STATE OF NORTH CAROLINA                                            BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                         FEBRUARY 20, 2002


The Henderson County Board of Commissioners met for a regularly scheduled meeting at 9:00 a.m. in the Commissioners' Conference Room of the Henderson County Office Building.


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


Also present were: Planning Director Karen C. Smith, Assistant County Attorney Jennifer O. Jackson, Finance Director J. Carey McLelland,  Public Information Officer Chris S. Coulson, Fire Marshal/Emergency Management Coordinator Rocky Hyder, Assistant EMS Director Terry Layne, and Deputy Clerk to the Board/Volunteer Coordinator Amy Brantley.



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



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



Rev. Gus Martschink, with the Pardee Chaplaincy Program, gave the invocation.



Chairman Moyer asked to add one item to ANotification of Vacancies - WCCA@ so that the Board could take care of the appointment at the next meeting.


Chairman Moyer asked to add one item to ANominations@ as #7 - Transportation Advisory Committee (TAC) - 4 vac.  The four municipalities have made their recommendations for the TAC and he would like for the Board to take action on those at this meeting.


Commissioner Gordon added under ADiscussion Items@ as AD@ - Board of Health update on Animal Shelter.


Commissioner Hawkins added under ADiscussion Items@ as AE@ - Oklawaha Trail - memorandum of understanding with the City of Hendersonville.


Chairman Moyer mentioned the need for two additional items of discussion under closed session.


Chairman Moyer made the motion for the Board to approve the revised agenda.  All voted in favor and the motion carried.




Chairman Moyer asked to pull the minutes AA@ from the January 16 meeting for a revision. He also asked to pull item AF - Budget Amendment - ADM Fund@.  He also asked to pull item AG - Addition to State Road System@ for comment.



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

January 11, 2002, special called meeting

January 16, 2002, regular meeting (pulled, not approved)

February 5, 2002, special called meeting


Tax Refunds

A list of 20 refund requests were presented for the Board=s review and approval.


Tax Releases

A list of 57 release requests were presented for the Board=s review and approval.


Lease - Property Adjacent to Broadpointe Center

At the January 7, 2002 meeting, the Board requested the County accept proposals for leasing the tillable property located adjacent to Broadpointe Center.  At this direction, staff advertised the property in the Times-News classified ads and distributed a packet, which included a blank lease agreement for the property, a map of the subject property, and a cover letter explaining the process for proposing a lease.  A deadline of February 8, 2002 was established and published and two proposals were submitted by the deadline.


Mr. Wayne Carland proposed an annual lease amount of $1,834.00 for the property.

Mr. Allan L. Henderson proposed an annual lease amount of $2,912.00 for the property.


The County Manager recommended the proposal with the highest annual lease amount from Mr. Allan L. Henderson be accepted.


Approval of Closed Session Minutes

The Board was requested to adopt the following motion:


Motion - The following closed session minutes are hereby approved and shall be deemed sealed as provided by Section 11-6 of the Henderson County Code:


Minutes for the closed sessions held on February 1, 1999, July 26, 1999, July 27, 1999, and September 7, 1999 as presented and revised during the closed session of February 4, 2002.





Budget Amendment - ADM Fund

Staff held a meeting with the school system concerning the budget amendment associated with the State Capital Building Fund (ADM Fund) from the last agenda.  The purpose of the budget amendment is to appropriate funds from the ADM Fund in the amount of $580,578.


During the development of the Fiscal Year 2000-2001 Budget, funds were appropriated from the ADM Fund for several capital projects.  However, these projects were not completed until the current fiscal year.  The school system could not claim reimbursement for the projects until final completion.  The school system did not complete the projects in the fiscal year that they were budgeted.  The projects were completed in this fiscal year.  Thus, we need to increase the Capital Outlay budget for the school system.


However, we are now using the ADM Fund for the purpose of paying Debt Service.  The budget amendment appropriates the ADM revenue and increases the School=s Capital Outlay.  However, the net effect on the budget is to free up Restricted Sales Tax for these now completed projects and allows us to claim reimbursement from the ADM Fund for the Debt Service.


The County Manager recommended the budget amendment to the Board for their approval.


Chairman Moyer had asked that this item be pulled.  He asked for some clarification which Mr. Nicholson gave.  This can go back in consent agenda for approval.


Addition to State Road System

Staff had received a petition requesting the addition of Allen Springs Road to the State Road System.  Staff recommended approval of the petition.


Chairman Moyer had asked that this item be pulled.  He asked for some added language to be placed on these requests in the future stating that the Board does not wish for the road to be taken out of order on the paving priority list.  The Clerk will forward the additional language to the Property Addressing Department for future Board Action Forms on Road Petitions to add roads to the State Road System.


Chairman Moyer made the motion for the Board to approve the consent agenda with the exception of the January 16 minutes and with the correction in language on the road petition item in the future.  All voted in favor and the motion carried. 



Notification of Vacancies

The Board was notified of the following vacancies which will appear for nominations on the next agenda:


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

2.               Western Carolina Community Action (WCCA) Board - 1 vac.


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


1.               Equalization and Review - 2 vac.

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


2.               Juvenile Crime Prevention Council - 5 vac.

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


3.               Fire and Rescue Advisory Committee - 1 vac.

Chairman Moyer asked for Rocky Hyder to address this item.  Rocky Hyder stated that on Monday night the Fire and Rescue Advisory Committee nominated Richard Barnwell as the seventh member of the committee.  Mr. Barnwell is the current sitting Chief with Bat Cave Fire Dept.


Commissioner Ward nominated Mr. Richard Barnwell for this vacancy.  Chairman Moyer made the motion to suspend the rules and appoint Mr. Barnwell by acclamation.  All voted in favor and the motion carried. 


4.               Henderson County Board of Health - 2 vac.

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


5.               Nursing/Adult Care Home Community Advisory Committee - 8 vac.

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


6.               Industrial Facilities and Pollution Control Authority - 2 vac.

Commissioner Ward nominated Diane Grant.

Commissioner Hawkins nominated Jon Laughter.

Commissioner Ward made the motion to suspend the rules and appoint Ms. Grant and Mr. Laughter.  All voted in favor and the motion carried.


7.               Transportation Advisory Committee (TAC) - 4 vac.

Chairman Moyer informed the Board that yesterday at the LGCCA meeting, the municipalities selected Jim Clayton from Town of Fletcher to be their representative on the Western NC Caucus.  He and Chairman Moyer will be attending those meetings as the representatives from Henderson County.  They will report back to their respective Board and to the LGCCA.


The four municipalities have recommended the following nominees to TAC:

City of Hendersonville -         Mary Jo Padgett

Town of Fletcher -                  Eddie Henderson

Village of Flat Rock - John Manners

Town of Laurel Park -             Henry Johnson

Chairman Moyer nominated these four fill the municipal slots on TAC.  Commissioner Ward made the motion to suspend the rules and appoint all four nominees.  All voted in favor and the motion carried.


There was some discussion concerning Chairman for the TAC.  It was the consensus of the Board of Commissioners to allow the TAC to elect their own Chairman.



Pursuant to Article 2-7 of the Local Emergency Planning Committee By-Laws, the 2001 Annual report was submitted for Board review.  The membership roster for 2002 was also submitted for approval.    


Rocky Hyder, LEPC Chairman, reviewed briefly the report with the Board and answered questions.  LEPC is the Local Emergency Planning Committee.  Mr. Hyder explained that the LEPC has spent a great deal of time planning for terrorism type incidents due to the events of September 11th. LEPC was planning for those type of activities well before September 11th.  They have also continued to receive hazardous materials inventory reports which have decreased to 48 from about 100. 


Chairman Moyer reminded everyone that Commissioners Ward and Hawkins serve on this Board.


Commissioners Hawkins and Ward could not say enough about how well LEPC has worked to develop plans for all types of emergencies.   Mr. Ward stated that our LEPC is the leading LEPC in the whole state.  We are ahead of the curve.  He praised the leadership of LEPC. 



The Board had received the actual plan which was a separate booklet.


Chairman Moyer reminded everyone that the Board of Commissioners asked the Children and Family Resource Center to take a look at all the childrens= issues in the county and help the Board  prioritize the needs, take a look at what was being done for children and what wasn=t, to look at what was being done well and to try to come up with a good assessment and prioritization of childrens= issues and call it a strategic plan for children.   Spence Campbell, Renee Kumor, and others have been working on that. 


Spence Campbell addressed the Board on the state of Henderson County as it pertains to our children. He stated that the Strategic Plan for Children was a project which began with the Board=s approval and support in mid-2000. 


Mr. Campbell presented The Plan=s key findings:


C                  The single most important issue they have found as a result of the planning process was the lack of a comprehensive and integrated community-wide strategy impacts our ability to provide children and youth of our community with the resources necessary to achieve their potential.  Everything in this plan suggests that we must change the way we respond to the needs of our young people for two important reasons:

1.               The absence of a strategy reduces the efficiency and effectiveness of our overall efforts and eventually will drive costs to an unnecessarily high level.  This situation will only get worse until we as a community decide to act in a coordinated and cohesive way in response to this growing challenge. 

2.               It is simply a matter of this community treating its children with dignity and respect as we help them prepare for their future, a future which will likely have great impact on all of us.


Mr. Campbell recognized their webmaster, George Collman, who showed a powerpoint presentation about the results of these efforts.


Spence Campbell again addressed the Board stating that they need the Board=s support to continue their efforts to create the strategy he referred to earlier.  With the Board=s support, they can begin to deal with these issues in a manner which will lead to their resolution and ultimately reduce the cost of caring for our children.  They intend to inform local agencies and municipalities of their efforts and to ask for their input.  They will update their data and their website continuously to support their efforts at collaboration.  They also think it might be worthwhile to ask a university to look at our social issues and their associated costs and recommend changes which will improve service delivery and reduce those costs as a key aspect of the evolving strategy.  In the meantime the Center will continue to provide selected direct services for families and children and work together in partnership with the public agencies which have representatives in our facility.


Mr. Campbell stated that he was not here today to ask for any financial support, but it should be obvious that there are costs involved to support this effort.  The Center has used its own funds to develop and create this plan; they obtained state funds to support the creation of their data and web site; they believe the costs of such an initiative can and should be borne on a fair share basis.


Mr. Campbell - AAs a concerned citizen, I have seen the many occasions when this room is filled to capacity with adults who want to voice their opinion about an important community issue which you have under consideration.  You aren=t likely to ever see this room filled with kids who are here for the same purpose.  But their issues are just as important to our community as roads, greenways, zoning, and other items on your agenda.  Will you work with us to ensure that they are ready to take our places when the time comes?@


Chairman Moyer asked Mr. Campbell what the next step should be.  He stated that discussion needed to take place about putting a strategy in place to help deal with these childrens= needs.  Mr. Campbell  asked the Board of Commissioners to include in their strategic planning process an identification of the importance of children to the Board of Commissioners by reflecting that kind of significance in their planning process and to help bring the agencies together that are involved with children to continue to work to develop an enhanced service delivery for children.

There was some discussion of sharing this document with others in the community such as: Public Library, Board of Health, DSS, School Board, Parks & Recreation, State Legislators, etc.      

Following much discussion, Chairman Moyer stated that the Board is comfortable accepting the report, congratulated them on the report and thanked them for all their hard work into the report. The Board is also comfortable releasing it or sharing it with others as stated above. The Board should begin to incorporate it into our Comprehensive County Plan (CCP).


Their web site is: OurKidsonLine.Org



There have been major changes to the election laws in 2002.


Director of Elections Beverly Cunningham introduced two of her Board members who were present:  Chairman Tom Wilson, Betty Gash.  Ms. Israel was unable to attend this morning. 


Ms. Cunningham stated that the election season officially began on Monday with the opening of the period in which candidates can file for office.  They hope there will be no delay in the primary but of course there still are some civil litigations being heard in the courts.  Today there is a hearing scheduled in regard to the State House and State Senate redistricting.  The U.S. Supreme Court is going to hear arguments on March 27 in regard to the lawsuit which Utah has against the State of North Carolina in regard to additional Congressmen.  These litigations still have a possibility of creating major disruption in the 2002 elections. 


The office has recently been working on list maintenance of the registration records.  This is required by the State and Federal Government.  They mailed out approximately 14,000 verification cards and have received almost 7,000 of them back marked undeliverable by the post office.  Ms. Cunningham stated they then have to mail out an additional confirmation card to each of those 7,000 voters and if the cards are returned by the voters then they have to pay for the postage through their business reply for the return of the cards.  In addition to the mailing costs involved, there have been major printing costs involved in this process.  They have already spent approximately $7,500 in postage and printing for this one requirement of the law and they are only halfway through the process.


She stated that they have been working on the realignment of the precincts for the upcoming elections.  They hope to have this accomplished within the next 30 days, in time for the absentee voting to begin.  When the realignment is done then a mass mailing will have to be done to several of the precincts to notify them of changes in the precinct lines, polling place locations, and the new districts. 


Ms. Cunningham stated that her office has been able to accomplish this with no temporary help and no additional funds from the County so they have had to reduce some of their other line item costs and try to cut back.  Of course, they realize what is happening with the State Budget.  The major item they will cut back in their budget is the satellite polling place.  The State had hoped that every Board of Elections in the State would have a satellite polling place for the primary.  Henderson County Board of Elections will not have a satellite polling place for the primary.  They will do all the one-stop voting and all the mail-outs from within their office.  They will need a couple of additional computer work stations because two computers they have are not compatible with the new State system.  They do hope to have a satellite polling place in the fall, beginning in October.  They hope to use a City facility. It will begin the third Thursday before the election.   There will be voting on Saturdays this year.  It is required by law to vote at least until 1:00 p.m. on the Saturday before the election.  Local Boards have the option of voting until 5:00 p.m. 


Ms. Cunningham reviewed briefly some of the changes in the Election laws:


C                  The candidate filing period is now going to be the second Monday in February through the last business day in February before a primary.  This is set up to be a permanent change.   This creates a shorter time for the Board of Elections to design the ballots, have them printed and approved by the State.

C                  The most important change in the new law is the no-excuse voting in all elections.  No excuse absentee voting will be permitted in the traditional mail-out absentee voting as well as for the one-stop absentee voting.  This is going to have major impacts on printing costs, postage costs and staff requirements to process and receive all these paper ballots.  The only preparation their office can do is to make a good guess on how many voters are going to use this option.  With the massive interest in the U.S. Senate race and possibly even some of the County races, they expect a larger average turn-out for a primary.  They must prepare for this unfortunately which means money.


They expect to receive the new law book in March.  She told the Commissioners if any of them had questions after reviewing the summary of the new election laws to please contact her. 


The County Manager stated that some of the changes in the election laws will affect the County=s budget.  At this point, the Board of Elections have not requested any additional funding.  However, as he has reviewed the changes, he believes that there are several mandates that will require additional County funds.


Ms. Cunningham does not expect to request any additional funds for this year.  They will cut what they can.  In the next budget year when they have the satellite polling place in November, there will be some additional costs.              



Due to the actions of the Governor, Henderson County is again faced with making changes within its budget.  Henderson County was scheduled to receive $608,646 for the second payment of the Reimbursement for the elimination of the Inventory Tax and $46,105 for the Homestead Property Tax Exemption.  Within this total of $654,751, the Fire and Rescue Departments were to be distributed $31,007.  This leaves a net loss of $623,744 to the County=s budget.


Chairman Moyer informed the Board that at the LGCCA meeting yesterday there was a strong support from our municipalities that we would all work together rather than against each other to the point that if this Board of Commissioners was in agreement, LGCCA would support sending letters from the Board and the LGCCA as an entity complaining about the budget cuts and their effects on us.  Each government body is going back to their body for support of this.  He asked the Board to lend their support to this and work together with the municipalities through the LGCCA independently and through them to put pressure on the Governor and the State to reverse this and to come to grips with their budget problems.


Following much discussion, there was support for sending letters on behalf of the County and the LGCCA that we will work together and that we certainly condemn what is happening with the budget and discuss its effect on us and try to demand that we get the monies that are legally owed to us. 


There was some discussion that every county in North Carolina needs to be in a position to levy the 2 cent sales tax as soon as possible.  This local levy would begin July of 2003. 


Mr. Nicholson briefed the Board on the measures he had taken to address the Governor=s actions to freeze our reimbursements for the Inventory Tax and Homestead Exemption.  The net effect affects the County=s budget in the amount of $623,744.


1.               Positions         He has frozen all currently open positions and any other positions that become vacant the remainder of the fiscal year.  As was our practice last year, he will consider filling essential positions with other offsetting savings within the department.


2.               Departmental Reversions        He has requested a reversion from each of the County=s

departments in the amount of 2% of their budget including personnel costs.  This savings should amount to approximately $667,694 in savings for this fiscal year.  To assist with this reversion, the following specific actions have been taken:


a. Capital Outlay         He has frozen all capital outlay accounts.  He will again consider the

    authorization of purchase orders for emergency or crucial items.


b. Travel         With the exception of travel already committed or training for required

    Certifications, he has frozen all travel funds associated with conference and training

    programs.  He has also requested that the Department Heads monitor all travel.


c. Purchase Orders      All submitted orders must include a written justification for the need

    of the supplies/equipment.


In working with the Department Heads over the past week, he felt that it would be important to identify specific individual department savings to assist the reversion.  As of this date, he has already identified items amounting to $619,532.

Mr. Nicholson believes that these measures allow us to appropriately address the financial burden placed on us by the Governor.  Staff has begun to place measures within the current budget to ensure these savings and is developing a budget plan for Fiscal Year 2002-2003. 


There was much discussion concerning the budget cuts.  Mr. Nicholson was asked to bring back to the Board a list of the effect of each of the budget cuts so the Board can review them in more detail.


There was some brief discussion of sales tax. 



1. Howard Wiser - Mr. Wiser stated that he is not against bikers.  He is against the noise, the traffic and the aggravation that this event will bring to our county.  He stated that Mr. Myron is spending a lot of money to prepare for this event but it certainly is not all being spent in Henderson County.  Much of it is going to Buncombe County.  He stated that Mr. Myron will certainly have a problem with getting signatures from the residents that live in the 1,500 foot buffer zone. He also mentioned the threat of a fire from the fireworks.


2. Bob Jones - Mr. Jones lives at 116 Drexel Road and is an officer of the Enchanted Forest Homeowners Subdivision and spoke representing several property owners with property contiguous to where the Biker=s Bash is proposed to be held.  He is not against the event if it were held in a better location for it.  The property is located in the 100 year floodplain.  He stressed again that the property owners within the 1,500 foot area have to sign a waiver and have it notarized and none have been signed as yet.  He asked why Mr. Myron is allowed to proceed without the permission slips being signed.  If they are not going to be signed, the residents want to take the legal remedies available to them and want to proceed with those legal remedies now, not in June.    He stated that there are 12 pages on the web advertising this event.  Those pages need to be retracted as well as magazine ads.  They have been advertising this event since January 18.  Mr. Jones feels that new web pages and new ads need to indicate that this will not be held where proposed and needs to be advertised for the same length of time. 


Chairman Moyer informed Mr. Jones that this item will be discussed, later on the agenda.



Chairman Moyer called a short recess to change videotapes.


PUBLIC HEARING on Economic Development Incentives - BorgWarner Cooling Systems, Inc.

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


Scott Hamilton of the Committee of 100/Chamber of Commerce requested the Board to consider granting economic development incentives to BorgWarner, a business having a plant located in Henderson County in the Cane Creek Industrial Park.  BorgWarner has recently announced its desire to add a new injection molding operation in order to increase its manufacturing capacity in the Cane Creek plant.  The net taxable capital investment for such expansion is expected to be $4.673 million.  BorgWarner has announced that the new operation will create a total of 50 new employment positions paying an average wage of $13.00 per hour.


BorgWarner requested economic development incentives from the County in an amount of approximately $93,460 as partial reimbursement for the start-up costs associated with its plan to add a new operation.


A draft incentives agreement was presented for the Board=s consideration.


NCGS 158-7.1 requires that the Board hold a duly advertised public hearing on the proposed economic development incentives prior to approving the same.


Mr. Hamilton informed the Board that the Town of Fletcher has scheduled their public hearing for economic incentives for BorgWarner for February 28.


Mr. Hamilton informed the Board that David Jones, Plant Manager of the local operation of BorgWarner Cooling division was present today as well as Bruce Webber, Bob Williford, the President of the Chamber of Commerce,  and Ray Burrows who is the existing Industry Retention Specialist with the North Carolina Department of Commerce. 


David Jones showed a brief Power Point presentation of their Fletcher Plant history, present business, and expansion project.  The plant was originally built in 1976.  They currently have about 160,000 sq. ft. of manufacturing space. They are located on 54 acres with just over 400 employees currently. They had about $108 million in sales last year.  Between 1976 and 1986 all the Viscous production was moved from Marshall, Michigan down to the Fletcher facility.  In August of 1996 they began to make a single plastic fan product to go with their Viscous fan drives.  They completed a plant capacity expansion in 1997 and in 1999 the division was sold by Eaton Corporation to BorgWarner.  They manufacture the Viscous fan drive which is part of the engine cooling system.  Their products are located on pick-up trucks and sport utilities that are rear wheel drive and they have been making a single application, a plastic fan.  Their expansion plans are to begin a wide variety of plastic fans not only for the light truck markets but for some of the commercial truck markets also. They have received specific awards for outstanding performance from some of their customers; Ford, Chrysler, Toyota, and John Deere.  They are in the process of moving from traditional mechanical drives to electronically controlled drives.  They will begin to launch this product later this year.  They have been making plastic/nylon fans since 1996.  They are preparing to move into a much more diverse application base for their nylon fans.  Their business is divided up into three or four products they refer to as light duty.  Their medium duty products are primarily dominated by the pick-up trucks with General Motors and their full size sport utility vehicles.  Their new Vistronic products are slated for the next release of the Expedition and they are slated to be on the next version of the F series pick-up.  Some of their heavy duty products range from delivery vans to some of the largest tractors John Deere makes.  Some of the cooling fans they make today are relatively limited for the small series pick-up trucks of General Motors and the Blazers and they have a small piece of the new Jeep Liberty portfolio.  They have one application where they=re putting a plastic fan on that.  In their market is rear wheel drive vehicles which translates mostly into pick-up trucks and sport utility vehicles.  Their dominant customers are Ford and General Motors.  They have almost all of the Ford business.  Ford is about 40% of their business.  General Motors is about 40% as well.  They have some of the small pick-ups and most of the vehicles built off GMs larger  platforms; the large sport utilities and the large pick-up trucks.  Chrysler is about 10% of their business.  They have applications on the Jeep Liberty, Durango, Dakota and Ram.  A premiere line continues to be that with the big green machine, John Deere.  They have some other customers; Freightliner, John Deere, and Isuzu who make up the other 10% of their business.  They make high volume applications for vehicles such as the Silverado pick-up and the F-Series pick-up. They make low volume applications for vehicles such as John Deere which take much larger units, much lower volume applications and they have one cell that makes plastic fans.  They machine aluminum die castings, they turn steel forgings, they do mechanical assembly and tests and they injection mold.

They mold plastic fans and have the capability to mold the fans so that the blades overlap which gives them an advantage in moving a lot of air but can move it more quietly. 


He discussed their fan expansion.  They currently have three molding machines.  They plan to move equipment from their sister facility into the Fletcher operation. They expect to spend about $650,000.  They expect to transfer assets from the facility in Georgia that will be closed of just over $4,000,000 which brings their investment somewhere around $4.7 million.  They expect to hire between 50 - 60 people. 


Commissioner Hawkins stated that BorgWarner had been a good citizen in Henderson County.  The product they manufacture not only lends to added horsepower to engines but it also leads to reduction and improves gas mileage in automobiles and that translates into pollution.


Public Input

There was none.


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


Commissioner Hawkins made the motion to approve the amended agreement with BorgWarner Cooling Systems, Inc.(a Delaware Corporation) and to authorize execution and delivery.  All voted in favor and the motion carried.


PUBLIC HEARING on Street Names and Addresses

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


Rocky Hyder reminded the Board that the purpose of this public hearing was to formally adopt every address assigned during the property addressing project. He had entered a document of about 700 pages of addresses with the Clerk.  There are 34,762 addresses in the document.  About 8,500 of those are affected by a rural route change.  Many of the addresses in the document were good addresses that were just verified by staff.


They have had 155 new addresses come through their office since January 1st as well as 25 new roads. 


Mr. Hyder informed the Board that the post office has decided that they need to count their rural routes (an internal audit) and in doing so they will not be able to assign any new addresses for about a month=s time.  Mr. Hyder and his staff have finished notifying everyone in Bat Cave, Gerton, Fletcher, Saluda, Zirconia, portions of Flat Rock and the Hendersonville post offices.  Not all of those changes were affected by the post office regional office before the counting began (internal audit).  Therefore, the Hendersonville post office has suspended all of our operations until they finish their internal audit.  As part of the counting process, the post office issues new rural routes.  This does need to be done cooperatively, otherwise people would get a new rural route and then we would assign them a new property address. 


Mr. Hyder informed the Board that his staff, working with the City of Hendersonville and the Town of Laurel Park, have completed identifying over 3,000 addresses.  Laurel Park has decided to participate but reserves the right to approve or disapprove certain changes (mainly condominiums in Laurel Park).


Public Input

There was none.


Commissioner Ward made the motion for the Board to go out of public hearing.  All voted in favor and the motion carried. 


Commissioner Hawkins made the motion to approve the street names and addresses as presented by the Property Addressing Manager.  All voted in favor and the motion carried.


PUBLIC HEARING on 2002 Community Development - Scattered Site Housing Application

Selena Coffey reminded the Board that this public hearing was to receive public comments on Henderson County=s 2002 Community Development Block Grant (CDBG) application for the Scattered Site Housing Program. A copy of the application was presented to the Board for review. The application was prepared by BenchMark.  The Board reviewed the application at their last meeting and received a copy in its final form with their agenda materials.  This is the second public hearing, required for the Scattered Site Housing Program.


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

Ms. Coffey stated that there were three representative from BenchMark present and available to answer any questions from the Board.  The Board had suggested some changes to the application at the last meeting.  Those changes have been made. 


Public Input

There was none.


Commissioner Ward made the motion for the Board to go out of public hearing.  All voted in favor and the motion carried. 


Commissioner Gordon made the motion to authorize the Chairman to sign the scattered site housing grant application.  All voted in favor and the motion carried.


QUASI-JUDICIAL HEARING - Application for Statutory Vested Rights

Final Phase of Lakewood RV Resort     Application #VR-02-01 by Howard M. George

Chairman Moyer stated that this has to be conducted as a quasi-judicial proceeding.


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


Chairman Moyer - AThis is a quasi-judicial proceeding being held today on the petition ... with respect to statutory vested rights for the final phase of Lakewood RV Resort.  As you know from past proceedings, a quasi-judicial proceeding is much like a court proceeding.  It is a proceeding in which one=s individual rights are being determined.  The proceeding will be conducted under the Henderson County Board of Commissioners Rules of Procedure for Quasi-Judicial Proceedings.  Only persons who can demonstrate that they will be affected by the outcome of the decision are allowed to participate and that=s determined by the Board with advice from Counsel.  All persons who speak and participate, including any witnesses that will be called, will be placed under oath.  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 expressed a desire to be a party and who the Board has recognized as a party would 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 at any time.  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 date of this hearing.  The best I can tell on checking with the County Attorney, this is the first proceeding we=ve had under this statutory  vested rights.  We=ve had common law vested rights issues and this is you know vested rights based on common law, what people do and things like that.  But this is under a specific statutory reference and a County Ordinance so we=ll have to work our way through and I=m sure we=ll have some discussions for Counsel as we proceed because it is something new and something a little different than you might have ever experienced, something I have never experienced in a quasi-judicial hearing and the law is a little different than anything I=ve ever experienced so between the two of us it raises, will raise some interesting issues as we go forward.@


Angela Beeker - AMr. Chairman, if it pleases the Board I do have some comments to kind of explain the basis for the Ordinance so you can - and I=m saying this as part of the hearing so if the parties or Counsel for the parties would like to disagree or explain further any of my comments they are welcome to do that as part of their comments.@


Chairman Moyer - ACan we identify the parties?@


Angela Beeker - ASure@


Chairman Moyer - AAnd then I=m gonna let the parties speak so@


Angela Beeker - AOK@


Chairman Moyer - AWe=ll now proceed to identify all parties to the proceeding.  We=ll start with the petitioner and let me see who is going to speak on behalf of the petitioner.  Would you come forward sir and give us your name.@


Howard George - AGood morning Chairman and Board.  My name=s Howard George and I represent Bill and Barbara Hoffman who are the owners of Lakewood RV Resort.@


Chairman Moyer - AAlright just stand there for a moment.  And the Planning Staff - who will be representing - Karen you will be handling, alright, from the Planning Department.  Are there any other persons present who can demonstrate that they will be affected by the outcome of this proceeding and who wish to be a party?@


Commissioner Ward - AI see two.@


Chairman Moyer - AAlright would you come forward sir and identify your name, address, and what your interest is in being part of this proceeding.@


Allan Henderson - AHi, I=m Allan Henderson, manager of C.L. Henderson Produce.  We have an apple orchard which adjoins Lakewood RV Park and by the plan as it is set now it will affect our procedures of spraying, pruning, and operating that orchard if he continues as the way the plan is set.  There is no buffer for us to protect us.@


Chairman Moyer - AAlright, that=s enough for this time.  Is there any objection to Mr. Henderson being a party to the proceeding.  I think he=s established a clear interest.@


Commissioner Ward - AI see another young lady back there had her hand up, Ms. King.@


Chairman Moyer - AWould you come forward please and indicate your name and your interest.@


Ruby King - AI=m Ruby King and I live directly across from the RV Park, the west side of Ballenger Road.  I don=t have a lot of problems.  I just have a few questions I=d like to ask.  I=m interested to know if they are going to be bringing in sewer and the water and sewer because the sewer.@


Chairman Moyer - ALet=s hold your questions till we get into - does anybody have any objection to Ms. King being a party to the proceeding?  Alright thank you.  Just stand there for a moment.  Is there anyone else who would like to be a party to this proceeding.  Yes sir.@


Howard George - AI have brought along our surveyor and engineer, the Pattersons, William and Paul and also our Attorney, Lex Veazey.@


Chairman Moyer - AAlright.@


Angela Beeker - AThey don=t need to be parties.@


Chairman Moyer - AThey don=t need to be identified as parties.  We=ll swear them in in a few moments but is there anybody else?  They will be representing you so they are part with you.  Is there anyone else that we haven=t identified here that wishes to be.  Stay here Lex we=re gonna have to bring you back in a minute anyway.  And Bill you and son can start to come up.  Is there anyone else who would like - thinks they have an interest or would like to be a part of this proceeding?  Alright then for purposes of the proceeding we have the petitioner, Howard George.  We have staff Karen Smith.  We have Allan Henderson and Ms. Ruby King.  Is that correct?  Alright, I=ll call the witnesses that intend to come forward and all the parties will go over to the Clerk and be sworn in.  Give your name and address to the Clerk and she will swear you in.@


Elizabeth Corn - AI need each of you to place your left hand on a Bible, touch with your left hand and raise your right hand.  Do you swear or affirm that the testimony you shall give to the Board of County Commissioners shall be the truth, the whole truth, and nothing but the truth, so help you God?@


In unison - AI do@


Chairman Moyer - AYou can return to your seats now.  We will call you as we=re ready for that part of the proceeding.  And now the County Attorney, Mrs. Beeker.@


Angela Beeker - AThank you Mr. Chairman.  Because this is new to the Board - um I wanted to take the opportunity just to give a basic explanation um and purpose statement for the Ordinance.  Um as the Chairman said this Ordinance is a method that a property owner can use to establish a vested right to develop his or her property.  Now as you will recall there are three ways that people can establish vested rights.  The Chairman mentioned the common law.  Common law vested rights require among other things that substantial expenditures towards completing the project be made.  Another way is to secure a building permit; however, a building permit does not vest an entire project.  This is a third method that the General Assembly has put into place to basically allow a property owner to become vested in his or her development prior to having to expend substantial amounts of money.  Um and basically what the General Assembly has done is balance their interest in completing a development but balancing it with your interest and the Zoning Administrator=s interest in knowing what is permissible and what can be enforced and the public=s interest by having an opportunity to participate.  This was intended I believe more for traditionally zoned areas because as part of the hearing in a traditionally zoned area, you would make sure that before you approve the  plan that it complied with the zoning classification.  In this case, the property is zoned Open Use so there are no specific requirements - zoning requirements that this development would have to make so it=s a little bit more ended I guess in this case.  I don=t believe that the intent of this vested rights ordinance is to superimpose a higher level of regulation than the development would be subject to today.  Um or without some sort of zoning change.  But on the other hand I don=t think it=s intended to exempt them from anything that they have to comply with today either.  It=s not intended to exempt them from future changes in State regulations - um - primarily to protect them from future zoning changes so that if this property were to be rezoned to a district that did not allow this use or that imposed some more stringent requirement on this use they would be vested to develop in accordance with the plan before you today, if you approve it.  Um - even though there are really no specific county standards in the zoning ordinance that are applicable today, they also are not subject to our subdivision ordinance or the manufactured home park ordinance.  I don=t think the legislature intended it - to leave it completely open-ended to vest them from things that might pose a danger or a threat to the public health, safety, and welfare.  Both the Statute and the Ordinance allow you to consider things as part of this process that might pose such a threat.  Anything that you consider would have to be based on evidence presented at the proceeding and I don=t believe the burden is on the developer to show that there is absolutely no danger or threat.  It=s more if things are raised that would tend to indicate that there is a danger or threat, then they would have to produce evidence specifically on that specific danger or threat posed.  Does that make sense?  I might have just confused everything.  Um - the approval will be by Ordinance.  It=s not going to be just a simple order like in a normal quasi-judicial proceeding. There will actually be an ordinance that will govern this development.  Um - that=s about all I had intended to say.  It=s really to kinda maintain the status quo, primarily from a zoning prospective that exists today with regards to the development with the exception of specific threats to public health, safety, and welfare that might be identified.@


Chairman Moyer - AI think as you saw on the information though looking ahead to where we need to get - the - as indicated in the vested rights ordinance we get to the point the Board may approve or disapprove a sight specific development plan so we have to have a site specific development plan which we have to work with and we need to approve or disapprove that on the need to protect the public health, safety, and welfare.  The ordinance goes on to say the Board may require such terms and conditions they may deem necessary to protect the public health, safety, and welfare.@


Angela Beeker - ACorrect.@


Chairman Moyer - AWe can get to that but we have to look to dealing with this site - they are required to file the site specific development plan and then our requirement - our obligation is to act on that plan in some fashion in accordance with the ordinance.  We will begin with a staff overview of the matter and then we=ll go into testimony starting with the petitioner and each of the additional parties.  The way it will work when we get into the evidence - each of the parties - first the Board and then each of the parties will have the opportunity to ask questions of anybody that has presented evidence and that will work for everybody to present it and for each of the parties.  So you=ll all be given an opportunity to ask questions.  When you=re asking a question though of somebody else who=s presenting evidence the intent is you ask them a question.  That=s not your opportunity to put evidence in or try to make a point or whatever.  You=re asking them a question about something that they have presented.  So we=ll kick it off with the staff overview of the matter.  And we have Karen Smith from the Planning Department.@


Karen Smith - AGood Morning Mr. Chairman and members of the Board.  I thank Ms. Beeker for filling you in on some of the background on the vested rights ordinance.  Mr. Howard M. George, on behalf of William F. and Barbara Hoffman has submitted to you an application for vested rights,  it=s application # VR-02-01, seeking a statutory vested right under the vested right statute, chapter 189 of the Henderson County Code.  And you have a copy of Mr. George=s application and site specific development plan and some other materials in your packet and I would just like to just for the record say that - offer that as the application for consideration today.  The application is for a vested right for the final phase of Lakewood RV Resort.  The Resort is located on - partially located on Ballenger Road which is between Upward and Tracy Grove Roads on the East side of I-26.  The parcel is in the County=s Open Use Zoning District and according to the application materials there are currently 110 spaces there for recreational vehicles, travel trailers, and motor homes.  There are actually I believe five manufactured homes in that first phase as well.  The application for vested rights would add 122 additional spaces for recreational vehicles, travel trailers, motor homes and also what are known as park models.  I do have some photos of the property if you get to the point where you would like to see those, I=d be happy to put those up.  The actual site plan itself doesn=t entirely fit on the display.  I=m not sure if the applicant has brought a full size plan or not but we=ll do what we can to show you as we move through anything you need.  By definition - I believe Ms. Beeker mentioned this - recreational vehicles parks in the Open Use district are not regulated by the zoning ordinance or the manufactured home park ordinance nor any of the other county land use ordinances; however, there are some other state and local and possibly federal regulations that would apply to these developments in general.  They just don=t have to go through a permitting process with us, for example property addressing, erosion and sedimentation control and the like. Um I=m gonna let the applicant actually review or walk you through their site plan but I did want to note that  um I did check it to see how it conforms with the definition of the site specific development plan in the vested rights ordinance and generally it does conform.  One thing that I have asked the applicant to address in their comments to you has to do with the water and sewer systems.  You see on the plan that there are lines shown but their applicant materials sorta left a little bit of uncertainty as to whether or not they actually will move forward with public systems or stick with the private systems that they have in place currently.  But I=d like them to address that.  Um we did submit copies of the application materials to other agencies again we don=t have a particular ordinance to review this under but we thought for your purposes that we would just at least send it out to normal review agencies under some of our other ordinances and see what they had to say and - as my evidence later I can present that to you.@


Chairman Moyer - ADo that later, right.@


Karen Smith - AOK.  And also we did receive a letter from Ms. Elizabeth Henderson and I believe we=re gonna hand that out when Mr. Henderson addresses the Board.  And then just for the record I wanted to note that today=s hearing has been advertised in accordance with the vested rights ordinance and your quasi-judicial proceedings.  The legal notice appeared in the Times-News four times and we did send certified mailed notices to the adjoining property owners and to the applicant.@


Chairman Moyer - AOK thanks for the overview.  Now we=ll start with petitioner=s evidence - Mr. George.@


Howard George - AWe don=t have the big - Paul just told me - the big lay-out.  Do you all have the individual.@


Chairman Moyer - AYeah, we have@


Howard George - AThe - Mr. Hoffman purchased the property in September of 2001 and uh approximately 20 acres the new site plan the final phase makes up about 9.7 acres, about half the - half the property.  Uh - we uh - our intent is - is to proceed with a 2 - 5 year timeframe. In researching what=s going on in the area I found that approximately 40,000 cars are going up and down I-26 and it - it just seems so many of those are RVs and we=re just having a tremendous response to people needing services as to an RV and it=s amazing to me - I=m basically the general manager and it=s amazing to me to see the folks coming in that are looking to locate here in Henderson County.  They uh - whether it=s to build a home or to buy an existing home and so they come in to our facility for different reasons but that=s one of them that=s really surprised me to see folks coming in in RVs that are checking out the area.  We cater to the people in Florida, six months here, six months gone and it=s very successful.  We uh - we did a little packet as to - we have a clubhouse, pool, we have those amenities.  We have street lights.  We have - I have my onsite manager here.  It=s Bill=s son-in-law and uh - so we=re running a tight ship and we just see that to move ahead with this open zoning and to submit the site plan.  William and Paul have developed a site plan for us with the uh - laying out the sewer and the water.  We currently have a treatment plant down in the corner of the existing and it=s about a 15,000 gallon treatment plant.  We have our own well and we=re serviced by uh James and James environmental people.  They check it daily and uh - and again in researching it seems the best approach to proceed with - with the sewer and water which is the - the big factors is the possibility of tapping into the city water and increasing the treatment plant.  Uh we=ve talked with Roy Davis with North Carolina and uh - so it=s a - there is sewer and water down at the Motel and there=s a fire hydrant there at the end of Ballenger Road so those services are available.  It=s amazing uh since 9-1-01 the uh - people are traveling more on the road now instead of flying and uh we=re finding that to be true.  RV sales across the country are up about 12% so we feel good about uh moving ahead with a good timeframe and a good schedule having the services available and uh it=s a great piece of property.  The location=s great. Uh - that whole area out there is just - but yet we=re kinda off the beaten trail and it=s - people really enjoy the facilities.  I guess that would be about it on uh.@   While he was up he had staff put a site plan up on the screen.


Chairman Moyer - AWould you call your - your witnesses and then we=ll take questions at the end of that.@


Howard George - AUh Paul Patterson, our engineer, can address the uh - the sewer and water better than a lay person like myself.@


Chairman Moyer - AOK, Mr. Patterson.@


Paul Patterson - AI don=t know if it=s morning or afternoon anymore but uh.@


Chairman Moyer - APretty close@


Paul Patterson - APretty close - uh - the existing system out there is a well.  Uh - I haven=t done a lot of research on it but if you look at the plan you can see a well.  I can=t remember which lot it is.  Lot # 71.  Now in order to protect that well we need a 100 foot radius uh . . . so you can see that would affect a lot of lots so basically you know for a fact they=re probably gonna tie into water uh from the city.  It=s at Ballenger Road and Upward.  It runs on up to uh Petree Racing - the building up there.  That=s the easy part.  Put in a master meter, tie it to the existing water lines that we have there and we can cut the well off.  That=s pretty simple.  The hard part right now is deciding how we=re gonna handle the sewer.  The plant that is existing will handle 100 units - OK we don=t have capa - we don=t have 100 units now on site so something has to be done.  No matter what we do, if we upgrade the system or we tie into the City of Hendersonville through a force main, we have to go through NC DENR through Roy Davis so that - that decision hasn=t been made yet.  That=s gonna be pure economics, which is the most feasible. OK. So that decision hasn=t been made as of right now but the sewer and water issue have been looked at, we=re ready to move with it but we don=t want to move until we know what we have to do.@


Chairman Moyer - AOK.  Mr. Hawkins@


Commissioner Hawkins - APaul, do you know if prior to the county releasing the - the sewer system to the city - there was a lot of that area that had some pre-authorizations for - for sewer that they had not tapped into yet.  Do you know if this area - or this lot owner has any of those?@


Paul Patterson - AI do not know of that. I mean the closest sewer we=re looking at is down at the intersection - the Triangle Stop - at the intersection down there at - at I-26.  That=s the closest sewer that I know of.  Uh - talking with the city - they talked about we could run gravity sewer down Dunn Creek but that=s not even financially uh feasible.  That would just make this project uh just die real quick.  Force main is the only option.  That=s not the best solution but that=s an alternate solution from upgrading our package plant.  That=s what we=re looking at now.@


Chairman Moyer - ADidn=t they run sewer into the Hotel down there?@


Paul Patterson - ABut you=d have to go through a lot of - a lot of lots - a lot of parcels of land to be able to get through and I=m not sure you could due to the topography.@


Chairman Moyer - AAlright - well your other witness - Mr. Veazey - are you gonna call Mr. Veazey?@


Paul Patterson - AYes.@


Lex Veazey - AMr. Chairman, other members of the County Board of Commission.  I=m Lex Veazey.  I=m an attorney licensed to practice in North Carolina as required here.  Uh I represent Howard George and this project.  Uh we=ve learned of some of the legal matters on this - the North Carolina Statute says for a vested right that it can exceed two years - up to five years if the county ordinance so provides which the county ordinance as you know does provide five years.  The project we want to take in several increments, probably about three stages where we=ll - we=ll start with the area closest to the existing RV Park and spread out from there.  Uh we anticipate that it would take more than two years uh in three different stages here uh but not exceed five years which we=re requesting for the vested rights.  Uh the uh - a little bit more uh information regarding the sewer system.  Uh there has been a lot of work done in uh research that Howard George has done uh concerning not only enlarging the present system but we also have a possibility of actually moving a system that exists now uh to this project which uh this other project has a larger 70,000 dollar - 70,000 gallon sewer capacity that we would move to this project and of course improve it somewhat but that would give plenty of sewer capabilities for the entire project and more.  Uh and of course we have to meet the various county and state guidelines as far as the sewer system which we=d have to go through too.@


Chairman Moyer - AI was looking in the application.  I don=t see the five years in there but are you saying today you=re requesting a five year period?@


Lex Veazey - AUh yes, Mr. Chairman, we are.  Because we - the Statute as you know and the ordinance says uh based on the size of the development, the level of investment, economic cycles, and market conditions are factors that come into play of approving up to five years.  Uh we feel like  uh as we said three stages here uh - but although the economic conditions for this type of project are pretty good right now they could change - the economy could change.  Uh we do have a pretty good capacity.  We=re filling up the rest of the park pretty well uh and we feel like we could fill up the rest of the - the newer section over a period of time after we establish more contacts and so forth around the country with folks that are willing to and want to come here.@

Chairman Moyer - AOK.  Paul, if you=ll come back up for a moment.  We=re now gonna go to questions from the Board.  Stay here Lex.  We=ll go to questions from the Board of Commissioners and then we=ll give the other uh parties to the proceeding a chance to ask questions of you if they choose at this time.  So I=ll start with the Board.  Any questions for any of the people.@


Commissioner Hawkins - AYes, I guess just one that uh - I kinda looked at a minute ago but I really have some concerns about the sewer.   Water you - you can get out there but you know our county=s had a long dry spell, not only for wells but for the streams that run.  I assume that your sewer treatment is uh some kind of a package plant that operates off of the stream over there, Paul is that right? You mentioned@


Paul Patterson - AYeah the existing system was designed, I can=t remember when, back in - about ten years ago.  It was designed such that you could add an identical package plant next to it to upgrade the entire facility to meet 200 units.  Talking with Roy Davis, he said that once again we=d have to go through a public hearing process and go through state approval on upgrading that system.  That=s where we=re looking at which one is financially feasible, whether we want to go with an upgrade in the package plant or putting in a - a sewer pump and pumping it back through force main down to the existing manhole down at the interstate.  But gravity is not - not even an option.  I mean you - you would be 30 - 40 feet deep trying to go through some of those hills and that - just couldn=t - you can=t do that.  That=s not feasible.@


Commissioner Hawkins - AHow - your current plant, does it not operate some off of gravity?@


Paul Patterson - AUh - it - there=s existing gravity to it now.  We would be tied into that no matter which option we go, whether we decide to tie in through force main to the city it will all go down to the existing plant, we=d change out the pumps there to a larger pump so we can pump it back into the city system. Gravity sewer now to the plant.@


Commissioner Hawkins - AIt=s gravity to the plant?@


Paul Patterson - ACorrect@


Commissioner Hawkins - AAnd then from the plant to the stream that you discharge in, what is that?@


Paul Patterson - AThat=s just through the plant itself - through the processes.@


Commissioner Hawkins - AOh, you don=t have any discharge into a water . . .@


Paul Patterson - AThere is discharge into the creek there.@


Commissioner Hawkins - AI=m sorry.@


Paul Patterson - AThere is discharge - that plant into the creek. Correct.@


Chairman Moyer - ASo if we got to the point of awarding this I would assume a condition for that - for these sewer issues be effectively dealt with one way or the other would be an acceptable condition to you, cause you can=t go forward without it so - Commissioner Ward, did you have a question?@


Commissioner Ward - AYeah, I=ve got a question for the Board, if they=ll excuse me for a moment. I - with the advice of Counsel - I have to ask the Board to excuse myself on this quasi - uh hearing on the basis that one of the parties is a blood relative and the other one is - serves on the re-election committee and the paper has already accused me on my trouble of accounting so I don=t want another article - being opposed - so if the Board will consider that cause I had several questions but I don=t want to shed any light to the Board to where it=s a tainted decision.@


Chairman Moyer - AWell I guess I would say do you feel that you could give an impartial decision in this matter?@

Commissioner Ward - AWell I do but I don=t know if the Times-News can - will relate to that.@


Chairman Moyer - A. . . what the Times News says, I think it=s up to the parties.  If any party feels they want to ask Mr. Ward to excuse himself then I think the Board can act on it but if all the parties are willing for him to participate then I don=t see any need for it but@


Commissioner Hawkins - AWhat does our Counsel have to say, let me ask that question.@


Angela Beeker - AI believe if he feels that he can render an impartial decision and no-one objects.  I think if a party objects then - so I would ask the parties if - if you all object to Mr. Ward continuing to participate in this proceeding on the basis that he is related to one party and another party is Chair or serves on?@


Commissioner Ward - ANo serves on@


Angela Beeker - AOK, serves on his re-election committee.@


Lex Veazey - AWell if this were a jury, I would excuse Mr. Ward and I think just so he=s not conflicted here - I think we=d ask that he be allowed to excuse himself.@


Chairman Moyer - AOK.  Then I=ll ask the Board - is the Board uh - I move that we permit Mr. Ward to recuse himself on this matter.@


Commissioner Hawkins - AYou can go to lunch Mr. Ward.@


There was laughter.


Chairman Moyer - ANo, he=s not allowed to leave.  That wasn=t part of the deal. All in favor of that motion say aye.@


AAye@ in unison.




Chairman Moyer - AAlright Mr. Ward, you are recused from this matter.@


Commissioner Messer - AMr. George, the total number of the lots after the five year is completed would be around 230, is that correct?@


Howard George - AApproximately, yes.@


Commissioner Messer - AAnd that is just for recreational vehicles uh?@


Howard George - AYes and that uh - in talking to Karen - she came out uh and we uh when we bought the facility there was uh I believe about five mobile homes.  We don=t want mobile homes.  As a matter of fact one=s moving out next month and uh - this - the recreational vehicles in the description is motor homes, travel trailers, and park models so that=s@


Commissioner Messer - ASo park models are included in that cause you know park model now - I mean my definition of a park model=s kinda set up and on a permanent site but kinda on a - you know a site that and you know they have expandos and so forth that reach in a - you know quite - in other words they don=t - you know they don=t just have wheels where they can move from one location to the next.  You know they can stay in place for six months or eight months or whatever.@

Howard George - AAnd apparently in the past the previous owners lost they think 10 - 15 park models - I mean they=re movable and for what reason I don=t know but that=s - they come in on wheels and they leave on wheels so it=s.  In looking at that ordinance the - there=s a limitation as to  square footage and I believe it=s 12 x 40.  We currently now have about - I think 12 or maybe 15 park models on the site.  The rest being motor homes, travel trailers.  What=s amazing is we have units that go from $1,000 to a half million dollars.  It just - it=s amazing to me to see and they=re recreational vehicles.  People enjoy them.@


Angela Beeker - AMr. Chairman, can I ask a follow-up question?@


Chairman Moyer - ACertainly@


Angela Beeker - AAre there industry standards for the park models, RVs, and whatever else that you=re planning to put in here and uh my next question would then be um are you uh stating that you will be staying within those industry standards for the park models and RVs and things like that that you would allow because I do believe the ordinance requires that you specify height and things like that of the facilities that will be in there.@


Howard George - AWe would stay within the uh definition of the industry over on uh page 15 and I guess it=s in the uh the Code Book for the - there=s the reference just as to park models - it=s a recreational vehicle consisting of one or more sections typically built in accordance with construction requirements of HUD but not in accordance with standards set forth in the NCSC - such vehicles have 480 square feet uh there=s quite a difference between the manufactured housing and the recreational vehicles - whether they=re trailers or park models or motor homes.@


Angela Beeker - AOK@


Chairman Moyer - ASo if we have any concern about that - assuming again a condition in this order with respect to that would not be a problem - as to what you=re gonna put in there?@


Lex Veazey - AAnd Mr. Chairman, if I can make a comment.  I believe when they=re talking about  the height and so forth of the structures since the structures are not there - are not going to be permanent and they will be movable uh that they=re probably talking about permanently attached structures - permanent improvements.@


Angela Beeker - AUh - well I=m not so sure I completely agree with that.  I think the purpose is to give the community notice as to what they can expect regardless of whether it=s permanently affixed or not. And so uh I believe that all that you - if the Board approves it - that you would be vested for would be what you include in your application.  So I=m just trying to clarify and make sure that your application is as specific as it can be.@


Lex Veazey - AUm huh.  Of course uh just by uh the mere size of the interstate and roads and so forth as far as size and we do have limits on the park models as far as what can actually be there, height-wise too.@


Angela Beeker - AUm huh@


Lex Veazey - AWhat can go under bridges etc. so we will have certain limits there that we=ll have to have.@


Angela Beeker - AAlright.@


Chairman Moyer - AAlright the uh - other questions from the Board of Commissioners at this time?@


Commissioner Gordon - AI have some questions but I think they are more of Angie uh.@


Chairman Moyer - AYou may ask them now if@


Commissioner Gordon - AOK uh if I=m understanding correctly since this is in an open use zoned district our determination today is not on whether or not this project can go forward, it=s on whether or not it would have a vested right if that zoning were changed at some point in time, is that correct?@


Angela Beeker - ACorrect, if they - if they withdrew their application today, they could continue with  their project - it=s just that they might have to then establish a vested right in another way if they wished to do so to protect themselves.@


Commissioner Gordon - AOK so - and we can=t impose higher standards than our existing zoning now provides uh on them, is that correct?@


Angela Beeker - AWell you can=t use this as an opportunity to superimpose regulations on them that they would not normally be subject to except for if it poses a direct health to public health, safety, and welfare, I believe you could impose some sort of condition to address that situation um and so far you know I really - well I won=t comment on the evidence.  My purpose in asking the question was just to clarify uh the evidence that=s presented and to clarify what they=re asking for so that enforcement of this - if you approve it - later would be much easier.  So if they say that they=re intending to stay within the industry standards for all the things that they=re asking to be allowed to go in there um then as long as they do so - if we received a complaint they would be vested as long as they are within those industry standards.  So it=s more for enforcement purposes that I was asking to clarify that.@


Commissioner Gordon - ABut if we imposed a standard on them uh as a part of the vested rights decision they would still have the option of developing their property under our existing regulations separate and apart from this and they would just simply lose the vested right, is that correct?@


Angela Beeker - AI believe they could relinquish their vested right.@


Commissioner Gordon - AOK@


Chairman Moyer - ATerminate it at any time. Any other questions of? Alright now we=ll go to uh Mr. Henderson who has the opportunity to ask any questions of this.  Stay there, no stay there.  He=s just asking questions, not presenting yet.  Do you have any questions at this time Alan?@


Alan Henderson - Anot due to . . . ?@


Chairman Moyer - AWell anything that Mr. George or this - the petitioner has stated at this time.@


Alan Henderson - AThe only - our concern


Mr. Henderson was asked to come to the microphone.


Alan Henderson - AOur main concern is - I mean the mobile park has been a good neighbor for quite a while.  You want to pass that letter out?@


Chairman Moyer - ANo I don=t want your evidence now.  Just any questions.@


Alan Henderson - AWell the questions I have is the park - the people who have only purchased it have only lived there what a year I think now.  They purchased it what 2001?@


Someone answered - ASeptember 2001"


Alan Henderson - A2001 so they have not - or they=ve gone through one complete season of the orchard being their neighbor and my question to them are they actually aware of the agriculture practices that take place in our orchard during the season as their existing plan shows they are going to place a total row of uh - you know like stage three of mobile home sites right up to the property line leaving no buffers for spray drift, for noise ordinances where we run wind machines in the spring, and I=ve already gone in front of a couple of legal battles over people that have moved in next to our property and have tried to sue us where they were allergic to some of our spray materials.  Some of our chemicals do have a foul odor which is unavoidable by us which is offensive to people. Uh and I just - the reason I am here is to try to say have they taken this into consideration cause in the future I don=t want to be going to court every week with a - with somebody coming through town who stops and . . . he pulls in a hundred thousand or a half million dollar motor home and he gets sprayed with a yellow spray that drifts over from my spray so he expects me to have his motor home repainted and recovered - because there is no buffering zone there and the client was unaware that these agriculture practices were taking place and I just want to - I guess I want to ask has this been a consideration of the planning board and of the mobile home park?@


Chairman Moyer - AMr. George?@


Howard George - AWell - and we=re a recreational vehicle park, not a mobile home park but yeah - but uh in working with uh Paul and uh William uh - we=re aware - we are aware that the orchard is there uh.  I would love to own that piece of property that he has.  I don=t know how much longer it=s gonna be an orchard but uh it=s just - that=s - you know Henderson County is just made up of a bunch  of orchards and I don=t know is there anything as to an ordinance or whatever as to buffers.  We - we=ve had or the Lakewood RV has had a home within 20 feet of the orchard there, probably for ten years and there=s - on the other side there=s some residence too and so - I guess - with a buffer as to plantings or pines or something like that - would be.@


Alan Henderson - AIf you=ll notice the other occupants that are on the east side did plant a row of pine trees up for a buffer to help solve this problem and then they have moved - set their house back  into position so that you know - and they are aware of it.  And the other thing is it is in agriculture land use.  It is in part of an agriculture district so it is on record that it is you know in agriculture and I think if you=ll look under the districting there are some county ordinances to bring in zoning for the agriculture districting part. I=m not a lawyer and don=t know all those facts but I know there is some callings there.@


Chairman Moyer - ALex@


Lex Veazey - AIf I could respond somewhat to these questions.  Uh I think the intent of the ordinance is more is it gonna affect the health well being of the parties.  Obviously having this here would not affect the farming activities of the adjacent property.  What Mr. Henderson has talked about is affecting this project and being a - having park models and bringing in movable uh RVs so forth we - it could easily be rectified by not during the spraying season or when this is occurring not having park - not having RVs parked in these locations and probably we would not put the park models on those locations.  As Mr. George mentioned, there is an existing house where the resident on-site manager lives with his wife, the son-in-law of the owner of the property - in the existing house that=s shown on the site plan.  Uh also the - as far as any liability on Mr. Henderson=s part uh his has been an ongoing orchard for many years.  The RV park of course will have insurance, liability insurance to cover damage to vehicles and so forth or waivers from folks bringing in their RVs to the park so there will not unless Mr. Henderson intentionally sprayed a - came in and sprayed an RV or something - just the unintentional moving of the spray and so forth over the park - there would be  no liability on his part.@


Chairman Moyer - AAny other questions at this time Alan? Alright, Mrs. King, do you have any questions?@


Ruby King - AI believe they pretty well answered mine.  I am a little concerned about the traffic - if it=s going to be.@


Chairman Moyer - AWe=ll get to that concern later, do you have - you do not have a question for the petitioner at this time?@


Ruby King - ANo sir, I don=t think so, thank you.@


Chairman Moyer - AAlright.  Well thank you.  We=ll call you back if we need anything further and now . . . does the Board have anything else to ask at this time?  I want to move on to Mr. Henderson.  Do you have any evidence that you=d like to - anything further that you=d like to?@


Commissioner Messer - AMr. Moyer, I=ve got one question of Alan.  Alan, I don=t know if this map is out there or not.@


Someone answered - AI have a copy here@


Commissioner Messer - A If you would for the record clarify where the orchard is.@


Alan Henderson - AIf you see a letter that was sent to uh Karen Smith uh our property adjoins the lots on the right side here.  This whole row of park is where our property adjoins that and you know  - our concern is you know a lot of Commissioners know me because I am - I am always battling for agriculture in Henderson County.  I hate to see it go away and uh - you know I=m not against the growth of this park or - or any industry.  It=s just that I - I wish the Commissioners will take agriculture into consideration.  It is a valuable piece of property but we=re wanting to keep it in farming as long as we can because it has been a productive farm for us and for our company.  The uh - the biggest concern is yes that - is the drift and the noise and the nuisance we get.  We=ve had this in the past where we=ve had uh people move next to an orchard that uh they move in in December when it=s nice and quiet and then all of a sudden in the spring the loud - everybody=s heard the loud spraying machines and the noise when we start spraying sometimes it may be 4 a.m. in the morning to get it on before the dew comes up which becomes a problem and I=m - I=m just trying to head off some of the problems by uh asking the Board to see if there is any way a buffer zone could be put in there to uh to help stop future problems because uh I can just see em coming - I mean you know uh eventually this land may not be an apple orchard but as long as our family holds it we want to keep it in the orchard because we=re rooted in agriculture in Henderson County and that=s - that is my main concern is that we just not be uh forgotten and left out here.@


Commissioner Hawkins - ACan I ask him a couple of questions?@


Chairman Moyer - ASure. Commissioner Hawkins?@


Commissioner Hawkins - AMr. Henderson, in your - I appreciate what you=re saying.  I - I guess if I can read from this letter - you basically have two concerns, one is from the wind machine or the noise from the wind machine and the other is from drifting spray?@


Alan Henderson - AThe drift spray is a very large concern - to bring it to the Board=s attention.  Two years ago a uh person passing through was eating at the McDonalds  and saw our machine spraying, they also noticed a school was next door so they turned us into the North Carolina Department of Agriculture Chemical Awareness which come out and tested the blades of grass around the school  and around our orchard which found zero drift in that thing but they were concerned because they see these big machines spraying and they see this - this big plume of water and chemical that goes 30 - 40 feet in the air in order to penetrate the trees and the public being uneducated in the agriculture  uh they kinda get excited about this stuff and over-react and this becomes a very large problem for us.  We spend a lot of our time defending ourselves it seems like and I=m just trying to cut off that happening here.@


Commissioner Hawkins - ACould you explain one statement in your letter it=s about - in the second paragraph where you say it is required that a governmentally specified agriculture buffer be installed by Lakewood.@


Alan Henderson - AWhat I was talking about there - the government does have set-back rules for farming and agriculture uh I=m not familiar with all those.  We - we were looking over those but there is a set-back rule I know like if you have spray material and stuff you have to be I think it=s 50 or 100 feet from a river or lakeside, public right-of-way and road you have certain set-back rules set that we have to abide by and I was just wondering if uh I can go and get a lawyer and further research it for the Board if they need that but I need - I was under the information that with the uh agriculture districting rule that we were allowed certain set-backs.@


Commissioner Hawkins - AWe=ll ask our planner that in a few minutes.@


Alan Henderson - AOK@


Commissioner Hawkins - AI just didn=t know what government you were citing.@


Alan Henderson - AI was citing both the U.S. Department of Agriculture and North Carolina State both have uh inherent rules and then the county and our ag - agricultural districting - what do you call it - plan that=s been in effect - I think there=s certain rules in that agriculture districting plan.@


Commissioner Hawkins - AOK.@


Chairman Moyer - AAlan, what we=re referring to of course is a letter signed by Elizabeth Henderson dated February 12.@


Alan Henderson - AThat=s my mother, that=s my mother.@


Chairman Moyer - AThat is your mother - to Karen Smith and I guess you=re introducing this to the record.@


Alan Henderson - AYes please.@


Chairman Moyer - AAnd have all the other parties been given a copy of this letter? OK.@


Angela Beeker - AMr. Chair, can I ask some follow-up just for the record questions on this?@


Chairman Moyer - ASure@


Angela Beeker - AUm are you personally familiar - do you have personal knowledge of all the matters asserted in this letter?@


Alan Henderson - AIn how?@


Angela Beeker - AUm well basically - did - does any - do any of the parties have an objection to this coming in as evidence?  Um the letter - since your mother is not here to speak for herself.  In order for it to really be given full weight by the Board um it=s really considered what is called >hear say=@


Alan Henderson - AOK@


Angela Beeker - AWhat I=m asking you is do you have personal knowledge of all the things asserted in your mother=s@


Alan Henderson - AI helped compose the letter yesterday.@


Angela Beeker - AOK, alright so you@


Alan Henderson - AI actually . . . A


Angela Beeker - AOK so you would adopt this as your own statement then under oath.@

Alan Henderson - AYes@


Angela Beeker - AOK.  Do you have any@


Lex Veazey was speaking but it was not picking him up.  


Angela Beeker - AWe tape this for two purposes, one for TV but we also do a - as best we can a verbatim transcript to protect the record so to the extent that everyone can - if you could speak in the mike so the tape could pick you up.@


Lex Veazey - ARight uh - without further evidence we object to their being a governmentally specified agriculture buffer required by county, state, or USDA by federals.  Uh we aren=t familiar with this.  We don=t know whether that exists or not.@


Angela Beeker - ABut as far as this coming into evidence with him - you can make your arguments.  You=ll have a chance to make arguments as to that later.  But as far as this coming in as his personal statement now since he=s under oath - says he has personal knowledge of everything.  Do you object to it coming into evidence.@


Lex Veazey - ANo.@


Angela Beeker - AOK.@


Chairman Moyer - AMrs. King, is it alright with you for this to come into evidence. Alright. Then that=s evidence.  Do you have any other questions, Angie?@


Angela Beeker - ANo sir, I=m sorry.  I don=t.@


Chairman Moyer - ACommissioner Gordon?@


Commissioner Gordon - AUh yes, I have - in your estimation what is an adequate - how far does the spray travel - what would be an adequate buffer to protect your interests?@


Alan Henderson - AThat - I would not - like I say the existing buffers that are up are pine trees - you know I=m not asking for them to go up 100 feet or 200 feet.  I=m just asking for some kind of - of maybe a sound and spray buffer be erected like a couple rows of pine trees through there, maybe a 15 - 20 feet buffer that could be put up to you know help buffer the sound from the RV Park and the spray material as well.@


Commissioner Gordon - AWell that was my next question because the - the trees had been discussed  between the two of you and is that something that works and so I think you=ve answered that.@


Alan Henderson - AI think that would be very satisfactory if that could be incorporated in a row of trees there that . . . according to what I=ve heard the RV Park is going to take 3 - 5 years so if the trees were planted within this year then they would be of substantial size by the time that area was developed - that I wouldn=t have an objection at all to that.@


Commissioner Gordon - AOK.@


Commissioner Messer - AMr. Henderson, in that existing house are they somebody living in that house during the time that you=ve been spraying in the past and?@


Alan Henderson - AI - I can=t testify to that.  I don=t know.  I=ve just heard them say that . . .@


Commissioner Messer - AIn other words you=ve never had any complaints from the people in this existing house.@

Alan Henderson - AIn the existing house, no sir, we=ve had no complaint from that RV Park.  That=s why I said they=ve been a very good neighbor.  I have no complaint.  I=m just here on behalf of future problems that I=ve seen happen at other places where people have moved in unknownst that agriculture is taking place and we just take a lot of our time to go defend ourselves. And I=m just asking that the Board take this into consideration and - and - I=m not - you know I=m not here asking  for 100 foot buffers and all this kind of pull.@


Commissioner Gordon - ALet me ask another question.  What would be the impact on you uh if you planted a row of pines buffering your orchard?@


Alan Henderson - AIf the buffer were to be on me my trees are up to the line within 20 feet of the row so I don=t have the room to plant the trees myself on my property.  If I would I would have to do away with oh probably 1/8 of the production of the orchard to install that buffer because in the past there was a pasture I think over there and some woods.@


Commissioner Gordon - AOK.  Uh in your estimation through if you were gonna - what other uses could be made of that land other than pasture without a buffer?@


Alan Henderson - AI don=t understand - I=m saying now its a pasture.@


Commissioner Gordon - AI mean the other side - yeah -  the land that these people are uh asking to develop. Uh with the orchard being that close on the property line and the issues that you=ve mentioned with the spray and the noise, is there any other use other than it remaining as is that would be possible?@


Alan Henderson - AI don=t know - they could probably put a ballfield there.  I don=t - I=m not - I don=t know what their plans are.@


Commissioner Gordon - AOK@


Commissioner Messer - AMr. Henderson, these lots 8 and 9 pretty much everything running on that border - you can see that they=re quite a bit larger than the lots in the rest of the park.  In your recommendation would - if those lots were the same size and that size buffer be set down through there do you think that - in your estimation do you think that would be an adequate amount of buffer space for spraying and uh doing everything that you need to do in your orchard.@


Alan Henderson - AYou=re saying what?  I don=t quite understand what you=re saying.  Remove those lots?@


Commissioner Messer - AI=m saying cut those lots - well yes - either - well primarily remove those lots down that border down through there.@


Alan Henderson - AI don=t know if it would - I don=t know the exact size of the lots - I=m unable to read the map but you know I=m just saying a couple rows of pine trees is what we=re looking for, just something to catch the spray so it doesn=t get onto the people.@


Commissioner Messer - AWell basically what I was trying to get is like the question that Marilyn asked - how much space do you need for - you know for spraying and so forth and I mean that=s basically how I was trying to put it into perspective of how much space it would take.@


Alan Henderson - ALike I say - our - our current sprayers spray a pattern that is about 60 feet wide so as we come down - once - our rows run at angles into this property line and most of the time we won=t hit the lots except where they turn on the ends.  When they turn on the ends that=s where the drift would probably occur and it would probably - I would say then you=re probably going 15-20 feet over into their property lines.@


Chairman Moyer - AOther questions from the Commissioners?  We=ll go back to you Mr. George and your - do you have any questions for - just questions for Mr. Henderson at this time.  Lex, you want to ask any questions?@


Commissioner Hawkins - AWhile they=re doing that, let me ask one other question.  You don=t spray necessarily when the winds up do you?@


Alan Henderson - AOh no sir cause that=s - that=s uneconomical.@


Commissioner Hawkins - AThat=s what I thought.@


Alan Henderson - ABut see the other part of that equation is the wind doesn=t blow at 4 a.m. in the morning so you have that noise problem which is why I feel a tree buffer or something would help absorb the noise as well.  Along with the wind machines that we run in the spring but they only are run usually three or four nights in the spring.  But they=re very loud.  They have helicopter size blades which made a very large chopping sound all night and uh I=m just@


Chairman Moyer - AAnd you can=t always predict the wind.@


 Alan Henderson - ANo I can=t always predict the wind.  We - we - a lot of times we start spraying and there=s no wind and the wind will come up and the gentlemen that spray will finish their tank that they=re currently spraying on before they come back to our plant.  There could be times when@


Commissioner Gordon - AThat=s ordinarily early spring right?@


Alan Henderson - AYes mam.@


Commissioner Gordon - AWhen - when you would reasonably expect that an RV park would not have full occupancy and they might be able to as they said not rent out spaces on that side.  Yeah, yeah.@


Alan Henderson - AIt=s just a concern of ours that I=d like to have addressed.@


Chairman Moyer - ALex, do you have some questions you=d like to address?@


Lex Veazey - AYes - Mr. Henderson the Ballenger Road there - is there a buffer along Ballenger Road where you=re spraying?@


Alan Henderson - AThe road itself acts as a buffer.  The road is what a 30 foot right-of-way so when we turn on Ballenger Road on our hose our rows are set back about 20 foot so we don=t - we=re spraying into a road area.@


Lex Veazey - AAre there a number of cars traveling Ballenger Road.@


Alan Henderson - AYes they do sir.@


Lex Veazey - AAlright. That=s all the questions I have.@


Chairman Moyer - AAlright, does that Mr. George cover all of your parties questions?  Do you have another question?  Ms. King, do you have any questions? Alright then you may be seated.  Ms. King do you have evidence that you would like to present at this time, make a statement or anything?  Please come to the microphone.@


Ruby King - AI noticed on the map that it looks like they are going to have two entrances into the park which I would certainly hope they do because they=ll be turning to the right directly in front of  my driveway and I=d just like to ask the question - if these will be going in this direction rather than all of them going down in front of my house to turn?@

Chairman Moyer - AWould you clarify what this is mam so that we.@


Ruby King - ASir?@


Chairman Moyer - AFor the record would you clarify what roads you=re speaking of.@


Commissioner Hawkins - ABallenger Road@


Ruby King - ABallenger Road.  Will they be using the existing drive into the park now with all the vehicles that will be coming or will they be uh making a road here where they=re starting this development?@


Commissioner Hawkins - ABy the pond?@


Ruby King - AUh no here.@


Chairman Moyer - AOff Ballenger Road?@


Ruby King - AHere is the part, over here is what I=m interested in. Um huh.@


Howard George - AThere is an existing road there called McCalla and then the main entrance into the park is uh probably - where the existing the RV Park - the arrow is there - that=s probably approximately where the main entrance is and the reason they have to come in the main entrance is to register.  Once they are registered they would probably enter and exit through this the other road - McCalla. But we would - we would have uh the two entrances for fire, EMS, and all that and it=s@


Ruby King - ASounds like a lot of traffic going in there at that - at this - to me but you know I just depend on you to work it out.@


Commissioner Gordon - AWell essentially if I understand correctly what you=re saying is that - when they=re checking in they would use that entrance but then for the daily trips in and out of town or whatever they would probably use that secondary entrance.@


Howard George - AYes.@


Commissioner Gordon - AOK.  If they were parked on that end of the park.@


Howard George - ACorrect@


Commissioner Gordon - AYeah.@


Chairman Moyer - AMr. George, do you have any questions for Mrs. King?@


Howard George - ANo I don=t, she=s a great neighbor.@


Chairman Moyer - AAlan, do you have any questions.  Any of the Commissioners have any questions.  Alright, you may be seated for a moment.  We=ll have staff=s evidence now.  After staff=s evidence, we=ll then have a period for rebuttal evidence if any of the parties want to give any rebuttal evidence and then we=ll go into closing statements, just to prepare.  Usually that goes fairly quickly cause we usually cover most of it during this part of the proceeding.@


Karen Smith - AMy - my evidence is really more information and first off I do have copies of the comments from the review agencies and as Ms. Beeker said about the letter from Ms. Henderson again I suppose that this could be considered hear say but if you wanted to ask if anyone objected we do have copies for all the parties as well.@


Commissioner Hawkins - AWho is this from Karen?  The review agencies OK.@


Karen Smith - AThe um - most of what you=ll see in that packet really aren=t significant - we just sent these to the agencies that we normally send some of our subdivision plans that are major subdivisions and manufactured home park plans to.  Uh - if - if I might I think the only really truly significant one that stood out had to do from - was from the EMS director and his was really a question about would there be ample room on the roads to turn an ambulance or a first responder vehicle around.  Uh everyone else - he also mentioned property addressing but you=ve got a comment there from the Property Addressing Department which says that they are working with the developer on street names and numbering in the park.  Uh DOT mentioned the curb cut - again there is no new curb cut onto Ballenger Road that I=m aware of so again that really isn=t relevant and then the uh Fire Marshal=s office was just asking about hydrant locations uh the plans mentioned that there=s a new code as of January 1st with tighter restrictions on hydrants and again that=s a plan detail item and the Environmental Health Department just referred to the onsite package treatment plant that - and that=s again governed by a state agency.  I do also have uh@


Chairman Moyer - ABefore you leave that Karen, is there an issue under any of the ordinances with respect to the - well the absence of cul-de-sacs and the ability to turn around?@


Karen Smith - AAgain we don=t have an ordinance that regulates RV Parks and standards for roads and that sort of thing in those parks and so right now there - there is no standard which we could use and we do have standard in our subdivision ordinance and in our manufactured home park ordinance if you needed some guidance but again there is no specific standard at this time.@


Chairman Moyer - AWhat - Mr. George what you normally have - I=m looking particularly at lot #10 or #7.  What would be there for a vehicle to turn around - what do you have a gravel entrance to the site or how would a vehicle in an emergency situation get around there? That=s the longest one I see by far, maybe I missed.@


Howard George - AOn #8 and #9 you said?@


Chairman Moyer - ANo on #7 and #10, #7 and #10.@


Howard George - AOh OK.  Paul and I talked about that yesterday as to the length of hoses and things like that but uh - that=s - that=s our worse situation there.@


Chairman Moyer - AUm huh.  Well what would normally be - is there an access from #10 and #7 - would there be room for a vehicle to turn in there?  Is there like a drive or@


Howard George - AWell we=re gonna have a drive uh - typical lot uh lay out is a drive and uh in essence they could pull into one drive, say on #10 and back in on lot #8, depending on the length of the vehicle.@


Chairman Moyer - AOr #7.@


Howard George - AAcross from #10?@


Chairman Moyer - AYeah.@


Howard George - AWe would have four driveways on #7,8, 9 and 10.@


Chairman Moyer - AAre the vehicles set back from the road where there would be room to - to back around is what I=m getting to.@


Howard George - AWell, they are set off the road uh probably 10-15 feet uh. Are - are - a typical motor coach is 40-45 foot long@


Chairman Moyer - AYeah I know@


Howard George - ASo we have to be able to accommodate those people.  That - I mean in all honesty he might have to back - after he puts the fire out back the truck out - I don=t know.@


Angela Beeker - AMr. Chairman if you are interested in pursuing um this particular topic any further - I do believe the Board on its own can call witnesses that were not previously identified and um the other parties would of course have a chance to cross-examine any such - any witnesses so called and Mr. Hyder is in the audience and I do believe would be qualified to provide you some further - would probably be the best person in the room to provide you evidence on this topic.  So if you=re interested in pursuing it just so you have evidence in the record um you might consider that.@


Commissioner Gordon - AUh I do have a question.  Is this layout similar to the existing park as - in terms of street alignment and ability to turn vehicles?@


Howard George - AYes in that uh you - you can see on the proposed site that we loop the roads as we=re looping the sewer and the water and on the existing that=s the way it is also.  Because of the property line there we end up with not a - we end up with a dead-end stop situation, not a cul-de-sac but uh@


Commissioner Gordon - AOK I guess my question is do you have any of those dead-end areas in your existing park? Streets that@


Howard George - AYes.@


Commissioner Gordon - AOK and have you had any problem?@


Howard George - AOnly two, no I haven=t.@


Commissioner Gordon - AHad any problems there?@


Howard George - ANo.@


Commissioner Gordon - AOK.@


Chairman Moyer - AAnd what would be the length of those two though?@


Commissioner Hawkins - AUh they=re back in here somewhere, you can see em.@


Chairman Moyer - AYeah.  I don=t know where they=d be.  Looks like everything would loop there but do you have anything approaching the length of the one going down to #7 and #10?@


Howard George - AUh no, I don=t.@


Chairman Moyer - AI know I would like to hear from Rocky on this matter before we move@


Commissioner Hawkins - AWell I was gonna say I - I would - I think that uh as already been pointed out there really isn=t any uh - you know quote zoning items to look at over here so I think our - at least my thoughts is that we=re looking mostly at safety items as something to consider.@


Chairman Moyer - ASafety and welfare.@


Commissioner Hawkins - AAnd I think fire hydrants, EMS vehicles and fire trucks and spray coming over us is at least a couple of those things.  Uh you know whether or not uh you go to county - a city sewer or whatever - that will be taken care of under those agencies as well as the water but these areas won=t and I would like to hear from the Fire Marshal on what his thoughts are on looking at this and uh what kind of standards he thinks needs to be in there or at least a layout so that they can adequately respond to an emergency.@


Commissioner Gordon - AAnd Karen has a picture up there and that might help us - to look at pictures and get a better prospective on what we=re talking about cause I=m not that familiar with@


Howard George - AI guess that=s - that=s in the existing uh park uh.  I=ve had one fire there since September uh what happened was uh the propane company overfilled the uh person=s bottle and uh they=re suppose to be filled to an 80% and it was all liquid, he hooked it up and uh the hot water heater - it sprayed into the hot water heater and pouf up the side of it.  Uh three of us grabbed fire extinguishers and thank the Lord he wasn=t burned or anything and the fire was out within minutes but uh - I can appreciate your concern as to the uh - the distance there - Paul? - is uh - I=m sorry.@


Paul Patterson answered - A200 feet from the back of the room@


Howard George - AAnd is that going to #7 and uh.@


Chairman Moyer - AThere=s lots . . . 40's. That=s about right.  Well let us uh@


Howard George - AAnd that=s the worse one is the first one.@


Chairman Moyer - AYeah, that=s . . . let us uh.  If you=ll have a seat for a moment.  If the Board=s in agreement, we=ll call Mr. Hyder as an additional witness.@


Angela Beeker - AHe needs to be sworn.@


Chairman Moyer - AYeah. Would you go over and be sworn in by the Clerk, Mr. Hyder.@


Elizabeth Corn - APlace your left hand on the Bible and raise your right hand >do you swear or affirm that the testimony you shall give to the Board of County Commissioners shall be the truth, the whole truth and nothing but the truth, so help you God?@


Rocky Hyder - AI do.@


Chairman Moyer - ADo you want to just make a statement Rocky or do you just want us to ask you questions with respect to this?@


Rocky Hyder - AI=ll answer questions first if it=s your pleasure and then if - if there=s anything else I feel like we need to cover as part of the question time I certainly . . .@


Chairman Moyer - AWell, I think you heard the concern that=s been raised with respect to cul-de-sacs and I know you=ve dealt with this many times in subdivisions and things.  What is your opinion with respect to uh particularly fire first responders dealing with type of a situation.@

Rocky Hyder - AWith a 16 foot road bed - having the ability to turn around using a driveway and back out into the road or another driveway - that=s somewhat limited.  Especially with EMS equipment - is more my concern because the fire trucks obviously are not going to be able to turn around in that situation but I=m not sure that EMS units that we use today can turn around easily in that situation or at all if you=ve got first responders parked on the shoulder of the road responding to that particular incident.  You=re gonna have a one-lane road at best case in that particular scenario.  Also there=s not a lot of indication of what type of landscaping is gonna be done in this area and that certainly has a - a large effect on a 40 foot wide lot that=s landscaped.  If you=ve got a 10 foot wide road then your turning radius is gonna be such that you=re not gonna be able to get those apparatus  and the equipment in there. Um.  Another on the side comment - I don=t know - some of you folks know I do quite a bit of camping and I=ll tell you this - if you=re backing a 35 or 40 foot unit into a square lot like that, that=s gonna be rather difficult to get that - just the campers in and out of there in all honesty.  Most of these lots are pull through lots in this type of situation and that=s - that=s what our folks are more used to responding to in this particular situation.@


Angela Beeker - AMr. Hyder, are you personally familiar with the size and dimension of our EMS vehicles that we use currently?@


Rocky Hyder - AYes.@


Angela Beeker - ACould you, for the record, state what the uh approximate dimensions are?@


Rocky Hyder - AThe largest EMS unit that we use now is about 8'6" from mirror to mirror.  It=s on a two ton chassis and uh would require certainly a 20' road to even turn into and park in.  You=re not going to be able to park that unit on a 10 foot road.@


Angela Beeker - ACould you describe a typical response - you - you alluded to first responders parking on the shoulders and an EMS vehicle.  Could you describe a typical response to a - uh - an emergency call@


Rocky Hyder - AOK@


Angela Beeker - ATo explain that a little bit more.@


Rocky Hyder - AIf the emergency call were medical in nature, uh you would get a response from the fire department that would include one apparatus.  You would also have responding uh firefighters that were in the area.  Typically that=s going to be 2-3 first responders as well as the fire department apparatus so that=s four vehicles.  Then you bring in your EMS unit.  Depending on the situation, um law enforcement may or may not come to that situation, it just depends on what the dispatcher gleans is the nature of the call is concerned.  But certainly uh a typical response is gonna be five vehicles located in that area and they have no where else to park except on the side of the road so they=re gonna try to park on one side of the road and leave one lane open to gain access.  Uh if you have a responder that parks right across from the driveway, then you=re gonna have to start moving a lot of cars before you even - you=re able to park the ambulance or turn it around I should say.@


Angela Beeker - AAnd for the record could you describe for the Board your experience in fire fighting services and uh so that it would be reasonable for them to rely on your opinion in this matter.@


Rocky Hyder - AOK, now you=re going way back in my memory.@


Angela Beeker - ABe brief.  Well fire fighting, EMS services - what - you know just so that it would be reasonable for them to rely on your opinion.@


Rocky Hyder - AI - I=ve been involved in those services for 24 yours, been the Fire Marshal since 1992, Emergency Management Coordinator since 1993.  Is that good enough?

Angela Beeker - AThat=s g - OK.@


Chairman Moyer - ACommissioner Gordon@


Commissioner Gordon - AYeah, a question - uh it=s deceptive in looking at this plat when I see so many lots and we=re used to looking at subdivisions when we=re talking about house sites and - and these are really very small parcels and so the total of the longest road looks like - I think they were saying 200 feet or so - which is essentially the width of an acre lot uh in a conventional subdivision - yeah - so if you can keep that prospective on it uh would you see that as having a - changing your  - your view on whether or not vehicles could get in and out of there, especially when you consider  that the RVs that we=re talking about are probably larger than the emergency vehicles that would be responding - that are being able to pull in and out of those driveways.  They=re gonna have to have  something that=s adequate for RVs.@


Rocky Hyder - AThere=s no doubt the RVs that they=re talking about are larger than the emergency equipment that we have responding in here.  Uh the issue that I see is because the road structure - the way it=s laid out - your first responders are gonna drive to that scene.  They=re not gonna stop  at the intersection of the road and get out of their car and run down to the scene.  They typically don=t do that many times because sometimes they need to get back out of there in a hurry.  Not all the people you respond to want you to be there anymore but uh in those situations I still see some traffic problems.  Certainly the most important thing is to get access to the site with an EMS unit or a fire truck, depending on the nature of the emergency call.  We certainly wouldn=t want to be wheeling people down a road on the back of a - on a stretcher to get em to the back of an ambulance.  That=s - that=s very much so in the winter time that=s important to have the EMS unit close to the site for the equipment purposes of EMS personnel as well as to- to transport the patient. So it - it certainly does have an effect that if they can get a large RV in there you can certainly get an EMS unit in there. They=re normally just not parking an RV with three or four other vehicles in the theater there in that particular area and I think that=s the difference that I see.@


Chairman Moyer - ACommissioner Hawkins@


Commissioner Hawkins - ARocky, on location of fire hydrants uh considering I think he said he had  about 10 acres here we was using and - and the layout of that is there - I don=t see any provisions for - for fire hydrants and I guess its all well - well water now and you don=t know if you=re gonna get city or not.  Uh is there any uh concern about the availability of water there, other than what the - obviously the tanker trucks carry it now to places that don=t have em but this is also a very congested area as far as density.  You could have quite a few vehicles there if you had a large fire that could spread perhaps quickly.  Do you have any concerns about or requirements for a fire hydrant from a safety viewpoint?@


Rocky Hyder - AI see a couple of options in this particular plan for fire - provisions for fire suppression and water supply.  One is the pond.  We can utilize it as a dry hydrant in that particular area - that would certainly help our ability to increase fire flow.  The other would be in the event that city water wasn=t utilized.  Then we could certainly ask that they place a fire hydrant, one or two, depending on the size of the roads there or the length of the roads.  If we can have a fire hydrant within 1,000 feet of a lot we=re certainly in good shape there.  And you=re right it is congested and in this particular situation, with an RV fire the fire department=s probably gonna be protecting the exposures rather than so much worried about extinguishing the fire, just based on the time.@


Commissioner Hawkins - AWell.@


Chairman Moyer - AThank you Rocky.  Mr. George would - what is the depth of that pond? It looks like it=s about 100 x 100 x - I just wonder how much water you really have in that pond@


Howard George - AI=m guessing six feet - six foot depth.@


Chairman Moyer - ASo we=re dealing with less than 100 x 100 x 6 feet. . . Rocky . . . county sludge.@


Rocky Hyder - AThe uh the minimum storage capacity is 100,000 gallons to be utilized for a fire suppression water supply and of course that has to be rated at the 50 year drought surveys.@


Commissioner Gordon - AWhat about the swimming pool that=s there?  Could that be used?@


Rocky Hyder - ADepending on the access.  Most swimming pools are so located near a building that it would be difficult to@


Howard George - AIt=s very accessible - as a matter of fact it fronts on this road here.@


Rocky Hyder - AYeah, as long as the fence is not a problem then we can access that. Our guys would love to pump clean water through . . .@   Several people talking and laughing here.


Chairman Moyer - AAlright Mr. George, thank you.  Other questions for Mr. - Mr. Hyder from the Commissioners?  Alright now Mr. George and Lex, do you have any questions for uh Mr. Hyder?@


Lex Veazey - AYes, Mr. Hyder.@


Rocky Hyder - AYes sir.@


Lex Veazey - AUh you said that the width of the road would need to be 20 feet . . .@


Chairman Moyer - Lex, turn around and get into the mike.@


Lex Veazey - AI just wanted to reiterate what Mr. Hyder said - that the width of the road would need to be uh 15 - at least 20 feet and I would like to get the voice - some evidence regarding the width of the new road and existing roads too.@


Chairman Moyer - AAny other questions for uh Mr. Hyder at this time? We=ll let you come back with additional evidence.@


Rocky Hyder - AI think I need to clarify - I was specifically talking about turning in off of that road onto a - a lot - having to have a 20 foot driveway at that point in time.  I realize that the road is 16 feet with a 2 foot shoulder on each side and I didn=t take issue with that as much as it is the access to the site itself - is what I was referring to.@


Howard George - AIf we were able to uh loop this road here where lot # 8 and # 9 is - over to where #24 and # 21 is - that would give us - we would lose two - three lots, one, two, three.  This one.  Well we - we wouldn=t lose eight, we=d just lose a partial so if we lost those two lots that would allow - that would allow this to loop over so that you could pull around.@


Chairman Moyer - ATrying to eliminate the two worst situations, that=s for sure and help Mr. Henderson.@


Howard George - ASo that would be an option that she could - I believe with the uh proposal that we=re working with on the city water, we would have a fire hydrant right here at McCalla.@


Someone said AOK@


Howard George - AAnd I don=t know if there=s requirements with the private roads to have fire hydrants within the development?@


Chairman Moyer - AAre you indicating - I just want to be clear for the record - are you indicating your agreement to looping that road to solve that problem?  I mean I don=t want to put words in your mouth but@


Howard George - AWell I=d like to uh talk with Mr. Hoffman and propose that to him, yes.@


Angela Beeker - AWhen you said that in your proposal for water with the City there would be a hydrant there - could you indicate the proximity of which lot you were referring to, just for the record.@


Howard George - APaul.  It would be on Ballenger Road uh.@


Angela Beeker - AOh, OK, at the entrance?@


Howard George - AAt the McCalla - the road shown@


Angela Beeker - AAt that intersection?@


Howard George - AYes, correct.@


Angela Beeker - >OK, just - just to clarify the record.@


Howard George - AThat=s where the proposed hydrant?@


Paul Patterson - AYeah, it would be at the entrance.  That=s basically where we=d stop and put in a master meter for the whole subdivision.  There would be no fire hydrants inside cause there=s an existing 3" to 4" lines inside.  You can=t put a fire hydrant on a smaller than 6"line so@


Angela Beeker - AOK@


Paul Patterson - AThere=ll be no internal except for maybe on the pond for@


Angela Beeker - ADry hydrant@


Howard George - AAnd the pool@


Chairman Moyer - AAny uh - Lex any other questions for Mr. Hyder at this time?@


Lex Veazey - ASome rebuttal.@


Chairman Moyer - AOK.  Mr. Henderson do you have any questions for Mr. Hyder?  Mrs. King, do you have any questions for Mr. Hyder?  Alright does the Board have any further questions?  Staff, do you have any questions for Mr. Hyder?  Alright.  We will then move to uh - if there=s no more questions from anybody we=ll then move to uh - rebuttal.@


Angela Beeker - AOh - she - I=m sorry she isn=t finished.@


Karen Smith - AWe kinda jumped into Mr. Hyder before I had quite finished.@


Chairman Moyer - AOh, I=m sorry.  I thought you were finished.@


Karen Smith - AUh I was just gonna mention two other things.  One is I do have some definitions - I didn=t know if that was going to be an issue or not.  If - if the Board needs them, I think Mr. George  uh informed you about our definitions on park models and that kind of thing but if you have any questions I do have those if you need them and uh I think you were going to ask me about uh farmland preservation ordinance or something like that.  I did talk again.  I had seen Ms. Henderson=s letter and I did speak uh with Marvin Owings.  We had had a conversation a few weeks ago with regard to the zoning ordinance and the spraying issue and I did speak with him again and he did state that he=s not aware of any uh state regulations on the buffering for spraying.  As for the farmland preservation ordinance, we do have a copy with us.  I did look at that and there are some provisions in it for uh subdivision and planned unit development plats.  They do have to uh show or state that they=re within a half mile - property=s within a half mile of a farmland preservation district.  That=s the only real reference I saw to any kind of distance - was really just in reference to the - those districts themselves or properties within those districts now.  It doesn=t say for RV parks and that sort of thing cause these aren=t recorded but again that may be - if there=s an awareness issue or something that you wanted on this plat, we could look at that but I=m - I do have a copy of the ordinance if somebody wants to look through that.@


Chairman Moyer - AWell, I think we=re heading to the point Mr. George is gonna have to do some checking with his parties and I think Alan if you have any evidence - specific evidence with respect to that buffering, you=re gonna have to get it to us and get it in the record or we=re gonna have to disregard that, based on what Karen has - has said to us.@


Karen Smith - AAnd I=m happy to look further into anything too.@


Chairman Moyer - AOK@


Angela Beeker - AMr. Chairman, I do a question for Karen.


Chairman Moyer - ASure@


Angela Beeker - AUm with regard to the definitions that you referenced um are those industry standard definitions?@


Karen Smith - AUh I believe they=re - they=re coming out of our zoning ordinance and we use the North Carolina State Building Code as the basis and they do reference um for manufactured home - for example reference the HUD standard and the park model uh references that it doesn=t meet state building code and it=s built in accordance with HUD code but it doesn=t meet the size requirements for a manufactured home.@


Angela Beeker - AUh would you have any objection to us admitting that into evidence and - I=m trying to protect uh the ability for everyone to know what was meant by this if it=s approved in the future.  So uh would you object to us putting that in the record and then if it=s approved including those definitions in as what is permissible in - in the RV park.  Would you have any objection to that?@


Karen Smith - AI=m going to mention that I had thought to offer a condition might be that you limit it only to those types of units that he specified and not include manufactured homes specifically in that new section.@


Angela Beeker - ARight@


Karen Smith - AI don=t think we have anything to say about the previous section.@


Angela Beeker - ARight.  Could you hand those up to the Clerk?@


Chairman Moyer - AAlright quickly - will there be any questions for Karen, from any of the parties?@


Karen Smith - ACan I mention one other thing I forgot about?@


Angela Beeker - AMr. Chairman, before she does that - could the record reflect that the petitioner had no objection through the nod of a head - had no objection to us using these definitions uh in the event that the uh permit or vested right is approved.@


Chairman Moyer - AAlright.@


Karen Smith - AThere was just one other thing.  Um I spoke with uh Mr. George about this yesterday - I did just happen to look.  I have a map that shows that a portion of the overall property including a little bit of this piece falls within the 100 year floodplain as shown on the maps that we have from 1982 and I=ll just put that up on the document camera and - uh Mr. George may want to address this but he had informed me that they have not had any trouble from flooding and you may want to speak to him about that.  Let me put that up first though.@


Chairman Moyer - AUnfortunately we=re gonna hafta take about a five minute break to change the tape - we=re out of tape and we have to record all of this.  Otherwise the public will be very confused and we won=t have a solid record.  So we=ll have to take five minutes now.  What we=ll do is complete the testimony, rebuttal testimony and then we=ll see what we do with respect to going forward.  So we=ll break now for five minutes or whenever we can get the tape changed then we=ll finish this hearing.@


Technical break -


Chairman Moyer - AOK, we=re back in session.  We=ll continue the quasi-judicial public hearing with  respect to a statutory vested rights for Lakewood RV Resort.  We were in the process of getting direct testimony from the parties when our tape ran out.  Karen you were - you were up so now I won=t cut you off.  I=ll let you try to finish.  But you have a 2 hour limitation.@


Karen Smith - ADo you - do you remember where I was. I=m not sure when it cut off.  Did I get in the floodplain part?@


Several responses but they were all talking at once.


Karen Smith - AI was just starting that, OK.  There is a map on the television screen right now that shows - its the entire RV park property and then the area in blue is the 100 year flood plain as shown on the maps that we have from 1982 - Federal Emergency Management maps. Uh and so the area  sorta to the southeast uh does fall partly into the plan that you=ve got for the phase I .  I did speak with Mr. George about this yesterday and so he can probably address the Board on any knowledge he has of - of flooding in that area. Again we don=t have a - a regulation that pertains to this but I just  wanted to make you aware of the - the map.@


Chairman Moyer - AAny questions for Karen?  Ms. Beeker.@


Angela Beeker - AI was just gonna ask her to make sure that um she gives a copy of - or gives that to Ms. Corn as well as that picture that was up so@


Karen Smith - AOh sure. I can do that.@


Chairman Moyer - AFor the record@


Angela Beeker - AShe can be the official keeper of all the exhibits.@


Commissioner Gordon - ACan I?  If I=m looking at this correctly - try and get my perspective here though.  The existing park is already in part of the - park of that existing park is in the floodplain now?@


Karen Smith - AThat=s right.@

Commissioner Gordon - AYeah, OK.@


Chairman Moyer - AMr. George, do you wish to make a statement with respect - I=ll tell you uh - my present plan is that we=ll finish the direct evidence but then we=ll continue this hearing to a date so  we can get into rebuttal evidence and then if we need to cross examination of the rebuttal evidence and then we=ll have closing statements and finish it that way.  Uh because I think with the evidence coming back we=re gonna have to have rebuttal anyway so we might as well move in that - in that direction.  So you=ll have a chance to come back if you want to think about this issue and come back  talk to Lex and see how you want to present it but let=s finish up any direct testimony so when people - when we come back the next time people will know what=s on the table and any other issues so if there=s any other issues to be raised, any other direct evidence from any of the parties, I like to get that out on the  - the table right now.  Mr. George.@


Howard George - AAs to the uh floodplain there - I=ve - Mr. Hoffman purchased the property September 1st and uh I was on the property from May through September concerned as to gully washers and all the different things you know and there really isn=t any problems - there=s great drainage there and we - we just don=t have a problem.@


Angela Beeker - AYou mean in 2001.@


Howard George - AIn 2001, correct.@


Lex Veazey - AI would like to ask Mr. George uh some questions that he=s familiar with if that=s OK with the Board.  Uh Mr. George what is the width of the existing road right-of-way in the existing park?@


Howard George - AWe actually don=t have a right-of-way.  We have a - the road is approximately  15 feet wide.@


Chairman Moyer - AThe travelway - you talking now.@


Howard George - AUh where we have asphalt.@


Chairman Moyer - AWhere you have asphalt.@


Howard George - ACorrect@


Chairman Moyer - AIt=s 15 feet wide?@


Lex Veazey - AAnd what is the plan as far as the width of the asphalt in the uh new section?@


Howard George - AUh 25 feet including the right-of-way and there=s uh - there=s a uh typical private road section on your A


Lex Veazey - ASo if I can clarify that - the - its 16 feet wide on the new pavement right but a right-of-way width of 25 feet.  Is that correct?@


Howard George - ACorrect.@


Lex Veazey - AAre these roads - do we have a problem with cutting into bank - embankments or anything or is it fairly level - all the roads in the new development?@


Howard George - AI don=t believe we=re gonna have any problems - uh in talking to Paul, our engineer.@


Lex Veazey - AOK, now the width - the length of uh the longest road that we were talking about on the - on our map coming right off of Ballenger Road and hanging right, that width is about how long - that road?@

Howard George - A260 I believe.@


Lex Veazey - AOK.  And the other roads that have a dead end, are they any of them longer than that or@


Howard George - ANo they=re not.@


Lex Veazey - AOK@


Chairman Moyer - ASo the first one you mentioned Mr. Veazey is just going down to lot 7 and 10.@


Lex Veazey - ACorrect@


Chairman Moyer - AThat=s the length@


Lex Veazey - AYes Mr. Chairman.@


Chairman Moyer - AOK@


Lex Veazey - AThose are all the questions I have right now.@


Chairman Moyer - AWell just follow-up - you said the travelway in this new section going down to 7 and 10 will be 16 feet of blacktop right?@


Howard George - AThat=s the typical road section that you see on your drawing there. Uh some of our existing roads are uh we have gravel and we do have asphalt in the existing park.  And uh I don=t know if a decision has been made whether we=re gonna uh go with asphalt@


Chairman Moyer - ABut if you follow your - your typical road section, you=re gonna have at least 16 feet of roadway and 2 foot of shoulder for a total of 18 feet@


Howard George - AAnd then the drainage yes@


Chairman Moyer - Aor something@


Howard George - AYes@


Chairman Moyer - AOK.  Bill@


Bill Patterson - AComment about the flood map Karen put on the screen@


Chairman Moyer - ARight. This is Bill Patterson.@


Bill Patterson - AThat map=s been taken off of the government flood map and inserted onto your tax maps incorrectly and it makes it look like there=s more flood on this piece than there is next door and that=s not the case.  I don=t have the map.@


Chairman Moyer - AWell can - we=re gonna be coming back for additional evidence.  Can you bring back what would be correct for us at that time.  Can that be done?@


Bill Patterson - AI=d have to go draw a map - you know cause it=s just that if you look at what she put on the screen it shows the creek one sided on the flood, well that=s not the case.  The land=s the same elevation both sides.  It should be shifted over.  She=s got the map over here and has had it on the screen.@


Chairman Moyer - AAlright well we=ll - we=ll take a look at that.@


Bill Patterson - AI don=t want - I don=t want the flood thang to be a big issue when it=s not.  If you look at the plat real careful that you got, you=ll see T numbers along the creek.  Those are for numbers to get em out of Dodge if the creek starts to get up.  That=s what that T is.  No park models are.@


Commissioner Gordon - AThat would be my - I guess my question - how long does it take to get one  out of the way if water - if we have heavy rain and if you needed to - I guess it wouldn=t take long.@


Bill Patterson - AThat depends on whether it=s somebody that can do something or somebody who can=t do something.@


Laugher followed.


Bill Patterson - AIt=s that simple.@


Commissioner Gordon - AAssuming neighbors would help.@


Chairman Moyer - AAlright.@


Angela Beeker - AFor purposes of clarification then Mr. Chairman when this is concluded the only issues that may be addressed at the next hearing are further - are the continuation of - is further evidence on the issues that have been raised today.@


Chairman Moyer - AThat=s correct. Is that clear everybody? . . .  somebody will come in and say I=m concerned about X.@


Angela Beeker - ARight@


Chairman Moyer - AWe=re gonna continue this hearing and will continue based on what has been presented so far - or any open issues that have been raised today.  Anybody else have anything they=d like to say as direct testimony today.  We=ve heard from all the witnesses.  I think everybody=s had a chance to question everybody.  I think we then need to move to continue this - how bout to a date certain.@


Angela Beeker - ATo a date and time certain, yes sir.@


Chairman Moyer - AAnd we have - how=s the 45 day rule?@


Angela Beeker - AActually you have to make a decision under the vested rights ordinance in 30 days um . . . several people talking here . . . at the conclusion of the hearing, OK.  So that gives you plenty of time under both of them, right.@


Commissioner Hawkins - AContinue on the 11th of March?@


Angela Beeker - AYes sir.  You might ask them that.@


Chairman Moyer - AIf we continue to 11th of March - to all the parties - would that be fair and give you sufficient time to gather whatever evidence - additional rebuttal evidence you=d like?@


David Nicholson - AThat=s an evening meeting.@


Chairman Moyer - AIt would be at 7:00 when we normally have our - our uh - we=ll continue this public hearing.  Ms. King is that acceptable to you - and Alan?@


Alan Henderson - AYes sir.@


Chairman Moyer - AAnd Mr. George.  Alright then I move we continue this quasi-judicial proceeding - hearing until March 11 at 7:00 for the purpose of receiving rebuttal evidence with respect to the matters already presented and then deliberation by the Board.  Any further discussion? All in favor of that motion, say aye.@


AAye@ in unison.



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

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


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


3.(a)(3)            To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body which privilege is hereby acknowledged.  To consult with an attorney employed or retained by the public body in order to consider and give instructions to the attorney with respect to a claim: Henderson County and Cane Creek Water and Sewer District v. Asheville-Buncombe-Henderson Water Authority.


Commissioner Hawkins made the motion to pull item AE - EMS Southwest Station@ from the Staff Reports.  Chairman Moyer stated that a number of things have occurred this morning which need some clarification.  All voted in favor and the motion carried.


A vote was taken on the Chairman=s motion to go into closed session. All voted in favor and the motion carried.



Following closed session, Chairman Moyer announced that Commissioner Hawkins had to leave the meeting and will not be present for the rest of the day. 



At the Board meeting of February 4, 2002, staff recommended the Board award a contract with H & M Constructors for the demolition of the old jail.  However, the issue of the budget for this project was raised and staff requested that the item be pulled from the agenda.


Mr. Nicholson informed the Board that he had researched the issue raised at the February 4 meeting concerning the budget for the demolition of the Jail.  As part of the original budget, he had penciled in $200,000 for demolition and $50,000 for the abatement work.  However, in the plan submitted to the Board at the close of budget deliberations, he only indicated a total amount of $200,000.  Mr. Nicholson apologized for the error. 


Mr. Nicholson had asked H & M Constructors to breakdown their bid for demolition of the jail.  The following is the detailed cost estimate:


C                  Asbestos/Lead Paint Abatement Phase - $22,026.00

C                  Old Jail, Patrol Building and Interior Ground Floor Annex Demolition Phase - $138,380.00

C                  New Exterior Walls and Structural Stabilization of Annex Phase - $75,494.00


The actual cost of the demolition and abatement totals to be $160,406.  The remaining cost is for the exterior walls and structural stabilization of the Annex.  The information on the condition of the jail wall and the need to stabilize the Annex was not known during the development of the budget.


We only budgeted $200,000 for the project in this fiscal year.  However, we had hoped that this project would be out to bid by this time.  We also budgeted $330,000 for debt service payments in this fiscal year that will not be used.  These funds, with the exception of some architectural and engineering costs, remain in the Capital Projects Fund.  Should the Board decide to proceed with the demolition project, monies are available within the overall Fund to cover the project.  The other alternative would be to postpone this phase until the entire project is bid.


Following much discussion, Chairman Moyer made the motion to reject all bids and not to move ahead with this project at this time due to budget restraints.  All voted in favor and the motion carried.



Blue Ridge Bike Bash

Chairman Moyer reminded those present that at the last meeting the Board had a lot of discussion with respect to this.  There was more discussion this morning with respect to issues that have been raised but Commissioner Ward had asked some questions with respect to the ABC laws and the impact on the county from a liability standpoint.  The Board had asked Mrs. Beeker to research this and report back to the Board.


Angela Beeker was responding to four questions Commissioner Ward had previously posed, two of which were in relation to ABC laws.  The first related to the liability of a proprietor if they serve someone alcohol and they go out and have a wreck and injure a third party.  The second related to what input the Board of Commissioners has to the ABC Board with respect to this permit.  The third was Awill off-duty Henderson County Sheriff=s Deputies be used?@  The fourth was regarding the Myron poker runs.  Mrs. Beeker stated that she had no information on the poker runs. 



Ms. Beeker stated that since this was being presented to the public, this information was prepared specifically for the Board of Commissioners and was not intended to be relied upon by third parties as giving them legal advice or legal opinion.  It is intended to serve as a broad basic overview of the laws and should not be relied upon in any particular case. Advice should be sought from independent counsel in regards to any particular case or set of circumstances.


She gave the Board a brief overview of the ABC laws relevant to the Bike Bash. It is her understanding that the promoter of the event intends to apply for a special one-time permit to serve alcohol and they can do this.  Such a one-time permit can be granted even in a dry county, which of course Henderson County is. Mrs. Beeker stated that she had talked with a number local ABC folks and State ABC folks as well as Doyle Alley in Raleigh who will actually make the decision of whether or not to grant this permit.  The permit would be issued by the ABC Commission in Raleigh, not the local Board.  The permit would subject the holder to all the rules and regulations

that a regular ABC permit holder would be under unless specifically provided otherwise.  The permit may be applied for by a bonafide non-profit.  Based on her conversations with the State folks, it appears that this is the mechanism that Mr. Myron intends to use to be able to sell alcoholic beverages at the bike bash.  According to conversations with the State people, he has not yet made any application.  There has been no application submitted for a beer and wine permit.  Mrs. Beeker stated that the non-profit would have to be the applicant and the permit would be issued in the name of the non-profit.  The non-profit would be entirely responsible.  It would have to be a bonafide non-profit that is recognized by the state and federal government as a tax exempt entity or officially recognized in some manner as a non-profit.  There are two different subparagraphs in the special one-time permit that deal with non-profits, one is very specific that it has to be recognized, the other is not but she felt that the superimpose that requirement in both places. 


Mrs. Beeker stated that the promoter or any other person would be considered to be an agent or employee of the non-profit for purposes of the permit.  The non-profit would be responsible for the conduct that occurred on the premises because the ABC laws regulate what conduct can occur if you=re going to be selling alcohol.  There is no regulation as to the amount or percentage of proceeds which must go to the non-profit, it simply has to be a fund raising event for the non-profit.  She had no information as to which specific non-profit would be used in this case to apply for the permit for the ABC permit.  There are several different scenarios you could use to get a one-time ABC permit but Mrs. Beeker felt that through a non-profit would be the only mechanism that would qualify in these circumstances.  This is what promoters use for special events to be able to sell beer and wine.  They contract with a non-profit to do this for them and very often the non-profit doesn=t understand the magnitude of the responsibility that they are undertaking.  The application has to be  submitted at least 14 days in advance.  It must have law enforcement signature on the application to show that they are aware of it.  She raised a question as to whether or not they would be able to sell fortified wine and liquor.  There is no right of appeal if it is denied.  It is solely in the discretion of the ABC Commission for this special one-time permit.  The factors that would be considered in issuing the permit are the same they would use for a permanent permit because a one-time permit is subject to all the same rules and regulations of a permanent permit unless specifically provided otherwise and it does not specifically provide otherwise.  They should look at the reputation, character, and criminal record of the applicant but remember for the bike bash the applicant would have to be a non-profit.  The number of places already holding permits in the neighborhood, parking facilities, and traffic conditions, the kinds of businesses in the neighborhood, whether it is within 50 feet of a church or school, zoning laws, recommendations of the local governing body and any other evidence that would tend to show whether the applicant would comply with the ABC laws and whether operation of the business at that location would be detrimental to the neighborhood should also be taken in consideration. 


Chairman Moyer asked that I do this bike bash as practically a verbatim transcript, as follows:


Chairman Moyer - ALet me take you back to the beginning cause you=ve added something here.  Is there such a thing as a temporary permit with respect to alcohol.  I know there is with respect to the whole situation but is there with respect to alcohol?@


Angela Beeker - AI don=t understand what you mean.  It would be a one-time permit so in that essence it is temporary.  It=s just for this event.  It would be strictly limited@


Chairman Moyer - AYou don=t mean temporary like with respect to the overall bash where you get a preliminary one or@


Angela Beeker - AOh, no I=m sorry, no.  No, there=s just one permit.  Yes sir, yes sir.  The decision to be made - that the gentleman that makes the decision does rely heavily on law enforcement and on Board of Commissioner input.  If you wish to give input he will listen.  He made that very clear. The permit would be enforced by the alcohol law enforcement division in Asheville - the ALE Officers.  A violation of the permit could submit the permittee to suspension and revocation of the permit, fines and forfeitures, suspension and revocation of business license if they have one and criminal penalties.  Even if the permit were to be denied though the patrons could bring their own beer, wine onto the premises.@


Chairman Moyer - ABut going back again to the penalties, of course the non-profit is the one that may be on the hook@


Angela Beeker - AAbsolutely@


Chairman Moyer  - ANot the promoter@


Angela Beeker - AThey would be primarily on the hook that=s correct.  Now one observation that one state person I talked to made is that if the permit is granted it becomes a permitted event and more rules apply and the ALE officers then have jurisdiction to enforce that permit so there is a good question there whether it=s better to have a permit or not if you know that alcohol is going to be consumed on the premises anyway.  I listed for you some of the rules that apply:


C                  The permittee must keep the premises clean, well lit, and orderly.

C                  It=s unlawful for the permittee or his agent or employee (which would include the

promoter or anyone selling) to knowingly allow any of the kinds of conduct to occur

on the premises: any violation of the ABC laws which with regard to alcohol are pretty expansive; any fighting or other disorderly conduct that could be prevented without undue danger to the permittee, his employees, or patrons; any violation of the controlled substances, gambling, or prostitution statutes or any other unlawful acts; any conduct or entertainment by any person whose private parts are exposed or who is wearing transparent clothing that reveals the private parts; any lewd or obscene entertainment or conduct as defined by the rules of the commission.  There were a couple of others but these are just the ones I listed.



Chairman Moyer - AI=m glad you didn=t give us a total list.@


Angela Beeker - AThey would have embarrassed both you and me I=m afraid. The Board should receive notice of all permits granted.  You should receive notice of all permanent permits granted out in the county so I=m assuming you should get notice of this one as well.  Are there any questions about the ABC laws related to the special one-time permit?  OK, I=ll now move briefly into the question about liability for injuries to third parties that are caused by impaired drivers who have been served you know by a vendor.  There are three statutes that are relevant here.  All three by the way are part of the ABC laws.  The first is North Carolina General Statute 18B-303 which says it is a crime and this is for the one holding an ABC permit or an ABC store OK.  It=s a crime to knowingly sell or give alcohol to any person who is intoxicated.  Secondly 18B-302 says it=s a crime for anyone to sell or give wine - I should say alcohol - to any underage person regardless of whether or not they are intoxicated.  So the difference is if you=re an adult you have to be visibly intoxicated before it would be illegal for the person to sell you alcohol.  If you=re underage it doesn=t matter whether you=re visibly intoxicated or not, it would be a crime to give or sell alcohol to that person.  The third statute I mentioned briefly at the last meeting and that is chapter 18B Article 1A - it=s known as the dram shop act and what this does is create a statutory remedy for third parties who are injured due to an underage driver causing an accident while they are impaired.  It deals specifically with underage drivers and by it=s terms this particular act does not apply to one-time permit holders so this particular act would not apply to this particular event because it would be under a one-time permit.@


Chairman Moyer - ABut that=s only with respect to minors?@


Angela Beeker - AOnly with respect to minors, correct, under this act.  Now there are three ways generally to establish liability for this type of accident.  One would be just regular ole common law negligence, the second would be common negligence per se, and then the third is this dram shop act. There is no automatic liability of sellers for damages to third parties that are caused by impaired drivers that purchased alcohol from them.  Just because they sell alcohol to someone and that person goes out and causes an accident doesn=t mean that they are going to be liable.  There has to be some negligence on their part in doing that and in all of these dealing with adults there is a key element of whether they knew or should have known that the person was intoxicated, were they visibly intoxicated when they made the sale.  And the second part at least for the common law negligence  actions is whether it was likely that they might drive.  Now if you flip over to the next page maybe I can make that a little bit more clear.  Basically with a negligence action there are four elements:

C                  Duty

C                  Breach of duty

C                  Proximate Cause

C                  Damage

With respect to duty - case law says that a seller owes a duty to the general public not to serve one who is visibly intoxicated and is likely to drive.  OK, so the duty is pretty much there, if they=re visibly intoxicated and likely to drive.  Now there=s something called negligence per se that means if you violate a public safety statute like a criminal statute that=s for public safety then that duty is presumed so if they were to - if it could be proven that they violated that statute of serving alcohol to one - or selling alcohol to one who was visibly impaired then this duty is gonna be presumed, regardless of whether they were likely to drive or not.  There=s a little bit of a difference there.  If you can prove a violation of the statute it=s a little bit easier to prove.  The breach of the duty - if you sell alcohol to one who=s visibly intoxicated then I think that=s gonna be a breach of that duty, especially if it=s likely that they are gonna drive.  That sale has to be a proximate cause of an injury in order for them to be liable.  It has to be a contributing cause.  So those are the basic elements of  negligence.  Trying to put that into perspective for the Blue Ridge Bike Bash - it would mean that the sales would have to be made to people who were visibly intoxicated, it would have to be reasonable to assume that they were then going to drive and then they would have to negligently operate their vehicle and cause an accident in order for the promo - or the non-profit and also promoter to be liable.  Does that make sense.@


Commissioner Gordon - AThat=s the same as it is for any seller@


Angela Beeker - AThat=s the same as it is for anyone else@


Commissioner Gordon - AAny seller?@


Angela Beeker - AThat=s correct.  Now the dram shop action is a little bit different.  It just has to be - if you=re going under that act - it just has to be@


Chairman Moyer - AIt doesn=t apply@


Angela Beeker - ABut it doesn=t apply but I will say that the common law actions for ordinary common law negligence is available regardless of whether it=s a minor or not. OK if it=s a minor or adult it doesn=t matter they could be held liable to the same extent.  Just because this act doesn=t apply it has nothing to do with the common law ordinary action for negligence.  Any questions about that? With regards to input by the Board of Commissioners and the public generally there is no formal process for the public at large to have input but except using the telephone and writing letters and that kind of thing. With regard to the Board of Commissioners it is a little bit different.  Before a permanent retail permit is issued and I realize that=s not what we=re talking about here the Board receives a notice from the ABC Commission in which you=re asked to give input.  You can object basically.  You have 15 days.  And you got one of those with regard to the Elk=s Lodge I think last year.  No special notice is given to the Board for these one time permits however as I told you just a few minutes ago - if you wish to give input they will listen.  The Sheriff does get notice of all these one-time permits because he has to sign-off on the application that he has seen it.  There is something that I wasn=t aware of before I did this further research though and that is that the county can appoint an official to be kinda the official spokesperson of the county with regard to giving inputs in all of these situations.  It has to be done by resolution and sent to the ABC Commission and that=s never been done for Henderson County.  So if you wish to you could appoint by position preferably so that we wouldn=t have to change the Resolution if somebody left employment, somebody to speak on behalf - on your behalf with regards to these matters.  If there is a contested case hearing with regard to a permit that person would automatically have a right to participate.  Even if you didn=t appoint somebody you could still make a motion to intervene on the county=s behalf but it=s just you know I guess a little bit simpler if you have that person or that position named and they know it.  So that is an option that you have.  As I=ve already said no special procedures exist for public input. 


With regard to off-duty officers providing security, I spoke with Mr. Highsmith about this and the Sheriff has a policy to govern how off-duty deputies can provide private security for someone.  As I read his policy, officers that might provide security in this event that weren=t on the clock for the Sheriff would be doing what=s called special duty.  They would still be under the jurisdiction and control of the Sheriff.  They would still be acting as deputies. It just means that their salary would be paid by the third party and it=s my understanding - I could have this wrong - it=s my understanding that the Sheriff would select who would be eligible to do this type of private duty for this event.  If you have any other questions about that I would be happy to ask Mr. Hunt to come and talk to you directly about that.@


Chairman Moyer - ADon does that answer the questions that you raised?@


Commissioner Ward - AWell partially Mr. Chair.  It gives us a point of reference.  It still didn=t per se say how many deputies that he was gonna take.  He talked about 50 law enforcement.  I still didn=t know if they was gonna come from Henderson, Buncombe, Rutherfordton, or - or whatever so you know with the fourth of July was my main concern.@

Chairman Moyer - AYeah.  Good . . .@


Angela Beeker - AI know the Sheriff is aware of that because the Sheriff=s department met with Mr. Myron last week and they had these specific discussions and only to the extent that he has officers available would any be able to provide this off-duty or special duty assignment.  Mr. Highsmith made that very clear.@


Commissioner Gordon - ABut that - if a permit is applied for to DENR that=s got to be a part of the application - is getting all that straightened out and approved.@


Angela Beeker - ACorrect@


Commissioner Gordon - AAnd that has to be done before the permit will be issued, right?@


Angela Beeker - ACorrect.  He has to provide a detailed security plan that has to be signed off on by the Sheriff as a - one of the requirements of getting his State permit and as of Monday no application or information had been received by that State agency either with regard to this event, as of this past Monday.@


Chairman Moyer - AI think it=s very important with respect to this event - a lot of money is starting to be spent and a lot of anxiety of our citizens and other groups and we=re gonna start to be battling back and forth here to see this building up and I think we can no longer step back and not take - fail to take a position on this, particularly under this ordinance.  You put two things together.  We receive no special notice that - of this permit process going forward and this is an extremely important permit.  We=re talking about selling alcohol in a dry county through some type of rigged up non-profit entity and I think pursuant to this and it=s very very clear in here - we said before but we don=t have a role in this, well it=s very clear in what Mrs. Beeker has presented that the Board of Commissioners= input is a significant factor in whether this permit will be granted and I think we should go on record right now writing to the appropriate people opposing the granting of any application for this event to sell beer and a one-time permit for this event.  That=s@


Commissioner Gordon - AWell, I think you need to back up and think through just a minute because as this says - from what this says the Sheriff will be notified immediately before the application even goes in.  The Sheriff or law enforcement office has to sign that they=ve been notified and we could certainly make sure that the Sheriff notified us and I=m sure he would if that were to happen. It also says they=re not gonna issue the permit unless they hear - they=re gonna rely on our input before the State would make that decision. They=re gonna have to ask us.@


Angela Beeker - AIf you wish to - No, if you wish to give input they will listen.@


Commissioner Gordon - AI think we could be notified.@


Chairman Moyer - AMaybe.@


Commissioner Gordon - ABut I think the thing amusing is that - and I think what one memo that I saw pointed out was that if it=s sold it=s controlled.  If it=s not sold and these people are bringing in cases and coolers for beer then you could have more of a problem with excessive drinking than you would if - with it.  And I don=t - I think it=s a mute point, I don=t think this is going to be permitted to start with but I think that=s something you should weigh in before just jumping off and saying - so no right now and - when no permit=s even been applied for.@


Chairman Moyer - AWell but I - I think we should jump in and I think we should further - I understand your concern with respect to the alcohol permit but I think from a broader standpoint this Board should take a position against having the event where it=s sited to be located. I think it=s the wrong site.  You look at the ingress and egress and you look at the potential for flooding and the residential areas around there.  I think it is the wrong site and I think it=s - we should be willing to step up and take a position, a strong position against any permit for this event.  So I would do both of them at the same time.@

Commissioner Ward - AAs you well know Mr. Chair, I went to Daytona.  Going to Florida and I stopped back in Daytona.  Luckily I=ve served on the Board long enough I made some contacts through other County Commissioners and City Officials and I spoke to one of them down there and they plan - it=s next week-end to be exact - is Bike Week in Daytona.  And I spoke to George, a Commissioner down there and he said that they plan three to four weeks in advance for the bike.  They have everything scheduled.  They even go as far as the Sheriff to divide up if they see more than ten motorcycles riding into Dayton, they stop em and turn em back.  They are prepared for this. To be a first time event in Henderson County I don=t think we=re prepared.  The location - I will agree is not the right location.  They will speak to me - I talked to some of my friends that live eight blocks from downtown Daytona.  They said when they crank up their motorcycles, and I=ve been there and that was probably one of my motorcycles that cranked up, everybody wants to raise that motor and you saw em up on Main Street stop it, he said it vibrates the windows eight blocks away.  I feel sorry for the people that=s on Misty Lane.  I know the area.  We=re gonna have a fourth of July celebration at Etowah Park and I think we=ve forgot that we=re in the middle of tearing down the old Etowah School and we=re gonna have dump trucks working, probably the fourth of July because it=s gonna be a tight schedule by talking to Mr. Barnwell.  And we=re gonna have construction going out that way.  If nothing else I would say write a letter to the State opposing to the site.  Dry county and my religious preferences - I think - our forefathers stated that we wanted to be dry and I will uphold to that but - it=s like Marilyn said - they have events down there, they scrutinize and they allow the sell but - of beer because they can control it.  He said if you let em brown bag it gets out of hand and it just puts more jeopardy on the deputies and the State Troopers.@


Commissioner Gordon - AAnd more likely to have people driving to town to buy the stuff.@


Commissioner Ward - ACause there=s no designated driver on a motorcycle.  You=re either driving or you=re riding and you surely don=t want somebody that=s drunk on the back of the motorcycle when you=re trying to drive.  So that was one of the key things right there.  They said with the ABC you can permit it.  It would be the best thing to do but after explaining to one of them and he=s been up in here in this part of the country and I told him it was in Etowah, next to the park.  He knew where the park was and he said that was a totally wrong location.  They=re gonna have a 160,000 bikers at Daytona this week and 30,000 they don=t that we can get 30,000 for a first time event.  He said you=ll be lucky to get 5,000 to 10,000.@


Commissioner Gordon - AThat=s what I=ve been told to and I think we need to - we need to I think reiterate for the people who did not see our public comment this morning that we had people from that immediate area who would, according to the State Law have to sign a notarized permission to allow this to happen who stated that they will not sign it.  So I think we=re spending an awful lot of time and effort on something that is really a dead horse.  I don=t see how in the world, if the State rules are enforced anything can happen and I think the State rules will be enforced.@


Commissioner Ward - AAnd I agree to you to a point but I think if we don=t step forward now and  show some leadership, through the Chair and work with this promoter - I think the Honda Hoot was great in Henderson County, Shroders, Dale Maxwell - they benefitted.  The local business people benefitted, the hotels benefitted from the Honda Hoot.  I mean you can tell when it was in cause from John Deere on into town the only thing you saw was Hondas, the gold wings.  And you know everybody was implying  to Harleys but the goldwing people=s gonna come to these events too.  I think we need to encourage them to come to Henderson County or Buncombe or Haywood because sales tax is divided but also we need to promote it in the right location, Ag. Center would have been a perfect for this.  The Honda Hoot was there.  I think we need some kind of event up there to give us a surge and I think we need to help him, if not county step in it, to the front somewhere and try to promote this where it is a successful event and it=s not showing a bad taste to our citizens.  I wouldn=t want to live up there knowing you know people will raise the motorcycle motors and - it - the vibration and I mean we might as well - the gentleman said you might as well take a four day vacation while that was there.@


Commissioner Gordon - AWell I think we=re all in agreement that we don=t think that this is the best location for this to happen.  What concerns me is that we be careful about how this comes across, that it doesn=t become that - I think what you=re saying is very positive.  Because I=ve seen too many letters to the editor that make this - well this is the retirees fighting - running this off and it=s the local people and it=s them against us and that=s not the way this should be played out.  It has to be based on this particular location with this many people and I think the state statute addresses it very well and I think the state statute essentially makes it impossible for it to happen in that location.  But if you think it will make you feel better to say well we don=t think this is a good location under some sort of a resolution, that=s fine.  I have no problem with that but don=t make it a yes or no on the bike bash because I think as Don says there are ways that some sort of a biker rally or event could be very well received in the community, if it were in the right location and handled up front through the right channels.@


Chairman Moyer - ACommissioner Messer?@


Commissioner Messer - AWell I kinda basically agree with a lot of stuff that Don says other than the matter of fact that I don=t think that we can compare Daytona Beach to a bike bash in Etowah and you know the recreation department like you or someone stated earlier has a plan for some tournaments and etc. up there and you know I=ve been out there and you know been over and talked to the - to Mr. Myers and really what I=ve got a problem - first of all I think that the numbers have been inflated big time.  You know I would say 5,000 or 6,000 or maybe 10,000 max and the timing has a lot to do with it because it is the fourth of July.  People have plans, etc. and etc. but I think that we need to take a stand on the location, that we are not against bikes and all this stuff with bikers against you know certain groups or certain people and etc.  I don=t think is right. I do not approve of that and I would not take a stand on those standards but I do think that that is definitely the wrong location for the site and just like Marilyn stated our Sheriff has got all these rules and regulations pertaining to alcohol and if they was to have the bike bash the big thing is I don=t think that they would be able to sell alcohol there - just like Marilyn stated.  People would be bringing it in by large amounts and probably consuming a lot of it and then a lot of the question is that our attorney tried to answer - I think would be - you know there would be a lot of questions there.  If something was to happen then it would be a judge=s decision to make those decisions and we could still be liable to an extent down the road if something like - you know if something did happen.  But I really think that that is a bad location and personally I would like to see something else come back to Western North Carolina containing bicy- or really whether it be the Honda Hoot, the Har - you know some kind of Harley rally or whatever.  Those people do spend a lot of money and they do leave a lot of revenue in Western North Carolina, not only Henderson County but you know I=ve got a little business and you know I sit there every Sunday afternoon and see a lot of business going to Lake Lure - you know some days 200 bikes - I mean 200 motorcycles and they=re not all Harleys, they=re not all Hondas or whatever.  You know it doesn=t matter but I think that the one big image out there is everybody that rides a Harley Davidson is a bad person and that=s not right.  You know but the location of that one of the bash in Etowah - up that one road - I couldn=t go along with it you know. And I=m willing to stand on those conditions that that one site I don=t think is appropriate for that  - for the bike bash. @


Commissioner Gordon - AWhy don=t we send a letter to Mr. Pennington that states our concerns about the site itself in the event a permit application should come in.  At this point he has no permit application so it=s - but we could certainly do that.@


Chairman Moyer - AWell I would like to make it stronger and I would move that we send a letter to Mr. Pennington opposing having a bike bash at that site for the reasons we have articulated with respect to access, flood plain, noise, proximity of the park, etc. and make it clear in that letter and in the resolution that we are not opposed to the bike bash and further that we worked - would like to work with the promoter to find a suitable site but that this is not the site for that and that we are going to oppose the - a granting of an alcohol permit on that site because of it being a dry county.@


Commissioner Gordon - AWhy don=t we - since Grady isn=t here this afternoon and since there=s no permit that=s been applied for at this point in time - why don=t you draft that resolution and bring it back at our next meeting so that we can all look at what we=re saying before we vote on it?@


Commissioner Messer - AYou know something else that - I think there=s a lack of communication because just like our people spoke this morning about going on the web site and reading - you know reading stuff from this bike bash and who=s to say that that=s right - I mean if a man=s going to have or promote a bike bash he should be - you know he probably should be allowed to go on the Internet or do whatever he=s got to do but I personally think that there=s some bad communication because there seems to be people putting you know things in place that have - you know just like Angie said that this gentleman hasn=t even applied for an alcohol permit yet even though we=re kinda I guess ahead of the game and which really I think we should be.  But you know I agree with Mr. Moyer.  I think we need to take a strong stand against that location and against that location only.  If the promoter and anyone from Western Carolina comes back to us with another site such as the Ag. Center or whatever then we would do what we could do to make it happen.@


Commissioner Gordon - A Well I - I would like to see it in writing before we send it.  I think that=s something we should@


Chairman Moyer - AWell I can bring the wording back but the motion is on the floor so, Don@


Commissioner Ward - AWell I agree Mr. Chair, I think we need to take a strong stand against the location.  But I - we need to see the resolution.  I=d like to have Commissioner Hawkins here to make it a full Board without a doubt.  His presence and some of his language is - is as we saw is forthcoming in some of our decisions but I also think that time is the essence for all sites - Mr. Myers especially - I mean he=s got - evidently the way I understand it a million dollar event that he=s trying to pull off and if you haven=t got one location he needs to start looking for another location.  I think a letter to him would be most appropriate stating some of the reasons that you said.@


Chairman Moyer - AHe=s also out lining up non-profits to be - and if we=re not going to - if we=re gonna oppose this I think you ought to be clear and we ought to be on record opposing it.@


Commissioner Ward - AI=ve always said we need to be up front with everybody and I think a letter to him immediately should be - should occur@


Commissioner Gordon - AMaybe we need to ask him if he=s even going to apply for a permit to hold one at that site in Etowah cause it=s looking like he=s not going to.@


Commissioner Ward - AWe should definitely let him know our intent - our intent and as Angie has  stated you know we have a great deal of input with ABC and with the mass gathering.@


Commissioner Gordon - ABut if you get back to that 1,500 foot rule where every resident within 1500 feet has to sign a written statement that agree with this, there is no way the property can comply so I think we need to ask him@


Chairman Moyer - A . . . behind that Marilyn. We should be taking a leadership role on this. We=re the elected body in this and we=re not going to take a position.@


Commissioner Gordon - ALook, I=m not going to argue that point with you.  I=m telling you that I don=t think it=s a good location.  I said that.  I=ve also said that we need to be careful that we don=t make this a them against us thing and that we don=t jump the gun when you=re looking at the state statutes that say specifically that this isn=t going to happen.@


Chairman Moyer - AWell@


Commissioner Messer - AWell I really don=t think that we=re jumping the gun Marilyn.  I think we=re  - you know I think we=re taking a stand against that location and against that location only and maybe that might be the best thing.  Just like I stated awhile ago, communication could be a big impact in this.  Maybe going back to Mr. Myers and see what his initial plans are, if this is a bad location which apparently it is.  And you know I think@


Commissioner Gordon - AWe were told this morning he was looking for another site.@


Commissioner Ward - ABut that=s all hearsay.@

Commissioner Gordon - AI know, but that=s what I=m saying.  We need to ask him and we need to have whatever it is we=re going to approve in writing before we approve it.  We can certainly say go ahead and draft it up but I don=t think that we should pass on something that we haven=t put in writing.@


Chairman Moyer - AWell I think we - most of our motions aren=t in writing when we act on em.  The motion is very clear to be on record that we think this is the wrong site for this location and that we go on record opposing the issuance of a permit by the ABC for this event.  I think that=s very straight forward and clear.  You don=t need to see any wording.  If you want to add@


Commissioner Gordon - AI thought the original motion was to send a letter to the State and I think that would be in writing so which is your motion?@


Chairman Moyer - AI=ll bring the letter back but the motion is that we send a letter.  I=ll bring the letter back for review but I want the motion acted on that we approve sending a letter for the following reasons and that we send a letter opposing the issuance of the ABC permit.@


Commissioner Ward - AI think you need to state for public welfare and safety at the location at Etowah.  I think that should be the grounds.@


Commissioner Gordon - ABut we will have the opportunity to review the wording of the letter before it goes?@


Chairman Moyer - AYes, before it goes, that=s right.@


Commissioner Gordon - AThat=s what I=m asking for.@


Chairman Moyer - AAnd if - let=s do it as a second step.  All in favor of that motion say aye.@


AAye@ in unison, unanimous.


Chairman Moyer - AIs that@


Commissioner Gordon - AI voted for it.  I told you I would.@


Chairman Moyer - ANow would you like me - and I want all the Board clear on this - would you like me to have discussions with Mr. Myron with respect to the feeling of the Board and see if there=s - with respect to our concerns and what we can work out with respect to possibly other sites or other ways to deal with it.@


Commissioner Ward - AOh yes, I think that=s a - that=s a good step forward.@


Chairman Moyer - AOK@


Commissioner Gordon - AAbsolutely.@


Commissioner Messer - ARight and just like I stated earlier, I have talked to him a couple - a month or so ago and I think he=s kinda looking for one of us to come out - or our leader to come out and kinda talk to him on certain issues that maybe we can help him with down the road.@


Chairman Moyer - AAlright, anything else on?@


Commissioner Ward - AI don=t want to be the non-profit though.@


Chairman Moyer - ANo, I could put my horse farm . . .  alright.   Next item@


Economic Development Matter

Scott Hamilton from the Committee of 100 of the Greater Hendersonville Chamber of Commerce  thanked the Board for their support this morning for adopting the incentive package for Borg Warner, a good project and a good company. 


Mr. Hamilton requested the Board set a public hearing for March 11, 2002 at 7:00 p.m. to consider economic development incentives for Arvin Meritor.  Arvin Meritor is considering expansion. Their projected investment would be around $22 million. He requested that the Board consider at a public hearing an economic development incentive reimbursement package in the amount of $440,000 payable over a five year period which is consistent with the economic development guidelines the Board adopted.  30 retained jobs are tied to this project.


Following some discussion, Commissioner Gordon made the motion to set a public hearing for March 11 at 7:00 p.m. for the purpose of considering of economic development package for Meritor.  All voted in favor and the motion carried.


Mr. Hamilton stated that this couldn=t be done without support of the Board.  This Board is very supportive of it=s local industry.  Local industry is certainly appreciative of it.  All of the jobs that we=ve created here recently in Henderson County have come from our existing work force.  It=s easier to keep an existing industry than it is to go out and attract a new one.  Being proactive in economic development has brought good jobs to this community.


Chairman Announcement

Chairman Moyer introduced John Rich, a reporter from the Asheville Citizen Times.  This is the first time he has been with us.


Update on Housing Programs

David Nicholson had distributed to the Board a letter that we received from the State of North Carolina indicating that they would not allow us to utilize the funds that we were not going to use for the Habitat Community Development Project for the HomeAid Project at the Village of King Creek. They indicated in the letter that it did not meet the activity associated with the grant.  Mr. Nicholson felt it would be appropriate if the Commissioners authorized the Chairman to write the State and ask them what specific standards we didn=t meet.  In conversations that Mr. Nicholson and Ms. Coffey had with individuals of the State, it was indicated that they thought this would not be a major issue.  Mr. Nicholson felt the Chairman should write a letter just to clarify what the issues were for the reason this was not funded. 


Commissioner Ward made the motion to authorize the Chairman to write a letter as requested by the County Manager.  All voted in favor and the motion carried.


David Nicholson also reminded the Board that two years ago the Board authorized the beginning of a Home Buyer Assistance Program using the Home Funds.  Henderson County has used $25,000 of  our Home Funds as well as $25,000 of the City Home Funds.  We have completed five closings for persons who met the low income standards to get them into homes.  Of that we=ve only spent about $15,000.  That project is slated to end in March.  It is a two year grant.  We have $35,000 remaining in that project. 


Staff recommended that Henderson County ask for an extension of this project by one year and to  continue to put aside $12,000 for the Home Buyer Participant Program and that the balance possibly be used to help fund the difference in the two projects we=ve requested Home Funds for this year.  This would keep the money in projects in Henderson County.  It would require a letter from the Board supporting the recommendation.


Commissioner Gordon made the motion to authorize a request for an extension of the Home Buyers Assistance Program for one year and transfer of approximately $12,000 with the remainder to revert to other in-county projects. All voted in favor and the motion carried.  


Chairman Announcement

Chairman Moyer stated that we were fortunate to have Sherrill Barber of WLOS TV, Channel 13, present at the meeting. 



Carey McLelland informed the Board that out of 10 financial institutions receiving the County=s Request for Proposal (RFP) to finance the construction and renovation of certain middle school projects, only BB&T Governmental Finance submitted a responsive proposal.  Their proposal is to finance the $9.1 million loan for a 15-year term at a nonbank-qualified rate of 5.59% annually.  Nonbank-qualified meaning the County anticipates that it will be issuing more than $10 million in installment contract debt this calendar year. The construction project is for Flat Rock Middle School, Rugby Middle School, and Hendersonville Middle School.


Staff presented a resolution to the Board for consideration concerning the proposed installment contract financing.  First, the resolution sets a public hearing, which is required for the proposed installment contract financing, on the draft financing documents.  Staff recommended the public hearing be scheduled for the Board=s regularly scheduled meeting on March 11, 2002 at 7:00 p.m. and that the Clerk be directed to prepare an advertisement of such public hearing.  Second, the resolution authorizes the filing of an application with the Local Government Commission, which is also required, to approve the financing.  Draft financing documents were distributed and reviewed.  Staff will bring back the final financing documents for the Board=s review and approval after the public hearing. 


The County Manager recommended the following to the Board for action:


1. Award financing to BB&T Governmental Finance at the proposed rate of 5.59 percent for 15 years for the construction and renovation of facilities located at Hendersonville Middle, Flat Rock Middle and Rugby Middle Schools.


2. Approve the resolution to set a public hearing on the financing documents for the Board=s March 11th meeting at 7:00 p.m. and authorize staff to file an application with the Local Government Commission (LGC) to seek approval of the financing.


Angela Beeker stated that the funds would be used for construction and renovation of Flat Rock Middle School, Rugby Middle School, and Hendersonville Middle School but only Flat Rock Middle School and Rugby Middle School will be collateral for this financing and maybe only one of them.  Hendersonville Middle School will be collateral for the QZAB financing (the next item on the agenda).


Following discussion, Commissioner Ward made the motion to award financing to BB&T Governmental Finance at the proposed rate of 5.59% for 15 years for the construction and renovation of facilities located at Hendersonville Middle, Flat Rock Middle, and Rugby Middle Schools.  All voted in favor and the motion carried.


Chairman Moyer made the motion to set a public hearing on the financing for March 11 at 7:00 p.m. and authorize staff to file an application with the Local Government Commission to seek approval of the financing. All voted in favor and the motion carried.


HENDERSONVILLE MIDDLE SCHOOLS - Qualified Zone Academy Bond (QZAB) Financing

Carey McLelland reminded the Board that Henderson County has been authorized to issue $3 million in Qualified Zone Academy Bonds (QZABs) for renovations and repairs at Hendersonville Middle School.  These bonds must be issued by December 31, 2002 and currently have a 13-year term.  A packet of information provided by the LGC was presented for the Board=s review.


Carey McLelland explained that QZABs are taxable bonds issued by state or local governments.  They are authorized to be issued by the Federal Government to finance school improvements.  The County, in our case, would issue $3 million.  The Bank would be the holder of those bonds and the County would make an annual payment (on the anniversary date of the closing) on the principle only to a sinking fund.  Those funds would earn interest over the 13 year period at a locked rate of 5.4% until the 13th year and then we would take $3 million and pay off the QZABs (loan) to the bank. The fund would actually earn $3,147,000.  At that rate we would certainly be able to cover the difference between our total payments and the $3 million.  If we had to finance this $3 million through an installment purchase contract, it would cost us just over $2 million dollars more.  The bank holding the QZABs will get a tax credit on the par value or the amount of the bonds outstanding on an annual basis. 


Two financial institutions responded to the County=s Request for Proposal (RFP) to finance renovations to Hendersonville Middle School through an installment financing loan agreement by issuing QZABs which will qualify for tax credits to the bank under Section 1397E of the Internal Revenue Code of 1986.  The proposal from Bank of America has been certified as the lowest responsive proposal resulting in the lowest net cost to the County taking into account the issuance costs and investment earnings at the stated investment rate on the principal payments made by the County.  Their proposal is for the County to make annual principal payments of $164,363 over the 13-year term for a total of $2,100,000.  The debt issue is net-funded meaning the difference between the $3 million par and the total principal payments would be offset by interest earnings on the principal payments.  Bank of America has proposed that these principal payments would be placed in an account earning interest at a rate of 5.4% annually.  All costs associated with the review of the documentation for this transaction by the bank legal counsel would be capped at $10,000.


Staff presented a resolution to the Board for consideration concerning the proposed installment contract financing.  First, the resolution sets a public hearing, which is required for the proposed installment contract financing, on the draft financing documents.  Staff recommended that the public hearing be scheduled for the Board=s regularly scheduled meeting on March 11, 2002 at 7:00 p.m. and that the Clerk be directed to prepare an advertisement of such public hearing.  Second, the resolution authorizes the filing of an application with the Local Government Commission which is also required to approve the financing. Draft financing documents were not available for agenda preparation but were distributed to the Board for review.  Staff will bring back the final financing documents for the Board=s review and approval after the public hearing.


Following discussion, Commissioner Ward made the motion to award the QZAB financing for Hendersonville Middle School to Bank of America at the proposed annual installment principal payment of $164,363 for the 13 year term into an account proposed to earn 5.4% interest annually and including bank legal costs not to exceed $10,000.  All voted in favor and the motion carried.


Commissioner Gordon made the motion to approve the resolution to set a public hearing on the financing documents for the Board=s March 11th meeting at 7:00 p.m. and authorize staff to file an application with the Local Government Commission to seek approval of the financing. All voted in favor and the motion carried.


OKLAWAHA TRAIL/GREENWAYS - add-on by Commissioner Hawkins

Chairman Moyer pulled this item as Commissioner Hawkins was not present to discuss it.


DEPARTMENT OF PUBLIC HEALTH -add-on by Commissioner Gordon

re: Location of Animal Shelter

Commissioner Gordon had shared with the Board a memo from the Board of Health concerning a location for the animal shelter.  Commissioner Ward had made a suggestion on considering two sites at the landfill area, one being the house and property immediately adjacent to the bus garage and the second the Trace Barn at the back of the landfill property.  The Board went out as a body and visited both sites as well as the current facility.  Their long-term vision for the Animal Shelter in Henderson County includes having Animal Services more comprehensive than a shelter operation.  The Board of Health would like a location where numerous objectives could be met (nine were listed).  In considering the objectives, the Henderson County Board of Health was unanimous in favoring the valley house site as meeting the needs better than the Trace Barn site.



Chairman Moyer stated that he was reluctant to set any new dates with Commissioner Hawkins absent.


Chairman Moyer had asked Karen Smith and David Nicholson to come forth with a schedule of three or four sessions reasonably spread apart for working on the Zoning Ordinance Rewrite so that we would have a definite plan for that.   We also will need a set of dates for budget deliberations and integrate the two sets of dates.  Mr. Moyer=s plan was to wait until the March 11 meeting to begin to set those dates.  There is also a need for a Greenways workshop.  Chairman Moyer asked staff to come to the March 11 meeting with suggested dates for these items.


Commissioner Ward stated that he would be out of town April 18 through 25.


Set a Public Hearing

David Nicholson reminded the Board that annually we have a public hearing on the Rural Operating Assistance Program (ROAP) which is the general transportation program we=ve operated in the community for some time.  He recommended the Board set a public hearing on the ROAP and the Discretionary Rule General Public Program applications for March 20 at 11:00 a.m.  Commissioner Messer so moved.  All voted in favor and the motion carried.


There being no further business to come before the Board, Commissioner Messer made the motion to adjourn at 3:35 p.m.  All voted in favor and the motion carried.





                                                                                                                                                              Elizabeth W. Corn, Clerk to the Board                     


William L. Moyer, Chairman