STATE OF NORTH CAROLINA                                       BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                               JULY 26, 1999


The Henderson County Board of Commissioners met for a Special-Called Meeting on Monday, July 26, 1999 in the Commissioners= Meeting Room of the County Office Building at 100 North King Street in Hendersonville, NC at 3:00 PM.  The purpose of the meeting was two-fold: (1) Jail Work Session; and (2) Safety Net Zoning Work Session.


Present were: Chairman Grady Hawkins, Vice-Chair William L. Moyer, Commissioner Marilyn Gordon, Commissioner Renee Kumor, Commissioner Don Ward and Clerk to the Board, Elizabeth W. Corn.


Henderson County staff present were: Assistant County Manager/Interim County Attorney Angela S. Beeker, Staff Attorney Jennifer Jackson, Interim Planning Director Karen C. Smith, Environmental Planner Nippy Page and Risk Management Director/Detention Facility Project Manager William R. Byrnes.


Henderson County Manager David E. Nicholson was absent.


Also present was Moshen Ghoreishi of Grier‑Fripp Architects, 8001 Arrowridge Boulevard,

in Charlotte NC 28273‑5665.



Chairman Grady Hawkins called the meeting to order and welcomed all in attendance.  



Chairman Hawkins noted that the agenda had been amended to include Closed Session in accordance to: N. C. G. S. 143-318.11(a)(3) and N.C.G.S. 143-318.11(a)(6).


Chairman Hawkins asked for a motion to make that adjustment to the agenda.  Commissioner Kumor made that motion.  All voted in favor and the motion carried. 


Proposed Jail Elevations

Chairman Hawkins noted that this item was added because the Board had not had an opportunity to look at some of the proposed jail elevations. Also the City of Hendersonville needed the information on the jail elevations as soon as possible to accommodate its planning purposes.  Chairman Hawkins asked Bill Byrnes, Project Manager, to proceed with that item.


Mr. Byrnes explained that Henderson County Manager David E. Nicholson had requested that Grier-Fripp Architects in Charlotte provide an update to the Board on the concepts of the new Detention Facility.  He further commented that it was an evolutionary process and they were several weeks away from completing the construction documents. Mr. Byrnes  introduced Glenn Ware, Paul Bonsall, and Moshen Ghoreishi from Grier-Fripp who were part of the project team  developing the Detention Facility plans.  Moshen noted that some of the appearance of the Detention Facility had changed due to the City=s ordinance, but basically the design had not changed significantly from what the Commissioners previously viewed.  He showed on a drawing the side elevations from First Avenue.  He noted some six feet high railing had been added that would separate the parking garage and the interior space of staff parking. A chain link fence would be around the project with an automatic gate to accommodate the squad cars coming into the Detention Facility. 


Moshen then showed the Commissioners on another diagram the north elevation of the Detention Facility from Fourth Avenue.  He noted that the project team had recommended to the City that some vegetation would be planted on the north elevation of the Detention Facility for a screen.  Bill Byrnes noted that the elevation would be about 20 feet above Fourth Avenue and it would take tall trees along Fourth Avenue to do any screening at all.  For security reasons, no vegetation would be placed close to the Detention Facility so most of the vegetation for screening would have to be at a distance away from the chain link fence. 


The Commissioners also looked at the elevation from the railroad track.  That elevation would be approximately twelve feet above the railroad track.  No discussion had occurred with the City about trees on that side of the Detention Facility.   Bill Byrnes noted that a large buffer zone had been left on the railroad right-of-way with some very large trees. 


The next diagram Moshen showed the Commissioners was the elevation from Grove Street which showed the Courthouse in relation to the elevation of the Detention Facility.  He also noted the connection between the Detention Facility and the Courthouse. 


No action was required from the Commissioners.  This information was presented simply to advise the Commissioners of the discussions regarding elevations per the City=s request.  The City Planning Board had requested to see the elevation diagrams as part of the approval process with regards to special permitting and re-zoning requests.


Chairman Hawkins thanked the staff of Grier Fripp for the information and stated the Board looked forward to seeing the complete plans.


Later in the meeting, Bill Byrnes advised the Commissioners that the City of Hendersonville Planning Board had approved the plans with the new elevations as presented.


Review of Countywide Land Use Regulation Guide

Chairman Hawkins noted that this work session was on Safety Net Zoning.  He noted that County staff had prepared the Countywide Land Use Regulation Guide and commented that it captured what had been occurring since January on the subject and provided a good review for it.  Chairman Hawkins asked Ms. Beeker to review the Countywide Land Use Regulation Guide with the Board. 


Ms. Beeker reviewed an outline with the Board.  She explained that as staff was preparing the draft for the Safety Net Zoning, they felt there was need to have a document that would pull together all the concepts that the Board supports for the Open Use District.  The result was a draft document.  The Countywide Land Use Regulation Guide basically has two main parts.  The first was called a General Plan which contained an Executive Summary.  The General Plan is the meat of the Plan that the Board had verbally espoused as the approach the Board was taking to Countywide Land Use Regulations.  The second part was an implementation plan which was yet to be developed because staff had not received Board direction on the exact process that the Board would like to follow with the rest of the Plan. 


Ms. Beeker stated there was actually a legal requirement to have a plan that the Board supports on zoning.  She quoted that requirement: AZoning shall be done in accordance with a Comprehensive Plan@.  Ms. Beeker noted that the Board did have a Comprehensive Land Use Plan that talks a little bit about countywide zoning but staff felt there was a need for more to justify the approach the Board was taking.  Secondly, a General Plan documents the verbal plan that the Board had already stated.  It sets the stage for the Implementation Plan and provides direction to the Planning Board and staff and sets a foundation for safety net zoning.  Ms. Beeker commented the General Plan could be a great tool for public education to give the public an idea of the actions that the Board was considering and the reasoning behind those actions.  Staff also attempted to link the General Plan to other provisions besides just the countywide zoning provisions of the Land Use Plan. 


Through a series of work sessions, the verbal plan contained a three step approach.  Ms. Beeker reminded the Board of a previous joint meeting between the Planning Board and the Board of Commissioners at which five options for study were presented and the Board chose an option.  That option was basically to look at some sort of safety net zoning and then the Planning Board asked also to be able to include a Zoning Ordinance Rewrite as a component.  The second step was to look at the extraterritorial areas surrounding the municipalities to determine if they needed zoning with some traditional zoning.  The final step was to look at the corridor and growth areas.  This was based on the previous work session the Board had for the four desired levels of countywide land use regulation.


The General Plan had a goal, objectives and three key strategies.  The goal was the purpose for the Plan. Objectives were the things that the Board had stated it wished to accomplish.  The three steps used those three key strategies to implement the goal and objectives of the General Plan.  The General Plan goal was to provide a road map which will lead to the applications of land use regulation in each area of the County in a manner which will balance private interests with community interests.  It would also manage growth by development through regulated density as necessary in each area based upon sufficient study.  The objectives as the Board had previously stated were to provide an adequate level of protection for the community from uses having a potential to have a substantial impact on the community; to provide an adequate level of flexibility to property owners for property use; to provide neighborhoods smaller than one-square  mile the option of applying for zoning; to manage growth and development in high growth areas and major corridors as appropriate based upon appropriate study; protect areas around the municipal boundaries from the unilateral extension of ETJ boundaries; and manage growth in those areas around the municipal boundaries and ETJ areas as necessary based upon appropriate study. 

Ms. Beeker noted other desired outcomes the Board had stated were to eliminate the need for multiple police ordinances; achieve a better menu of zoning options; and address issues with the current Zoning Ordinance as determined by the Board, Planning Board, County staff and the citizens. 


The three key strategies of the Plan were Open Use Zoning and Zoning Ordinance Rewrite; the study of the areas adjacent to the municipal and ETJ boundaries; and the study of growth areas and major corridors of the County.


Key Strategy 1 was the Open Use Zoning and Zoning Ordinance Rewrite.  Ms. Beeker noted there are two components to any zoning.  The first component is the text.  In the text, all uses were permitted, residential and agricultural were not related and certain other uses were regulated to mitigate the neighborhood impact.  Those regulated uses were listed as heavy industrial; junkyards and automobile/manufacture home graveyards; incinerators; solid waste facilities; mining and extraction operations; concrete and asphalt plants; adult businesses; motor sports facilities; manufactured home parks; telecommunications towers and heavy commercial.  The regulations in the Open Use district included specific minimum site standards and general standards.  The process was analogous to that which was used for the Motor Sports facilities that set a foundation to an approach to address these uses.  Specific standards, which was not an all inclusive list, included set backs, buffering, screening, fire suppression, lighting, separation and hours of operation.


General standards help to define the level of impact which the regulated use may have on a community in general terms.  It allows uses to be measured against these standards by a case-by-case basis.  Also it allows factors such as noise, size, public health, safety and welfare, and traffic congestion to be considered so that the conditions can be imposed in light of these factors.  This would allow the end result to be the level of regulation is directly proportional to the size and impact to the use. 


All of the uses are regulated as special uses meaning there is a quasi-judicial process before the Board for each one of those uses so that the Board could exercise its discretion in imposing those conditions and tailoring those regulations based upon on that level of impact.  The special use permit process guarantees the right of participation from those persons who would be most substantially impacted.  It provides notice to adjacent property owners and newspaper advertisements.  The property is posted.  Quasi-judicial proceedings give the community an influence in the decision through an opportunity to demonstrate why or why not the use as proposed would meet the standard of the ordinance.  The due process rights of the developer are protected in this process. 


Ms. Beeker noted some things that the Open Use District does not regulate such as lot size, density or segregation of uses.  She commented that anything is allowed but if it is a regulated use it has to meet certain site standards.  Hopefully, this would strike a balance between the developer=s right to develop their property and the community=s right to be protected from some of the impact.


Together, the specific site standards, general site standards and special use permit process would meet those four desired levels of countywide regulations as the Board previously stated. 


Planning Director Karen Smith showed the map of the existing regulations that were currently in place in the County. An additional map developed by staff showed Key Strategy 1. 


Ms. Beeker continued with Key Strategy 2 which was to study the areas adjacent to municipal/ETJ boundaries to determine if traditional zoning should be applied in those areas.  She reminded the Board that once a AOU@ is in place, the areas adjacent to the municipal boundaries will be zoned.  The Board had stated it wanted to look at these areas more closely to see if there might be a zoning category that could be more tailored to meet the character of those areas surrounding municipal boundaries.  Ms. Beeker noted that the law states ETJ extensions can occur for municipalities having a population of less than 10,000 within one mile, 10,000 to 25,000 within two miles.  They may not extend them at all if the County exercises all three major land use authorities, i.e., subdivision powers, building inspections and zoning.  Once Open Use is in place, municipalities cannot unilaterally extend their boundaries. 


For the City of Hendersonville, the estimated 1997 population was 9,628.  The City was very quickly approaching the benchmark of 10,000 that would permit the ETJ to be extended to two miles.  Laurel Park, Fletcher and Flat Rock are substantially smaller in population so their ETJ areas would be only one mile beyond their corporate boundaries all the way around.  Ms. Beeker noted that application of the Open Use district would prevent further ETJ extensions while the study is being performed.  Ms. Smith illustrated by a concept map those areas with Key Strategy 2 in place. 


Ms. Smith continued the presentation. Key Strategy 3 was the study of growth areas and major corridors.  A growth area was defined as an area which has a high potential for growth or which is already experiencing rates of growth.  A number of different factors are studied when looking at high growth areas.  Those factors considered were availability of water and sewer; access to transportation; topography and other environmental conditions; the availability of land; existing land use regulations and any other conditions deemed important by the Planning Board and staff.


A major corridor was defined as a major street as defined by the Zoning Ordinance and any geographic areas near or adjacent to the street which have the attributes of the growth area; possess attributes which are best suited for commercial or industrial development and need to be preserved; possess attributes which are best suited for public use such as school sites that may need to be preserved or protected; or they surround schools or other public facilities and may need to be protected.  Ms. Smith illustrated a concept map with Key Strategy 3 in place.


Ms. Beeker noted that once the three key strategies are put together, it will provide a road map and provide the opportunity for each area of the County to be studied and for the Board to make the determination as to what the appropriate level of land use regulation is in each area as stated in the goal; and to decide where the Board would like to manage the growth and guide the development in the County through the use of more traditional zoning.  The three strategies help to meet the goal and the General Plan objectives would also be met.  The Board would determine the active level of protection from the use side of substantial impact presumptively through the OU district.  The OU district provides a level of flexibility for the development to occur.  Once OU is in place countywide, the neighborhoods of smaller than 1 square mile could apply for some sort of zoning that they would like to have.  Currently, the unzoned areas of the County do not have that option.  The Board would manage growth and guide development as it determined necessary in high growth areas and the ETJ areas.  The areas around the municipal boundaries would be protected from unilateral extension.  The need would be eliminated for multiple police power ordinances to govern individual uses because they would all be lumped into the Zoning Ordinance.  Through the Zoning Ordinance Rewrite, the Board would achieve a better menu of the options. The Board would address the issues with the current Zoning Ordinance as had been identified through the Planning Board and County Planning staff.


Ms. Beeker discussed with the Board the conformance with the Comprehensive Land Use Plan.  She also reminded the Board that the Land Use Regulation Guide would be one of the main tools that would be used to implement the Comprehensive Land Use Plan with respect to land use.  The final step would be to develop an implementation plan that would serve to give staff and the Planning Board clear direction from the Board of Commissioners on how to proceed with the implementation of the strategies that the Board requested  Ms. Beeker invited the Board to pose questions about the material presented. 


Chairman Hawkins thanked Ms. Beeker and Ms. Smith for the review.  He asked for clarification on the square footage required to apply for zoning which he believed to be 600 acres.  Ms. Smith commented that the requirement was 640 acres or more basically one square mile. 


The Board next reviewed the draft version of the Open Use District.  Staff Attorney Jennifer Jackson reviewed the draft before the Board. 


Ms. Jackson distributed a summary of the proposed text and issues concerning the Safety Net Zoning.  The purpose was added in Section 200-3 which states the neighborhood impact from certain uses will be mitigated through the use of minimum specific site standards combined with general standards which provide the flexibility to impose a higher level of specific site standards, dependent upon the degree of neighborhood impact in the Open Use District.  Ms. Jackson explained the reason this had to be added is that the purpose of the Open Use District is different than the majority of the other districts. 


The next revision was under Section 200-32.1. This was a new section to add the Open Use (OU) District to the Zoning Ordinance.  Those provisions included establishment of districts, residential open space development, residential apartment development and also medical institutional care developments.  Section 200-32.1(B) provided that all uses are allowed in the Open Use District, however those uses listed as Special Uses in 200-32.1 (E) require that a permit be secured and that certain site standards be met.


The Board had previously directed staff to include Manufactured Home Parks and Communication Towers on the list of special uses.  The Board had adopted regulations, including site standards on both of those issues.  Therefore instead of trying to mesh both of those complicated ordinances into the Zoning Ordinance at this point, staff opted to leave those free standing and reference them such that the standards in those ordinances would continue to apply in the Open Use District.  Ms. Jackson noted a special reference about Communication Towers in the OU District in that it may be more restrictive than treatment of towers in other traditional zoning districts.  As far as the Manufactured Home Park Ordinance, the Board was reviewing those amendments in the Zoning Ordinance amendments in order to make them applicable in the Manufactured Home Park Ordinance, or at least the site standards applicable in some areas. 


In Section 200-32.1(E) were listed the uses permitted in the OU District as Special Uses.  The Special Uses were listed as heavy industry, incinerators, solid waste facilities, mining and extraction, asphalt plants and concrete plants, junkyards and vehicular and manufactured/mobile home graveyards, adult establishments, heavy commercial and motor sports facilities.


Commissioner Ward inquired of the definition of a manufactured/mobile home graveyard.  Ms. Beeker responded the definition included three or more manufactured/mobile homes that are junked ones that aren=t being inhabited by humans.  Ms. Beeker reminded the Board this text doesn=t prohibit them, it just requires them to be screened as to set back, etc. There was considerable discussion among the Board and staff about the definition of the manufactured/mobile home graveyard. 


This prompted discussion on the definitions of the special uses in the Open Use district that are regulated.  Heavy industry was defined as any industrial use establishment that (1) is required to obtain an air quality permit from DENR or (2) is required to obtain a water quality permit which is a discharge permit from the Department of Environment and Natural Resources or (3) is required to obtain a two-tier or higher comprehensive environmental response compensation and liability act permit from DENR or (4) is a large quantity generator of hazardous waste or (5) operates in an enclosed building that is 30,000 or more square feet of space.  


Ms. Jackson commented that the intent of staff was to cover essentially anything or any industrial business that is required to get some sort of permit.  The Commissioners had previously stated that was something they wanted to regulate.


Ms. Jackson commented that the way the Ordinance was written it threw a heavy burden on the Commissioners to make a lot of decisions of what=s suitable or not suitable.  Hopefully, these revisions would make the Board=s specific requirements an easier task in applying them.  

Ms. Beeker noted that Item 4 referred to a large quantity, but that could be a half gallon or 50 gallons, depending upon what the material is and what is hazardous waste.  Hazardous materials are classified by EPA. The more specific the Commissioners can get in defining these things, such as hazardous waste, the easier the job the Commissioners will have.


Chairman Hawkins commented that 30,000 square feet used in the definition of heavy industrial seemed too restrictive.  Commissioner Gordon stated she too felt 30,000 square feet was too restrictive.  She further commented that the intent was to require special use permits for these classifications and that would require too much intervention from the Commissioners.  Those industries would have to come before the Commissioners in a quasi-judicial proceeding and she personally did not think every business of 30,000 square feet should have to come before the Board of Commissioners.


Ms. Jackson explained that was just a starting point because in prior Commissioner work sessions, the Board just stated they wanted to regulate heavy industry.  Staff wasn=t sure exactly what the Commissioners were talking about.  So Staff took liberties to add in permits because staff wasn=t sure whether the Commissioners wanted those in as a trigger for this definition or not. 


Commissioner Ward questioned whether storage units or warehousing would qualify under the heavy industrial definition.  Ms. Jackson commented that definition was included under general definitions. The reason it was in the general definitions was because throughout the Zoning Ordinance industrial uses is referenced and therefore staff wanted to make sure that it was a consistent use throughout.  Ms. Jackson read the definition of industrial use:  AIndustrial use entails manufacturing, assembly, processing, fabricating, machining and/or warehousing.  Industrial use includes establishments engaged in the mechanical or chemical transformation of materials or substances in the products.  These establishments are usually described as plants, factories or mills that characteristically use power driven machines, materials, handling equipment.  Establishments engaged in assembling component parts of manufactured products are also considered industrial use if a new product is neither a structure or other fixed improvement.  Also included is the blending of materials such as lubricating oils, plastics.  Materials processed by industrial establishments include products of agriculture, forestry, fishing, mining and farming as well as products of other industrial establishments.@  Ms. Jackson noted that definition was based upon excerpts from the standards of the industrial classification manual 1987 edition.  In that publication, there are very definite definitions of specific uses of what would be considered industrial uses.  She further commented that the heavy industry definition is taking this general industrial definition and putting some size restrictions or permit restrictions on it in order to classify it as a heavy industry.


Commissioner Kumor questioned if there would be industrial uses that would not come under heavy industrial use simply because they don=t meet the heavy industry standard.  Ms. Jackson replied that they either don=t meet the definition at all or they don=t meet the heavy industry definition.


Commissioner Moyer stated: AMy view of safety net zoning would be that we would not go that far.  I think if we can=t state what the industry is, it shouldn=t be here.  It should not be covering all large industry and all commercial or all large businesses.  This goes well beyond where I thought we were going to try to regulate with safety net zoning.@


Commissioner Gordon stated: AMy understanding, especially if we=re talking about special use permits, that could be a very short list and very specific things that would be addressed with that rather than getting into all this problem.@


Commissioner Ward commented the special use permit would require too much intervention from the Board.


There was considerable discussion among the Commissioners regarding the regulations for heavy industry and heavy commercial.  It was the consensus of the Board to provide to staff a list of specific items it wanted to include under heavy industry and heavy commercial.  Chairman Hawkins: ALet=s leave staff with that direction that we=ll come back with a list of specific items. Look at the types of specific site standards that you think are applicable for those and then we can come back and look at that.@



Commissioner Kumor made a motion to go into Closed Session: AMr. Chairman, I make a motion that we go into Closed Session for General Statue 143-318.11(a)(3) To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledge.  To consult with an attorney employed or retained by the public body in order to consider and give instructions to the attorney with respect to a claim. And on 143-318.11(a)(6) to consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public office or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee.@


Chairman Hawkins called for a vote on the motion.  All voted in favor and the motion carried.



Chairman Hawkins made a motion to end Closed Session.  All voted in favor and the motion carried.


No action was taken following Closed Session.


Chairman Hawkins adjourned the meeting at 5:15 PM.














Elizabeth W. Corn, Clerk to the Board