October 21, 2003


The Henderson County Planning Board met on October 21, 2003, for its regular meeting at 7:05 p.m. in the Board Room of the Board of Commissioners Meeting Room, Henderson County Administration Building, 100 North King Street, Hendersonville, NC.  Board members present were Tedd Pearce, Chairman, Walter Carpenter, Vice Chairman, Leon Allison, Paul Patterson, Kevin Keefe, Cindy Dabaibeh, Tommy Laughter, and Mike Cooper.  Others present included Derrick Cook, Planner, Karen Smith, Planning Director, Russell Burrell, Acting County Attorney, and Kathleen Scanlan, Secretary.   Board member Todd Thompson was absent.


Approval of Minutes.  Chairman Pearce called the meeting to order and asked for the approval of the September 16, 2003 minutes.  Paul Patterson noted one change to the minutes.  He referred to page 5 of the minutes, which showed a typographical error (the word “links” should read “lengths”).  Mr. Allison made a motion to approve the minutes with the change indicated and Mr. Patterson seconded the motion.  All members voted in favor. 


Adjustment of Agenda.   Chairman Pearce stated that the only adjustment to the agenda is concerning Item 7 regarding Carriage Park Planned Unit Development – Proposed Amendments to Common Area Related to Clubhouse Renovations.  He stated that the applicants have requested that this item be postponed until the Planning Board’s November meeting.  Chairman Pearce stated that Planning Staff received a letter from Gerald Liedl, Chair of the Carriage Park Homeowner’s Association indicating this request for postponement.  All Board members were in agreement and there were no other adjustments to the agenda.  (Walter Carpenter arrived to the meeting at this time).


Annual Election of Officers/Appointment of Secretary.  Chairman Pearce presided over the annual election of officers and asked the members to offer nominations of officers.  Leon Allison stated that he would like to nominate the same officers that are presently serving.  Tommy Laughter seconded the motion and all members voted in favor.  Chairman Pearce reappointed Kathleen Scanlan as Secretary to the Planning Board.  All members voted in favor.  The officers for the coming year are Tedd Pearce, Chairman; Walter Carpenter, Vice Chairman; and Kathleen Scanlan, Secretary.


Staff Reports.   Ms. Smith stated that there were no Staff reports at this time.




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.  Ms. Smith stated that at the September 16, 2003 Planning Board meeting, Board members agreed to send this application to the Subdivision Issues Subcommittee for review and recommendations.  In addition, Board members asked the developer’s agent to supply some information to the Subcommittee.  Mr. Terry Baker did submit a revised Master and Development Plan for Phase I and road profiles to the Planning Department on September 22, 2003 and she mentioned that all members have reduced copies of the revised Master and Development Plan and there are also full-sized copies available.  She stated that Staff has given each Board member a summary of the results of the Subdivision Issues Subcommittee meeting as well as a few other updates on some issues that had been discussed previously regarding this development.  She stated that the Subcommittee reviewed this development and after hearing from the applicants and the general public and from Mr. William Beck who is with the N.C. Department of Environment, Health and Natural Resources, Land Quality Division.  She stated that the Subcommittee, on a split vote, on the recommendation to send the Board a favorable recommendation, the vote was two-two and the Subcommittee members decided to send it forward as a split recommendation.  She stated that Staff included a draft of the minutes from that Subcommittee meeting.  Ms. Smith stated that the Subcommittee members had asked if any additional plans they would want to be notified.  Ms. Smith stated at the time the packets had gone out Staff had not received any revised plans, however, Staff received copies of an erosion control plan, a storm water plan and construction plans with more detailed road information yesterday.  Ms. Smith stated that the erosion plan had not been revised to show a change in the layout of Buckhead Trail that you had on the revised Master and Development Plan, but the other plans did show that revision.  She added that a copy of a memo from Staff has been distributed to all Board members incorporating some additional new issues that have come up at the Subcommittee meeting as well as issues from the last Planning Board meeting.  She said that the packet which the Board members also received contained a letter from the applicant, Mr. Scott McElrath, requesting that the Planning Board allow provisions to be added to the application that would require that the people who build homes in the development submit for approval an engineered soil and erosion plan.  She stated that she was not clear on that letter as to who they should submit it to, but believes it is to the developer or the homeowner’s association, but that is something that the Board will have to clarify.  The Subcommittee had been told that the Planning Board could impose additional conditions on the developer if the developer made that as part of his application and that is the intent of that letter regarding the individual erosion control plans.  Regarding an update on the Water Supply Watershed Ordinance issues, she stated that at the Subcommittee meeting she had brought up a point on whether or not a 100 foot buffer would be required along perennial streams in the area where they are proposing common area.  She said that that area would be treated as non-residential development under the Watershed Ordinance.  She said that they have learned from conversations with the State Water Supply Watershed program, that the intension of the State rules is that in areas that you exceed, what is called a low-density option, which is your basic percentage that you would need to use the 100 foot buffer, whether you were using the 10/70 rule or going to a high-density option, which the County’s Ordinance does not allow for.  She said that the State said that the 100 foot buffer would be applicable, even if it is not in the County’s Ordinance, it is still a State rule so it does apply.  Mr. Carpenter stated that this is only relative around the area of where the lady’s house is located now.  There is no other area that is impacted by that?  Ms. Smith stated that since they are not proposing to do the entire development on a built-upon area basis, it is only applicable where they would do the common area and only if they have to apply to the 10/70 rule.  Mr. Carpenter stated that it is approximately six acres of land that we are talking about.  Ms. Smith stated that the developers do not have specific plans at this point for that, but Staff was wanting to make this as a point for information so that everyone knows that this may apply.  Ms. Smith stated that Staff has also asked the State Water Supply Watershed Protection Program to look at the plans and they agreed to do so.  She indicated that there is a copy of the e-mail in the packet of their reply based on State rules.  Ms. Smith indicated that it states that the project meets or exceeds the State requirements for projects in a WS-II area.  She said they also indicated that they were pleased to hear about the proposed plans for the engineered soil and erosion plans on individual lots.  They also noted the 100 foot buffer requirement for perennial streams, should the common area be subject to the 10/70 rule and they also had some suggestions regarding some storm water management and the use of curb and gutter.  She stressed that they were just suggestions and not requirements and have forwarded this to the developer’s agent.  Ms. Smith indicated that Board members also received a copy of a e-mail from Mary Jo Padgett, Executive Director with Environmental Conservation Organization of Henderson County.  Ms. Padgett had asked that her e-mail be used as public input, because she could not be present at this meeting.  She noted that before the Board goes into public input, she also wanted to acknowledge receipt of additional written comments and a petition as well as some information provided by Mr. Phillip Gibson of River Link.  Chairman Pearce asked Walter Carpenter, Chairman of the Subdivision Issues Subcommittee whether he had anything to discuss with Board members about the Subcommittee meeting.  Mr. Carpenter stated that he did not have anything to add. Chairman Pearce asked Board members to take a few minutes to review the items that they received at tonight’s meeting before continuing the meeting.  Chairman Pearce asked Mr. Scott McElrath to speak to the Board.


Mr. McElrath had Mr. Terry Baker, surveyor for the project, speak regarding the specifics that Mr. Paul Patterson had questions about the project and he stated he would then summarize the issues. 


Mr. Baker stated that he would like to review some of the issues that were brought up at the last Planning Board meeting.  He said that he has submitted a full road profile including curbs, grades and other details regarding the subdivision for all three phases.  He also mentioned that a complete storm water and erosion control plan for Phase 1 was submitted and that he received from the engineers tonight, entire storm water plan for the entire project for submission.  He said that the engineers are present for any questions that any Board members might have.  He stated that from the last Planning Board meeting, there was an issue regarding wetlands on the property that was mentioned.  Since the last meeting, Mr. Terry Baker and Mr. McElrath met with David Baker from the district Corp of Engineers and walked the entire property of Ms. Clodfelter and found no wetland areas.  Mr. David Baker found some small pockets within four to five feet of the creek, which is standard.  He said that having the 30-35 foot buffers would keep from disturbing any of these areas.  Mr. David Baker also pointed out some areas that the developers could re-vegetate some stream and mentioned that what has already been done for the disturbance by the length of the streams, fell within the State limits. 


Mr. Scott McElrath stated that since the last Planning Board meeting he has met on several occasions with Carolina Mountain Land Conservancy people.  He stated that he is looking at preserving these streams through the Conservancy.  They have suggested a 50-foot buffer compared to the County’s requirement of 30 feet.  He said that in looking at this, he feels that eight lots would be affected.  He said that he is still searching for the best method.  Mr. McElrath stated that he also has talked with Tom Burnett with the Department of Natural Resources as well as Phillip Gibson of River Link.  He said that regarding his meeting with Mr. Gibson; they discussed storm water runoff with individual property owners.  He stated that in talking with Mr. Gibson, he found that there is many things that are inexpensive methods that can be done to lessen the damage that storm water can cause.  Mr. McElrath stated that in studying these methods, he is considering several different potential remedies.  He feels that it will be a combination of things that they will adopt, but it will need to be studied.  Mr. McElrath stated that he has had discussions with Mr. William Beck with NCDENR, Land Quality Section.  He asked Mr. Beck to draft the standards by which they could use to assist the homeowner and the engineered soil erosion plan.  He said that it is important that the plan be a performance based plan, not a prescriptive plan, so whoever is improving it will not be held liable in the event of a failure.  He stated that they have incurred the engineering cost of the entire project in about fifty days.  He said he feels it is a bit of work to be done and submit.  He feels that he has done all that he can do to obtain the information the Board has requested.  He said if they had known that all of these requirements had to be met, they would not have made their application the time that they did.  Mr. McElrath said that Mr. Beck would draft the standards needed that will be enforced when that time comes and a few years down the road, when the homeowners association is formed, they will enforce that part of the covenants. 


Mr. McElrath stated that when he met with Mr. David Baker, he was under the assumption that the project had wetlands, which means certain types of plant growth and soil that is perpetually wet.  Mr. Baker brought his equipment and tested the soils and found that there are no wetlands, but instead, damp areas around those streams.  Mr. McElrath stated that he also talked over the phone with a man who is the regional director with the N.C. Division of Water Quality.  He said that he explained to this man the other people he had spoken to, met and have taken to the property, but he declined after he had spoken with Mr. David Baker.  Mr. McElrath welcomed anyone to come to see the property and added that they intend to protect the streams.  Mr. McElrath stated that in speaking with Mr. Phillip Gibson of River Link, and N.C. Division of Water Quality, he feels that conservation easements is the route they will take not for monetary reasons but for protecting these streams and the water quality of the watershed.  Mr. McElrath stated that where he can give more, he will, but that will be determined partly by economics, where the road is and by the grade of the land. 


Mr. McElrath referred to a letter written by Harrison Metzger, which stated that the developer has threatened to sue Henderson County if the Planning Board withholds approval.  At that time, Mr. McElrath asked Board members whether he had threatened anyone?  Chairman Pearce answered for the Board members by stating that he had not heard of any threat.  Mr. McElrath also answered from a petition that was handed out regarding road grades.  He said that the greatest road grade limit in the project is 16% and that there are engineered drawings to show the specifics.  Mr. McElrath reviewed the items on Mr. Gibson’s input sheet, which needs to be addressed:


(1)   Post construction and sedimentation and erosion control – Mr. McElrath stated that he has adequately addressed these issues.  He added that not only are we required through the construction process the erosion control measures in place, but that the development will be monitored by Mr. William Beck.  He added that they have required every homeowner to have an engineered soil and erosion plan approved, prior to construction.  Mr. McElrath stated that he wants to implement a 50-foot buffer minimum where they are able, which would protect sediment from entering adjacent streams.

(2)   Storm water – Mr. McElrath stated that they do not have a storm water management plan, however it can be complimented by some of the methods that he has learned by Mr. Phillip Gibson.  He said that they are not limited to what they have presented.  He said the recommendation for management strategy is with regard to the sedimentation, which sites a State law. 


Mr. McElrath stated that he has tried to address every legitimate concern with a solution.  He said that he thought that he had been doing something right with their curb and gutter.  The reason being, the grass ditching that everyone supports, especially around cold water streams is ideal with 4% road grade or less.  Mr. McElrath stated that where there is a 4% grade or less, they consider doing that.  Mr. Gibson also suggested narrowing the roads.  Mr. McElrath stated that the roads cost approximately two million dollars and added that he would love to narrow the roads and eliminate the curb and gutter as suggested but he needs to do whatever is applicable. 


Chairman Pearce noted that he had received a call from residents of Mills River, Curtiss and Jean Poteat, which Staff had taken on his behalf, which stated that they were against the Homestead Development because they want to see that the character of the area is preserved. 

Chairman Pearce opened public input at this time.


Ron Thompson.  He asked the Board to look at the future of the residents in that area of Mills River.  He added that he has lived in the Mills River area for over 35 years and rejects the development along with many who he has spoken to.  He feels that there are many environmental issues that need to be dealt with concerning this subdivision.  He does not feel that the Board should treat this subdivision like any in the past as this property lies in a watershed that supplies both Hendersonville and Asheville with pure drinking water.  He feels with the development of this subdivision there will be problems with water run-off, impacting the water quality greatly as well as wildlife in the area.  He is also concerned with septic issues caused by the number of homes developed in the subdivision as well as the wastewater produced at the clubhouse common area. 


Jenni Pannell.  She is concerned with lots in the development with streams running through them and the impact on the environment.  She feels that there will be long term detriment to the life style, rural beauty, and environment of the community.  She also mentioned her concern with the amount of septic systems and wells, which will be produced by the development.  She added that this development would have irreversible affect on the Mills River Watershed. 


Bill Price.  Mr. Price who lives near Hall Road and gave a brief historical background of that area and asked that it be investigated before any development occurs.  He added that he believes that a section of the property may be an Indian burial ground.  He also showed some Indian artifacts that has been found in that area.


Gene Orrew.  He signed under public input but did not wish to speak at this time.


Jon Vannice.  He signed under public input but also wished not speak at this time.


Ray Bryson.  Mr. Bryson stated that he is a lifelong resident of Mills River.  He is concerned with the environmental impact to the community when this development occurs.  He stated that he was also concerned with erosion and sedimentation in the river and the impact on the Mills River Watershed.  He added that because he has been a volunteer fireman in the area for some years, he asked that the Board would recommend that the roads in the development accommodate for large fire apparatus safely so that during emergencies there will be no problems get into and out of the development.    


Ramona Bryson.  She stated that one of her major concerns regarding this development is the protection of life and property.  She has concerns with the impact on the school system in Mills River as well as the road issues that the development will present.  She feels that if this development is approved, it should be on a smaller scale of homes.


Eva Ritchey.  She discussed the environmental aspects of this development and especially with regard to water quality and septic tank problems that will arise because of the development.  She was strongly opposed to having this subdivision in this area. 


Phillip Gibson.  He stated that his title with River Link is French Broad River keeper and also mentioned several other organizations that he serves on regarding sedimentation, stormwater, and water quality for the region. Mr. Gibson stated that as his job as river keeper for River Link, he is suppose to serve as a voice of the river, making sure that things that are happening are not impairing the river.  He stated that in his letter he has given a list of recommendations to minimize problems that could occur.  He mentioned that within this development there are trout streams, which have some requirements.  He stated that there should be requirements for all land disturbances, even those below one acre.  He stated that at a minimum, there should be a 25-foot undisturbed buffer requirement, but as discussed previously with Mr. McElrath, should he implement a conservation easement, a 50-foot buffer minimum is desirable, as this would control some sediment from entering adjacent streams.  He mentioned with regard to storm water, he would require on-site treatment of stormwater.  He said that storm water is the long term impact.  He mentioned that streams within areas of greater than 10 percent of impervious coverage are subject to degradation, which means loss of aquatic life and loss of water quality.  He mentioned that in the development, there needs to be technologies that will control sediment and storm water over the long term.  He mentioned with regard to the development of the roads, that the road system should treat stormwater through grass channel systems rather an curb and gutter and that the grade of the roads should be 12% or lower.  He also suggested that on-site treatment for each home site could institute a measure such as rain barrels that would capture and treat the stormwater on-site from its origin.  Mr. Gibson stated that regarding the on-site septic system in the development, he has heard concerns tonight from the public that there is a process where the Henderson County Environmental Health Department can issue a permit or not issue a permit on whether the soil will perk.  He said that if the County denies a permit, there is an opportunity for an engineer to sign off on the on-site septic system based on their license.  He added that he also senses from the public that if this is allowed, it will not allow for proper management, site review or field review.  He feels that this matter is something that the Planning Board needs to look into and see if that is, in fact, a policy that is allowed.  Mr. Gibson stated that there could be an opportunity to administer a research project performed by the N. C. Division of Water Quality, which would have monitoring wells stationed throughout this development for possible ground water contamination.  He stated that this research could help other communities with multiple on-site septic systems that may or may not impair ground water.  Mr. Gibson stated that in summary, the Board will either allow the development to take and utilize the assets fully or look at how to minimize the impact so that if others are coming before you, it will not be so dramatic that you can not go back and repair it.


David Leeds.  He stated that his main concerns with this development is having detailed road profiles so that emergency vehicles will be able to maneuver.  He also feels that the water quality in this development is very important and feels that there should be more restrictions with regard to this.


Walter Carpenter stated that he is concerned with Lots 37, 38, 148, and 149 in Phase 1 in Mills River Way regarding the steepness.  Mr. Davis Sennell with Cape Fear Engineering stated that it does look steep, but has not looked at these individual lots as of yet.  He said there might be some unique things that will need to be done to make those build able sites.  He said that they have concentrated on the main roads and the infrastructure.  Mr. Carpenter asked, “Can you get Mills River Way at 16% grade or less?”  Mr. Sennell replied, “yes.”   Mr. Carpenter wanted to know how that could be done.  Mr. Sennell stated that there is significant fill in that particular location.  Mr. Carpenter asked whether Cape Fear Engineering did the sedimentation and erosion control plans?  Mr. Sennell stated that they had.  Mr. Carpenter asked whether there is a way to project what percent sedimentation would get off of the property?  Mr. Sennell stated that they are looking at none, but during high periods of storm events, that does not happen.  Mr. Sennell said storm events beyond the ten year storm, which is the design storm.  A lot of it has a function of the maintenance of the erosion control measures installed so they are installed properly and maintained properly.  He said that maintenance is the biggest issue with these types of structures.  Mr. Sennell stated that there are some new standards that became effective as of March 2003 that requires increased monitoring of sedimentation and erosion control measures by the developer.  He said that they have always been a part of the plan, but now they are more strictly enforced, monitoring them weekly with maintenance and recordation of rainfall.  Mr. Tommy Laughter asked whether this engineering group did work at Avery’s Creek?   Mr. Baker stated that some of the participants were involved in that job.  Mr. Laughter asked whether they had slope and sedimentation problems?  Mr. Baker stated that they had steeper grades, cuts of 80-90 feet and longer runs than this project.  He mentioned that the roads in Avery Creek are more dramatic than what is in this development.  Mr. Baker stated as far as the sedimentation problem in Avery Creek, it appears to be all stable and everything seems to be all in place.  Mr. Baker said to answer a question that on of the citizens had regarding that none of the engineers were from this county.  He added that the chief engineer on this project is from Henderson County and spent over thirty-six years in this County and has done a lot of work in this County as well.  Mr. Baker stated that as far as the erosion and sedimentation problems, they are all monitored by the State alternately controlled by Mr. William Beck.  Mr. Baker stated that what is not regulated by the County, is regulated by the State. 


Mr. Patterson stated that regarding lot 38, he said he had looked at the road profile and looks like a forty-eight footer of fill in that section.  Mr. Patterson said looking at the erosion control plan, it is shown that the limits of grading at the right-of-way, and he feels it is not correct.  He asked, “How will you handle that spring branch that is underneath the road as there does not appear like there is any storm pipe flowing through it and there will be water that will be trapped on the high side?”  Mr. Sennell stated that there will not be any water trapped on the high side because the high side will be filled as well.  The water from the high side will flow into the streets and into the curb and gutter collection system and on down to the treatment facility.  He said the erosion control plan that was submitted prior to the latest provisions on the planning profile construction drawings and they will be revised to accurately reflect the true limits of disturbance and limits of grading.  He stated that upon approval of the subdivision, the plan will be revised.  Mr. Patterson said that at this time you really don’t know what your limits, the high side, the toe of your field and the top of your cut, you really don’t know?  Mr. Sennell said he will based on that planning profile, but we have not seen fit to revise that plan with the State as the subdivision has not been approved.  Mr. Patterson asked, “What is your maximum toe of your field to the top of your cut, is it 100 foot, or 150 foot maximum cut?”  Mr. Sennell stated that this come into question based on a comment he saw tonight.  He said that we proposed some 1 ½ to 1 slopes on some cuts and fills, but he was directed tonight to revise it to 2 to 1 and added that his understanding is that the Ordinance allows for 1 ½ to 1 slope, but when you have cross slopes in excessive of 20%, it certainly indicates that you are looking at a cross slope of less than 20%.  He said based upon a 48 foot fill at 2 to 1 that is 96 feet plus the 50 foot right-of-way.  Mr. Sennell stated that they really have not looked at the toe of the slope to finalize it.  Mr. Patterson stated that another issue is, will this be a private road and if so, it will have to meet county requirements.  He said he has looked at the vertical curves and usually likes for NCDOT to compare the K-factor for sight distances.  The K-factor is based on the sight distance and it usually is twenty.  Mr. Sennell said that the K-factor by NCDOT regulation is also a function of the speed, so based on our twenty-mile-an-hour speed limit; we used a K-factor of 10.  He said that in some cases we are at the minimum of 10, but largely it is more like 14 or 15 and there might be a problem with sight distance in some areas.  He stated that he will increase the curb length to accommodate the sight distance.  He feels that to minimize the cut in that area, and to achieve the site distance, you need to increase the cut dramatically, maybe by half.  Instead of twenty-five foot cut, there will be a forty-five foot cut.  He said that is more land disturbance, more opportunity for sediment for erosion and we feel like with the speed limit, and the density of traffic on this road that the limited sight distance is appropriate.   He said that if we find that we need to increase it, we will.  Mr. Patterson asked, “Do you think that 20 miles per hour is appropriate speed going down 16% grade per 800,000 foot?”  Mr. Sennell said he certainly does, because he would rather people going slower so they could stop faster.  Mr. Patterson also noticed in the plans that there are a lot of entrance roads that come into your main road at 18% grade starting at the centerline of an existing road.  It looks like it will be coming off the edge of pavement, is that appropriate?  Mr. Sennell stated that typically they do center-to-center design and when it is appropriate, they will grade this out and do a more detail grading plan for the intersection itself.  He said he doesn’t feel that it will be coming off the edge of pavement of an existing road that is 16%, as there will be somewhat of a vertical curve at that intersection.  Mr. Patterson asked do you have that drawing now?  Mr. Sennell stated he did not but that they will do a detailed driveway plan.  Mr. Patterson stated that at the location of Mills River Way, it shows your storm drainage plans within a sixty inch concrete pipe.  He asked how will that be put in as in looking at the plan it looks like you will be cutting into the bottom of the creek, according to your profiles?  Mr. Sennell said that the sixty inch culvert will need to be buried in the stream for environmental concerns.  They will bury the pipe so that whatever depth of flow we might have in the perennial stream is also in the culvert.  He said that with regard to the road grade being cut below, but he doesn’t see, based on the profile, where the actual stream crossing is, so that will need to be adjusted.  Mr. Patterson asked about the valley gutters.  He asked, “Do you think all of the waters will be going into these inlets as they come down at 300 feet when they are picking up speed and do you think some of them will shoot over?”  Mr. Sennell stated that some of them will have some bypass.  He said the model they have done to date is with the most conservative design that they could possibly do.  The pipes sizes that we have developed and brought with us for Phases 2 and 3 are the largest pipes one will ever need.  He said they have modeled a bypass on each inlet and have accounted for it at the next inlet.  Mr. Patterson asked, “On your first road, Buckhead Trail (between lots 28 and 29), I do not know what station that is?”  He said where those two roads come together; they are going downhill into each other basically forming some type of “V.”  Mr. Sennell stated that when it gets to the true intersection of the road without catchments there that would be called a “bird bath” where water would be trapped.  He said he couldn’t tell without looking at the model to tell you what the bypass would be in that instance, but again, we are demonstrating in this design that this subdivision can be built and can meet the County’s Subdivision Ordinance and the County’s standards.  He said there will be some areas that will need some fine tuning, but the necessary work has been done and know that we can do it.


Mr. Sennell noted that the project manager/engineer of Cape Fear Engineering Company, Mr. Perry Davis was born and raised in Henderson County.  He mentioned that the company is located in Wilmington, North Carolina and work in some of the most environmentally-sensitive areas in Wilmington.  He said that the company continually does work in this area and feel that we do a good job.  He said that the sedimentation and erosion plan for this project that has been developed is representative of what we going to do, but it will need to be revised.  He said that they have not fully engineered Phases 2 and 3 and not prepared to build some of those yet, but he feels the plan is representative and will be built in accordance with the regulations, and with proper maintenance it will work.  He said that the State has some good stormwater rules to protect water quality and we will have our designs to meet or exceed all of those requirements.  They are prescriptive measures and the State will tell you what you will do in certain watersheds in terms of treatment.  Mr. Sennell added that the projection for imperious coverage of 22%, State guidelines mandate that in this watershed it will not exceed 18% and that is based on our current plan.  He said that he does not believe that the absorption rate in this development is 100%.  So if 100% of the lots are bought and built-upon, in which case they might approach 18%, they would not be less than that.  He mentioned that the septic tanks rules, with regard to the mentioned –thousands of “ticking time bombs” – have been in the ground for a long time, as a new septic tank put into today would be a “ticking time bomb.”   He feels that as an engineer, there is no such thing as a perk test anymore, as septic tanks are permitted based on soil types, depth ground water table, and separation from other measures such as pipes and ditches.  He said that should a site not qualify for a septic tank, he could not as an engineer stamp it and let one be built.  He added that as an engineer a solution can be done regarding a low-pressure system, heat system, systems that go above and beyond a normal septic tank that will allow a septic system be sited on that individual lot.  Ms. Smith stated that Mr. Cook had told the engineers that he would have to apply if they wanted to use that provision that allows them to have cut and fill slopes of less than 2 to 1 and they can make that as part of their application today and give an indication of where those cross-slopes are greater than 20% and the Board can include that as part of the consideration.  Mr. Allison asked on some of these cut and fill slopes, if you get out there on a project and your building on-site, more fill would be needed to meet the grade, several lots might be eliminated with by this method?  Mr. Sennell stated that it could be.  Mr. Allison added that each engineer has their own opinion on how to engineer lots in a subdivision as far as building buildings and designing.  Mr. Allison asked, “Do you really think that 160 lots will be developed on that site?”  Mr. Sennell stated that he does not know what that absorption rate will be, it’s typically not 100%.  Mr. Scott McElrath projects somewhere around 135-140 lots because there will be some loss of lots due to various matters.  He said over the next three years there could be less than what was initially proposed at the beginning of the project.  Mr. Gibson said that the sediment law and the stormwater regulations are not prescriptive.  He said that they are performance-based standards.  He said William Beck is a person who covers several counties and will not be able to be on-site.  He stated that the laws are performance-based, they are not prescriptive.  Mr. Pearce stated that Mr. Beck indicated to the Subcommittee members at the meeting that he intended to be on-site at least once a week.


Chairman Pearce reviewed the conditions that the Planning Board has raised during this meeting and in some cases, changed a portion of the condition, which are indicated in italics, as follows:

1.      Soil Erosion and Sedimentation Control - Submittal from NCDENR that a soil erosion and sedimentation control plan has been received or that none is required.

  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 (HCSO §170-31B). Non-residential development is subject to built-upon area requirements of the Water Supply Watershed Protection Ordinance.
  2. 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).
  3. Compliance with other provisions - The proposed subdivision must comply with other applicable Federal, State, and County Ordinances. Such compliance should be demonstrated to the Planning Department by the developer prior to beginning construction (HCSO §170-7).

5.      Private Roads – The Applicant should clarify which roads will be built to private collector road standards and which will be built to private local road standards before any constructions occurs. Prior to beginning construction, a revised Master Plan and Phase I Development Plan must be submitted that show typical cross-sections for private local collector roads with cut and fill slopes of 2:1 (the 1½:1 shown on the Master Plan and Phase I Development Plan is correct for private local residential roads). However, the Applicant requested that he be able to implement the provision in the Subdivision Ordinance which allows 1 to 1 cut and fill slopes where the existing cross slope is 20% or greater. The provision would allow him to use 1 ½ to 1 cut and fill slopes on private local collector roads in several places where needed. Staff suggested the applicant show separate cross-sections for the local collector roads and local residential roads and indicate which roads each applies (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 (HCSO Appendix 7).

7.      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. Staff will have it available at the meeting. The Applicant should provide evidence that such right-of-way has been secured prior to beginning construction (HCSO §170-28).

8.      Erosion Control Plans for Individual Lots– Per the Applicant written request to the Planning Board, all persons building homes in The Homestead at Mills River proposed subdivision shall submit for approval by the developer or homeowners association; an engineered soil erosion control plan prior to construction. Prior to final plat approval, the developer should provide to the Planning Department the wording of a covenant regarding erosion control plans for individual lots.

9.                  Project Phases – Per Henderson County Subdivision Ordinance §170-16B, “Upon approval of the master plan and the development plan of the first section of the subdivision by the Planning Board, if successive sections are submitted for review and each substantially conforms to the master plan and where no new lots are created, and all technical requirements and development standards have been met, the Subdivision Administrator may approve the development plans for successive sections administratively.  Under such review, the action deadlines in Subsection 170-16C for the Planning Board shall be the same for the Subdivision Administrator who may, for good reason, refer any section to the Planning Board for review after giving due notice to the applicant.”  The Planning Board decided to require that development plans for future phases of the The Homestead at Mills River be reviewed by the Planning Board.

10.   The Applicant stated that Hall Road and Old Homeplace Road would no be used for construction vehicles except for small repair vehicles accessing the old Clodfelter home.


Mr. Cooper stated that the Subcommittee has discussed that erosion control is a concern with

all of the Board members regarding this development.  He stated that he has discussed this

matter with the director of the water department in regards to sediment getting into the pond

during a ten-year storm and what kind of problems it would cause the City.  He said they still

make water when the river is mud-red, but they basically have to add more chemicals and

have more sediment to clean up and get out of the water.  He said as part of the erosion

control, time will heal that, as they mentioned that Avery’s Creek has been corrected.  He said

the rivers get mud into them especially after a three-inch rainstorm.  He said that everything

seems to be done to minimum erosion, but if there is a storm that exceeds a ten-year rain,

erosion will happen. 


Chairman Pearce asked what is the purpose of the Watershed Ordinance?  Ms. Smith quoted

from the Ordinance and stated: “provisions established in this Ordinance are designed to

manage the uses of land and structures encompassed by watersheds within Henderson

County in order to maintain the high quality of surface waters in these watersheds by

enforcing standards which shall limit the impact from existing or potential sources of

contamination through the regulation of lot sizes and development of intensity.”  Mike Cooper

asked, “Is this property being developed to its maximum potential?”  Ms. Smith stated that

under the Water Supply Watershed Ordinance it does not appear to be, not based on the total

lots and acreage of the parcel.  Mr. Baker stated that with regard to the Watershed Ordinance,

the development could have 282 lots on the property, by the square footage minimum.  Mr.

Cooper stated that the developer is not maximizing the use of this property?  Mr. Baker said

that was right. 



Mr. Carpenter stated that he thought the developers/engineers would do a good job and even

exceed rules to protect from erosion.  He stated that he does not think the issue with septic

tanks are an issue, as that is up to the County and State rules.  He stated that he does think

that the large development would still degrade water quality, according to the Water Supply

Watershed Ordinance rules and added that he feels that when you are talking about the

watershed, this is going to be a significant event to the rivers and that there is no way to stop it

from being a significant event.  He said that he keeps going back to Section 192-22 of the

Water Supply Watershed Ordinance that states:  ”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.”  He said that Mr. Beck stated that it would be a threat to water

quality, even if it is minimized, it will still remain a problem.  He stated that what Mr. Gibson

said was that they are trying to develop ways to minimizing that problem.  Mr. Carpenter said

that he could not support this development as it will be a problem to the rivers and feels that is

the reason why this provision of the Water Supply Watershed Ordinance was put in for.  He

also feels that because of the size of the development there is so much potential impact from

those real steep areas in this large project. 


Mr. Allison added that Section 192-22 continues by stating: “Such conditions may arise from

inadequate on-site sewage systems which utilize ground absorption.”  Mr. Allison stated that

the developers are not proposing this as they plan to go before the health department and get

the proper sewer systems.  He further reads in Section 192-22 “.. inadequate sedimentation

and erosion control measure.”  Mr. Allison stated that before the developers can get approval

and start the subdivision, they will have to have an adequate plan that will be approved by the

State.  Mr. Carpenter added that he does not feel there is an adequate plan, based on the size

of the development.  He said from what he has heard, based on the size, you can not have an

adequate plan.  Mr. Carpenter stated that at the end of Section 192-22 it states…”or any other

situation found to pose a threat to water quality.”  He said that this has been the testimony

from everybody that has known about this development, that it would be a threat to the water

quality.   Mr. Allison mentioned that the acreage where the development is proposed is

beautiful and pristine but that the Board had to vote by the rules not by the member’s hearts. 

Mr. Allison stated that he does not know what the proper thing is for Mills River, but that such

an interpretation would mean halting all development in Mills River.  Mr. Carpenter stated that

he feels he and Mr. Allison disagree on what the rules really are.  Mr. Patterson said to Mr.

Allison that the section of the Watershed Ordinance does not describe all the things that could

arise, they are just mentioning some of the items.  Mr. Allison stated that it states conditions

that “may arise” so are we going to put a moratorium on everything that is built in Mills River? 

Mr. Patterson stated that the rules do not become minor when we are talking about the

watershed.  Mr. Patterson stated that the problem we are having with water quality is not the

water quality of the drinking water, it is the water quality for life itself, the life of the inhabitants

of the water.  Chairman Pearce asked if this proposed development is in the County or is it in

the Town of Mills River?  Ms. Smith stated that it was in the County and outside of the Town of

Mills River, but that it will impact the Town of Mills River. 


Mr. Carpenter asked before making a motion, we need to deal with the Master Plan first and

then the Development Plan, is that appropriate?  Ms. Smith stated if the Board wants to, or

you can do it as one motion.  Mr. Carpenter made a motion that the Planning Board find and

conclude that the Master Plan and Phase 1 Development Plan submitted for The Homestead

at Mills River subdivision, do not comply with the provisions of the Subdivision Ordinance and

that the Master Plan and Phase 1 Development Plan be denied.  Mr. Patterson seconded the

motion.  Tommy Laughter, Paul Patterson and Walter Carpenter voted in favor of the motion.

Tedd Pearce, Mike Cooper, Leon Allison and Kevin Keefe voted against the motion.  The

motion was declined. 


Mr. Allison made a motion that the Planning Board find and conclude that the Master Plan and

Phase 1 Development Plan submitted for The Homestead at Mills River subdivision complies with the provisions of the Subdivision Ordinance except for those matters addressed in the above comments that have been satisfied by the applicant, which are as follows: Conditions 1 – 10 (as previously discussed).  Mike Cooper seconded the motion.  Mr. Patterson felt that a requirement regarding an engineer’s or surveyor’s certification on the final plat as to roads complying with Henderson County Subdivision Ordinance road standards in all aspects is needed to be added as an additional condition.  Ms. Smith stated that the Planning Board can make this as a requirement.  Chairman Pearce added that the Master Plan and Phase 1 Development Plan of The Homestead at Mills River subdivision be approved subject to Condition 11, that an engineer’s or surveyor’s certification on the final plat as to roads complying with Henderson County Subdivision Ordinance road standards in all aspects be added.  Tedd Pearce, Leon Allison, Tommy Laughter, Mike Cooper and Kevin Keefe voted in favor of the motion.  Paul Patterson and Walter Carpenter voted against the motion.  The motion carried.




Status Report on Planning Initiatives – Planning Staff.  Ms. Smith stated that with regard to the US 25 North Corridor Study, Benchmark had gone out of business and have been bought back by the original owner.  She said that we do have a staff member assigned from that new company who has visited us and plans to send a draft survey to send out to the US 25 North citizens in the next couple of weeks.  She said that they would then have a couple of input sessions, which will probably happen sometime in November and early December.  She said that the Planning Board will get involved in this project at that point, as they will bring a draft to Planning Staff and also to the Planning Board of the study.  Ms. Smith stated that she will inform the Board members of when the meeting dates will be.  Ms. Smith also mentioned that the Mills River planning project as far as the Planning Board’s involvement in it, is over.  The Town of Mills River has a lot of work to do between now and March 1, 2004 to adopt a lot of land use related ordinances and she does not see them as having time to spend working with the Planning Board on a zoning study that by the time March 1 rolls around, we will be out of our authority anyway.  She stated that the County is offering assistance to them as they need it to get some ordinances in place and until March 1, 2004 the County will be enforcing most of the land use ordinances that you are familiar with.  She added that the Water Supply Watershed Ordinance is going to continue under the County’s jurisdiction for some time.


Subcommittee Assignments and Meeting Dates.  Chairman Pearce scheduled a

subcommittee meeting for the Subdivision Issues Subcommittee.  The meeting was scheduled

for November 5, 2003 at 4:00 p.m. in the meeting room of the Land Development Building.


Adjournment.  There being no further business, Chairman Pearce made a motion to adjourn

and Leon Allison seconded the motion.  All members voted in favor.  The meeting adjourned

at 10:30 p.m.





   Tedd Pearce, Chairman                                                      Kathleen Scanlan, Secretary