STATE OF NORTH CAROLINA                                                        BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                                                AUGUST 18, 2004


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, County Manager David E. Nicholson, Assistant County Manager Justin Hembree, 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, Paralegal Connie Rayfield, 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.


Absent was Commissioner Shannon Baldwin.



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



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



David Nicholson gave the invocation.



There was none.


Chairman Hawkins made the motion to accept the agenda as presented.  All voted in favor and the motion carried.



Chairman Hawkins asked that item “J – Non-Profit Grant Agreements” be pulled for some discussion.  Commissioner Moyer asked that item “G – County Services Building Reimbursement Resolution” be pulled for some additional information, as it was incomplete.


Chairman Hawkins made the motion to approve the Consent Agenda with the exception of G & J.  All voted in favor and the motion carried.


The rest of the Consent Agenda then consisted of the following:


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

            August 2, 2004, regular meeting.


Tax Collector Report

Terry F. Lyda, Tax Collector, provided the Tax Collector’s Report dated August 12, 2004, for the Board’s information.

Tax Refunds

A list of two (2) tax refund requests was submitted for consent approval by the Board of Commissioners. 


Tax Releases

A list of thirty-one (31) tax release requests was submitted for consent approval by the Board of Commissioners.


2005 Holiday Schedule

David Nicholson submitted a proposed 2005 Holiday Schedule for the Board’s consideration.  He noted that the schedule reflects December 31, 2004 as the day off (holiday) for New Year’s Day, since January 1 is on a Saturday.  Our policy indicates that if a holiday falls on a weekend that either Friday or Monday will be the scheduled holiday.  Staff reviewed both the Federal and State holiday schedule and they both are using Friday, December 31st for New Year’s Day.  This proposal moves a 2005 holiday into calendar year 2004. He recommended the Board approve the proposed schedule.


Petition for addition to State Road System

Staff had received road petition(s) to add the following to the State Road Maintenance System:

1.                Bradford Farm Road

2.                Bradford Hill Road

3.                Bradford Creek Road

4.                Lloyd Drive

The petitions meet the requirements for addition to the state road maintenance system.  It has been the practice of the Board to accept road petitions and forward them to the NC Department of Transportation for review.  It has also been the practice of the Board not to ask NCDOT to change the priority for roads on the paving priority list.

Staff recommended that the Board approve forwarding these road petitions to NC DOT.


BRCC Technology Education and Development Building – Agreement

Presented for the Board’s consideration was a proposed Agreement for the County’s use in financing the proposed BRCC Technology Education and Development Building.  A reimbursement resolution was adopted by the Board at the August 2 meeting for this project.


The statutory authority being used by the Board of Commissioners in proposing to finance this facility without a bond referendum is N.C.G.S. 115D-15.1, N.C.G.S. 153A-158.2, and N.C.G.S. 160A-20.  These statutes authorize BRCC to convey title to the property to the Board of Commissioners so that the Board may use installment financing or a COPs issue to finance the construction of this building.  The procedure being used is identical to that used to construct school facilities over the past few years.


The Agreement sets out the working relationship between the County and BRCC in the construction and financing of this facility.  Both are, again, identical to those documents used in the previous school financings.  The document has been reviewed by counsel for BRCC, and the minor changes requested have been made. 


Mr. Nicholson informed the Board that if they wish to proceed with positioning the County to finance this facility without the use of a referendum, approval of this document would be in order.


Mills River Sewer Project – Condemnation Action

Staff requested approval from the Board to file a condemnation action in order to secure an easement across property owned by Mr. Neil Lewis Goode.  The Goode property will be affected by the “business sewer line” portion of the Mills River Sewer Project.  An appraisal was obtained for the said property and the recommended compensation for the easement is $784.00.


Staff also requested approval from the Board to file a condemnation action in order to secure an easement across property owned by Mr. Ronnie Wayne Redden and wife Wanda Kay Redden.  The Redden property will be affected by the “school sewer line” portion of the Mills River Sewer Project.  An appraisal was obtained for the said property and the recommended compensation for the easement is $250.00.


Mr. Nicholson informed the Board that staff had recently held the pre-construction conference.  The firm that was awarded the construction of the main line indicated that they hope to have the main interceptor line built in five months.  He recommended that the Board approve the condemnation actions so that we can proceed with the two connector lines.


Request for Improvement Guarantee for Soapstone Creek Estates Subdivision

Mr. Timothy Phillips of Soapstone Creek Estates, L.L.C., had submitted an application for an improvement guarantee for a proposed major subdivision the company is developing known as Soapstone Creek Estates.  The subdivision is being constructed off McElrath Road.  The Planning Board granted conditional approval of a combined Master and Development Plan for the project on June 15, 2004.  The improvement guarantee is proposed to cover road improvements including fine grading, gravel installation, and asphalt paving.


Pursuant to Section 170-38 of the Henderson County Code, a developer may, in lieu of completing all of the required improvements prior to Final Plat approval, post a performance guarantee to secure the County’s interest in seeing that satisfactory construction of incomplete improvements occurs.  One type of permitted guarantee is the posting of an irrevocable letter of credit.  Soapstone Creek Estates, LLC, intends to post with the County a letter of credit in the amount of at least $74,365.63, which includes the cost of the improvements ($59,492.50) as well as the required twenty-five percent (25%) contingency ($14,873.13).  The proposed completion date for the improvements is June 15, 2005.


A draft Performance Guarantee Agreement was presented for the Board’s consideration.  If the application is approved, the developer must post with Henderson County an irrevocable letter of credit in accordance with the terms of the Agreement.  Once the County receives the letter of credit, the (Assistant) County Attorney must certify the Agreement as to form prior to its execution by the Chairman and the developer.


Mr. Nicholson recommended that the Board approve the application for an improvement guarantee for Soapstone Creek Estates subdivision subject to the developer posting with Henderson County an irrevocable letter of credit in accordance with the terms of the draft Performance Guarantee Agreement.


Employee Recognitions/Awards

NACIO, the National Association of County Information Officers presented to Chris Salerno Coulson, Henderson County Public Information Officer, a 2004 Excellence Award for the 2003 Report to Citizens (Annual Reports Category).  Ms. Coulson has received this award for the Annual Report to the Citizens six years in a row now.


Nursing/Adult Care Home Community Advisory Committee – Annual Report

Nuala Fay, Chairperson for the Nursing/Adult Care Home Community Advisory Committee, had submitted their annual written report.  This was for Board information only.  No action was required.


Discussion was then held on items G & J:

Item G - County Services Building Reimbursement Resolution

The reimbursement resolutions previously adopted for this project need to be updated to provide for reimbursement of the most recent expenditures for this project from anticipated financing proceeds.  Bond counsel had prepared the proposed reimbursement resolution for consideration by the Board at this meeting.


Mr. Nicholson recommended that the Board adopt the proposed resolution to preserve the County’s ability to claim reimbursements from the financing proceeds for previous expenditures for this project.


There was a blank on the front page “stating not to exceed           " (the borrowing amount). Mr.  Nicholson asked that it be filled in as $12 million.  There was some discussion concerning that amount and the rising cost of steel.  The resolution the Board adopted earlier stated $16.283 million.  Some of the commissioners were happier with putting that same amount in this document to give us some wiggle room.  Ms. Beeker stated that bond counsel has told her that if we err we should err on the high side.


Chairman Hawkins made the motion to approve item G except to list the borrowing amount on the first page as not to exceed $16.283 million.  All voted in favor and the motion carried.


Item J - Non-Profit Grant Agreements

Per the Board of Commissioners budget deliberations and approval of the Fiscal Year 2004-05 Budget, staff had developed these funding agreements for the Board’s approval.  These agreements are to be established between the County and the individually named organizations.  Budget and Legal staff will be available to answer any questions the Board may have regarding these contracts.


In addition, staff had included a revised ECO contract for the Board’s review and approval.  ECO had requested that #15 of the contract be removed in order to maintain their current board composition as was originally intended. 


Staff requested that the Board approve these agreements and authorize the Chairman to sign said agreements on behalf of the County.


Included were contracts for the following 16 agencies:

1.                Alliance for Human Services

2.                Blue Ridge Literacy Council

3.                Boys & Girls Club

4.                Children & Family Resource Center

5.                Council on Aging

6.                Dispute Settlement Center

7.                Healing Place

8.                Housing Assistance Corporation

9.                Interfaith Assistance Ministry

10.             Mainstay

11.             Pisgah Legal Services

12.             SSEACO

13.             Historic 7th Avenue District

14.             Community Development Council

15.             WNC Communities

16.             ECO/VWIN


There was some discussion that the contract should be fairly standard and shouldn’t be changed for individual organizations.  Other organizations would have signed the same contract, we don’t need to be writing different contracts for different agencies. 


Chairman Hawkins asked that this item be pulled and brought back on the next agenda. 



Notification of Vacancies

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

1.                Hendersonville Board of Adjustment – 1 vac.



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

1.                Child Fatality Prevention Team – 1 vac.

Chairman Hawkins nominated Kathleen Joselyn.  There were no other nominations.  Chairman Hawkins made the motion to accept Ms. Joselyn by acclamation. All voted in favor and the motion carried.


2.                Environmental Advisory Committee – Chairman

Hall Waddell has served well in that capacity but has indicated that Mr. Bill Hiatt is willing to serve in that position. Chairman Hawkins nominated Bill Hiatt.  There were no other nominations.  Chairman Hawkins made the motion to accept Mr. Hiatt by acclamation.  All voted in favor and the motion carried.


3.                Henderson County Historic Courthouse Corporation – 1 vac.

Commissioner Young stated that Dr. George Jones (Chairman) is a valuable member to that Board.  His term is due to expire in June 2005.  Commissioner Young made the motion to move Dr. Jones from position #1 to position #7, leaving a vacancy for position #1 and making Mr. Jones term expire 6/30/2007. 


Dr. Jones was in attendance and was willing to make the change as presented. 


Mrs. Beeker reminded the Board that the Articles of Incorporation limit service to two consecutive three-year terms. 


It was the pleasure of the Board to make the presented change.


Chairman Hawkins called for nominations to fill position #1.  Chairman Hawkins nominated Don Michalove. There were no other nominations.  Chairman Hawkins made the motion to accept Mr. Michalove by acclamation.  All voted in favor and the motion carried.


4.                Juvenile Crime Prevention Council – 4 vac.

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

5.                Mountain Area Workforce Development Board – 4 vac.

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


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

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


7.      Planning for Older Adults Block Grant Advisory Committee – 3 vac.

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


8.      Senior Volunteer Services Advisory Council – 1 vac.

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


9.      Solid Waste Advisory Committee – 1 vac.

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



Angela Beeker reminded the Board that it is time once again for the delivery of the tax receipts to the Henderson County Tax Collector; however before they can be delivered, the following must occur (pursuant to N.C.G.S. 105-352):


            (a)        PREPAYMENTS.         The Tax Collector must deliver any duplicate bills printed for prepayments received by the Tax Collector to the Finance Director and demonstrate to the Finance Director’s satisfaction that all prepayments received have been deposited.  Mrs. Beeker noted that a prepayment was received and is accounted for in the presented settlement.  It was from Steelcase and was in the amount of $250,000. 




Terry F. Lyda, Tax Collector, gave the Tax Collector’s Settlement for FY 2003-04 dated July 23, a copy of which is attached as a part of these minutes.


Darlene Burgess, Delinquent Tax Collector, gave the FY 2003-04 Progress Report regarding Delinquent Property Tax Collections and Report on Efforts to Collect Delinquent Taxes dated July 23, 2004, a copy of which is attached as a part of these minutes.


Discussion followed that our problem area continues to be in the area of motor vehicle taxes.  A total of 47.65% of our outstanding tax is attributable to motor vehicle tax.


Chairman Hawkins made the motion to approve the Proposed Resolution Approving The Settlement as presented.  All voted in favor and the motion carried.


            (c)        BOND.             The Board of Commissioners must approve the bond to be issued for the Tax Collector and Deputy Tax Collector for Delinquent Taxes.  COPIES OF THE CURRENT BONDS WERE INCLUDED IN THE AGENDA PACKET.  A PROPOSED RESOLUTION SETTING THE BOND AMOUNTS WAS PRESENTED FOR THE BOARD’S CONSIDERATION. 


What was presented was the same as last year.  Chairman Hawkins made the motion to approve the Resolution Setting The Bond Amounts for the Tax Collector and the Deputy Tax Collector, as presented.  All voted in favor and the motion carried.


            (d)        ORDER OF COLLECTION.      An Order of Collection must be adopted at today’s meeting , which will charge the Tax Collector with the collection of FY 2004 taxes, plus all outstanding delinquent taxes.  IT WILL BE NECESSARY TO ADOPT THE ORDER OF COLLECTION INCLUDED IN THE AGENDA PACKET FOR TODAY’S MEETING.  A PROPOSED RESOLUTION ADOPTING THE ORDER OF COLLECTION WAS INCLUDED FOR THE BOARD’S CONSIDERATION. 


Ms. Beeker reminded the Board that the order was the same as last year. 


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


The Insolvents’ List is quite lengthy and is in a separate book, not in the minute book.


Commissioner Moyer complimented Terry and his staff on the percentage rate, stating it was very nice to see that improvement.



Hall Waddell, Chairman of the Environmental Advisory Committee had presented their 2004 Annual Report in written form and was present to answer questions from the Board.


Mr. Waddell stressed the following issues that the Committee had taken action on:

1)     Sedimentation and Erosion Control

The committee had put together a letter explaining each person’s responsibilities as it relates to building or disturbing any amount of land.  This letter, together with a pamphlet from NCDENR, will be handed out with each building permit by the Inspections Department.  Their goal is to be sure that everyone knows they are responsible for the erosion and sedimentation they create, regardless of how much land they disturb.  They are also placing the N.C. Erosion and Sedimentation Control Field Manuel at the Inspections Department and Library for individuals to use.

2)     VWIN Report

When Marilyn Westphal addressed the EAC, she indicated that the greatest problem with streams in Henderson County is sedimentation.  The VWIN report we reviewed showed a large difference in TSS (total suspended solids) on the French Broad between Butler Bridge Road in Henderson County and Corcoran Park in Buncombe County, even though they are only several miles apart.  Bill Hiatt, a member of the committee, took it upon himself to take samples at each of these sites on the same day, at the same time for four weeks in a row to figure out if we could find a difference.  Bill had Marilyn Westphal at (EQI) to test as she had for VWIN.  It is hard to draw a complete conclusion from just this limited data.  It seems that in times of no rain, both samples are the same.  However, in times of heavy rain, Butler Bridge Road has somewhat higher TSS (total suspended solids) values.  The reason for this discrepancy is not obvious.

3)    The committee passed a motion on a 4-3 vote to ask the Commissioners to seek a delay in the

county doing the new OBD (on board diagnostic) emission testing.  This is scheduled to start in Henderson County in 2005.  The request is to delay the testing until 2009, when monitoring of the TVA clean-up can be accomplished.  Reasons to ask for such a delay are:

a. The new emission tests are only required for newer vehicles, which cause very little pollution.

      b. Air quality has improved over the last few years, even with increased population.

      c. Several large industrial sites have shut down in Western North Carolina.

d. T.V.A. will spend $1.5 billion dollars installing scrubbers on their high sulfur coal burning power plants in Kentucky, Tennessee, and Alabama.  This will remove 200,000 tons of pollutants from our air.

      e. The clean smoke stack bill is in force.

      f. New formulated diesel fuel is planned for 2005.

      g. Federal gasoline standards are steadily improving.

      h. Federal regulations are requiring auto makers to improve emissions every year. 

            4)    The committee, as requested by the commissioners, is reviewing action steps in the Early           Action Compact to see what the committee can do to implement them for the county.


Mr. Waddell thanked everyone for their support and hard work over the past year. He specifically thanked their very capable support staff, Deputy Clerk to the Board of Commissioner Amy Brantley, for working very hard to help the committee reach their goals. 



Justin Hembree informed the Board that the County has been awarded $594,071 through the National Park Service’s Save America’s Treasures Program ($199,000 for Fiscal Year 2003 and $395,071 for Fiscal Year 2004). Staff had reviewed the funding agreement and noted several conditions of the agreement they wanted to bring to the Board’s attention.  The conditions were presented and discussed:


            Condition #5:   Requires detailed progress reports concerning the rehabilitation project to be submitted every six months throughout the grant period.  This is a standard requirement of most federal grant programs.


            Condition #15: Requires that the National Park Service concur with the selection of consultants (architects and engineers) in order to ensure that these professionals have adequate knowledge and experience with historic preservation.


            Condition #16: Requires that the National Park Service review all plans and specifications of the rehabilitation project. It is unclear if this requirement applies to portions of the project that are not paid for by federal funds.


            Condition #18: Requires that all work be performed in conformance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties.  Again, it is not clear if this requirement applies to portions of the project that are not paid for by federal funds.


            Condition #17: Requires that, in compliance with Section 106 of the National Historic Preservation Act, the State Historic Preservation Officer review and concur that the proposed grant-assisted work will not have an adverse effect upon the property.


            Condition #20: Requires the execution of a preservation easement with the State Historic Preservation Officer.  Mr. Hembree stated that staff is working to determine what this requirement will entail.


            Condition #22 (d):   Indicates that the grant will be null and void should the demolition of the jail take place.  It has been determined that the demolition of the jail would have adverse impact on the property.  A letter from the Division of Historical Resources and an e-mail from John Horton concerning this issue was included in the packet.  As indicated by some of these conditions, there remain many unanswered questions as to what impact this agreement will have on the overall Historic Courthouse project. 


Mr. Hembree informed the Board that staff are working to answer some of these questions that

have been raised, especially concerning the demolition of the jail.


The final attachment indicated that these federal funds reserved for the County will revert back to the

Treasury if the executed agreement is not received in Washington by September 1, 2004.


Mr. Hembree reminded the Board that a timeline is looming.  We have received notice from the National

Parks Service that in order for these funds to be reserved and for us to keep them from reverting back to the

Treasury, we would need to execute the grant agreement and get them copies of it prior to September 1st.


Staff recommended that the Board approve the grant agreement and corresponding forms under the condition

that no funds be spent until answers to all outstanding issues (jail, design, allowable scope of work) are

received and presented to the Board for their concurrence.


Following much discussion, Chairman Hawkins made the motion to approve staff’s recommendation as

presented.  All voted in favor and the motion carried. 



Mr. Nicholson reminded the Board that during the August 2nd meeting, it was requested that the TAC provide the Board of Commissioners with specific design recommendations for the Upward Road project.  The TAC held a special meeting on August 12th in order to discuss this issue and develop a recommendation to be presented to the Board of Commissioners.  The TAC voted 11 in favor, 1 opposed and 1 abstention to make the following recommendations:


  1. While a 4-lane divided highway would be preferred, the current design does not meet the needs of the citizens and businesses along the road.  Unless NCDOT can develop a plan that addresses issues such as property access, left turns, and improved safety for the I-26 interchange, Upward Road should be developed as a 5-lane highway from US 176 to Ballenger Road with appropriate landscaping.


  1. Traffic lights and/or a separate access road should be provided to allow for frequent left turns at both Commercial Boulevard and McMurray Road.


  1. Traffic lights should be considered at Crest Road and Ballenger Road to assist with school and truck traffic.


  1. The intersection of Upward Road Extension and Upward Road at East Henderson High School should be changed to one-way, allowing only right turns from Upward Road.


  1. Leave the project as proposed by NCDOT from Ballenger Road to the end of the project area.


Staff provided its recommendations to the Transportation Advisory Committee at their meeting.  A copy of the County Manager’s memo had been included for the Board’s information.  The Committee basically approved the staff proposal with a few minor changes that the Committee members suggested and the staff supports.  Staff recommended that the Board review these recommendations and then forward them to NCDOT for consideration.


Mr. Nicholson had asked Jack Lynch, Chair of the Transportation Advisory Committee, to come forward and join him and to help answer any questions from the Board.  Mr. Lynch stated that a lot had happened since that last meeting – Chairman Hawkins had written a letter to Lyndo Tippitt requesting a face to face meeting between the Commissioners and DOT, that has been accepted, it is up to us to come up with a meeting date to meet with NCDOT to resolve the issues.  There is a meeting scheduled in Raleigh for tomorrow.


Following much discussion, Chairman Hawkins made the motion to forward this 5 point recommendation  to NCDOT  prior to their meeting tomorrow.  A vote was taken which passed three to one with Commissioner Moyer voting nay. Commissioner Moyer did not agree with recommendation #1.



At the August 2 meeting the Board asked the County Engineer to take a look at scaling back the 1994 Plan to make it more in concert with the Comprehensive Land Use Plan the Board just adopted and some work that the Water and Sewer Advisory Committee is currently doing.  At that meeting, the Board requested that the County Engineer add the Urban Services District as described within the County Comprehensive Plan to the map presented by the Committee. 


Gary Tweed presented the updated map.  He showed the Board information that is currently in the CCP via map and how to incorporate that into the map of the Water and Sewer Master Plan. They have another meeting scheduled for the Advisory Group in about a month.  Mr. Tweed hopes by that time to have had further discussion with our towns and their staff and get more of their input so we can finalize an interceptor sewer plan and water transmission plan and be able to present a final draft to the Board of Commissioners.


Following some discussion, Commissioner Moyer made the motion to send this to the Advisory Committee for our County’s input in preparing the next draft of the Master Plan.  All voted in favor and the motion carried.



Ms. Brantley had sent a memo to the Board, asking the Board to consider a couple of dates for the Annual Volunteer Appreciation Banquet.  Two dates were proposed, Tuesday, October 12 and Tuesday, October 19.  The Board members reviewed their calendars and came to a consensus on Tuesday, October 12 for the Banquet.


A letter had been received from the Chamber of Commerce about a site tour that had been scheduled for Friday, August 27.  There were some conflicts mentioned.  Chairman Hawkins will respond back to the Chamber that the Board of Commissioners is not quite ready to do a tour at this time.


The Board needed to consider dates for the NCDOT meeting discussed earlier in the meeting.  The Board suggested Wednesday, September 8th or Thursday, September 9th in the evening.  They asked Mr. Lynch to work with NCDOT to coordinate that meeting.


Chairman Hawkins reminded the Board of the need to schedule a Joint School Facilities Meeting.  He suggested some time the last couple weeks in September.  Mr. Nicholson will work with the Board of Education to set that joint meeting.



  1. Shirley Hamilton  - Ms. Hamilton stated that she lives in the Upward Community. She spoke on behalf of a group of people in the neighborhood that are concerned about the traffic lights being removed from Upward Road.


  1. Richard Alman – Mr. Alman stated that he lives at 126 Mockingbird Drive, in the Staton Woods Subdivision off the Greenville Highway.  He spoke about the new rules regarding burning permits concerning the new ozone requirement.  He has found that only three fire departments issue burning permits as well as some sporting goods stores.  Mr. Alman suggested listing the phone in the Sheriff’s Department that is listed for public service announcements  (#697-4920) and use it to issue burning permits. He feels it should be able to be handled over the phone and the phone should be available 24 hours a day.  Currently people have to go somewhere and physically sign and pick up a permit.



Chairman Hawkins made the motion for the Board to go into closed session as allowed pursuant to NCGS 143-318.11 for the following reasons:


1.         (a)(1)    To prevent disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes as allowed by and pursuant to NCGS 131E-97.3.


2.         (a)(3)    To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged.  To consult with an attorney employed or retained by the public body in order to consider and give instructions to the attorney with respect to a claim.


All voted in favor and the motion carried.


QUASI_JUDICIAL PUBLIC HEARING Special Use Permit Application # SU-02-01 (Revised) and Related Variance Application to Expand Hooper's Creek Quarry

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


Chairman Hawkins – “Ladies and gentlemen, we are here today to continue the quasi-judicial proceedings on the following application:  Special Use Permit Application #SU-02-01 (revised) and Related Variance Application to expand Hooper’s Creek Quarry.  The hearing was originally convened on January 15th of 2003 and was reopened on March 3rd, 2003, at which time it was continued pending receiving information from the State concerning their State mining permit.  I want to remind everyone that the proceeding will be conducted under the Henderson County Board of Commissioners Rules of Procedure for Quasi-judicial Proceedings.  Unless otherwise decided by the Board, only persons previously made a party will be allowed to participate as a party in today’s continuation of the hearing.  Those persons included Karen Smith, the Planning Director, Mr. Grimes, Applicant, William G. Lapsley, agent for the Applicant, and Richard Anderson.


Unless otherwise decided by the Board, the scope of today’s hearing will be limited to:


1)     changes to the proposed site plan resulting from the State’s review; and

2)     the variance application concerning the fencing of the expansion area.


Before we begin, I want to point out for the record that one of our Board members is absent, Mr. Baldwin and I believe that it would be appropriate to ask the applicant if he wishes to proceed with the Board of four or whether he wishes the hearing to be continued until all Board members are present.”


Bill Lapsley – “Mr. Chairman, for the record my name is William Lapsley, representing Mr. Grimes.  It’s our understanding that a vote by the Commissioners to approve or disapprove is a majority vote, it’s not unanimous required?  That’s my understanding.  On that basis, we have no problem and would ask to proceed.”


Chairman Hawkins – “Proceed, OK thank you.  Uh, OK, I would also like to ask the Board members whether they have received any information concerning the application since March 3rd and if so, what information has been received so that the information can become part of the record for today.  Board members, I pose that question to you. Any additional information?”


Commissioner Messer – “I’ve, I received some comment in my business but as far as information, none.  I mean you know public comment, just hearsay.”


Chairman Hawkins – “OK”


Attorney Beeker – “Mr. Chairman, I have a letter from the Town of Fletcher that was written to the Board, um, that I would just for the record like to circulate.  I would remind you that that is hearsay, but  just so that it be entered into the record.”


Commissioner Moyer – “Does the applicant need to be?”


Attorney Beeker – “Get a copy.”


Commissioner Moyer – “He does have a copy or”


Attorney Beeker – “He needs a copy as well, thank you. Yes, he does. And the other parties can have a copy too.”


David Nicholson – “Karen’s got – I’ll let you guys distribute them out, OK?”


Distribution of the letter from the Town of Fletcher.


Chairman Hawkins – “Did everybody get a copy that needed that?  And Ms. Corn you got a copy for the record, did you?”


Ms. Corn – “Yes sir”


Chairman Hawkins – “OK.  OK, all persons who speak and participate, including any witnesses that will be called, will be placed under oath if they have not already taken one previously.  I want to remind everyone placed under oath previously that they are still under oath.  The Board will ask the staff for a brief overview and will then ask the applicant or the applicant’s attorney what evidence the applicant wishes to present regarding the limited issues before us today.  After the applicant is finished, staff and Mr. Anderson will be allowed to proceed with their evidence.  All parties will be given an opportunity to ask questions of all witnesses testifying in the proceedings.  The Board will be given an opportunity to ask questions also.  After the evidence is presented the Board will discuss the issues raised and will make a decision.  The Board’s decision must be made in writing within 45 days of the hearing. 


As I stated, the Board acknowledges the applicant, Mr. Grimes, his agent Mr. Lapsley, and Planning Director Karen Smith and Richard Anderson as parties.  At this time I’d like to request all parties to the proceedings not previously sworn and all witnesses that they intend to call, to come forward to be sworn.  And if you would list your name and address to the Clerk.   Are there any witnesses to be called?  Yes, yes Mam, would you please come forward and give the Clerk your name, address, and be sworn.”


Gloria Anderson – “OK, my names is Gloria Anderson, my address is 339 Racquet Club Road, Asheville, 28803.”


Chairman Hawkins – “If you’d just step over here and we’ll have you sworn.  And your name, sir.”


Richard Anderson – “I’m Richard Anderson.”


Chairman Hawkins – “OK, you’ve previously been sworn? So we only need to swear in Ms. Anderson.”


Ms. Corn – “If you would place your left hand on the Bible and raise your right hand.  Do you swear or affirm that the testimony you shall give to the Board of Commissioners shall be the truth, the whole truth, and nothing but the truth, so help you God?”


Gloria Anderson – “I do.”


People were talking during the oath but I could not make out what.


Chairman Hawkins – “Just a moment please.  And what was your question?”


Richard Anderson – “As Gloria is my witness and she’s really far much farther up on this than I am, can I have any questions or anything directed, can she act as my, I guess it would be proxy? That kind of thing.”


Chairman Hawkins – “Um, I think that just as a witness that you’ll be able to call  her for any information that she has.”


Richard Anderson – “And will she be able to handle the rebuttals and stuff instead of me getting involved?”


Chairman Hawkins – “No, that’s not a function of a witness.”


Richard Anderson – “OK, alright.”


Chairman Hawkins – “Is that correct, Ms. Beeker?”


Richard Anderson – “I just thought it would be easier.”


Chairman Hawkins – “I mean we’re able to”


Attorney Beeker – “Normally, normally yes sir that is exactly correct.  Are you, is she co-owner of the property as well?”


Richard Anderson – “Yes.  I know it would go a lot smoother because she’s far more up on it.  She’ll just have to ask me question and then I’d have to reiterate it.”


Chairman Hawkins – “I think really what your question is, is does the Board want to make Ms. Anderson a party to the hearing.”


Attorney Beeker – “A party, right. And the Board hasn’t opened it up, you know, to allow any other persons to be party.  This piece of property is represented by a party.  I guess I’d ask the Board what your pleasure is. I think I could um defend it either way.”


Commissioner Young – “Does she own part”


Attorney Beeker – “She owns part of the property”


Commissioner Young – “part of the property?”


Attorney Beeker – “Yes, she does.”


Commissioner Young – “Then I would think she would have to be a”


Attorney Beeker – “But there are other property owners who would like to be a party that can’t be because they didn’t participate originally and so, um”


Commissioner Moyer – “And I think that’s the real problem. We’ve told people we’re not gonna open this up again.”


Attorney Beeker – “Right.”


Chairman Hawkins – “I think that uh, it would be my preference just to proceed with Ms. Anderson as a witness and go through whatever information we need to get”  --- several people talking.


Attorney Beeker – “I think that’s the safest course.”


Richard Anderson – “It would just be easier.”


Chairman Hawkins – “OK, thank you Mr. Anderson.”


Richard Anderson – “Thank you.”


Chairman Hawkins – “Uh again I want to remind everyone that the evidence that the Board receives today must be limited to evidence regarding:


1.                The changes to the proposed site plan resulting from the State’s review, so that’s one area

we’ll be looking at, and

2.                Is the variance application concerning the fencing of the expansion area.  So those would be the two issues that remained open, really from our previous meetings.


At this time I’d ask for staff’s overview, Ms. Smith.”


Karen Smith – “Mr. Chairman, can you give us a moment?  We always have information to hand out and we’re gonna give the parties the same packet that you have in advance and also we have the information regarding the site plan and the State Mining Permit so it’s gonna”


Chairman Hawkins – “We may need a minute to read it, as a matter of fact.”


Commissioner Moyer – “A minute”    Several people laughing.


Commissioner Moyer – “There’s a lot of diagrams.”


Chairman Hawkins – “Make that about ten (minutes).  Before you start on your overview, Karen, let us take just a few minutes to look this over and give you a chance to look it over if you’ve not already seen it.”


Folks were reviewing the distributed information.


Chairman Hawkins – “Mr. Lapsley, I hope you can explain the ground vibration monitoring system with uh we may have a question on that.  Has everybody had a chance to look through those?  OK, Ms. Smith, if you’ll continue with your overview.”


Karen Smith – “I just wanted to confirm with the Board that uh – are you comfortable with all the facts about the location of the property and that sort of thing?  Do I need to go back over any of that or any of the history that or evidence that you’ve had before?”


Chairman Hawkins – “I think not but – not from our prospective.”


Attorney Beeker – “I would appreciate you just entering into the record the notice that has been given.”


Karen Smith – “OK, I will do that.  I will also enter into the record the packet that you had in advance – the Board Action Form dated August 18th with the attachments and also the packet that I just gave you with the new information dated also the 18th.  For the record let me go over what the notice procedure was.  During the time that had gone on with this and because the previous hearing was continued without a date specific, we did readvertise this hearing in accordance with the Henderson County Zoning Ordinance and the Board of Commissioners’ Rules of Procedure for Quasi-Judicial Proceedings.  Specifically on July 27 the Planning Department sent notices of the hearing via certified mail to the applicant and to the owners of property adjacent to the quarry.  On that same day staff posted hearing notices on the subject property.  Staff also had notices of the hearing published in the Times-News as legal advertisements on July 30th and August 6th 2004 and as a display advertisement, and that’s for the variance, on August 13th 2004.  We also did send a courtesy notice to the Town of Fletcher due to the entrance road crossing its extraterritorial jurisdiction.  To bring you up to date and I believe Mr. Lapsley and or Mr. Grimes will probably be able to do this a little more fully, the State of North Carolina issued approval of modifications to the applicants mining permit, State Mining Permit, on March 29th 2004 and that’s attached to the packet I gave you.  The permit expires on July 6th.  That permit in addition to reflecting an increase or I should say it reflects an increase in affected acreage due to land disturbance that is proposed for some work that’s going to be done on the entrance road as you approach the quarry itself and also the relocation and redesign of the wastefill site and erosion control sediment basin.  The state permit indicates that the permitted acreage for the property has changed, originally the permitted acreage for the property was really only that area that was being actively quarried plus some of these ancillary uses.  At this time they have included the entire property boundary, the full 32.53 acres into what is considered the permitted acreage.  That doesn’t mean that the applicant from what I understand can expand within that 32 acres without getting state approval.  It is my understanding that it relieves them of a notice requirement when they do apply for modifications to their state permit.  The affected area, that’s the area that the state permit covers as far as the area that’s to be disturbed, things that are done to the erosion control process, the quarry itself, and that sort of thing has been modified.  The 1.07 acres which came up in one of the prior hearings is still the acreage that they are proposing to affect as far as this special use permit application is concerned.  There is a discrepancy that I wanted to point out and Mr. Lapsley probably needs to confirm this for the record – on the attachments 3 & 4 of the material I gave you today, attachment 3 is the uh a revised site plan and it shows the full property with the proposed wastefill site expansion area in roughly the center of that map.  It’s the area that’s got the lines around it and the basin in the center.  That area shows the proposed expansion as 0.72 acres, that’s the original number that the Board heard about when you first opened the hearing.  On the next page, which is sort of a blow-up of that sediment basin and wastefill site, that’s the soil erosion and sedimentation control plan.  It shows the acreage for that expansion as being 1.07 acres and the applicant confirmed to the Planning Board and to staff previously that the expansion area is 1.07 acres.  The design that you see on the site plan and the erosion control plan is modified from what the Board reviewed previously.  One of the elements that I do want to point out to the Board that has changed in addition to the design is the distance between the wastefill site and sediment basin and a property boundary and I’m gonna put a large map up.  Originally on plans that the Board saw previously there was a distance of approximately 180 feet or a 180 foot buffer that was going to be provided between that wastefill site and what would be the eastern boundary of the property.  The new plan indicates part of that is still 180 feet but scaling another portion of that wastefill site appears to be approx. 140 feet and so that – that is another change that – that affects this.”


Chairman Hawkins – “Karen, while you’re there, what looks like just a plume coming off that in the shaded area – what – it says the proposed outlet structure?  Is that run – looks like a – like an exclamation, right where your – to your right a little and down, yeh, yeh what is that? Is that the – I mean it looks like it goes”


Karen Smith – “It looks like rip rap to me but I probably should let the applicant explain that.”


Chairman Hawkins – “OK, I’ll ask Mr. Lapsley that.  I thought maybe you.”


Karen Smith – “I think it’s part of the erosion control devices.  Uh there was – if you’ve had a chance to look at the materials, the original letter that accompanied the new state mining permit stated some different numbers for what was the permitted acreage in the affected area.  The state had apparently made an error in the original permit back in ’94.  The two shaded areas that you see to the north ( Ms. Smith showed on the map) have been part of the quarry area or intended to be part of the original permit.  They are not part of this application for the special use permit and they were not, after all, included in the expansion or modification that the state included and there’s a letter attached at the back of the mining permit from the State that clarifies that issue, OK?  So with the correction, the modified mining permit from the State would indicate that the permitted acreage of the site is 34.52 acres and the amount of area the applicant an disturb is 7.47 acres.  The 1.07 acres is included in that 7.47 acres. I do have comments that were from the County Planning Board and the results of their meeting which I’ll present more as evidence later on in the hearing.  Does the Board have any questions about any of the material that I have handed out?”


Chairman Hawkins – “Any questions?  Thank you, Karen.  Mr. Lapsley you going to present your evidence now?”


Bill Lapsley – “Mr. Chairman, members of the Commission, for the record my name’s William Lapsley.  I am consulting engineer agent for the applicant, Mr. Grimes, who is with me here today.  Uh Ms. Smith has, I think, pointed out the – the changes.  I concur with her comments about the 1.07 acres.  That still remains the same and I’d just like to summarize by saying since we last met in March ’03, it has been a lengthy process but perhaps we’re near the end and I appreciate the opportunity to come back before you.  In April ’03 the State of North Carolina made an inspection of this site.  Mr. Grimes and I were present.  We walked the property, reviewed the application in more detail and subsequent to that the State asked for some additional information from us which we provided.  Uh the – on the first occasion – uh the State came back and asked for some additional information in October of ’03, we responded at the end of October of ’03.  The State came back in December of ’03 and asked for additional information, we responded in January of ’04.  The State came back to us in March of ’04 and asked for additional information which we responded uh and in the end of March the State issued a permit.  When we received the permit I found an error in the permit.  It implied that the applicant was going to expand the quarry area.  That’s the area that – that the stone is actually removed from.  That was not correct.  He has never asked for approval to do that.  He is working within the area that was permitted 1994 or ’95, back in that period.  Uh I passed that back to the State, they agreed that they had mis-stated things on the permit so they issued a revised permit in May and since that time we have gone back to the Planning Board uh presented the latest information – the State Permit – to them, which brings us here today.  Uh again to summarize this entire process.  It started from a request to relocate an erosion control sediment basin.  That’s what we have been discussing since October of ’02.  We uh – that continues to be the case and we asked for approval from the Commissioners to approve this plan that the State has approved which we believe provides a better sediment control situation than exists out there today uh and the issue as Ms. Smith has reiterated is the variance about the fencing around that basin.  Uh we have estimated and I believe, I haven’t gone back and read the minutes, but I believe we discussed this at the last meeting with the Commissioners in March of ’03.  It’s about 2600 feet around the, I’ll call it the disturbed area, the quarry and the sediment basin, it’s about 2600 feet.  Mr. Grimes has, as I understand it, I have not walked every foot of it but I have seen that around the edge he has five strands of barbed wire, he has signs indicating that there’s a high wall, that there’s a dangerous situation there.  Now it has been that way, the best of my knowledge, for a number of years.  Mr. Grimes has not had any incidence of anyone falling in there or entering that area.  It’s clearly marked and so the issue in his mind is – is there a need to put another fence there, chain link or some other fence in addition to the one that he already has uh and he – he does not feel that that’s necessary. If he was to put that in the best estimate we have at the moment is probably in the neighborhood of $50,000 to clear the trees and install a six foot high fence around the entire area so that’s the only information that I would have to share with you.  I’ll be glad to answer any questions and provide additional information if you feel it’s necessary.”


Chairman Hawkins – “Bill, you?”

Commissioner Moyer – “I just need some clarification.  Did you say that there’s five strands of barbed wire around the entire?”


Bill Lapsley – “Around the high wall area, the area where the quarry is and on the map here that’s – (at map) this is the quarry area. Where the stone’s being removed and this would be what we call the high wall area so this is the area that he tells me he has his fence.”


Commissioner Moyer – “Does that include the section that – there were several people that raised questions about that were not protected, or at least in their opinion were”


Bill Lapsley – “I think in all and I guess some folks feel like that’s not adequate protection.  If in the lower area here there is no fence where the quarry daylights into the existing ground but in the high wall area here along this back side that’s where the most danger exists, at least in my mind, from someone going in.  Uh it’s posted all the way around the property to stay out but that’s the area where the fence is.”


Commissioner Moyer – “And that barbed wire fence is in satisfactory condition?”


Bill Lapsley – “Since our last meeting I have asked Mr. Grimes that and he has checked it and tells me that it’s in good shape.”


Chairman Hawkins – “Any, any other questions?  OK, thank you.  Ms. Smith, we’ll take your evidence now.”


Attorney Beeker – “Actually, ask if anyone has questions.”


Karen Smith – “Can I just clarify, is it $50,000 for the 2600 feet?”


Bill Lapsley – “That’s my best estimate.  If uh – it’s 2600 feet the best I can scale all the way around.”


Karen Smith – “Oh, OK.”


Bill Lapsley – “as I assume that’s what the Commissioners are looking at.  As we understand the ordinance, there’d be a requirement uh to fence just the area that was expanded or the 1.07 acres and – and based on my scale if we were to fence the entire area, that’s about 2600 feet and it’s around $50,000 to clear the trees and install what I would call a standard chain-link fence with barbed wire at the top of it.”


Karen Smith – “Would you have to obtain approval of a modification to your state permit if you had to clear trees?”


Bill Lapsley – “Uh, I don’t, I don’t think so.  Uh I think we would certainly notify the state but I quess my reaction would be that would be an enhancement and I would not anticipate a major change to the permit.  They would just tell us whether they had an objection to it or not.”


Karen Smith – “And, just for the record, could you repeat to the Board of Commissioners what you told the Planning Board about the location of the sediment basin and whether that has to be there and within the 140 feet now of the boundary.”


Bill Lapsley – “Since our, since our last meeting with the Commissioners and going through this process with the State the issue to the State was the proper design of this sediment basin, the capacity of it and the orientation of it and that was the reason for all of the responses and revisions that we’ve gone through.  In that process the State requested that the basin be expanded.  They requested we change the dimensions, provide some additional spillway capacity and when we did all those things uh to meet the State requirement, it – it pushed the edge of the disturbed area for building that sediment basin out such that as Ms. Smith alluded to the buffer from this particular boundary on the east side went from 180 feet to 140 feet at its closest spot so you’re correct.  Ms. Smith is correct, if that – that buffer was reduced by about 40 feet on the one side, nothing as far as the buffer or change on the other side.”


Chairman Hawkins – “Thank you, answer all your questions?”


Commissioner Moyer – “Grady, I have one other question. Bill, before you – before you leave, on page nine of – of the permit, paragraph nine – there’s a high wall barrier paragraph.”


Bill Lapsley – “Yes sir, I’ve got it.”


Commissioner Moyer – “Is it your contention and your client’s contention that the five strand barbed wire fence satisfies this requirement?”


Bill Lapsley – “That’s what he has had there for a number of years and the State is aware of it and – and they have never voiced an objection or requested a change in his fencing.  So I – I can only assume uh that”


Commissioner Moyer – “So this is the same requirement you’ve had in the past?”


Bill Lapsley – “Yes sir.”


Someone asked something that I couldn’t make out on the tape.


Bill Lapsley – “I think that – Mr. Grimes has indicated that’s what the State originally told him to do back in ’95 to use the strands of barbed wire so that’s – that’s what he did.  And in our inspection in April uh last year uh the State walked that area and saw it and raised no request to change it or modify it.”


Bill Lapsley – “Thank you.”


Chairman Hawkins – “Does that answer your questions?”


Commissioner Moyer – “Yes”


Chairman Hawkins – “OK.  OK”


Commissioner Moyer – “Grady”


Attorney Beeker – “Uh – you probably were gonna do this but Mr. Anderson may have some questions for Mr. Lapsley as well.”


Chairman Hawkins – “Mr. Anderson, did you have any questions on the evidence that Mr. Lapsley presented?”


Richard Anderson – “Yeah, I had a couple of questions”

David Nicholson – “Please come to the mic.”


Chairman Hawkins – “Come on up to the mic.  Remember you’ll have an opportunity to rebut it but right now is just the questions on the evidence.”


Richard Anderson – “Uh – well let’s see.  The questions I had down here were concerning the stream in the quarry – has the Army Corp of Engineers looked at the site plan and do they need to or do they need a – a federal permit and is the – does the map show where the stream actually flows?  According to what I’ve got it – it appears that it’s flowing right through the middle of where their expansion is.”


Chairman Hawkins – “Uh, I don’t know.  Mr. Lapsley, could you answer the exact location of the stream and also if – if you know if there’s any requirements for the Army Corp of Engineers or approval from – I think you already had a Federal Mining Permit which I assume took care of whatever the federal requirements were.”


Bill Lapsley – “Yes sir.  The first question about the stream – the stream is located right here. The active stream and the drainage area out of the quarry comes down through here and – and there’s water at times in this area near where the sediment basin is – is uh located.  We uh – when the State folks came – land quality and water quality – Division of Water Quality came in April of ’03 and looked at the site uh – they were there and they did not indicate to me that there was a need to secure any kind of Army Corps of Engineer Permit.  Uh – to answer the question ‘Have we got a letter from the Army Corps of Engineers indicating that that – that that basin can or cannot be there’ – no certainly we don’t have that.”


Chairman Hawkins – “As far as you know, there’s no requirement to have that?”


Bill Lapsley – “Not at the location of the basin, no – not as far as I know, no sir.”


Chairman Hawkins – “OK.  Does that answer your question?”


Richard Anderson – “I believe so – the reason that came up was because there was something in the permit about a 50 foot buffer from the stream.  It didn’t appear to me that that was going to be within the requirements.”


Chairman Hawkins – “Were you looking at the stream out of the drainage area or the stream further up there?”


Richard Anderson – “Right through here is the fact that the expansion area would be – if I’m reading – if I’m reading it correctly – I thought that they had to be 50 feet off the stream?  From what the permit was reading.  They were talking about a buffer area.”


Chairman Hawkins – “Yeah I saw – I saw that.”


Richard Anderson – “That was”


Bill Lapsley – “Mr. Chairman, the only answer I could have is that this drawing is the one that was approved by the State and they’re aware of where that is and they permitted that ….”


Chairman Hawkins – “That is part of their permit?”

Bill Lapsley – “Yes sir.”


Chairman Hawkins – “Do you have any other uh questions?”


Richard Anderson – “Uh I have two other questions. Uh at the Planning Board meeting Mr. Lapsley (let’s see if I can find this) oh, in the Planning Board meeting in the transcript Mr. Lapsley says that the road does not have to be moved, that the State does – is not dictating that it must be moved.  Can it stay the way it is? And then I had another question about the uh – could the erosion control problem be taken care of without these modifications?”


Chairman Hawkins – “You know – I guess it’s a two part – one deals with uh – is it necessary to make this expansion and leave the road where it is and then the second one is there some other method of uh continuing your operation there without putting a sediment basin in, is that it?”


Richard Anderson – “Yes”


Chairman Hawkins – “OK, could you respond to that?”


Bill Lapsley – “Chairman uh in response to the first question – the road that Mr. Anderson’s talking about is this access road into the quarry site uh if you were to go up there today there is an existing road there.  It has some very high banks on the cut side of the road and there have been erosion problems with those banks.  Now the applicant has provided some erosion control measures there but it’s very difficult to control the run-off uh sediment with the high banks.  It was my recommendation to the applicant and to the State that he be allowed to regrade the road and – and contruct a flatter slope, if you will, on the cut side of the road so it could be seeded and – and we could better control the erosion there.  Uh so it – it’s my recommendation that he be allowed to do that.  The State has concurred.  To answer the question – can – can it be left alone?  Sure, it can be left alone uh.  What other measures could he do? – he could just continue to dip out, check dams, and other things.  Because of the steepness of the slope it’s my opinion that – that there will never be a vegetative cover on that exposed soil, it’s just too steep and uh the grass isn’t gonna stay there so it’s just gonna continue to be a problem.  So yes he could continue to operate without improving this road.”


Richard Anderson – “The reason I’d asked that question was I was trying to figure out how to keep the quarry as hidden as possible, not cut down more trees that are out there than are necessary.”


Chairman Hawkins – “Apparently wouldn’t be any trees on the bank anyway, would there?”


Richard Anderson – “No, where he’s gonna relo”


Chairman Hawkins – “Where he’s gonna relocate the road.”


Attorney Beeker – “Mr. Chairman, before they leave that – was that on the original plan?”


Bill Lapsley – “Yes”


Attorney Beeker – “To grade out the road”


Bill Lapsley – “Yes mam.”


Attorney Beeker – “So that’s already been”


Bill Lapsley – “That’s been there from day one.”


Attorney Beeker – “On the original plan, so that’s not a change that was necessitated by the State?”


Bill Lapsley – “No”


Attorney Beeker – “OK”


Richard Anderson – “And the third question was, could the erosion control problem be controlled in some other way without doing these modifications?  Is there some other way to handle this catch basin without doing the expansion?”


Chairman Hawkins – “Uh Mr. Lapsley”


Bill Lapsley – “I think the answer to the question would be uh to construct the same – the only way to avoid the expansion would be to construction this same sediment basin within the existing quarry area which would significantly effect the operation of the quarry, obviously it would limit the area that he’s – the applicant’s already determined…” – (can’t make out here what’s said)


Richard Anderson – “Yeah at the Planning Board meeting you had said something about they could haul stuff out and – without – without doing the expansion?”


Bill Lapsley – “The question as I recall from the Planning Board – what would happen to the applicant if the County Commissioners did not grant the request and this basin was not in fact constructed – what would the applicant do?  The applicant would then be – he currently has a sediment basin there that’s under existing permit.  That would stay uh and the applicant would then have to haul out uh more of the over-burden from the quarry operation to an off-site location so would it – would it uh put him – put the quarry out of business? No.  Would it uh dramatically affect the operation? Yes.  Of the existing sediment basin versus the proposed one, which is better?  My opinion – the new one provides much better protection from sediment to the stream than the existing one although the existing one is permitted uh he’s not been in violation uh – of his permit but this basin certainly is a lot larger and better than the one that’s there today.”


Chairman Hawkins – “OK, thank you”


Richard Anderson – “Then I had a witness also.”


Chairman Hawkins – “OK, we’ll – we’ll call those in a second.  Are we ready for the staff evidence now?”


Attorney Beeker – “Mr. Chairman, before we leave the applicant.  Mr. Grimes, have you been sworn?  I just – I just think for the record – Mr. Lapsley testified as to statements made by Mr. Grimes to him and just for the record if Mr. Grimes could be  sworn and come up and affirm all the statements so that they’re not technically hearsay for the record – would be good.”


Chairman Hawkins – “Do you want him sworn at this point then?”


Attorney Beeker – “Please”

Chairman Hawkins – “Mr. Grimes, would you – would you mind being sworn so that we can enter your information relayed by Mr. Lapsley as (laughing)”


Mr. Grimes was sworn in by the Clerk to the Board.


Chairman Hawkins – “Thank you.  If you have any evidence to present other than what Mr. Lapsley’s already given?”


Mr. Grimes – “Not really, excuse me.”


Attorney Beeker – “Do – do you agree and testify that everything that he said is the truth.”


Mr. Grimes – “Yes”


Attorney Beeker – “OK.”


Mr. Grimes – “The – the barbed wire fence, for example, was mandated by the State in the permit.  For what it’s worth the road change that we put in this thing that’s in – in this drawing is actually permitted in the original permit.  I mean I can go in there and do that tomorrow, you know if I wanted to.  We just put it in to this whole plan because we’re trying to improve the thing and I think that the land owners who are most affected by any sediment and the sediment is currently running out of the – more out of the road than it is out of the quarry itself.  That’s pretty much under control uh.  The land owners who are most affected anywhere downstream directly have recognized at this juncture, I believe, I’ve been told by them that they recognize that this is an improvement, that this will help them with – there’s a pond down at the very bottom of the road you know – adjacent to Hooper’s Creek Road itself and there has been some sedimentation problem from that earlier.  It was not from our property, it turned out to be from – somebody else was doing but.”


Chairman Hawkins – “OK, is there any other”


Attorney Beeker – “And just if anybody has any questions for him since”


Commissioner Moyer – “I believe the road is not a proper subject for this hearing”


Attorney Beeker – “That’s why I asked the question”


Chairman Hawkins – “No, it was already in there so uh – it was uh – we had considered that as part of the original permit.”


Attorney Beeker – “Right, the road”


Chairman Hawkins – “Or the variance”


Attorney Beeker – “Right, the road is not at issue.”


Commissioner Young – “Can I ask him a question about the fence?”


Attorney Beeker – “Sure”


Commissioner Young – “Back when we first had this hearing which has been taxing my memory – taxing my memory quite a bit uh but I remember that the fence was down in sections, that there was people that come up and testified that the fence was down in sections and it was in bad state of repairs and”


Mr. Grimes – “I think you know several misunderstanding – there was a line fence that was in existence when I bought the property and that was the fence that – that is in – not only in bad repair, it’s nonexistent in places but that is on the property boundary up at the top.  It’s an old cattle fence.  I reviewed all those notes this morning and uh that’s not the same fence that we’re talking.  The fence that the State mandates along the high walls is an entirely different thing and it’s in excellent condition.  It would stop cattle anyway.”


Chairman Hawkins – “OK.  Does that answer your question, Larry?”


Commissioner Young – “Yeah, I guess uh but you’re just talking about the fence around the high walls, not around the existing quarry, all around”


Mr. Grimes – “Well I’m talking about the fence around the high wall that is mandated by the State in the permit versus the property line fence.  I mean we never put a property line fence, uh there was one there probably built seventy years ago.”


Commissioner Young – “Do you feel comfortable that the fence is sufficient enough to stop children or animals from proceeding to the high walls and”


Mr. Grimes – “Well it – somebody would have to come down and get around on the inside of it and go up.  There is in fact no – no ingress to the property other than up through the existing road.  There has been testimony at some other point that there are all sorts of paths up there.  There are not.  Where they were we blocked them off.  You can’t take a four-wheeler, for example, in there without going across an existing fence and you’d have to come up our road.  I mean you know even a bicycle, as a matter of fact.  You’d have to come up that road.  A mountain biker is not gonna come in there from another direction.”


Commissioner Young – “And this permit is only – you’re not increasing or expanding the mining operations. This is only to expand the sediment or waste area, remember that from previous”


Mr. Grimes – “That is correct sir.  I mean we – and a point of fact – if you look.  This is not the correct map but – the existing high wall we were originally – our original permit allows us to go back about 100 feet – 150 feet further than we have.  We haven’t done it.  I mean I’m – so I mean that’s – really hasn’t changed very much in the time I’ve been operating this quarry.”


Commissioner Young – “And – and the best I can remember from the last hearing – what a year and a half ago or so that it was decided at that point the expanded waste area was better than trying to truck the waste out, that it would create less uh environmental concerns than having to truck the waste out.  Is that right?”


Mr. Grimes – “I think absolutely uh – there are an awful – I don’t know what number of truckloads of material would have to be hauled off-site but it would be a bunch.  This gives me some additional space to work on the floor, by doing – you know by what we’re doing.”


Commissioner Young – “Also it would create less traffic on the road going out”


Mr. Grimes – “Yes”

Commissioner Young – “If you had to truck all this waste out.”


Mr. Grimes – “That’s correct.”


Commissioner Young – “OK, thank you.”


Chairman Hawkins – “Thank you Mr. Grimes. I think now we’re ready for staff’s evidence unless anybody has any other questions. Mr. Anderson, you had a question?”


Richard Anderson – “I had one other minor question – uh – I believe Mr. Lapsley – there’s two half-acre uh sections that uh – that are on the mining – or on the expansion – I believe he said that they had already started construction on those and have they put fencing around to protect people ‘cause it’s really easy to walk onto the quarry …”  lots of static, I can’t make out what was said.


Chairman Hawkins – “Uh I didn’t hear him say that they’d started construction on it.”


Richard Anderson – “Well at an earlier time”


Bill Lapsley – “The question as I understand it – there’s two areas here … north basin quarry expansion half acre …… half acre.  Those are the two expansion areas that are permitted by the State, forgive me, 1994-1995. Uh and we noted those on the plans to make sure everyone knew that …… permit.  The fence that exists is a – is outside that area.  Uh where the high wall is and it goes around the upper end of it.  The work that’s going on in the quarry is within those two half acre areas uh Mr. Grimes has indicated to me that – that he’s gone and I think he just so stated this distance from the 1994 edge of the permit to the current edge of the quarry area is about 120-140 feet.  He’s gone about 30 feet into that over the last 10 years so there’s plenty of room for a long long time to work within those two shaded areas.  The high wall is just that, it’s very high – it’s probably 80 feet or something in that neighborhood up to the top.”


Chairman Hawkins – “OK.  Did that answer your question?”


Richard Anderson – “Yeah, I just wanted to make sure that they had – if they – they were putting fencing around it.”


Chairman Hawkins – “Alright, thank you.  OK Karen.”


Karen Smith – “The Planning Board did review this application uh back on July 20 and in preparation for that meeting staff had offered the Planning Board several comments and those included uh one regarding the – the change in the buffer on the eastern portion.  Mr. Lapsley has addressed whether or not that has to be – excuse me – has to be that way.  I just wanted to remind the Board that in dealing with the specific site standards for pre-existing uses in the open use, the site standards as they apply to expansion only apply to the extent possible.  That is the – the language of the ordinance uh the buffer in this case, of course, is a separation.  It’s not a visual buffer.  Uh staff had also asked that the applicant address the uh expiration of the state mining permit and I believe he has – has discussed that with you to some extent uh and whether or not he was going to apply for another permit in the future and he had indicated to the Planning Board that that was the case uh and when I get to the Planning Board’s recommendation, they did offer a condition as far as that’s concerned. And then uh in addition to previous suggested conditions that staff and the Planning Board have entered pre – in earlier segments of this hearing.  Uh I had asked that the Board of Commissioners consider uh a condition that if they grant the special use permit that any future alterations or expansions of the mining and extraction operation uh regardless of whether a modification to the state mining permit is required, that they obtain a special use permit as long as that is still part of our ordinance. 


I’m gonna have uh Autumn start handing out the Planning Board’s recommendation.  While she’s doing that uh I did want to note there has been uh – well the Board of Commissioners adopted the Comprehensive Plan since we started this process and one of the – one of the general standards for special use permits uh requires conformance with the Comprehensive Plan and so I just wanted to get some information into the record regarding the new plan.  Uh the property falls in the urban services area which uh if you’re not familiar with it I can pull the map out.  Uh that’s part of the county’s growth management strategy.  It designates the area where the quarry is located as conservation and conservation areas are those that should be targeted for protection through regulations and incentives uh however at this time in our zoning ordinance we don’t have a tool to do that just yet.  Another factor from the Comprehensive Plan that could effect the quarry in the future, uh is that the Comprehensive Plan asks that we look again at the open use district and perhaps consider replacing it with another district for areas that are in the urban services boundary and also there may be possible revisions to the actual text of the open use district if we maintain it.  The Comprehensive Plan suggests limiting the types of industrial and commercial uses allowed and limiting the density of residential development.  Those are very general uh points that address the relationship with the Comprehensive Plan.  I believe Autumn has handed out the Planning Board’s recommendation.  Let’s go through that for the record.  I want to go ahead and enter that into the record as well.


As I said, on July 20th the County Planning Board reviewed the revisions to the special use permit, application # SP-02-01, for the expansion – proposed expansion of Hooper’s Creek Quarry.  I have attached a copy of the minutes from that meeting.  They were approved last night by the Planning Board.  Uh I have given the Planning Board an over-view, much as you have received today and in the past and updated them on the status of the permit and the variance request as well as the applicant’s state mining permit and I had also, as I said, given them some staff comments. Mr. Lapsley addressed the Planning Board.  He did provide a chronology of different events related to this application and the state permit and he reviewed the site plan in details as you can read from the minutes.  Quite a number of property owners and residents of the area near the Hooper’s Creek Quarry attended the July 20th Planning Board meeting.  Five owners of property that adjoin the property or are located near the property addressed the Planning Board and expressed concerns about the special use permit, variance request, and the quarry in general.  They also answered questions.  The five speakers stressed that fencing was needed for safety purposes.  They also raised some general questions and issues regarding potential traffic problems, the appearance of the area, existing sedimentation problems, whether the improvements to the road could be postponed as Mr. Anderson has indicated until the applicant renewed it’s state mining permit in 2005 and the effectiveness of the earthen dam for the sediment basin, again those comments are in the set of minutes.  Excuse me.  The Planning Board, after considering the information that they had heard, voted on a recommendation to send the Board of Commissioners a favorable recommendation on the special use permit as revised with a recommended condition that the applicant provide documentation of renewal of the state mining permit at the permit intervals to the County Planning Board and my understanding is when that permit is – is issued and renewed at the state level. And the Planning Board also wanted to acknowledge the concerns of the area property owners.  They felt really strongly about this and wanted to make sure that in this report uh that I informed you that they had voted unanimously to  specifically notify and make the Board of Commissioners aware of the concerns the Planning Board heard during it’s meeting from neighboring property owners regarding fencing and safety issues.  The Planning Board does not or is not required to comment on variance requests and they did not do so back when this was first reviewed and they did not want to tell the Board what to do in this matter but they wanted to make sure you uh were aware of these concerns and they are stated in the minutes.


I’d be happy to answer any questions.”


Chairman Hawkins – “Anyone have any questions – Mr. Anderson or Mr. Lapsley for staff?  OK, thank you Karen.  Does the Board have any questions? OK, Mr. Anderson we’ll uh ask you then for your evidence or to call your witness, if that be the case.”


Richard Anderson – “OK at this time I’d like to call Gloria Anderson as my witness.”


Chairman Hawkins – “OK, Ms. Anderson.”


Gloria Anderson – “I’m Gloria Anderson and we own the fifteen acres in front of the quarry uh we’ve been there forever.  Uh I would – a couple – I would like for you to take note, if you can, make sure that you do read the Planning Board minutes from the property owners that came because they knew that they probably wouldn’t have an opportunity to speak today.  I had a couple I think that were trying to come but they didn’t make it.  Uh but please – please take note of their concerns about the fencing.  I have some information about the fencing.  Since it was a state permit, you know, that’s permitted this, I called Mr. Floyd Williams who is the state mining specialist, about the state regulations on fencing for this quarry.  And he looked at the original mining permit from July of 1995 which I had a copy of and we determined that the paragraph #9 that you spoke of concerning the high wall barrier would dictate the state standards in regard to the fencing.  OK, uh Mr. Grimes has said that that has been fenced and that the fence is there so uh.  He also said that the standards had changed on new permits since then that they were gonna be requiring more fencing and he did not know if these requirements would have to be met with the permit renewal in July of 2005 if the applicant goes for that.  He indicated that he would need to come up and see the quarry to make that decision. Also in the minimum standards in the uh – in the reclamation plan, if you read about the reclamation plan in the uh – in the original application one of the minimum standards, #2 is provisions for safety to persons and to adjoining property must be provided in all excavations in rock.  OK, well this – this is gonna be done whenever they give up the quarry or whenever they don’t do the permit so my thoughts were that if – if it needs to be done at the high wall and it’s gonna have to be done maybe at some point in time, we don’t know when, then why not go ahead and have the fencing done now?  Thank you.”


Chairman Hawkins – “We don’t cross-examine our witnesses, do we?”


Attoney Beeker – “Everyone gets a chance to ask her questions, yes sir.”


Chairman Hawkins – “OK.  Mr. Lapsley, Mr. Grimes do either of you have questions for Mr. Anderson. OK. Any of the Board have any questions? OK then we’ll look at any rebuttal evidence of the applicant, if any. Do we have any of those? OK. Are we ready for closing remarks?”


Attorney Beeker – “I  believe so.”


Chairman Hawkins – “OK.  The applicant, Mr. Lapsley, do you have any closing remarks you’d like to make?”


Bill Lapsley – “No sir, I think we’ve covered it all.”


Chairman Hawkins – “OK.  Staff, do you have any closing remarks to make?”


Karen Smith – “We don’t”

Chairman Hawkins – “Mr. Anderson, do you have any closing remarks?”


Richard Anderson – “Uh just that I – that I wish they could do this without the expansion.”


Chairman Hawkins – “Uh I guess the applicant doesn’t need any final closing remarks then, OK. Now that evidence has been presented and the closing remarks concluded, it would be appropriate for the Board to discuss the issues presented today.  We can either vote today and direct staff to bring back finding of fact and conclusions consistent with the decision – the Board’s decision and discussion, or we can continue our discussion and decision until a later date. I would remind the Board however that we must make a written decision within 45 days of the conclusion of the hearing so uh I don’t – are we ready to go out of public hearing then for deliberations?”


Attorney Beeker – “If the  Board doesn’t have any other evidence or questions they’d like to ask then it would be appropriate.”


Commissioner Moyer – “I have a question with respect to our role – and – in the fencing issue. If you want to address that before we go out of public hearing.”


Attorney Beeker – “I’d be happy to.  Uh do you have more of a question, do you want to restate it, or do you just”


Commissioner Moyer – “I want clarification with respect to what our role is on the fencing of the – issue- the area in issue and the entire quarry.”


Attorney Beeker – “OK.  Because this is a pre-existing use uh in my opinion that you don’t – you have no role with regard to fencing the entire quarry.  The whole, be that the perimeter or the active area.  The area at issue is the expansion area, the 1.07 acres and you do have a role there because the ordinance requires it unless the standards for a variance are there.”


Commissioner Moyer – “That answers the question, thank you.”


Chairman Hawkins – “OK Anything else before we go out of public hearing?


I move then that we go out of public hearing.  All those in favor of that motion say qye.”


In unison – “Aye”


Chairman Hawkins –  “OK, really we have uh two issues here – if you look through your material – staff had already drawn up a uh previous result of our deliberations on the special use permit.  I think one of the questions then that we need to ask before accepting that is if the additional information we’ve been given from the state permitting office in Raleigh changes your uh thoughts on the special use permit and I’d just put that out to the Board for discussion.”


Attorney Beeker – “And if I could uh point out also that just to remind the Board of what Ms. Smith told you and that is the specific site standards need only be met to the extent possible.  With regard to the buffer moving, cause that is a change, the buffer moved closer to the property line in certain areas, there is a general site standard out there that adequate provision has been made for buffers so that is a specific consideration that you need to make with regard to that change and I just wanted to point that out so I could get the discussion to put in the order regarding that point.”


Chairman Hawkins – “OK.  Any – any comments from the Board on that – on that particular aspect of the special use permit?”


Commissioner Moyer – “I’m comfortable we don’t have to make any change.”


Chairman Hawkins – “Charlie, is it”


Commissioner Messer – “I can live with that, yes.”


Chairman Hawkins – “OK.  Larry?”


Commissioner Young – “I’m fine with that.”


Chairman Hawkins – “OK then, we’ll uh – we’ll direct staff to come back with that as part of your special use permit findings.”


Attorney Beeker – “OK and then what about the condition uh regarding making the Planning Board aware of the renewal, when that occurs?”


Chairman Hawkins – “Oh that condition?”


Attorney Beeker – “Yes sir cause that’s still a part of the special use permit itself.”


Chairman Hawkins – “I – I don’t know why that would be a part of – of our special use permit in as much as when they went for uh additional uh permitting from the State, was what drove them into – to this with the Planning Board to begin with.”


Attorney Beeker – “I think it’s just a notification issue that they want to be made aware if the applicant – I guess they want a copy of the new permit.”


Chairman Hawkins – “Is – is that a State requirement or”


Bill Lapsley – “Mr. Chairman, under the permitting process, as I understand it, whenever there’s an expansion or modification to the existing permit the applicant is required to notify uh the County, the local jurisdiction.  Uh if it’s uh – just a renewal of an existing permit I’m not quite sure if a notification is required.  If the Commissioners would like to be not – so notified, that’s not a problem.  We’d certainly be glad to do that.”


Chairman Hawkins – “OK, thank you. Uh well one thing for sure, you know when the permit expires so – I mean you know – you’re gonna find out whether or not it’s been – I don’t know why the.  I really don’t know why the Planning Board would need to know that.”


Commissioner Moyer – “Well since the applicant has no problem and the Planning Board thinks it’s important, why don’t we just”


Chairman Hawkins – “Put that as a condition of the special use permit.  Then if you would include that in that order.  The other issue deals with fencing and uh and I think two – two parts of that really as Ms. Beeker has indicated as far as the Board’s ability to require retroactive fencing of the entire property is not really in the purvue of the Board on this hearing; however, the – the issue that the Board will need to deal with is whether or not to require fencing on the uh expanded area.  Uh and so I – I don’t know what the Board’s pleasure is on that uh – certainly we could require that if we went strictly by the – by the ordinance and I guess the question then that we have to really deal with is whether or not there is a significant safety factor in that area that is being expanded to require the owner to make those additional uh – those additional expenses or to grant a variance from it and I don’t know, Charlie, what’s your thoughts on that?”


Attorney Beeker – “Mr. Chairman, the requirements for a variance are in the application for the variance so that might serve as a useful guide for the Board to follow to answer those questions.”


Chairman Hawkins – “Which one of these stacks is that in?”


Commissioner Moyer – “Why don’t you go through that Mrs. Beeker for us.”


Attorney Beeker – “Well, I’m trying to find them myself. I’ll be happy to, OK.  The first one is that uh there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance and there are three considerations.  If he complies with the provisions of the ordinance the property owner can secure no reasonable return from or make no reasonable use of his property.  It is not sufficient that failure to grant the variance simply makes the property less valuable.  So, it’s the question of can he make a reasonable return without the variance of his property is the first one.”


Commissioner Moyer – “Grady, it’s in my position that the – he’s not met the standard for the variance.”


Chairman Hawkins – “On uh”


Commissioner Moyer – “Fencing”


Chairman Hawkins – “On either of the three?  I think you had to find all three of those.”


Attorney Beeker – “You would have to find – there are two others and that – that are under the practical difficulties and then there’s also the variance is in harmony with the general purpose and it secures the public safety and welfare and does substantial justice, if you grant the variance, so, those are your tests. You’re saying that you don’t think he meets the tests, period.”


Commissioner Moyer – “Right”


Chairman Hawkins – “For any of those.  I guess the other uh – although that area that this is gonna be located in is fairly in the flat area, it is close to the entrance of it and uh – so that – and I think that goes back to even what the applicant said about – about the only way you can access it is through – through that road there so uh that being the case that would perhaps add a little bit to that safety aspect of it.  I – just from my opinion – I don’t know.  Charlie, do you have any?”


Commissioner Messer – “Well if the uh – the State has issued the permits under the current fencing and so forth but you know something that I can live with is the up-coming day – you know within – sooner than what 10 months from now that all this is gonna have to be – I mean the uh … that it’s gonna have to go through and apply for all the other permits so I really don’t – you know do not have a problem with.  The main thing is that you know we definitely want to keep everybody safe in Henderson County, whether it be on the north end or south end or whatever and I think that the current fence is there for that reason.”


Chairman Hawkins – “Well, Larry, what are your thoughts on the variance for not having to put the fence up – to be put up or a variance?”


Commissioner Young – “Well uh you’re only talking about fencing a waste area that’s not got any danger to it really, I don’t think, has it?  So it – I think that would be up to the owner to decide whether that’s in his best interest to fence that area to keep people out or to keep people from taking property that belongs to him or whatever, you know.  If it presented a danger to the public, the high walls for instance, I really don’t think the State’s strict enough on – on that high wall fencing.  I think that ought to be a chain-link fence of some degree and height but – a barbed wire fence, I don’t think that’s sufficient but the State says it is so”


Chairman Hawkins – “So you’re in favor of granting a variance and Bill’s not and Charlie”


Commissioner Moyer – “Did Larry – I think that whether right or wrong of the situation, you’ve got to meet a legal test for granting the variance and to me – if you listen to the test that Mrs. Beeker said, it just doesn’t reach that.”


Chairman Hawkins – “That reasonable use of the”


Commissioner Moyer – “Yeah”


Chairman Hawkins – “Couldn’t – if he – if he had to do it.  Uh so – Charlie I left you”


Commissioner Messer – “Right, if it’s – if it’s OK with the State then I do not have a problem with it and so you know I would definitely give the variance – now like I say it’s coming up in – next July anyway so you know – and if the State changed the rules and regulations then you know it’s all gonna be changed anyway.”


Chairman Hawkins – “And we’re talking about the fence down in the expanded area”


Commissioner Messer – “Right”


Chairman Hawkins – “Not on the high spots”


Commissioner Messer – “Right”


Chairman Hawkins – “OK.  So my – I would – although I think there’s – I think you get to the complying to the extent practical on some of these issues and I would – I would see no reason to require a fence in that area cause I don’t see a whole lot of safety improvements on it and – I mean just – just in that one little small area. I think everybody’s got the concern about the high area and may well have to deal with that in re-permitting but that’s not the scope of the meeting today so uh – I think that would be uh a three to one to grant the variance.”


Attorney Beeker – “But before the Board takes that vote, I would be remiss of my duty as your legal council if I didn’t caution you regarding that – that vote.  It’s still your choice to – to make that vote of course but um, I have to be able to come up with the evidence to support the findings that – that need to be made and also um in a like situation if these same facts were to come up on another permit or a like situation um – I don’t know that it would be precedential value but it could be under the right set of facts and circumstances so I just feel like I need to caution you before you take your vote.”


Chairman Hawkins – “OK, let me ask you, was this in the old package that had that cause I’d like to go back and look specifically at those things you started to read. Where were you reading those from?”


Attorney Beeker – “OK, it is just into the agenda packet that you got today – uh it’s probably about one, two, three, four, five, eleven pages back.  The application states the test.  I’ll tell you there was some information – any evidence that was previously presented um is still OK to consider um and there was some information presented in previous meetings regarding the cost to fence just the expansion area that you may want to consider as well.”


Chairman Hawkins – “Are you talking about the memorandum from Karen?”


Attorney Beeker – “It’s attachment 4, this is the – what I was reading from is attachment 4.  The applicant”


Chairman Hawkins – “Original?”


Attorney Beeker – “Yes and he does offer explanation as to all of those tests so I just – if the Board feels that’s – that that is sufficient to meet the tests, that’s fine, that’s what I will include uh but”


Chairman Hawkins – “OK I think – start on attachment – wait a minute, attachment three – that’s the general requirements? OK – OK I’m back with you.  Uh there are practical difficulties or un-necessarily – unnecessary hardships in the way of carrying out the stricter letter of the ordinance. It complies with the provision  the owner can secure no reasonable return from or make no reasonable use of the property.”


Attorney Beeker – “Typically cost, just to let you know what the case law says, typically cost is not considered a hardship but that’s your – your call.”


Chairman Hawkins – “So the real - real stumbling block is the uh provisions of the ordinance that he cannot secure no reasonable return or make reasonable use of the property.  Do you have to – do you have to necessarily satisfy all three of these conditions?”


Attorney Beeker – “Yes sir, you have to satisfy all of them.”


Chairman Hawkins –  “Cause obviously the hardship is not a result – the hardship is a result of unique circumstances uh and it’s not a result of the applicant’s own actions. Well I think he certainly complies with two and three but uh – looks like the court’s got us backed into a corner on number one.  We didn’t get a cost – but we didn’t get a cost for just fencing that portion did we?”


Attorney Beeker – “It was in uh”


Chairman Hawkins – “It was $30,000 or thereabouts?”


Attorney Beeker – “I’ll see if I can find it real quick.”


Chairman Hawkins – “Karen, do you remember where that was or”


Karen Smith – “It’s”


Attorney Beeker – “It’s on January 15, I’m pretty sure”


Karen Smith – speaking but not at a mic – can’t make out what she’s saying.


Attorney Beeker – “Was I wrong Karen, was that in there?”


Karen Smith – “I thought it was in there.”


Chairman Hawkins – “I seen it – I seen it in here somewhere but I’ve got uh”


Commissioner Messer – “Can we ask him?  Can you ask?”


Commissioner Moyer – “The hearing’s closed.”


Chairman Hawkins – “Yeah but I think he already indicated the cost to fence the whole – the whole thing uh was $50,000 but I thought somewhere there was an indication of the uh – of the cost”


Bill Lapsley – “Mr Chairman, just off the top of my head, if it’s an acre, 200 x 200, it’s close to an acre so a square would be 800 feet and 800 versus 2,600 – you know that’s about a third so probably ten or twelve thousand dollars to – to do the acre.  If that would help?”


Chairman Hawkins – “Well, I don’t think that’s one of the things that we can consider for that anyways so - it would appear from where the court’s have put us on that one particular aspect, that I’d have to make a motion to deny the variance uh – just uh – although I don’t know that it really significantly adds to it but I think that’s about the only thing we can defend with the uh information that we have so I’ll put that motion on the floor then as part of it and call for a vote on it.  All those in favor of that motion, say qye”


In unison “Aye”.


Chairman Hawkins – “Opposed.”


None were opposed.


Chairman Hawkins – “OK, do we need a motion on the special use permit.  I think we’d already done that or do you”


Attorney Beeker – “You could make a motion to uh direct staff to draft an order or to amend the draft order that’s in there to uh account for the changes and approve it and include the conditions that we talked about today.”


Chairman Hawkins – “The notification?”


Attorney Beeker – “Yes sir.”


Chairman Hawkins – “OK”


Commissioner Moyer – “So moved, if you want a motion.”


Chairman Hawkins – “Alright.  All those in favor of that motion, say aye.”


In unison “Aye”


Chairman Hawkins – “So we’ll ask staff then to bring that back with the special use permit granted and the variance denied. Any other business for the Board?”


Chairman Hawkins adjourned the meeting.







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