STATE OF NORTH CAROLINA                                            BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                               NOVEMBER 12, 2002


The Henderson County Board of Commissioners met for a special called meeting at 7:00 p.m. in the Commissioners' Conference Room of the Henderson County Office Building.


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


Also present were: Planning Director Karen C. Smith, Zoning Administrator Dan Gurley, Planner Josh Freeman and Deputy Clerk to the Board Amy R. Brantley.


Absent was: Public Information Officer Chris S. Coulson.



Chairman Moyer called the meeting to order and welcomed all in attendance. The purpose of this meeting was a public hearing for the Commissioners and Staff to receive public input on the Proposed Zoning Map Amendments based on the Howard Gap/Brookside Camp Road Area Zoning Study.


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



Commissioner Hawkins made the motion to go into Public Hearing. All voted in favor and the motion carried.


Josh Freeman reminded the Board of the specifics of the recommendations. The study area as a whole is centered roughly at the intersection of Howard Gap Road and Brookside Camp Road, on the east side of I-26, extending north toward Patty=s Chapel Road and west toward the top of Hutch Mountain Road. He showed the various sections on a map, briefly described their location and the recommended zoning proposed.

C                  Section 1 - Recommended to remain Open Use

C                  Section 2 - Recommended to be rezoned R-20

C                  Section 3 - Recommended to be rezoned T-20

C                  Section 10 - Recommended to be rezoned RC (Rural Conservation)

C                  Section 4 - Recommended to be rezoned R-20

C                  Section 5 - Recommended to be rezoned R-15

C                  Section 6 - Recommended to be rezoned C-2P

C                  Section 7 - Divided into 7A, 7B and 7C - All recommended to be rezoned C-2P

C                  Section 11 - Divided into 11A and 11B - Both recommended to be rezoned C-4

C                  Section 8 - Recommended to be rezoned T-15

C                  Section 12 - Recommended to be rezoned R-15

C                  Section 13 - Recommended to be rezoned T-15

C                  Section 9 - Recommended to be rezoned R-15

Mr. Freeman noted that the way this was advertised, the Board would have the option on Section 6 of approving or denying C-2P or R-15. On Section 11, the option of approving or denying

C-2P, C-2 or C-4. On all other sections, only the recommended rezoning could be approved or denied. He stated that the recommendations were the recommendations of the Henderson County Planning Board and a subcommittee thereof. The legal public hearing requirements had been met, and approximately 1,600 letters were sent to property owners in the area and adjacent property owners.


Chairman Moyer requested some additional discussion of Section 7. Mr. Freeman stated that 7A is located at the intersection of Whispering Hills Drive and Howard Gap Road. It is one parcel, owned by Joyce Elaine Lamb, recommended for C-2P zoning. Section 7B, recommended for    C-2P zoning, begins on the north side of Brookside Camp Road at the intersection of Brookside Camp and I-26 and extends west on Brookside Camp toward Howard Gap, terminating at property owned by Leon Lamb. He stated again that on Sections 11A and 11B the Board had the option of approving or denying C-2P, C-2 or C-4, and briefly described the uses currently present on these sections. Section 7C, located south of Section 11B was recommended to be rezoned    C-2P.


Commissioner Hawkins questioned the uses for C-2. Josh answered that C-2 and C-4 are both commercial districts. C-4 is a highway commercial district, and C-2 is a neighborhood commercial district. The primary distinction between the two is that C-2 requires a conditional use permit for a much larger array of industrial uses. Of particular interest for Section 11 is gasoline pumps. C-2 would allow gas pumps only with a conditional use permit while C-4 would allow gas pumps by right. C-2 requires that all other uses take place inside a structure unless a light industry special use permit is obtained. 


Commissioner Hawkins questioned the major differences between C-2 and C-2P. Mr. Freeman answered that C-2P does not allow light industrial uses. This would cause the current gas pumps and car wash to be non-conforming uses. If they were destroyed for some reason, they could be built back, but not expanded upon.                     


Public Input


1. Marie Sandborn - Ms. Sandborn lives off Howard Gap Road, adjacent to Section 6. She requested the Board act upon the Planning Board=s recommendations except for Sections 6 and 11. She requested Section 6 be zoned R-15, and Sections 11A and 11B be zoned C-2 or C-2P.


2. Dorothy Conley - Ms. Conley stated that she lives adjacent to Section 6, and thanked the Board for considering the residential zoning. She did not believe industrial or commercial uses, such as the one located next to her property, belonged in residential neighborhoods. She requested the Board rezone Section 6 to R-15, to correspond with the surrounding properties. She also requested Sections 11A and 11B be rezoned C-2P.     


3. Michael Kay - Mr. Kay stated that he lived in Section 5, Whispering Hills. He commended the Board for considering the proposed zoning, stating that he felt it was greatly needed. He also thanked the Planning Board and others that helped with the study. He felt overall the proposals were good, with a few exceptions. He requested the Board consider a C-2P designation for Sections 11A and 11B, and an R-15 designation for Section 6. He also stated that he was opposed to a C-2P designation for Section 7A, feeling that it should remain residential.


4. Ed Nucholls - Mr. Nucholls spoke to Sections 11A and 11B. He had worked with staff for some time, and had originally wished the area to be zoned residential. He and his mother own the property to the north of Section 11B. After much discussion in the Planning Board=s subcommittee, he had agreed to a C-2P. He stated that there was never any consideration for a  C-2 or a C-4 designation. He requested that as agreed, that whole area should have a C-2P designation.


5. Glenn Clark - Mr. Clark stated that he lives on Glenwood Lane, and owns two parcels that are adjacent to Section 1 which will remain Open Use. He is opposed to the zoning, and requested his property be left unzoned.


Mr. Clark=s property was located on the map, and would be referred to as the AClark 810 Property@ for future reference.


6. Janis Moore - Ms. Moore stated that she lives on Howard Gap Road. She thanked the Board for considering the zoning proposal, and those who had worked to support the effort. She stated that with the growth being experienced in the county, land planning is essential for smart growth. She expressed particular concern over the zoning designation for Sections 6, 11A and 11B, requesting R-15 zoning for Section 6 and C-2P for Sections 11A and 11B. She requested that those who have commercial properties consider their neighbors, and provide appropriate buffers and landscaping. She requested the Board vote in the zoning.


7. Harry Schenimann - Mr. Schenimann stated that he is the owner of Howard Gap Storage, and the acreage comprising Section 6. He requested his property be zoned, as was recommended,    C-2P. He did not feel Howard Gap Road was a residential street, but was a thoroughfare with a lot of traffic throughout the day. He also pointed out the many non-residential properties in the area that were within a mile of his property. He stated that he would also be agreeable to splitting the zoning on his property, having the upper area zoned R-15 and the lower area C-2P.


8. William Gerling - Mr. Gerling lives on Richards Drive, located in Section 5 on the map. He stated that he was in favor of keeping Section 5 as residential. He was also in favor of zoning Section 6 residential, but stated he would support splitting the zoning. He stated that he would prefer a residential or C-2P zoning for Section 7A, and C-2 or C-2P for Sections 11A and 11B.


9. Michael Edney - Mr. Edney stated that he was speaking on behalf of Leon Lamb. Mr. Lamb owns the majority of Sections 11A and 11B. He requested the Board follow the Planning Board=s recommendation and zone those sections C-4. Reasons for that request were that the 1993 Land Use Plan designates the area as commercial, commercial uses should be concentrated in designated areas, and commercial developments in rural communities should be limited to major intersections, which this is. He discussed the various uses that would be allowed or disallowed under the various zoning designations. He stated that Mr. Lamb wished the Board to allow him the most uses for his land.

10. Craig Justus - Mr. Justus stated that he was present on behalf of Joyce Livingston, the owner of the Section 7A property. Originally, this property was not included as part of the study. It was added when the study area was expanded by the Planning Board. He stated that Ms. Livingston would prefer to have her property zoned C-2P to allow for future residential or commercial uses.   He sited several reasons why C-2P would be the ideal zoning for the property.   


11. Guido Migiano - Mr. Migiano stated that he lives on Sunlight Ridge Drive in the Ledges Subdivision, located in Section 4. He felt that the lack of zoning hurt property values in the unzoned areas. He stated an appreciation to the Board for getting the zoning going in the area. He noted an opposition to C-4 zoning for Sections 11A and 11B, feeling that such zoning would destroy the property values and tax base in the area.   


12. Don Bagwell - Mr. Bagwell lives at 3057 Holly Hill Road, currently a part of Section 5. He thanked the Board for the opportunity to address his concerns. He noted that Section 5 is not just the Whispering Hills Subdivision; the portion of Section 5 northeast of Howard Gap Road is not located in Whispering Hills. He noted that there are 12 property owners on Holly Hill Road, for which he is responding. He had a signed petition which outlined that those property owners did not wish to be incorporated into a zoned area. Since the area is adjacent to Section #1 which will remain in Open Use, he requested the area be incorporated into that section and remain in Open Use. He stated that residents in that area would prefer to remain rural, and asked the Board to take the request under consideration.     


13. Pat Murphy - Ms. Murphy lives on Overhill Drive in Whispering Hills Subdivision. She thanked the Board for considering the zoning not just for her area, but for the outlying Hendersonville area. She urged the Board to listen to the residents in the area when making a decision.


14. Marvin Katz - Mr. Katz lives on Ledge View Drive in the Ledges Subdivision, located in Section 4. He noted that prior to moving to Henderson County, he had lived in eight different communities which either had zoning or were in the process of adopting zoning. He felt that the proposed map is zoned according to what is currently present, with the exception of Sections 11A and 11B. He felt that applying C-4 zoning to these sections would give carte blanche to the owners to place there whatever they wished. He stated that he had never seen in an initial zoning, a zoning that allowed more uses than were currently in place. 


15. Tedd Pearce - Mr. Pearce lives in the Ledges Subdivision, located in Section 4. He was also the chairman of the subcommittee and the Planning Board. He noted that the subcommittee did not make all the recommendations that the Planning Board did. The subcommittee=s recommendations were for C-2P on Section 6 and on the Nucholls property (11B). He stated that with respect to exempting several lots on Holly Hills Drive, some of those people signed the original petition requesting the zoning study. He stated that as a resident, he felt the C-4 designation would be excessive for the corner. He felt a C-2 designation would be more appropriate for the Lanning property, and C-2P for the remaining properties on both sides of the road. He also stated that he would prefer to see an R-15 designation on Section 6, but a compromise could be accomplished.


16. Gene Rouning - Mr. Rouning lives in Whispering Hills, and expressed several concerns about the proposed zoning. He felt Section 6 should be rezoned R-15. He felt the entrance to Whispering Hills Drive closest to Brookside Camp Road, in Section 7A should be rezoned R-15 since it is residential all around. He also felt C-2P was adequate for Sections 11A and 11B. He applauded the Board for proceeding with the zoning, though he felt it was about 30 years too late. He asked the Board to take into consideration the rights of property owners who had substantial investment in their homes.


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


Board Discussion

Chairman Moyer reminded the Board that there were many options available. They could take action at this meeting, wait for more information, or any range in between.


Commissioner Ward asked for legal opinion on Section 6, the Schenimann property. He questioned how the rezoning would affect the vested rights. Angela Beeker stated that it shouldn=t. The vested rights ordinance is good for 3 2 years, which gives Mr. Schenimann 3 2 years to develop the property as approved. If at the end of that time period the development was not completed, there would then have to be an analysis completed under different theories of law such as common law vested rights.


Commissioner Hawkins stated that the study area was a fairly large tract of land. He expressed surprise that there were really only four issues remaining, and a great deal of consensus among the other areas. The issues remaining which Commissioner Hawkins would like information on were:

1.               The two lots owned by Mr. Clark.

2.               The issue raised by Mr. Bagwell on the lots in Whispering Hills Subdivision, and the fact that they wish to remain in Open Use Zoning.

3.               The intersection of Howard Gap Road and Brookside Camp Road.

4.               Section 6.


He stated that it sounded like Mr. Schenimann would be comfortable with zoning the upper triangle the same as the surrounding contiguous zoning which would be R-15. For Sections 11A and 11B, he felt the best compatible use would be C-2P for both sections. He would like to see the areas discussed by Mr. Clark and Mr. Bagwell taken into consideration once they are located on the map.


Commissioner Messer stated that he would like to see the petition from Mr. Bagwell. He felt that because some of that parcel is contiguous to the Open Use, it should be considered for remaining in Open Use. He expressed concern however, that the Public Hearing had been closed and the petition had not been presented. Josh Freeman pointed out the Bagwell property, and the area comprising the parcels that wish to remain in Open Use. He also located the Clark property, stating that it too was directly adjacent to the Open Use area.


Commissioner Gordon thought it important to consider that overall, the zoning study had been very well done, and was appropriate to the area. She though it very important for the people in the area to understand that if appropriate commercial zoning were done now, there would be less future pressure for future rezonings. She felt the C-2P would be a good designation for commercial areas. She did express concern over Section 11A, stating that she would not want to see that property in a situation where it would not be able to improve itself.


Commissioner Ward made the motion to rezone the sections as follows: 7B as C-2P, 7C as C-2P, 11B as C-2P, 7A as C-2P, the entirety of Section 6 as R-15, and 11A as C-2. He moved the two properties belonging to Mr. Clark be relocated into Section 1. 


There was some discussion during the motion regarding reasons to zone Section 6 as R-15. There was much discussion regarding the designation of section 11A, with Commissioner Ward originally suggesting C-4. Josh Freeman clarified that in C-2, a conditional use permit would be required for light industry. That section is to be used Ato provide for general and commercial activity along major thoroughfares and at other convenient points in the area... It is not the intent of this district to encourage extensive strip commercial development, but rather to provide concentrations of general commercial activities.@  The use of C-4 Ais designed primarily to encourage the development of recognizable attractive groupings of facilities to serve persons traveling by automobile and local residents.@  Following that discussion, Commissioner Ward recommended rezoning Section 11A as C-2.


There was then discussion concerning the properties mentioned by Mr. Bagwell. Chairman Moyer requested staff take the petition, have a look at the properties, and bring the Board a recommendation as to what might make sense in that area, for consideration at the next meeting. Josh Freeman suggested dividing Section 5 into 5A and 5B, and considering them separately.  


Chairman Moyer restated Commissioner Ward=s motion as follows: to approve the zoning change for the Howard Gap/Brookside Camp Road area. Specifically, Zone 6 will be R-15, 11A will be C-2, 11B will be C-2P, 7A will remain C-2P as recommended, the two Clark properties designated as 810 on the border will go back to open use, and remaining open until the next meeting will be Section 5A which is the north east part of Howard Gap Road. For everything else, the recommendation is to approve it as submitted. All voted in favor and the motion carried.


Commissioner Hawkins made the motion to adjourn the meeting at 9:00 p.m.  All voted in favor and the motion carried.






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