STATE OF NORTH CAROLINA                                                   BOARD OF COMMISSIONERS

COUNTY OF HENDERSON                                                                                 OCTOBER 20, 2004


The Henderson County Board of Commissioners met for a special called meeting at 6:00 p.m. in the Commissioners' Conference Room of the Henderson County Office Building at 100 North King Street, Hendersonville, North Carolina.


Those present were: Chairman Grady Hawkins, Vice-Chairman Larry Young, Commissioner Bill Moyer, Commissioner Charlie Messer, County Manager David E. Nicholson, County Attorney Angela S. Beeker, Planning Director Karen C. Smith and Deputy Clerk to the Board Amy Brantley.


Absent was: Commissioner Shannon Baldwin who had previously been recused from the proceedings.



Chairman Hawkins called the meeting to order.


Chairman Hawkins – “When we uh, uh, when we uh, were last meeting we were looking at some uh, uh, a list of uh, items that the Planning Board had presented to uh, Mr. Campano and I think they’ve had an opportunity to uh, discuss those some. And I, and I think everybody else that was a party got a lo, a look at it. Is that correct Mrs. Beeker?”


Angela Beeker – “That’s correct.”

Chairman Hawkins – “The list of things. So uh, let’s just pick back up and uh, on discussion on that list of items  uh, and uh, uh, for the petitioner if you wanna uh, address that to the Board where uh, where ya’ll ended up on that we’ll proceed after that.”


Gaston Campano – “I’m not sure if you want me to go through each of the items but we did actually go through the list that uh, was put together uh, by the County and addressed each of the items in and put together uh, effectively a document that clarified uh, everything that was involved with the comments and gave effectively our uh, what we plan on doing with those items just so it was pretty clear what the intent is all the way through. And I’m happy to go one by one through them if you feel it’s necessary but they are all written down on a, a three page sheet.”


Chairman Hawkins – “Okay. Uh, do we, do we have that Mrs. Beeker?”


Angela Beeker – “Um, I placed it in your boxes, but I might need to go make some more copies.”


Chairman Hawkins – “Um, I’ve got something that looks that. Let me see if it’s.”


Commissioner Young – “Here we can share this.”


Chairman Hawkins – “Okay, it’s on the back of that?”


Angela Beeker – “It’s an attachment to the notice that went out.”


Chairman Hawkins – “Okay.”


Angela Beeker – “All the parties should have gotten a copy of that as well.”


Chairman Hawkins – “I, I think I have one uh.”


Angela Beeker – “I’ll be happy to make some more copies if I need to.”


Chairman Hawkins – “Uh, let me just see if I, I, mine’s here if I can just lay my hands on it.”


Gaston Campano – “Labeled uh, Fox Glen conditions on the top. There’s seventeen items and then there’s a chart, or table on the last page.”


Chairman Hawkins – “On the bottom of the, bottom of the stack. Okay, let me uh.”


Angela Beeker – “Do you have it?”


Commissioner Moyer – “Yeah, we got one. We have ‘em  here.”


Angela Beeker – “Okay.”


Commissioner Moyer – “Can we ask that the, image of that document be dated?”


Angela Beeker – “Sure.”


Chairman Hawkins – “Other than 8 October?”


Commissioner Moyer – “No uh.”


Chairman Hawkins – “…the uh.”


Commissioner Moyer – “That’s the date of her letter but that wouldn’t necessarily be the date of the uh.”


Chairman Hawkins – “Document.”


Commissioner Moyer – “Of the document. There’s so many.”


Angela Beeker – “Would you want to put.”


Gaston Campano – “Today’s date?”


Commissioner Young – “Today’s date?”


Gaston Campano – “We’d be happy with today’s date.”


Chairman Hawkins – “Okay, well I, I, don’t know that we uh, need to go through each and every one of these uh, at the moment. I’d just ask if uh, uh, if any of the um, other parties have questions on uh, uh, any of these uh, I guess there was 17, or three pages of uh, items that should have come in your uh, in you notification. I think we notified everybody that was a party to the proceedings. Karen, do, do you have some questions and comments on ‘em ?”


Karen Smith – “Yeah I just, um, Mr. Smith and I have tried to up over the past couple days and haven’t been able to. On #10 I just wanted to see if in the second sentence if they wanted to add it ‘Shall have no limits placed on the hours of operation by the County’. Didn’t know if you would intend to place your own hours of operation on um, people in the future.”


Gaston Campano – “Um, I’m sorry I don’t fully understand…”   


Karen Smith – “Okay. I meant, okay. This says that any facility used by the residents or the guests shall have no limits placed on hours of operation. I was gonna see if…”

Gaston Campano – “…I think that’s fine.”


Karen Smith – “Okay.”


Gaston Campano – “That’s fine.”


Karen Smith – “Or by Henderson County. Okay. Um, the only other thing was I, for some, I thought we had talked about, and maybe it was our meeting, about access to lots at, from Howard Gap and Patty’s Chapel roads. Um, I think the State had some comments about that.”


Gaston Campano – “That, that’s correct and then, that may not be in there but we did agree and we will agree and be glad to add that in there that the l, the lots will not have direct access to either Patty’s Chapel or Howard Gap Road. It will only be the uh, uh, main drive permits that were issued by DOT that will cut into those roads. So all the access to these lots will be …”


Chairman Hawkins – “Oh okay.”  


Luther Smith – “Vehicular access.”


Karen Smith – “Oh, vehicular.”


Commissioner Messer – “So the vested rights you’re asking are for five years right?”


Gaston Campano – “That’s correct.”


Karen Smith – “That’s all I had Mr. Chairman.”


Chairman Hawkins – “Okay are uh, the, that would if you’re gonna put that in like number 18 wouldn’t have direct access to Howard Gap or Patty’s Chapel except by the plotted roads?”


Gaston Campano – “Uh, that’s correct it would be vehicular access uh, would be limited to the internal road ways and there’d be no direct vehicular access to the lots from Patty’s Chapel or Howard Gap Road.”


Chairman Hawkins – “Okay. For those of you that are parties to the hearing do you have any questions for Mr. Campano on the uh, letter uh, that you received that had these, uh, three pages of uh, items addressed? Any, anybody have any questions on that?”


Angela Beeker – “Mr. Chairman, it might be a good idea to have the parties who are here to identify themselves for the record so that we know.”


Chairman Hawkins – “Okay, let’s see. We can do that. If, if you’ve been made a party to the proceedings would uh, would you just kinda hold your hand up and let me see who’s here? Um, let see, sir what, what was your name?”


Bruce Thompson – “Bruce Thompson.”


Chairman Hawkins – “Okay, Mr. Bruce Thompson. And who is the other parties?”


Donna Riley – “Donna Riley.”


Chairman Hawkins – “Mrs. Riley. Okay and.”


Jane Berry – “Jane Berry, Berry Boys Inc.”

Chairman Hawkins – “And who was the other party? You were, you were a witness I think weren’t you? Okay. There, there’s a little different rules for witnesses and parties. Okay and who was the last one mam, I, I didn’t catch your name?”


Jane Berry – “I’m Mrs. Jane Berry.”


Chairman Hawkins – “Jane Berry.”


Jane Berry – “Yeah. Berry Boys Inc.”


Chairman Hawkins – “Okay. Does, does any of ya’ll have any questions uh, or, for the petitioner on the document we just addressed? The three pages of um, issues that the Planning Board had sent over to be considered?”


Bruce Thompson – “Yeah actually I did…”


Chairman Hawkins – “Come on up please uh, Mr. Thompson and uh. Did you, did you get a copy of all these with your?”


Bruce Thompson – “Yeah.”


Chairman Hawkins – “Okay.”


Bruce Thompson – “But like an idiot I left it at the house.”


Chairman Hawkins – “Would you like a co, another copy?”


Bruce Thompson – “No I’m fine on that. He’s talking vested rights for five years. What exactly does that mean? I don’t understand that part, whether it’s, I mean, why would it be five years, one year or two years.”


Chairman Hawkins – “Uh, let us get into that a little bit further on. Di, d, do you have any specific questions on.”


Bruce Thompson – “Um, no…”


Chairman Hawkins – “On these documents.”


Bruce Thompson – “…just on that vested right thing.” 


Chairman Hawkins – “We’ll, we’ll talk to that in a, in a few minutes.”


Bruce Thompson – “Okay thank you.”


Chairman Hawkins – “Does any Board have any questions on the uh.”


Commissioner Young – “Karen gonna call Bo Caldwell in a minute?”


Chairman Hawkins – “She can’t.”


Commissioner Young – “Okay.”


Chairman Hawkins – “Uh, he’s not been made a party.”

Commissioner Young – “Oh, okay.”


Chairman Hawkins – “Um, okay, where was I. Uh, lets see. Uh, any questions for the Board for the petitioner on the three page document. Di, did you have some questions?”


Donna Riley – “Yes I do.”


Chairman Hawkins – “Would you come on and take the mic please?”


Donna Riley – “Certainly. And I’m not sure if this is exactly the point to address them. Uh, I’m Donna Riley and it was to do with the turning areas on Howard Gap Road. And I believe it’s covered under here under Section 16. And I own the apartments directly across the street from that, and I have information here where the School Board had tried to purchase right-of-ways on that property and there is no right-of-way on Howard Gap. My road, my property goes to the edge of the road and I have information here from the Health Department that my septic fields run, per the sep, Health Department, directly there. Now originally when they made the agreement that Mr. Smith said that all land would be taken off of their side of the road. And when we came last week it said no, that the DOT was working and they were redesigning subdivision using land coming up to Howard Gap on their side of the road. I.”


Chairman Hawkins – “So is your question in reference to Number 16, uh, for Mr. Campano, is that uh, directed to, to how he thinks the NCDOT is gonna redesign that.?”


Donna Riley – “I guess it’d be how that’s going to work out because, and also to the Board that I want my rights protected. Uh, I have you know letters from the Health Department and letters from the Board of Ed. attorney and I have dealt with Sam Neill my attorney at that point and we are in no way able to deed land to the DOT, the Board of Ed. or Mr. Campano.”


Chairman Hawkins – “And, and your, your property is from the main entrance is it to the north uh, uh, on, on Howard Gap Road? Your question is really I guess uh, if, is, is the, is the plan to design the DOT portion in your area.”


Donna Riley – “...for the DOT to come over requesting right-of-ways because I have two apartment buildings and, you know, I have a letter here from the Health Department stating that both, one of my my fields runs directly up to the 10 foot setback from Howard Gap Road itself, not from where everybody assumes that I have fence but the property goes to the road and when we count setbacks we go to the road so 10 foot from the road is where my septic fields do start.”


Chairman Hawkins – “Let, let me then give Mr. Campano a chance to respond to that. Do you know how the, at least the DOT’s thinking about designing that?”


Gaston Campano – “What I would like to do is call Luther.”


Chairman Hawkins – “Okay.”


Gaston Campano – “Um, he’s very, he’s been dealing with DOT on this. And I’m not, I was trying to figure out where your property exactly was.”


Donna Riley – “Okay, it’s uh, actually it was…would be right here directly next to the school.”


Luther Smith – “So north of the school or south of the school? Towards, towards the hospital…”


Chairman Hawkins – “Probably be north of the entrance on Howard Gap if, cause I think that’s where you said it was wasn’t it?”


Donna Riley – “…the apartment building, split rail fence in the front.”


Luther Smith – “Okay if I, if I can clarify when we started…”


Chairman Hawkins – “Okay, would you take mic uh, please just so we can pick it up for verbatim transcript. Thank you.”    


Luther Smith – “My name is Luther Smith. If I can clarify for you when we started this hearing we had an application in to DOT to do improvements to the road. All of the improvements that we were proposing would have taken right-of-way out of our side, or our property. DOT’s response was, they asked us to put a hold on those things because they were looking at doing something with the road. What they end up doing we have no control over. Uh, I will say in regards to your, your particular problem um … on the other side of the road actually piece of property, they took the whole piece of property so that’s something they would have to deal with if, if they took your right-of-way.”


Donna Riley – “Okay well I have…”


Luther Smith – “But, but the improvements we’re talking about all that right-of-way would still come out of our side only.”


Gaston Campano – “And if I may add that uh, just to clarify that what DOT is doing on Howard Gap Road, uh, and the planning that they’re doing on that road is unrelated to this project. It’s something that’s actually ongoing, uh, regardless of this project at this stage.”


Chairman Hawkins – “Okay.”


Donna Riley – “But your statements you know that you have replanned your organization at the last meeting if I’m not mistaken based on information, and I guess what I was saying, it will require condemnation in order to get the property because there is no land, as in your case, to redo septic fields there.”

Chairman Hawkins – “I, I think what Mr. Campano is saying is that DOT moves in their own uh, in their own circle.”


Donna Riley – “I know but I wanted the County Commissioners to understand you know that I am a property owner there and when you give them rights to do that, that very adversely affects.”


Chairman Hawkins – “Well I, I don’t think the Board would give DOT any rights they, they take whatever they need. We don’t have any control over them either. Okay any other questions?”


Donna Riley – “Okay.”


Angela Beeker – “Mr. Chairman for the record, Karen do you have an extra copy of, a reduced copy that, that Mrs. Riley could take and mark as Riley’s Exhibit 1 and put an X where here prop, or indicate where her property is.”


Donna Riley – “Okay. I also have cop.”


Angela Beeker – “Jus, just so that we can for the record locate where your property is. Um, could you use the vicinity map?”


Indistinguishable discussion away from the microphone.


Angela Beeker – “Okay.”

Chairman Hawkins – “Okay. Are there any other, uh, any other questions of Mr. Campano on the, the three page letter from any of the other parties?”


Jane Berry – “Are we allowed to make comments?”


Chairman Hawkins – “You’ll be able to in just a minute. Unless you have a specific question, now is the time to ask a specific question. And Mrs. Riley if you’d just give that to the Clerk we’ll uh, we’ll have that for our record.”


Donna Riley – “Okay, I do have information here from the School Board of Education attorneys and my attorneys going back and forth on it. Because I’m very supportive of the school, and I couldn’t even give it to them.”


Angela Beeker – “When it’s your turn to present evidence if you would like you can submit all of that as part of your evidence and, up to you.”


Chairman Hawkins – “Okay. Okay, we’ve got the um, petitioners evidence. Is the uh, now we’ll call for evidence from the other parties. Um, if, if you’re a party to the hearing you have evidence that you wanna present. Mrs. Riley did you wanna present that uh, those other documents you had in evidence.”


Donna Riley – “Well, you said the DOT would do what they wanted. Do you want this in evidence?”

Chairman Hawkins – “Well you, you can still present, if uh, if you think that’s germane uh. But uh, as far as the, the Board and vested rights and, and how DOT runs the uh, designs the uh, entry and exit uh, we’re not gonna have much to do with that. Uh, whatever the Board, whatever the Board does or doesn’t do DOT is probably gonna do some work on Howard Gap Road…”


Donna Riley – “I understand that but it was my understanding in talking with uh, Jabbo Pressley and the people from the DOT that they were going on their side of the road where, you know, that I, I have kinda given a slight easement to the school but that you know other than purchasing the entire apartment buildings that would be the only”


Chairman Hawkins – “Okay.”


Donna Riley – “option available.”


Commissioner Messer – “Mrs. Riley, so basically what you’re saying is you want that as evidence so that we and the state and everybody else that’s involved knows that you come to us.”


Donna Riley – “That I have come to the County Commissioners.”


Commissioner Messer – “I think it would be good to do that personally I mean.”


Donna Riley – “Okay.”


Commissioner Messer – “You can do whatever but.”


Donna Riley – “Like I say.”


Chairman Hawkins – “You just submit that to uh, Ms. Brantley over there.”


Donna Riley – “Here’s a letter from the Health Department. Could you get me a copy of it though cause I. A copy of the letter from the Health Department. Let’s see.”


Angela Beeker – “Are there several documents because we’ll go copy them for everybody.”


Donna Riley – “Um.”


Chairman Hawkins – “David could you do that for us?”


David Nicholson – “Yeah…”


Chairman Hawkins – “And then we’ll, we’ll give you the originals back and we’ll enter those into evidence.”


Donna Riley – “...letters from the Board of Education attorney.”


Indistinguishable discussion away from the microphone.


Chairman Hawkins – “Is there any other parties that evidence you wanna present? Alright um, I think we’re ready for rebuttal evidence on your scenario. Does, uh, does anyone have any rebuttal evidence that they wanna present?”


Commissioner Moyer – “That lady, one lady had some comments back there.”


Chairman Hawkins – “Yeah.”


Gaston Campano – “One item that I do need to uh, put into the record. Uh, when we had, when we reviewed the comments we realized that there were several comments about the recreational buildings and facilities and their location. So we did do a new site plan. Uh the only dif, there’s two differences between this and the one you have. They do show specific locations of building, for the recreation facility and the same location where the recreation facility was shown to be located. And then we also just to clarify, did show the, a separate little lot for the sewer lift station. Uh, you know to go ahead and figure that there will be a deeded lot that will come out of that at some point in time for the sewer lift station. I’d like to admit these into evidence.”


Chairman Hawkins – “Has the parties been able to see those?”


Angela Beeker – “He can take it back there. So this is now what your.”


Chairman Hawkins – “This is a new site specific plan?”


Angela Beeker – “This, this is the one that.”


Gaston Campano – “It is a site specific plan that clarifies what we used to show a area in the rec. facility just located, and this is the area where the rec. facility was going but nothing in there. Now we’re showing exactly what’s in there which effectively includes a pool, uh, a building, a cabana and a play, uh, playground area for.”


Angela Beeker – “That was in response to some of Karen’s comments right?”


Gaston Campano – “That’s correct, that was in response to some of Karen’s comments that we should be showing what is going in this lot that we were calling the recreation area.”


Chairman Hawkins – “And would you share that with Mrs. Smith and the other parties so they can see what you’re talking about.”    


Indistinguishable discussion away from the microphone.

Commissioner Moyer – “Well if you gotta take, if you have to take a site for the lift station you may actually lose one site right. If I understood you correctly.”


Gaston Campano – “Uh no that uh, the site is in uh, is number one. It’s a very small, let me show you what we’re talking about.”


Amy Brantley – “Has this got a date on it?”


Gaston Campano – “Uh it should usually be on the bottom on the title block.”


Commissioner Moyer – “Luther makes ‘em so small you need to have a magnifying glass to uh.”


Chairman Hawkins – “Did you need the date of this.”


Gaston Campano – “…effectively the changes occurring are showing these facilities within the area …”


Commissioner Young – “…just showing…”


Gaston Campano – “Right. So that was showing what we’re putting in there.”


Commissioner Young – “Yeah.”


Chairman Hawkins – “Where’s the lift station?”


Gaston Campano – “The lift station is over here and it’s just that tiny little box.”


Chairman Hawkins – “Okay.”


Gaston Campano – “At the top of the site. The changes that are occurring is showing what’s happening in the recreation area. And the little box I’m talking about is this little lot.”


Commissioner Moyer – “Oh geez.”


Gaston Campano – “But it also needs to be dedicated on…”


Commissioner Moyer – “Alright.”


Gaston Campano – “…separated as a separate parcel at that point.”


Angela Beeker – “And, and for the record it’s dated October 5, 2004.”


Commissioner Messer – “Gus I, I guess for the record give us a little bit of detail in depth about the lift station and the sewer and where all it’s coming from, you know, from that because we do have a, uh, a School Board member here. I think there were some question last meeting about, you know.”


Gaston Campano – “What the situation is with the uh, with the lift station, okay. Number one what I’d like to clarify is that we can get sewer out there. Uh, we can put in a lift station at this pay, at this point and put in a force main, uh, by teaming up with a publicly, what do they call it a uh, public utility effectively. Uh, a private public utility which is monitored by the State. Uh, and we could install a lift station at the location and run another line parallel to the school line, and effectively complete the site at this point in time. Uh, we have not done that because to do that we do have to enter into some agreements or work out some kind of venture with a utility company not unlike some of the ones that exist in other places in the County. We feel that what we should do is eliminate these two parallel systems going side by side but to do that we’re gonna have to have some discussions with the school in order to get rid of their lift station. And use the existing force main that presently runs there so we don’t have two parallel systems. Uh, Mountain Engineering has already done a preliminary schematic drawing of what it would take to eliminate the school’s lift station, run it over to a new lift station that would meet all of the public utility standards and use the existing force main. All the school system would then go by gravity to the new lift station. Uh, the, the sch, that particular drawing was given uh, to the, a representative of the school system and they have looked at it and they have told us preliminary, they do like the idea. That they’d like to get rid of, rid of their lift station. They don’t wanna be in the sewer business. Uh they’re just gonna wanna put together some assurances that this will continue in good operation. As long as they’re comfortable that they’re gonna get an operating lift station or operating, you know, to be able to deal with their sewage uh, they don’t wanna be in the sewer business. So before we get into agreements, we, in any other way we wanna explore all those possibilities and try to find a way to eliminate that. Uh, there’s a certain point in time where there may be some conversations that should be had with the sewer district as well which we don’t wanna do until after everything is far along. Uh, but there’s a number of different things that can happen. We do have a solution, it is possible now. We don’t think it’s the best solution and so we wanna keep exploring what the best solutions are as we move forward. If that helps clarify. You got any other questions regarding that or.”


Commissioner Young – “Um did, do you, do you concur with that Mr. Caldwell?”


Chairman Hawkins – “We, we, we’ll have to wait till we can him, if he’s gonna be called as a witness. Um, okay, but um, is there any uh, other rebuttal evidence uh, some lady back in the back wanted to, uh, that was a party did you have some comments that you wanted to make.”


Jane Berry – “I wanted to make a comment about the whole development. I …or not.”


Chairman Hawkins – “Um, maybe in closing remarks we get to that. Okay let me ask now if any of the uh, uh, parties have any uh, witnesses that they wanna call or, or question. Any witnesses? Do any Board members have any questions of, uh, any, we didn’t have any witness. Yes mam, would you take the mic.”


Valorie Edmunds – “I have some questions is it time for questions?”


Chairman Hawkins – “Are you a party to the hearings.”


Valorie Edmunds – “Yes I am.”


Chairman Hawkins – “Would you come forward then. What was your name please.”


Valorie Edmunds – “My name is Valorie Edmunds.”


Chairman Hawkins – “Okay Ms. Edmunds. An uh, what, what was your question or comment.”


Valorie Edmunds – “I have a couple questions. Um, first of all is there going to be a, a wooden fence between the subdivisions and this property, a privacy fence?”


Chairman Hawkins – “Uh, I’ll have to direct that to the uh, petitioner. Could, could you answer that question?”


Gaston Campano – “We don’t have any shown, but I would have no problem in the places where it’s adequate, where we wouldn’t have to tear down any trees to agree to put in a wooden fence between the areas where there are, you know, certain number of homes and, and this particular property. Uh, I would have no problem adding that if that would make you more comfortable.”


Chairman Hawkins – “Does that answer your question? Do you have another one?”


Valorie Edmunds – “Yes I have one more. Um, the other question is, is the pool going to be in an enclosed area or a closed building?”


Gaston Campano – “Our intent right now is not to have an indoor pool uh, but the pool would have uh, adequate safety measures in regards to the appropriate fencing, self closing gates as are required in those kind of public pools.”


Chairman Hawkins – “Does that answer all your questions?”


Valorie Edmunds – “At this moment yes.”


Chairman Hawkins – “Okay. Mrs. Beeker I believe we’re ready for closing remarks unless you know something that we’ve missed.”


Angela Beeker – “I don’t think so.”


Karen Smith – “Did the Board want me to call um, Bo Caldwell.”


Chairman Hawkins – “Uh, pleasure of the Board.”


Karen Smith – “Or, I didn’t know that, I heard you had a question.”


Chairman Hawkins – “Did you wanna call him as a witness?”


Karen Smith – “I can unless the Board wanted to yourself.”


Chairman Hawkins – “Does the Board have some questions for Mr. Caldwell?”


Commissioner Young – “I just wanted to hear the school system’s side of the sewer and also the traffic uh, intersection and stuff, their feeling.”


Chairman Hawkins – “Have, have you been sworn Mr. Caldwell?”


Karen Smith – “…been sworn.”


Chairman Hawkins – “Okay, uh if you’re gonna be called as a witness we probably need to swear you.”


Angela Beeker – “Are you calling him as a witness?”


Karen Smith – “I can, unless the Board wants me to. I don’t care. Can they call him?”


Angela Beeker – “Does the petitioner have any objection to the um, Bo Caldwell coming and answering some questions from the Board?”

Gaston Campano – “No we have no objection.”


Angela Beeker – “Okay.”


Chairman Hawkins – “Mr. Caldwell if you’d come up and be sworn then uh, I think Commissioner Young has uh, has some question, uh, has a question for you.”


Amy Brantley – “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 County Commissioners shall be the truth, the whole truth and nothing but the truth so help you God?”

Bo Caldwell – “I do.”


Chairman Hawkins – “Okay um, Mr. Caldwell is a, a witness here for uh, Mrs. Smith and uh Larry you had some questions you wanted to ask him?”

Commissioner Young – “Well you heard Mr. Campano’s um, statement on the sewer line and I just wanted to know if you concur with that one, one thing.”


Bo Caldwell – “Right. Um, thank you Mr. Young for letting me share uh, our thoughts as far as Henderson, Henderson County School system. Um, he’s right, um, when we first started the venture with the Dana Sewer line uh, worked with Dr. Yeager the past Superintendent and his number one lesson to me was we’re in the education business, we’re not in the sewer business. So any time that uh, we have the opportunity to gi, give away lines and, and, and pump stations to take that responsibility off the school system that is correct. Um, he did give some plans to Jon Laughter, an engineer in town. And Jon Laughter’s done a lot of work for the school system in, in, in the uh, sewer business. And according to Jon Laughter it would work. Were we would do a gravity feed to their pump station. There is a concern for the school on who would be in control of that pump station. Um, we would have to be 100% sure that we would, we’re not sure, we’re not sure that we would like a pump station owned by a private individual or a private group of individuals. Uh, we would have to have that pump station to be turned over to the County uh, the City, uh MSD, or some other uh, group besides a private individual running a pump station. We’re not gonna put our children in safety issues as far as this pump station is turned over to them and all the sudden the homeowners or whoever starts running it and they let go of it and the next thing I know I’ve got major health issues at our school. So we do not have a problem, gravity fed, we would love to get rid of the pump station at Fletcher however we need to know as a school system there is 100%, that that pump station is being taken care of uh, by the right types of groups i.e. the City and or the County sewer group and or MSD.”


Commissioner Young – “Okay one other question. There was some um, discussion about the uh, safety and the traffic, uh, flow, uh, by putting their intersection directly across from the, from the school system and putting a traffic light in there and turning lanes.”   


Bo Caldwell – “Well there is a traffic light there already I think, right at the Fletcher intersection. Um, you know a lot of times when you have a traffic light at a school intersection is, is much more safe than we do at some of our schools which have no traffic lights on which you have basically uncontrolled people pulling in and pulling out. Uh, we have not looked at the, at the traffic flow plans per se. Uh, we trust that DOT and their engineers know what we’ve got over there. Uh, we do have a precious cargo in children but I assure that the DOT would take all safety uh, precautions in, in knowing that their engineers would look at it that if you did approve this they would be safe for the children of Fletcher Elementary School.”


Chairman Hawkins – “Any other questions?”


Commissioner Messer – “Bo, has anyone from the uh, uh, school department talked to DOT about the possible changes on Howard Gap Road whether, you know.”


Bo Caldwell – “No sir. No, no one from DOT has, has talked to the school system about any improvements any changes to, to uh, Howard Gap. No sir. Not, not that I know of. They have not talked to me and, and they may have talked to uh, Dr. Page but I’m sure in his being new and if it deals with facilities he’s quickly calling me and telling me to take care of ‘em , so I doubt that that’s happened.”


Chairman Hawkins – “Any other questions from the Board. Does of any of the other parties have questions for this witness? Yes mam would you come up and ask it?”


Indistinguishable discussion from the back of the room.

Chairman Hawkins – “I’m sorry.”


Unknown – “It’s for Glade Holdings it’s not for.”


Chairman Hawkins – “Okay not this witness? Okay. Any other que, uh, questions for our witness.”


Donna Riley – “Yeah. Donna Riley again. Hi. Um, I’ve had several conversations with Shirley McGee the Principal and I know for a fact that she has very strong misgivings about the amount of traffic flow. I would assume she has shared those with you.”


Bo Caldwell – “I have talked to Ms. McGee. Of course Ms. McGee’s issue is, is traffic flow not only due to a new sub-development but as Howard Gap in general. Um, there’s a, you know, traffic flow on Howard Gap whether you deal with a new sub-development or dump trucks or anything else on that road uh, I think it’s been known that that is a pretty dangerous, dangerous highway. Um, and I, I’m sure that’s probably why DOT is looking at that. Ms. McGee has talked to me about, about the sub-development um, she is, she, she does know that there will be some issue with the uh, with the sub-development with traffic across the, across the street. Of course she’s also concerned about the number of families that, that are moving in there. Um, about capacity. Um, but of course as a school system whether they build it across the street, up the road or ten miles in our district we are there to educate those children. So wherever they put it, we will, we will take those children and, and try to prepare, provide all their needs.”


Chairman Hawkins – “Thank you. Any other questions uh, for uh, the witness.”


Donna Riley – “Okay I guess just since you say you haven’t talked to the DOT I guess the question would be why.”


Bo Caldwell – “Well I was kinda waiting for this to, you know, be a, be approved and, and, um, be honest with you I think that’s DOT’s job once they approve this, then it would be DOT, you know, and my, and us to talk together um, about making sure what’s safe.”


Donna Riley – “Okay cause, Mr. Grady has just kindof given me the opinion that what their decision is, has nothing to do with the, the DOT is that not correct?”

Chairman Hawkins – “Well if, if, if the Board decides to, to vest right the, uh, the uh, the subdivision then obviously all the things that go with the subdivision would be there. But as, as far as how the traffic’s handled on the state road in front of the school, uh, we have a little input to it but.”


Donna Riley – “I would hope so really as a taxpayer and a parent with children in the school. I would hope that the Board of Commissioners does have some say in protecting our children.”


Chairman Hawkins – “Well we, we, we do our best but uh, DOT has the money and the, and the uh, and the plans and they do uh, pretty much as uh, as we try to guide ‘em  to do. Any other questions for Mr. Caldwell. Yes mam.”


Jane Berry – “I’m Jane Berry and um, I know that Mr. Bunham isn’t there, Burnham isn’t there anymore but a letter that was issued on January the 14th of ’04, a paragraph says ‘first we’re concerned about how this project might impact the timely and safe entering and departing of students, parents and staff of Fletcher Elementary School. Secondly we have concerns about the volume of traffic that this project might increase on Howard Gap Road.’ So, so I guess you said I can make my comments later but I, as a, as a grandmother, uh, I have a lot of concern about this. And we can, DOT, they are paid by the taxpayers, and we can get enough people, it looks to me like in this county that care enough about the children they could get something done properly. That, I mean they may have their own ways but we have ways too, as in we can get enough people to get enough petitions. There’s enough that we can handle this to protect, we’ve gotta protect the children.”

Chairman Hawkins – “Okay.”


Jane Berry – “That’s what this is all about. And we don’t want the school overfull because that school was built by the local people for years and years to get the money to put that school there and now it’ll be flooded out and all the local kids will have to be pushed out to other places, so that’s just a comment I make.”


Chairman Hawkins – “Any other questions for our witness here? Yes mam, you wanna come back up to the mic. Ya’ll can move on down, we won’t uh.”


Valorie Edmunds – “Okay, I’m Valorie Edmunds. Uh, my question is how, how close to capacity is the school at this time?”


Bo Caldwell – “Right now looking at Fletcher, of course she has some programs that are special needs programs that are taking full classrooms that really have small children. She does have room I think right now of two available classrooms, um, but of course you, you never know every year when kindergarten registration comes what the number’s gonna be. Uh, she has grown out there in the last two to three years. Um, but of course so, Fletcher’s grown, but unfortunately so has Dana, so has Upward and, and so has several of the others. But yes, right now she does have some room. It’s little room but she does have some room. But yet we do not know. Next year’s kindergarten registration may, may fill that up, uh, even before the sub-development’s gonna affect it.”


Valorie Edmunds – “I mean do you feel that you have room for 20 more kids or 100 more kids or 200 more children I guess is, is what I’m.”


Bo Caldwell – “We certainly don’t have room for, for 200 more children at, at that location unless we do some reorganization within the school system to relocate some county-wide programs that are there that are taking up large rooms. Um, you know, I would, I would, really can’t without looking at it, looking at her map quickly tell you how many more school, you know, how many more students Fletcher can take. I do know in the last two to three years Fletcher Elementary School has grown very significantly and I think a lot of it is due to maybe uh, what Livingston?”


Valorie Edmunds – “Livingston Farms.”


Bo Caldwell – “Livingston Farms has added uh, a lot of students in the last couple years to Fletcher. Uh, that school has really grown in the last two to three years, yes mam.”


Commissioner Young – “I think what she was asking, can you state the capacity of the school and the enrollment in the school now?”


Bo Caldwell – “The capacity of that school I, I believe was built, Mr. Young, I was not there at, the time. I think it’s around 600.”


Commissioner Moyer – “600 is.”


Bo Caldwell – “600. Um I do not have…”


Commissioner Young – “The present enrollment.”


Bo Caldwell – “… is gonna be right now on what her, her enrollment, uh, her enrollment is. I’m sorry sir.”


Valorie Edmunds – “I did speak to her, uh, before the first meeting that we had and she was very concerned about the capacity of the school at that time. Um, that was a comment that’s just something I had spoke to her over the phone before the meet, first meeting trying to find out, you know, how full the school was. And um, I don’t know if you want any more, this is got something to do with it in a way. I have heard that Glade Holdings is also looking at b, purchasing a property behind the school which is 72 acres and putting the same, similar development behind it coming up Fletcher View Road which will empty out on Howard Gap. Now I don’t know, I don’t know this is true, but I am in real estate and this is a rumor I have heard from one of their employees.”


Chairman Hawkins – “Uh, I don’t know if that’s germane to our proceedings this evening.”


Valorie Edmunds – “Well it does because of the traffic and because of the school and that’s, that’s something if, if, if this one goes in and then the next one’s allowed to go in that’s all relevant to the same thing.”


Chairman Hawkins – “Okay. You have any other questions?”


Valorie Edmunds – “No.”


Chairman Hawkins – “Thank you. Okay let’s see um, thank you Bo.”


Bo Caldwell – “Mr. Young did I answer your question about the sewer?”


Commissioner Young – “Yes.”


Bo Caldwell – “I mean I was.”


Commissioner Young – “I just wanted to know if you, if you uh, concurred with what Mr. Campano said and, and also with what the…”


Bo Caldwell – “I, I, I do concur. Howe, however I would like some, 100% responsibility that someone in, in the sewer business will be taking care of that pump station for the children of Fletcher Elementary School. Before I leave I would like to say though, since I am from the school system, thank you Mr. Nicholson and thank you for the work you have done for the children of Henderson County schools in building Fletcher Elementary School and Rugby and Flat Rock, and, and, and all the capital projects you’ve done the last five years. Um, I know the Henderson County Board of Education thanks you and most importantly the children of those facilities thank you for the work that you’ve done for the uh, for the children. So I’d like to take the time to thank you for that.”


Commissioner Young – “Thank you for being here.”


Chairman Hawkins – “Okay we’re gonna move on then to closing remarks. Uh, first uh, up would be the applicant if you have any closing remarks you’d like to make.”


Gaston Campano – “Yes I do but I’d like to see if we can defer our closing remarks until all the other parties have given theirs.”


Chairman Hawkins – “Alright. Staff do you have closing remarks?”


Karen Smith – “I don’t, I just wanted to see if I could make one clarification. I think that earlier Mrs. Beeker had said the plan, the new plan was dated 10/5.”


Angela Beeker – “That’s what I thought it said, yes.”


Chairman Hawkins – “October 5th?”


Karen Smith – “In the, in the title block or in the, the last one was also dated 10/5.”


Amy Brantley – “I’m sorry it was revised on 10/7/2004.”


Angela Beeker – “I’m sorry, I didn’t see that.”


Amy Brantley – “I didn’t see that either. 10/7.”


Angela Beeker – “Okay.”


Karen Smith – “Okay, thank you.”


Chairman Hawkins – “Was that all you needed uh, Karen? Okay. Uh, okay then we’ll, we’ll move on to the other parties closing remarks. Any of you that are party to the hearing uh, can make your closing remarks at this time.”


Jane Berry – “Okay I’m Jane Berry and uh, my first remark is the fact of the density, and the fact of the traffic, and the fact that it’s dumping right out in front of the schools. The fact of teenagers and fast driving. The fact of children walking home. This area, there is a lot of, I own property just above them. This area has a lot, a lot, a lot of wetlands on it. Um, I’m concerned about closing in the wetlands and hauling in dirt. Um, the most important thing is the density. There are developments going up all over. There’s that huge thing on Jackson Road, that’s not Livingston Farms it’s another one. They’re wall to wall houses. Um, the density in the County, what they’re doing is just unreal. It’s like ultra-suburban, urbanville or something. It’s just way too many houses for the area. Way too many apartments for the area. And as Board of Commissioners I would pray and hope that you would consider this for the sake of the County and saving the property in the County, the local people. And looking at this I’ve been over to the Clear Creek and looked at those houses that they’ve done and they’re just on top of each other. But just for safety purposes and for the mass density. This is County and we would love to see, to keep some type of land and not be like urban sprawl Greenville or Spartanburg or. At the end of um, Patty’s Chapel and Jackson they’re putting a development. There’s land between the houses, and those houses are gonna sell and those men are gonna make money. Now they could put land between the houses and those houses could sell and they would still make money. They have a lot of things going on. But I’m just asking the Board of Commissioners to please consider the density and please consider the children. Please consider Howard Gap with, it has no right-of-ways on Howard Gap. It may be 15 years before the DOT does anything because they’re so far behind. But just consider the safety measure, the safety issue for the whole Howard Gap area. Just the whole Howard Gap area, I just ask you to please think about the local people and things that are going on. Thank you.”

Chairman Hawkins – “Any other parties have any um, closing remarks? Any other parties have closing remarks?”


Bruce Thompson – “Yeah I’m Bruce Thompson. Um, talking about the uh, sewer again. The uh, you know, they’re gonna put their own lift station in. That will be privately maintained. Uh, school uh, superintendent or whatever it was said that, yeah they’d love to give it to ‘em provided somebody in the sewer business takes care of it. If I remember correctly uh, the last meeting, uh, Commissioners uh, said that they didn’t want to be in the sewer business either. They did not want a lift station to maintain and to uh, operate. So take that into effect too on the sewer cause all that area there is, everybody’s on septic, everybody has lots big enough. Here a d, you know, a development that big on that small a piece of property you can’t put septic so, they are stuck with the uh, sewer system. And when you start tearing up roads and stuff like that they’re never being put back right. And like uh, Jan just said, DOT yeah is probably gonna do something with Howard Gap. Look how long it’s taken them to do Highway 25. You know it’s not gonna be done tomorrow. Look at the uh, I-26, uh corridor that they’re trying to go through uh, West Asheville. That’s been going on for how long? And they’re not gonna start till 2012. So DOT doesn’t, you know, do things overnight and when you’re putting that amount of people in such a small area across from a school, safety has to be the main issue. And yes there is a traffic light but, how many people have run traffic signals with uh, kids around. I mean I don’t know the statistics but it does happen once in a blue moon so, yeah there is, you know, you’re just adding fuel to the fire on that one. Granted there’s been no injuries yet I don’t think but there will in time, especially with that kind of density. And uh, like Jan said you can still put houses with land between ‘em and make money. I mean, you know, it’s right. That’s the type of uh, money that’s coming in, I see it all over Henderson County because I work all over it. And again if uh, somebody could explain the vested rights, why it’s gotta be five years instead of one year or six months or whatever, I’d still like to uh, know that. That’s all I have. Thank you.”


Chairman Hawkins – “Any other closing remarks from the parties?”


Donna Riley – “I’m Donna Riley, and I think I’m probably readdressing some of the same issues but I do, as a parent, feel that Howard Gap is way too hazardous. My child is no longer at Fletcher Elementary, but for the past several years they have been and I was one of the people that was out there with the bake sales and everything raising money and in here petitioning the Commissioners to get a new school. It is now close to capacity. I understand there’s maybe 60 to 70 available spaces and we’ve been through areas where the children this Board has graciously provided a new school, but you tear up friendships you ear up everything else that happens. And I know growth is inevitable but I would like the Commissioners to keep that in mind when you have parents that try and be parent and the child, and the children that your child has been friends with for years, you’re comfortable where they are when they’re at their home. They’ve been in Cub Scouts, Boy Scouts, baseball, t-ball, soccer, so you’re aware who their friends are versus when they’re pulled to another school and you no longer have the sense of community. Fletcher has a very distinct sense of community and I really feel that the Commissioners should do everything they can and in their power to protect that. There was also the question of zoning and I came to a zoning meeting a few weeks ago and you couldn’t even get in there were that many people considered with zoning, and this was part of the area that was to be zoned. And I think the citizens in this area have made their thoughts very well known to the Commissioners that they would prefer that it was zoned tha, that the density was less. And there again back to the safety issue on Howard Gap Road as far as the school and I would also ask that the Commissioners consider my apartments and my septic systems. They’ve been there 20 years and I’ve been paying taxes on them for 20 years. Thank you.”


Chairman Hawkins – “Any other closing remarks by the parties? Yes mam if you’ll come forward.”


Valorie Edmunds – “Uh, what I have to say is nothing new. It’s just to back up what they’re saying. Uh, we’re pretty much, the traffic flow on Howard Gap is a big con, a big worry for all of us. We live in Beth Eden. Um, we’re concerned about the traffic flow there. There is already a problem on Howard Gap. It has been on the news about it. Um, you know about trying to straighten out Howard Gap because it’s, in a, the traffic is too fast and, and the roads too curvy. Uh, adding the, this type of density to our area which people bought in that area because everybody was on half acre or larger lots. Um, and that’s what we would like to keep our area. Um, I’m speaking for everybody in our subdivision. There’s nobody in there that um, some of us could not be here because of work schedules um, but they, we would like to see it stay a medium density and not high density which is what they’re trying to put in. Um, and I have mentioned it before that I have heard that they are trying to buy the property behind the school which will also be putting in, I have not got an answer to that yet. Um, maybe it’s none of my business but it is as a homeowner. Uh, and I would also like to say that, you know, we are concerned about the safety of the kids because of, because of this traffic. And um, that I don’t see, you know, the homes would sell if they put ‘em on half acre lots. I, I’m in the business, I know. I mean it would s, and they, they build a v, a very fine product. I’ve sold some of their homes, I know that the sell, they have very nice products. We’re not here to dispute that. It’s just the density, the amount of product that they’re trying to put in and the small amount of space they’re trying to put it into. That’s pretty much all I’ve got to say.”


Chairman Hawkins – “Thank you. Does the applicant have any closing remarks.”


Gaston Campano – “Yeah, unfortunately a fairly long one. But uh, Mr. Chairman, members in the Henderson County Commission, I want to thank you for the opportunity to present our Petition for Vested Rights. Uh, Glade Land Fund has applied for vested rights under Chapter 189 of the Henderson County Code. Uh you prev, previously received a Project Summary shown in your packet and I’d like to just go over a few highlights as several revisions by the way.


Uh, Fox Glen is contemplated as a Planned Residential Community with 198 housing units on 47.198 acres for a gross density of 4.2 units per acre. Uh, as Luther previously noted, the approvals, subdivision approvals are actually in place for the apartments, villas and cottages. Uh, the Fox Glen will have a community recreation center and pool, open space and playground areas. It will have connections with sidewalks from each neighborhood community to Howard Gap Road and Fletcher Elementary School. It will have a management office, a small community store or other neighborhood commercial area adjacent to the Howard Gap Road entrance. Uh, due to its location uh, at, across the street from the elementary school, we have already agreed to restrict the community commercial uses such that alcoholic beverages and tobaccos will not be commercially sold.


Our proposal utilizes the natural boundaries and characteristics of the property create distinct separate neighborhoods with natural buffering and significant open space. We are well beyond the current zoning requirements for the project to protect open areas, establish exterior project setbacks to minimize impact on adjacent properties, and provide buffer plantings where required. Glade works with the land, not against it.  Uh, we’re preserving the natural resources there including the wetlands, clustering our development in an environmentally responsible way and leaving as many trees as possible.


Regarding the traffic, DOT has already issued a driveway permit for the streets and has provided an engagement letter to commence the re-design of the traffic signal to accommodate Fox Glen. Smart design, while allowing the access at an intersection. Future improvements on Howard Gap road are already planned. Uh, while this undoubtedly development will undoubtedly bring further school children to the community, growth within the school as you’re very well aware is inevitable. And development that provides close access and in many cases pedestrian access, to the local schools is far preferable to development located far away from the schools, requiring an increase in car traffic transporting the children.  


Uh, regarding stormwater, Glade always works to minimize the storm water runoff to its neighbors.  In addition to fulfilling all the requirements of the ordinances affecting the property, including those covering drainage, we will, as in all projects, erect retention and detention ponds and other facilities to control stormwater runoff, in every case meeting or exceeding the required standards.


Uh, regarding utilities availability, uh all the portions of the project will be served by water and sewer.  We can presently acquire sewer service without the school or any additional easements. Uh, however, we are looking to work with, to try to find a method to work with the school system and try to find the best solution uh, for the sewer before we get into uh, agreements that we cannot easily undo.


Uh, other potential uses under current open zoning, numerous industrial and commercial uses could be made for the property as a matter of right merely by securing a building permit application at this time. Further, alternative uses could also include several hundred apartments as well as commercial, retail, and other uses. Taking all of this in light, we believe the character of our development is compatible with the neighborhood, especially considering the other commercial and industrial uh, uses of the property.


Regarding protection of values, our residents also will want to live in a well-maintained, naturally beautiful community.  They have an investment like everyone else and they’ll want to make sure it’s protected.  The owners of the residential, residential community, likewise, will have a significant investment in maintaining the desirability of the area. Uh, both the for sale and rental portions of the community will be provided with significant amenities in the form of a pool, clubhouse, open areas, common space, all of it maintained jointly by the homeowner association or associations and the rental community in a way to maintain it in a first class condition. All streets and roads within the project will be constructed in accordance with the applicable standards, with most of the roadways being dedicated to NCO, NCDOT, Transportation, except those around the townhouses and rentals. Uh, thus all streets and roadways will have adequate mechanism to assure that they are consistently and permanently maintained in a first class condition.


Uh, the financial and economic impact of this property to us is significant.  As previously noted, we have a very substantial investment in the property and the designs and approvals that presently exist at Fox Glen. Work completed includes Environmental Reports, wetland study, Surveys, Topography, Complete Site Planning including county subdivision approvals, engineering, market studies, preliminary architecture, DOT access Permits which are acquired, erosion control plans and permits which are acquired, uh, US Army Corps creek crossings which are acquired, uh, Hendersonville water supply approvals, public serving, Public Service gas company development plan adjacent to uh, right-of-way approvals and several legal costs as well as all the equity involved in dealing with the purchase and financing of the project. The potential loss of overhead and revenue to the company is large.  Uh, this translates into a potential loss of jobs and significant dollars into our economy.  Not just the investment of well over $150,000 in actual cost today, not including the land, uh, but in the lost opportunity to the company would be substantial.  The value of the completed project is expected to exceed $23 million dollars.


As stated at this time, the plan project can be built within the existing zoning and subdivision regulations. Our goal here is two fold. To protect our rights if or when conditions change and to demonstrate our desire as a responsible to, developer to work with the community and the County to ensure quality growth.


Chapter 189 implements the provision of the North Carolina General Statute 153A-344.1. Uh, the Preamble sections of the statutory provisions state, as a matter of public policy, that the General Assembly has found it necessary and desirable to provide for the establishment of certain vested rights in order to insure reasonable certainty, stability and fairness in the land use planning process, secure the reasonable expectation of loan, uh landowners and foster cooperation between public and private sectors in the areas of land use planning. That was a quote. The vested rights process, by requiring specific development planning and a public hearing and opportunity to be heard, assures that public, including adjoining property owners, both a fair opportunity to be heard and that their interests will be considered, while assuring both the certainty of compliance with the plans presented and the granting to the developer the reasonable certainty of the opportunity to develop the desired project without the risk associated with subsequent changes in zoning.


The statute also does recognize the significant costs and investment often associated with obtaining land use approvals and site evaluation, planning, development costs and related expenses. Uh, as mentioned, we have incurred significant expenches, expenses, and there is a very large potential impact to the company with this community.


The statutory provision then goes on to note that these provisions eventually strike an appropriate balance between the private expectations of developers and owners and the public interest while protecting public hat, health, safety and welfare. This is no more evident than in the context of property such as this one, which is an Open-Use Zoning.


As noted the property could be built under current zoning regulations as planned without the opportunity for such public input and participation, but in view of the current land use study, and in order to assure that it could be done, this developer, we would be, required to hasten the development process in a manner to assure that building permits for all the project were obtained prior to completion of the land use study and possible re, rezoning. By providing this vested rights a public is allowed participation and assurances of future expectations uh, that they will be met as per the plans that we submitted.

I’ve obtained a uh, explanation the hic, of the history of the statute and believe it does merit a little bit of  consideration over here. Uh, the vested rights statute was added by the General Assembly in approximately 1989 to 1990. Prior to that, the law of vested rights was covered by law related to a common law vested rights. Under this law, when a party was made, prior to the amendment of a zoning ordinance, significant expenditures or incurred significant contractual obligations in good faith reliance on a valid building permit, if a permit was required, and the amendment of the ordinance was detrimental to that party, that party can claim a common law vested rights. This usually required a lawsuit and much litigation apparently resulted in the problem, in the process.


The problem with the common law vested rights was exactly that litigation. The land owner or developer who ser, sought to develop his property, failed to have reasonable certainty that the vested right statutes seek to preserve. Further, such common law vested rights provided no opportunity for public participation or the presenta, preservation of public interest by local officials seeking to protect public health, safety and welfare. It was against this backdrop that the General Assembly sought to encourage the balancing of these interests by the opportunity to obtain a vested rights under the statute.


It is my understanding the Board’s decision is to be based on public health, self, safety and wearf, welfare. I would like to reiterate that the granting of our vested rights application would not eliminate our obligation to comply with other laws and ordinances, such as soil and erosion control, which would be applicable to the project. We have previously demonstrated to you a significant potential loss of revenue and overhead should the vested rights not be granted. This would have a significant impact on the company and would likely result in a reduction of significant percentage of the employees of the company. This does not take into account the significant impact to its various subcontractors and suppliers who as a group employ several hundred people.


For all of these reasons, we believe it is in the best interest of the public in terms of its health, safety and welfare that the vested rights application be granted for this project. In addition to all the other reasons above, the comparison of other potential uses of the property under Open Use zoning make the case for granting of the application more compelling.


Once again, we thank you for the opportunity to present our Petition for Vested Rights.”


Commissioner Moyer – “Grady, Grady.”


Chairman Hawkins – “Yes.”


Commissioner Moyer – “Mr. Campano before you leave would you speak to the term, the length of years you’re requesting and why?”


Gaston Campano – “Yeah, we, we are lookin’ for five years. Uh, this project will be built out based on market conditions. As we do in most of our projects we will open up a model center and we will start opening up for sales. And the uh, we, we are asking for five years. Uh, we’d like to build out the project obviously as fast as we possibly can but we can’t fully control market conditions and it is our understanding that without the five year vested rights if in fact we were not completed before that time period with all of the housing and permits that uh, there, there are issues that could affect the property even if we had the roads and the infrastructure and the property actually subdivided. And so we’re lookin’ for the five years cause that a, a number that we’re comfortable with that we do feel that the market, even if there is a fluctuation in the market, that we would be able to sell out the property in that time period.”


Chairman Hawkins – “Any, any other questions? Okay, um, I’m to uh, move that we close the public hearing Mrs. Beeker unless you can think of anything we’ve omitted? Any Board members think of anything that we’ve omitted?”


Commissioner Moyer – “I’d like to have a discussion of the legal requirements for the vested, in, that are in the ordinance. You wanna do that before or after? I thought you’d might wanna do that before we close the hearing.”


Chairman Hawkins – “We can do that.”


Angela Beeker – “As far as the legal requirements to obtain a vested right?”

Commissioner Moyer – “Right. That we have to take into consideration in granting or denying it.”


Angela Beeker – “I’ll be happy to talk to that right now. The vested rights ordinance as well as the statute um, is pretty general. Um, it’s clear that an applicant must uh, submit a plan that meets the requirements of a site specific development plan. It’s clear that if they wish five years they have to submit evidence as to market conditions and things like that um, that would justify five years. And it is clear that decisions need to be based on public health, safety and welfare. But there is no specific, like if for a special use permit, that has special conditions and general conditions, there are none. It’s, it’s a le, this is a legislative action. It is quasi-judicial in that any decision you make to impose conditions, um, or to, um, I guess deny the permit or whatever based on public health, safety and welfare would have to be based on evidence that was presented at the hearing. That’s why it’s quasi-judicial. It’s kind of a combination thing though because you do have the legislative discretion to write what is really a mini zoning ordinance that applies just to this property for the duration of the vested right. But as far as specific requirements, if, if this were zoned already a traditional zoning district, it would have to meet those requirements in order to qualify for a vested right. Be, say if this was already zoned R, I don’t know R-15 or something, they’d have to demonstrate they meet those specific requirements but since it’s open use there really are none. No specific requirements for this particular project.”


Commissioner Moyer – “And any action taken on a statutory vested rights has no affect at all on common law vested rights. Am I correct in that?”


Angela Beeker – “Um, if at the end of the five year period um, the development had not been built out then I think that um, developer would still be able to, you know, apply for or make his case that he has a common law vested right. It wouldn’t be a guarantee like this is, but the doctrine would still apply at the close of the um, vesting period under this statute.”


Commissioner Moyer – “But the granting or denying of statutory vested rights does not affect?”


Angela Beeker – “No, no. It doesn’t mean that he couldn’t then establish a common law vested right. That’s correct if that’s what you’re asking.”


Commissioner Moyer – “Yes.”


Angela Beeker – “And on the market conditions, way back at the first, he did submit some reports on that and it was left in the Clerk’s office for ya’ll to review so.”


Chairman Hawkins – “It’s still down there. I looked at it.”


Angela Beeker – “You looked at it? Okay. Alright.”


Chairman Hawkins – “Does that answer? Okay. Let me, uh, be, before we go out of public hearing because uh, Mrs. Beeker has uh, explained vested rights um, in attorney language and uh, I’ll try to go back through it uh, because I’m a layman like you are and uh, and tell you what I think she said and I’m sure she’ll correct me if there’s any error. Be, because I, I, I think there’s a lot of misunderstanding. Um, uh first of all in, in the case that you’re looking at the, the property uh, Mr. Campano owns is in an Open Use zoned area. And, as he’s alluded to in his comments, uh, if he were to start tomorrow, he could do all the things that he’s asked the Board to give him vested right to do. And, and be perfectly within the, with, within the statutes. Okay? So that’s, that’s one thing that uh, that we’re not dealing with tonight. He already can do that. Uh, he mentioned another thing uh, that kinda goes along with, with uh what Mrs. Beeker talked about, the uh, common law vested rights. He has already secured a number of legal permits for uh, various operations uh, uh in the area. Uh, and those uh, whether or not the Board gives a vested right or not uh, he is still able to execute those permits in the time frame of the permit. So if he’s got a, a building permit for two years uh, uh he’s gonna be allowed to build whatever he’s been permitted to build if he does it in the time of the permit. So the Board’s action won’t have any effect on that. Uh, the, the idea, as Mr. Campano uh, went to some detail to explain and Mrs. Beeker alluded to of vested rights by statutory authority, is something that the general assembly has generated uh, for these cases where uh, either an, an, uh, anticipated land use change zoning wise may be occurring uh, but yet it takes time to make those zoning changes occur. And so vested rights gives the uh, uh, a person that’s gonna develop uh, an assurance that the, they’ll be able to develop whatever they get started uh, uh prior to uh, a change to the uh, to the zoning ordinance. And so the time frame that comes up deals with uh, again what’s allowed by statute. It’s normally a two year period but could be extended to five. And again those are established by statute uh, somewhere other that this Board. It’s out of the uh, the general statutes and, and our zoning, or, and our vested rights ordinance. The.”


Angela Beeker – “The two year versus five years.”


Chairman Hawkins -  “So that um, uh, I, I don’t know if that kinda brings the things together for you but uh, I, I know you had some questions about it and that’s about as good as I can explain it, so.”


Angela Beeker – “I guess the bottom line is that even if you denied the vested right there’s a good chance that the development could still occur. The vested rights process that we’re in just gives the land owners a chance to come in and participate and express their concerns so that some, you know, conditions can be imposed to offer some protection to the community that you don’t have right now. And that’s the whole purpose of, of the hearing. Um, if the vested right is granted then whatever conditions have been imposed, those setbacks, those buffers, um, I believe he said he’s willing to do the fence. Those would have to be done. So that’s, it’s, it’s a give and take, it’s an opportunity for the um, developer and the citizens to have a give and take in front of a Board who has the authority to impose those conditions to, you know, to protect, help protect everyone’s interest.”


Chairman Hawkins – “And, and I think as Mrs. Beeker pointed out that’s the, uh, uh, and it may be one of the things the general assembly was thinking about. It gives the developer in this case an opportunity to, to know what time frame he’s got to develop it in and it also gives the uh, other, uh, other citizens an opportunity to, to mold it into something that fits in their community. Which as Mrs. Beeker explained uh, if the Board a, agrees with vested rights with these eighteen items on it it’s like uh, a little mini zoning ordinance and uh, and so the developer has to do all those things. It, that you’ve uh, that you’ve talked about and seen so um, that’s kinda that in a nutshell. Okay, motion on the floor was to go out of public hearing.”


Commissioner Messer – “Mr. Chair I.”


Chairman Hawkins – “Yeah.”


Commissioner Messer – “I’ve got one more question that I would like to ask Mr. Campano before he, you know, before we go out of closed session.”


Chairman Hawkins – “Okay.”


Commissioner Messer – “And it, I guess it has a question with Fletcher. You know we brought this up some months back or, almost a year back now. But have you had any direct communication with anyone from Fletcher uh, government uh, concerning this development?”

Gaston Campano – “No we, the, the, the only communications we had with Fletcher is when we were first, still in the due diligence, inspections phase on this property looking at whether to buy it or not uh, we met uh, with the uh, City Manager, uh, Mr. Honeycutt, I believe he’s a City Manager. And uh, just want to, showed him the plan and wanted to make sure that they didn’t have any, being that it was pretty close to Fletcher that they didn’t have any major objections to it. And in fact they did not. They were actually very pleased to see it was gonna be residential and, you know, fit in the type of character it was considering it was open use, so they were quite pleased with it. Uh, we have not communicated with Fletcher since then.”


Commissioner Messer – “Thank you.”


Chairman Hawkins – “That answer your question?”


Commissioner Messer – “Yes.”


Chairman Hawkins – “Okay. Any uh, other discussion on the motion? Okay all those in favor of the motion say aye.”


In unison – “Aye.”


Chairman Hawkins – “Opposed? Okay we’re out of public hearing so we won’t hear any more comments from the, from the public. The rest’ll be uh, deliberations of the Board. Now that the evidence has been presented and the closing remarks concluded it’s appropriate for the Commissioners to discuss the issues presented today. Uh, as far as a vote and decision we can either vote today and direct staff to bring back findings of fact and conclusions consistent with the decision and the Board’s discussion or we can continue our discussion and decision till a later date. I would remind the Board however that the Board must make a decision within 30 days and issue a written decision within 45 days of the conclusion of the hearing. So um, we had a um, a lot of uh, material presented. Uh, we’ve had it over several days. I think everybody’s had a chance to uh, uh, to look at uh, all the materials being presented. Uh certainly there’s been some uh, uh issues raised of uh, safety and public concern. Uh, we’ve had information uh, uh, uh, from the, uh, pending uh, road uh, situation with Department of Transportation. Uh, and, uh density in the uh, in the area and so forth. So um, at this time uh, I’ll just uh open it for the Board for discussion of uh, how you want to proceed with the uh, with the hearing. Mr. Messer that’s in your area up there what are, what are your thoughts on.”


Commissioner Messer – “Well I do have some concern with uh, the schools, the roads and public safety, you know, the whole public safety aspect of it. But if we do, uh, and have to do by the law that Angie and, and you have stated uh, uh, you know it’s, you know, mean I have a concern with density too, but uh, like you said this is a tough call cause it is, that area is growing some much, so fast, uh, you know, uh, but if we’ve gotta do what we have to do to be public officials then uh, you know, I guess I would uh, you know support it.”


Chairman Hawkins – “Bill do you have comments?”


Commissioner Moyer – “Well this is um, this is a tough one from my standpoint. I guess you and I are the ones that were on the Board when the Fletcher School got sited and I will say for the, for the public that uh, this Board of Commissioners does not buy and site schools. I wish we did, but we do not have the authority. The School Board decides where schools are going to be. And Commissioner Hawkins and I were both on this Board and when they selected Howard Gap Road we both were very concerned at the time with respect to the amount of traffic, how windy it was, but we do not have the approval to say yes or no with respect to the siting of schools. And though we’re working with the School Board on that I, we still have a ways to, to go in my view to do that. Um, so I’m very concerned about the safety, I was concerned when the school was put there, and um, but even having said that I think that my view of the law, we are obligated to follow the law. I think they’ve met the uh, requirements of the law. I think they’re entitled to the, to the uh, to know what the laws are gonna be as they go forward so you don’t start a project and get caught in the middle. And I think as uh, Commissioner Hawkins has said, they could start the project and probably finish most of it anyway under our existing law so I would have to come down in favor of uh, approving the vested rights uh, statutory vested rights as requested.”


Chairman Hawkins – “Larry? Uh.”


Commissioner Young – “I guess I would agree with Mr. Moyer and, and Charlie on the uh.”


Chairman Hawkins – “Uh let me make uh, I guess just a few comments. Um, uh first of all reference the um, uh, time request. As indicated the Board uh, has an option of either two year or five year period. I, uh, and I’ve reviewed uh, the marketing analysis that Mr. Campano has presented uh, uh on two occasions and uh, I don’t think for the scope of this project that, that five years is unreasonable. And I think for the people that uh, is gonna be up there, uh, to, to be able to develop it over that time period will make it a uh, a much better development. I also think that the uh, uh, I’ve got now 19 items that uh, really constitute a, a mini zoning ordinance that uh, the developer has worked out with the Planning Department and the people that’s gonna be mostly affected. Uh and, and I think that uh, that in itself is uh, uh, is, is, is a good compromise and uh, uh, I would uh, uh, I would then uh, move that.”


Commissioner Moyer – “Grady, before you, can I just add one condition to that?”


Chairman Hawkins – “Yeah.”


Commissioner Moyer – “Subject to Mrs. Beeker saying this is alright. If we could put a statement, not a condition in there, that the developer who has offered already to provide sufficient land on his side for the expansion of, of the Howard Gap Road in that area. If the State Depart, if the Highway Department so requests. I know they can take it, but can we put such a, a statement in there? If they’ll agree to it? Well I’d like to and see what happens. Cause I think they probably will agree to it and, because they’ve already offered.”


Chairman Hawkins – “Well I think they initially, initially they had, they had already offered that and I don’t think they’ve changed that so.”


Commissioner Moyer – “No, and we, at least we could point to the State if they come back with some other plan and look, the developer has offered this and, and uh, why don’t you work with them to do that.”


Chairman Hawkins – “That’ll be in the evidence already will it not?”


Angela Beeker – “It is in the evidence already. Um, would the Board approve it, I, cause I can tell you’re going towards approving it without such an agreement? I guess that would be the, the issue. Because I don’t want it, in other words that discussion would be appropriate I think after the Board makes it’s motion if that’s where the Board would like to see it go. It might not be an enforceable contract but a gentleman’s agreement along those lines. But I wo, I would not tie that in as part of your decision. To require.”


Commissioner Moyer – “But couldn’t you put in like in that a whereas clause but not make it a conditional term?”


Angela Beeker – “Um, I think you could encourage.”


Commissioner Moyer – “Yeah.”


Angela Beeker – “Suggest.”


Commissioner Moyer – “Something like that.”


Angela Beeker – “That would be fine. Um I just wouldn’t make it contingent on that.”


Commissioner Moyer – “No I understand that.”


Chairman Hawkins – “Well and, and again I think it’s already been presented in evidence that, that they have made that offer uh, under.”


Angela Beeker – “They had, they had originally uh, done some turn lanes and showed ‘em in the drawing and as I understood the testimony DOT said, you know, we’re gonna do our own thing here. And so um.”


Chairman Hawkins – “Then what we say won’t matter anyway.”


Angela Beeker – “DOT ultimately, I think that DOT will have to take into account now, um, the number of homes and things that are going in there when they make, do their plans in there. But um, and if DOT went in and did take property on both sides of the road they’re gonna have to compensate the people.”


Chairman Hawkins – “Out of the way.”


Angela Beeker – “To do it. Um I think you can suggest, encourage the developer to work with DOT to dedicate whatever land is necessary for the improvement. I, I’m fine with putting that in the order.”


Commissioner Moyer – “Yeah and I think that’s a statement of our intention and I think it should be reflected.”


Angela Beeker – “But it wouldn’t be binding.”


Commissioner Moyer – “I understand that.”


Angela Beeker – “Okay.”


Chairman Hawkins – “And then uh, I would continue that motion to include uh, that it contain these, and I had uh, we have 17 items on a printed, and I added two more that uh, one of ‘em was the lots uh, not have direct access to Howard Gap Road uh, the verbiage on that.”


Angela Beeker – “Or Patty’s Chapel Road?”


Chairman Hawkins – “And, and the other one dealt with the wooded fence. Uh, that Mr. Campano agreed to, so I would include in the motion that it contain those 19 items.”


Angela Beeker – “And the language.”


Chairman Hawkins – “And, and the language on uh, the uh, opportunity for taking of land on the developer’s side.”


Angela Beeker – “Okay.”


Commissioner Messer – “And aft, after we vote I’ve got a question concerning Monday night’s meeting with DOT.”


Chairman Hawkins – “Oh. Well, we’ll deal with that later.”


Commissioner Messer – “Well, you know, I mean, I think it would be good to.”


Chairman Hawkins – “Okay.”


Commissioner Messer – “Let the people know the. Maybe they can put some of this, some of these road issues in Henderson County maybe on the fast track because, I mean there’s gonna be a definite problem out there and it’s, it will come back to safety.”


Angela Beeker – “Well there’s nothing that says your vote would preclude you from then contacting DOT, sharing concerns that you have and that kind of thing. I mean, you’re ab, able to do that with regard to…”


Commissioner Moyer – “Well we can speak to that after the vote.”


Angela Beeker – “Right, right.”


Chairman Hawkins – “Okay then the, uh, then I would make that motion that uh, we approve uh, VR-03-01 Vested Rights Hearing and direct Staff to bring back uh, findings to that effect, include the uh, 19 or 20 items now listed uh, uh, three additional items that was listed on the draft that uh, have been agreed to. Any discussion on that motion? All those in favor say aye.”


In unison – “Aye.”


Chairman Hawkins – “Opposed? Okay thank you, and no other business before the Board we’ll adjourn, cause we didn’t have that on the agenda.”





Amy Brantley, Deputy Clerk to the Board                    Grady Hawkins, Chairman