STATE OF NORTH CAROLINA                                                                    BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                                          NOVEMBER 19, 2003


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


Those present were:  Chairman 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, Public Information Officer Chris S. Coulson, Fire Marshal Rocky Hyder, County Engineer Gary Tweed, Finance Director J. Carey McLelland, and Assistant County Attorney Russell Burrell. Deputy Clerk to the Board Amy Brantley was present through nominations.



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



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



Rev. Gary Tolbert, Fletcher Seventh Day Adventist Church, gave the invocation.



Chairman Hawkins asked for an addition to Update on Pending Issues, #5 Animal Shelter update as well as #6 County Complex update, and #7 Strategic Plan update.


Chairman Hawkins also stated that when the Board starts discussing item “D – Amendment to Mills River Interlocal Agreement” Commissioner Baldwin wanted to discuss the sign permitting in the Mills River area.


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



Chairman Hawkins asked that items “I & J” both be pulled from the agenda at this time.  He also asked that item “L – Waterline & Sewerline Extension(s) be pulled for some discussion. 


Angela Beeker had received some changes regarding the Ambulance Franchise and distributed those.  They were not significant changes.  The largest change had to do with financial reporting.  The ordinance doesn’t require an audited financial statement but it was included in the draft and they asked not to have to do that unless their financial condition deteriorated.  If they were committed to an audit it would be for the entire hospital system.  They thought that was a little bit much.  It was the consensus of the Board to include the newly distributed changes as part of the consent agenda item.


Chairman Hawkins made the motion to approve the consent agenda except for the three items pulled above.  All voted in favor and the motion carried.



Draft minutes were presented for the Board’s review and approval of the following meetings:

            November 3, 2003, regular meeting

            November 13, 2003, special called meeting.


Tax Collector’s Report

Terry F. Lyda, Henderson County Tax Collector, presented the Tax Collector’s Report dated November 14, 2003, for the Board’s review.


Tax Refunds

A list of 15 tax refund requests was submitted for Board approval. 


Tax Releases

A list of 118 tax release requests was submitted for Board approval.


Approval of Closed Session Minutes

The Board was requested to adopt the following motion:

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


            Minutes for the closed sessions held on November 20, 2002, January 6, 2003,

            February 3, 2003, May 5, 2003, June 2, 2003, June 18, 2003, July 7, 2003,

            September 2, 2003, October 6, 2003, October 15, 2003, each as presented and

            revised during the closed session of November 3, 2003.


Mountain Home Fire and Rescue Lease Purchase Agreement

Mountain Home Fire and Rescue is considering purchase of real property on Clear Creek Road, which includes a house on an acre of land for $89,000.  They will make a down payment of $25,000, financed for 5 years, and rent the property for 5 years to offset the debt payment before tearing it down to build a station.  United Financial will finance $64,900 for 5 years, for an annual payment of $14,598.78, at an interest rate of 4.52%.  The loan will payoff before the station is built and staffed.

A motion to accept the purchase of the land at the September 29, 2003 Fire and Rescue Advisory Board meeting was made by Joe Swain and seconded by Richard Barnwell.  Unanimous approval.


Mountain Home Fire and Rescue respectfully requested the Chairman to sign the prepared letter to United Financial of North Carolina.


Petitions for addition to State Road system

Staff had received and recommended approval of the following petitions to add roads to the State Maintenance System:

                                    1.            Greg Albea Drive

                                    2.            Evergreen Hill Drive


It has been the practice of this Board to accept road petitions and forward them to NC Department of Transportation for their review.  It has also been the practice of the Board not to ask NC DOT to change the priority for roads on the paving priority list.


Ambulance Franchise Mission Hospital, Inc.

The Board reviewed a proposed franchise for Mission Hospitals, Inc., for the provision of interfacility special transport service, air ambulance service, and mutual-aid emergency transport service in Henderson County.  The Board voted to approve the application at the November 3 Board meeting.  However, to be effective, an ordinance granting a franchise must be approved at two regular meetings of the Board of Commissioners.  Therefore, if the proposed franchise is approved at today’s meeting, it will be placed on the Board’s agenda for the December 2, 2003 meeting as well.


Special Note – The application was submitted in the name of Mission St. Joseph’s Health System, Inc., however effective December 1, 2003, the name will change to Mission Hospitals, Inc.  Therefore the franchise is in the name of Mission Hospitals, Inc.


Economic Incentives Agreement (Food Packing Facility)

Spearman Food Distributors, Inc. - This item had been pulled.


Economic Incentives Agreement (Food Distribution Facility)

Spearman Food Distributors, Inc. – This item had been pulled.


Set Public Hearing, Hazard Mitigation Plan

The Henderson County Multi-Jurisdictional Hazard Mitigation Plan has been completed and is currently being reviewed by North Carolina Emergency Management staff.  This plan contains input from each governmental unit within Henderson County regarding strategies to protect human life and health, minimize damage to existing buildings, protect infrastructure and the environment from the effects of natural or technological hazards.  Staff requested the Board schedule a final public hearing for the Hazard Mitigation Plan for December 17, 2003 at 11:00 a.m. and consider adopting the plan afterwards.  Pursuant to N.C.G.S. 166A-6.01, local governments must have an approved Hazard Mitigation Plan adopted by November 2004.


Charter - Planning for Older Adults Committee

Mr. Nicholson had met with the County Attorney and updated the Charter for the Planning for Older Adults Block Grant Committee.  This Committee is established by the state regulations for the State Funding Plan for aging funds.


Mr. Nicholson recommended that the Board approve the proposed Charter and Bylaws and take applications for appointment to the Committee.


Pulled for Discussion:


Waterline & Sewerline Extension(s)

The City of Hendersonville has requested any County comments on proposed waterline/sewerline extension(s) as follows:


Lakewood RV Resort Sewer Line Extension

This project was reviewed under the County Manufactured Park Ordinance on 11/7/03 and was approved.  Staff approved the development of 27 manufactured home spaces in an area previously intended for use as an expansion of the existing RV park. 


The Board of Commissioners granted a development vested right for the final phase of Lakewood RV Resort on 4/11/02.  However, the developer has since decided to develop a manufactured home park in an area proposed for use as an RV park under the development vested right.  The developer intends to communicate to the Board of Commissioners that the vested right is no longer needed. 


The project does not fully conform to the County Land Use Plan because the land use map in the 1993 Land Use Plan designated the subject property and other land in the area as industrial.  However, the 1993 Plan did anticipate that public utilities would be provided to the subject area.  Part of Lakewood RV Resort was developed prior to the completion of the 1993 Plan.


Acorn Manor Manufactured Home Park Water Line Extension

This project does conform with the County Land Use Plan and has adequate hydrant location and spacing. 


Chairman Hawkins had questions concerning vested rights for Lakewood Manor.  Karen Smith stated that they had asked for a vested right for phase II of their RV Resort to develop it mainly for RVs.  They are in an open use zoning district so they don’t need any special approval to do an RV Park.  They wanted to go ahead and get the vested right in case there is a change in zoning.  They have had a change in plans.  They are looking to do more of a manufactured home park in the second phase so they will be coming under the Manufactured Home Park Ordinance and meeting those standards.  They no longer need the vested right.


Chairman Hawkins raised a question about the contamination problem regarding the Brookside Camp/Howard Gap Road waterline extension.  David Nicholson explained that the City has designed it but they are still struggling financially.  It is a major cost to run this line because it is so far out.  They are trying to get state assistance. 


Chairman Hawkins made the motion to approve the consent agenda minus items “I & J” and incorporate the additions distributed for the Ambulance Franchise under item “H”. All voted in favor and the motion carried.



Notification of Vacancies

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


1.         Senior Volunteer Services Advisory Council – 1 vac.

2.         Solid Waste Advisory Committee – 1 vac.



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


1.         Apple Country Greenway Commission - 1 vac.

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


2.                  Community Child Protection Team – 1 vac.

This vacancy must be filled by a law enforcement officer.  Two people from our Sheriff’s Department are eligible to fill this position and they are currently debating among themselves about which one will fill this vacancy. This item was rolled to the next meeting.


3.             Downtown Hendersonville, Inc. – 1 vac.

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


4.         EMS Quality Management Committee – 1 vac.

Chairman Hawkins nominated Dr. Robert Boleman, an ER physician.  There were no other nominations at this time.  Chairman Hawkins made the motion to accept Dr. Boleman by acclamation.  All voted in favor and the motion carried.


5.         Fire and Rescue Advisory Committee – 1 vac.

This position must be filled by a Fire Association nominee.  They have nominated Bill Stepp. There were no other nominations at this time. Chairman Hawkins made the motion to accept Mr. Stepp by acclamation. All voted in favor and the motion carried.


6.         Fire Commission – 3 vac.

They have nominated Martin Harris, Dr. H.B. Norton, and Phil Hyder.  Chairman Hawkins made the motion to accept those three by acclamation.  All voted in favor and the motion carried.


7.         French Broad River MPO – Transportation Advisory Committee – 2 vac.

Commissioner Baldwin nominated Chairman Hawkins and Commissioner Young to serve on this Committee.  There were no other nominations.  Chairman Hawkins made the motion to accept those nominees by acclamation.  All voted in favor and the motion carried.


8.           Henderson County Zoning Board of Adjustment – 2 vac.

Robert Fleming had indicated he would be willing to continue to serve on this Board.  Dean Bonessi had indicated he would be willing to move from an alternate member to a regular member.  Chairman Hawkins made the motion to accept both by acclamation.  All voted in favor and the motion carried.


9.           Henderson County Planning Board – 1 vac.

Commissioner Baldwin nominated Spence Campbell.  Commissioner Young nominated Frankie Sitton.  Chairman Hawkins nominated Vivian Armstrong.  There were no other nominations at this time.  The Clerk will poll the Board at the next meeting. 


10.        Hospital Corporation Board of Directors – 4 vac.

Dr. John Bell, Dr. George Jones, Marcia Caserio, Vincent Rees, Larry Freeman, and Don Holder were all nominated on November 3.  The Clerk polled the Board and the vote was as follows:


            Commissioner Moyer             Jones, Holder, Bell, and Caserio

            Commissioner Messer             Jones, Holder, Bell, and Caserio

            Chairman Hawkins                     Jones, Caserio, Rees, and Freeman

            Commissioner Young                 Jones, Holder, Caserio, and Freeman

            Commissioner Baldwin            Jones, Caserio, Rees, and Freeman


Dr. George Jones, Marcia Caserio, Don Holder, and Larry Freeman were the appointees.


11.        Juvenile Crime Prevention Council – 4 vac.

At the November 3 meeting Don Fisher was nominated to fill a law enforcement vacancy on the Board.  The Board of Commissioners did not vote at that meeting.  There were no other nominees for that position.  Chairman Hawkins made the motion to accept Mr. Fisher by acclamation.  All voted in favor and the motion carried.


12.           Nursing/Adult Care Home Community Advisory Committee – 6 vac.

Chairman Hawkins nominated Patricia Stanley for reappointment to position #14.  There were no other nominations at this time.  Chairman Hawkins made the motion to accept Ms. Stanley by acclamation.  All voted in favor and the motion carried.


13.        Senior Volunteer Services Advisory Council – 1 vac.

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


14.        Travel and Tourism Committee – 4 vac.

Mike Horton, Scott Surrette, Lucy King, Larry Young, and Eleanor Michalove were nominated at the last meeting. 


Commissioner Young is the only nominee qualified to fill position # 4.  Mike Horton is the only nominee qualified to fill position #1.  Chairman Hawkins made the motion to accept both by acclamation.  All voted in favor and the motion carried.


The Clerk polled the Board and the vote was as follows:


            Commissioner Moyer                 King, Surrette

            Commissioner Messer                King, Surrette

            Chairman Hawkins                    Michalove, Surrette

            Commissioner Young                Michalove, Surrette

            Commissioner Baldwin              Michalove, King


Scott Surrette was appointed but there was a tie between Lucy King and Eleanor Michalove.  The Clerk will poll the Board at the next meeting.


During budget deliberations, the Board requested that the Chamber provide quarterly updates to the Board on their activities and that of the Partnership for Economic Development. 


Scott Hamilton was present and distributed a copy of their quarterly report to each Commissioner and the County Manager.   He explained that Henderson County Partnership for Economic Development is the economic division of the Greater Hendersonville Chamber.  He introduced several members in the audience with him today:

            Chamber President Bob Williford (also Project Coordinator)

            Andrew Tate, Chamber staff

            Chip Gould, Chairman of Henderson County Partnership for Economic Development

                                    (also Division Chair for the Chamber)


As Mr. Hamilton reviewed the report, it was also shown as a Power Point presentation.  In April the unemployment rate in Henderson County was 4.6% and in September it was 3.2%.  For the year 2000 the unemployment rate was just over 2% for the entire year. 

In 2000 we had 8,100 people employed in Henderson County in manufacturing.  In 2002 that figure fell to 7,200 and for the first quarter of this year we’re at about 7,000 people employed in manufacturing.


He explained about a number of advertising/marketing projects they have done or are currently doing. 


Chairman Hawkins stated that there is a lot of activity going on through the Chamber and some of it is beginning to pay off.  He explained that the Commissioners and the community are appreciative of the jobs and income the Chamber has been able to create in our community. 



Recently, during review of water supply watershed issues related to a major subdivision application, the Planning Director learned that a section of the County’s Water Supply Watershed Protection Ordinance (Chapter 192, Part l, in the Henderson County Code and hereinafter referred to as “WSWS Ordinance”) may not be in full compliance with minimum standards for water supply watershed protection established by the State of North Carolina. Karen Smith explained that the section of the WSWS Ordinance in question pertains to the vegetative buffers that are required along perennial streams in designated water supply watersheds.


Currently, Section 192-15 of the WSWS Ordinance requires a minimum 30-foot vegetative buffer for development activities along all perennial streams in water supply watersheds.  A perennial stream is defined by the WSWS Ordinance as: “A constantly flowing, drought-resistant stream that is typically depicted by a thin continuous blue line on the most recent version of the USGS 1:24,000 (7.5 minute) scale topographic maps (or as determined by local government studies), unless other provisions have been made.”


The State’s Water Supply Watershed Protection Rules (Title 15A, North Carolina Administrative Code Chapter 02, Subchapter B and hereinafter referred to as the “State Rules”), which were adopted in 1992, required local governments with land use jurisdiction in designated water supply watersheds to adopt and enforce water supply watershed  protection ordinances that met at least the minimum standards in the State Rules.


The State Rules establish maximum intensities of development depending on the water supply watershed classification (WS-l, WS-ll, WS-lll, etc.).  The State Rules and, therefore, the County’s WSWS Ordinance, regulate the density of single-family residential development by establishing minimum lot sizes and regulate nonresidential development and multi-family residential development through maximum built-upon area standards.


Local governments have options under the State Rules regarding how to regulate the density of development. In general terms, the “low density option” establishes one set of standards for minimum lot size and maximum built-upon area for each watershed classification.  The “low density option” requires a minimum 30-foot vegetated buffer along perennial streams, but does not require engineered stormwater controls for development.  The “high density option” establishes another set of standards for minimum lot size and maximum built-upon area for each watershed classification.  As its name implies, the “high density option” allows a higher intensity of development than the “low density option” and requires a minimum 100-foot vegetated buffer along perennial streams as well as the installation, operation and maintenance of engineered stormwater controls for development.


When Henderson County first adopted its WSWS Ordinance in May of 1994, the County allowed for both the low density and high density options.  In addition, the County also incorporated an option into its ordinance from the State Rules called the “5/70” provision under which 5 percent of certain watersheds (outside of Critical Areas) could be developed with up to 70 percent built-upon area.  Procedures for granting applications to use the “5/70” provision were outlined in the WSWS Ordinance.


In 1995, revisions to the State Rules allowed local governments to modify their ordinances, to, among other things, change the “5/70” provision to “10/70” and to allow the “10/70” provision in WS-IV water supply watersheds where local governments did not elect to incorporate the high density option.  In February of 1996, Henderson County amended its WSWS Ordinance to incorporate changes based on the revised State Rules.  In addition to changing the “5/70” provision to “10/70”, Henderson County added the “10/70” option to the standards for WS-IV areas.  In doing so, the County determined that the “10/70” provision in WS-IV areas provided a level of flexibility such that the “high density option” (which Henderson County’s WSWS Ordinance previously allowed in WS-IV areas) was no longer necessary.  The 1996 amendments to the Henderson County WSWS Ordinance deleted all references to the “high density option.”  The amendments also deleted a paragraph regarding the 100-foot buffer requirement (see excerpt from the 1996 amendments approved by the Board of Commissioner), evidently because the paragraph heading refers to “High Density Development Buffer Areas.”


Due to the 1996 amendments, the 30-foot buffer standard is the only buffer requirement in Henderson County’s WSWS Ordinance.  Therefore, Henderson County has required that individuals requesting to use the “10/70” option, which the WSWS Ordinance calls a “Special Intensity Allocation” (or SIA), maintain a 30-foot vegetative buffer along perennial streams.  However, in discussing with Division of Water Quality staff the major subdivision mentioned previously, the Planning Director learned that the State staff interpret language in the State Rules requiring the use of a 100-foot vegetative buffer for “… all new development activities that exceed the low density option requirements …” as being applicable to development under the “10/70” provision as well.  This is apparently because the State Rules do not list the “10/70” provision with the standards for the “low density option” and any development above the level allowed by the “low density option” is considered high density development.  The State staff has since sent written notice to County staff stating that the County’s WSWS Ordinance needs to be revised to make the County’s buffer requirements consistent with State Rules.


Section 192-26 of the WSWS Ordinance outlines the procedures for amending the ordinance.  The Board of Commissioners has the authority to incorporate the minimum requirement of the State Rules into the WSWS Ordinance without having to obtain a recommendation from the Planning Board and holding a public hearing.  Since the 100-foot buffer requirement appears to be a minimum requirement of the State Rules, Staff had drafted for the Board’s consideration a proposed amendment to the WSWS Ordinance (proposed “Ordinance to Revise Chapter 192, Part 1, of the Henderson County Code Regarding Watershed Protection”).


Mr. Nicholson stated that although the Board could schedule a public hearing on this change, the County’s ordinance must be changed to meet the State’s rules.  If we hold a public hearing, it would give the appearance that we have an option.  So, he recommended that the Board approve this change in the ordinance.


Angela Beeker advised the Board – “Now that we have been put on notice by the State that the ordinance does not meet the state minimum with respect to that one issue, I do believe that they could choose, I agree with Commissioner Baldwin they probably wouldn’t as long as we’re working on it but uh civil penalties is the risk that you run by not having your ordinance conform to the state minimum, having the State come back and say we’ve told you, you haven’t done it so.  I would, I’m just cautioning you that the study process I realize will take longer than 30 days but that it does still need to be wrapped up within a reasonable time so that we avoid that risk of civil penalties.”


Following much discussion, it was the consensus of the Commissioners to refer this to the Planning Board for review and study of the ordinance and a recommendation back to the Board of Commissioners, with a question of whether we should adopt a moratorium. The first thing to look at is whether or not our ordinance complies with the state laws and how to make our ordinance comply if it doesn’t. 



1. Dick Baird – Mr. Baird congratulated the Board on the strategic planning effort that is underway, stating that the first two days were superb.  This information will be invaluable to the Board, staff, and the county for many years to come. 


He addressed the issue of tennis courts at Jackson Park, stating that he felt it was time to add #5 and # 6 or two more tennis courts.  It would cost about $50,000. 


He addressed the issue of informal public comments, stating that they are almost always delayed from the time they are scheduled to be. 


He stated that the Board is faced with a $25 million, more or less, building program for the schools within the next two to three years.  He questioned how that would be paid for. 



Mr. Nicholson stated that the Board of Commissioners recently approved the creation of a Historic Courthouse Steering Committee to assist the County Staff in further defining the role and function of a not for profit organization to deal with the Historic Courthouse.  Included in the agenda packet were proposed Articles of Incorporation and Bylaws for the Henderson County Historic Courthouse Corporation.


The Steering Committee sees the same basic organizational structure as we used to establish the Henderson County Hospital Corporation.  Basically, Henderson County would own the facility and lease it to the not for profit created by the Board of Commissioners.


Staff was seeking direction from the Board on this proposal.  It is important that the Board should clarify the role of the not for profit and then proceed with its creation in order to keep the momentum going for the renovation of the building.


Mr. Nicholson stated that the way the Articles of Incorporation are written, it would operate in the same format as the Hospital Corporation works.  The Board of Commissioners created the not for profit, appointed the members of the not for profit and the county continues to own the facility but provide a lease to the not for profit corporation to operate it.  In the meantime the number one goal would be to raise money for the renovation of the project. 


Much discussion followed.  Russell Burrell came forward and answered questions about the Articles of Incorporation as he had actually drawn them up. 



Chairman Hawkins called a short technical recess to change videotapes.  When we returned from the technical recess, it was the scheduled time for the public hearings.




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


Rocky Hyder reminded the Board that the Board had established November 19, 2003 as the public hearing date for the following road names:


                        Proposed Name


                        Baber Road

                        James Road

                        Dorothy Jane Lane


Mr. Nicholson recommended that the Board approve the proposed road names following the close of the public hearing.


Public Input

There was none.


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


Chairman Hawkins made the motion to accept the list of road names as presented.  All voted in favor and the motion carried.


PUBLIC HEARING – Rate Modification Agreement Proposed To Refinance Middle Schools Installment Contract Financing Debt with BB&T

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


Carey McLelland stated that a public hearing to hear comments on the proposed refinancing document is required by the State of North Carolina when entering into an installment purchase contract for bank financing pursuant to NCGS 160A-20(g).  The notice of the public hearing shall be published once at least 10 days before the hearing.  This notice was duly advertised in the Times-News on Sunday, November 9, 2003.

Mr. McLelland had submitted a resolution.


At the close of the public hearing, the Board was asked to consider approving a Draft Resolution which accepts the proposal from BB&T and authorizes the Board Chairman and Staff to execute the Rate Modification Agreement.


Public Input

There was none.


Chairman Hawkins made the motion to approve the prepared resolution authorizing execution of the necessary documents.  All voted in favor and the motion carried.


PUBLIC HEARING – 2003 Local Law Enforcement Block Grant

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


David Nicholson reminded the Board that annually, the Henderson County Sheriff’s Department receives a grant from the US Department of Justice.  The grant, Local Law Enforcement Block Grant, is in the amount of $11,154 and will be used to purchase additional technology for the department.  A local match of $1,239 is required and will be funded through Drug Seizure money.  In order to receive these funds, the Board of Commissioners is required to hold a public hearing. 


Mr. Nicholson recommended that the Board approve the receipt of this grant.


Public Input

There was none.


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 to approve the receipt of this grant for the Sheriff’s Department.  All voted in favor and the motion carried.



Discussion followed on this issue.


There were some questions raised about whether or not to title the building to the corporation or keep the title in Henderson County’s name.  There was some discussion regarding receipt of grant funds. Some discussion followed concerning Articles of Incorporation and By-laws as well as lease/transfer issues.


Russell Burrell reminded the Board that what they were being asked to approve today were the Articles of Incorporation.  The By-laws technically cannot be adopted until after the Corporation is approved in Raleigh. They had been given copies of both so they could get a look at the full picture. 


The Commissioners asked for a revision to the Articles of Incorporation concerning the terms of the Directors of the Corporation.  The Commissioners also asked Mr. Burrell to address the issue of “an informal meeting” in the By-laws as recommended by the County Attorney.  They also asked Mr. Burrell to address the issue of investment of idle funds in the Articles of Incorporation. The Board wished to add that they would require an annual audit of the Corporation and could require a certified audit upon request. 


Staff will work on the recommended revisions and bring the Articles of Incorporation back to the next Commissioners’ Meeting for Board adoption. 



Angela Beeker reminded the Board that on September 16, 2003, the Board of Commissioners and the Town of Mills River held a joint meeting at which an interlocal agreement was approved, providing for, among other things, the enforcement of County police power ordinances within the Town boundaries for a 4 year period, and County land use ordinances until March of 2004.  This agreement has been signed by the Chairman of the Board of Commissioners and the Mayor for the Town; however, at agenda prep, we were awaiting signature by the Town Clerk and the Finance Officer.


The proposed amendment has been approved by the Town of Mills River.  It addressed three things: 1) It proposes that the annual payment be billed in quarterly installments; 2) It changes the notice period to terminate enforcement of the land use ordinances from 180 days to 60 days, as 180 days is almost as long as the period of time that these ordinances will be enforced; and 3) It proposes that the issue on reimbursement for litigation expenses be included in a separate agreement.


It was Mrs. Beeker’s recommendation that the two boards decide now what they would be willing to agree to on the issue of reimbursement of litigation expenses and include it in this amendment rather than a third agreement. 


Chairman Hawkins made a motion to approve the amendment to the Mills River Interlocal Agreement as presented.  All voted in favor and the motion carried.


Sign Permitting – add-on by Commissioner Baldwin

He asked for a verbal report on how things evolved with respect to the issue that was in the newspaper recently with Mills River. 


David Nicholson reminded the community that there are two different types of ordinances the county has: land use ordinance and police power ordinance.  The sign ordinance is a police power ordinance.  A number of these issues came up because there was a gap between the time the Town of Mills River was incorporated and the point where Henderson County and the Town of Mills River agreed to have the county continue serving them on certain ordinances.  The Charter they had originally submitted to the State called for a period of time before the incorporation took place to give them some time to get their ducks in a row. What happened was the Bill that got introduced incorporated them immediately. Neither they nor we were prepared for that to happen. When Mills River became a Town our police power ordinances could not be enforced within the Town. We had no power. 


Mrs. Beeker covered the legal side of the issue.  She stated that the incorporation became effective June 24.  Up until that time, per the Board’s direction, she had been working with Counsel for the Town of Mills River (Sharon Alexander) to address some of the Board’s concerns that were in the charter that everybody thought was the one that would be considered.  That charter laid out specifically which ordinances the county would enforce and for how long and that the county had discretion to re-evaluation after the four year period whether they wished to continue to enforce them or not.  It was real specific.  You also have to remember that with that original bill the intent was that it would be effective January 1, 2004.  The Board had said that they would be willing to do all that for free and the Board knew that would cost a half year’s sales tax revenue at that point.  What happened was on June 24 a bill got introduced that neither Mrs. Alexander nor Mrs. Beeker had seen.  It was a boiler plate bill that didn’t contain any of the discussions.  It gave them full jurisdiction for everything and did not name Henderson County at all.  It also meant that the county would lose a full year of the sales tax revenues.  That threw everybody into a tailspin, especially from a staff perspective.  Staff wasn’t quite sure what they were suppose to be doing at that point.  Ms. Beeker wrote a memo to the staff just to explain what the legal status was as of the incorporation because clearly we didn’t want to send staff out to enforce things that we had no jurisdiction to enforce.  The memo was an attempt to give some direction to the staff on what they needed to be doing from a legal standpoint.  Per direction from Chairman Hawkins and David Nicholson, she sent a copy of the memo to Sharon Alexander.  She had it on July 3 so she was aware specifically what direction our staff had.  Mrs. Alexander and Mrs. Beeker have tried to maintain a very close working relationship and correspond back and forth.  They were conversing on a permit by permit basis at that point because the border of the Town wasn’t clear at that point in time.  On July 7 there was an agenda item that was put on the Commissioners’ agenda asking for direction for staff.  When the bill got passed everything changed, all the premises that we had been operating under and that the Board had agreed to.  All the circumstances changed at that point.  At that meeting (July 7) Roger Snyder came forward and explained to the Board the difference between the bill that passed versus what they thought was going to pass.  At that meeting he asked if in the interim between trying to work out an agreement for enforcement of the county’s ordinances could the Board not pass a resolution?  The Board of Commissioners did pass a resolution on July 7 that said “pending receipt of a resolution from the Town that said the same thing you all (the Board) would approve enforcing the police powers in their jurisdiction.”  The land use ordinances continued by operation of state law for 60 days so it wasn’t necessary to address those at that time. That was a Monday night meeting.  Per the minutes Mills River was suppose to vote on that same resolution at their meeting on Thursday, about July 10, when they took the same action.  As soon as the Town took that vote we got back our jurisdiction to enforce our ordinances (that evening).


She addressed the circumstances surrounding the particular sign permits – she did not know what date they came in, in between those dates to ask for the permits.  Mr. Laughter and herself did discuss immediately following the memo going out on June 27, he called her to confirm that he knew what he was suppose to be doing.  They had the conversation that he retained control/authority over the building inspections and that the sign ordinance went away. They went through a laundry list of things.  To her knowledge, it was before the permits had even been requested.  Subsequently, the Board of Commissioners extended that resolution so that we continued to enforce all the ordinances out there until the contract could be signed.  The resolutions expired September 30 but on September 16 both Boards approved an interlocal agreement which transferred jurisdiction.  Since the evening of July 10 there has been no other lapse in the county’s jurisdiction to enforce the police power ordinances.  As she calculated there was a lapse between June 24 and July 10 evening.


Commissioner Baldwin asked Sam Laughter when we received the applications for these particular signs.  Mr. Laughter stated that at some point prior to July 10 he received inquiries from Dr. Sheldon Maron about putting signs on his property.  He had approached Mr. Laughter many times about that issue and he contacted him sometime a week or so before that, right after Mr. Laughter had spoken to Mrs. Beeker, and inquired about putting signs on his property.  As Mr. Laughter understood the request it was to advertise his business, he is a foot doctor.  Mr. Laughter informed him each time he contacted him that no, he was within 1,000 feet. He had been working on putting an office out there so that he could have a sign there, that would be an on-premise sign which would have been permitted.  Sometime just prior to this, he contacted Mr. Laughter and asked if he could put a sign out there and Mr. Laughter told him that right now he could, that there was nothing to prevent him from issuing a building permit for a sign at the location on Dr. Maron’s property.  He apparently contacted a sign company who contacted Mr. Laughter to get sign permits.  He required sealed engineered drawings which they provided before they would issue the permits.  They showed up late in the afternoon on July 10, 2003 with all their paperwork in order and the permits were issued, six of them, at that time.  Two permits were for Dr. Maron, two for Roger Waycaster, one for James Martin, and one for Kenneth Marlowe.  The Waycasters and Dr. Maron both had two signs proposed on their own properties.  He heard no comment prior to this from anyone from Mills River.


Mr. Laughter stated that Henderson County did not have jurisdictions with the outdoor advertising control ordinance however they did have with building permits.  Building permits have to be issued on signs. Mr. Laughter stated “The way we work it with other jurisdictions, as well as our own, is if we get a off-premise sign then the other jurisdictions – the City of Hendersonville included, would send us a copy of their sign permit.  Then we issue a building permit which is a sign permit also but it’s for construction under the building codes.  In this particular case uh there was an absence of that approval – the outdoor advertising control ordinance approval.  I happen to enforce both ordinances uh and so a building permit was issued.”


Angela Beeker – “There was no lapse in coverage of jurisdiction at all on the building inspections or any of the land use ordinances.  That never lapsed.”



Following discussion on the issue, Commissioner Baldwin asked to be allowed to make a statement – “I think when this all first started and we were holding discussions with Mills River, I suggested to Mills River that they consider enacting a moratorium to catch some of these things that may slip through.  And they did choose not to do that.  I think come March if things are not in order we may find ourselves in a similar situation, if they haven’t taken the steps they need to take in order to create a safety net for their community.  So I don’t know that maybe this is – could serve as perhaps an example for us to say you know please consider this because this may stop some things after March that may slip through as well but you know we may want to just send a letter to them and let them know that.  Thank you Sam.”



Community Communications

Chairman Hawkins stated that he noticed at the CCP meetings and at the retreat as well as at a number of other occasions a continuing need for the Board to communicate with the community in a number of ways.  One thing the County Manager is about to initiate is an e-newsletter that should be beneficial.  He suggested the Board make an annual communication with the community, either during County Government Week or sometime close to the budget cycle.  He mentioned the quality of the update the Board just received from the Chamber of Commerce regarding the things they are doing. 


The County Manager reminded the Board of a monthly report that used to be published in the Times-News, called Henderson Highlights.  With all the budget cuts in the past couple years that has been cut out due to cost.  Staff is trying to be creative and came up with the idea of the e-newsletter. People can sign up to receive this and will be e-mailed on a monthly basis.


Following discussion on this, it was the consensus of the Board for the County Manager to get the County P.I.O. to research how other counties handle getting an annual report out to the citizens from the Commissioners on accomplishments for the year and to bring those ideas back to the Board.


Senate Bill# 1161 – Present Use Value Statute

Chairman Hawkins stated that during the adoption of the schedules, one thing that was referred to in the adoption order was adjustments for any changes in the statutes.  Then the General Assembly did in fact go back and make changes to the agriculture, horticulture, and forest land definition. 


Chairman Hawkins shared copies of Session Law 2002-184/Senate Bill 1161.  He spoke with the Assessor who told him they were in the process of adjusting our values so they correspond to the new statutes.  He suggested that the Board might want to charge the Agriculture Advisory Board to look at three or four issues along with other involved persons – to give them a charge to start looking at how to go about comparing the value schedules for the upcoming 2007 re-evaluation so they could make some recommendations back to this Board on some of those issues.  The Board agreed with this so Chairman Hawkins will work with the County Manager, County Attorney, and County Assessor on this issue.

Cable TV Issues

Angela Beeker stated that on August 20 the Board last discussed the issue of airing a radio signal over our Government Cable Channel, # 11.  At that meeting the Board indicated to both WTZQ and WHKP that the Board would come back in 90 days.  The Board directed at that meeting that Ms. Beeker get with Ms. Maggie Blythe of Mediacom to discuss the possibility of securing at least one additional channel to see if potentially both radio stations could be broadcasting over cable.  Commissioner Baldwin indicated that he would work with the County Manager to come up with some guidelines that the Board might want to put into place for any radio station that might broadcast over your channel regardless of whether it was WHKP, WTZQ, or whoever.  They have been working on that.


Ms. Beeker met with Ms. Blythe back in September.  She had issued a memo to the Board after that meeting to inform the Board of those findings.  The result was that she, of course, said that anything dealing with the creation of a new channel would open up the renegotiation of the franchise.  Ms. Beeker announced that we have received their notice saying that they wish to invoke the renegotiation process.  The Board has six months from receipt of that notice to begin the formal renegotiation process and that starts with an assessment of community needs with regards to cable.  Mr. Nicholson and Ms. Beeker will work on a charter for a Cable Advisory Committee to begin that process for the Board. They will bring that charter back to the Board at one of the next two meetings.  Technically, we are getting ready to begin the renegotiation of the franchise.


Ms. Beeker had done some research on broadcasting a radio signal over our cable channel  to try to help give the Board some help and guidance on the issue. Mediacom recommends not having a radio station on the government channel.  About a year ago they specifically consented to WHKP being on the air as background for the character generator.  Based on research she has done, Ms. Beeker feels it is a gray area but feels that as long as the Board’s primary purpose for the channel is governmental, that the presence of a radio station on it as background for the public information or governmental information is incidental and is defensible.  She had previously given the Board the advice that whatever they do, to treat everybody the same and to create equal opportunity. She had mapped out a suggested course of action for the Board regarding this issue and distributed copies of that to everyone. 


#1         Decide whether or not the presence of a local radio station is desirable by the County.


She informed the Board that Mediacom has offered to put their digital music on as the background music, free of charge.


At this time Mr. Nicholson explained that upon visiting Mediacom it was discovered that their equipment would allow three additional tape decks to be put onto the system.  Currently we only have three tape decks available to us.  This has considerably limited our programming.  We bought two additional tape decks and Blue Ridge Community College is buying a third additional tape deck. This will allow us to double our programming capability. 


#2         Ms. Beeker stated that if the Board were to decide for whatever reason that if the Board wished to not have a radio station on the channel any longer, then they would need to give Mediacom a reasonable notice.


            If the Board chooses to broadcast a radio station on the channel then Ms. Beeker recommended that the Board determine the specific circumstances under which a radio signal would be permitted by the county.   The Board must keep in mind that the overriding purpose for the channel must remain governmental, i.e., public.  Draft guidelines have been created. 


#3         Allow interested radio stations to submit a proposal based upon the guidelines and reserve the right to reject all proposals.


#4         Decide which, if any, radio station will be permitted to air their signal.


#5         Obtain the consent of Mediacom to allow such a radio station to be present under the new terms and conditions proposed. 

Staff will continue to conduct research to determine industry practices and to help to insure there are no new

court cases or other legal impediments.


Following Board discussion, it was the consensus of the Board to continue with the current set up of having WHKP as background music on Channel # 11, come up with some guidelines and then accept proposals from stations who wish to apply. As part of the renegotiations, the Board would like to look at the possibility of getting a second government channel. 


Due to time constraints, Ms. Beeker will issue a memo updating the Board on the audit. 



Chairman Hawkins called a short technical break.


Personnel Positions

Chairman Hawkins reminded the Board that during the Board’s evaluation of the County Manager the Board discussed the need for an Assistant County Manager position.  We have had that position in the past.  The Board has been quite generous in laying tasks on the County Manager and feel that we should once again have an Assistant County Manager.  The Board authorized the County Manager to advertise for the position.


Mr. Nicholson informed the Board that what he would look for in an assistant would be someone to reduce his daily supervision responsibilities across county government.  He currently has a huge span of control over twenty-some departments.  Mr. Nicholson feels that he should be doing what the Board wants done and representing the county on regional issues and will turn some of those daily activities of county government over to the assistant. 


Chairman Hawkins made the motion to authorize the creation of a position for an Assistant County Manager and criteria for the Board to consider for the job description and to authorize advertisement for that position. All voted in favor and the motion carried.    


Animal Shelter

Mr. Nicholson informed the Board that the Health Department has formed a committee to work on this project. They are currently looking at alternatives from the standpoint of the shelter construction issue.  They  are also looking at an alternative financial arrangement.  He hopes to be able to report some progress back to the Board at the next meeting or so.  He will get involved and help get this project focused and get it back to the Board of Commissioners so some decisions can be made.


County Complex

Mr. Nicholson informed the Board that the RFQs (Request for Qualifications) for architects are due in this week.  He asked if any of the Board of Commissioners wished to sit in on review of the RFQs.  Staff will review them and come back to the Board with a suggestion of who should be the architect for the project. At this point price cannot be an issue.  The choice must be made on quality at this point before negotiating pricing.


Strategic Plan

Mr. Nicholson distributed a working draft of the 2004 Strategic Plan for the Commissioners to review.  He asked the Commissioners to turn to page 11 which had an issue “county economy” which has not been established yet.  The strategies will be done at the next Commissioner’s meeting. 



Chairman Hawkins stated that Commissioner Messer had rescheduled the Cane Creek Water and Sewer Advisory Committee meeting to January 8 at 4:00 at Fletcher Town Hall. 


Chairman Hawkins reminded the Board of the up-coming Hendersonville Christmas Parade.  The Board of Commissioners has been entered as a participant. 


David Nicholson reminded those in attendance and those over the air that the Latino meeting for the County Comprehensive Plan has been scheduled for December 2 at 6:30 p.m. 



Chairman Hawkins made the motion for the Board to go into Cane Creek Water and Sewer District.  All voted in favor and the motion carried.


Chairman Hawkins made the motion for the Board to adjourn as Cane Creek Water and Sewer District and reconvene as the Henderson County Board of Commissioners.  All voted in favor and the motion carried.



Commissioner Messer 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