STATE OF NORTH CAROLINA                                          BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                                   JUNE 4, 2001


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 Bill Moyer, Vice-Chair Marilyn Gordon, Commissioner Grady Hawkins, Commissioner Don Ward, Commissioner Charlie Messer, County Manager David E. Nicholson, Acting County Attorney Jennifer O. Jackson, and Clerk to the Board Elizabeth W. Corn.


Also present were: Planning Director Karen C. Smith, Planner Josh Freeman,  and Volunteer Coordinator Amy Brantley.  Absent was Public Information Officer Chris S. Coulson, who was on vacation.



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



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



David Nicholson gave the invocation.



There was none.


Chairman Moyer made the motion to approve the agenda as published.  All voted in favor and the motion carried.



Chairman Moyer stated that there were a number of items the Board needed to comment upon for the interest of the public and those watching the meeting on television:


Fourth of July Fireworks

Commissioner Messer informed the Board and the public that the Recreation Department has been planning it=s annual Fourth of July Celebration and the associated fireworks display.  This event is to be held at Jackson Park on Wednesday, July 4, 2001, at dusk.  Under Section 130-1(L) of the Henderson County Code, the approval of the Henderson County Board of Commissioners is required before any fireworks display can be performed in any County park.  The Recreation Director, therefore, was requesting such approval.


Commissioner Messer stated that there will be activities all day long at the park. Some of those activities are:                   Children=s activities at 2:00

RO induction at 4:00

Co-ed softball tournament

Music and vendors present all day

Fireworks display at dusk


He encouraged everyone to come to Jackson Park and attend the celebration.


The County Manager stated that the Fourth of July Celebration is one of the best celebration events each year and stated that he hoped approval of the fireworks display at Jackson Park would be granted.


Termination of Employment Agreement and Notification of Settlement

Chairman Moyer acknowledged with regret that the Board had received the resignation of Mr. Robert Baird, the Tax Assessor for Henderson County.  Mr. Baird has been the Assessor for the past 11 years.  He has requested to be let out of his contract so that he can pursue other career opportunities.  The Board has agreed to release him from his contract. 


During his tenure as Tax Assessor, Mr. Baird has successfully led the County through two separate property reappraisals.  He and his staff have received numerous awards and citations for the quality and ingenuity of their work.  On behalf of all the Board of Commissioners, he wished Mr. Baird the very best and thanked him for his tremendous gains and improvements he has made to our Tax Appraisal and Land Records system and his hard work and dedication to his job.  Henderson County is recognized state-wide as a leader in modernization of his geographic information systems.  Mr. Baird will be sorely missed and the Board wishes him the best in the future.


The Board should confirm the terms of the final settlement in the matter, those terms being the termination of the Employment Agreement, the payment to Mr. Baird of an amount equal to his accrued vacation and 29.45 weeks of special severance pay, and the mutual release of all claims arising out of the matter.


Resolution - Revenue Options

Commissioner Gordon stated that the following resolution was approved by the Land-of-Sky Regional Council at its last meeting. All participating government entities were asked to also pass this resolution.  It relates to state reimbursements, revenue options, and the local fiscal crisis.  The resolution supports a long-term solution to replace the reimbursements. Commissioner Gordon read the resolution as follows:





Whereas local governments have been placed in a fiscal crisis by the State=s escrowing reimbursements for taxes repealed by the North Carolina General Assembly and the lack of viable options to raise revenues needed to maintain basic services;


Whereas this crisis extends into the current fiscal year and Fiscal Year 2002, for which local officials are required to develop a balanced budget by June 30, 2001;


Now therefore be it resolved that the Governor and General Assembly are urged to take immediate action to relieve local governments of the impossible situation in which they have been placed during the two aforementioned fiscal years and to ensure, in the short term, the provision of basic services to the states 8 million residents.


And be it further resolved that for long-term fiscal sources of program stability the General Assembly be urged to authorize replacement revenue which meet the following prerequisites:


$                Replaces reimbursements on a hold-harmless basis to all local governments;

$                Does not require voter approval to realize the replacement revenues;

$                Does not require annual appropriations or other actions by the N.C. General Assembly;

$                Produces adequate revenues to offset any revenue losses caused by state action and sufficient revenue growth to keep pace with inflation and other changing factors or needs;

$                Has a distribution formula that is reasonable and fair;

$                Gives local governments sufficient discretion as to uses of the proceeds;

$                Avoids further pressure on the local ad valorem property tax.


She asked that our Board approve this resolution as well.


Resolution - American Cancer Society=s Relay for Life

Commissioner Ward read the following resolution proclaiming June 8 and 9, 2001 as ARelay for Life Days@ in Henderson County@:





Whereas,        Cancer is the second leading cause of death in the United States, and


Whereas,        An estimated 35,700 new cases of cancer will be diagnosed in North Carolina this year, and


Whereas,        The American Cancer Society is the nationwide, community-based, voluntary health organization dedicated to eliminating cancer as a major health problem by preventing cancer, saving lives, and diminishing suffering from cancer through research, education, advocacy and service, and


Whereas,        The Relay for Life is an overnight, community event that celebrates cancer survivorship, honors those who have lost their battle with cancer, educates the general public about cancer prevention and raises funds for the American Cancer Society while providing participants with the opportunity to fight against cancer, and


Whereas,        The Henderson County Unit of the American Cancer Society will hold its 7th annual Relay for Life on June 8 and 9, 2001, at North Henderson High School.


Now, Therefore, the Henderson County Board of Commissioners hereby proclaims June 8 and 9, 2001 as ARelay for Life Days@ in Henderson County and encourages citizens to participate in our local Relay for Life event.


He was honored to introduce this resolution, being one that has had several family members survive cancer as well as several family members that have lost their battle to cancer.  He asked the Board to adopt this resolution.  


Resolution - Nursing Assistant Day/Week

Commissioner Hawkins introduced the following resolution and asked the Board to adopt it:




Proclaimed to the citizens of Henderson County, North Carolina.


Whereas:        Nursing Homes, Adult Care Homes, Hospital and In-Home Care agencies have accepted the responsibility for providing quality care and a quality of life for our elderly, and other citizens requiring this care in our community,


Whereas:        The well-being and happiness of these citizens depend in large part on the nursing assistant who provides daily, conscientious, hands-on care in nursing homes and other long term care settings,


Whereas:        Career Nursing Assistants are instrumental in promoting and safeguarding the physical, mental, emotional, and spiritual well-being of the residents, clients, and their families,


Whereas:        Nursing Assistants are trained professionals who collaborate closely with other health care providers to provide quality care and elevate the status of their chosen vocations as reflected in their code of ethics,


Now, Therefore, the Henderson County Commissioners do proclaim June 7 - 14, 2001 as


       Nursing Assistants= Week 2001

and urged all citizens to join in this observance by expressing encouragement and appreciation for the services performed by nursing assistants in the public good.


Commissioner Hawkins informed those present that there were numerous representatives from the nursing career field as well as some of the committee members present at the meeting and he asked them to stand for recognition of the hard work they do.  They received applause.


May 15, 2001 minutes

The Clerk to the Board asked for a minor revision to the May 15 minutes, before approval.


Tax Collector=s Report

Commissioner Hawkins asked that this item be pulled for comment.

Commissioner Hawkins directed a couple of questions to the County Manager regarding the report.


Terry F. Lyda, Tax Collector, had provided the Tax Collector=s Report for the Board=s information, dated May 29, 2001.


Darlene B. Burgess, Deputy Tax Collector, had also provided the Deputy Tax Collector=s Report  dated May 30, 2001, for the Board=s information.


Detention Center - Change Order

Commissioner Ward asked that this item be pulled for explanation. 


Change Order for the new Detention Center:

1.               Bolton Corporation - $8,192.00


This change order for the plumbing contractor covers a special ordered prison style -stainless steel toilet seat to be added for the staff in the control room and additional hot water heater flue pipes necessary to correct a design error.  The result of the approval of this change order will allow for better operation of the new hot water heaters for the Detention Center that will be installed within the Courthouse.


Mr. Nicholson had recommended that the Board approve this change order.  Funds are available within the Detention Center Budget for this change order.


To answer Commissioner Ward=s question - We are using the hot water system that we put in the courthouse to connect to the new detention center.  The connections were not in the original design work and staff nor the architect caught it.  It was truly a design error. 


Detention Center Project Report

Chairman Moyer stated that he felt the Board needed to address this report.  He has asked Jennifer Jackson to look into this.  He is amazed that we have paid all our architectural and all our administrative fees and the project is far from done.


Chairman Moyer asked that this report be on the agenda next month for the Commissioners to look at the report and the change over the last couple of months, after Ms. Jackson has had a chance to look into the contract.

The monthly Capital Improvements Project Report for the new Detention Center was provided for the Board=s review.  Staff had verified the budget due to the Board=s questions at the last meeting.


Notes about the Budget:


1.               Architectural - This reflects the County=s contract with Freeman White and was balanced to their last statement.  There is no hold back percentage on architectural expenses.

2.               Site Preparation - Complete.

3.               Construction - This reflects the budget after the change orders through May have been debited/credited.  There is a hold back percentage on the construction contracts.

4.               Equipment - The majority of the orders for furniture, fixtures and equipment have been placed for delivery in July.

5.               Administration/Professional Services - Majority of this expense is complete.

6.               Contingencies - This is the net of the change orders for construction.


Mr. Nicholson stated that the project is almost finished.  We are probably only two weeks away from substantial completion.  They are doing some final touch-up painting.  Cleaning people are going through the project. 


Chairman Moyer made the motion to approve the consent agenda with the requested revision to the May 15, 2001 minutes.  All voted in favor and the motion carried.


The additional consent agenda items were as follows:



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

May 2, 2001,               special called meeting

May 7, 2001,               regularly scheduled meeting

May 11, 2001,             special called meeting

May 15, 2001, special called meeting (with revision)

May 16, 2001, regularly scheduled meeting

May 21, 2001, special called meeting


Referral of Application for a Special Use Permit for Highland Golf Villas, a Proposed Planned Unit Development (PUD)

[Application #SP-01-03, Submitted by Glade Holdings, Inc.]

Glade Holdings, Inc., had submitted an application (SP#01-03) for a Special Use Permit for a proposed Planned Unit Development (PUD) to be known as Highland Golf Villas.  The PUD is proposed for property located on the north side of Highland Lake Road, between the Norfolk-Southern Railroad line and the Highland Lake Golf Club.  The subject property, which is currently owned by Course Doctors, Inc., contains approximately 81 acres and is zoned R-20 (Low Density Residential) by the County.

Section 200-33F of the Zoning Ordinance requires that an applicant for a PUD have a preapplication conference with the Planing Board and Staff prior to submitting a Special Use Permit application.  Following the pre-application conference, the applicant may submit a Special Use Permit application to the Board of Commissioners in accordance with Section 200-70 of the Zoning Ordinance.  Section 200-33F also requires that the applicant submit a development plan to the Board of Commissioners and a copy of the plan to the Planning Board for review and recommendations.  Sections 200-56 and 200-70 of the Zoning Ordinance require that the Board of Commissioners refer applications for Special Use Permits to the Planning Board for review and recommendations prior to a public hearing.


The applicant had a pre-application conference regarding the proposed PUD at the May 29, 2001 meeting of the Planning Board.  On May 30, 2001, the applicant submitted three sets of Special Use Permit application materials to the Planning Department.  One set of materials was intended for the Board of Commissioners.  Portions of the application materials were included with this agenda item for reference.


David Nicholson recommended that the Board of Commissioners refer application #SP-01-03, submitted by Glade Holdings, Inc., for a Special Use Permit for a PUD, to the Planning Board for review and recommendations.


Notification of Purchase - Influenza Vaccines

The Board of Commissioners adopted a Resolution on August 20, 1997 (which is now codified), authorizing the County Manager to advertise, receive, reject and award bids on the purchase of apparatus, supplies, materials and equipment valued at less than $100,000.00.  The County Manager has recently exercised his authority under this Resolution and, pursuant to the terms of the Resolution, reported the following to the Board of Commissioners.


On March 29, 2001, the County Manager authorized the advertisement of bids for the purchase of 10,000 influenza vaccines for the Health Department.  The taking of the bids was advertised and bids were received and opened on May 1, 2001.  There were no responsive bids received on May 1, 2001 so the County Manager authorized the rebid of the influenza vaccines.  The taking of bids was advertised and bids were received and opened on May 25, 2001.  Caligor Roane Barker submitted the only bid.  The County Manager declared its bid in the amount of $55,000 as the lowest, responsive, responsible bid and, on May 31, 2001, awarded the purchase contract to that company.


No Board action was necessary as this item was provided for information purposes only. 



Notification of Vacancies

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


1.         Equalization & Review - 2 vac.

2.               Henderson County Board of Health - 3 vac.

3.               Juvenile Crime Prevention Council - 19 vac.

4.               Mountain Area Workforce Development Board - 3 vac.

5.               Mountain Valley Resource Conservation - 1 vac.

6.               Land-of-Sky Regional Advisory Council on Aging - 1 vac.

7.               Jury Commission - 1 vac.



For the public=s information, Chairman Moyer stated that we do have a number of vacancies that the Board will be considering in the future.  They are listed as part of our agenda.  They are also listed in the Henderson Highlights ad in the Times-News the first Friday of every month. 


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


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

Commissioner Ward asked for an update on Calvin Adams, who had been nominated for position #4.  Amy Brantley explained that Mr. Adams could not be located.  He had been sent correspondence and had not responded.


Commissioner Ward nominated Jack Reed for position #4.


Commissioner Hawkins asked not to vote today, to keep this open for further nominations.


2.               Mountain Area Workforce Development Board - 1 vac.

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


3.               Land-of-Sky Regional Council Advisory Council on Aging - 1 vac.

Commissioner Ward nominated Larry Boone.  Commissioner Ward made the motion to suspend the rules and appoint Mr. Boone.  All voted in favor and the motion carried.


Mr. Boone is an employee of Kimberly Clark who desires to serve on this Council on Aging.


4.               Equalization and Review - 1 vac.

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


5.               Retired Senior Volunteer Program Advisory Council - 1 vac.

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


6.               Juvenile Crime Prevention Council - 1 vac.

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


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

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


8.               Blue Ridge Community College Board of Trustees - 2 vac.

Commissioner Hawkins nominated Fielding Lucas.

Commissioner Ward nominated Sherrie Johnson.

Commissioner Gordon nominated Mary A. Ingle.


There were three nominees for two positions.  The Clerk was asked to poll the Board for votes.  Each Commissioner was given two votes as follows:


Commissioner Ward   -           Lucas, Johnson

Commissioner Messer -          Lucas, Ingle

Chairman Moyer -                   Lucas, Ingle

Commissioner Hawkins -        Lucas

Commissioner Gordon -          Lucas, Ingle


Fielding Lucas and Mary Ann Ingle were appointed to the two open positions.


9.               Library Board of Trustees - 2 vac.

Chairman Moyer nominated David Beardsley.

Commissioner Messer nominated Doug Sparks.

Commissioner Hawkins made the motion to accept these two by acclamation.  All voted in favor and the motion carried.


Chairman Moyer, stated that having served as the Board=s representative on the Board, he was aware that the two people whose terms had expired, Louise Bailey and Richard Brown, had served for many years and have been very valuable members of the Board.  On behalf of the Board, he offered thanks and appreciation to them for their many years of fine service to the Library Board and to Henderson County.


10.            Social Services Board - 1 vac.

Chairman Moyer nominated Grace Poli.  There were no other nominees.  Chairman Moyer made the motion to elect Ms. Poli by acclamation.  All voted in favor and the motion carried.


11.            Cane Creek Water and Sewer District - 3 vac.

Commissioner Gordon nominated Richmond Meadows and John Davis for reappointment.  Chairman Moyer nominated Marilyn Gordon for reappointment.  Chairman Moyer made the motion to suspend the rules and appoint these three by acclamation.  All voted in favor and the motion carried.


12.            Environmental Advisory Committee - 9 vac.

Chairman Moyer explained that just recently the Board extended the life of this committee for an additional two years and gave it an additional charge to look into air quality.


Commissioner Gordon proposed changing Robert Smith to a resource for that committee, leaving his slot open for an additional person to serve. 


Commissioner Hawkins nominated Dan Waddell, Bill Harper, Art Cooley, Jim Barnett, and Fielding Lucas.

Commissioner Ward nominated David Davis, Barbara Neal, Chan Chandler, and Katie Breckheimer.

Commissioner Gordon nominated James Hutcherson.

Chairman Moyer nominated Mary Jones.


Total nominees equal eleven for nine vacancies.  The Board will come back to this for a vote later in the meeting, to give staff an opportunity to type up this list to facilitate voting.



David Nicholson informed the Board that by way of a letter from the Henderson County Board of Public Education dated May 28, 2001, Henderson County had been advised that the Board of Education is seeking to dispose of the real property located at 17 Cane Creek Road, Fletcher, NC, which previously served as the Fletcher Elementary School.  The property consists of approximately 4.35 acres and four main buildings.  The Board of Education believes that the fair market value of the property is $1,015,000.00 based on an appraisal.


Under NCGS 115C-518, the Board of Education must grant the Board of Commissioners the first opportunity to obtain the property.  The Board of Education, therefore, extended this offer to the Board of Commissioners.


Mr. Nicholson explained that the Board of Commissioners has the following options with respect to the matter:


1.               Decline to exercise the Board=s option to purchase the property for the fair market value,

2.               Accept the offer to purchase the property for the fair market value ($1,015,000),

3.               Enter into negotiations with the Board of Education on the purchase price.


Following discussion, Commissioner Hawkins made the motion to exercise option # 1 above and exercise the Board=s right to refusal of the purchase of the property.  More discussion followed and the vote was taken.  All voted in favor and the motion carried. 


Commissioner Hawkins explained that because of the way the State Statutes are designed, when surplus properties are sold, that money has a very limited use.  That limited use is to go back into capital improvements for the schools. 


ANNOUNCEMENT - by Chairman Moyer

Chairman Moyer stated that Angela Beeker has called him a couple of times regarding her son.  Her son recently had some surgery at the University of Missouri and she has been out of work for that.  Her son, Ben, is doing very well.  She is very pleased with his progress.  He is doing so well that she expects to be back at work by Wednesday, or at the latest Thursday of this week.



Mae Harter reminded the Board that this is a mandated service committee created in 1990 by the Board of Commissioners with the assistance of David Nicholson.


The Committee Mission is:

$                to provide older adults in Henderson County with the choice and opportunity to maintain independence in their homes

$                to foster coordination and joint planning between public, private and non-profit service providers and

$                to make a recommendation to the Board of Commissioners regarding the disbursement of the Home and Community Care Block Grant Monies received by Henderson County


The Advisory Committee membership is composed of members appointed by the Henderson County Commissioners.


Preparation of a five year plan

First five year plan was presented in 1993.


Second five year plan was presented in 1998.

Areas of concern identified by the committee:

Health Care

Social Support



Each area of concern is addressed by a sub-committee charged with on-going review and modification of Goals and Strategies identified/outlined in the 1998 five year plan.


The next five year plan will be due in 2003.


The on-going work of the sub-committees should help make this process much more efficient.


Home and Community Care Block Grant (HCCBG)

Older American Acts monies are divided among counties via Area Agency on Aging (Land of Sky)


The monies are used/disbursed in various ways:

Henderson County Planning for Older Adults Committee requests bids for services for the elderly from local providers.


Ms. Harter distributed a hand-out from Planning for Older Adults Committee summarizing the local disbursement recommendations:


2002 Services                                     Provider                                  Funding


Housing & Home Improvement           HAC                                        $    8,000.00

Transportation - Medical                    WCCA                        $   19,845.00

Transportation - General                     WCCA                        $ 112,975.00

In-Home Aide                         Pardee Hosp.                           $    82,675.00

In-Home Aide                         VHP                                        $ 109,053.00

Adult Day Care                                   Pardee Pavillion                     $   20,000.00

Adult Day Health Care                        Pardee Pavillion                     $     5,000.00

Senior Center Operations                    Council on Aging                    $     7,500.00

Senior Companion                               Land of Sky                             $     3,233.00


Congregate                                          COA                                        $    16,321.00

Home Delivered                                  COA                                        $   190,000.00

Liquid Supplement                              WCCA                        $       9,000.00

Legal Services                        Pisgah                                      $       2,500.00

TOTAL =        $   586,102.00


Following discussion, Commissioner Hawkins made the motion to approve the funding proposal for FY 2001 - 2001.  All voted in favor and the motion carried.


WATER AUTHORITY - Non-Betterment Costs

The Board was given a copy of a letter from Mayor Leni Sitnick of the City of Asheville, requesting Henderson County=s support of proposed legislation that would prevent the Water Authority from paying non-betterment costs.  Copies of the proposed legislation were also presented for the Board=s review.


Chairman Moyer explained that there is a House Bill (#43) and a Senate Bill (#948).  He read the title of the House Bill - AAn Act To Provide That The Department Of Transportation Shall Pay The Non-betterment Costs of Utility Relocations For Water And Sewer Lines Owned By A System Created Pursuant To Article 20 Of Chapter 160A Of The General Statutes.@  He explained that as the bill presently stands now it does not cover 160 because it was not organized as a true authority under 162A.  If you follow through the legislation, you can see that for 162A they already have to pay the non-betterment costs. 


In Asheville, with the I-26 roadwork and some other roadwork, these non-betterment costs (if NC DOT has to move a line and it doesn=t get any better, doesn=t serve any new customers) the DOT does not have to pay the bill.  It has to be paid by the Water Authority.  When we entered into the original water agreement, there certainly was a feeling that the Authority would move to a 162A Authority and this non-betterment issue would go away. 


Following discussion, it was determined that three of the Commissioners could not support the legislation.  Commissioner Hawkins made the motion that Chairman Moyer correspond to Mayor Sitnick explaining this Board=s concern for the lowest cost for the members of the Water Authority be top priority and that the City of Asheville move with all due deliberation to create a true Water Authority.  A vote was taken and the motion carried four to one with Chairman Moyer voting nay.



1. Update on the Mayor=s Cup Raft Race and Presentation of Awards

Chairman Moyer explained that the Mayor=s Cup Raft Race was on Sunday.  Henderson County=s team was made up of Chairman Moyer, Commissioner Messer, Jennifer Jackson, Selena Coffey, and Rick Harris.  There were 10 teams.  Henderson County finished eight out of ten. 



1. Aubrey Carruth - Mr. Carruth is a resident of Hendersonville and a member of the Nursing/Adult Home Community Advisory Committee.  He has been a part of that committee for about 2.5 years.  On behalf of the Community Advisory Committee he thanked the Board of Commissioners for adopting the Nursing Assistant Week Resolution earlier in the agenda.  He stressed the very important work that the certified nursing assistants (CNA) do. 



Chairman Moyer 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, which privilege is hereby acknowledged and 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:

Anthony Wayne Gibson v. Henderson County

   (Henderson County File No. 01 CVS 678)


All voted in favor and the motion carried.


Commissioner Hawkins made the motion for the Board to go out of closed session.  All voted in favor and the motion carried.


QUASI-JUDICIAL PUBLIC HEARING - Application for a Variance from the Henderson County Subdivision Ordinance for Richmore Estates

Commissioner Hawkins made the motion for the Board to go into this public hearing at 7:05 p.m.  All voted in favor and the motion carried.


Chairman Moyer explained that this quasi-judicial proceeding is much like a court proceeding, is a proceeding in which one individual=s rights are being determined.  He explained that the proceeding would be conducted under the Henderson County Board of Commissioners= Rules & Procedures for Quasi-Judicial Proceedings.  Only persons who can demonstrate that they will be affected by the outcome of the decision are allowed to participate in the proceeding.  All persons who speak and participate, including any witnesses that will be called, will be placed under oath and the Board will ask the petitioner or the petitioner=s attorney what evidence the petitioner wishes to present in support of the request.  After the petitioner is finished, anyone else who has been recognized as a party to the proceeding will then be allowed to present their evidence.  All parties will be given an opportunity to ask questions of all witnesses testifying in this proceeding.  The Board will be given an opportunity to ask questions also.  After the evidence is presented the Board will discuss the issues raised and will make a decision.  The Board=s decision must be made in writing within 45 days of the hearing.  


Chairman Moyer asked any persons wishing to be a party to the proceeding to identify themselves:


1. Petitioner Richard Phipps

2. Janice Payne- Mr. Phipp=s agent

2. Staff Karen C. Smith - Planning Director for Henderson County

3. John Norton - property owner, contiguous to the property in question (on both sides of Old     Homestead Road).

4. Melody Lindsey - property owner whose property borders the western side of the property in question.


The Commissioners recognized all five persons above as parties to the proceeding. All five persons came forward and were sworn in by the Clerk to the Board.


Chairman Moyer asked Karen Smith to review the request.


Staff=s Overview

Karen Smith reviewed the application from Mr. Richard Phipps, requesting a variance from the Henderson County Subdivision Ordinance and Ms. Janice Payne who is acting as the agent for Mr. Phipps.


Richmore Estates is a proposed 23 lot subdivision located on Old Homestead Road off US #64 West.  The subdivision has a proposed private road called Candace Way, that is actually a loop road through that development.  Mr. Phipps requested a variance from Section 170-27 of the Subdivision Ordinance that deals with right-of-way access.  That section requires that all lots abut on a public or private right-of-way and that such right-of-way meet or exceed the minimum

width specified in State Road Standards and that such right-of-way be capable of supporting road.  State road standards for local subdivision roads, such as Candace Way, require a minimum right-of-way width of 45 feet.  According to the variance application, Mr. Phipp=s property has 30 feet of frontage on Old Homestead Road.  Because Mr. Phipps does not own the adjoining properties that front on Old Homestead Road, the proposed Candace Way cannot meet State Road Standards for width at its intersection with Old Homestead and therefore Mr. Phipps requested a 15 foot variance.


Ms. Smith explained that the Henderson County Planning Board initially reviewed the subdivision plans for Richmore Estates on March 27, 2001 and approved the subdivision application subject to several conditions: 1. That the owner obtain a 45 foot wide right-of-way at the entrance to the subdivision or that a variance be approved on the width of the access.


Notices were sent via certified mail to the property owner, his agent, and the adjoining property owners.

Commissioner Hawkins asked if Old Homestead Road dead ends.  Mrs. Smith explained that it does eventually.  She showed it on a map on the screen. 


Petitioner=s Evidence

Janice Payne, agent for the petitioner, came forward.  She stated that she is a local Realtor in Hendersonville.  She stated that she works hard to make sure that there are individuals in our community who can find a beautiful home, affordable home in the county.  AWhat we=re asking for is a variance to allow us to build homes for our service people here, not trash, not garbage, but beautiful homes that when they move they can sell instead of paying rent out the ears in our area for something that they will not own.  The development will enhance what we have.  It will allow individuals who do not have homes or can never afford a home here in this county a home.  As many of you know, in other areas of North Carolina affordable housing has to be a part of some development in counties.  We do not have that here in the county.  So when we purchase a development we had in mind allowing all service people a place to stay.  With that in mind, we took every opportunity afforded.  As Mr. Norton mentioned, he has no desire in selling and giving us a right-of-way to the property; therefore, our only choice is turning to the county and asking them at this time to allow us a variance so that we could proceed to make sure that all service people and others who are interested have a place to go and stay and live and enjoy Henderson County instead of having to come here and work and leave and go other places to come back.  Any questions for me?@


Commissioner Hawkins - AJanice, I have one or Karen might be able to help me answer it.  On the map that - one of the maps that we have, it depicts a 45 foot right-of-way at some distance from the - being in the curve on Old Homestead Road and then it shows I guess an 18 foot wide road and then it comes on down to the 30 foot right-of-way.  What amount of distance is between where the 45 foot right-of-way and down to where it tapers off to 30, how long is that.  Is it a long distance?  200 feet or can you give me some idea of - do you see what I=m asking?@


Karen Smith - AI think so.  Let me put a map up on the screen that will kind of show you - there=s a triangle of land that does not actually touch the right-of-way so if you were to continue the 45 foot wide right-of-way line down to touch which   ?     the right-of-way for Old Homestead - I=ll put a map up.  We=ve estimated that distance to be approximately 17 feet.  Let me put this triangle up, its a 17 x 18 x 16 foot triangle approximately.@


Commissioner Hawkins - AOK, if you would - I - cause I was trying to figure out how far@


Chairman Moyer - AShe=s going from here down, not from here down.@


Commissioner Hawkins - AYeh, there=s a place up there that shows.@


Karen Smith - AI don=t know if you can make that out.  I may have copies, would it be easier for me to pass that up to the Board at this time?@


Commissioner Hawkins - AWell I@


Chairman Moyer - ABut I think the question, Karen, is on the map you had before - if you took the 45 foot right-of-way line down to where the triangle in question is, how long would that piece be?  It=s certainly a lot longer than 17 feet.  It=s not on that map now, you=ve changed the diagram.  But I think if you take the 18 foot road and turn it sideways, it looks like there=s about 5 or 6 of them.  So you=d be talking about 110 feet from where the 45 foot right of way line is right below lot #1, down to the intersection.@


Karen Smith - AOh, OK down to that intersection?@


Chairman Moyer - AYeh.@


Karen Smith - AThat distance is actually, well, from the circle that=s shown.@


Chairman Moyer - AAlright that=s a little further, OK the circle.@


Karen Smith - AFrom there traveling@


Chairman Moyer - ATo the next circle?@


Karen Smith - AThe next circle?@


Chairman Moyer - ADo you have it?@


Commissioner Hawkins - AThe circle in the middle of Old Homestead Road.@


Chairman Moyer - AYeh.@


Karen Smith - AOK.  I might be looking at a different map. The whole - let=s see@


Chairman Moyer - AThe one you have, it=s exhibit A I believe to the application.@


Commissioner Hawkins - AKaren@


Karen Smith - AI=m looking at that one, I=m sorry@


Commissioner Hawkins - ALet me ask you this - is from where you have the line on this map drawn at 45 feet, is that the last point on that map that there=s the 45 foot right-of-way?@


Karen Smith - ANo.@


Commissioner Hawkins - AIt is not?@


Karen Smith - ANo, it actually continues on down to the edge of the property line with Mr. Norton.@


Commissioner Hawkins - AIs sometime - I guess as we proceed on - I=d just like to know what your estimate of how far down the road the 45 foot is not there.@


Karen Smith - AIt=s at the property line.@


Commissioner Hawkins - AIt=s at 17 feet? 17 feet?@


Karen Smith - AUh Huh.@


Commissioner Hawkins - AIn other words if - if the road was back 17 feet it would be within the 45 foot right-of-way.@


Karen Smith - AYes, it would touch, yes.@


Commissioner Hawkins - AThat=s what I was wondering.@


Karen Smith - AYes.@


Commissioner Hawkins - AThank you@


Chairman Moyer - AAnd I think the distance between circle and circle, if I read this right, is about 140 feet, 139 feet.@


Commissioner Hawkins - ASo somewhere here it goes to 30.@


Chairman Moyer - A17 feet, yeh, that=s right.@


Commissioner Hawkins - AOK, thank you.@


Chairman Moyer - AAny other@


Commissioner Messer - AYou have this development in three phases? By the map?@


Karen Smith - AYes.@


Commissioner Messer - AOf course you mentioned affordable housing.  What kind of price range and I know you can=t give us a direct - cause building materials and etc.  But what - you know - what kind of price range are you saying?@


Janice Payne - AWe are looking for the homes to go from $110,000 to $135,000.  Last year the average home in Henderson County sold for $187,000 and when I made - when I first called Mr. Phipps, my brother, and told him there was some land in Henderson County and I told him what I wanted to do for Henderson County, and that was the only way I would make an agreement with my brother.  I said I wanted you to purchase this and here=s the reason why I want you to get this land.  Because there are all people who have to leave Henderson County to go out to live and I don=t think that that=s a very comforting place to be.  So we put our heads together and we said, after quite a while of debating it and going over everything with his side of the deal, he said yes he would purchase the land and allow those homes, at that time and I realize time has gone by but he has not come back and said because a year or so have gone by we=re going to up the price of the homes.  That was our agreement.  So those homes will stay between $110,000 and $135,000.  They are going to be modular homes.@


Chairman Moyer - ALet me stop you.  I think we=re really - this is not even appropriate evidence for the variance hearing.  On the basis of your giving it voluntarily, we=ll allow it into the record. But we really can=t get into the use of the homes or anything like that as part of the variance issue.@


Commissioner Hawkins - AJanice, can I ask you two more questions?  Is Old Homestead Road paved.@


Janice Payne - ANo, it=s not paved.@


Commissioner Hawkins - AAnd the maps that we have in here - the views of the property?  Are they from - like where the road - where Old Homestead Road protrudes into Candace Way?  Is that how you=re looking.  I=m trying to figure out if it=s  - there was some comment it was flat in the area - reasonably flat - but it looks like a - almost a hill on the view south from the property out towards Old Homestead - that we have in our packet and I don=t know if that came from your office or - Karen do you have that?@


Chairman Moyer - AExhibit 2 to the application@


Janice Payne - AIt=s all flat coming into@


Karen Smith - AWould you like me to bring it?@


... too many talking here


Commissioner Hawkins - ASo this photo would be looking from Candace Way out toward Old Homestead and apparently it kind of loops around that elevation - alright, thank you.@


The other parties were given an opportunity to ask questions of the petitioner, if they=d like to ask any but they declined.


Richard Phipps - ACommissioners, good evening.  Thanks for the opportunity.  Just to cover a few things.  Before the acquisition of land, I did some due diligence.  I spoke to several people in the immediate area.  There was some objection to the housing development.  Some people wanted it to stay as it was.  Then others didn=t object.  But part of what we did as a result of having those conversations with the parties that we did and whose names I did not keep, was to make sure that in the planning that we addressed some of the concerns that we saw would arise - the wetlands was one of them.  That area was in the design, sort of pretty much left alone and that went through the initial approval process because it was preserved.  The other piece was the need for the variance which we are now discussing.  It came as a result of the unwillingness to support the development and which we see is a very necessary part of the continued economic health of Henderson County, Hendersonville as it is.  And in order to be able to accomplish this, certainly the variance would be necessary.  If the variance is not granted it creates considerable hardship towards the development and towards others who would benefit from the development and certainly we wish to continue to work with the Commissioners, the Henderson County and any authorities necessary to make sure that we comply with all the requirements as we progress with the development. That=s all I have.@


Commissioner Hawkins - ACan I ask you one question? Have you had any conversation with - I guess it=s Ms. Cantrell, to the southwest of where the property exits.@


Richard Phipps - ANo I don=t remember a specific Ms. Cantrell.  Right off the highway there, where it turns onto Old Homestead I had some discussions with a gentleman at the beginning that a street on the other side of the development - I had conversations three or four people on the - I=m not sure the orientation but on the opposite side of the development from Old Homestead - I=m not sure the name of the development there but we did have those - that dialogue that enabled us to help - help to frame the ... which we are going to develop the property so that we have the support of the community at large and did not offend anybody in the process.@


Commissioner Hawkins - AThank you.@


John Norton - AMr. Speaker@


Chairman Moyer - AWe=ll get to you in a minute sir.  Thank you.@


Richard Phipps - AThank you@


Chairman Moyer - AJanice, can you speak to the issue of the possibility of getting any land from Estelle Cantrell?@


Janice Payne - AWe spoke to - that was a matter that we addressed with the architect and the land surveyor and there were power lines that run across the property.  He said it would not give us between her house and the boundary the required amount of land that we needed to be on the safe side (these are my terms).  We covered Ms. Cantrell and we covered Mr. Norton.  So that is where we were with both of them.@


Chairman Moyer - ABut the - the advice you got was the only practical way was to get it from Mr. Norton?@


Janice Payne - AYes, yes, yes.@


Chairman Moyer - ANow Mr. Norton, do you have a question for either Janice or - Janice you might want to stay there.  Come up forward and ask you question please.@

John Norton - AI=ve only got one question.@


Chairman Moyer - ANo, come over to the microphone please. I=m sorry we have to do this but to get you on tape and get your picture and everything we need to.@


John Norton - AI=ve only got one question - if they=d came to us first, before all this was started and talked to us we could=ve settled this.  But this is the first time I=ve seen this lady and the first time I=ve seen that gentleman.  Now right=s right and wrong=s wrong.@


Chairman Moyer - AAlright, thank you.  You=ll have a chance to give your evidence in a few minutes.@


Janice Payne - AMay I respond to that or I don=t need to?@


Chairman Moyer - AYes, if you=d like to, go ahead.@


Janice Payne - AWell about two years ago when we started in on the project I was working with my attorney, Buddy Massagee, and he made contact with the Nortons and were told that they were not interested in selling, in doing anything with the property.  I continued the process and then when we got further along I sent the letter directly to Mr. Norton, myself this time and he responded that they weren=t interested in selling or anything so it wasn=t anything personal.  I started out and there was continued response.@


Chairman Moyer - ADo you happen to have a copy of that letter that you could produce for us?@


Janice Payne - AYes sir.@


Chairman Moyer - AIf you=d show it to the Clerk, we can@


Commissioner Ward - AMr. Chair, I have one question of Ms. Payne, maybe Staff can answer this.  In all your correspondence with everyone, has the Fire Marshal or the Fire Departments been notified or asked if there=s any public safety or welfare of a fire truck or EMS going in?@


Janice Payne - AAll that has been addressed.@


Commissioner Ward - ASo they don=t see any?@


Chairman Moyer - AWould you state the conclusions.@


Janice Payne - AYeh, we meet their requirement, where they wanted the hydrant to be, I=m sure, yes.  She=s finding it but we did.  They told us exactly where they would want a hydrant and we said that=s where it would go.@


Commissioner Ward - ASo there will be public water or private water?@


Janice Payne - AThere would be wells but with@


Commissioner Ward - AOK@


Janice Payne - AThere=s going to be a big I don=t want to say pond cause my idea of a pond - there=s going to be a big -where the wetlands were there=s going to be a pond developed there and a hydrant installed exactly where they said it would go to meet any requirements in case of an emergency so that has been addressed.@


Chairman Moyer - ABut if the variance was granted was the Fire Marshal at all concerned about the ability to get fire equipment or emergency rescue equipment into the site?@


Janice Payne - ANo sir, we were not told that.@


Chairman Moyer - ADo you have anything on that Karen?@


Karen Smith - AThis is going to be second hand.  Our Subdivision Administrator, Shannon Baldwin, did call Mr. Hyder, the Fire Marshal, particularly about the subdivision variance and Mr. Hyder did not have a problem with that but I don=t have anything to hand you about that.  I think Ms. Payne addressed the issue as far as the subdivision approval is concerned - there was a issue about a dry hydrant and that is one of the conditions that they work with the Fire Marshal on that.@


Chairman Moyer  - AAlright.  Ms. Lindsey, did you wish to ask any questions of the petitioner? This is not for your evidence now, this is to ask questions about anything they=ve said or what you=d like to know from them.@


Melody Lindsey - AI have two questions.  The first is I=m not sure the exact procedure but has the Army Corp of Engineers been involved in determining the wetlands and the continued preservation of any wildlife and that type of thing? And my second is the septic system for the subdivision.  How will that be located?  You mentioned architect.  I assume you have an idea of what that might do in relation to the wetlands.@


Chairman Moyer - ARespond if you can please.@


Janice Payne - ALet me get the first one in my head.  We did not to my knowledge, neither did the land surveyor or the architect contact the Army Corp of Engineers.  I=m not aware of that.  However, when we started this process we made it quite clear that we wanted to keep everything as natural as possible.  What we don=t want for anyone that=s liv... I want to use this word and I want to say I want people when they come in and take ownership in that development to feel somewhat of being in a ... ? (sounds like partisay) condition so whatever is natural there we agreed would remain, we wouldn=t destroy anything although it meant not using quite a bit of the acreage, that was not the point.  We want people to be - the children to be able to run free and enjoy whatever life there is to enjoy there so nothing will be destroyed or disturbed that will affect anything that we need in that environment.@

Commissioner Hawkins - AKaren, do you know - is the Army Corp of Engineer=s list - is there a listing of wetlands that they=ve identified - are you aware of that?@


Karen Smith - AI=m not - I=m not aware of one for Henderson County that we reference on a regular basis.  We would normally just call on a case by case basis.@


Chairman Moyer - AMr. Norton, do you have any further questions at this time.  OK. Thank you very much. Oh, I=m sorry.  On the septic - she asked about how you=re going to handle septic.@


Richard Phipps - ATo address the area of expertise with regard to the Army Corp of Engineers and so forth - a month - I=m sure that the Army Corp of Engineers was not a part of the discussion but the State licenses individuals specifically in that area to handle and evaluate, access the need for control of the wetlands as they=re developed.  The surveyors and engineers that were working on the project I=m sure had that expertise because it came up in the very early stage of the discussion as part of the planning process and they had some experts involved in that process.  To deal with the issue of septics - there are individual septics for each unit and the ground has been tested as it would be.  I=m not sure of all the terminology there as to the places etc. and that also was approved for continued developed so that also has had the rigorous testing standards that would apply to it completed and approved for continued development.@


Chairman Moyer - AThank you.@


Richard Phipps - AOK.  And as for one issue I just want to touch on briefly - Mrs. Payne addressed the issue of pricing - I=m not sure it=s all relative so I - if it didn=t - if it was important?@


Chairman Moyer - ANo, don=t - don=t go into pricing please.  Staff - we=ll now turn to your introduction of evidence.@


Karen Smith - AOK.  What I wanted to do is just respond to some of the applicant=s responses on the application form itself and I=ll be referring to their responses by number, the first being item a-1 - the applicant=s position is that three lots on 28 acres with a density of 1 lot per 9.92 acres does not seem to be reasonable use of the property when the Henderson County Zoning Ordinance permits a density of 1 lot per .68 of an acre.  This issue came up with the Planning Board and I think there have been some misunderstanding about what would actually be allowed with insufficient right-of-way access.  There was some belief that three lots were all that were involved so I=ve kinda gone past that issue to explain that the actual - that actually the hardship that they need to demonstrate rests with the application - section 170-27 of the Subdivision Ordinance which defers to the state road standards which specifies the 45 foot right-of-way access.  The Subdivision Ordinance does not dictate how many lots can be developed with insufficient on-site access or at the entrance access if you will. But I wanted to point out and I=m not sure how relevant this is but there seems to be a discrepancy in how the Subdivision Ordinance treats subdivision with this on-site or at the entrance exit and those that have off-site exit.  There=s a section in the ordinance 170-28 for off-site access which doesn=t apply in this case but it says that a subdivision can be accessed via a right-of-way that=s less than 30 feet provided you develop at 1 lot per acre.  That=s the only thing in the ordinance where you have a constraint on the number of the lots other than - or the lot size other than the Zoning Ordinance.


Regarding the applicant=s response to item a-2 - staff has found that unless an additional right-of-way can be secured from an adjoining property owner it appears the applicant can only provide 30 feet of right-of-way at the intersection of Candace Way and Old Homestead Road. 


Staff does not refute the applicant=s response to item a-3 which states that neither the previous owners of the subject property nor the applicant participated in subdividing the subject property from adjoining properties whereby thereby creating a 30 foot wide access point on Old Homestead Road. 


Regarding item b - staff feels that if a safe entrance is designed within the proposed 30 foot wide right-of-way right there at the entrance, then we don=t believe that the safety, health, and general welfare would be compromised.. 


And finally on item c - we agreed that with the applicant ... the topography at the subdivision entrance is flat and that visibility for ingress and egress would be satisfactory when the entrance is installed as it was proposed. We also agree that there is not a lot of traffic beyond the proposed entrance to the subdivision. 


And I also did want to just kind of formally give you the Planning Board=s recommendation:

They had heard the subdivision on March 27 and they heard the variance request on April 24 and voted unanimously to send the Board of Commissioners a favorable recommendation on the request as submitted and the only comment that a Planning Board member made was that the land is flat and the applicant can do what he needs to in 30 feet and what I=ve done is I have copies of my remarks and a copy of the Planning Board=s minutes to hand up and I=ll provide that to you and to the parties.  Does anyone have any questions?@


Commissioner Hawkins - AKaren, I=ve - I have one question.@


Karen Smith - ASure@


Commissioner Hawkins - AReference the left side of the entry there, power lines, topography - are you familiar with that?@


Karen Smith - AI=m really not - um - of course I wasn=t the one who reviewed this subdivision.  I=m just getting to present the variance application so really I=m not that familiar with that - only to say that I did ask Ms. Payne to speak to the Cantrells as far as additional right-of-way.@


Chairman Moyer - AAny other question with respect to staff=s evidence from any of the Commissioners?  Now with the parties - first Ms. Payne do you have questions for staff, Mr. Norton do you any questions for staff with respect to their evidence.  Ms. Lindsey do you have any questions for staff.  OK Karen.@


Karen Smith - AThank you, let me hand those out.@


Chairman Moyer - AYeh, that=ll be fine. After she finishes handing up her evidence, we=ll move to the other parties and give you an opportunity to present any evidence that you want.  We=ll start with you, Mr. Norton.  So if you want to start coming up and then you will be able to present any evidence that you wish and then the Commissioners and the parties to the proceeding will be able to ask you any questions, just like we did with all the other parties.@


John Norton - AThe only thing I have to say is just like I said before, is that I=m not willing to sell or give no right-of-way at this time to them.  I don=t have no evidence or anything of this nature.@


Chairman Moyer - AThat=s fine.@


John Norton - ABut@


Chairman Moyer - AThat is evidence, Mr. Norton, I can assure you.  Before you leave, let=s see if any of the Commissioners have any questions for you or if any of the other parties.  Commissioner Hawkins.@


Commissioner Hawkins - AMr. Norton, I would like to ask you a question about the letter that we were presented, if I might look at that and just - it=s signed by - it=s signed by you and then the - in the bottom part of it you say that you=ve been advised to not do anything at this time.  That would indicate to me that - that you might at some point consider selling your property or could you interpret this.@


John Norton - ALater on, maybe, later on.@


Commissioner Hawkins - ADo you have a time that you might - I mean do you have something in mind?@


John Norton - AWell, I don=t know exactly yet.  I couldn=t give you a definite answer.  They=s a lot of things happening in my life and that=s got to come out first but I=ve lived here in Henderson County all my life and it=s time to move on.  I am not completely satisfied here to be honest with all of youns and it=s like I said it=s time to move on.  I don=t know if I=m gonna be here as far as living here, I don=t know if I=m gonna be living here another 6 years or not.  I don=t know but right now, right now there=s no way that I can honestly help these people out.  I can=t do it.@


Chairman Moyer - AThat=s fine.@


John Norton - AThank you.@


Chairman Moyer - AThat=s fine.  We=re not pressuring you at all.  Now wait, before you leave, again are there any other Commissioners who have a question for Mr. Norton.  Staff, Karen do you any questions?  Mr. Phipps?  Please come forward.  I=m sorry, I hate to do this but we have to do that.@


Richard Phipps - AWith all due respect, Mr. Norton, this is the first time I=m meeting you also, my pleasure.  I hope that when you were sent initially - I=m asking because initially he said if we had spoken to him at the front the result might be different.  I=m hoping that although we=ve lost some time that it=s not too late to have a conversation with you that might resolve the matter.@


John Norton - AWe can sit down and talk anytime you want to talk about this and then I can explain to you why I don=t want to do nothing at this time.  Maybe you=ll understand, maybe not, but the answer is NO.@


Chairman Moyer - AThat=s fine, Mr. Phipps, let=s leave that at that.  If you want to negotiate out of here but we=re just into evidence and testimony.  Ms. Lindsey, do you have any questions for Mr. Norton.  Alright.  Are there any other questions for Mr. Norton.  If not, we=ll move into Ms. Lindsey=s testimony and then everyone can ask her questions.@


Melody Lindsey - AIt is my feeling after asking the questions that I asked concerning the wetlands, that I don=t - I still don=t quite understand what experts were involved in determining.  I know there are laws that regulate the use of land.  My husband and I built on our property and a tiny tiny portion of these wetlands is - is onto our property.  There was never anywhere mentioned - with normal regular comments and that type of - planning and - no question ever came up.  It wasn=t - we weren=t aware when we bought the land that it had the wetlands bordering it and a little on our property.  I called the Army Corp of Engineers myself and they said that if the property owner requested - all they had to do was ask - that they would come out and determine whether it was a wetland, what degree or however they access that.  They spoke of no charge, no special difficult way - you know - they said if the owner called. They weren=t aware of the owner calling and of course that=s been - they=ve stated that they haven=t contacted

the Army Corp of Engineers.  I also spoke with an environmental group here in Hendersonville, I spoke with Mary Jones and the name of the organization leaves me.@


Chairman Moyer - AECO probably - Mary Jo Padgett.@


Melody Lindsey - AI think.  And they weren=t aware of anyone checking on that particular property as concerns the wetlands.  So although I realize that the owners state that they wish to preserve it and that they wish to keep it natural, I think the evidence shows that they haven=t taken all the steps that would indicate they=re serious about doing that.  That=s all I have to say.@


Chairman Moyer - AOK.  Questions?  Commissioner Hawkins.@


Commissioner Hawkins - AMs. Lindsey, have you asked to see if your property is a wetland?@


Melody Lindsey - ASince my property was - my home was already built when I became aware of the Egrets and the Herons and the frogs and the - all that sort of thing, no, but I have not done any development on that area of property at all.@

Commissioner Hawkins - ALooking at the map and where your property=s listed - do you abut what would be lot #13 and 15 or - Karen would you help us out?  I=m trying to figure out - if you have that whole tract of land and exactly where the wetlands are that you think are wetlands. Which lots in the subdivision would you abut to?@


Melody Lindsey - AUh, 12, 13, and 15.@


Commissioner Hawkins - A12, 13, and 15, OK. A


Melody Lindsey - AThis is me.@


Chairman Moyer - AAnd you want to know where the wetlands is?@


Commissioner Hawkins - AWell, I was trying, she must think they=re down along this line.@


Melody Lindsey - AYeh, here.@


Commissioner Hawkins - AI guess.@


Chairman Moyer - AAny other questions for Ms. Lindsey?  Ms. Payne do you have any or Mr. Phipps do you have questions for Ms. Lindsey.  You=ve got to come forward again Mr. Phipps, sorry. We=re just walking you back and forth.@


Commissioner Hawkins - AHang around the mike@


Richard Phipps - AMs. Lindsey, are you familiar with the name Bruce Lowe?@


Melody Lindsey - ANo I=m not.@


Richard Phipps - AAre you familiar with the name David Huntley?@


Melody Lindsey - ANo I=m not.@


Richard Phipps - AOK, if I may suggest - those are two qualified - ones a land engineer, surveyor and is an architect.  Both of them fully aware of the regulations governing wetland and they were sort of - right at the beginning, part of that partnership in developing and preserving those wetlands.  If you look at a plan for the development, you will notice that those wetlands are preserved.@


Melody Lindsey - AAnd these people - Huntley and I forget the other - first names.@


Richard Phipps - AMr. Lowe, Bruce Lowe.@


Melody Lindsey - AWho are?@


Richard Phipps - AMr. Huntley is a local architect.@


Melody Lindsey - ASo he=s involved in the building.@


Richard Phipps - AYes.@


Melody Lindsey - AOK.@


Richard Phipps - AOK and Mr. Lowe is an engineer, land surveyor and very familiar with the regulations governing wetlands and the preservation of such.@


Melody Lindsey - ASo they would be interested parties rather than an objective, non-involved@


Richard Phipps - AWhen you - we could draw an analogy but I wouldn=t do that in the interest of time but you have to trust the people that advise you, local professionals - about this type of thing. If you were developing and you were relying on local expertise to direct you through this, you would trust that information, right?@


Melody Lindsey - AWell, I believe I expressed my own experience with building - that no-one advised me.  Fortunately it was not damaged. But.@


Richard Phipps - AWell, we sought advise and that advise is part of the development package.@


Chairman Moyer - AWell, I think that we=ve let you go far enough with this.  I think the point is if you had an independent party, she=d be more comfortable.  The people you=re referring to were hired by you and that may not make them objective so.  I understand your point but.   Are there any other questions for Ms. Lindsey.  Alright, thank you very much. We=re running out of tape time.  We now will go into closing remarks.  You do not have to make closing remarks but if there are any remarks anybody would like to make in closing, we will start with the petitioner and to the extent that we have three minutes left, we=re going to have to take a break and then pick it up again.  Janice, do you wish to make some closing remarks?@


Janice Payne - AIn the essence and the interest of time, I know that there - I have to go back to where my heart is and put my pocket there in the sense that in saying that we need affordable housing - whatever additional steps that we have to take.  On the survey it shows the property that=s in the 100 year floodplain so we are aware of that.  Whatever else is deemed necessary to make sure that people in this county that were looking forward to having a home have a home.  We=ll take whatever steps you deem necessary for us to do.  But I would love to have the opportunity to be able to assist others as I=ve been assisted in getting an affordable home, a beautiful affordable home in Henderson County.  Thank you.@


Chairman Moyer - AStaff, do you have any closing remarks?  Mr. Norton, do you have any closing remarks?@


John Norton - ANo sir.@

Chairman Moyer - AMs. Lindsey, do you have any closing remarks?  Alright we=ll take a break now, change the tape, take about five to ten minutes and we=ll pick up the rest of this proceeding with the Board discussion and then we=ll move on promptly to the second public hearing.@

Technical Recess.


Chairman Moyer - AWe=ll continue with the quasi-judicial proceeding.  It was underway.  We have finished closing remarks.  We sort of rushed through it so I=ll go back - all the parties have been asked if they wish to make closing remarks and I think we=ve concluded all the closing remarks.  OK, all the evidence has now been presented, closing remarks have been concluded, it would be appropriate for the Commissioners to discuss the issues presented today and decide what they would like to do.  Before we do that, I=m gonna ask the County Attorney to discuss the legal issues involved, the standard that we have to follow under law and any other issues she thinks relevant.@


Jennifer Jackson - AThank you, Mr. Chairman.  As the Board is aware, you do have a standard that is set out in your Subdivision Ordinance for the granting of variances.  You cannot just grant a variance just because you want to.  There are certain findings and conclusions that the Board must make in order to be allowed to grant a variance.  Those conclusions include that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the Ordinance. # 2. That the variance is in harmony with the general purpose and intent of the Ordinance and preserves it=s spirit, and # 3. That in granting the variance the public safety and welfare have been assured and substantial justice has been done.  So, before the Board can take any action to approve the variance you really need to have some discussions on those three items.  I would like to point out to the Board that you did hear a good deal of conversation concerning affordable housing issues and also some wetlands issues.  Those issues were probably very relevant to the Planning Board in granting and approving the developmental plans and to approve the subdivision.  Really what is before this Board is an issue that is limited to the variance request which is a reduction in the right-of-way from 45 feet to 30 feet.  So those issues would be relevant.  I would also ask of the Board if you wish to receive into your record the memos that Ms. Smith submitted and also the letter that Ms. Payne sent up to you which was a letter that was signed by Mr. Norton, it would be appropriate to do so so that those could be considered in your record. Any questions?@


Chairman Moyer - ANo, do we need a motion to (remove or move)  those three (?)@


Jennifer Jackson - A It would be fine.@


Chairman Moyer - AAlright, I move that we uh, the two memos prepared by Karen Smith, one date June or both dated June 4, 2001, and the letter that was signed by John Norton dated May 1, 2001, be admitted into the record of this proceeding.@


Jennifer Jackson - AI have assumed Mr. Chairman that the application itself with the attached maps is in your record, it might would be good to note that.@


Chairman Moyer - AYeh, I would assume that would automatically be part of the record but I=ll include that.  All in favor, say aye.@


Aye in unison.


Chairman Moyer - AOpposed?  OK. That is the record.  I=ll remind you as I think you=ll all know, we can either vote today, we can have discussion, we can ask staff to bring back findings of fact and conclusions with our decision or we can put off the decision.  We have to issue a written decision within 45 days of the conclusion of this hearing.  So I will open it up for discussion among the Commissioners and we=ll see how the Board would like to go.@


Commissioner Ward - AI can kick it off Mr. Chair.@


Chairman Moyer - AOK, Commissioner Ward.@


Commissioner Ward - AUh, first of all I think it is a hardship on the party to terminate the development.  I think they have a strong sense of an environmental responsibility.  As part of the hardship, I think Mr. Norton has indicated that he would not be able to sell the land at this time so I think that establishes grounds on a hardship.  The 30 foot right-of-way, through discussion of testimony, indicated there would be no public safety or welfare interference so I believe that=s in good standing.  You know.  I believe - I=ll leave it right there Mr. Chairman.  I=ll let the other Board members speak.@


Commissioner Messer - AMr. Chair, I=d like to see it official ... that all safety and - you know - fire and rescue and etc. be willing to accept this 30 foot right-of-way on this one parcel - you know - so I would really like to - I guess put it off till we get some facts in stone because if we do this this time, which I don=t have a problem with it, but you know we just need to be careful on - you know - possibly something else coming up later.@


Chairman Moyer - AWell, I would ask the County Attorney.  But can we have a finding of fact that that is the case and have it supported by a letter.  Karen has given it to you orally which she would have to do is get a letter from Rocky to back that up and if you had a finding of facts, wouldn=t that work?@


Jennifer Jackson - AI believe that in order to consider that actual letter in your record, it would need to be presented in a public hearing, in this public hearing.  You certainly have an option of continuing the public hearing until your next meeting in order to receive that.@


Commissioner Hawkins - AI - if I might - just to follow on I guess what Commissioner Messer - I think that the - one of the things that I would look at on that is that the width of the road hadn=t really changed as far as an emergency vehicles= response - it=s still 18 feet, the difference being another 10 foot of right-of-way and I don=t know that that would - at least in my own mind I can=t see how that would adversely affect ingress and egress of emergency vehicles, the fact that the right-of-way is not over there.  The road=s just as wide as it would be if you had that amount of road and so I think - at least from my part - the comments that Ms. Smith made reference her conversation with the Fire Marshal would be adequate and I would add to that that the variance is certainly in harmony with the general purpose and intent of the Ordinance.  Everything in the Subdivision Ordinance has been complied with except for - you know - 17 foot of entrance and I think that part of the purpose of that of course is the public safety aspect which was one of the reasons I was concerned about the lay of the land there and the visibility as you come upon the road.  And actually I don=t think that the right-of-way changes that very much as far as what you can see - it=s - whether you have right-of-way on the land or not that=s still the way the land is laying as far as visibility and so uh - I would make a motion that we approve the variance as presented and direct staff to come back with those findings of fact .@


Chairman Moyer - AMotion on the floor.  Commissioner Gordon?@


Commissioner Gordon - AI support that motion.  I think it=s important to note that the State Road accessing this property has no recorded right-of-way and is a 16 foot wide gravel roadbed so I think it is very reasonable to make - draw the conclusion that this subdivision providing an 18 foot wide roadbed would actually improve access, above what is there now with the State Road maintenance and I think that everything else has been complied with and we should go on with the approval of the variance.@


Chairman Moyer - AJennifer, do you have anything you=d like to add? Any questions.@


Jennifer Jackson - ANo sir, I think that you=ve covered most everything.  I believe - or is the Board willing to say that the variance is in harmony with the general purpose and intent of the Ordinance and therefore preserves its spirit?@


Chairman Moyer - AI think Commissioner Hawkins covered that one and Commissioner Ward covered a and c.@


Jennifer Jackson - AUh huh.@


Chairman Moyer - AAnd I think that it=s the general feeling that in the finding of facts with respect to the public health and safety issues we can rely on the statements made by Karen Smith?@


Jennifer Jackson - AYes sir, that would certainly be the Board=s prerogative to rely on those.@


Chairman Moyer - AParticularly since no evidence was submitted to the contrary.@


Jennifer Jackson - AYes sir.@


Commissioner Messer - AAs long as everything=s covered then I don=t have a problem with that, Mr. Chair.@


Chairman Moyer - AAlright.  Are there any other issues or questions with respect to finding of facts that you would like to raise with us, if you need direction, I=ll refer to@

Jennifer Jackson - ANo sir, we=ll be glad to put this on your next meeting for approval of the written order.@


Chairman Moyer - AAlright, the motion is on the floor that we approve the variance and that staff be directed to come up with finding of facts and a decision consistent with that motion.  If there=s no further discussion, all in favor say aye.@


Unanimous AAye.@ The motion carried.


Chairman Moyer - AOpposed? OK, it passes unanimously.  And we will - the way this will work, we=ve taken the action but the decision, finding of facts will come back to us at our next meeting for ratification of the wording.  It probably will be on the consent agenda, based on the fact that there is no issues that seem to be open.  But a decision has been made, we just have to review the wording to be sure that we=re satisfied it=s consistent with what we thought we were taking action on.  So that public - I need a motion to terminate that public hearing.@


Commissioner Hawkins - AAye.@


Chairman Moyer - AAll in favor.@


Unanimous AAye@. The motion carried.



Chairman Moyer asked the Clerk to poll the Board for the nine vacancies on the Environmental Advisory Board.  There were eleven nominees.  Each Commissioner has nine votes.


Following polling the Board, the Clerk announced the nine appointees as follows (in alphabetical order): Jim Barnette, Katie Breckheimer, Chan Chandler, Art Cooley, Bill Harper, Mary Jones, Fielding Lucas, Barbara Neal, and Dan Waddell.


PUBLIC HEARING - Rezoning Application # R-01-01 (R-40 to C-1)

Bernard, Sherman, Thompson, Applicants

Chairman Moyer made the motion for the Board to go into public hearing.  All voted in favor and the motion carried.


The Chairman explained the differences in this type public hearing and the quasi-judicial hearing which we just had.  He stated that the public input would be limited to 3 minutes per person.   Nineteen people have signed up at this time.


Josh Freeman explained that the Board had scheduled for this date a public hearing on an application by applicants Christine Bernard, Bob G. Sherman, and Virginia Dale Thompson for a proposed amendment to the Official Zoning Map of Henderson County.  The Applicants have submitted an application requesting that the County rezone 3 parcels totaling approximately 2.34 acres from an R-40 Estate Residential district to a C-1 Residential Commercial district.  The parcels proposed for rezoning are located at the intersections of US Hwy.# 25 South and Shepherd Street, and US Hwy. #25 South and Erkwood Drive.


The subject parcels have been zoned R-40 since 1981. Subject parcel #1 on the map belongs to Mr. Sherman.  It is currently a commercial two-story structure containing some offices and apartments on the top.  The commercial structure is currently non-conforming under the zoning ordinance.  Subject parcel #2 belongs to Ms. Bernard.  It=s a single family residence with an illegal in home occupation consisting of a furniture and     ?       painting business.  Subject parcel # 3 belongs to Ms. Thompson.  It is a single family residential structure.  Single family land uses dominate the immediate vicinity of the surrounding parcels.  There are about 300 single family residential structures within 2 mile of the intersection.  Substantial multi-family development is in the vicinity.  About 289 residential units are located in four manufactured home parks and three multi-family developments.  Approximately 15 commercial uses are in the vicinity, primarily located along US Hwy. # 25 South above or north of Erkwood and Shepherd Street, between there and the Hendersonville City limits.


Previous commercial rezonings - the Blossom Basket was annexed and zoned by the City of Hendersonville a C3SU in November 2000.  Charlestown Place, Planned Unit Development, was rezoned to R-10 from an RT and R-20 in 1998.  There was a C-1 Commercial component to the application which was withdrawn due to some local opposition.


The Henderson County Planning Board reviewed the application at its meeting on Tuesday, April 24, 2001 and voted to send the Board of Commissioners a favorable recommendation on the request to rezone the property of applicant Sherman, but voted to send an unfavorable recommendation on the request to rezone the properties of applicants Bernard and Thompson.


In accordance with Section 200-76 of the Henderson County Zoning Ordinance and State Law, notices of the public hearing were published in the May 23, 2001 and May 30, 2001 editions of the Hendersonville Times-News. The Planning Department sent notices of the hearing via first class mail to the applicants and the owners of property adjacent to and near the subject properties on Monday, May 21, 2001.  On Monday, May 21, 2001 Planning Staff posted signs advertising the hearing on the subject property.


Josh explained that Staff has four primary concerns with this proposal:

1.         The proposal is not supported by the Henderson County Comprehensive Land Use Plan and granting the rezoning request would be inconsistent with that plan. The Land Use Plan recommends that the area be managed for residential uses only.  To date, most zoning decisions in the area have been consistent with this plan.  However, staff feels that the circumstances in that area have changed somewhat since the Land Use Plan was drafted.  For example, the City of Hendersonville=s C3SU has advanced some commercial presence in the area. The extension of sewer and water in the area has and will continue to make the area more suitable for light commercial and additional residential growth.  Significant residential growth in the area has possibly enhanced the need for some limited local commercial services at important intersections.


2.               The current intersection configuration is somewhat dangerous in our opinion, the traffic implications of the proposal should be taken seriously.  The need exists to widen or add turning lanes along US #25 and to realign or square-up US #25 South with Erkwood and Shepherd Street, reconfigure the intersection somewhat as Shepherd Street and Erkwood are currently offset by a short distance.  The current draft of the 2001 Hendersonville Urban Area Thoroughfare Plan does not include any recommendations to improve US #25 South that I=m aware of.  The draft of the NC Transportation Improvement Plan reveals no plans to improve that intersection and NC District Engineer, Ed Green, reiterated this saying that no plans for improvement exist at this time.  The area around the intersection lends itself to a mixture of light commercial and residential uses that serve the surrounding residential community; however, neither approving or denying the rezoning will address this issue of it being appropriate for mixed use, either it will be residential or it will be commercial at some point in the future under current ordinances. Unless, that is, we address the issue through the application of the C2P district or through a text amendment to C-1 that would modify C-1 to allow certain mixed uses. 


3.               Then, there=s the issue of spot zoning.  Spot zoning occurs when a relatively small tract of land is zoned differently from the surrounding area.  While it=s not necessarily illegal in North Carolina, it must be clearly supported by some reasonable basis.  Four issues revolve around this matter of spot zoning:


$                The first is the size of the area - the size of the area that is being considered for rezoning

should be reasonable.  It=s a relative concept, reasonable to what?  Reasonable to the ordinance, reasonable to the density of the area.  If you=re in an urban area vs. rural area, you=re going to look at that differently.  Staff felt that this is not a serious concern given that the maximum allowable size of a C-1 district is 5 acres and we=re talking about between 1 and 2.34 acres, depending upon how the Board chooses to go, if they approve the rezoning.


$                The next issue of spot zoning, would be that they need to be generally compatible with existing plans. This would not be compatible with the Comprehensive Land Use Plan if you approve the rezoning. However, staff felt that that=s not necessarily relevant or that big of an issue in this case.


$                Third, the relative benefits and harms of a rezoning decision to the applicant should be weighed against the benefits and harms to the surrounding community.  Generally speaking, the rezoning must be a real and substantial benefit to the community and not one that merely offers convenience to the community or to the land owner. That decision would be up to the Board of Commissioners and their Attorneys.


$                The fourth issue which should be considered with spot zoning would be the relationship between the proposed rezoning district and the surrounding districts.  Basically if there is a great disparity between the proposed rezoning and the surrounding zoning, then it is more likely to be successfully challenged in court.  Staff again felt that this is not that big of a concern in this matter as C-1 residential/commercial districts are intended for residential areas specifically.


Staff Recommendations

Staff generally supported the rezoning of subject parcel #1 which belongs to Mr. Sherman to C-1 Residential/Commercial, based on two primary reasons - that the area is appropriate for some light use commercial uses and that the area along US Hwy. #25 South, especially above Erkwood and Shepherd Streets already has some existing commercial uses which staff feels are generally appropriate for the area. The changing nature of sewer and water services in that area lends itself to some commercial applications; however, we need to be careful and pay close attention to the hazardous configuration of the intersection and consider the fact that some commercial uses that could be applied in those areas could have implications for the traffic, complicating the flow and that sort of thing.


With regard to subject parcels # 2 and # 3, staff did not necessarily oppose rezoning but extra consideration should be given to their appropriateness for C-1 because they are embedded within an appropriately zoned residential area, they are separated from the cluster of commercial uses north of Erkwood Drive.  Future commercial uses can contribute to traffic congestion at the Erkwood/#25 South intersection and back out Erkwood.  There are some sight distance access issues associated with the curbs immediately to the west of Erkwood Drive and finally it would allow additional commercial uses south of Erkwood Drive which is a move that the Village of Flat Rock, in particular, has opposed in the past.


Planning Board Recommendations

On Thursday, April 24, 2001, the Henderson County Planning Board voted 6 - 3 to send a favorable recommendation regarding the proposal to rezone subject parcel #1 to a C-1 Commercial District.  They voted 7 - 2 to send an unfavorable recommendation regarding the proposal to rezone subject parcel #2 to C-1 and they voted 8 - 1 to send an unfavorable recommendation regarding subject parcel #3 to C-1 Commercial.  The Planning Board expressed some of the following sentiments regarding subject parcels #2 and #3:


$                First, that the range of uses that might be permitted by C-1 in this predominantly residential area would be inappropriate.

$                Some of them expressed a general feeling that the area south of Erkwood is inappropriate for commercial uses generally and that the traffic flow along Erkwood would be negatively affected and finally, that the topography does not necessarily lend itself to commercial uses.

The Planning Board expressed the following sentiments with regard to parcel #1:


$                That the subject parcel is appropriate for commercial uses given the presence of sewer and water.

$                That the parcel has traditionally been commercial.

$                That the area north of Erkwood is generally more appropriate for commercial uses.

$                That R-40 zoning north of Erkwood around parcel #1 may have been a mistake to begin with.


Public Input

1. Joanne Jones - Ms. Jones is a resident of Flat Rock.  She vehemently opposed the rezoning because there is an abundance of commercial land in a very nearby vicinity with much of it abandoned and derelict. Where the rezoning is being considered is an established neighborhood.


2. Chris C. Bernard - Ms. Bernard lives at 101 Erkwood Drive.  She referred to the rezoning of Blossom Basket in November of 2000 by the City of Hendersonville which is right across the street from her property.  They granted it because current road conditions could accommodate additional light traffic, sewers made it suitable for additional light commercial traffic.  The traffic count now as it stands is 8,400 cars per day that go by her house. She stated Athat is not a residential count@.  She is located on the corner of Erkwood and US Hwy. #25.  There are 10 businesses within 2/10 of a mile of her house.


Ms. Bernard asked for additional time.  Chairman Moyer stated that he might grant additional time after everyone has had an opportunity to speak. 


3. Marvin Lancaster - Mr. Lancaster lives at 1732 Camelot Drive.  He spoke about the bad traffic situation at the intersection in question. He would like to see the area stay as a residential area.


4. Virginia Thompson - Ms. Thompson is one of the petitioners.  She stated that she is not interested in leaving her house, that is not her reason for asking for the commercial zoning. She spoke of the inevitability of double taxation for her due to the sewer line being run in front of her home.  She said AOur county is being destroyed at an unbelievable rate.  A five letter word is behind the destruction of land, trees, communities, wildlife - that=s m-o-n-e-y.  My fear is double taxation and devaluation@.  She stated that those against her request are mostly from other areas and stated that this is a highly emotional issue for her.


5. Theodore L. Etherington - Mr. Etherington understood that the Transportation Advisory Committee has put this intersection as one of their priorities (#5) to have it taken care of at some point in the future. 


Chairman Moyer stated that the Committee has been trying but he has gotten no assurance from the State that they will do anything.  As far as he can tell, the State does not have any intention to do anything in the relative near future with respect to that intersection. He felt that the Hwy. #25 corridor is a residential community and should remain such.


6. Bruce Reiker - Mr. Reiker lives in King Crest Drive in Flat Rock.  He echoed that Hwy. # 25 South is an important artery to the City from Flat Rock.  He spoke in opposition to the rezoning request.


7. Bob G. Sherman - Mr. Sherman is one of the petitioners.  He spoke in favor of the rezoning request.  He owns the Flat Rock Office Center.  His family bought this property in 1940.  It has been a commercial piece of property ever since that time.  Sherman=s Superette was formerly on his property.  Prior to his purchase of the property, Mr. McCall ran a grocery store there (125 years ago) in the same building that is currently on Mr. Sherman=s property.  He felt that in the 1980's a mistake was made - the property should never have been zoned R-40 at that time.  That is not a single family home.  In the office building, he has three Doctors, Insurance Agents, Stock Brokers, Engineers, and other self-employed people.  He addressed the rezoning of the Blossom Basket across Hwy. # 25 from his property, stating that it was spot zoning and spot annexation.  Blossom Basket was formerly a single family residence.


8. Chuck Cordray - Mr. Cordray stated that 21 years ago there was a mistake made by David Fowler in zoning this area Residential but also stated that it was spot zoning to rezone those three pieces of property.  He stated that the entire area needs to be rezoned. He asked the Board, if they choose to honor the rezoning request, to make a commitment to the people that live on the corridor in question that the Board will look at that entire corridor to the City limits with an eye towards rezoning that entire strip commercial. He spoke in favor of granting of the rezoning request.


9. Kevin Kilpatrick - Mr. Kilpatrick also asked the Board to consider not just spot zoning the three requests under consideration, but also consider the whole corridor north of Erkwood to the City limits for rezoning to light commercial.


10. Tom Dunn - Mr. Dunn is a Flat Rock resident and the President of Historic Flat Rock Inc.  He spoke in favor of the corridor being preserved in the manner it is in now, stating that there is no benefit to the rezoning and asking the Board not to approve it.


11. Eliza Graue - Ms. Graue is on the Village Council at Flat Rock.  She spoke about the Ahorror@ of the traffic intersection at Erkwood and US # 25 and Shepherd and US # 25.  She asked that the Board work with other elected officials to promote appropriate and consistent zoning.  AWhy rezone this intersection, in particular south of Erkwood when there exists a buffer that Mr. Sherman spoke about between his commercial development and Erkwood?@


12. Allan Berg - Mr. Berg did not wish to speak when his name was called.


13. Scott Sherman - Mr. Sherman lives part-time in Hendersonville and part-time in Los Angeles and owns commercial properties in the City and in Henderson County.  He is related to Bob Sherman and spoke of Mr. Sherman=s high character and manner.  Mr. Sherman=s property has always been commercial, so why not make it commercially zoned?


14. William Drake - Mr. Drake is a Clairmont resident.  He spoke of Hwy. # 25 being the corridor into Flat Rock, stating that the road was not meant to be an artery.  He was opposed to the proposed rezoning.


15. Joseph A. Sentelle - Mr. Sentelle did not come forward to speak when his name was called.


16. Joseph Ed Beasley - Mr. Beasley is a Flat Rock resident.  He would like to see this corridor remain as is from Upward Road through Flat Rock (Hwy. # 25 south).  He favored the rezoning request.

17. Chet Parent - Mr. Parent lives in the Chantaloupe development off Erkwood. He urged planning for the whole US # 25 corridor.


18. Mike Earle - Mr. Earle favored commercial rezoning for Mr. Sherman=s property. He operates an insurance business out of the building on subject parcel # 1. He cannot see a visible change on that property if it were rezoned to commercial.


19. Terry Hicks - Mr. Hicks is the current Mayor of Flat Rock. He spoke on behalf of the Village of Flat Rock, asking the Board to keep the following in mind as they consider this rezoning request:


8.               The Comprehensive Land Use Plan for Henderson County adopted in January 1993 approves this land only for Residential use, not for Commercial.

2.         The Henderson County Board of Commissioners has asked the Village of Flat Rock to wait three months on holding joint discussions regarding the zoning on their borders. (To allow for the Board of Commissioners to complete their re-write of the Zoning Ordinance).

13.            Hendersonville as well as the Village of Flat Rock and Henderson County and citizens living in the area are all stakeholders with immediate concerns on land use planning and the resulting zoning along Highway 25 South between the corporate limits of Hendersonville and Flat Rock. 

14.            As an expression of the concern felt by the citizens of Flat Rock, the Village of Flat Rock Council has approved a Resolution (# 73) concerning this request for rezoning at Erkwood & Highway 25 South.

15.            No one has shown a need for this property to be rezoned.


Mayor Hicks stated that it is appropriate to add a #6 to the list:

2.               At the May 7, 2001 meeting of the Board of Commissioners, they approved a policy not to make any changes in the zoning map without first consulting with all stakeholders.

In this instance the stakeholders, Henderson County, Flat Rock and Hendersonville, should make a special effort to gain input from all citizens who live in this area. 


The Board asked some questions of Mr. Hicks.  Mr. Hicks stated that the current Flat Rock Council members prefer not to annex property nor extend their ETJ.


Mrs. Bernard was given one minute more by the Chairman to address the Board (#2 from above)  Mrs. Bernard asked why this corridor is considered a corridor to Flat Rock?  She stated that they are not second grade citizens.  They are tax payers.  She stated that they plan to enhance their properties.  She is considering a fouling school on her property. 


Chairman Moyer asked Ms. Jackson if there were anything she wished to say from the legal standpoint.


Jennifer Jackson reminded the Board of the characteristics of the C-1 residential/commercial zoning district:


It provides that the district is intended to provide a range of office, retail, and

service establishments of small to moderate size with small, well landscaped

parking areas to be available to residents of nearby residential areas while

maintaining the character and integrity of the neighborhood.  The objective is

to provide neighborhood conveniences in small commercial establishments

without nuisance factors such as constant heavy trucking and excessive noise,

dust, or odors. This classification would be considered for proximity to resi-

dential areas, existing land uses. Traffic patterns, and other factors make it

desirable to maintain a commercial character which is less intense than is

permitted in the C-2, which is the neighborhood commercial district.  The

character of the district should be compatible with surrounding districts with

regard to esthetics, density, bulk, and space.


Chairman Moyer asked for a motion to close the hearing. Commissioner Ward made the motion to close the public hearing.  All voted in favor and the motion carried.


Much discussion followed, pro and con.  The Board agreed that there have been lots of changes in that neighborhood since the Comprehensive Land Use Plan was developed.  Chairman Moyer was opposed to all three rezoning requests, partly because they are not in compliance with the Henderson County Comprehensive Land Use Plan.  Commissioner Gordon addressed ASmart Growth@ and mixed uses.


Commissioner Hawkins made the motion to approve all three rezoning applications to C-1.  A vote was taken and the motion carried four to one with Chairman Moyer voting nay. 


Commissioner Gordon made the motion to direct the Planning Board and Planning Staff to study the area of the #25 south corridor as soon as possible.  Much discussion followed, following which Commissioner Gordon withdrew her motion. Instead, she made a request that this be added to the Board=s list of issues for further discussion as soon as possible with the Planning Board.


Chairman Moyer reminded the Board that as a result of action taken earlier, the Board asked that a procedure be developed through the LGCCA.  LGCCA is working on that and has charged the County Manager and each of the municipal Managers to meet and discuss and develop a procedure that they could take back to the LGCCA as to how a plan could be developed by all entities of our government in Henderson County.  The LGCCA plans to bring a recommendation to the Board of Commissioners.



Chairman Moyer reminded the Board of several dates that needed to be set, there was discussion and dates were set for the following:


Joint meeting with the Hospital Board of Directors - June 14 at 3:00 p.m.

Rescheduled the Redistricting Workshop - June 13 at 5:00 p.m.

Budget Workshop with Fire Departments - June 18 at 5:00 p.m.


David Nicholson asked the Board to set a regular Budget Workshop which was set for June 19 at 3:00 p.m.



Commissioner Hawkins made the motion to adjourn the meeting at 9:55 p.m.  All voted in favor and the motion carried.







Elizabeth W. Corn, Clerk to the Board                        William L. Moyer, Chairman