The Henderson County
Board of Commissioners met for a special called meeting at in the auditorium at
Those present were: Chairman Bill Moyer, Vice-Chairman Charlie
Messer, Commissioner Larry Young, Commissioner Shannon Baldwin, Commissioner Chuck
McGrady, County Manager
Also present were: Planning Director Karen C. Smith, Planners Autumn Radcliff, Anthony Prinz, and Matt Cable, Planning Project Manager Lori Sand and Zoning Administrator Natalie Berry.
CALL TO ORDER/WELCOME
Chairman Moyer called
the meeting to order at approx. and welcomed all in attendance. He explained that the subject
of this meeting was a rezoning application, R-04-04 as amended, submitted by
Ingles Markets, Inc. The application
requests that the County amend its official zoning map by rezoning land at the
OVERVIEW OF PROCEDURE FOR MEETING
Due to the size of the audience, Chairman Moyer proposed that the Board consider establishing rules for the hearing as allowed by the Board of Commissioners’ Rules of Procedure. The Rules of Procedure allow the Board to set rules regarding the length of time allocated to each speaker and designation of representatives to speak for large groups by motion duly made and adopted at the beginning of the public hearing.
Chairman Moyer offered the following procedure for the Board’s consideration. He stated that he had received comments from many of the people present and the parties requesting that the Board establish a procedure to keep things moving in an orderly fashion. This is the Board’s attempt to respond to that.
1. We will begin, by motion, to go into the public hearing
2. We will adopt the following rules for the hearing
Rules/Procedure for Hearing:
Public Hearing on Rezoning Application #R-04-04 as amended – to rezone a 5.64-acre (approximate) portion (“Subject Area”) of a tract of land, located at the intersection of NC 191 and North Rugby Road, from an R-30 (Low-Density Residential) zoning district to a C-2 (Neighborhood Commercial) zoning district. Ingles Markets, Inc., applicant, William G. Lapsley and Charles L. Murdock, applicant’s agents.
Chairman Moyer made the motion for the Board to go into public hearing. All voted in favor and the motion carried.
Commissioner McGrady made the motion for the Board to approve the rules for this meeting as previously set forth. All voted in favor and the motion carried.
Autumn Radcliff gave a summary of the application. Rezoning application #R-04-04, which was
The Henderson County Planning Board first considered
rezoning application #R-04-04 at its regularly scheduled meeting on
1. Voted unanimously (6-0) on a motion to accept rezoning application #R-04-04 as amended to show the change in applicant and property owner name, and reappointing the Applicant’s agents.
2. Voted five to one (5-1) on a motion to send the Board of Commissioners an unfavorable recommendation on rezoning the Subject Area to a C-2 district.
3. Voted three to three (3-3) on a motion to recommend that if the Board of Commissioners decides that the 2020 CCP recommendation for a commercial node at the intersection of NC 191 and North Rugby Road is appropriate, then the size of the Subject Area should be reduced to five (5) acres and rezoned to a C-1 zoning district and also that the Board take into account the concerns of the community and the comments made by the applicant.
Before taking action on the applications, the Board of
Commissioners must hold a public hearing.
In accordance with Section 200-76 of the Henderson County Zoning
Ordinance and State Law, notices of the
Autumn Radcliff referred to the Site/Current Zoning Map
(attachment 3) and Vicinity/Current Zoning Map (attachment 4).
She explained that the applicant, (hereafter known as “Ingles”) has requested that a 5.64-acre approximate portion (hereafter “The Subject Area”) of a 10.93-acre parcel (according to the county tax map, which excludes right-of-way) to be rezoned to a C-2 Commercial Zoning District. The Subject area is located in a WS-IV water supply watershed.
R-30, the current zoning, is a low-density residential zoning district allowing site built and modular residential units while manufactured homes are not permitted. This district is intended to be a quiet, low-density neighborhood consisting of single family residences. Commercial units are not allowed.
The C-2 zoning district is a general neighborhood commercial district allowing most commercial uses by right. Most by right uses must be located within an enclosed building or make products sold primarily at retail on the premises. Shopping centers and light industrial uses are permitted with a conditional use permit. In additional a C-2 zoning district has no minimum lot size but has a maximum permissible lot coverage where the total ground area covered by the building in this district shall not exceed 40% of the total area.
Autumn Radcliff referred to the Water supply watershed map (attachment 5). The subject area is located in a WS-IV watershed in which all non-residential development is allowed at a maximum of 24% built-upon area or a maximum of 36% built-upon area upon qualification for a natural drainage and filtering system bonus. A minimum 30 foot vegetative buffer for development activities and a minimum 100 foot vegetative buffer for development using a special intensity allocation provision is required along all perennial streams identified on the USGS topographical map.
Autumn Radcliff referred to the Current Land Use Map
(attachment 6). Uses within the vicinity
of the subject area include single family residential, agriculture,
undeveloped, and community cultural. A
number of residential subdivisions are adjacent or in close proximity to the
subject area and the historic Johnson Farm,
Previous rezoning requests have been submitted for this exact spot. Attachment 2, the Staff Report, Section 6, refers to a brief history of these requests. Although it is similar to the previous rezoning request, this is a new rezoning application and since then the Board of Commissioners has adopted the 2020 County Comprehensive Plan, our CCP.
Autumn Radcliff referred to the 2020 County Comprehensive
Plan Future Land Use Map (attachment 8).
The 2020 CCP Future Land Use Map identifies the subject area as being
located in an urban service area or
Staff comments and recommendations.
Autumn Radcliff reviewed the following points.
Staff reports for the previous rezoning applications which was submitted prior
to this for the subject area have addressed the following questions to the Board:
Is commercial development
appropriate and should it expanded at the intersection of NC 191 and
If the Board concludes it is and it should be expanded, then the question becomes is the scale of the commercial development permitted within a C-2 zoning district appropriate at this intersection or is there a more suitable commercial zoning district for this location?
Staff’s position on these previous rezoning requests was based on the 1993 Comprehensive Land Use Plan and concluded that commercial development at the intersection was appropriate. Staff felt that the Board might want to consider a less intensive commercial node such as C-1 or C-2P.
There is an existing C-2 zoning district adjacent to the subject area across NC 191. Staff’s position at the time of the rezoning application R-23-95 which was in 1995 which created this district was that the intersection should be viewed as appropriate for local commercial development as defined by the 1993 Comprehensive Land Use Plan and therefore that C-1 Residential Commercial might be a more appropriate District.
In addition, the parcel in question is part of a rezoning
application R-23-95 was granted a conditional use permit by the Board of
Staff suggested if the Board supports the rezoning request
that it vote in favor of the rezoning application R-04-04 with modification for
the subject area to be rezoned to the center line of NC 191 and
The Planning Board recommendation for this subject area = the Planning Board first considered this application at it’s regularly scheduled meeting on Tuesday, December 21, 2004 at which time the Board took the following motions:
Comments from Applicant’s Representative
Mr. Charles Murdock, speaking on behalf of Ingles Markets,
first thanked staff for their work in working with them and in presenting this
issue. He stated that commercial
development is appropriate and should be expanded at the intersection of NC 191
Why C-2? C-2 already exists across the street. C-2 provides the opportunity to provide the services to this area. There is water but there is no sewer. They have done extensive testing behind the site for placement of a septic system.
Mr. Murdock stated that Ingles is willing to make a $5 million investment (land and building) with the creation of 138 new jobs for a minimum of $1.5 million payroll. Ingles has been receptive and listened to the comments of the neighbors. Initially the rezoning request was for the full 12.4 acres but finally downsized to 6.45 acres.
Comments from Rugby Neighbors Group
Ron Swartzel stated they are opposed to this rezoning and
they want to be heard because the result of this issue will shape the future of
this community. They want a fair and balanced debate. He stated that the real
issue is the future and the question is who decides. This group is made up of neighbors from
communities on North Rugby,
Mr. Swartzel stated that they have presented more than ample evidence that supports their views:
He stated that the 2020 CCP strongly protects the
He stated that the zoning ordinance insists on maintaining orderly residential growth and it warns against extensive strip commercial development.
He stated that the record of the Planning Board speaks for itself, three times recommending unfavorable action on the application. The Planning staff suggests that each of the previous rezoning requests were supported by facts, conditions, and considerations that were basically the same but this time they say it’s different. It’s different for two reasons: the size of the area is smaller and drastic site changes. Drastic site changes will damage the surroundings by the following: clear-cutting, excavation, dangerous blasting for bedrock removal, traffic and roadway hazards, stormwater run-off, excessive blacktop pavement, reduced property values, night-time lighting, and noise levels.
Mr. Swartzel asked if there was a way to bring this to a close without repeating this process over and over again. They need a final solution. Is it a zoning ordinance change?
Mr. Swartzel stated that they would appreciate the Board’s vote to deny this application in it’s every single form of commercial intent.
Other comments – Chairman Moyer explained that the Clerk would call the names in the order persons had signed up. Each person will be given up to three minutes to speak. He stated that we must be out of this auditorium by
A neighbor, Mr. Walters, had prepared a study which Mr. Oechslin read. He opposes the rezoning request.
25. Al Bissonnette – Mr. Bissonnette spoke about the new Ingles on Long Shoals Road and the problems with the traffic. They have to have a traffic cop to help with the traffic situation. He asked that the Board not let the same thing happen here.
Chairman Moyer offered, in accordance with the rules set at the beginning of the meeting, follow-up and responsive comments.
Mr. Swartzel – “I would like to address several points that
Mr. Murdock made. One was his projection of traffic and I’m assuming that he
Applicant or Representative
Bill Lapsley – “Good evening, Mr. Chairman, members of the commission, ladies and gentlemen. For the record my name is Bill Lapsley, I am a consulting engineer and I am named along with Mr. Murdock as representing the applicant. First let me say that I’ve learned a little more tonight – that now I can tell my wife I’m a misgrevient backyard bulley and I’m cut-throat. I have a few comments in response to a couple of items that were brought up. First, before I do that let me say I think in the summation of the meeting tonight in light of all the things that are going on in the world around us I’m very pleased and proud that we live in a free and open society where a property owner (in this case the applicant happens to be Ingles) has the right to present its case to the community which it has done through the two agents that Mr. Ingles has asked to represent him and the corporation, that’s Mr. Murdock and I , the process that the commissioners have followed and the planning board and all the folks that have been here tonight, I think has been open, it’s been well done and I congratulate everyone for giving everyone in our society the opportunity to speak and present the case and I’m confident the commissioners will do the right thing, whatever that may be.
The first point that I’d like to make – it’s under the county rezoning ordinance in this type of case where a rezoning application has been submitted, the applicant whether it be Ingles or anyone else is not allowed to present a detailed site plan so a lot of these issues with regard to curb cuts, DOT approval, storm water run-off, all of those sorts of site specific things the applicant’s not allowed to present. That’s not part of the zoning ordinance. Can the applicant in this case provide it? He certainly can. Would they be willing to? We’d certainly be glad to. A lot of the issues that have been raised have been explored in Ingles original due diligence process before they decided to purchase the property including talking to DOT about driveway cuts, exploring (as Mr. Murdock mentioned) septic tank availability, and the soil conditions and all of those sort of things and all of the answers to those due diligence-type questions have been answered in the affirmative so that in large part is why Ingles made the decision to go ahead and purchase the property. Was that at great risk? It certainly was but they have the right to do that and we certainly respect that.
A couple of comments that I would address – there was a statement as I remember about the break-out of the property. The way that I read and understand the county’s watershed protection – watershed supply protection ordinance limits the amount of area that can be built upon, whether it be commercial or residential. In this case commercial. The area is limited and it’s done on purpose to provide a maximum amount of land available for stormwater to percolate and avoid excessive run-off into the stream and in effect have some impact on the water supply. In the case of this, it’s in a watershed supply protected area as staff has pointed out and those restrictions limit the built-upon area to 24%. That in itself, that one ordinance will prohibit any more – whether they get it re, someone came in later and tried to rezone additional property, that ordinance, unless it is changed, limits the amount of land on this 12 acre site that can be developed. The fact of the matter is for an Ingles-type store on a septic system requires a very large septic tank drain field area and the area and the balance of this 12.4 acres, a large part of it – of that additional land outside of the area that’s rezoned would have to be reserved not only for the water supply watershed protection ordinance but also for the septic system and that’s a fact and that’s something that they would have to abide by. I mentioned stormwater issues – a gentleman mentioned storm water run-off ordinance. There is none in the county but maybe there should be. Ingles typically provides stormwater retention facilities and has done so at many of their stores and can do that at this store and that’s again a typical item that can be addressed in the site plan. I wish the ordinance had those sorts of things but we – we’re not allowed to at this stage in the process. There were a number of other issues and there’s no need to really go on into those but I just sum and say again we appreciate the opportunity to present the application and for the commissioners to consider and the community to consider and we’ll be glad to answer any questions that you might have.”
Staff had no concluding remarks.
Out of Public Hearing
Commissioner McGrady made the motion for the Board to go out of public hearing at All voted in favor and the motion carried.
Chairman Moyer expressed, on behalf of the Board, thanks to the applicant and to Mr. Swartzal and the group and everyone in attendance for the conduct tonight. The process was important and it was very helpful to move the process along. He thanked everyone for their participation and how they participated.
Commissioner Young made the motion to deny the rezoning request.
Following some discussion, a vote was taken and the motion passed unanimously.
Commissioner McGrady made the motion to adjourn the meeting at All voted in favor and the motion carried.
Elizabeth W. Corn, Clerk to the Board William L. Moyer, Chairman