HENDERSON COUNTY PLANNING BOARD
February 19, 2002
The Henderson County Planning Board met for its regular meeting on Tuesday, February 19, 2002, at 7:00 p.m. in the Land Development Building, 101 East Allen Street, Hendersonville, NC. Board members present were Tedd Pearce, Chairman, Walter Carpenter, Vice Chairman, Todd Thompson, Roger Wolff, Jack Lynch, Mike Cooper, Rebecca Nesbitt and Leon Allison. Others present included Karen C. Smith, Planning Director, Jennifer Jackson, Assistant County Attorney, Melissa Peagler, Planner, Josh Freeman, Planner, and Kathleen Scanlan Secretary. Also present was William Moyer, Chairman of the Board of Commissioners and ex-officio, non-voting member of the Planning Board. Board member Valerie Welbourn was absent.
Approval of Minutes. Chairman Pearce presided over the meeting and called the meeting to order. He asked for the approval of the January 15, 2002 minutes. Chairman Pearce made a motion to approve the minutes and Roger Wolff seconded the motion. All members voted in favor.
Adjustment of Agenda. There was no adjustment to the agenda.
Staff Reports. Ms. Smith informed the Board members that were no Staff reports to discuss.
Chairman Pearce mentioned that reviews of subdivisions would be conducted informally unless the applicant or anyone qualified to participate in the proceeding requests that such review be conducted as a formal quasi-judicial proceeding.
Request for Variances from the Henderson County Subdivision Ordinance for Oleta Falls (File 00-M08) – Waterside Properties, LLC, Applicant. Ms. Peagler stated that she had forwarded a copy of the Development Plan approved by the Planning Board and the Final Plat of the development as built to all Board members. She noted on the maps the area in which the slope is at a 22% grade. She stated that this gives a view as to how it was done and approved and how it was completely finished. Chairman Pearce informed the Board members that Mr. Roger Wolff had passed out his views regarding the grade variance request. Chairman Pearce then asked Jack Lynch to give a summary of the Subcommittee meeting. Mr. Lynch stated that the Subcommittee had two meetings in January. The Subcommittee talked about the bridge variance request, which has been withdrawn and was acknowledged by the Subcommittee. The Subcommittee also discussed the width of the shoulders and that they be reduced from the 6-foot standard to the “as built” shoulders in place in Phase 2 and to 2-foot shoulders in Phase 3. He stated that the Subcommittee recommended denial of the request because of three findings. (1) The Ordinance was in existence at the time of the planning of the project; (2) it is a safety issue; and (3) the developers clearly stated at the Board of Commissioner’s meeting on bonding that they fully intended to comply with conditions of the Ordinance. He stated that he had read the minutes of the meeting in April 2000 and in that it stated that they would meet the specifications on the shoulder requirements. They did intend to comply with the conditions of the Ordinance. He mentioned that they looked at the curve radius variance request. He stated that the Subcommittee recommended that they hold it open until more information is presented and to extend the variance request indefinitely. Mr. Lynch stated that regarding grade variance request, the developers requested that the grade be allowed to remain at 22% instead of the required 18% in the Subdivision Ordinance. He stated that there have been some items that have come up since the original Subcommittee recommendation and asked Mr. Wolff to review his memo regarding the grade variance request. Mr. Wolff stated that he had reviewed a lot of documents and stated that this is not a statement of findings of the Subcommittee nor is it a statement of findings of the Board, but it is what he wants the Board to consider as the findings for the grade variance request. The following were those findings:
1. *The Subcommittee of the Planning Board visited the site on January 8, 2002 and inspected the road where it is not in compliance with the Ordinance.
2. *At the January 22, 2002 Subcommittee meeting, “Mr. Ball reported that the rock outcroppings were part of the reason” for the grade violation.
3. *At the January 22, 2002 Subcommittee meeting, “Mr. Ball stated that the road was paved before the surveyor shot the grade and found it did not meet the standard.”
4. *The cost to make the road compliant with the Ordinance does not appear to be significant in terms of the total project.
5. *The applicant has posted a bond to assure funds are available to make the road grade compliant. Mr. Wolff stated that Mr. Lynch had mentioned that the developer had said they would comply with the Ordinance.
6. *The Subcommittee discussed at length the cause of the non-compliance with the grade. He added, “was it the failure of consultants to design and stake the road appropriately or was it results of the applicant’s own actions?” The Subcommittee determined it to be primarily not the applicant’s own actions. He said the applicant told them it was the failure on the part of the surveyor and/or engineer.
7. *The “as built” Exhibit 1 shows about 200 feet of road at a 22% grade. Lengthening the road by about 44.5 feet to 244.5 feet would then produce a grade of 18%. Mr. Wolff stated how he computed these figures and after talking about his computations, they agreed.
(Mr. Carpenter at this time arrived to the meeting).
8. *Mr. Ball was asked if the road could have been taken around and he stated that it would have taken out 2 lots.
9. *The Subcommittee voted to recommend to the Planning Board that the variance be granted “based on Mr. Ball’s testimony that they were not aware of the existence of the grade variation until the road was completed” and “that it was also because it was not of their own doing but was likely due to topography and/or surveying errors.”
10. *A review of the Development Plan IV approved by the Planning Board shows six curves and five lots on the road in question.
11. *A review of the “as built” Exhibit 1 for the Grade Variance shows a total of only five curves and five lots on the road in question.
12. *The actual construction of the road has had one curve removed. This is the exact area in which the grade is in violation.
13. *Mr. Ball’s statement about the loss of lots is in conflict with the facts as presented in the plans and drawings as listed above. Mr. Wolff said in looking at the Development Plan and counting the number of lots that faces those streets, which is lot # 30, 31, 33, 34 and one more that has been cut-off. He added that in looking at the Final Plat there are also five lots. He said that he concluded that the road straightening was not due the loss of two lots.
14. *The loss of one curve is a loss of about 50 feet of roadway. Had the one curve been installed, the road would likely have been in compliance. Mr. Wolff said because he did not have the appropriate scales or the technical expertise, he took a highlighter and used it as a gauge and rolled it down and measured how far it went on both sets of plans and found that it was about a 50 foot variation by straightening it out instead of leaving the curves in.
15. *Changing the road grade from 22% to 18% may be a rather significant effort to gain potentially modest results in safety. The Subcommittee discussed this in length that going from 22% to 18% might not grant a lot of additional safety on a slick frosty morning coming down the hill.
16. *There is no evidence presented that would show constructing the road as designed would be an unnecessary hardship.
17. *There is no evidence presented that would show that an increase from 18% to 22%, or an increase of 4% in grade, is in harmony with the general purpose and intent of the ordinance. Increasing the grade by 22.22% (4% increase divided by the 18% allowable) is a significant increase.
18. *Increasing the grade to 22% well may be a public hazard and a violation of the public safety and welfare.
19. That for the Henderson County Board of Commissioners to grant a grade variance they should reach three conclusions:
a. There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the Ordinance.
b. That the variance is in harmony with the general purpose and intent of the Ordinance and preserves its spirit.
c. That in granting the variance, the public safety and welfare have been assured and substantial justice has been done.
Mr. Wolff stated that in concluding, he would hope that the Planning Board comes to a conclusion:
a. That the applicant has not shown any practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the Ordinance. It would only be in developing the road in compliance with the approved Preliminary Plan, not a field adjusted potentially grading contractor adjusted road.
b. That the variance request is not in harmony with the general purpose and intent of the Ordinance and does not preserve its spirit. He said that 18%, for some reason was established, and that is the maximum grade allowable for safety and for the welfare of the residents and users of that road. He said that increasing the road by 25%, in his opinion, it not in harmony with the general purpose or intent of the Ordinance.
c. That the applicant has not shown that public safety and welfare have been assured and substantial justice has been done.
Mr. Wolff stated that by increasing the grade a quarter, you couldn’t say that safety and welfare has been maintained. Justice would be following the appropriate guidelines and Ordinances as they are delineated and as they were in existence at the time when the property was required and when the development was planned. He stated that in his opinion, it would be an injustice to approve the grade variation.
Ms. Smith stated that the minutes of the Subcommittee meeting have not been approved as of yet and that the Subcommittee could take action on those minutes here and in addition to that the Board could get Mr. Ball to formally withdraw the bridge variance request. At that time, Mr. Wolff made a motion to approve the Subcommittee minutes of January 22, 2002. Leon Allison seconded the motion and all members voted in favor.
Mr. Ball presented a letter indicating the formal withdrawal of the bridge width variance and curve radius variance request. He stated that they have had the construction engineer back out to the property site and he has looked at the shoulder widths and what needs to be done there. He said that at this time he feels that the bond improvement guarantee should be the way to go and to review the shoulder widths. He said they will still voice their compliant that the standards in the Ordinance are not for building roads in mountain terrain, in fact, they are designed for standard subdivisions, not in “open space” property and they are for thoroughfares that the developers of Oleta Falls are not constructing. Chairman Pearce stated that he does not understand that a surveyor can put down stakes, as laid out by the developer and when you are grading them someone did not notice that the stakes are not in the same place that you are grading, without somebody giving them permission to change the stakes. Mr. Ball said that he did not have an answer for that. The mistake was made on that particular slope and was discovered after the fact. Chairman Pearce stated that if the development plan had been followed and followed the surveyor’s staking, you probably would not be at this meeting tonight. He added that someone changed something, they would have had to get approval to change it and, that approval could have only come from the developer. Chairman Pearce asked, were your surveyor, your developer, and/or your grading contractor acting independently of your instructions? Mr. Ball stated that he has a debate between the surveyor and the construction engineer. He said that the construction engineer came from South Carolina, but that he couldn’t find who is at fault. Mr. Ball said that what he is asking for the grade diggers to come in and say that they made the mistake. Mr. Wolff said that it troubles him that your company just unilaterally and arbitrarily said, (not in so many words but in your action) that the Subdivision Ordinance really does not apply to us. Mr. Ball stated that he does not feel that they have not done that at all. Mr. Wolff said that Mr. Ausburn had said, “Do the roads the way I want them done.” Mr. Wolff further said he feels that the development plan was disregarded and the developers did the roads the way that he wanted with limited shoulders and drainage ditch. He said that he perceives it as an intentional, blatant statement that the developer’s references supersede the Subdivision Ordinance. Mr. Wolff said that other developers cannot get away with this type of variance and does not understand how the developers of Oleta Falls can take that position. Mr. Wolff said he understands that there are a lot of subdivisions that are non-compliant. Looking at the road that goes up to Oleta Falls, which is a State road, it does not look like it is compliant with the Subdivision Ordinance rules, but he added that this is not the job of the Planning Board tonight as we are here to make a recommendation based on three findings. Mr. Ball said he does not feel you could go out and find a developer that could justify those three findings. Mr. Ball admitted that he is guilty and said that there is nothing he can do about it. He said he is taking a beating because of that but that it never was the intent of his company or himself or the people that work for the company to be unscrupulous or lie to do something that we felt would create an unsafe environment or to create this type of controversy with this Planning Board. Mr. Ball said he wants to be a good company in Henderson County or they would not have come here. He said that the history of the company is outstanding and is well known in Beaufort County, South Carolina. He mentioned that this is the first mountain development and they obviously made some poor decisions and mistakes. Chairman Pearce stated that what he has seen of your development that it has been done beautifully. He added that the entrance and other parts have been done in a very classy manner. Mr. Wolff added that he too is sympathetic and also mentioned that it is a beautiful development but his personal preference cannot be swayed by what you have done. The Planning Board has very strict mandates that we must follow and there are three findings that need to be satisfied, but if we cannot, we will have no recourse but to deny the request. Mr. Lynch said that what bothered the Board members was (1) regarding the shoulder (4 – 6 feet), the statements in the minutes that state 70 – 80% for the entire development is less than 4 feet; and (2) in Section 3 you are still requesting 2 feet. He said the Board members were out there and noticed that Phase III had not been graded as of yet. He said he does not understand why the development could not have come up to the 4 – 6 feet in Section 3 when you knew that this was the rule. Mr. Lynch added that he had talked with NCDOT and said their rules are the same (4 – 6 feet). He said he agrees that there are a lot of roads in the County that are too close to the road, but that is not the case tonight. Chairman Pearce stated that all the developers that come before the Board are required to have the same requirements and if the Board needs to look at making amendments to the Subdivision Ordinance that would be a different story. Chairman Pearce feels that the Board has no other option but to deny the entire request. Mr. Wolff said that what he found problematic was in the request for the shoulder variance you had said, “short sections on three roads that do not meet the shoulder width requirements.” Mr. Ball indicated that that was feedback from Ms. Smith and Ms. Peagler when they inspected the roads. Mr. Allison stated that when he was out there he noticed that if you change the grade, you are not improving or taking away from the safety issue because it is a steep grade. Mr. Ball stated that the Subcommittee had voted to approve the grade variance. Mr. Cooper stated that was based on the information that you had provided at that time and the statement that you made that you were not aware of any changes made to the plan. However, it was quit obvious in looking at the plan now, and the way it was proposed and put in, that someone pretty drastically changed the plan. He said that he does not understand the intent. When you stake a road that had that big curve in it, and when it is graded then the curve is not in the road anymore. Mr. Ball stated that they took the curve out and worked with the elevation and they were given information that with the curve being removed and the 18% grade could be met. He said that it was not until the road was paved and the surveyor came back to say that it does not meet the 18% grade that they were aware of a problem. Mr. Ball stated that this is when he notified Ms. Smith that he was not in compliance in that particular section. Mr. Ball said it does not make any sense to wait for the Board to do something on this and said that he would withdraw the shoulder width variance request and said he had an improvement guarantee regarding the shoulders. Mr. Todd Thompson said that if that percentage of road grade was 16%, which would be less than it is now, would that make it any safer as he feels it is dangerous either way. Mr. Wolff stated that he agrees but it is not the Board’s decision to make. He said the Planning Board’s decision to make is if it goes from 18% to 22% are there practical difficulties or unnecessary hardships in the way of carrying out the original 18% grade. Mr. Wolff personally feels that it was not a hardship or practical difficulty they would have just had to put in another 50 feet of road in there. He said in his opinion, “is it practically difficult to correct it now, yes; am I sorry, yes; did they violate, yes; was there a hardship to cause them to violate, no, so you can not find the hardship rule. We as a Board have to find that the variance is in harmony with the general purpose and intent of the Ordinance and preserves it spirit. He said he assumes that the 18% grade has to do with the safety issue, because of this he had talked with his surveyor and he was told to never let anyone ever go over 20%. Mr. Wolff feels that the Board cannot recommend the variance. Mr. Allison stated that this Board needs to consider the safety issues. He said that when fire trucks get off on the shoulders built like this, they will sink. Roger Wolff made a motion to send an unfavorable recommendation to the Board of County Commissioners that the Planning Board finds the 18 points as discussed previously [* indicates the 18 points on the previous pages] in Mr. Wolff’s memo and because of those findings the Planning Board denies the grade variance request. Mr. Wolff suggested sending the list of findings to the Commissioners. Mr. Allison stated that since we are all humans and subject to faults, this is one time he would like to vote mercy. He said that the developer is asking for forgiveness. They have gone ahead and made the wrong judgment, but he does not see any benefit in the road by doing this much grading. Mr. Cooper stated that he really wants to give the variance, but will the Board be setting a standard as 18% as a good cut-off point. If we grant a 20% grade, what stops us from granting a 24%, etc. He said that he is very sympathetic because it will be a major expense to the developer. Before you graveled and stoned the road, you would have had a little grading to redo but now you need to destroy a lot of pavement and lose a lot of gravel, and you’ll need to move some rock and whatever else to make it work out. Mr. Cooper said, “Is it a hardship? It depends on what a person wants to call a hardship. It’s a money hardship in that it is money that has been spent and is wasted, and the Subcommittee could not honestly see that he had consciously made a decision to vary from it. Jack Lynch seconded the motion. The following were in favor of the motion: Roger Wolff, Walter Carpenter, Tedd Pearce and Jack Lynch. Those not in favor of the motion were: Todd Thompson, Leon Allison and Rebecca Nesbitt. Mike Cooper did not vote. Mr. Cooper stated that he really has a hard time in theory voting to recommend it and consciously, voting against it. Considering all things and based on all the information we have, there was a conscious decision made somewhere to vary and someone made it, whether the owner was involved in it or not, and he said that he would vote against the request. The vote was 5 to 3 in favor of denying the grade variance. Mr. Allison suggested that the Board at another time needs to discuss variances in length and what part the Planning Board plays regarding variances. Mr. Wolff asked how this will be presented to the County Commissioners. He said that at the last County Commissioners meeting that he went to, Planning Board’s recommendation on Gary Barnwell’s rezoning request was presented as a major discussion about the Staff’s position before the Planning Board voted on it and it was outlining Staff’s position and then at the end there was a comment that said that the Planning Board voted 5 to 3 to support the recommendation of rezoning. He said that what he came away from there was that the primary presentation was what Staff had recommended to us and that the Planning Board had voted to the contrary. He thinks it was a well intended presentation but he would like to make sure that the Board understands how this Planning Board recommendation, especially when it is a split vote is presented. Chairman Pearce said that Staff works for the County Manager and part of their assignment is to provide information and aid and assist the Planning Board in its decisions or recommendations that are made to the Board of Commissioners. He stated that Staff is very free to voice their own concerns about issues, but if there is someone on a particular issue who would like to request the opposing side’s viewpoint or findings and include that as part of the Board of Commissioner’s packet, Staff would be more than glad to cooperate to send it forward. Ms. Smith stated regarding this particular issue, we will be dealing with it at the Board of Commissioners meeting as a quasi-judicial hearing, so the Planning Board’s recommendation is presented differently there than it is in a rezoning. She added that any time we have approved minutes of a meeting where the Planning Board made a decision on an issue, they are included in the Board of Commissioner’s packet so they have those available. She said that if Staff has a particular recommendation, they will make that known to the Board of Commissioners and it is not to slight the Planning Board in anyway. She added that every effort would be made to bring the Planning Board’s points across. She suggested she will make every effort to make sure the Planning Board minutes as well as the recommendation sent to the Board of Commissioners, has the points the Planning Board wants to express. She said that when this request goes before the Board of Commissioners, there will be a formal memo with the Planning Board’s recommendation and it will be verbatim so that all of your points and findings will be made as part of that record and the minutes will as well. She stated that Staff welcomes any Board member who wants to participate or be present on behalf of the Planning Board. Ms. Jennifer Jackson said that Staff has been the liaison between the Planning Board and the Board of Commissioners in presenting your actions to the Board of Commissioners. She said that if anyone ever desires to designate one of the Board members for a particular item they are welcomed to do that, whether the Chairman or another member of the Board.
Request for Variance from the Henderson County Subdivision Ordinance for October Ridge (File 01-M19) – Jon Laughter, Agent for John Free and Betty Sizemore, Property Owners. Ms. Peagler stated that the developers requested the variance at the January’s Planning Board meeting. On January 22, 2002 the Short Term Issues Subcommittee of the Henderson County Planning Board met to discuss the variance request. She briefly reviewed the Subcommittee’s recommendation. She said the developers requested that the width of the shoulders be reduced from the 6 ft. standard to 2 ft. shoulders. The Subcommittee recommends approval of the request based on the
1. It was a pre-existing road.
2. It was a pre-approved subdivision without qualifications. She noted that on the map, all the lots color designated in green were approved as two separate Minor Subdivisions.
3. The developers were planning additional road enhancements. Ms. Peagler stated that they are planning to go ahead and make the width, but they will be short on the shoulder width, which is why they are coming before you tonight for the shoulder request.
4. It is a residential use.
5. No more traffic will be added because the land is fully utilized.
6. There would be significant economic hardship if they tried to correct it.
7. It would cut access off to existing residences.
Mr. Lynch stated that the Subcommittee members made a trip out to the site and looked at the road and the entire development. He said in particular they looked at this section of the road, which is the portion for which they are asking for a shoulder width variance, and recommends approval based on the seven findings that Ms. Peagler just mentioned. Mr. Wolff stated that in 1994 or 1995 a minor subdivision was completed with 9 lots. He asked if they had approved all 18 or 20 lots, would the roads they built then have met the standards of the Ordinance at that time. Ms. Smith stated that regarding road construction, they did not have to build the road at that time it was approved as a Minor Subdivision. She said the way it is built now is how it was built then and the only issues they had to deal with in a Minor Subdivision for a private road was the width of the right-of-way, the grade and vertical curve. She said they could propose a standard to the Planning Board for a Major Subdivision on width back then and then it was up to the Planning Board if the developer was doing private roads, but there was no required width on shoulders at that time. Mr. Wolff stated that after the Subcommittee meeting he reviewed this request further and found some things that troubled him. He said if, when they put in the nine lots, they knew they were not going to develop the twenty lots because they did not want a Major Subdivision because it would require a bigger road with a full intention of later developing the other ten lots later, then he said he would have to vote against it. It does not appear to be the case. Ms. Smith stated that there was no difference in standards from Minor to Major Subdivision. After some further discussion, Walter Carpenter moved that the Planning Board find as facts that there are impractical difficulties or unnecessary hardships in carrying out the strict letter of the Ordinance regarding this road because of the topographical situation of this road. He added that the variance is in harmony with the general purpose and intent of the Ordinance and preserves its spirit in that it is not going to be used as access to any of the lots that are being added to the Subdivision and so essentially it is an access to the Minor Subdivision that has already been approved and given the way it has been constructed, it is safe and is 16 feet wide. He said that in granting the variance, the public safety and welfare has been assured and substantial justice has been done. Based on those findings, the Planning Board recommends to the Board of Commissioners that they grant the variance. Jack Lynch seconded the motion. All members voted in favor.
Meadow View – Minor Subdivision Review (9 lots off Brickyard Road) – Jon Laughter, Agent for Lloyd and Marjorie Ducote, Applicants. Ms. Peagler said that Meadow View is a 6-lot minor subdivision located in the Mills River Township off of Brickyard Road. Staff typically reviews minor Subdivisions, however, Staff does not have the authority to approve alternate cul-de-sac designs as proposed for Meadow View. The lots will be served by an existing road previously built to access a duplex, which currently is located on the parcel. Existing private right-of-ways are required by the Subdivision Ordinance to upgrade to the standards in the Subdivision Ordinance. The road appears to meet and exceed standards. The subdivision is in an Open Use zoning district. Ms. Peagler stated that Staff has reviewed the Plan for conformance with the Henderson County Subdivision Ordinance but Staff cannot approve these cul-de-sac designs. Ms. Smith stated that this is no different from previous approvals on the “t” type design. She added that this is one of the amendments to the Subdivision Ordinance that the Board of Commissioners are having a hearing on to allow the Planning Staff to have some authority on cul-de-sac design approvals. Mr. Wolff asked Mr. Laughter whether he feels that the cul-de-sac design is adequate. Mr. Laughter said it was. Mr. Wolff made a motion that the Planning Board finds and concludes that the Minor Subdivision Plan submitted for Meadow View Subdivision complies with the provisions of the Subdivision Ordinance and further move that such Plan be approved with specific approval of the alternate cul-de-sac design being a cross section of the turnaround design. Mike Cooper seconded the motion and all members voted in favor.
High Vista Falls, Phase V (File 01-M06) – Revised Master Plan and Revised Development Plan (24 lots off Country Club Road) – Bob Duffy, Agent for NC Four C’s, LLC, Applicants. Ms. Peagler stated that the application is for a revised Master Plan and Development Plan for High Vista Falls, Phase V. She said that this phase will consist of 24 residential lots and was previously approved with 23 residential lots. She said because of the reconfiguration of the road system in Phase V and the addition of a residential lot has caused the subdivision to come back before the Planning Board for revised approval. The water will be provided through a municipal system and the sewage disposal will be provided through a community sewer system. The property is located in the Open Use zoning district. Regarding the Master Plan, the following are contingent on approval:
revised Master Plan. (HCSO Appendix 4)
Ms. Peagler stated that regarding the Development Plan, the following items are
contingent on approval:
Mr. Wolff asked, “The roads that serve this section and outside this section that lead into this section in compliance regarding the grade of 18%, etc.?” Mr. Duffy, agent for the developer said the roads that they have designed are fortunately [or unfortunately] are already installed in this phase do comply with those standards, but the existing roads that are adjacent to this phase of the project is preexisting before we started this part of the community and they, by in large, do not comply with the existing standards. He stated that they were originally developed in the late 70’s through the 80’s. Todd Thompson asked how much do they not comply? Mr. Duffy said he does not know. He said there is no data on that and added that they were not the developers at that time. Mr. Duffy feels that regarding road grade, they comply, but not with the width of the road. Mr. Wolff says that it poses a problem to him that the Board continues to have interior mini sections of the plan that are compliant with the new road and the roads leading into the development are not compliant. Mr. Carpenter stated that it will not be noticed driving around the development. The right-of-way is still 45 feet wide and that it is the same road and same shoulder, so it looks all the same when you are into the development. Ms. Smith stated that the only solution we have now in the Ordinance is if you own the property on both sides of the road, but in this case they did not, particularly on this section. It was approved before we had this provision to upgrade. Mr. Carpenter stated that one of the reasons that this provision went into the Ordinance was so that if the roads were ever turned over to the State that they could go ahead and accept it, otherwise, you cannot get there. That was the reasoning for having that 45-foot right-of-ways because the State would require that, if they ever took them over. Mr. Duffy said pending those corrections that Ms. Peagler mentioned, would this plat be considered a Final Plat and recordable once those comments have been satisfied and would the Board have to approve the Final Plat. Ms. Smith said that Staff would approve the Final Plat and check that each comment has been satisfied and that there would be no more Board approvals. Chairman Pearce made a motion that the Planning Board find and conclude that the Master Plan and the Development Plan submitted for High Vista Falls, Phase V Revised Subdivision complies with the provisions of the Subdivision Ordinance except for those matters addressed in the Technical Comment section of Staff’s memo that have not been satisfied by the applicant and further move that such Plan be approved subject to the following Conditions: The applicant satisfies comments 1 through 3 under the Master Plan Technical comments in the Staff’s memo and comments 1 through 5 under the Development Plan Technical comments in the Staff’s memo. Leon Allison seconded the motion and all members voted in favor.
High Vista Country Club – Revised Master Plan and Revised Development Plan (2 lots off Country Club Road) – Bob Duffy, Agent for Lon Pierce, Applicant. Ms. Peagler stated that this plan is a revised Master Plan and a revised Development Plan for High Vista Country Club for a re-division of a previously recorded lot. Recently the division of lot CC-3 within High Vista Country Club came to the attention of Staff. She stated that it was recorded at the Register of Deeds Office without the Subdivision Administrator’s signature on the plat nor the Plat Review Officer’s signature. Ms. Peagler contacted Mr. Lon Pierce, Owner of High Vista Country Club about the situation and he agreed to come in and correct the issue. She stated that Staff required that the subdivision follow the process of a major subdivision because it lies within an approved Major Subdivision and will add an additional lot to High Vista Country Club. She said water will be provided through a municipal public system and the sewer system will be on a community sewer system. The property is located in the Open Use zoning district. Staff has reviewed the revised Master Plan and revised Development Plan for conformance with the Henderson County Subdivision Ordinance. With regard to the Master Plan, the following items are contingent on approval:
Ms. Peagler stated that regarding the Development Plan, the following items are contingent on approval:
Ms. Peagler stated that the submittal is for approval of the Revised Master Plan and Revised Development Plan for the subdivision and that Staff feels that the submittals satisfactorily address the requirements of the Henderson County Subdivision Ordinance. Staff would recommend approval of the Revised Master Plan and approval of the Revised Development Plan subject to the above listed comments being addressed and revised plans addressing the above comments being submitted prior to Final Plat approval.
Chairman Pearce said that regarding the request by the Homeowners Association, if the Board takes those setbacks there then it basically becomes legated and would still be their issue to deal with. He said even if the Board would want to put notes on the Final Plat that it is a legal matter but he feels that in this particular case, any reference we make is to something that would be off the Final Plat that will be recorded. Ms. Smith stated that if the County had setbacks in that district, we would ask that they be shown on the Final Plat, but for their Homeowner’s Association, we do not require them. Mr. Carpenter stated that he would like to here from one of the homeowners regarding this issue. Chairman Pearce opened public input.
Mr. Tom Saylor stated that he would also be speaking on behalf of the other homeowner who signed up for public input, Mr. William Nestler. Mr. Saylor stated that he lives at 12 Vista Villa Drive in the condominium section, which adjoins this project. He objects to having this lot (owned by Lon Pierce) split in two because it presents a problem for the condominiums in this area. Mr. Saylor stated that Vista Drive was built exclusively as the entrance and exit to the condominiums and is the only access to and from those condominiums. He stated that there is no other way in there. This road is not only sharply curved, but is very steep and narrow. He stated that if this proposal is accepted and someone is allowed to build on this lot there would be a curb cut in this area (which he indicated on the map), for this home. Mr. Saylor said that is the major basis of my objection. He feels that this road presents a safety problem for those condominiums. He said that their condominiums have bylaws that preclude street parking because of the width of the road. He said those restrictions clearly would not affect these lots because they are outside the condominium development, which means that this road could be further blocked because anyone in that particular lot (which is indicated on the map) could park in the roadway and we would have no recourse in that regard. He added that there is a sign made of concrete which also makes it hard to get around and with street parking would make it very impossible to move. Chairman Pearce said that if that was one lot and people who owned that other lot chose to use that road or to put their driveway to a house site, they would have the right now to build anywhere they want to on that particular site. Mr. Saylor stated that the party should choose, like everyone else chose on Country Club Road and their entrance and exit would be off Country Club Road. Chairman Pearce stated that they are not required to. Chairman Pearce asked whether there should be a correction on the plat indicating the traffic island that is splitting the road, which separates ingress and egress. Mr. Allison asked whether the road is deeded to condominium association. Mr. Saylor said that there is an easement privileges for entrance and exit to the condominiums. Mr. Duffy stated that the Homeowners Association owns and maintains the road. He stated that the lot owns to the center of the road, which gives it full right-of-way to use that road. Mr. Thompson asked whether Mr. Saylor has a problem with all of the lots. Mr. Saylor stated that he only has problems with the two lots. He does not have any problem with any of the other residences because they have their entrances and exits off Country Club Road. Mr. Wolff said he understands that that street be used exclusively for homeowners of the condominiums but there is nothing in our Ordinance that we vote on tonight that would keep that road being used by the person that could be located at the lower lot. He said he knows of no Ordinance violation that this Board can vote on that says they cannot do it. Mr. Saylor said that it is a safety hazard for the people living in the Vista Villa Condominiums. Mr. Wolff asked Mr. Duffy what the percentage of grade was on this road. Mr. Duffy stated that it is approximately 15%. Todd Thompson asked what the lot size of the two lots in question compared to the other ones up the road. Mr. Duffy said the only reason why these lots were available to be split was because they are going to be accessible for our community sewer system. He added that prior to that, they would have had to be permitted for septic and the lot size would have been restricted to one home site. Mr. Allison stated that if it was originally deeded as one lot and the condominium complex was aware of it being one lot. If it is as steep as what has been mentioned, he said he has reservations on dividing the lot there. Mr. Wolff asked Mr. Allison, “What is your reservation?” Mr. Allison said his reservations are if it was deeded as one lot. Ms. Nesbitt asked Mr. Duffy whether the restrictive covenants addresses dividing lots? Mr. Duffy stated that the homeowners association came in and approved that lot to be subdivided and it was done during a special resolution and was approved as such. Mr. Wolff stated to Mr. Duffy that your restrictive covenants has nothing to do with the Planning Board, so what you do internally is external to this Board. Chairman Pearce stated that the condominium association is entirely separate from the homeowners association. Chairman Pearce asked whether these lots have been sold to a third party. Mr. Duffy stated that they have been marketed, but presently, have not been sold. Mr. Allison stated that inside a subdivision when there is one lot, he has concerns that that lot could be divided and then instead of one lot with one house, you have two lots and two homes, which could present a safety issue. Mr. Carpenter stated that he could not find anything in the Ordinance that this project does not meet. Ms. Smith stated that the only thing we have in the Ordinance is regarding the thirty-foot rights-of-ways and how many lots they can subdivide, but this is not pertinent to that issue. Mr. Allison wanted to know how steep the driveway would be. Mr. Duffy stated that depending on the height of the foundation, it could be as level as the street, and so coming in laterally along the topography lines it could be a level driveway. Chairman Pearce made a motion that the Planning Board finds and concludes that the Master Plan and the Development Plan submitted for High Vista Country Club Revised Subdivision complies with the provisions of the Subdivision Ordinance except for those matters addressed in the technical comment section of Staff’s memo that have not been satisfied by the applicant; and I further move that such plan be approved subject to the following conditions: (1) that the name and address of the owner need to be placed on a revised master plan; (2) that the title of the plan must state “Master Plan” on a revised Master Plan; and (3) a project summary stating total project area, number of lots, and types of water and sewer systems must be shown on a revised Master Plan. Regarding the Development Plan comments to be satisfied: (1) a project summary must be shown on the Final Plat stating the number of lots, minimum & maximum lot size, type of water & sewer system, and the current zoning, which is Open Use; (2) the applicant needs to submit an Affidavit of Understanding of Farmland Preservation District since it is located in a Farmland Preservation District. The Final Plat should include a notation that the property is within ½ mile of land in a Farmland Preservation District; and (3) the proposed houses should be removed from the Final Plat and the Final Plat should have a note stating that it supercedes the plat previously recorded. Chairman Pearce stated that in addition to these conditions, the traffic island should be included on the Final Development Plan. Roger Wolff seconded the motion. All members voted in favor.
Proposed Zoning Map Amendment # R-01-02 to Rezone Land on Souther Road from RC to R-20 – Planning Staff. Mr. Freeman stated that Staff is requesting that the Planning Board include for consideration in the rezoning application R-06-01, which was submitted by Mr. Samuel R. Garland, Parcel # 19 which is owned by Tracy L. & Gregory A. Garland, which was erroneously excluded from consideration with the rezoning application R-06-01. Mr. Freeman stated that Staff recommends that the Henderson County Planning Board submit to the Henderson County Board of Commissioners a request and recommendation that Parcel # 19 be rezoned from RC to R-20. Staff feels that it is in keeping with your recommendation on R-06-01 and that this is just a correction to a Staff error. Roger Wolff made a motion to recommend to the Board of Commissioners a request to add Parcel # 19 to the rezoning application R-06-01 to rezone from RC to R-20. Mike Cooper seconded the motion. Mr. Moyer asked whether Staff is sure that there are no other property owners wanting to be included. Mr. Freeman stated that he has been in contact with all the property owners, except for one, whose telephone number has been disconnected. Walter Carpenter suggested that Staff check with the Tax Assessor’s office in case they might have some information that could be of help in this issue. Mr. Freeman stated that he has already done that, but he plans on going out to the address. Chairman Pearce feels that it would be appropriate for Staff to write to the people involved on those particular lots and give them a timetable for responding to you, and if you do not receive a response, then forward the request to the Commissioners. He said thirty days would be more than adequate or whatever the time frame you feel comfortable with. Mr. Freeman stated that he would look into Parcel 21, owned by James R. Suttles, but he asked that the Board approve the motion made regarding Parcel # 19 addition, because he feels obligated to carry this request through as soon as possible. All members voted in favor of the motion to include Parcel # 19 to the request, R-06-01.
Subcommittee Assignments and Meeting Dates. Ms. Smith reminded the Board members that there would be a subcommittee meeting regarding the Brookside Camp Road/Howard Gap Road zoning request on Thursday, February 28, 2002 at 5:00 p.m. Board members decided in order to officially approve the draft minutes of the Short Term Issues Subcommittee meeting on January 22, 2002; they would start the next regular scheduled Planning Board meeting at 6:55 p.m. and have it as the first item of the agenda.
Other Business. Mr. Wolff stated that in the memo that the County Engineer, Gary Tweed wrote to Ms. Smith regarding Oleta Falls he made a recommendation (which was enclosed in the Board members’ packets) stating, “that certifications by boring tests as to stone and pavement depths should be provided.” Board members agreed that because it is a private road, they feel that they do not have any jurisdiction, only with State Roads. Ms. Smith stated that there are certain things the Board can ask for. Mr. Carpenter stated that the road has to be built before they can sell or bond it. Mr. Carpenter stated in the Subdivision Ordinance, Section 170-21 E, in the last sentence it states, “the Subdivision Administrator may require that a professional engineer or surveyor certify on the final plat that no portion of the road(s) have grades that exceed maximum allowable grade as defined herein or submit a final as-built graded center line profile showing grade and alignment for all roads.” Mr. Carpenter said that really does not say anything pertinent to this issue. Chairman Pearce stated that Staff would look further into this issue. Mr. Wolff stated that his concern was that he found a multitude of field adjustments being made and was concerned that one of the adjustments might have been to the depth of the gravel and asphalt. Some Board members commented that this happens all the time. Chairman Pearce feels that it will become more of a homeowners association issue at this point, since it is a totally private road.
Mr. Moyer feels that the Planning Board needs to know the updates regarding the Comprehensive Plan and the Zoning Rewrite. He said that there is so many people on this Board that were not involved in either issue that he feels all Planning Board members need to be updated and would like to have some time set aside at one of the Planning Board meetings to discuss these issues. Chairman Pearce requested that this be on next month’s agenda under Staff Reports.
Adjournment. There being no further business, Roger Wolff made a motion to adjourn and Chairman Pearce seconded the motion. All members voted in favor. The meeting adjourned at 9:08 PM.
Tedd M. Pearce, Chairman Kathleen Scanlan, Secretary