STATE OF NORTH CAROLINA                                            BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                               MARCH 3, 2003


The Henderson County Board of Commissioners met for a regularly scheduled meeting at 5:30 p.m. in the Commissioners' Conference Room of the Henderson County Office Building.


Those present were:  Chairman Grady Hawkins, Vice-Chairman Larry Young, Commissioner Bill Moyer, Commissioner Charlie Messer, Commissioner Shannon Baldwin,  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, Budget and Management Director Selena Coffey, Fire Marshal/Emergency Management Coordinator Rocky Hyder, Public Information Officer Chris S. Coulson, Paralegal Connie Rayfield, Finance Director J. Carey McLelland, and Deputy Clerk to the Board/Volunteer Coordinator Amy Brantley.



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



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



David Nicholson gave the invocation.


CHAIRMAN - Announcements

Chairman Hawkins welcomed Mr. Huffman and his Boys Scouts to the meeting.  He also welcomed a group of students from North Henderson High School who are part of a government class. 



Commissioner Moyer requested one item be added to AE@ - Update on Pending Issues as #6 - AHiring a new Assessor@.


There were no other additions or deletions to the agenda.  Chairman Hawkins made the motion to approve the revised agenda.  All voted in favor and the motion carried.



Chairman Hawkins made the motion to approve the consent agenda as published.  All voted in favor and the motion carried.  The Consent Agenda included the following:


Tax Collector=s Report

Terry F. Lyda, Henderson County Tax Collector, had submitted the Tax Collector=s Report dated February 28, 2003.



Financial Report - January 2003

Cash Balance Report - January 2003

These two reports were presented for consent approval by the Board.


Non-departmental expense includes the annual property/liability and worker=s compensation insurance premiums paid to the NCACC Risk Management Pools.  A majority of these costs were allocated out to individual departments during the month of December. The remaining costs will be allocated out prior to fiscal year end.


The revaluation Reserve Fund is reporting a year-to-date deficit primarily due to $30,000 in printing and postage expense incurred during the month of January to mail out property valuation notices to the public.


Henderson County Public Schools Financial Report - January 2003

The Schools Financial Report for January was submitted for consent approval.


Set Public Hearing on Rural Operating Assistance Program and Discretionary Rural

General Public Applications

The Board was requested to establish the annual public hearing for the Rural Operating Assistance Program (ROAP).  The total allocation for Henderson County for this grant is $123,714.


Also, a public hearing is required for the application for funds through the Discretionary Rural General Public Program (RGP).  This application funds the fixed route system.  The amount of this grant is $208,418.


Full copies of the application will be provided to the Board prior to the public hearing. 


Mr. Nicholson recommended the Board schedule this public hearing for March 19 at 11:00 a.m.


Friends of the Library Loan

The Friends of the Library are purchasing a permanent site for their book sale on Spartanburg Highway.  The Friends feel that this site is superior to the Tuxedo School Site and presents less uncertainty as to costs, occupancy dates, and maintenance requirements.  The Friends requested a five-year loan for $100,000 from funds designated at the Community Foundation to assist the Library to help fund the project. 


This request is supported by the Library Board of Trustees.


Mr. Nicholson explained that the annual book sale is an important event in our community that provides funding for specialized events.  Over the years, the Community Foundation has received donations or bequests for the Library.  The Friends are asking for the County=s support.  He recommended that the Board support this request to the Community Foundation.


As for the Tuxedo School Site, the Board of Commissioners had expressed an interest in this property for a new location for the Green River Branch Library, a park site and for the book sale.  We should continue to study and seek other partners in developing this site for community use.


Criminal Justice Partnership Act

The Criminal Justice Partnership Act was developed effective January 1, 1994 to assist counties in supporting the Structured Sentencing Act of 1994 by enhancing community-based sentencing options and rehabilitative treatment.  At their January 19, 1994 meeting, the Board made the initial appointments to the CJPA, but assigned no term limits.


Though the majority of the members on that Board serve by virtue of their office, NCGS 143B-273.10 requires three year terms with one-third of the membership expiring annually.  There are no limitations on the number of terms members can serve.  To bring the CJPA into compliance with statute, staff requested the Board adopt a roster of members and their associated terms of office.



Notification of Vacancies

The Board was notified of the following vacancies which will appear for nominations at the next meeting:


1.               Mountain Area Workforce Development Board - 1 vac.

2.               Child Fatality Prevention Team - 1 vac.

3.               Asheville Regional Housing Authority - 1 vac.

4.               EMS Quality Management Committee - 1 vac.



Chairman Hawkins reminded the Board of the following vacancies and opened the floor to nominations.


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

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


2.               Agriculture Advisory Board - 2 vac.

At a previous meeting three people had been nominated to fill these two positions (Kenny Barnwell, Theron Maybin, and R.D. Hodges).  The Clerk polled the Board with the vote being:

Commissioner Moyer  -           Kenny Barnwell and Theron Maybin

Commissioner Messer -          Kenny Barnwell and Theron Maybin

Chairman Hawkins -               Kenny Barnwell and Theron Maybin

Commissioner Young -            Kenny Barnwell and Theron Maybin

Commissioner Baldwin -        Kenny Barnwell and Theron Maybin


Kenny Barnwell and Theron Maybin were appointed to fill the two vacancies.


3.               Recreation Advisory Board - 2 vac.

At the last meeting three people were nominated to fill these two vacancies (James Schweitzer, Virgle McClure, and Don Ward).  The Clerk polled the Board with the vote as follows:


Commissioner Moyer -           James Schweitzer and Virgle McClure

Commissioner Messer -          James Schweitzer and Virgle McClure

Chairman Hawkins -               Virgle McClure and Don Ward

Commissioner Young -            Virgle McClure and Don Ward

Commissioner Baldwin -        James Schweitzer and Virgle McClure


James Schweitzer and Virgle McClure were appointed to the Recreation Advisory Board.


4.               Henderson County Planning Board - 1 vac.

At the last meeting two people were nominated to fill one vacancy (Rick Merrill and Cindy Dabaibeh). There were no other nominees. The Clerk polled the Board with the vote as follows:


Commissioner Moyer -           Cindy Dabaibeh

Commissioner Messer -          Cindy Dabaibeh

Chairman Hawkins -               Cindy Dabaibeh

Commissioner Young -            Cindy Dabaibeh

Commissioner Baldwin -        Rick Merrill


Cindy Dabaibeh was appointed to the Planning Board.


5.               Solid Waste Advisory Committee - 4 vac.

Two of the current members are willing to continue to serve.  Chairman Hawkins nominated Bill O=Cain and William Ramsey for reappointment. There were no other nominations at this time.  Chairman Hawkins made the motion to accept these two nominees by acclamation.  All voted in favor and the motion carried.


Agriculture Advisory Board

Commissioner Moyer had stated at a previous meeting that he would be willing to serve as the Board=s representative on the Agriculture Advisory Board as a non-voting member.


Chairman Hawkins had requested some information and stated that there is no requirement to have a Commissioner on the Board. 


Commissioner Moyer felt that we need to have a liaison to help improve communication and stated he was willing to do that.  Chairman Hawkins stated he didn=t have a problem with that.  The Article that deals with this Board calls for a five member Board three of which have to be actively engaged in farming and live in the county.




At the Board Retreat in January there was some discussion about the Regional Water Agreement and the Board elected to put it on this agenda for discussion.  The new Commissioners needed some time to look over a couple of proposals from Asheville and Henderson County as well as the original agreement.


Chairman Hawkins stated that the previous Board had taken a look at the most current draft proposal from Asheville and had decided to table any further action on it until the new Board convened and had time to review it.


Angela Beeker summarized the comparisons of the two draft agreements for the Board:


C                  The definition of Authority as proposed in Henderson County=s draft includes Asheville for the reason that anytime there is an obligation of the Authority in the Agreement, the obligation would also be on Asheville.  In Asheville=s draft it doesn=t include Asheville.

C                  The definition of the service area - the service area is the area that the agreement would govern.  In the current agreement it=s the area where Asheville has to build regional water lines if requested to do so and the tests are met.  In the Henderson County draft the definition is the same as it is in the current agreement which includes all of the Cane Creek Water and Sewer District and the Board has the unilateral ability to expand that district.  In the Asheville draft it would only be the area shown on the Master Plan.  It could only be expanded if the Authority consented.

C                  Permission pursuant to NCGS 153A-15 - this statute is the basis for the whole Regional Water Agreement.  The Statute states that before Asheville could buy land in Henderson County they had to get the Board of Commissioner=s consent.  This had opened up the negotiations for the Regional Water Agreement to begin with.  In the Henderson County draft it=s proposed to limit that so that they do not have to ask permission for easements and rights-of-way only for the lines shown on the Master Plan for Henderson County which Henderson County has approved.  (In essence by approving the Master Plan you=d be giving consent to them to build the lines) In the Asheville draft it=s not limited to those things shown on the Master Plan.  In their draft they would not have to come to this Board for consent for any easements and rights-of-way for water lines.


Ms. Beeker stated this is really important because it is the heart of the control the Board still


C                  The protection of the watershed - in the current draft it requires that Henderson County abide by all the watershed rules.  In the Asheville draft they also included all state environmental regulations which could open it up to things that we currently are not regulating. 

C                  The Master Plan - Both versions do require Henderson County=s consent for the Master Plan to be effective in Henderson County. 

C                  Provision of Water - the current agreement gives Henderson County citizens the first right to the water.  In the Henderson County draft that paragraph is exactly the same as in the current agreement.  In the Asheville draft they say that they will provide water to all of their customers on an even basis.  The current agreement says that the quantity of water provided to Henderson County citizens cannot be reduced or eliminated in order to provide water to Buncombe County or Asheville.  The new language says everybody gets water on the same priority, if there=s a drought everybody is under the same water restrictions, etc. 

C                  Board appointments - currently Henderson County gets two appointments to that Board.  Under the draft as proposed by Henderson County that would not change.  Under the Asheville draft our appointments would be reduced to one.

C                  Policies & Priorities Committee - under the current draft Henderson County gets one seat on that.  It is the same in the Henderson County draft.  In the Asheville draft it is left up to the Chairman of the Authority.

C                  Fees - in the current draft and in the Henderson County draft Henderson County customers pay no more than Asheville residents and in the Asheville draft that is unclear.  (Ms. Beeker is not sure what their language means.  It needs clarification.)

C                  Surcharge - under our draft it says Henderson County may enact a fee schedule, it=s not called a surcharge.  In the Asheville draft Henderson County may enact fees or authorize the Authority to enact a surcharge.  The money would go to the Authority from the fees and to the Authority for the Master Plan lines from the surcharge for things on the Master Plan. Asheville=s costs and expenses to set up the surcharge process and administer it for us would be deducted from those revenues and paid to Asheville.

C                  Term of the Agreement - as currently it is 40 years. The Henderson County draft keeps that term at 40 years.  The Asheville draft does not have a term specified in it.

C                  Extension of water lines - under the Henderson County draft if it is not on the Master Plan it requires Henderson County approval and that is the same under the Asheville draft.  Under both drafts Henderson County can construct and upsize Authority lines but all lines would be titled to the City of Asheville.

C                  Regional Infrastructure Payment - a large cash payment that would be paid when Henderson County deeds back the Bent Creek site.  Part of the negotiations included deeding that property back to the City of Asheville.  The Henderson County draft proposes two million dollars to be paid at the closing.  The Asheville draft proposes 1.5 million dollars to be paid.


The Authority would maintain the lines under both.  If the Authority goes away, Asheville  would assume duties.  There is a Planning Council proposed in both drafts, they differ a little. The current agreement requires at the plant that they make a good faith effort to hire 25% of their employees from Henderson County, this is back in the Henderson County draft and is omitted from the Asheville draft.   The Henderson County draft calls for them to set up a place in Henderson County for Henderson County customers of the Authority to go apply for water and pay their bill.  In the Asheville draft it says they would do that when it=s cost effective, otherwise they would investigate some sort of Internet service for Henderson County customers.


In the current agreement one of the things Henderson County negotiated for was for the Authority to have to build lines in Henderson County when the net revenues from those lines would pay that capital cost back to them over a nine year period.  In both current drafts that obligation would go away.  There would be no obligation on Asheville=s part to build any lines in Henderson County.  That is the reason for the Regional Infrastructure Payment, it buys their obligation not to have to do that anymore and it puts the money in Henderson County=s bank account so Henderson County could use that money for water or sewer lines at Henderson County=s discretion. 


Under the current agreement there is an obligation for Asheville to make a good faith effort to discuss the possible formation of a True Authority.  There is no actual obligation to form a True Authority under the current agreement. In the Henderson County draft Henderson County proposed  that a Regional Committee be put together to study the needs of the region including but not limited to the formation of a Regional Water Authority. 


Under the current agreement there was a maximum of a 20 year period that the Bent Creek Deed property would be tied up before it would go back to Asheville.  Henderson County had ten years to convey the property to MSD for the purpose of a sewage treatment plant and then MSD would have ten years to build that plant.  When we had litigation with Asheville we entered into a settlement agreement to take into account a year that had already passed in the litigation and trying to negotiate that settlement such that we then had nineteen years.  We entered into that in 2001 which would mean we have roughly seventeen years of that twenty year period left.  We either have to build the sewer plant or convey it to MSD within seven years now.  We can only use the property for a sewer treatment plant or convey it to MSD, otherwise it goes back to the City of Asheville.


Following much Board discussion, it was the consensus of the Board to plan to have a workshop on the Regional Water Agreement with representatives from all the parties involved. 



During the Board=s meeting on February 19, 2003, Staff presented its recommended strategy concerning the completion of several major planning projects, the County Comprehensive Plan (CCP) and the rewrite of the Zoning Ordinance.  The timeline proposed by Staff for completing the CCP required that small area studies be prioritized as part of the CCP but that they not begin until after the completion of the CCP.  During discussion of this item, the Board asked Staff about the impact on the strategy if the County began to implement the Mills River/Fletcher Area Land Use Study and conducted a land use study of the US Highway #25 North corridor prior to the completion of the CCP.  The Board requested that Staff look at this issue and provide a recommendation at the March 3, 2003 meeting.


Staff had developed revised versions of the CCP Project Schedule, the AMajor Planning Initiatives@ timeline and the CCP Resources description proposal. 


Mr. Nicholson stated that in developing this second draft concerning these major initiatives, staff felt that it was important to use the basic timeframes as submitted to the Board at the last meeting.  The Working Group, which included Geoff Willett, discussed alternatives to address the Board=s concerns about the Mills River and US 25 North projects.  You must consider these two projects separately.  The land use study had already been completed for Mills River/Fletcher.  The US 25 North project would have to be defined and a study commenced.

Staff recommended to work with the leaders of the incorporation effort in Mills River to review the current plan and then make a recommendation to the Board.   Mr. Nicholson had spoken to representatives from the incorporation effort and they had stated their willingness to work with staff on this project.  Mr. Nicholson felt we could address this issue with current staff.


As for the US 25 North, two alternatives were discussed.  The first idea would be to add a minimum of one month to each of the phases.  This would basically add six months to the project.  Instead of this idea, Mr. Nicholson proposed to the Board that we hire an outside consultant to assist with this project. The cost would be approximately $15,000.  Staff would certainly assist and direct the consultant in this issue.  However, the consultant would take on the majority of the work associated with this effort. 


There was much discussion with the total cost of the project being $140,500 (over the whole time line) with $19,500 of it for this fiscal year.  


Chairman Hawkins made the motion to approve the revised plan as presented by staff with the completion date of June 2004 and a budget not to exceed $140,500.  A vote was taken and the motion passed three to two with Commissioners Moyer and Messer voting nay. 



1. Raymond Ward - Mr. Ward distributed a hand-out (I did not get a copy) so the Board could follow him.  He talked at length about the Schedule of Values and the Present Use Manual and how the adoption of those took place, the small size of the advertisement for the public hearing to adopt the two, and the revised method for assessing value of farmland (forest land, agriculture, and horticulture).  He was not happy with any of these issues. He also mentioned several items he was unhappy with what this Board has no control over or responsibility for. He briefly mentioned revenue neutral. He read excerpts from several sets of minutes of Board of Commissioner meetings, following our process mentioned above. His opinion was that the Board pushed this Schedule of Values and Present Use Manual through and didn=t study it enough.


2. Susan Brinker - Ms. Brinker is a seven year resident of Henderson County and owns a small acreage in the Edneyville area.  She is a teacher (of gifted children) and she grows medicinal herbs.

She asked the Board to support the farming community in Henderson County.  She was disappointed in how the revaluation of agriculture land was handled and the result of higher taxes. She doesn=t like the fact that so many of our farms and apple orchards are disappearing due to development.


3. Margaret Davidson - Ms. Davidson, President of the Edneyville Grange, expressed concern about the taxation of farmers in our area. 


4. Stan Rhodes - Mr. Rhodes asked the Board to please not let the land use tax go up anymore.  He and his six year old son enjoy growing potatoes, apples, and pumpkins and sharing them with the Missions.  He stated that there are two things in this world we have to have - God and the farmer.


PUBLIC HEARING on Economic Development Incentives - The Warm Company

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


Scott Hamilton, Committee of 100, reminded the Board that they had been asked to consider granting economic development incentives to The Warm Company, a company that has a craft manufacturing plant in Henderson County and a craft manufacturing plant in Washington State. They are considering expanding their operations to a location in Henderson County.  The taxable capital investment from the project is expected to be $3,000,000 consisting of $1.5 million in the 45,000 sq. ft. building and $1.5 million in machinery and equipment.  The Warm Company will retain 11 employment positions averaging a minimum, hourly wage of $11.97 and create a total of 6 new employment positions paying an average hourly wage of $9 to $12.


The Warm Company requested economic development incentives from the County in the amount of $60,000 for the purchase of machinery and equipment.  Economic incentives are to be reimbursed over a 5-year period.


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


Mr. Hamilton introduced Barry Brown, Operations Manager in North Carolina for the Warm Company.  Mr. Brown briefly gave the Board a history of The Warm Company. They began in 1980 and serve the quilt, craft, and sewing industry.  They are the largest cotton batting manufacturer in the World.  They have been doing business in North Carolina for about five years and in the Fletcher area for about 4.5 years.  They currently lease space in the Cane Creek Industrial Park (two warehouses). They also have a place in Arden, in Buncombe County.  It is a non-woven line they purchased this past August.  They have increased their sales volume every year the company has been in business.  They enjoyed a 30% increase last year.  Mr. Brown stated they have empty positions, needing additional workers.  He shared a sample of their product with each of the Commissioners.  They offer an excellent benefit package as well as bonuses.  They were named Small Employer of the Year in North Carolina. 


Public Input

There was none.


Angela Beeker reviewed minor revisions to the Economic Incentives Agreement.  The change provides for a prorated payback.


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


Chairman Hawkins made the motion that the Board accept the amended agreement as presented.  All voted in favor and the motion carried.


There was discussion of the need to set a public hearing on Rezoning Application #R-02-07, Conomo Properties, LLC, Applicant.  Staff had investigated the possibility of holding the hearing somewhere other than here due to the anticipated size of the crowd that would attend the hearing.  Mr. Nicholson presented a schedule to the Board of when the Auditorium at West Henderson High School was available for our use. 


Chairman Hawkins made the motion to set the public hearing for Thursday, April 10 for 7:00 p.m. in the Auditorum at WHHS.  He suggested that all three zoning map proposals be advertised.  All voted in favor and the motion carried.



Chairman Hawkins called a brief technical recess to change videotapes.


PUBLIC HEARING - Rezoning Application# R-02-06 (R-20 to C-4) Gordon McAuliffe, Applicant

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


Josh Freeman informed the Board that Gordon McAuliffe had submitted an application requesting that the County rezone one parcel totaling 2.32 acres from an R-20 Low-Density Residential zoning district to a C-4 Highway Commercial zoning district.  The parcel proposed for rezoning (hereafter, ASubject Parcel@) is located beside King=s Grocery in East Flat Rock, just northwest of the intersection of Old Spartanburg Highway and Fairground Avenue.  The property is currently used as an RV park which is nonconforming under current R-20 zoning.  It was zoned R-20 in October of 1990 as part of Phase I of the East Flat Rock Zoning study.  Mr. Freeman explained for the Board the differences allowed for R-20 and C-4 zoning.


The Henderson County Planning Board reviewed the application at its meeting on Tuesday, January 21, 2003, and voted to recommend to the Board of Commissioners that only the front portion of the Subject Parcel be rezoned from R-20 to C-4, and that the remaining portion of the Subject Parcel remain as R-20. Staff felt that the recommendations of the Planning Board were a marked improvement over the original application.  Staff recommended against the rezoning requested by the original application.


In accordance with Section 200-76 of the Henderson County Zoning Ordinance and State Law, a Notice of Public Hearing regarding Rezoning Application #R-02-06 was published in the Hendersonville Times-News on February 12, 2003 and February 19, 2003.  The Planning Department sent notices of the hearing via first class mail to the Applicants and the owners of properties adjacent to the Subject Property on February 10, 2003.  Planning Staff posted signs advertising the hearing on the Subject Property on February 7, 2003.



Public Input

1. Gordon McAuliffe - Mr. McAuliffe informed the Board that he had gotten one additional signature on the petition he had brought in earlier, Carolyn Wilkie.  That petition is part of the record of this meeting. Mr. McAuliffe stated that when he bought the property in 1996 he bought it as a campground/mobile home park.  The park was built in the 50's so when the zoning took place in 1990 he felt that it should have been zoned C-4 then, as that is the only zoning allowing a campground. They would like to sell park models on the property and in order to do so they went to the State.  The State said they had to check with the DMV to get a license to sell park models.  Park models are RV units that stay longer periods of time.  He has talked to all of his immediate neighbors and they have signed the petition agreeing with the rezoning request.  Mr. McAuliffe mentioned the Planning Board=s recommendation and stated that if the Board didn=t feel the whole property should be rezoned, it satisfied him to follow the Planning Board=s recommendation.


Part of the record

The Board was in receipt of a letter from Morris Case who is opposed to the rezoning request. The Board had also received a letter from the Senior Director (Bo Caldwell) of the Henderson County Public Schools referencing the zoning proposal.  


Mr. McAuliffe came forward again and asked AIf, and I don=t know what your - your voting is gonna be but if it wasn=t possible to zone it C-4 is there a variance for a nonconforming use that would allow a letter from the county so that we could obtain a dealer=s license?@ 


Chairman Hawkins AUh, I don=t think so.  I think all the Board can consider this evening is what you=ve actually made application for.@


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


Following discussion, Commissioner Young made the motion to accept the Planning Board=s recommendation to zone the front section C-4 and leave the back section zoned R-20.  Mr. Young amended his motion to the effect that this would grant the application request for Section B fronting Old Spartanburg Road to C-4  and deny the application request for Section A which would remain R-20.   A vote was taken and the motion passed four to one with Commissioner Moyer voting nay.


PUBLIC HEARING - Rezoning Application# R-02-05 (OU to I-2) Tap Root Dairy- LLC et al, Applicants

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


Mr. Hawkins made the Board aware that he has a relative that is part of the Tap Root Dairy.  He had asked Ms. Beeker about conflict of interest and asked her to address that at this time.


Ms. Beeker stated that there really is no conflict of interest.  It is the appropriate thing to do to make everyone aware of the connection but it doesn=t rise to the level of being a legal conflict of interest, not enough to recuse himself from voting.


Josh Freeman informed the Board that Rezoning Application #R-02-05, which was submitted on December 20, 2002, requests that Henderson County rezone three parcels totaling 329.7 acres (hereafter, ASubject Property@), located at the north east corner of the intersection of the French Broad River and Butler Bridge Road, from OU Open Use zoning to an I-2 General Industrial district.  The Property Owners/Applicants are: Tap Root Dairy, LLC; Big J Small J Partnership; and Juanita Johnston and Mary Louise Corn, Co-Trustees of the Estate of S. E. Johnston, Jr.  The Applicant=s Agent is William M. Alexander, Attorney. The majority of the subject property is currently used as Tap Root Dairy, LLC, a fairly large dairy operation.  Mr. Freeman compared the uses for OU and I-2 zoning districts explaining that the biggest difference is that OU allows residential uses and I-2 does not.  Staff recommended in favor of this application based on the fact that it is consistent with the 1993 Comprehensive Land Use Plan, it=s consistent with the Mills River/Fletcher Land Use Plan, and the Committee of 100 of the Chamber of Commerce supports it.


The Henderson County Planning Board reviewed Rezoning Application #R-02-05 on Tuesday, January 21, 2003 and voted 7-0 to send a favorable recommendation to the Henderson County Board of Commissioners regarding the application as submitted.


In accordance with Section 200-76 of the Henderson County Zoning Ordinance and State Law, a Notice of Public Hearing regarding Rezoning Application #R-02-05 was published in the Hendersonville Times-News on February 12, 2003 and February 19, 2003. The Planning Department sent notices of the hearing via first class mail to the Applicants and the owners of properties adjacent to the Subject Property on February 6, 2003.



Public Input

1. Kevin Barnett - Mr. Barnett is a resident of the area neighboring the subject property.  One of his primary concerns is the impact on adjacent property values by changing what is agriculture at this time into light industrial. He also stated that there would be the issue of a future environmental legacy.  This is land that has been used in a dairy operation and there have been large amounts of nutrient rich material land applied on the site which could possibly have future impacts on ground water at the site, on leaching out into the surface waters next to the site, and by putting industrial uses on top of property which has this environmental legacy can create future environmental issues for the county to deal with. He also stated there would be a future taxing of utilities in the area by putting industrial on the site which could be to the hindrance of this area.  He mentioned line of sight from Aberdeen to this subject property.  He stated the subject property is under the 100 year floodplain between the eastern property of Aberdeen and the western property of the existing dairy with no buffer ordinance in the county to require vegetative buffers along streams, stating there would be a straight line of sight into light industrial should industry be developed all the way to the edge of the river and/or the edge of the floodplain.


2. Pat Roberts - Mr. Roberts is a 5 month resident of the Glens of Aberdeen.  He asked that the Board delay the decision on this issue.  He felt that everyone had not been notified that should have been.


Note - In addition to mailing notices to the adjacent property owners which is required by State law and County Ordinance, they also notified everyone approximately 1/4 mile from the outermost portion of the property boundary.


3. Allen Walker - Mr. Walker lives at the Glens of Aberdeen and also asked that the decision be delayed until all property owners of the Glens of Aberdeen could be notified. 


4. George Begg - Mr. Begg is a 5 month resident of the Glens of Aberdeen. He asked that the decision be delayed.  Mr. Begg had written a letter to the Board, received Feb. 27 by the Planning Department also.  Mr. Begg had asked that any future notices be sent to the Aberdeen Homeowners Association, Inc.


5. Shann Davis - Mr. Davis lives at the Glens of Aberdeen and asked that the decision be delayed.  He did not receive notice of this hearing.  He is a 27 year resident of Hendersonville. 


6.Jeremy Hughes - Mr. Hughes lives in the area, moved here from California. He asked that the decision be delayed. He stated that he had some of the same concerns as those who had already spoken.


7.William M. Alexander, Jr. - Mr. Alexander spoke to the application to rezone this subject property. He addressed the geography of the property first. He stated that of the 329.97 acres, 98.5 acres of it is in the floodplain.  The petitioners had deliberately left the floodplain property in the property in question for the rezoning request.  He pointed out that several of the people who had spoken asking for a delay in the decision have moved to a residential neighborhood in the Glens of Aberdeen within the last 6 mos. to a year.  They stated that there are 150 properties in the Glens.  Mr. Alexander stated that all the people who purchased in the Glens in the last 12 months or more had record notice that there is an existing I-2 zone at the Hollamon/Holly Farm site immediately across Butler Bridge Road from this site which parcel is almost identical in distance, line of sight, etc. to this subject property.  Mr. Alexander stated that his clients milk 1,150 cows three times a day on this property. They have a current herd of cows on this property of approx. 2,500, changing almost daily. 


He asked the Board to consider this application in terms of the total use that could be put to the property under general industrial zone.  He pointed out that the current use, Open Use, allows many uses that are not allowed in a general industrial zone including residential use.  He asked the Board to consider the following:


C                  This property has virtually every ideal character of a general industrial zone

C                  The property has all major utilities available to it, the current Cane Creek portion of the Metropolitan Sewer District lines from Asheville on the northwest corner of the property within feet of the boundary of the property.

C                  The proposed sewer line would come close to the property.

C                  There is currently water in the ABWA line and the applicants own property to that line and around that line.

C                  In the application he listed that natural gas was available and he has since learned that is incorrect.  There is not natural gas to the property at this point.

C                  Duke Power about five or six years ago purchased a tract of land at the corner of Jeffries Road and Butler Bridge and built a take down station from the high tension lines there. That station was built in anticipation of industrial development in the area.


Mr. Alexander reminded the Board that they had received a copy of a letter to Joshua Freeman from the United States Department of Agriculture, Natural Resources Conservation Service stating that a review of the soils on these tracts indicates the site does have good potential for industrial development and that the majority of the site is suitable for industrial use with proper grading and foundation design.


Mr. Alexander also referenced a letter to Joshua Freeman from the City Manager of the City of Asheville.  The City of Asheville was given notice of this proceeding because they are an adjoining municipality and they sent a letter stating that the City of Asheville administration is in strong support of this zoning change . . .  This area holds the future to Western North Carolina=s industrial potential and incompatible public land uses should be discouraged by sound zoning practice.


Mr. Alexander pointed out that Henderson County has got to have industry if it is to stay healthy.

Although there is no current industrial purchaser for this property, they hope to work closely with local officials in marketing this property for industrial development. 


Mr. Alexander stressed that Henderson County Planning Staff sent notices not only to those mandated by State Law but to a quarter mile radius beyond that.  You must stop somewhere.  The Staff had also posted the property on February 7 with the notice of the meeting as required by law.


Mr. Alexander recommended that the Commissioners approve the zoning application as written.  The Planning Board gave a unanimous favorable recommendation.  The Planning Staff also recommended approval of the application.  The Committee of 100 supports it.  The Mills River/Fletcher Land Use Plan supports it.  The 1993 Henderson County Comprehensive Land Use Plan supports it.  He asked the Board to support it by zoning it I-2 Industrial. 


8. Donald Mickelson - Mr. Mickelson lives at the Glens of Aberdeen.  He requested a postponement of the decision on this rezoning request. The Glens is situated on a series of hills and they overlook the Taproot Dairy property.


9.. Kelly Davis - Ms. Davis lives at the Glens of Aberdeen.  She has an environmental degree.  She stated that the environment of the area would be hurt, not only because it is a floodplain but because of whatever odor an industry may produce.  They can see a direct view of everything over the river. She is opposed to the idea of rezoning the property and asked the Board to postpone the decision at this time.


Pat Roberts asked to be allowed to speak again.  He stated that all they were asking for was a postponement, that=s all, so they can look at this and see what=s happening.  It is their neighborhood.  They live there.  Most of them are new to the area, probably none of them have lived there more than a year.  They would like to have some time to address the Board with their concerns.


Chairman Hawkins made the motion to close the public hearing.  All voted in favor and the motion carried.  


Part of record

The letter from United States Dept. Of Agriculture, Natural Resources Conservation Service to Joshua Freeman dated January 13 was made a part of this meeting record as was the letter dated February 17 from the City of Asheville, City Manager James L. Westbrook.  A copy of the letter from George G. Begg was also attached as part of this record.


Much discussion followed.  Staff had gone beyond the letter of the law notifying property owners.  Several property owners showed up tonight to speak but each asked that this decision be postponed  so they could make their concerns known to the Board.  This was the time for them to make those concerns known to the Board.  The Commissioners must make a decision based on what is good for the County, not just a small area of the County. The owners of the subject property have rights too and they have been through the process as required.


Commissioner Young made the motion to accept the Planning Board=s recommendation and rezone this property to I-2. A vote was taken and the motion passed unanimously.



Chairman Hawkins referenced a memo to the Board from Angela Beeker concerning this issue.  He asked Ms. Beeker to address this.


Angela Beeker reminded the Board that on January 15 they held a quasi-judicial proceeding to consider the request of Hoopers Creek Quarry, LLC, to expand the Hoopers Creek Quarry.  The Board was also requested to grant a variance on the fencing requirements associated with the Special Use Permit.  At that time, the Board voted to grant the special use permit, but to hold open the question of the variance.  The draft order previously prepared to grant the special use permit was presented for the Board=s information.


Subsequent to the January 15 proceeding, the applicant notified the Planning Department that the expansion area was going to be 1.07 acres, rather than 0.72 acres.  For this reason the Board rolled consideration of the order on the special use permit to this meeting so that the hearing could be reopened to consider the increase in size of the expansion area. 


Ms. Beeker stated that all parties had been notified of today=s proceeding.


Ms. Beeker stated that we have been contacted by a number of property owners who received a mailed notice of the original proceeding who now wish to come forward and be parties to the proceeding.  It was her recommendation that if the Board wishes to reopen the hearing just to consider the additional acreage that the Board not allow additional persons to become parties.  If the Board wishes to allow other people to become full participating parties they would need to start the proceeding over and renotify everyone so everyone would have the same chance to come forward again and be a party to the proceeding.  Her recommendation to the Board was to simply reopen the proceeding with the parties that came forward originally. Those parties could produce witnesses as part of their presentation to the Board but the witnesses would not be full participants and wouldn=t get to cross examine each other or make closing statements.  They would simply be allowed to present their evidence to the Board.  She also recommended that the Board limit the proceeding to just the additional acreage.  The Board had already heard testimony and made a decision on the 0.72 acre piece.


Following discussion it was the consensus of the Board to reopen the same hearing, not to go back all the way to the beginning.


Chairman Hawkins made the motion to reopen the quasi-judicial proceeding to include all the original parties to the proceeding and any witnesses they wish to call and with the limited scope of the 1/3 of an acre.  All voted in favor and the motion carried.


Chairman Hawkins - AIn that case I guess the uh first folks we=ll hear from is Mr. Lapsley and I can ask the question.@


Bill Lapsley - AMr. Chairman, members of the Board, thank you very much for the opportunity to speak tonight.  I think it would be very helpful to - to briefly explain how we got into this dilemma, I=ll call it that.  The - on behalf of the applicant, Hoopers Creek Quarry LLC, the State of North Carolina regulations required as I have stated in front of this Board and the County Planning Board required that the applicant when he changed anything at his mining operation had to submit an application for a modification of his mining permit.  That=s what the regulations require.  In order to submit that application there are a number of things that were documents to be included with the application.  Uh and the principal one was a proposed plan for modifying the boundary of the permit.  Well that plan uh, at the request of the applicant I prepared for him based on my knowledge, one of what the applicant wanted to do which again I=ve explained to the Planning Board and to this Board and one that I believe met the requirements of the State of North Carolina in reviewing the application and in addition not only did we have to do a plan but we had to notify - the applicant had to notify by certified mail all of the adjacent property owners and send them a copy of the plan.  All of those notices including the return receipts requested had to be submitted to the State before they would even look at the application so I think you can see the immediate flaw is that if the State in its wisdom decides to change the plan at all uh then the whole process can be disrupted.  But we proceeded and submitted the plan which we believed met the conditions required by the State, we notified all the property owners, uh we uh got our return receipt requested, sent them all to the State, uh and it was at that point that under the Open Use regulations that the Board has passed we were notified by the Planning Department that this required, if I recall, special use permit uh in order to - to uh for the applicant to proceed under county regulations so now we - we=re in a two step process.  We have the state to deal with and we have the county - to meet the county=s requirements.  As we started the county review process uh back in - uh in early November uh this Board uh took the application, remanded it back to the Planning Board for review which the Planning Board did in December and at the December Planning Board Member on behalf of the applicant I presented the plan as it was submitted to the State >cause that was my understanding of what would be approved.  Shortly before that meeting, about a week before I received a phone call from the State Review Staff in Raleigh indicating they had some questions about the plan and that they may want to make requests for revisions to the plan and I told them that we were going through this process and that I was concerned that if they made any substantive changes that it might negate what we were going through in the county under the zoning ordinance.  They indicated they wanted to make some changes and among the changes was which I reported to the Planning Board - when we went through the process with that Board - that the State had requested that we relocate a proposed sediment basin from the top of the fill area, where it exists today and which was approved in 1993 - from the top of the fill area to the bottom of the fill area and they indicated to me that that was imperative in their opinion, that that be done.  Uh my question to them was well if we do that uh will be affect the area that the mining permit indicates is dedicated for the waste material from the mine - no that would be the same, so I said OK uh let me submit another plan and - and let=s address your concerns.  In the meantime the plan was going through the Planning Board and I pointed out to the Planning Board that it may be changed and the sediment basin protecting the site may in fact move to the bottom of the hill and that I was in the process of - of resubmitting and negotiating with the State to get it approved.  Uh in early January, the 10th as a matter of fact I submitted that revised plan to the State uh and what I believed would be approved by the State.  This Board met on the 15th of January uh and at that time I knew as I reported to the Board at the eventual public hearing that there was a revised plan in to the State.  It did not increase the area that was to be designated for waste material uh but it in fact did increase the overall area that the State considers inside the permit boundary by this .35 acres plus or minus and uh I submitted the revised plan to the State not knowing whether that plan would receive approval from the State.  We held the public hearing with this Board in February and uh to the best of my knowledge uh the plan was going to be approved but I had no indication verbal or written that the plan would be approved uh and as County Attorney mentioned uh I did state that - that the area had not substan- increased uh and I stand corrected uh in my mind it was the area for the waste material, it was not the area including the sediment basin  which the State required at the foot of the - the fill area.  Uh it was at that point after the public hearing uh and discussions with Staff that uh I realized that - that maybe this was an issue uh and I discussed it with - with Staff and uh they suggested that we reopen this hearing which is fine with the applicant and as a matter of fact uh in the last week uh we were notified - I was notified verbally by the State that the plan would be approved as - as the revised plan as I submitted.  I was also informed today uh about five or six hours ago by the State Staff that because it was a change from  the plan that was submitted uh with the original application the changes at the State=s request, that they were going to require the applicant to send out the revised plan by certified mail to all the neighbors again to solicit any comments uh prior to their final decision issuing a permit.  So that=s the sequence of events that have transpired uh I understand from your procedure that the app - only the people that participated in the hearing uh at least at the moment can participate.  Mr. Grimes, the applicant is here tonight if you have any questions of him.  But that=s the sequence of events uh I certainly don=t want to leave the impression at all that - that I or the applicant deceived this Board or the public in any way.  We did not do that.  We submitted what we believed would be an approved plan, we finally have received verbal approval that the plan=s gonna be approved uh and the applicant just - just wants to proceed as we have demonstrated to this Board and the Planning Board previously and I=ll be glad to answer any questions about the application that you may have.@


Chairman Hawkins - AMr. Lapsley on - you said that you submitted a uh - on January the 10th a plan.  Is that the plan that finally was approved?@


Bill Lapsley - AYes sir.@


Chairman Hawkins - AAnd so that=s the one that we=re seeing now that actually has the expanded area on it?@


Bill Lapsley - AYes sir that=s correct, yes.@


Chairman Hawkins - AAnd it was your - it was your understanding that when we were talking about  the expanded area we=re talking about just the sediment area, not the whole mining@


Bill Lapsley - AWhen - when we sent - submitted the revised plan uh and we - the State directed us  in writing to move the sediment basin to the toe of the fill area my question to the State at that time was if I move it to the toe of the fill area as depicted in the plan and you take a slope back up we would gain nothing - we uh - there would be no need to - to file the application because the applicant would not gain uh the space that he had requested and the State=s comment was fine keep the area that you plan to fill the same and put the sediment basin at the toe of the fill and that=s what generated the .35 acre additional area uh@


Chairman Hawkins - AAnd that was on the plan that you submitted back on the 10th of January?@


Bill Lapsley - AYes but I did not know whether that would be approved and - and the fact is that even today I have nothing in writing from the State indicating that the plan will be approved.  I just have a verbal indication from the Staff in Raleigh that - that they will approve it but now they have decided not to issue the letter until we proceed again with the notification by certified mail and - and I guess from my perspective that=s the flaw in the process.  They - they make us not- send out a notice with a plan that we don=t know is going to be approved and if it=s changed at all in effect you=ve changed the condition and so@

Chairman Hawkins - ASo currently uh the State=s gonna require you to renotify everyone which@


Bill Lapsley - AThat=s right@


Chairman Hawkins - AWhere does that leave us then, have we got to wait until that notification occurs or@


Commissioner Messer - ADid they give you any indication of the time frame Mr. Lapsley?@


Bill Lapsley - AWell my - well they told me to do it immediately and uh I believe uh the waiting period is 30 days from - from the date that we mail it out return receipt requested so if that happens you know this week then 30 days from now they will see if they obtain any additional comments  uh and then they will make a decision to either adjust the plan or accept it as its submitted.@


Chairman Hawkins - ASo your response - the letters that - that you=re sending out now goes back to the State for comments.  The ones that the State directed you to send out?@


Bill Lapsley - AThe State has directed uh the applicant to send the revised plan that verbally they=ve indicated to me would be approved - they have directed me as the applicant=s agent to send that plan registered mail return receipt requested to everyone of the neighbors to make sure that they all are aware of the revised plan.  Uh and so we@


Chairman Hawkins - ASo that could affect any action this Board took tonight, we=d be back in the same, almost in the same predicament we were before.@


Bill Lapsley - AI - I guess it=s conceivable that we - we could go through this process and - and if the neighbors convinced the State to revise the plan uh then we could be back here with another revision that the State has requested us to do and it=s a - it=s a catch 22.  We - we=re just@


Chairman Hawkins - AThat- that bothers me more than the other aspect of it.  It may be that we need to just close this thing out and reopen and crank back up.  Once the State=s decided in their feeble minds down there what the heck they=re gonna do.  You know - I mean - because we - we=re playing a - a catch 22 game.  We=re doing our hearings and uh@


Commissioner Moyer - AGrady, I move we just hold the hearing open until Bill gets official notice from the State approving the plan@


Chairman Hawkins - AAre we able to do that?@


Ms. Beeker indicated by a nod of her head in the affirmative.


Chairman Hawkins - AAll those in favor of that motion say aye.@


AAye@ in unison.


Chairman Hawkins - AWe=re gonna hold the hearing open.@



Chairman Hawkins called a technical recess to change videotapes.


Human Services Building

Mr. Nicholson stated that the Board had asked Staff to do an investigation of the site at Blue Ridge Community College as well as alternative methods of construction for the possible construction of the Human Services Building.  The Board asked the County Manager to get a letter from Blue Ridge Community College which had been received and included for the Board=s review.  The letter is from Joe Spearman, Chairman of the Board of Trustees of BRCC offering the property to the County.  One thing was a little ambiguous - discussion of the classroom space associated with the project.  Mr. Nicholson stated that in the original design of the Human Services Building and the renovation of the Carolina Apparel Building there were two classrooms designed as part of that as well as a number of conference rooms. 


Mr. Nicholson had gotten Bill Lapsley to go out to the site and to come up with a lay-out suggestion.  He and his staff came up with a different type layout than what county staff had. Mr. Nicholson showed on a map from Mr. Lapsley making the point that we could put multiple buildings on the BRCC property.  His map showed the Animal Shelter up front on College Drive with parking for them and then the Human Services Building in an L-shape farther back with parking for it.  There was some discussion of the possibility of also putting a Land Development Building on the same property but back on Allen.  This was just a conceptual rendering and there are multiple possibilities but at least this showed the Board that several buildings could fit on the site. 


Mr. Nicholson addressed cost and financial information with three construction alternatives for the Human Services Building (80,000 sq. ft. building):


C                  Prefab building (metal building with masonary or stucco on one side only)

approx. $73.00 sq. ft.

C                  Prefab tilt-up construction building (steel framed building with pre-fab concrete panels like were used on the exterior of the new courthouse)

approx. $76.00 sq. ft.

C                  Conventional masonary construction (steel framed building with masonary exterior)

approx. $80.00 sq. ft.


Following much discussion, direction to staff was to prepare to put the Carolina Apparel Building out to sell and get some good numbers on the BRCC land.  We need to clarify with BRCC about the classroom space they had mentioned. 


Ms. Beeker will get the bid package ready for the next meeting.  Mr. Nicholson will proceed with researching the property options and the building options for the BRCC property. There was much discussion about which type building to pursue but no decision was made at this time.   Mr. Nicholson asked Bill Byrnes to look at testing costs to do core samples on the property.


Commissioner Moyer made the motion to continue the meeting to tomorrow night (March 4) at 7:00 p.m.  All voted in favor and the motion carried.  Tomorrow=s meeting will begin with item AD@ of Staff Reports - FY 2003-2004 Budget Goals.






                                                                                                                                                              Elizabeth W. Corn, Clerk to the Board                     


Grady Hawkins, Chairman