Fact Sheet Ordinance Regulating Erosion Threatened Structures Town of Duck, North Carolina August 15, 2011 What is being considered? The Town of Duck Council is considering an ordinance to limit the encroachment of erosion threatened structures on the ocean beach. This ordinance would generally require the removal or relocation of structures that are seaward of the dune system. The Town Council held a public hearing on this ordinance on July 6, 2011. The Planning Board and Town Council have made revisions to the ordinance since the initial Public Hearing and will accept comments on this revised proposal on Wednesday, September 7, 2011. Background and Purpose Certain areas of Town have seen accelerated erosion in recent years. Several houses, pools and dune walkover structures have been relocated or reconstructed in response to this erosion. The Town is working on a plan to manage the shoreline which includes a study of options to address erosion. However, the Town is also considering an ordinance to address erosion threatened structures. This would generally require property owners of these structures to plan for their relocation or removal if they can no longer be maintained in a manner that does not impact the publicly used portion of the beach. The beach is the Town s most important asset and it is critical that it remain open and unobstructed, free of structural impediments and associated litter and debris. How will this affect me as an oceanfront homeowner? The ordinance requires the removal or relocation of structures that are a certain distance seaward of the dune system, depending on the type of structure. The ordinance divides structures into three main categories: 1) Pile supported (i.e. houses, elevated decks, wood foundation sheds, etc.) 2) Non-pile supported (i.e. pools, concrete slabs) 3) Dune walkovers (less than six feet wide) The following diagrams explain the regulations applicable to each structure category. The ordinance text is attached to this fact sheet. Pile Supported Structures: Diagram 1 Encroachment Limit First Line of Stable Natural Vegetation Limit of Normal High Tide Seaward Toe of Dune 10 Dry Sand Beach Wet Sand Beach Pile Supported Structures (i.e. house, dune deck, shed, etc) must not extend more than ten feet past the seaward toe of the dune system. In no instance shall the structure be located more than 20 feet east of the adjacent first line of stable natural vegetation (see illustration in diagram 4). 1
Fact Sheet Ordinance Regulating Erosion Threatened Structures Town of Duck, North Carolina August 15, 2011 Non-Pile Supported Structures (i.e. pools, concrete slabs): Encroachment Limit Diagram 2 First Line of Stable Natural Vegetation Due to their risk of collapse, non-pile supported structures must not encroach beyond the first line of stable natural vegetation or the dune escarpment. Dune Walkovers: Encroachment Limit Diagram 3 Limit of Normal High Tide Seaward Toe of Dune 20 Dune walkovers less than six feet in width can extend no more than 20 feet east of the seaward toe of the frontal dune. If dune walkover structures become substantially damaged or unsafe they may be required to be relocated back to the dune escarpment. Beach Fill Oceanfront property owners have the ability to conduct beach fill or beach scraping projects to protect their property. The ordinance allows the seaward toe of the beach fill/scraping slope to be applied as the seaward toe of the frontal dune as long as it does not extend the structure more than 20 feet east of the adjacent first line of stable natural vegetation. How can I find out more or provide input on this issue? Adjacent First Line of Stable Natural Vegetation The public hearing will be held on Wednesday, September 7, 2011 at 7:00 p.m. at the Town of Duck Administrative offices. The Town Council agenda will be posted on the Town s website approximately five days in advance of the meeting at www.townofduck.com/towncouncil.htm. You may also email comments to the Town Clerk, Lori Kopec, at lkopec@townofduck.com. If you would like to discuss the issue further, you can contact the Town s Director of Community Development, Andy Garman, at (252) 255-1234 or via email at agarman@townofduck.com. 2 Diagram 4 20 Seaward Toe of Dune Before Beach Fill Seaward Toe of Dune After Beach Fill
AN ORDINANCE AMENDING THE ZONING ORDINANCE OF THE TOWN OF DUCK, NORTH CAROLINA PERTAINING TO THE ENCROACHMENT OF STRUCTURES ON THE OCEAN BEACH DUE TO EROSION Ordinance No. 11-04 WHEREAS, the Town Council of the Town of Duck may enact ordinances to protect the health, safety, and welfare of its citizens under the North Carolina General Statutes 160A-174; and WHEREAS, the Town Council of the Town of Duck may enact and amend ordinances regulating the zoning and development of land within its jurisdiction and specifically the location and use of buildings, structures and land; and WHEREAS, Article II of the Charter of the Town of Duck establishes the Town Boundaries of the Town of Duck to extend 1,000 feet easterly from the mean high water mark of the Atlantic Ocean; and WHEREAS, the Town finds that the encroachment of man-made structures onto the ocean beach or within the public trust area represents an undesirable condition that will negatively impact the aesthetic, natural, and recreational value of the Town s most important asset; and WHEREAS, the Town encourages oceanfront property owners to proactively take steps to protect their structures in a manner that does not impact the public enjoyment of the ocean shoreline, including but not limited to, planning for the landward relocation or removal of structures threatened by erosion, conducting responsible beach maintenance activities such as sand fencing, dune planting, beach fill and dune enhancement projects, and properly siting and constructing oceanfront structures in a manner that mitigates future impacts to the public beach; and, WHEREAS, the Town s CAMA Land Use Plan states that the Town s primary goal is to Preserve, protect, and enhance the Atlantic Ocean Shoreline and ensure future generations are able to enjoy its beauty and bounty and can continue to use the beach and water for active and passive recreation and leisure activities; and WHEREAS, this goal is further supported by the following CAMA Land Use Plan goals, objectives and policies: POLICY#1a: Duck supports the continued management of oceanfront shoreline development to protect and preserve the natural and recreational resources along the oceanfront. 1
POLICY #1b: Duck will use its police powers to adopt and enforce ordinances and procedures to regulate land use, development, and redevelopment and supports applicable State and Federal laws and regulations regarding building, land uses, and development in areas of environmental concern. Duck reserves the right to review, comment, advocate, or oppose any proposed regulations or programs that may affect the regulation of ocean shoreline areas of environmental concern. POLICY #1c: Duck will: provide clear direction to assist decision making and consistency findings for zoning, divisions of land, and public and private projects; encourage efforts and programs to keep beaches clean and free from refuse; and, support programs and initiatives to annually assess shoreline changes (erosion and accretion). OBJECTIVE #1c: Adopt and apply development policies that balance protection of natural resources and fragile areas with residential and economic development. OBJECTIVE #1d: Develop policies that minimize threats to life, property, and natural resources resulting from development located in or adjacent to hazard areas, such as those subject to erosion, high winds, storm surge, flooding, or sea level rise. GOAL #13: Conserve and maintain barrier dunes, beaches, wetlands, and other coastal features for their natural storm protection functions and their natural resources giving recognition to public health, safety, and welfare issues. POLICY #13a: Duck will prevent the disruption of natural hazard areas by adopting and enforcing ordinances and procedures to regulate land use, development, and redevelopment and supports applicable State and Federal laws and regulations regarding land uses and development in areas of environmental concern. NOW THEREFORE BE IT ORDAINED by the Town Council for the Town of Duck, North Carolina that the Zoning Ordinance shall be amended as follows: PART I. Add a new section, Town Code Section 156.063 Encroachment of Structures on the Ocean Beach, as follows: 156.063 ENCROACHMENT OF STRUCTURES ON THE OCEAN BEACH (A) Purpose The purpose of this ordinance is to minimize the encroachment of structures onto the publicly used portion of the beach as a result of erosion. For the purposes of this section, the publicly used portion of the beach includes the area east of the seaward toe of the frontal dune, the first line of stable natural vegetation, or the dune escarpment, whichever is farthest landward. 2
(B) Intent (1) To preserve necessary longshore access of ocean rescue and emergency vehicles. (2) To limit unsafe conditions in any publicly used portion of the beach caused by structures which have become vulnerable to repetitive damage as a result of erosion. The Town finds that oceanfront structures are at far greater risk of damage when the dune system recedes landward of their location due to erosion. Without the protection afforded by the dune system, structures are subjected to direct wave run-up and storm surge conditions which increase the frequency and intensity of damage they will incur. When damaged structures are present seaward of the dune system and located on the publicly used portion of the beach, they are accessible by the public and therefore pose health and safety risks associated with human exposure to scattered debris and litter, sharp objects including nails, wood, and broken glass, downed electrical service lines, damaged wastewater system components, and structures at risk of imminent collapse. (3) To preserve the commonly accepted public trust rights to recreate within the dry sand beach area and ensure that public trust lands, which also include the wet sand beach and submerged lands, remain open and unobstructed. (4) To protect and preserve the natural, aesthetic, and recreational resources along the oceanfront. (C) Definitions. OCEAN BEACH. The lands subject to public trust rights adjacent to the ocean that consist of unconsolidated soil materials that extend from the normal low tide line landward to either: (1) the first line of stable natural vegetation, or (2) the toe of slope of the primary or frontal dune. The ocean beach shall include the wet sand beach and the dry sand beach as defined in this section. DRY SAND BEACH. The area of the ocean beach between the normal high tide line and the seaward toe of the frontal dune or the first line of stable natural vegetation in such cases where the seaward toe is not readily identifiable. DUNE SYSTEM, FRONTAL DUNE. The first mound of sand located landward of the beach having sufficient vegetation, height, continuity, and configuration to offer protective value. 3
DUNE SYSTEM, PRIMARY DUNE. The first mound of sand located landward of the beach having an elevation equal to the mean flood level for the area plus 6 feet. The primary dune extends landward to the lowest elevation in the depression behind the same mound of sand. DUNE WALKOVER STRUCTURE. A raised walkway constructed for the purpose of providing access to the beach from points landward of the dune system. ESCARPMENT. The vertical drop or steep slope in the beach profile separating two comparatively level or more gentle sloping surfaces caused from high tide or storm tide erosion. FIRST LINE OF STABLE NATURAL VEGETATION. This line represents the boundary between the normal dry sand beach, which is subject to constant flux due to waves, tides, storms and wind, and the more stable upland areas. The vegetation line is generally located at or immediately oceanward of the seaward toe of the frontal dune or erosion escarpment. The Division of Coastal Management or Local Permit Officer shall determine the location of the stable and natural vegetation line based on visual observations of plant composition and density. If the vegetation has been planted, it may be considered stable when the majority of the plant stems are from continuous rhizomes rather than planted individual rooted sets. The vegetation may be considered natural when the majority of the plants are mature and additional species native to the region have been recruited, providing stem and rhizome densities that are similar to adjacent areas that are naturally occurring. In areas where there is no stable natural vegetation present, this line may be established by interpolation between the nearest adjacent stable natural vegetation by on ground observations or by aerial photographic interpretation. TOE OF SLOPE. That point between the beach and the dune system where the uniform line of slope from the ocean toward the barrier dune begins an abrupt change upward and becomes the slope of the barrier dune. WET SAND BEACH. The area of the ocean beach between the normal high tide line and the normal low tide line. (D) Limits of Encroachment. This section describes when a structure is determined to be in violation of this ordinance as a result of its encroachment on the ocean beach. (1) Principal buildings. No portion of a principal building shall be permitted to encroach onto the ocean beach more than 10 feet beyond the seaward toe of the frontal dune or more than 20 feet beyond the first line of stable natural vegetation, whichever is less. (2) Accessory buildings or structures. Non-pile supported structures shall not encroach onto the ocean beach beyond the first line of stable natural vegetation or dune 4
escarpment, whichever is most seaward. Pile supported accessory buildings or accessory structures shall not encroach onto the ocean beach more than 10 feet beyond the seaward toe of the frontal dune or more than 20 feet beyond the first line of stable natural vegetation, whichever is less. (3) Dune walkover structures. When in the judgment of the Director of Community Development a dune walkover structure incurs substantial structural damage or presents a risk to public safety, the structure must be relocated landward to the dune escarpment. In no instance shall a dune walkover structure extend more than 20 feet seaward of the seaward toe of the frontal dune or dune escarpment. Reconstructed dune walkover structures shall be constructed so that the lower portion of the stairs turns parallel to the dune if more than ten stairs are required to provide access to the surface of the beach. (4) In no instance shall a principal building or an accessory building or structure be located so that it encroaches onto the wet sand beach observed under normal high tide conditions for a measurement period of at least three days. (5) Beach scraping and beach fill. When beach scraping and/or beach fill is used to provide protection to a structure or to prevent its collapse, the seaward toe of the slope of the permitted beach scraping/fill area may be considered as the seaward toe of the frontal dune for the purposes of determining violations in accordance with this section. In no instance shall beach scraping/fill cause a building or structure to extend more than 20 feet beyond the adjacent first line of stable natural vegetation directly north and south of the subject property. (E) Administration and Enforcement (1) The Director of Community Development or his/her designee shall be responsible for determining when a building or structure is in violation with the provisions of this section. (2) When the Director of Community Development observes that a structure appears to be in violation of this section, the Director of Community Development shall issue and cause to be served upon the owner of and parties in interest in the structure, a complaint stating the charges and containing a notice that a hearing will be held before the Director of Community Development at a fixed place, not less than 10 nor more than 30 days after the serving of the complaint. (3) The owner or any party in interest shall have the right to file an answer to the complaint and to appear in person, or otherwise, and give testimony at the place and time fixed in the complaint. 5
(4) Any person desiring to do so may attend the hearing and give evidence relevant to the matter being heard. The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the Director of Community Development. (5) After the notice and hearing, the Director of Community Development shall state in writing the determination as to whether the structure violates this section. (6) If the Director of Community Development determines that the structure is in violation, the Director of Community Development shall state in writing findings of fact to support that determination and shall issue and cause to be served upon the owner of and parties in interest in the structure an order directing and requiring the owner of and parties in interest in the structure to correct or abate violations of this section within a specified period of time not to exceed 90 days. (7) In addition to the remedies prescribed by Town Code and by North Carolina law, the Director of Community Development may use any and all remedies authorized and prescribed by North Carolina General Statutes Section 160A-175 to enforce the provisions of this section. (F) Permits for Structures in Violation of this Section. No work shall be performed upon and no development permits shall be approved or issued relating to any building or structure in violation of this ordinance except as necessary to eliminate the violation(s). Any work required in order to demolish or remove such a building or structure from the public trust area or public land or required to perform specific work necessary to comply with directions contained within the Notice of Violation may be performed upon issuance of any permits necessary for the work. (G) Town Council Authority to Temporarily Waive Ordinance Requirements In the event that the Town may be impacted by a severe storm event which causes significant structural damage and erosion and also meets the conditions for declaration of a building moratorium as described in Town Code Section 152.03 (B), the Town Council by declaration may temporarily halt the enforcement of this ordinance to allow property owners and the Town to initiate recovery activities which may eliminate some or all of the conditions that would otherwise be considered a violation under the provisions of this section. This waiver shall be redeclared every 60 days if it is the Town Council s intent to continue the waiver in effect. 6
PART II. This ordinance shall be effective upon its adoption. ATTEST: Lori Kopec, Town Clerk Dave Wessel, Mayor Date adopted: Motion to adopt by: Vote: AYES NAYS 7