The Henderson County
Board of Commissioners met for a regularly scheduled meeting at in the Commissioners'
Conference Room of the
Those present were: Chairman Bill Moyer, Vice-Chairman Charlie Messer, Commissioner Larry Young, Commissioner Shannon Baldwin, Commissioner Chuck McGrady, County Manager David E. Nicholson, Assistant County Manager Justin Hembree, Acting County Attorney Russell Burrell, and Clerk to the Board Elizabeth W. Corn.
Also present were: Planning Director Karen C. Smith, Budget and Management Director Selena Coffey, Public Information Officer Chris S. Coulson, Fire Marshal Rocky Hyder, and Finance Director J. Carey McLelland. Deputy Clerk to the Board Amy Brantley was present through nominations.
CALL TO ORDER/WELCOME
Chairman Moyer called the meeting to order and welcomed all in attendance.
PLEDGE OF ALLEGIANCE
Commissioner Young led the Pledge of Allegiance to the American Flag.
David Nicholson gave the invocation.
INFORMAL PUBLIC COMMENTS
1. Fielding Lucas – Mr. Lucas distributed a several page hand-out to the Board and spoke to the issue of current School Board capital improvements, the site for the “new school”, the Hillandale soil test dilemma, the Board’s decision to go beyond the State funded class size reductions, the Board’s arbitrary decision to limit elementary school capacity to 600 membership, and the extremely unscientific approach to membership long range forecasting.
DISCUSSION/ADJUSTMENT OF AGENDA
Chairman Moyer explained that Dr. Jones was expected to attend the meeting but had not arrived as yet. He will address item “F-3” Historic Courthouse. Chairman Moyer will adjust that item when Dr. Jones arrives as he will not be able to stay long. Chairman Moyer requested flexibility to make that adjustment as necessary.
Commissioner McGrady made the motion to adopt the agenda with the two revisions above. All voted in favor and the motion carried.
Commissioner McGrady made the motion to adopt the consent agenda as presented. All voted in favor and the motion carried.
Consent Agenda included the following:
Draft minutes were presented for the Board’s review and approval of the following meeting(s):
Tax Collector’s Report
Terry F. Lyda, Henderson County Tax Collector, had provided the Tax Collector’s Report dated April 18 for the Boards review and consent approval.
A list of 36 tax release requests was presented for the Board’s review and consent approval.
A list of 18 tax refund requests was presented for the Board’s review and consent approval.
A list of 6 tax discoveries was presented for the Board’s review and consent approval.
Addition of topic to
The Board was requested
to add the subject of the re-consideration of the Interim Development
Ordinance, adopted by the Board on
Cane Creek Water & Sewer District
Adoption of Order on Variance Request of Pegasus Tower Company, L.L.C.
Staff had prepared a proposed order which, if approved by the Board of Commissioners, makes findings of fact and conclusions from the hearing, and denies the variance request.
LEPC Annual Report
Pursuant to Article VIII, Section I of the Henderson County Emergency Planning Committee by-laws, the annual report of activities conducted in the 2004 calendar year was submitted.
2005/06 Rural Operating Assistance Program (ROAP) Grant Public Hearing
The State of
County staff recommended
that a public hearing to provide an opportunity for public input regarding the
sub-allocation of ROAP funds be set for on
Improvement Guarantee for
Mr. Luther E. Smith, on
Pursuant to Sections 170-38
and 170-39 of the Henderson County Code (the Subdivision Ordinance), a
developer may, in lieu of completing all of the required improvements prior to
Final Plat approval, post a performance guarantee to secure the County’s
interest in seeing that satisfactory construction of incomplete improvements
occurs. One type of permitted guarantee
is an irrevocable letter of credit. The
developer intends to post with the County an irrevocable letter of credit in
the amount of at least $564,318.00 to cover the cost of the improvements
($451,454.40) as well as the required 25% contingency ($112,863.60). The
proposed completion date for the improvements is
A draft Performance Guarantee Agreement was presented for the Board’s consideration. If the application is approved, the developer must submit an irrevocable letter of credit in accordance with the terms of the Agreement. Once the County receives a letter of credit in proper form, the relevant parties must execute the Agreement.
Preliminary Engineering Report
Staff requested approval to execute an agreement with Camp Dresser & McKee (CDM) for a Preliminary Engineering Report (PER) for the Mud Creek Sanitary Sewer Project. We hope to have the Mills River Sewer Project completed this fall. According to the adopted Master Sewer Interceptor Plan, the next project to be considered would be the Mud Creek Sewer Project. This PER will provide us with recommendations concerning the route, cost, and project phasing. The cost of the PER is $6,900 and will be funded out of the Cane Creek Water and Sewer District Fund.
Staff recommended the Board authorize the development of a PER by CDM.
Reimbursement resolution for new elementary school
Staff had prepared a proposed reimbursement resolution (similar to those done for previous construction projects) to provide for reimbursement of the expenditures for the new elementary school project from anticipated financing proceeds.
Application #SP-93-13-A5 to Amend Special Use Permit
SP-93-913 (as amended) for the
Dale Hamlin, Manager of
Carriage Park Associates, LLC, submitted an application on April 8, 2005, to
request a change in the definition of “Townhouse (Townhome)” as shown in
Section 1h of Exhibit A of Special Use Permit 93-13 (as amended). Special Use
Permit SP-93-13 was originally granted by the Board of Commissioners on
Staff requested that the Board of Commissioners refer Special Use Permit amendment application #SP-93-13-A5 to the Planning Board for review and recommendations as required by the Zoning Ordinance. Once the Planning Board takes action on its recommendations, Staff will request that the Board of Commissioners schedule a quasi-judicial public hearing on the application.
Board excused member from voting
The agenda item on the April 20, 2005 Board of Commissioners meeting “Registered Motor Vehicle Tax Refund & Release Requests” includes a request release and refund by Commissioner Young. Pursuant to NCGS 153A-44, the board “may excuse a member from voting, but only upon questions involving the member’s own financial interest ….” Commissioner Young had previously requested that he be released from voting on this issue.
Commissioner Young is hereby excused from voting on the agenda matter
“Registered Motor Vehicle Tax Refund & Release Requests” on the Board’s
passes on the Board’s Consent Agenda, as “all in favor, but Commissioner Young, who was excused, did not vote”.
Registered Motor Vehicle Tax Refund & Release Requests
A list of 2 motor vehicle release and refund requests was presented for the Board’s review and consent approval.
Due to a conflict with an existing 24” diameter water line, it has become necessary to make a change (as shown on the presented drawing) in the route of the subject Sewer Interceptor.
Staff requested authorization from the Board to file condemnation actions, if needed, in order to make this re-alignment of the said Sewer Interceptor.
Staff recommended approval of the request.
Chairman Moyer reminded the Board of the following vacancies and opened the floor to nominations:
1. Apple Country Greenways Commission – 1 vac.
nominated Joanne Hill. We don’t yet have
an application for her so this item was rolled to the next meeting. Commissioner McGrady stated that
We had previously had five people nominated for these three positions, being Tedd Pearce, Stacy Rhodes, Mark Williams, Eric Goodman, and Carolyn Swanner. There were no other nominations at this time. The Clerk was asked to poll the Board and the vote was as follows:
Commissioner Baldwin Pearce, Rhodes, Williams
Commissioner McGrady Pearce, Rhodes, Williams
Chairman Moyer Pearce, Rhodes, Williams
Commissioner Messer Pearce, Rhodes, Williams
Commissioner Young Rhodes, Williams, Swanner
The three incumbents were reappointed, Pearce, Rhodes, and Williams.
3. Juvenile Crime Prevention Council – 2 vac.
There were no nominations at this time so this item was rolled to the next meeting.
4. Nursing/Adult Care Home Community Advisory Committee – 3 vac.
There were no nominations at this time so this item was rolled to the next meeting.
ANIMAL SERVICES DIRECTOR
Rocky Hyder introduced
our new Animal Services Director, Mr. Morgan Woodward. He comes to us from
Mr. Woodward came forward and accepted comments from the Board. The Animal Services Work Plan for the coming year was presented for the Board’s review.
Mr. Nicholson reminded the Board that we would be opening the bids for the Animal Shelter tomorrow. With the new facility we will be able to increase the programs we have available for animals.
NCACC – OUTSTANDING PROGRAM AWARD
The Outstanding Program
Award was started by the Association in 1991 and is a matter of recognizing
counties who come up with innovative programs in the three general areas of General
Government, Human Services, and Public Education and Participation. The emphasis is on innovation and sometimes
multi-county jurisdictional involvement.
The criteria for winning involves innovation, success, effort and
difficulty, and collaboration.
Mr. Nicholson explained that at least five counties got copies of our information and they may have spread it to others. It became something that a number of units of government across the State used to determine how to utilize these funds.
AUTHORITY OVER THREE PARCELS
Craig Honeycutt, Town
Manager of the Town of
00964362687755 (0.05 acres, owned by the City of
00964362972555 (0.59 acres, owned by the City of
Property PIN 00964362963855 (0.36 acres, owned by Murphy-Wilson Investment Co.)
This request would allow
the Town of
As the County has
previously enacted both zoning and subdivision regulation for the area
including these three parcels, and as the County enforces the State Building
Code within this same area, under NCGS 160A-360(e), the Town of
The proper method is an
agreement with the Town of
Much discussion followed. Mr. Nicholson explained that these three parcels are Open Use in an area which is substantially Commercial Zoning. Mr. Honeycutt stated that these are the only three parcels between the current municipal limits and county-wide that are not within the town limits of Fletcher.
Commissioner Messer made the motion for the Board to approve the request as presented. A vote was taken and the motion failed two to three with Commissioners Moyer and Messer voting aye.
Commissioner McGrady made the motion that our Zoning staff look at this with the idea of making these parcels compatible with Fletcher zoning and to present staff’s recommendations to the Planning Board and the Board of Commissioners. All voted in favor and the motion carried.
Mr. Nicholson explained
Our architectural firm, Calloway, Johnson, Moore & West, has received Cooper’s bid and has stated that they are the lowest responsible bidder. They recommend that the Board award the bid to Cooper Construction Company. A copy of their cover letter was presented for Board review.
Staff recommended that the Board accept the bid from Cooper Construction Company and authorize staff to negotiate and sign a contract.
Commissioner McGrady made the motion to accept the bid from Cooper Construction Company and authorize staff to negotiate and sign a contract. All voted in favor and the motion carried.
David Nicholson presented the “April” Manager’s Monthly Report. Staff highlighted the following:
Strategic Plan up-date – Karen Smith
Flood Damage Prevention Ordinance. Staff is on track to bring that to the Board for the public hearing on May 2 in accordance with the timeline in the Strategic Plan. Staff has also been working on the Land Development Code and that project appears to be on target. A staff team meets weekly. Contracts have been signed with two firms to assist, with Access Management and with Design Standards. Staff also presented an update last night to the Planning Board on the status of the project. Staff is also proceeding with the industrial study.
Mr. Nicholson mentioned
the centralized enforcement and permitting process to include cross-training of
functions. Applications have been
received for that position and they are beginning the interview process. He
explained that the jail demolition package should be out on the street any day
now. The animal shelter bid date was
extended. We now have four bidders. We need at least three proposals on the
animal shelter. We’ll be opening bids tomorrow. In about 2 weeks we’ll do the
closing on the former
Gary Tweed stated that CDM has preliminary lay-outs done for the second bay at the transfer station and he’s going next week to review those.
Mr. Nicholson reminded
the Board that the ribbon cutting was last week for the new southeast
There was some discussion regarding the appraisal of the Tuxedo property proposed for a park and library.
Mr. Nicholson explained that the first joint college facilities meeting is next week, next Monday at . The Cable Franchise Renewal Advisory Committee has had three meetings and are working on their responsibilities. Staff met last week with the NCDOT public transit division and they hope to have a proposal to bring back to the Board as early as the next meeting to deal with the public transit issue.
Chairman Moyer announced that Dr. George Jones and his wife were present and he adjusted the agenda to let Dr. Jones speak so that he could then leave. There were also several members of the Historic Courthouse Corporation Committee present: Judy Abrell, Argie Taylor, Tom Orr, Spence Campbell.
Chairman Moyer explained that the issue here is how to move forward with the restoration/rehabilitation of the historic courthouse and get things moving. There was a big question about the funding issue concerning whether or not we demolish the old jail.
At the Commissioners’
The Corporation Members encouraged the Board to proceed with the renovation of the Historic Courthouse as the community celebrates the 100th Anniversary of the building during 2005. Dr. George Jones and Bill Moyer have met several times and reached an agreement with respect to the Historic Courthouse project and agreed to present that agreement to their respective Boards for consideration.
The Corporation had a special meeting on
The Historical Courthouse Corporation agrees to:
The Historical Courthouse Corporation has voted unanimously to accept and adopt this agreement and authorize the Board of Commissioners to move forward, working together in a spirit of cooperation to get this courthouse restored.
Dr. Jones stated that this is the best we’re going to get although he did ask for one word change. He asked that rehabilitation be changed to restoration. He stated that the Historical Courthouse Corporation voted unanimously to approve the agreement and he hoped that the Board of Commissioners would also.
Following discussion, Commissioner McGrady made the motion that the Board of Commissioners approve the terms of the proposed rehabilitation/restoration of the Historic Courthouse discussed by the Board of Directors of the Historic Courthouse Corporation at its meeting on April 14, 2005, and directs the County Manager to develop a more detailed timeline for the May 2 County Commission Meeting, consistent with the terms discussed by the Board of Directors of the Historic Courthouse Corporation, which will begin rehabilitation/restoration of the Historic Courthouse in October 2005. All voted in favor and the motion carried.
Historic Courthouse Celebration
Chairman Moyer stated that he and Tom Orr had been discussing the Centennial Celebration for the Courthouse. He had promised, as part of the Centennial Celebration, to have the dome repainted and lights back on it so that it could be turned on in December as part of the Celebration.
UPDATE ON PENDING ISSUES
FY 2005-06 Budget
Mr. Nicholson informed the Board that staff has been working on the development of the FY 2005-06 Budget for the past several months and should have the final budget requests next week from the Department of Social Services, Board of Public Education and Blue Ridge Community College. As in past years, staff will meet with all departments and agencies to review their budget requests reviewing the individual line items and any new budget initiatives.
As we have proceeded with our budget review process, there are a number of significant issues that have arisen and will have to be addressed within the coming year’s budget. Some of these issues are as follows:
1. Strategic Plan Initiatives
2. 27th Payroll Period
3. School Debt Service
4. Personnel Requests
5. Capital Equipment Purchases
6. Education – Current and Capital
7. Employee Compensation Study
Staff is willing to
present and discuss any line item within the recommended budget. However, at the end of the day, the Board
always spends the majority of its time on the major requests. In order to assist the Board, Mr. Nicholson
was planning to submit a recommended prioritized budget enhancement list. This list will include the items listed above
and any other issues that the Board should specifically note. He strongly encouraged the Board to focus on
this enhancement budgetary list during budget deliberations.
Mr. Nicholson plans to submit his recommended budget to the Board on
Fund Balance Plan
Mr. Nicholson stated that the Board requested that staff provide its thoughts on ways to increase our Unappropriated/Undesignated Fund Balance to the 12% level as required by Board of Commissioners’ policy. Below are a few of the steps that the Board could consider beginning with the Fiscal Year 2005-06 Budget.
1. Budget an additional 12% for all new expenditures.
2. Sell surplus properties and place proceeds in Fund Balance.
3. Lower the first year percentage of property tax collection.
4. Budget the full cost for new positions and then phase in their hiring dates.
Mr. Nicholson explained
that the Board of Commissioners had stated their desire to increase the
Unappropriated/Unreserved Fund Balance to 12%.
The Board was requested to establish the following percentage goals and
Fiscal Year 2004-05 9.5%
Fiscal Year 2005-06 10.5%
Fiscal Year 2006-07 12%
Commissioner Baldwin made the motion that the Board adopt
these fund balance goals as presented by the
Chairman Moyer called a brief technical recess.
Chairman Moyer called the meeting back to order at
ECONOMIC DEVELOPMENT INCENTIVE GRANT
Scott Hamilton, Executive Vice-President of Economic Development with the Greater Hendersonville Chamber of Commerce, was present to support the request that Mr. O’Connell was going to make of the Board. He recognized Dan O’Connell, President of Raflatac; Phil Webb, Raflatac; Bob Williford, President of the Chamber of Commerce; and Kyle Edney, Project Coordinator for Economic Development with the Chamber of Commerce.
Dan O’Connell thanked
the Board for their support and requested the Board set a public hearing to
consider providing Raflatac with an economic development grant. They are considering investing $24,000,000 in
equipment and establishing an additional 110 jobs in the next five years. The Board was asked to consider a grant in
the amount of $96,000 for a period of seven years. Raflatac had come to the Board less than a
year ago to locate here. Mr. O’Connell
had just returned from their parent company in
Scott Hamilton reminded
the Board that five years ago Raflatac came before the Board requesting
incentives to build a 240,000 sq.ft. building and invest $45 million and create
200 jobs over a 7 year period. We are five
years into that first 7 year period, they’ve already come back talking about
the announcement they made in December of investing an additional $38.9 million
and another 70 jobs, and are now requesting assistance to help them to continue
to grow this market in a competitive situation where they would invest $24
million more and create an additional 110 jobs. Mr. Hamilton requested that the
Board set a public hearing to consider an economic development incentive
package for Raflatac for this project to be located here in
Commissioner Messer made the motion to set the public
hearing for on
PUBLIC HEARING – Quasi-Judicial Public Hearing
on an Application for a Variance from the
Commissioner McGrady made the motion for the Board to go into public hearing. All voted in favor and the motion carried.
Chairman Moyer – “For
those of you here, we’ll now – we have to do this as a quasi-judicial
proceeding. It’s on the application of
Commissioner McGrady – “Mr. Chairman, I attended the Planning Board consideration of this matter and so if there are any differences as between the facts that are presented here and the facts that were presented there, but didn’t otherwise participate in that – that hearing.”
Chairman Moyer – “OK. All persons who speak and participate including any witnesses that will be called, will be placed under oath. The Board will ask staff for an overview of the application then the applicant will present the evidence the applicant wishes to present in support of their request. After the applicant is finished, anyone else who has expressed a desire to be a party and who the Board has recognized as a party would then be allowed to present their evidence. All parties will be given an opportunity to ask questions of all witnesses testifying in this proceeding. The Board will be given an opportunity to ask questions also, all throughout the proceeding. After the evidence is presented the Board will discuss the issues raised and will make a decision. The Board’s decision must be made within 30 days of the close of the hearing and must be made in writing within 45 days of the hearing. We’ll begin with identification of all parties to the proceeding. As I stated, the Board acknowledges the following persons as parties: Karen Smith, Henderson County Planning Director; Matt Card, Planner from the Henderson County Planning Department; Pinnacle Falls L.L.C., applicant. I guess Luther Smith you will be.”
Luther Smith – Did not come to the mic so I could not tell what he was saying. He did mention A.J. Ball.
Chairman Moyer – “Are there any other persons present, I know there is a lot of people here that have an interest, that wish to be a party and can demonstrate that they have an interest and will be affected by this decision. If so, I need you to come to the microphone, state your name and what your interest and why you believe the Board should make you a party. Mam, please.”
Some lady from the audience – “Um we’re just adjoining land owners and we just had a couple of questions – um – you know was all we were wondering before any final decision is made.”
Chairman Moyer – “Alright what we can do if you would like rather than have everybody, if one person – we’ll make a party and then they can give you the questions to ask. Luther, would that be satisfactory? I think that would expedite things. So if you would identify yourself and we will make, if the Board agrees, we will you a party and then the other people can give you whatever questions they want to ask and we’ll allow you to participate in that way.”
Same lady from the audience – “Uh I’m Pat Osteen.”
Chairman Moyer – “OK, thank you. And you are adjacent land owner? Is there anybody else here that would like to be a party?” Mr. Ponder?”
Someone from the audience – “I apologize”
Chairman Moyer – “Please come – please come to the”
Someone from the
audience – “I’m Vera Pace and I join Pinnacle Fall’s property on the
Chairman Moyer – “Would you like to be a party to this proceeding and – and give evidence?”
Vera Pace – “Yes.”
Chairman Moyer – “OK. Your name again, please.”
Vera Pace – “Vera Pace.”
Chairman Moyer – “Is that alright with the Board?”
Commissioner Baldwin – “Yes.”
Commissioner Young – “Yes”
Chairman Moyer – “Mr. Ponder?”
Someone from the audience – “My name is Bill Ponder. I’m adjoining property owner on the left side and would fall under the same category as the two ladies that have just spoken so.”
Chairman Moyer – “You would like to be a party and ask some questions?”
Bill Ponder – “If it – if I feel the need, yes.”
Chairman Moyer – “Alright we’ll make you a party and if you feel then if not we’ll just pass. Is that alright with the Board?”
Several answered yes.
Commissioner McGrady – “One more.”
Chairman Moyer – “Did I see one more hand, yes. John Bell.”
John Bell – “Yes, my
name – my name is John Bell. I have an interest and ownership in adjoining
Chairman Moyer – “OK. Any objection to Mr. Bell being a party? (no response) Alright is there anyone else? (no response) We will need now all parties to the proceeding to come up and be sworn. The Clerk, Mrs. Corn, will swear you all in so if”
Elizabeth Corn – “If everybody will touch the Bible with your left hand and raise your right hand. We’ve got one more we need to get in. Do you swear or affirm that the testimony you shall give to the Board of County Commissioners shall be the truth, the whole truth and nothing but the truth, so help you God?”
In unison – “I do.”
Elizabeth Corn – “Thank you.”
Chairman Moyer – “Now before you each leave, make sure Mrs. Corn has your name. She may have gotten them down but I went pretty quickly so if there’s any issue with spelling, please make sure she has your name. OK, Mrs. Corn?”
Elizabeth Corn – “Uh huh.”
Chairman Moyer – “OK, we’ll begin with the presentation of evidence and we’ll start with the staff overview. Mrs. Smith, then Mr. Card I guess. Karen, are you gonna start?”
Karen Smith – “I – I
will start and just for the Board, this is Matt Card. He is our Assistant Subdivision
Administrator. He’s been the primary
reviewer of this subdivision but I’m going to do the presentation and he’ll be
available if we have questions that I can’t answer. Uh as an introduction I wanted to make you
aware of where this property is and some other facts. Pinnacle Falls, L.L.C. is the property owner
and developer of what is a major subdivision known as Pinnacle Falls and
Pinnacle Falls L.L.C. has submitted the application for variances from three
standards of the Henderson County Subdivision Ordinance and as you heard in the
swearing in, A.J. Ball, Manager of Pinnacle Falls L.L.C. and Luther Smith are
acting as agents on behalf of the developer.
For the record, I did want to note that today’s hearing has been advertised in accordance with your procedures for quasi-judicial proceedings and that those procedures require that we do certified mail to the applicant. The subdivision ordinance does not have any specific requirements for notice for quasi-judicial proceedings however, staff did mail by certified mail notices of the hearing to property owners adjacent to the entire boundary of Pinnacle Falls and we also published notices in the newspaper, a legal ad in the Times-News on April 7, and a display ad in the Times-News on April 13. That’s the introduction. If the Board has any questions at this point I can try to answer them or I can do so later when I present the Planning Board’s recommendation.”
Chairman Moyer – “Any questions for Mrs. Smith at this time. (no response) OK, we will move to applicant’s evidence and Luther Smith or A.J. Ball. Who’s gonna start? Obviously Luther Smith.”
Luther Smith – “Mr.
Chairman, members of the Commission, my name is Luther Smith. I’m a planner with offices here in
Chairman Moyer – “Are there questions from the Board right now?”
Commissioner Young – “Mr. Smith, let me ask a question and I can tell from the second drawing versus the first that you’ve took a lot of the sharp turns out of it.”
Luther Smith – “Right”
Commissioner Young – “Uh”
Commissioner Baldwin – “Could we contrast those two?”
Commissioner Young – “Yeah”
Commissioner Baldwin – “Could we put one on the scr – leave yours up there and then two on the screen?”
Commissioner Young – “Let me ask this. You’s talking about the Fire Marshal. Does this allow emergency vehicles to navigate this road better?”
Luther Smith – “Yes it does. I assume Karen, we have a – the Fire Marshal was on the property.”
Commissioner McGrady – “It’s attachment seven to the materials we’ve got.”
Luther Smith – “He submitted comments to the Planning Board, I assume they’re in your – in the packet.”
Commissioner Young – “Uh also uh as far as school buses, they wouldn’t have a.”
Luther Smith – “They wouldn’t be – school buses wouldn’t go down this road anyway because it’s a private road, it’s not a public road.”
Commissioner Young – “Yeah. So you – you don’t plan on the State taking this road over and maintaining it or anything like that.”
Luther Smith – “No sir.
Commissioner Young – “Does it meet the state standards for roads? In other words would – would it meet the state standard in a subdivision as far as.”
Luther Smith – “Uh yes. Yeah if we had gone with state roads uh what is identified as a collector road in the ordinance would be a standard secondary road for the state and – and the standards that we’re requesting would meet those standards for the state.”
Commissioner Young – “And not being a civil engineer I need to ask you some questions about uh the drainage and the run-off in the ditches. Are they gonna be – is that gonna carry the run-off well enough with the steeper slope?”
Luther Smith – “Yeah, the ditches actually in – you know in all that has been designed, the ditches actually get wider with the steep slopes because of the volume of water that we’re dealing with. All of the uh – the erosion control plans and drainage plans have already been approved by the state on this. All of the pipe crossings uh as they come out on the downhill side and this road – I don’t know if any of you have ever been on – on the piece of property but topographically when the road was built it’s sorta right at the break of where you go from rolling ridge top and cross off as is - was normally the case with many roads that were built years ago- the right – a drop off so when the pipe comes out the other end it’s either sticking way out in the air and then dropping to the ground or whatever. But what we had to do was go back in working with the state on the erosion control plan, as we bring the pipe out most of em we actually have to put a 90 degree bend on em and then develop uh a structure paralleling the slope to dump that water out to slow it down and catch any sediment before it can be released to go on down the hill.”
Commissioner Young – “So in essence it’s – the run-off and the uh storm run-off or whatever is not gonna produce any hardships to the neighbors or anybody that’s surrounding this property or.”
Luther Smith – “No, no it should not. All again we’re pretty much a closed watershed so whatever is generated is – eventually is gonna come out the bottom at Cabin Creek but because of the quality of the stream and so forth the measures that were required by DENHR on the erosion control are substantially greater than – than what you see on most normal roads.”
Commissioner Young – “And this road feeds into (someone coughed) … state road?”
Luther Smith – “No it actually dead-ends at the property – you know we don’t – we don’t have a road that goes all the way down.”
Commissioner Young – “But I mean going into this property. You’ve got to travel a state road to get into the property?”
Luther Smith – “Yes you
travel Pinnacle –
Commissioner Young – “Does the state – is that state road gonna provide the uh – I guess the accessibility for this property without creating a lot of traffic congestion or problems with that?”
Luther Smith – “I would think. That’s a section we’re just – that’s a half mile west of where Mount Olivet Road joins Pinnacle and that’s a section that they regraded, the state widened and paved last year or year before last uh so yes, it – it would easily handle any traffic generated by this development.”
Chairman Moyer – “Any other questions for Mr. Smith at this time?”
Commissioner Baldwin – “I’ve got – I’ve got one. Did you – is the old road bed that that was back in this property, does this follow the old roadbed?”
Luther Smith – “Yes, it does. What we’re actually trying to use – do is use the old road bed as the bench for the toe of our fill slope that we’ve got – rather than trying to build the road on top of it uh – you know use that same bed and build on top of it which would kick fill material off and down the mountain, we’re trying to use the edge of that road as the start of our fill as we come up and then cut our bench into new ground basically on the uphill side of that road.”
Commissioner Baldwin – “So the existing is what is on the screen? Does that pretty much follow the old roadbed number two?”
Luther Smith – “No actually uh the old road bed as it comes around here it gets steeper and it basically sorta goes straight up, straighter up through there.”
Commissioner Baldwin – “OK.”
Luther Smith – “It does have – it’s got more little curves in it because it’s only a 12 road, this one has but uh it doesn’t have those – those large switchbacks in it as you … “
Chairman Moyer – “Any other questions for Mr. Smith at this time? OK, what I’m gonna do now is ask each of the parties – this will be your chance to ask questions, not to give testimony but I’m gonna ask Mr. Smith to step aside, I’ll call each of you up, ask the question that you want. It can be 1, 5, or 10, then Mr. Smith will step in and try to respond as appropriate so Ms. Osteen I’ll start with you please.”
Pat Osteen – “I’m Pat Osteen. I – we have land adjoining this property and I guess one of the biggest concerns is the whole mountain is rock so they’re definitely running into problems with rock and so we have concerns about dynamiting uh and whose gonna be responsible for any damage uh because Doe Runner Road is probably gonna be impossible without dynamite in there.”
Chairman Moyer – “If you’ll step back and let Mr. Smith respond to that.”
Luther Smith – “Uh I’ll attempt to answer that, Mr. Ball who represents the owner may be better to address that. Obviously any blasting that may have to occur and so forth and she’s right, we’re going to hit some rock so that’s a real possibility, uh has to meet certain state standards and conditions and those sorts of things. In terms of liability I’ll let Mr. Ball address that one.”
Chairman Moyer – “Alright. Mr. Ball.”
Commissioner McGrady – “But the expectation to follow on that – I mean this is a shorter length of road so in theory you ought to have less dynamiting since there’s a shorter length of road. Is that right?”
Luther Smith – “That’s correct.”
Commissioner McGrady – “OK.”
Chairman Moyer – “Mr. Ball, would you – you’ve already been sworn so you can respond. Maybe you should stay close by. We may need you again.”
A.J. Ball – “I’m A.J.
Ball, I’m the project manager for
Chairman Moyer – “Thank you Mr. Ball. Ms. Osteen, do you have more – additional questions?”
Pat Osteen – “I think Mr. Smith mentioned about the – the plants and the trout and there are very – there’s several different plant species up there that probably are not in Henderson County anywhere else and so uh I just wondered if there has been anyone – you know – brought in to look at that to make sure that that is not – you know – disturbed in any way because a lot of that can’t be found anywhere else around here.”
Chairman Moyer – “OK.”
Luther Smith – “Yes, part of the process of developing the property and – and more specifically with regards to having the property put in a conservation easement is a uh botanical inventory of the property. A portion of that has been done, wetland areas have been uh delineated and mapped as well and the biolo- botanical portion of that is going on – I assume they’re still out there as we speak working on it so all of those types unique areas are being identified throughout the property and that becomes – it’s important to us because it becomes part of the base for establishing the conservation value of the property from an easement standpoint and those areas – you know we have done some shifting even in the initial road, the first section from Pinnacle down to where this starts we’ve already done some minor adjustment to avoid – or get a little farther away from an area that has some – some identified plants in it, not just getting further away from em but we’re finding there’s a section because of the amount of moisture that these plants on the rock receive coming from the ground above, we’re having to rebuild or redesign the road base to allow that water to continue to percolate through as opposed to a normal road base you dig out there – you hit something and have to fill it up. We’re actually having to build a gravel area under this to allow that water to move through – to continue providing the existing habitat for those plants so – you know that’s – that’s a major part of what we’re gonna do.”
Commissioner McGrady – “Cool, it will be held in the uh conservation easement?”
Luther Smith – “Uh we’ve been talking to CNL too.”
Chairman Moyer – “Mr. Ball, do you wish to add anything on that. I know you’re always concerned about these issues. You might speak with respect to the applicant.”
A.J. Ball – “Uh we – we are environmentally sensitive and that’s the reason we do low density type developments. And when we looked at this property we did discover a significant rock out-cropping at the top and uh originally planned Luther had the plan the road was going right across that particular area and as he indicated we did move it at significant expense to us and uh making sure that that water was able to flow the way it naturally does. We brought engineering in and looked at it, designed a system to accommodate that, and will feed – continue to feed that rock out-cropping. It’s a beautiful place on the mountain and that will be a part of the common open space and will eventually be a part of the conservation easement.”
Chairman Moyer – “Certainly your intent is to preserve and protect all that?”
A.J. Ball – “Absolutely. Yeap, yeap.”
Chairman Moyer – “Ms. Osteen, additional questions?”
Pat Osteen – “Well, pertaining to that, is there any way that we could get a copy of something from the – the people that have looked at all of this of what their – you know – at the different species that they did find?”
Chairman Moyer – “Of what they’ve identified?”
Pat Osteen – “What they did find and how they’re gonna be protected and everything cause I would like that if I could get it.”
Luther Smith – “They haven’t produced their final report (not at microphone).”
David Nicholson – “Luther” (and he motioned for him to come to the mic)
Chairman Moyer – “Thanks David, I forgot. I lost my head.”
Luther Smith – “We have not gotten a final report yet from that. At such time that it's available, Mr. Ball will have it and I assume if you ask him he could provide that information.”
Pat Osteen – “OK. OK and I think – two more things.”
Chairman Moyer – “That’s alright, you go right ahead.”
Pat Osteen – “How many phases and what time span are we looking at on this – uh to do this?”
Luther Smith – “Uh let me clarify, when you say to do this are you talking about this road change we’re doing? OK. Uh this road change is part of the first phase of development. The development is proposed to have three phases so uh – you know road construction has started which I’m sure you’ve seen adjacent to
Commissioner Young – “Luther. Can I ask a question?”
Chairman Moyer – “Sure, go ahead.”
Commissioner Young – “Uh you mentioned three phases and I didn’t hear the time frame, maybe I missed it.”
Luther Smith – “Uh the actually – what was approved in phase one in terms of the road system went from Pinnacle all the way down to this point and the development along these lots and this area and a portion of the lots up here. Phase two includes some of these other cul de sac, I don’t know exactly which ones and extending this collector road on down and this development up here. And phase three builds in some of the other little neighborhoods.”
Commissioner Young – “Do you have a time frame for each phase or is it – are they in conjunction with each other. You gonna do part of them… (more than one person talking - ???).”
Luther Smith – “They are sequential. We are preparing now documents to get approval from the county for phase two so we can continue uh and then phase three will follow immediately after that from an approval standpoint. Actual construction standpoint – I’m sure A.J. would like – would like to have any owners – would like to have all of them going at one time because they’ve got commitments on all the lots at one time but obviously they’ll – you know what have you all planned, two year?”
A.J. Ball – “Two year sell out.”
Luther Smith – “Two year sell out so the construction will occur over the next couple of years.”
Chairman Moyer – “Ms Osteen?”
Pat Osteen – “My last question. Um and I don’t know if this pertains particularly just to the road or but its just a concern I think to all of us – is like the zoning – if there’s gonna be any rezoning or anything because of that – like I don’t even read the newspaper, I don’t have time so if its just something in the paper I may not ever even know it – you know if there’s gonna be a hearing on it so.”
Chairman Moyer – “You’re asking whether there’s been any rezoning requests.”
Pat Osteen – “Right because we would like to know that so that we could be present – you know.”
Chairman Moyer – “Luther?”
Luther Smith – “No mam, we are – we are not requesting any rezoning from the Commissioners and have no intention to as far as I know.”
Commissioner McGrady – “This is all open use I believe, right?”
Luther Smith – “That’s correct. It is open use.”
Commissioner Baldwin – “Open season.”
Pat Osteen – “So if it is requested later – is that the only way that the community is notified, is by paper – you know in the newspaper, or?”
Chairman Moyer – “ … I’ll ask Ms. Smith to respond to that.”
Pat Osteen – “OK”
Karen Smith – “In the case of a rezoning application, we notify all owners of property that adjoin the area that’s subject to the rezoning. It’s not a certified mail but it’s a first class mail.”
Pat Osteen – “OK, thank you.”
Chairman Moyer – “Thank you. Next on my list is Vera Pace. Do you have any questions you’d like to ask? This is just questions now, not statements at this time.”
Vera Pace – “Well when they’re building that road, re-doing that road I just wonder if they got barriers to keep the silt off of my property and out of Cabin Creek?”
Chairman Moyer – “Alright.”
Luther Smith – “Yes mam, we had to file an erosion control plan with the state and they’ve approved that plan and at any point in time during their inspections if they find there’s a violation that has to be dealt with and it could be even a financial penalty. So yes, we do have a plan for that – the whole piece of property, not just this one section of road. And again, that’s very important to us to try and not get anything in the creek up there.”
Chairman Moyer – “Ms. Pace, do you have any other questions now?”
Vera Pace – “No.”
Chairman Moyer – “OK. Mr. Ponder?”
Bill Ponder – “Well everything that I have talked to Mr. Ball and I’ve known Luther. It seems to me that uh they found out what we’ve known all along and uh everything I have dealt with them, they have been in good faith and forthright and uh and I have seen no uh intention to pull the wool over anybody’s eyes if that’s a concern to anybody. At least in the way I see things so uh I see them making very very good effort to be good neighbors so I don’t see a problem, at least on our side of the – of the road.”
Chairman Moyer – “OK, thank you Mr. Ponder. Mr. Bell, do you have any questions.”
John Bell – “I have no questions.”
Chairman Moyer – “You’ll have a chance to make a statement later if you like so we’ll. Karen, do you, I’m sorry Ms. Smith, do you have any questions?”
Karen Smith – “I don’t have any.”
Chairman Moyer – “Alright. We’ll now move to staff’s evidence, Ms. Smith.”
Karen Smith – “Uh just
for the record, I wanted to go ahead and enter the packet that the Board has
into the record for the hearing and that packet, of course, has the application
materials. I did want to note that with
regard to attachment 11 which are the minutes from the Planning Board’s March
15 meeting, those meetings (minutes) were in draft form. The Planning Board did approve those minutes
at it’s meeting last night. We do have some photographs. I don’t know if they are necessary to enter
into the record but we have them if the Board wants to see them. Um it’s kinda hard on a road of this length
and that sort of thing to give you a good idea without going out there of what
kind of issues we’re talking about but we do have a few. Um as I mentioned in my opening comments, the
Planning Board did approve the development plan for phase I on February 15 and
as Mr. Smith said and as the application materials show, that plan shows the
road designed for
Commissioner Baldwin – “I’ve got a question.”
Karen Smith – “Sure.”
Chairman Moyer – “Mr. Baldwin.”
Commissioner Baldwin – “Karen, for the – you said the language that was in the variance reflects the type of language you would normally find in a – a variance that would go say before the Board of Adjustment and in the Subdivision Ordinance the language is different?”
Karen Smith – “The Subdivision Ordinance has just that very short paragraph and it does not go into the same level of – of strict test that you might find for a zoning variance, particularly it gives you a little bit more flexibility in taking into account the impact on the property itself, the environment, and that sort of thing in spite of what might be the ability for the applicant to meet the standards.”
Commissioner Baldwin – “So is it a clerical – is it a clerical oversight that the application doesn’t reflect – the language doesn’t reflect what’s in the subdivision regulations?”
Karen Smith – “I don’t know. We’ve had that application form as long as we’ve had the ordinance. I – it’s something though that we discussed with the Planning Board that we need to take a look at.”
Commissioner McGrady – “My impression to follow up is uh that uh while the letter from the Fire Marshal uh states that it won’t hinder access uh and uh that in fact they believe that this – the – the roadway construction for the variance is preferable to the roadway construction without the variance, in terms of just the Fire Marshal’s perspective, is that fair?”
Karen Smith – “That’s fair, uh huh.”
Commissioner McGrady – “OK.”
Chairman Moyer – “Any other questions for Ms. Smith at this time? I’m gonna give each of the parties the same opportunity they had, starting with the applicant. Luther or Mr. – Jim do you have any? No questions for Karen? Alright Ms. Osteen, do you have any questions for Ms. Smith. Mrs. Pace? OK. Mr. Ponder? And Mr. Bell, do you have any questions, OK. We will – thank you. We will then move into statements by the other parties. This is your chance to make – give evidence, if you will. I’ll let you – give you some flexibility with respect to making a statement if you want. Mr. Ponder has already made a statement for the record. I’ll start again with uh Ms. Osteen do you wish to make a statement? OK. Technically it’s called evidence but.”
Pat Osteen – “OK, well in private I did ask Mr. Ball if he would get me a copy of uh the uh environmental – the – for the plant species and everything uh because I think that is very important, not only just to us the people that live there but to all of Henderson County. So I would like to make sure that I get that and to make sure that – you know – that – that the County follows up- you know – on that to make sure that all that is protected because, like I said, I don’t think some of that stuff is found anywhere else in Henderson County so it’s real important to everybody. Thank you.”
Chairman Moyer – “Very good. Thank you. Ms. Pace, do you wish to make a further statement.”
Vera Pace – “No”
Chairman Moyer – “OK. Mr. Ponder, you’ve already made your statement, OK. Mr. Bell, this is your opportunity to make – provide evidence.”
John Bell – “Uh I grew up on that.”
Chairman Moyer – “State your name please.”
John Bell – “My name is
John Bell. Thank you. I grew up on that
property or a few hundred yards from there and am very familiar with it. As a matter of fact I rode on the bulldozer that
cut that road when my Father built it, or at least improved it and widened it
from a, basically a trail. The – the –
the spirit of the subdivision ordinance in
Chairman Moyer – “Please stay there and I’m gonna give the – all the parties have a chance to ask you now any questions. The applicant any questions? Run down then – Ms. Osteen? Ms. Pace? Mr. Ponder? Obviously John, I’m not going to let you ask yourself any questions so thank you very much. This is your chance, the parties chance to give rebuttal evidence. I’m presuming that based the way the record went, there’s no need for rebuttal evidence from anybody. Is there anyone, starting with the applicant that would like to make any closing remarks?”
A.J. Ball – “Uh I would
just like to say that – that we’re very excited about the opportunity to uh put
a quality development there in this part of the county. We are very sensitive to the uh – the uh
topography there, the environment there.
Our intent is to do a very low density development, do that in a quality
fashion so that we have the least amount of impact on the environment there as
possible while providing folks coming to
Chairman Moyer – “Thank you, Mr. Ball. Does staff wish to make any closing comments?”
Karen Smith – “No sir.”
Chairman Moyer – “Do any
of the other parties wish to make a closing statement? OK, fine.”
Commissioner McGrady – “I move we go out of public hearing.”
Chairman Moyer – “Do you want to do that or do you want us to have our deliberation as part of the?”
Russ Burrell – “Due deliberation.”
Commissioner McGrady – “Due deliberation in? OK.”
Commissioner Baldwin – “And I’ve got some additional questions.”
Chairman Moyer – “Oh you
Commissioner Baldwin – “Sure, the applicant, Mr. Smith or his agent. The applicant’s agent, Mr. Smith.”
Chairman Moyer – “Alright.”
Commissioner Baldwin – “The uh – we’ve got a section. This comes from section 170-48 from the subdivision regulations with respect to variances and we have a statement here that reads ‘in determining an undue hardship the Board shall consider unique conditions peculiar to the site and design flexibility to preserve and protect the site’s natural features. What – could you just bullet for me what you consider the natural features to be. I’ve heard em but I just wanta make sure they’re stated together so we can get em in the record.”
Luther Smith – “Uh in terms of the whole piece of property or just this specific area?”
Commissioner Baldwin – “That specific area.”
Luther Smith – “Uh that specific area or immediately adjacent to it – we have existing high quality streams that we feel this will help us minimize impact on those – on that water. Plant communities – various different types. Uh the amount of disturbance uh on the side of the escarpment as well due to the slope, trying to minimize just the disturbed area which translates into less effort from an erosion control standpoint to protect the streams and everything uh downhill from it uh and the vege – general vegetation, tree canopy and everything else by reducing the impact area uh it will allow more of the tree canopy to stay in place.”
Commissioner Baldwin – “And you said the growth has been there for about 80 years? Did I hear you say?”
Luther Smith – “Yeah, it appear to me that the majority of the – majority of the forest, I’m sure Mr. Bell knows since he’s more – more aware of it but it looks like most of it is – is at least 80 year forest.”
Commissioner Baldwin – “The wetlands area that you mentioned uh is it within the black box or adjacent to the black box?”
Luther Smith – “Uh no, no it occurs in other places throughout the property though.”
Commissioner Baldwin – “So this road would not have an impact on the wetlands area or it would?”
Luther Smith – “Well the only place it has a direct impact is – is one stream crossing. You know the stream itself essentially becomes a wetlands area but that’s the only – only place within that uh – the original 3900 feet or the proposed 3400 feet that it impacts, directly impacts a stream or a wetland area.”
Commissioner Baldwin – “OK, so – so there’s another section of the road under which the stream must pass that actually affects wetlands? Did I hear that correctly?”
Luther Smith – “Well, no. In terms of general wetlands, setting streams aside.”
Commissioner Baldwin – “OK”
Luther Smith – “General wetlands are scattered throughout the property, most of them are down in the lower valley area, off-stream and so forth. Now we have – through the property we have a number of stream crossings. By law each stream crossing is an impact to wetlands.”
Commissioner Baldwin – “OK”
Luther Smith – “OK so we have in this section of road we have one stream crossing so we are in fact impacting the – that section of the stream which is classified basically as wetlands. Does that?”
Commissioner Baldwin – “OK and so what uh just – just for the record again what measures are you taking to – to ensure that the streams maintain the high quality designation? Is that high quality waters designated by the state?”
Luther Smith – “No, it’s not designated as high quality waters. It’s just trout waters and uh but it doesn’t have the heritage or high quality designation.”
Commissioner Baldwin – “So it is designated trout water? “
Luther Smith – “Yes, it is designated trout water.”
Commissioner Baldwin – “OK so.”
Luther Smith – “The one specific crossing within the – the area of impact, the road we’re talking about here actually that crossing will be a – in a sense a bridged crossing or there – there will not be a culvert sitting in the stream. We’ll be going from high ground to high ground so from the standpoint of actual impact to that section of stream, there will be none.”
Luther Smith – “Uh, trying to minimize the impact uh when we cross the waters but the principle protection is to just minimize the amount of disturbed area on the property to reduce the potential of – of impact from erosion or stormwater uh influencing the waters on the property.”
Commissioner Baldwin – “OK so – so securing this variance you’ll minimize disturbance which will have a positive impact on the uh trout waters?”
Luther Smith – “Yes reducing – minimizing the disturbance will have a positive”
Commissioner Baldwin – “Or less – less of an impact.”
Luther Smith – “Well, yeah. Let’s say it will reduce the negative impact.”
Chairman Moyer – “You stated earlier how much less road you’d have to build if you …. What again was that?”
Luther Smith – “Uh about 500 feet less road.”
Chairman Moyer – “Yeah so there’s obviously less disturbance.”
Luther Smith – “Bill, which translates into at least 5 acres of land area that’s undisturbed.”
Commissioner Baldwin – “OK now back on the plant community that you described, the vegetation. Uh what – what’s being done to insure a continual flow of water on the rock outcroppings that you?”
Luther Smith – “Now again that – that areas above – is not included or as part of this application or the area included in the variance. I was using that as an example in terms of talking so its – its above this but in that instance where building a road base under the – the pavement that allows the water to continue to move laterally through the soil so that it – it provides the required moisture to the surface of the rock.”
Commissioner Baldwin – “But that’s not really related to this specific request?”
Luther Smith – “That’s not in this section.”
Commissioner Baldwin – “OK, what about – what about the uh – the – I wouldn’t call it old growth but the 80 years worth of growth. How does this – how does this request uh lessen the impact on the growth in that area?”
Luther Smith – “Well again it reduces the – the area that we have to do grading and so forth in so it – you know reduces the amount of clearing that has to occur of the existing old growth forest or established forest, we shouldn’t call it old growth uh simply by reducing the disturbed area.”
Commissioner Baldwin – “Are there any other uh positive impacts uh on the environment because of this variance that you requested, that you can think of? We’ve got land disturbance and we’ve got grade and uh a uh.”
Luther Smith – “Again I think – you know – the biggest long term impact is gonna be reduction of negative impacts on the stream system because everything eventually gets down to the stream system so if we reduce the impact area uh – you know – then uh eventually – reduce – you reduce the amount of road, you reduce the increase in storm water that occurs with – with that additional impervious surface and so forth so the bottom line impact is – is in terms of maintaining the quality of the stream.”
Commissioner Baldwin – “OK. I had a question for Karen right quick. Karen, the stream that he’s referred to as a trout stream, is this designated by the state?”
Karen Smith – “Cabin creek. It is, uh huh.”
Commissioner Baldwin – “OK. And what is the official – is it class C – what’s – do you know what the designation is?”
Karen Smith – “I can’t remember if it’s class B or C trout, I don’t know.”
Commissioner Baldwin – “OK.”
Karen Smith – “We may have something in the file if you want to give us a moment.”
Commissioner Baldwin – “That’s OK. Thank you.”
Chairman Moyer – “I’d ask the – the parties. Has any of the additional questioning given rise to any additional statements or any questions anybody would like to ask? OK. We as a Board can either vote today and direct staff to bring back findings of fact and conclusions consistent with the decision and the Board’s discussion or we can continue our discussion and decision until our May 2 meeting. I remind the Board that under our rules we must issue a written decision within 45 days of the conclusion of this hearing. So I’ll open it for Board discussion.”
Commissioner McGrady – “Mr. Chairman, I uh – I support the uh variance request uh the three technical variances uh requested by the applicant here. I think we can make a finding of undue hardship uh based on strict compliance with uh the ordinance. I think there’s been a showing of – of the unique physical characteristics of the land and I think if we uh follow the responses to most of the questions that Commissioner Baldwin has just now posed, we can find based on the condition – there are conditions peculiar to the site and underlying and that there needs to be additional flexibility here to preserve and protect the site’s natural features. Um I – I think I would just that I’m appreciative of the applicant’s handling of this matter. I would state while I’m not an adjoining land owner I guess I’m in the view shed uh if the trees weren’t in the way um and I appreciate the spirit of the proposal that’s being put forward so I would again, subject to discussion, I would like to see us direct staff to bring back findings of fact and conclusions and in order form uh consistent with the granting of variance in this situation, following the recommendation of the Planning Board in this case.”
Chairman Moyer – “And that was in the form of a motion?”
Commissioner McGrady – “I will make it if you want it now in advance, I’ll put it in the form of a motion if that’s OK.”
Chairman Moyer – “I would say that with respect to this variance language that we have discussed, probably three of us here, probably myself, Commissioner McGrady and I know Karen was involved when we did the subdivision ordinance and this is the kind of flexibility and – and preservation or unique natural features that we – exactly what we intended and that’s why it has this broader feature because we certainly recognize and have experienced and there’s further work to do but when you start cutting roads in the sides of mountains you can do a lot of damage and destroy a lot of stuff and we started with state standards of wanting 60 – 80 feet wide roads with shoulders and – and you know we just wreck a lot of the beauty we have so I support the variance also. I think it’s the kind of thing we intended to do. I strongly am in support of them protecting natural environment to the extent they can and I think we do have the flexibility to grant the variance which will help the natural features of this land. Commissioner Young?”
Commissioner Young – “I agree with what you and Commissioner McGrady have said on this. It’s not too often we have developers come in and want to protect the environment uh as well as these people are and uh I – I support the variance.”
Chairman Moyer – “Commissioner Young. Commissioner Baldwin, do you want to?”
Commissioner Baldwin – “Well I – I think uh it – that long series of questions was meant to pull some things out that I sensed, based on the presentation of the application was that we have the authority to grant a variance under section 170-48 of the uh Subdivision Ordinance and uh in some of the things that have already been said uh was what I was hoping to pull out in that uh the unique conditions, the need for flexibility in design are there to help us find a way to preserve and protect the site’s natural features and I think that in order to be good stewards of the environment, I think we’ve given ourselves an opportunity to do just that. So I think there’s enough here to – to warrant a variance based on the issues that have been stated with respect to the application. Uh I would just like to clarify for Russ when you draft the language in that it seems to me the language has to come from 170-48 rather the language that’s on the application. And it’s very important that we – we uh – we uh do that.”
Chairman Moyer – “Alright, Commissioner Messer.”
Commissioner Messer – “Well I too agree with everything that’s been said about the variance and it just goes to show you that we have high quality people, developers in Henderson County like Mr. Ball and his investors that’s willing to go out and go far and beyond and into – you know – I just think it’s great that we have those type of people working in Henderson County.”
Commissioner McGrady – “Alright Russ and Mr. Chairman, the only other thing I’d add is in putting together the – the findings of fact, the other key finding I think is the issue relating to the uh emergency service piece. Um because it was very clear to me and Karen stated – restated it that the Fire Marshal and uh the Fire Chiefs that uh looked at this all were of the opinion in fact that this design was preferable in the terms of public safety to the design that might have occurred if we simply ritualistically followed the uh ordinance and I think that’s another critical fact, putting aside the natural features.”
Chairman Moyer – “Alright, there’s a motion on the floor to grant the three variances and that we direct that findings of fact and conclusions be drawn consistent with that decision. Vote on the motion. All in favor say ‘aye’.”
In unison - “Aye”
Chairman Moyer – “Opposed? Alright it passes unanimously.”
Commissioner McGrady – “I move we go out of public hearing.”
Chairman Moyer – “All in favor say ‘aye’.”
In unison – “Aye.”
Chairman Moyer stated that at the next meeting he’d like the Board to approve the Budget dates.
David Nicholson reminded
the Board that on May 25 is the NCACC Legislative meeting in
Commissioner Messer made the motion to adjourn the meeting. All voted in favor and the motion carried.
CANE CREEK WATER & SEWER DISTRICT – no business
CLOSED SESSION – none
Elizabeth W. Corn, Clerk to the Board William L. Moyer, Chairman