STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS
COUNTY OF HENDERSON SEPTEMBER 18, 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 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, Finance Director J. Carey McLelland, Assistant to the Manager Selena Coffey, Public Information Officer Chris S. Coulson, County Engineer Gary Tweed, Fire Marshal/Emergency Management Coordinator Rocky Hyder, and Property Addressing Technician Curtis Griffin.
Absent were: Commissioner Hawkins and Deputy Clerk to the Board/Volunteer Coordinator Amy Brantley.
CALL TO ORDER/WELCOME
Chairman Moyer called the meeting to order and welcomed all in attendance.
PLEDGE OF ALLEGIANCE
Commissioner Gordon led the Pledge of Allegiance to the American Flag.
Rev. Gus Martschink, Pardee Hospital Chaplaincy Program, gave the invocation.
DISCUSSION/ADJUSTMENT OF AGENDA
Commissioner Ward asked to add one closed session item to discuss a personnel item.
David Nicholson asked to add one item to the consent agenda - School System - Sale of a Vocational House. He had distributed the information in the Commissioners’ mailboxes yesterday.
The Board will also be asked to set a public hearing on Mills River Environmental Assessment under Important Dates.
Chairman Moyer made the motion to approve the revised agenda. All voted in favor and the motion carried.
Item AG” was pulled - Resolution honoring Hugh Randall. Commissioner Gordon read it in its entirety. The resolution is attached hereto and incorporated as a part of the minutes.
Commissioner Ward made the motion to approve the consent agenda including AG” (resolution) and AH” (the add-on). All voted in favor and the motion carried. The remainder of the consent agenda included the following:
Minutes were presented for Board review and approval of the following meetings:
August 21, 2002, regular meeting
September 4, 2002, special called meeting
Tax Collector’s Report
Terry F. Lyda, Tax Collector, had provided the Tax Collector’s Report dated September 6 as well as one dated September 16 for the Board’s information.
Petition for addition to State Road system
Staff had received one road petition for addition to the State Road system for Mountain Ash Circle.
It has been the practice of this Board to accept road petitions and forward them to NC Department of Transportation for their review. It has also been the practice of the Board not to ask NC DOT to change the priority for roads on the paving priority list.
Tax Refund Requests
A list of six refund requests was presented for approval by the County Commissioners. The requests had been reviewed by the County Assessor and he found them to be in order.
Tax Release Requests
A list of fifteen release requests was presented for approval by the County Commissioners. The requests had been reviewed by the County Assessor and he found them to be in order.
Revised Request for Improvement Guarantee for Portions of Oleta Falls
On July 8, 2002, the Board of Commissioners approved a draft Performance Guarantee Agreement for a revised request for an improvement guarantee submitted by Waterside Properties, LLC. Waterside Properties proposed posting a total of $107,740.00 with Henderson County to cover the costs of alleviating a curve radius problem and to make shoulder improvements in various sections in Phase II of Oleta Falls.
Mr. Paul Dunnavant of Waterside Properties contacted the Planning Director on August 5, 2002, about language in the July 8, 2002 Agreement. He was not comfortable signing the Agreement as he felt that Paragraph 1 (following the Awhereas” clauses) limited Waterside Properties to complying with the road standards as shown on the Master and Development Plan approved in April of 2000 and that it would not allow Waterside Properties the opportunity to comply with proposed amendments to the Subdivision Ordinance which may reduce the standards for curve radius and shoulder widths. The Board of Commissioners has scheduled a public hearing on such amendments for October 7, 2002.
To date, neither Waterside Properties nor the County has executed the July 8, 2002 Agreement. At the request of Mr. Dunnavant, Staff had prepared a draft of a new agreement for the Board’s consideration which contains revised language intended to address Mr. Dunnavant’s concerns. Specifically, the significant changes include: (1) adding the final Awhereas” clause shown in the revised draft Agreement to refer to the proposed amendments to the Subdivision Ordinance and (2) revising paragraph 1 to allow the Developer the ability to complete the required improvements in accordance with applicable standards in the Subdivision Ordinance if such standards are reduced (through amendments approved by the Board of Commissioners) provided the Developer follows certain procedures for amending its Master and Development Plans and revises its cost estimate for the improvement guarantee. Mr. Dunnavant had discussed the draft Agreement with staff and was comfortable with its language.
Mr. Nicholson recommended that the Board approve the revised Performance Guarantee Agreement for Oleta Falls as presented unless the Board agrees to further modify language in the Agreement based on comments from Waterside Properties.
The Board of Public Education requested that the Commissioners approve the sale of a home built through their vocational education program. The School Board must first offer any property considered as surplus to the County before selling it.
Mr. Nicholson knew of no interest on behalf of the County for this property and recommended that the Commissioners approve the sale of this property by the Board of Education.
Notification of Vacancies
The Board was notified of the following vacancies which will appear for nominations at the next meeting:
1. Community Child Protection Team - 6 vac.
2. Nursing/Adult Care Home Community Advisory Committee - 1 vac.
Chairman Moyer reminded the Board of the following vacancies and opened the floor to nominations:
1. Equalization and Review - 1 vac.
There were no nominations at this time so this item was rolled to the next meeting.
2. Nursing/Adult Care Home Community Advisory Committee - 1 vac.
There were no nominations at this time so this item was rolled to the next meeting.
3. Zoning Board of Adjustment, Hendersonville City - 1 vac.
There were no nominations at this time so this item was rolled to the next meeting.
4. Zoning Board of Adjustment, Fletcher - 1 vac.
There were no nominations at this time so this item was rolled to the next meeting.
5. Transportation Advisory Committee - 1 vac.
There were no nominations at this time so this item was rolled to the next meeting.
ADOPTION OF THE 2003 SCHEDULE OF RULES, STANDARDS, AND VALUES AND THE 2003 PRESENT-USE VALUE SCHEDULES
Henderson County Assessor, Eddie Mitchum, came forward and asked the Board to adopt the 2003 Schedule of Rules, Standards, and Values and the 2003 Present-Use Value Schedules.
The Schedule of Values had been presented to the Board at an earlier meeting. They had advertised that it was open for public inspection. A copy was placed in the library and it was published on the Internet. The next phase is to get the schedule adopted.
Angela Beeker reminded the Board that Legislation is pending that would amend some of the verbiage in the Use Value Statutes. She suggested the Board might want to delay adopting the Use Value Schedule until the next meeting to see if the legislation passes. It has passed both Houses, the second House made some amendments that have gone back to the original House for concurrence.
Stan Duncan was present from the Department of Revenue, Property Tax Division. He came forward to address that issue. That Bill has gone through the concurrence phase and the revision was accepted by the first House so it is on track. Yesterday afternoon there had been no action but he was expecting action this week. He suggested the Board consider adding language into the document stating that these schedules will reflect any future changes as made effected by the General Assembly. You adopt schedules this year for next year but if there is a change in the General Assembly that effects property taxes next year we would follow that. He also suggested that the Board adopt the schedules under two separate motions so if there is a challenge on one set of the schedules it would not hold up the other schedule.
Chairman Moyer made the motion to adopt the”Order Adopting the Market Value Schedule of Values” with the amendment to the schedules as presented - that they would reflect any changes made in the law that would be applicable. A vote was taken and the motion passed three to one with
Commissioner Ward voting nay.
Chairman Moyer made the motion to adopt the “Order Adopting the Use Value Schedule of Values”
with the amendment to the schedules as presented - that they would reflect any changes made in the law that would be applicable. A vote was taken and the motion passed three to one with Commissioner Ward voting nay.
ANIMAL CONTROL ENFORCEMENT
Angela Beeker reminded the Board that the County has received a request from the City of Hendersonville to enforce the County’s Animal Control Ordinance within the City limits. The City Council passed a resolution giving the County this authority.
A couple of months ago a concern was raised by the Legal Department with the Health Department that they did not believe the County had legal jurisdiction to enforce the County’s Animal Control Ordinance within the City of Hendersonville. This issue came before the Board and the Board authorized that an interlocal agreement be entered to fix the problem temporarily by agreeing to assist the City with the enforcement of their own Ordinance. Until the City gives permission to the County to enforce the County’s Ordinance in the City, the County’s Ordinance does not apply. At that time that was the limit that we could do for the City. This has gone before City Council this past month and City Council did not like the idea of a contract. The City Council felt that they were not being treated the same as the other municipalities and would like to be. Ms. Beeker stated that we don’t have an agreement like that with the other municipalities. So City Council passed a Resolution requesting the County to enforce the County’s Animal Control Ordinance within the City limits.
Ms. Beeker stated that if the Board chooses, they can vote to make the Animal Control Ordinance effective within the City limits and then our Animal Control Officers would be providing animal control services per the County’s Ordinance only within the City’s jurisdiction. The County Animal Control Officers would not have jurisdiction to enforce the City’s Ordinance.
Much discussion followed.
Mr. Nicholson stated that within the next couple of weeks he expects to receive a new Animal Services Ordinance from the Health Department which could affect some of these discussions.
Ms. Beeker stated that there seems to be some disagreement among the City and the County as to whether the municipalities could basically force the County to make its Ordinance effective within the City. With regard to the new Ordinance the Board will soon receive for review and consideration, it seems that it would be a good time to evaluate the level of service the Board wishes to provide to the municipalities across the Board. It was Ms. Beeker’s opinion that they cannot force the County to enforce its Ordinance within their jurisdiction, they have to give permission first and then the Board makes the decision to do so. If the Board chooses to approve the Resolution from the City today Ms. Beeker advised that it be limited to the current Ordinance that is in place now.
Commissioner Gordon explained that this fundamentally has to do with the level of service that a municipality or a county is expected to provide. The Statute does not require a county to provide any level of service on animal control, it is something that is done by choice. She stated that it is not uncommon for municipalities to have their own responsibility for animal control within their limits and to contract with counties.
Chairman Moyer made the motion that the Board send a letter to the City of Hendersonville stating that we will enforce our current Animal Control Ordinance but we are studying a new Ordinance and this agreement will terminate upon the adoption of a new Ordinance. A vote was taken and the motion passed unanimously.
Commissioner Gordon sits on the Board of Health and in that capacity stated that there has been a substantial amount of money bequeathed to the Animal Control department. Details are not known at this time but they hope to get going on a new facility.
Mr. Nicholson asked the Board to allow him to put a working committee back together to study the issue of construction of an Animal Shelter. It was the consensus of the Board for Mr. Nicholson to proceed.
PROPERTY ADDRESSING APPEAL - Quasi-Judicial Proceeding
Chairman Moyer stated that we have an appeal from a decision with respect to addressing. Under our rules this is handled as a quasi-judicial proceeding unless the appellant waives his right to a quasi-judicial proceeding.
Designation of Parties to the proceeding: Rocky Hyder
Neil Van Syckle
Joan Van Syckle
Pursuant to Section 142-7 of the Henderson County Code, the property owners of 178 Schoolhouse Road were appealing the proposed change to 45 Libbey Lane. The affected property is located on the corner of Schoolhouse Road and Libbey Lane in the Mills River community.
No one else expressed an interest in being a party to the proceeding.
Neil and Joan Van Syckle, appellants, waived their right to a quasi-judicial proceeding. Therefore, it will be a more informal proceeding.
Rocky Hyder explained that the general area is off Schoolhouse House which is very close to Hwy. 280 or Boylston Highway. Under Section 142-17 the appellants are appealing the decision of staff to change their address from 178 Schoolhouse Road to 45 Libbey Lane. The appellants’ house is the first house on the left on Libbey Lane. Mr. Hyder called attention to two photographs with figure one being a picture from Schoolhouse Road looking down Libbey Lane. He pointed out the residence on the picture. Figure two or the lower picture was a picture of the residence from Schoolhouse Road. These two pictures constituted Exhibit A. Mr. Hyder’s Exhibit B was a map which demonstrated that there are more than three particular houses located on Libbey Lane. He then presented an aerial photograph of the area showing the residence in question and more. He pointed out the requirements of the Henderson County Property Addressing Ordinance; 142-7(e) states that we must name roads with three or more houses. Section 142-13(c) states that property addresses for corner-lot properties shall be determined by where the driveway entrance meets the street. From staff’s perspective the driveway to this residence comes off Libbey Lane, not off Schoolhouse Road.
Neil VanSyckle stated that he maintains the driveway on both sides, as he always has. He cuts the shrubbery, fills any potholes, etc. The VanSyckle’s did not see the reason to change the address to a place when nothing has changed. He contends that they are not on Libbey Lane but they are on their driveway. He feels that their driveway comes off Schoolhouse Road and an extension of their driveway serves the homes in back of them. He stated later that they feel Libbey Lane should begin at the south border of their property or rather to serve the homes behind them.
Mr. VanSyckle had submitted a letter with his appeal to the Board dated July 11 which will be made part of the record.
Angela Beeker referred the Board to the definition of “driveway” in the ordinance. She also reminded the Board that anything they do today could be setting a precedent as interpretation of the ordinance. She advised the Board that in interpreting what a driveway is they would be making local law.
Mr. VanSyckle had eluded to a hardship for his daughter and was asked to elaborate on that. Mr. VanSyckle stated that in addition to her regular job she writes. Numerous publishing companies have her current address and she has professional letterhead, etc. He stated that it would be a hardship to have to replace letterhead and to contact all her correspondence about a new address.
Ms. Beeker stated that it is the Board’s job to determine the facts and interpret the ordinance. It appears to her as the situation is currently that the piece that meets the definition of driveway is the short piece from Libbey Lane to the house.
Commissioner Ward made the motion for the Board to go out of this hearing. All voted in favor and the motion carried.
Chairman Moyer made the motion to reopen the hearing briefly. All voted in favor and the motion carried.
Chairman Moyer asked Mr. VanSyckle if Libbey Lane were a deeded right-of-way for the homes in back. It was discussed and decided that it must be a deeded right-of-way. Mr. VanSyckle stated that it is one lane, about ten feet wide.
Commissioner Ward made the motion for the Board to close the hearing. All voted in favor and the motion carried.
Following discussion, Commissioner Ward made the motion to deny the appeal of the address change to 45 Libbey Lane pursuant to the ordinance and upon recommendation from the County Attorney. All voted in favor and the motion carried.
Angela Beeker will draft the written decision to bring back to the Board consistent with the decision made today.
UPDATE ON PENDING ISSUES
Angela Beeker informed the Board that there have been a lot of Bills introduced to pass a referendum on a State Lottery. One of the earliest Bills introduced was brought up yesterday and failed, officially it was re-referred back to committee. It is being read that the lottery has failed for now.
House Bill 1490 that limits the Governor’s authority to withhold local revenues has been ratified by both houses and was presented to the Governor for signature on the 13th. He has about 60 days to consider it before it would automatically go back to the legislature for a vote on whether they’re going to over-ride.
David Nicholson stated that the budget was voted down yesterday because of the issue of the referendum. The Speaker has indicated that he wants it back by the end of the week. The Sales Tax issue has been separated from the budget. The Speaker has indicated that next Tuesday that vote will be taken on the Sales Tax issue. There are a lot of people who believe clearly the Governor had no authority to keep the utility franchise tax. We learned yesterday at LGCCA that the municipalities received those monies yesterday. We do not get those funds, the State and cities do. The ball is clearly now in the Governor’s court. He is acting as the State’s Budget Officer with the powers that he has. There has been a law suit filed or it will be filed on behalf of many local governments to challenge the Secretary of the Department of Revenue’s ability to withhold these payments.
INFORMAL PUBLIC COMMENTS
1. Dick Baird - Mr. Baird stated that he wished to address four items:
1 He again mentioned the item of non-taping of the informal public comments at the Commissioners’ meetings. He felt that it sent the message that only the Commissioners’ views were important and that public views were unimportant.
2 He mentioned the lawsuit that six counties (Alamance, Cabarrus, Stokes, Caldwell, Davies, New Hanover) and three municipalities (Valdese, Garner, Yanceyville) joined yesterday against the Secretary of the Department of Revenue. He asked this Board to join in that suit.
3 He expressed concern about the number of fatalities on our roads in this county. For the short-term he said “let’s enforce the traffic laws, fines will slow people down and stop them from doing these things which are causing the accidents.” The Sheriff’s Office and the Highway Patrol should enhance traffic enforcement. Long-term he suggested getting a traffic-net/road-net put in this county.
4 He mentioned the different meetings of the governing boards in our county, stating that it was obvious there was some animosity between Councils and Boards and some lack of coordination. He felt that a member of one Board should attend the others’ Board meetings for coordination purposes and to understand what is going on.
Response from Chairman Moyer
Chairman Moyer stated that the Board would likely wait on item #1 until the new Board comes on board. With respect to the lawsuit - the Board will take a look at that. The NCACC advised that there was little or no merit in such a suit and it would be very difficult if not impossible to win it. Chairman Moyer agreed 100% with the fact that there are too many fatalities on our roads.
Closing of Public Roads
Angela Beeker reminded the Board that there have been two roads that have come up recently where the Board had voted to request the NC DOT to abandon the road. At those times the question came up as to exactly what this Board could do if anything to close the road, not just to ask NC DOT to abandon it but to close it. She has researched this issue and informed the Board that they lose jurisdiction when NCDOT abandons the road. There is nothing this Board can effectively do to close either of those roads.
Update on Vehicle Leasing
David Nicholson had distributed a hand-out entitled “Analysis of Lease vs. Purchase of Henderson County Vehicles”. Chairman Moyer questioned whether the Board wanted to address this issue without Commissioner Hawkins present as he was very interested in this issue.
Mr. Nicholson was asked to prepare some back-up information on this issue and to also share that information with the three Commission candidates. Chairman Moyer also requested that Sheriff Erwin be at the next meeting to address this issue.
Chairman Moyer called a brief technical break.
PUBLIC HEARING FOR ROAD NAMES
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 they had established September 18, 2002 at 11:00 a.m. as the date for a Public Hearing for the following road names:
Old Name Proposed Name
Theo Branch Ln Galloway Trl
Brad Harjus Ln Our Boys Ln
Marinwood Ln Angels Cove Trl
Marion Dr J P Huggins Dr
Layton Ln Old Farm Cir
Calumet Dr Dotson Nelson Dr
Buckeye Trl Kids Way
Dainty Ln Freedom Rd
Messenger Ln Misty Woods Ln
Clutch Rd W. Ton A Wondah Rd
Vivian Way Stoney Creek Mountain Ln
N. Sewell Dr. Bugtussle Ln
Massey Rd (portion of) Massey Road Ext.
Mountain Trail Park Rd Mountain Trail Ln
Culture Cove Craigs Cove Ln
New Road Names
Mr. Hyder asked for one road name to be pulled from the list - the change of Marion Dr to J P Huggins Dr.
There was none.
Commissioner Ward made the motion for the Board to close the public hearing. All voted in favor and the motion carried.
Commissioner Gordon made the motion to adopt the list as presented with the deletion of one name as requested by Mr. Hyder. All voted in favor and the motion carried.
PUBLIC HEARING - CDBG - HIGHLANDER WOODS APPLICATION
Commissioner Ward made the motion for the Board to go into public hearing. All voted in favor and the motion carried.
Selena Coffey reminded the Board that this public hearing was held to receive public input on a Community Development Block Grant (CDBG) application proposed by Habitat for Humanity for the Highlander Woods development. The public hearing had been duly publicized in accordance with CDBG regulations. She stated that this is the second of the two required hearings.
Ms. Coffey pointed out a correction on the application summary concerning administration funds. She had initialed the correction and it had been entered on the formal application. She also reminded the Board that in approving this application, the Board would be committing $78,225.75 of its future HOME 2003 planning allocation to the Highlander Woods project. Henderson County typically gets about $160,000 as planning level allotments for our projects; however, Habitat has stated in a letter dated September 11, 2002, that they will provide the balance of funds necessary should this HOME 2003 funding not be approved.
Malcolm McCormick, Habitat for Humanity, came forward to answer any questions from the Board. Chairman Moyer stated that he would be more comfortable if Habitat for Humanity would rephrase their letter that they would cover the $78,225.75 with the understanding that they would request a portion of our allocation at the appropriate time to be used for this project. Mr. McCormick would be glad to clarify that Habitat will cover the $78,225.75 but they will request that it come from Henderson County’s 2003 allocation. Mr. McCormick stated that this is a three year project.
Kate O’Hara, Housing Planner with Land-of-Sky Regional Council, has been working with Habitat for Humanity to prepare this application. She stated that the project application is based upon the future request of Habitat for Humanity to the Board of Commissioners to apply for FY 03 HOME funding in January 2003. The total project costs are $128,225 and of that $50,000 has been approved by the HOME Consortium for FY02 funding. Habitat intends to request that the Board apply on their behalf to the HOME Consortium in 2003 for the balance of $64,640 minus $50,000 which comes to $14,640 as well as the $63,585.75.
It was the consensus of the Board that they were not comfortable making a commitment until they have followed the procedure and heard from the other parties.
Kate O’Hara stated that they could rewrite the application budget page to reflect that Habitat will provide the $78,000 balance. Chairman Moyer stated that they could even state that they would be requesting the funds from next year’s allocation of HOME funds to Henderson County.
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 Ward made the motion to approve the amended application consistent with the letter dated Sept. 11 from Malcolm McCormick of Habitat for Humanity. All voted in favor and the motion carried.
PUBLIC HEARING - CONTINUATION OF QUASI-JUDICIAL PROCEEDING
Chairman Moyer stated that this is the continuation of a quasi-judicial public hearing, continued once before. The Board had a site visit on August 21 and continued that hearing to today.
Commissioner Ward made the motion to continue the Quasi-Judicial Proceeding (Application for Statutory Vested Rights for Mini-Storage/Mini-Storage & Office Buildings on Howard Gap Road). All voted in favor and the motion carried.
Chairman Moyer - “When we last left this we were leaving it for some clarification of some information and - and uh oral argument if you will with respect to the law from the attorneys. When we had the site visit there were a couple people who attended that wished to make - thought they were going to have the opportunity to make public comment at that time. The attorneys weren’t present and people weren’t there and - and nothing was being recorded or taped so I was uncomfortable having that testimony and I said I would give a couple people the opportunity to speak today - to make their comments - that felt they wished they had to - so Mrs. Corn do we have people signed up?”
Elizabeth Corn - “No sir.”
Angela Beeker - “There probably wasn’t a sign-up sheet, was there?”
Elizabeth Corn - “Yes, there was.”
Angela Beeker - “There was, oh.”
Chairman Moyer - “I’ll ask the people in the audience cause I see the gentleman there. Are there people here that would like to comment as part of this proceeding? Sir, I think you’re the man. Would you like to comment as part of this proceeding? You tried to comment at the site visit.”
James Collins - “I have a hearing problem”
Commissioner Ward - “Maybe Janice can assist - can you”
Mr. Collins was saying something but the microphone did not pick it up well - “I wish to say a few words”
Chairman Moyer - “Do you? Alright would you please come up to the podium.”
Angela Beeker - “Mr. Chairman, he would need to be sworn and”
Mr. Collins - “I apologize for my hearing.”
Angela Beeker - “And we need to”
Chairman Moyer - “OK would you move over to the Clerk, over this way, would you then swear him in Mrs. Corn?”
Elizabeth Corn - “I need you to place your left hand on the Bible”
James Collins - “OK”
Elizabeth Corn - “and raise your right hand.”
James Collins - “alright”
Elizabeth Corn - “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?”
James Collins - “I do”
Elizabeth Corn - “Thank you sir”
James Collins - “You want my name right here at one”
Elizabeth Corn - “Yes sir.”
Chairman Moyer - “Now Mrs. Beeker I noticed that none of the attorneys are here.”
Angela Beeker - “I’m baffled by that as well.”
Karen Smith - “I understand Mr. Justus is on his way and I’m not sure about Mr. Fritschner.”
Janice Moore - “I consulted with him, he is not”
James Collins - “Do you need the mailing address too?”
Elizabeth Corn - “Yes sir”
Janice Moore - “I have a question. One of the other.”
Chairman Moyer - “Wait a minute, wait a minute. We’ll deal with one - one at a time.”
Angela Beeker - “We need to um have him state where he lives to establish his standing.”
Chairman Moyer - “Right”
Angela Beeker - “And then ask Mr. Schenimann if he has any objection to adding him at this time.”
Karen Smith - “You do have a letter from Mr. Collins that was submitted at the very first meeting and you should have that with your material already.”
Chairman Moyer - “OK. Sir”
Elizabeth Corn - “Back to the podium”
Chairman Moyer - “Back to the podium and state - state for the record your name and address, where you live and why you are interested in this proceeding.”
James Collins - “OK. My name is James A. Collins. I live at 11 Nestlewood Drive, that’s the new county uh address system. It’s Hendersonville North Carolina, 28792.”
Chairman Moyer - “And what is your interest in this matter? Why are you interested in this?”
James Collins - “Well, my interest in this matter is the fact that I live on the other side of Howard Gap Road directly opposite the mini-storage area.”
Chairman Moyer - “OK”
James Collins - “Uh it’s directly opposite and I don’t recall the exact length of frontage on the road but it’s over - way over a thousand feet.”
Chairman Moyer - “OK”
James Collins - “Right on the other side.”
Chairman Moyer - “Just a minute. Mr. Schenimann, do you have any objection to Mr. Collins making some comments today. Would you please come up to the mike and just indicate yes or no.”
Harry Schenimann - “No, I don’t have any objections.”
Chairman Moyer - “Thank you, Mr. Schenimann. Alright Mr. Collins, proceed. Proceed with your comments.”
James Collins - “OK. Well I know Mr. Schenimann personally and I have nothing against him. He’s a fine man. He’s a businessman and being a businessman he is in business to make money and he - in my opinion he got uh sucked into this thing because of some shortsightedness of the Commissioners and uh the Zoning Ordinance to start with. This - this area including mine is an old established neighborhood and it existed long before I was there. My plot of land - it consists of about 16 2 acres along Howard Gap Road and uh it was an old farm when I took - when I took title to it and incidentally I’m a retired farmer so uh I would from my personal standpoint I would like to see it stay in the same condition but from uh from another standpoint I can understand Mr. Schenimann’s problems here and personally I uh I think that the whole thing was wrong from the very start. In my opnion and I’m pretty sure that it’s a strong opinion and it’s shared by all the other people surrounding this - this development and uh I uh - I can sympathize with Mr. Schenimann but I place the blame originally on lack of proper zoning and the zoning in my opinion was completely wrong and uh I uh - in other words I - my problem is that I can understand both sides here. I can understand Mr. Schenimann’s side and I can understand the surrounding property owners’ side so I would like to - I would personally like to see for some - in some way or the other that the - the development that is there now should be allowed but I would not like to see it expanded any - that’s uh - that’s my main - main point.”
Chairman Moyer - “Thank you Mr. Collins”
James Collins - “Do you have any questions?”
Chairman Moyer - “Does the Board have any questions? Mr. Schenimann, do you have any questions in the absence of your Counsel that you’d like to ask Mr. Collins?”
Harry Schenimann - “No sir.”
Chairman Moyer - “Staff, do you have any”
Karen - “No”
Chairman Moyer - “OK. Thank you Mr. Collins”
James Collins - “Thank you”
Chairman Moyer - “I appreciate your coming out again. Sorry I couldn’t hear you on the 21st but I think this is the better way to handle it. Uh Janice I reco - you had a question so I recognize you to come up to the - please come up to the podium and - so everyone will hear what your question is”
Janice Moore - “One of the neighbors on Lexington Lane brought a letter to my home the other night and asked me to present it in lieu of her being here. She had supervisory duties at her job and they would not let her off and so she asked me to bring a letter stating her opinions on this project.”
Chairman Moyer - “Has Mr. Schenimann seen this letter?”
Janice Moore - “I just got it last night, no”
Chairman Moyer - “Would you show a copy to Mr. Schenimann and our Counsel and we’ll see. It’s Lexington Lane which is the one right behind - that borders on the I guess North side of the uh - would it be north? North side of uh”
Janice Moore - “She called me yesterday and asked me if I would bring that to the hearing since she was unable to come. She wanted to be here.”
Chairman Moyer - “Do you have - is that just one copy you have? Would you give a copy to Mrs. Beeker also and then we’ll make a determination with respect to the letter.”
Janice Moore - “Also my other question - are we each gonna have another opportunity to state anything at this point after you talk or is this our opportunity?”
Chairman Moyer - “This will be the final opportunity - now I will have to consult with the Board and Mrs. Beeker cause there was suppose to be Counsel here to make closing comments and we asked them specifically to be here. Uh I hate to put this off yet again cause I think we need resolution of this but uh.”
Attorney Craig Justus arrived at this time.
David Nicholson - “50%’s here.”
Chairman Moyer - “Well, that may solve the problem. Mr. Justus is here and if Mr. Fritschner isn’t coming.”
Janice Moore - “He’s not coming.”
Chairman Moyer - “He’s not coming? Alright well then”
Janice Moore - “He said he couldn’t make it.”
Chairman Moyer - “Then we can proceed and uh I’ll tell you what I’ll do. I will give you the opportunity to make closing comments with respect to your side instead of Mr. Fritschner. Is that alright with the Board?”
Angela Beeker - “With regard to the letter. We would just need to ask uh Mr. Schenimann if he has any objection. He did not object to the other letter coming in so he may not object to this but to it coming in and then I would just uh remind the Board that um this would be considered hearsay evidence and so you would have to bear in mind that”
Chairman Moyer - “That’s right”
Angela Beeker - “That it’s secondary evidence.”
Chairman Moyer - “It can’t be cross examined and everything so we’d have to take that under consideration”
Angela Beeker - “Take that into consideration”
Chairman Moyer - “Mr. Justus, now that you’re here can - can we - would you agree to admit this letter into evidence for it’s face value?”
Craig Justus - “Uh yes, that’s fine.”
Chairman Moyer - “Thank you. Alright, Mrs. Corn then will need a copy of the letter”
Angela Beeker - “She can have the original”
David Nicholson - “This is the original”
Angela Beeker - “And here’s a copy for the Board.”
Chairman Moyer - “OK”
Commissioner Ward - “We don’t want to impose any fines for tardiness do we?”
Several people were talking here and I couldn’t make out what they were saying.
Chairman Moyer - “Alright and I’ll ask - now once again because of what happened at the uh the site visit everyone - I’m sorry - that had wished to be able to speak that I put off at that time now has had the opportunity to speak? Yes sir.”
“I’d like to speak”
Chairman Moyer - “Alright would you come up and sign in. You’ll have to establish your interest in this proceeding before I can allow you to speak and. No, please go over there and sign in.”
Angela Beeker - “Be swear - be sworn in.”
Chairman Moyer - “Be sworn in.”
Elizabeth Corn - “You know the drill. 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? I need your name here and your mailing address.”
Chairman Moyer - “Please state your name, address, and why you’re interested in participating in this proceeding and then we have to make a determination whether that is appropriate to make you a party.”
Leon Lamb - “OK, my name is Leon Lamb and uh I own a house directly across from ... and Mr. Collins and uh directly across from the - the storage building and I - the only thing I would”
Chairman Moyer - “No, before you start”
Angela Beeker - “Ask again, see if they have any objection.”
Chairman Moyer - “Mr. Justus?”
Craig Justus - “No, Mr. Chairman, no objections.”
Chairman Moyer - “Do any of the other parties have an objection to Mr. Lamb speaking. Alright then we - if the Board is in agreement we’ll admit Mr. Lamb as a party and you can go ahead and make your comments.”
Leon Lamb - “OK, I don’t have - the main reason I’m here is I have no problem with Mr. Schenimann’s project at all. Uh looks to me like he’s doing a very nice job there and I have no problems for any - what he does with his own property there, now or in the future. Thank you.”
Chairman Moyer - “Alright. Any questions from any of the other parties. I’m gonna streamline this.”
In unison - “No”
Chairman Moyer - “Janice has a question.”
Angela Beeker - “Come to the mike”
Chairman Moyer - “Come to the mike and - just stand aside a minute Mr. Lamb and we have a question for you.”
Janice Moore - “My only question for Mr. Lamb is if he personally lives in that home that faces the mini-storage building or if he uses it as a rental property only?”
Leon Lamb - “Uh I do use that as - it’s been a rental property ever since I’ve had it and I’ve had it several years.”
Chairman Moyer - “Any further questions uh for Mr. Lamb from anyone? Alright, thank you Mr. Lamb.”
Commissioner Ward - “I can’t recall the lady’s name.”
Angela Beeker - “Mrs. Conley.”
Commissioner Ward - “Mrs. Conley.”
Chairman Moyer - “Yes mam, did you have a question or do you have.”
Mrs. Conley - “I just had one or two comments.”
Chairman Moyer - “No, we’ll get to those - this is not with respect to what Mr. Lamb said. Does it have anything to do with Mr. Lamb’s statement?”
Mrs. Conley – “Well, Mr. Lamb does not live next to the storage building like we are in Tanager Lane.”
Chairman Moyer - “Yea I think - I think Mrs. Moore made that point with her question so we understand that. Alright uh - what I’m gonna do because of the time that has elapsed is to uh to allow - so closing comments from each side and then ask the attorney for comments with respect to the law as Mr. Fritschner apparently is not coming so we’re gonna - we’re gonna move on and uh”
Craig Justus - “Mr. Chairman, we had prepared a - since there had been several changes as this has been an ebb and flow in talking with neighbors and trying to figure out what their concerns are and trying to address them - there’s been somewhat of an ebb and flow of changes. We’ve prepared a page showing what the changes have been since the original application just so you’d have it in front of you if there was ever any questions and based on a discussion that - that Harry Schenimann had with Karen uh he had intended to have as part of the mini-storage and rental to have a rental truck there because it’s customary and incidental typically to storage buildings to have rental trucks as part of the facility and he asked Karen if that needed to be clarified for purposes of our discussion and she said >we need to bring it up’ we need to - to let you know that this was to be part of the facility to have a - a rental truck so we’re bringing it up so it’s clear on the record that that was part of the intended use. Harry didn’t think - had not thought through that needed to go in that great depth but it was suggested that we go ahead and do that.”
Chairman Moyer - “Do you have copies of the listing of proposed changes?”
Craig Justus - “Yes uh if I could”
Chairman Moyer - “Could you give them to all the parties and I’m gonna ask Mr. Justus if you’d go through that list and uh clarify your understanding of what some of these changes.”
Commissioner Ward - “Well can I ask a question?”
Chairman Moyer - “Sure”
Commissioner Ward - “Of Mr. Justus. What pertinence does it have if he has rental companies there to his vested rights issue? Remember we’re stretching the right anyway but - but what”
Craig Justus - “Legally or as a practical matter?”
Commissioner Ward - “As a practical matter - how it pertains to vested rights if he has rental units there - I mean”
Craig Justus - “The rental trucks well - since Karen’s got to enforce if you approve a vested rights plan Karen would have to enforce that plan. I don’t know what you’re gonna do as it relates to this rezoning out there. Let’s assume for argument’s sake that you change it to residential and - but we’re vested. We have a plan and we have an intended use. We simply alerted Karen to the fact cause we hadn’t heretofore that the”
Commissioner Ward - “The possibility of rental”
Craig Justus - “The possibility of rental trucks for - for the customers to use in moving stuff in and out. It’s - it’s typical - I know in Asheville. If I need a rental truck I’m gonna go to a storage place and rent one. We wanted to make sure Karen knew about it and we said would you - based on the information you have today would you be able to interpret that we could do that? And she said well you need to go ahead and bring it up and I’m paraphrasing but you need to go ahead and raise it with the Commissioners and get it on the record so it’s clear.”
Commissioner Ward - “OK”
Craig Justus - “And that’s what we’re attempting to do.”
Angela Beeker - “Are there any other - are there any other changes besides what - the changes that you made at the last convening.”
Craig Justus - “There is uh the buffer along the uh driveway on the Lexington side - has actually been beefed up. There was a comment made by someone who did not live along that drive. I think Mrs. Moore had said or somebody had said well what about those people and so had made a comment about a buffer intended for adjoining property that really wouldn’t affect them. Harry absorbed that information and has beefed up the buffer along the left-hand side of the property and so that’s the change. We just added better buffer there. So that was the only - that was the only change Angie from last we met. On page uh - page three is the . . . of the changes since the original application. Mr. Chairman, I would be happy to - to walk through these.”
Chairman Moyer - “Well let me ask Mrs. Beeker >What is the effect of this? Do we have to have - is this automatically an amendment or?”
Angela Beeker - “I think that the - the petitioners can request that their application before you be amended and as long as everyone is - first of all that no-one has an objection to it being amended and second that everyone is given a full and fair opportunity to comment on the amendments then I think that you can allow that if you choose. Um I think that as far as the changes um - except the beefing up of the buffer um at least by implication at the site - the Board kind of indicated that those amendments would be accepted by the Board so - and I didn’t hear any objection from the other side to those - to those amendments being added at this time.”
Craig Justus - “And if - and if I could just add to that what we did from the original application we sort of - I wouldn’t say retreated but we have tried to develop an application that is the best one we could for the surrounding neighborhood so with one change.”
Chairman Moyer - “ . . . Let me - again let’s get the procedure set so - are you requesting that your application be amended to reflect the seven changes set forth on the page that you’ve given to us?”
Craig Justus - “We’re requesting that the - the September 3, 2002 revised information be considered as the application and that would include the changes that are - from the original application shown on page three.”
Chairman Moyer - “OK”
Craig Justus - “Does that make sense?”
Chairman Moyer - “I think that’ll work won’t it Mrs. Beeker?”
Angela Beeker - “Yes sir. And again as long as the other parties have an opportunity to comment on it.”
Chairman Moyer - “I’m gonna let Mr. Justus go through this and make whatever comments you want then we’ll open it up to the other parties that might have any questions or comments with respect to the amendments. Now does everybody have a copy of what Mr. Justus is speaking from?”
Angela Beeker - “And just as a technicality - um I would like for Mr. Schenimann to under oath adopt this as his statement because it is written as a letter from him to the Board.”
Harry Schenimann - “Do I need to get sworn in again?”
Angela Beeker - “No sir”
Craig Justus - “No just”
Angela Beeker - “You’re - you’re already under oath.”
Craig Justus - “You take this September 3, 2002 exhibit that we’ve handed out today as your statement to this Board.”
Harry Schenimann - “Right, yeah this would be the statement to the Board - this September 3, 2002 revision.”
Angela Beeker - “OK”
Chairman Moyer - “OK, thank you. Alright, Craig, go ahead and highlight whatever you wish and then we’ll get comments.”
Craig Justus - “OK, well as to the changes uh and I - and I mentioned this as an ebb and flow uh as you know we - we have certainly argued that we - we are already vested to our facility because of the building permits we’ve pulled. What we’re looking for is flexibility in time to allow those improvements to be put in at a more reasonable pace uh in return for that we have offered to do a lot of things out there that otherwise if we just proceeded with the building permit and vested rights we would not have to put in. With the original application, as you recall we had an option - plan A and plan B for simplicity sake and so that there wasn’t going to be any confusion of enforcement hereafter we deleted plan B, the offices with mini-storage. Uh for purposes of reducing the density which we uh we heard was a concern uh we reduced the mini-storage buildings from seven to six. Uh we had - the concern was expressed about the RV rental boat storage area topographically being up high and can be visible - more visible from uh Howard Gap Road and a concern was expressed about that so we revised our plan to move that facility down at a lower topography uh behind some of the rental storage buildings and that’s what number three attempted to do. Uh we had some concerns expressed about lights so we amended the plan to delete a couple of lights. The uh - a concern was expressed about the - the sufficiency of the buffer and how dense it was and how it would be uh a - a - an evergreen year-long buffer and so to clarify and beef that up we made the change to Leland Cypress out there which will provide a double layer of protection for Mrs. Conley and the neighbors of - on that side of the line. Because of - I mention this because of the comment expressed by someone here that did not live along Lexington but who had expressed the concern over the buffer over there, Harry has also amended that buffer to beef it up with the wax leaf and I can’t even guess how that - Vibernum”
Chairman Moyer - “Vibernum is right”
Craig Justus - “And as a clarification of the use, uh we just want to clarify that the incidental use of this facility included a truck rental.”
Angela Beeker - “Craig, didn’t you offer one other change out there that the number of RVs and boats would be limited.”
Craig Justus - “Uh yes and uh and I apologize that uh - if that was the case and Harry is it on here? No. Uh it’s the same number that was - that’s on the application that was handed out on the site. I believe it was 45.”
Angela Beeker - “I - I don’t recall what it was.”
Chairman Moyer - “42 to 45, somewhere was in there.”
Craig Justus - “I think it was 45. The concern was that uh - the expression was while you could put 100 up there and so - OK. Oh I’m sorry, bottom of page one.”
Angela Beeker - “Oh there it is, OK. So I guess my question would be since that area is going to be for now rental trucks also would that number include those or would they be in addition to the 45.”
Craig Justus - “Those would be in addition to the 45 cause this only deals with RV and boat and in terms of a number of rental trucks, four would be the maximum”
Angela Beeker - “OK”
Craig Justus - “So we’ll - I’ll - uh Mr. Chairman with the concurrence of my client whose sitting there nodding, we would add to the application on page one the verbiage >maximum number of rental trucks four’.”
Chairman Moyer - “OK, any questions for Mr. Justus on the amended application? If you’ll step aside I’ll ask any of the other parties that have questions or comments with respect to the revised application. Janice? Sir?”
Angela Beeker - “If he could restate his name for the record.”
Chairman Moyer - “Yeah and we’ll have to have everybody”
Robert Johnson - “Yes, I’m Robert H. Johnson, property owner to the direction I don’t - north or south - my directions in this country - coming from Colorado a little hard to know what - which way the directions are. We’re to the right side of the property. My only concern now it seems like we’re adding things again. We made some exceptions and I’ve been pretty happy with the changes but my concern now is rental trucks too added now. That’s just advertising for the rental trucks isn’t it - company sticking there - what kind of signs and things and stuff like this. I don’t know how many rental facility has rental trucks. I’d be interested to know what the percentage of places require to have a rental truck available right there or just what the situation is but I think we’re just opening up a few more worms in the situation. After the meeting and visit out there I was quite pleased with what - what we’d gone over. Uh another point is uh I don’t see a - a - along the drainage system - I don’t see on the map here that we’re doing any receiving of any drainage there in a pond or stuff that we talked about. I wondered if that is in consideration yet or just what - what we have to deal with there. That’s all the comments that I would have.”
Chairman Moyer - “OK Mr. Johnson, thank you. Mr. Justus do you - or why don’t we respond as we go through these.”
Craig Justus - “Right. The rental trucks is just a clarification. Uh it is incidental to a storage building operation to have rental trucks for people to move in and out stored things and we just wanted to clarify that so that Karen could be sure - you know. So we didn’t have any problems looking forward with this. Uh this is in an area where the rental trucks would be - that is once again not topographically at a level where you could see these trucks. It is hidden back in there if - I think Mr. - Commissioner Ward walked back in there and can see the changes in the topography and how much lower that area was to the property that’s left blank up here, left-hand corner. Uh so we were just clarifying something, we didn’t add anything. Uh secondly the - the whole discussion of the detention basin - we basically left that up to you all to tell us what to do. So we didn’t presume that you’d already made a decision on that. We indicated a willingness to follow your lead in leaving a detention basin on the property or not and so we left that up to you and didn’t presume your decision in that so we’re - whatever as a consensus everyone wants to do with that we’re fine with it.”
Chairman Moyer - “Yes mam, please come forward.”
Mrs. Conley - “My name is Dorothy Conley and as you all know my property on Tanager Lane adjoins Mr. Schenimann’s property. First I want to thank him for the changes he has made. But now I’m very very concerned. We were out there with Mr. Schenimann two weeks ago going through the property and like Bob Johnson, I am pleased - I was pleased with the changes he had made but now I’m very concerned. They have added without saying anything to us four more truck rentals so what else could be added to that property that we don’t know about? Also it says nothing about how far the fence of his storage facilities will be from my property. Now Mr. Schenimann said and it isn’t on here that his fence for the storage units would be no closer than 60 feet from my property line, the fence for the RV and boat storage would be no closer than 40 feet. That does not say anything here so we had nothing in writing that tells us exactly how close the fence can be to the property but now our concern as I said is that something else might be added. Now while we were out there looking at the property I asked Mr. Schenimann what he planned to do with the vacant land behind and he said probably build duplexes or four plexes - well he - whatever he does seems to be attractive and done well so I think that would be just fine but we don’t want anything more added without us knowing like this truck rental. Thank you.”
Chairman Moyer - “Thank you Mrs. Conley. Mr. Justus.”
Craig Justus - “Uh thank you. Uh the whole point of bringing up the rental truck thing was so that we didn’t have folks later on coming back and saying well why didn’t you bring that up. We’re bringing it up. We’re putting it on the table so that everybody understands it. We can’t change the plan later on without your approval. It is our contract with you of what we intend to do. It’s just good business sense you try to spell out everything that you intend to do. That’s why we’re doing it today. Uh as to the uh delineation of the set back of the building - the building closest to Mrs. Conley’s property. We could do that on the record. The fence - I will say that the fence is - its incorrect where the fence is. The fence is located directly behind the buffer that is shown on the plan and the scale it’s closer to thirty feet. The actual building though is located uh closer at the sixty foot point and if for purposes of the record we can do that - put it on the record about that. We don’t have a problem. Mr. Schenimann would really need to do that.”
Chairman Moyer - “So can we get Mr. Schenimann up there and to clarify that?”
Craig Justus - “Yes and now we’re talking about really building six.”
Harry Schenimann - “Building six plus the RV boat rental storage.”
Chairman Moyer - “I assume you’re gonna have a fence around that and I guess the issue was how far would that be? And we did discuss that when we were out there.”
Harry Schenimann - “Yeah, we can do a forty five foot where the fence would be a minimum of forty-five feet from her property line for Mrs. Calans.”
Craig Justus - “This is the fence for the rental RV area and then this building right here - there - the corner of that building.”
Harry Schenimann - “Well right here is where she was concerned about. See her house is right.”
Chairman Moyer - “Would you clarify for us where right here is. Are you talking about the corner of building six? No, no just speak from there.”
Craig Justus - “The - the - if you’re looking at the plan where it says uh”
Harry Schenimann - “It’s on the screen if you”
Craig Justus - “Oh, well there we have it. Right there?”
Harry Schenimann - “Yeah”
Craig Justus - “This is - that corner right there.”
Harry Schenimann - “The point we were talking about is right there - from - that was”
Mrs. Conley - “I understood you to say that the fence for the storage and this would be sixty feet from my property line and for the RV would be forty feet from my property line. That’s what you said when we were out there two weeks ago.”
Chairman Moyer - “Mrs. Conley, we won’t pick you up on the tape for any of your questions. You’re gonna have to come back to the microphone please. Yes, please come up. We’re gonna have to share the microphone for a few moments. But would you repeat and then Mr. Schenimann can clarify.”
Mrs. Conley - “Two weeks ago when we were out there with Mr. Schenimann I understood Mr. Schenimann to say that the fence would be sixty feet from my property line, the fence for the R - for the storage units. The fence for the RVs would be forty feet from my property line. That’s what I understood Mr. Schenimann to say and nothing was ever said about the four rental trucks but I do thank Mr. Schenimann for the changes he has made.”
Chairman Moyer - “Wait before you leave - so we’re sure we’re clear. So the fence around the RV-boat rental storage, your understanding was it would be 45"
Craig Justus - “40 feet”
Chairman Moyer - “You’re saying 45, she said 40 right?”
Harry Schenimann - “40, 45 and we can make. That’s not - that’s not a problem. We can make that 40 - 45 foot there.”
Craig Justus - “Which one, 40 or 45?”
Harry Schenimann - “40 feet”
Craig Justus - “Alright.”
Harry Schenimann - “Now the other, the - the minimum from the property line to the building is gonna be sixty feet, not to the fence around the building because the fence is gonna go straight along there so that the building itself would be - the corner of the building - had we put the building where building seven was.”
Craig Justus - “You can’t see on that.”
Harry Schenimann - “Then the distance from that property line to the corner of the building would be sixty feet but there’s no building there, that’s RV storage so actually the distance from the property line to the corner of building six would be sixty feet.”
Chairman Moyer - “Let’s see - from Mrs. Conley’s standpoint then - I think this is the way you said it the first time. The distance from your property line to the fence at the closest building which is building six would be at least forty feet and the distance from your property line to the corner of the building would be sixty.”
Harry Schenimann - “Yep”
Chairman Moyer - “And I think Mr. Schenimann is saying he will - he will honor that.
Harry Schenimann - “The - the forty to the fence and sixty to the corner of the building. Are we talking about the same thing?”
Chairman Moyer - “Is that”
Harry Schenimann - “Right from here to this fence would be forty feet and then from here to the corner of the building would be sixty feet.”
Mrs. Conley - “OK, I guess I misunderstood.”
Harry Schenimann - “And - and from here to the corner of this where . . . put that stake would be forty feet from your property line.”
Mrs. Conley - “OK”
Harry Schenimann - “That’s where that - that would be the minimum.”
Mrs. Conley - “If that’s the - yeah. Let’s have it more if possible please.”
Harry Schenimann - “That’s the minimum.”
Chairman Moyer - “So your - your remaining concern Mrs. Conley is the addition or clarification of the trucks.”
Mrs. Conley - “Yes, that was a surprise.”
Harry Schenimann - “Well and the - well and the - at the time I just - I just took it for granted - you know that that would be just part of it and then it just dawned on me - I woke up and I thought well golly does this have to be in writing? Well so I thought well I’d better do something. But this was just - what was it last week? I’d called about that - it - it just dawned on me. But now there’s no - it’s no extra space added or no extra fence or anything added for that, at all. There’s nothing expanded for it.”
Chairman Moyer - “Alright, thank you.”
Mrs. Conley - “Now could we possibly have all this in writing signed so there are no changes that we don’t know about and no additions. That way it’s not Mr. Schenimann said this and we said that but it is in writing so we know exactly what’s going on.”
Several people were talking here . . . ?
Craig Justus - “The - the vested - if - if you did approve the plan you would have a vested rights ordinance which would have as an attachment our exhibits and to the extent that you needed to clarify - well and I’m speaking on Angie’s behalf. And to the extent that you needed to clarify the conditions in there, you would spell them out. That would be our road map to work from and that would be in writing.”
Mrs. Conley - “We need to know exactly what . . .” Several people were talking here - ?
Chairman Moyer - “But you’re saying and Mr. Schenimann has stated for the record that forty feet from the fence to her property line - to two points you mentioned”
Harry Schenimann - “Yes uh sixty feet”
Chairman Moyer - “To the corner of building six would be satisfactory to him as a condition?”
Craig Justus - “Yes”
Chairman Moyer - “OK. I just wanted to clarify that.”
Commissioner Ward - “I believe that was what was stated on the site, Mr. Moyer, when”
Chairman Moyer - “Yeah I think that’s where we were.”
Commissioner Ward - “When the three of us went down there to that corner.”
Chairman Moyer - “But I think she’s right. It’s not in this uh.”
Commissioner Ward - “It’s not on the plan.”
Chairman Moyer - “In the application or in the plat for sure and so it did need to be clarified. Uh other parties with questions, Janice.”
Janice Moore - “I don’t know if I have a lot of new questions but I’d just like to make a few comments?”
Chairman Moyer - “Well we’re not to that point yet.”
Janice Moore - “Oh we’re not to that point yet? So just questions just on the?”
Chairman Moyer - “Questions with respect to the amended application and what”
Janice Moore - “Yes I do have a question because the copy that I have right here says the maximum number of RV/Boat spaces is 45 so you’re telling me we’re adding trucks on top of that. That has never been brought up, in fact I asked Mr. Schenimann back when this project first started if he intended to do that and I understood that he was not intended to put rental trucks at that point. We have U-Haul trucks at the Naples Storage Place which is less than a mile away and to me that is one of the most unsightly things of that whole project down there are these great big old rental trucks parked right in front of the storage buildings there stretched out. And I strongly object to that. That was not on the original plan. That’s an addition. Uh I don’t think that’s fair to add that at this point.”
Chairman Moyer - “OK, thank you.”
Janice Moore - “The other amendment questions that I have - um - no I’m pleased that he is reducing the number of the buildings from seven to six. Again, the first time we had a conversation I only understood there was two buildings going up, the rest was going to be in office or warehouse or something and closed on the other portion of the property so that’s already gone way up from what it was. My uh - my concern with that is we just have - we just have too much density for the road to handle that kind of density - that - we’re talking two hundred and - two hundred and fifty occupants plus the RVs - forty-five RVs - these are long long vehicles pulling in and out you know uh you just had this.”
Chairman Moyer - “This is getting beyond the amendments”
Janice Moore - “Well, it’s part of the amendment but you were just having this conversation earlier about the horrendous traffic on Howard Gap and I think it’s just - it seems to me just real irresponsible of the Planning Board to hand out planning and building permits without ever taking anything like this into consideration. The uh - and the buffering is the other I guess the change. I’m pleased with the changes that are on here. I think there needs to be way more buffering than is even on here. The buffering that’s out there right now is very very minimal - there’s just - it’s just totally exposed and it’s gonna be years before anything’s put in there that will even start to cover the fences or anything. I’d like to see some heavy duty buffering that covers clear up these fences and the fronts of these buildings somehow so we don’t have everything just wide open exposed but that’s all I have on”
Chairman Moyer - “Alright. Mr. Johnson or anybody else have - any of the parties have any questions with respect to the amended application?”
A gentleman in the back was talking (not at the microphone).
James Collins - “I would definitely be against the truck storage facility - James A. Collins.”
Chairman Moyer - “Thank you Mr. Collins. Alright, Craig.”
Craig Justus - “Just a couple of comments if - I think Ms. Moore mentioned the horror of seeing a large bed truck and so if we want to delineate the size of the truck you know cause there are different varieties. There’s the really large one, almost like an eighteen wheeler, then there are smaller varieties we’re happy to do that as well. We’re trying to be up front with everything - I - you know - I obviously get the sense that no matter what we do it’s not going to be enough and that’s just the reality of it. We’re trying to do more than what right now we have anyway with out vested rights - just to give us some flexibility with time so.”
Chairman Moyer - “I think we’re to the point to wrap this up with some closing comments. It’s not necessary to repeat - and we certainly don’t want you to repeat everything that’s in the - the record.”
Commissioner Ward - “I hope they don’t.”
Chairman Moyer - “Or we’ll be here for awhile. Did you want to make a comment?”
Commissioner Gordon - “Uh I need to recognize something because when we did make the site visit we were in a van and toured the area and I did make a comment to the other Commissioners that - and an observation that there were many boats and vehicles and uh I think even a storage trailer or two in that immediate area that were not screened and a number of them on - on one parcel in particular and I want that to be a part of the record that that was observed.”
Chairman Moyer - “Alright I’m going to start with uh - with staff uh. Do you have any closing comments that you’d like to make at this time?”
Karen Smith - “I really don’t uh Mr. Chairman. I just wanted to make sure that everybody understood that the plan that was attached to the documents Mr. Schenimann introduced today is also a revised plan and so I wanted to make sure that that would be part of the record. It’s my understanding that that was to be. The other issue that I had had had to do with the addition of the uh the truck rental and what I had explained to Mr. Schenimann was that if he had come in later that would have been something that under the vested right I wouldn’t have understood to have been permitted and again today as we speak he could do that out there. Once again we’re thinking ahead to if some . . . changes occur that would not have been allowed possibly in the district that he’s looking to change to. Um and so as the Board has allowed other amendments, I wanted to make sure that they raised that today. That’s all.”
Chairman Moyer - “Mr. Justus, would you just state for the record that it’s your intention that the revised plat is what was intended to be put forth today as your proposal?”
Craig Justus - “Yes.”
Chairman Moyer - “Thank you. I’m gonna go to the other - any other parties? Mr. Johnson, do you have any closing uh comments? Uh Mr. Collins? Ms. Conley? Janice, this is your chance to make a few closing, whoa, Mr. Collins is coming forward. This is not - this is just closing comments to sum up everything.”
Mr. Collins - “OK. As everybody in this audience knows that are familiar with Howard Gap Road and the traffic - the traffic there is abominable and it’s all kinds of accidents and it’s building up more and more all the time and for that reason I’m against having any more truck traffic than - than we have now and uh just backing up my original statement that I would be against attracting even more trucks into that area. Thank you.”
Chairman Moyer - “Thank you Mr. Collins. Craig, I assume you’re just gonna let that pass. OK, Mrs. Moore.”
Janice Moore - “Well I think I stated most of what I had to say. This whole project really is just a devastating project for our neighborhood. We all know that and I appreciate the concessions Mr. Schenimann has made and I hope he can continue to make it so it’s a little more friendly to a neighborhood. Uh the other thing I didn’t address was I’m still not sure what we’re gonna have to do on lighting. Uh I just wanted to submit this picture of the lighting as it is right now which is two buildings and that’s with not even all the lights on on each of the two buildings. I’m real concerned about getting another five buildings with lights that go all night long - I mean this is - this is just why industrial type things do not belong in residential areas. You just can’t mix the two and so far this is just not working but we are trying to - you know trying to deal with it as a community the best we can. I’d just like to see whatever limitations can be put on this to be put on it - the time frame to be put on as limited as possible to make this the least amount of devastation that we can get by with there. And the bigger this thing gets the worse it’s gonna get for the neighborhood and this neighborhood really cannot tolerate that kind of traffic and that kind of lighting and exposure and run-off and - it’s just - the whole thing is just bad and he’s made the right comment when he said there’s no way we can ever make it to our liking because it’s never going to be to our liking - there’s just no way you can do that but I’m just asking at this point that you limit our - our liability and our destruction, our - well I don’t know if I have the right word for it - limit whatever it’s doing to us that’s so bad so I just uh - I don’t have a whole lot more to say than that but I really am against them adding the trucks at this point.”
Chairman Moyer - “Let me ask you a very specific question based on where we are cause I think if what I’m hearing - I just want you to clarify whether I’m right - that you basically are saying to grant the vested rights and get as many conditions as we can on there because I think from a legal standpoint if we deny the vested rights, all of the things that he’s agreed to do would not be obligations under the current law. Now Mrs. Beeker, isn’t that correct?”
Angela Beeker - “That’s correct.”
Janice Moore - “Is this what I understand that the building permit department gave out permits without considering any of these items before they gave out the permits?”
Chairman Moyer - “And by law they’re not allowed to.”
Angela Beeker - “That’s right.”
Chairman Moyer - “I mean it shouldn’t - the zoning should have dealt with it. You can’t - it’s not the zoning or building - I mean they’re not permitted to do that. They can’t say well traffic is there so we’re not going to give you a building permit.”
Angela Beeker - “Right”
Chairman Moyer - “That would be a violation of the law and”
Janice Moore - “But it seems like when you present a - a lot of this I’m asking because I’m just trying to learn some of this procedure myself but when I - if I would have presented a plan for a subdivision I understand that I would have had to - you know have - have all the roads down there. I would have to show what the drainage was gonna be. I’d have to have all that stuff approved before I would be allowed to have building permits for a subdivision. Now why is it not the same for a commercial development. They can just go in and obviously walk down and get a permit to put anything up without any”
Chairman Moyer - “But this - the problem is”
Janice Moore - “Restrictions on them.”
Chairman Moyer - “The problem is there is a subdivision law that deals specifically with subdivisions. We have an ordinance that deals with that. If they - if he would have divided the property into separate plots to sell, he would then have been a commercial subdivision and he would be subject to certain rules. He’s not subdividing the property so he’s - he’s not subject to any of the subdivision requirements of the law. Mrs. Beeker isn’t that?”
Angela Beeker - “That’s correct.”
Commissioner Gordon - “Can I inter - and it’s my understanding too that uh - even if there - a subdivision permit cannot be denied based on the main roads’ ability to handle the traffic. Subdivision ordinance does establish standards for roads within the subdivision and immediate access to it but it cannot - we cannot turn down a subdivision application simply because it will add more traffic to a main road so - I hope we’ll be clear on that. Uh and I think it’s gonna be very important to understand the difference between grandfathered rights and vested rights and how they can play into what kind of limitations can be put on this.”
Janice Moore - “Well, I think a major disservice has been done to our neighborhood just by not having the comprehensive land use put into effect when it should have been ten years ago because this would have never happened and never would have come up if that would have been the case. We are proceeding with our zoning.”
Commissioner Gordon - “I’m sorry I don’t agree with that, that might not necessarily have been true. It could have but it could certainly well have not.”
Several people were talking here - hard to make out who said what.
Chairman Moyer - “ . . . this is outside the scope of the hearing. We can’t address”
Janice Moore - “OK”
Chairman Moyer - “We can’t address the past problem of whether it should have been zoned.”
Commissioner Ward - “Besides none of this was here ten years ago.”
Chairman Moyer - “or not and uh”
Janice Moore - “Well, I’m just asking that you minimize the damages. I assume we go ahead with vested rights with limitations. I don’t - I don’t understand exactly the limitations that you can place on it. Uh”
Chairman Moyer - “The limitations I think concerning this would be the ones that have been discussed with the parties that have already the - the applicant has already agreed to.”
Janice Moore - “OK”
Chairman Moyer - “The other two things are retention ponds. We can address the truck issue and”
Commissioner Ward - “Flow control”
Chairman Moyer - “And flow control. That’s right, there’s a couple of things we still can address.”
Janice Moore - “Well, I feel like the truck issue is”
Chairman Moyer - “. . . clear that if you oppose the vested rights, that we cannot - if we do not grant it”
Janice Moore - “No, I’m not opposed to the vested rights”
Chairman Moyer - “We can’t do anything.”
Janice Moore - “I’m not opposed to the vested rights but I am opposed to adding the trucks at this point and this late in the game cause that was not part of the original.”
Commissioner Gordon - “I’d like to ask our attorney to clarify for us because it would be my understanding that the truck issue would be a mute point if - if the applicant chose not to pursue the vested rights, that he would still have that ability as a grandfathered use no matter what uh with this facility and uh - so I - I guess one thing that does need to be weighed in is that if the restrictions that are placed in granting vested rights are so restrictive uh the applicant certainly has the alter - option of walking away from the vested right restrictions and going back to uh what he already has which would not include uh landscaping or - or any of these things - provisions that have been discussed so I think there really needs to be a weighing out uh because I think what we do come up with is gonna have to be uh reasonable.”
Chairman Moyer - “OK, Janice, thank you.”
Commissioner Gordon - “Am I right?”
Chairman Moyer - “Well”
Commissioner Gordon - “I’m asking my attorney”
Angela Beeker - “Do you want me to comment?”
Commissioner Gordon - “Yeah, I want the attorney to comment, yeah.”
Angela Beeker - “Uh it is very complicated as everyone is realizing at this point. Uh the granting of the vested - there are many ways to grant vested rights just as a quick recap, getting a building permit is one of them, common law vested rights is another and this is what you consider a statutory vested right. With regard to the trucks in particular - a couple of things. I’ll get to the vested right question in a second but the Board would need to determine whether you consider that to be an addition or a clarification. Uh as far as enforcement later, it is better that the issue be clarified up front so I do appreciate them bringing it up because then I would have been called on to make a judgment call as to whether that would be an allowable use later so I do appreciate that but you need to determine if it’s an addition or clarification. If you determine that it is truly an addition then you need to make the decision as to whether you’re going to allow the addition to the application or not. Of course if you do not allow it, they always can come back next week and make an application to amend. You know - say if you granted the vested right but did not allow as part of this the trucks, they could come back next week and make an application to amend their vested rights and then the question would be before you ultimately, could be before you ultimately anyway so that’s something to consider. With regard to vested right, the uh granting of a building permit gives them the vested right to build the building, OK, and to make the - I guess to make the use of the building. I don’t know that it would grant them a vested right to have the trucks in place right now. That’s where common law vested rights would come into play and then it’s gonna be a factual determination based on how much they’ve spent, how much they’ve spent in furtherance of that particular use uh without knowledge of impending zoning, based on some sort of permission - it gets really factual specific at that point so I would hesitate to comment as to whether they would or would not at this point have a vested right on uh the truck portion - if that helps at all. It may not help you at all. Uh and then again with regard to what they’re asking for today - the statutory vested right - it will be delineated one way or another I believe by your decision today as to whether - you know that would be included or not.”
Chairman Moyer - “Alright. I’m gonna ask Mr. uh Justus - I think all the other parties have had a chance to make closing comments and . . . I’ll ask Mr. Justus to make his closing comments on behalf of Mr. Schenimann and any legal arguments that he would like to make at this time.”
Craig Justus - “Thank you Mr. Chairman and members of - of the Board of Commissioners. Uh thank you for your patience throughout this. It’s not an easy decision to make. Uh we’ve tried to make it an easy decision uh I think Commissioner Gordon did express where at least we’re coming from which is the proposition that we are vested right now with ability to put in seven buildings, not six, seven buildings and that with that we are entitled to do whatever is incidental to a mini-storage building facility which we would contend includes rental trucks. Uh that has been my client’s intent uh it’s maybe unfortunate that we’ve had to clarify it today but we wanted to make sure everything was on the table uh so we intend to proceed with the project as we have outlined to you whether you give us vested rights or not. Uh what I’ve said from the beginning - the reason we’re here today instead of just not wasting his resources paying me and not wasting your time with this is that we’re asking for flexibility of timing. Mr. Schenimann is not the richest man in the world and doesn’t purport to be and he wants some ability to more reasonably expand out the time to build the improvements and market the improvements and it is true that if we - if the restrictions you impose - if you adopted a plan far too onerous then my client won’t accept it and we’ll just move on to our first alternative. We would rather have clarity of what’s going on out there from our standpoint, from your standpoint, and from the neighbor’s standpoint and that’s what this site specific plan gives you. It is and I’ve said it before I don’t think we’ll be able to appease everybody, make everybody happy but as you know there is no zoning out there and our client proceeded with buying this property in good faith, knowing there was no zoning that would prohibit his use and I would disagree with the comment that Howard Gap Road is a residential neighborhood road, it is not. It is a mixed use community, if you drive up and down it is very mixed use. The hospital is right down the road with all the development that’s going on there. There is a - there’s a mini-storage building that’s just less than a - probably 500 yards that’s toward the hospital, there’s the intersection of the - of the uh - of uh - what is that road, it starts with a B - it’s just escaped me”
Commissioner Gordon - “Brookside Camp”
Craig Justus - “Brookside Camp. It’s just right down the road. It is not an internal residential street with cul-de-sacs. It is a major road in your county. My client proceeded in good faith to buy it. He is here today to have a give and take with the county, with the neighborhood, and try to reach some concessions and we believe we’ve done all that we can with the buffering concept, reducing the density and everything we’ve stated to you is trying to work in good faith with this body in the neighborhood and we’ve met with the neighbors on several occasions outside of this process to try to do that. Uh I don’t know anything more we could possibly do uh and so I would ask that you approve this plan with the time-frame that we have asked for so that we can build this project as it’s laid out before you today and everybody understands what’s going out there.”
Chairman Moyer - “Thank you Mr. Justus. I think uh with the closing comments having concluded we will - we are in a position to close the record and then proceed with discussion of the Board. I thank you all for your patience. This has been a long time but we wanted to try to get all the information out, everything on the record and it is complicated from a legal standpoint to try to understand what all the ramifications are.”
Commissioner Ward - “I’ll make a motion to go out of quasi hearing.”
Chairman Moyer - “All in favor of that motion, say aye.”
In unison - “Unanimous aye”
Chairman Moyer - “Alright what is the Board’s pleasure it passed unanimously - we can proceed today to make a decision, we can ask the uh - the uh - our legal counsel to come back with a draft of - of an order that we can review. I think there are a couple issues that we need to uh clarify as we move forward but what is the Board’s pleasure. Do you want to act on this now?”
Commissioner Ward - “Mr. Chair, I - we’ve drug this out for two months and there’s another issue pending on it that will have precedence on our decision here. Uh I’d like to act on it today.”
Chairman Moyer - “Any disagreement?”
Commissioner Gordon - “No”
Chairman Moyer - “Well let’s proceed on the basis that we’ll act on it today. Open for discussion.”
Commissioner Ward - “Well, I guess the first thing I’d like to discuss is flow control of the water. I think as our site visit surely indicated that uh there is water that flows through Mr. Schenimann’s property uh how you control it - if our visit was probably after this little rainy spell - you know it would probably be a true determination from what Mr. Johnson’s property and other properties would do but we’re not taking that into consideration because we’re not there. I think there’s some method of - of flow control of uh run-off water that needs to do into - into that valley. Uh if nothing else a uh rock divider of uh and I can’t know the size of the rock but basically it’s like landscape rock to stop the water flow and from flowing down on the adjoining property.”
Chairman Moyer - “Well under retain - you mean to retain the rock line basically basin - that we retain water for a certain time”
Commissioner Ward - “Yeah where basically it’s not the hard flow of water and trickles it down to a - to a flow. I think that’s a necessity because as we looked at on Howard Gap Road there was two or three points of water through a culvert was coming across and really no one could define how much water was coming across, either from the side- the north side or even from Ms. Moore’s property coming down her road, no one could tell me how much water it is so I had to assume to my experience and I guess the Times-News can verify that. Uh . . . how much water it is so I - I really believe there is gonna be foreseen trouble of flow control and I think some rock barriers to break down the speed of the water is necessary uh”
Chairman Moyer - “So if we had an order - if we had a vested rights order you would like to see”
Commissioner Ward - “If we - if we contend there’s a vested rights issue I think that would be one of the requirements that I would like to see.”
Commissioner Gordon - “If I’m - if I might suggest rather than going into a lot of detail on what we might like to see in a vested rights or not, I think the first thing we need to uh determine is if we think vested rights if appropriate and then uh once we discuss another basic”
Commissioner Ward - “We could go in that way”
Commissioner Gordon - “Yeah, yeah, we need to decide if this is uh - if we think it’s appropriate to uh approve a vested rights”
Commissioner Ward - “And the length of it”
Commissioner Gordon - “For this and the length and then talk about the details of it and it could - depending on what we decide, it could save time or - or at least we’d know where we’re going and I think that’s where we need to start.”
Commissioner Ward - “Well, and I was taking a foregone conclusion uh that both parties indicated that would - they would like to have some sort of vested rights and I would agree if - to a point that vested rights is. I think really - you know I’ve said here and I’ve said it over and over again eight years and saw numerous cases and I really believe this may be a stretch for vested rights to a point uh I’ve never saw one truly like it uh so but I - I think there’s a vested rights to protect both sides in it but five years I’ll - I can’t say there’s a five years vested rights there. The length uh is basically in my opinion determined on what requirements be placed in the vested rights issue.”
Chairman Moyer - “I think it is uh Don - I tend to agree with you - I think it’s a very unusual situation for vested rights, not what you would normally - not - what I would not normally apply to statutory vested rights but I think under the circumstances the residents of the area stand to benefit a lot more with the type of order that we can - we can fashion and with some of the protections we can build in than if we don’t uh grant it so I would be in favor - the length of the time also bothers me and I would - I’ll tell you where I am in a minute but again I think that that’s gonna be part of our order and then they can decide - the parties can decide, particularly the applicant - whether it fits their needs or whether we have to consider it again but uh I would think that uh based on the conditions we’ve set up including the retention pond and including a proper delineation of the size of trucks as has been offered by Mr. Justus and Mr. Schenimann that they - a three year period would be - would be appropriate from my standpoint.”
Commissioner Ward - “And I - and I true - I agree on what requirements and - that we would place on it. I was - before - just all this additional information come in - I was more leaning toward the two year uh vested rights uh and it depends on what we decide on the flow control.”
Commissioner Messer - “You know I’d like to make a comment. I kinda agree with both of you and I don’t say either two or three years but if you look to the vested right request and then all these changes that have been brought forth today and it’s like Marilyn said - you can - you know you - you know you can vote either for vested rights or not - you know I don’t think that five years is adequate but it might have some dec- but it might have some impact on my decision with these changes uh just like going from six to five rentals - going to six to five is going to have a big impact on lighting - you know, traffic and a lot of things on that road and in the future. But then on the other hand the truck issue was not - I mean I - I personally hadn’t heard the truck rental uh before and I’ve got some questions about where it would go at the site or whatever - if that would be adequate to ask because I hadn’t heard it before but I don’t know if that is standard procedures for storage but I think - but as far as the vested right issue, the five years, no but I do have some questions containing the other vested rights . . .”
Commissioner Gordon - “Then you’re saying you’d consider vested rights for a shorter period of time?”
Commissioner Messer - “Right.”
Commissioner Gordon - “OK. Uh cause - I do know uh storage units that do have rental trucks and it is very much a normal part of doing business for mini-storage uh facilities so uh I think having a small number on site maybe with some limitation on the size of the vehicle or something I think might be something that needs to be there just - in order to ensure that this is a viable uh operation and I think it’s in the best interest of the neighbors that it - since it is there that it be - be a viable operation and able to maintain the appearance and the landscaping - the things that it needs to fit into the community. Uh my concern with uh not granting any vested rights and being - saying essentially no way is that you lose any control at all of these things. I think there has been a lot of negotiation that’s gone on on both sides and I compliment the - the community and uh Mr. Schenimann for doing that uh and you have come up with a set of restrictions that uh probably if there had been some other sort of regulation in place, wouldn’t have been any better than what you’ve got. You’ve got good landscaping and distancing from property lines and things that need to be there so I - and I would hate to just walk away from that and say uh - no you don’t have to do any of it because in this case we’ve got people that agree to it and uh want to do it so uh I think we do need to uh maybe fine tune these provisions uh and do some sort of a vested rights and I too - I think five years may be too much but I think two - two years probably in the economic situation we’re in isn’t enough so I think we need to - to be reasonable on that and I think in the long term it would be better off for the community to see that all of this is completed as it’s been shown.”
Chairman Moyer - “Well let’s - it sounds to me like we agree that at least going forward to phase - to put together a recommendation - that we are in favor of some type of vested rights. And we can start with the application, with the amendments that were made today and the changes and typically with respect to the fencing and - which has been agreed upon. Uh with respect to the retention pond, can we - we agree to put in the order that at the lower end towards Mr. Johnson’s property that there would be some type of retention pond, preferably stone lined that would slow down the - the water and provide for a more orderly release from the property.”
Commissioner Gordon - “My only reservation and I heard some of the people mention it while we were out there is that we don’t create a situation that’s going to be a health hazzard and just a mosquito pond and so I think that there really needs to be the ability for Mr. Schenimann and the neighbors there to - to see how this - what’s needed as this goes along and if there needs to be a change made at a later time on what’s done to prevent that kind of thing then they need to be able to do it if there’s some way to work - structure it that way.”
Commissioner Ward - “I think if you go with rip rap rock your detention pond basically flows down the flow of the water under my experience and basically uh the water can slow down where it’s not gonna be an erosion type situation plus it retains the silt.”
Chairman Moyer - “And then it drains out.”
Commissioner Ward - “On the first - on the first phase of it and then you can remove the silt if it mounts up.”
Commissioner Gordon - “OK”
Commissioner Ward - “Uh you know its just - that’s what I’ve always done on some of my property and I think - and we’ve got a professional engineer sitting back there that’s probably worked with the same type of rock on flow and maybe we can ask him to assist in some way.”
Chairman Moyer - “Charlie, where are you on the retention pond? Are you agreeable to that part of the order?”
Commissioner Messer - “Well, it goes back to some of the comments that were made earlier - you know - I mean I - I would personally like to vote on vested rights. He has rules and regulations that he - that he has to follow containing water and etc. and I think uh - like I say there’s a lot of questions on this - on this that he’s asked for is - is - you know we need to look at.”
Chairman Moyer - “But if we’re”
Commissioner Ward - “Well”
Chairman Moyer - “But if we’re gonna talk about a retention pond, say if we’re gonna- if we’re gonna write a vested rights order, we have - there is no law we’ve got to build in whatever conditions we want and clarify them with some flexibility like Marilyn was saying so that he can do it. But we need to build that into our vested rights order or you’re back to the existing law.”
Commissioner Messer - “Well I don’t - Bill I don’t see how we can build uh anything containing these flood plain if he’s doing what he says - if the State says he’s doing what he says that he has to do - now if we get some hard rain or whatever it could be - you know it definitely could be a different situation overnight and - and - you know I mean I don’t see how we can make a dec - you know a decision on - on a pond out there because I don’t think it’s adequate”
Chairman Moyer - “Yeah but wait - the applicant and their counsel have both indicated today that if we wanted to put in some type of retention pond to facilitate granting vested rights, they would be willing to work with developing something that would . . .”
Commissioner Messer - “Well I don’t have a problem - I don’t have a problem with that as long as it’s you know as long as both parties can agree. Right now uh - you know that was one of my questions brought up from day one about that pond out there and then you go back behind Mr. Johnson’s house uh - course we did have two inches or so of rain this past week-end and I don’t know if you had any problem there but somewhere down the road I think there’ll be a problem and for this Board to make that call - I don’t think that - that you know”
Commissioner Ward - “Well maybe I don’t fully understand the direction that you’re going Charlie but I think it’s plain and simple. The vested rights length is determined in my mind on what requirements we are placing on the applicant. I mean that’s the only way I see it.”
Commissioner Messer - “Well, like I said I don’t have a problem with that but I think to ask to make us make certain rules and stuff about a pond - I don’t think that we should be qualified to do that”
Commissioner Ward - “That’s our job”
Angela Beeker - “Well”
Commissioner Messer - “Right but I think we need to do it whenever all of us are here and whenever all of us really understand the matter”
Commissioner Ward - “Oh, OK.”
Angela Beeker - “I - I do want to weigh in a little bit and tag onto what Commissioner Messer is saying. I guess - what I recall them saying they would be willing to do and Craig can correct me if I’m wrong is that the pond that is there, they would be willing to leave.”
Chairman Moyer - “No they went beyond that.”
Several people were talking at once here ... ?
Angela Beeker - “You said you would actually build a pond?”
Craig Justus - “The clarification is that in the construction of building six - five and six.”
Chairman Moyer - “Five”
Angela Beeker - “Uh huh”
Craig Justus - “There would be an erosion control plan submitted for approval”
Angela Beeker - “Right”
Craig Justus - “And within that plan a new pond would be constructed. The question was would you, after construction is complete, would you want us to keep it there or fill it in?”
Angela Beeker - “Right, but you weren’t talking about doing some special thing other than - I understood it to be in connection with the erosion control plan.”
Craig Justus - “In connection with the erosion control plan would you want us to keep the pond there permanently or the base detention basin or remove it?”
Angela Beeker - “Right”
Craig Justus - “And that’s where the discussion of mosquitos and - from some people but some people like the idea”
Angela Beeker - “Right”
Craig Justus - “And the rip rap is a fine idea so that’s why”
Chairman Moyer - “We’re - Don and I are trying to say that we’d like the pond to have like an overflow valve so it doesn’t accumulate water long time but it protects and stores water when you get the excessive run off and then you have a pipe that - it will gradually take it back down and you have the rock and catches the silt - that’s the way I normally would construct it.”
Angela Beeker - “Which is not normally what necessarily you were gonna do but”
Craig Justus - “That - it’s just - it’s an overflow valve that would reduce the water, keep the water going down and then the water would hit a - flow out and hit a rock - hit rocks”
Chairman Moyer - “Right”
Commissioner Ward - “Yeah”
Commissioner Messer - “But Craig”
Chairman Moyer - “Same thing you have to give you some volume control.”
Commissioner Messer - “So basically what you’re saying - or you all are willing to do that if we make that call, right?”
Craig Justus - “With that specific issue uh I don’t know that - I’m not an engineer. You said you had an engineer out here”
Angela Beeker - “Well”
Chairman Moyer - “We can’t engineer it for you”
Angela Beeker - “Well that’s - that’s where I was going that we’re not qualified - that I do not want the Board to stake itself out with the community as putting a requirement in there that they’re later going to come back to you and say hey you ask and you thought this water or you said this would control the water and it’s not” Several people were talking while Angela was. I hope I got this right. “I don’t want you to hold yourselves out so if it’s as simple as them retaining whatever control measures they have to put in place for the State, pass the State, pass the - when they complete the project - that I’m not as concerned with as staking yourself out to try and determine what would be adequate to control the run-off.”
Chairman Moyer - “We can’t do that”
Commissioner Messer - “Right and that’s - and that was my point from day one right.”
Craig Justus - “It is a question of - as long as you know there’s not a conflict in what the State requires and what you would require I assume it’s a question of whether the State sets a minimum and then you’re asking for us to do something on top of that. Obviously we couldn’t abide by an order of the county that would violate a State requirement uh so I - I don’t know where to go with that. I- I”
Chairman Moyer - “But once you’re - wait a minute - once you’re construction is finished the State requirement will end”
Commissioner Ward - “Yeah”
Chairman Moyer - “We’re talking about what you do after the State requirement. All we’re asking is that you retain some type of retention uh but not that you have water sitting there and create a health hazzard, some way to reduce that volume, overflow valve or whatever you think is appropriate so that we don’t end up with a unsightly pond there.”
Craig Justus - “OK. And all I can say is we don’t know enough at this point. If you want to say that that’s a condition what we would have to do before we accepted the vested rights permit or whatever is have to go back and find out what the cost associated with that is. Uh we don’t know and whether it can be engineered or - you know we’re talking about a nightmare of enforcement. I just don’t know.”
Chairman Moyer - “OK”
Commissioner Ward - “That’s fair”
Chairman Moyer - “Uh the other issue I think we need to address specifically is the trucks uh I think as Commissioner Messer indicated that was new to me also. I don’t remember seeing anything about trucks and I think in fairness there are some storage units that have em and some - some that don’t so I don’t think you can automatically assume that that’s part of it but I think if there’s - we don’t want an issue later so we need to clarify that - do we limit the size, do we limit it entirely, or what do we do with respect to that?”
Commissioner Messer - “I’d like to ask - I’d like to ask a couple questions containing to trucks if - if”
Commissioner Ward - “The public hearing’s over”
Chairman Moyer - “The hearing’s over”
Commissioner Messer - “Well maybe you can answer the questions or somebody can answer questions if not I’ll - you know I - I don’t know if I would be willing to make a decision. I’d like to know where on the map would the trucks be placed, how many trucks would be uh on site”
Commissioner Ward - “Four trucks”
Commissioner Gordon - “No more than four, no more than four trucks”
Chairman Moyer - “And they’re willing to limit the size.”
Angela Beeker - “And that they would go where the RVs and boats go. They - the word rental - where it says RV, boat, rental - I’m assuming that’s referring to the trucks”
Commissioner Messer - “Alright if you look at the uh storage units where the rental goes in the back which is 250 and 45 RV spaces- I mean I don’t - I don’t see how you can get four trucks back there if they’re twenty foot trucks, sixteen foot trucks, fourteen foot trucks.”
Commissioner Gordon - “Well if - if they don’t have - if that’s where they’re gonna keep em then they’re not gonna be able to rent as many spots for other things so either way you’re gonna have - the space is gonna be filled one way or the other, whether it’s rental trucks or RVs, that’s where they go.”
Commissioner Ward - “I tell ya - Mr. Moyer, the way I stand on it - I think rental trucks is part of doing business - if that’s his option of - of making a living and it gives him a little bit of uh a chance to make uh a better living. I’d do it if we - he’s already volunteered to put a limitation on the size of it, a ton and a half size rental truck would probably meet the need on most everything and it’s way smaller than a mobile home - I mean a motor home - if he’s agreeable to that cause a two ton truck you very seldom see if you go out Tracy Grove Road to that one the majority of those are ton and a half. I don’t know if it’s Ryder or whoever he’s got - gonna contract with uh he might put - see in our uh vested rights that a ton and a half is available for - if it’s a problem on - it’s gonna be - I don’t think he’ll ever get 45 units there but make the rental trucks part of the 45, compromise that way. I don’t think he’ll ever have 45 storage units there it’s just the possibility of one day uh majority I’ve saw my storage unit - the storage unit that joins one of my properties, I counted the other day and he had sixteen in there, over there next to Coopers they had 22 and uh it’s a pretty good sized units, 45 I think he has ample room and I would go for ton and a half.”
Chairman Moyer - “I think that’s a reasonable way to deal with it. I think in fairness this was something added since we had our last discussion and if we said the ton and a half and the 45 would have to include the four and put that in the order, I would think that would be a reasonable and fair way to address it cause I don’t want to have to argue whether it’s a difference between a boat or a truck rental but between a ton and a half I think it would be reasonable to just stick with the 45 and put the ton and a half on it.”
Commissioner Ward - “Cause whose to say that a man wouldn’t come in there and put a - I mean I’ve got two or three trucks that’s van trucks that’s ton and a half that one day I could store next to my neighbor - I’d say could you store these in your lot for x amount of days, it wouldn’t be different. It setting there, it being yellow or orange than mine being white.”
Chairman Moyer - “Well are there any other main issues that we missed. That covers my notes.”
Angela Beeker - “Was there anything with lighting?”
Chairman Moyer - “The only thing with respect to lighting was brought up again by Janice but the - when we discussed the lighting out there it’s what - what they’ve agreed to is what is in the uh summary of changes.”
Angela Beeker - “OK.”
Commissioner Gordon - “And I do - you know I live in a neighborhood where many of my neighbors have all night lights so it’s not - I know that commercial lighting is an issue but I’ve - I - it did appear that Mr. Schenimann was trying to reduce the uh the impact there as much as he could and still keep things safe and uh there’s really no neighborhood in this day and age that doesn’t have some impact from lighting and I don’t always like it but the - it’s there.”
Chairman Moyer - “And I think the wattage is all delineated in the exterior lighting”
Commissioner Ward - “Uh huh.”
Angela Beeker - “It was.”
Chairman Moyer - “Well, if it’s the Board’s uh agreement, I would ask that staff draw up a vested right - I guess it’s agreement.”
Angela Beeker - “An ordinance.”
Chairman Moyer - “Ordinance which takes the revised application plus the additional changes that we made today with respect to distance from property lines, fences, and things like that in accordance with what the Board has indicated today that uh we would designate that we want some type of retention area continued, hopefully in - building on what the State requires but with the request that we try to make it so that it will have a system for reducing the amount of water so we won’t have standing water sitting there after construction is completed and I would think they would want that as well uh and that we - we would make clear that truck rental can be there. The maximum number would be four, they’d be ton and a half but that the total number of spaces for RV/boat spaces and truck rental would be 45, so the four would be included in the 45 so it would be 41 and 4.”
Angela Beeker - “What about the duration - duration?”
Chairman Moyer - “That’s right that’s what we have to get to now.”
Commissioner Ward - “I think the additional requirements that we have imposed - I would go along with your recommendation of three years.”
Commissioner Gordon - “I - I think that is kinda like playing . . . but I think that - I can live with that. I think that’s reasonable.”
Chairman Moyer - “Charlie, I know you were leaning towards two?”
Commissioner Messer - “I can live with three years if people out there - and I mean if - you know I can’t agree with all the - the vested two - three years I can live with.”
Chairman Moyer - “I think the trade-off has to be all the things that they’re willing to do and I think they’re entitled to something for that and I think the other year, year and a half, two years is uh - I think will be a good trade-off for the community if the applicant can live with it. We’ll have to see when he sees the order. Is there anything else we need to advise the attorney on this matter that uh before you can draft the ordinance?”
Angela Beeker - “No sir. And I will also submit it to both attorneys and talk with them about different wordings and things before I bring it back to you.”
Chairman Moyer - “Alright”
Angela Beeker - “OK”
Chairman Moyer - “Thank you.”
Craig Justus - “Mr. Chairman, is there any way for us to comment cause I know there’s gonna be a lot of energy drafting something and you’ve come up with conditions and I do have an idea on one point that is a potential deal breaker.”
Chairman Moyer - “Alright.”
Craig Justus - “And I just”
Chairman Moyer - “Go ahead Mr. Justus, we’ll hear your comment. We’re not a part of the public hearing so this is just comment”
Craig Justus - “I un - I understand. The whole reason of all the conditions that we have been willing to impose us is to get back time and I will tell you that three years is - is a potential deal breaker for us. I -I talked to my client cause we were asking for five and there was good reasons for that. I did talk to my client and he had said that he could live with three and a half years but three years would be a potential deal breaker and instead of - and I’m not trying to create a ballistic situation here I just want to let you know that cause my client does have a concern with being able to complete the facility under more reasonable circumstances in the time frame of three years and so we’re asking - we agreed to modify the application if necessary or we just indicated a willingness to set 3 1/2.”
Chairman Moyer - “Comments from the Board?”
Commissioner Gordon - “I’m not real sure what we’ve got to lose by saying 3 1/2 years uh I don’t know and I can appreciate the economic considerations that would have to go into it. There would be more money spent here than there would have otherwise for sure without the vested right.”
Angela Beeker - “The - in the ordinance the time frame to go beyond two years and I apologize, I don’t have my ordinance with me but I believe and Karen you can correct me if I’m wrong - based on prevailing economic conditions and so if you all could include some comments as to that when you’re considering your time frame.”
Chairman Moyer - “You know negotiating like this piece meal is always uh difficult and I’m gonna - I’m gonna make a statement in return Mr. Justus. I’m sure you’ll know as an attorney that I’d be willing to do that assuming you’d buy the - all of the other conditions as we have them. I’m not gonna have you change this and then come back to me and say well now we don’t like this. And I know that puts you in a difficult position but you’re doing the reverse to me so.”
Craig Justus - “Well and I apologize for doing the reverse to you. Uh - uh - we have listened to the conditions that you’ve imposed upon us and that’s one of the reasons why I had to come back up and say about the time frame - three and a half years is what we’re asking for and the conditions as you’ve outlined them today we - are acceptable to us. The only hanging”
Chairman Moyer - “You’ve seen the wording and I will accept”
Craig Justus - “That and the only handing issue is of course the engineering concept of this overflow cause I don’t know that”
Chairman Moyer - “Right”
Craig Justus - “And I don’t know what the cost of that is and at the next meeting we can finalize that but if you’re looking for a - a - sorta a letter of intent - what you’ve said before with the three and a half years is acceptable.”
Chairman Moyer - “Mr. Ward, is that satisfactory to you then?”
Commissioner Ward - “That’s 42 months. Uh yeah I could stretch it, I just - I really don’t want to, to tell you the truth but to leave the community with no help at all I think it’s in the best interest for us to do it.”
Chairman Moyer - “I’ll support 3 1/2 years.”
Commissioner Gordon - “And I think you have to remember and if Mr. Schenimann’s a businessman and I’m sure he would like to have it built out in eighteen months if that were economically possible - I don’t thing that you’re setting up a situation where he’s going to deliberately try to string this out. I think uh what he’s asking for is a reasonable amount of time to get it done uh and I’m sure we’ll be trying to get this thing finished.”
Commissioner Ward - “And the other drawback that I see and I ain’t got nothing to win or gain by this meeting as everybody knows but uh the alternative of a commercial piece of property that doesn’t succeed as a storage building I don’t want and that’s - that would be the downfall, to give him the extra month in the economic session that we’re in right now which is almost a depression, the alternative of some goldmining person to come in and put an establishment in there that would really set the community on ear I think is unceivable.”
Commissioner Gordon - “Well, and I think you have to bear in mind too if that - if that property were zoned residential and - and he did not succeed and went back to residential zoning the chance of someone putting something good residential on that piece of property are very very slim uh so I think really the community since we’ve got the situation we’ve got now will be better served if he is able to build out what he has proposed and it does uh - does pay it’s bills - able to pay it’s bills and keep itself up.”
Chairman Moyer - “We’ll modify then what we - the direction we gave the County Attorney to make it that 3 2 years but all the other conditions and obviously the other comments with respect to general agreement is just - just that - indication of present intent and uh - but I think that was helpful. I appreciate that Mr. Justus.”
Angela Beeker - “Mr. Chairman, I would also request the latitude to review all the things that have been submitted by everyone and if other things come up that we haven’t remembered to mention today that I be able to bring those - those back to you for instance I think Karen had submitted some proposed conditions and things like that from staff and I would like to be able to - to bring those to you and I don’t have those with me today either.”
Chairman Moyer - “Alright that will be fine.”
Angela Beeker - “OK”
Chairman Moyer - “Now when you I think follow the procedure you said, come up with a draft ordinance, have the other parties - all the parties take a look at it, and when it’s ready bring it back to the Board, hopefully as - as soon as possible. Alright, I think that concludes uh that very difficult matter.”
Set Workshop and Set Public Input Session on the Draft of the New Zoning Ordinance.
The Board set the Workshop for October 3 at 2:00 p.m.
Set Public Hearing - Environmental Assessment for Mills River Sewer Project
Chairman Moyer made the motion to set the public hearing for November 20 at 11:00 a.m. All voted in favor and the motion carried.
CANE CREEK WATER & SEWER DISTRICT - no business
Commissioner Ward made the motion for the Board to go into closed session as allowed pursuant to NCGS 143-318.11 for the following reasons:
1.(a)(6) To consider the qualifications, competence, performance, character, fitness, conditions of appointment or conditions of initial employment of an individual public officer or employee or prospective public officer or employee or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee.
2.(a)(5) To establish or to instruct the public body’s staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (l) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease or to the amount of compensation and other material terms of an employment contract or proposed employment contract.
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 the meeting. All voted in favor and the motion carried.
Elizabeth W. Corn, Clerk to the Board William L. Moyer, Chairman