TOWN OF NAGS HEAD
BOARD OF COMMISSIONERS
SPECIAL MEETING
February 10, 2005
The Town of Nags Head Board of Commissioners met in the Board Room at the Nags Head Municipal
Complex at 5:30 p.m. on Thursday, February 10, 2005.
COMRS PRESENT:
Mayor Robert Muller; Mayor Pro Tem Brant Murray; Comr. Anna Sadler; Comr.
Wayne Gray; and Comr. Bob Oakes
COMRS ABSENT:
None
OTHERS PRESENT: Town Manager Webb Fuller; Town Attorney Ike McRee; Charlie Cameron; Dave
Clark; Tim Wilson; Kim Kenny; Nancy Carawan; Roberta Thuman; and Town Clerk Carolyn Morris
Mayor Muller called the meeting to order at 5:30 p.m. He noted that all Commissioners were present.
AWARD OF BID FOR CHEMICAL TANK REPLACEMENT PROJECT AT THE FRESH POND WATER
TREATMENT PLANT
Public Works Director Dave Clark summarized his memo dated February 11, 2005, which read in part as
follows:
"The approved FY 2003-2004 Capital Improvements Program for the Water Fund included replacement
of the existing chemical storage tanks at the Water Plant. These two tanks are used to store caustic
soda and alum, used in the water treatment process at Fresh Pond. The original project estimate,
provided by the Town’s consulting (water) engineer, was $118,042. This figure was provided when the
’03-04 CIP budget was prepared in December 2002. A breakdown of that estimate is attached.
'As explained in the attached letter from Cavanaugh & Associates, dated February 4, 2005, the project
has been bid three times, most recently this past fall, and the current (negotiated) final price is
$174,100.00. The primary reason for this increase is the cost of concrete. Originally estimated at
$17,500 (for the pad, drainage and retention wall), the cost of the necessary concrete has now risen to
$75,000. If we proceed with the project at this time, we can complete it prior to the middle of June,
when we will start-up for this summer’s season. The contractor, Poquoson Construction Company, Inc.
has been informed by their supplier that another price increase is pending in early February for the tanks
themselves. Cavanaugh & Associates has reviewed the bids received and conducted the negotiations on
the Town’s behalf. They have recommended entering into a contract with Poquoson for this work. I
concur in this recommendation.
'Since this project will be financed over five years, the annual impact of the cost increase will be
approximately $12,443 (from $26,202 to $38,645 at an estimated interest rate of 5.5%). If the Board
wishes to proceed, please authorize the Town Manager to enter into a contract with Poquoson
Construction Company, Inc. for this project at a cost of $174,100.00.
Thank you for your
consideration."
Nags Head Board Meeting Minutes
February 10, 2005
Comr. Sadler questioned the lifetime of the storage tanks; Mr. Clark stated that the existing two (2)
tanks were installed approximately 20 years ago.
Mayor Muller explained that approval for the expenditure, as required by the Water Contract, requires
agreement from the Town of Kill Devil Hills and Dare County.
MOTION: Comr. Oakes made a motion to authorize the Mayor to sign the contract for the chemical
storage tank replacements, to request via letter authorization from Dare County and the Town of Kill
Devil Hills to expend the funds; and further to authorize staff to start work with the assumption that
Dare County and the Town of Kill Devil Hills will approve the expenditure. The motion was seconded by
Mayor Pro Tem Murray which passed unanimously.
CONSIDERATION OF REQUEST FOR PUBLIC HEARING FROM ELLEN KORNMEYER FOR
MASSAGE THERAPY BUSINESS AT PIRATE'S QUAY SHOPPING CENTER
The memo from the Town Clerk's Office dated February 8, 2005, was presented to the Board and read
in part as follows:
"Attached for your consideration is an application from Ellen Kornmeyer for a massage therapy business
at Pirate's Quay Shopping Center. Ms. Kornmeyer received approval from the Town to operate as a
massage therapist in 2003.
'As required by Chapter 12 of the Town Code, the applicant has signed the application under oath and
paid the required $150 application fee.
'Town departments (Public Safety and Planning and Development) are currently in the process of
investigating Ms. Kornmeyer application and will submit reports with recommendations.
'Applicable sections from Town Code Chapter 12 Businesses and Licensing and Town Code Chapter 48
Zoning are attached.
'Massage Therapy Businesses are conditional uses and require a Public Hearing. Staff is requesting that
a Public Hearing be scheduled for the March 2, 2005, Board of Commissioners meeting to consider Ms.
Kornmeyer's application."
MOTION: Mayor Pro Tem Murray made a motion to schedule a Public Hearing for the March 2, 2005,
Board meeting for Ellen Kornmeyer’s request for a massage therapy business at Pirate’s Quay Shopping
Center. The motion was seconded by Comr. Oakes which passed unanimously.
NEW TOWN MANAGER RESIDENCY AND HOUSING UPDATE
Mayor Muller asked Town Attorney Ike McRee to comment on the requirement of Town residency for the
new Town Manager.
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February 10, 2005
Town Attorney Ike McRee stated that the court cases on the issue of Town residency requirement are
mixed; the majority of the cases support authorizing units of government to require residency for certain
officials. He noted that in the City of Kinston, however, the residency requirement for a firefighter did
not withstand this challenge. In the majority of court cases, it was allowed; there must be
rationale/justification for the requirement.
It was Board consensus that the new Town Manager be offered a stipend/housing allowance to live
in Nags Head; Board members also felt the new Manager would have more at stake in the Town if
he/she purchased his/her own house.
Comr. Gray confirmed with Mayor Muller that discussion about the housing allowance and how much per
month to add to the salary would take place when negotiations begin.
Comr. Sadler said that she did not feel that now is the appropriate time to purchase property/housing
for the Town Manager; she agrees with the housing allowance and feels that it should be tied to the
salary.
MAYOR MULLER - RED LIGHT CAMERA UPDATE
Mayor Muller reported that he, Town Attorney Ike McRee, and Public Safety Director Charlie Cameron
met with School Board Chair David Oaksmith, Superintendent of Schools Sue Burgess, and the School
Board’s Attorney to discuss the red light camera program. Mayor Muller said that the feedback was very
positive.
Mayor Muller summarized his letter dated February 9, 2005, addressed to School Board Chair Dave
Oaksmith which read in part as follows:
"The Town of Nags Head is considering installing traffic control photographic systems (TCPS or red light
cameras) at intersections in Nags Head. The town is authorized to install these cameras under NCGS
160A-300.1. This legislation does not specify how the civil penalties generated by TCPS initiated
citations may be used. The Town had planned to use the funds to promote traffic safety through
education, enforcement and infrastructure improvements. A recent court case has raised a question
about constitutionality of such a plan. The case left the town with a choice, find a way to avoid a similar
lawsuit or forego the use of red light cameras until the legal issue is resolved. Rather than wait, the
Town is interested in negotiating an agreement with the Dare County Board of Education that would
provide for the clear proceeds of citations from the Town’s red light camera program be paid to the Dare
County Board of Education and used to provide school safety programs. We believe such a agreement
can provide a win-win opportunity for both organizations. The Board of Education will receive needed
funding for school safety programs and the Town will get the safety benefits that red light camera
programs have demonstrated in other areas.
'Specifically we propose the following:
 The Town may operate red light cameras as provided in NCGS 160A-300.1 though it is not
required to do so.

The Town may collect civil penalties for citations issued as part of the red light camera program
though it is not required to do so.
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Nags Head Board Meeting Minutes
February 10, 2005

The Town will pay to the Board of Education the clear proceeds of the citations from the red light
camera program.

The Board of Education aggress not to sue the Town over the disposition and use of the
proceeds from civil penalties and to assist in the Town’s defense in the event of a suit related to
the use of civil penalties from red light cameras.

The clear proceeds from the citations shall mean the funds remaining after paying for any lease,
lease-purchase, or purchase of the traffic control photographic system; paying a contractor for
operating the system; and paying any administrative costs incurred by the municipality related to
the use of the system.

The Board of Education will use the funds to promote safety in Dare County schools. Possible
uses might include:
o
On site traffic safety improvement
o
Traffic Safety instructional programs for students
o
School safety training for teachers and staff
o
Operating and capital costs for ongoing school safety programs
o
Training for local public safety personnel related to school safety
o
Shared operating and capital costs for programs provided by local governments related to
school safety.

25% of the first $100,000 in clear proceeds paid annually shall be spent in programs for the
Nags Head Elementary School

50% of the clear proceeds shall be spent in schools that include the Town of Nags Head in the
attendance zone

The agreement shall run for the length of the Town’s contract with vendor for TCPS services

Both parties agree to continue the distribution and use formulas for the length of the agreement
unless required to change by legislation. (If the legislation passes allowing the Town to keep
more of the fees the Town will abide by the agreement, if legislation passes that allows the BOE
broader use of the funds, the BOE will abide by the agreement.)"
Comr. Sadler spoke in favor of Senate Bill 35 which states that the School Board is to receive the “clear
proceeds” from the red light camera program. Mayor Muller said he will be sending correspondence to
legislative officials encouraging their support of Senate Bill 35.
Public Safety Director Charlie Cameron said that there will clearly be an impact in the contract
negotiation process with the Town’s contractor for the program - Redflex.
TOWN MANAGER FULLER - UPDATE ON SURFSIDE/SEAGULL DRIVES
Town Manager Fuller reported that he met with Ted Tindel of CAMA who is in charge of permitting. The
map which identifies a proposed road/path to serve the cottages on Surfside and Seagull Drives that
have no access from the east was reviewed. Any new road paved with public funds would have to meet
large structure setbacks; there is no opportunity for the Town to put a road between the two cottages
although the Town can always go to CAMA for a variance request. The material that can be used for
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Nags Head Board Meeting Minutes
February 10, 2005
parking includes stone, clay, or sand but crush/run cannot be used. CAMA will allow an individual to
negotiate an accessway as long as no public funds were expended; if public funds are involved, then the
large structure setbacks would be required. Town Manager Fuller said that while the State would allow
the property owner to create his/her own accessway, there may also be Town lot coverage among other
issues.
Town Manager Fuller reported that CAMA is not concerned about access via the beach as long as there
is no development; once there is development there is the requirement for a CAMA permit. The Town,
however, would have to negotiate with Fish and Wildlife for access on the beach; he questioned why the
Town would negotiate a property owner’s access.
Mayor Pro Tem Murray pointed out the possibility of east/west access via every other property. Town
Manager Fuller stated that the large structure rules apply because there would be more than 5,000
square foot of development; to utilize smaller accesses via every other property may be possible.
Town Manager Fuller said that since a lot of issues would be involved, i.e., septic tank, drainfield, lot
coverage, etc. he asked the Board before asking staff to do anything if the Board is willing to commit to
condemning property to provide access because otherwise it would be disappointing to a lot of people if
not everyone gave permission. If an individual property owner does not want it to happen, it will not
happen, unless the Board is willing to condemn property.
Comr. Sadler suggested that it may be best to try to obtain a variance from CAMA first; Mayor Muller
thought a variance may be possible because it could be considered a hardship that property owners
were unable to access their properties.
Mayor Muller summarized that if the Board is not ready to condemn property, then property owners
should be informed that because of CAMA, the Town cannot proceed. If the owners can come up with a
plan, then the Town will work with them to work on any issues that come up, i.e., the Board wants to
be able to provide access to the properties on Surfside/Seagull and may need to create a class of use for
endangered structures to which the Town’s rules do not apply.
Mayor Pro Tem Murray said that he feels that the Board should facilitate providing help to the property
owners and should host a meeting.
Mayor Muller questioned since the public road has been lost how does the Town plan on providing public
safety services to those houses in the middle of Seagull Drive; Public Safety Director Chief Cameron said
that the Town has plans to fight structure fires in this area.
Town Manager reiterated that while the Town is legally obligated to provide public safety services, it is
not legally obligated to provide access. He feels that the issue is a property owner issue first. If the
owners are not willing to get together and make decisions on their own, then he questioned why it is
Board and staff that needs to work out their problems for them.
Mayor Muller summarized Board consensus and stated that the Board feels that it has some obligation to
assist the property owners and feels that an easement of some width on oceanfront property is
achievable.
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February 10, 2005
Mayor Muller summarized three (3) possible Tiers:
Tier 1 - Talk to property owners and explain that according to CAMA, the Town cannot expend public
funds; if it is desired among property owners to facilitate access, the Town will work with them on Town
issues; the Town will require at least one parking space at each site.
Tier 2 - Talk to property owners and explain that according to CAMA, the Town cannot expend public
funds but here are the easements and if every property owner signs an easement and each is recorded,
then the property owner has the right to drive down the easement to their property.
Tier 3 - Both Tiers 1 and 2 apply and the Town approaches CAMA to seek a variance to allow the Town
to participate in the paving of the easements at some future time.
Board members spoke in favor of the Tier 2 option for both Surfside and Seagull Drives.
MOTION: Mayor Pro Tem Murray made a motion to direct staff to coordinate the preparation of
easements to create 10' access easements along the west property lines of houses that front on Surfside
Drive and Seagull Drive and other areas (bends) as needed to complete the access from north to south
at both locations; further that easements, after prepared, be mailed with a letter to each property owner
explaining that the Town is unable to do the improvements, however, with the access easements, they
can do improvements to that easement if they choose; afterwards the Town is to schedule a meeting
with the property owners to answer their questions and to facilitate the easements. It was confirmed
that the lots affected are those lots that front on Surfside and Seagull Drives and that are identified on
the map presented (Planning GIS map with blue/red lines identifying easement area). The motion was
seconded by Comr. Sadler which passed unanimously.
Mayor Muller suggested that Beach Nourishment Consultant Lee Wrenn be contacted to see if it would
be cost effective for him, as opposed to the Town Attorney, to do the work for the Town. It was
pointed out that a survey would be required.
The Planning GIS map of the easement area on Surfside and Seagull Drives, presented to and referred
to by the Board, is attached to and made a part of these minutes as shown in Addendum “A”.
ADJOURNMENT
MOTION: Comr. Oakes made a motion to adjourn. The motion was seconded by Comr. Sadler which
passed unanimously. The time was 6:45 p.m.
_______________________________
Carolyn F. Morris, Town Clerk
Approved:
March 2, 2005_____________
Mayor:
___________________________
Robert W. Muller
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