The Henderson County Board of Commissioners met for a special
called meeting at 9:00 a.m. in the Commissioners' Conference Room of the
Those present were:
Chairman Bill Moyer, Vice-Chairman
Also present were: Fire Marshal’s Administrative
CALL TO ORDER/WELCOME
called the meeting to order and welcomed all in attendance. He stated that the occupancy was already more
than was contemplated and that a discussion was going to be held in regards to
the parameters associated with the hearing so that everyone would understand
and so that the Board could make a decision as to how to proceed. The public hearing would be called to order
and the Chairman would recognize a motion to continue at the Monday, April 2,
2007 meeting. Between this meeting and Monday’s
meeting the Board would try to arrange a date that
Attorney Bill Alexander, representative for the petitioners, stated that the petition coming before the Commissioners on Monday, April 2, would be withdrawn on March 27, 2007.
County Attorney Russ Burrell explained that in terms of how the hearing would proceed, he recommended a quasi-judicial hearing, which is similar to a court hearing in which you have parties who have demonstrated specific and particular interest in the case, not in terms of their personal interest but in terms of them being, i.e., a next door neighbor of this project or having some other specific interest different from that of a general citizen. Mr. Burrell had difficulty squaring this with the General Statute §153A-344.1 which talks about the statutory vested rights proceeding, such as the one being held here, and specifies that there will be ample opportunity for public participation. This is not what a quasi-judicial hearing is. A quasi-judicial hearing has parties on each side, and not the public, which have a specific individualized interest in the case. The statute also continues on how a vested rights hearing is to be established and expressively uses the words “public hearing”. It does not use “quasi-judicial hearing”. Mr. Burrell was not familiar with a statute that used public hearing and quasi-judicial hearing in the same type of proceeding. Under these circumstances he recommended that this be a public hearing and that the Board make their decision based on whatever information they receive at that public hearing. This is consistent with the Federal language in the statute which states “A County may approve or disapprove a condition for whatever plan that may be reasonably necessary to protect the public health, safety and welfare.” This is a legislative decision and not a judicial decision. This supports the idea that this needs to be a public hearing.
Chairman Moyer stated that he would be giving council an opportunity to speak before the Board had discussions.
Bill Alexander appeared along with Angela Beeker on behalf of the applicant in the proceeding for vested rights specifically for approval of a site development plan pursuant to N.C. General Statue §153A.344.1 and chapter 189 of the Henderson County Code. They had prepared and distributed a position statement of the applicant relative to the nature of the proceeding and the standard for a decision in their opinion that this hearing could only constitute a quasi-judicial proceeding. A quasi-judicial proceeding has traditionally been understood in this area of the law as one in which the Commissioners are applying a set policy (existing ordinances) against the individual facts of a case. The right of this applicant to have a site specific development plan approved is clearly judicial and not legislative.
Boyd Massagee appeared on behalf of Fritz McPhail, an adjoining property owner.
No other council was present to speak.
Commissioner McGrady requested time
to review materials and get a response from the
Chairman Moyer stated that this meeting was advertised as quasi-judicial so if the Board decides to go with a public hearing it would be advertised again.
Chairman Moyer noted that the meeting would be started and then continued to Monday, April 2, 2007 to set another date. All decisions would be deferred in regards to quasi-judicial versus public hearing until Monday when all materials will have been viewed.
QUASI-JUDICIAL PUBLIC HEARING – Vested
Rights Application VR-2007-01 for the Proposed Continuing Care Retirement
Community Development Known as The Glen and
Commissioner McGrady made the motion to begin the public hearing on Vested Rights Application VR-2007-01 for the Proposed Continuing Care Retirement Community Development Known as The Glen and Highlands at Flat Rock. All voted in favor and the motion carried.
Chairman Moyer made the motion to continue the public hearing until Monday, April 2, 2007 at 5:30, as the first item of business, for discussion of the nature of the hearing and continuing the hearing until a later date. All voted in favor and the motion carried.
Commissioner Messer made the motion to go out of public hearing. All voted in favor and the motion carried.
Chairman Moyer requested council to provide the Board with a list of dates that they would not be able to attend.
Construction Management Services for Henderson County Schools – AIA Document B801 CMa - 1992
Chairman Moyer called the meeting back to order. Chairman Moyer stated that this item was tabled at the last meeting on March 21, 2007.
Commissioner Williams stated that the design and contingency cost of $1,190,000 was very high and needed more discussion. He questioned if the County could possibly hire an engineer to do this in-house?
Bill Cram explained that they
employed about sixty-five degreed professionals in their division for this
school project in particular. In the
pre-construction phase they have a team of seven people that work through the
estimating and value engineering constructability reviews. They would be coordinating the design,
looking for better material and ethics.
When construction begins they will have a project manager, site manager
(full time at each site), and a project engineer splitting time between the
sites. That would be four people
Commissioner Williams asked Russ
Russ Burrell pointed out that the school board had as many options as they could have under these circumstances. They have to meet the budget.
Chairman Moyer made the motion to advise the school board that this approach was acceptable to the Board of Commissioners, and the Board authorizes and encourages the school board to proceed in accordance with the AIA Document B801 CMa – 1992 dated March 27, 2007. All voted in favor and the motion carried.
Commissioner McGrady made the motion to adjourn. All voted in favor and the motion carried.