won’t require a lot of extra effort and environmental documentation”.
Alderman Farley asked Tom Jarrett what had been proposed and stated he never knew that the Board asked him to present another plan, and expressed his concern that it is still a $43 million dollar project.
Mr. Jarrett explained that EIS is required to look at a range of alternatives, so there are alternatives in the EIS that the town hasn’t approved or questioned or anything else. They are required under MEBA* to include these alternatives.
Mr. Jarrett further explained that as long as the alternative is in the EIS, whether it is preferred or not, and is acceptable environmentally, the real decision comes at the time when the town makes its formal application to the State, to the Court, to build a certain project. So, at that time you can pick alternative 1, 2, 3, or 4, as long as they are all okay environmentally.
In response to Mr. Farley’s questions regarding the amount of sand, Mr. Jarrett replied that generally placed, projects that the Corp comes up with generally have something in that order of 130-160 cubic yards per foot.
Alderman Tuman stated that this was the first time he’d heard about a five-phased plan. Working with the planning committee and with the representatives or on the committee for Beach Nourishment, they were trying to source the dollars relative to a three-phase plan, which basically works central from south, doing one phase every other year.
Mr. Jarrett replied that the phasing simply depends upon the fund vote bill, funding of that bill. But you could certainly do three phases from a construction window standpoint. Phasing then depends on the funding stream that the town can afford.
Alderman Tuman stated that the opportunity seems to be there and we can probably raise about three (3) million dollars a year. Which in each phase, ballpark number would give us six (6) million dollars and that would be enough to do North first and then Central and South. And then once you have finished the South, depending upon what happens in the prior six (6) years you could go back and start at the North and work central, south again, on an ongoing basis, because the way that the money is sourced, funded, it is an ongoing funding stream. So, the money comes, and it will be dedicated to that purpose. That’s the goal. He said he didn’t know how things will materialize, but it looks like it’s doable.
Mr. Jarrett replied that based on the cost-estimates that they have developed, it doesn’t appear that eighteen (18) million dollars is going to be enough to build all eleven (11) miles. The phasing then, again would be rhythmed by funding availability, not the construction ability.
Alderman Farley stated that he is not comfortable with all of this stuff and that we’ve got several committees, and asked specifically “what are the funding sources?”
Alderman Tuman stated that the goal of this committee, is to raise money to do beach nourishment without increasing taxes for this town, and it seems to be a viable alternative. Alderman Tuman stated that there is a million and a half in sales tax. One million in tourist taxes; comprised of a half million that this town collects and another half a million that we are expecting that the county will return that they collect off the back of this town, and the other half a million from the beach nourishment tax
In response to Alderman Hardison’s question, Mr Jarrett said he will be glad to share the phased construction files with a little more detail with the Board through Shelia Cox.
Alderman Peters asked how the Board can see some of these citizen issues presented.
Ms. York responded that they were talking to Sheila about this and the Corp of Engineers will publish the draft EIS on their website. The draft EIS will also be published and put into libraries. The Board will receive hard copies that should be made available to the public. CPL will put it on their website, if the Board wants to review it.
COMMITTEE REPORTS
BEACH NOURISHMENT: Dick McCartney, Chairman (Gary Rowland, Reporting)
Mr. Rowland waned to make the point that if we are talking about 5 sections of the beach that we are going to be nourishing, if you back that down to four sections, it would take 8 years. That would put us into 2016 at which time the Corp of Engineers would have the plan in effect for the south end already started. So, you wouldn’t have to do a full 5 sections, using those figures.
As far as the Beach Nourishment Report is concerned, they, as a committee, made a motion to endorse the budget decision by the Financial Task Committee to maintain the 3 cent dune tax for future Beach Nourishment projects phases. That was unanimously passed. They also recommended that we wait until post November election for the survey / vote, whichever the Board decides we are going to be doing.
It was suggested that all property owners be allowed to participate in the survey or the vote; all paying property residents pay the tax. They pay a renter’s / accommodations tax and they do create job opportunities. Permits are expected to be issued approximately July 8th at the present pace. However, the Board of Aldermen need to vote to direct the phased construction, or preferred alternatives for the draft EIS, if not, there is potential for the delay of the permit process.
The Beach Nourishment Committee is requesting that the Board of Aldermen consider changing the name of the Committee (Beach or Island Preservation, Coastal Preservation, Barrier Island Preservation, or Island Conservation Committee), because they are looking at things far more broadly than just Beach Nourishment.
Alderman Hardison requested that the Board of Aldermen receive information prior to the night of their Board meetings.
PLANNING BOARD: Mike Yawn, Chairman
Planning Board met on 7-12.
“* On the issue of : APPEAL BY MR. CURRIN: TAX MAP ID# 763-1.3 (REMANDED BY BOA 7/5/07) the Planning Board recommended the Board of Aldermen correct the newly adopted zoning map to show parcel # 763-1.3 and 809-60 are R-20. The motion passed 5-1 Mrs. Tuman voted nay. Mrs. Tuman was still concerned about the 2-1 vote.
* On the issue of: Appeal by Mr. Marshall F. Dotson, Jr: Tax Map ID # 779-1.19. This is accreted land. A motion to leave the zoning Con-D failed for a lack of a second; and a motion to recommend that the BOA correct the map to show it as R-20 failed 3-3.
On the issue of: CU permit for a pool at 204-1 & 2 GSgt. D. W. Boatman Dr. Tax Parcel # 778C-166 The PB recommends to the Board of Aldermen that they approve this CUP, accepting no more than 30% coverage under the conditions of the Town of North Topsail Beach's CAMA Regulations. Mr. Dorazio seconded the motion, motion passed 5-1 with Mr. Yawn voting nay, since he felt the pool itself should be included as impervious.
On the issue of: CU permit for a pool at 211-1 & 2 GSgt D.W. Boatman Dr Tax Parcel 778C-50 The PB recommends to the Board of Aldermen, that they approve this CUP, accepting no more than 25% or 30% coverage (depending on the zone) under the conditions of the Town of North Topsail Beach's CAMA Regulations. Mr. Dorazio seconded the motion, motion passed 5-1 with Mr. Yawn voting nay, since he felt the pool itself should be included as impervious.
We held public hearings on Section 7-60 Definitions ; on Sec. 7-128 Table 1 Permitted and Conditional Uses; and C- 7-132 Accessory Uses. B. Swimming pools; and 7-222 Operating Standards for existing travel trailer parks and new parks following park plan review.
I also see that Boardwalk Villas' SDP is on the agenda; I recommend the Board of Aldermen formally remand it back to the PB since the PB has not seen a SDP with an on-site package plant; only one with sewer taps.
Land Use Plan Committee met on 7-25; went over latest changes. Our intent is to meet Wednesday 9-12 at 5pm and go over the entire document; at which time it will go to the Board of Aldermen; our hope is that we can have a joint meeting in early October to finalize the Land Use Plan.”
Mr. Yawn expressed his sadness in seeing Brad Smith leave, because he was a real proponent of getting our zoning right and getting our zoning and planning ordinances corrected. And finally, about 5:00pm today, I had an emergency system test and it worked perfectly. Within 10 seconds, my cell phone rang, my wife’s cell phone rang, and I had an e-mail, so, bingo it worked. He saw it on the website and just put their number sin. They don’t have a land-line, so, they put in their cellular phone numbers.
Alderman Farley asked about the travel-trailers.
Mike Yawn responded that Roger’s Bay had come and requested several about 3-4 months ago. Our ordinance limits them in the size of storage units. They are supposed to be the Rubbermaid type units and they are very limited in how big they were. They would like for us to modify the ordinances in order to allow larger storage shed that would include something large enough to drive a golf cart into. They have had some situations where people’s carts have been stolen. We had a public hearing and we did not have a lot public input. I was somewhat disappointed that we did not have anybody that was from Roger’s Bay at our public hearing. We have taken no action on it thus far.
Alderman Farley asked if the proposal they are talking about a golf cart garage.
Mike Yawn responded: “Almost. Their request was 8 x 8 or 8 x 12. So we have taken no action on that yet as far as a recommendation from the Board and of course, we will research. We have concerns about the question of impervious coverage and whether the lots are really lots. They are not drawn on the map. If you are going to have something there, it has to be able to have flood waters come through which means it has to be tear-away. “
Mayor Knowles stated that another problem that you have there is that with the wind, and asked if since it is in a mobile home park, shouldn’t they be movable also?
Mike Yawn stated that was correct. Mayor Knowles asked if we order them to evacuate, will they also have to take the trailer and the shed. Mr. Yawn said that actually, it is not a mobile home park, it is a campground, and the committee suggested that they just use a trailer. You could have a storage trailer.
Recreation and Appearance: Bill Horstmann
Not in attendance
Board of Adjustments: Jerry Convey, Chairman
Jerry Convey stated that there was no report, as the Committee did not meet in July
Open Forum
Mayor Knowles invited the public to come up and speak for 3 minutes each.
Carol Evans, 209 Seashore Drive stated that she just had a few fragmented comments. “As to the “Big enchilada”, I would prefer that it be a small taco. I would like to comment on the article that was in the Jacksonville News. What I think is that everyone thinks that they were telling the truth as they heard it, and therefore, I think, that when you gather information by a wink and a nod, you don’t always get accurate information. I think everybody heard what they thought they heard and everybody said what they thought they said and that it was huge mix-up that hurt the integrity if a lot of people.
The other thing that I have comment about is the Mayor’s comment that this is not New York City - I feel that some people here in North Topsail Beach think that it is New York City.
Mike Yawn, 207 Tamarix Court: “I have a couple of questions. This Funding Committee? I assume this is a public meeting? The public can come to this meeting. It is advertised on our sign outside, or put on the website. I would just request that you do that. Because the public, I think, would be delighted to come to the meeting and hear the government in motion. So, I would request that you publicize when those meetings occur and invite the public.
And secondly, even though Mr. Rowland said that he thought that Commissioners hear from all property owners, Commissioner Aragona was quoted in that article as he wanted to hear what the voters down there thought about Beach Nourishment. “The voters down there,” - that’s not property owners in New York, or Ohio, or Charlotte.”
Mayor Knowles announced that the Public Forum was closed.
CONSENT AGENDA
Motion: Alderman Tuman made a motion to approve the consent agenda and the motion was seconded.
Alderman Tuman suggested having Lydia explain “Budget vs. Actual” at the next meeting. There was discussion and it was explained.
ACTION: Motion to approve the Consent Agenda passed unanimously.
Old Business
a: Public Hearing and Rezoning of Property Tax ID #763-1.4 case #R-07-01.
On April 14, 2007, after the Planning Board held a public hearing, Mr. Riggleman made a motion to recommend to the Board of Aldermen that they rezone this property as CON-D with an Island of R-20 (as shown in the diagram in our board package) but as one parcel.
Mr. Martin seconded the motion, motion passed unanimously.
Additionally, the Planning Board recommends that the Board of Aldermen enact the attached Ordinance, rezoning the site from Residential-20 (R-20) to Residential-20 (R-20) and Conservation (Con-D) district zoning, as amended.
Action Requested: Hold hearing. Approve/disapprove rezoning request.
Zoning/Planning Administrator Deborah Hill stated “There is in your package a clear copy of the GIS overview of that tax map. On April 14, 2007, after the Planning Board held a public hearing, Mr. Riggleman made a motion to recommend to the Board of Aldermen that they rezone the property as Con-D with an island of R-20, as shown in the diagram, but as one parcel. Mr. Martin made seconded the motion and the motion passed unanimously. Additionally, the Planning Board recommends that the Board of Aldermen intact the attached ordinance, rezoning the site to R-20 and Con-D district zoning as amended. The owner Mr. Bryant is appealing the rezoning. Just handed out, is a copy of his appeal. The action tonight is after the staff report that the Board of Aldermen hold a public hearing and afterward either approve or disapprove the rezoning request. This item was also pointed out on the Zoning map. This particular zoning case was one of the issues that Planning Board studied at quite some length and it was based on the way that the motion was read. It was not the intent of the Board at the time to rezone that whole parcel R-20. The way that the motion reads, that’s how it was done, so the intent of the zoning maps in March of 2007, was not to…it did not constitute any rezonings, it was merely for corrections. So, at this time the exterior of that property, when you look at the map, the little interior has been declared uplands and the exterior of that little doughnut on that lot is has been determined to be wetlands. And that what should be considered. The Planning Board is recommending that it be back to CON-D and that the center remain R-20 for building lot purposes.”
Ms. Hill stated that she was presenting her staff report recommended that after her Staff Report, the Board open it up for a Public Hearing. She stated that it has been advertised and re-advertised, and re-advertised. The notifications were done as indicated in the Board’s packages.
MOTION: Alderman Farley made a Motion to open up for Public Hearing
Seconded by Alderman Tuman.
Discussion:
Tom Johnson (attorney for Mr. Bryant) explained that this property is currently zoned R-20; that was the motion that was passed and what was done. Since this property has been zoned and Mr. Bryant owns the property, he has obtained building permits to build 2 residences on that property. Mr. Johnson shared with Mr. Kilroy those building applications he has with him. In their position, number 1, they submitted a protest petition because this was not a rezoning that was initiated by the property owner, whatsoever, it was initiated by the town. So, that’s been submitted. He stated that secondly, their primary concern is that in NC general statute 160A-385, subsection 3-B, it specifically states that an amendment in zoning ordinances shall not be applicable or enforceable without the consent of the owner with regard to buildings and uses for which either building permits have been issued pursuant to GS 160A-417 prior to the enactment of the ordinance making the changes so long as the permits remain valid and unexpired pursuant to 160A-114 and not revoked as pursuant to GS 160A-422. In this instance there are 2 building permits that are valid and in force and have not been revoked and therefore it’s our position that no rezoning can be acted upon with respect to this property without Mr. Bryant’s consent, which he has not given, and that is their position on this matter.
Alderman Farley asked if the proposed changes on the zoning map, as recommended by the Planning Board, would prohibit Mr. Bryant from building the on the property, and asked if it was prohibitive.
Mr. Johnson stated that you could conceivably still do it, but the problem is, that the property as a whole is divided into 2 lots and he got building permits to build on those 2 lots. There are many, lots that exist on the coast where you have buildable portions of those portions and wetlands portions on that lot. And as long as it is a separate lot your zoning ordinance amendment is changing the zoning on that lot for which a building permit is issued. Building permits are issued per lot or per taxed parcel, and not per a doughnut shape, carved out of 2 lots that are valid and exist.
Alderman Tuman asked if it was their understanding in terms of Planning Board recommendations, that in fact in 1993, the intent of the submission was to, in fact, create a portion of land designated R-20, with the rest of it remaining CON-D.
Mr. Johnson stated that he had no knowledge of that, other than what was presented in the Staff Report. He said that there is nobody here that was present then that can say that, but the only written record in the motion that was passed is the motion to rezone this entire property to R-20. ,
Alderman Tuman said that was perceived to be what the actual action was and asked if he was aware of what was recorded in Onslow County, in the GIS system on the 1993 action?
Mr. Johnson said that he had not seen that, in terms of what the GIS did. But what this Board would go upon would be it’s actual action by motion and what it’s minutes reflect, not GIS system. The GIS system is based upon what this Board passes. Or supposed to be and he find errors in GIS systems all the time, so you can’t depend upon that.
Alderman Tuman stated that actually what GIS recorded in 1993 was a piece of land 1 acre in size, being R-20, and the rest CON-D, which, in retrospect, was the interpretation of what was actually requested at that time. And the proof, and what he found difficult was the owners, including Mr. Bryant, have known since 1993 that in fact that what that plat is recorded as and there has been no appeal in 14 years now, since then, challenging them. And it makes a big difference, for example in the taxing of that land, and 1 acre is designated as R-20, whose value is $475,000.00 for 1 acre. And the remaining 13.5 acres being taxed as marsh whose land value was $1,500.00. he said that if, in fact, 14.5 acres are R-20 and taxed at 475,000.00 per acre, the tax bill would have been substantial.
Mr. Johnson responded that’s not necessarily the case. The land is valued upon it’s condition. When a tax appraiser goes out there they are going to not look at the fact that you have X acres zoned R-20. They look at the property itself and see how much is upland and how much is wetland and how much you can build upon. That’s where the valuation comes from and the GIS map legally does not control your zoning. The GIS map is based is based upon whatever copulation whoever put that GIS map together, but that is not the law. The law is what you pass in your zoning map. Under the statutes, the zoning map and what was passed, and how that zoning map was designated based upon what was passed is what controls, not what GIS says
Alderman Tuman said that the property record for that plat, owner by Mr. Bryant, clearly identifies, and it has since 1993, that 13.5 acres of it is zoned CON-D, and 1 acre is zoned, it doesn’t specify, it says see the noted. Alderman Tuman said that it seemed to him that it reflects the action taken in 1993, by the zoning action at the time, which is what the Planning Board is recommending be corrected. The map that was in error needs to be corrected to what the actual intent was at the time that was approved. Which has since been reflected, the records updated and reflected in GIS, and the property owner has known this for 14 years.
Mr. Johnson replied that this is not his property record, and that’s what he was explaining. He stated that he could ask Mr. Kilroy, but what controls in term of your zoning. It’s not GIS, it is your zoning map and the motion that was passed at the time. Regardless of what somebody may say the intent was or wasn’t, your zoning map shows that. If it is as you are saying, then there would be no need for us to be up here to rezone any property tonight, because that’s what it would be zoned. But because we are having to come back up here to rezone it, you are indeed rezoning property and under the statutes you can not rezone.
Alderman Tuman said what that issue is, and what the Planning Board is recognizing is that when we passed a zoning map, some months ago, this year, we passed it with an error. And we were asking to correct it. So, that in fact the issue is correcting an error that has only taken place in the last few months. It has not been on the books since 1993.
Mr. Johnson replied that the whole deal is that the Planning Board makes a recommendation and this Board makes the decision. What the Planning Board may or may not have said in all deference to the Planning Board is not what is to be considered. And he wasn’t before the Planning Board to make the point to make the point which he would have made in the very same point he was making here tonight. Legally, you can not take this action because the existing zoning is R-20 and can not be changed because building permits have been issued for this property. Regardless of what the intent, you say the intent maybe, and he was not here in 1993, and he doesn’t know who in this room may or may not have been, so, intent is not what controls the law.
Alderman Peters asked the Town attorney to clarify this point and asked if it was a true statement and his interpretation as well.
Mr. Kilroy stated: “First, let me say, the only way you could determine intent of what the Board of Aldermen do back in 1993, is from your memory, not the GIS records as some people think. And I really don’t know what is driving this project. But basically what we have is a situation here where this property is zoned R-20 for 14 years. That’s the way it shows up in the minutes. There is nothing that changes. And Mr. Johnson is right, 160A-385 that basically says: amendments of the zoning ordinance shall not be applicable of enforcement without the consent of the owner for which either building permits have been issued pursuant to 160A-417, as long as the permits remain valid. I could not get into Randall’s office, but Mr. Johnson showed me his copy of the zoning application dated April 11, 2006. Joey signed off on both of these properties zoned R-20. Based on signing off on that, the building permit was issued. Building permits have not expired. And I believe there is one other word that stands between us and making changes in the zoning classification of this particular property. And that is estoppel. Based on these building permits, he has gone and as I understand it and built a bridge. I assume he has spent quite a bit of money right there. I just think we are getting on real thin ice here, trying to change this in the face of the statute.”
Mayor Knowles asked Ms. Hill if she had a question.
Ms. Hill replied: “I just had a statement, whenever the attorneys finished. First of all, there were two building permits that were issued. One was withdrawn. There was a bridge that was permitted and CO’d. As a matter of fact that was what drove our workshop for bridges. But the building permits were withdrawn. He resubmitted an application for a building permit. I could not sign off on it whenever it came back trough me, because it was an illegal subdivision. And I don’t have the authority to sign off on a building permit for an illegal subdivision. And that is another matter that needs to be addressed. But, never-the-less, if he wanted to build one house, on that property that is zoned R-20, that’s not stopping him. So, Mr. Tuman’s question was, “Does that prohibit a building permit or a building being placed on that lot?” Not if that lot is…if you take away the issue of illegal subdivisions or if you correct that plat, then no. He’s still got that buildable property as R-20. It’s just the surrounding wetlands that Planning Board and Staff was requesting be rezoned back to CON-D, which was after studying it was determined to be the original intent of that motion.”
Alderman Tuman asked Ms. Hill if she had said those building permits were withdrawn?
Deborah Hill replied: “It was my understanding that they were withdrawn, and I would have to do some research after the meeting tonight, and go back to build the history. That issue came up as I walked in the door tonight, from Mr. Kilroy and Mr. Bryant’s attorney this afternoon. I am not prepared to answer the issue of building permits or give you a history of building permits, and I would be afraid to do so, right off the top of my head, without actually being able to show you the documentation. But I do know that those plats that Mr. Bryant resubmitted plats, and it was on the agenda for the Planning Board to review, Mr. Bryant withdrew those plats. So, I had no choice but to take it off the agenda for the Planning Board.”
Mr. Johnson said: “Let me explain a couple things. The building permits were never withdrawn, all that was done was an alternate building permit for one of the houses was submitted because Mr. Bryant wanted to change his design. He wasn’t doing anything but changing the design of the house that would otherwise meet the zoning requirements. But he didn’t withdraw the current permits. And he has spent substantial sums of money building a bridge, putting the utilities and infrastructure along that bridge to service the property, hauling significant amounts of fill in order to be able to build on the lot. I mean it is a significant sum of money that he has spent. Those building permits were not withdrawn, and the new building permits, Ms. Hill would not sign off on the zoning certificate in order to get the new building permit. Which a zoning certificate, all it says is that it is zoned R-20. It doesn’t say anything about the subdivision issue. With respect to the subdivision issue, which is really not on the agenda, but since it has been brought up, The subdivision was signed off on by the town and recorded with the register of deeds, so, it is there and is been right upon Mr. Bryant in getting his Building permits. Again, as Mr. Kilroy mentioned, at the very least there is some estoppel arguments, but certainly I would argue that there is a vesting right to those lots, because it was based upon town action that Mr. Bryant did in terms of that sub-division. But, recommended to him that no action be taken on that subdivision plat because it was my feeling that he was already vested in the original subdivision, so why go through the process again? I was not involved when it was first submitted, although I would have probably recommended that it not be submitted, because I did not see the need to do that.”
Alderman Farley asked if, based on what Mr. Johnson was saying, submitting another building permit design voided a first one.
Mr. Johnson replied that as long as the building permit is in force, in effect it says you can not.
Mr. Kilroy interjected “But you have to read that in conjunction with 160-418. Under the statute, the building permit expires in six months. And it expired in 12 months if work is discontinued. Work was continued. And it has been of this continuance. I can not give you a really good solid answer until I look at these building permits.”
Alderman Farley asked if that was that saying that they did start building on those.
Deborah Hill responded: “I really don’t feel comfortable talking about something off the top of my head without having the records in front of me to be able to give you a straight and honest and factual answer. I will say that anytime a building permit is submitted, if there is a change in plans, that they have to resubmit that building permit. We have had a number of issues where building applications were submitted and the applications were duplexes, and then half-way through it they change it because they want a town-house, because they want to be able to sub-divide the lots, and low and behold, guess what that property was zoned R-15, and townhouses aren’t allowed on R-15. So, that is causing some complications as well, trying to change these building designs in mid stream. And the other issue is. The whole entire reason why staff talked to Mr. Bryant and was encouraging Mr. Bryant and trying work with him is to get these plats before the Planning Board and to get the recommendation of the Board of Alderman was to legitimize that plat so that he could develop that property. We are not working with him, we are just trying to make sure that everything is done in accordance with the ordinance. Otherwise I can not sign off on it.”
Mr. Kilroy stated that the issue is, have the building permits expired, or has the work been discontinued? If they haven’t expired and it has not been discontinued, the town can’t change the zoning.
Alderman Peters asked, with that in mind, just looking at this from a layman’s perspective, exactly what was the owner’s objection, and was land being “confiscated.”
Mr. Johnson said that it is being rezoned to another district. He would rather keep it all zoned R-20.
Alderman Peters continued, “But getting to the heart of it, he would like, but what is the actual objection? Is buildable land being taken away? For example, it reads here ….”request that the property identified as uplands 11-21-02 delineation by the US Army Corp of Engineers being zoned R-20 and that the wetlands, identified by the same delineation be zoned CON-D.” So, my point is, are you all actually filling into the wetlands to build on?
Mr. Johnson said “Not at this time. None of that’s being done at this time, but there is no telling what may happen in the future. And so, what could or could not happen within the designation of those wetlands or whether the wetland and the upland will be delineated is somewhat problematic within this rezoning request. I don’t know if a survey has been done or anything like that to determine where your designation of where you would split the rezoning. I think that would be problematic if you don’t have a survey of the property and proper legal description. I don’t know how you would determine what your rezoning is. I mean that’s another problem with this, but I don’t think you can get to that point, because the statute prevents you from doing it once building permits have been issued. I mean fine to check with Mr. Kilroy in the office and verify this. That’s fine with me. I have no problem with that. Because our records all show that the building permits are valid and in existence and there has been no indication from the building inspector to the contrary. I mean Mr. Bryant can come up and speak to that, because he has been dealing with the building inspector, not myself, but that’s where we are at this point. And if you feel like you need to go behind us and check that, we will be glad to do that. I agree that when a building plan changes, a new application has to be submitted, that’s what Mr. Bryant had done. Because he wanted to be looked at again to make sure the new design he wanted to do was compliant. And we never even got to the point of making that determination, because we couldn’t get the zoning permit or zoning certificate signed by Ms. Hill. So, at that point that permit was going nowhere so he just withdrew that because there was no action being taken. That was the amended permit not the current permits that were in effect.”
Mr. Johnson stated that “the minutes, have enough question in them that you are coming tonight asking for a rezoning. If it is as clear as your position is, then there would be no need for the rezoning to begin with. Because it would be zoned as you are saying on the GIS map. But, there is enough of a question, and when Mr. Bryant bought the property, regardless if it was a staff mistake or not, at least the interpretation that’s been made, and held in belief, since 1993, is that all this property is zoned R-20. And that’s what the minutes reflect. Or at least the interpretation to the degree that the minutes were taken and were overlayed onto the zoning map. That’s what the minutes reflect. That’s what’s official. Not what the intent may have been or somebody believing the intent was. It’s what the minutes say.”
Alderman Farley asked if we know that’s when the zoning map was changed? For instance, at some point, this century (several years ago) our zoning maps were changed. Changed to reflect some perceived understanding of how zoning worked. And so, he was so sure that the map was changed back in 1993. Alderman Farley said that Ms. Hill points out that we have this property that 1 acre is R-20 and 13 acres are CON-D.
Mr. Johnson replied: “The GIS and the tax records in every county I have been in have errors, because that is not the official map. Whenever you go to check zoning on property, I have to go down to the town. And what happens is when you pass an ordinance zoning a piece of property, in 1993 for instance on this one, that is amending your zoning map. To designate that property zoned whatever it may be, in this case R-20. So, that’s the official action. The minutes reflect the official action. The map reflects what was done in those minutes. Therefore, that’s what controls. What the county picked up on GIS, it does not matter. Because, I will go, I mean, tax parcels are wrong, property lines are wrong, I mean there are errors, I mean, say I go to the tax records and say I own this particular parcel and it says I own this particular parcel, what controls is not that it’s what’s in the Register of Deed’s office and that deed or that plat that tells me what lot is. GIS records are not accurate enough, nor are they legal to convey an interest in property.”
Alderman Farley addressed Mr. Johnson, saying that our maps are wrong, and asked why our maps any better indication than the GIS?
Mr. Johnson responded “What is your indication that the map is wrong? Because the minutes are what count. If the minutes say it was zoned R-20. That’s what you go back to if there is a problem with the map.”
Alderman Farley asked if he ever looks it up, if he ever went back to Onslow County Minutes from when they controlled our zoning. Alderman Farley said that he would see zonings that will say “the Smith property, 2 miles from the high rise bridge.”
Mr. Johnson said he knew that, but “that is irrelevant to the fact here that the understanding at least, I think we can all agree. Because of the action that is before the Board tonight, for some reason or another everybody believes this property is zoned R-20. My position is that you can’t change that at this point, because I’d say legally you can’t rezone.”
Alderman Farley said that he could make the argument that Mr. Bryant got those permits that property was R-20 and Con-D and that it only became R-20, when we approved the zoning map sometime this year. So, in effect we are not really, we are putting it back to where it was.
Mr. Johnson disagreed and said that when he got the permit it was zoned R-20 and that was what was listed on the zoning certificate, and that was used to issue the building permit.
Alderman Farley stated that he had questions if it was R-20 when he got the permit. And Mr. Johnson said that you rely legally on those. He continued that when the code enforcement officer signed off, saying it’s zoned this particular district, that is the authority of the town representing that is what it says.
Alderman Farley said that he questioned that, and if Mr. Johnson had different information, he will be more than willing to hear it. Alderman Farley said that when we went through this whole zoning process we were told that if someone makes a mistake, if staff makes a mistake, the town is not bound. What it actually was, what actions were taken, we can differ on what action was taken, and he thought that was pretty clear.
Alderman Handy stated that it has to be a legislative action.
Mr. Johnson replied that with a legislative action, again, if you are going back to the minutes, the minutes were a legislative action. That did this.
Alderman Peters said that, at this point, it’s based on our analysis and the presentation to us, that we remand it back to our Planning Officer, to determine if the building certificates are valid.
Alderman Tuman stated that he didn’t think the building certificates are important at this point. I think the question is, we are saying we want to correct the maps relative to the action that was intended and actually happened back in 1993. And the contention by the attorney is that the language back then is clear, and you have to read it literally.
Alderman Peters said, given that, our attorney says that the buildings are still legal. Alderman Tuman replied that the only issue on the agenda is rezoning of the land.
Alderman Peters said that as he perceives it, if the building permits are not legal, we can not rezone it, without the owner’s approval, and he is contesting it, so we certainly don’t have his approval. Therefore we can’t rezone it.
Mr. Johnson agreed. Alderman Tuman reminded them that there is a protest petition. We could ignore it as his opinion. And vote as long as there are 4 votes, we could rezone it.
Mayor Knowles asked if anyone else wanted to speak on this matter?
Mike Yawn rose and stated: “I’m Mike Yawn. I’ll speak as the Chairman of the Planning Board. First of all, I would agree with our Town Attorney, and I would say that Mr. Richtor was our consultant, from the School of Government, who came in and helped us work through all our zoning issues. We looked at the wording. And yes, we did look at it and say yeah, it was rezoned completely R-20 and Mr. Richtor instructed us that’s what we should do. Now, I have 2 or 3 things that are issues that I think you guys ought to look at.
1. I think this is one of those famous 2-1 1993 votes. I don’t know the answer to that, but I’ll let you guys focus on that.
2. As Ms. Hill pointed out, we went through 35 different properties and this is one of them that was identified as, I’ll call it suspect, because it was felt that the verbiage was vague. And actually our Board of Alderman, as part of the review process, instructed the Planning Board to look at this property, and I think there were a couple of others we had to look at as well. “
Alderman Peters responded to Mr. yawn that he would reiterate that we need to remand it back to the issues that you’ve addressed, and the issues of the legality of the building permit are resolved before this Board can make a ruling.
Mr. Kilroy stated that the intent in the ordinance was as plain as the rump on a goat. That’s what they did in 1993. They made it R-20. The statute says that you can change only with the consent of the owner if he has a valid building permit. Now, we are using a ruse. Trying to go back and take away a man’s building permit. He made the application, he made the application on that zoning permit, and it was signed off on. He has spent an awful lot of money, and not only does the statue say, no you can’t do it, it’s an estopple.
Mr. Johnson stated that it’s an equity transfer.
Alderman Tuman said that the point that he brought up, saying that in 1993 the property was never rezoned, because it did not meet the legal requirements for voting a zoning change. Mr. Kilroy said that was Mike Yawn’s opinion, but he does not have the experience and the expertise to have a legal opinion on that. Mike Yawn said that he had brought it up, and his personal belief is that a 2-1 vote in 1993 was so long ago, it has been explained to me at least once. That there is a 60 or 120 or 90 day window that you have to appeal these. And if it had been appealed in 1993, that it could have been appealed, but, he thought the horse was out of the barn.
Mayor Knowles asked if any others would like to make comment. He then asked the Board “Are we going to take a motion?”
Motion made, second given.
Motion to close Public Hearing passed unanimously
Mayor Knowles: Now can we entertain a motion.
MOTION: Alderman Peters made a Motion that “we remand this back to the Planning Officer to resolve the issue of legality of the building permits before a final resolution can be made.”
Discussion: Mr. Bryant stated “One thing I did want to make clear here, I got the building permit a little over a year old. The first 6 months I was harassed, saying I had to have a sprinkling system. But I had to go hire an engineer and spend 10,000.00 dollars . Then you know what he said? I can’t use that. You got build a bridge, a thirty thousand pound bridge. “ OK fine. I go the get the engineering on the bridge. Get ready to build, boy, she’s got me. Then here comes the fire department. Our biggest truck filled with water, 45,000 pounds . The Inspector said “you have to build a 50,000 pound bridge.” That what he said, right down there right now. Over ½ million dollars to put it in.”
Mayor Knowles asked Ms. Hill if she wanted to say something about the expiration.
Ms. Hill responded that the only comment she had on the expirations is that, if the matter is tabled to where that staff will do more research and come back to the Board and she will come back also with the building inspector, as well as the whole file and tell the Board whether or not the permits were actually withdrawn by the owner, or whether they expired or what the status is regardless of what else went on.
Mayor Knowles stated that the motion was on the floor, and asked if he heard a second?
Alderman Farley stated he would second it.
Mayor Knowles asked if there was any other discussion.
Votes: Ayes – Alderman Farley, Peters, Hardison
Opposed – Aldermen Tuman and Handy
ACTION: Motion passed to remand back to the Planning Department to determine if permits have expired before a final decision can be made.
OLD BUSINESS
Item b. Appeal of rezoning of tax ID # 763-1.3 by Mr. Tony Currin
Action Required: Decide on Owner’s Appeal of Property
Recommendation: Correct the Zoning Map to reflect the October 7, 1993 Board of Aldermen minutes, as recommended unanimously by the Planning Board.
Staff Report by Zoning/Planning Administrator Deborah Hill.
Town Attorney Kilroy stated that was just looking back through our ordinance, to see if we had in some way made it so in some way our planning board has now become a posse; going back for the past 15 years, trying to nitpick, to find little bitty things to change zoning here and there. He stated that it’s over, its done, its written in concrete, no body challenged it, let’s move on. If its there since ‘93 don’t touch it.
There was a discussion about the Planning Board being charged with correcting maps and the number of votes required to legally change zoning maps.
Charles Riggs spoke for Mr. & Mrs. Currin stating they received documentation and a letter from the town for approval for rezoning in 1993. There was never a challenge.
MOTION: Alderman Peters made a motion to “As a Body correct the map and change it from Con D RMH to R 20, correcting the map as the intent was in 1993.”
Motion seconded by Alderman Fred Handy.
Discussion: Alderman Farley stated he had a problem with the 2-1 vote of 1993 and that if you can’t determine the intent you have to go by what the law says.
VOTE: Yea: Aldermen Handy and Peters
Nay: Aldermen Farley, Tuman, and Hardison
ACTION: Deny Property Owners’ Appeal to Change Zoning from CON D RMH to R 20.
OLD BUSINESS
Item c. Boardwalk Villas PRD Site Plan
Recommendation: Formally refer the site plan to the Planning and Zoning Board for further recommendation.
Mr. Steve Coggins represents Boardwalk Villas. He referred to correspondence of May 18, 2007, June 29, 2007, and July 11, 2007.
Steve Coggins, Counsel for Signature Coastal – Boardwalk Villas
“The Planning Board of NTB on 5/10/2007 favorably acted upon a “SDP” with conditions that have been met. The applicant’s position has been stated by correspondence from its counsel on May 18, 2007, June 29, 2007, and July 11, 2007, which we incorporate by reference and place in the record.
Whether or not necessary, it was appropriate for this Board to look over the SDP on June 1, 2007, July 5, 2007, and tonight.
Should the Board remand to the Planning Board this evening, we will continue to do our best to work with staff and the Planning Board, and this Body to move forward with what we believe to be a project with which all can be proud. “
ACTION: Motion passed to remand to Planning and Zoning Board.
Mayor Knowles announced they would skip to NEW BUSINESS
NEW BUSINESS
Item a. Appeal of 2007 Zoning Map, Mr. Marshall Dotson
Action Requested: Hold hearing. Approve/Disapprove rezoning request.
Staff Recommendation: Deny Appeal and Mr. Dotson submit a Rezoning Application or if he contests the validity of the Zoning Map that he appeal directly to Superior Court.
Discussion regarding 1996 storm damage, property being under water, later recovering; original map showing the water has accreted from Ocean side.
Motion by Alderman Peters: “Deny Request.”
Motion seconded by Alderman Tuman
Vote: Unanimous
ACTION: Deny request of Marshall Dotson to change zoning map of 2007.
Alderman Handy requested that he be excused at 10:20 P.M.
NEW BUSINESS
Item b. Proposal for Financing of Police Car and Fire Truck
Recommendation: Recommend awarding financing to BB&T. The BB&T rate for the police car rate is 3.94% and First Citizens’ rate is 4.26%. The BB&T rate for the fire truck is 4.03% and the First Citizens rate is 5.00%.
Action Requested: Approve or disapprove financing proposals.
MOTION: Alderman Peters moved to approve low bid submitted by BB&T for financing of police car and fire truck.
Motion seconded by Alderman Tuman.
Discussion: Alderman Farley stated that the money should come out of the Capital Reserve Fund – that’s what it was set up for. Alderman Peters stated that isn’t the issue. Alderman Hardison asked if the funds were budgeted, and if it is a capital improvement. Alderman Tuman stated that they voted to approve the Town Manager’s budget.
VOTE: In Favor: Aldermen Tuman and Peters
Opposed: Aldermen Farley and Hardiso
Mayor voted “Yea” to break tie vote.
ACTION: Approved BB&T bid to finance new fire truck and police car.
Open Forum
Mike Yawn: “The Town Attorney said the planning Board is a “posse.”
There have been three issues, two appeals, one requested by the Board of Aldermen. None were brought by the Planning Board. I want to thank all of the Planning Board Members. They joined because the maps were a mess. They have contributed $200,800 worth of time to the Town.”
Sue Tuman: “Marshall Dotson was mistaken. He was the Town Attorney in 1993.”
Attorney’s Report
Attorney Fees in condemnation cases are $67,000. The Order was signed July 6th by Judge Alford awarding attorney’s fees and costs in the Town of North Topsail Beach cases.
Attorney Kilroy will file an appeal by Monday. Kilroy stated that the Judge’s order doesn’t touch all of the bases. He will write a letter for distribution to the Board.
Mayor’s Report
Today the Connect CTY system was launched with a message to our residents. The League of Municipalities will be 100 years old next year and they are collecting old pictures. Please bring in any old pictures you may have to present to the League for their Anniversary.
Aldermen’s Report
Aldermen Farley, Tuman and Peters all remarked that the presentation by CP & E was very good and brought them up to date
Alderman Peters: The crux of the meeting regarding the article “Who’s Telling the Truth” is that:
1. We need better communication on the Board
2. We need to resolve things perceived to be made outside of the proper forum
3. We need to listen to others
4. We need to do some self-analysis
5. We need to cut down divisions among us.
Alderman Hardison: That’s what I was saying.
Adjournment
Alderman Farley moved to Adjourn, seconded by Alderman Farley. The meeting of the Board of Aldermen was adjourned at 10:54 P.M.
Minutes prepared by Kathleen L. Clough, Town Clerk.
October 4, 2007 Date Approved