STATE OF NORTH CAROLINA                                            BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                       NOVEMBER 1, 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 at 100 North King Street, Hendersonville, North Carolina.


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: Finance Director J. Carey McLelland, Staff Attorney Jennifer O. Jackson, Public Information Officer Chris S. Coulson, Planning Director Karen C. Smith, and Planners Chris Timberlake and Jake Gilmer.



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



Commissioner Moyer led the Pledge of Allegiance to the American Flag.



David Nicholson gave the invocation.



Commissioner Moyer requested that the first two items under Staff Reports be added to the consent agenda.  They were A-Records Retention and Disposition Schedule for the Sheriff=s Office and B- Pawnbroker=s License Renewal for Etowah Pawnbrokers, Inc.


Commissioner Ward asked that item AB@ be pulled from the consent agenda and placed as item AA@ under Staff Reports. Workforce Investment Act - Youth Council - he felt that it should be made public that the Board is protecting the taxpayer=s dollars here and make it public that the Board has some excellent people representing the county in this process.


Commissioner Moyer asked that one item be added as #2 under Pending Issues - Discussion of the Property Addressing project.


Angela Beeker requested that the Board delete closed session item #4.


It was the consensus of the Board to approve the above changes to the agenda.



Chairman Hawkins made the motion to approve the consent agenda as amended.  All voted in favor and the motion carried.  The CONSENT AGENDA included the following:

Tax Collector=s Report

Terry F. Lyda, Tax Collector, provided the Tax Collector=s Report as of October 25, 1999.  Darlene Burgess, Deputy Tax Collector, provided the AStatus Report regarding Delinquent Taxes for years 1990-1998".


Release of State Technical Assistance Funds to the Land-of-Sky Regional Council

The Board was presented with a proposed Resolution to release State Technical Assistance funds to the Land-of-Sky Regional Council.  The State appropriates a maximum of $55,000 annually to every regional council in the form of Technical Assistance funds.  The appropriation is divided among its member local governments according to population.  Each local government must consent to the release of its share before the Regional Council can access those funds.


Henderson County was asked to release its share of the $55,000, or $15,067.03, to Land-of-Sky.  If the Board elects not to release the funds, they will revert to the general fund of the State of North Carolina.  The funds must be used by Land-of-Sky Regional Council to assist the local governments in grant applications, economic development, community development, support of local industrial development activities, and other activities as deemed appropriate by the local governments.


Referral of Proposed Amendments to Special Use Permit #99-02, Creekside Residential

Open Space (R-O) Development to the Planning Board

An application had been submitted by Mr. Maxie Small to amend special use permit #99-02, which the Board of Commissioners granted in August for a Residential Open Space (R-O) Development called Creekside.  Creekside is located in the County=s R-20 zoning district and a small portion of Hendersonville=s Extra-Territorial Jurisdiction.  An application to amend a special use permit must be submitted to the Board of Commissioners, which shall refer it to the Planning Board for review and recommendation prior to a public hearing.


The R-O development is located off NC Highway 191 (Haywood Road) between Long John Mountain Estates and Carriage Park.  The applicant is proposing to amend the special use permit by adding 2.02 acres to the development and an additional 7 lots.  In doing so, a portion of the road and some of the lots will be reconfigured.  The purpose of the R-O Development section (section 200-35 of the Henderson County Code) is to preserve open space.  Approximately 30 percent of the acreage would be preserved as open space. 


It would be appropriate for the Board to refer the application to the Planning Board for review and recommendation at this time.


Henderson County Public Schools Financial Report - September 1999

The Public Schools Financial Report for September of 1999 was provided for the Board=s review.


Henderson County Financial Report - September 1999

The County Financial Report for September of 1999 was provided for the Board=s review.



The Sheriff=s Office has received a revised Records Retention and Disposition Schedule which was prepared by the North Carolina Department of Cultural Resources, Division of Archives and History, and applies specifically to County Sheriff=s Offices.  Upon the recommendation of the Sheriff=s Staff Attorney, this Schedule has been reviewed and approved by the Sheriff and is now forwarded to the Board of Commissioners for approval.


Section 121-5(b) of the North Carolina General Statutes requires approval of the Records Retention and Disposition Schedule by the Board of Commissioners and the entry of such approval into the  Board=s minutes.  The Schedule does not apply to the Sheriff=s Office until the Board has indicated its approval.  The Sheriff requested such approval at this meeting.



Bruce Gosnell, who operates Etowah Pawnbrokers, Inc. has filed an application to continue operating a pawnshop at the Etowah Shopping Center in Henderson County.


Mr. Gosnell first applied for a Pawnbroker=s License in 1990 and has renewed his application/petition every year since.  The most current license expired on September 30, 1999.


A complete renewal application has been submitted and presented for the Board=s review.  The only item that Mr. Gosnell submitted that was not presented to the Board was his financial statement of capital assets.  If the Board wishes to review this financial statement it would be appropriate for the Board to go into closed session pursuant to NCGS 143-318.11(a)(1).


The Staff Attorney has reviewed the application/petition and the attachments and believes that everything is in order.  Staff recommended that the Board consider renewing the Pawnbroker=s License for a term of October 1, 1999 through September 30, 2000.



Notification of Vacancies

The Board was notified of the following vacancies which will appear under ANominations@ on the next agenda:


1.                  Apple Country Greenways Steering Committee - new committee

2.                  Transportation Advisory Committee - new committee

3.                  Henderson County Juvenile Crime Prevention Council - 1 vac.

Due to resignation (person under the age of 21).


Commissioner Kumor asked that item #3 above be added as item #8 under Nominations as she had a nomination for this vacancy.  Chairman Hawkins made the motion to make this change to the agenda.  All voted in favor and the motion carried.

There was some discussion regarding appointments to the Greenways Committee.  It was requested that the Chairman write to each of the municipalities and ask them to advise us when they approve the interlocal agreement and to advise us who their nominees to the committee are.  It was further suggested that the Chairman also ask for the municipalities= appointments to the Transportation Advisory Committee.



Chairman Hawkins reminded the Board of the following vacancies and opened the floor to nominations:

1.     Hendersonville City Zoning Board of Adjustment - 1 vac.

Applicant must live in the City ETJ.  The vacancy is for an alternate position. There were no nominations at this time so this item was rolled to the next meeting.


2.                  Nursing/Adult Care Home Community Advisory Committee - 5 vac.

#5, #9, and #14 cannot be appointed at this time.  Persons have been nominated for the three positions and by the mid-month meeting the appointments can be made.


#16 and #21 are not designated positions and could be appointed without wait but we currently have no appointment applications of interested persons for this committee. There were no nominations at this time so this item was rolled to the next meeting.


Commissioner Kumor - remarks

Commissioner Kumor reminded the Board that several years ago she and Angela Beeker developed a program on what it requires to serve on a Board and developed the Boards and Committees handbook.  The handbook includes the statutory designation as well as the purpose of each Board/Committee and where and when they meet.  She suggested that a short tape be produced that could be run on channel #56 on cable either prior to our meetings or at some other times.  This could be a 10-15 minute discussion on what it means to serve on a Board, the goals the Board of Commissioners have, the issues of liability, and then possibly highlight a Board at each meeting that has vacancies.


Chairman Hawkins asked the County Manager and staff to investigate this and report back to the Board.


3.                  Travel & Tourism Committee - name Chairman

The Board made their four appointments to T & T at the last meeting.  They are currently waiting for the Chamber of Commerce and the City of Hendersonville to make their appointments before this Board appoints the Chairman. This item was rolled to the next meeting.


4.                  Henderson County Hospital Corporation Board of Directors - 3 vac.

At the last Commissioners= Meeting four persons were nominated to fill these three vacancies, they were:    Dr. Albers, Howard Carl, Dr. Shuffstall, and Charles Waters.


The Clerk was asked to poll the Board. The results were:

Dr. Albers                   -           5 votes

Howard Carl               -           5 votes

Dr. Shuffstall               -           4 votes

Charles Waters           -           1 vote


Therefore, the appointees to the Hospital Corporation Board of Directors were Dr. Albers, Howard Carl and Dr. Shuffstall.


5.                  Henderson County Zoning Board of Adjustment - 1 vac.

This term expires 12/31/99 and the applicant must be from the Bearwallow area of the County. Dale Caldwell is willing to serve as the alternate from Bearwallow even though he does not wish to continue to serve as the regular member from Bearwallow.  Mr. Clouse is the current alternate and he is willing to be appointed as the regular member.


Commissioner Kumor made the motion to appoint James Clouse as the Bearwallow representative to the Henderson County Zoning Board of Adjustment and Dale Caldwell as the alternate from the Bearwallow area.  All voted in favor and the motion carried.


6.                  Laurel Park Board of Adjustment - 1 vac.

There is one county vacancy.  Applicant must live in the Laurel Park ETJ.  The current term expires 12/31/99.  Mr. Farrington is the current alternate from the ETJ and he is willing to be appointed and serve as the regular member from the ETJ. 


Commissioner Kumor made the motion to appoint Jeremiah Farrington to the Laurel Park Board of Adjustment as a regular member.  All voted in favor and the motion carried.  This leaves one vacancy as an alternate from the ETJ.


7.                  Downtown Hendersonville, Inc. - 1 vac.

The term expired 11/1/99.  The Clerk was asked to notify Annette Owens to ask if she is willing to be reappointed to this position. The Clerk will also request an updated roster of this board for the Commissioners= information.


8.     Henderson County Juvenile Crime Prevention Council - 1 vac.

Commissioner Kumor nominated Andrew Schultz to the position that must be filled with a person under the age of 21.  Chairman Hawkins made the motion to suspend the rules and appoint Mr. Schultz.  All voted in favor and the motion carried.


Workforce Investment Act - Youth Council

The Workforce Investment Act requires the formation of a Youth Council to oversee the funding of youth employment programs.  The appointment of the members of this Council are made by the Chief Elected Official in each of the Counties. The membership of the Council must be members of the Workforce Development Board or other eligible organizations.

Mr. Nicholson suggested the following four nominees to the Youth Council.  The Chief Elected Official must make the appointments:


Jeffrey S. Lily

Child Care Director/College Student


Martha G. Enevold, Juvenile Court Counselor

Office of Juvenile Justice


Arthur Marcello, Director of JTPA Program

Western Carolina Community Action, Inc.


Ervin W. Bazzle, Attorney

Bazzle, Carr & Gasperson, P.A.

Chairman of Henderson County Public School Board of Education


Chairman Hawkins made the motion that the Board allow the Chairman to appoint these four persons to the Youth Council as the Chief Elected Official of Henderson County.



An Application for Subdivision Improvement Guarantee dated October 21, 1999 had been received as submitted by Paul Foster, agent for James B. Anthony, the owner/developer of Cliffs Valley North.  By way of this application, the developer requested permission to post a subdivision improvement guarantee to cover the cost of the road and drainage improvements for Phase III.  Cliffs Valley North, Phase III, formerly known as Panther Mountain, is a major subdivision located off  US 25 South (Greenville Highway).  The Planning Board approved the development plan at its August 30, 1999 meeting.


Pursuant to Section 170-38 of the Henderson County Code, a Developer may, in lieu of completing all of the requirements within the subdivision (i.e. completion of the road and drainage improvements) prior to Final Plat approval, post a performance guarantee to secure the County=s interest in seeing that satisfactory construction of the incomplete improvements are accomplished.  One type of permitted guarantee is an irrevocable letter of credit.


The Developer proposes to submit an Irrevocable Letter of Credit for the purpose of providing the improvement guarantee for the road and drainage improvements in Cliffs Valley North, Phase III in the amount of $224,027.50.  This amount includes the amount listed on the cost quote plus the required additional amount of 25%.  A Performance Guarantee Agreement had been drafted and presented for the Board=s review.  The Staff Attorney reviewed the original Letter of Credit and Statement and certified them as to form.


Planning Staff had reviewed the request and recommended approval in accordance with Section 170-38 of the Henderson County Code.  The effect of the approval of this improvement guaranty is to allow Planning Staff to approve the Final Plat for Phase III of Cliffs Valley North subdivision prior to completion of the improvements.


Paul Foster was present and answered some questions regarding the slope and grade of the roads.

Chris Timberlake also answered some questions from the Board. 


Commissioner Kumor made the motion to approve the application for improvement guaranty.  All voted in favor and the motion carried. 



This is an effort to keep the lines of communication open.  It gives the Chairman an opportunity to bring the Board up to date on issues that occur between meetings.  It will also be the time he will ask for direction so as to develop a public position on current and upcoming topics.


This is also an opportunity for Commissioners to report on related committee work and assignments.


The topics to discuss during this meeting are as follows:


1. Detention Center - Bids and Financing

David Nicholson informed the Board that staff opened the bids on October 19 for the Detention Center. The low bids were as follows:

General -                     Beam                           $6,989,600

Electrical -                   Hayes & Lunsford            849,300

Plumbing -                   Bolton                              643,400

Mechanical -                Price and Price                 509,000

Total                                                    $8,991,300


This is $1,038,063 over the latest estimate and about one half million dollars over budget.


Staff met with the architects to discuss ways to bring the contracts into line with the budget. The initial results of these meetings and discussions created a savings of over $515,000 which included some value engineering. Mr. Nicholson felt that the savings could be more when the final numbers are run.


There was much discussion. 


Mr. Nicholson plans to deliver the draft contracts to the Board of Commissioners on November 2 as well as the third draft of the official statement.  He plans to deliver the final packet on construction and financing on the morning of November 5.  He suggested the Board set a special called meeting next Monday or Tuesday to approve these documents.    He then reviewed the budget revenues and costs for this project.

                                                    Detention Center Project Budget


Project Revenues:       

Certificates of Participation                             $9,100,000

County Contribution                                            371,624*

Net Project Revenues                                      $9,471,624


Project Costs:

Construction Contracts                                   $8,476,300

Financing Costs                                                    200,000

A & E Cost                                                           795,324

Total Project Costs                                          $9,471,624


Other County Costs:

Contingencies (4%)                                         $   339,052

Fixtures, Furniture, & Equipment                        270,160

Total Other Costs                                           $   609,212*



* Available County Funds                                           $   980,836


2. Letter from Mayor Sitnik - Chairman Hawkins

Chairman Hawkins informed the Board of a letter he received from the Mayor of Asheville today in response to a letter he sent to her inquiring about the racetrack.  Mayor Sitnik=s letter stated that representatives from a group desiring to maintain a racing presence in the City of Asheville had asked the City for a listing of property owned in the vicinity of the Asheville Airport.  This is public record and was provided.  Beyond providing the information requested, the City Council has not authorized any further action with regard to the Asheville Motor Speedway. 


3. Property Addressing - add-on by Commissioner Moyer

Commissioner Moyer raised some questions regarding the property addressing project and how it is planned to be implemented.  There was some confusion and it was the consensus of the Board to have an additional workshop on this issue and have Robert Baird present to answer Board questions. The Board would like to have a written plan with dates.


There was much discussion.



1. Timothy Lyda - Mr. Lyda spoke on the subject of zoning in general.  He requested that the Board put the issue of zoning on a ballot for a vote by the citizenry of Henderson County.


Chairman Hawkins explained to Mr. Lyda that counties in the State of North Carolina operate under Dillon=s Law which means that County Boards of Commissioners are only empowered to do things that the Legislature in Raleigh allows them to do.  One of the things allowed is put items on referendums.  There is a list of items that can be put on a referendum and zoning is not one of them.  Buncombe County has zoning on the ballot because at the eleventh hour of the last General Assembly their Representatives were able to get a Special Act enacted that enabled them to put that on a referendum.; however, it is a non-binding referendum.



Commissioner Kumor made the motion for the Board to go into closed session as allowed pursuant to NCGS 143-318.11 for the following reasons:


1.(a)(1)            To prevent disclosure of information that is privileged or confidential pursuant to

the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statues as allowed by and pursuant to NCGS 53B-3 concerning the confidentiality of financial records.


2.(a)(1)            To prevent disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes, in accordance with and pursuant to NCGS 143-318.10(e) and Article II of Chapter 11 of the Henderson County Code.


3.(a)(3)            To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between attorney and the public body, which privilege is hereby acknowledged.  To consult with an attorney employed or retained by the public body in order to consider and give instructions to the attorney with respect to the following claims:


Henderson County v. Crosby (File No.99-CVS-527)

Henderson County v. Jackson (File No. 99-CVS-526)


All voted in favor and the motion carried.


Commissioner Gordon made the motion for the Board to go out of Closed Session.



Commissioner Kumor made the motion to approve the September 28 closed session minutes.  All voted in favor and the motion carried.


PUBLIC HEARING - Old Spartanburg Road Rezoning - Application R-02-99

Chairman Hawkins made the motion for the Board to go into Public Hearing.  All voted in favor and the motion carried.


Eugene and Epatia Albertson had submitted an application requesting that the County rezone two parcels of land, which they own, as well as three parcels, owned by others, from R-10 High-Density Residential to C-2 Neighborhood Commercial.  The five parcels of land are located at the intersection of Mount Airy Street and Old Spartanburg Road and they collectively occupy 2.28 acres of land.


At its August 31, 1999 meeting, the Planning Board first considered the application and directed the Special Issues Subcommittee to further study the application and to consider such issues as land use compatibility and alternative zoning districts.  At its September 15, 1999 meeting, the Special Issues Subcommittee met and discussed various factors related to the Old Spartanburg Road rezoning application and voted to recommend to the full Planning Board that the study area remain in the R-10 High-Density Residential district.  At its September 28, 1999 meeting, the Planning Board discussed the recommendations of the Subcommittee and voted (5 to 1) to send the Board of Commissioners an unfavorable recommendation on rezoning the Old Spartanburg Road study area from R-10 to C-2.


In accordance with Section 200.76 of the Henderson County Zoning Ordinance and State law, a notice of the public hearing was published in the October 15 and October 22, 1999 editions of the Times-News.  On October 15, 1999 the Planning Department mailed notices of the hearing to all property owners within the study area as well as the owners of adjacent or nearby properties.  On October 20, 1999, the Planning Department posted two signs advertising the public hearing in the study area. 


Jake Gilmer discussed the request with the Board and showed the site on maps. 


Public Input

1. Epatia Albertson - Ms. Albertson distributed some photographs of surrounding properties showing their use.  She stated that the neighborhood is changing and they have no way to sell their property as a residential property.  Due to the commercial uses on that side of Old Spartanburg Road, they would have a better chance at selling their property for a commercial use. Ms. Albertson explained that she has no intention at this time of selling her property but rather is trying to look to the future.


2. Terrie Garren - Ms. Garren stated that she has lived at this location for more than 20 years.  She had intentions of selling her property fairly recently but found that her resale property value was so low, this changed her mind.  She stated that the neighborhood has changed and she has been negatively impacted by all the businesses around her.


Commissioner Kumor made the motion for the Board to go out of Public Hearing.  All voted in favor and the motion carried.


Chairman Hawkins made the motion to approve the zoning request.  All voted in favor and the motion carried.




PUBLIC HEARING - Rezoning Request by Gary Sanders - Application R-03-99

Chairman Hawkins made the motion for the Board to go into Public Hearing.  All voted in favor and the motion carried.


Mr. Gary M. Sanders had submitted an application requesting that the County rezone approximately 30 acres of his property located off Green Mountain Road, near Fruitland, from an RM-2 Rural Mixed Use 2 District to an unzoned status.  At its September 28, 1999 meeting, the Planning Board voted (6 to 0) to send the Board of Commissioners an unfavorable recommendation on the request to rezone the Sanders property from RM-2 to an unzoned status.  In 1998 Mr. Sanders applied for a zoning change for the present subject property but he withdrew the application at the public hearing. 


Jake Gilmer informed the Board that this property is in the Bearwallow area of the county and showed the subject property on a map.


In accordance with Section 200.76 of the Henderson County Zoning Ordinance and State law, a notice of the public hearing was published in the October 15 and October 22, 1999 editions of the  Times-News.  On October 15, 1999 the Planning Department mailed notices of the hearing to all property owners within the study area as well as the owners of adjacent or nearby properties.  On October 21, 1999, the Planning Department posted two signs advertising the public hearing in the study area.


Jake Gilmer asked if the Board had any questions of him.


Don Ward - AYeh, I would like to ask you something.  It=s under staff comments - the first item - said it would be setting a precedence that would compromise the integrity of all county zoning districts.  Can you explain that comment to me, Jake, or whoever wrote it.@


Jake Gilmer - AI wrote that with Karen=s approval and what we meant by saying that was that if you unzone this property, it really is kind of a policy decision to some extent.  I think you could look back in the history of how this district was formed and I guess you could maybe come up with a justification for taking it out, since it was a voluntary effort of the community - but when you unzone a piece of property, you have to come up with some type of possibly a policy as to what properties can you or will you rezone or unzone and what does that mean for future zoning efforts, does that compromise other zoning districts, can people come in the Hooper=s Creek district or in Mountain Home - can they come in and also ask to be unzoned if they=re along the border of the zoning district - to an unzoned area - so it really opens up a policy issue about future applications of this - similar to this.@


Commissioner Kumor - AI think you also pointed out what this would do to unzone if we=re in the process of zoning the total county to some degree with our safety net.@


Jake Gilmer - AYes, I mean it=s certainly a consideration - I mean if you - if it is unzoned then you may zone it with say Asafety net@ and that is a consideration.@


Commissioner Kumor - AWhat I - one of the interesting things I thought you might have been referring was - even if we would unzone now a designation and we then theoretically zone the county with a safety net, can someone come in and ask to be unzoned even from that?@


Jake Gilmer - AThat=s right and it does further extend itself to that - in that way since you are moving towards county-wide zoning possibly.  The idea of unzoning property - how do you address that, when the entire county is zoned.  But we just put those in just to - just to think of some ideas of what  this - the implications of unzoning a property may be.@


Chairman Hawkins - AI guess the question I would ponder is - you know - its really a question are you changing zoning, not so much what you=re changing to and we change zoning all the time.  We just changed one.  And so there=s that aspect of the question and then there=s another aspect of  you=re changing it to an area that=s not zoned or - but it=s still a zoning change which has always been a perogative of the zoning ordinance as well as the Board of Commissioners so that - I just - its a thought I have on that - certainly you - we change zoning all the time without necessarily looking at - you=re looking at what you=re changing it to but the philosophy of being able to change is inherent in the zoning regulation itself.@


Jake Gilmer - AThat=s right.@


Commissioner Kumor - AThe other issue that Jake pointed out in his introduction and I don=t recall if Don was here or if I=m the only Commissioner that=s still left - had to do with this was not initiated anyplace else but in the neighborhood and it was a group of citizens who wanted to protect the integrity of where they live based on the fact that high density was something they thought would be inappropriate for their neighborhood because of lack of infrastructure and it was all done with the understanding that this was something that the community wanted, not something that was pushed from the top down and I think historically in my memory other than the long machinations with East Flat Rock zoning.  This was one of the bigger units of property that came as a real grass roots movement to ask for a designation.@


Commissioner Ward - AWell, I came in right on the tail end of it, it was already happened before I come in >cause I didn=t have any input >cause they would have still been trying to zone that area out there if I had a lot of input on it >cause there=s a lot of things about the RM=s I do not like.  The R - 40 regulation, basically you=re zoning it R-40 but what it does - it all stems - that zoning classification because there was a trailer park coming to that area.  They wanted to tell another neighbor that you cannot build a trailer park in there >cause we=re going to zone it that way and that=s the way it stopped.  And the man had vested rights and built his trailer park anyway and he=s only got two trailers in it so the neighborhood won out but if I recall right because I attended some of those meetings, a lot of the border people that at the first configuration of the zone, they let them come out of the zoning since they was on the border.  There was four or five if I recall that was inside the zoning area, lots deep in the zone and they had to stay even though they didn=t want to be zoned.  I think - you know - with our views on safety net zoning that=s coming up and we=re gonna zone - try to zone the whole county after public hearings and everything - I feel favorable to let Mr. Sanders get unzoned because of what we=ve done with the Board - the previous Board set a precedence then to let the border people opt out of their zoning regulations.@


Commissioner Kumor - AAnd I think you are correct@


Commissioner Moyer - AMr. Chairman, I think we should hear from the other people that have to speak before we start making decisions as to which way we want to go.  I think that=s premature until we=ve heard from all the public and the other comments that are to offer.@


Chairman Hawkins - AWe=re certainly going to hear from those.  I think Don=s comment was back to the presentation that Jake had made and I don=t know, we=ll probably come back to that in a minute.  Mrs. Corn, do we have anybody else signed up?@


Elizabeth Corn - AYes sir, we have one.  Gary Sanders.@


Gary Sanders - Mr. Sanders handed copies of his statement to the Clerk for distribution.  AThere should be a copy there for each of the Commissioners and anybody else, I think there=s seven copies. This is in a letter form.  I=ll try to read it as much as I can.  I sorta get perturbed every time this issue comes up because I have lost in the deal.  But, I=ll do the best I can.  To the Henderson County Board of Commissioners.  Last year I wrote a letter to this Commission telling the reasons why I sought rezoning of my property located in the Fruitland area of the county.  At the meeting we withdrew our request to rezone hoping to give more time for this property to sell under the present RM-2 zoning.  That was a courtesy to the county.  By the way, we wanted to see if it would sell because we felt possibly there were customers out there that would buy it under the RM-2 zoning.  It has now been a year and we=re renewing our effort to rezone.  May I repeat to the Commissioners some of the comments from my previous letter.  During September of 1993, I received a letter from the Henderson County Board of Commissioners stating that a public hearing was to held to consider a new zoning district.  Prior to this letter, I had no knowledge of any attempt to zone the property in the Bearwallow area.  I had not been contacted by the petitioners in the community nor had I been contacted by the members of the County Planning Board.  Due to a fellow employee being disabled, I was required to work from 3:00 p.m. till 11:00 p.m. and was not able to attend the hearing on September 27, that was the year 1993 by the way, to oppose zoning of my property.  The next letter that I received from the Commissioners was to notify me that the petition to zone this area had indeed been approved.  Last year, the decision was made to sell this property.  We had several inquiries but once it was heard that the restrictions the RM-2 zoning placed on the property, all interest was lost.  At this time we sought to have the zoning changed back to an unzoned status.  Because of lack of time I asked my broker if he would check into the procedure to have the land unzoned.  Acting in my stead, he asked the lady at the Planning Board about having my land unzoned.  Her reply and this is according to him - her reply was that once property was zoned that it was virtually impossible to have it unzoned.  Her recommendation was that that RM-1 would be easier to get and would be less restrictive.  We considered this and decided we would try this option but it failed during the meetings with the Planning Board.  During these meetings we were told that the petitioners during the initial bid to zone this area were suppose to contact all the property owners about their intentions to apply for zoning.  I was never contacted by them and this is what makes me angry about the whole situation.  I was also told that I should have received notice from the Planning  Board of hearings that were held on zoning of this area.  I never received a notice or any other communication from the Planning Board or anyone from the County telling me of any meetings.  My first knowledge was the letter from the Commissioners stating their intentions to consider zoning the area that included by property.  For some reason I was not given the same opportunity as others in the community in the decision that included my property.  All I ask of this Commission is to do what it feels is fair.  I know you=ve got legal obligations but there is a certain amount of fairness in government or there should be, in my opinion.  All I want is to be able to sell at a fair and reasonable price.  I=m not asking anything else.  Or to be able to use this property for a fair and reasonable use.  I do not want to subdivide this property.  I don=t want to cut it up into lots and sell it off or I don=t want to cut it up into lots to maintain it myself in lots.  I want to keep it as one parcel, either to sell or whatever which I could have done under the unzoned status.  I=ll read that last sentence over again.  All I want to do is to be able to sell at a fair and reasonable price or to be able to use this property for a fair and reasonable use.  I feel this is not too much to ask.  Thank you for your time and consideration.@


Chairman Hawkins - AThank you, Mr. Sanders.  Any questions for Mr. Sanders?  Mr. Sanders, I had  I guess one that I would - I would just comment on - you indicate that - that you felt you weren=t given the same opportunity as others in the community in the decision that included your property but on up in the letter you did indicate that in September you=d received a letter from the Board of County Commissioners, did you make - were you able to call the County on the phone or to send them a letter or@


Mr. Sanders - AI did not send them a letter, I should have but I was unable to attend because there was an emergency - a man was disabled at work.  I was not able to.@


Chairman Hawkins - AYeh, I understand that.@


Mr. Sanders - AI know that I had a one shot deal but what I=m saying is the whole community had several - I say the whole community - there=s been one or two told me that they had no knowledge of it either.  In particular, I=ll use Mr. Joe Hensley=s name.  I don=t know - he told me he had no fore knowledge of this thing but I was told by the Planning Board that there was a citizen=s committee to zone this thing, that they were suppose to contact all the property owners.  I was not contacted.  Why was I - I don=t think this was a discrimination thing - it was either oversight or something but I was never contacted.  The Planning Board never contacted me.  The only - the only letter I got from the Planning Board was from - with your letterhead from the Commissioners - County Commissioners and it was from the Planning Board I assume, that it was going to go up for consideration I believe the next week.  Well the man came either with pneumonia or a back injury and I=ll have to ask him which because I=ve covered for him twice long term.  But I could not come to that meeting, I was intending to come and - and state my opposition to it but I did not and that=s the reason I did not.  But what I=m saying is for five million years or so according to some experts God left it unzoned and why all of a sudden we=ve got to have - you know - we=ve got to have it zoned is beyond me.  I prefer it to be unzoned.  The land right next to me is unzoned.  On the west side is unzoned.  Somebody at the Planning Board made a comment - who told you you couldn=t have more than three dwellings on 30 acres, you can subdivide.  I don=t want to subdivide it.  What if I want to build a residence and three or four rental - summer cottages there - I have to subdivide my land.  And you know when you subdivide anything, automatically from a financial standpoint, the county comes in and zip, zip, zip, the smaller the parcel the higher acreage - the price per acre. Now that=s a fact.  >Cause I=ve got a real estate license and I know how it works.@


Chairman Hawkins - AYou have a real estate license?@


Mr. Sanders - AYes sir, I do.@


Chairman Hawkins - AWhat would you consider a fair and reasonable use and price as indicated in your last paragraph?@


Mr. Sanders - ASir, I put it on the market for $179,000, thirty acres of land.  I have on that a $50,000 building and I put most of the labor in myself, that=s the price that I gave the Federal Government, that doesn=t include my labor.  There are two trailer spaces, one good trailer, one needs to be haulded off to the junkyard, now I=ll admit that.  There=s waterlines all across the property, there=s electricity to the property, there are phone lines to the property.  So basically, all your utilities are there.  I=m asking $179,000 for it.  I dropped the price this year to $159,000 for it.  My broker said if it was unzoned he could very easily sell it for - I had an inquiry at $179,000 that was ready money but because it was zoned RM-2 they wouldn=t buy it.  Now what their intentions - I=ve been asked this by the Planning Board - was there a mobile home park going in.  I do not know what the man=s intentions were but I know that he wouldn=t buy it for RM-2.@


Chairman Hawkins - AThank you.@


Mr. Sanders - ABut it has financially hurt me and - and if I came into your home and started taking stuff out of your home and it was valuable, I=d be carted off as a thief.  I=m not calling this Commission a thief but it has hurt me financially and you can understand why I=m bitter about the whole thing.@


Chairman Hawkins - AAnybody else or anyone have any questions of Mr. Sanders?  Thank you.  Mrs. Corn, do we have anyone else signed up?@


Elizabeth Corn - ANo sir, that=s all.@


Chairman Hawkins - AOK, I make a motion that we go out of Public Hearing.  All those in favor of that motion, say aye.@

Unanimous Aye.


Chairman Hawkins - AMarilyn, do you have any discussion on this?@


Commissioner Gordon - AI recall during the zoning that took place in Hoopers Creek, that there was considerable amount of adjustment of boundaries at the - at the twelfth hour - midnight hour - before the area was defined and that change of boundary lines was based on whether or not the people - property owners in question wanted their property to be zoned and I remember at the time I questioned the lack of natural boundaries for the zoning designation - that it was just based on really very arbitrary considerations.  I was not present when the discussions took place on the Bearwallow zoning, I didn=t follow all of that but I would imagine that there=s probably a similar situation with that one.  I really - to get right down to it, I can=t see that changing the boundary is a - should be considered a precedent that whether or not it=s the right thing to do, we don=t do.  I think if we just look at the rezoning  we just approved there was thinking that you had to stop things somewhere so stop it with this whether or not it was appropriate to do and I just don=t take that track.  I think we do have to look at what is the fair and right thing to do with this particular piece of property and I don=t know what - that there is considerable benefit to anyone with leaving it the way it is.@


Chairman Hawkins - AThank you.  Bill, do you have thoughts?@


Chairman Moyer - AWell, I would definitely support leaving it as it is and support the Planning Board=s recommendation. I think a lot of work and planning - if Mr. Sander=s wasn=t notified when the Planning Board did this, there was months and months of discussion and publicity to this and as Marilyn said people had a chance to opt out.  If we are going to try to have integrity in the zoning and let somebody come in and say I can get a better price if it=s unzoned, then zoning doesn=t mean anything and you might as well just scrap the whole thing.  I think this is entirely different than the one on the Spartanburg Highway, people came in and showed that the nature of change in the community and what had happened around them and the commercial development around them made it more appropriate for that use to be changed to C-2 or C-4 and made a compelling case for this.  This is not a compelling case that there is a better use for this property at all.  It=s a compelling  case that I can get more money for it if you unzone it and adversely affect - possibly adversely affect my neighbors and I don=t think unzoning should be done on that basis under any circumstances.@


Chairman Hawkins - AThank you.  Renee@


Commissioner Kumor - AWell, I also - I agree with what Bill is saying - that there was - there=s been six years has passed and there was a lot of emotional activity going on at the time of the zoning.  Don is correct that at the time of the zoning, for those who requested it, depending on their location, being on the fringes - the Board did selectively say those on the edges could be unzoned - would be taken out of the proposal but here as we look at the issue this many more years into the future, with all the neighbors around having made a pledge to one another that they would keep a certain standard of development among themselves - to have one parcel opt out and get all the advantages of keeping growth contained and keeping the quality of the neighborhood intact, getting all those advantages, they then put all their neighbors at risk to have to accept whatever would go into an unzoned piece of property and I really do think the issues that Jake raises are very important.  We have to think long term about what does this mean for other zoned areas in the community and what does it mean to the future of  zoning our community and taking more proactive advantage of the land use options that  we have.  And I think to start pulling pieces of property out starts to suggest that we will have a piece of swiss cheese instead of an integral process for our county to go through as we progress  to safety net zoning.@


Chairman Hawkins - ADon, do you have any comments?@


Commissioner Ward - AWell, I tell you what.  You get in your car or your trucks and you can drive up right now and go by Keith Moss=s and Morris Edney=s and the Roger=s and you couldn=t tell which side of the road was zoned or which parcel was zoned or which was unzoned or anything.  It=s just good open country land.  I think we=ve - this Board especially has took precedence of setting  ordinances in place to protect the quality of life in the rural settings with our manufactured home park ordinance.  We=re working hard on the safety net zoning and the zoning classification changes.  I=d be in favor to changing this ordinance and - I mean changing this to an unzoned area just to let and show the community that we=re willing to work with them.  I think our major resentment to zoning is in the Edneyville area because we do not listen to the common working people.  Mr. Lyda was just here and our comment - blue collar people seem like they get pushed aside. You go with R-40, me and David a year ago or two year ago has had people come to us wanting to do things with their property and to come to find out I didn=t know we was in a zoned area.  And you know this is six years afterwards.  And you know me and David went back and got the ordinance down and we sat and read it and we called the man and said well you cannot do this with your property and its happening more and more again and I think this is why we=re looking at the whole zoning classification and I don=t think it would affect that neighborhood at all to unzone that area.  If it was on the inside, I would say there would be no way that I=d change it >cause you do affect everybody involved but being on the outside edge, I don=t think its - to do it now would be any different than doing it at the twelfth - at the midnight hour that they did it before.  My personal opinion.@


Chairman Hawkins - AThank you.  We=re going to take about a 5 minute break and then we=ll be back, actually it=s a TV break.@


Chairman Hawkins - AI=d like to call the meeting back to order.  Was there any other comments, Don, did you have time to finish your comments?@


Commissioner Ward - AYes sir, thank the Board for listening.@


Chairman Hawkins - AOK. Well, the request poses several interesting questions and I guess as I look at it, the first question that - and I started addressing a minute ago is - you know - as far as the perogative of the Board to readdress changing in zoning, whether it be to unzone or not zone, I think needs to - certainly needs to remain an integral part of our -  our land use plan and that extention of it of course being in zoning. Commissioner Moyer makes a good point as far as considerations for zoning either changes or initiation is certainly not necessarily predicated on resale value or what you=re going to use the land for.  It=s in a consideration that doesn=t consider those factors when you look at it.  Commissioner Kumor made a point of the kind of thing is looking like a piece of swiss cheese.  If you look at the Bearwallow, it=s really out there by itself anyway.  I don=t think there is  any other zoning in any other very close proximity to it.  Karen, I was going to ask if you had a map that really showed its situation - its already a very small portion of the county that=s zoned to the northeast section without a whole lot of other things being zoned around it.  I think that would be the blue in the upper right hand corner.  So, its kind off an isolated area to begin with as far as being zoned and in fact I think that certainly the area that=s - I guess that would be called kind of a light light gray, certainly not the dark blue - is still all unzoned area in the county, is that not correct, Karen?  So, its kind of a little isolated area out there.  I think most of the Board members are familiar with the history of the zoning that occurred out there.  I certainly am because I was on the Zoning Board of Adjustments when - when the discussion and some of the zoning parameters were made.  So, I kind of look at it in that context. Is if the Board chooses to redraw the line on the periphery, it is certainly no different than what we=ve considered in the Hoopers Creek area.  I don=t think it negates our - our efforts to have compatible land use that=s in conjunction with the land use plan - certainly as I pointed out that area is already most of it unzoned and we are well underway to making safety net zoning which is going to cover the whole county in hopefully a very short amount of time anyway.  So, I wouldn=t feel uncomfortable at all with redrawing that boundary to exclude this piece of land since you have a property owner out there that=s very interested in not having that portion of his property in a zoned area, not that it may not be zoned in safety net zoning in the very near future but those are just - just some of the considerations that I have looking at it.  So, Marilyn, do you have@


Commissioner Gordon - ACan I make a - just a couple more - other comments?  Don touched on something that I think does need to be pointed out - at the time this property was zoned there was quite a bit of discussion about manufactured home parks and there was no manufactured home park ordinance in place. There is now an ordinance in place that covers all unzoned areas of the county and I think it is a good ordinance that does offer some fair guidelines for what can be done on any piece of property and the other thing I would like to comment on is I think we should be very careful in characterizing requests for changes in zoning or to be removed from zoning classifications as being something that is entirely based on dollars and cents.  I think there is some much deeper issues that go to zoning and land use regulation and I think we just need to be very aware of those.  I think  one of the things that has bothered a lot of people is the finality that seems to be associated with zoning and zoning designations and I think Chairman Hawkins is very right in pointing out that the ability to change is essential and fundamental to any land use regulation.@


Commissioner Kumor - AI don=t think though at this change that we=ve given any consideration to  the neighbors and I think I always go back to my understanding of a zoning - is that it=s a pledge neighbors make to themselves which I think is a clear distinction of what happened in Bearwallow - the majority of the property owners there came together and promised one another that this was the level of development they wanted to see and I think we - we=ve kind of ignored those wishes and  the attitude that was apparent back in 1993.@

Commissioner Moyer - AI think the - you=ve got to look at the record and what are we going to set forth as a reason for the rezoning.  The only things put forth have been that I can get more money for it or maybe I wasn=t given adequate notice.  And six years later, we=re going to let everybody in the whole county come in and say - on that basis - as Renee said without considering the effect on the neighbors, without considering the impact of the other zoning areas, to say well if all of a sudden six years or ten years later you say I can get more money or maybe I didn=t get enough notice, I=ll come in and we=ll rezone without any further reasons, that=s a heck of a precedent that we=re going to have to live with and apply on this Board and certainly one I=m never going to be comfortable doing >cause I don=t think its a fair standard to the rest of the people in the community and as I said before its entirely different than the situation on the Spartanburg Highway and all the others that we have applied rezoning, many of which I have supported.@


Chairman Hawkins - ADon, do you have any other follow up comments?@


Commissioner Ward - ANo sir.  I would, I=ll put it to the test at first.  I=ll make the motion to approve the request to rezoning this Sander=s property to an unzoned area.@


Chairman Hawkins - AMotion is on the floor, is there any other discussion?  All those in favor of the motion, say aye.@


The vote was as follows:          Aye -    Chairman Hawkins

Commissioner Ward

Commissioner Gordon

Nay -    Commissioner Kumor

Commissioner Moyer

The motion carried three to two.


Commissioner Kumor - AI wonder how long it will take everybody else in Bearwallow to start running in and saying they want to be unzoned.@


Commissioner Gordon - AI think that if they do, then we should realize that there will be a reason that they ask for it.@


Commissioner Moyer - AYeh, there=s a reason.  The way this has been handled.@


Commissioner Kumor - AThere will be people all - all little parcels that we=ll end up with  - losing the integrity of the neighborhood that the community out there said they wanted.@


Mr. Sanders - AMr. Chair, is it too late for me to comment?@


Chairman Hawkins - AWell, the Public Hearing is over and the vote has been taken.  But if you=ve got a comment, we=ll listen to it.@


Mr. Sanders - AOK.  To Mr. Moyer, I=d like to say I appreciate that >cause he=s sat on the Planning Board during some of these meetings.  I appreciate that, appreciate your stand but the fact is I was not given notice and I feel like the government - whether its county or whether its state or whether its local - needs to provide - and I=m not criticizing you sir, I=m just - the system failed someplace - not to notify me - why I was not notified by the citizen=s committee.  I do not know why I was not  notified by the Planning Board.  Now there are people here that do know my character and I=m not up here to lie or try to make a dollar but I am very perturbed with the way it was handled to start with.@


Chairman Hawkins - AOK.@


Mr. Sanders - AI=m also perturbed with the circumstances that I couldn=t attend the meeting but I=ve got a job.  I=m working class.  I=m just like the kid up here, I=m blue collar and maybe some of you up there are, I don=t know.  But I work for a living.  I=ve sweated over this land, trying to buy this land and then to say my rights have been taken away from me by the County - I should have been more responsible maybe and maybe I can - could have made a better effort in explaining to them the circumstances of why I need to be off but at the time it was an emergency at work and I needed to be there. My job depends on me keeping the machinery running.  And I=m not here to criticize anybody but that=s the reason that I was so upset about the whole situation.  I do appreciate the Commission.  The jobs they do, all of you do a wonderful job and you keep - it keeps the county going.  But this is not a personal vendetta against anybody, this is something that is mine and money as far as I=m concerned was taken out of my pocket.  I do appreciate it, thank you.@


Chairman Hawkins - AThank you, Mr. Sanders.@


Commissioner Moyer - AAnd I have nothing at you Mr. Sanders either but I think as a Commission we=ve taken a major step back in land use regulation and in controlling growth and dealing with the growth issues we=re getting in this community and again it=s nothing with disrespect to you but the policy we=ve set, I think is very very detrimental to the future of the county.@


Mr. Sanders - AI understand that, sir.@


Chairman Hawkins - AThank you. Let=s move on to important dates.@



Some of the Commissioners were going to be out of town next Monday and Tuesday and after some discussion and looking at the calendar, it was the consensus of the Board to dismiss this meeting and continue it to 10:30 a.m. tomorrow, Tuesday, November 2, 1999 for the consideration of the detention center documents.


Staff had presented two items for the Board to set dates:


1. Adopt Special Order Setting a Public Hearing on Proposed Amendment to section 200-26 of the Henderson County Zoning Ordinance to Allow Garden Nurseries as a Permitted Use in the O&I District (Application #TX-04-99).


Chairman Hawkins made the motion to set the Public Hearing for December 6, 1999 @ 7:00 p.m. by adopting a special order setting the public hearing.  The Commissioners felt there was no need to set time limits on this one.  All voted in favor and the motion carried.


2. Adopt Special Order Setting a Public Hearing on Proposed Amendments to section 200-69 and section 200-70 of the Henderson County Zoning Ordinance to Allow the Board of Adjustment to Review Certain Special Use Permits - (Application #TX-05-99).


Commissioner Kumor made the motion to set the Public Hearing for November 17 @ 11:00 a.m. by adopting the special order setting the public hearing.  All voted in favor and the motion carried.


Due to the fact that Ms. Beeker needed some additional time to work on the workshop concerning the implementation of a county legal department, it was the Board=s consensus to cancel that workshop.  The Board scheduled a workshop for the same date, November 12 @ 11:00 on the Zoning Ordinance rewrite.



Karen Smith reviewed with the Board a list of suggested objectives for the Zoning Ordinance rewrite. The objectives were based upon the discussions which occurred between the Board of Commissioners and the Planning Board at the recent joint meeting.  The objectives will be used to provide direction to the Planning Board, Staff and the Consultant in preparing a draft of the Zoning Ordinance rewrite.  The objectives will also be useful in educating the public on what the rewrite might accomplish. 


There are seven overall objectives each with a subset of objectives.  It was the consensus of the Board to review those in more detail at the scheduled workshop on November 12.


At the recent joint meeting, Staff reviewed Phase I of the Implementation Plan for the Countywide Land Use Regulation Guide with the Board.  At that time, the Board suggested that Staff bring it back to the Board for discussion, modification and adoption. 


This will also be reviewed in more detail at the up-coming workshop on November 12.



The Board had been given proposed revised economic development guidelines for review and consideration. 


Ms. Beeker reviewed the guidelines with the Board. There was much discussion  and several changes were made. 


Following discussion, Commissioner Moyer made the motion to adopt the Proposed Economic Development Incentive Guidelines as amended at this meeting.  All voted in favor and the motion carried.


There being no further business to come before the Board, the meeting was recessed to reconvene tomorrow morning at 10:30 a.m.





                                                                                                                                                              Elizabeth W. Corn, Clerk to the Board                  Grady Hawkins, Chairman