The Henderson County
Board of Commissioners met for a special called meeting at 7:00 p.m. in the
Commissioners' Conference Room of the
Those present were: Chairman Bill Moyer, Vice-Chairman
Also present were: Planning Director
Absent was: Commissioner
CALL TO ORDER/WELCOME
Chairman Moyer called the meeting to order and welcomed all in attendance.
PUBLIC HEARING – VESTED RIGHTS APPLICATION
(VR-2007-03) “BILTMORE FARMS
Commissioner Messer made the motion for the Board to go into public hearing. All voted in favor and the motion carried.
Chairman Moyer stated this was a vested rights proceeding for application VR-2007-03, Biltmore Farms Hammond Tract, where Thomas A. Williamson is the petitioner. The petitioner was seeking vested rights under Chapter 189 of the Henderson County Code which allows a landowner to establish a vested right for a development project through the approval of a site-specific development plan.
A vested rights proceeding is a public hearing where the petitioner’s application is determined under specific rules of procedure adopted by the Board. A vested rights proceeding is one where an applicant seeks to lock in rights which they presently possess to develop certain land. The Board cannot grant the applicant rights greater than they have to presently develop land. However, the Board can, if they see fit, and upon certain conditions set by the Board, grant the applicant the right to develop land under the zoning and subdivision rules as they exist today, based upon what the law calls a “site specific development plan”. If the Board grants such rights, the “site specific development plan” cannot be modified without the approval of the Board.
The Board asked any persons (other than the petitioner and the Henderson County Planning Staff) who desired to become parties to this action to explain how they would be affected by this proceeding. For example, they may be the owner of an adjoining parcel of property, or have some other special and unique interest that justifies their participation as a party. As stated before, they do not have to be a party in order to testify in this proceeding.
All witnesses and parties were sworn as a group to tell the truth in their testimony.
The Board acknowledged the petitioner, Thomas A. Williamson, represented by Susan Taylor Rash and William R. Buie and the Planning Staff represented by Matthew Cable as parties to this proceeding. The Board asked if there were any other persons present who could demonstrate that they have a substantial interest or would be affected by the outcome of this proceeding and who wished to be a party to this proceeding.
Persons who came forward stated their name, address, and how they were affected by the outcome of the proceeding – i.e. adjacent property owners- or their substantial interest in the proceeding. Then Board of Commissioners determined which, if any, would be allowed as parties.
Parties to the Proceeding
Edward R. Doyle, Jr - Adjacent property owner – 331 Old Orr Road, PO Box 1562, Etowah
Roger Rusnak - Adjacent property owner – 1903 Brannon Road, Horse Shoe
Williams A. Ricks -
Adjacent property owner – 221
J. David Caudle - Adjacent property owner – 192 Brock Creek Rd., Horse Shoe
William Trimarco - Adjacent property owner – 193 Brock Creek Rd., Horse Shoe
Susan Taylor Rash -
Representative for petitioner –
William R. Buie -
Representative for petitioner – Two Town Square Blvd.,
William A. Williamson –
Matt Cable – Planning
After all testimony was given each party had the right to ask questions. They could not make statements or arguments at this time.
Clerk to the Board Elizabeth W. Corn swore in the parties to the proceeding.
Witnesses to the Proceeding
Richard Freudenberger –
Ramona Wooldridge –
Mary Jane Pell –
Rebekah Farmer –
Linda Johnson –
Steve Monahan –
Clerk to the Board Elizabeth W. Corn swore in the witnesses to the proceeding.
Matthew Cable stated that staff was entering into evidence Exhibit A, the Request for Board Action form and its attachments, Exhibit B, a copy of the power point presentation, Exhibit C, the application materials and attachments, Exhibit D, a memo containing staff recommendations and Exhibit E, containing staff recommended conditions for buffering of the development, should the Board wish to grant the development vested rights. Mr. Thomas A. Williamson, Vice President of Biltmore Farms, LLC, applicant, with permission from current property owners Mr. John T. Hammond and Mr. James W. Hammond, and with Mr. Will Buie of William G. Lapsley and Associates, agent to the applicant, submitted an application for statutory vested right under Chapter 189 of the Henderson County Code. The applicant had requested that the vested right be valid for a period of 5 years, if granted.
Notices of the public hearing on the vested rights application were published in the Times-News on April 11, 14, 18, and 20. Signs were posted on the subject property and notices of the hearing, by first class mail, were prepared and sent to the applicant and adjacent property owners on April 18, 2007.
Exhibit C included the application materials and specifically attachment 3, the revised site specific development plan.
The Biltmore Farms
Hammond Tract Development is proposed to be located on approximately 504.88
acres of land with a 50 acre tract to be retained by the property owners. The subject property fronts
Three aspects to development
§ 240 acres of open space
§ 8.65 miles of pedestrian trails
§ Sidewalks in vicinity of duplexes, triplexes and quadraplexes
In regards to Exhibit E, Ms. Rash requested that rather than the deed requiring membership in the Homeowners Association of each property owner, that restrictive covenants be placed on the property and the deeds all made subject to the restrictive covenants. This is a technical change but would make it easier for them. The primary underlying principal is fairness. It takes time for a land owner to develop property and if the rules change before the land owner has completed the development, the land owner may have to incur substantial cost to complete the development. In some cases the land owner may not be able to complete the project at all, depending on what changes have been made. The North Carolina Statute which authorizes the establishment of vested rights ordinances provides that as a matter of public policy that it is necessary and desirable to establish vested property rights to accomplish the following goals which are sent out in the enabling legislation. The first is ensuring reasonable certainties, stability and fairness in the land use planning process. The second is securing the reasonable expectations of land owners and the authorities fostering cooperation between the public and private sectors in the area of land use planning. It is important that property owners have the ability to develop a land use plan with the expectations that they will be able to complete the plan they have begun even if the zoning ordinance changes. The ability to acquire vested property rights incringe the land owners ability to invest the resources necessary to develop the comprehensive plan and soon developing property in a piece meal manner. Development pursuant to a master plan benefits the land owners, the county, and neighboring property owners. Biltmore Farms had already devoted substantial time and resources to developing a master plan and the due-diligence for the purchase of the property.
In the enabling legislation the General Assembly has also found that the ability of the land owner to obtain vested rights and the development plan would strike an appropriate balance between private expectations and the public interest while protecting public health, safety and welfare. They are asking the Board to grant vested rights in this master plan, because the plan does strike a balance of expectations of the property owner and the public interest. The master plan is in keeping with the character of the existing development in the area. It will provide roads, water, sewer and amenities such as trails and the clubhouse for its residents.
One of the questions raised in the staff report was how Biltmore Farms would deal with the Land Development Code if the development was not completed within the 5 year period, and they are granted vesting rights for a 5 year period. The developers do not feel that complying with the Land Development Code would be a substantial problem unless there are major changes made before it is adopted. They have a contract that requires them to meet certain deadlines and without knowing that they can move forward with the master plan it would be very difficult for them to meet the deadlines. The master plan as presented is the type of plan that the enabling legislation contemplated. Biltmore Farms has been involved in preparing for this subdivision since May, 2006. The Planning Board and the Board of Commissioners have been involved in developing the LDC during the same time, which is coincidental.
The Board of Commissioners asked the following questions of Mr. Thomas Williamson:
· Exhibit C, Attachment 1, shows an investment of $150,000 in the project and you have stated a much larger figure. What is the difference?
· How far would the Hendersonville City Water Department have to run the waterline and what is the location of the waterline?
· Would there be an adequate water supply including fire protection?
· Will the empty space be open to the public?
Williamson answered that more expenses had occurred since February 28, 2007,
such as contract deposits and payments to the sewer company for sewer capacity
which alone was $202,000.00. He stated that
the water line was located adjacent to the property and that there was an 8
inch water line down
William Buie, Susan Taylor Rash and Mr. Williamson answered questions by the interested parties.
Edward R. Doyle, Jr. had no questions at this time.
Mr. Roger Rusnak asked the following questions:
do water and sewer arrive at the property?
The water and sewer would travel down existing lines on
the impact on
there another access other than
· How will the citizens be aware of the different proposals discussed at this meeting? The proposals will be posted on their website.
· Are the duplexes, triplexes and quadraplexes going to be owner occupied or rental? There are no plans for rental property however the restrictive covenants that are in place for the other subdivisions would not prevent someone from renting although they would require that the rentals be for long term as opposed to weekly vacation rental.
Mr. William A. Ricks asked the following questions:
Mr. J. David Caudle asked the following questions:
Mr. William Trimarco asked the following questions:
Moyer discussed that a request had been made that rather than the deed
requiring membership in the Homeowners Association of each property owner that
restrictive covenants be placed on the property and the deeds all be made
subject to the restrictive covenants. He
read from documents “The County Attorney must approve the Declaration of
Covenants.” Mr. Moyer was under the
impression that the
Matt Cable stated that it could be included in the restrictive covenants and the staff did not have a problem with it not being in the deed. They had used the language generally used for a special use permit approval.
When reviewing the application and plan for the develop rights, Mr. Cable suggested the Board consider the following information.
The subject property is located within the Conservation Area and Rural/Urban Transition Area according to the CCP. The Conservation Area designation is applied primarily to the eastern portion of the project site, largely because of the presence of floodplain in this area. The site-specific development plan indicates that most of this conservation area will remain in open space, connected by a system of trails. The CCP does show that portions of three (3) residential structures will be located with the floodplain. The Rural/Urban Transition designation of the Growth Management Strategy is applied to the subject property. (Mr. Cable pointed out the three residential structures on the map for the Board)
CCP also states that, “the primary factor preventing urban development in the
RTA is the absence of sewer and water service.”
The applicant is proposing public water (City of
The Draft Land Development Code Zoning Map shows the subject property as being located within the Residential Two (R2) zoning district. The LDC proposes a standard density of one (1) unit per acre for single-family residential uses and a maximum density of two (2) units per acre for multifamily residential uses. The site-specific development plan indicates a density of 1.39 units per acre. Draft 8 of LDC zoning map, which the Board began considering at the last workshop, replaces this with R1 zoning. R1 zoning would allow the density and other uses proposed in the development plan as far as residential uses.
Staff recommended approval of the development’s vested rights based on the consistency with the CCP, LDC, access to public and private sewer services, conformances with the Henderson County Codes and staff suggested conditions. Staff had prepared Exhibits D and E recommending conditions. The Board is not obligated to grant development vested rights. All of the conditions suggested by staff are in an attempt to mitigate any of the negative impacts that the development may have on public health, safety and welfare. There was a possibility that other conditions raised at this meeting by citizens that should become conditions should the Board determine such. Exhibit D and E included the following recommendations from staff:
· No structure be placed within the floodplain nor any fill occur within the floodplain except that which is associated with proposed trails, roads or underground pump stations.
· The applicant must provide public water and private/public sewer to the development.
· The applicant is vested to only those specific uses identified by the applicant for the clubhouse at the time of application to preserve the rights to locate the uses within the clubhouse.
· The applicant is vested only to the number of units described for each type of use as a maximum number of units to prevent expansions which are not in conformity with the vested rights.
· The single-family lots be no less that 1/3 of an acre, as indicated by the applicant, in order to be in keeping with the overall intent of the site-specific development plan.
· The applicant use the specific information provided as to the number of parking spaces to be provided to the clubhouse in order to accommodate residents and employees of the development and prevent expansions which are not in conformity with the vested rights.
· The applicant is vested to buildings that do not exceed the square footage or building heights that were outlined by materials that the applicant submitted.
· Building height is measured as a vertical distance from the finished main floor to the highest point of the building.
· The applicant is vested to the minimum front yard setback as indicated in the site-specific development plan and accompanying application materials, and as measured from the edge of right of way.
· The applicant provide minimum distance between structures which are to be no less than permitted by North Carolina State Building Code for public safety purposes.
· All structures be placed no less than 20 feet from any exterior property line as provided by the site-specific development plan.
single-family residences are placed along
· Any uses and/or aspect of the development of the subject property, beyond that included in the site-specific development plan, will be subject to applicable existing regulations at the time such use/aspect of development is to be applied for and installed by the property owner.
· A minimum of 240 acres of open space be provided.
· A minimum of 8.65 miles of pedestrian trails be provided and the applicant will provide sidewalks along at least one side of the road in areas of attached units to increase connectivity.
· A buffer is provided along the perimeter of the project, including the buffer’s composition, minimum width, location, and installation time.
Mr. William Buie stated
that the developers only concern was the condition related to the
floodplain. The site specific
development plan was based on density.
If the developer is not allowed to place the units, as discussed, in the
edge of the floodplain and fill for the units, the developer would look at
moving the units to other locations on the site. He was concerned that these locations would
be steeper than the locations adjacent to the floodplain. The developer requested that they be allowed
to abide, before the County’s current ordinance for floodplain that the
Planning Board approved. The floodplain
Chairman Moyer stated that the parties could now ask the staff questions.
Edward R. Doyle, Jr. had no questions for the staff.
Roger Rusnak had no questions for the staff.
William Ricks had no questions for the staff.
J. David Caudle asked the staff to recommend that any adjoining property owner follow the same buffering recommendations as provided for the development.
Matt Cable indicated, from the staff prospective, they would not be opposed to any additional buffering for the roads however, the buffering is generally used to provide visual screening from elevated structures.
Mr. William Buie stated
that the developer would not generally have a problem with extending this
condition. It appeared that there were
only 2 locations where the road would possibly connect adjacent to the property
line, on the south side of the property near
William Trimarco had no questions for the staff.
Chairman Moyer noted that at this time the other parties would have a chance to make their statements and present their testimony.
Edward R. Doyle, Jr. requested that the Board deny the application for vested rights based on an incomplete and deficient site specific development plan that fails to address not only the minimum plan requirements, which the staff recommendations have shown, but both existing and future significant impacts to safety, health and welfare of adjacent property owners, the Etowah community, and the environment in general that this plan as submitted will incur. Mr. Doyle voiced concerns in regards to the following:
No questions were asked in regards to Mr. Doyle’s statements.
Mr. Roger Rusnak did not present a statement.
Mr. William A. Ricks did not present a statement.
Mr. J. David Caudle did not present a statement.
Mr. William Trimarco did not present a statement.
Chairman Moyer requested that the Clerk to the Board, Elizabeth W. Corn call the witnesses.
Richard Freudenberger stated that he was concerned with fire protection, possible tax increases, and runoff from hard surfaces.
Ramona Wooldridge did not present a statement.
Mary Jane Pell asked if the vested rights would keep them from having to follow new rules being drafted into the LDC. She was against the approval of the vested rights application.
Rebekah Farmer lives two
streets over from the proposed development and was concerned that
A five minute break was taken in order to change video tapes.
Linda Johnson was in favor of the development and felt it would be an asset to the community. She asked if she would be able to walk on the trails within the community and was answered no, she would not as it was for the people who lived in the community.
Steve Monahan stated that you can’t stop progress. He was concerned with the traffic situation.
Chairman Moyer observed
that a number of people had touched on the road and traffic issue. He expressed that this had also been an issue
for the Board of Commissioners and they could plan and they could tell NCDOT
what they want and need and they will respond with the money available what can
and can’t be done period. Counties do
not control roads. They have no
authority over the NCDOT and are prohibited by statute from spending money on
roads or sidewalks in
Chairman Moyer invited the petitioner William Buie to the podium to make closing remarks.
William R. Buie said regarding traffic the developers were studying all roads around the development. They are required to pay $2300.00 per sewer tap for each of the units which must be paid upfront. The CCP shows that the majority of the conservation land to be identified as open space. They will be providing storm water measures required by the County’s watershed ordinance, as well as, storm water retention ponds and storm water wetlands specifically in the areas where there is higher density, multi-family units. Biltmore Farms has their staff that patrol and police the sedimentation and erosion control.
Susan Taylor Rash addressed the statements in regards to the developers rushing to beat the LDC. She stated that when the developer began contract negotiations they did not realize that a new LDC was in progress. The maps showing which district they would be in were not available until they were already pretty far into the process.
Chairman Moyer asked Mr. Williamson if he had any closing remarks.
Thomas A. Williamson stated that there were no plans for a hospice or retirement center in the development.
Chairman Moyer asked if the change of use were made from residential to retirement would it require the developer to come back before the Board for a complete new plan.
Mr. Edward Doyle submitted that the application should be denied.
No further statements were made by Mr. Rusnak, Mr. Ricks, Mr. Caudle, or Mr. Trimarco.
Matt Cable stated that the vested rights had given the Board the opportunity to go above and beyond what would be required by the floodplain ordinance. Fill will be allowed for roads and pump stations.
Commissioner Messer made the motion for the Board to go out of public hearing. All voted and the motion carried.
Board Discussion Followed.
Commissioner McGrady noted that he was inclined to grant vested rights but needed additional time to review materials presented at this meeting. He was in agreement with staff in regards to information on the floodplain. Commissioner McGrady recommended that staff be directed to draft findings of fact to support the application based on the evidence presented including all areas that both the applicant and planning staff have agreed upon.
Commissioner Young also felt that more information was necessary.
Commissioner Messer stated that more information was needed before a decision could be made.
Chairman Moyer also
agreed with the comments expressed by the Board and has a tendency to lean
toward approval of the application.
Chairman Moyer expressed to
Commissioner McGrady made the motion to adjourn. All voted in favor and the motion carried.