June 18, 2002



The Henderson County Planning Board met for its regular meeting on Tuesday, June 18, 2002, at 7:00 p.m. in the Land Development Building, 101 East Allen Street, Hendersonville, NC.  Board members present were Tedd Pearce, Chairman, Roger Wolff, Paul Patterson, Todd Thompson, Jack Lynch, Mike Cooper, and Leon Allison.  Others present included Karen C. Smith, Planning Director, Melissa Peagler, Planner, Josh Freeman, Planner and Kathleen Scanlan, Secretary.  Board members Kevin Keefe and Walter Carpenter were absent.


Approval of Minutes.  Chairman Pearce presided over the meeting and called the meeting to order.  He asked for the approval of the May 21, 2002 minutes.  He mentioned that there was a small typographical error and subject to the error correction, the minutes can be approved.  Roger Wolff made a motion to approve the May 21, 2002 minutes as corrected and Jack Lynch seconded the motion.  All members voted in favor.  Ms. Smith stated that while Ms. Peagler was looking up something for a past agenda item, she discovered that there were two sections missing from the February, 2001 minutes.  Since Staff found that those sections were not in the minutes included in the Planning Board packets at the time of approval, Staff assumed that these two sections were not approved at that time.  Staff wanted to make sure a full set of minutes were approved for that meeting.  Ms. Smith said that Ms. Scanlan used her notes and the tape of that meeting to prepare the two sections that were missing for addition to the minutes of February 2001.  Roger Wolff made a motion to approve the addition to the February, 2001 minutes and Jack Lynch seconded the motion.  All members voted in favor.


Adjustment of Agenda.  Chairman Pearce suggested that Item 11, Howard Gap/Brookside Camp Road Area Zoning Study, be moved before Item 5 and that Item 8 and 9, dealing with the Orders for Carriage Park, moved after Item 6 in the interest of time.  Ms. Smith noted that the item in the Planning Board packets that was erroneously numbered “11” should have been numbered “7”.                                      .



Howard Gap/Brookside Camp Road Area Zoning Study – Recommendation by the Land Use/Zoning Study Subcommittee.   Chairman Pearce stated that the written report is not ready at this time.  He stated that if time had permitted, Staff and Subcommittee had intended to give an overview at tonight’s meeting.  He stated that the Subcommittee took the area that the Board had asked the Subcommittee to look up and expanded that area somewhat.  He said that the Subcommittee would like direction from the Planning Board and feels that some type of public input session would be appropriate prior to the Planning Board sending it to the Commissioners.  Chairman Pearce asked whether the Board would like the input session to be held by the Subcommittee or should a special meeting be called for the full Board to hear the input session.  Mr. Lynch felt that there should be an overview with the entire Board and then public input session after that.  Ms. Smith stated that preparation for a public input session would require several weeks' notice for mailings to go out or a newspaper article could be done to insure a quicker turnaround.  Chairman Pearce felt that an entire presentation combined with a public input session might be the best alternative.  Ms. Smith stated that the report would go out ahead of time to each Board member.  After discussion on scheduling a date and time, Chairman Pearce scheduled a Special Called Meeting to discuss this matter for July 9, 2002 at 7:00 p.m. at the Board of Commissioners Meeting Room.  It was determined that the report will be sent out one week before the scheduled meeting date. 


Ms. Smith stated that Commissioner Don Ward is present and has offered to open the Board of Commissioners Meeting Room in the County Administration Building at 100 North King Street to relocate the people that are here for Item 7, dealing with the rezoning request by Hollabrook Farms.  Chairman Pearce decided that the people who were present for Item 7 could move to the Commissioners Meeting Room and that the other items on the agenda would be discussed now and then the meeting would reconvene in the Commissioners Meeting Room to hear Item 7 on the rezoning issue.  He told those present they could follow Planner Josh Freeman to the Commissioners Meeting Room.  Chairman Pearce then continued on with the other agenda items. 


Chairman Pearce mentioned that this is Ms. Peagler’s last meeting with the Planning Board as she is leaving the Planning Department to move back to Tennessee, where her husband acquired a job at a company there recently.  Mr. Allison added that in addition to moving back to Tennessee, Ms. Peagler is going to become a mother.  Everyone wished her well.


Ms. Smith asked that Green River Ridges Subdivision be added to the agenda so that they will be able to get their improvement guarantee released.  All Board members agreed. 


Requests for Extensions of Development Plan Approval Glens of Aberdeen – Glade Holdings, Inc., Developer.   Ms. Peagler stated that on July 27, 1999 the Planning Board approved the Master and Development Plan for the Glens of Aberdeen.  A revised Master and Development Plan was approved on June 27, 2000.   The developers of the Glens of Aberdeen have completed a majority of the development; however, they did not complete a small section of the project and submit a Final Plat prior to the passing of its two-year approval period.  Luther Smith, agent for the developers, sent Tony Campano in his place to ask for an extension of the development plan approval for a period of one year because not all proposed improvements have been completed.  Ms. Peagler mentioned that a small section of the development including 400 feet of road that serves 3 units has not been completed at this time.  Ms. Peagler mentioned that the water and sewer are in place in the entire development. She stated that the 400-foot road section is still not completed and needs to have the final grading and paving to finish the project.  Roger Wolff made a motion to grant a one-year extension for the Glens of Aberdeen.  Jack Lynch seconded the motion and all members voted in favor. 


Requests for Extensions of Development Plan Approval - Eagle’s View – James Mark Bishop and Dianne Lea Bishop, Developers.  Ms. Peagler stated that on June 27, 2000 the Planning Board approved the Master and Development Plan for Eagle’s View Subdivision.     She stated that the developers of Eagle’s View did not complete the project and submit a Final Plat prior to the passing of its two-year approval period.  Stacy Rhodes asked for an extension of the Development Plan approval for a period of one year because the North Carolina Department of Transportation is widening Lamb Mountain Road where the entrance to Eagle’s View Subdivision was planned.  He stated that because of the widening project it was necessary for them to re-topo and re-engineer a drive that would be acceptable to the County’s standards.  Leon Allison made a motion to grant a one-year extension for Eagle’s View.  Roger Wolff seconded the motion and all members voted in favor.


Sunset Ridge (File # 01-M22) – Revised Combined Master and Development Plan Review (42 lots off Turnpike Road) – Jon Laughter, Agent for Dan L. Ducote Construction, Inc., Owners.   Ms. Peagler stated that Sunset Ridge is a revised Master and Development plan for a forty-two (42) lot residential subdivision on approximately 24.7 acres off Turnpike Road.  A portion of this property was submitted and approved as a seven (7) lot minor subdivision in 1993 and the remaining property received Planning Board approval for a major subdivision at the December 18, 2001 meeting of the Henderson County Planning Board.  She stated that the original plan showed two (2) entrances to the development coming off Turnpike Road.  The revised plans have eliminated one entrance (between lots 7R & 8) and added an additional cul-de-sac street, which was previously considered a utility easement.  She said that lots range in size from just over 1/3 of an acre to just under 1 acre and will be serviced by a public water system and individual septic systems.  Plans are being made however to provide a sanitary sewer system to the development.  Private covenants were submitted for the previously approved portion of Sunset Ridge and these will also be used for the revised development.  Ms. Peagler stated that Staff has reviewed the Combined Master and Development Plan for conformance with the Henderson County Subdivision Ordinance and stated that all requirements have been satisfied regarding the Master Plan.

Ms. Peagler stated that with regard to the Development Plan, the following items are contingent on approval:


1.                  Sedimentation and Erosion Control –Submission of a letter from NCDENR stating that a sedimentation and erosion control plan has been approved for Etowah Terrace Subdivision.  Etowah Terrace is the name of the minor subdivision previously approved and recorded.  The developer states this approval is for the minor subdivision has been revised to show the entire development.  NCDENR indicates that they have no plans for Sunset Ridge and that a Sedimentation and Erosion Control Plan will be required.  This confusion needs to be cleared.  Either a new letter from NCDENR or a copy of the approved plans showing the entire development needs to be submitted to the Planning Department.


2.                  Water Supply – General layout of proposed water lines should be shown on a revised Development Plan.  Also letters from the servicing agency should be provided indicating adequate supply is available to service the development (HCSO 170-20).


3.                  Sanitary Sewer – The supplied copy of restrictive covenants indicates sanitary sewer will be supplied to the lots within the development.  The plans indicate lots will be served by individual septic systems.  However site inspection shows sewer lines are being placed throughout the development.  Therefore, General layout of proposed sewer lines should be shown on a revised Development Plan.  Also letters from the servicing agency should be provided indicating adequate capacity is available to service the development

(HCSO 170-20).


4.                  Fire Hydrants – Any subdivision served by a public water system shall meet the respective county or municipalities’ minimum requirements for fire hydrant installation.  These hydrant locations should be shown on a revised development plan (HCSO 170-20 (c)).


5.                  Road Drainage – All road and drainage structures shall be constructed in accordance with NCDOT state road standards.  Development Plans shall show all such drainage culvert locations as well as length, diameter, and type of culvert (HCSO 170-21(D)).


6.                  Road Name Approval – Proposed road names shall be pre-approved by Henderson County in accordance with the Henderson County Property Address Ordinance.  The Property addressing office indicates there are some problems with the road names that are currently provided on the development plan (HCSO 170-23).


7.                  Utility Easements – The draft of restrictive covenants for this development references utility easements along the side and rear property lines of lots within the development.  These easements should be shown on a revised development plan (HCOS Appendix 5 Plan Details).


Ms. Peagler stated that the submittal is for approval of the Revised Combined Master and Development Plan for the subdivision.  Staff feels that with minor corrections the submittals would satisfactorily address the requirements of the Henderson County Subdivision Ordinance.  Staff would recommend approval of the Revised Combined Master and Development Plan subject to the above listed comments being addressed and revised plans being submitted prior to final plat approval. 


Roger Wolff moved that the Planning Board find and conclude that the Revised Combined Master and Development Plan submitted for Sunset Ridge 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: That the applicant satisfies comments 1, with a clarification on the issue addressed by Staff, and comments 2, through 7 under the Development Plan Technical comments in the staff memo.  Jack Lynch seconded the motion.  Mr. Paul Patterson was concerned with how the Board would handle South Summit Ridge Drive and Sunset Ridge Drive where it comes to a basic “90” with no turnaround.  Ms. Peagler stated that we have nothing in the Ordinance to preclude that from being unacceptable. Mr. Patterson stated that he felt it was an unusual situation.  All members voted in favor of the motion.


Review of Order Granting Approval of Development Parcel Application for a Planned Unit Development – Carriage Park, Section 9, Carriage Springs.  Ms. Peagler stated that at the May 21, 2002 Planning Board Meeting, a quasi-judicial hearing on an application for a Development parcel within Carriage Park known as Section 9, Carriage Springs.  She stated that following the hearing, the Planning Board asked that Staff prepare an order approving the project, subject to certain conditions.  She mentioned that a draft of such order is attached for the Planning Board’s consideration and approval.  Leon Allison made a motion to approve the draft order granting approval of Carriage Park, Section 9, Carriage Springs.  Jack Lynch seconded the motion and all members voted in favor.


Review of Order Granting Approval of Development Parcel Application for a Planned Unit Development – Carriage Park, Section 12, The Highlands of Carriage Park.  Ms. Peagler stated that at the May 21, 2002 Planning Board Meeting, a quasi-judicial hearing on an application for a Development parcel within Carriage Park known as Section 12, The Highlands of Carriage Park.  She stated that following the hearing, the Planning Board asked that Staff prepare an order approving the project, subject to certain conditions.  She mentioned that a draft of such order is attached for the Planning Board’s consideration and approval.  Jack Lynch made a motion to approve the draft order granting approval of Carriage Park, Section 12, The Highlands of Carriage Park.  Leon Allison seconded the motion and all members voted in favor.


Status Report on Proposed Amendments to the Subdivision Ordinance – Subdivision

Issues Subcommittee.  Chairman Pearce asked that Ms. Peagler get in contact with Walter Carpenter who chairs this Subcommittee to continue their work on the proposed amendments to the Subdivision Ordinance.  Mr. Pearce stated that the material that the Board members received for this meeting is for information only.


Green River Ridges, Phase II, Revised (96-M17)  Ms. Peagler stated that Green River Ridges is a revised master and development plan for an 86 lot residential subdivision on approximately 111.7 acres off Green River Road.  She stated that at the August 28, 2001 Planning Board meeting, the Planning Board approved a revised Development Plan for Phase II, Section 1.  The road was presented as a one-way road but, at the time the Henderson County Subdivision Ordinance did not have any provisions for a one-way road.  Although it was proposed as a one-way road, the cross-sections showed the road would be built to the standard of a local subdivision road.  The developers bonded their road until the Henderson County Board of Commissioners approved the one-way road amendments.  The new plan shows the entire loop of the one-way road and the cross-section now shows the road at the one-way standard of private roads.  She stated that there are no new lots proposed.  She stated that the Master and Development Plans have been reviewed for conformance with the Henderson County Subdivision Ordinance.  She stated that regarding the Master Plan, zoning should be changed on the Master Plan to state that the proposed subdivision is zoned Open Use.  The following comments regarding the Development Plan are contingent on approval:

  1. Zoning – Zoning should be changed to state that the property is zoned Open Use on a revised Development Plan or on the Final Plat.
  2. Intersections - When connecting roads a minimum sight distance of 70 feet along the existing road right-of-way and 10 feet along the proposed road right-of-way and 10 feet along the proposed road right-of-way is required.  The applicant should show the necessary sight triangle on a revised Development Plan or the Final Plat.
  3. Culverts and Drainage Plans – Culverts and drainage structures along proposed roads need to be designed to NCDOT standards.  Culvert locations, length, diameter and type should be shown on a revised Development Plan.
  4. Road Name Approval – Road names should be determined and submitted to the Property Addressing Office for approval.
  5. Road Cross-Section – The plan shows two road cross-sections but they both are for one-way standards.  One needs to show the road at two-way standards for the small section that remains a two-way road.  Those standards should meet or exceed those in the Henderson County Subdivision Ordinance.

Ms. Peagler stated that the new one-way road and Shoal Creek Road as proposed for this development are gravel surfaced.  She said that some might notice that grades in some instances reach 18%.  The development was originally approved under the Land Development Ordinance, which only required road grades not to exceed 18%.  Chairman Pearce stated that they are changing the road because they are now complying with the Ordinance.  Mr. Alexander stated that they have bonded a short section of the road to comply with the two-way standards, because the one-way standards were then not published.  He stated that they have built that portion of road and it is complete and waiting for release of that bond.  He said that they are asking for approval of the balance of the road and the entire road now is a one-way road under the current standards and it is constructed to the one-way standards.  Chairman Pearce asked for clarification, that the first part of the road is a one-way road.  Ms. Peagler stated that it be comes one-way (showing on a map) and then showed on the map the section where it is constructed as a two-way standard.  Mr. Wolff asked where is the area where it would have the grade issue?  Ms. Peagler stated that it would be right at the beginning of the development, which has already been approved.  Mr. Allison stated that personally he has no problems with the property site and made a motion that the Planning Board find and conclude that revised Master and Development Plan for Green River Ridges, Phase II, 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:  that the applicant satisfies 1 – 5 under the Development Plan technical comments.  Paul Patterson seconded the motion and all members voted in favor.


At this time, Jack Lynch made a motion to temporarily adjourn and move the Planning Board meeting to the Board of Commissioners Meeting Room to accommodate the quantity of people present for the review of the revised application by Hollabrook Farms, Inc.  Leon Allison seconded the motion and all members voted in favor.  Planning Staff posted a sign on the Land Development Building front door advising the public of the change in the meeting location. 


Chairman Pearce reopened the Planning Board meeting into session from the temporary adjournment from the other location.  The Planning Board meeting continued in the Board of Commissioners Meeting Room at 100 N. King Street. 


Review of Revised Application # R-04-01 to Rezone Approximately 170.26 Acres off Butler Bridge Road from OU to I-1 and R-10 (Referred by the Board of Commissioners) – William L. Alexander, Jr., Agent for Hollabrook Farms, Inc., Applicant.   Chairman Pearce stated that the Board is here to discuss the rezoning application R-04-01 revised.  Chairman Pearce stated that Mr. Alexander, Applicant’s agent has requested to speak last on this matter, so the Board will make arrangements for others to speak first.  Planner Josh Freeman spoke briefly on the revised rezoning application request.  He stated that on August 24, 2001, William Alexander, Jr., submitted a rezoning application, R-04-01 on behalf of Hollabrook Farms, requesting that the County rezone approximately 170.26 acres of land from an OU (Open Use) zoning district to an I-1 (light industrial) zoning district.  He stated that the subject tract is located on the south side of Butler Bridge Road between the intersection of Butler Bridge Road and Jeffress Road and is near Glenn Marlow Elementary School.  It has frontage on Butler Bridge Road, Jeffress Road and Valley View Road.  Mr. Freeman said that the Planning Board first considered this application on September 25, 2001 and it was referred to subcommittee.  On December 6, 2001, the subcommittee recommended on a 3-1 vote, that the full Planning Board submit a favorable recommendation on the application as submitted to the Board of Commissioners.  The Planning Board reviewed the application for the second time on December 18, 2001 and voted 5-3 to send a favorable recommendation to the Board of Commissioners on the application as submitted and then the Commissioners scheduled a hearing for February 4, 2002.  At the time of the hearing, the applicant requested that the application be tabled until a later date.  The applicant submitted a revision to the application on May 31, 2002 adding a High Density Residential (R-10) zoning district to the proposed rezoning.  Mr. Freeman said the Board of Commissioners referred the revised version back to the Planning Board for a recommendation and rescheduled a hearing regarding this application for July 8, 2002 at 7:00 p.m. in their meeting room.  Mr. Freeman stated that Staff’s position is that this application illustrates consistent County policy regarding the placement of educational facilities, generally and the relationship between educational facilities and their adjacent land uses; the placement of industrial facilities generally and the relationship between educational facilities and industrial land uses.    He stated that he has some revised maps showing the site and the proposed portions of Open Use, R-10 and I-1.  Chairman Pearce asked what is the depth of the residential piece?  Mr. Freeman stated that it is approximately 260 feet.  The application originally showed I-1 for the entire Hollabrook property, but the revision showed an area of R-10 zoning, approximately 260 feet going south on the property and coming off of Butler Bridge Road.  Chairman Pearce asked if any Board member has any questions for Mr. Freeman.  Mr. Wolff asked, “in OU (Open Use District), what is the density allowed for residential use?”  Mr. Freeman that there is none presently.  Mr. Allison stated that there is pretty much anything permitted in this district.  Mr. Freeman stated if it is not one of the 12 listed uses or any of the heavy industrial uses, then it is probably alright.  He stated that if it is one of the 12 listed uses or any of the heavy industrial uses, then they would have to go through a special use process.  He stated that some of the 12 listed uses would include:  adult establishments, concrete plants, asphalt plants, incinerators to mention a few.  Mr. Wolff stated that this zoning application is restricting themselves as to what they can do, because at this point they can use the land for residential purposes and put more or as many units as they can in R-10 and they can use it for light industrial purposes as in I-1 and for other things.  He said that the net result is that they are restricting the property or limiting the uses of the property if this request is approved.  Mr. Freeman stated that the R-10 District is a definite restriction over the OU (Open Use) district given the lot size and the restrictions of residential uses.  The I-1 is arguable whether it is really a restriction as the net effect of the population density around the site and the presence of the school brings I-1 and OU districts relatively even.   Mr. Freeman said that there is some negotiation there and some matter of opinion, but generally speaking, I-1 is restrictive, but given this site, it is hard to say precisely.  Mr. Wolff asked what is the density for R-10?  Mr. Freeman stated that it is 10,000 square feet per unit, but depends whether there is a duplex or triplex development.  Mr. Allison stated that the OU District would allow a mobile home park to go in; the only restrictions are the compliance with the Manufactured Home Park Ordinance.  Mr. Allison said that in the Mills River Study, the Committee recommended that the farms stay farmland and he could appreciate that, but if that farm is not viable to farm, how it can remain farmland if the farmer is not making a profit farming?   Mr. Lynch, who was a member of the Study Subcommittee, stated that they did not get into that topic; they only looked at potential development of the Mills River area without regard to economics.  Mr. Freeman stated that the Mills River Study recommended for this particular site a mixture of uses ranging from agricultural all the way up to commercial including residential and left open the possibility for light industrial in certain circumstances, but generally it swayed towards residential, commercial and agricultural uses.  He mentioned that the Comprehensive Land Use Plan for 1993 did specifically ask for agriculture and did not leave open necessarily any discussion of commercial or industrial and for that plan’s standpoint, the recommendation was for agricultural.  Chairman Pearce opened the public input session and asked that the public try to keep comments to three or four minutes.  He then asked Dr. Tom Burnham, Superintendent of Henderson County Public Schools to speak.


Dr. Tom Burnham, Superintendent of the Henderson County Public Schools.  Dr. Burnham stated that Melissa Mauer, Vice-Chairperson of the School Board, School Board member Ken Butcher and Mr. Joe Tamer, Principal of Glenn Marlow School all are present.  Dr. Burnham stated that he is happy that this application has been amended to accommodate a 260-foot buffer around the school, however, he would like to point out that it is the opinion of the School Board and the Administration that 260 feet does not provide an adequate buffer between the school and light industrial use.  He stated that on April 26, 2001, the School Board Chairman, Mr. Bazzle and he spoke to the County Commissioners as they were discussing Open Use planning.  He said that they had requested both verbally and in writing at that time to give consideration in creating ½ mile areas around all schools in the County which would limit construction and placement of adjoining facilities primarily to residential and light commercial use.  The goal was to provide a separation between schools and any other nearby occupants that would present environmental concerns, noise concerns or create any other type of distraction or health issue that might be a factor with students.  Dr. Burnham mentioned he discussed previously with Mr. Alexander, certain uses such as retail businesses, residential neighborhoods, businesses such as medical or professional, public or financial offices, personal services and possibly other uses in this area would be compatible with the schools and would probably be appropriate within the ½ mile, however, other light industrial uses such as truck terminals, storage plants, petroleum storage tanks and heavy industrial operations would not be compatible with schools.  He stated that respectively the School Board requests that an approximate ½ mile buffer be restricted to residential and light commercial at Glenn Marlow Elementary School and any other elementary schools in the county.  He stated that the alternate would be that within the approximate ½ mile boundary that light industrial be limited by agreement of the parties to businesses, professional services and other uses compatible with the schools.  Mr. Wolff stated that he heard some discussion that the School Board, in negotiating to buy the property where the school is now located, addressed, discussed and negotiated with the property owner restrictions on the use of the existing land.  He asked Dr. Burnham to give a history on that?  Dr. Burnham stated that he could not because he was not the Superintendent at the time and that for the most part, none of those board members are here at this time.  Dr. Burnham stated that he could not speak regarding that issue.


Patsy Brison Meldrum, Attorney with Roberts and Stevens and Representing the Henderson County Board of Public Education.    Ms. Meldrum stated that she wants to address some legal and procedural matters in this issue.  She stated that the first issue she would like to address is a procedural question and that is that the application before us is entitled an amendment, and under the Zoning Ordinance, Section 200-74 sets forth the application procedure, but does not allow for this type of procedure for amendment.  She stated that it requires starting the process all over again.  The applicants would need to submit a new application and pay new application fees, so therefore she stated she has a procedural question to raise.  Secondly, she stated that the legal test for rezoning under county ordinances in North Carolina is set forth in Statutes 153A-341 which requires the zoning be done in accordance with a Comprehensive Plan.  She stated that before this property can be rezoned or even zoned, it needs to follow the Comprehensive Land Use Plan.  She stated that as Mr. Freeman pointed out, the county’s Comprehensive Land Use Plan shows this area as agricultural use.  Ms. Meldrum stated that to even zone it Open Use is not in compliance with the Comprehensive Land Use Plan and certainly to zone it light industrial does not comply with the Plan.  She stated that there are cases that show that a rezoning that is not in compliance with the Comprehensive Land Use Plan is invalid.  In addition to the Land Use Plan, Figure 14 that shows it as agricultural use, there are several other provisions in the Comprehensive Land Use Plan that require consideration.  She referred to page 31 of the Comprehensive Land Use Plan, which describes the meaning of what industrial is and it states that “industrial uses should be carefully sited to avoid adversely affecting adjacent uses,” and that” sensitivity of the surrounding natural environment should also be considered when siting industrial sites.”  She noted that Section 5, Page 84, of the Comprehensive Land Use Plan, sets forth the goals of the Comprehensive Land Use Plan and the first goal is “Community Facility and Environmental Considerations.”  On page 84 it says, “the goal is to “Promote a diverse and balanced foundation of community facilities to meet the needs of the residents of Henderson County.”  She stated that one of the objectives is to “ensure the continued high quality of the local school systems.”  She said there is another goal appearing on page 86 of the Comprehensive Land Use Plan to “Promote quality industrial and commercial development.”  Among the objectives is one to “Establish designated areas for industrial development to prevent industries from locations that are inappropriate because of their proximity to homes or other uses.”  It continues, to “Ensure new industries located in areas where they will not degrade water quality, air quality or scenic amenities.”  She stated that in Section 6 of the Comprehensive Land Use Plan is the reference to Figure 14, which shows this area as agricultural and certainly not industrial.  She stated that the other Statute that she pointed out which is 153A-341 requires that you zone to lessen traffic congestion and to facilitate schools.  She stated that the earlier Staff report describes some of the infrastructure problems in this area.  She stated that the report notes that there is no current water or sewer service to this site.  She stated that if a sewer line is put into the area at the sewer plant can it stand the capacity of a new sewer line.  She stated that most important is the problem with the traffic in the area.  She stated that in the Staff report, Attachment 4A, the map shows that there are several ways to get to the site, one of which is by way of Butler Bridge Road and a two-lane road and a twisty, winding road.  She stated that another access is via Jeffress Road and again there are a number of places, especially in one part of the road, where there is a severe “hair-pin” turn, nearly a 90 degree turn, and a similar 90 degree turn appears at the intersection of Fanning Fields Road and Butler Bridge Road at the top of the map, as shown in the packet.  She then distributed some photographs she had taken of various areas showing these noted traffic hazard areas.  She noted the “hair-pin” turn and stated that she feels it would be very difficult for a tractor-trailer truck to negotiate such a turn.  She then stated that the other legal test in North Carolina for rezoning is that the infrastructure has to be compatible.  The traffic pattern in the area is not appropriate for industrial use, and there is no water and sewer service to this property, based on Staff’s report.  She stated that as Dr. Burnham mentioned, the list of uses allowed by light industrial are clearly not compatible with being located 260 feet away from the elementary school.  She stated that some of the distances from the school building to the site are as follows:  from the property line that is close to the entrance to the Glenn Marlow School, you are headed immediately around the mentioned “hair-pin” turn as described earlier.  She showed on a map the proposed buffer area, the sewer location and that there is, from the property line, only 160 feet to the school building.  She noted the location of the playground to the property line.  She noted that the deepest distance is approximately 500 feet from another property line. 


In closing, Ms. Meldrum stated that she would urge, as noted by the Planning Department Staff’s report, that the Planning Board give an unfavorable recommendation to the Board of Commissioners as she feels it fails the statutory test and is not compatible with the area and there is not adequate infrastructure to support industrial use.


Chairman Pearce stated that he was against this application from the first and so far he said there is nothing that he has heard to change his mind.  He said to be fair, even if that area was developed residentially, he does not feel the road is adequate to handle a large number of vehicles with the configuration of the road and he does not feel that it really can handle school buses.  He believes those are valid points that have been raised.  Mr. Allison referenced the part Ms. Meldrum mentioned about not being able to amend the application.  Technically they brought the application, they withdrew it from the Commissioners consideration.  Mr. Allison stated that regarding the Comprehensive Land Use Plan, it is a proposed document and not law.  Chairman Pearce stated that these topics need to be discussed with the County Attorney and asked Ms. Smith to address the Board.  Ms. Smith stated that the Plan Ms. Meldrum has referred to is the County’s 1993 Comprehensive Land Use Plan, which the Board of Commissioners accepted, but was legally considered by the County Attorney to be adopted.  At that time it was directed that the Departments use this Plan as the Land Use Plan.  She mentioned that Staff is in the midst of working on a Comprehensive County Plan and that the Board of Commissioners had adopted the Countywide Land Use Regulation Guide, which set out plans for Open Use zoning, rewriting the Zoning Ordinance and completing other zoning amendments.  With regard to the Mills River Study, it is a small area land use plan and that while it has not been adopted, the Commissioners asked that it become a component of the County Comprehensive Plan.  The County Wide Land Use Regulation Guide was also adopted in 1999 and was a plan as far as the County was concerned.  Chairman Pearce asked which plans Figure 14 that Ms. Meldrum used, was from?  Ms. Meldrum stated that it was from the Comprehensive Land Use Plan of 1993.  Mr. Wolff asked why would it be appropriate to use agricultural land for school but not appropriate to use agricultural land for any other use?  Ms. Meldrum stated that land for school use is a compatible use with agricultural use.  Residential, rural, and agricultural all fit together and a lot of the schools have been set out in rural areas, because that is where the children are, but certainly not industrial use is compatible with that.  Mr. Wolff stated that it really concerns him that we have young people driving school buses and Ms. Meldrum has mentioned many times the steep topography, the “hair-pin” curves, the severe curves and the road conditions, so he trusts that the School Board is giving adequate consideration for training the school bus drivers.  Ms. Meldrum stated that of course they are, but it is certainly not the case of having young school bus drivers.  She stated that if you look at the approach to the school, there is the one “hair-pin” turn just before the school and as part of the development of the school, an extra turn lane was added to take care of traffic concerns.  She stated that when you think of tractor trailer trucks making that “hair-pin” turn on the approach to the school area and the other accesses to the industrial site, not just this one that goes to the school, those other accesses have severe curves and “hair-pin” turns, but the one just before the entrance to the school is very well marked and there are many signs indicating a school zone and speed limit and other warning signs.  Mr. Lynch stated that he knows of no proposal in the Transportation Improvement Plan to improve that road.  That means that within the next seven years they will not improve that road.  Ms. Meldrum added that there are no improvements for industrial growth in that area.  Chairman Pearce asked about the amendment of the application issue and  whether or not it is possible to amend an application and what they can amend.  Ms. Smith stated that she had consulted with Mr. Alexander and with either the Assistant County Attorney or County Attorney at the time to discuss the options and this was one of the options they understood to be available.  She said that at the public hearing, the Commissioners had tabled this item until the applicants could come up with another option on the plan.  Chairman Pearce asked if, prior to approval of the application by the Planning Board, are they able to amend the application without a new application fee?  Ms. Smith stated that they have allowed that in the past.  Chairman Pearce then stated, have we ever had the situation where an application has been voted on and passed on to the Board of Commissioners by the Planning Board and then subsequently have a change?  Ms. Smith stated she believes there have been situations where the Board consider it as a substantial change and referred it back to the Planning Board because it has to have a recommendation on the application, and that is what she understood the Board did in this instance.  Chairman Pearce stated that when the Board of Commissioners refer it back to the Planning Board, does that override any necessity for a new application fees?  Ms. Smith stated that she understands it to be an amendment to their prior application and not a new application.  Chairman Pearce asked if Section 153A-341, was of The State zoning statutes?  Ms. Smith stated that it was a State statute that says that zoning must be done in accordance with a Plan.  Chairman Pearce asked if legal counsel says we have a comprehensive plan?  Ms. Smith stated that we do and also has said that the plan that is developed as you go through a rezoning can also be considered as part of the plan and also what the Board has done regarding the Mills River Study and the Countywide Regulation Guide.  They are all plans the County has to consider for this zoning.  The Board can consult the Mills River Study as a guide.  Ms. Smith stated that with regard to Open Use Zoning, it was adopted and is a district in the Henderson County Zoning Ordinance.  Mr. Allison said that if Open Use is a zoning district and Ms. Meldrum says that we can not zone this, then did the County zone all areas Open Use that were unzoned illegally?  Ms. Smith stated that the Board of Commissioners held a public hearing according to the statutes for zoning.  They did notice and held a public hearing and the zoning was based on the Countywide Land Use Regulation Guide and also the Land Use Plan for 1993 which suggested that the County look at alternatives to traditional zoning, so that was another basis for it.  Ms. Smith stated that the appeal period has also passed at this point for Open Use.  After some other questions Ms. Smith stated that the legal department of the County should answer these and she did not feel comfortable answering them.  Chairman Pearce stated that since the appeal period has passed, he feels that there is not an issue whether Open Use is in effect, so he feels that the Board should proceed with the fact that Open Use is the case for this area.  Chairman Pearce then continued with the public input and asked Henry Behrens to speak.


Henry Behrens, who resides in the Glens of Aberdeen subdivision, and works for a rescue company, was concerned with traffic hazards dealing with heavy industrial trucks and tractor-trailer trucks in relation to the school and children in the area.  He does not feel that the road can handle industrial use.


Bill Johnston, who is a dairy farmer who lives in the Mills River valley, stated that he is a strong advocate for property owner’s rights.  He stated that on the whole south boundary of the applicant’s tract of land, he owns the adjoining property.  He stated that his home and another tract of land are less than one quarter of a mile southwest of the applicant’s land. (He showed his property on one of Staff’s maps of the area).  Mr. Johnston stated that if people want the land to stay the way it is, they should buy everything they can see and then you can insure that it will remain the same.  He stated that agriculture in the United States has never been a very profitable business, the only money agricultural people have is when they retire and sell their property.  He stated that Hollabrook Farms has been a dairy farm since 1964, but that family should have a right to sell their land.  He stated that the school should have purchased this property if they did not want anything around the school.  Mr. Johnston added that if the roads are that bad, why did the Board of Education build a school in that area.  He stated that his family owns land bordering over 1/3 of the applicant’s property and have no objection to the petition for a light industrial zone.

Kevin Barnett, stated that he is a resident in the area that is under question.  He stated that from the Staff report that was presented as part of some of the supporting material, the road is not sufficient to handle the traffic if this area were zoned as light industrial (I-1).  Additionally, regarding the sewer improvements for that area, the treatment plant cannot handle the 24-inch trunkline at full capacity.  He stated that by zoning this area and developing it as light industrial development could tax the wastewater infrastructure of the area and prohibit other types of development anywhere within the area served by that wastewater treatment plant.  The act of zoning this land for light industrial, which does exclude residential outside of the R-10 district adjacent to the school, would be inconsistent with the current and past use of the property and would tax the current infrastructure that is either in place or is currently being developed.  He stated that based on that, he would ask the Planning Board to deny this application request.  Chairman Pearce asks what the basis was regarding his comment on the wastewater treatment plant’s ability to handle this proposed facility.  Mr. Barnett stated that it came from the Planning Staff report, and additionally the wastewater records are public information from the Division of Water Quality and the capacity of the 24-inch line is a simple calculation based on length and volume and he stated he could provide that information quite quickly.  Chairman Pearce asked Staff, what the impact of this property being industrial, compared to this property being residential would be on sewer system?  Mr. Freeman stated that he was not authorized to answer that question, but stated that the County Engineer, Gary Tweed, stated that the 24 inch sewer line as planned, if it were used to its full capacity, it would be likely impossible that the sewer plant that it feeds into could not handle that load.  He stated that the County Engineer’s statement is not addressing one particular piece of property, but assumes a maximum build-up on that sewer line, which means all the adjacent properties that are attached to that line would take place.  Mr. Cooper stated that he feels this 24-inch line could not possibly be tapped out with this particular piece of property.  He feels it would be physically impossible, even if it was built residential or industrial.  He stated that there is a 24-inch water main that passes this property with two 6-inch taps and mentioned that his company put it in and knows that they are there.  Mr. Wolff questioned whether it was the Planning Board’s responsibility or authority to consider utilities because they are making speculative assumptions and he feels it is not germane to the zoning request. Chairman Pearce stated that to some degree all things probably are germane because as the Board looks at a request, he feels that the Board has a right to look at property rights, adjacent properties, roads and as many factors as possible to come to a logical conclusion to make a recommendation to the Board of Commissioners.  He feels that the Board needs to use their best judgment based upon the information that is available about a particular tract.  Mr. Barnett added that regarding the 24-inch line, if only the wastewater generated from properties was used to calculate the capacity, there has been a large component left out, because no sewer line is totally water tight, it will have I & I, a clay packed soil and a clay base in the area that will conduct the water to the freest conduit, so there will be additional flow into that line that is wastewater generated from the property, but will contribute to the total capacity of the line.  He added that he is a wastewater inspector for the State, so he feels that he knows what happens to sewer lines when they lay in the ground.


Sandra Watkins,  last year’s PTO President of Glenn Marlow Elementary School, stated that she is in favor of private land rights but the precedent has already been set on how we protect our schools from development and businesses that would negatively impact our schools and children.  She feels that the application should be denied and that the ½ mile buffer for all schools in Henderson County previously requested is reasonable and should be granted. 


Mr. Allison stated that although he respects the school system, because their property is designated Open Use, the property owners could put just about anything on the property now and the County would have no control over it because of it being in the Open Use zoning district.  He ask whether Dr. Burnham could let the Board know what use he would like to see developed on that property?  Chairman Pearce stated that he believes he made some comments to that and we might ask him later regarding your question.  Mr. Allison stated that he feels that the property has to be used in some way. 


David Nantz, who stated that he lives in the Glens of Aberdeen subdivision, felt that there was poor notification of this meeting and feels that it is part of the confusion with the people here tonight.  Ms. Smith stated that the night the Board of Commissioners cancelled, they mentioned that the residents would have notice of the hearing and that is what is required under the Ordinance is to sent notices out for the hearing.  She stated that Staff is in the midst of preparing notices, because that hearing has already been set for July 8, 2002 at 7:00 p.m. and is scheduled for this board room, during the Board’s regular meeting.  She stated that all the owners who received notices last time will receive them again and notification will also be in the newspaper and will also be posted.  Mr. Nantz mentioned that in the Staff’s report it states that the school is the only party affected in this case, but he would like that corrected as it is not the case.  He also mentioned that the hearing was cancelled because of too many people who actually came to that particular meeting and he added that this disturbed him greatly because it starts to give the appearance that someone is trying to hide something.  Chairman Pearce stated that it was cancelled at the request of the applicant. Mr. Nantz stated that that is correct, but he feels that the crowd of people affected the applicant’s decision.  Mr. Nantz asked how the Board sees the area, as Mills River or Fletcher?  Chairman Pearce stated that the Planning Board views this as Mills River.  Mr. Nantz said that he bought in the area because it was nice and there was a school there and the homeowners have an expectation that the County is going to protect areas around schools.  He said he gave the Commissioners a letter on February 4, 2002 and he repeated a few points from it, including questioning why it could not be amended to prohibit a few more uses and expressing concern over comments by Commissioner Ward in the newspaper on February 4, 2002.


Mr. Bill Alexander, Applicant’s Agent.    Mr. Alexander stated that this matter was brought to the Planning Board first on an application for rezoning from Open Use to Light Industrial.  He stated for Mr. Nantz that the hearing before the Board of Commissioners the last time was cancelled by his own request.  He stated that on that particular night there were a number of people concerned over a biker’s rally and there were multiple folks present both for and against this zoning application.  He stated that as a result principally of discussions with various people in different positions in the County as well as a discussion with the parents and other concerned citizens who were present on the night of the Commissioners’ hearing, his client, Mr. John Hollaman and Ms. Myra Wood, who are principals and general partners of Hollabrook Farms, chose to ask the Board of Commissioners to table its application pending consideration of an alternative that might address the concerns of those individuals.  He stated that his clients, Mr. Hollaman and Ms. Wood, who have resided around this property, know this property better than anyone, except for Mr. Johnston, who is the adjacent property owner.  He said they know change and they also know that agriculture in this area is no longer a viable endeavor for them.  Mr. Alexander stated that his clients are motivated, not just by their own profit, but by their concern to achieve the highest and best use of their property in conjunction with the highest and best use to Henderson County and certainly in conjunction with adequate regard to safety and well-being of children who might be attending Glenn Marlow school.  He stated that in that regard, he pointed out that the mother of his clients was a school teacher in the Henderson County school system and taught elementary school over 20 years.  Mr. John Hollaman, the clients’ father, in addition to being a dairy farmer and being the County’s agricultural agent, was also a high school teacher, so education, the needs of education and consideration of educational issues are well within the principles of this family.  He stated for that reason, in view of stated opposition at the last Commissioners meeting, he was asked by the Hollaman family to consider or reconsider a suggestion that was raised by Chairman Pearce to the Subcommittee in which Mr. Pearce had suggested that perhaps a step-down zone could be considered in which a buffer could be created to eliminate any potential issue relative to the school.  He said that they do not believe light industrial uses will jeopardize school children.  He said that they believe the school tract has been purchased with sufficient size that if the School Board applied or had applied adequate planning to their building or locations of the playground and other things within this facility that there would be no danger of light industry being located on the adjoining properties. Recognizing the expressed concerns of some members of the public, his clients chose to follow Chairman Pearce’s suggestion and establish, voluntarily, a step-down zone.  He stated that the reason it was not considered earlier was because the Planning Board entity was not allowed by law to require a step-down zoning.  The Planning Board can not give contingent zoning approval.  He said they have presented a proposal with an R-10 District, 260 feet in width, as a residential buffer area in part because of the comment made by Dr. Burnham that he would like to see, at the least, a residential buffer zone created around Glenn Marlow School.  Mr. Alexander stated that the property was then surveyed to create a residential subdivision in the R-10 area. (He showed a plat showing a proposed subdivision).  He noted that designations on this plat mean nothing, but the request is for R-10 zoning.  He stated that the 260 foot buffer established is almost a football field length of ground totally outside the perimeter boundary of the school in which no industrial application can be made.  He stated that there is a severe limitation on that 11.26 acres by his clients and a significant concession by them to issues of safety when his clients don’t even believe that those issues of safety truly exist. 


Mr. Alexander then addressed Ms. Meldrum’s comments.  He stated that she first referred to the issues of procedure and they probably are ultimately for the courts to determine.  He did note that Ms. Smith did confer with the County Attorney and agreed with the County Attorney that it was appropriate to bring it back before the Board of Commissioners and to refer it back to the Planning Board.  He said that there has been nothing to hide and the hearings are all public hearings and the July 8, 2002 public hearing has been announced.  He stated that with regard to the traffic issues, that if the Henderson County school system has problems with traffic on Butler Bridge Road, Jeffress Road, or Valley View Road, that the school system needs to bring them to the Board of Commissioners, the Board of Education and also to the N.C. Department of Transportation and get the roads widened and improved.  He said that anyone who lives in that area knows that tractor trailer trucks and farm trucks traverse that road every day of the week.  He stated that obviously the School Board, when they contracted to buy this property, did not believe that the quoted “hair-pin” turn below the school was of such significance as to endanger school bus loads full of children, because they send school bus loads of children on those same twisting, narrow roads every day.  He stated that if that issue needs to be addressed, it should be addressed, but it should not be used as a reason within this context to disapprove this application for an industrial zone.  He stated that Ms. Meldrum referred back to the 1993 Comprehensive Land Use Plan and said that the County made a major step forward in 2001 when it enacting an Open Use zoning law.  He said everyone knew that Open Use zoning was a stop gap zoning designed to bring the County into some control until it could finalize a new Comprehensive Land Use Plan and apply a countywide zoning ordinance.  He stated that the fact is, that today Open Use zoning applies to the property, which is the subject of this application.  He said today any use may be made of that property by his clients except for the specific uses designated in the Ordinance.  He said that there is an existing separate provision within the County’s ordinance that prevents both in the Open Use district and in every other district of the County zoning, certain uses within a ½ mile radius of schools or churches.  He said that the School Board has reiterated its position to the Planning Board to consider its previously stated position from April, 2001 to the County Commissioners that they needed a ½ mile residential radius around schools, but he said that they are not a legislative body and neither is the Planning Board.  He stated that the Board of Commissioners is a legislative body and it acted on the School Board’s recommendation by rejecting it and instead enacting its ½ mile restriction on certain specific uses in all districts and he is under the impression that this is how the Commissioners have already addressed that issue and he suggested that the Planning Board accept that issue.  He stated that the Comprehensive Land Use Plan can be a combination of various actions that the County has taken and Open Use zoning was certainly one of those actions.  He stated that the real facts are what his clients are requesting regarding the industrial application of this property.  He said as this property sits at present, his clients could put 850 single-family residences there and if they went for another use, such as multi-family dwellings, they could put more than 1700 single-family units on this property and this would certainly create much more traffic and crime next to a school then light industrial uses.  Light industrial uses create workers for a certain time and then they go home leaving large areas of property unoccupied during the evening hours.  He said that in the Comprehensive Plan the Mills River corridor has been identified in this County by the Committee of 100, and by the Mills River Study as being the most feasible area for industrial development in this County, which was the basis of the County Commissioners’ unanimous approval of heavy industrial zoning for the Hollabrook tract on the other side of the river from this tract.  The present utilities should be considered and there is a major water line through this property at present.  He mentioned that as a result of the Hollaman's easement negotiations for that line, these are two six-inch taps on their property that were installed for the specific purpose of putting a looped waterline through this property.  One of those taps lies within feet of the school’s boundary on Butler Bridge Road.  In addition, the Board of Commissioners has already authorized more than $ 100,000.00 as contributions to the studies to get the sewer line constructed through there.  He stated that he has been assured that the sewer line has the capacity to carry Mills River and the Mills River corridor as an industrial and residential area for many years.  He stated that in considering the availability utilities and considering the proximity of a major airport within less than 2 miles, and the proximity of the interstate, and the four-lane State highway (NC 280), all of these issues lead this property towards industrial development.  He noted that a company that has been retained by the City of Asheville, Lockwood Greene, and has identified this specific property in conjunction with one other property as one of the top industrial sites in all of Western North Carolina.  With regard to towers, Mr. Alexander noted that towers are not allowed on this property, pending a separate tower ordinance, which they could not satisfy.  With regard to racetracks, under this requested application, racetracks are not allowed on this property and there will be none built.  Regarding heavy industry, he said the heaviest industry he could find in the light industry category is machining and assembly facilities.  He asked that the Planning Board not table action on this request and to send it to the Board of Commissioners either with approval or without and in making that final consideration, he pointed out some background information.  He stated that in February, 1997, the Henderson County Board of Public Education contracted by a purchase option agreement with the Hollaman family of Hollabrook Farms, for the purchase of the school property. Many years prior to that the Hollaman family had plans to market this property as an industrial property.  He said that he was personally involved in and delivered documents to the School Board representatives that clearly stated the intention of the Hollaman family to apply all of the adjoining property around the proposed Glenn Marlow School property to industrial use.  He said that the School Board was aware of that and the School Board bought the property.  He said that in 1997 when they contracted to buy the property, this property was not zoned at all and anything could have been done on the property and the School Board chose to buy it.  He said that the School Board solicited this  property from the Hollaman family and had identified this site and had it surveyed as the site they wanted for the school before ever approaching the Hollaman family about its purchase.  The School Board then threatened to condemn the property if the Hollaman family did not sell the property to them.  He noted that the playground has been constructed next to the fence but said he stated that they had an option to purchase an additional tract of land along the southern boundary of this property, approximately 2 acres, after the original Glenn Marlow School site was purchased, but the School Board did not exercise this option.  Those two acres would go almost to the crest of the hill behind the school, so what has been done by this amended application, is that the clients have essentially given that property to the School Board and are willing by this residential buffer to let the School Board have the benefits of that.  He stated that the 260 feet carries the residential buffer to the crest of the hill behind the school.  It takes in most of the visual barrier except at the entrance of the school.  He closed by saying this is a significant concession and for all the reasons the Planning Board approved the original application, he asked that the Planning Board recommend to the Board of Commissioners the approval of this amended application. 


Mr. Roger Wolff asked when did the Committee of 100 or others go on record as saying this is a great industrial site?  Mr. Alexander stated that the Committee of 100 came out with their recommendation after the Planning Board meeting approving the application the last time but before the Commissioners’ hearing.  Chairman Pearce asked Mr. Freeman, how many acres of ground did the Committee of 100 recommend for industrial sites in Henderson County at that time?  Mr. Freeman stated that he can not provide acreage but can show the Board the relationship of the recommendations to the property.  He noted on a map that the Committee of 100 recommended the areas shaded in red and the area showed in gray is the applicant’s property.  Mr. Wolff asked whether the Board needs to gather findings of fact.  Ms. Smith indicated that this is not a quasi-judicial hearing, but that any justification that can be given to Staff to support the Planning Board’s recommendations is helpful.  Mr. Allison asked Dr. Burnham what his view was of a potential 1700 home sites on the property as indicated by Mr. Alexander?  Dr. Burnham stated that the Planning Board can not approve contingent zone issues, so therefore he feels that this is unrealistic.  He said that he feels if the property owners thought that the greatest income to be derived from this property would be residential, there would be a different discussion now, but he feels they are having this discussion because the applicants feel the greatest amount of income that can be derived in the quickest manner comes from industrial.  He questioned why they were here if they are allowed do almost anything now in Open Use District.  In order to proceed with the kinds of approval they need with the companies that would come in there, they have to have industrial zoning and that is the reason for the discussion tonight.  Mr. Allison asked if the School Board is taking the position that they would rather see the property zoned Open Use than industrial?  Dr. Burnham stated that his position is the official position of the School Board and that it has asked for a ½ mile buffer around schools limited to residential and light commercial.  He stated that he had proposed in the alternative, that there be joint agreements between the parties involved that under light commercial, it be limited to retail businesses, professional offices and other uses that would be compatible with schools.  Mr. Allison asked Dr. Burnham, if on behalf of the School Board, he would take the position to leave the property OU (Open Use) and not zone it light industrial?  Dr. Burnham stated that he did not take the position as that, but stated that his position on behalf the School Board is that there be ½ mile buffers around schools limited to residential and light commercial and in the alternative, that there be joint agreements of the parties that anything within that ½ mile buffer would be limited to retail business, professional office space and other things that would be compatible with schools.  He stated that he could not speak to Open Use.  Mr. Allison stated that the only choices the Planning Board has is to either deny the request and leave it in the Open Use District with all these uses that they can immediately start doing or go to light industrial, a step down and stop some of the uses that can be used in the area.  He asked Dr. Burnham, what would the School Board want the Board to do.  Dr. Burnham stated that he gave the only position that he is authorized to give on behalf of the School Board.  He then said that his request is to deny the approval of the application at this time and send it back to the parties for further discussion and to try to resolve it in a manner that is compatible with the uses of the school.  Mr. Wolff stated that the counsel for the applicant brought out that there was threat of condemnation and that the School Board was aware of the planned industrial development of that property at the time of acquisition.  Dr. Burnham stated that there is threat of condemnation on every piece of property that the School Board purchases, including right-of-ways for water, sewer and everything else.  He added that is the only way they can proceed to, in most cases, purchase properties and right-of-ways are through condemnation.  Mr. Wolff asked whether he would deny that there was awareness on the part of the School Board at that time that industrial use was planned for the rest of the property.  Dr. Burnham stated that he was not here at the time and cannot speak to that. 

Chairman Pearce then ask for each Board member’s comments, if any, on this matter. 


Leon Allison.  He stated that a farmer needs to be able to sell his property, but on the other hand, the applicants would have a more valuable piece of property as Open Use than they would have as light industrial because they are freer to do what they want.  He feels that having it light industrial is a step-down, so he feels that the applicants are “shooting themselves in the foot” by asking for light industrial zoning.


Paul Patterson.  No comment.


Roger Wolff.  He stated that he voted in favor of the applicant’s request in the past and there is nothing that he has heard now to make him change his position.  In fact, he said, everything he has heard at present makes him stronger in support of the applicant’s request for rezoning.  There is evidence that the School Board was aware of the planned industrial use and evidence that the School Board had the option to acquire additional property and chose not to and with that in mind he does not think that the School Board or the people in the community can now come and say we want to condemn the use that the applicant wishes to make of it.  He said that there has been discussion of profits and there has been a tone that profit is a “dirty word.”  He sees strong evidence that the applicant has made concessions and has converted about 11 or 12 acres from industrial to residential.  He stated that as he reads the Ordinance, if the Planning Board recommends to the Board of Commissioners that they grant the residential use and the light industrial use requested, there is nothing new that the applicant can do with that property that they cannot do today.  They are not going to get one new usage if the County Commissioners give them their approval, as a matter of fact, they will be giving up a lot uses.  He said that in his opinion, if this property owner was coming and asking that they be able to do a lot of new things on this property, then he feels the Planning Board would have potentially other issues that would have to be considered, but that is not the case.  They are saying that they are willing to give up uses that they presently have today.  He understands the School Board’s position and that as parents, we want our children to have a good and safe school.  He said that we have a dilemma that the places for industrial use are also the best place for school use and that is a known fact.  He stated, in his opinion, that just because the School Board got there first, doesn’t mean that they can take away the rest of the property from the land owner and restrict his use.  He stated that new people moving in should not expect the landowner will not make any changes.  There have been many documents in the past given and in one of the documents, there was some discussion about whether or not the School Board would restrict the use of the remaining land and the School Board, he believes, chose not to make that restriction.  He said that traffic is an issue, but it was an issue when the school moved there and is still an issue.  There are other entities such as the Department of Transportation that must handle those.  He said that people in the past have complained about noise and that they do not want racetracks or that they do not want mobile home parks or whatever it may be that they do not want.  This is an area that is now close to a airport that produces noise and an industrial district seems to be a very viable use for that property and therefore he supports a recommendation to the Board of Commissioners on this application. 


Tedd Pearce.  He asks the people in the audience who were for and against this application (there seemed to be more against than for).  He said that zoning is an effective tool and that the people have a legislative right in North Carolina to zone property.  He believes it is the responsibility of local governments to look at zoning and use zoning as an effective tool to control growth, commercial, industrial and residential properties, etc.   He said it is not considered the taking of land to do so and often times in our county the reluctance to put zoning into place has actually served to our detriment.  Zoning has not been properly regarded as a tool in land planning in Henderson County.  The Open Use District presently, in his opinion, is a stop-gap method of beginning the zoning process until the plans that are presently being worked on regarding zoning, and a comprehensive land use are put into place.  He thinks that the Open Use District was never meant or expected to be a catch-all and a final solution or the Board of Commissioners would not be working on many of things they are working on.  He said he believes the owner of the property feels that in the not too distant future, there will be zoning put on that land by local government and it might be less favorable than what they have now.  Regarding buffering, whether a ½ mile or not, he believes that more buffering would have made this application previously and today more open to consideration, but he does not consider 260 feet much of a buffer.  He does not believe that the right to profit on a piece of property is being taken away if it is not given a recommendation of light industrial.  There are many potential uses and he believes that there should be a larger buffer than 260 feet around a school property.  He believes that the purpose of zoning is to look after the public well-being and he is very much against this particular rezoning application.


Jack Lynch.  He stated that he has looked at the chart that has been provided and has looked at light industrial and realizes that it excludes any single-family residential at all. There will not be any single-family residential houses in that area if the Planning Board goes with I-1 (Light Industrial).  He said he voted against the application the last time for that reason.  He stated that he does not look at this issue as an issue between the School Board and the applicant.  He looks at the vision as to what does the Board expect out that area in the future.  He stated that he feels we are tending toward walkable areas, and self-sufficient communities with schools in the future.  He said that he still maintains the same opinion and that he will vote against the application. 


Todd Thompson.  He said that being an ex-farmer he knows that these people have no retirement.  He further stated regarding the road problem that Henderson County should try to think about building new roads out there for the safety of the children because the roads are terrible.  He also stated that in his opinion, the Clear Creek school, which is built on a gateway path to a rock quarry, is in the worst location the School Board could have chosen because there is no way to get to the school without passing dump trucks or Vulcan materials.  He asked what kind of judgment does the School Board have in selecting school sites?  He stated that he voted the last time in favor and will vote in favor this time for the application request.  He said that if there are any more schools being built in Henderson County, they need their own transportation board. 


Mike Cooper.  He said he was one of the members that voted in favor of the rezoning application previously and says he knows a lot about the history of the property.  He said his company has put in the sewer line across to that project and the new major transmission line from the new Asheville/Buncombe Water Authority plant that feeds Buncombe county and that there is plenty of water on that side.  As far as the 24-inch sewer main, he does not feel that anyone will ever see that main overcome because the main that is serving the Broadpointe Park is an 8-inch main that the school is using as  well as a lot of industry.  He added that this 24-inch will hold a lot of capacity so the issue of not having the infrastructure as far as the water and sewer capacity, it simply is not an issue.  He added, “Do I feel if it is right to condemn a person’s piece of property when you build a school?   I think it is an injustice to condemn a ½ mile radius and because it is the School Board, they have condemnation rights and can take land, like it or not.”  He said he still is in favor of the application and feels that the County needs some industrial sites and that is one of the problems that the Lockwood Greene report identified is that Henderson County has a need for more economical industrial sites, which he hopes that this property will turn into.  He said we do need some industry to come into the county, as we are losing a lot of industry and we are losing jobs.  He said that he respects the landowners’ concerns.  He also stated that he does feel that the zoning makes it a more marketable piece of property for these applicants, because it would become a certifiable industrial site and a more valuable piece of property.  He said that he is still in favor of the application. 


Mr. Wolff pointed out that a ½ mile radius encompasses approximately five hundred acres.  He said that he has a problem with a school having the right to control 500 acres.  


Mr. Cooper made a motion to make a favorable recommendation to the Board of Commissioners regarding application R-04-01 as amended and presented.  Roger Wolff seconded the motion.  The motion carried on a 5 to 2 vote.  Mike Cooper, Roger Wolff, Paul Patterson, Todd Thompson, and Leon Allison voted in favor.  Tedd Pearce and Jack Lynch were opposed.   



Adjournment.  There being no further business, Roger Wolff made a motion to adjourn and Paul Patterson seconded the motion.  All members voted in favor.  The meeting adjourned at 9:50 PM.




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Tedd M. Pearce, Chairman                                           Kathleen Scanlan, Secretary