STATE OF NORTH CAROLINA                                           BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                                  APRIL 3, 2000


The Henderson County Board of Commissioners met for a regularly scheduled meeting at 5:30 p.m. in the Commissioners= Conference Room of the Henderson County Office Building at 100 North King Street, Hendersonville, North Carolina.


Those present were:  Chairman Grady Hawkins, Vice-Chair Bill Moyer, Commissioner Renee Kumor, Commissioner Don Ward, Commissioner Marilyn Gordon, County Manager David E. Nicholson, Assistant County Manager/Interim County Attorney Angela S. Beeker, and Clerk to the Board Elizabeth W. Corn.


Also present were: Finance Director J. Carey McLelland,  Planning Director Karen C. Smith, Public Information Officer Chris S. Coulson, and Staff Attorney Jennifer O. Jackson.



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



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



David Nicholson gave the invocation.



Commissioner Moyer asked for one addition under Discussion Items as AC@ - update on LGCCA.


Commissioner Ward asked for one addition under Discussion Items as AD@ - Open Use Planning.


Chairman Hawkins asked that two items be pulled briefly from the Consent Agenda:

AH@ - Proclamation of County Government Week

AI@  - Resolution - Community Development Week

He asked Commissioner Kumor to read those two items and briefly discuss the activities planned for County Government Week.


Resolution - Community Development Week

Our local Cooperative Extension Office had requested that the Board approve this Resolution for the week of April 9-15, 2000.


Commissioner Kumor read the Resolution in its entirety (attached as a part of these minutes).


Proclamation of County Government Week

This proclamation established the week of April 9-15, 2000 as County Government Week in Henderson County. 

Commissioner Kumor read the Proclamation in its entirety (attached as a part of these minutes) and reviewed the activities planned for that week:


Monday, April 10, 2000          10 a.m. - 3 p.m., staffed by American Red Cross

Administration Building parking lot and Commissioners= Meeting Room

Open to county employees (time on the clock to give blood) and members of the public


Tuesday, April 11, 2000         2:00 p.m.          Commissioner Kumor and Angela Beeker

Board and Committee Orientation - training session will be taped for later airing on the government Channel of Cable TV. All interested citizens are invited.


Wednesday, April 12, 2000    12:00 noon       Foster Parent Recruitment

DSS Staff will hold a short event to highlight the need for foster parents by demonstrating the number of children who need foster care.  DSS staff and foster parents will attend.


Thursday, April 13, 2000        All day Open House with door prizes and food @ Library -

301 N. Washington Street.  AThe Very Best Place to Start@

Education program kicks off this week.  This is a state-wide campaign to demonstrate the critical role that libraries play in children=s lives.  This week is also National Library Week.


Friday, April 14, 2000 2:00 p.m.          Adopt-A-Block Litter Pickup

(gloves and orange bags will be provided, bag pickup by City of Hendersonville on Saturday)

County employees - time on clock given to pick-up litter - all County buildings with full-time County employees.  Challenge issued to businesses in the community to pick-up litter on their block that day.


Saturday, April 15, 2000         10:00 - 12 noon           Child Car Seat Safety Check

NC Highway Patrol Trooper Robert Grayson

NC Highway Patrol Office , 125 Baystone Drive - all interested citizens

If you have questions about the installation of your child car seat, they can be addressed.


All week long - Soil & Water Conservation Office - information will be available on butterfly garden kits and flower seeds. Soil test kits will be available as well as plans and instructions on how to build a butterfly house.


Henderson County Financial Report - February 2000

Commissioner Moyer asked some questions of Carey McLelland and David Nicholson.  He was then satisfied that the report go back into the Consent Agenda for approval.


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





Chairman Hawkins made the motion to approve the Consent Agenda.  All voted in favor and the motion carried.  CONSENT AGENDA included the following:



Minutes were presented for the Board=s review and approval of the following meetings:

March 6, 2000, regular meeting

March 15, 2000, regular meeting


Tax Collector=s Report

Terry Lyda, Henderson County Tax Collector, had provided the Board with a copy of the Tax Collector=s Report as of March 28, 2000.


Tax Refunds (26)

A list of 26 tax refund requests was provided by the County Assessor for approval by the Board.


Tax Releases (157)

A list of 157 tax release requests was provided by the County Assessor for approval by the Board.


Charlestown Place Order

The Board was provided with a proposed order approving SP-99-01-A1, the amendment to the Special Use Permit, SP-99-01, approved previously for the planned unit development located on US #25 South, known as Charlestown Place.  Also provided was the original order granting SP-99-01 and the draft verbatim minutes of the quasi-judicial proceeding.


A quasi-judicial proceeding was held on March 6, 2000 to consider the request of developer Joe Crowell for an amendment to SP-99-01 to allow more flexibility in the design of the multi-family buildings and to reduce the setback between the single family dwellings to 10 feet.  Specifically,  Mr. Crowell requested that he be allowed to place multi-family units having more than two dwelling units within Charlestown Place.  The Board voted to approve the proposed amendment and directed staff to bring back findings and an order consistent with that decision.


The Board must adopt a written order no later than April 20, 2000 in order to meet the 45-day requirement of the Rules of Procedure for Quasi-Judicial Proceedings.


Bylaws for the Library Board of Trustees

In March of 1999, the Board of Trustees of the Henderson County Public Library amended their bylaws to make the Board of Commissioner member an ex-officio, non-voting member.  The amendment was inadvertently never brought forward to the Board of Commissioners for approval.


At the last meeting there was some discussion regarding the position labeled as AEx-Officio Etowah@. The bylaws do not specifically require any such position.  The President of the Friends of the Library does serve as ex-officio.  The Library Director has indicated that there is no desire on the part of the Board of Trustees to create any other ex-officio positions and therefore no further amendments are necessary regarding the creation of other ex-officio positions. 


Staff recommended approval of the Bylaws for the Library Board of Trustees.


Field Sponsorship - Revision

On January 19, 2000, the Board of Commissioners approved a Field Sponsor Program for the Recreation Department. That program allows the solicitation of sign sponsors for several of the County=s ballfields at Jackson Park and Etowah Park.


At that meeting, the Board asked staff to draft some language to allow the prohibition of certain signs that might be inconsistent with Park Rules.  That language was added and highlighted on the revised AAdditional Requirements and Limitations@ sheet that will be made a part of the Field Sponsorship Application and Agreement form.


Added language included ASponsors are reminded that the Parks are frequented by people of all ages, including small children.  Sponsor signs which promote any product or service which is inconsistent with the Park Rules or any applicable federal, state or local law, ordinance or regulation will not be allowed.@ as well as AAny decision that the Recreation Director makes with regard to field sponsorship may be appealed to the County Manager but such appeals must be made in writing within 14 days of the Recreation Director=s decision.  The County Manager, in his sole discretion, will make the final decision with regard to any matter on appeal.@


Proclamation of County Government Week

see above


Resolution - Community Development Week

see above


Road Petitions (for addition to State Maintenance System):

1. Horseshoe Drive

2. Summer Road

3. Hunter=s Ridge Road

4. Forge Crest Drive


It has been the practice of this Board to accept road petitions and forward them to NC Department of Transportation for their review.  It has also been the practice of the Board not to ask NC DOT to change the priority for roads on the paving priority list.


Henderson County Financial Report - February 2000

The Financial Report for Henderson County for February of 2000 was provided for the Board=s review and approval.


Henderson County Public Schools Financial Report - February 2000

The Public Schools Financial Report for February of 2000 was provided for the Board=s review and approval.



Notification of Vacancies

The Board was notified of one vacancy on the Nursing/Adult Care Home Community Advisory Committee.



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


1. Hendersonville City Zoning Board of Adjustment - 1 vac. (alternate)

There were no nominations at this time so this item was rolled to the next meeting.


2. Nursing/Adult Care Home Community Advisory Committee - 3 vac.

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

There were no nominations at this time so this item was rolled to the next meeting.


3. Mountain Area Workforce Development Board - 1 vac.

This is a Chamber of Commerce vacancy and as yet we have not heard from them with a nomination. This item was rolled to the next meeting.


4. Henderson County Industrial Facilities & Pollution Control Authority - 1 vac.

There were no nominations at this time so this item was rolled to the next meeting.


5. Solid Waste Advisory Committee - 1 vac.

There were no nominations at this time so this item was rolled to the next meeting.


6. Henderson County Planning Board - 3 vac.

Nominated at the March 15 meeting were:        Rebecca Nesbitt

Jim Clayton

Mary Jo Padgett

Dean Bonessi

Roy Huntley


Commissioner Moyer nominated Jack Lynch.  Commissioner Gordon nominated Carolyn Carland.


The Clerk polled the Board and the three appointees were:        Rebecca Nesbitt

Jack Lynch

Roy Huntley


7. Library Board of Trustees - 2 vac.

There was some brief discussion regarding the make-up of this Board.  Angela Beeker referred to the new Bylaws that the Commissioners just approved today in the Consent Agenda. 


The President of the Friends of the Library needs to be added to the roster.  He does not have to be appointed by the Board of Commissioners.  He/She automatically serves by virtue of his office.


Chairman Hawkins made the motion to suspend the rules and appoint Commissioner Moyer to the Library Board of Trustees.  All voted in favor and the motion carried.


8. Western Carolina Community Action (WCCA) - 1 vac.

Commissioner Kumor nominated Charles Ashley Summerrow.  There were no other nominations.  Chairman Hawkins made the motion to suspend the rules and appoint Mr. Summerrow.  All voted in favor and the motion carried.



Sheriff Erwin had requested that the Board authorize the sale of a service firearm to Deputy Ruth Wesley.  In 1994, the Board approved a Service Sidearm Policy, which was reviewed.


According to the Policy, the Board must establish a purchase price for the weapon.  The Sheriff has indicated that the value of the sidearm is $420.  Upon approval, Deputy Wesley would be responsible to pay for the weapon less the discount provided by the Policy, based on years of service. 

Chairman Hawkins made the motion to release the sidearm in accordance with the request of Sheriff Erwin and in accordance with the Service Sidearm Policy.  All voted in favor and the motion carried.

CHANGE ORDERS - Detention Center

David Nicholson requested the Board establish parameters for change orders for the Detention Center.  In a memo of March 28, 2000, the County Manager had requested approval of change orders up to $5,000.


Following discussion, Commissioner Kumor made the motion to give the Manager authority to approve change orders of $5,000 or less, with a cap on the total of change orders he can approve of $200,000 and asked for a monthly report from the Manager on Change Orders.  All voted in favor and the motion carried.



Carey McLelland reminded the Board that the County and the Board of Education jointly submitted an ADM Fund Application to the State to fund immediate major repair/maintenance of school projects on February 8, 2000.  The Office of State Budget and Management approved this application on February 15 with the exception of $141,000.00 in carpeting/vinyl projects that were not considered major capital and therefore were not approved.


The Henderson County Board of Public Education had submitted to the Board of Commissioners for approval an amended ADM Fund Application to reallocate the use of funds that were not approved by the State for other capital projects.  The new school capital projects to be covered under this application consisted of paving ($32,209.31), fire alarm upgrades ($28,125.00), roof repairs ($23,234.63), intercom upgrades/rewiring ($24,108.75), and door replacements ($33,322.31). An amended project funding allocation was provided that denoted the new capital projects and reallocated funds in bold type.


The total funding of $723,123 for this application will utilize $542,342.25 (75%) from the State ADM Fund and $180,780.75 (25% match) from capital outlay funds budgeted in Fiscal Year 1999-2000. A total of $137,816.27 of the matching funds required has already been expended as of February 29, 2000.


Following discussion, Chairman Hawkins made the motion to approve the Amended ADM Fund Application.  All voted in favor and the motion carried.       



Jennifer Jackson informed the Board that the County had received a petition asking that the County request NCDOT to abandon and remove from the State Maintenance System a portion of Williamson Road (SR#1337).  This petition was reviewed by the Board along with maps showing the location of the road.  As the petition was received by the County on March 29, 2000, the Planning Department has not yet conducted an impact study on the request and emergency officials have not yet been contacted for comment.


NCGS 136-63 sets out the procedure by which a road may be abandoned. Before NCDOT abandons a road in the manner requested, the statute requires that the Board of Commissioners pass a motion or adopt a resolution requesting that the road be abandoned.  Such Board action must be based upon a finding that Athe best interest of the citizens of the County will be served thereby.@


Although no public hearing is required to abandon a road, it might be appropriate to hear from the interested public as well as the Planning Department and emergency officials before making such a determination.  The Board has previously set and advertised special public input sessions for the purpose of receiving comments from the public on proposed abandonment petitions.  If a public input session is scheduled, Staff would request that it not be scheduled prior to the Board=s May 1, 2000 meeting in order to allow enough time for advertisement and receipt of comments from the Planning Department and emergency officials.


If the Board, however, is ready to find that the Abest interest of the citizens@ will be served by approving the abandonment, the Board could forego the public input session and consider a motion or resolution to request the NCDOT to abandon the road as described in the petition based upon a finding of Abest interest.@


Jennifer explained that Board action to either schedule a public input session, pass an appropriate motion, direct Staff to bring back a resolution, or otherwise direct Staff in this matter would be appropriate at this time.


It was the consensus of the Board to hold a public input session on May 1, 2000 at 7:00 p.m. The Board also wished to hear a response back from EMS Officials and the Planning Department. 



JCPC Report & Request - Commissioner Kumor

Commissioner Kumor explained that the JCPC is the Juvenile Crime Prevention Council.  She gave the Board the following update on the Strategic Planning Process:


1.                  The JCPC has been asked by the County Commissioners to develop and present to them for their consideration a AStrategic Plan for Children in Henderson County.@  A JCPC committee was formed late last year to develop the plan and an outline of the process was presented to the JCPC in December for its information.


2.                  According to the time line for developing the plan, they are now involved in data collection and interpretation.  This process includes community involvement in order to ensure that the plan reflects the views of the public and of agencies who deliver services for children.


3.                  In order to complete the plan this summer as required by the time line, it was the proposal for the committee to conduct one or more public meetings beginning May and ending in August.  The purpose of the meetings will be to share the results of their work with the community and to get their response.  Coordination with the public school system for their support and a location for the meetings is underway.


4.                  They expect to complete the plan and be ready to present it to the Commissioners late this summer, with the next step being to present the plan to the public.  The first step in this process will be at the Life-Long Learning Center at BRCC in the Fall.


5.                Enclosed (in agenda packet) please find a work plan and a summary of issues which are under consideration during the planning process.


Commissioner Kumor stated that they plan a draft report of the data as it has been analyzed for August 2, 2000.   May 25 is the next meeting and then August 2 the next.  The May 25 meeting will be at 8:00 a.m. at Blue Ridge Community College Auditorium.  The Commissioners will receive an invitation.


Commissioner Kumor asked if the Board of Commissioners would be a joint sponsor with the JCPC and the Children & Family Resource Center since we did ask those two groups to work together. It was the consensus of the Board to agree to being a sponsor of this project/event.


Prevent Child Abuse Month

Commissioner Kumor mentioned the two colored ribbons she was wearing, teal and blue.  April is  Prevent Child Abuse Month.  Each year in North Carolina 96,000 children are reported abused and neglected and about 40 children die in NC each year from Child Abuse. 


Non-Profit Contributions - David Nicholson

David Nicholson had provided a list of Board-Approved Non-Profit Contributions for the Board=s review.  He had broken them into categories, the first being the Non-Profit Contributions and the next being the agencies under the Alliance for Human Services.  Other agencies David had placed under different County Departments, such as America=s Pride and Crime$toppers were under the Sheriff=s Department budget.


Update on Carolina Apparel Trading Building - David Nicholson

David Nicholson started by reminding the Board of the motion from the March 15 meeting - AFollowing much discussion, Commissioner Kumor made the motion to direct staff to enter into purchase negotiations for the 4.56 acres and the 2.12 acres, which is the existing facility and the property in the rear, not to exceed $2.65 million and to further enter into negotiations for the purchase of the additional 4.52 acres, which is property adjacent to it.@


David reviewed the departments that will be located in the new county facility:

C                     Commissioners and Clerk to the Board

C                     County Administration

County Manager



Human Resources

Risk Management

Agriculture Development

Public Information Officer

Veteran Services

Project Management


Fire Marshal/Emergency Management

Building Inspections


C                     Department of Social Services

C                     Public Health Department

Human Services

Environmental Services

C                     Election Board


David stated that the draft agreement for the Carolina Apparel Building is being reviewed and hopefully will come back before the Board at the next meeting, April 19.  He discussed briefly the residential properties stating that three of them have signed the Offers to Purchase and four of them are in final negotiations.  The adjacent property of 4.52 acres, the owners are asking more for the property than at the last Board meeting.  The main reason the County wanted the adjacent piece of property was for parking.  David discussed the parking situation briefly stating that some County employees are in the office briefly in the morning and then gone most of the day (in the field). He asked for some further direction from the Board on the adjacent property.


Following discussion, it was the consensus of the Board that we don=t need the adjacent 4.52 acres, not at the current asking price.   David stated that he would like to have direction by motion regarding the adjacent property.  Commissioner Ward made the motion to direct staff not to continue to negotiate on the adjacent piece of property (4.52 acres).  All voted in favor and the motion carried.


Angela explained the ways that counties can sell properties.  David expects some offers on county owned properties in the near future, such as the Health Department, Nuckolls Building, and Land Development Building.


David plans to bring the purchase agreements for the Carolina Apparel Building and the seven residential properties to the Board at the next meeting, April 19.  At that time he will request approval to send out the packets for the Architectural Request for Qualifications. 


David reminded the Board that bringing all these departments together should help foster a better working relationship between our departments.  It will definitely be more convenient for the public as most county departments will be in one location.  It will save money in maintenance and in utilities costs.   He also reminded the public that the new facility will not affect in any way the money that the Board has put aside for school projects.  



1. Donald Walski - Mr. Walski spoke about Silico Fluoride which is the fluoride that is put into the water system in Hendersonville and in Asheville.  He read from a forensic science report from Dartmouth University referencing Silico Fluoride and the dangers to humans.  He requested that a committee be formed to study the effects of fluoride in our water system and that it involve: parent/teachers associations, the Sheriff=s Department, and our public health department - no politicians.  He stated that this is a political situation.


Chairman Hawkins reminded Mr. Walski that there are things that the Board can do and things that they can=t.  The Board of Commissioners does not control the water supply in Henderson County, it is run by the City of Hendersonville.  Whatever chemicals are set for water quality are set at the State level.


Mr. Walski stated AYou do control the Health Board, you appoint the Health Board, don=t you?@


Chairman Hawkins stated that the Commissioners appoint some of the members of  the Health Board. Commissioner Gordon stated that she is on the Health Board and that Mr. Walski has talked with the Director of the Health Board, Tom Bridges, and herself about some of these issues.  Mr. Bridges has corresponded with the State about some of these issues and had gotten a letter back from the State reinforcing the State=s position on fluoridation.  Commissioner Gordon offered to bring this up at the Board of Health meeting next week if the Board wished.  She did state that Mr. Bridges had already spent quite a bit of time on it.  It was the decision of the Board for Commissioner Gordon to bring this up at the Board of Health meeting next week.


2. Jonathan Olds - Mr. Olds spoke to the readdressing project.  He was in opposition to readdressing the entire county.  He realized that there are areas that need attention such as renumbering where numbers do not run in sequence, naming un-named roads, and readdressing where there are duplicate street names.  He felt that it was a mistake to mandate a revolutionary system such as being proposed and did not feel that the benefits were worth the cost in time and money.  He is a resident of Tamarac for the past 12 years.  Of the 75 homes in Tamarac, he said 95% oppose the readdressing and 5% approve.


3. Ron Davis - Mr. Davis is the Treasurer of the Etowah Lions Club and spoke on the Club=s behalf. He read a letter of appeal addressed to the Henderson County Commission. They would like to see the park finished for the maximum benefit to the county.  They want:

C                     the 3rd ballfield lighted

C                     the 4th ballfield finished and lighted

C                     the hiking trail paved

C                     the parking lot paved

C                     the picnic shelter built

C                     the soccer field built

C                     the landscaping finished

They would like to see things done at a faster pace. 


He reminded the Board that the Etowah Lions Club spent $100,000 to procure the land for this park  (the community at large donated $30,000 and the Etowah Lions Club donated $70,000). The property was then deeded to the County. 


He read from the letter of appeal - AWe strongly urge and recommend that you include significant funds in the upcoming budget to get on with the task.  We believe that the park should be completed within two years.  This means allocating the money and then seeing to it that the job is done.@  


The Etowah Lions Club commits that they will continue to help but their financial assistance must be in conjunction with the county budget.


4. Eva Ritchey - Ms. Ritchey addressed Safety Net Zoning.  She stated that it will not give the community the direction that is needed.  She asked that the Board delay and put aside safety net zoning in favor of a more directed type of planning for the community.


She also addressed Arts in the Community.  She is a teacher and she stated that she has seen many children who could not be reached except through arts.  She stating that reading, writing, and arithmetic are about survival but art is about living. 


She expressed concern about funding for arts and asked the Board to support funding for the grassroots program.  


PUBLIC HEARING - To Consider Request for Economic Development Incentives

Commissioner Kumor made the motion for the Board to go into Public Hearing to consider a request for economic development incentives.  All voted in favor and the motion carried.


Angela Beeker reminded the Board that this public hearing was being held to consider the request of UPM-Raflatac, Inc. for economic incentives.  UPM-Raflatac purchased a lot in Broadpointe Park in 1998 as a potential site for an expansion of their facility, currently located in Cane Creek Industrial Park.  UPM-Raflatac, Inc., recently announced their intent to construct a $45.0 million facility in the United States.  Local management would like to have the facility constructed here in Henderson County and has requested an incentives package to take to their corporate headquarters in Finland in hopes that they will agree.  If approved, the facility would create 180 new jobs and the 40 jobs currently in Henderson County would be retained. The average wage would be $20 per hour for the plant employees.  Additionally, the company would provide a full benefits package.


The requested incentives consist of an amount not to exceed $1.0 million as a reimbursement for site preparation and possibly road construction.  Included also in that $1.0 million would be the County=s cost to install a water line to extend to the site.  An estimate of the costs associated with the project was reviewed.


This public hearing was properly noticed in the Times-News on March 21, 2000 as required by NCGS 158-7.1.


Angela Beeker informed the Board that under the Economic Development Incentives Guidelines a $45 million investment and the creation of 220 jobs would qualify Raflatac for an annual incentive of $225,000, that would be five payments of $225,000. The $1 million is a cap.  If approved, the incentives would be granted on a reimbursement basis for the actual costs expended for the site preparation, the water line and the road.


Public Input

1. Bill McKibbin, 2. Scott Hamilton - Mr. Hamilton came forward and with him Bill McKibbin who is the new Chairman of the Committee of 100 of the Greater Hendersonville Chamber of Commerce.  Mr. McKibbin introduced members of the Executive Committee of the Chamber of Commerce who were in the audience as well as members of the Committee of 100.  He stated that he would try to answer any questions the Board might have.


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


Commissioner Moyer made the motion to approve this request subject to preparation and approval at a later meeting of an agreement which will set forth and incorporate the terms that are outlined in the papers that we have and that Mrs. Beeker described.   All voted in favor and the motion carried.  


Chairman Hawkins thanked the Committee of 100 for their good work.


CONTINUATION OF SPECIAL CALLED MEETING - Carriage Park Special Use Permit (SUP) #SP-93-13 (Quasi-Judicial Proceeding)

On Thursday, March 23, 2000, a special called meeting was held to consider the petition of the Carriage Park Homeowner=s Association requesting the suspension or revocation of the special use permit held by Carriage Park Development Corporation for the Carriage Park Planned Unit Development (PUD).  The Board conducted a quasi-judicial public hearing but continued the meeting to tonight at 7:00 p.m. to discuss the evidence presented and to render a decision.  The Board must render a written decision no later than May 5, 2000, 45 days from the March 23, 2000 hearing. 


The Commissioners had brought their packets of information from the previous meeting for reference. Mrs. Beeker asked the Board if they thought that the fact that all the open space had not been conveyed to the homeowners association constituted a violation.   Her second question was whether the driveway constructed across open space on Tallyho Lane constituted a violation.  She asked if the Board felt that the Special Use Permit required conveyance of open space by warranty deed.


Chairman Hawkins called this special called meeting back to order. 


Angela Beeker - ABasically there are two questions that are presented to you for your consideration this evening. The petition itself raised one and then the second kinda came up as part of the opening arguments for the parties.  But the first question is Adoes the fact that all the open space has not been conveyed to the Carriage Park Homeowners Association yet - is that a violatio of the Special Use Permit.@  The second question is more specific and that is regard to that Tallyho Lane - the driveway that was constructed to access Tallyho Lane that cut across the corner of the open space - was that a violation?  With respect to the first one - the argument made by the petitioners is that basically when the Zoning Ordinance says that common open space shall be guaranteed by restrictive covenants described the areas and facilities and their maintenance and improvements - does that word guarantee - does that require a conveyance by deed?  What the special use permit requires by its terms is that open space be placed on record as development parcels are approved.  The petitioners= position is that that is not enough - that in order to make that guarantee that open space actually has to be conveyed by warranty deed - so that=s the first question that=s before you this evening.@ 

Chairman Hawkins - ADo we have any - any discussion on that?  We=ll just take the two questions as separate questions.@


Commissioner Kumor - AMr. Chairman, I had some questions - just with regards to what the petitioners were talking about.@


Angela Beeker - ASure.@


Commissioner Kumor - AThey seem to suggest that their biggest concern was not finding the placement on the plat as reliable confirmation that this would remain open space.@


Angela Beeker - ARight.@


Commissioner Kumor - AAnd I don=t understand if it=s within our jurisdiction at this time to - because it=s not stated anywhere that it has to be actually deeded over.  Is it within our jurisdiction at this hearing to make that an explicit change?@


Angela Beeker - AThey=re asking you to interpret that word >guarantee= to mean that putting it on the plat is not enough.  There are a couple of ways that you could - if you determine that the word >guarantee= does mean that then your word would stand subject to them appealing that - O.K. - the other way would be to find something in the special use permit itself that might require that conveyance - so you can interpret what you think the zoning ordinance and the special use permit require.  Does that make sense?  Now basically what the petitioners attorney argued and I=m speaking for him - anyway is that under NC law putting it on a plat doesn=t guarantee that it would be there.  His argument was that basically the developers could do anything they wanted to with it - that=s an over simplification but basically that=s what he argued .  Now the respondent=s attorney said no, NC law is clear - putting it on record will protect- you know with the plat - will protect the homeowners.  So they have a different take on what the NC law requires.  But I think it=s up to you just to interpret the ordinance - do you think that that word >guarantee= means to place it on record - is that good enough and with the restrictive covenants or do you think that the only way to guarantee it is by a deed?@


Commissioner Kumor - AI=m going to ask you another question.  If it=s on record and presumably on a plat - if the developer chooses to change its character - in any way change its character or remove it from open space, don=t they have to come back to us to get approval?@


Angela Beeker - AYes, well actually there are two things - the open space that they place on record is open space that has been approved as open space through the approval process that was set up in the special use permit.  So before they can change the plan that was approved - yes they have to come back for approval by you in most circumstances.  The last amendment to this special use permit was quite lengthy and was very careful to point out when they have to come back to you for approval or when they might have to go back to the Planning Board for approval.  But in most cases they have to come back to the government - the Henderson County Government for that approval - yes - but also though under NC law as I interpret it that=s a change to the plan - a change to what=s already been recorded over in the Register of Deeds office would in my opinion require them to get the agreement of all the homeowners that are out there.  I don=t think they can unilaterally go and remove something off the record.@


Commissioner Kumor - ASo, based on your interpretation as you advise us - the homeowners aren=t at as much risk as they anticipate they=re at?@


Angela Beeker - AThat=s right - for the ones that have already been approved and recorded, yes that=s correct.@


Commisioner Kumor - ABut if that=s the case, do we have to - if we accept your advice and interpretation, is it prudent to put that interpretation in our findings of fact?@ 


Angela Beeker - AAbsolutely, I think you would have to do that so that the question wouldn=t come up again later.@


Commissioner Kumor - AThose are my questions.@


Chairman Hawkins - AOK, Angie, I have one on the section 233-D and that=s out of the Zoning Ordinance which is one of the areas that was cited - it talks to open space shall be quaranteed by restrictive covenants.  We in fact have a restrictive covenenant - I think on attachment one or exhibit one restrictive covenants.@


Angela Beeker - ACorrect.@


Chairman Hawkins - AAnd on that it deals with on paragraph 8 and that=s on page 4 I guess if anyone=s looking or page 594 in the deed book - it talks to what common areas are and that they=re declared by the association to be common areas etc. so I guess the question that would pose is that as I look at 233-D and it calls for it being guaranteed by restrictive covenants then in fact there is a restrictive covenants which I assume is the guarantee not that the restrictive covenants guarantees a warranty deed but that it is covered by or guaranteed to be covered by restrictive covenants.@


Angela Beeker - AYes, I think even the respondents can see that restrictive covenants ultimately require that they do convey the open space it=s just a matter of timing - when do they have to convey them?  The homeowners association feels like they already should have conveyed some and therefore since they have not they=re in violation.  So yes, we do have a set of restrictive covenants but basically what the restrictive covenants do is they guarantee open space once its been created - OK - until it=s been created there=s no open space to protect.@


Chairman Hawkins - AOK, now in the special use permit - item 14 where it addresses open space and it says that is shall record evidence that the required open space has been placed on record - when it=s platted - does that not cover the open space required by the special use permit?@

Angela Beeker - AYes, the restrictive covenants say what they can and cannot do in their open space as well as the special use permit and the approved plan.@


Chairman Hawkins - AAnd I think back to Commissioner Kumor=s question.  Really the restrictive covenants is outside of our jurisdiction I guess if you will as far as enforcement of the restrictive covenants - that is not a line of authority for the Board of Commissioners - only the special use permit.@


Angela Beeker - AThat=s my opinion, yes.@


Chairman Hawkins - ABill, do you have any questions or comments?@


Commissioner Moyer - ANo, not at this moment.@


Angela Beeker - AThere is one other thing I=d like to point out to the Board that no one pointed out in the hearing - but in fairness I think that you should be aware of - all the things in the special use permit that talk about open space.  I had referred you to that third amendment A-3 - I don=t know if you have it with you.@


Chairman Hawkins - AThe common areas?@


Angela Beeker - AYes, there is a definition of common areas in there.  Open space is considered to be a common area and in that definition - and it=s specific now only to this special use permit because it=s not in the Ordinance but it=s in the permit - for this purpose of this permit it does say that common areas are any areas shown on the research master plan or amendments thereto and owned by or to be owned by the Carriage Park Homeowners Association.  So, I think that the permit contemplates that eventually the association will own the property but there=s just not a timeframe specified.@


Commissioner Kumor - AI understand that but I think that the only other issue they are concerned that when they eventually own it they eventually own what was designated on the plat.@


Angela Beeker - AYes, well I think this contemplates that eventually they will get that warranty deed.  OK because they will own it.@


Commissioner Kumor - ABut that=s not what I said - what I said was if I understand what the homeowners were talking about was they were concerned that without the warranty deed some of the open spaces may evaporate.@


Angela Beeker - ABetween now and then, that=s right.@


Commissioner Kumor - AAnd what you answered to me was that your interpretation is that once it=s on the plat and recorded as an open space it is just short of being a warranty deed but is in fact an open space and will be conveyed to them and to get it changed on any of that means that they have to - the developer has to come back to the Board of Commissioners and ask for permission of - if it=s already designated and ask permission of the homeowners if they choose to change it in any way.@


Angela Beeker - ACorrect, it actually has to be designated with the word open space or something like that on it to indicate - the idea is that when people buy in there and they see that plat with open space written on it - they rely on that when they purchase it so they acquire what=s called a negative appurtenant easement and so yes what you say is exactly correct.@


Commissioner Gordon - AIsn=t it also - perhaps not relevent to this decision but relevent to Renee=s point as to what can happen with that open space to remember that the density that they already have was determined by the existing zoning and that open space was the trade off for the ability to cluster the homes so if you separate that open space from the PUD you would be totally in violation of all the zoning.@


Angela Beeker - ARight.@


Commissioner Gordon - AAnd it wouldn=t be just a matter of a PUD, there would be essentially no legal way to use that property because the density has already been claimed in the construction that=s there.@


Angela Beeker - AThat=s right.@


Chairman Hawkins - AThen would that not guarantee the open space?@


Commissioner Kumor - AWell, I think it=s also - since Don & I were born with this development.@


Commissioner Ward - AI=ve spent most of my adult life hearing it.@


Commissioner Kumor - AThat if we=re not explicit in what we say - we have learned that to be extremely explicit is probably the fairest way to deal with the developers and the homeowners because each one of them has a different interpretation and the more explicit we can be as we=ve learned - the more we head off a lot of these concerns that either party has.  So that when we want to make a determination we should be less relying on our intent and more relying on what we exactly mean.@


Commissioner Ward - AFact.@


Commissioner Kumor - AYes.@


Chairman Hawkins - AO.K., I think you know - come back to the question that=s realy on the table  - is whether of not from the evidence you=ve looked at whether or not it=s your opinion that there is sufficient indication in the documents that you=ve looked at or the people you=ve heard from to indicate that you think that the open space at this time should be transferred via warranty deed to the homeowners association - that I think is one of the first items for us to look at and I=ll just have to ask your opinion on that - what are your thoughts on it - Marily do you have thoughts on that - looking at what we=ve looked at?@


Commissioner Gordon - ALet me be real clear on what you=re asking - I can find no - nothing that would support our authority to require transfer of title - I hope I=m saying it clearly - but in looking back through the SUP and also through the PUD section of the Zoning Ordinance - I just don=t find any reference that specifically states that that title has to be transferred - now there are provisions in there for restrictions and we have some criteria that have to be met in the deed restrictions but our authority doesn=t go beyond it meeting those criteria and so I think that there=s a bound there that we can=t cross and I just don=t see that we have the authority to call for that or that that=s a requirement of what we have the authority over.@


Chairman Hawkins - ABill.@


Commissioner Moyer - AWell, I was waiting to hear - you know I was ready to speak on this and did speak there at the last meeting and I would very strongly agree with Marilyn but I don=t know if you can phrase it the way you phrased it - it=s not what we would like - and whether we would like the land conveyed to them it=s what the documents provide for and right or wrong - how they were drafted - I do not think it remotely gives us the authority to demand that this open space be conveyed by deed.  I think it=s an issue that could be thought or and in the future we may need to think about but in interpreting the documents that are in front of us and based on the evidence that=s put on the record there=s simply no justification or authority for us to force the conveyance of that property.@


Chairman Hawkins - ARenee, your thoughts.@


Commissioner Kumor - AAnd I understand what Bill is saying and what Marilyn is saying - my biggest question is that in our findings of fact can we not make a statement that reminds both the developer and the homeowners of the facts that are out there such as Marilyn raised with regard to density is dependent on the open spaces remaining and that our interpretation of reserving that property and as long as it=s on the plat it=s our interpretation that this is and will be open space for the term of the development and as long as those facts can be there I think the statement and the question that the property owners ask - we say there=s nothing specific to say you have to have a deed but there is a lot of evidence that says we can clarify our position better.@


Angela Beeker - AUh huh.@


Commissioner Moyer - AWell, I think you can say the first statement that you made Renee but the second one - the document does not support it because you have provided a mechanism in the SUP to reclassify open space or common areas if they come before the Commissioners so you can=t make a finding of fact that it will be forever ---@


Commissioner Kumor - ANo, but it ---@


Commissioner Moyer - Aremain that@


Commissioenr Kumor - AExcuse me, yes you are exactly right but at this point it is our interpretation that the open space has been designated and that as Angie pointed out to us that if they choose to come forward to amend the open space it would be something that they would have to do - that the developer would have to do with an active participation of the homeowner.@


Angela Beeker - AAfter it=s already been placed on record.@


Commissioner Kumor - AAfter it=s already been placed on record.@


Angela Beeker - AAfter it=s been recorded.@


Commissioner Kumor - ASo that the homeowners will still have a standing in any discussion on changing the open space.@


Commissioner Gordon - AAnd I think it=s important to note that it would be - perhaps not in those findings of fact but that ability to change the open space would be there for the homeowners association if at some point in 100 years there=s a need to change that that ability is still there.@


Commissioner Kumor - AAnd I think we saw that when they all came together to put the fire station up there.@


Commissioner Gordon - AUh huh.@


Commissioner Kumor - ASo you=re exactly right Marilyn.@


Commissioner Gordon - AWe certainly do not want to lose that because you cannot predict every eventuality.@


Angela Beeker - AUm, let me make sure I=m clear.  In the master plan there=s a little bit of - you know there=s open space shown - it=s not really clear as to exactly what will go in the open space but as they do their development parcels and as they get a preliminary plan approved for a development parcel then it is pretty clear what open space is gonna be there with respect to that development parcel - um, once that preliminary plan has been approved and they want to change the open space they would have to come back and ask for an amendment to that preliminary plan.  Once it=s been placed on record and recorded at the Register of Deed=s office and they would - you know sell that first lot - they cannot go back and change it at that point,   OK, I just want to make sure I=m real clear on that.@


Commissioner Kumor - ARight - but Bill=s saying that they can come before this Board - either the developer or the homeowners or both together and ask for an adjustment.@


Angela Beeker - ASure.@


Commissioner Kumor - AWith remembering what Mailyn brings out that there=s a certain density there so you might not see houses but you may see other things.@


Chairman Hawkins - ABut once it=s platted it=s locked up.  Don, your thoughts.@


Commissioner Ward - AWell, I tell you, I agree with Renee on this.  I think she makes a valid point.  You know I=m not an attorney by no means and when you=re not an attorney common sense is - you just throw it out the window.@


Commissioner Kumor - AWe use common sense cause we=re not an attorney.@


Commissioner Ward - ABut I think when I speak of a guarantte, I think of a recorded guarantee and I think the plat is a recorded guarantee and what a future Board can do and stay within the limits of the zoning classification will be up to the homeowners of Carriage Park making sure the right person=s sitting on this Board and I think Mr. Hamlin has been fair in the past - I mean this must be the millioneth one we=ve heard of this and I think he=s been fair in the past.  I think you need to record in our findings of facts exactly what this Board feels and tell what the homeowners has put forth to use and we agree with them but you know our documents - I think Mr. Hamlin=s followed to the letter of the law of what he can do and what he has done - so - and I=d like to see it recorded in the finding of facts about the guarantee.@


Chairman Hawkins - AI guess the consensus of the Board then - our feeling is that the first item as far as conveying immediately all the open space - we don=t feel that that was supported and substantiated by the facts we reviewed and I=ll put that in the form of a motion and ask if there=s any other discussion.  If that be the case then we=d direct the staff to come back with those findings.@


Angela Beeker - AOK@


Chairman Hawkins - AAny other discussion on that?@


Commissioner Moyer - AThe facts and the terms and the wording of the documents do not substantiate it.@


Chairman Hawkins - ADoes not substantiate it.@


Angela Beeker - AOK@


Chairman Hawkins - AOK, any other discussion on that motion for the first part, eveybody comfortable with that.@


Angela Beeker - AIt might be - you might feel most comfortable not to vote tonight but I just think that I=ve heard the consensus but I can bring back the final order for you to take a look at before you actually vote.  You might feel more comfortable with that.@


Chairman Hawkins - AUh hun, then I=ll withdraw my motion.  OK, the second part was a question that came up in the hearing that dealt with Tally Ho - a specific charge of a violation of the SUP and I guess we need to look at that in and of itself and again I go back I guess because.@


Commissioner Moyer - ABefore you go there let=s see what you=re going to be looking at - what@


Angela Beeker - AYes, the driveway.@


Chairman Hawkins - AThat, it was about a 20 square foot encroachment on a designated open space I believe.@


Angela Beeker - ARight@


Commissioner Moyer - AAnd where are you going from there?@


Chairman Hawkins - AAsk if that=s a violation@


Angela Beeker - AIs that a violation of the Special Use Permit?@


Chairman Hawkins - AThat=s what I gathered was the charge that the homeowners association made that that place in the driveway within that area of the open space was a violation of the SUP.  Did I miss what that was?@


Commissioner Kumor - AYeh, that=s what I thought.@


Commissioner Gordon - AThat really wasn=t a part of the petition in question itself.  That was part of the ---@


Commissioner Moyer - ASited as an example of what can happen - I don=t think any relief was requested with respect to that.@


Chairman Hawkins - AThat specifically - it was alledged that that was a violation.@


Commissioner Gordon - AThey kinda pulled that out of the document but it wasn=t a part of that petition - the petition had to do with ---@


Angela Beeker - AWell, what=s gonna happen if you don=t rule on that - you could see that back next week - that evidence - that same exact scenario to that being called a violation.  It was called a violation in the opening remarks by Mr. Dungan and so if you don=t rule on that question then it could come back.  It was not plead that way in the petition I agree and it was not exactly a part of the relief requested but I think it has come up and so I think it would be prudent then to rule on whether or not that was a violation because you could have the same thing occur next week also and so just to settle that issue I think it would be prudent to make a call as to whether that encroachment is permitted in the Special Use Permit.@


Chairman Hawkins - AI guess that would be a call for the Board.@


Angela Beeker - AYes@


Commissioner Kumor - AWould it mean that if we choose not to rule on this then we would put at risk all the edges - well all of the open space because encroachments can occur because we haven=t been specific as to when they can occur as to when or not they aren=t an encroachment.@


Angela Beeker - AUh huh, it just means that you could have the same - that petition brought back alledged as a violation if you choose not to rule on it.  I agree it was not specifically requested in the relief in the petition but in the opening arguments Council for the association brought it up as a violation and so I - you know - I was surprised when he did that also but since he has raised it then@


Commissioner Ward - AWell, didn=t both sides make comment on that.@


Angela Beeker - AYou heard evidence on it.@


Commissioner Moyer - AYou heard - you heard some evidence but really it was not good evidence to substantiate - I mean we didn=t look at it - there wasn=t metes and bounds.  There was no clear showing that there was a violation.@


Angela Beeker - AWell then that=s what you would say - you would say that evidence doesn=t support that there was even encroachment and then you=ve addressed that part - situation.  You don=t have to presume that there was an encroachment.  Whatever the evidence supports - but I think you need to address the situation one way or another.@


Commissioner Gordon - AI mentioned at the previous meeting - without a survey that establishes a definite metes and bounds for the open space and the degree of the encroachment I don=t think I have been presented with substantial evidence.@


Chairman Hawkins - AThat may be all you need to say.@


Commissioner Kumor - AI thought that the developer acknowledged that this had occurred and that they had dealt with the builder on that property and that had in fact advised everybody that this was on open space.@


Commissioner Moyer - AThey dealt with the bank as I recall the facts and they dealt with the builder on the cut in the bank and that it would have to be restored and everything.@


Commissioner Kumor - AWell, that=s not what I thought.@


Commissioner Moyer - AI don=t think they dealt with the builder on the driveway.@


Commissioner Kumor - AWell, see I thought they also said they acknowledged the cut in the open space for the driveway because we have - I thought it was stated that the developer or the builder was going to acknowledge that he was told to do that.@


Commissioner Gordon - AWhat would the remedy be if the finding was that that was an encroachment - what would our - what would the result be?@


Angela Beeker - AWell, you=d think they=d have to correct it - yes - have to return it back to open space and not let the driveway go through there if you were to so find that in fact encroachment occurred and that=s not allowed by the permit.@


Commissioner Gordon - AMy concern is - I=ve seen so many times when people think their line is one place when its another or when - or where a stake has been moved or a stake isn=t where it should be and you may think that this is so many feet off but in actuality it=s something else.@


Angela Beeker - AUh hun.@


Commissioner Gordon - AAnd that=s my concern with not having a clear defined line that tells me that=s where the line goes and this is exactly what it crossed.@


Angela Beeker - AUm, it may not make a difference whether the driveway crossed it or not, um the way that the SUP is structured especially with that A-3.@


Chairman Hawkins - AIt could be a road.@


Commissioner Ward - AAn open space can be a road.@


Angela Beeker - ARight, a driveway could go in - in other words it says if there is a new or changed use in the common areas and remember roads are common areas, open space is a common area.  They are categorized.  If there is a new or changed use where the new or changed use is within the common area category and no site plan modification is necessary then no review is necessary.  So I don=t think you typically show driveways on a site plan and so it may be that regards to whether there was encroachment or not it makes no difference.@


Commissioner Gordon - AWell, I think a comment was made that most often the roads themselves do not go to the edge of their right of way and that is common area.  So you have many driveways that cross what is technically defined as common areas.@


Commissioner Kumor - AOh no, the roads are common area too.@


Chairman Hawkins - AYeh.@


Commisisoner Gordon - ABut I mean parts of what someone may consider their yard may be technically part of common area.@


Angela Beeker - AWell could we poll the Board to see what the evidence proports - whether there was evidence or not and then get to the question of the SUP and what it would allow and would not allow.  Would that be appropriate, Mr. Chairman?@


Chairman Hawkins - AWell, we can do that if - I guess as I look at the definition of common areas that is kinda where you was - if the driveway went through a common area according to the definition it says that areas of facilities, roads, lakes and streams are all common areas.  So you would have a common area in a common area type think so I don=t - just reading - that was the reason I was curious about when A-3 was enacted because this road certainly falls under that third amendment which redefines common areas and that=s the definition for it and so I would find that hard to substantiate and I don=t know what everybody feels.  Marilyn, do you think that=s correct?@


Commissioner Gordon - AYeh, I can=t substantiate it based on what I=ve been given.@


Chairman Hawkins - ABill, what your@


Commissioner Moyer - AI don=t think we have sufficient facts to show whether there=s been an encroachment or whether that is in fact a violation.


Angela Beeker - AOK@


Commissioner Moyer - ABut I would be very concerned about putting language in there that they can by their own statement run driveways all through the common area/open space and if that would be the thrust of what we=re saying then I would have real problems with that - that=s why I=m concerned about ruling on an issue that=s not a part of the relief that was properly argued in the case.@


Chairman Hawkins - AWell, let me ask the Board another question. Do you want to rule on this issue or not - let=s back up to that point.  Don, do you want to - do you think we need to make a ruling on that - it was not part of what was presented to us - it came up - we certainly can - was aware of it - we didn=t pursue it in a great deal of detail other than looking at the maps and the picture of the cutback on the lot.@


Commissioner Ward - AI thought both sides talked about it and answered it and I thought the Carriage Park said they was addressing that situation - so it brought up - I don=t think without the boundaries - I don=t think you can actually say where the property line is without enough evidence yea or nay - is you say it was encroachment - you know you gotta like Marilyn said you gotta have a boundary there to go to and it could be encroachment but without that boundary mark there it just - you just couldn=t say.@


Chairman Hawkins - ASo you don=t feel comfortable with making a ruling on it?@

Commissioner Ward - AI couldn=t without the boundary marks.@


Chairman Hawkins - ARenee, what=s your ---@


Commissioner Kumor - AI=m back at a more basic question and that=s what the other issue Bill just raised is how can we be specific enough in what we anticipate it is or is not an open space so that the homeowners aren=t always concerned that there=s been a paving over or an escapement - a release of a certain piece of property or a piece of property disappearing from its open space designation by a driveway or any other encroachment.@


Commissioner Ward - AReclassification of open space.@


Commissioner Kumor - AAnd how do we - how do we guarantee that because the developer - I think has - it=s fair to him to know that too because otherwise every time he has to make a change or do something or as in this case the builder took down more of the bank than he was suppose to take down and it has to all be repaired.  How=s everybody going to know - by what measure we are dealing if we=re not going to take a position.@


Commissioner Moyer - AWell, it goes back to what I said before Renee, and I think the way I would deal with that is to not rule on it because it is not part of the relief requested - give it back to the developer and the homeowner association to work out - if they cannot then they can file a specific action on that matter and ask specific requested relief and then we have the ability to do something.@


Commissioner Kumor - Now that makes sense to me Bill, why didn=t you say that to begin with?@


Commissioner Moyer - AI was waiting to hear what you said Renee.@


Commissioner Gordon - AWell, I agree, I don=t feel like we should rule on something when we really haven=t had a presentation just to that point and I would certainly hope that - I think there are already indications that some of these problems have been worked through and I would hope that this would not come back to us just based on people being able to work things out.@


Commissioner Kumor - ABut my experience is if we don=t get explicit than neither side up there at Carriage Park understands what we were saying.@


Commissioner Gordon - ABut uh - I just - we can=t rewrite the SUP - we have to go based on what is on paper and that=s all we can do.@


Commissioner Moyer - ABased on what we have as the question in front of us we can=t rewrite it - a different action would be a different matter.@


Commissoiner Kumor - ARight@


Chairman Hawkins - AI think the consensus of the Board Angie is that we=re not gonna address this - that specific item that came up so your direction would be to address that first question that you=ve already gotten your direction on.@


Angela Beeker - AIf it pleases the Board, I would like to say that in the order - that because it was not part of the relief requested - the Board has chosen not to take up that issue.


Chairman Hawkins - AOK@


Commissioner Kumor - ACan you also say the Board anticipates them working it out and we don=t want to hear it?@


Laughter - in unison.


Chairman Hawkins - AIs there any other - any other discussion?@


Commissioner Ward - AI want to have a ruling on that one.@


Chairman Hawkins - AOK we=re gonna come out of uh@


Commissioner Kumor - AOK@


Chairman Hawkins - AThis hearing if you would and@


Commissioner Moyer - ABut we=re gonna get - she=s gonna draw up an order and findings consistent with what we said here and bring it back to us at our next meeting.@


Commissioner Kumor - AThat=s exactly, that=s what I heard.@


Chairman Hawkins - AAnd I make a motion then that we go out of this public hearing - all those in favor of that motion, say aye.@


In unison - AAye@


Chairman Hawkins - AOr Quasi-Judicial hearing I guess is the right word and I=d entertain a motion to go into closed session.@



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


   Henderson County v. City of Hendersonville


2.(a)(4)            To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body.


3.(a)(6)            To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment or 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.


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



The Apple Country Greenways Commission had completed the conceptual planning for the Oklawaha Greenway.  They are currently seeking funding sources for the project.  However, before they can proceed with applications for funding, they must seek conception approval and endorsement from Henderson County.


Mike Egan requested the Board=s support and adoption of a Resolution Endorsing the Proposed Oklawaha Greenway Project.  He planned to request support and endorsement of all four of the Counties municipalities and Henderson County.  He showed a map of the proposed greenway project.  The greenway runs 2.1 miles and is 80% in public ownership.  It is a strong candidate for grant funds. 


thru tape #2 --- bad, fuzzy tape


Commissioner Kumor made the motion to adopt the Resolution endorsing the conceptual approval of the proposed Oklawaha Greenway and to endorse and support the efforts of the Commission to develop the said Greenway and to go out for grants.  All voted in favor and the motion carried. 



Ann Grant, Director of the Henderson County Arts Council addressed the Board. She handed the Clerk petitions with 600 signatures endorsing access to arts programming and requesting the county to match the $22,766.


Ms. Grant asked the arts supporters in the audience to stand.  Nancy Bockhaus, Board President for the Henderson County Arts Council joined Ms. Grant at the podium.  Ms. Grant stated that theirs is an educational function in dispersing grassroots funds from the State of North Carolina.  It is not a charitable function.  Ms. Grant stated AYour predecessors understood our function in 1982 when they made our predecessors of the Henderson County Arts Council their designated county partners to receive grassroots funds from the State of North Carolina which they matched and more, not just matched.@ 


LGCCA- Update

This was an add-on by Commissioner Moyer.


Chairman Hawkins stated that he had a letter from Mayor Terry Hicks asking for input. 


Commissioner Kumor had given Chairman Hawkins an outline of what she proposed to discuss at the next LGCCA meeting regarding jail information (JWAN).  Commissioner Kumor will review for the Mayors what exactly are the County=s responsibilities with regard to jails.  Sheriff Erwin will review what his proposal is for centralizing information and how some of the technology will be operating that he and his staff have envisioned functioning inside the new detention center.  Larry Nordlinger will do a quick demonstration of what our JWAN information system is.  Plans are to wrap up with a presentation on the importance of centralized booking with some computer information that IT staff has been helping with, with regard to how we can demonstrate to the Mayors that we can manage central booking with a program from Visions.     Commissioner Kumor plans to ask the municipalities to share in some of the costs because they will be better served as well.


The next LGCCA meeting is scheduled for April 6 at 1:00 p.m. at the President=s Dinning Room in the Killian Building at Blue Ridge Community College.



This was an add-on by Commissioner Ward.  Commissioner Ward had prepared a typed statement (1.5 pages) which he asked Commissioner Kumor to read for him.


Commissioner Ward started with giving a little history of ASafety Net Zoning@ stating that it was not a radical new concept but rather was somewhat modeled after an existing ordinance in Spartanburg, S.C..  While not prohibiting developments it would set standards for certain developments on a County wide basis.  The primary reason the Board was considering this approach was to have an additional tool in place to deal with perceived undesirable growth and hopefully to reduce the number of county wide moratoriums. The Board had been working for some time on different concepts of land use such as LUGS and safety net and even some discussion of adequate facilities.


The Board had developed a three phased strategy to address planning needs.  Included in this was an updated Land Use Guide approved last fall, a rewrite of the Zoning Ordinance, Safety Net Zoning and a study of corridor/high growth areas.  In a letter from the Board of Commissioners to the Planning Board dated March 8, 1999, the Board asked for the Planning Board to Astudy the recent established ETJ (extra territorial jurisdiction) of the Town of Laurel Park and make a recommendation to the Board of Commissioners concerning an appropriate zoning classification.  It was also restated to the Planning Board that the Commissioners top priority was to proceed with and complete the County wide Safety Net Zoning.  The second priority was rewriting the Zoning Ordinance.  After the re-write has been completed the Board would then request that the Planning Board study the areas immediately adjacent to the municipal boundaries and recommend to the Board of Commissioners the appropriate zoning classification as contained in the zoning ordinance rewrite.


In an effort to expedite the process further, the Board advised the Planning Board on April 21, 1999, that a special appointed committee, led by Commissioner Moyer and county staff, would even complete the first draft of the Safety Net or as it had become known as AOpen Use@ Zoning Ordinance.  A decision was made to hire a Company (Benchmark) to complete the Zoning Ordinance rewrite. 


On March 21, 2000, the Planning Board Chairman advised the Board of Commissioners that he expected a mid year completion of the rewrite of the ordinance but that by trying to incorporate other stand alone ordinances such as towers, junk yards, etc. it may extend the time frame.  In a follow up letter dated March 31, the Planning Board Chairman requested further direction on the incorporation of ASafety Net Zoning@ concept in the ordinance rewrite. 


The draft Open Use/Safety Net rewrite returned from the Planning Board in many ways attempted to make the concept more in line with traditional zoning by adding many extra parameters.  The half dozen items originally contemplated for the standards and thereby reduction of moratoriums is still a viable concept. 


The Commissioners= most pressing priority for the next couple of months will be the FY budget.  ATherefore, it would seem appropriate to direct the Planning Board to proceed with the Zoning Ordinance rewrite as outlined in the original plan or add to the Zoning Ordinance rewrite as an option.  The Board should still examine the draft ordinance for a resolution before abandoning this concept.  In a broader sense, we need to examine the structure of our Planning Board.  The routine duties of review and regulations have left little time for other functions.  I would suggest that the Board of Commissioners issue a new charter for the Planning Board similar to those issued recently to establish new Boards, and expand the membership.  The Charter should further define the relationship between the Elected Board of Commissioners and the advisory function of those who volunteer to serve.@


Much discussion followed, including but not limited to the following - AWith respect to the rewrite of the Zoning Ordinance..... it makes a substantial difference to the structure of that document whether the County is entirely zoned or it is not because what we=ve been laboring with for many  years is having a separate ordinance in many cases for the zoned and unzoned sections of the county.  If it was known that the entire county was going to be zoned then you can write the Zoning Ordinance rewrite one way.  If it=s not going to be zoned, then you can=t do that because you end up with a problem of no protection at all in the unzoned areas so we=re caught in a dilemma and if the Planning Board is going to meet their July, end of June - July deadline they=ve got to give some guidance - have some guidance on how to proceed with writing these documents.@  Right now the Planning Board doesn=t know which way to go. 


Chuck McGrady, Chairman of the Planning Board, came forward and stressed that they did need some direction from the Board of Commissioners.  Based on discussion he had heard at this meeting stated ABased on this discussion, we=ll take our direction as being that we will come back to you, hopefully by July 1 with an integrated rewrite of the Zoning Ordinance, i.e. what that means for me is that Safety Net Zoning will be in there, assuming that that will be put in place and that=s what we=ll try to deliver.@



There was some discussion as to when to set the annual NC DOT Secondary Road Public Hearing.  The Board set this public hearing for May 11 at 9:00 a.m. The Clerk will notify NC DOT of the Board=s decision.


The Board set budget workshops for May 3, 8, and 9 at 2:00 p.m. each day. 



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


Henderson County v. City of Hendersonville

All voted in favor and the motion carried.


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


There being no further business to come before the Board, the meeting was adjourned at approx. 10:03 p.m.




                                                                                     Elizabeth W. Corn, Clerk to the Board                    



Grady Hawkins, Chairman