STATE OF NORTH CAROLINA
BOARD OF COMMISSIONERS
COUNTY OF HENDERSON
AUGUST 2, 1999
The Henderson County Board of Commissioners met for a regularly scheduled meeting at 5:30 p.m. in the Commissioners' Conference Room of the Henderson County Office Building.
Those present were: Chairman Grady Hawkins, Vice-Chair Bill Moyer, Commissioner Renee Kumor, Commissioner Don Ward, Commissioner Marilyn Gordon, County Manager David E. Nicholson, Assistant County Manager/Interim County Attorney Angela S. Beeker, and Clerk to the Board Elizabeth W. Corn.
Also present were: Interim Planning Director Karen C. Smith, Staff Attorney Jennifer O. Jackson, County Engineer Gary Tweed, Finance Director J. Carey McLelland, and Public Information Officer Chris S. Coulson.
CALL TO ORDER/WELCOME
Chairman Hawkins called the meeting to order and welcomed all in attendance.
PLEDGE OF ALLEGIANCE
Commissioner Moyer led the Pledge of Allegiance to the American Flag.
David Nicholson gave the invocation.
DISCUSSION/ADJUSTMENT OF AGENDA
There was none.
Commissioner Kumor made the motion to approve the Consent Agenda as presented. All voted in favor and the motion carried.
CONSENT AGENDA included the following:
Minutes were presented for the Board=s review and approval of the July 21, 1999 meeting.
Tax Collector=s Report
The Tax Collector=s Report as of July 27, 1999 was presented for the Board=s information.
Notification of Vacancies
The Board was notified of the following vacancies which will appear underANominations@ on the next agenda:
1. Nursing/Adult Care Home Community Advisory Committee - 1 vacancy due to resignation.
Application for State Aid to Libraries
Annually, the County receives State Aid to Public Libraries monies from the State Department of Cultural Resources. An application must be submitted to receive the funds. A copy of the application was presented for review. This year, the Library will receive $137,680 which will be used to pay the Director=s salary, plus the salary of two of his support staff, and a few minor operational expenditures. Salaries of the Director and these support staff total $119,424. This money was already included as a revenue to the Library=s budget for this fiscal year; however, the estimate at that time was $157,097 (last year=s appropriation). This deficit will be absorbed in the Library=s budget.
These are entirely State funds; there is no match required. The County must demonstrate that the operating expenses funded from local dollars are at least as much as the previous fiscal year. Additionally, the funds from local sources must be equal to or greater than the State monies. The Henderson County Public Library meets both of these criteria. There are miscellaneous other requirements contained in the application, all of which are met. The Finance Director will send a copy of the Comprehensive Annual Financial Report to the Department of Cultural Resources so that they can verify that all requirements have been met.
Technically, this funding has already been approved as part of the FY 99-00 budget; however, Chairman Hawkins wanted this item put on the Consent Agenda so that all Board members would be aware that the County receives this funding.
No action was required.
Proclamation to Name August 27, 1999 as Extension Heritage Day
The Board of Directors of the North Carolina Association of County Commissioners has proclaimed August 27, 1999 as Extension Heritage Day and urges all county boards of commissioners to adopt a similar proclamation. Cooperative Extension will begin a year-long celebration of their 85th Anniversary on August 27 with a variety of activities throughout the State. More information can be obtained from Joy Staton, the County Extension Director.
A proposed Proclamation was presented for the Board=s approval.
Chairman Hawkins reminded the Board of the following vacancies and opened the floor to nominations:
1. Henderson County Board of Health - 1 vac. This is an M.D. position. We have had no qualifying applicants. There were no nominations at this time so this item was rolled.
2. Hendersonville City Zoning Board of Adjustment - 1 vac. This applicant must live in the City of Hendersonville=s ETJ. There is a list of those residents in the Clerk=s office. There were no nominations at this time so this item was rolled.
3. Land-of-Sky Regional Council - Advisory Council on Aging - 1 vac. This vacancy is due to a resignation. Joan Tuttle is looking for a qualified recommendation for this vacancy.
Commissioner Gordon nominated Barry Clemo. Commissioner Kumor made the motion to suspend the rules and appoint Mr. Clemo by acclamation. All voted in favor and the motion carried.
4. Henderson County Juvenile Crime Prevention Council - 2 vac.
Commissioner Kumor asked that these vacancies be rolled. She has contacted two people who should be sending in an appointment application. There were no nominations at this time so this item was rolled to the next meeting.
5. Nursing/Adult Care Home Community Advisory Committee - 2 vac.
These vacancies are due to resignations. They are nondesignated positions and therefore can be appointed without wait.
Commissioner Gordon nominated Barry Clemo for one of these vacancies. She withdrew her above nomination of Mr. Clemo. Chairman Hawkins rescinded the previous action. There were no other nominations at this time. A vote will be taken at the next meeting.
6. Henderson County Zoning Board of Adjustment - 1 vac.
This vacancy is for an alternate from the Hoopers Creek area. There were no nominations at this time so this item was rolled to the next meeting.
Commissioner Kumor requested a print-out of the qualified residents.
7. Downtown Hendersonville - 1 vac. This vacancy was due to a resignation. Commissioner Ward nominated Matt Rogers to fill this vacancy. Chairman Hawkins made the motion to suspend the rules and accept Matt by acclamation. All voted in favor and the motion carried.
PURCHASE OF VOTING MACHINES
Carey McLelland stated that the Board had previously approved by resolution the installment financing of the purchase of 30 additional voting machines. NCGS 143-129(f)(subsection f) provides that the Board of Commissioners can purchase equipment without complying with the formal bid processAwhen a needed product is available from only one source of supply; or when standardization or compatibility is the overriding consideration.@
In accordance with NCGS 143-129(f), Staff recommended that the voting machines be purchased from Danahar Controls pursuant to the quote based upon the sole source of the equipment and a need for standardization of voting equipment and compatible software capabilities.
A draft resolution was presented for the Board=s review which details the need for standardization and compatibility.
Commissioner Kumor made the motion to adopt the draft resolution. All voted in favor and the motion carried.
SET DATE FOR PUBLIC HEARING ON PROPOSED ZONING OF A PORTION OF
HENDERSONVILLE AIRPORT PROPERTY
At its past few meetings, the Henderson County Planning Board had discussed the issue of the zoning of the Hendersonville Airport property owned by David and Julia Cowan. Such discussions included updates by Staff as to actions on the issue by the Hendersonville City Council and the Board of Commissioners.
Karen C. Smith reminded the Board that the Hendersonville Airport property contains approximately 32 acres. About 31 acres of the property is under County I-2 General industrial zoning. The remaining 1 acre is in the Extraterritorial Jurisdiction (ETJ) of the City of Hendersonville and is zoned R-15. The owners have requested that the City of Hendersonville remove the 1-acre portion (theAsubject property@) from the ETJ.
On June 7, 1999, the Board of Commissioners discussed the Hendersonville Airport property after being contacted by Mr. Cowan. Mr. Cowan was concerned that the City of Hendersonville was considering the possibility of adding all of his property (the 31 acres currently zoned by the County) to the City=s ETJ, rather than removing the subject property. The Commissioners decided to send a letter to Hendersonville Mayor Fred Niehoff to inquire about the City=s intentions for the property.
On June 17, 1999, the Hendersonville City Council decided to have its staff work on an amendment to the City=s ETJ Ordinance to remove the subject property from the ETJ. The City Council also asked the City staff to work with the County so that in the event that the County decided to zone the subject property, the City=s action and the County=s action could occur simultaneously.
On July 27, 1999, the Henderson County Planning Board voted unanimously (6 to 0) to recommend that the Board of Commissioners zone the subject property with the County=s I-2 General Industrial District upon its removal from the City=s ETJ. When the Planning Board discussed whether to include other properties in the zoning action, Mr. Cowan indicated that he is close to being able to sell the Hendersonville Airport property and the current City zoning is one of the obstacles. For this reason, the Planning Board decided to proceed at this time only with a zoning recommendation for the subject property.
The Board of Commissioners must hold a public hearing on the proposed zoning amendment prior to taking action. Roger Briggs, Planning Director for the City of Hendersonville, is working on the proposed amendment to the City=s ETJ Ordinance. He plans to have the amendment before City Council for action prior to the September 7, 1999 meeting of the Board of Commissioners.
IF the Board of Commissioners held a public hearing on the proposed zoning amendment at its September 7, 1999 meeting and if the Commissioners acted favorably upon the proposed amendment, an effective date for the amendment could be established that is conditioned upon the removal of the subject property from the City=s ETJ.
Commissioner Kumor made the motion to set the Public Hearing on the Proposed Zoning of a Portion of the Hendersonville Airport Property for September 7, 1999 at 7:00 p.m. All voted in favor and the motion carried.
SET PUBLIC HEARING ON REZONING RECOMMENDATION MADE BY THE HENDERSON COUNTY PLANNING BOARD FOR THE BROYLES ROAD AREA
Karen C. Smith reminded the Board that on June 22, 1999 the Henderson County Planning Board considered a text amendment to allow manufactured homes on individual lots as a permitted use in the R-T Transient Residential District. The Board decided that the amendment was not an appropriate action at that time; however, it did decide to examine the possibility of rezoning the applicant=s property as well as the surrounding properties in the R-T District. The Board directed the Planning Staff to examine the option of rezoning the study area from R-T to T-15 or another district that is consistent with the surrounding land uses and permits mobile homes on individually owned lots. The study area is located off Broyles Road just north of the intersection of Broyles Road and US Highway #64 (see AVicinity Map@) and is composed of 8 properties occupying approximately 16.7 acres of land (see AExisting Zoning Map@).
At the July 27, 1999 Planning Board meeting, the Planning Staff presented the Broyles Road Rezoning Study and the Planning Board voted unanimously (5-0) to recommend to the Henderson County Board of Commissioners that the study area be rezoned from R-T Transient Residential District to T-15 Medium-Density Residential with Manufactured Homes District (seeARecommended Zoning District Map@).
The Board of Commissioners must hold a public hearing prior to taking action on the proposed zoning amendment. The Planning Staff recommended that the hearing be held on September 7, 1999 at 7:00 p.m.
Mr. Jerome was present to answer any questions the Board might have. There were none.
Commissioner Kumor made the motion to set the Public Hearing on Rezoning Recommendation made by the Henderson County Planning Board for the Broyles Road Area for September 7 at 7:00 p.m. All voted in favor and the motion carried.
UPDATE ON PENDING ISSUES
1. BRCC Grant
David Nicholson informed the Board that in his absence last week Mrs. Beeker met with Dr. David Sink to review the history of the grant, particularly the issue of the matching requirements for the $2,000,000 State grant that BRCC received in the 1998 budget.
The following information was provided on this item:
NCGS 115D-31(a)(1) provides thatAthe State Board may, on an equal matching-fund basis from appropriations made by the State for the purpose of grant funds to individual institutions for the purchase of land, construction and remodeling of institutional buildings determined by the State Board to be necessary for the instructional programs or administration of such institutions,...[A]ppropriations by the State of North Carolina for capital or permanent improvements for community colleges may be matched with any prior expenditure of non-State funds for capital construction or land acquisition not already used for matching purposes.@ Based upon this statutory language, it appears that the match is a 1-to-1 match requirement for capital appropriations made by the State to community colleges. Prior County expenditures for buildings and land may be counted as a match as long as they haven=t been counted as a match previously.
In the 1997-1998 Legislative Session, a capital appropriation in the amount of $2,000,000 was made for Blue Ridge Community College in S.L. 1998-212, the Current Operations and Capital Improvements Appropriations Act of 1998 (theA1998 Budget@). Mrs. Beeker spoke with representatives from the State Fiscal Research Division and the State Department of Community Colleges and they all assured her that the money was included in the 1999 Budget - that once a capital appropriation is made for a building, the money does not have to be reappropriated.
In the 1999 Legislative Session, a special provision was included in S.L.1999-237, the Current Operations and Capital Improvements Appropriations Act of 1999 (theA1999 Budget@) which states that ANotwithstanding G.S. 115D-31 or any other provision of law, no non-State match is required for funds appropriated in S.L. 1998-212 for community college capital projects ...@ This means that there is no longer any match requirement for the $2,000,000 grant to Blue Ridge Community College.
Angela Beeker informed the Board that Dr. Sink said he would be coming to the meeting, about 6:30. It was Board consensus to give Dr. Sink an opportunity to speak on this issue when he arrives.
The Board had previously asked the County Manager to check with the Chamber of Commerce to see if August 23 would be a convenient date for a joint meeting on economic development. Apparently it was not convenient for the Chamber. It was the consensus of the Board to change the August 24 budget meeting to August 23 and have the joint meeting with the Chamber on August 24, both at 3:00 p.m.
Commissioner Gordon asked the Board to consider setting a work session for the departments that would be affected by the formation of a county legal department. It was the consensus of the Board to hold a workshop on August 26 at 5:00 p.m. regarding implementation of a county legal department. During the budget workshops, the Board of Commissioners decided to look at establishing a County Attorney for the County. Several departments in county government require legal expertise while conducting their business. The Board wanted to develop a single office for legal advice with a full time County Attorney to advise the Board and run a county legal department.
There was discussion of having a workshop regardingAHONI@ or how to open a new institution (jail). An hour would be needed. It was the consensus of the Board to have this workshop as part of the mid-month meeting.
The Board had wanted to meet with the County Tax Collector before the mid-month meeting to review the settlement and to ask some questions of the Tax Collector so that the settlement could be approved at the mid-month meeting. It was the consensus of the Board to set that workshop for August 17 at 5:00 p.m. A place will have to be found for that meeting as our room is already scheduled.
Chairman Hawkins asked the Commissioners to let him know if they have specific items they wish to be addressed during this workshop and he will try to include them on the agenda for the meeting.
The Board had set two public hearings earlier in the meeting for September 7 at 7:00 p.m.: Proposed Zoning of a Portion of the Hendersonville Airport Property and Rezoning Recommendation made by the Henderson County Planning Board for the Broyles Road Area.
REVISITED - BRCC GRANT from UPDATE ON PENDING ISSUES
Dr. David Sink had arrived and was asked if he wished to make any comments.
Dr. Sink stated that he was present to request that the Commissioners deed the balance of the acreage known as theAJim Toms Farm@ to the college based on that was the intent when the land was purchased. It was purchased about 1.5 years ago for the intent of future expansion of the college and for a 10 or 11 acre tract to be used by Pardee Hospital for a 150 bed nursing home facility as well as a piece of that to be used by Hospice.
Pardee Hospital had a certificate of need and so when the Jim Toms property became available, Dr. Sink approached Frank Aaron and Barbara Stewart and that became a feasible option. They made several presentations to the Board of Commissioners and it was approved to purchase the land at a meeting on November 2, 1998. The agreement was signed by Bob Eklund (Chairman of the Board of County Commissioners) and Sam McGuirt (representing the Hospital). The agreement states that the land is to be used by Blue Ridge Community College and purchased with general funds of the county. November 5, 1998, Don Elkins (Henderson County Attorney) sent a letter to Sharon Alexander (Attorney for Pardee Hospital) and Sam Fritschner (Attorney for Hospice) stating that he had been charged to draw up a deed to the Toms property, that the College Attorney, Boyd Massagee, had cleared the property in terms of any claims against Jim Toms. The College had paid for the survey and had also done an environmental study. The wording from Don Elkins states in the second paragraphAI am also been authorized to prepare and deliver a deed for the balance of said Toms tract (some 30 acres, more or less) to the Trustees of Blue Ridge Community College.@
Dr. Sink stated that he thinks we got confused recently because we were looking for the balance of the Toms property to be used as a local match for some dollars that the College is entitled to from the General Assembly. At the time those discussions were held a local match was required for State Funds that a Community College receives. Only recently it was discovered that a special Bill was introduced in the General Assembly that eliminated that particular requirement for Blue Ridge Community College and for Fayetteville Tech. in the last session of the General Assembly.
Dr. Sink statedASo notwithstanding all that recent confusion about the College asking the Commissioners for that land, I want us to focus on the original intent for the purchase of that land, that it was for the Hospital, it was for Hospice and the future expansion of the College and so I=m here to respectfully request that that remaining acreage be deeded over to the Trustees of the College@.
Since that time, Henderson County has entertained the idea of using that property for the construction of aACounty Building or Government Building@. Chairman Hawkins informed Dr. Sink that the Board would consider his request on the agenda of the scheduled mid-month meeting on August 18.
RECONSIDERATION OF THE SUSPENSION OF RESIDENTIAL SOLID WASTE PERMIT APPLICATION PROCESSING
On May 19, 1999, the Board voted to suspend the processing of applications for Residential Solid Waste Hauling Permits for 60 days in order that the potential franchising of residential solid waste haulers could be studied. On June 16, 1999, this suspension was extended until September 1, 1999.
On Thursday, July 29, 1999, by consensus, the Board decided that franchising the residential solid waste haulers would not be appropriate at this time, and directed staff to bring back the suspension of permit application processing at this meeting for reconsideration. The Board=s action to suspend permit application processing could be revoked at this meeting. There is no legal requirement for a public hearing regarding this matter.
Chairman Hawkins made the motion to rescind direction to staff to suspend issuing solid waste hauling permits. All voted in favor and the motion carried.
It was requested that Chairman Hawkins send letters to the SWAC (Solid Waste Advisory Committee) members thanking them for all their hard work on this issue, as well as staff.
OVERVIEW OF FIRST AMENDED AND RESTATED REGIONAL WATER SUPPLY AND WATER SERVICE AGREEMENT
Angela S. Beeker reminded the Board that on November 11, 1995, the Board and other parties to this agreement gave final approval to the First Amended and Restated Regional Water Supply and Water Service Agreement.
Mrs. Beeker stated that there were two purposes to this agreement:
The first purpose was to establish a joint undertaking for providing water for consumptive and/or industrial uses to citizens of Henderson and Buncombe counties.
The second purpose was to serve as the basis for the formation of a regional water and/or sewer authority which would include at a minimum Henderson County, Buncombe County, the Authority, and Asheville.
The agreement was to allow the Asheville, Buncombe, Henderson Water Authority to build a plant in Henderson County to pull water from the Mills and/or French Broad River to serve Buncombe County and northern Henderson County. In exchange for that, the Authority, Asheville, and Buncombe County had to agree to do certain things:
1. To provide water. What we got was an unlimited quantity of water from this plant for the northern section of Henderson County. The agreement actually states that in no case can the quantity of water provided to the Henderson County citizens be reduced or eliminated in order to serve Buncombe County.
2. To obtain infrastructure. The agreement says that the Authority must construct regional water lines in northern Henderson County at the county=s request when the revenues from those lines would pay for the capital cost of that line in nine years. We have a mechanism to get infrastructure for water service to the northern area of the county at little or no cost to the county, depending upon how many people would be served by the line and the net revenues that would be generated by the line.
3. Seek the declassification of the watershed that was created with the Bent Creek site. That was originally established as an intake and therefore it created a big watershed that encompassed part of Henderson County. One thing they had to do was get that declassified so that was no longer a watershed area that was subject to our watershed regulations.
4. Expansion of the ABHWA Board. They had to expand their Board to give Henderson County two seats which they did.
5. Conveyance of the Brevard Road site, Bent Creek site to Henderson County. Mrs. Beeker stated that to her knowledge we have not received that deed as yet. It should be forthcoming.
6. They were also to make a good faith effort to make available 25% of the jobs created at the treatment plant to Henderson County residents. She had no information as to whether or not that was done.
She stated that the above is a summary of the agreement. It is very detailed, discussing the financing of the lines, when title would come back to the County with regard to those regional water lines. As soon as the Authority has received enough revenue to pay them back for the line, the line would be titled in Henderson County and we would receive the revenue from those lines. The purpose of the regional water lines was to provide a mechanism at little or no cost to the county to get the water to the northern part of the county but then at the point in time when the Regional Water Authority or a true Regional Water Authority or Water and Sewer Authority were formed but also to give Henderson County some infrastructure.
Commissioner Gordon asked Mrs. Beeker to clarify the terms of the conveyance of the property at Bent Creek.
Mrs. Beeker stated that this is covered in Section 22 of the agreement. Basically there are two possibilities in the agreement that Henderson County could use this property for. There is a 10 year time limitation, from the time the County receives the deed the county must do one of two things in the following ten year period:
1. Convey the site to MSD for the construction of a waste-
water treatment facility, or
2. Convey it to a regional water and sewer authority of which
Asheville, Buncombe, Henderson Water Authority, Asheville, and Henderson County are a part.
These are the two options the County would have under the agreement with respect to the property once the County receives the deed.
Commissioner Gordon stated that Commissioner Kumor had a very good article in the Sunday Asheville Citizen paper guest column that gave her perspective on the reasons for this agreement and how it came to be.
Commissioner Kumor stated that one thing the article left out was that if you really want to read this agreement it=s on our website at www.henderson.lib.nc.us/county and click on Henderson County Code.
Chairman Hawkins stated that the challenge that this Board has is to move forward with the agreement that has been entered into. The water and sewer authority in Henderson County is working with the Town of Fletcher in the northern end of the county. A lot of the things outlined in the agreement such as a master plan for extension of water lines should be done not independent of consideration of sewer needs which is what this regional authority is really about. One of the problems that we have in Henderson County today is that we have had an unbridled extension of water lines and no sewer to go with it and it causes a lot of growth difficulties. He stated that one of the challenges is how are you going to use this agreement to provide service to the citizens of Henderson County, particularly in the northern part of the county. The county has no wastewater treatment facility. We=re dependent in the northern end of the county of transferring wastes to MSD in the southern part of Asheville. We have a natural gravity feed line along the French Broad River. The site mentioned is along the French Broad River. One of our challenges will be how best to utilize this agreement for the benefit of our citizens.
INFORMAL PUBLIC COMMENTS
There was none.
Chairman Hawkins called a short recess.
7:00 QUASI-JUDICIAL PUBLIC HEARING
Request for Variance from Subdivision Ordinance by
Ms. Diana Beddingfield
Chairman Hawkins made the motion for the Board to go into this Quasi-Judicial Public Hearing. All voted in favor and the motion carried.
Chairman Hawkins stated that this hearing is being held on petition of Diana Ruth Beddingfield for a variance from the Henderson County Subdivision Ordinance. Only persons who can demonstrate that they will be affected by the outcome of the decision are allowed to participate in the proceeding.
Mrs. Beeker stated that this is a Quasi-Judicial Hearing as opposed to a Legislative Hearing. Only evidence that is relevant to the facts that must be found will be considered, just general opinions will not be relevant. The facts that must be found are:
1. There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance in similar matters relating to land use.
2. The variance is in harmony with the general purpose and intent of the ordinance and preserves it=s spirit.
3. The granting of the variance secures the public safety and welfare and does substantial justice.
Hearsay evidence will generally not be allowed. Only facts presented at the hearing will be considered.
Ms. Beeker asked if there was any Commissioner who had received any knowledge of this matter outside of this hearing. Case law states that if you disclose and state what knowledge you=ve gained so that everyone can be privileged to it then it is proper to come before the hearing.
Commissioner Moyer disclosed that he was at the Planning Board meeting when this request was presented to the Planning Board. He did not participate in the discussion nor vote. He stated that his decision would be based on what is presented at this hearing.
The burden that the applicant must meet in order to be entitled to the variance, the steps are clearly stated in the application. The Board should refer to that application to determine whether the burden has been met.
The first order of business was to determine who would be parties and witnesses to the proceeding. They were as follows:
Diana Ruth Beddingfield, petitioner Party
Karen C. Smith, Planning staff Party
Chris Timberlake, Planning staff Party
Rodney Erwin, wished to buy some of the property Party
David Hill, land surveyor Witness
Louise Hudson, adjoining property owner Party
Joanne Fuqua, adjoining property owner Party
Rocky Hyder, County Fire Marshal Witness
The above eight persons were sworn in by the Clerk to the Board.
Angela Beeker distributed a letter to all the parties to the proceeding from the applicant, Diana Ruth Beddingfield.
Petitioner - evidence
Ruth Beddingfield was asked to come forward and present her evidence. She first distributed a letter from Dr. John Bell whose property adjoins hers. He could not be present at this meeting and therefore sent a notarized letter. She also distributed copies of a deed that indicates that she continues to have access to what is now a private drive to a number of families on the north side of this property but that also provides access to a number of her lots.
Ms. Beddingfield referred to the preliminary plat. She stated that she is constrained by topography in trying to develop her small subdivision. The topography is steep enough to create a problem if they try to cut the grade down any further. It would make such steep banks that some of the lots may not be usable or sellable and maybe not even accessible. The topography is the limiting factor. Adams Ridge Way goes off to the right curving around lot #3. It would only really have to serve one lot, lot #3. She was concerned about the requirement for a 16' travelway.
Ms. Beddingfield referred to table 1 in the back of one of the packets which indicates that if there are no more than three abutting lots, they can use a 30' wide right-of-way if future road extensions are clearly not feasible. At this point, she had accepted the Planning Board=s suggestion that Adams Ridge Way Road end where it would be next to lots #3 and #4. In effect only lot #3 would have to be served by Adams Ridge Way Road. Lots #4, #5, and #6 could come off the existing drive which goes to properties on the top of the mountain which serves about seven or eight families. That private drive is only about 10' wide. She requested that Adams Ridge Way not have to meet the 16' travelway width to serve one lot. It is a private driveway and nothing more. She stated that she could meet the width requirements of 16' for the remainder of the road which would be Lee Ridge Road. AThat is doable@. Lot #7 could access from Terry Creek Road directly. Also Lot #8 is right at the entrance and should have no problem with getting a drive to their property. She stated that Mr. Hill might be able to speak to these issues a little more authoritatively.
Ms. Beddingfield stated that she did not see a way that she could come into full compliance with the grade and maintain the integrity of lots #2 and #3, especially lot #2 because there is already a very steep bank. She has flagged and can meet the 16' travelway requirements going up the steep part and hopefully make a very slight improvement in the grade. The Planning Board had requested a 2' shoulder, which would be a 20' requirement. She stated that she can meet that, even right at the entrance and for Adams Ridge Way Road. Because of the steepness it will need to be paved. Ms. Beddingfield stated that was her intention from the onset. She will have underground utilities and will have some road maintenance agreements with potential property owners. She does not plan to become a big developer, does not plan to develop the back section.
Questions asked of Ms. Beddingfield
Chairman Hawkins -AYou indicated that the only variance you are asking for is the first 400' of Lee Ridge and Adams Ridge and not on the width, am I correct?@
Ms. Beddingfield -AI=m not sure what the standard shoulder requirement is. Someone said perhaps 6'. If it is, I think I have requested 2' shoulder as opposed to 6'. I=m not sure what the shoulder requirement is with a 16' travelway.@
Chairman Hawkins -AI don=t see anything in your request for a variance on the width so I=m assuming that you=re not asking for that.@
Ms. Beddingfield -AWell, I had noticed in the original discussions with the Planning Board that --- it mentions in the notice I received about this hearing that I had requested variance from road grade standards, travelway width, and shoulder width requirements so I guess based on the notice of this hearing I am asking for a variance. If its 6' I=d like to make it 2'.@
Chairman Hawkins -AI guess that=s my question because on the front of your application it lists road grade, minimum travelway width in table one but in the specific variance you talk about the two roads on the grade so I didn=t know what amount of variance you are asking for.@
Ms. Beddingfield -AWe do need a variance on the grade, I guess, for both of them although the Adams Ridge Way is really nothing but a private drive to serve - would have to serve one lot, only one lot, that being #3 so I certainly would hope that we could go with an 8 or 10' travelway, paved to that. I mean I=m gonna be paving somebody a very long driveway here.@
Commissioner Gordon -AAm I to understand that you=re changing the dedicated right-of-way that=s shown on the original plat that we have?@
Ms. Beddingfield -AWell, we will leave it I think at 45, just you know so that people --- I mean it really would be a moot point if everybody owns to the center, they would basically have it anyway but there really would not be a need for that wider dedicated right-of-way since I have agreed to end Adams Ridge Way at the property line, therefore; no future development to the remainder of this property could occur coming off of Adams Ridge Way Road.@
Commissioner Gordon -AOK, the right-of-way that we=re showing dedicated goes all the way to I guess your property line and goes across five and four and three. Are you saying that you would be stopping that road right-of-way at three?@
Ms. Beddingfield -AThat was the request of the Planning Board and when we met with them --- the Henderson County Planning Department=s letter indicated that Adams Ridge Way should terminate >just prior to the property line so that it does not provide access to the additional acreage= and I have agreed to that. I mean I have no intention of developing that back acreage which would be, I=m guessing, about 15 acres. Do you all have a copy of that letter which was from Chris Timberlake?@
Chairman Hawkins -AI think we=ll probably get that when Karen presents her evidence. Is there any other questions the Board has for Ms. Beddingfield? Marilyn.@
Commissioner Gordon -AYeah, a little more clarification because I understood that you said lots #4 and #5 could access from an existing road that=s already there, is that correct?@
Ms. Beddingfield -ARight, that is --- I gave each of you a copy of that deed which granted a right-of-way over our property, said property being described in deed book #511, page 1 and said grantees, at that time being my father who is now deceased, my mother, and myself, that grantees are to maintain the right-of-way however grantors, their heirs, and assigns reserve the right to use said right-of-way and shall help maintain the right-of-way proportionately. It is further understood and agreed that grantors shall be sole owners of the standing timber on the said right-of-way so this would mean that you know heirs and assigns --- that if we sell a lot that adjoins that those individuals purchasing those lots could in fact access from that existing road which is already well established, well maintained. They would have to assume proportionate maintenance if they use that instead of Adams Ridge Way. So they would have two options. What I had thought was to create sort of a contained little community of these eight lots --- which you know if it needs to be altered in terms of their driveway access then so be it. But they would, I hope, have the option of coming and going in and through the roads we are proposing. Any questions?@
Commissioner Kumor -AYes, I do, if you terminate that Adams Ridge Way, you=re not creating another piece of landlocked property are you?@
Ms. Beddingfield -ALand locked property?@
Commissioner Kumor -AYou won=t have access out of it.@
Ms. Beddingfield -AOh yes, oh yes the fifteen or so acres could come off of the same road ---@
Commissioner Kumor -AThat runs across the top, OK.@
Ms. Beddingfield -AWell, it runs at the edge, it runs along the - along the side of it and certainly --- initially, in fact, I had spoken with all of the families up there and we had tentatively thought about widening it from the point we would go in with this road but then some folks came along --- the grader said you know this is just too steep. I think you best come off Terry Creek. Now in hindsight I have again been advised probably it would have been a better grade to come the other way but we=ve already got this thing created now and we=re trying to figure out how to make it work. But I don=t plan to become a developer. Bottom line is that we just weren=t using this and thought it would be maybe a thing that we should do. I really don=t know why we got into it now but it=s there and we=re trying to make it work. And we have some lovely folks that are interested in building a home there on lot #1 so hopefully we can work it out. And they actually have direct access to Terry Creek as it is.@
Chairman Hawkins -AAny additional questions from Board members at this time?@ Are there any additional parties that wish to ask any questions?@
Commissioner Gordon -AI have one more question. Am I to understand that this existing road --- is the grade on it just fairly equivalent to what would be created on ---@
Ms. Beddingfield -ATo the point where these lots are, I believe it would probably be and I would need Mr. Hill=s expertise on this because he has been surveying in that area --- just looking at it I would think that it=s perhaps less steep than Adams Ridge Way to the point where these lots that could access from there would be involved. Lots #4, #5, and #6.@
Commissioner Gordon -AThat is a gravel road though.@
Ms. Beddingfield -ANo, it=s paved. It=s currently maintained by the families living at the top, the people to whom this deed was assigned, Newman Morgan who is now deceased and his wife who is deceased, their sons Harold, Darrell, and Randy and Larry Ray Henderson and Doris Ann Henderson, his wife. There also Stephen Pace, Harold D. Pace and wife who was Newman=s daughter and their children. Stephen is their son, and their daughter who is married to Sonny Hall. So it=s all a family compound up there. I believe Doris and Larry Henderson=s son may have a home up there and I=m not sure which other family members. There are approximately eight families in a family compound. But that roadway up there is no more than 10' wide I=m sure as is our private drive. It=s paved and about 10' wide. I have never thought of paving my drive 16' wide.@
Chairman Hawkins -AAny other questions from the Board or any other parties? Thank you Ms. Beddingfield.@
Ms. Beddingfield -AThank you.@
Chairman Hawkins -AKaren Smith, would you present the Planning Staff=s evidence?@
Commissioner Moyer -AIs Mr. Hill going to speak on behalf of the applicant before you go to the staff?@
Chairman Hawkins -AI think that he comes after Karen.@
Angela Beeker -AI think any witnesses that she wanted to call.@
Chairman Hawkins -AI=ll ask then, Ms. Beddingfield do you have any witnesses. Mr. Hill - do you want him to speak now as part of your presentation?@
Mr. Hill -AIf you all have any questions, I=ll be glad to answer them --- about the grades. To speak to your question Ms. Gordon, the road to the north of the subject property is an asphalt/concrete driveway and the grade going up right along this property here to the north for lots #6, #5, and #4 is a relatively flat grade once you get on up there. It=s got just a little entrance ramp up to it which is --- it=s not as steep. It=s less than 18%. Then once you get on back in accessing where the majority of the properties that use the driveway --- where they live at it=s --- I didn=t shoot the grade on it but it=s pretty steep. It=s not as steep as this road here but it=s got a pretty good grade. It=s a grade that you couldn=t get up you know if there=s any ice or snow but as far as --- you know if you get back whether you can get up 6% either --- you know with ice on the road so --- but as far as the specific part of the road that Ms. Beddingfield --- as far as Lee Ridge --- she is requesting a variance from is just from the entrance off of Andrews Road or Terry=s Creek Road up to about where the 30' drive easement takes off to the southeast. That=s the steep part of that road. And then from there on back to the cul de sac it kinda crests and runs fairly flat and then it goes on a gentle grade down to the cul de sac area. So its just mainly the road portion in front of lot #1 and #8, that part there, that=s the steep part of the road. There is a little flat area for about 50' and then the road kicks up --- that=s where the grade steeps but you do have an entrance off of the road. You can pull off the road. It=s just not right there at the edge of the pavement, you don=t have the grade steep enough just right there --- you do have a little flat approach and then you do go up the road and it does in places approach 23-24%. It is relatively steep.@
Chairman Hawkins -AThe grade that you=re looking at is 24%?@
Mr. Hill -AFrom what Ms. Beddingfield has built right now, just in one spot, for about 30' it is 24%. The average overall is right at 23-22.5-23% up that 400' section.@
Chairman Hawkins -ADoes the topography there --- would it permit the road actually being cut down to an 18% grade?@
Mr. Hill -ANot really. You=re looking at approximately 400' of road there that would have to be graded to down and by the time you got up to the top of the 400' to drop it from 23% down to 18% you would have to drop it 5' every 100'. So you=re looking at cutting this road down 20' just up there at the top. That=s how much extra cut would be involved which would effectively eliminate any access
lot #1 and lot #2 at all. You=d have no access and then the access off of C-- from where Adams Ridge Way goes across you=d steepen that entrance up into there. It=s already 18+% on that for a little short piece, about 150' I think it is or 170' so to drop grade down you would effectively lose you know access to lot #1 and #2 and eat up a pretty good portion of lot #8 to drop that.
Angela Beeker -AMr. Chairman, for the record, would you be willing to let Mr. Hill take the big map and delineate on it the portions he=s talking about and the grades so that it would be a little bit easier to follow and the record would be a little bit clearer. If the Board doesn=t want to do that, that=s fine but its just a suggestion.@
Chairman Hawkins -AWell, you might look cause I understand that most of your grade is there in the vicinity of lot #1 and #2?@
Mr. Hill -AYes, look on the profile sheet here. This is the profile of the centerline and ----------- condition, the last time I was down there. As you can see from here, for approximately 50' right here you have a fairly flat entrance into the road and then from there it goes on up and starts at 19.5, you go to 23.7, 23.3, 23.7 and then you=re dropping to 21.2, 19, 22.7, 22.2, 23.1 and right here 24.5 that=s the steepest grade on this portion, 22.9, 21.7 and then you=re back down to 18.2 and 16.02 and then it just keeps gradually ------- down to the cul de sac.@
Chairman Hawkins -AAnd where is that in relation to the, let=s say lot #1, where you first started. Is that right in the corner?@
Mr. Hill -AYes sir, from right here you have approximately 50' of --- going through the property and then approximately 400' ends and just drops back with this intersection where the private drive ends.@
Commissioner Moyer -ASo that was Lee Ridge Road that you were showing on your - your@
Mr. Hill -AYes sir, profile four of Lee Ridge Road, center line profile.@
Commissioner Moyer -ADo you have a similar one for Adams Ridge Way?@
Mr. Hill -AYes sir, this one here - yes this is it right here. Now you have another flat ramp for Adams Ridge Way and then you start out at 18.4, 22, 23.3, 23.2, 20, 19.5 and then 15----. The last portion here is where it exits the property, what they have built. But Mrs. Beddingfield agreed ---- the Planning Board=s recommendation that she should end this right-of-way prior to the property line to prevent access off these roads into the rest of this. She actually owns - there is about 15 acres ----- back here and Mrs. Beddingfield actually owns the remaining portion of the property ----- which you know she has, it is not involved with this here. This driveway here on the north side goes on up and serves - she was talking about eight or nine residences -----.@
Commissioner Moyer -ASince we don=t have the map showing the level of the grade, could we ask that that be considered as part of the plat so that we have it in the record, cause otherwise - I don=t think it shows on your plat any of the grades.@
Mr. Hill -ANo, we=re not required to since its not going to be - you know - this is not dedicated to be for public usage here, the driveway is private.@
Commissioner Moyer -ASo for part of the record, I think it would be appropriate that that be considered part of the plat.@
Mr. Hill -AWould you like that recorded?@
Commissioner Moyer -ANo, no, no, I mean just for this part of this hearing. I=m not trying to change your plat requirements. Just so that we don=t have to go through line by line and ask what the level of grade is.@
Chairman Hawkins -AThe two charts that you just showed.@
Mr. Hill -AThe profile for the private driveway.@
Chairman Hawkins -AAnyone else have any questions of Mr. Hill at this time?@ O.K. Mrs. Beddingfield, do you have any other witnesses that you want to make presentations at this time?@
Joanne Fuqua -A ------------------ you know you and I had discussed ------@
Angela Beeker -AExcuse me mam@
Joanne Fuqua -AYou want me to come up?@
Angela Beeker -AYes mam, and actually the person you=re asking the question to would need to come up as well so they could be recorded in the microphone.@
Joanne Fuqua -AI know Ruth and I had discussed at one time that we would walk - go to my property and walk and I might sell her, you know some right-of-way or that she would buy some from me. Did you chose not to do that because of the grade?@
Mrs. Beddingfield -AThis would be to the back 15"
Joanne Fuqua -AThat=s what I thought.@
Mrs. Beddingfield -ANot to the front.@
Joanne Fuqua -AThat=s what I thought.@
Mrs. Beddingfield -AAnd that would only apply to the back 15 or I could come off of the existing private drive to that. Uh, this is Joanne Fuqua, she is an adjoining property owner.@
Angela Beeker -AWould it be helpful to have her identify where her property is on the - in relation to this on the@
Joanne Fuqua -AReally I - it would not bother this property - what she=s doing right now- you know - its not going - mine would be more on the upper side - I know where - it=s fine the way it is.@
Mrs. Beddingfield -AWe would adjoin at the top of the back 15. Mrs. Hudson is here, her property does adjoin - she and her husband, lot #1, if she would like to speak to the issues.@
Chairman Hawkins -AMrs. Hudson, do you desire to make any input at this time or@
Mrs. Hudson - Mrs. Hudson responded negatively.
Chairman Hawkins -AAlright, thank you. Any other witnesses or questions for Mrs. Beddingfield? We=re ready for Karen?@
Some mumbling and mixing of several voices.
Chairman Hawkins -AYou want - OK - Rodney@
Rodney Erwin -ARodney Erwin, yes sir. I would just like to say that for the last few months me and my wife and my family have been considering this piece of property. I=m looking to buy lot #1. I was also at the Planning Board meeting and I am very interested in this meeting simply because we have invested a lot of time and effort in trying to get everything settled up so we can prepare as soon as possible to build if everything is favorable after this meeting. The grade was something that I considered when I looked at the property and as I saw it personally as a citizen of Henderson County and where I lived. I lived in Tuxedo before I sold my home due to the size, I need a larger home. And we looked at buying homes in the area but there were no homes to purchase in Tuxedo so I saw this as an opportunity for me to stay where I grew up, where I lived. I lived around Mtn. Valley, Mt. Olivet, Mtn. View. All these areas are steep because they are mountain terrain. I=m familiar with that, I understand that and I have no problem with the grade. But I understand that this is part of the process that we have to go through to - you know - for the variance. Like I said, I=ve already submitted an application and received a perc permit and a septic tank permit from the Henderson County on the property - that was before I realized that all this would take place and also the well permit. So then when I realized that the variance was enacted and we would have to go through this I just more less am waiting to purchase the land from Mrs. Beddingfield until the outcome of this meeting.@
Chairman Hawkins -AFrom the position that you=re at in lot #1, the most effect I guess if I=m looking at the map would be along that portion where the road is suppose to run as far as grade.@
Rodney Erwin - I could not make out what he said, one word.
Chairman Hawkins -AOK, would that affect your access to your particular lot?@
Rodney Erwin -AYes sir, very much so because I run the full distance. If you look at the top of grade - if you=re looking at it like this standpoint - if you see the little spur off to the right - there between one and two, that=s where I will come in. I=ve already talked to my grader. Matter of fact this afternoon, just preparing him if everything is favorable. And we will be coming right off of there and actually be building right near where the one is. The grade is completely the distance of my property. I have an Astro Van. Its gravel right now and I can get up the grade as it is without very much spinning even. Mrs. Beddingfield - like we have talked - and she=s said already and it=s in the proposal - it will be paved and the underground utilities and that will help a great deal.@
Chairman Hawkins -AThank you. Does anybody else have any questions? Thank you. I think we=re ready for you now, Karen.@
Planning Staff=s evidence
Karen Smith - AAs I go through, I=m going to be having Jennifer help me pass out some documentation which you did not receive in your packets. But first I wanted to give you a little bit of an overview. In early June of 1999 Mr. David Hill submitted, who is the agent for Mrs. Beddingfield, submitted a preliminary plan to Planner Chris Timberlake in our office for a nine lot minor subdivision. This subdivision is called Lee Ridge and it is located off of Andrews Road, also known as Terrys Creek Road in Green River Township. First, I=d - I don=t know if you have your Subdivision Ordinances with you - in the event that you don=t we have some for you. I am going to refer to some sections and you may want to follow along.@ Distribution of the Subdivision Ordinance.
Chairman Hawkins - AKaren, while she=s giving those out, you said the first application was for a minor subdivision of nine lots, was that what you?@
Karen Smith -ARight, that=s what you=re looking at on the map in front of you and in your packet. OK, section 170-21C, this is in the recently codified subdivision ordinance, it was previously known as section 405.3, this is on page 16 and 17 of the ordinance - provides the standards for private roads and these standards, particularly if you look at the table, require that the maximum road grade for paved roads, those are roads that serve no more than 24 lots, that the grade be no more than 18% and that the minimum travelway width for roads serving up to 24 lots be no less than 16'. The subdivision Lee Ridge was proposed to have 12' wide paved roads with 6' shoulders and road grades which you see as a maximum of 18%.
Staff cannot approve a subdivision which does not meet the minimum standards of the subdivision ordinance and that is why we=re here today for the variance on the road grade and travelway width.
As you=ve heard from the previous speakers, there are three roads proposed in the subdivision, Lee Ridge Road, Adam=s Ridge Way, and a 30' drive easement. Mr. David Hill had submitted to our department a drawing showing that the roads would have a 12' pavement with 6' shoulders and I=ll just briefly show you that.@ At the map - AThis shows a profile of the proposed roads, these are your 6' shoulders, this is the 12' proposed paved surface.@
AMr. Hill also submitted the centerline profiles which he showed you a few moments ago. We don=t have full sized reduced copies of those but I can make available - Jennifer was showing on the screen a little earlier - I copied portions if it would fit - and we can make those available to you if you want us to run them now we=ll be happy to. Based on those profiles, the Planning Department found that Lee Ridge Road is approximately 800' long, the centerline profile shows it has grades in excess of 18% for approximately 400'. For that subject 400', excuse me, the grades range from 18.2 to 24.5% and average 22% - that=s what Mr. Hill reviewed with you. Adams Ridge Way is approximately 405' long, has grades again in excess of 18% for a distance of approximately 130'. These grades range from 18.2 to 23.3% and average 21%. And the 30' drive easement also has a grade for a very short distance of 30' which exceeds 18% at 18.7 and that=s of its 115' length. I have a short video that was filmed by Planner Chris Timberlake. He went out to the site with County Fire Marshal Rocky Hyder and it might just give you a better picture because I don=t think any of you have been out there of what they have already constructed, if the Chairman will allow me to show that.@
Chairman Hawkins -AWe would like to see that. OK, have you got it set up to play?@
Karen Smith -AYes.@
Chairman Hawkins -ADoes anyone have any objection?@
Angela Beeker -AThe parties might want to come up and watch it too.@
Then it was discovered that it would show on two televisions, one facing the Commissioners and one facing the audience.
The short video was viewed by those in attendance. Karen explained as the video showed.
Karen Smith -AOK, the Henderson County Planning Board was asked by this Board to make a recommendation - review the application and make a recommendation and before I read that, I=m going to pass that out to you right now. The Planning Board met on this.@
Chairman Hawkins -AKaren, give us just a minute to look all this over.@
Karen Smith -ASure, I=m sorry. I=m gonna also give you the minutes from that meeting.@
Chairman Hawkins -AAnd what is this?@
Karen Smith -AI had actually excerpted the recommendation from my memo so there=s a memo that=s just the Planning Board recommendation and a set of minutes from that Planning Board meeting where they made the recommendation.@
The Board was given some time to review the documentation they had received.
Chairman Hawkins -AO.K. Karen, if you want to proceed.@
Karen Smith -AJust for the record, I wanted to say that the Planning Board discussed the variance application at its June 29 meeting. During that meeting, the Board heard from Ms. Beddingfield, her surveyor David Hill, Planning Staff members Chris Timberlake and myself, and Rodney Erwin. The Board also considered letters that had been submitted by Fire Marshal Rocky Hyder and the County Engineer Gary Tweed expressing concerns with the request. The Planning Board had a very lengthy discussion as you can see from the minutes. Following that discussion they voted 5 to 2 to send a favorable recommendation to the Board of Commissioners on the variance subject to four conditions and those conditions are that Lee Ridge Road and Adams Ridge Way be paved surfaces and that a portion of the 30' driveway easement also be paved, that Adams Ridge Way terminate before it reaches the property line of the additional acreage owned by Ms. Beddingfield, that the roadways be widened to 16' with a minimum of a 2' shoulder width on each side for use by utilities, that adequate drainage and culverts be provided for erosion control. I do want to add the Ordinance does require a 6' shoulder on either side, so if the Board of Commissioners intends to consider the Planning Board=s recommendation I believe you=ll have to amend the application to allow a variance on the shoulder width.
I did want to make a few staff comments - section 170-2 of the subdivision ordinance, which is on page 1, states the purpose of the subdivision ordinance and that is that it is to promote through proper planning the health, safety, and general welfare by providing for the orderly subdivision of land in Henderson County. It goes on to say that the ordinance is deemed necessary to and it states several provisions. Numbers 1, 2, and 6 are particularly relevant - necessary to:
1. Establish procedures and standards for the subdivision of land;
2. To provide for orderly growth and development; and
6. To assure the proper design and installation of roads and utilities.
Section 170-3, which is on page 2 of the ordinance, under the heading of Land Use Plan - notes that due to severe topographic conditions and adequate road access, distance from services, unique natural areas, soils that do not easily support soil drainage systems or the proximity to existing and incompatible land uses, all land may not be suited to be subdivided for the purpose of dense development. The County has had minimum standards for subdivisions in place since 1988 and on May 3 of this past year, of 1999, the Board of Commissioners adopted the current subdivision ordinance, a rewrite of the former Land Development Ordinance and made it effective May 20 of 1999. The Planning Board and Commissioners spent many years trying to make the new ordinance more effective. Before I make a concluding statement, I would like to call on County Fire Marshal Rocky Hyder to make a statement regarding the application. Following his comments, I do have a letter from County Engineer Gary Tweed to present.@
Rocky Hyder -AThis is a copy of the letter that I sent to Planner Chris Timberlake after our visit to the site and the video which ---. My concerns are:
#1. The driveway easement between lots #1 and #2 - that particular easement comes into Lee Ridge Road in a very steep angle and for those of you that have driven larger trucks you know once you get the drive axle well above the steering axle the truck won=t back back up. Our ambulances have a wheel base of around 155-60 inches, fire trucks have a wheel base of about 180 inches. That - the way this particular road comes in to the road at an angle certainly they won=t be able to make that turn and go down the hill. If they did try to do that, they wouldn=t be able to back up whether the roads paved or gravel and they certainly wouldn=t be able to get out. They may wind up stuck there.
#2. The second concern is certainly the steepness of the road. As you saw in the video, that=s not conducive to good fire protection nor is it conducive to emergency services overall. Certainly in the winter time with the shade that was over that particular road, we are definitely concerned that there would be long periods of time where that particular area would be inaccessible.
#3. My third comment as you saw right at the last of the video, my particular vehicle was parked in the roadway of the road that serves the north end of the property. According to Ms. Beddingfield, it would serve lots #4, 5, and 6 and that particular road is certainly a very narrow road and ten feet would be very wide. I don=t believe it actually meets the ten foot road width at all.
Chairman Hawkins -AThe plat for this and I don=t think it has a name on it - this 4, 5, 6 up on I guess the north end. Karen, what is the road width for that. You said you didn=t think it was ten feet?@
Rocky Hyder -AAs you can see by my Blazer parked in it, there was approximately a foot or less on either side of my Blazer and the Blazer is a smaller vehicle, its a S-10, so its a midsize vehicle. I don=t see any way that we could have a ten foot road width in that - on that particular section that we were parked on. Did Chris write down the measurements? We did take the measurements but I ---@
Karen -AI have not found any.@
Rocky Hyder -AI can=t remember those measurements exactly, we did measure.@
Chairman Hawkins -AOK, well it=s actually from outside of this discussion anyway I think but nice to point out, thank you. Any questions for the Fire Marshal?@
Angela Beeker -ACould I ask a couple of questions on your behalf?@
Chairman Hawkins -APlease.@
Angela Beeker -AOK, first of all, the video that we watched - you can authenticate that to be accurate as a representation of the Lee Ridge Road and the other roads in the subdivision?@
Rocky Hyder -AThat=s correct, I was driving. Mr. Timberlake was filming.@
Angela Beeker -AOK, then with regard to your concerns over the steepness of the road, could you be more specific?@
Rocky Hyder -AOK, the steepness of the road basically eliminates the ability for larger vehicles to have adequate access to it, especially again with the driveway easement between lots #1 and #2. Larger vehicles will not make that turn nor will they make the turn going in or out. They would have to go up the hill and either back in or go up the hill, turn around, and pull in that way. Again the steepness of the road with respect to Adams Ridge Way, even though it would be terminated there, it would be very difficult at that steep of a road grade to turn a vehicle around so basically we=re forced at that point to either pull vehicles in and stack em in one behind another or try to back vehicles up a road grade and from my experience, you just don=t back a large vehicle up a road grade with a 20% road grade or greater. It=s just almost impossible, paved or gravel.@
Angela Beeker -AWhat type of large vehicles are you referring to?@
Rocky Hyder -AI=m referring to fire trucks, pumpers or tankers to carry the water.@
Angela Beeker -AAnd from a fire fighting standpoint, why is that important?@
Rocky Hyder -AIt basically delays the fire suppression efforts and it certainly would hamper the overall water supply capability for the fire department.@
Don Ward -AHow far is it from Green River Fire Department to this property, Rocky?@
Rocky Hyder -AI would say that we=re about 32 to 4 miles from Green River Fire Department.@
Don Ward -ASo what=s their estimated time of arrival on a routine house fire?@
Rocky Hyder -AAverage response time on a house fire is probably around 7 minutes, in that area.@
Don Ward -AHow much damage has occurred by the time of the response time?@
Rocky Hyder -ADepending on when the fire is discovered. If the fire was discovered in its incipient or initial stage, certainly you could have a couch, maybe some of the draperies and part of a room involved in seven minutes. Normally we find the total involvement of a room within about ten minutes of when a fire starts so you=re looking at one room of the house involved, other parts receiving smoke and heat damage at that point.@
Chairman Hawkins -AAny other questions for the Fire Marshal? Anyone else have any questions for the Fire Marshal?@
Ms. Beddingfield -AI do.@
Chairman Hawkins -AMs. Beddingfield, would you please take the mike, please.@
Ms. Beddingfield -AMr. Hyder has mentioned concerns about the shading on the area where the road enters. I think it was very -- from the film itself these are all deciduous trees. It is not a pine forest. There should be no heavy shade in the winter. It faces due west which will get the benefit of any sun to help melt any ice that may come.@
Chairman Hawkins -AIt has shade in the mornings I guess is the sun in the east?@
Ms. Beddingfield -ASome.@
Chairman Hawkins -ASome. Any other questions from anybody?@
Don Ward -AOne more thing. Since the road was brought up on the ten foot right-of-way that went up on the - I guess this would be the west on my paper - is there any adjoining properties that would, I guess, be the same as the property we=re looking at? That would have this same difficulty that is already established. Or is it out of character or in character, since you made that drive?@
Rocky Hyder -AA lot of the adjoining property would be on the left of this road as you=re driving up, is undeveloped until you get further into the area where the family lives so there is a possibility there but however there is a drainage ditch in that particular area as best I remember so certainly you=re development may be hampered in respect to that.@
Chairman Hawkins -AI think Ms. Beddingfield said there were houses on down that north end, did you not, up there?@
Ms. Beddingfield - could not make out what she said.
Chairman Ward -ADid that answer your question, Don? Any other questions? Thank you. Is there any more evidence to be given, Karen.@
Karen Smith -ABefore I continue, I should ask were there any objections to any of the materials I have handed out so far. I=m assuming not but I just wanted to make sure. O.K. At this point, I would like to give you a affidavit from Gary Tweed who is the County Engineer. Gary is out of town this week and couldn=t be here; however, he did have this affidavit prepared at the end of last week.@
Distribution of the affidavit.
Karen Smith -AAttached to that affidavit you=ll find a letter that Mr. Tweed wrote to the Planning Board at the time they considered the application.@ Mr. Chairman, would you like me to read that into the record, the affidavit?@
Chairman Hawkins -AI don=t know if we need to read it in. We can include it in. Does it need to be read in?@
Angela Beeker -AI just want to make sure that no parties have an objection to it being entered.@
Chairman Hawkins -AOK, I think - did everyone, all parties get a copy of this. Ms. Beddingfield, do you have a copy? OK, do you want to take just a moment to read that before we move on?@ Some time elapsed.
AHave you had a chance to read that, Ms. Beddingfield?@
Ms. Beddingfield -AYes I have.@
Chairman Hawkins -AOK, we=ll go ahead and enter that into the record also.@
Angela Beeker -AOK@
Chairman Hawkins -AKaren, do you want to proceed?@
Karen Smith -ASure. Also for the record, I would like to read the portion of the Henderson County Subdivision Ordinance which pertains to variances. This is section 170-48 which is found on page 25 of the Subdivision Ordinance.
The Board of Commissioners may authorize a technical variance from
these regulations. An application for a variance must be make in
conjunction with an application for subdivision approval. In
considering a request for variance, the Board of Commissioners
shall determine that an undue hardship may result from strict
compliance with the terms of this chapter. The Board shall consider
the physical characteristics of the land, adjacent land uses and
the intensity of the proposed development. 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. The variance shall constitute the minimum variance
necessary to mitigate the hardship and shall not violate the intent
of this chapter, nor shall it constitute a detriment to the health,
safety and welfare of other properties within and adjacent to the
subdivision. Any modifications thus authorized must be entered, in
writing, in the minutes of the Board of Commissioners and on the face
of the final plat. In addition, a written decision must be prepared
and delivered to the applicant stating the reasons on which the
departure from the terms of the chapter was justified.
Along those lines, the County Fire Marshal and the County Engineer have expressed public safety concerns regarding the variance. The Planning Department, as the subdivision administrator, does agree with their comments. In addition, I wanted to point out that this application is the first under the county=s new subdivision ordinance and staff has a concern that to grant a variance to this degree seems to undermine the work that went into the new ordinance and will set a precedent for future variance requests.
Finally, I wanted to say that for the record the applicant was notified of the hearing. We also notified the adjacent owners and posted the property. Those last two were as a courtesy, there were no requirements to do that. And the notices that we sent to the adjacent properties were sent via certified mail.@
Chairman Hawkins -AAre there any other witnesses or any additional comments to be made?@
Bill Moyer -AI have a couple of questions for Karen, when you=re ready.@
Chairman Hawkins -AOK, if you would.@
Bill Moyer -AKaren, with respect to let=s take the grade first - does the state have standards with respect to any roads that have to be built to state highway specifications, as to grade?@
Karen Smith -AYes they do.@
Bill Moyer -AAnd what are they?@
Karen Smith -A18% is the maximum grade for hilly terrain.@
Bill Moyer -AWith respect to travelway width, does the state have specifications?@
Karen Smith -AThey require an 18' paved surface.@
Bill Moyer -AAnd this is if they are to be accepted into the -@
Karen Smith -AInto the state system, yes.@
Bill Moyer -AThat=s all.@
Chairman Hawkins -AAny other questions that the Board has of any of the witnesses?@
Marilyn Gordon -AI have a couple of questions.@
Chairman Hawkins -AGo ahead please.@
Marilyn Gordon -AI notice the date of this application coincided very closely with the date of the new ordinance taking effect and I don=t have the old ordinance in front of me. How did the old ordinance requirements compare to the proposed subdivision. Do you have any of that?@
Karen Smith -AI think Jennifer has - I can read it. The minor subdivision review process has actually changed a little bit from the old ordinance to the new. The new ordinance does require that the applicants - where they have four or more lots - have to submit the design standards for the roads and have those approved ahead of time and then when they get conditional approval from the Planning Department, they may go ahead and begin the road improvements and then once those improvements are complete, staff would go out and inspect and then can sign the final plat or they can bond those as you=ve seen with some major subdivisions. Previously, under the old ordinance, if a plat was brought in, met the right-of-way requirements, the applicants were advised that for private roads - lets see if I can find this - all private residential streets shall be designed, built, and dedicated as shown on the approved preliminary plan in accordance with NC DOT transportation design standards for line and grade unless otherwise approved by the Board of Commissioners. And - so that would be for alignment and grade and at that time DOT standards for grade were still 18%.@
Marilyn Gordon -AOK, when was the road actually graded?@
Karen Smith -AI can=t answer that.@
Ms. Beddingfield -AIn >98, roughly in March of >98. The grader, Charles Goins@
Angela Beeker -ACould she come to the mike?@
Marilyn Gordon -AI=m sorry I can=t hear you.@
David Nicholson -AWould you come to the mike please?@
Chairman Hawkins -AThe question, Ms. Beddingfield, do you know when the road was graded.@
Ms. Beddingfield -AYes, I believe that was probably around March of >98, maybe April at the latest. Charles Goins did the initial grading and I have some receipts for payments to him to verify that.@
Marilyn Gordon -AOK, but according to the procedures that we have in place now, the procedure would be to get the approval before the roads are constructed, is that right?@
Ms. Beddingfield -ARight, I was working with Gene Parker as the surveyor for the larger boundary at that time and I asked what I should do and he said call the Planning Board. I made a telephone call and asked what do I need to do and basically you have to have a cul de sac and, you know, if it goes over I guess nine - then it goes into a major subdivision so I didn=t intend to do that. And that=s why we only did eight with the remainder 15 acres being lot #9. So I had no intention of becoming a major developer of any sort and I guess I am concerned about part of this and maybe this is not the time to address my question but the issue of whether certain properties could be developed. This actually drains very well. There was no problem with the septic. I did have that perked for Mr. Erwin. The land - its been there for a year and it=s not severely eroded or that sort of thing. The land does drain very well and unless the ordinance includes condemnation of certain properties, I guess I=m concerned about the staff comments from the developing land planning people that it might just be not suited for - we=re not talking dense development, we=re talking lots of an acre or more and only eight of them. This is not really dense development. And unless that condemnation is included as a part of the ordinance to just categorically say that certain land cannot be used for purposes of building a home - when we live in the mountains - seems to go another step beyond the routine ordinance.@
Chairman Hawkins -AMarilyn, did you have any other questions, that you think of?@
Marilyn Gordon -AI think that pretty much covers it right now.@
Bill Moyer -AMay I follow one of your questions, Marilyn?@
Marilyn Gordon -AYeh.@
Bill Moyer -AKaren, how long have you been in the Planning Department?@
Karen Smith -AAbout 72 years.@
Bill Moyer -AAnd under the old ordinance, to the best of your knowledge, has the 18% grade been enforced against all applicants?@
Karen Smith -AIt has been. Over the years the department has tried to research any pre-existing variances that were granted. I=m aware of two that have been granted previously by the Board. Give me a moment, I can cover that. The most recent being for Green River Ridges. That was a major subdivision. This was back in 1998 under the old ordinance. The highest grade was 21% for a distance of 792 feet. The total distance with grades exceeding 18% was about 377 feet out of a total of 6,940 feet, 163 feet were 20% or higher. There was also one granted in Panther Mountain in 1988, not long after the ordinance was adopted and I don=t have any specifics on that, it was to waive the 18% grade but I don=t know the distances. Most of the other variances that the Board has granted have been on right-of-way access.@
Chairman Hawkins -AI think the most recent variance you referred to was a variance that was associated with a road that had already been built and was already there, was it not?@
Karen Smith -AI don=t recall that application that well.@
Bill Moyer -AThat=s correct.@
Marilyn Gordon -AI have one more question. Has Ms. Beddingfield considered a recombination of any of these lots in forming larger home sites and what kind of a hardship would that place on Ms. Beddingfield. The - If I read the ordinance correctly, there is provision if its for less than four lots - then the road restrictions don=t apply?@
Karen Smith -AThat=s correct.@
Marilyn Gordon -AAnd, so that - I=m wondering what situation it would make for Ms. Beddingfield.@
Karen Smith -AI know she briefly mentioned it to me at the meeting when you set the hearing but I=ll let her address that.@
Ms. Beddingfield -AIt would be entirely up to prospective buyers - if there was someone that perhaps wanted to purchase lots #2 and 3, its all - actually has a very nice view and that would not be a problem. I suppose we could just put that as one lot instead of two and then I wouldn=t even need to do Adam=s Ridge Way. It could just disappear entirely because they could access on this little area between lots #1 and 2 and that area is gonna be significantly improved with the widening of it to 16' right at that point and lowering of that grade since it won=t access Mr. Erwin=s lot. But anyone that wants to purchase two together certainly has that option, #2 and 3 would be the most logical to combine although I think I would prefer to keep them separate, that could be done. It would be much more expensive though, its a good view.@
Marilyn Gordon -AWell, I guess my question would be what would be the value of the property if it were in three homesite tracts rather than nine individual lots?@
Ms. Beddingfield -AWell, it=s only eight. There are only eight.@
Marilyn Gordon -AWell eight, yeh.@
Ms. Beddingfield -AUh, I would just have to - you know - if I=m looking at lets say ten dollars for lot 2 and ten dollars for lot 3 then the two together would have to cost $20, I would just have to double the cost which you know would - and then we=re down to four lots which eliminates all of this because it=s not even a minor subdivision. So, you know, that kinda defeats the purpose of - of all of this doesn=t it, if we go down to four lots or five?@
Marilyn Gordon -AWell, it would have to be, I guess, three lots.@
Ms. Beddingfield -AFour or fewer was my understanding and lot #1 is already - he does not want a bigger amount at this point. It=s a little over an acre. Certainly lot #8 has access right at the road. I=m not quite clear on your proposal - to recombine or alter the survey and plans that we have at this time.@
Marilyn Gordon -AWell, I guess, I=m asking if any alternate ways of subdividing the property had been considered?@
Ms. Beddingfield -AI don=t know how else to subdivide unless we just combine existing lots that have been surveyed and if that becomes the case then certainly as I said, Adams Ridge Way would be an absolutely unnecessary thing and a big scar that I=m sorry is on the land since it would only have to serve two lots, perhaps only one. That would be providing a very long private driveway for lot #3.@
Chairman Hawkins -ADo you have any other questions, Marilyn, at this time? OK, anybody else have any questions.@
Don Ward -AI=ve got two for a couple of the parties and one for the witness. I=d like to ask Mr. Hill if he has got an estimate of the cost of construction of this going 18%?@
Mr. Hill -AAs far as, you mean, reducing the grade down to 18%? No, I haven=t been requested to do any kind of work like that. I got involved with this project after the road was built, so.@
Don Ward -ASay, if you brought it down to 18% in your professional opinion, how many lots would be left?@
Mr. Hill -AUh, as I stated earlier, looking back there, to drop this road down to 18%, you=re effectively going to lose lot #1 just for sheer access into the lot cause it already has about a six - seven foot high cut by going up on your right hand side so if we drop that down to 20 foot, you got to drop them 20 foot, you=ve got a 30' high basically cut bank to your right there so you have no access into that one. #2 would be lost, #3 would be lost and that=s just in my opinion and basically the only lots she would have left would be 7,6,5,4, and you could salvage 8, it would be a cut into it pretty good but you could probably salvage 8. I=m not - its a pretty steep lot - so you may not, that=s questionable in my opinion.@
Chairman Hawkins -ADon, do you have another question?@
Don Ward -AUnless she has a follow-up to this one.@
Marilyn Gordon -AWell, I=m not sure if I=m - I guess its more of a comment than a question so I should reserve it.@
Bill Moyer -AI have a follow-up, Don, if you don=t mind to your question.@
Don Ward -AGo ahead.@
Bill Moyer -AMr. Hill, from your experience, if you had a choice - if Ms. Beddingfield asked you would you reconfigure the lots or would you try to get that down to 18%?@
Mr. Hill -ASigh - well, uh, to get it down to 18% it would - like I say, she would basically just be - I don=t know how to say it but she just, you know, kinda wasted her time. What work I=ve done as far as, you know, going out and setting the corners and things like that - she just basically wasted her time and if she was to you know - as far as you know reconfiguring the lots - that=s - I think that rests on you all=s decision. We=re here right now to get a variance for the road grade. If you all grant it then you know fine - she gets to go ahead with what she planned. If not, then she - you know - then she=ll be forced into just three lots or four lots so that kinda rests in you all=s lap there, as far as how you all decide on this variance requested.@
Chairman Hawkins -AMr. Hill, if you make the cut - lets say on lot #1 there at - as you projected, how much of a bank are you going to have into lot #1 at that point?@
Mr. Hill -AWell, right up there at the top, like you say - the existing bank out there now is approximately 6-7 foot high on your right-hand side as you=re coming up and we=d have to drop that road up there 20' so you=d be looking at a 27' cut.@
Chairman Hawkins -ABut, I mean if you took the variance, how high is the bank going into - I mean, apparently, its - there=s already a bank there, is that not correct?@
Mr. Hill -AYes sir, its about 6-7 foot, what=s existing now from what they=ve graded out.@
Chairman Hawkins -ASo you=ve gotta go through a six or seven foot high bank to get access to the lot anyway, now?@
Mr. Hill -ANo sir, that=s what the thirty foot drive easement is for up at the northwest corner of lot #1, that=s what Ms. Beddingfield had intended to do, that kinda runs up right between lots #1 and 2 and she=d intended for the people to come up and access lot # 1 and 2 through there.@
Chairman Hawkins -AAnd so, there=s not a bank cut up there.@
Mr. Hill -AWell, its a field slope on the south side and a cut slope to the north side into #2 but as you go on up to the drive easement there=s a little holler that comes down the ridge and kinda intersects with the end of the drive easement there which is her intent for the people to access into lot #2 - up through the holler and then they would turn over to the left and gain access to the lot, lot #2.@
Chairman Hawkins -ABut even if you made the cut you=d still have that easement up there to enter in, wouldn=t you?@
Mr. Hill -AWell, to make that cut you=re gonna - as Mr. Hyder and everybody has pointed out - there=s a little section of steep grade going in on that one so if you drop that road, you=re going to effectively - to drop the road down to 18% you=re going to have to drop this road basically all the way through for the almost entire 800 feet. Cause you know if you drop it 20 foot to get this up to the intersection down to 18%, then you know you=re going to have - if you didn=t do anything else to the rest of the road - you=d run into a wall 20 foot high, so you=re going have to bring the whole roadbed down all the way through the development which would then - you=d lose access to #3 and #7,#6, #5 and #4 can all access off of you know either Andrews Road or the existing concrete paved driveway.@
Chairman Hawkins -AOK, Don, did you have any other questions?@
Don Ward -AWell, I have one more question to - for Rodney Erwin. After reviewing Mr. Hyder=s letter on his recommendation, do you have any concerns about entrance to your property or proposed property?
Mr. Erwin -ANo sir, and the reason - and I respect his opinion and I understand his job here but the way I see it - I want to live there, I want to raise my family there and no disrespect to you as a Board but it really upsets me that - and I know you have my best interests in mind and the other people that will be buying there but I have three small children and a wife and we=d like to make that our home and we were all excited - we=d go up there weekly just to see it - to have that hope and - not saying we can=t buy somewhere else - that=s easy to say but that=s where we want to build. I understand their concerns but at the same time I=m concerned about that too. I wouldn=t want anything to happen to my children but I see other families that have lands available to give their children - stuff like that and they have the clause where its=s family oriented to build this ten foot road to go to a piece of land that would cause just as much trouble for them to get access to medical attention, fire attention and then I see myself - because of the subdivision ordinance that I=m restricted - I can=t get that access and that=s - you know that=s not for me to decide but even hearing his concerns I still want to build there. But I can only do so much.@
Don Ward -A I Appreciate it.@
Chairman Hawkins -AAny - any other questions from the Board? Have we got all the evidence now? Any other evidence to be presented. Ms. Beddingfield, do you have any closing remarks that you wish to make? You don=t have to make any, I just wondered if you have any.@
Ms. Beddingfield -AI think I=ve said way too much.@
Chairman Hawkins -AYou think you=ve said way too much, alright. Planning Staff, do you have any closing remarks? Additional parties, any closing remarks, anybody that=s had parties - identified as a party with any closing remarks?@
Mrs. Erwin -ADo you have to be sworn in to speak?@
Chairman Hawkins -AYes mam.@
Rodney Erwin -AWell, I=ll say it on her behalf.@ That=s my wife. Those are my three children and again I appreciate Don asking me the question because as a citizen of Henderson County, I feel like I should be able to build where I want to build. I understand what the Planning Board=s saying - I mean - I=m not - I respect everybodys position here but the bottom line, excuse me, (in tears) the last three months a lot of work on Ms. Beddingfield=s behalf - she=s not even mentioned and I will and I=ll use whatever I have to - she=s suffering through battling cancer right now. She=s worked with me - tried to do whatever she can, she realizes that I have no control. She feels responsible and there=s just so much she can do and I understand that and I appreciate her efforts but the bottom line is that=s where we want to build and you know each person that looks at this land is going to recognize the steep grade and they=re either going to make a decision - yes, I want to build there or no I don=t. The concerns of the Planning Board were that - you know - this is going to set a precedent, I don=t care about the precedence it sets - I care about that one spot, that 1.11 acre. You have to be concerned about that and I understand but at the same time each person will have to come to you and make that decision on an individual basis. You can=t - we=re - it=s like I sit here and heard all that was being said - it=s like we=re the guinea pig. If we do this for one, everybody else is going to have to - that=s your job, to make that decision on a one to one basis. They have to go through the same process we had to go through and if they=re willing to do that, that=s their right as a citizen of this county to go through that process, deal with it step by step - being in terms of the Planning Board I was at those meetings and I=m here today. If they want to do that, that=s their right just as it was my right and I appreciate the right to be able to do that. But I know my wife wanted to speak and she has been patient as she=s - she=s just wanting to build and that=s our hopes and our plans and that decision rests on your shoulders. Thank you.@
Chairman Hawkins -AThank you Rodney. Any additional party closing remarks? Ms. Beddingfield, I assume you have no final remarks since you had none to begin with? O.K. Now the evidence has been presented and the closing remarks concluded, it is appropriate for the Commissioners to discuss the issues presented today. As we begin our discussion, I just remind you you can either vote today and direct staff to bring back findings of fact and conclusions consistent with your decision or we can continue our discussion and decision to a later date, if for example you want to go visit the property or other things you want to consider prior to rendering a decision. So having said that, I=ll just open it up for discussion on the evidence that we=ve looked at and ---@
Renee Kumor -ACan we not ask any further questions?@
Chairman Hawkins -AI think so.@
Angela Beeker -AAs long as the hearing is open, you can continue to ask questions.@
Renee Kumor -AI did - what I wanted - a timeline from Karen on - is Ms. Beddingfield said she started - somebody started grading property and if I understand correctly, Mr. Hill had to kinda come in after all these things were done and in our new subdivision ordinance can all these things start before there is any kind of plan laid out because I know you and the staff are very concerned about this occurring again and again. Well, it seems to me sometimes to make sure that it doesn=t keep occurring is that grading shouldn=t even start before there=s been some sort of plat approval.@
Karen Smith -AThe new ordinance is different in that it does spell out that for these subdivisions with four or more lots, they do have to get the road design approved ahead of time. Now if somebody wants to grade a road on their property - maybe they bring in a subdivision later - it=s really at their own risk. I mean, we can=t stop somebody from putting in a logging road for example but where it is going to lead to the subdivision, those design standards are supposed to be approved ahead of time, before the road can be constructed or the road should be bonded. Under the old ordinance it was the same thing, it was at their own risk.@
Renee Kumor -AOK@
Chairman Hawkins -ASo if I understand you Karen, you=re saying that even though this particular application kinda straddled the old and new ordinance, this portion as far as preapproval was a part of the old ordinance also?@
Karen Smith -AThe preapproval was not part of the old ordinance, no, no. No, it wasn=t. You could again - you know you can build a road on your own property; however, you did have to meet line and grade under the old ordinance.@
Chairman Hawkins -AOK.@
Marilyn Gordon -AIs - am I correct in understanding that the recommendation of the Planning Board - the changes that they have recommended is something that Ms. Beddingfield feels she can accommodate?@
Karen Smith -AI believe at the Planning Board meeting, she did - she did seem willing to work within those requirements - those conditions.@
Renee Kumor -AWere they - I thought she came - she came to us with some different conditions.@
Karen Smith -AWell, it sounded like at the beginning of the meeting that there were some other considerations that she was making.@
Renee Kumor -AWell, what are we being asked to give a variance on?@
Karen Smith -AI=m not so sure any more.@
Chairman Hawkins -AThe application asks for the variance of road grade only as I read it and@
Karen Smith -ARoad grade and travelway width.@
Chairman Hawkins -AI didn=t see any specific travelway width request is the reason I asked, maybe I overlooked it. I saw it in the front, it didn=t say how much.@
Angela Beeker -AUm, it doesn=t say how much. I think listing it on the front is enough to get it before the Board though.@
Karen Smith -AThe plan that was presented by Mr. Hill, if you=ll excuse me, did pose a 12'.@
Chairman Hawkins -A12 foot@
Angela Beeker -ASo, it was part of the application.@
Karen Smith -AYes, supporting document I guess.@
Angela Beeker -AYes and with regard to the shoulders, I believe if Ms. Beddingfield wants at this time to ask for that - you know and amend her application at this point, I believe that she could do that although the Planning Board.@
Karen Smith -AThe Planning Board did not - they recommended that - they didn=t treat it as a variance. The Planning Board is not required to review those applications although this Board did refer it to them.@
Renee Kumor -ANow you=re confusing me.@
Angela Beeker -AOK.@
Karen Smith -AThe ordinance requires 6 foot shoulders. In making its recommendation, the Planning Board seemed to be more interested in getting the travelway width widened than the shoulders - maintaining the shoulders at six feet.@
Renee Kumor -AAnd that=s what Ms. Beddingfield spoke to us about, that she was - she feels she can abide by the recommendations or the request that the Planning Board.@
Karen Smith -AConditioned on the 16 foot travelway provided with 2 foot shoulders.@
Bill Moyer -AI thought there were sections of the road where she said she could not meet the 16 foot.@
Marilyn Gordon -AOn the ah.@
Karen Smith -AI think she did mention that tonight.@
Marilyn Gordon -AAdam=s Ridge.@
Ms. Beddingfield -AI question the need@
Bill Moyer -AWell, but that=s a condition that the Planning Board put on it.@
Chairman Hawkins -AAh, Rocky, I=d like to ask first of all if you looked at the recommendation of the Planning Board and how - what your opinion would be - the impact on - or mitigation of the - at least a reasonably safe movement of vehicles if these four conditions were met.@
Rocky Hyder -AI saw the Planning Board=s recommendations for the first time tonight so I certainly haven=t had a lot of time to evaluate that. Certainly the increase in the travel width is gonna help the situation some, 16 feet still won=t allow two fire trucks to pass one another so we=re still not accomplishing that - still a one way street as far as we=re concerned. But certainly that will help it some. In all honesty, with all due respect to Mr. Erwin, I know what he=s trying to accomplish here but certainly that doesn=t help the situation with the driveway easement between lots #1 and #2. It doesn=t relieve that whatsoever.@
Bill Moyer -AOr the grade.@
Rocky Hyder -AThat=s correct.@
Chairman Hawkins -AOr the paving of it.@
Rocky Hyder -AThat=s correct. The pavement helps to a certain extent but not - not on the side roads where they=re taken off, nor would it help on Adam=s Ridge Way, I think is the name of it, because of the cul de sac there is where we=re going to have a serious problem and depending on where the driveway access would come off of that road also, the steepness.@
Don Ward -ARocky, would a cul de sac on this driveway, would that help the situation between lot one and two?@
Rocky Hyder -AThe easement between one and two? Um, a cul de sac between one and two could allow for turning around, it=s still not going to get them back out of there though, Commissioner Ward. They=re still going to have to go back up the hill and turn around and come back down.@
Don Ward -AEspecially on a 10 wheeler.@
Chairman Hawkins -AAre you talking about two and three, to get on up to two and three?@
Rocky Hyder -AThat=s correct. The driveway easement between one and two. To put a cul de sac at the end of that driveway easement would - would help to some extent but it certainly is not going to help or change the fact that they can=t turn and come back down.@
Don Ward -AAnd it=d have to be a slanted driveway.@
Rocky Hyder -AThat=s right. It=s as much the way the angle of that comes into the road as it is the steepness, all of those things together just won=t allow you to make that turn with a larger vehicle.@
Angela Beeker -AMr. Chairman, it might be helpful in the Board=s deliberation if you would look at the application and remember at the beginning I told you all the hurdles - or the things that have to be shown, are outlined in that and if - if the Board would be willing to take each one of those and kinda discuss them - to see if you feel like that they=ve been met and what you=re kinda basing that on, it might help you - you know you work the matter out in your mind and then also give direction to us as we would try and interpret what your intent is.@
Chairman Hawkins -AOK, I think the area that you=re referring to is, as I recall the three conclusions that you need to reach for a variance. The first one of those is that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance.@
Angela Beeker -AYes sir.@
Chairman Hawkins -AThat=s one of the - one of the things that you need to find. Again I guess just as I look at that - you know certainly there is some - there is some difficulties but as far as actually being able to make the road grade that=s physically possible from the testimony that we got from Mr. Hill.@
Don ward -AJust financially.@
Chairman Hawkins -AWell, unfortunately it doesn=t refer to the financial aspect of it. It just says can you do it. That=s one of the things that I think that we have to think of.@
Marilyn Gordon -AWell, I think there=s another aspect besides the financial on meeting that road grade and that would be the impact on the land of the bank cutting that would be needed to do - to accomplish that.@
Don Ward -AErosion problem?@
Marilyn Gordon -AYeh, I think - I think we have to be aware that in the topography that we have, particularly in the Green River area, if - that you can cause more a scar on the land if you - I think that has to be a part of the consideration.@
Chairman Hawkins -AWell, certainly if you - if you cut it down another twenty foot.@
Marilyn Gordon -AYou=re going to scar the land pretty bad.@
Chairman Hawkins -AYou=re going to have a twenty foot escarpment there. It=s the only way you can do that.@
Marilyn Gordon -ASo you=re going to have the@
Chairman Hawkins -AEconomically, I mean, you could go back and with enough money you could make the whole thing flat up there but that=s one of the - I think one of the aspects, the practical difficulties or unnecessary hardships that you consider.@
Bill Moyer -ABut I think there is another fact there and I think its unfortunate to Ms. Beddingfield and David Hill=s tried the best he can but unfortunately the road was cut in wrong to start off with and if the property was reconfigured it would cost additional money but it=s very very clear that if a developer goes ahead and cuts in roads without a plan, they are doing it at their own risk and that=s always been the law and this property should=ve been laid out in a different fashion and then you may lose a lot or so, I don=t deny that. But you can=t always lay out a lot to get the full nine and you will create some of these slopes if you don=t. And I think you=d have to show that this lot could not be reconfigured and developed to satisfy number one - I don=t think that can be shown based on what we have been presented to us.@
Chairman Hawkins -ARenee, do you have any comments on the - on number one?@
Renee Kumor -AOn number one.@ She acknowledged she did not.
Don ward -AI couldn=t make that opinion without looking at it.@
Marilyn Gordon -AI=m sorry, I=m - let me think this through. Since the road is already there, you=re not going to be able to reconfigure the layout of the road. The road is where it=s at. So you=re going to have to work with the road that=s there.@
Bill Moyer -AThat=s not necessarily true.@
Marilyn Gordon -AAren=t you? Well, what are you going to do with it? Where you=ve already got big cuts?@
Bill Moyer -AWell, you regrade and put the road at a different place.@
Marilyn Gordon -ABut you=re still going to have the old road there.@
Bill Moyer -AUm, maybe, maybe not.@
Marilyn Gordon -AYeh.@
Bill Moyer -AI think its a far better option than having twenty, thirty, forty foot banks and trying to level that whole road down.@
Chairman Hawkins -AI don=t think there has been - I don=t think there has been very much, at least on the part of Ms. Beddingfield, I don=t think they=ve looked very much at any reconfiguration other than what they have here now so, you know, how - how that might plan out, I don=t know. It would be a matter of I guess just having to go back and look into it but I think Karen indicated that the subdivision was initiated even under the old subdivision ordinance without any - any scrutiny from the Planning Department, is that right Karen? I mean the roads apparently were already cut in there before they came up and said we want to do a subdivision.@
Karen Smith -AAs far as I know. I don=t know if they had any prior contact with the office or not. We=ve had a few Land Development Administrators changing over the last couple of years so - the first actual contact I=m aware of is when the application came in.@
Chairman Hawkins -AThat=s the first contact you had of@
Karen Smith -AThat I=m aware of, yes.@
Chairman Hawkins -AAnd as far as records in your office, that=s the first application you had.@
Karen Smith -AYes.@
Chairman Hawkins -AWhich basically came in and said we=ve got - we=ve got this plan here and approve it - they already had the roads started.@
Karen Smith -AThat=s correct.@
Chairman Hawkins -AWhich I think goes back to Bill=s point of somebody just started building up there or at least making the roads - I think she indicated March of >98 they had started already on that and then - what in June of this year came for the actual@
Karen Smith -AFirst week of June, um huh.@
Chairman Hawkins -AActual permit.@
Angela Beeker -AMr. Chairman, it could be helpful to hold the matter open and have your county engineer come in and render an opinion as to whether reconfiguration would be possible and what the impacts would be so that you could get in some expert opinion from somebody who would be qualified to give that to you. And then as far as a site visit - if the Board wanted to do a site visit at this point, since you=re in the hearing, you would have to do that as a Board, you could not go out now and individually gather in information on your own - anything - that would have to be as the Board - and you can do that. You could you know put the parties and yourselves and a member of the press so its an open meeting in the van and do that. And we have done that in the past. But those are two suggestions that I would have if individual Board members are desirous of going to visit it - that=s how I=d recommend you handle that and then on the other question you were discussing it would be appropriate to bring in your county engineer.
Chairman Hawkins -AYeh, if we went down there and walked. Let me ask the Board this - would you like to hold the discussion over for a later date, we can hold the meeting open till mid-month. We can get some different opinions on reconfiguring >cause Marilyn I think you and Bill both have had some questions about how that might play out and particularly you can look at you know how can you utilize the land or could you utilize the land.@
Bill Moyer -AWell, I have - I have a big concern about doing that and I=ll state it - I think that you have a purchaser here that would like to buy the land - this has been going on for a period of time - we=re just going to extend this period of time and I for one - when you read the other two conditions that you have to meet to get a variance, cannot meet it as far as I=m concerned with this application. And the longer we drag it out and I wish somebody would have said something very early on - you know please try to figure this >cause you just don=t meet the conditions to get a variance. That would have been my advice to them. But unfortunately they decided to go ahead - but that the variance is in harmony with the purpose of this ordinance - I could never say that. And that in granting the variance the public safety and welfare have been assured - I could never possibly say that with letters from Rocky and the other safety people saying this is a significant safety situation so I as a Board member - heaven knows what potential liability the county would get from making such a decision - which I think is something else to be explored. But I think from my standpoint I would encourage them to try to work this out so they can have the number of lots, if they don=t want to go to three, maybe reconfigure the roads in a way where they can reduce the grade in excess of 18% to a minimum and to show this is the very very best we can do. To come in and say we were dealt this card and we=re stuck with this road and we=re stuck with 24% grades - to me just does not rise to level of what you need for a variance under these circumstances where public safety and welfare is very much involved.@
Renee Kumor -ABased on what Bill is saying with regard to roads - is it possible to hold the hearing open and ask Mr. Hill to do what you=ve suggested that Gary do? To come back with a different - some different options.@
Angela Beeker -ARecognizing that Ms. Beddingfield or somebody - or I guess the county would incur some costs in having him do that - yes, you could certainly do that if you wanted to do that. As long as you=re satisfied that yes he=s qualified to do that - you could do that.@
Renee Kumor -AWell, and I understand what you=re saying about making her incur a cost but if this variance doesn=t pass she may incur that cost anyway.@
Chairman Hawkins -AWell, the question I guess I need to pose to the Board right now is you know - looking at the other two requirements that you have to meet - Bill stated his opinion - do you want to proceed on with rendering a decision this afternoon or do you want to look at some other options?@
Don Ward -AI=d like to see another option, myself, Mr. Chair and see if we can work with this group to try to grant some kind of a variance on paper without knowing the site and not knowing where its at - its easily accessed between lot #5 and #6 and make access to #1 as a private drive and eliminate the whole situation. But not knowing the terrain other than what it looks like on paper - you know that=s a very - that=s an option to me but I=d like to see another option put before us.@
Bill Moyer -AI think you=ve got to talk to the county attorney >cause you have an application filed for a variance and the application has asked for certain action and without her agreement or amendment or something I don=t think its appropriate for this Board to say we=re going to change the nature of your application.@
Chairman Hawkins -AWell, I don=t think we=re going to change the nature of the application but I think what the Board is saying is that - you know one of the things that they look at is whether or not you=re able to make reasonable use of your land and I think that=s what - I think that=s what Don is talking to a little bit and perhaps Marilyn. Now - you know - and I think your point Bill is that the Board is not going to say Ms. Beddingfield go down and bring us up another plan. That=s going to be up to her - if they decide to go that way.@
Bill Moyer -AAbsolutely@
Chairman Hawkins -AAnd I don=t know you know if that=s something that she wants to consider or not. But I think the Board has some serious reservations about you know meeting all three of the requirements and particularly the public safety aspect of which the County Engineer and the County Fire Marshal have some serious reservations even with the variances that are indicated from the Planning Board.
And so that I think is kinda where - where that would end up and you know if its the pleasure of the Board I can ask Ms. Beddingfield if she would like to consider that on her own and if that not be the case then we won=t have that option - we=ll have to consider what we=ve got.@
Don Ward -AThat=s it - I mean I can understand where Mr. Moyer comes from and I can relate to it easy - I mean if you look at the health and safety and we have on several subdivisions that we cannot approve this. But I=m agreeing - I - we ought to give them every option that we can before we make that final vote.@
Chairman Hawkins -AWell, I guess to follow that argument up - if - if you made a vote not to grant the variance, you=d have to look at that if you=re gonna - if you=re gonna do the - or however you plan to use the land. You=d have to go back and look at it in that vein anyway.@
Renee Kumor -AWell, would that be a cleaner way to deal with it?@
Angela Beeker -AThe Board needs to determine whether the standards in the ordinance have been met based on what you=ve heard and that=s really what=s up for your decision this evening. Once you make a decision, then you might open your discussion to other matters but the matter before the Board is - Has the variance been granted - I meant has the applicant met the burden of proof to grant the variance and I think we need to take a tape break - I apologize, I=ve been signaled by Ms. Coulson over there that we=ve got about 5 minutes before we need to change tape.@
Chairman Hawkins -AOK, we=ll be - we=ll either make the decision or take a break in 5 minutes.@
Renee Kumor -AMr. Chairman, I have to agree with Mr. Moyer and you know that in the past I have argued with regard to the quality of roads going into subdivisions and that becomes the - the artery for the life of the subdivision and for the next century it would be the artery for the life of the subdivision and if we don=t work at making it right the first time, subsequent residents or subsequent emergencies will make us not look as though we were interested in the quality of life of the subdivision. And I don=t think we see - I think we see that there may be some other options that would be more practical and less onerous to the landscape and that the variance - to give them a variance at this time doesn=t go along with the spirit of what we=ve worked on in creating safe subdivisions and that=s the opinion that I have.@
Chairman Hawkins -AMarilyn, with these things in mind and looking at the problem at hand, realizing that there may be some other options as far as utilizing the property up there and from what you=ve looked at can you - do you feel like you can meet all three of those items that=s listed or - which I guess we have to do to grant the variance anyway.@
Marilyn Gordon -AUm, this is a tough one. I really - I understand what Bill is saying in that we should rule on what=s before us and I believe that=s really what we came here tonight to do unless there is something out there that we just don=t know, that we need to know. And I=m not sure that it would be beneficial just to go and look at the property and to drag it out. I think we need to make a decision so that the people who are applying can - can make their decisions one way or the other. I think they=ve been hanging for quite a while over this. I have very mixed feelings about drawing hard lines on some of these requirements and I think that is the purpose of a variance - is to allow for some judgement in situations that come up and when I look at areas of our county that - and I can certainly relate to what Mr. Erwin said in wanting to stay in the neighborhood where he grew up - community where he grew up and finding that there is no place available for him. That is certainly an area of the county that has not developed and there would be very few lots available in that community for the younger residents. So I think we do have to take - make some consideration for that. In a perfect world all roads would be accessible by every kind of vehicle that needs to get in but the world isn=t perfect so - there are many many roads and driveways in Henderson County that will not accommodate ten wheel fire trucks and - so I don=t think that just holding to a line that says that every road that is built has to accommodate ten wheel fire trucks is necessarily realistic - it might be in the eastern part of the state but it=s certainly not in western north carolina and I guess I=m rambling on but those are some of the things that are really troubling me with this.@
Chairman Hawkins -AYou knew I just got 5 minutes left. Well, I guess we better take a short break and rewind our film and then we=ll be back.@
Chairman Hawkins -AMarilyn you were - I think you were looking at the three conclusions that you needed to draw all three of them. Were you finished with your deliberations as far as@
Marilyn Gordon -AYes, yes@
Chairman Hawkins -AOK, Don, did you have some thoughts on those - I think you gotta find all three of these you know and whereas you might - you might you know look at one you still got - any one of them can preclude your granting the variance.@
Don Ward -AI can find one out of the three that was easy to accept but I could not accept all three of them and grant the variance right now. After looking at the plan I see the possibility to realign the subdivision to make it apply to our ordinance and also I see a way with the subdivision to make it happen without it even going before and making it a subdivision so. That=s my two main concerns on the part of the variance that you know - I don=t think every possibility has been looked at of making it happen.@
Chairman Hawkins -ARenee, do you have any other thoughts?@
Renee Kumor -ANo@
Chairman Hawkins -AOK. It appears that from the evidence that we=ve been presented and this would be my thoughts on it - that we really don=t meet the conditions for all three of these and therefore I=d make the motion that the variance not be granted and that we direct staff to bring back findings of fact to support that. Any discussions on that motion. All those in favor say aye. Opposed?@
There was an unanimousAaye@ and no nays.
Chairman Hawkins -AOK, staff if you would take that direction and I believe it would be appropriate to close the hearing at this time.@
Renee Kumor -AMr. Chairman, I make the motion that we close the quasi-judicial hearing on the request for a variance of the subdivision ordinance.@
Chairman Hawkins -AAll those in favor of that motion say aye.@ There was again an unanimous Aaye@. AThere being no other business, the meeting is adjourned.@
Bill Moyer -AJust one comment - I don=t think this - Mr. Hill was very very knowledgeable in this area and I know Ms. Beddingfield has been through so much she=s probably an expert now too but I think we ought to direct staff to the extent possible to explore the options Mr. Ward was mentioning to see - >cause I think there are a number of ways where we could help the person that would like to buy the lot and to configure this and work around it so we don=t have the - so they can accomplish some of the things they want to accomplish and to the extent that staff can be made available I think we ought to try to do that.@
Chairman Hawkins -AI think staff would be more than willing to work with the developer and Rodney down there to address the issue and hope that you can find an equitable resolution for that and I think you can. Any other business before the Board? The meeting=s adjourned.@
Elizabeth W. Corn, Clerk Grady Hawkins, Chairman