STATE OF NORTH CAROLINA                                         BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                            MARCH 23, 2000


The Henderson County Board of Commissioners met for a special called meeting at 2:00 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,  Planning Director Karen C. Smith, Public Information Officer Chris S. Coulson, Staff Attorney Jennifer O. Jackson, and those listed later in the minutes.



Chairman Hawkins called the meeting to order and welcomed those in attendance. He stated that  the purpose of this meeting was to have a workshop on the implementation of a County Legal Department.  Following that, the Board will need to go into Closed Session to discuss a personnel issue and then at approx. 3:30 the Board would hold a Quasi-Judicial Hearing concerning Carriage Park, a Planned Unit Development (PUD) in Henderson County.  He recognized Angela Beeker to make the presentation on the Legal Department.



The Board of Commissioners had previously asked for a presentation on the consolidation of county legal services.  Angela Beeker thanked the Board for taking this initiative stating that for any project to be successful, it must have support from the top.


To begin with Angela explained where we were in regards to legal services in 1998 - 1999.


C                  2 full-time attorneys:

Staff Attorney

Sheriff=s Staff Attorney


C                  2 part-time attorneys:

County Attorney

Assistant County Manager


C                  2 contract attorneys:

DSS Attorney

Health Department Attorney


A high level of service was being provided to the Board of Commissioners, County Manager, County Departments, DSS, Health Dept. and the Sheriff=s Department.  An estimated 7,320 attorney hours were provided.  At a 75% billing rate the billable hours would be 5,490.   Average attorney rate in Henderson County = $138.00 per hour.   If provided in the private sector these attorney costs would have been $757,620.  Actual costs for FY 98-99 = $317,910.  The bottom line, according to Angela Beeker, was that a high level of service was being provided with a substantial savings to the taxpayers. 


She explained that there is the potential to do even more.  The legal services could be restructured into a more organized, structured legal department that could better target its resources to create a dramatic increase in its effectiveness, efficiency, adaptability and capacity to innovate.  The desired service level would involve:

C                  Preventive Legal Services

Henderson County School for Management (educate employees)

Program to track legislative changes

Internal auditing function (compliance auditing)

C                  Improved General County Legal Services

Standardized Procurement Package

Strong Enforcement Program (Legal enforcement of all our county ordinances)

Strong Collections Program

Contract Administration Program

C                  Other New Programs and Services

Records Management, Public Records Policy


Angela explained her desired status of a newly structured county legal department would be a more organized, structured legal department that could better target its resources to create a dramatic increase in its effectiveness, efficiency, adaptability and capacity to innovate.  And this is how she  suggested that we get there:

C                  Appropriate Structure and Organization

C                  Sound Management Principles

Core Purpose and Core Values


Goals, Objectives and Strategic Initiatives

Performance Measurement

Organizational Alignment

C                  Appropriate Capital Resources

C                  Hard Work and Self Discipline


Angela showed a diagram of how she proposed the new department to function and look on paper.


She proposed that each person would have primary areas of responsibility but also proposed to do cross-training.  All would share the same support staff.  She gave an example of what the Core Purpose and Values of the Department might look like:




A The Henderson County Legal Department=s sole purpose in life is to provide the legal support services needed to enable Henderson County Government to best serve the citizenry of Henderson County.  We value competence, efficiency, responsiveness and accountability@.



ATo be the best governmental legal department in the State of North Carolina!@


Goals, Objectives and Strategic Initiatives

Goal: Prevent lawsuits before they happen.


Objective: Provide departmental training to better equip department heads and supervisors with the base level of knowledge necessary to enable them to perform their functions within legal parameters.


Strategic Initiative: Develop AHenderson County School for Management@

Strategic Initiative: Develop a Ahot-topics@ bulletin to notify departments of recent developments in their areas of responsibility.


Mrs. Beeker talked about the need for up to date technology with case management software and the need to all be networked.


How much will it cost?

Estimated Budget:

Operational Costs                   $357,075

Capital, Start-up                      $  41,477

Total for first year                $398,552

A substantial portion of these expenses will be covered through the reallocation of existing resources.


Discussion followed.



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)(6)           To consider the qualifications, competence, performance, character,

fitness, conditions of appointment, or conditions of initial employment

of an individual public officer or employee or prospective public officer

or employee; or to hear or investigate a complaint, charge, or grievance

by or against an individual public officer or employee. 


All voted in favor and the motion carried.


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


There was no action taken following Closed Session.


Chairman Hawkins called the meeting back to order.


QUASI-JUDICIAL PUBLIC HEARING to consider the Petition and Request for a Quasi-Judicial Proceeding of Carriage Park Homeowners= To Suspend or Revoke Special Use Permit SP-93-13 dated January 29, 2000.


Opening Comments

Chairman Hawkins - AA quasi-judicial public hearing is being held today to consider a petition and a request of Carriage Park Homeowners= Association to suspend or revoke Special Use Permit SP-93-13, a special use permit granted to Carriage Park Development Corporation.  The petitioner has requested that the Board exercise its authority granted by section 200-56e and 200-70a3 to terminate a special use permit, if at any time after the permit has been issued the Board finds that the conditions imposed and agreements made have not been or are not being fulfilled by the holder of the special use permit.  A quasi-judicial proceeding, much like a court proceeding, is a proceeding in which one=s individual rights are being determined.  The proceedings will be conducted under the Henderson County Board of Commissioners= Rules of Procedure for Quasi-Judicial Proceedings.  Only persons who can demonstrate that they will be affected by the outcome of the decision are allowed to participate in the proceedings.  I want to remind everyone that this proceeding will be held to consider the violations of the special use permit which have specifically been alleged by the petitioner by the petition only.  No other matters will be considered at this hearing. Both the petition and a response to the petition have been filed and both the petitioner (Carriage Park Homeowner=s Association) and the opponent (Carriage Park Development Corporation) are being represented by council today.  A motion for dismissal has been filed by council for the opponent.  We will first hear arguments regarding the merit of the motion to dismiss.  Council for each party will then be called to give a brief opening statement regarding their positions with petitioner=s council going first.  After the opening statements, council for the petitioner will be asked to present his or her case.  When the petitioner has finished presenting his or her case, council for the opponent will be asked to present his or her case.  Anyone else who has expressed a desire to be a party and who the Board has recognized as a party will then be allowed to present their evidence.  The petitioner will then be given an opportunity to offer any rebuttal evidence.  After all the evidence has been presented, both council will be asked for any closing remarks.  Petitioners= council will be allowed to choose whether he or she will go first or last.  All persons who speak and participate, including any witnesses that will be called, will be placed under oath.  All parties will be given an opportunity to ask questions of all witnesses testifying in this proceedings.  The Board will be given an opportunity to ask questions also.  After the evidence is presented, the Board will discuss the issues raised and will make a decision.  The Board=s decision must be made in writing within 45 days of the hearing.  At this time I=d like to identify the council for the petitioner and the opponent.@


AMr. Chairman, I=m Robert Dungan.  I represent the Carriage Park Homeowner=s Association, the petitioner.@


Chairman Hawkins - AAll right, thank you sir.@


AMr. Chairman, my name is Roy Michaux.  I=m a lawyer from Charlotte.  I represent the Carriage Park Company.@


Chairman Hawkins - AThank you sir.  The Board acknowledges the petitioner, Carriage Park Homeowners Association and the opponent, Carriage Park Development Corporation as parties to the proceeding.  Are there any other persons present who are not already represented by one of the councils just identified, who can demonstrate that they will be affected by the outcome of this proceeding and who wish to be party to the proceeding?   OK, seeing none, I request then that all parties to the proceeding and all witnesses, if you have witnesses to call - that they intend to call, to come forward to be sworn and request that each person sworn give their name and address to the Clerk.  Does either - either of the councils have witnesses that you plan to call?@


Roy Michaux - AYes@


Chairman Hawkins - AIf you would, ask them to come forward to be sworn.  Mr. Dungan, do you have any witnesses?@


Robert Dungan - AUh, yes sir.@


Chairman Hawkins - AAll right, if I could ask you to come forward and be sworn by the Clerk. Mrs. Corn, will you swear them in please.  Would you state your name and address for the Clerk prior to being sworn.@


The following were sworn:


1.         Harold Engleman, 310 Croyden Drive, Hendersonville, NC

2.               Jim Saur, 617 Carriage Commons Drive, Hendersonville, 28791

3.         Jack Drill, 113 Carriage Walk Lane

4.               Jack Mood, 119 Carriage Walk Lane, Hendersonville

5.         Roger Becktall, 1404 Woodsong Drive, Hendersonville

6.               Fen Small, 310 Highpoint Lane, Hendersonville

7.         Dale Hamlin, Carriage Park Development Corporation

8.         Luther Smith, Luther A. Smith & Associates, 119-B Third Ave. West


Chairman Hawkins - AThank - thank you gentlemen.@

AMay we approach you Mr. Chairman just a moment.  We have a question to ask, procedural.....

I could not make out his question - it was so low on the tape.  Evidently he was not at the microphone.


Chairman Hawkins - AI think  - I=d ask our Attorney to help me but I believe that the Board will make rulings on whether or not they=re going to accept your evidence at some point and I think the rules of evidence are pretty much as in NC State Law and Federal Law except there are some less requirement I think for the quasi-judicial proceeding than probably what you=re used to in court - if that makes any sense.  Angie, could you help me with that a little.@


Angela Beeker - AYeh, you=re not strictly bound.  Sure, sure, as long as - depends upon if there=s objection, OK.  If you want to offer something, if you don=t object, its in.  The same thing with the testimony, its fine as long as its under oath for them to get - make a statement.  If you have clarification questions you need to ask of your witness, great.  You get to cross examine and the same vice versa.  Please do make sure that your exhibits are marked for the record as we only have a tape to go by so that the minutes could accurately reflect which exhibit you=re talking about - and I think yours were.  But, if you don=t have any objection to the exhibits he=s already tendered then that=ll just need to be stated for the record and they=ll be in.@


AI would like to be heard on my motion.@


Angela Beeker - AThat=s first.@


Chairman Hawkins - AWe will do that too.  OK, does that answer your questions.  Thank you....  OK, thank you Mr. Dungan.  At this time we have a motion to dismiss and I=ll ask sir for your arguments at this time.@


Roy Michaux - AMr. Chairman, I=ll be very brief but I think this motion has merit and should be granted.  If you look at the petition, the petitioners have sought to have this permit revoked for the failure to follow the ordinances and the conditions under which the permit was issued and the specified gravamen of complaint is the failure to convey common areas.  That=s the only complaint that has been raised.  The petitioners in effect are using this as a forum to ask this Board to rewrite it=s ordinance.  The ordinance for Henderson County requires that the developer record approved plats showing streets and designated open areas as common area.  There is no requirement, under the ordinance, for a conveyance.  The special use permit also contains the same requirement that a recorded plat for each area that is opened be recorded in the office of the Register of Deeds showing the streets and common areas.  The declaration provides that the streets and common areas will be shown on recorded plats and that upon a completion of the PUD project, the common areas would be conveyed to the homeowner=s association.  There is no question but that this project has not been completed.  The petition is in fact to bar the opening of another section until the developer does something that is clearly not required under the ordinance, under the use permit, or under the declaration.  They clearly do not have a right to ask you to rewrite the ordinance.  A - a county and town board is obligated to follow its ordinance and it=s as simple as that.  There simply is no such requirement that is trying to be imposed by the petitioner in this case and I think the petition ought to be dismissed.  If the petitioner wants to go to the County Commission and ask that they rewrite  their ordinance and have public hearings conducted and all of the other procedural requirements that  - that would be imposed, then that=s certainly something that they have the right to do and that would be a county-wide ordinance that would apply to every development in Henderson County.  But the gravamen of this complaint is a very narrow issue.  It=s not that the plats have been improperly recorded or anything to do with the plats, it=s strictly a requirement that doesn=t exist and that is to actually convey the common areas.  And I think the petition ought to be dismissed.  Thank you.@


Chairman Hawkins - AThank you sir.@


Robert Dungan- AUh - Mr. Chairman and honorable Commissioners, I would address in the petition itself that we have and the standard for the motion to dismiss would be that any facts that we alleged would be looked at in our favor at this point in the proceeding and the entire purpose for an open space is that it be left open.  Within the petition there is a specific allocation that open space  that supposedly is for the benefit of the entire community thus the Association that I represent whose members are the individual owners there was invaded at Tallyho Lane on Governor=s Point.  There was no consultation with the Association when it was done, it was done unilaterally.  That would be a violation - one violation, a specific one of the use permit.  Furthermore the parties are in agreement in the petition and the answer of the petition that there are some eighty acres of open space that are not under the control of the Association as they should be at this time through ownership and simply placing something of record does not turn these open spaces into common areas under the control of the owners association.  The owners association has no standing to control whatever takes  place on those common areas and based on that specific violation and the fact that there is also in the petition clear references to the fact there is no guarantee in the declaration as is required by the special use permit, that these properties will ever be conveyed and the parties obviously disagree on the reading of that declaration but I point out to you that the declaration states that property which is everything out there can be removed - if it hasn=t been sold it can be removed from the declaration and while the association disputes as to whether Carriage Park Development Corporation is a declarant under that declaration which they inherited from a previous developer and which still makes references to 87-2 which has been rescinded retains a right to amend that declaration unilaterally until all property is sold so how can there be any guarantee that common areas will be conveyed as the opponent has stated in their answer if they retain a unilateral right to amend the declaration which is the sole guarantee out there that can be pointed to.  This - this defeats the entire  development scheme or could and for those reasons we have stated a - a claim - we have stated a claim whereby there has been violations, a specific violation but also the spirit and intent under which both 87-2 and 93-13 were issued is that common areas will be conveyed as development parcels are platted and that is simply not happening.  I ask that you deny the motion to dismiss.  Thank you.@


Chairman Hawkins - AThank you.@


Roy Michaux - ACan I respond on one point, Mr. Chairman?@

Chairman Hawkins - APlease do.@


Roy Michaux - AI don=t want to get into a lot of technical legal arguments but we have filed a brief and as you may know that - when you file a plat and you show amenities, streets, and open areas , that are designated as common areas on the plat, then you cannot change those after you started selling lots.  There is no unilateral right to change the common areas under the special use permit, your ordinance, or this declaration.  There is a right that common areas may be changed pursuant to orders of this Board.  The declaration specifically provides that common areas may be changed or altered or modified only with the permission of the Board of Commissioners and that has in fact been done in one instance.  Uh - some of you may know that they built a fire station and that fire station was built in an area that was designated as common area and that was done with the approval of this Board.  That=s the only way that could be done.  So there is no unilateral right to change the open spaces that exist in this Planned Unit Development and your ordinance simply does not require the recording of deeds for those common areas and - and uh - I don=t see how you can impose a requirement that doesn=t exist.  And that=s what this complaint is based on.  It says until such time as CPDC conveys by general warranty deed the open spaces and common areas in the approved development parcels at Carriage Park.  There simply is no such requirement.  Thank you.@


Chairman Hawkins - AOK the - uh - we=ve heard from the opponent as far as his request for dismissal - motion to dismiss.  Uh and I=d like the Board to have any discussion that they may want to have on it or any advice our Attorney may have to offer us.   Bill, do you have any comments, Marilyn, anyone?@


Commissioner Moyer - AI think we start with the Attorney here.@


Angela Beeker - AI think that there are two issues raised by the arguments that you=ve heard and the motion to dismiss.  Uh - the first one would be has a specific violation occurred with respect to Tallyho Lane?  I think that=s a factual matter - uh - that the Board would need to hear evidence on - to - in order to determine whether that alleged encroachment for Tallyho Lane - or involving Tallyho Lane is a violation.  Uh - the second issue is more a question of law and that is do you feel that the conveyance of open space is a requirement under the ordinance or the special use permit?  If you feel that it is then you would have jurisdiction to consider this matter.  If you feel that it is not a requirement then you - it would be my opinion that you wouldn=t have jurisdiction to consider the conveyance of open space question so that to me there are really two separate issues that are - have been raised.@


Chairman Hawkins - AWhen you say conveyance of the open space are you talking about via warranty deed or@


Angela Beeker - AYes, if I understand the petition, it=s your position that they should actually execute deeds to the association.  Is that correct?@


One of the Attorneys - AThat=s correct Mrs. Beeker.@

Angela Beeker - ASo is there anything in the permit or in the ordinance that requires that conveyance of open space.  I think that if you read the petition and response together I think it=s pretty clearcut that part of the open space has been conveyed and part hasn=t - I mean I don=t think there=s any dispute on that particular point; therefore, if you were to find that your permit and the ordinance do require the conveyance of open space, then I think you=d have to say that their failure to do so was a violation and you=d have to hear that and decide.  So it boils down to is it a requirement or not.  Is there anything that you read in the ordinance or in the special use permit that requires that conveyance of open space and you may wish to hear some more arguments from council as to why they feel that it does or does not.  I mean I think that they would have more specifics that they could offer to you as to why in their legal opinion it does or does not.@


Chairman Hawkins - AI guess the question that I have is - I=ve read through the special use permit and the - and the zoning ordinance also.  I can=t find the word warranty deed in any of those.  Have you run across that or would you help me find that in - in the literature.@


Robert Dungan - AI can - I can address the question of why the petition used the term warranty deed.  There is - I found - I found no reference in the ordinance nor in the special use permit to a statement of conveyance of a warranty deed.  There is a reference in the - in the ordinance to conveyance of common areas.  Of course conveyance would mean a transfer - a transfer via a deed of some kind.  The only reason and that would be my authorship of the petition - so I=ll take the blame - is that the prior conveyances of common areas - one occurring when First Citizens - after First Citizens built the clubhouse and swimming pool - the first conveyance of common area took place - uh was a parcel of about 1.9 acres and that was via general warranty deed.  The second conveyance that has occurred when Carriage Park Development - after some two years of  being asked to do it, did convey the common areas in one section called Carriage Walk - uh Cottages at Carriage Walk and there is a reason that that was done - uh that is a - there is a separate - there is a separate set of covenants for Carriage Walk which required conveyance of - of common - so called common areas and they were not marked open spaces on the plats as has been - as is the case with all these - this other 80 acres that is the subject of this hearing.@


Angela Beeker - AMr. Dungan, I think it would be helpful if you could to show the Board specifically  - uh and when I say specifically I mean in the special use permit - they have copies of the special use permit - if there are ordinance provisions that you=re relying on if you could point those out to them as well - uh so that they might refer to them so - and be pointed towards what you=re basing your opinion on.@


Robert Dungan - AOK, if I could - if I could - if I could pull them up quickly I will try to do so.  I=m basing it on the statement - the - the ordinance refers to conveyance of common areas.  The evidence that we have already given which was a supplemental uh letter uh showed that the conveyance of common areas uh prior to the taking over of this project by CPDC the full intent was to do it by parcel as they were platted.  Furthermore the special use permit and I - it might take me a couple of minutes to find it - it does state that there will be a guarantee that there will be in the covenants a guarantee that uh those common areas will uh inure to the benefit of the residents there.  There=s only one way that the association can control those common areas through this long long period of development which started back in 1987 and that is by owning them - by having standing if somebody tries to sell them or do anything to them - then they do have standing@


Angela Beeker - AIs - is your argument pretty much then a spirit and intent argument?@


Robert Dungan - AIt=s not spirit and, no it=s much more than spirit and intent because as long - the special use permit states that there will be a guarantee in the - the declaration.  There is no guarantee as long as there=s a unilateral right to amend the claim to 5CPDC.@


Angela Beeker - AOK, but - but you said that uh there was a guarantee of inurement to the benefit?@


Robert Dungan - ARight, I=ve got the ....... I=ll find@


Angela Beeker - AOK, but basically you=re saying that that therefore means that the intent of that would be to require a conveyance.@


Robert Dungan - AClear conveyance and the only way that this land can be put into trust for this association is through a conveyance to the Homeowners Association which - and I can give an example - I don=t mean to testifying that  - but it=s gonna come up later - the specific violation that we have pointed out of building a driveway and cutting a bank in open space on Tallyho Lane occurred in a section known as Governor=s Point.  Governor=s Point was one of the first sections developed - it was developed under a prior developer and that prior developer represented to the Planning Department and to this Commission that common areas would be conveyed or open spaces - however you - they=re now defined - common areas is - common areas include open spaces - would be conveyed on a parcel by parcel basis, well some seven years after Carriage Park started its development - it was conveyed the common areas on Governor=s Point from the prior developer and they were never conveyed to the Association as had been represented under 87-2 and so the whole point is this should have been done already - Carriage Park took it, violated the open space because it had never been conveyed and it=s not under the control of the association and that=s just the point.

So the clear intent is conveyance, both prior, both this one and under the title conveyance - they say putting it to record and this is where Mr. Michaux and I respectfully disagree - that putting it so on record is the same as ownership - it=s not, it=s not, there=s no control and there=s no ability to enforce the covenants on that land.@


Angela Beeker - AMr. Michaux, could you uh specifically show the Board the basis of your opinion?@


Roy Michaux - AYes, I think I can.  If you look at - first of all if you look at the documents themselves uh special use permit #93-13 was granted on October 11, 1993.  Uh in that special use permit it is specifically stated in paragraph 14 under open space that prior to or concurrent with the recordation of any development lots, town house, condominiums, or apartments, the applicant shall record or provide evidence that required open space has been placed on record - now that=s consistent with your ordinance that requires that open spaces be shown on a recorded plat.  It doesn=t say anything about that open space shall be deeded.  The uh - if you look at the articles themselves that were recorded in 1991 - these were - this is the declaration uh for Carriage Park.  It=s the amended and restated declaration for Carriage Park - uh it says specifically in there that the declaration runs with the land and is for the benefit of the property owners - it then talks about common areas in paragraph eight to the declaration - it describes what common areas are - it - it then states specifically under 19 that the property is the property in the deed from Second Western Corporation to First Development - those are the prior owners of this project.  And then it says the declarant reserves the right to: (a) add additional property to Carriage Park or remove property from Carriage Park - that just relates to the additional tracts themselves and then it says if any dedicated open space, common property, or recreation area comprising the property is changed for purposes of future development, said development must be reviewed and approved by the County of Henderson pursuant to the terms and conditions of special use permit 87-2.  It then goes on to say and there is a specific requirement for a conveyance in the declaration - in article two it says it that the various residential neighborhoods will be surrounded and interspersed with common areas under the management and control of the association.  The declarant is obligated to construct and convey amenities to the association including a clubhouse and pool and so the uh restrictions specifically say that the clubhouse and pool will be constructed and that those amenities will be conveyed and that was done.  The clubhouse and pool were constructed and it was done.  Uh - and again in paragraph six of article two it says if any dedicated open space, common property, or recreational area uh is changed then it must be reviewed and approved by the County of Henderson pursuant to the terms of the original special use permit.  Uh your ordinance and I can -  I=ve got the ordinance over there - I can specifically - give you the book and page but it specifically provides that open spaces will be shown on a recorded plat.  There is no requirement under the ordinance for the conveyance of open spaces.  The uh - to me it=s very clear that the only thing that is called for under the declaration to be conveyed immediately is the amenities consisting of the pool and clubhouse and then there=s a separate section on the sewage treatment facility in article six.  And keep in mind that once those amenities and sewer plants are conveyed to the Homeowner=s Association, they then have the obligation to keep those up.  There is no requirement anywhere in any document that - that calls for the conveyance of open spaces prior to the completion of the entire project and I humbly disagree with Mr. Dungan=s characterization that the recorded plats don=t provide the protection because the law is clear that once a street is dedicated and you sell lots on a plat that shows that street then you=re obligated to keep that street open, you can=t close it.  The same is true of open spaces and there is no allegation whatsoever that these plats don=t show the streets and open spaces and it=s just not required and I don=t believe anybody can show you uh one document that says that it is required.  It is true that you have a letter from the prior developer saying that they=re gonna convey the pool and the clubhouse, which they did do and as is required.@


Chairman Hawkins - ACould I ask you a question while you=re here?@


Roy Michaux - ASure.@


Chairman Hawkins - AAnd I=m looking at the special use permit that you made reference to which I think you have there - SP-93-13?@


Roy Michaux - AYes sir.@


Chairman Hawkins - AUh the findings of fact that the Board had in looking at that before it was enacted on October 11 - on item ten of that, it=s on page four of mine - I don=t know if I=ve got the same - it talks about the applicant as stated.@


Roy Michaux - AUm, let=s see, which - which - are we talking about the original document.@


Angela Beeker, Commissioner Kumor, and Chairman Hawkins all answered AYes.@


Roy Michaux - ALet=s see, I=ve got A-2.  Let me go back to the original.  Uh I have that.  It=s the September 27, 1993?@


Chairman Hawkins - AYes, yeh, page four then under item ten.@


Roy Michaux - AYes sir, it says the applicant has caused to be placed on record in the office of the Register of Deeds for Henderson County a plat representing 35.61 acres open space.@


Angela Beeker - AHe=s reading the letter.@


Roy Michaux - AOpen space as required to meet the land area per unit requirement of the zoning ordinance.@


Chairman Hawkins - AI=m looking at, at least on mine that=s number 11.  I=m looking at the one right above that where it says the applicant has stated that the anticipated project completion date@


Roy Michaux - AOh yes, will take seven years@


Chairman Hawkins - AIs seven years from the date of issuance of a special use permit@


Roy Michaux - ARight@


Chairman Hawkins - AWhich I would assume from being issued in October 1993 would be October of 2000?@


Roy Michaux - AThat=s right.@


Chairman Hawkins - AAnd I guess if I=m following your, your line of thought is that, that your, your client intends to make those transfers at the completion, is that@


Roy Michaux - AAt the completion of the project.  I don=t know that that language is a, is an absolute drop dead date that a project this large would be done in seven years.  It certainly says that they anticipate that it be done.  It=s a very large project, there=s no question about that. And I think it=s a nice enhancement for this community. But the fact is that there is no requirement that these open spaces be conveyed and I mean it=s just as simple and clear as it can be.  And uh, so for that reason I think that the petitioner is really trying to get you to redraw the ordinance.  I mean that=s the bottom line of what we=re trying to do here today. Thank you.@


Chairman Hawkins - AThank you sir.  Mr. Dungan you were looking up - we gave you a chance to look up an article.@


Robert Dungan - AWell I did at least, I did want to, since I was so inept the first time around, not having it in front of me.  The zoning ordinance, on page 67, under the planned unit development item, paragraph D - it is just entitled Aconveyance of open space, recreational area and communally owned facilities@  - common open space, recreational areas and communally owned facilities shall be guaranteed by our restrictive covenants describing areas their maintenance improvement running with the land and of course Mr. Michaux in reading this definition from the declaration omitted in between his reading the part that, from the first and then his second reference about dedicated open space, it states real estate may be deleted from Carriage Park and released from the declaration by the declarant upon the recording of an instrument so declaring in the office of the Register of Deeds for Henderson County after which time the property so deleted shall not thereafter be considered part of Carriage Park and shall not thereafter be subject to the terms and provisions of this declaration.  There is no guarantee hence the, the alarming concern of the association.@


Chairman Hawkins - ABut as I read this, it says guaranteed by restrictive covenants of which you have a restrictive covenants.  It doesn=t say the covenants guarantees it, it says guaranteed by covenants of which you have.@


Robert Dungan - ARight and this is the declaration of covenants, conditions and restrictions I=m reading from which says that the, the developer declarant which they claim to be, CPDC claims to be, can delete real estate from Carriage Park simply by recording such a declaration of that in the Register of Deeds office.  Now that does not mean coming before this Commission, that means walking down there and filing it in the courthouse and going home.  So, uh, I don=t think that they are in compliance with this ordinance for the reason that there is no guarantee and certainly with the about 165 homes and the right to construct 693, I , I too agree, I doubt seriously that that will be, occur between now and October of 2000. Thank you.@


Angela Beeker - AMr. Chairman@


Roy Michaux - ACould I make one comment please?@


Chairman Hawkins - ACertainly.@


Roy Michaux - AThe part that you just heard applies not to dedicated open spaces, it applies to land that can be included or excluded from the PUD in general, before it=s ever developed.  Once a section has been included under the PUD and the plat has been recorded and the open space is shown on that plat, then it becomes a part of the PUD.  And once a lot is sold, they are obligated to maintain the streets and the open spaces that are shown on the plat.  That is the guarantee that your ordinance provides.  Mr. Dungan is trying to say that once you=ve put all of that on record, sold lots, you can then withdraw the open space.  That=s not what the document says.  It=s not, it ain=t even close to what it says.  It does say that open spaces can be revised with the approval of this Board, once they=re  dedicated and once lots have been sold.  Thank you.@


Angela Beeker - AMr. Chairman, if I could.  I would recommend that the Board take a 10 minute recess to consider everything that you=ve heard, to look for yourself at the ordinance provisions that have been pointed out and the special use permit provisions that have been pointed out to you to see if you find anything that you think, you know, requires that conveyance of open space.  I think it boils down to a plain language argument versus an interpretative argument.  I think what um, and you gentlemen can correct me if I=m wrong, I think what Carriage Park Development Corporation is saying is that there=s nothing that is plainly stating anywhere that requires the dedication of open space.  Uh, the Homeowners Associations= argument basically boils down to the language that is used really means conveyance.  In other words, does there have to be a conveyance in order to allow the homeowners out there to get the benefit of that open space.  Does the ordinance require conveyance to guarantee that benefit?  Um, the places that I=ve seen open space mentioned I=d like to point out to you.  I=m gonna run and make copies of the ordinance for you cause I don=t think that you all have a copy of the ordinance in front of you.  But if you=d write down these references, 200-33d, it=s on page 67 of what I=ll give you, d, e, and f;  4A7, its on page 69 and 4F4b4, it=s on page 70.  I=m gonna go copy those for you.  Those are the places where open space is actually mentioned in the ordinance and you=ll be able to take a look at those.  With respect to the special use permit, open space is discussed on page 5 of the conditions, paragraph 14 of the original permit, page 5 that was pointed out to you already.  Open space is also, or common areas, we=re really talking about both here, common areas are defined in the latest amendment to the special use permit on page 5, A3, amendment A3, that=s correct; on page 5 common areas are defined for you.  On page 26 there=s some discussion about review and approval of common areas.  Those are the places in the permit and the ordinance that I have found that actually discuss open space or common space.  With respect to the restrictive covenants, they become relevant, in my opinion, only if you feel like that they can be enforced by the special use permit or the ordinance.  In other words, is a violation of the restrictive covenants a violation of the permit?  If your opinion on that is no, they=re two separate things, then I don=t know that the restrictive covenants become as relevant as far as what the ordinance requires.  If you feel like a violation of the restrictive covenants would be a violation of the permit then they=re very relevant.  Does that make sense?  I=m gonna go have these pages copied for you and I=ll be right back and I recommend that you take a few minutes and I myself too to look back at these to see if you feel like that there is any requirement there for that conveyance of open space.@


Chairman Hawkins - AOK, we=ll take about a ten minute recess and Angela let me ask you if you would mark those for us so that we don=t have to go back through and find those.@

Angela Beeker - AI=d be glad to.  You have them in this, right, in the blue sheets? OK I=ll mark them for you in here.@


Chairman Hawkins - AThank you.@




Chairman Hawkins called the meeting back to order at 4:45 p.m.


Chairman Hawkins - AI=m gonna call the meeting back to order.  Thank you for your patience.  We have no short amount of items to look through up here trying to sort through some of the material we have.  I think a couple of the Board members has some questions on the material that our Staff Attorney gave us or our County Attorney rather and I think uh, Bill you had a couple of questions that you needed cleared up.@


Commissioner Moyer - AI can start.  Uh, Angie on the declaration, page 596.@


Angela Beeker - AUh hun.@


Chairman Hawkins - AThat=s 596 out of the deed book, in case you=re looking at uh, at your copy so you won=t, if you want to follow.@


Commissioner Moyer - AParagraph 19, entitled property.@


Angela Beeker - AYes.@


Commissioner Moyer - AThe last sentence which has been referred to several times@


Angela Beeker - AYes@


Commissioner Moyer - AWhat is the legal status of that sentence at this time?@


Angela Beeker - ABecause special use permit 87-2 is no longer around? Um, technically there is no special use permit 87-2 to refer to but um, I would tell you that that sentence is not as relevant as what I believe the ordinance says and that is, my interpretation of the ordinance has always been they can=t touch open space,  under the ordinance,  without coming back to you. OK, once they=ve shown it on a plan that=s been approved, under the procedures that the Board set out, then they can=t do anything with that open space until they=ve come back to you, under the permit.  So, um.@


Commissioner Moyer - AWould you show me in the permit where you. Cause that=s.@


Angela Beeker - AIf you look in A3, I think it was clarified with the third amendment to the special use permit.@

Commissioner Moyer - AWait, let me get there.@


Angela Beeker - AIn the blue sheets, the last one, A3, and you look on page 6 it starts there, talks about review and approval of common areas.  Um, then it talks about prior to the initiation of construction of any structure within common area, the applicant shall submit detailed plans of the proposed work for approval.  Failure to substantially conform shall be grounds for administrative rejection of an application for common area approval.  Um, OK, then look on page 8.  Amendments to approved common areas - it sets out the process that they have to go through in order to change the common areas and basically says new or changed use or structure - where the new or changed use or structure was contemplated by the research master plan, blah, blah, blah by the Planning Board, if it was not contemplated by the research plan or amendment thereto and primarily benefits residents of Carriage Park by the Planning Board, #3 new or changed use or structure- where the new or changed use or structure was not contemplated by the research master plan or amendment thereto and primarily benefits the general public by the Board of Commissioners as a formal amendment. #4 change in location of boundaries - where the change affects the boundaries of the development parcels causing more than 10% of the area to be added or deleted to the development parcels by the Board of Commissioners as a formal amendment. #5 change in location of boundaries - where the change affects the boundaries within the common areas only by the Planning Board.  There=s a quite elaborate process that they have to go through if they wish to change the common areas after they=ve been through the approval process.@


Chairman Hawkins - AIn other words, after they=ve been platted.@


Angela Beeker - AAfter they=ve, right. Or even after they=ve been shown on, they may not have even been recorded yet.  After their plan has been approved by the Planning Board and they wish to amend the common areas in any way by changing the use or structure or their boundaries, they=ve got to go through this process to get it approved.  It would have to be approved, either by the Planning Board or by the Board of Commissioners, depending on the change that was being requested.@


Commissioner Gordon - ASo what you=re saying then is legally the scenario we were presented where the developer could go to the courthouse and have a re, a change recorded, uh really couldn=t occur because the change could not be recorded without going through the revision process.@


Angela Beeker - AAnd I believe, my opinion is that,  case law says that once it=s been placed on record and I think some caselets would say you don=t even have to have placed it on record yet, depending on the developers actions, that they can=t revoke that except with, by agreement with the homeowners benefitting from it.  But getting back to your original question, I still believe if you want to make the intent argument, that the intent would be 87-2 or it=s successor although it doesn=t specifically state that.  I believe that would be the intent of even the language in the restrictive covenants.  The intent there is to get some sort of approval from the County before the common areas are changed in the restrictive covenants.@


Chairman Hawkins - ABill, did that answer some of your questions.@


Commissioner Moyer - AOn that one, Uh, huh.@


Chairman Hawkins - ADo you have some more.  Do you have another question at this time you want to bring up?@


Commissioner Moyer - AWell the, again on the page 5 reference, paragraph 14 - open space, that you gave us.@


Angela Beeker - AYes.@


Commissioner Moyer - AWhich is the clearest provision with respect to what the requirement is.@


Angela Beeker - AYes, I agree with that.@


Commissioner Moyer - AAnd I guess I would like to hear from Mr. Dungan again as to what his interpretation, how he is interpreting this specific provision.  In exhibit A to the.@


Chairman Hawkins - AThe original special permit 93-13, the one that was dated 27 September >93. Probably the very first one you have there on uh.@


Robert Dungan - AI=ve got the@

Chairman Hawkins - APage 5.@


Commissioner Moyer - APage 5 of the exhibit.@


Angela Beeker - APage 5 of the conditions, yes.@


Robert Dungan - AParagraph?@


Angela Beeker - AUh 14.@


Robert Dungan - AMy interpretation of placing open space on record uh is that, and I=ve got plats here which show open space, I think that in most cases they refer to them as OS 1 and OS 2, OS 1 typically being roads and OS 2 being open space.  My opinion or the way I view it and with all due respect to Mr. Michaux and Mrs. Beeker, I think that that establishes once it is placed on record a negative apurtinent easement only, for the benefit of the owners or the members of the association  if you will, which is only a negative property right if you will and I tendered in my petition, exhibit A, a case where so-called remnant parcels were not platted out originally, they were just left.  They weren=t made into lots.  When there=s original development down in Mecklenburg County and our Court of Appeals recently decided that those remnant parcels could be sold over the objection of the owners of the platted lots.  It is true that in that case there was not a specific reference to open space but the court simply found people had a negative apurtinent easement but that did not keep them from being conveyed.  And that of course is the distinction between, and also I think that anybody can go down to the courthouse and record a deed and convey to a third party without coming to this Commission as long as that 80 acres of common areas is not conveyed to the Homeowners Association.  Um, and uh that would be my interpretation of what it means to put open space on record as opposed to conveyance of the common areas via a deed be it warranty or nonwarranty.@


Commissioner Moyer - AWell I understand that and what you=re driving at but looking at this specific wording, it doesn=t say convey by deed, it says place on record.@


Robert Dungan - AIt, it, it does not say convey by deed.  The conveyance, the language conveyance by deed in fact is not, I couldn=t find that in the ordinance itself.  It just speaks of conveyance of common areas in the zoning ordinance.@


Commissioner Moyer - ADo you think this language in 14 refers to the recording of a plat?  When it says shall record or place on record.  Does that refer to@


Robert Dungan - AI, I would assume that means a plat.@


Commissioner Moyer - AOK.@


Robert Dungan - AThat with, with meets-and-bounds descriptions that you could be called out and that you could, you know, get a, a legal description from if you wanted to write it down.@


Commissioner Moyer - AAnd those plats have been so recorded?@


Robert Dungan - AYes sir.@


Commissioner Moyer - ADo you or Attorney for Carriage Park have any literature that Carriage Park has distributed that would relate to this issue and say what is, what was told to the public when, uh, with respect to this open space?@


Roy Michaux - AI can respond to that, I think the simplest thing is the recorded plats themselves. And every plat that has been recorded in Carriage Park contains designated open space.  And it is so designated on the plat.  So that goes far beyond just literature, I mean that=s a legal binding commitment that that=s what that is as the streets are shown and your Planning Department has been very careful to require that with the recording of every plat.  That goes far beyond any literature as to what we say it will be.  I mean that=s a legal binding commitment.@


Commissioner Moyer - AI know oftentimes sales literature will refer to where open space is going to be like with a golf course, it will be done at the - when it will be transferred to the Homeowners Association, that=s what I was looking for.  And many times the literature will refer to that and I was wondering whether you had anything that spoke to that issue.@

Roy Michaux - AYou correct me if I=m wrong, the only thing that I know of is the declaration that says that they would be conveyed upon the completion of the PUD and that is in the amended declaration that=s recorded in the courthouse.@


Chairman Hawkins - AI guess one of the problems I have, if you=re gonna, if you=re gonna convey it at the completion of the PUD and you thought it was maybe be done in 2000, I=m not sure why, why we=re here today.  You know if, if that=s your ultimate intention anyway.  But that=s.  I=m grabbling with that in my own mind.@


Roy Michaux - AWell the question that you all I think have to answer is what the requirement is on the developer.  That=s the key issue.@


Chairman Hawkins - AUm huh.@


Roy Michaux - AThe maps have all been recorded and they do show open space unlike the case that Mr. Dungan recited which is the C?--- Resources case where they recorded the plat and had a great big area of land off to the side that happened to be on the same plat with some lots, well they didn=t say land reserved, they didn=t say dedicated open space and they didn=t say reserved for future development, it didn=t say anything and the court held that there was nothing to restrict them from developing that property.  It is very unlike what we have here.@


Commissioner Moyer - AWould you clarify for me, does the motion to dismiss go to both the issues we have or is it just referred to the transfer of title?@


Roy Michaux - AMr. Moyer, I thought it went to both issues because the, because of the way the petition is worded.  It says that we should not be granting any further permission to develop until we convey these open spaces and then I interpreted the one incident as being, along with all these cases that are cited that I think are clearly distinguishable as to a reason as to why that should be. So, I=m not, and, and Mrs. Beeker has put a different slant on that and I certainly wouldn=t disagree with her interpretation but I, I thought that you had a, you had a basic premise, that we should not be allowed to develop anything further until the open space was conveyed which is not required.  And then there were examples as to why that ought to be and uh, and there is one example with a picture that shows a driveway that cuts across a ten foot open space area.  Uh, I guess the idea if that had been conveyed to the Homeowners Association, the builder wouldn=t have put the driveway there but I mean I thought those were examples of why they felt like these things ought to be conveyed and so I took it as one ball of wax.  That=s the way I interpreted it.@


Commissioner Moyer - ABut if the facts as alleged in that one case are correct, there would be a violation of the, and I=m not saying they are, we haven=t heard that, there would be a violation of the special use permit?@


Roy Michaux - AWell I don=t think so, I mean, that would be up to you here.  I=m not sure I know all the facts.@

Commissioner Moyer - AWell I said I don=t know the facts either but@


Roy Michaux - AFrom what I=ve seen, yeh, the little ten foot strip and there=s a driveway that crosses one corner of that, does that violate open space.  It=s still open.  People can still cross it. They still have the right to go up and down the ten foot strip.  I guess that=ll depend on your facts as to whether that=s a violation or not.@


Commissioner Moyer - AWell I hope we=re not going to argue whether you can put driveway across open space and count it.@


Robert Dungan - AYou asked me about references, the only, I, I don=t have sales literature with me and I=m not sure that anyone in, in the crowd does.  The most recent proposed amendment 4 simply contains the, uh the reference conveyance of open space as in, in the literature and then of course the statement that=s quoted in the petition a that Carriage Park puts more density on the good land and gives away the rest as open space, gives away in my interpretation would be deeding or conveying and that is a, that was filed with the latest amendment and it was entitled greetings from Carriage Park. It is not dated.  And under the development standards in that same amendment 4 which was ultimately withdrawn temporarily, there is one of the development standards, refers to conveyance of open space and I=m, I guess that I=ll sit down and we can proceed with your decision but it, based on the, Mr. Hawkins= question, it did make me remember a long time back when I was very small hearing Governor Frank Clement of Tennessee ask the question at the 1950 something Democratic Convention, I think 56, how long Lord O how long and I guess that would be our question about the conveyance of the open space because that=s all there is a reference to and there has been resounding silence as to why these developed parcels, why the open space, why a deed can=t be drawn off of those.  I volunteered to do the legal description and provide the deed to the developer, all he=d have to do is execute it then.  But that=s all we=ve been met with, either silence or negative.  Thank you.@


Chairman Hawkins - AMarilyn, did you have a question? You were@


Commissioner Gordon - AWell, I=m, I=m fumbling through all these papers here trying to find what I was looking for but I have a question someone could maybe clarify for me because I saw it, somewhere there=s a definition of open space that includes infrastructural improvements and that type of thing.  There=s a reference in the deed restrictions to the sewage treatment plant and there=s mention in I guess the documents that@


Commissioner Kumor AUh, is this the definition you=re talking about?@


Commissioner Gordon - AYeh, if someone could fill me in on whether or not the sewage treatment plant is a part of the common area and if that, what came into play when that was not conveyed to the Association?@


Commissioner Kumor - AI=m sorry Marilyn, could you repeat that question?@


Commissioner Gordon - AOK, there=s a mention that the Association would not accept conveyance of the sewage treatment facility and the sewage system.  In the definition of common areas in the ordinance it mentions infrastructure improvements as part of common areas that in a PUD or in Carriage Park but those were not conveyed to Carriage Park and I wonder what came into play with that.  It=s just a question.@


Roy Michaux - AYou go ahead@


Robert Dungan - A.... I may have to rely on Mr. Engleman who is also under oath if I get this wrong but currently the question about the sewage treatment plant - it=s not a sewage treatment plant, it=s a pump station if I=m correct and uh so there is, there is not a sewage treatment or so-called package plant or what I would call a private plant.  There is a, a sewage pump station which pumps the sewage to the Hendersonville line.  Now the Carriage Park Development Corporation has represented that that sewage treat - that sewage pump station is a temporary situation, until they build a gravitational feed line.  The Carriage Park Development Corporation and I have, don=t have a copy but I=ll mark it and tender it at the appropriate time and maybe can get a copy is a, has entered into a document of understanding with the City of Hendersonville Water and Sewer Department and also recorded a sewer line extension agreement.  So the covenants really aren=t correct when they talk about the, the sewage treatment facility.  The Carriage Park Development Corporation did attempt to, to foist off the maintenance responsibilities onto the Association of the pump station but the recorded document states that once all deficiencies are corrected and the project is acceptable to the City, the developer=s project engineer shall submit three sets of as built plans, etc. and then the City would take it over and that=s once the gravitational feed line is built and states further in that same paragraph a temporary lift station is to be installed to pump the wastewater from the proposed project into the existing gravity sewer collection system.  The owner/developer (Carriage Park Development Corporation) shall maintain ownership, operation, and maintenance of the lift station until such time as gravity sewer service can be made available.  I hope that clarifies.  I found that to be a, an inaccurate argument that you=re referring to in the memorandum in opposition to our, to our petition which was filed by Mr. Michaux.  I think that=s where you=re referring to that the Association refused the sewage treatment plant. No, there was no sewage plant.  They refused to take over the maintenance of this pump station which is proportedly a temporary situation until the gravity feed line is properly constructed and taken over by the City.@


Chairman Hawkins - ADid that answer your question, Marilyn?@


Commissioner Gordon - APartially.@


Chairman Hawkins - AKinda@


Commissioner Gordon - ASorta, sorta.@


Chairman Hawkins - AOK.@


Commissioner Moyer - AYou know based on the, the issue with the motion to dismiss and whether we have a factual issue and a possible violation of the special use permit.  I really think that we should turn down the motion to dismiss and hear the matter, the matter so that we get the facts out with respect to the other matter before we make a decision.  If these were split, I=d have a different view but since they=re, they=re merged together I think we should hear the factual presentations before we make the final decision and to do that we have to deny the motions to dismiss. And that would be my recommendation.@


Commissioner Kumor - ABased on what you=re saying, your interpretation goes more along the line of Mr. Michaux than what Ms. Beeker has told us to look at them separately.@


Commissioner Moyer - ANo@


Commissioner Kumor - AIs that what I heard you say?@

Commissioner Moyer - ANo, I said, I asked whether the motion to dismiss.  I think it=s collaborable and it=s even arguable from their Attorney that it covered both and I think we need to hear the second one so I have to, to move to deny the motion to dismiss so we can hear the second issue before making a final decision.@


Commissioner Kumor - AWell I think I kinda agree with you.@


Chairman Hawkins - AThen are you going to ask, I guess is, if we, if the Board agrees to that, that you look as a separate issue whether or not there is a requirement to convey immediately land that=s completed in addition to and/or whether or not the special use permit has been violated by the intrusion on Trolley, Trolley Road. Is that@


Commissioner Moyer - AI was gonna say, I think I=ve heard about all I can digest on the first but I haven=t heard about the second one and that, I think there is a issue and I don=t know whether, what the facts are or whether there=s a violation or whether there=s not and I think I would like to hear that.@


Angela Beeker - AYou will still have to make a substantive decision on the first issue at the close of the hearing.  You just won=t be making it at this time.@


Chairman Hawkins - AOK@


Commissioner Moyer - AAnd we won=t be making it by virtue of approving the motion to dismiss.@


Angela Beeker - ACorrect.@


Chairman Hawkins - AI understand that. Any other, any other comments or thoughts on that?  Don, have you@


Commissioner Ward - AWell I agree with Commissioner Moyer.  We have to hear all the evidence to make a true decision on the second part.  I wish we had a couple more Lawyers here so we could get two more opinions.  But we have to go with what we=ve got.@


Commissioner Moyer - AThank you Mr. Ward.  I appreciate that vote of confidence.@


Angela Beeker - AYeh, me too.@


Chairman Hawkins - AWell uh we=ll proceed then with Mr. Moyer=s motion that=s on the floor to deny the motion for dismissal and proceed on with the case and if there=s no other discussion on that, all those in favor of that motion say aye.@


In unison AAye@

Chairman Hawkins - AOpposed?@


There were none.


Chairman Hawkins - AOK. At this time then we=ll take the opening remarks from the counsel for the petitioner.@


Robert Dungan - AI think I=ve already given them.@


Chairman Hawkins - AWell I think we=ve heard most of them.@


Robert Dungan - AI think you probably have.@


Chairman Hawkins - AWe certainly heard quite a bit of your things and I guess the other portion would be that area that you felt dealt with the violations on the road.  I don=t think we=ve heard very much about that.  The Board hasn=t and whether or not that, see if we can associate that with being applicable to the, any violations of the special use permit that this Board has issued.@


Commissioner Moyer - AEven if you said them, it was so long ago we need to refresh our memory to to what you said.@


Chairman Hawkins - AIf you can remember what you said.@


Robert Dungan - AI have essentially given you the position of the Association in this exchange I believe. The parties are, don=t dispute how much common area is in question, some 80 acres.  The parties do not dispute, at least I=ve not heard any, I think that they were admitted that the areas that the Association, that what I mean areas, excuse me, the Development parcel areas that have been completely platted and whose common areas could be described for purposes of a deed, that there is no dispute in that they are Governor=s Point, Carriage Summit and Carriage West, and Carriage Walk.  The, and I would like to at least in the evidence present, show those common areas as part of our evidence.  The covenants we=ve already discussed and want to remind the Commission in it=s deliberations that the Association=s position is that there is no guarantee about these common areas, specifically with respect to how they may be deleted unilaterally or how they could be conveyed to a third part at some distant point in the future.  By my calculation it=ll take another good 10-15 years to finish the development at the current rate if then at all.  How many houses were built last year? Or how many lots sold?@


Mr. Engleman - AI can=t answer that but there were 220 homes built in eleven years.@


Robert Dungan - AOK@


Mr. Engleman - AAnd that=s less than 1/3 of their allotment.@


Robert Dungan - AThank you.  I=m sorry, I appreciate that. The, whether Carriage Park Development Corporation would do that might depend on financial circumstances.  But certainly a bankruptcy trustee or any kind of a referee that came in to liquidate a project would look at those as perhaps undeeded and property that they still owned, just exactly the way that First Citizens conveyed the common areas as part of the entire tract when Carriage Park Development came in and bought the project.  So it is happening.  It did happen that there was a conveyance of common areas between one developer or in fact the bank, after they took it back from First Federal.  There was a conveyance of common areas at that time and the Association was overlooked.  That could happen again.  Now the other concern of course is raised in this petition in addition to the representations which the owners can testify to, about the conveyance, is the one specific example of how the Association does not control these common areas and that they could not control them and enforce covenants until they own them.  Once they own them then if there is any kind of a an encroachment then they have clear standing to go into a court and say we own them.  They also under the new North Carolina Planned Community Act would have some good enforcement tools against an encroaching owner or against even an encroaching developer but they don=t have those things now.  Even though the document representation, the documents that we will put into evidence show that the intent, the stated intent of the prior developer with respect to common areas that they be conveyed as we asked at the point in time where you can get legal description.  The specific violation at Tallyho Lane occurred as I stated in Governor=s Point.  And this is the, what I will be marking as evidence and tendering was taken and will be identified, will be identified by Mr. Engleman as taking place, that was photographed about two weeks ago.  Governor=s Point common areas were conveyed from First Citizens to the current developer in 1993 and Governor=s Point was originally developed back at the very start of the project, in >87.  So this is what can happen so many years after the fact and tendered with the petition as part of exhibit 5 is a, is a small portion of the plat which shows that.@


Chairman Hawkins - AI think we have that photo as exhibit 5 already.@


Robert Dungan - AYes, that=s a different, a little bit different look.@


Chairman Hawkins - AThis one=s different than that one?@

Robert Dungan - AIt=s a little bit different than the one that=s attached.  But the, the , between lots 58 and 76 is the open space that we=re talking about ... surrounded by open space supposedly.@


Commissioner Gordon - AWill we, will we be able to see the plat?@


Robert Dungan - AYou have an excerpt of the plat in your.@


Commissioner Gordon - ABut that shows where the driveway ... thru it.@


Robert Dungan - AIt=s attached to, it=s part of exhibit 5, petitioner=s exhibit 5.@


Angela Beeker - ACan I interrupt you and ask you a question?@


Robert Dungan - ASure@


Angela Beeker - AUh is it your contention that this is a violation of the covenants or of the special use permit or of the ordinance?@


Robert Dungan - AAll three.@


Angela Beeker - AOK.  I just wanted to clarify that.@


Robert Dungan - ASpecifically it is a violation of the ordinance because the open spaces are not guaranteed.  The open spaces are not guaranteed under deed, up on page 67.@


Angela Beeker - AI understand that argument.  But the@


Robert Dungan - AAnd the second one is that the special use permit requires that the open spaces not be violated unless there is permission given and no permission is on record for this.@


Angela Beeker - AOK@


Robert Dungan - AThat will conclude my opening.  I=m sorry for the disjointed but I don=t want to keep repeating things.@


Chairman Hawkins - AOK, thank you. I think you asked the question I was curious about.@


Commissioner Moyer - ALet me, I=m just gonna take that question a little further if you will.  If, you=ve said it a number of times that the common area/open space has to be conveyed cause there=s no remedies to the Homeowners Association if it=s not done.  And what I was getting to before under both the restrictive covenants and under the most recent amendment to the special use permit, isn=t there a specific provision which would permit the people to come in, file a complaint that they=re in violation of this special use permit cause the open space has been invaded and then we could hear that under the special use permit.  Why isn=t that an adequate remedy?@


Robert Dungan - ACause that=s not a permanent remedy.  Every time you=ve got a violation.  A conveyance is a permanent remedy. It gives us standing in a court of law which we don=t have.  It gives us standing under the covenants which we don=t have and it gives us standing under the North Carolina Planned Community Act to take action and it also is an absolute assurance that we don=t have to worry about.@


Commissioner Moyer - AI understand that but when you say it=s not a permanent remedy, there is a remedy there.  You might have to come in presuming it happened again a number of times but you could come in whenever the open space was violated.@


Robert Dungan - AAre you referring to the process set out in the third amendment under the@


Commissioner Moyer - AYeh, when I read it, that=s why I asked our County Attorney the status of the definition of property and the covenants and you read that in conjunction with the latest amendment and I think the conclusion, at least her interpretation was that that would require or they would permit a filing for violation of the open space if any of these things happened.@


Robert Dungan - AMy understanding was that if we thought there was a violation this was the only way to do it, was to file a petition and maybe I don=t, didn=t understand the procedures properly.  I thought that=s what exactly the petition was all about.@


Commissioner Moyer - ABut the step you got to cover for me is how do you get from violation of the special use permit, again we haven=t heard all the facts yet to make that decision, but then saying the only remedy I have is for to force conveyance. That=s to me the step I=m having trouble with.@


Robert Dungan - AOh well let=s, that is, this is the example of what occurs, can occur and did occur to open space at Tallyho Lane and is a violation of the special use permit and the ordinance.  The other half that we have presented is that the conveyance of the open spaces should have been taking place in a sequential, in sequence as development parcels were, reached the point of where they=re platted.@


Commissioner Moyer - AI understand that other argument. OK@


Chairman Hawkins - ADo you have a comment?@


Roy Michaux - AYes sir, Mr. Chairman, I think Mr. Moyer=s hit the nail on the head frankly.  As I understand the law, the covenants give each property owner in the subdivision a right to enforce the covenants.  It is true that the Homeowners Association would not have the right to force a violation of the open space but the next door neighbor certainly would. And the covenants are for the benefits of each property owner in the subdivision and they have the right to enforce those covenants.  Now first of all you assume that it=s a violation of the open space.  I think we will all stipulate that the photograph certainly shows that a driveway crosses the corner of a ten foot open area.  Does the driveway violate that open area.  I don=t know.  Did we put it there?  No.  The lot was sold to the builder, the builder built the house, he graded the driveway.  He also, you=ll hear, cut some trees down in the back and he=s been told to replace those.  Cause they were in an open area.  But as I understand it, the individual property owners can always enforce a violation of their restrictive covenants and in Charlotte it=s done all the time and the Homeowners Association=s will actually pay the legal fees if the individual owners will file the lawsuit to enforce them.  A prime example is Myers Park.  They bring a suit probably every Monday.  The individuals bring the suit because it=s a violation of their restrictive covenant.  The Association pays the bill.  The conveyance of this property to the Homeowners Association would only address who has the right to bring the claim.  Is it the Homeowners Association or is it the individual property owners around the property that=s involved?  And I don=t think there=s any question about that.  So, but there we=ve come before you to revoke this permit because they haven=t conveyed the open space to the Homeowners Association so that he could sue for the violation. And that=s really what this is all about.@


Chairman Hawkins - AThank you.@


Roy Michaux - AYou=re being asked to revoke a permit over something that an individual could enforce and something that the developer didn=t even do.@


Chairman Hawkins - AMarilyn, do you have@


Commissioner Gordon - AWell, I was just going to.  I=m sorry I have looked at the plats and I don=t see anything on the plat that tells me where the driveway that we=re talking about is in relationship to the plat lines and that=s what I was asking about.  I had seen the plat but I don=t see a survey that shows this driveway is exactly in this position on this open space. And that=s what I would need to see.@


Roy Michaux - AWell uh, so that you=ll, so that we can make it clear.  The lot that was conveyed was the lot that was shown on the plat.@


Commissioner Gordon - AOK@


Roy Michaux - AThe builder by the photograph appears to have cut the driveway across that little ten foot corner of that ten foot open space.@


Commissioner Gordon - ABut@


Roy Michaux  - AThat open space was not conveyed to anybody.  It=s still open space.  It=s still on the plat.@


Commissioner Gordon - AYeh, I understand that.  I just wanted to see a plat, you know some markers that showed exactly what we were talking about because what=s left open may not necessarily be the open space, it=s what surveys, according to the plat, that=s the open space.  But I guess to follow along with what=s being said here I think we really are looking at two very separate issues and it=s very unfortunate that they=re tied together in this one hearing.  I think there=s two different things here that we=re looking at.@


Angela Beeker - AAt the end you@


Commissioner Gordon - AWe can=t decide them both, get one conclusion based on both of these.@


Angela Beeker - AAt the end you do decide each one separately.  At the end of the hearing you will be making separate determinations on the question of law and on this factual question.  We haven=t really heard any evidence yet.  Well those are opening statements, correct, but I do have one question  Do both parties stipulate that it was not the developer that cut this road in?@


Roy Michaux - AYou mean the driveway?@


Angela Beeker - AThe driveway.@


Robert Dungan - ANo, it was with the developer=s permission.@


Angela Beeker - AOK@


Robert Dungan - AAnd that=s, that=s attached in our exhibit 5, the letter from the owner who wrote CPC who sold this and it was open space and now they=re cutting a driveway or did cut a driveway.  The evidence would be that the developer gave the builder permission to cut the driveway across the open space.@


Angela Beeker - AOK, I think it=s time to move ahead with that.@


Chairman Hawkins - AOK, let me go back and see if the opponent=s attorney has any other remarks before we move on to get some evidence.@


Roy Michaux - AI=m sorry.@


Chairman Hawkins - ASir, do you have any other opening remarks?@


Roy Michaux - ANo sir.@


Chairman Hawkins - AAlright, let me move on then to look for your evidence and I=d ask the petitioner to, I think we=ve already got some of yours, at least some of the photographs.  Do you have any other that you want to present? Evidence.@

Robert Dungan - AYes, I would like to present evidence and also ask some questions of Mr. Engleman. And that I think would cover, you know based on what we=ve done so far, I think that would be a fair representation of what our evidence is and what our position is.  We=ve come a lot farther than I thought we would so I can cut my, I can cut my, I can cut my presentation short is what I=m saying in terms of getting this in. I would first tender into evidence the exhibits one through five and would ask that exhibit six, seven, and eight in addition that were included and attached to the petition of Carriage Park Homeowners Association be included.  Six, seven, and eight are copies of North Carolina cases which were cited and would tender those into evidence at this time.@


Chairman Hawkins - AOK, is there any objection to that from the Board?@


Anonymous - ASix, seven, and eight?@


Robert Dungan - ANo, one through five, exhibits one through five and then the case ......@


Angela Beeker - AI want to make sure that the Board understands that point that you just made to Mr. Michaux, OK?@


Robert Dungan - AOK, in other words that I want to make as part of the record, I=m tendering into evidence:

exhibit one, which is the amended and restated declaration for Carriage Park

exhibit two, are the, is the deed from First Citizens to the Homeowners Association

for the clubhouse

exhibit three, is a copy of the deed from Carriage Park Development Corporation to

the Association with respect to open spaces/common areas at the Cottages of

Carriage Walk

exhibit four are copies of, from the research master plan with the common areas that

I=ve colored in... otherwise illustrative of the areas in question

exhibit five is a photograph along with correspondence and a, a copy of the open space

area on Tallyho Lane, located in the Governor=s Point development parcel

and those I would tender into evidence.@


Angela Beeker - AOK@


Roy Michaux - AI assume that Mr. Thomas is here?@


Angela Beeker - AAnd that was my question.@


Roy Michaux - AIs Mr. Thomas here?  Well, I do object to the letter.  It=s double hearsay.  It contains statements apparently that the builder made to Mr. Thomas ... and we don=t know anything about his statements so I would object to the Thomas letter.  Other than that I have no objections.@


Chairman Hawkins - AAnd what was the exhibit number on that?@

Commissioner Moyer - AFive@


Roy Michaux - AIt=s the letter that=s attached to exhibit five from Mr. & Mrs. Alvin Thomas.@


Anonymous - AI have it.@


Chairman Hawkins - AMrs. Beeker I know that we have a little different rules as far as admissibility of evidence.  Do you have any recommendation for@


Angela Beeker - AYes sir, I was looking for, let=s see, where it specifically addresses it in your rules.  What case law would say is that any finding of fact you make has to be based on competent evidence.  While the rules of evidence do not apply, the evidence still must be competent and I believe that the appellant courts would hold that hearsay evidence is not competent so my advice would be to not admit the letters.@


Chairman Hawkins - ADisallow number five.@


Angela Beeker - AYes sir, it=s your discretion.  The letter.  I=m sorry, the letter.  It=s your discretion as to whether you wish to or not.  The question is would you consider that competent and credible evidence that would, you know, tend to prove or disprove a fact.@


Chairman Hawkins - AAny discussion from the Board on that?@


Commissioner Moyer - AWell, I=d err on the side of letting it in and let each of us judge what it=s worth as evidence.@


Angela Beeker - AYou can do that.@


Commissioner Moyer - ANot exclude it and get into an argument later whether it=s a proper exclusion.@


Commissioner Ward - AI agree with Mr. Moyer.@


Angela Beeker - AOK, and then you can determine what weight you wish to give it.@


Commissioner Moyer - ARight.@


Angela Beeker - AMrs. Corn if you will just note his objection for the record.@


Chairman Hawkins - AAnd we=ll allow that to be entered into evidence.@


Robert Dungan - AAnd then I ask that exhibit six, seven, and eight which were just copies of true cases be made part of the record but they would not be@

Angela Beeker - AThey=re not evidence, OK, they=re just for your information.@


Commissioner Ward - AReading material@


Angela Beeker - AUh huh.@


Chairman Hawkins - AOK, lets see.@


Robert Dungan - AMay I now proceed?@


Chairman Hawkins - AAnd then I think you had a witness you were going to call.@


Robert Dungan - AI=m going to call him in just a moment.@


Chairman Hawkins - AOh, OK, proceed.@


Robert Dungan - AI=m gonna proceed based on some of the evidence and I=ll give - this, I=m not sure that all the Commissioners can see me, this is part of exhibit five and was an original section, started development in 1987 and it is where the Tallyho Lane is found.  Governor=s Point I think is illustrative, the yellow indicates what is common areas.  I will come back to Governor=s Point and this of course all of these are in your, in your packet.@


Angela Beeker - AThey don=t have color versions in their packet.@


Robert Dungan - AI didn=t realize it.  They don=t have color?@


Angela Beeker - AThey=ve got it but it=s not colored.@


Robert Dungan - AIt=s not colored in?@


Angela Beeker - AHuh uh.@


Robert Dungan - AThen, all right, then I=ll, I=ll try to proceed rather than - this is Carriage Commons and see the borders in red, blue is the road Carriage Park Way and, for example areas of particular concern as we=ve discussed would be areas that can suddenly be conveyed out by any future owner as long as, it is not just a question of standing to sue, it is also a question of whether it would stop any conveyance once, which it obviously would, once it is conveyed to the Homeowners Association.@  Mr. Dungan was showing overheads of the areas as he discussed them.

AAgain see large, relatively large areas of what has been designated as open space/common areas around the borders and even areas that could eventually be turned into lots and sold to a third party at some point in the future.@


Chairman Hawkins - AMr. Dungan, can I interrupt you just a second.  That last slide, was that the most recent area that we looked at that had the problem with the@

Several were talking and it was hard to make anyone out.


Chairman Hawkins - AYes, am I right on that?@


Commissioner Kumor - AYes.@


Chairman Hawkins - AOK, I=m trying to stay in focus here, thank you.@


Robert Dungan - ANow this is Carriage, the Cottages at Carriage Walk and Carriage Falls down here. Now the subject of conveyance of the Cottages at Carriage Walk, since these are, they=re duplexes, duplex units or connected units. They=re connected units.  These open areas and they have not been colored in, they=ve been conveyed and this Carriage Walk has a separate set of covenants ... or what I would call a sub-association or a, and the declaration and covenants you all have been hearing  about would be a master set of covenants but there are also parcels of open space which have not been conveyed and which are on the border and so my clients concerns obviously is that these borders be secured through conveying.  I want to go back briefly to Governor=s Point and will call as a, I=ll leave that up there and if you=ll just, if you just for the purpose of the microphone, Mr. Engleman.  Mr. Engleman just speak into it.@


ACommissioners, I=ve got a lot of papers here to shuffle to, excuse me.  Could you please state your name for the record@


Harold Engleman - AMy name is Harold Engleman.@


Robert Dungan - AOK and Mr. Engleman, you were sworn before we started this hearing?@


Harold Engleman - AThat is correct.@


Robert Dungan - AYou don=t have to look at me just try to listen to me if you can.  If I=m not speaking loudly enough, I=ll come up there and be louder.  Can you hear me alright?@


Harold Engleman - AYes. Yes, Mr. Dungan, I can.@


Robert Dungan - AOK.  Did you have a home built in Carriage Park or did you buy a home?@


Harold Engleman - AI bought a resale in Carriage Park.@


Robert Dungan - AAlright, now when did you buy in Carriage Park?@


Harold Engleman - AIn 1994, September the 15th.@


Robert Dungan - AAnd, have you served on the Board of the Homeowners Association?@


Harold Engleman - AI have served first as a resident director when Carriage Park Development Corporation was in control of the Association and was since elected this past year as a director and  also served as Vice-President.  I am not on the Board at the present time.@


Robert Dungan - AWhen did you go off the Board?@


Harold Engleman - AI went off the Board, I believe it was March 14 at the annual meeting of the Association. I did not run for re-election.@


Robert Dungan - AOK and approximately how many residents are there at Carriage Park currently?@


Harold Engleman - AI believe there are, uh approximately 170 homes.  The number of residents I can=t tell you.@


Robert Dungan - ANow can you on this slide, I guess I=ll call it, can you point out where Tallyho Lane is? Are you able to?@


Harold Engleman - AUh, I don=t think I can from that, from that slide.@


Robert Dungan - ALet me ask you this way, are you familiar with that property?@


Harold Engleman - AI=m very familiar with that property because my home abuts other open space which this open space was suppose to connect with to form a walking trail.@


Robert Dungan - AAnd I=m gonna mark as, I already marked another one, so I=ll be out of order, I=ll mark as exhibit nine, I=m gonna mark it as petitioner=s exhibit nine.  It=s like a colored copy.  Can you look at that and tell me, and identify it.@


Harold Engleman - AYes, this picture was taken by another director, Roger Becktall. I don=t know exactly when but it was somewhat in the past two weeks.@


Robert Dungan - AWhat does that photograph depict?@


Harold Engleman - AThat photograph shows not only the cut that was made but a large portion of open space that was encroached upon up to Mr. Thomas= line.@


Robert Dungan - AAnd did you ever discuss the situation with Mr. Thomas?@


Harold Engleman - AMr. Thomas called me when he, when this excavation began.  He was very upset about it.@


Robert Dungan - AIt=s alright for you to talk about how he felt but be careful about what he said. What was your understanding of his position after you spoke with him?@


Roy Michaux - AObject@


Harold Engleman - AMy@


Roy Michaux - AI realize we=re not in a court of law but - that=s not a very good question.@


Chairman Hawkins - ACan you rephrase your question Mr. Dungan?@


Robert Dungan - AHow did you know that Mr. Thomas was upset?@


Harold Engleman - AMr. Thomas first wrote a letter to the President of the Association, Mr. Sauer, and then Mr. Thomas called me on the telephone to discuss the matter.@


Robert Dungan - AAnd how did you know he was upset? Did he tell you?@


Harold Engleman - AHe certainly did tell me that he was upset and he also@


Roy Michaux - AWell, this is clear hearsay. But you=ve already ruled that you=re gonna admit that so.  It does look like we could sorta keep it.@


Robert Dungan - AI=ll keep it to what=s reasonable.  I withdraw that question.  Strike that question. Mr. Engleman, if you could approach the.  First of all I=d like to tender into evidence exhibit number nine at this time.@


Chairman Hawkins - AIf you=ll just give it to the Clerk.@


Robert Dungan - ACould I get it back and let him demonstrate with it for the Commission please.  We=ll give it to you later. Return it to Mr. Engleman, I=ll ask you a couple of questions about it. Where is the open space?@


Harold Engleman - AThe open space is suppose to be 25 feet between Mr. Thomas= property line and the property line of this owner whose name is Baskell.  The, I do not, I can=t tell you exactly how much of this driveway is on open space but I can tell you that it does cut across open space and that if you=ll look at the upper corner here, you see (the slope here) that this goes almost to Mr. Thomas= property line.@


Robert Dungan - ASo that would, so your testimony is that the slope portion of the cut into the open cut almost across the entire open space.@


Harold Engleman - AYes I do.@

Robert Dungan - AMr. Engleman, let me show you what I have marked as exhibit ten.  Before you take a look at that uh I.@


Chairman Hawkins - AMr. Dungan how many more exhibits do you anticipate?  You=re two over what we already allowed.@


Robert Dungan - AWell this is, this is my last one.  Strike that.  I=ve got one more which would be, I would like to mark and make.  I will not have to take testimony about it because I=ve already, we=ve already discussed it but I would like to tender into evidence a copy of the Carriage Park contract with the City so that would be very clear about the sewer treatment and the sewer pump station.  And that=s all my exhibits.@


Chairman Hawkins - ALet me ask our Attorney, should we consider the admissibility of whatever evidence he has now, prior to listening to it or it seems to me like it=s out of order.@


Angela Beeker - AI don=t understand.@


Robert Dungan - AThis is a new.@


Chairman Hawkins - AThis is a new piece of evidence is it not?@


Robert Dungan - AI just marked it as exhibit@


Angela Beeker - AOh, yes.  He can.  Yes.@


Chairman Hawkins - AContinue please.@


Robert Dungan - AI=ve got to tender it first before he can testify to it.@


Chairman Hawkins - AThat=s fine.  I just wondered how many more you had.@


Robert Dungan - AI=m moving it to where I@


Chairman Hawkins - AAlright.@


Robert Dungan - AI=ll mark it and we won=t testify to it if you all can help me make copies of it. I would like to tender into evidence a letter addressed to and taken from the.  It was addressed to Mr. Matt Matteson, the County Planner, dated January 29, 1992 and was part of the Henderson County Planning Department records.  And I=ve shown that to Mr. Michaux.  I=d like to tender it into evidence.@


Chairman Hawkins - AAnd what number is that?@


Robert Dungan - ANumber ten.@


Angela Beeker - AIs there any objection?@


Robert Dungan - AThen you, could you take a look at that document Mr. Engleman?@


Harold Engleman - AI have done so.@


Robert Dungan - ACould you.  Does this deal with the conveyance of common areas?@


Harold Engleman - AIt does@


Robert Dungan - AAnd what is the representation of the former, or the former owner, the owner that conveyed to the current developer and this was written during the period that 87-2 was in force.@


Roy Michaux - ANow, Mr. Chairman, I will object.  There is no relevance to what we=re talking about today.  The 1992 document from somebody that=s not even a party to this proceeding or this permit.  What he intended to do has nothing to do with what we=re required to do today.  It=s totally irrelevant.@


Chairman Hawkins - ADid you have a comment Mr. Dungan?@


Robert Dungan - AYes.  Yes I do.  The declaration still makes reference to the terms and conditions of the special use permit 87-2 so with respect to these covenants and any guarantee of what should be taking place with those common areas, its very very applicable.  It may have been rescinded as to what special use permit is but it still, what is referred to in the declaration.  And this is what was going on in 1992 under special use permit 87-2.  That=s why I think it=s very relevant.  On page ... of the covenants under definition of property, # 19, that we=ve already read from.@


Commissioner Ward - AMr. Chair, didn=t we, the County Attorney make a brief presentation on 87-2?@


Angela Beeker - AYeh.@


Commissioner Ward - ACan you restate that to help me with my memory@


Angela Beeker - AUm, 87-2 was the former permit.  It was rescinded with special use permit 93-13; however, there is a paragraph in 93, in the new permit that basically says those units that had been approved under the old permit will be developed in accordance with that permit.  OK.  It didn=t specifically address anything about open space or not.  My suggestion is to note the objection, let it in and let Mr. Michaux address it on cross examination and in his closing and then you can determine what weight you wish to give this letter.@


Chairman Hawkins - AAlright. Thank you.  If you=ll proceed.@


Robert Dungan - AOK, Mr. Engleman, how does this letter of representation to the County Planner, how does this state that common areas will be conveyed?@


Harold Engleman - AThere are two sentences in this document which I will read if the Commission approves - first it says as specific areas are fully developed and common areas can be identified sufficiently to provide a legal description, the common areas will be conveyed to Carriage Park Association, the Homeowners Association and then the last sentence in the document says it is the bank=s clear intent to convey common areas to the Carriage Park Association as soon as it is reasonably possible after the legal description of these parcels can be obtained.@


Robert Dungan - AOK.  Let me ask a couple of other questions.  Mr. Engleman, during your time as a resident director and as a member of the Board of Directors since the Association took control, since the owner took control of the Association in March of 1999, did you ever have any discussions with Mr. Dale Hamlin or any other representative of Carriage Park Development Corporation with respect to conveyance of the common areas?@


Harold Engleman - AI have.@


Robert Dungan - AAnd could you tell the Commission about any conversations that you remember?@


Harold Engleman - AMr. Hamlin has said he will convey when essentially he=s ready to convey and that he, we really didn=t get into a long discussion over that, we got into a much longer discussion many times both in Board Meetings, open to all the members and other Board Meetings, concerning the conveyance of the common areas in the Cottages of Carriage Walk.  The Cottages of Carriage Walk has as has been previously stated a separate declaration and the declaration says that it shall be conveyed when it=s 75% complete.  It was actually conveyed about, I=m not exactly sure when but about two years after that period, after that percentage of completion was actually made.@


Robert Dungan - AOK, has any, has Mr. Hamlin or any other representative of Carriage Park Development Corporation ever given any reasons that you know of as to why the common areas cannot be conveyed?@


Harold Engleman - ANone to my knowledge.@


Robert Dungan - AUh those are my questions.  Thank you very much.@


Roy Michaux - AMr. Engleman, when did you first see the 1992 letter that you read from?@


Harold Engleman - AI saw the 1992 letter approximately one month ago when Mr. Mood found this in the Planning Department=s records.@


Roy Michaux - AYou didn=t rely on that letter in any way when you bought your property in Carriage Park, did you?@


Harold Engleman - AI did not sir.@


Roy Michaux - ADoes your property adjoin any common area, Mr. Engleman?@


Harold Engleman - AThere=s, if you look at the plat or the replica of the plat which was put into evidence, you will see that Mr. Thomas= lot is suppose to be bordered on the one side which we=re saying there was the encroachment and behind it.  The common area behind the Baskell house abuts property that I own.@


Roy Michaux - ALet=s uh, so that we can clarify that.@


Harold Engleman - ACould you speak a little louder please sir.@


Roy Michaux - AYes sir.@


Harold Engleman - AThank you.@


Roy Michaux - ALet me ask each of you if you will to turn to your exhibit five, there is attached to that a map.@


Angela Beeker - ATheir=s is not colored.@


Roy Michaux - ALot 58 is the lot that@


Harold Engleman - AThat is owned by Mr. Thomas who is not here, right.@


Roy Michaux - AAnd then, can I understand then that your lot is behind lot 58?@


Harold Engleman - ANo, it=s behind lot 76.@


Roy Michaux - AOh, you=re behind 76.@


Harold Engleman - AThat=s correct.@


Roy Michaux - AOK@


Harold Engleman - AAnd this if you had the full plat would show that this continues, this yellow line would continue and this on the actual plat, slide 1551 in the office of the Registrar of the Deeds said this and this is dedicated open space.@


Roy Michaux - AAnd as I understand the complaint there is a driveway that crosses the corner of that open space?@


Harold Engleman - AAs well as cuts into the open space up here.@


Roy Michaux - AAnd then there is a, the photograph tends to show that somebody has cut a bank along this open space?@


Harold Engleman - AThat=s correct.@


Roy Michaux - AAnd it=s your understanding that that encroaches into the open space?@


Harold Engleman - AYes I do sir.@


Roy Michaux - ADo you know who did that?@


Harold Engleman - AThe, I can tell you the name of the builder is Mr. Ted Pearce who also happens to be a member of the Planning Department.@


Roy Michaux - AAnd do you know if Mr. Pearce has been told that he=s got to put the bank back?@


Harold Engleman - AUh I=m not aware that he had to put the bank back.@


Roy Michaux - AWell, he hasn=t put it back cause it=s still under construction isn=t it?@


Harold Engleman - AI don=t think there=s, I haven=t seen any construction of the bank of my own knowledge.@


Roy Michaux - AExcuse me no, the house is still under construction.@


Harold Engleman - AThe house is still under construction.@


Roy Michaux - AAnd it hasn=t been landscaped yet.@


Harold Engleman - AThat is correct.@


Commissioner Moyer - AMr. Engleman, let=s get a correction, Mr. Pearce is on the Planning Board.  He=s not a member of the Planning Department.@


Harold Engleman - AI=m sorry.  I thought I said Planning Board, Mr. Moyer.@


Roy Michaux - AIs it, is it your understanding that and I=m reading from a letter that is double hearsay again but it is your, is it your understanding that somebody from Carriage Park gave Mr. Pearce the permission to grade that bank down and invade the common area?@


Harold Engleman - AThat is what I have been told.@


Roy Michaux - AAs opposed to allowing the driveway to cross the corner?@


Harold Engleman - ANo the driveway originally was closer to the, was a greater encroachment on the open space and if you say it=s hearsay, I agree with you its hearsay but Mr. Thomas said to me that the builder told him that he had permission from CPDC to make that encroachment.@


Roy Michaux - AWell, that=s what I want to know.  Was it the encroachment of the driveway or was it to cut down the whole bank along the open space.@


Harold Engleman - AI can=t answer that question sir.@


Roy Michaux - ADo you know of any areas that have been designated as open spaces that have been conveyed by Carriage Park?@


Harold Engleman - AYes I do.  The open spaces in the Cottages of Carriage Walk have been conveyed.@


Roy Michaux - ANo, I=m sorry.  I meant to someone other than the Homeowners Association?@


Harold Engleman - ANo I do not sir.@


Roy Michaux - ASo they=re all still there, as far as you know, as show on the plats?@


Harold Engleman - AI think that=s correct, sir.@


Roy Michaux - AI don=t have any other questions.@


Chairman Hawkins - AThank you.@


Angela Beeker - ADoes the Board?@


Chairman Hawkins - ADoes any Board have, Board members have any questions of?@


Harold Engleman - AI would make the one comment if I may, that in the pleading or the answer submitted on February 18 by CPDC, CPDC admitted that they gave permission to the encroachment.@


Commissioner Ward - ACan I ask you, yes, Mr. Engleman.  Can I ask you which representative of Carriage Park made that statement?@


Harold Engleman - AI have no idea sir.@


Commissioner Ward - AOK, thank you sir.@


Angela Beeker - AAre you talking about the last statement he made?@


Commissioner Ward - AThe last statement.@


Angela Beeker - AI can clarify that for you.  I don=t recall the specific response but anything that=s alleged in the petition and admitted by the developer, you can take that as being true.  OK, so I assume that=s what you=re referring to.@


Harold Engleman - AThat=s correct.@


Angela Beeker - AI don=t recall the specific paragraph but that=s where he=s getting that is in the response he=s saying that he admitted that.@


Roy Michaux - AThat is in the answer of the opponent at paragraph 23 - it is admitted that CPDC allowed the driveway on Tallyho Lane to cross open space.@


Commissioner Ward - AI was just asking if he heard it in person or@


Harold Engleman - ANo, I did not sir@


Roy Michaux - AI have nothing further on ...@


Chairman Hawkins - AOK, any other questions.  Thank you.@


Harold Engleman - AThank you@


Robert Dungan - AThat concludes the evidence of the Association except for the tendering into evidence as exhibit # 11 the Carriage Park Development Corporation, City of Hendersonville Water & Sewer Department document of understanding for maintenance of Carriage Park Sewer Lift Station # 2 and as part of that exhibit the sewer line extension agreement recorded in Deed Book 843 beginning at page 541 and I only have one copy if maybe you could make a copy of it and mark it, I=ll mark it and make a copy and I would like to tender that into evidence as being public record.@


Chairman Hawkins - AThank you.  Counsel for the opponent.@


Roy Michaux - AI have one question of Mr. Dungan, in response to his testimony.@ 

Chairman Hawkins - AWell remember we only have two Attorneys here, so go ahead.@


Roy Michaux - ADo you know of a single lawyer that is certified a title to a piece of property that has been recorded on a plat, designated as open space in a PUD?@


Robert Dungan - AExcuse me?@


Roy Michaux ADo you know of any lawyer who has certified the title to a piece of property that is designated as open space in a PUD?  I mean, are you telling this Board that that property is marketable title that can be conveyed by Carriage Park to some other developer to build on?@


Robert Dungan - AI=m saying that


Too many people talking.


Angela Beeker - AI understand.  If you want to rely on that as some sort of evidence.  He needs to be sworn and ask him and let him answer.  Otherwise.@


Chairman Hawkins - ADo you have any other questions?@


Roy Michaux - AOf Mr. Engleman?@


Chairman Hawkins - AOf anyone, yes. Or are you ready to give us your evidence?@


Commissioner Ward - AIf this takes any longer, we=re gonna have to bring in supper.  Mr. Chair, while they=re in conference it would be good for a five minute break.@


Roy Michaux - AI have just a couple of questions.@


Angela Beeker - Libby, is the mike picking him up from over there?@


Elizabeth Corn - AIt=s registering.@


Angela Beeker - AOK@


Chairman Hawkins - AMr. Hamlin, will you proceed, or he=s proceeding  you some evidence for you.  Alright, would you proceed, Mr. Hamlin.@


Roy Michaux - AMr. Hamlin, would you explain to the Board who cut a bank on the lot adjoining Mr. Thomas.  Who cut the bank on the lot adjoining Mr. Thomas?@


Dale Hamlin - AThe builder, the homeowner was having a home built by Ted Pearce.  Ted Pearce and his grading contractor cut into the bank without anybody=s knowledge.  Is that your question?@

Roy Michaux - AHave you in any way given them any sort of an easement modifying  the open space

to allow them to do that?@


Dale Hamlin - ANo sir@


Roy Michaux - AAnd what have you done about telling them to put it back?@


Dale Hamlin - AWe have stopped.  I sent out Mr. Johnson, whose our Director of Operations and Mr. John Jeter, our Engineer.  I found out there was cutting going on.  We weren=t sure where because it wasn=t clearly marked.  It was not done by a surveyor and I felt like it might be getting close to the open space.  Uh, I sent two of my people out to the job to stop the grading contractor and then we informed Mr. Pearce that under no set of circumstances could that open space be cut into and if we found out that it was and he had destroyed any vegetation, it had to be replaced when he did his final landscaping.  And he=s aware of that.@


Roy Michaux - ANow the, the driveway does cross the open space at the corner, is that right?@


Dale Hamlin - AWe think so.  It hasn=t been finally graded but we think it crosses at a very small angle, putting a little triangle of driveway on the open space.  It doesn=t violate the open space.  It just crosses it.@


Roy Michaux - AAnd, have you given the lot owner any sort of an easement or otherwise declared that as not open space?@


Dale Hamlin - ANo sir.@


Roy Michaux - ASo if a driveway crosses it, is it still subject to use by others?@


Dale Hamlin - AYes sir.@


Roy Michaux - ADo you know why they crossed the driveway? I mean why they crossed the corner of the open space?@


Dale Hamlin - AIt was a, it was one of those conditions that had to be worked on.  It was an extremely steep lot and without tearing up cars and pavement and bottoming out, the builder felt like he had to cross a little bit of that open space for the driveway to get the grade to work.@


Roy Michaux - AAnd had you read Mr. Thomas= letter dated September 2 of 1999?@


Dale Hamlin - AYes I have. 


Roy Michaux - AAnd he wasn=t, he didn=t oppose the driveway going across the open space did he?@


Dale Hamlin - ANo he did not.@


Roy Michaux - ABut he did oppose the bank being cut into didn=t he?@


Dale Hamlin - AYes.@


Roy Michaux - AOK, I don=t have any further questions.@


Angela Beeker - ACan I ask one question?


Roy Michaux - AYes.@


Angela Beeker - ADale, can you come up here and show us on here exactly where that driveway went in.  Show the Board. You wanna just.  Well, you need to show the Board, not me, but that=s a question I have is exactly where that driveway went in on here.@


Dale Hamlin - AThis is a drawing of Tallyho.  Tallyho is a 45 foot right-of-way.  Inside the right-of-way is 18 feet of pavement.  Crossing the, so all driveways in Carriage Park cross open space, that=s just a given.  In this case it came in at, normally you would come here and come straight up and into the garage.  Because of this extreme grade, this particular driveway came in at an angle and clipped a little bit of the open space ... it=s just a little triangle ...@   several people were talking at once and it was very hard to follow


Roy Michaux - AI have just a couple of other questions if I may.@


Chairman Hawkins APlease.@


Commissioner Moyer - ALet me just, before you finish.  I want to ask Dale something before you ... I think you=ve touched on it but I just want to be very clear.  You told them not,  to stop the cutting of the bank.@


Someone answered AYes sir@

Commissioner Moyer - ADid he proceed to go ahead and cut it anyway?@


Dale Hamlin - ANo, he stopped.@


Commissioner Moyer - AOh, so it=s not completely cut.  The bank?@


Dale Hamlin - ANo.  We stopped him.  As soon as we found out that we thought he was encroaching, we stopped him and no more has been cut.@


Commissioner Moyer - ANow what have you told him with respect to what he has already cut.@


Dale Hamlin - AIt has to be repaired back to whatever vegetation was removed and we=re somewhat familiar with what was taken out.  He has to survey the open space so we know where the line is and he has to build it back so that it=s@


Commissioner Moyer - ASo he has to restore the soil and get it back to the way it looked before?@


Dale Hamlin - AYes@


Commissioner Moyer - AHopefully@


Dale Hamlin - AThat=s correct.  Yes.  And he=s agreed to do that.@


Chairman Hawkins - AYou want to continue?@


Roy Michaux - AThank you.  Mr. Hamlin,  I=ve got to show you what ... is ... one and two.  Can you identify those?@


Dale Hamlin - AYes sir.@


Angela Beeker - AExcuse me@


Chairman Hawkins - AGAVEL - folks will you try to hold the noise down.  It=s a little difficult to hear.  Thank you.@


Roy Michaux - AAre these copies of the recorded plat.@


Dale Hamlin - AYes sir.@


Roy Michaux - AIn Carriage Park?@


Dale Hamlin - AYes.@


Roy Michaux - AAnd uh, would you explain to the members of the Board what OS1 and OS2 means as show on these plats?@


Dale Hamlin - AOS1 which is shown on these plats is roadways, designated roadways.  OS2 is dedicated open space where we have shown it on the plat, recorded the plat, and then we=re able to represent to purchasers of these lots that the OS2 area is dedicated open space and they can count on that.@


Roy Michaux - AAnd uh, has that been done on every plat recorded in Carriage Park?@


Dale Hamlin - AIt has been done on every plat recorded by Carriage Park Development Corporation.@

Roy Michaux - AHave you please, actually calculated, the Planning Department ... particular plat?@


Dale Hamlin - AThe Planning Department has a rule that all open space calculations must be delivered to them prior to presenting a plat for approval.@


Roy Michaux -   someone was bumping the mike and rattling papers and I could not make out what Mr. Michaux was saying. 


Dale Hamlin - AThat=s correct, based on the number of@


Commissioner Moyer - AThe overall isn=t it?@


It was agreed - AOverall@


Roy Michaux - AUh, has Carriage Park conveyed away any of the open space?@


Dale Hamlin - AUh, no sir.@


Roy Michaux - Again, I could not make out what Mr. Michaux was saying.   A... to the Homeowners Association which is required.@


Dale Hamlin - ANo sir.@


Roy Michaux - AHave you finished all of the amenities on some of the open spaces?@


Dale Hamlin - ANo we have not.@


Roy Michaux - AGive the Board an example of open space that has not been completed.@


Dale Hamlin - AWe have an area which we have build two tennis courts, it=s open space and has two tennis courts on it.  We have not even finished the planning of what else will go on there.  There=s lots of ideas, more tennis courts, putting green, fitness center, outdoor pool, all kinds of ideas are being circulated and something will get planned on that area.  We=re not ready to convey it because we=re not completed.@


Roy Michaux - AAnd uh, ...@


Chairman Hawkins - AOK.  Does the Board have any questions of@


Commissioner Ward - AI=ve got one, Mr. Hamlin, what is the advantage or disadvantage of conveying the open space to the Homeowners Associations?@


Dale Hamlin - AUh@

Commissioner Ward - AIn view of a developer@


Dale Hamlin - ASure.  The development process is, on a project as large as Carriage Park, is kind of an unfolding envelope.  You, part of the reason that we wanted to do a planned unit development under your guidelines was that we would have flexibility to make product changes throughout the life of the development.  Now that also includes an amenity structure and an amenity package.  And so we don=t want to convey until we=re dead certain that we have finished and know exactly what=s going into an area.  And I=ll give you an excellent example.  We had a sewer pump in section 14, Carriage Forest, which is another neighborhood which they didn=t ask for the open space to be conveyed and the City did not want to use the driveway we built because to go down and service the sewer pump because they said it was too steep.  And the City then said to us if we=re going to service it you better build us another road.  So I had to build just a couple of weeks ago a 1200 foot gravel driveway with a whole lot less grade in it, through open space so that the City could get their vehicles down to that pump and utilize it.  If I didn=t own it or have control over it, I=m afraid I would have had a very difficult time convincing another owner which would have been the Association to let me build a driveway for purposes of maintenance.  So we have such a complex utilities system there and we have such a complex drainage system and we have so many ideas on what we=re going to do with the amenity package in the future that I don=t want to convey too much until I know exactly what=s going to go into those areas. So we=ve, I mean we dedicate them but we, that doesn=t mean we=re finished building within them.@


Commissioner Ward - AThank you, sir.@


Dale Hamlin - AYes sir.@


Chairman Hawkins - ACounsel, do you have some questions for Mr. Hamlin?@


Robert Dungan - AYes, I=m gonna cross examine the witness a little bit.  Mr. Hamlin you uh, you gave testimony with respect to the Tallyho Lane situation.  Did you in fact receive this letter that was addressed to you from Mr. Thomas, dated September 2, 1999.  Did you bring today with you a copy of your response back to Mr. Thomas.@


Dale Hamlin - ANo.@


Robert Dungan - ADid you ever respond to this letter?@


Dale Hamlin - AI don=t remember responding to it.@


Robert Dungan - ASo you didn=t respond. You did not respond?@


Dale Hamlin - AI don=t think so.@


Robert Dungan - AUh, and, but you did read it?@

Dale Hamlin - AYes.@


Robert Dungan - AAnd, he states that late in 1998 or early 1999 a rough driveway was cut across this open space into lot #76.  Is that about the time period that the initial driveway would have been cut?@


Dale Hamlin - ALate 1998.@


Robert Dungan - ALate 1998, that=s what he says, late 1998 or early in 1999.@


Dale Hamlin - AI don=t believe that lot was sold until mid to late 1999.@


Robert Dungan - AWell his, his letter=s dated September 2 and he says approximately 3 weeks ago we noticed surveying activity, but this is, that would have been I guess, maybe sometime in August

but yet he writes that he noticed the rough driveway was cut in early 1999.  Do you know anything about that?@


Dale Hamlin - AOh yes, we built a, we cut a driveway in to be able to sell, be able to walk people onto the lot.  We didn=t cross the open space.@


Robert Dungan - AOK, so what he noticed was something that Carriage Park did?@


Dale Hamlin - AThat=s correct.@


Robert Dungan - AOK. Uh, before the builder came back later and did more, is that your testimony.@


Dale Hamlin - AYes.@


Robert Dungan - AUh, now you, um, also testified that you don=t want to convey the common areas and have given a couple of reasons.  Now let me just ask you to look up here.  I know you=re more familiar with this than I am so you can probably tell us.  Now you=re familiar with Governor=s Point aren=t you?@


Dale Hamlin - AYes.@


Robert Dungan - AOK in Governor=s Point was one of the development parcels that was developed under 87-2, wasn=t it?@


Dale Hamlin - AYes.@


Robert Dungan - ANow, and, so, uh, uh and in fact there was open space in Governor=s Point, isn=t there?@


Dale Hamlin - AYes.@

Robert Dungan - AAnd this yellow representation, that=s pretty much covers the open space doesn=t it, I mean roughly.@


Dale Hamlin - AUm huh.@


Robert Dungan - AUh, and uh, in fact that open space was conveyed from First Citizens to Carriage Park Development Corporation wasn=t it?@


Dale Hamlin - AYes.@


Robert Dungan - ASo the fact that there was open space in a, a recorded document didn=t stop any conveyance of it to Carriage Park Development Corporation?  You didn=t say wait, whoa, you better convey that to the Association, and we=ll take the rest or anything?@


Dale Hamlin - AI=m having a hard time following.@


Robert Dungan - AOK, well a lot of people do. It=s probably me. But what I=m trying to get at is that when Carriage Park Development Corporation purchased what was Carriage Park, the acreage that was remaining, that had not already been conveyed to owners, it received as part of that tract open space, didn=t it?@


Dale Hamlin - AYes.@


Robert Dungan - ANow, Governor=s Point was started about 1987, isn=t that correct?@


Dale Hamlin - AI guess@


Robert Dungan - AAnd it=s fully developed?@


Dale Hamlin - ANo.@


Robert Dungan - ANot fully developed. What amenities do you plan for Governor=s Point?@


Dale Hamlin - AI don=t know yet.@


Robert Dungan - AWhat amenities are planned for the common areas in Carriage Summit that, for example this tract up here near the ... their ... permits you from conveying that on to the Association.@


Dale Hamlin - AI don=t have a, a fully vested idea on how we=re gonna complete that.  That could be a beautiful park area with some lovely walking trails.@


Robert Dungan - AAnd so you=re testimony is that if you conveyed that to the Association, the Association might prevent you from building walking trails and a park there?@


Dale Hamlin - AWell, I also have utility systems within that area and we haven=t got a fully operational utility program and we don=t want to convey until we know what we=ve got.@


Robert Dungan - AOK, what, what plans do you have for the common areas in Carriage Walk and Carriage Falls that have not been conveyed.@


Dale Hamlin - AUh, we have an area called an amphitheater.@


Robert Dungan - AAnd where is that, maybe you can point it out to me.@


Dale Hamlin - AOK@ He pointed it out via the map/plat.


Robert Dungan - ABut that=s not part of the common areas that we=re talking about really is it?@


Dale Hamlin - AYes it is.@


Robert Dungan - AAlright.  Now the, your lawyer had you testify to a couple of plats I think and you=re familiar with the recorded plats?  Is there, is there any, from those plats, based on your knowledge of, of plats and plans, the common areas could be described could they not? By a meets and bounds description?@


Dale Hamlin - AYes.@


Robert Dungan - AAnd then they could be put on a deed and conveyed at this time.@


Dale Hamlin - AWell, not necessarily, not until we felt like it would, we had done everything we wanted to do to them.@


Robert Dungan - AWell I understand that.  My question is that the plats provide meets-and-bounds descriptions which would allow these common areas to be conveyed.@


Dale Hamlin - AWell the plats are recorded as, in the county as open space.@


Robert Dungan - AWell I, I, if you can just, and first answer my question then you can explain yourself.@


Dale Hamlin - AI don=t understand your question.@


Robert Dungan - AMy question is simply, does the, do these plats and other plats have meets-and- bounds descriptions on them which would allow a deed to be drawn and thus the common space, the common areas conveyed to the Association?@


Dale Hamlin - AI don=t believe they have meets-and-bounds descriptions on them.  I believe they have  meets, they show the lines.  Do they have meets-and-bounds?@


Robert Dungan - ANo.@


Dale Hamlin - AThey show the lines.@


Robert Dungan - AAlright, the fact that they, they have survey calls out.@


Dale Hamlin - A... but that=s not a meets-and-bounds description.@


Robert Dungan - ABut they have survey calls on them which would allow someone to make a meets- and-bounds description. Correct?@


Dale Hamlin - AUm huh, that=s correct.@


Robert Dungan - AAnd so, for example this OS2 marking on the, I guess it was exhibit 1 of the respondent, that could be described and conveyed, couldn=t it?@


Dale Hamlin - ANo, not necessarily.@


Robert Dungan - AIt can=t be described?  You just said.@


Dale Hamlin - AIt could be described, sure.  But it may not, but it=s already recorded as open space.  The protection is already in place.  It doesn=t need to be conveyed by deed.@


Robert Dungan - ABut the, the open space in Governor=s Point was also already, already recorded and that did not prevent it from being conveyed from First Citizen=s Bank to Carriage Park Development Corporation, did it?@


Dale Hamlin - ANo.@


Robert Dungan - ANo more questions.@


Roy Michaux - AUh, Mr. Hamlin, Governor=s Point.@


Dale Hamlin - AYes.@


Roy Michaux - AGovernor=s Point had open space when you bought it?@

Dale Hamlin - AUh, uh, it had@


Roy Michaux - AHad the plat actually been recorded?@


Dale Hamlin - AWe had to, we had to go to the, Mr. Smith=s office and the, the, when we bought Carriage Park it did not have enough open space recorded.  We had to go and, and put it all together and go to the county and bring it up to standards.  It wasn=t there when we bought it.@


Roy Michaux - AAnd uh, after you bought the project, you then had the plat revised to add more open space.@


Dale Hamlin - AWe added, well we added more land, we added more lots.  We built some more roads in Governor=s Point, added more lots, and then added open space.@


Roy Michaux - AAnd is the open space still there?@


Dale Hamlin - AYes sir.@


Roy Michaux - AYou haven=t conveyed it to anybody have you?@


Dale Hamlin - ANo sir.@


Roy Michaux - AOK.  No, no other questions.@


Robert Dungan - ANo further questions.@


Chairman Hawkins - AThank you.  Does any of the Board members have any questions for any of the witnesses?@


Commissioner Moyer - AWell I have question for the, for our Attorney which I=d like to address to the lawyers if she thinks it=s appropriate.  I have@


Commissioner Ward - AWouldn=t you like to call for a sidebar?@


Commissioner Moyer - ANo.  Sidebar. (lots of laughing) Is the Homeowners Association an appropriate party under the Declaration and the Special Use Permit to bring the second part of this complaint that we=re hearing?  Or does it have to be brought by the particular homeowner who is adjacent to the open space? If you, I=d like to ask the Attorneys.@


Angela Beeker - AUm, I think that=s very appropriate to ask them.  I mean well.  I was going to answer in a different way but yeh, go ahead.@


Chairman Hawkins - AWould you like to respond to that?@

Commissioner Moyer - AI address Mr. Dungan first.@


Robert Dungan - AI=m not sure that I can point to it in the Declaration.  Did you have the Statute? Do you have the Statutes, NC Statutes?


Angela Beeker answered that she did.


Robert Dungan - AI need uh, I think it=s either 7 or 8 where they have chapter 47F in it.  The Planned Community Act.@


Angela Beeker - AOh.  I might even have that with me. Hang on.  I=ll have to run in my office and get it.  I had it.@


Robert Dungan - AIn, I=ll start answering that.@


Commissioner Moyer - A ...  She can verify the law.@


Robert Dungan - AI=ll just lay the background for it.   You want me to proceed?@


Chairman Hawkins - AYeh, if you would please.@


Robert Dungan - AIn, in, in January of 1999 the N C Planned Community Act went into effect.  That Act can be, is for planned communities, any time there are common areas or a common assessment obligation which of course fits Carriage Park.  An existing, an existing planned community can submit itself to the Act by amending it=s Declaration and Carriage Park Homeowner=s Association did that, effective in the first of February they re-recorded in March of 1999.  So since March of 1999 they=ve been controlled by Chapter 47F.  47F, Section 47F-3-102 states that subject to the provisions of the Articles of Incorporation and the Declaration, and declarent=s rights that are in the Association may institute, defend, or intervene in litigation or administrative proceedings on matters affecting the planned community.  Yes, they have standing.  And they=ve also been identified previously as a party in interest to receive notice of anything that goes on with respect to the special use permits as a party in interest I believe, earlier identified as such, isn=t that correct?@


Angela Beeker - AYes, they have to notice.  As far as under the Restrictive Covenants, I wasn=t sure how to answer you but under the permit, I believe the Association has standing, under the permit to bring forward any alleged violation of the permit.@


Chairman Hawkins - AAnybody else on the Board have any questions of either of the witnesses?@


Commissioner Moyer - ACounsel ......@


Robert Dungan - AThe only thing I would question, Mr. Moyer, is whether the driveway is a violation. You know standing to bring a lawsuit is one thing but whether or not it has any merit is another.  Uh, I=m not sure that I would recommend to an Association that they file a lawsuit over this driveway now the cutting of the bank could be a little more significant and I=m hoping that we=ve gotten that taken care of but just the driveway itself as far as crossing the corner of an open space, may not be a violation of anything.  It=s still open space.  You just have to understand if you=re the owner of the property that somebody else can cross your driveway and there=s not much you can do about it.  But that=s a risk that that owner takes.  I doubt that it=s a violation.@


Chairman Hawkins - APetitioner do you have any closing remarks?@


Roy Michaux - AI=m just going to, with respect to the Commission=s attention that they=ve given me, I=m going to waive the closing because I have nothing new to add.@


Chairman Hawkins - AThank you.  Counselor, do you have some closing remarks?@


Robert Dungan - AYou=ll be happy to know that I don=t have anything to add either.@


Chairman Hawkins - AYou don=t know how happy I am to know that.@


Robert Dungan - AI think I=ve said it all since we started this proceeding and I still think that that applies and I don=t think there=s anything that=s been shown to this Board that would indicate anything different.  Thank you, I appreciate your attention.@


Chairman Hawkins - AThank you. Now the evidence has been presented and the closing remarks concluded.  It would be appropriate for the Board to discuss the issue presented today.  We can either vote today and direct Staff to bring back findings after our discussion of facts and conclusions that=s consistent with our decision or we can continue our discussion and decision till a later date.  I would just remind you however that we must issue a written decision within 45 days of the conclusion of the hearing today.  So having said that, I just, I know that we have a, as you can imagine a tremendous amount of documents and information to consider and I=d ask the Board if they want to have any further discussion today or if you want to continue your discussion to a subsequent meeting within the 45 days, at which time we will make our written comments.  Any discussion from the Board at this time or you want to kinda look through the material you have and we can continue our discussion at a later date if that=s the pleasure of the Board.@


Commissioner Kumor - AWhat, you=re talking to me?@


Chairman Hawkins - AMrs. Kumor, you always have something to say.@


Commissioner Kumor - AI really don=t know which would be, I think our decision should weigh to the best advantage all the parties and not so much to our own ease; however, maybe the best interests of both of the parties that are presented to us might be that we have a chance to digest everything we=ve heard and reconvene at a later date to discuss it all.@


Chairman Hawkins - ADon, do you have any@


Commissioner Ward - AWell, I=ve got two things that comes to it. Uh, every time Carriage Park has come before us, you know they=ve always gone the extra mile to, to accommodate their residents over there and I=m appreciative to them cause they come before us quite a bit.  And we have a lot of these meetings.  On the other hand, you know the old saying if you give an inch and take a mile.  This time you know its just a corner you know and unless there=s something basically set, you know you=re setting a precedence and maybe it=s a little bit more of open space next time to get to a lot. And I don=t want that to happen and I don=t think they would do it but the present group might sell it to someone else later on down the road and they see what=s happened at this particular time and say well the Commissioners allowed it then maybe we can go ahead and do it now.  But I=m with Mrs. Kumor, I mean that=s the two things that I=m weighing out. And there=s a lot of material up here to digest and you know and there=s a lot of people that=s name has been called, like Mr. Pearce and Mr. Jeter and things like that could really add a whole lot to this conversation.  But that=s beside the point but you know I=d like to read over the material and maybe give a finding at a later time because there is a lot of information.@


Chairman Hawkins - AMarilyn do you have any@


Commissioner Gordon - AUh, I really think that we have to, have to divorce ourselves from personal opinion and really whether or not this should be conveyed or anyone=s opinion of that isn=t the issue, it=s what by Statute we have the authority to, to direct and I think it=s really important that we have time to digest this and really refer back and forth to all these references that we=ve been given and what I want to do, try to do is really look at what I am legally able to make a decision about and make it based on what the papers say I can make it.@


Chairman Hawkins - ABill, do you have any thoughts?@


Commissioner Moyer - AWell, I don=t know that I can add, if four of you want to wait to think about it.  I=m certainly not going to oppose that.  I think when you consider it though I think this has gotten a little confusing.  You=ve got to look at the relief that was requested and the requested relief was that the permit be revoked or terminated until the open space is conveyed.  Uh, and, I think that needs some careful thought cause I think we, that takes a major step and a major step that I think based on the evidence we=ve heard so far, is not justified under the permit or the law and uh, so when you look at, weigh all your evidence I think you=ve got to come up with a scenario that justifies the relief that=s been requested, not some other kind of relief.@


Chairman Hawkins - AAnd I think that was part of our opening discussion that we had between the evidence that=s now been presented on Trolley Lane and the initial relief that was asked for which was the revocation of the special permit and the immediate conveyance of land by general warranty deed which we=ve had some discussion on.  Uh, in any event, I think the consensus of the Board is that we need to take some time to look this over, as far as the notification of the follow up date, Angie, I would assume that we would adequately advertise it as to when we=re gonna continue our deliberations on it, now that we=ve heard all the evidence.  I don=t know if at that time we=ll have additional evidence or we will be closed with the evidence that we have now?@


Angela Beeker - AIf you wish to receive additional evidence, then you need to keep the hearing open and continue it to another date.  Um, that=s your call as to whether you would wish to receive additional evidence from the parties.  If there=s specific evidence that you can think of that you would like to hear, then maybe they could produce it.  You know, I don=t know that that=s the most advisable thing.  You don=t have to allow more evidence.  Everybody had their shot today.  So, that=s your discretion though.@


Commissioner Kumor - AWell, I was gonna, I agree with what Mrs. Beeker is saying and I was also gonna request that because everybody=s already here can we set a date that=s close enough.  I know we have a 45 day window but I certainly would rather set a date close enough now and everybody knows when we=re gonna do this and it makes us think about this and get our minds organized into how we want to respond.@


Chairman Hawkins - AI, I personally think it would be difficult to set a date this afternoon myself, I don=t know.  We know that it=s gotta, that we=ll hear it and render a decision before 45 days.@


Angela Beeker - ARight.@


Chairman Hawkins - AFor 45 days for sure but the exact date I really ...  Marilyn?@


Commissioner Gordon - AWell, I just want to echo what Renee is saying and what Bill has said too.  I think there are some pretty clearly defined things here.  Right now I=m tired and I=m hungry and that=s not a good time to make a decision.@


Commissioner Kumor - AAnd it won=t be a coherent decision.@


Commissioner Gordon - AAnd I would like to just sit down with the typewriter and type out, you know what I=m thinking.  But that won=t take me a month.  And I wonder could we, could we put this on the agenda at our next regularly scheduled meeting?  Would that give adequate time for notice?  It shouldn=t take us that long to go over this.@


Chairman Hawkins - AWell, we certainly can, we can certainly put it on the agenda and see where we are on it, you know from that prospective.@


Commissioner Kumor - AYou know as part of our deliberations at the April 3 meeting.@


Commissioner Gordon - AYeh, I don=t think that it will take us that long.@


Commissioner Ward - AI can do it.@


Chairman Hawkins - AWe can@


Angle Beeker - AI=m sorry, I didn=t hear the last part of your conversation.@


Commissioner Kumor - AI thought you were bailing out on us.@


Chairman Hawkins - AWell, we have to, I think the Board would like to go ahead and put this on our next meeting of April 3 and uh@


Commissioner Kumor - AAnd that presumes that we will have done our thinking.@


Chairman Hawkins - AWe=ll do as much work on it as we can.  If we need more time. We=ll know then how much more time we=ll need or you=ll know where you are on it.@


Angela Beeker - AOK, continue this to April 3?@


David Nicholson - AContinue it to that time or do we need to@


Angela Beeker - AYeh, that=s my recommendation.  Continue it to April 3, 7:00 will be fine. If I could, go ahead.@


Commissioner Moyer - AI think we better clarify whether additional evidence ...  I think we ought to close the hearing.@


There were several people talking and it was the consensus of the Board not to accept further evidence.


Angela Beeker - AJust close the public hearing part but continue the deliberations.  OK, so you will close the public hearing but continue the meeting to 7:00 on.   I have one more thing to say when you=re ready.  I want to remind everybody that this is quasi-judicial, including all the persons in the audience, meaning that this Board can have no contact with anybody to discuss it, outside of the hearing.  They can=t even discuss it among themselves outside of the hearing so any attempt to do so could very seriously jeopardize your position and I wanted to make everybody aware of that.@


Chairman Hawkins - APlease don=t e-mail us. We have a lot of messages to keep up with and we don=t, we=ll hear from you on the 3rd when we try to have some more deliberations.  Any other items?@


Commissioner Moyer - ADo we need an official motion to uh@


Angela Beeker - ATo close the hearing and continue the meeting@


Commissioner Moyer - ATo close the hearing and continue the meeting until 7:00 on April 3.  I so move that.@


Chairman Hawkins - AThose in favor of that motion, say aye.@


Unanimous AAye@







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