August 20, 2002



The Henderson County Planning Board met for its regular meeting on Tuesday, August 20, 2002, at 7:00 p.m. in the Land Development Building, 101 East Allen Street, Hendersonville, NC.  Board members present were Tedd Pearce, Chairman, Vice-Chairman Walter Carpenter, Mike Cooper, Kevin Keefe, Leon Allison, Paul Patterson, Jack Lynch, Todd Thompson, and Roger Wolff.  Others present included Lee Smith, Planner; Josh Freeman, Planner; Derrick Cook, Planner; Dan Gurley, Zoning Administrator; Karen C. Smith, Planning Director; and Joyce Karpowski, Secretary. 


Approval of Minutes.  Chairman Pearce presided over the meeting and called the meeting to order.  He asked for the approval of the July 9 and July 16, 2002 minutes.  Roger Wolff made a motion to approve both sets of minutes.  Jack Lynch seconded the motion.  All members voted in favor. 


Adjustment of Agenda.  Mrs. Smith suggested that # 6, Recommendations on Proposed Amendments to the Henderson County Subdivision Ordinance – Subdivision Issues Subcommittee, be heard later in the meeting and also, Walter Carpenter has an item that he would like to have the Board consider that needs to be added to the agenda.  There were no objections.


Staff Reports.  Mrs. Smith introduced Derrick Cook, a new member of the Planning Department, and welcomed him.  Mrs. Smith also introduced Joyce Karpowski, Secretary to the Zoning Board of Adjustment, substituting for Kathleen Scanlan. 


Mrs. Smith said that the members had updated Subdivision Ordinances at their places with the recent updates incorporated in the text.  There are also revised standards for paving that the North Carolina DOT has recently adopted, which is an amendment to the subdivision roads manual. 


Chairman Pearce reminded everyone that they must speak at the podium for the microphone to pick up their voice for the secretary to do the minutes.




Revised Recommendations on the Howard Gap Road/Brookside Camp Road Area Zoning Study – Land Use/Zoning Study Subcommittee of the Planning Board.  Chairman Pearce asked the Board members if they wanted to go over everything or just the revisions.  Walter Carpenter recused himself from this item.  The Board members agreed to just hear the revisions.  Mr. Freeman directed the Board to page 44, Attachment 1 (map), of the draft of Revised Recommendations given to each Board member today.  He described the borders of the whole proposed area to be rezoned and also the proposed change in zoning areas within the whole area.  Changes from the original study were the northern part of Section 5 to R-15, the 2 Sections 7 to C-2P, and Section 12 to R-15.  Mr. Lynch asked how many separate zoning recommendations have to be agreed upon tonight. Mr. Freeman said 13. Chairman Pearce thanked the subcommittee members and Janis Moore. 


Chairman Pearce said that they would discuss item # 11 first, the Howard Gap Rd. item.  There was disagreement about whether the area should become a C-2P Neighborhood Commercial or a C-4 Highway Commercial.   Mr. Freeman showed a map of the specific area and discussed the properties as they are now.  Chairman Pearce mentioned some of the differences between the 2 zoning districts.  He mentioned one of the uses which would need a permit is a gas station and Mr. Freeman pointed out the property that has a gas station on it now.  Mrs. Smith pointed out where that information is found in the Zoning Ordinance.  Mr. Allison pointed out that the gas station is not allowed by right in the C-2P zone and he feels that it should be zoned C-4 to match what is there today.  Chairman Pearce said that his reasoning is that it is a neighborhood store and should be in a neighborhood commercial district.  The C-4 district allows more by right, some of which is not appropriate for that area.  Chairman Pearce said that if they would go to C-4, then the Zoning Ordinance should be changed to make all commercial C-4, because that is not a highway.  He said that Rte. 176 and 25 are highways, but not there.  Mr. Allison said that Brookside Camp Rd. in the morning is a highway with a lot of dump trucks using it.  Mr. Allison spoke about adult establishments - that they should be in industrial areas, not commercial areas.  Chairman Pearce said any decisions should be made on the current Zoning Ordinance.  Mr. Allison said that was why he was advocating C-4 for this area because later on perhaps the owner of the gas station would not be able to get a Conditional Use Permit and Howard Gap Rd. is a highway. 

            Mr. Wolfe spoke about the area between the 2 T-15 areas where the Planning Dept. looked at the existing use and tried to make the area as conforming as possible.  He said that same thinking should be used with the Lamb-Lanning property.  Mr. Freeman spoke about what the subcommittee had instructed him to do and said that most of the areas are zoned according to the current usage.  He said that Lamb’s store would pretty much conform under either C-2P or C-4, except for the gas station part, which would be conforming with a Conditional Use Permit.  Chairman Pearce asked if the gas station burned, could it be rebuilt.  Mr. Freeman said it could be rebuilt, but if he wanted to expand he would need a permit.  Mr. Allison asked about the grandfather rule and rebuilding it in the exact same footprint.  Mr. Freeman said that it basically could not be expanded.  Mr. Allison’s concern is not today, but how someone would deal with it down the road.  Mr. Freeman said that the Planning Department is always looking at changing conditions and considering updating zoning accordingly.  Mr. Allison suggested leaving it Open Use, if not C-4.  Mr. Allison said that he didn’t understand all the controversy over Lamb’s Grocery, when none comes from the neighbors. 

            Mr. Wolfe asked Mr. Freeman to speak about business conducted in open air or enclosed spaces.  Mr. Freeman said that in C-4, business could be conducted in the open or in an enclosed area or both.  In C-2, all commercial activity must be conducted indoors, although some Conditional Use Permits could allow some outdoor activity.  Chairman Pearce asked for more comments on Section 11.  There were none.

            Chairman Pearce asked for discussion on Section 12.  He said that on one side there were large concentrations of T-15 and on the other side approximately 70% is T-15.  Mr. Freeman referred the Board to Attachment 12, which points out locations and types of structures.  Chairman Pearce said that Area 13 was requested to be R-15 by the residents in Wynnbrook Farms and the subcommittee voted to keep it T-15 based upon the concentration of housing in the area at the time.  Mr. Freeman pointed out the residential areas and what was allowed in each one.  Mr. Freeman said that staff recommends that sections 13 and 8 remain as T-15.  Chairman Pearce asked if there were any other changes.  Mr. Freeman said only minor boundary lines because of lot line and duplex situations.  Mr. Allison asked how many single-family residences per acre were allowed in R-15.  Mr. Freeman answered 2.8 per acre.  Chairman Pearce asked if there were any more questions.  Since there were none, he opened public input.


Bill Eadie – Mr. Eadie said that several years ago they worked hard to protect their area from development of a racetrack and formed an association to look at the area and try to protect the residents.  Mr. Eadie asked the Board to consider the people who live in the area and make decisions that protects the people’s residences and property values. 


Dorothy Conley – Ms. Conley said that she lives on Tananger Lane right next to the Schenimann property and the neighborhood is concerned with commercial zoning in the residential area.  She has lived there since 1970 and she doesn’t want her property to become undesirable.  She said that Howard Gap Road may be a highway, but it has many residences on either side of the road, and commercial does not belong between 2 residential neighborhoods, Tananger Lane and Lexington Lane, and also 5 different subdivisions.  There is no objection to Lamb’s store, but they would not like any more commercial in the area, and keep it residential.  They can already see the light from the storage facility and it will encroach more as it is developed.  She said that she wished the commercial could stop now as it exists and save the residential neighborhood, property values and security.


Marie Sandborn – Ms. Sandborn said that she spoke at the last meeting and the next day’s article in the newspaper did not adequately portray what happened.  The residents are concerned about a use that does not fit there.  Even though Howard Gap Road is a corridor, most buildings along the road are residential.  Now zoning is a necessity, but she does not want to be next door to C-2P.  She said that she has lived there since 1972 and the Board at the last meeting said that doesn’t matter – change comes.  Change is necessary but it shouldn’t devalue people’s homes.  She said that business is needed in the County but also protect the homeowners.  The property should be voted as R-15, let the current owner finish what he started, and protect the homeowners.  If it is voted C-2P and something happens with the current business, then something even worse could be there.  Ms. Conley said that she appreciates all the work the Board has done on this zoning package.  She said that she feels the C-4 zone is too drastic for the area currently.  She said that she agrees with Mr. Freeman that commercial is appropriate at intersections, but not as a corridor. 


Janis Moore – Ms. Moore thanked the subcommittee for their work on this project.  She said that it is time for the residents for Henderson County to decide what their vision is for the future.  She feels if the County continues building without planning, the County will lose its attractiveness.  She works with the public and they say they want to be protected and now she understands.  She owns 30 acres of land, but feels that you don’t have to do something with it to disturb your neighbors and make a lot of money.  She feels that residential should stay residential and commercial should stay commercial.  If commercial is allowed to come into the middle of residential, then lights glare all night, traffic increases (300 more cars, campers and motor homes).  The residents feel that property values will be lost.


Leon Lamb – Mr. Lamb said that he has been a resident for at least 50 years and he has a right to protect himself in this situation.  That is why he requests C-4 for his property.  Mr. Lamb said that he agreed with the change in Section 12, it was needed and should have more houses on it.  Mr. Lamb thanked everyone and said he would like his rights protected as well as everyone else.


Michael Edney – Mr. Edney said he was speaking for Mr. Lamb and Mr. Lanning.  He said that C-4 would match the current use best except for no zoning.  He said the 1993 Plan for envisioning the future shows the entire intersection as commercial, so C-4 is consistent with that.  He said that Brookside Camp Road and Howard Gap Road are thoroughfares now with substantial amounts of traffic and in the future will be widened, which will take property from Mr. Lamb and Mr. Lanning.  It would take Special Use or Conditional Use permits to replace the current use.  So, logically, C-4 is the proper type of zoning and they request the Planning Board do that.


Cindy Walker – Ms. Walker said that she has a business on Howard Gap Road off Whispering Hills.  They would like it to stay open use.  They have put a lot of money into the business and if it should burn, they couldn’t build it back.  Chairman Pearce asked Mr. Freeman to point out the property.  When they bought the property, it was purchased as commercial with no restrictions and would like it to be left that way.  Roger Wolff asked if the ministorage units were burned, could they be replaced on the same footprint.  Mr. Freeman said yes.  Mr. Wolff asked if the shop here was burned, could it be replaced.  Mr. Freeman said yes, anything that is there today could be replaced.  Mr. Freeman described the area and said they used the creek as the defining boundary.  Chairman Pearce asked the size of the property.  Ms. Walker said it was 2 3/8 acres.


Jim Lanning – Mr. Lanning said that he owns the corner pantry and his concern is if Howard Gap Road is widened, would he be able to put his gas pumps back in.  He would not like to be restricted.  Mr. Freeman said that if the road was widened and the pumps were obliterated, it would be difficult to issue a permit to put the pumps back in a different part of the parcel under R-40.  Under C-2 or C-4, it would be fine.  Mr. Lanning said under C-2, the way he read it, he couldn’t replace the pumps.  Mr. Freeman said a Conditional Use Permit would allow that.  Selling outside would be allowed in C-4 and need a Conditional Use Permit in C-2.  Permitted uses in the districts were discussed.  Chairman Pearce said that all uses would be grandfathered and new ones might need a Conditional Use Permit.


Jeff Stonecypher – Mr. Stonecypher said that he was concerned with Section 13, which has 12 existing trailers now and 2 more were just brought in and he could expand to 40 or 50 – he feels the area is saturated.  Looking at the definitions of C-2 and C-2P, by not going to C-4, you are not making a step forward.  Right now with the districting, the uses cannot expand and why limit what they are allowed to do there.  A step forward would be C-4.  Mr. Stonecypher spoke about Section #13 and described the structures in the section as being an eclectic mixture.


Ferdi Wuttke – Mr. Wuttke said that he has lived in the County 45 years and wanted to address Section # 8.  Mr. Wuttke said that residents had petitioned at the last meeting to have Section #8 be R-15 (what is now Sections 8, 12, and 13).  He has no problem with what is there now, but their big concern is with Section # 13.  Along Brookside Camp Road, there are 12 trailers and 2 homes, between the 2 rest homes.  In Section #13 there is so much land there could be 50 –100 trailers.   He is concerned for the value of property and it will probably affect Sections #9 and #4, next to that area.  They would like to see Section #13 stay R-15 not T-15 and the petition was signed by 77 people.  Mr. Freeman said that the petition was in his office and he would get it if any Board member wanted to see it. 


Mr. Freeman checked the density on Manufactured Home Parks.  Mrs. Smith gave the requirements for Conditional Use Permits.  Mr. Freeman pointed out the condominiums along Brookside Camp Road and Oakwood Place Drive.  Mr. Wolff asked Mr. Wuttke if he said there were 2 stick-built houses and 12 manufactured homes and the rest is open land in Section 13.  Mr. Wuttke said yes. 


Chairman Pearce asked if there were any questions about this.  Chairman Pearce said that he would like to start with Sections 1 – 10 and asked if there were any revisions to the recommendations of the subcommittee.  Mr. Freeman discussed the R-15 text amendment and whether the Board would like to make it part of this study.  Chairman Pearce said they would take that up later. 


Mr. Lynch wanted to comment on the roads.  He has not heard that Howard Gap Road would go from 3 to 5 lanes and he assumes that the Transportation Advisory Committee has not been to the state yet, so he doesn’t believe it has been added to the TIP.  Road concerns are the curves, potholes, and bridge repairs.  They are working on a thoroughfare plan and have traffic numbers from 1965 thru 1990 on the traffic counts on Howard Gap Road.  Next week they will be meeting with the state to get traffic counts, which are meaningful.  If the traffic count is beyond the capacity of the road, possibly the DOT will recommend something be done.  He feels the DOT is listening more to the community.  If the road is over capacity, the community has to decide what they would like to see there.


Chairman Pearce asked again for any changes to the subcommittee recommendations for Sections 1 –10.  Mr. Allison said that most of the Board just got the recommendations just prior to the meeting today, so are we ready to vote tonight.  Mr. Allison said the Board members should get their material earlier than 7 o’clock and then be asked to vote on it.


Mr. Wolff asked what sections are up in the air.  He said that in Sections 1 – 10, Ms. Walker in Section 5 is the only specific request for anything different from previous discussions and subcommittee recommendations.  Mr. Freeman agreed.  Mr. Wolff said that still to be agreed upon are Sections 11, 12, and 13.  Chairman Pearce said that some requested Section 6 be R-15 vs. C-2P.  Mr. Freeman said that they were asked not to zone Section 13 as T-15.  Chairman Pearce said he would just like to see if there is close enough consensus to vote.  Mr. Freeman said that the only changes this Board has not heard before is Section 12 and 11.  Mr. Freeman said Section 13 is the remainder from the recommendations that have been heard before.  Mr. Wolff said that he was ready to vote.  Chairman Pearce asked for any changes or recommendations for Sections 1 – 10.  No one spoke.  Chairman Pearce asked for any change to Section 11, the Lamb and Lanning property.  The property was described.  Mr. Wolff said he would prefer Section 11 be changed from C-2 to C-4 and so moved.  Mr. Allison seconded.  The Board voted 5 to 3 to approve the motion. 


The Board moved on to discuss Mr. Lamb’s other piece of property.  Mr. Freeman had broken the piece of land into smaller sections and the Board started with Section 7a.  The Board described the land owned by Joyce Lamb and Mr. Freeman recommended zoning 7a as C-2P.  Section 7b is partially owned by Nuckolls and partially owned by Lamb.  Section 7c is owned by Bailey, Benson, plus more owners and pretty much developed.  The three sections are recommended as C-2P zoning.  Chairman Pearce asked for any recommendations.  Mr. Allison asked what the rest home needed to be.  Mr. Freeman said that now the rest home would be non-conforming under C-2P.  Mr. Freeman said that he is not concerned with C-2 because of the rewrite creating the NB district which is what C-2P would become.  Mr. Freeman said that if the Board wished to change the district, O&I would be most appropriate.  Chairman Pearce said that the Board should try to do long term planning for the intersection, although there are differences of opinion with C-2, C-4, and C-2P.  Chairman Pearce said that the property in the long term would probably become commercial and, using the County’s Land Use Plan from 1993, the recommendations were for the intersections to create neighborhood commercial areas.  This zoning definitely falls in line with the 1993 plan and makes more sense for it to become commercial.  Mr. Wolff asked if anyone heard from the owners of the nursing home about what they want.  Mr. Freeman said no.  Mr. Wolff said that 7a and 7c, since there has been no discussion, should be C-2P.  Also staff and subcommittee recommend that the lower portion of 7b where the rest home is, since no comments have been heard from the owners, be zoned C-2P.  That the Lamb property on the top half of 7b, because it is across the street from the Lanning - Lamb property (Section 11), be zoned C-4.  Chairman Pearce said that Mr. Nuckolls requested that his property stay R-20, but after extensive discussion Mr. Nuckolls said that C-2P would not be against the family’s wishes.  The Nuckolls property was discussed.  Mr. Wolff made the motion that 7a and 7c have the recommendation of C-2P zoning, 7b north of Brookside Camp Road be C-4, and 7b south of Brookside Camp Road be C-2P.  Mr. Thompson seconded the motion.  Mr. Freeman discussed the differences between C-4 and C-2P.  Mr. Lynch questioned if Mr. Nuckolls should be notified that his property was perhaps going to be zoned C-4.  Mrs. Smith said that there would be notification when the Board of Commissioners holds their Public Hearing. 


Mr. Allison asked what the feeling of the Commissioners was, since Mr. Moyer wasn’t at the meeting tonight.  There was discussion about the Board of Commissioners and the recommendations of the Planning Board. 


Mr. Wolfe said that Mr. Nuckolls owns 50 feet down the frontage on Brookside Camp Road.  Chairman Pearce stated that was correct.  Mr. Wolff said that land is excluded from residential use.  Mr. Freeman said yes.  Mr. Wolff said that if he understands what the Nuckolls want, the subcommittee has considered and accepted the request, that the rest of their property go from C-2P to R-20, and it seems that making the slice of Nuckolls property commercial is appropriate.  But they could discuss whether it becomes C-2P or C-4.  The Nuckolls property was discussed.     


Chairman Pearce repeated the motion before the Board:  Section 7a and 7c be C-2P zoning, 7b north be C-4 and 7b south be C-2P.  The motion was carried by a 5 to 3 vote.


Chairman Pearce asked about Section 12 and if there were any objections to it being R-15.  Included in Section 12 are Wynbrook Subdivision and Rural Retreat.  Chairman Pearce asked about Section 13, since some people suggested it be changed to R-15, does the Planning Board want the recommendation changed from T-15 to R-15.  No one spoke. 


Chairman Pearce discussed the Board’s options about the vote.  The Chairman made a motion to adopt the recommendations as amended tonight.  Mr. Allison seconded the motion.  Mr. Allison asked if everyone involved had been notified.  Mr. Freeman said that everyone in the area, whose addresses he received from the tax assessor’s office computer system, has been notified.  Mr. Freeman said he received probably 20 returned letters with incorrect addresses.  Chairman Pearce reminded everyone that the Planning Board was not changing any zoning, just sending recommendations forward to the Board of Commissioners.  All members voted in favor of the motion.


Mr. Freeman spoke about the text amendments.  Mrs. Smith said that staff could draft them for the Board to send forward.  Chairman Pearce asked Mr. Freeman to draft the amendments as the Board discussed in the past for the next Planning Board meeting.  Chairman Pearce said it would be appropriate to state the Board will be sending forth recommendations for text amendment changes to T-15, R-15, and O&I districts – also T-20, R-20, and C-2P. 


Chairman Pearce thanked everyone for coming to all the meetings and for their input.


Proposed Zoning Map Amendment – Application #R-03-02 to Rezone Approximately 6.27 Acres on Souther Road from R-20 (Low Density Residential) to RC (Rural Conservation) – Leon Allison, Agent for James Robert Suttles, Applicant.   Mr. Freeman asked the Board to recall Rezoning Applications R-06-01 and R-01-02 requesting RC be changed to R-20 off of Souther Road.  Mr. Freeman showed a map of the area.  Somehow Parcels 1 and 2 were also changed from RC to R-20 with the rest of the parcels.  Shortly after approval by the Board of Commissioners, Mr. Suttles contacted Mr. Freeman to have his parcels changed from R-20 back to RC.  Mr. Freeman said he didn’t have any problems with Parcel 2.  Parcel 1 conforms to R-20 but not to RC.  Parcel 1 is used as a right-of-way, so it doesn’t matter.  Mr. Freeman said that staff doesn’t have any concerns with this other than we need to change the zoning reapplication process to clarify things for everyone. 


Chairman Pearce said that since Mr. Leon Allison is acting as agent for Mr. Suttles, he presumed Mr. Allison is recusing himself.  Mr. Allison said that was correct. 


Chairman Pearce said that generally he would not be in favor of doing something like this so soon after another one, unless we were wrong, and he didn’t believe the Board was wrong.  Chairman Pearce said he does believe that the system for petitions is significantly flawed, so he would like to make a two-part motion.  He moved that the Board recommend the rezoning as requested by Mr. Suttles and that the Planning staff in future zoning requests have clear identification for those individuals who sign petitions what is happening, what is being changed and what effect that will have on their property.  Roger Wolff seconded the motion.  Chairman Pearce asked for discussion.  There was discussion about the process and future revisions.  All eight members voted in favor of the motion.


Mr. Wolff said that the department followed procedures and it didn’t work and there is no apology necessary.


Proposed Zoning Map Amendment – Application #R-04-02 to Rezone Approximately 1.25 Acres Adjacent to Cely Drive, off US Highway 25 North, from R-T (Transient Residential) to C-4 (Highway Commercial) – Nathan Benson, Applicant.  Chairman Pearce said that they have been in contact with Mr. Benson and the recommendations of staff were put forth.  Staff said that they don’t have a problem rezoning this property but it would be much better to rezone this in conjunction with a study of US 25 North in its entirety, instead of trying to entertain individual parcels of rezoning.  Mr. Benson sent a letter, which each member has a copy of.  Chairman Pearce suggested the Planning Board initiate a study of US 25 North by subcommittee.  Mr. Lynch spoke about the workload the Planning department has and the commitment of doing this within a 6-9 month timeframe.  Chairman Pearce said that he has spoken with a Commissioner today and said that the Planning Board would need a commitment from the Board of Commissioners to try to provide assistance to staff to complete this in a timely manner.  He said that he received a very positive response.  Mrs. Smith suggested the Planning Board notify the Board of Commissioners of their intent for a committee.  Chairman Pearce said that Mr. Benson is not present tonight but he requested that if the Board chose not to do a land use study that the Board send it to short-term subcommittee.  Mr. Carpenter said the Board has to decide what to study and on US 25 that is a huge issue.  He suggested the subcommittee look at the area and get a feel for what the area should be and give study area to Planning Board and Board of Commissioners and ask where it fits into their schedule.  Chairman Pearce said the Planning Board has 45 days to vote on the application as presented.  Chairman Pearce said he told Mr. Benson that if the Board was not willing to do a land use study on US 25 North, that he would send it to subcommittee.  Chairman Pearce explained why he felt it should be studied.  The Board discussed this.  Mr. Lynch suggested that a letter be sent to Mr. Benson with our understanding and asking for his confirmation.  Mr. Allison moved that the staff correspond with him and get in writing what he wants.  Time lines were discussed.  Mr. Carpenter moved that this be sent to the land use study subcommittee for preliminary recommendations on a study area and send a letter to the Commissioners asking their input on going forward with a study in that area.  The Board discussed this and that Mr. Benson could reactivate his application at any time.  Mr. Allison discussed what should be studied.  Mr. Keefe seconded the motion.  The Board voted unanimously to approve the motion.  Mr. Freeman said that he would send a letter to Mr. Benson explaining what happened tonight and asking him to clarify his time frame.  Chairman Pearce asked Mr. Freeman to mail and fax the letter to Mr. Benson.  Mr. Freeman said that he would speak to him in person and also schedule a subcommittee meeting.


Minor Subdivision for Paul Batson.  As Mr. Carpenter is acting on behalf of Paul Batson, he recused himself on this particular matter. Mrs. Smith introduced Russ Burrell, Assistant County Attorney, saying he will be helping with Planning Board matters.  Chairman Pearce said that there is an interpretation problem and Mr. Carpenter asked if this could be put on the agenda.  Mr. Carpenter explained that his client was asking for a minor subdivision.  Over the years, the deed and plat had not been recorded.  Mr. Batson has owned the property for ten years and it is 7 ½ acres.  The issue is a road that goes through Beverly Rice’s property.  The road has been there many years (the property used to be Camp Flintlock).  Mr. Carpenter described the property.  He said there was no issue with the use of the road and everyone chips in to maintain the road.  But Ms. Rice will not sign a right-of-way.  He said Staff says that they don’t know if the road is a right-of-way and you can’t subdivide property if it doesn’t have a right-of-way.  Mr. Carpenter said that the road is not shown on the County tax maps.  Section 170-28 defines what you can do with offsite access.  Mr. Carpenter said he thought if you didn’t have 30 feet of access, you were limited to subdividing property to tracts of 1 acre or more.  Mr. Carpenter feels staff is using Section 170-27 which says all subdivision lots must abut on a public or private right-of-way.  Mr. Thompson asked the width of the road now.  Mr. Carpenter said it is wide enough for 2 cars to pass.


Chairman Pearce asked Mrs. Smith to explain how this is normally handled.  Mrs. Smith cited Section 170-28 dealing with road frontage and existing offsite access which was added to the new Subdivision Ordinance in 1999 and was amended in November of 2000.  Mrs. Smith read the beginning of the section.  The Planning Department has tried to make sure there is offsite access to all properties to be subdivided.  Generally there is a deeded right-of-way.  Not having a deeded right-of-way raised a red flag.  There was an unrecorded deed for part of the property.  Mrs. Smith said she checked with the County Attorney to see what the department needed to have to know that a prescriptive easement existed and  Ms. Beeker said that it needed to be a Court Order.  Then there was discussion about what was necessary to get a Court Order.  Ms. Smith said that there may be cases the department has missed but they have tried to look for recorded rights-of-way.  Chairman Pearce asked if staff normally would have approved it as a minor subdivision.  Mrs. Smith said yes.  Mrs. Smith she had discussed several ways to approach this with Mr. Carpenter and told the Board the options.  Chairman Pearce asked if generally right-of-ways were deeded.  Mrs. Smith said that was the usual way.  She gave an example.  Mr. Cooper asked if there was a specified width for the right-of-way.  Mrs. Smith said the Section allows widths less than 30 feet but limits the number of lots.  Chairman Pearce discussed the Board’s previous concerns for access to subdivisions.  The Planning Department’s concern is that the owner have access to a lot.  Chairman Pearce asked Mrs. Smith if they were asking for approval or disapproval of the subdivision or for clarification of Section 170-28.  Mrs. Smith said if the Board approved the subdivision, it would be the precedent for how the department should look at it in the future.  Mrs. Smith said that the Board could interpret the Ordinance and give her guidance or the Board could act on the subdivision tonight.  Mrs. Smith said they want to divide Patricia Grine’s property into 2 lots.  Mr. Cooper asked if the property had any reference of a right-of-way to cross.  Mr. Carpenter explained the history of the property and that a right-of-way was granted in 1992 by Patricia Grine over 2 other pieces of property.  It was not on property she owned but had been used since 1972.  Mr. Cooper asked if she had the right to grant the right-of-way, which is the issue.  Mr. Carpenter said that it was a prescriptive easement.  Mr. Carpenter said that he would be able to get title insurance on the deed.  Mr. Carpenter referred the Board to Section 170-27.  Mr. Carpenter said it is a private right-of-way, whether there is a deed or not.  Mr. Carpenter said that Beverly Rice doesn’t object to using the right-of-way, but she will not sign anything.  All the neighbors maintain the right-of-way and there is no objection to using it.  Mr. Carpenter said that if he could prove the right-of-way is wider than 30 feet, they could subdivide into lots smaller than 1 acre and if the right-of-way is not 30 feet wide, then lots must be larger than 1 acre, but she is entitled to subdivide.  Section 170-28 goes into road frontage and existing off-site access.  Mr. Carpenter read part of the Section.  He said the County Attorney says the definition of right-of-way says see “easement”, easement says “grant”, and grant means deed.  Mr. Carpenter said he believes there is a prescriptive easement based on the long use.  Mr. Carpenter said his client has a deed, although it’s not recorded, and has been using the right-of-way for 10 years so he has color of title.  Mrs. Smith said she looked at the old Ordinance and couldn’t find anything about this issue.  Mr. Wolff said that title insurance insures easement under prescriptive easement, no matter what the width.  Mr. Carpenter said they don’t put a size on it, just access.  Chairman Pearce asked about guaranteeing specific location. Mr. Carpenter said in this case they would because it says “existing gravel drive”.  Mr. Wolff asked if you could give a legal opinion that this parcel has a prescriptive easement with guaranteed ingress and egress.  Mr. Carpenter said he could give a legal opinion, but that doesn’t mean it’s true, but it is what he believes the facts will apply to the law.  Mr. Carpenter’s opinion is that it has an easement, but no opinion on the width, and a density no greater than 1 unit per acre.  Mr. Thompson asked if the property was going to be subdivided.  Mr. Carpenter said he couldn’t say if it ever would be subdivided, although in the near future – no.  Mr. Thompson questioned if Duke Power would cross the right-of-way.  There was discussion about the power.  Mr. Carpenter said it is a private right-of-way and not to make it any more difficult.   Chairman Pearce asked Assistant County Attorney Russ Burrell for any comments.


Mr. Burrell wanted the Board to keep in mind that, if it made a decision regarding the easement, it would be affecting people’s rights who are not in attendance.  Chairman Pearce asked if there were a length of time required for property being used for a prescriptive easement.  Mr. Burrell said the general requirement is 20 years, but it could be 7 years if you have a deed.  This always happens when someone, who doesn’t have the legal right, gives you something.  Chairman Pearce asked when the deed was conveyed, which was 1992 – 10 years ago.  Mr. Wolff asked Mr. Burrell what his opinion was.  Mr. Burrell said he would not give an opinion without knowing if the owner gave permission.  Mr. Wolff asked if paying for maintenance jointly implied consent.  Chairman Pearce asked about the difference between consenting and granting a right.  Mr. Burrell said giving consent doesn’t give anyone rights but, if someone says I have the right and does it for 7 – 20 years, then they gain that right.  Mr. Burrell said from a practical standpoint title insurance is the end of the question.  The Board questioned the difference in acreage – 7.2 acres and 2.6 acres.  Mr. Carpenter said Mr. Batson originally bought the 2.6 acres but that doesn’t affect the easement.  Chairman Pearce asked if there was any evidence from the adjacent people.  Mrs. Smith said she had no evidence.  Mr. Carpenter said the owner wouldn’t sign anything, so he had no evidence.  Chairman Pearce asked if the Board adopted a policy that, in lieu of a recorded document, another means of providing proof would be a title insurance policy to insure that an easement exists, could staff use that as a means of determining an easement exists.  Mrs. Smith said she would want an opinion as to whether that would meet the grant provision.  Existing and recorded rights-of-way were discussed.  Chairman Pearce asked if there was a problem using title insurance to certify a right-of-way.  Mr. Burrell said whatever the Board’s policy is – there is no legal reason not to.  Mr. Burrell said the only time the County would have any liability is where there is a wrongful, frivolous suit – who could sue us – no one on the current owner’s side, the only person would be the owner of land under the road – this is only the Board’s opinion.  Mr. Burrell said that he didn’t see any real liability for the County.  Suggested motions were discussed.  Mr. Wolff moved to approve this subdivision subject to a title insurance commitment on the right-of-way being provided and that, upon final issuance of title policy, it be submitted to the Planning Department.  Mr. Lynch seconded the motion.  Chairman Pearce asked Mrs. Smith if she had any concerns about granting this.  Mrs. Smith said her concern is that Mrs. Rice will say the subdivision should not have been approved.  Discussion ensued.  Seven members voted in favor of the motion and Mr. Allison abstained.  The abstention counted as a favorable vote.


Recommendations on Proposed Amendments to the Henderson County Subdivision Ordinance – Subdivision Issues Subcommittee.  Mrs. Smith said the Board has seen some of the proposed amendments before.   The amendments mainly affect the table in Section 170-21C.  This was sent to members of the subcommittee and surveyors and engineers have been participating.  Lee Smith spoke about the first two amendments, centerline curve radius and grade, which the Board has seen.  The third part, which affects the table, was shoulder width.  The three amendments had been combined into one.  Chairman Pearce asked if any Board members had questions about the recommended changes. 


Mr. A.J. Ball commented that a 6-foot shoulder is excessive in mountain developments.  He feels the standard should be 4 and 2 as discussed in the Subcommittee meeting.  His recommendation is that anything less than 20% slope would be a 4-foot shoulder and above 20%, not to exceed 30%, would be a 2-foot shoulder. 


Mr. Cooper said that there are a lot of things in the requirements now that are practically impossible to meet and make some property undevelopable.  He feels the recommendations are reasonable, sensible and practical.  Mr. Ball said that this Board may or may not approve the recommendations.  He would like the Board to approve them, rather than having to come before the Board for changes.  Mr. Cooper said he believes that the recommendation says when the cross slope exceeds a certain percent, then the Board can allow a developer to reduce it. 


Chairman Pearce said that the second amendment proposed is the private road certification.  Mr. Patterson pointed out an error on page 2 – the shoulder width on private local roads should be 4 feet (that will match the notes on the next to the last page, Item 4, which says for private residential roads with cross slope 0 –20% shoulder width will be a minimum of 4 feet).  Mr. Smith said anything below 20% slope can be requested to be 4 feet, but the standard is 6 feet.  The Board discussed this.  Mr. Wolff said that he liked Mr. Ball’s concept that the Board have guidelines that they can do without variances.  Mr. Smith said that 6 feet with the footnote becomes irrelevant, because you can go down to 4 anyway.  The Board decided to make the standard 4 feet.  The footnote is still needed because the width can go down to 2 feet in some circumstances.  Chairman Pearce said the correction is from 6 to 4 feet on local road shoulder width (two-way roads). 


Mr. Patterson had another correction on page 2 for centerline radius on collector roads needing a footnote #3.  The change was discussed. 


Chairman Pearce went on to private road certification.  Mr. Smith said that staff looks to see if the roads are designed to the County’s standards and it has to be listed if the roads are public or private, so he believes it is already there.  Mr. Smith said that he has trouble signing anything with the word “constructed” in it because he can look at something and hope the roads are constructed as stated but he doesn’t know.  If it is constructed to state standards, they are required to have the state signature on the plat.  If they are not constructed to state standards, they write private on the plat.  Mr. Smith explained the rationale for the amendment.  The Board discussed private vs. state roads.  Mr. Smith said if the road is built to Henderson County standards, it doesn’t necessarily mean that it will be taken over by the state without more work.   Mr. Smith said that “private roads” is written on the plats in the notes section. 


Mr. Carpenter said this amendment would notify the public.  He said reducing the centerline radius makes the roads less likely to be taken over by the state.  He said the public wouldn’t know that “private” means that the state may not take the roads over.  Mr. Wolff asked Mr. Ball if he would have a problem putting on the plat, “This is a private road built to Henderson County standards and not built to North Carolina DOT standards”.  Mr. Ball said he would do that.  Mr. Lynch said he believed homebuyers would not get that detailed about the road.  Mr. Lynch said he wants people to know that they have to pay to maintain the private road or have it accepted by the state.  The Board discussed using the word “certify” on the plat.  Mr. Carpenter said it doesn’t matter if it is a certification, just a note on the plat simply stating that the roads are private and not designed to NCDOT standards and may not be accepted by the Department of Transportation is sufficient.


Chairman Pearce asked if the members agreed to Option 2.  The Board said to strike out “may or”.  The Board discussed the wording.  The Board also struck out “…were designed to be in accordance with the private road design standards of the Henderson County Subdivision Ordinance.  The design of these roads…”.  Also “certify” was changed to “state”.  Also added to the end of the sentence was “for acceptance into the state road system”.  The Board said the purpose was to notify any parties of interest.  Chairman Pearce asked for a motion, subject to the changes set forth tonight, for the approval of the two amendments as amended.  Mr. Lynch so moved.  Mr. Patterson seconded.  All members voted to approve the motion.


Adjournment.  There being no further business, Mr. Cooper made a motion to adjourn and Mr. Lynch seconded the motion.  All members voted in favor.  The meeting adjourned at 10:28 PM.



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Tedd M. Pearce, Chairman                                           Joyce Karpowski, Secretary