STATE OF NORTH CAROLINA                                                                  BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                                 SEPTEMBER 2, 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, Subdivision Administrator Derrick Cook, Budget and Management Director Selena Coffey, Fire Marshal/Emergency Management Coordinator Rocky Hyder,  Paralegal Connie Rayfield, EMS Director Terry Layne, Risk Management Director Bill Byrnes, Finance Director J. Carey McLelland and Deputy Clerk to the Board Amy Brantley.


Absent was: Public Information Officer Chris S. Coulson.



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



Commissioner Bill Moyer led the Pledge of Allegiance to the American Flag.



Dr. George Jones gave the invocation.



Chairman Hawkins asked that one item be added to the consent agenda, it was in the packet but not listed on the agenda – as item “G – Taylor Forest Subdivision Improvement Guarantee”.


Chairman Hawkins added under Staff Reports as the first item – we will receive a proclamation and an update on “Big Sweep” from Mr. Bill Ramsey, Chairman of the Solid Waste Advisory Committee.


Chairman Hawkins asked that the first reason for going into closed session be deleted. 


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



Commissioner Moyer asked to pull one consent agenda item for some discussion – Item “E – Update on County Comprehensive Plan and Other Major Planning Initiatives”.


Chairman Hawkins made the motion to approve the consent agenda as amended except for item “E”.  All voted in favor and the motion carried.



Draft minutes were presented for the Board’s review and approval of the following meeting(s):

            August 4, 2003, regular meeting

Tax Collector’s Report

Terry F. Lyda, Henderson County Tax Collector, had provided the Tax Collector’s report dated August 28, 2003 for the Board’s information.


Financial Report – July 2003

Cash Balance Report – July 2003

These reports were presented for information only, consent approval.


Non-departmental expense includes annual property/liability and worker’s compensation insurance premiums paid to the NCACC Risk Management Pools.  This expense will be allocated out to all departments prior to fiscal year end.


The Revaluation Reserve Fund reported a year-to-date deficit primarily due to $13,000 in travel, professional services and vehicle lease expense incurred in the first month of the new fiscal year.


The deficit reported in the CDBG-Scattered Site Housing is temporary due to a timing difference in the expenditure of funds and the subsequent requisition of funds to reimburse these expenditures.


The Human Services Building Project deficit is due to architectural fees and demolition/abatement work performed at the former Carolina Apparel Building.  It is anticipated that these costs will be recouped from financing proceeds for the project.


Henderson County Public Schools Financial Report – July 2003

This School Report was present for information and consent approval.


Update on County Comprehensive Plan and Other Major Planning Initiatives (this item was pulled for some discussion)

Staff had provided an issue update which summarized the tasks related to the CCP and the other major planning initiatives that occurred over the past month.  The update also included anticipated actions for the coming month. No action was required.


Ambulance Franchise – Medical Emergency Ambulance Transport, Inc.

Included in the agenda packet was a draft franchise being granted to Medical Emergency Ambulance Transport, Inc.  The franchise application was presented and approved at the last regular Board of Commissioners meeting.  The franchise itself must be approved at two regular meetings of the Board before it is effective.


Request for Extension of Improvement Guarantee for Taylor Forest Subdivision

LAM Investments, Inc., Developer

On February 19, 2003 the Board of Commissioners approved an application by LAM Investments, Inc. for an improvement guarantee for a portion of Taylor Forest subdivision.  As required by the Performance Guarantee Agreement for the improvement guarantee, the developer posted with Henderson County a letter of credit in the amount of $48,399.00 to cover the cost of completing improvements including clearing, grading, drainage structure installation, seeding, placement of stone and paving the first 1,000 linear feet of a road serving the subdivision.  The Agreement also required that the improvements be completed by August 31, 2003.


Through its agent, Luther E. Smith, LAM Investments, Inc. had submitted a letter requesting that the County extend the deadline for completing the improvements by four months.  The letter states that contracts for paving in Phase I of Taylor Forest are in place but that adverse weather conditions have not allowed the stone base to be conditioned properly for paving.  Section 170-39 of the Subdivision Ordinance allows the Board of Commissioners “upon proof of difficulty” to grant extensions to completion dates for improvement guarantees for a maximum of one additional year, provided that the time between initiation and completion of the required improvements does not exceed two years.


If the Board agrees to extend the completion date for the improvements, staff had prepared for the Board’s consideration a draft Performance Guarantee Agreement which reflects the new completion date of December 31, 2003 and requires that the letter of credit previously posted with the County be amended to reflect a new expiration date that is at least 60 days after the proposed new completion date. The developer has already provided such amended letter of credit.  If the Board approves the extension request, the County Attorney must review the amended letter of credit as to form and the relevant parties must execute the new Agreement.


Mr. Nicholson stated that the extension would not cause the developer to exceed the two-year maximum time period for completion of the required improvements.  He recommended that the Board approve the request to extend the completion date for the improvement guarantee for a portion of Taylor Forest subdivision to December 31, 2003, subject to the developer providing an irrevocable letter of credit in accordance with the terms of the new draft Performance Guarantee Agreement.


Update on County Comprehensive Plan and Other Major Planning Initiatives (this item was pulled for some discussion)

Staff had provided an issue update which summarized the tasks related to the CCP and the other major planning initiatives that occurred over the past month.  The update also included anticipated actions for the coming month. No action was required.


Commissioner Moyer addressed the schedule for community meetings on the CCP.  He recommended adding three additional community meetings:  Flat Rock, East Flat Rock, and Laurel Park.  Much discussion followed including the fact that we are not holding meetings in every community but rather were holding them by fire districts.  Every community we have is in one of the fire districts.  The first scheduled CCP meeting in December is a make-up meeting, for anyone who might have been missed. Clear Creek community was another one mentioned that is not specifically slated for their own community meeting.  Commissioner Baldwin stated that no community was being excluded from the process.


Karen Smith stated that the input gathered at these community meetings is designed to be used as a first step to the development of small area plans. 


Staff was asked to look at the possibility of holding additional community meetings and report back to the Board about the possibility of a compromise.


Chairman Hawkins made the motion to accept the consent agenda with item “E” as discussed.  All voted in favor and the motion carried.




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

  1. Juvenile Crime Prevention Council – 5 vac.

Chairman Hawkins nominated Gwenn Rice for position # 14.  There were no other nominations.  Chairman Hawkins made the motion to accept Ms. Rice by acclamation.


  1. Nursing/Adult Care Home Community Advisory Committee – 4 vac.

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


  1. Regional Water Authority of Asheville, Buncombe and Henderson – 1 vac.

Bill Lapsley’s name had been placed in nomination at an earlier meeting. 


Commissioner Moyer felt that one of the two on the Board should be a County Commissioner.  


Commissioner Messer nominated Commissioner Moyer to fill that position. 


The Clerk was asked to poll the Board.  Each Commissioner had one vote.  Bill Lapsley received three votes to Bill Moyer’s two.  Mr. Lapsley will be our second representative on the Regional Water Authority.  Jack Tate (Attorney) is our other representative on the Water Authority Board.


  1. Senior Volunteer Services Advisory Council – 1 vac.

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


  1. SmartStart – 1 vac.

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


  1. Western Carolina Community Action Board of Directors – 1 vac.

Chairman Hawkins nominated Jonathan Parce.  There were no other nominations.  Chairman Hawkins made the motion to accept Mr. Parce by acclamation.  All voted in favor and the motion carried.


Cane Creek Advisory Board

David Nicholson had placed in the agenda packet three drafts of the amendments to the charter of this Board.  Mr. Nicholson discussed the different drafts with the main difference being the make-up of the board.


Following discussion, Chairman Hawkins made the motion for the Board to accept Draft #3.  All voted in favor and the motion carried. The make-up of the Board in draft #3 – of the two members that the Board of Commissioners currently appoint, one is within the boundaries of Mills River.  By rights he would have to come off the Board as it currently stands.  Draft # 3 gives the Board of Commissioners the flexibility to appoint a Commissioner and two people living wherever you want and the Town Council could appoint two members, one which may be a member of the Council (if they wish).


RESOLUTION – Big Sweep Day

Bill Ramsey, Chairman of the Solid Waste Advisory Committee (SWAC), stated that the SWAC continues to meet at least quarterly on three basic priorities which were established by the County Commissioners.  The long-term project is on waste to energy technology answers that might one day see us not have landfill as the principal disposal mechanism. Another longer term on-going effort is in the area of public education because we find a lot of the general public does not understand the needs of the county as it relates to the whole issue of solid waste.  The issue he wished to address at this time was the issue of litter.  One contributor to our litter problem was the loss of our prison in Henderson County as the prisoners would pick up litter on the roadsides.  Another is the diminishment of participation in the “Adopt a Highway Program” in the last year. There are approx. 65 contracts but with no mailing list and no active communication with the groups who have adopted highways.  There is an apparent loss of energy and commitment on the part of many of them as demonstrated by the fact that very few supplies for pick-up are being requested from the Stoney Mountain Department of Transportation facility.  He proposed that a letter be sent once a mailing list is established to the leaders of those Adopt-A-Highway groups to try to see if they can’t re-energize once they understand the need the county has to see a more effective job of litter pick-up happening. 


Mr. Ramsey called the Sheriff’s Department to find that the enforcement of litter laws has resulted in the issuance of no tickets in the last several months.  The public needs to be re-energized through education and participation in the statewide litter sweep.


He requested that the Board of Commissioners adopt a resolution declaring September 20, 2003 as “Big Sweep Day”.  A draft resolution had been prepared and presented for the Board’s review. 


Chairman Hawkins made the motion to adopt the prepared resolution declaring September 20 as “Big Sweep Day” and encouraging every citizen to help clean up lakes and streams in particular during this program.  All voted in favor and the motion carried.



David Nicholson presented the “2003 Annual Report” to the Board of Commissioners.  This is an annual report to the citizens of our county.  He reviewed the items contained in the report. 



Chairman Hawkins stated that about six months ago the Board of Commissioners charged about 21 citizens with a seemingly impossible task; however, they accomplished it with great skill.  He introduced Spence Campbell, Chairman of the Committee, who gave the Board a report on the Committee and what they had done in six months time. Mr. Nicholson had provided a separate notebook to the Board detailing the information presented. 


Mr. Campbell reviewed the Charter given to the Committee before giving his Power Point presentation. The Board had requested the Committee to tell the Board what should happen to the courthouse itself, what should be done with the jail and other annexes, and to come up with a funding scenario as well as an implementation schedule.


The recommendation to the Board from the Committee was unanimous and included renovating the main structure preserving it as a historic building, tearing down the present annexes including the old jail, adding a new service annex to the back of the building including an elevator and rest room facilities, to build an underground parking garage, and to have a green park area above the garage as well as in front of the courthouse.  The building would be inhabited by non-profits and a non-profit management corporation would run the site. They recommended creating a public/private partnership for funding the project.  They recommended keeping the military monuments on the site.  They also recommended celebrating the Centennial of the building in 2005 and finishing the renovation in 2007.      Mr. Campbell showed a rendering of the concept of the building from Main Street as well as other views.  The estimated cost for the project was $7.5 million.  They recommended that the county  pay $3.5 million  with the rest coming from Federal, State, Municipal Funds and private grants as well as a capital campaign conducted locally.  They also estimated that the operation costs would be $125,000 yearly.  They suggested the need for a maintenance reserve of about $100,000 per year to be funded through 1/8th of a cent property tax increase or $1.25 per $100,000 evaluation as well as a ½ cent increase in the room tax.  Together these would generate about $225,000 yearly. He touched on the seven phases of the project and showed a graph of the recommended timeline. He briefly touched on the formation of a 501 (c)(3) non-profit management corporation.  Mr. Campbell stated that this plan is a concept, nothing in the plan is set in concrete.  Everything in the plan needs further refinement. 


Following Spence Campbell, Dr. George Jones briefly addressed the Board.  He was a member of the Historic Courthouse Committee.   On behalf of the Committee members, Dr. Jones presented a framed picture of the Historic Courthouse to Chairman Spence Campbell and thanked him for his service.  Theron Maybin, another Committee member, also briefly addressed the Board. They both asked the Commissioners to approve the idea and to vow to not allow the historic building to be demolished but to move forward with this recommendation.


The Board was asked to adopt the concept and to appoint a Steering Committee or Board of Trustees to work with county staff to accomplish the detailed planning.   


Chairman Hawkins thanked Spence Campbell and the Committee for their fine work and completing it on task.  He commended the Committee for increasing community awareness of the historic courthouse.  He stated that the Board, of course, wished to move forward as quickly as possible.  He did state that if you take down the annexes then you have to find a place to house the employees who work in those areas and that will have a domino effect at some point.  There is a time capsule buried on the site and that has to be taken into consideration as well as the placement of the monuments on the site.  He mentioned that the 9-1-1 communication tower that is currently at the courthouse may have to be relocated. 


Following discussion, it was the consensus of the Board to proceed with phase II of this project, particularly the establishment of a 501(c)(3) for governance of the building and to proceed from here by asking staff to look at the recommendations and to come back to the Board within 30-60 days with staff suggestions on how to proceed.


Mr. Campbell explained that the purpose of the Steering Committee was a temporary purpose.  The body would be in existence until the doors open on the renovated courthouse.  Their mission would be to work with county staff to keep the project moving in a direction that is compatible with what the Board wants and also to continue to provide a way for the public to have input into the process.  At the same time, it might have a sub-element on a temporary basis which would be the fund-raising arm of the Steering Committee or a non-profit body directly working with the Steering Committee or part of it to begin the public fund-raising aspect of the project.  The 501(c)(3) which will have been around since day one of phase two will assume it’s total responsibility to manage the site when the doors open at the end of the renovation project. 


Chairman Hawkins stated that one of the things the Board will have to do now that the ball is back in their court is to take a look at our total county funding needs and see how to integrate this particular program into that.  He has done a little bit of research on the additional monies that should come into the county over a period of years which will grow out of the Article 44 sales tax.  The first numbers he looked at would indicate that the county could probably fund their part of the public/private venture out of that growth in sales tax which would mean it wouldn’t be a burden on the property tax. 


Commissioner Baldwin made the motion that the Board adopt the report as a guide in principle and concept and to direct staff to begin phase II as outlined in the document.  All voted in favor and the motion carried.

Applause followed.



Chairman Hawkins called a brief technical recess.


Chairman Hawkins called the meeting back to order and asked for any informal public comments at this time.



Steve Caraker  - Mr. Caraker is a county employee who did not wish to address the Board as an employee.  As the current Chairman and on behalf of the Henderson Historic Preservation Commission he made a request for the Board to renovate and rehabilitate the old county courthouse.  He read a letter he had written to the Board dated September 2, 2003. 


He thanked the Board for taking such action to start this ball rolling.  He offered his services and that of any of the Historic Preservation Commission members, if needed, to help the project move forward.


Marian Lowry – Ms. Lowry is co-President of the League of Women Voters.  She commended the Board for the action just taken today.  The League had sent the Board a letter showing their support of the project.


Eva Ritchey – Ms. Ritchey had already left the meeting; therefore, she did not speak. She wrote beside her name “Dr. Jones said it.”


Mary L. Singleton – Ms. Singleton is a retired educator.  She spoke about litter in our county, mentioning the litter summit that was held in our county earlier this year.  She had been noticing the increase of litter on our roads and decided to try to find out a little more about litter. By talking with someone from the Health Department she found out that the two main places that litter come from are from trucks carrying things that are uncovered and from fast food restaurants.  She investigated and found that the fast food restaurants aren’t required to provide receptacles outside for trash. Most of them used to have trash receptacles outside but now they do not.  She found them currently at McDonalds, even with extensions on them so you don’t have to get out of your car to put your trash in them.  The rest of them have taken their receptacles inside.  The reason she gave for this is a loophole in our North Carolina law.  Not just fast food but all the restaurants are inspected every three months by people from the Environmental Division of the Health Department.  When they go to the fast food restaurants, they have certain things to look for.  But the N.C. law does not say that there have to be any receptacles outside for trash.  So that is not part of their inspection.  Ms. Singleton stated that one thing we can do as citizens is to talk to our Legislators and/or write them and make people aware of this to try to get that law put in to change that loophole so that there will have to be outside trash receptacles.


PUBLIC HEARING on Proposed Amendments to the Henderson County Subdivision Ordinance

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


Karen Smith reminded the Board that the subject of this public hearing was a set of proposed amendments to Chapter 170 of the Henderson County Code, the Subdivision Ordinance for Henderson County, North Carolina (the “Subdivision Ordinance” or “Ordinance”).


In March of 2003, the Planning Board amended Appendices 4 through 7 of the Subdivision Ordinance as allowed by Section 170-50C of the Subdivision Ordinance.  Such amendments were primarily intended to clarify for users of the Ordinance the application and plan/plat detail requirements for subdivisions and to rectify any discrepancies between the Ordinance text and the Appendices.  The amendments to the Appendices generated discussion by the Planning Board and its Subdivision Issues Subcommittee regarding some related amendments to the text of the Subdivision Ordinance itself as well as some other amendments that have been under consideration by the Planning Board.


The Subdivisions Issues Subcommittee presented recommended Subdivision Ordinance amendments to the full Planning Board on July 15, 2003, and the Planning Board voted unanimously to send a favorable recommendation on the amendments to the Board of Commissioners.  The recommended amendments, which were part of the agenda packet, were in two formats.  Attachment 2 presents the amendments in the form of an ordinance for action by the Board of Commissioners.  Attachment 3 presents the amendments in the format used when the amendments were submitted to the Board of Commissioners on August 4, 2003, in order for the Board to set the public hearing.  The wording of the two sets of amendments was intended to be identical.


The proposed amendments were summarized as follows:  Amendment 1 requires curve radii to be noted on development plans; Amendments 2 and 3 provide flexibility for the scale of master and development plans; Amendment 4 updates terminology used to refer to “professional land surveyors;”  Amendment 5 removes the requirement for submission of restrictive covenants; Amendment 6 clarifies that “future development” areas noted on plans will require review under the Subdivision Ordinance when developed; Amendment 7 requires applicable perennial stream setbacks to be noted on development plans and final plats; Amendment 8 allows for the collection of family subdivision fees; and Amendment 9 adds a new section to the Ordinance informing applicants of their responsibility to meet all Subdivision Ordinance requirements.


In accordance with State law and the Subdivision Ordinance, notices of the public hearing were published as legal advertisements in the August 20, 2003 and August 27, 2003 editions of the Times-News.  As a courtesy, Staff also sent notices of the hearing and copies of the proposed amendments to area surveyors, engineers, landscape architects, and other land development professionals.


Ms. Smith reviewed the proposed amendments in more detail. She recognized Derrick Cook, Subdivision Administrator, stating either of them would be glad to answer any questions. 


Public Input

William Patterson – Mr. Patterson was okay with amendment number one.  Number two – he didn’t like the request for 40 copies, stating that was a waste of time and money.  Number three – also asks for at least 40 copies. Number four – he had no problem with that one.  Number five – he was okay with also.  Number six – he had no complaints about.  Number seven – he stated “that’s a joke”.  Number eight – he asked what the $25.00 was for, someone’s signature?



Bill Bradley – Mr. Bradley questioned why there would be a $25 fee for family subdivisions when all that’s needed is a signature.


Chairman Hawkins asked Ms. Smith or Mr. Cook to address the number of copies we need and what the Planning Board’s rationale was for the filing fee for family subdivision plats.  Ms. Smith stated that the number of copies was questioned by staff when the Planning Board discussed it.  She stated that staff does use at least 30 copies in the course of the review of the subdivision.  They supply to the review agencies.  They do two mailings to the Planning Board one of which is a pre-agenda packet so they have the directions and a map and the plan so they can visit it ahead of time.  A number of staff copies are needed as well as press copies and others.  She estimated the need for somewhere between 30 and 40.  The subcommittee decided to go with 40 copies.  This is if someone gives them a reduced copy that is of a size that they cannot easily duplicate.  If they provide an 11” x 17” copy the 40 copies is not necessary as staff can duplicate.  If a larger size is used, staff does not have the means to copy.  Ms. Smith stated that the fee schedule was proposed for family subdivisions when the subdivision ordinance changed or soon thereafter.  Family subdivisions used to be exempt from the Subdivision Ordinance entirely, now they do require an affidavit of understanding.  The subdivision ordinance also requires that there be a right-of-way so staff checks for that.  Staff also checks for zoning compliance and watershed compliance.  The Planning Board doesn’t look at them, they are reviewed by staff.  There are still a lot of requirements that a family subdivision is exempt from.  Ms. Smith addressed the need for noting the set-backs on the perennial streams.  She stated that it is less for staff and the Planning Board, more for when the plats are on record so that buyers of lots are aware that the set-back may apply.


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 Sections of Chapter 170 with the nine provisions presented.  All voted in favor and the motion carried.



At the last Board meeting, a Resolution was adopted by motion to allow the County to continue to enforce the County’s police power and land use ordinances within the Town boundaries through September 30, 2003, to enable the proposed contract with the Town to be discussed further. 


The resolution was placed on this agenda for the Board to ratify the specific wording of the resolution adopted at the last meeting.


Chairman Hawkins stated that the Board needs to have some communication back to the Town of Mills River regarding the costs and fees. Staff had put together a sheet showing the estimated net expenses to the County associated with the Mills River Incorporation.


Mr. Nicholson reviewed the sheet of estimated expenses with the Board. It was the consensus of the Board to not charge them for the Assessor fees or Environmental Health but to add 15% overhead.  Following much discussion, it was the consensus for the Chairman and County Manager to draft a letter to the Town of Mills River about getting together for a joint meeting to discuss these issues. 


Chairman Hawkins made the motion to adopt the Resolution as presented.  All voted in favor and the motion carried.

Event to welcome local M.P. units return home

Chairman Hawkins stated that in a few days we would move into the second anniversary of the attack on America on September 11, 2001.  The county held a ceremony and recognition on the first anniversary.  The September 11th incident has affected all our lives.  Locally we have had two military police units deployed and we don’t as yet know when they will return home.  He asked the Board if they would consider being involved in some kind of recognition for those units when they return home.  Chairman Hawkins felt that we should welcome them home and let them know that they were missed while they were gone.  He requested that we take that on as a county project.  The Board was in agreement.



The Board reviewed the Commissioners’ Calendar.  Commissioner Moyer stated that he would be out of town September 4 through September 17. 


There was some discussion about setting a date for a fall retreat.  It was decided to try to have the retreat on two consecutive Fridays.  If we get finished on the first Friday we could cancel the second date. 







Chairman Hawkins made the motion that the Board go into closed session as allowed pursuant to NCGS 143-318.11 for the following reason(s):


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.


All voted in favor and the motion carried.


There being no further business to come before the Board, Chairman Hawkins made the motion to adjourn the meeting.  All voted in favor and the motion carried.





Elizabeth W. Corn, Clerk to the Board                               Grady Hawkins, Chairman