STATE OF NORTH CAROLINA                                           BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                                APRIL 19, 2000


The Henderson County Board of Commissioners met for a regularly scheduled meeting at 9:00 a.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 Gordon led the Pledge of Allegiance to the American Flag.



David Nicholson gave the invocation.



David Nicholson deleted Item AC@ from the Staff Reports - County Service Building. There were objections from the Board.  It was not deleted.  There will be discussion of that item.


Mr. Nicholson added one item as Discussion Item AC@ - Local Government Partnership Application and one item as Discussion Item AD@ - Green River Fire Dept. Lease Purchase.


Commissioner Gordon added one item as AE@ under Discussion Items - The Cliffs @ Brevard Falls.


Commissioner Ward added two items to be discussed as Item AF@ under Discussion Items - Transportation Development Committee, 176 corridor, rock quarry and the need for a caution light at the drive approaching Outback Steakhouse.


Commissioner Moyer asked for one item to be added to the Closed Session request - discussion of a pending lawsuit, Henderson County v. City of Hendersonville.


Chairman Hawkins stated that the Informal Public Comments would be at 10:30 a.m. rather than the 6:30 p.m. time printed on the agenda.


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


Commissioner Ward made the motion to approve the Consent Agenda.  The CONSENT AGENDA included the following:



Minutes were presented for the Board=s approval of the March 10, 2000 special called meeting.


Tax Collector=s Report

Terry F. Lyda, Tax Collector, had provided the Tax Collector=s Report, current as of April 10, 2000.


Road Petition

The Board received a road petition for addition to the State Maintenance System for Loggers Run  & Eagle Rock Trail in Rambling Ridge Subdivision.


It has been the practice of this Board to accept road petitions and forward them to NC DOT for their review and consideration.  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.


Office of Juvenile Justice - Discretionary Grant

The Youth Programs Department had submitted an application for discretionary grant funding in the amount of $26,000 for a 14-passenger van to the North Carolina Office of Juvenile Justice.  This application was done through a Program Agreement Revision.  The Henderson County Juvenile Crime Prevention County approved the application at their last meeting.


Raven Rock Fire District - Fire Protection Contract

A draft Fire Protection Contract for the Raven Rock Fire District was reviewed as well as a map showing the Raven Rock District. 


Saluda Volunteer Fire & Rescue, Inc. is currently providing fire protection services in the Raven Rock District and wishes to continue such services.  The proposed contract calls for Saluda Volunteer Fire & Rescue, Inc. to provide fire protection services in exchange for receiving the fire taxes from the Raven Rock District.  As written, the term of the contract expires on June 20, 2001 with automatic one-year term extensions until either party gives eight months advance written notice of termination or the contract is terminated due to a breach of its terms.


This draft has been presented to Saluda Volunteer Fire & Rescue, Inc. and the letter dated April 10, 2000, shows its approval.


Correction to a set of approved minutes - June 29, 1999, special called meeting

A citizen had called our attention to an error in the June 29, 1999 set of minutes.  The meeting was listed as a regularly scheduled meeting but was a special called meeting and that change needs made on page 1 of those minutes.


All voted in favor and the motion carried.



Notification of Vacancies

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


1. Henderson County Regional Water Forum - 1 vac.

2. Juvenile Crime Prevention Council - 5 vac.

3. EMS Council - 2 vac.

4. Mountain Area Workforce Development Board - 2 vac.

5. Henderson County Board of Health - 3 vac.

6. Henderson County Hospital Corporation Board of Directors - 1 vac.

7. Child Fatality Prevention Team - 1 vac.

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

9. Nursing/Adult Care Home Community Advisory Committee - 1 vac.


Chairman Hawkins reminded the Board that at a previous meeting the Board had appointed Charles Summerrow to the Western Carolina Community Action (WCCA).  Mr. Summerrow has resigned due to conflict of interest.  Chairman Hawkins nominated James Lindsey to fill that vacancy.  He made the motion to suspend the rules and appoint Mr. Lindsey.  All voted in favor and the motion carried. 



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 - 4 vac.

    Nursing/Adult Care Home Community Advisory Committee - 5 addl. vac. for the year

Commissioner Kumor nominated Patricia Jurima, Alice Roberta Allen, and Kathryn Morrison.  A vote was taken and the motion passed unanimously.


3. Mountain Area Workforce Development Board - 1 vac.

Chairman Hawkins stated that the Chamber of Commerce has recommended Donna Cator for this vacancy.  Chairman Hawkins nominated Ms. Cator.  All voted in favor and the motion carried.


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.  David Nicholson was instructed to study the feasibility of combining this with the Environmental Committee. 


TRACE PROPERTY - Offer to Purchase and Contract

The Board reviewed an Offer to Purchase and Contract pertaining to the County=s purchase of two  parcels of property currently owned by Dr. and Mrs. Ian Trace located near the Solid Waste Management Facility on Stoney Mountain Road.  Staff had provided a map showing the location of the two properties in relation to the Solid Waste Management Facility and the adjacent County property.


The key provisions of the Offer include the purchase price of $358,000 for the approximate 5.92 acres of property and a closing date of May 1, 2000.  In addition, all obligations and rights stemming from the Real Property Purchase and Settlement Agreement dated April 4, 1996, are to be released or terminated, including the County=s period of non-possession of the 9.43 acres of property that the County purchased in 1996.


The Solid Waste cash account currently has a balance of approximately $352,000, which includes receipts from February.  It is anticipated that the balance will increase as receipts from March are posted to that account.


In the event that the Board wished to proceed with the purchase, Staff had prepared a draft resolution for the Board=s review. 


Board action to approve the purchase of the Trace property and authorize the execution of the Offer to Purchase and Contract and all closing documents consistent with the Offer would be appropriate at this meeting by taking action on the proposed resolution, either as written or as the Board may wish to revise.   The documents have been approved by the sellers.


Following discussion, Commissioner Moyer made the motion to approve the proposed Resolution.  All voted in favor and the motion carried.


ORDER for Quasi-Judicial Public Hearing held Thursday, March 23, 2000

concerning Carriage Park

Staff had prepared, according to Board direction, a proposed order in the matter of the application of Carriage Park Homeowner=s Association for the revocation or suspension of SP-93-13, that Special Use Permit governing Carriage Park development.  The order was provided for the Board=s review and has been faxed to both attorneys who had appeared before the Board. 


Angela Beeker reminded the Board that at the April 3 meeting, the Board by consensus determined that the petition for the suspension or revocation of Special Use Permit #93-13 was basically without merit and directed that staff bring back a proposed order .    Mrs. Beeker distributed copies of the comments received from Carriage Park=s Attorney, Mr. Roy Michaux.  She reviewed those suggested changes with the Board and it was their consensus to approve the changes. 


Commissioner Ward made the motion to approve the draft order as amended.  All voted in favor and the motion carried.   Staff will prepare the order.



Chairman Hawkins stated that the Board had a request from the company involved in the contracting for the Carolina Apparel Building.  They apparently had some other parameters they were looking at and requested that this item be removed from the agenda today but it was the consensus of the Board to continue with discussion of this item today.


David Nicholson stated that he had received the request from Jack Tate, Attorney for the company that is selling the facility to the County. 


A question was raised as to whether the County needed the additional property in question.  Many of the people who will be working in the building are inspectors and visiting Health Nurses and people whose job requires that they be someplace other than their desk most of the working day.


It was determined that the County would be in compliance with the City Building Code for parking spaces, even without the property in question.  Mr. Blalock stated that the City Code requires 318 spaces and we would have 331 but may lose 5-6 spaces due to moving Duke Power lines (for guide wires).


Jack Tate, Attorney for Hunting Creek Associates, stated that Mr. Hall was at the beach on vacation with his family.  Mr. Tate stated that the request was based upon a desire to present the wishes of the Commissioners to at least have the option on these two additional properties due to the need for parking spaces.  They were trying to present the Board with an option that would last until October which would give the Commissioners a considerable amount of time to decide whether or not they wanted to purchase those properties or walk away from them.  The publicity about the purchase has, of course, jacked up the prices substantially. They were concerned about the possibility of obtaining the two properties and the cost of obtaining them if the County chose to proceed at this time.


Following much discussion, Commissioner Kumor made the motion to adopt the proposed Resolution which stated the County=s desire to construct and maintain a County Service Building and to authorize the purchase of same and adjoining properties.


Angela Beeker reminded the Board that five properties are under contract.  The Board will have to pay the earnest money if they elect not to exercise the contracts.


More discussion followed including but not limited to discussion that the price  we=re considering is currently one quarter million dollars over the initial cost estimate. 


A vote was taken and the motion failed as follows:


Aye:     Commissioners Kumor and Gordon

Nay:     Chairman Hawkins, Commissioners Moyer and Ward


Commissioner Moyer then made the motion to reject the offer to purchase the building and the five properties for $2.836 million because it exceeds the anticipated price.


Commissioner Ward discussed that when County Government does this sort of business in open session, it costs (the taxpayers) more to do that business. 


Following additional discussions, Commissioner Ward made the motion to table this item until the May 1 meeting.  He would like to allow Mr. Hall time to come back to town and to present this item to the Board for discussion at the May 1 meeting.


Commissioner Moyer withdrew his above motion.


A vote was taken on Commissioner Ward=s motion. All voted in favor and the motion carried.


Chairman Hawkins called a five minute recess.



There were none.





Angela Beeker reported on the lawsuits with respect to BellSouth Mobility.  There have been three pending lawsuits with BellSouth. 


#1. Most recently, the lawsuit that alleged that our wireless telecommunications tower ordinance was unconstitutional - BellSouth has taken a voluntary dismissal in that action.  Henderson County anticipates receiving some proposed amendments to our ordinances - they have chosen to take that route rather than to pursue a lawsuit at this time.


#2.  There has been no change in the other two lawsuits with BellSouth.  The first was an appeal by BellSouth of a Zoning Board of Adjustment=s decision that the tower on Price Road was in violation of our Zoning Ordinance.  The trial court agreed that it was in violation of our Zoning Ordinance.  BellSouth appealed to the Court of Appeals and that matter is pending before the Court of Appeals currently.


#3.  The last one is an action actually filed by Henderson County against BellSouth to have that same tower taken down and that one has been stayed until the Court of Appeals rules whether the Zoning Board of Adjustment was correct or not.


Asheville Citizen Times

Mrs. Beeker discussed briefly the case filed against Henderson County by Asheville Citizen Times. This matter was heard at the Superior Court level on January 4, 1999.  Superior Court ruled that a closed session held on November 12, 1998 was properly held.  The Asheville Citizen Times appealed that to the NC Court of Appeals.  It was argued on January 4, 2000.  The Court of Appeals issued it=s preliminary opinion on February 15, 2000 and ruled that there does not have to be a pending claim or litigation before the Board can consult with it=s Attorney, that the Board may consult with it=s Attorney to obtain general legal advice. 


However, if an improper closed session is alleged, the burden will be on the County to demonstrate to a Trial Court Judge with an in-camera review through the minutes that the closed session was properly held.  Asheville appealed that ruling to the NC Supreme Court.  Because the Court of Appeals= decision was unanimous, there was no automatic right of appeal before the NC Supreme Court, that was up to the discretion of the Supreme Court.  On April 6, 2000, the Supreme Court denied the request to have the matter heard, in essence they have said that they will not take up review of the Court of Appeals= decision.  The next thing that will happen is the matter will be referred back to the Trial Court, the Trial Court Judge will review the closed session minutes to determine if in fact the closed session was properly held. 


Henderson County sees this as a clear victory in that the Court of Appeals has confirmed that the Board does have a right to discuss legal matters with their Attorney in closed session without having  a pending claim or pending litigation.



Chairman Hawkins informed the Board that on April 26 at 4:00 p.m. there will be a program on Alternative Fuel Vehicles at First United Methodist Church.  That is one of the areas that the Board asked the Environmental Advisory Committee to research for some cost estimates on fueling the county fleet or doing some conversion.


Chairman Hawkins reminded those in attendance that next week is National Secretary=s Week.


David Nicholson reminded the Board of the Public Hearing scheduled for May 4 at 7:00 p.m. on the extension of the corporate boundaries of the Cane Creek Water & Sewer District.  Those letters have been mailed.  Staff will have a pre-meeting at 6:30 p.m. that evening to answer any specific questions that individuals might have before the Public Hearing begins at 7:00 p.m.


Angela reminded the Board that in January of 2000, Carriage Park had submitted an application for an amendment to the PUD.  That was put on hold until this recent matter could be resolved.  The Board needs to set a Public Hearing.  Chairman Hawkins made the motion to set the Public Hearing for May 17 at 11:00 a.m. (Quasi-Judicial Proceeding).  All voted in favor and the motion carried.


The Board set a Safety Net Zoning workshop for May 16 at 2:00 p.m.


Commissioner Gordon informed the Board that the first two weeks in May she will have some days that she will not be able to be available for daytime meetings as she will be in court.


BRCC - Energy Savings Program

Blue Ridge Community College (BRCC) is planning to enter into a guaranteed energy savings contract with CP&L.  The Board of Trustees must have the approval of a proposed resolution by the Board of Commissioners before proceeding with this financing agreement. 


Mr. Nicholson had asked to have a representative present (Mr. Ed Bell) from BRCC but no one was present to answer questions the Board had.  It was the consensus of the Board to roll this item to the May 1 agenda and have someone present from BRCC.


Proposed Mills River and Fletcher Land Use Study Area

As outlined in a letter from Planning Board Chairman Chuck McGrady to Chairman Hawkins, the Planning Board examined proposed study areas for Key Strategies 2 and 3 of the Countywide Land Use Regulation Guide at its meeting on March 28, 2000.  As part of its review, the Planning Board members discussed a proposed land use study area boundary that encompasses part of the Mills River area and an area adjacent to the Town of Fletcher.  A map showing a proposed study area boundary was attached to Chairman McGrady=s letter and was also included with this agenda item. The map is intended for discussion purposes only at this point.  As requested in a March 1, 2000 letter from Chairman Hawkins, the Planning Board intends to identify additional study areas for the Board of Commissioners to review, however it wants to begin looking at land use in the Mills River/Fletcher area in the near future, if doing so would be acceptable to the Commissioners.  The Planning Board does not intend for such a study to interfere with its top priority, the Zoning Ordinance Rewrite project.


Jake Gilmer presented this item and answered questions.   He showed the study area on a map.  He stated that a Land Use Study of this area would be looking at the current land uses.  Staff would produce a land use map which would color code each property.  They would likely study some population trends in the area.  There may be some community meetings to get some public input.


It was the consensus of the Board for staff to proceed.


Commissioner Gordon stated that this item should be on the agenda for the next LGCCA meeting.  It was on their last agenda but they did not get to it.  She stated that she would like to attend that meeting as one of the Board=s representatives to that meeting.




Angela Beeker informed the Board of an application received for the Governor=s Competitive fund to benefit UPM-Raflatac.  This is part of the State=s incentive package being offered in hopes that Raflatac will decide to locate its new facility here in Henderson County.  The monies would have to pass through the County=s budget ($50,000), but no County funds would be required.


Commissioner Kumor made the motion to execute the application as requested.  All voted in favor and the motion carried.



David Nicholson informed the Board that Green River Volunteer Fire & Rescue, Inc., plans to purchase self-contained breathing apparatus to replace older equipment and to supplement the departments inventory.  The total amount of the lease purchase is $15,264.00.  The lending institution, United Financial of North Carolina, requested that the Chairman sign the proposed letter.

David explained that the letter states that Green River is a Fire District in the County and that there is a special tax district which supports fire services in the district. 


Commissioner Kumor made the motion to authorize the Chairman to sign the letter approving this request.  All voted in favor and the motion carried.



Commissioner Gordon visited the Cliffs at Brevard Falls last Friday and has put a lot of thought into a proposed Resolution opposing condemnation but serving the public good with a reasoned approach.


Commissioner Gordon made the motion that the Board approve her proposed Resolution.  Following discussion, Commissioner Gordon withdrew her motion.  Commissioner Gordon then made the motion that she assist the Chairman in a redraft of his former draft letter incorporating some of her ideas from the Resolution. All Commissioners will be able to review the letter before it is mailed.  All voted in favor and the motion carried.  Chairman Hawkins had previously drafted a letter, distributed it to the Commissioners and was awaiting their revisions to his draft letter concerning the property in question.



Commissioner Ward stated that about four years ago the issue of a rock quarry on Hwy. # 176 came before the Board.  It was approved at that time.  They are getting ready to open the quarry and there have been numerous calls from concerned citizens regarding road width and turning lanes, and the winding nature of the road; all public safety issues. It was suggested that Commissioner Moyer take this issue before the Transportation Development Committee for study and response. 


Commissioner Ward also discussed the need for a caution light on the entrance road to the Outback Steakhouse and asked that this also go before the Transportation Development Committee for a look at the public safety issue.


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


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


2.  (a)(3)          To consult with an attorney employed or retained by the public body in order to

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


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

Henderson County v. City of Hendersonville


All voted in favor and the motion carried.


Commissioner Ward 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, Chairman Hawkins adjourned the meeting at approximately 1:20 p.m.







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