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The Duck Town Council moved to approve a special use permit (SUP) to allow for expanded capacity at NC Coast Grill & Bar during their November meeting. In addition, a SUP was granted to local homeowners for the construction of a retaining wall to support fill in the Bayberry Bluffs subdivision, and an amendment to the town standards regarding allowances for previous surface materials of single-family homes was sent back to the planning board for further discussion.

During the first public hearing of the meeting, Joe Heard, director of community development, brought the council up to speed on NC Coast Grill & Bar and its request for a SUP, an agenda item which had been previously tabled to this meeting. The property was redeveloped in 2019 and converted into a restaurant for lunch and dinner service. Shortly after opening, the COVID-19 pandemic struck. The Town of Duck had allowed for outdoor seating to spread out existing seating capacity at that time. “At no time did it [the town] allow for additional capacity, I do want to be clear on that,” Heard specified.

Since 2020, NC Coast has operated at the expanded capacity allowance which was temporarily in place during the pandemic. In 2023, town staff pointed out that the restaurant was not under compliance, and in June of 2024, staff took more severe enforcement measures. A SUP application was submitted by the applicant and owner of NC Coast, Wes Stepp, in July. Stepp requested deferral to the November council meeting in order to receive a completed wastewater study and to hear back from the Dare County Environmental Health Department (DCEHD) regarding septic capacity.

The proposed expansion would result in need for additional seating and parking. The application proposed an additional 18 seats for lunch service, requiring 19 total parking spaces (22 less the 3-space reduction previously granted), an additional 24 seats for dinner service and 2,324 sq. ft. of additional outdoor seating, requiring 38 parking spaces (41 less the 3-space reduction previously granted). Heard made note that the changes would occur indoors and outdoors, but no other improvements such as an addition would take place.

In order to suffice the parking shortage, the applicant proposed a shared use parking agreement with their neighbor, Twiddy & Company Realtors. The town found that this shared parking location is within acceptable limits pursuant to off-site parking requirements, and the 39 current parking spaces at Twiddy would more than accommodate.

As for the wastewater analysis, a flow capacity study was performed through the peak season (June through September 2024) and DCEHD had authorized an additional seating capacity not to exceed 106 restaurant seats plus 12 bar seats at the site.

Staff recommended approval of the SUP with additional conditions including overall seating capacity is consistent with DCEHD approval, the submittal of a final engineered-stamped site plan, the shared parking agreement with Twiddy to be formalized and recorded with the Dare County Register of Deeds, new signs or exterior lighting to be in compliance with town code and adequate signage be provided directing customers to the Twiddy lot if the current parking lot at NC Coast is full. Heard pointed out that the proposed seating capacity changes between lunch service and dinner service would be difficult to enforce as staff does not have the capacity to check for compliance regularly.

During discussions, the council’s concerns regarded regulating capacity from lunch to dinner service. Councilman Kevin Lingard clarified with Heard and engineer Andy Deal whether the overall limiting factor during the day was from the DCEHD requirement or the town’s parking requirements. “The one hundred and six is an overriding requirement, daytime, nighttime doesn’t matter, that’s what the health department said we can have. The town’s restriction is based on parking,” Deal noted.

Heard suggested that lunch service seating could be regulated by a maximum total number of seats, to be used indoors or outdoors. Councilman Sandy Whitman questioned what would occur in the case of inclement weather, and how many seats were currently allowed inside the restaurant, which is 38 based on the previously granted SUP by the town. Councilwoman Brenda Chasen questioned whether there was a way to calculate how many seats would be allowed outside based on square footage, to which Deal gave a soft estimate of 15 sq. ft. per seat. Based on that number, Heard noted that an overall 80 seats for lunch service would be suitable based on the calculation and numbers provided by Deal. It was determined that the ordinance would give council the ability to authorize flexibility to shift seating from indoors to outdoors and vice versa based on the owner’s discretion, as long as the maximum seating did not exceed what the building code allowed.

“I think what we’re trying to do here is give you the flexibility that you were expecting but not the way it’s written down” Lingard said. Crouse Gray, the attorney representing Stepp, asked then to amend the application to note that a total of 80 seats would be allowed during lunchtime service, to be distributed at the owner’s discretion. The dinner service portion of the proposal would remain the same: an additional 24 seats and 2,324 sq. ft. of additional outdoor seating.

After several members of the town came forward to vouch for Stepp and show their support of the proposal, Chasen moved to approve the requested SUP with the town’s conditions and the amendment that was brought up during the hearing. The motion passed 5-0, followed by a large round of applause from the crowd.

A second public hearing followed a short recess, regarding a SUP application submitted by William and Lori Gray of 146 Cook Drive. The SUP would grant the Grays approval to construct a retaining wall to contain and support fill up to 2.8 ft. high. Two residents of Bayberry Bluffs, where the subject property is located, petitioned to be a party to the hearing: Reed Carter and Frank Nowaczyk. Both were granted approval to become parties.

Heard took to the podium and explained that there is a 10,000 sq. ft. nonconforming lot, presently vacant after a recent demolition, owned by the Grays. Portions of the lot have low elevation and are subject to flooding. The owners plan on relocating a 2,000 sq. ft. single family home from 107 Speckle Trout Drive to the subject lot, and redevelopment is proposed to include improvements such as a swimming pool, patio, driveway and gravel pathway. The applicants plan to add up to 2.8 ft. of fill in order to meet the town’s regulatory flood protection elevation. The proposed retaining wall would only support fill associated with the single-family dwelling and parking area, but requires a SUP to allow the retaining wall to support and contain the fill.

Heard noted that if the parking space noted on the plan furthest to the left was shifted to the east side of the proposed parking area, it would negate the need for a retaining wall along that portion of redevelopment. If a revised layout noting this change was acceptable by the applicant, then all criteria for approval by staff would be met. The two conditions staff had to go along with approval were that the applicants must obtain necessary land disturbance and building permits prior to commencing, and all areas of land disturbance must be stabilized prior to issuance of a COC.

William Gray, the applicant, voiced that he was willing to accept the two conditions recommended by staff along with moving the west-most parking space to the east side. This would eliminate 25 ft. of the proposed retaining wall.

Nowaczyk questioned how many truckloads of fill would be required for this project, and brought up storm water draining and flooding issues during his presentation. “The town already knows that our spot is an area that’s going to be prone to flooding,” he said in showing photos of flooding around his property from 2016. Other public commenters noted that Bayberry Bluffs has an “apparent” storm water issue, and this project could have negative repercussions pertaining to future storms.

Engineer Michael Strader explained that the applicant made conscious choices in regard to the proposed development to minimize the impact of fill on any adjoining properties, including a permeable driveway and the retaining wall. Carter was in support of the project, saying, “I appreciate the fact that he wants to do a bulkhead.”

Mayor Pro Tempore Monica Thibodeau pointed out that Nowaczyk had added a ground-level space and a concrete driveway when his property was moved to its current location. She also added, “What I’m seeing in these photos is flood water issues in Bayberry Bluffs that currently exists … so, it’s not been created by this development.” Nowaczyk agreed.

“You all expect this lot to be your sink,” Lingard stated following the hearing’s public comment. “It’s not this owner’s responsibility to take your water. It is a low point and that just seems to be that you’re expecting this homeowner to be a reservoir for your storm water. I don’t feel like that’s his responsibility.”

In a vote 5-0, a motion of approval for the SUP made by Chasen was passed.

During their third public hearing, the council discussed clarifying the town’s standards for use of pervious materials on single-family residential properties. Specifically, the draft ordinance includes exemptions for artificial turf and water in swimming pools to make town standards consistent with recently adopted state legislation. Subsection 7 proposes a 100% lot coverage credit for pervious parking surfaces. Subsection 8 proposes a 40% credit for other types of semi-pervious parking surfaces and pervious surfaces used elsewhere on a property. The ordinance also proposes standards for appropriate subsurface base materials, certification of perviousness by a North Carolina licensed engineer, long-term maintenance of the pervious surface, and recordation of maintenance agreements.

Thibodeau felt new standards might discourage people from using permeable substances “because of the recordation.” She added, “and I am concerned that it’s going to get lost in the buying and selling of property.” In order to avoid confusion when it comes to what needs to be recorded and what doesn’t, she wanted to “better understand standardization and make it boilerplate for those involved. I think we have some work to do before moving forward.”

Whitman felt the planning board had had enough time with the matter. Mayor Don Kingston was in agreement with Thibodeau. “I’m not sure ready to support this yet. There’s some issues with interpretation, tracking, turnover of houses, grandfathering … it’s too difficult to put out there and enforce.”

Thibodeau motioned to send the item back to the planning board, with an ask for concrete mechanisms and examples of plans of procedures that would be involved. The motion carried 4-1, with Whitman dissenting.

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