September 16, 2003


The Henderson County Planning Board met on September 16, 2003, for its regular meeting at 7:05 p.m. in the Meeting Room of the Land Development Building, 101 East Allen Street, Hendersonville, NC.  Board members present were Tedd Pearce, Chairman, Walter Carpenter, Vice Chairman, Todd Thompson, Leon Allison, Paul Patterson, Cindy Dabaibeh, Tommy Laughter, and Mike Cooper.  Others present included Derrick Cook, Planner, Brad Burton, Zoning Administrator, Russell Burrell, Acting County Attorney, and Kathleen Scanlan, Secretary.   Board member  Kevin Keefe was absent.


Approval of Minutes.  Chairman Pearce called the meeting to order and asked for the approval of the August 19, 2003 minutes.  Mike Cooper made a motion to approve the minutes and Todd Thompson seconded the motion.  All members voted in favor.


Adjustment of Agenda.   Chairman Pearce stated that Item 8 has been removed from the agenda, dealing with Carriage Park Planned Unit Development, Proposed Amendments to Common Area Related to Clubhouse Addition.  He stated that Planning Staff received a letter from Gerald Liedl, Chair of the Carriage Park Homeowner’s Association requesting that this matter should be postponed until the October meeting of the Planning Board.  No other adjustments were made to the agenda.


Staff Reports.   Chairman Pearce mentioned that Ms. Karen Smith is not present at tonight’s Planning Board meeting because she was required to attend a meeting with the Board of Commissioners at the request of the County Manager. 




Approval of Order for Amendments to Carriage Park Planned Unit Development, Section 10, The Ponds, Phase I – Planning Staff.   Mr. Cook stated that at the August 19, 2003 Planning Board meeting there was a quasi-judicial hearing on an application for amendments to Section 10, The Ponds, Phase 1.  He mentioned that following the hearing, the Planning Board asked that Staff prepare an order approving the project, subject to certain conditions.  He stated that a draft Order with the Findings of Fact and Conclusions included was forwarded to each Planning Board member for approval in their packet.  Chairman Pearce asked the Board members whether they had reviewed the Order and if so, asked for a motion to approve the draft Order with amendments for Carriage Park, Section 10, and The Ponds, Phase I.  Chairman Pearce asked whether everything had been settled and filed dealing with the surveyor’s certifications regarding lot delineations?  Mr. Cook stated that it has not been as of yet. Mike Cooper made the motion for approval and Tommy Laughter seconded the motion.  All members voted in favor. 


Status Report on Planning Initiatives – Planning Staff.  Chairman Pearce asked Josh Freeman to give a brief update on the community meetings that have been held.  Leon Allison commended the Planning Staff and Ms. Smith on the good job that was done at the Raven Rock community meeting.  Mr. Freeman mentioned that the Gerton and Raven Rock meetings exceeded Staff’s expectation of the community turn out.  He said that there were approximately seventy-five people at each of the meetings and mentioned that the next community meeting will be held at  the Tuxedo Extended School on Thursday, September 18, 2003.  Mr. Allison said that he feels that there will be around one hundred people that will turn out for this meeting.  Mr. Freeman thanked the Planning Board members who have given their time and effort on these community meetings.  Chairman Pearce noted that the Board members have seen and reviewed the information update that was in the packet.



The Homestead at Mills River (File # 03-M15) – Master Plan Review (160 lots on 262.8 acres) and Phase I Development Plan Review (66 lots on 116.23 acres) for property located off of Whitaker Lane – Terry Baker, Agent for The Homestead at Mills River, LLC, Applicants.  Cindy Dabaibeh recused herself from any discussion or decision in this matter as she has a conflict of interest because of her relationship with a property owner.  All Board members agreed to her recusal.  (Walter Carpenter arrived at the meeting at this time).  Mr. Cook stated that the subject property is a 262.8-acre tract comprised of four parcels located off Whitaker Lane, east of the Town of Mills River.  The development is proposed to contain a total 160 lots that will be completed in three phases.  Phase 1 will consist of 66 lots on 116.23 acres.  The proposed lot sizes in Phase 1 will range from 1.15 acres to 2.29 acres.  The subject property is in an area designated “Conservation” by the 1993 Comprehensive Land Use Plan for Henderson County and the area is currently zoned Open Use.  The subject property is also located in a Water Supply Watershed II district.  Mr. Cook stated that according to the USGS topographical map, the subject property contains several perennial streams.  He said there would be private residential roads, individual wells, and septic systems that will serve the proposed development.

Mr. Cook stated that with regard to the Master Plan, all technical requirements have been satisfied.  He then reviewed the Development Plan comments:


  1. Soil Erosion and Sedimentation Control – The Applicant should submit notice from NCDENR that a soil erosion and sedimentation control plan has been received or provide documentation that no plan is required prior to beginning construction (HCSO §170-19).


  1. Common Area – The Applicant has designated a 5.9-acre common area at the entrance of Phase I. There is an existing house on the property. The plan notes that the common area may include a clubhouse, pool, tennis courts, and playground. Future structures on the common area must meet the applicable zoning and/or watershed requirements. Such special use lots must be clearly identified for their designated use on the Final Plat (§170-31B). Non-residential development is subject to built-upon area requirements of the Water Supply Watershed Protection Ordinance.


  1. Perennial Stream and Buffer Area – The Applicant has acknowledged on the Development Plan the 30-foot building setback from perennial streams required by §170-37A of the Subdivision Ordinance. Such setback must be noted on the Final Plat (HCSO Appendix 7).


  1. Compliance with other provisions- The proposed subdivision must comply with other applicable County Ordinances including, but not limited to, the Zoning Ordinance and the Water Supply Watershed Protection Ordinance (HCSO §170-7). The property is located in a Water Supply Watershed II (WS-II) area. Per §192-13C of the Water Supply Watershed Protection Ordinance (hereinafter, the “Watershed Ordinance”), single-family residential development in WS-II areas cannot exceed one (1) dwelling unit per 40,000 square feet, excluding right-of-way, except within approved cluster developments. The Applicant has not proposed a cluster development. In addition to the perennial stream setback in the Subdivision Ordinance, §192-15 of the Watershed Ordinance requires a minimum 30-foot vegetative buffer along all perennial streams. Desirable artificial stream bank or shoreline stabilization is permitted. §192-15 also limits development in the buffer to “…water dependent structures, other structures such as flag poles, signs and security lights which result in only de minimus increases in impervious area and public projects such as road crossings and greenways where no practical alternative exists.” Projects have to minimize built-upon surface area, direct runoff away from surface waters and maximize the use of stormwater best management practices. There are other applicable sections in the Watershed Ordinance however §192-17A provides a general statement worth noting:


No building or land shall hereafter be used and no development shall take place except in conformity with the regulations herein specified for the watershed area in which it is located. All development must minimize built-upon surface area, direct stormwater away from surface water and incorporate best management practices to minimize water quality impacts.


In addition, §192-22 states the following: No activity, situation, structure or land use shall be allowed within the watershed which poses a threat to water quality and the public health, safety and welfare. Such conditions may arise from inadequate on-site sewage systems which utilize ground absorption; inadequate sedimentation and erosion control measures; the improper storage or disposal of junk, trash or other refuse within a buffer area; the improper management of stormwater runoff; or any other situation found to pose a threat to water quality.  The applicant should address the measures that will be taken to ensure that the proposed development will adhere to the Watershed Ordinance. The County’s Watershed Administrator is responsible for administrating the Watershed Ordinance.


5.      Private Roads – The Applicant should clarify which roads will be built to private collector standards and which will be built to private local road standards before any construction occurs (HCSO §170-21, Appendix 5)


6.      Private Roads – Because private roads are shown, the final plat should include a note stating: The private roads indicated on this Final Plat may not meet requirements of the North Carolina Department of Transportation for acceptance into the state road system (Appendix 7).


7.      Stormwater Drainage – The applicant should address whether any drainage easements are proposed (HCSO §170-29C).


8.      Off-Site Access – Any tract of land to be subdivided must either have frontage on an existing public (state-maintained) road or a private right-of-way to a public road. The applicant has proposed a 60-foot right-of-way as access to the development parcel from Whitaker Lane across Thomas W. Moore’s property. This is the only proposed means of entrance/exit to the property. The applicant has supplied a copy the Offer to Purchase and contract regarding the right-of-way.  The Applicant should provide evidence that such right-of-way has been secured prior to beginning construction (HCSO §170-28).


Chairman Pearce asked whether the legal department has reviewed the contract?  Mr. Cook stated that it has.  Mr. Russell Burrell, acting County Attorney, stated that the applicant has a document entitled “Vacant Lot Offer Purchase Contract.” He said that it is fair to say that if either of these parties chose to attempt to break this contract they could, because in fact it is an agreement to agree.  It does not specifically list where the right-of-way is or how it will be determined other than by future agreement between these two parties.  He said that as long as they are in agreement to these terms and until they chose not to abide by it, they have an agreement between them.  It is not enforceable by a third party at this point.  He said when you have an approved subdivision, you could not have just this agreement, an actual deeded right-of-way would be required according to the Henderson County Subdivision Ordinance.  Mr. Carpenter stated that he feels that it would be appropriate as one of the conditions that the deed for the right-of-way is shown to Staff before the subdivision is recorded.


Mr. Cook stated that Staff has some other comments dealing with this subdivision regarding the terrain of the property.  He stated that the terrain appears to be quite steep in certain locations.  He said that the applicant should provide a road grade profile illustrating how the roads will be constructed to meet the County’s road grade standards.  Staff has also provided an attachment from Tom Burnet of the County Soil and Water Department, in regards to considering creating a conservation subdivision for the property.


Mr. Cook stated that if all of the above listed conditions and any other items raised by the Planning Board are addressed the submittal may satisfactorily address the technical requirements of the Henderson County Subdivision Ordinance. 


Chairman Pearce asked whether there is anything in the Henderson County Subdivision Ordinance that requires a road grade profile at any point during the process, other than it be notated properly in the Final Plat?  Mr. Cook stated yes, and Staff received a certification from the surveyor/engineer indicating that these road grades would not exceed 18 percent.  He said that with that certification, we accept that they will meet that requirement.  (Chairman Pearce asked Ms. Scanlan, Secretary to the Planning Board, to note for Ms. Smith, Planning Director, for the Subcommittee on Subdivision Issues to possibly consider at their next subcommittee meeting a Staff requirement for road grade profile and additional things the Board might want to add to it on difficult terrain situations). 


Terry Baker with Associated Land Surveyors stated that they have been in contact with Mr. Tom Burnett about entertaining the method he suggested in his letter to allow these buffers to be a tax break or acquiring riparian buffer conservation easements to protect the water quality of the watershed.  Mr. Baker stated that the applicants are interested in this not only for monetary reasons but also for protecting these streams.


Paul Patterson stated some of his concerns regarding this development.  He said he felt that one of the requirements of the Development Plan was that roads grades were needed to be shown on the plan.  He feels that just certifying that the road grades will not exceed is not enough, that they should be shown as well because it is hard to visualize every road.  He asked why Staff would waive that standard?  Mr. Cook stated that he does not feel they waived that standard but that in the past a note on the plan indicating that the road grades will not exceed this amount has been sufficient.  He said it was not introduced to him to require specific grades illustrated at each or within on the road(s) that they are proposing.  Mr. Cook stated that if it is in the Ordinance, then it is an oversight on his part and he would request that they do it then, it is just nothing that he has come across before.  Mr. Patterson stated that he was also concerned regarding the acreage outside of the road right-of-way and whether the acreage includes the road right-of-way.  Mr. Patterson also mentioned that on the Development Plan culverts depicted show diameter and type but not the length and this should be shown.  Mr. Cook said that the culverts and drainage profile that he shows on the Plan satisfies Staff requirement and he feels that this is how he interprets the Ordinance.  Mr. Cook added that perhaps there needs to be some more details regarding the slope of the land, and the flow of the water.  Mr. Patterson stated that he knows that the length of the pipes should also be shown and feels that it is a requirement.  Mr. Cook referred to Section 170-29 (B) regarding stormwater drainage and stated, “All roads, bridges and major culverts shall be designed according to state road standards.”  Mr. Patterson reiterated that in the plan details it does not show the actual pipe length and that is required.  

Mr. Terry Baker stated that he is here at the meeting tonight on behalf of the applicants and stated that he did the survey and the topographic work as well as the boundary work on the property.  He said that Cape Fear Engineers of Wilmington, North Carolina, is doing all the engineer work on the project.  He said that Cape Fear Engineers are in the process right now of doing the road profiles, a soil and erosion plan, and also a stormwater plan on the project, which will incorporate the pipe sizes, lengths and adjust them accordingly to fit the road profile.  Mr. Baker stated that there are a couple of areas on the roads that are steep that will have to be addressed.  He said the people who are developing this project have done this before and have gotten into some pretty heavy cuts.  He said the entry through the sixty-foot right-of-way coming in will have a heavy cut and will need some retaining walls.  Mr. Baker mentioned that the Soil and Erosion permits are done and will be presented to the lawyers in the morning.  The final signature on the application was received today and the stormwater plan should be completed in a couple of weeks.  Road profiles are being worked on by the engineers.  Mr. Baker stated regarding Mr. Patterson’s concerns with the road grades on the project, he asked the engineers to review these grades again for the project and they mentioned that with heavy cuts they feel the grades will meet the Henderson County Subdivision Ordinance requirements.  Mr. Patterson stated that he could not vote on this subdivision tonight until he sees road grade plans, because on the map it is hard to determine without this plan.  Mr. Patterson referred to Appendix 5 of the Henderson County Subdivision Ordinance, which states…”If the Development Plan does not contain the required items by the submittal deadline, the application will be considered incomplete…” Mr. Patterson stated that he considers this plan incomplete because he feels the applicant is short of all of the information required.  Mr. Baker stated that he worked with Mr. Cook on these items and Mr. Cook mentioned that everything was sufficient.  Mr. Patterson feels that these issues are not minor and need to be addressed.  Mr. Todd Thompson stated that he agrees with Mr. Patterson especially with the road cuts and grades.  Mr. Patterson stated that in relation to these required items, he feels that they are important to protect the public and who might be buying these lots.  He said there is a lack of good faith on the Planning Board’s part if we ignore these issues.  Mr. Patterson also pointed out on the map that there is a major issue trying to get from Phase I to Phase II of the project from the way it is presented on the plan.  Mr. Baker said he doesn’t understand why there is a conflict in what was submitted to Staff and the Planning Board, as he said he thought both parties worked together.  He said he could have had time to put some of these items together before tonight and thought everything was sufficient. 


Chairman Pearce indicated that he had given full size copies of the plans to Board members Mike Cooper and Paul Patterson because of their expertise in this field.  Chairman Pearce asked whether Mr. Cooper had any input.  Mr. Cooper stated that it is a lack of a lot of information and how are they going to do it.  He said he has no idea what they will have when everything is done, as there are some tough spots in the subdivision.  He said Mr. Patterson addressed the issues and indicated his concerns with rights-of-way.  Mr. Baker stated that on the road access, from the property to Whitaker Lane, they will have to keep it within the sixty-foot right-of-way, but the cuts and fills can fall outside of the right-of-way as long as they are in place before any lots are sold.  Mr. Cook referred to Section 170-21 (E), dealing with road construction.  He quoted, “…No stone-based road may exceed the following grades:  15% local residential road and 12% collector, and no paved road may exceed 18% and 16%, respectively.  If combination paved and stone-based road sections are proposed, the paved sections must extend 50 feet from any point a road grade exceeds the minimum for a stone-based road.  The Subdivision Administrator may require that a professional engineer or surveyor certify on the final plat that no portion of the road(s) have grades that exceed maximum allowable grade as defined herein or submit a final as-built graded center line profile showing grade and alignment for all roads.”  Mr. Cook added that he does not feel the Ordinance specifically describes that the applicant needs to document each grade in intervals on a road.  He mentioned that what the Staff is presenting is legitimate.  Chairman Pearce said that he does not feel Mr. Cook has done anything in his presentation of information different from what has been done in the past, but does not include the Board’s right to question additional information, if the Board does not have enough information to make a good decision.  Mr. Cook agreed and did not want to make that impression with what he mentioned.  Chairman Pearce feels that the information is generally concurrent with past information the Board has received on other subdivisions.  Mr. Allison said that if the applicant does not build the proper roads and they do not comply with NCDOT standards, Staff will not sign-off on the plat and the owner will not be able to sell lots.  Chairman Pearce asked at what point can the applicant request a bond?  Mr. Cook stated that if the subdivision is approved tonight, he feels that they can do it right away if they want to bond every improvement of the subdivision.  Chairman Pearce asked, “Who ascertains the amount of the bond?”  Mr. Cook stated that they need to get certified estimates and post at least 125% estimate of what the actual cost would be.  At this time, Board members discussed the road grades on the project.  (Mr. Paul Patterson left the meeting and informed the Board members that he had a previous engagement that he needed to go to).  Mr. Carpenter reviewed the requirements that Board members indicated, such as indication of approximate road grades and curve radii. At this time Chairman Pearce requested a five-minute recess.


Chairman Pearce opened public input.


Tim Brooks.  Mr. Brooks stated that his property borders the subject property in the lower section where the pond is located.  He stated that there is a one-lane narrow road just off of South Mills River Road, called Old Homeplace.  He said that road splits and at the point where it splits is actually his driveway and another property owner’s, but it goes up to the subject property.  He said the length of his road is less than 4/10 of a mile.  It is one lane and approximately 10 feet wide.  Mr. Brooks stated that back in the early 1950’s, Paul Byers was given the right to use the existing road as it was at the time.  He stated that his biggest concern is dealing with the one lane road.  He said that because it is a gravel driveway, what kind of access would the property owners have as well as the developers during the construction of this proposed development.  Also, he is concerned about using this road as an emergency exit, especially if the roads wash out in the development’s lower portion.  He said his road can handle construction traffic for approximately 100 homes.  Mr. Brooks said that although Mr. Byers was given this right to use the existing road back in the 1950’s, the intent was just to access the property, which was approximately 30 acres at that time, not for a development of 160 homes.  Mr. Brooks reiterated that his main concern is what plans do the developers have in using this driveway?


Mr. Carpenter stated that it doesn’t show any access to the subdivision off of that road.  Mr. Baker stated that this road is not to be used as the main entrance.  Mr. Allison asked whether they could access this 10-foot road for the subdivision?  Mr. Carpenter replied by saying they couldn’t because there is no right-of-way shown off of that 10-foot road into any of these lots.  He added that they could come into the back part of those lots from the 10-foot road.  Mr. Burrell added that there can be no more than five lots that can access that driveway if the developer, when they conveyed those lots, conveyed the right to use them.  Mr. Burrell said that under the final approval the Board could deny the applicant that right.  Mr. Baker stated that the intention of the applicant is to not use any of these rights-of-way.  Mr. Baker showed all the locations of the rights-of-way on a map shown to the Board members.  Chairman Pearce asked Mr. Burrell whether there is anything that would legally bind them in any way to use or not use some of these other existing rights-of-way besides the proposed 60-foot right-of-way?  Is there anything that could prevent them to use for construction purposes?  Mr. Burrell said there is nothing that would keep them for being used for construction.  Chairman Pearce asked whether there is something in the Henderson County Subdivision Ordinance that could allow any discretion along those lines?  Mr. Burrell said that he was not aware of anything. 


Mr. Brooks, in closing, stated that there is a 30-foot right-of-way on Old Homeplace Road, but when you turn off on Old Homeplace Road onto Countrywood Way, there is only a 10-foot right-of-way.  Mr. Cook said that what the Henderson County Subdivision Ordinance says regarding off-site access is if you have less than a 30-foot right-of-way, then you need to have at least an acre per building lot.


Ron Thompson.  Mr. Thompson stated he is a resident of Hall Road and a licensed contractor.  He stated that his major concern is with the use of Hall Road with regard to the construction of the proposed subdivision traffic and looking ahead, there will be a considerable impact in the area due to this development.  He stated that traffic this year has already picked up considerably with people surveying and looking for property in the area.  He said that Mills River is a very unique valley made up of a mixture of uses and heritage to a lot of people.  He said that he feels the development is not in the best interest of the people in the area and is opposed to the project. 


Mr. Allison stated that the developer has to abide by the same rules that every individual is required to abide by. 


Kathryn Stein.   She stated that she is a resident of South Mills River Road.  She stated that recently there has been a traffic light installed at South Mills River Road because of the increase of traffic on that road.  She is concerned about the increase of approximately 300 more cars that will travel on that road due to development.  She also added that her well is 350 feet deep on a 12-acre piece of land and the flow is low.   She is concerned with the proposed 160 wells on the development, as she feels it is questionable to do so.


Mr. Allison indicated that the Planning Board does not have the authority regarding the road system.  Chairman Pearce stated that the Board will try to address some of these concerns in its comments to the developer.


David Leeds.  Mr. Leeds stated that he adjoins the proposed development along the creek.  He stated that he is also concerned with the road access on Hall Road and having commercial vehicles travel that road.  He inquired about the 60-foot right-of-way that needs to be deeded before this development is accepted, and said that he had talked with the son of the owner of the development and they do not have a location settled in their mind as to where this road is going.  He asked the Board that if there is no settled or deeded right-of-way, how can you get

permission to go ahead with the project?  Also, if road grade standards are not correct, has there been any contact with the Army Corps of Engineers or the designated party involved?  He mentioned that he works with the State and knows that there are permits required to work in live streams, especially in high-quality waters like South Mills River.  Mr. Carpenter mentioned that this is always a condition with developments that disturb more than an acre of land.  Mr. Leeds asked, who checks road grades?  Chairman Pearce stated that Staff checks road grades and Staff also has the right to require an engineer’s certification on any and all aspects of the road grade.  Mr. Leeds asked that after the development is finished and the road grades are more than the required percentage, what happens?  Chairman Pearce stated that it does not pass and they cannot sell lots until it is rectified.  Mr. Leeds asked if they have already started selling lots, then what?  Mr. Carpenter stated that the Board is not here to answer questions, but he can propose to the Board these conditions before approval.  Mr. Leeds stated that these are some of the things he wants the Board to think about before voting on this project tonight.  Mr. Leeds stated that he is also concerned with septic systems and erosion leaking into the existing pond.  Chairman Pearce stated that the developer is required to get a permit from Soil and Erosion and it is a requirement on all subdivisions unless there is less than one acre to disturb and it is a State requirement.  Mr. Leeds asked whether the Board has the right to deny the existing rights-of-way on Hall Road and the other rights-of-way?  Chairman Pearce stated that the Board will discuss this matter.  Mr. Leeds stated that if the Board has the right to deny the existing right-of-way, he would ask that they deny those rights.


Ray Bryson.  Mr. Bryson stated that he is a lifelong resident of Mills River.  He is concerned with the environmental impact to the community.  He stated that he was also concerned with erosion and sedimentation in the river because of continual building in the area.  He feels that with this large development it will harm the area more.  He asked the Planning Board to consider these factors before making any decisions.


Dick Lange.  He stated that he is a resident of Hall Road and abuts Mr. David Leeds property.  He said one of his concerns with the proposed development is the road use on Hall Road.  He said that it is a private road and the property owners have spent considerable amounts of money maintaining this road.  He asked that the Planning Board take into consideration the concerns of the neighborhood regarding this road right-of-way.  He also stated that his major concern is that his property adjoins the applicant’s 20-foot right-of-way, which runs from Hall Road to the gate to her property, which runs the whole length of his property.  He said that the right-of-way comes within 15 feet of his home.  It has been used through the years to access the applicant’s property.  He said that since the development has been proposed, there has been an increase in traffic.  He said that he is concerned about the right-of-way and its use for construction or for an access or exit from the common area that is proposed, because it abuts on the east side of his property all the way to Mr. David Leeds property.  He said that through the main part of his land runs a stream that starts up at the Byers home on top of the mountain.  He said that this is a bold, clear water stream that comes down through the mountain, through the cove into his property through a culvert.  He said that through the years this stream has supported trout and that other wildlife use this stream and the opening runs down the side of his property.  He said that every time there is some road construction or grading that happens on top of the mountain, the stream fills with sediment and sludge which effects the ponds that are adjacent to his home.  He is concerned about what will happen to this stream when there is major construction and logging going on and is concerned with what will happen to the existing wells when the development occurs.  He added that he is also concerned with regard to the endangered species and wants the area protected.  In closing, he said that he is concerned over the environment and the quality of what is going to happen to the water throughout the Mills River valley because of the proposed development’s high elevation and the possible damage it will cause.  He asked the Planning Board to consider all these factors before making a decision regarding this development and to consider the residents that are living there now and paying taxes and to make sure that if this development occurs, that it be done right.


Mr. Harrison Metzger presented a letter to give to each Planning Board member regarding his input in this matter.


Chairman Pearce asked whether any Board members had any questions.  Mr. Laughter asked, “How does the paper that was submitted by Mr. Tom Burnett correlate with the water problems and the water concerns that the property owners have?”  Chairman Pearce asked Brad Burton, Zoning and Watershed Administrator, to give some input at this time. 


Mr. Burton stated that he has seen no hard numbers other than proposed lot densities.  As far as the lot densities that have been presented, they do comply with the Watershed II requirements.  As far as the permitting process is concerned, any building that is undertaken on this property is subject to the Watershed Water Supply Ordinance and would have to comply with those requirements.  He said that the WS-II Watershed allows a maximum of one dwelling unit per 40,000 square feet of lot size.  All other residential and non-residential development shall be allowed at a maximum of 12% built-upon area such as a clubhouse or swimming pool.  He stated that each individual house, clubhouse, swimming pool, etc. is done on a case-by-case individual basis and if it does not comply, they do not get the permit.  He stated that is all he is prepared to say tonight regarding this matter.  Mr. Allison stated that according to Mr. Burton’s watershed figures, the developer could increase their lots to approximately 300 lots, if the topography allowed it as well as other conditions.  Mr. Burton stated that is correct.  After some further discussion, Chairman Pearce asked Terry Baker, agent for the applicant, to discuss some conditions that the Board has discussed.


Chairman Pearce asked Mr. Baker to talk about some conservation issues.  Mr. Baker, as indicated previously, stated that he has talked with Mr. Tom Burnett on several occasions regarding conservation easements as indicated in his letter and has passed this information along to the developer, who has interest in getting a tax break on the protection of these streams.  He stated that they are trying to get an easement around these perennial streams for protection.  Mr. Baker stated that in discussing this issue with Mr. Burnett.  He said that the State is willing to buy the rights to these easements.  He said at this time, he is not sure what his client is planning to do.  Chairman Pearce asked, “In these discussions with your client, has there been any talk of changing or reconfiguring any of these lots?  If so, will the Master Plan and Development Plan be changing significantly in the near future?”  Mr. Baker stated that he does not believe so.  He said that other than addressing the one issue of the road, going up to the steep part, there might be some adjustments there.  He said the average of the lots there will be approximately 1.6 to 1.7 acres as a whole for Phase 1, so there could be some alterations.  Mr. Baker said that everything is in place for closing next week pending what happens tonight.  He added that they have written real estate contracts on the two tracts as well as for the right-of-way.  Mr. Allison asked about the other rights-of-way.  Mr. Baker said none of the other rights-of-way are big enough to serve any of this property.  He said that the Henderson County Subdivision Ordinance says that in order to do more than ten lots, you need to have a right-of-way bigger than these rights-of-way.  Chairman Pearce stated that the issue seems to be by the adjacent property owners regarding construction traffic, deterioration, and who will repair their road if there is damage to it.  Mr. Baker stated that as far as he knows, the developers have no plans to use anything other than the main entrance to get there.  Chairman Pearce asked whether the developer is willing to state that they will not be using any of the other easements other than the 60 foot designated right-of-way?  Mr. Baker stated that he could address that to them, but he did not know.  He stated that they have not made any provisions to allow these rights-of-way to come across and serve anything in the applicant’s property.  He said that the applicant has no plans to keep a right-of-way there and serve the property owner’s home.  Mr. Allison said that he likes to protect the property, but it is going to be developed.  He feels that Homeplace Road will not be able to support any trucks or any type of construction machinery.  He said that if the owners could agree not to use any of the other rights-of-way, they would not have as much opposition on this development.  Mr. Baker stated that he would need to address that issue with the property owner.  Mr. Baker stated that the owners could put in a provision.  He said it will take about three to four weeks to build the front road and there might be a possibility that Homeplace Road would need to be used a time or two, but once the road gets in, he can’t see them using that road.  Mr. Baker stated that he could address this issue with the property owners and the approval could be contingent on their response to that.  Mr. Allison asked if the Planning Board could make that contingent?  Chairman Pearce stated that he was not sure. 


Mr. Carpenter stated that the problem with this development is that it is going to have significant impact on the river, creeks and everyone that is down below the development.  He said that the Planning Board has discussed in the past that there should be some sort of sedimentation issues that the County does.  He said that they have looked at that, but the County would need to hire engineers, so the County has not done that and instead, gave it for the State to do, and he feels that they do a poor job.  He stated that the County has not passed any type of ordinance to not permit development above other existing developments and he feels that there is nothing in the statute that he is aware of as well.  He quoted from the Water Supply Watershed Ordinance, Section 192-22 which states: “no activity, situation, structure or land use shall be allowed in the watershed which poses a threat to water quality and the public health, safety and welfare.”  He stated that he feels it does not pose a public health, safety or welfare issue, but does pose a threat to water quality.  He said that the County has shied away from that, time and time again, and has not dealt with that.  He said that he does not see anything in the Ordinance that would permit him to say that they cannot develop this.  He said he was very unhappy with this.  He feels that it will need to meet the road standards and the other issues that have been brought up, but that is what the Planning Board has always required.  Mr. Cooper stated that he feels about the same and added he does not know how erosion on this property will not occur.  He stated that the biggest concern he has is the developers proposing an erosion control plan that the State is going to approve for the roads and construction.  Once they start selling lots, there will be no erosion control permits for every house that is graded out and built on that mountain.  He feels that the State will regulate the entire piece, but when you start building and disturbing less than an acre of land, no permits are required.  He is concerned with the development and what it will do to the pond and streams.  He said he is torn as to how the Planning Board should regulate this, as the Planning Board does not have anything in their power to regulate some of their concerns.  After some further discussion, the Planning Board discussed the idea of sending this development to a subcommittee.  Chairman Pearce asked the Board members, “what do we intend to accomplish by sending it to a Subcommittee that we are not going to accomplish tonight?”  Mr. Carpenter felt that the advantage of having a subcommittee meeting would be getting road grade information from the engineer.  Mr. Allison stated that he has no problem with the environmental issues.  He feels that the State will regulate that piece of property and also the Planning Board does not have any jurisdiction over this issue.  He said what concerns him is the adjacent right-of-way issues.  Mr. Carpenter asked whether NCDENR has different rules for watersheds than they have for other areas as far as being stricter in the watershed?  Mr. Baker said that they do.  He said under these classifications (WS I, II, III, IV), the implements you need to put into place such as the length of time and other issues are considered and kept in place because it is designated as high quality waters, making the rules very stringent.  He added that they will also be doing a storm water plan, controlling the water on top and what to do with it long term.  Chairman Pearce asked whether the new owners have signed the application?  Mr. Baker said that the closings are happening next week and that the people who are buying the property are the parties that are assuming responsibility for all these issues.  He said there are two homeowners that are selling the property that didn’t sign these applications, but he feels that the financial people are the responsible parties.  Chairman Pearce said that he feels they are liable for it.  Mr. Cook said that the Ordinance requires that the property owner(s) sign the application or at least fill out the agent form, then the agent has the ability to sign the application form.  Mr. Burrell stated that the sixty days does not start until that is done.  Mike Cooper made a motion that the Planning Board send the proposed plans to a subcommittee for further review and discussion.  Tommy Laughter seconded the motion.  Mike Cooper, Tommy Laughter, Todd Thompson, and Tedd Pearce voted in favor of the motion.  Walter Carpenter and Leon Allison opposed the motion.  The motion carried.  After some brief discussion, Chairman Pearce stated that there are some significant issues that the applicant needs to address before the subcommittee meeting: 


(1)   The application needs to be signed by the owners or their agent.

(2)   The applicant needs to provide a road grade profile for the proposed development.

(3)   The applicant should show lot sizes excluding right-of-way.

(4)   The applicant needs to show the diameter, type and length of the culverts and drainage pipes.

(5)   With the public concerns over the impact of the use of the existing rights-of-way for construction and possibly later lot owners in the proposed development, Board members ask that the applicant present how these rights-of-way will be used and if the applicant could voluntarily consider restricting use of such adjacent rights-of-way.


Chairman Pearce scheduled the Subdivision Issues Subcommittee meeting for this matter for Tuesday, September 23, 2003 at 4:00 p.m. in the meeting room of the Land Development Building.  The members of the Subcommittee include Walter Carpenter, Chairman, Mike Cooper, Paul Patterson and Tedd Pearce.  Chairman Pearce asked Staff to inform Paul Patterson of the date and time of this meeting.




Subcommittee Assignments and Meeting Dates.  No other Subcommittee meetings were



Adjournment.  There being no further business, Mike Cooper made a motion to adjourn and

Tommy Laughter seconded the motion.  All members voted in favor.  The meeting adjourned at 

9:20 p.m.








Tedd Pearce, Chairman                                                         Kathleen Scanlan, Secretary