The Henderson County Board of Commissioners met for a special called meeting at 6:00 p.m. in the Commissioners' Conference Room of the Henderson County Historic Courthouse.
Those present were: Chairman Bill Moyer, Vice-Chairman
Also present were: Associate County Attorney Sarah Zambon, Planner Matt Card, Planning Director Anthony Starr and Land Records Supervisor Pam Carver.
CALL TO ORDER/WELCOME
Chairman Moyer called the meeting to order and welcomed all in attendance, stating that the purpose of this meeting was a Public Hearing for the Realignment of Pleasant Grove Church Road and consideration of a Proposed Development Agreement for Seven Falls Golf and River Club.
Commissioner Messer made the motion to approve the agenda as presented. All voted in favor and the motion carried.
PUBLIC HEARING – Realignment of Pleasant
Commissioner Young made the motion for the Board to go into public hearing. All voted in favor and the motion carried.
Chairman Moyer recognized Anthony Starr to give a brief overview of both of these items.
Anthony Starr stated
that we are here to receive public comments as required by General Statute
153A-241 for the possible road realignment of
Anthony Starr stated
that the developer proposes to relocate a section of
Anthony Starr stated that the other item is the development agreement that the Board is considering. Several months ago the developer requested to enter into a development agreement. NCGS 153A-439 permits local governments to enter into development agreements whereas a variety of issues can be addressed. They had originally requested vested rights for 20 years. The Board was concerned about that so that agreement was not moved upon. A new revision has been submitted by the developer which would provide for a five year vested rights with a possible five year extension if certain conditions are met. Some of the terms the developer agrees to:
1. He would agree to build a fire station that would serve this development and
the surrounding community. It would be given over to the county for use by the
Etowah-Horse Shoe Fire Department at no cost to the county. They would also provide
the land for that fire station.
2. They would also agree to convey the water and sewer system in the development to
the county at some point, should the county start providing that service in the area.
There are a couple of other provisions in the draft development agreement which has been available to the public.
Anthony Starr stated that as required by statute we must hold a public hearing and gather comments on both of those items prior to taking any action. After that the Board can modify those, approve them, or disapprove them, based on the comments received.
Chairman Moyer stated
that we would take comment first on the realignment of
Bill Lapsley came
forward and stated that his name is William Lapsley and he is a consulting
engineer and the authorized agent on behalf of Seven Falls LLC which is the
developer of Seven Falls Golf and River Club and the applicant for the project
under consideration (both items). Regarding the relocation of
Bill Lapsley stated this
road relocation project was presented about a year ago to the Planning Board.
The project involves moving the existing road about 500 feet to the west, as
shown on the plan. NCDOT reviewed and approved the plans and they were
presented to the County. As he understands the process, the Board of
Commissioners must decide that this is in the public’s interest to relocate the
road and that it would not cause a problem.
If the Board so chooses to do that then the new road would be
constructed to NCDOT standards, NCDOT would have to review the final product
checking inspection work and core drillings etc. and once that is done to
NCDOT’s satisfaction and they agree that the finished product is acceptable,
then it would be submitted, with the County Commissioners’ approval, to NCDOT
Board of Transportation in Raleigh to be accepted into the NCDOT secondary road
maintenance program. Once that occurs then the new road would actually become
part of the State Secondary Road Program. After that date, then the existing
road can be closed and the public right-of-way on that road would be removed.
It would be removed in the sense that upon the closing of a roadway (should the
Board so choose to do that) the property owners on each side of the road would
gain that land. So in that case the
entire section of the existing
Build the road
NCDOT inspects and reviews
NCDOT accepts the road
The road is moved and traffic is moved onto the new road
The existing road is officially closed and the pavement is removed and it goes away
The new road involves
about 3900 lineal feet of road. The new road will be 22 feet wide compared to
the existing road which is 18 feet wide.
It has fewer curves in the road.
They believe it will be safer because of its width and the
alignment. The curves are more sweeping
and in conjunction with NCDOT standards. It will also eliminate about 1200 feet
of an existing private road which is called
William Lapsley answered questions from the Board some of which were questions regarding the map in the packet.
In response to questions about a cemetery on the property, William Lapsley answered that regarding the existing cemetery that was adjacent to the Fullam Dairy property, they found that no-one claimed ownership. The Fullams didn’t own it and nobody seemed to own/claim it. Mr. Lapsley’s client and his legal council doing title search found that no-one owned it so they have filed a deed to claim ownership and to be responsible for it. He showed the location of the cemetery on a map, stating it is about ¾ of an acre. He explained that since the Planning Board approved the Master Plan of the project last June, they have worked with the County’s Cemetery Advisory Committee with Jay Jackson and others. He referred to three pictures in the packet, one before they worked on the cemetery showing trees and undergrowth and a barbed wire fence around the grave sites; one with the site cleaned up and trees taken down, with grass planted and a white fence surrounding the area and a third with a crane showing how they took the tree down one-third at a time so as not to allow any trees to fall across the graves. Mr. Lapsley stated that they found six or eight graves located outside the barbed wire fence and they cleaned out further and extended the boundaries of the cemetery. He stated that anyone that wants to come visit this cemetery is welcome at any time, day or night, seven days a week, 365 days a year. No-one will be denied the opportunity to visit the cemetery.
Chairman Moyer explained
the procedure for hearing public comments.
He explained that he would like to try to keep the first part of the
comments on the
Dave Anness – Mr. Anness was confused about the closure of
the road. When the new road is constructed and opened he asked what would
happen to the
Moyer answered that they had indicated that they would close
Mr. Anness asked why they were closing it at any point?
Lapsley stated that the only project on the table tonight is
2. Richard Freudenberger - Mr. Freudenberger questioned why they could start building the road without getting approval first. If it’s not approved they will put things back, well he said they are disturbing soil and crating run-off. He stated that it is also assuming a self jurisdiction that he doesn’t think was intended.
His second point was with regard to safety. He understands that the road is going up to 20-22 feet in width but he felt that wider lanes just mean faster traffic, not necessarily safer traffic.
right now the request is to move and realign the
Angela Fernandini – Ms. Fernandini asked “As a citizen if I came
to you tonight and I told you I had already started putting in a road without a
proper permit what kind of repercussions would I face? Certainly
something.” They’ve admitted to putting
in a road that they don’t have a permit for so she asked the Commissioners to
think about what repercussions they face.
She questioned the safety concerns for
the road, stating that if there are concerns then NCDOT should have
taken care of them before now. Etowah citizens have been using that road for
the past 25 years, some every day of their life. She asked “Are the existing conditions
not providing for public safety right now? Does DOT have any report documenting
the current situation as not being safe? How does existing road alignment not
provide for current land owners safety and access? How a new alignment provides
better access and safety and what are the impacts related to this realignment?
What are the other alternatives to this realignment? Have they thought of any
alternatives? Possibly the alternative is not doing anything. Yes, today we’re
Linda Johnson – Ms. Johnson is the Chairman of the
Incorporation of Etowah group. She stated that there were some letters sent out
and a postcard. She personally did not
see the letter but she did see the postcard that was sent out. She stated that the people for the
incorporation of Etowah did not send these cards out. She has had many calls about this
situation. The incorporation group had
nothing to do with this. She quoted something she used to hear as a small girl
– “You can’t make a silk purse out of a sow’s ear” and said that
Chairman Moyer asked Ms. Johnson if her group had a position on the relocation of the road.
Ms. Johnson stated that they had talked about it and she understands how some of the people in the community feel but she also understands that nobody who has lived somewhere for a long time likes change but if they would only look at the change and see what’s coming. She stated “We’ve got to have better roads, we have to.”
Roger Freeman – Mr. Freeman stated he didn’t have anything to
say on the road.
Chairman Moyer asked Mr. Freeman to come forward and introduce himself because Mr. Moyer had a question for him.
Mr. Freeman is the Chief of the Etowah Horse Shoe Fire Department.
Moyer asked Mr. Freeman if the Fire Department uses the existing road in
connection with the movement of vehicles. Mr. Freeman answered that they
do. He stated it is difficult due to
what was explained with some of the curves and the banking of the road as you
go through. Some of the larger apparatus that they would have to take up onto
the mountain side would be difficult.
Their district goes all the way to the intersection of
6. Bruce Hatfield – Mr. Hatfield passed on the road realignment issue.
Audrey Paulin – Ms. Paulin asked how changing the road
Lapsley showed on the map where the school bus stop is at the intersection of
Lapsley stated that the existing
Pam Banks – Ms. Banks stated that the aforementioned hog
farm belonged to her Dad and Grandfather and the aforementioned Bruce Banks
property was her Dad. She said that if her Dad was still living we probably
wouldn’t be here this evening. She said her Grandfather was the original owner
of the Banks farm property, the hog farm.
He lived to be 93 years old and he made sure that she (Pam Banks), her
brother and her sister had property and were all able to move back there before
he passed away. Many years ago, when she was very young, her Grandfather had
(being from the old school) the foresight to understand that sure would be a
beautiful golf course in that valley and said that many times. He also had the
foresight to tell the grandchildren that someday they would sell bottled
water. She said “So here we go again,
both of his visions have came true.” Ms. Banks said leaving that property was
very hard for them. She said they all
lived there. They could either live in
the middle of it or sell to the golf course.
She had the piece in the middle, on both sides of the road that has been
referred to tonight. She stated “With due respect to the community, I think
it’s an awesome opportunity for Etowah.
I think it is better than alternative developments that could have came
and done the same thing without the planning and without the strict and high
Fred Mathis – Mr. Mathis lives just above the
Lapsley explained that regarding this section of the proposed relocation of
Mathis asked “Who’s paying for all this, tax payers or
William Lapsley stated that Seven Falls LLC is paying 100% of the cost of the road construction as they did with the land acquisition to build the road.
Mr. Mathis asked “Do they have a plan or is there gonna be a plan for the increased traffic due to the Village and the golf club, not only Pleasant Grove Church Road but Pleasant Grove Road?
William Lapsley answered that prior to the approval of the Master Plan by the County Planning Board last year, the applicant hired a traffic consultant out of Raleigh who came to the site, put out traffic counters, did a study of the development as it exists today, as it exists when the development occurs, and as it exists with no development but increased growth in the area for normal development. That traffic study was done and came out with a number of recommendations, one of which was if this road is in fact approved that it be built to NCDOT standards for a speed limit of 35 miles an hour which generated the width of the road etc. The second point that the developer be responsible for the improvements to existing state maintained roads in the area at three locations: 1. At the intersection of Pleasant Grove Road and Etowah School Road at the bridge that goes across the French Broad River that a turn lane be installed at that location, 2. An improvement of a right hand turn lane at the intersection of Etowah School Road and Etowah Park Road which is adjacent to the Ingles Store in Etowah, a right hand turn lane from Etowah School Road onto Etowah Park Road, and 3. At the intersection of Etowah Park Road and US Hwy. #64, at the Texaco, that an exclusive right hand turn lane be installed at that location and a traffic light be installed at that location. Those points were accepted and agreed to by the developer. Those three improvements have been designed, four including the traffic light. Those plans have been submitted to DOT. They have gone back and forth with some revisions to the plan. Mr. Lapsley anticipates an approval of the design from DOT on those items in the next week or so. Once that approval is obtained they will talk to the land owners at two of the locations because they will require gaining some additional right-of-way. Once the plan is approved and they know how much right-of-way is needed in order to make the improvements, they will talk to the land owners and seek to obtain the right-of-way. Assuming the right-of-way is obtained those improvements will be constructed in accordance with the time schedule that DOT has dictated to them as a part of the project. Those are conditions that have been imposed as part of a street access permit for the first phase of the development.
Mr. Mathis asked “I notice there’s a couple of little steep places. What is the maximum grade going to be on the new road?”
William Lapsley stated that on this road he knows it is less than 15%. He believes it is 12 or 14% on the steepest part. Again that’s a DOT requirement for the type of road and the traffic count. It’s no more than 15% and most of it is 12% or less.
10. Bruce Gosnell – Mr. Gosnell lives on
the 800 feet that’s been talked about being discontinued, who’s gonna take
ownership of that right-of-way that exists right there right now. Is
William Lapsley answered that it is the same with regard to the public right-of-way as it is with the Pleasant Grove Church Road as he described earlier, the way the state law reads as he understands it, if a section of existing platted public right-of-way is approved to be abandoned by the Board of County Commissioners then when that abandonment occurs the existing land owners on each side of that road, that right-of-way, would get control of the land from the center line of the right-of-way to the edge on their side of the road. In this case of the relocation of Pleasant Grove Church Road and in the case of the section of High Peak Road the land owner on each side of the road is Seven Falls LLC so if the Board so chooses to allow that right-of-way to be closed, once that abandonment and closure take place Seven Falls LLC would then become the land owner of the entire public right-of-way. If there was a different land owner on one side versus the other, then whoever owns that side would get that half of the right-of-way.
Gosnell “Is this road being relocated, is that gonna be part of the argument
Lapsley stated that “These are two different projects. The Board of
Commissioners will make their decision on each project separately. One is not
linked to the other whether it’s legally or Master Plan or otherwise. They are two different locations and we are
not presenting any issues with regard to
Chairman Moyer “And sir I can assure you that if they do, it will have to come for a public hearing just like this and we’ll remember what is said and I’m sure we’ll hear from you again.”
Commissioner McGrady stated that they had started construction on the new road, is the grading and all the land disturbing activities that are occurring, to your knowledge, in compliance with the applicable state and local ordinances and regulations regarding the soil erosion and the water quality issues.
William Lapsley “Yes sir, we have a county issued soil erosion and sedimentation control permit which allows us to build a road.”
Commissioner McGrady “And there’ve been no complaints or violations of the plan that’s in place, is that true?”
William Lapsley “Not to my knowledge. I met with Natalie Berry, Division Chief, yesterday and we talked about it and she expressed no concerns whatsoever with what we were doing.”
Charlie Messer “If I can get something clarified. If you would state again what the developer said when he started the process for building the road. You know, there’s some doubt about the time and so forth on that matter.”
Lapsley “The timing of this entire development or this specific project
referenced the Planning Board approval of the concept of the road back last
June. It was submitted in April, March
or April but the Master Plan wasn’t approved until June 2007. Shortly thereafter I proceeded to design the
proposed road, submitted it to NCDOT to meet their criteria, probably sometime
in September, in that time frame, about 2-3 months later submitted the full
design of the road. The district office
and the division office reviewed those plans. That took about 60 days.” It was
around early December when our district DOT indicated that they would accept
the design. It went to the division and Mr. Lapsley received the written
documentation on January 16, 2008, that the road, if built to the standards as
shown on the plans and if approved by the
Commissioner Williams made the motion for the Board to go out of public hearing. All voted in favor and the motion carried.
Chairman Moyer stated
that it was clearly indicated that what is before the Board is just the
Commissioner McGrady stated that the Board can only decide the issue before them. It is helpful that it has been identified that the Board may be looking at other road closures but he doesn’t want to use this road closure as influencing the next set. He stated he is pretty sensitive to that. The developer went forward with his eyes open, he knew he was taking a risk and the Board could turn this down. He felt that the applicant had put forward the reasons for the move, safety, etc. He stated we would also support the resolution.
Following Board discussion, Commissioner Williams made the motion to approve the closure of Pleasant Grove Church Road contingent upon: (1) the new section of Pleasant Grove Church Road being constructed in accordance with NCDOT standards; (2) NCDOT officially accepting the new section of road; and (3) the order granting approval is not recorded in the County Registrar of Deeds Office until the above conditions have been completed and approving the Public Easement Closing. All voted in favor and the motion carried unanimously.
Charlie Messer made the motion for the Board to go back into public hearing. All voted in favor and the motion carried.
PUBLIC HEARING for consideration of a Development Agreement for the Seven Falls Golf and River Club
Moyer stated that the Board had just approved the realignment of
Lapsley stated that the Master Plan for the Seven Falls Golf and River Club was
presented to the County Planning Board in March 2007 and approved in June
2007. The Master Plan and the first few
phases that have subsequently been approved and recorded were prepared in accordance
with the County’s Land Use Ordinance in effect at that time. The zoning
classification of all of the property within this development at that time was
open use. The developer, Seven Fall LLC, recognizes both now and at that time
that this is a large project and it will take many years to develop. Obviously the development of the project
depends on lot sales and home sales and those things are driven by the local
market conditions which are beyond the control of the developer. The NC General Assembly recognized the need
for the counties in the State to have the flexibility in the application of
land use regulations for projects that will take many years to complete such as
the Seven Falls Project. It is unreasonable for a land owner and a developer to
enter into the financial obligations to undertake a large project such as
Bill Lapsley reviewed the major points in the agreement:
The developer would be able to proceed in
accordance with the approved Master Plan. That involves the number of units,
density, the proposed golf course and all the amenities that are shown on the
Master Plan. In exchange the developer has agreed to do a number of things. The
key one is the proposed development of a substation for the Etowah Volunteer
Fire Department. The location of that substation, as shown on the relocated
· The key point with regard to the term of the agreement, they have proposed a two-tiered time schedule. First a five year initial period and should certain goals and things be met including the construction of this proposed fire substation, then the Commissioners would reassess how this development is proceeding and would then allow for the agreement to be renewed for another five year period. So the total term of the agreement is ten years maximum and it is split into two five year periods. The applicant thinks that is reasonable and has no objection to it at all.
Mr. Lapsley said there are other things included in the agreement but he thinks these are the two key points. The applicant intends to construct and develop the project as shown on the Master Plan approved by the Planning Board and has stated that on numerous occasions.
Lapsley asked permission to allow the legal council for
Jay Devaney, Attorney with Nexsen Pruet Adams Kleemeier, had drafted the
Development Agreement. Mr. Devaney
stated that the agreement had been reviewed by Sarah Zambon and Anthony Starr
and other county staff. He reviewed some of the highlights of “What’s in it for
the County?” and why the county should consider executing a Development
Agreement for this project. They have done a number of Development Agreements
since the statute was changed in
What’s in it for the County?
· Stability of a project itself. This allows a developer to attract significant financing that’s required because the lender can feel assured that the rules aren’t going to change and that the developer will be able to proceed to develop the project in accordance with the original Master Plan.
· There’s the ability to ensure oversight because the development agreement says that the county planner will have the right to review the development on an annual basis and give comments back to the developers as to whether or not they are fulfilling the terms of the development agreement.
· There will either be a public water system or a community water system, not individual wells, as required by the development agreement.
· There will be a community sanitary sewer system rather than individual septic tanks.
There’s an agreement in the development
agreement that if
There’s also an agreement to install a 200,000 gallon water tank that if the
· Mr. Lapsley reviewed the reasons for the development of the Fire Station site of 1.5 – 2 acres to be given to the County for that site and then the building to be constructed and there’s a time limitation for that building to be complete.
· Pedestrian facilities. An agreement in this development agreement provides that there will be one linear foot of walking trail for every two feet of roadways to be constructed within the project.
· The minimum number of units is so the County can see that the development proceeds, it doesn’t stop and look like it’s been abandoned. Platted units and development lots, 150 in the first year and 250 by year three, 350 by year five, 450 by year eight, and 550 by year ten. This is all subject to the renewal at year five.
· Elevation Agreement. There is an agreement that the ridge ordinances would be protected, that any unit over 2400 feet in elevation would not be more than 35 feet in height. That protects your view.
· There is an agreement to comply with any new stormwater requirements that the county or the state might enact. There’s an agreement to comply with any new environmental or watershed or erosion control ordinances that the county might apply to any properties within the county so that those environmental sensitive issues, if technology changes or if the County’s ordinance changes, then Seven Falls has agreed to comply with those going forward.
· There’s also an agreement to comply with any new adequate public facilities ordinance, if the county should enact a future adequate public facilities ordinance so that this property will not be exempt from that.
· There is an agreement to have 20% open space throughout the project. Considering the size of this project, not less than 280 acres will be dedicated to open space which will be always protected.
Mr. Devaney said that all these agreements will be specifically enforceable by the county. There is a contract that is specifically enforceable by injunctive relief or any other remedies and they have provided that the agreement will be recorded and will have covenants running with the land to be enforceable as land covenants.
Devaney said the State allows vested rights each time a plat is approved for
two years with no concessions being made by the developer. Likewise,
Mr. Devaney stated that one of the landowners feels that they need a little more time in order for this to be considered. At their request, he asked that the Board’s vote on this be delayed until the April 16 meeting.
A question was raised as to what percentage of the open space is simply the golf course.
Lapsley didn’t have the breakdown of open space with him but guessed that the
280 acres of open space mentioned includes common open space in the parks, golf
course (both the championship golf course and the practice area which is
adjacent to Pleasant Grove Road) and the area where the three large lakes are
on the left hand side of the drawing. The lake areas are not part of the golf
course but there are probably 70-80 acres in that area that is in the
floodplain that will be part of a park. Numerous parks are scattered throughout
the development. He thinks the golf course is about 160 – 180 acres, the
balance would be the parks and the area along the
Commissioner McGrady also asked what specially is being sought here, why do you need to operate under the old regulations that were in place, the old zoning. Mr. Lapsley stated that on the Master Plan that the Planning Board approved a year, they showed a number of fourplex units, four units to one common building. That would not be a permitted use under the new land use development code. That was probably the primary issue. There was some discussion about what is called “the village area” which is the high density development that was approved on the Master Plan about whether that would be a permitted use under the new land development code. Some would say that the Master Plan was approved so therefore those were approved. He thinks it should be clear. The land use plan for this entire development, from a density standpoint, meets the current and newly adopted land development code. From the big perspective, they think it is fine, it is fine by density but there are some minor points that some could contest doesn’t meet the current land development code. One other point Mr. Lapsley made was that
under the current vested rights regulations, the applicant really doesn’t have to put anything on the table. What the applicant has agreed to do in addition to all the things that council has outlined here, is the fire substation. We think it’s a good thing and the applicant has agreed to do that at his expense totally, to grade the site, build the building and get it ready at no expense to the county. Under the current vested rights regulations he would not be required to do that. That is an offer he has put on the table as part of the negotiation.
McGrady agreed that it is a good thing, noting that the residents of
Chairman Moyer asked for some clarification in the agreement that would make it clear that parking lots and roads are not considered open space.
William Lapsley stated that the calculation in the agreement, that he did, included the golf course, the flood plain area that is park and open space, all of the park lands that are proposed in the development and are shown on the Master Plan. It does not include roads, rights-of-way, road shoulders, or parking lots.
Roger Freeman, Fire Chief for Etowah Horse Shoe Fire Department, was asked to
come forward. He had reviewed the
agreement. Chief Freeman stated that
Etowah Horse Shoe is a class IV rated department by the state. The lower the rating the better rate a homeowner
in the fire district receives on their homeowner’s policy. The harder they work and strive for a lower
rating is a benefit to every one of the taxpayers inside their fire
district. With the addition of this new
substation, it will improve their response time. This station needs to be in
place to help them maintain the current rating they have now. He stated that
the big question now is the timeframe of getting the station open. It was communicated to him via the developer
that once this agreement is passed they are willing to start construction as
early as June 1 of this year. Chief
Freeman stated this is almost a $370,000 investment by
Chairman Moyer stated that the paragraph on public facilities would require that the station be built and the land and station turned over in ready to move in condition within 12 months after the adoption of the agreement by both parties. Mr. Lapsley stated that they are fine with this paragraph.
Chairman Moyer made an announcement that we were having problems with our videotaping equipment. Our video tape has just broken.
Chairman Moyer called a five minute recess so the tape could be changed.
When we returned following the recess, Chairman Moyer explained that this would not be on videotape but the machine has broken and we can’t fix it ourselves so Chairman Moyer made the motion to continue this public hearing until April 16, a regularly scheduled meeting, at 11:00 a.m. The April 16 meeting will be at the Historic Courthouse. All voted in favor and the motion carried.
Chairman Moyer explained that any of the participants who cannot make it to the April 16 meeting, if they would send in written comments, he would have someone read it into the record and submit it as part of the meeting record.
Elizabeth W. Corn, Clerk to the Board William L. Moyer, Chairman