PLANNING BOARD MINUTES
December 16, 2003
The Henderson County Planning Board met on December 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, Chair, Leon Allison, Cindy Dabaibeh, Vivian Armstrong and Paul Patterson. Others present included Derrick Cook, Planner, Karen Smith, Planning Director and Kathleen Scanlan, Secretary. Board members Mike Cooper, Tommy Laughter, Walter Carpenter and Todd Thompson were absent.
Approval of Minutes. Chairman Pearce called the meeting to order and asked for the approval of the November 18, 2003 minutes. Chairman Pearce made a motion for approval of the minutes and Leon Allison seconded the motion. All members voted in favor.
Staff Reports. There were none.
Status Report on Planning Initiatives - Planning Staff. Ms. Smith stated that Insight Research,
Inc., and the Dispute Settlement Center will make presentations to the Board of Commissioners at their January 5, 2004 meeting. She mentioned that the Chairman of the Comprehensive Advisory Committee has asked that the Planning Board and the Advisory Committee have a joint meeting after the Board of Commissioners meeting to discuss the public input from the community meetings and where this project is going. She said that under the Subcommittee Assignments and Meeting Dates, Board members need to discuss the best date to have this joint meeting. She said that on the US 25 North Corridor Study, Planning Staff has sent out a survey to all area property owners for that study area and are starting to receive some responses back from the survey. She said there will be two input sessions scheduled for January 13, 2004, one at 3:00 p.m. and the other at 7:00 p.m. A consultant with CMR Services, which used to be Benchmark, will be part of the input sessions. After some discussion among Board members, it was decided to schedule the joint meeting for January 12, 2004 at 4:00 p.m.
SkyTop Farm (File # 03-M20) – Development Plan Review for Property Located Off North Rugby
Road (60 Lots on 110.62 Acres) – Terry Weaver, Agent for FRE, LLC, Owner. Mr. Cook showed photos of the subject property. Mr. Cook stated that last month the applicant proposed review of the Master Plan for the project and the Planning Board conditionally approved the Master Plan for SkyTop Farm. Mr. Cook stated that the property is a 110.62-acre tract located off North Rugby Road and that the proposed development is for 60 single-family lots in three Phases of 21 lots, 19 lots and 20 lots respectively. He stated that Phase I, the subject of the current application, will encompass 41 acres of which 12.6 acres will be designated common area. The development is located in an R-30 zoning district, a WS-IV Water Supply Watershed Protection district, and a portion of the property seems to be in a 100-year flood plain. City of Hendersonville water, individual sewer and private roads will serve the proposed development. Mr. Cook stated that Staff has reviewed the Phase I Development Plan for conformance with the Henderson County Subdivision Ordinance and offers the following comments. Mr. Cook stated that regarding the Master Plan; the condition imposed should read that it is addressed under the Development Plan, Comment 3, regarding common area. Regarding the Development Plan, the following comments were discussed:
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).
2. Compliance with other provisions – The Applicant is proposing the expansion of the existing pond. Before beginning any expansion, the Applicant should provide copies of any permits required by the Corp of Engineers. “All proposed subdivision of land…shall comply, where applicable, with the requirements of Zoning Ordinance for Henderson County, the Water Supply Watershed Protection Ordinance for Henderson County, the Property Address Ordinance for Henderson County and any other officially adopted plans, maps or ordinances approved by any governmental body or agency having proper jurisdiction” (HCSO 170-7). Mr. Cook explained that Staff felt that the Board, during last month’s meeting, wanted the applicant to look at Building Inspection Department requirements before they plan to renovate any of the buildings on the land, so that is the reason why this comment was included.
3. Common Area – The Applicant has designated a 12.6 -acre common area in the project. There is an existing house, 3 sheds, barn, and storage bin on the property. The plan notes that the common area may include a clubhouse. Future structures on the common area must meet the applicable zoning and/or watershed requirements. If the Applicant intends to use the existing structures in the common area, then the structures probably will need to be reviewed by the Henderson County Inspection Department for permitting purposes. 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.
4. Perennial Stream and Setbacks – 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).
5. 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).
6. Road Grade – The Applicant proposed paved private collector residential roads and paved private local residential roads to serve the property. The road grades are not to exceed 16% and 18% respectively. On the Final Plat, conformance with the road grade standards of the Subdivision Ordinance will need to be certified (HCSO170-21 Table 1, 170-21E).
7. Water Supply Watershed Ordinance Requirement – Single Family Residential Uses: The WS-IV Section 192-12(F)(a) requires one single-family residential dwelling unit per 20,000 square feet lot. The Applicants proposed subdivision is located in an R-30 zoning area, which has a minimum lot requirement of 30,000 square feet. The R-30 zoning supersedes the WS-IV minimum lot size requirement. Note: If the Applicant wanted to cluster development, it would require a Special Use Permit, such as for a Planned Unit Development.
8. Water Supply Watershed Ordinance Requirements- Nonresidential Uses: 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. Note: Water Supply Watershed Ordinance Requirements- Special Intensity Allocation (SIA): Ten percent of the total acreage within the balance of a WS-IV Watershed outside of the critical area may be approved for special intensity allocation. Acreage approved as a special intensity allocation maybe developed with up to 70% built-upon area. If a SIA is granted, there is a 100-foot vegetated buffer requirement from perennial streams in nonresidential and common areas.
Ms. Armstrong stated that under the Staff’s “other comments,” it mentioned that Henderson County is considering the development of a flood damage prevention ordinance that could impact future development of the subject property and she wanted to know how that would affect the property? Mr. Cook stated that if the County implements the flood damage prevention ordinance, it would need to go to FEMA, but that the applicant has no plans on building in that area and it is designated as “open space.” Mr. Cook stated that if they would plan on having lots in that location, it would have an affect on how they could use that land.
Mr. Patterson stated that he noted a few things missing on the plans that are required. He said one of the items deals with metes and bounds boundary that has not been defined. He said another item is dealing with the road section. Mr. Cook mentioned that the road section is covered on the plans indicated as D-3. After reviewing the road section plans which Mr. Patterson had not previously seen, he said he was satisfied. Mr. Patterson mentioned that after looking at the storm pipes, the length of the pipes are not defined and some of the pipes were not defined at all as far as what they were, the size and the type.
Mr. Terry Weaver, manager of FRE, LLC, representing SkyTop Farm, stated that they were pleased with the comments they had received back and felt that it was moving forward at this time. In reference to the stormwater question, he said that they are still working with the Corps of Engineers and know what they need to provide and will be providing that detail to them. He said that at the time of this submittal they could have put something together but they still did not have the Corps of Engineers approval. Mr. Weaver brought up a gentleman with McGill Associates, engineers for the project. Mr. Dale Pennell stated that they are negotiating with the Corps of Engineers so that the maximum impact to the streams will be less than 150 feet in order to receive a Nationwide permit. He said at the time of those submittals they were still negotiating on exactly how many footage of pipe they would put into each location and what type that would be. He said that they met the Corps of Engineers on the site and discussed all of their requirements and were actually able to minimize the 150 feet. Mr. Weaver stated that this is also tied in with the pond expansion. Chairman Pearce stated that is why Staff makes them as conditions rather than expectations at this stage of the game. Mr. Weaver added that they are prepared to submit plans to NCDENR for the soil erosion and sedimentation control plan as well as to the NCDOT and Corps of Engineers for their individual requirements but wanted to wait until they came before the Planning Board in case the Board had any other comments that might in some way affect those submittals to the State so they could take that into consideration and avoid having to amend any of the plans. Mr. Pennell stated that there was a question on defining Phase 1 of the project. He mentioned that they have a bold line separating Phase 1 from the other phases and they are ready to submit the metes and bounds description, but they wanted to make sure that there was nothing else regarding stream buffers or open areas or changes in lot sizes or anything else that needed to be done as a result of this meeting. He stated that the line that is on the drawing is the line that they will define with by metes and bounds. Mr. Weaver stated that regarding the County considering the development of a flood damage prevention ordinance, he asked what is the development’s standing on this at this point. He said they have a Master Plan approved and will hopefully have a Development Plan of Phase 1 approved at tonight’s meeting. He asked if they would be grandfathered if the flood regulations change within the next four weeks before they start construction? Ms. Smith stated that she feels sure that the implementation of this proposed ordinance will not happen in that short timeframe. It could happen over the next year but this is also a legal question. She said that the developers would have a valid governmental approval for Phase 1 tonight if it were approved. She said that there is nothing in writing as of yet regarding the flood damage prevention ordinance. Chairman Pearce stated that considering the topography of the project and the location of the 100-year floodplain, he feels that the floodplain will not be affected by anything in either of Phase 1, 2 or 3. Ms. Smith said the only issue could be if they decided to construct a common area building.
Mr. Patterson asked how the circle intersection complies with the County’s Subdivision Ordinance as it is new with regard to meeting road standards? Ms. Smith stated that the Planning Board has the ability that where it doesn’t meet the County’s standards, review can be based on the standards of requirements of NCDOT. Mr. Patterson stated that he doesn’t feel NCDOT would have anything like this. Mr. Pennell stated that McGill Associates designed a similar circular intersection at UNC-Asheville and NCDOT approved and paid for a portion of the project design. He added that NCDOT has encouraged McGill Associates to design these types of circular or roundabout intersections. He mentioned the reason why they designed it was because it will be serving the common area where the clubhouse will be located and the design of the roundabout is such that any type of vehicle can traverse it. He said that they used NCDOT standards and a private consultant from Florida and felt that it would be an added feature and is extremely functional. Ms. Smith stated that Staff looked at it as a one-way street and the County has standards for one-way streets and this meets it as far as travelway. Chairman Pearce asked whether the Board would need specific approval regarding this intersection? Ms. Smith stated that it is posted as a one-way street and that is part of the County’s standards. Mr. Patterson stated that he feels what might get the County in trouble is the minimum radius because this is not a cul-de-sac and he feels the Board needs to make a special motion on this. Chairman Pearce suggested that under the comments the Planning Board is either approving or disapproving the roundabout section. Mr. Allison asked how does this design work and has there been success with the one built at UNC-Asheville? Mr. Pennell stated that he has not seen any evidence of traffic accidents. He said that in a roundabout, everyone yields entering the roundabout and everyone exits to the right. Chairman Pearce stated that Board members must realize that this will be limited traffic unlike a State highway or thoroughfare, which could become congested. Mr. Cook stated that when he looked at it he thought it was a low volume traffic area for a residential area and aesthetically it would be good in the project and he considered it as a one-way street. Chairman Pearce stated that the Board should specifically address it in the conditions.
Mr. Patterson said that the detail shows a split level on the two one-way streets, and asked if that will be typical? Mr. Pennell said what they are trying to do is use the existing road as one of the lanes. He said that there is a set of apple trees on that road on the upper side and to preserve those trees they want to build a second lane, which would be the road going into the site, close to natural grade above those trees. He said there would be a divided area in those areas where the terrain dictates that and that relates partly to the roundabout intersection. He said that it is the lots that lie below the road along the entrance, which will be four lots. He added that they did not want to build driveways from one high lane then across the low lane to get to their lots. He said that in designing the roundabout those folks could go to the upper side of the trees to the roundabout and make a simple maneuver and come back to their lots. Mr. Patterson asked what the truck apron was for? Mr. Pennell stated that the truck apron is for when the tractor-trailers make a u-turn, so their back wheel can bump up on it. Mr. Patterson asked regarding the catch basins, the pipes are not sized between 1 and 2, 2 and 3, 3 and 4, and 4 and 5. The catch basins are shown but nothing dealing with the sizes. He said, in particular, catch basin 1 is shown on the high side of the road, and asked why is that? Mr. Pennell said that map detail D-2 shows a storm drainage structure chart and a storm drainage pipe chart and all of the information on the conversion grades and sizes and materials are all detailed. Mr. Pennell said the reason that it is on the high side of the road is that along that existing driveway going in, there is a very shallow ditch that lies on the upper side of that lane and they propose a catch basin there just before the roundabout to catch any water flowing in that shallow ditch and then direct it around and out into the system. Mr. Patterson stated that he does not see on the plan any catch basin between 1 and 2, which is almost 1200 feet, which he feels is a long way. Mr. Pennell said that what they looked at is that there is practically no drainage area to that section. He added that both roads are crowned and have ditches on the upper side and there is practically no off-site drainage or drainage area leading to the ditches because this upper road is nearly at the crest. Mr. Patterson discussed some other technical items with the engineers so that they could correct them on their plans. Chairman Pearce stated that there are two additions to the comments for approval. In addition to Conditions 1 – 8, condition number 9 would be to define the metes and bounds boundaries of Phase 1 and condition number 10, that the Board needs to specifically state that the roundabout as proposed is specifically approved. Ms. Armstrong asked why the pond is being expanded and if it is part of the drainage? Mr. Weaver said that the existing stand pipe is deteriorated and is not functioning properly and the expansion will make it 75% bigger as there will be silt taken out to increase the depth for fish. He said that it is mainly for aesthetics and making it more a fish-friendly pond.
Chairman Pearce noted that the Master Plan comment should refer to comment 3 for the Development and then made a motion that the Planning Board find and conclude that the Phase I Development Plan submitted for the SkyTop Farm subdivision complies with the provisions of the Subdivision Ordinance except for those matters addressed in the Technical and Procedural Comments section of the Staff’s memo that have not been satisfied by the applicant; and further moved that the Applicant address comment 1 prior to beginning any construction, comment 2 prior to the expansion of the existing pond, and comments 2, 3, 4, 5, 6 by the Final Plat and to define metes and bounds boundaries for Phase 1 and that the Board specifically approves the roundabout as proposed. Cindy Dabaibeh seconded the motion. Leon Allison, Tedd Pearce, Cindy Dabaibeh and Vivian Armstrong voted in favor. Paul Patterson was not in favor of the motion. The motion carried.
Discussion of Possible Amendment to the Henderson County Water Supply Watershed Ordinance And Related Matters – Referred by the Henderson County Board of Commissioners. Ms. Smith stated that Mayor Roger Snyder and Councilman Wayne Carland from the Town of Mills River are present. Ms. Smith introduced the item and noted that there was a lot of information in the agenda packet. She stated that there were three things that came out of the Board of Commissioners’ meeting during the Board’s discussions of the proposed amendment to the Watershed Ordinance. One was that the Board wanted the Ordinance to be reviewed by the State in its entirety to see if there are any other issues regarding its compliance with the State Rules. Second, was for the Planning Board to review and consider the proposed amendment and return a response within 30-45 days from the November 19, 2003 Board of Commissioners meeting. She stated that the only related direction they gave except that if the Planning Board was not ready to return a response, then the Planning Board could consider recommending a moratorium, if they thought that necessary, on the County issuing permits for special intensity allocations. She said that the amendment only deals with projects that would have to request special intensity allocations or what the County calls “10/70.” Chairman Pearce asked Ms. Smith to explain the “10/70” rules. She said that the State of North Carolina General Assembly and the Environmental Management Commission, which actually drafted the rules for Water Supply Watersheds, came up with the standards. They set different options that local governments could use for regulating development. She mentioned the different watershed classifications that the County has, based on the levels of development that existed when the watershed was classified. The WS-I area is the most stringently regulated area, and it is found in the national forest. The WS-II area is a little less stringent than WS-I in terms of the level at which residential development can happen and the built-upon area that can be used for non-residential development. She said that the low-density option for each watershed has a base level that people can develop up to and for in WS-II, that would be one unit per acre, or if it is non-residential development, it would be 12% built-upon area of impervious surface. She said that the State amended its rules to allow 1 unit per 40,000 square feet excluding right-of-way. She said the State also gave communities the ability to allow for high-density options, where if you wanted to develop, you would be able to go up to 12 to 30% built-upon area if you include stormwater controls. The County had high density in its Ordinance at one time and there were some issues with liability for the stormwater controls. It said in the State rules that local governments are responsible for maintenance of the structures. She said local governments also have an option, which at one time was the 5/70 option, but now it is referred to as the 10/70 provision. She said that up to 10% of the balance of each watershed, excluding the critical area, may be developed with up to 70% built-upon area on a project-by-project basis as a special intensity allocation. She added that if you have an existing development, and you expand, there is a benefit as the County does not count what is already there. She said that the 10/70 provision was to give some flexibility for areas of the watershed and that there may be places that the County wants to encourage higher density than the base levels will allow. When that became available for Henderson County across the board in WS-II – WS-IV, the County took that option. The County had the 5/70 option in WS-II and WS-III, but it was only added to WS-IV by the State in 1996. She said that when this became available to WS-IV watersheds, we added it to the County’s ordinance to have some flexibility in those watersheds. She stated that the majority of the water supply watersheds fall in the Mills River area, in the northwest quadrant of the County. She said that there are areas in there that Staff has seen projects come into the Planning Department to ask for the 10/70 provision. She stated that cluster development is another option that is allowed in WS-II, WS-III and WS-IV watershed areas outside of the critical area under some conditions in the County’s ordinance. Ms. Smith stated that the State rules gave the County several options and provided for two types of buffers and that Henderson County interpreted that the 100-foot buffer only went along with the high-density option. When the County struck all references to the high-density option, the County struck that buffer requirement. The County has been interpreting this 30-foot buffer for years. She said that it wasn’t until she was discussing with the Division of Water Quality the Homestead at Mills River project that she learned that the State staff interpret language in the State rules to require the use of a 100-foot vegetative buffer for all new development activities that exceed the low-density option requirements, including developments using the 10/70 provision. Ms. Smith stated that item 3 in the direction from the Board of Commissioners, states that the Planning Board work with the Town of Mills River on larger issues of the Water Supply Watershed Ordinance with the fact that Mills River may want to adopt their own ordinance in the future. There will be some things that will have to be worked out with the Town of Mills River in order for them to do that. She said that the State does not automatically allow Mills River to have 10/70. It was under the State Rules, that only those areas that were in existence when the rules were adopted in 1993 or when the rules were applied later are allowed to have the 10/70 provision. She said if the Town of Mills River decides to do its own ordinance, the County would need to work with them to see if the County wants to give them the 10/70. The Town may decide it does not want that option. Chairman Pearce asked that since they did not exist at the time, does Mills River have the right to apply for that over and above or is it up to the County at this time as being the grantor of that privilege or does the State intervene? Ms. Smith stated that the County would have to enter into an agreement with the Town of Mills River and allocate it to them and it would need to be sent to the State. There is no additional allocation that they can get because we have everything that we can have. Mr. Allison asked if the 100-foot buffer is mandated by the State? Ms. Smith stated that the State says it is mandated, but that the Town of Mills River has questioned the interpretation of the State rules. She added that Henderson County was not the only jurisdiction that did not have the 100-foot buffer requirement and that there were other jurisdictions that are finding out about it. The Town of Mills River is questioning whether the State can make the County go back, based on the interpretation. She said that the Board of Commissioners did not direct her to fight this, but at a recent meeting with the Town of Mills River Planning Committee, those present had given an indication that they were still going to pursue whether or not this was an interpretation and find out whether it was the Attorney General’s opinion and/or whether the State Division of Water Quality can interpret it in this way. She stated that the last information she has received is the information that everyone received in their Planning Board packets. She had also distributed correspondence through e-mails between Mayor Snyder, Anita Watkins, Environmental Policy Manager with the North Carolina League of Municipalities, and Steve Zoufaly, with the State Division of Water Quality. Ms. Armstrong asked what was the bottom line in the e-mail correspondence? Ms. Smith stated that in her opinion, the bottom line is that Steve Zoufaly has sent via e-mail a request to the Attorney General for an opinion on this matter.
At this time, Chairman Pearce asked both Mr. Wayne Carland and Mayor Roger Snyder to join the Planning Board and Mr. Allison asked Mr. Carland what is the Council looking for? Mr. Carland stated that the 100-foot buffer is definitely not what they are looking for. Mr. Snyder said the Town Council, including himself, is having a crash course on the high and low density rules, so what Council has done is to ask their attorney to look at this and the water quality standards regarding the 30-foot and 100-foot buffer and everything that deals with the clarification. He said that so far what they have received are just interpretations. He said he had sent an e-mail to Anita Watkins who is an environmental policy manager with the League of Municipalities and is an attorney that had worked with the Division of Water Quality. In regard to several e-mails to her, the Town of Highlands has basically been doing this and had written a letter in September 2002, asking basically the specific questions we are now asking. He said because Mills River has joined into this same situation with the Town of Highlands, Anita Watkins has asked the Division of Water Quality all of these questions. Steve Zoufaly, of the Division of Water Quality, has made an official request to the Attorney General’s office on the ruling of the 100-foot buffer and Mr. Snyder stated that to cover their end, Mills River’s attorney has also made a request to the Attorney General’s office for exactly the same thing. Mr. Snyder stated at this point they are waiting for a reply. Chairman Pearce asked if the Town of Mills River was in favor of the 10/70 provision, but would prefer that the buffer not be increased to 100 feet unless it is mandated. Mr. Carland referred to the information the Planning Board has received from the Planning Department regarding what has been used up on the 10/70 in the watershed. Ms. Smith stated that there are three categories to allocate from and category one in WS-III Watershed is starting to be used up. She noted there is a difference of opinion between the County and the State as to how we are suppose to calculate the percentages. Staff has shown them according to what the State is saying and that there might be more allocation. She also said there are permits in Mills River that might have expired and there might be a few properties that might not have permits that were suppose to have permits and Staff is trying to sort through all those issues. Mr. Snyder stated that until they familiarize themselves more, this has not been discussed in a Town Council meeting on which way they would like to go. He said we would like to know why all of a sudden Henderson County is out of compliance. Chairman Pearce reiterated that it came up when Ms. Smith was doing research for The Homestead of Mills River subdivision that she found this out. Chairman Pearce asked when the Planning Board needed to give a recommendation to the Board of Commissioners on this? Ms. Smith stated that the Board of Commissioners gave the Planning Board 45 days from November 19th, which would mean that a recommendation is required at the Board of Commissioners meeting on January 5, 2004. Chairman Pearce stated that either the Planning Board needs to give a specific recommendation tonight or have a special called meeting before January 5th and also needs to set up a subcommittee meeting to cover the larger issues about allocation and other matters. Mr. Snyder had talked with Chairman Hawkins and he had asked what the Town of Mills River’s position was on this matter and he personally mentioned that he would like to see a 30-45 day extension and for the Commissioners to give it to the Planning Board for review and recommendation. Mr. Snyder mentioned that while the Town of Mills River has a contract with the County, legally Mills River has no right to fight the State because Mills River is not enforcing the Watershed Ordinance. Therefore, Mills River has to ask the County if they are not going to fight this for Mills River, would the County let Mills River do it. Mr. Snyder stated that what he has been hearing from other Council members is that they are not pleased with this 100-foot buffer and want to find out whether it is an interpretation, a regulation or is there someone sitting in the office saying because of the politics involved, that they are going to do the 100-foot buffer. Ms. Smith stated that the State said that they would allow the Ingles project in Mills River to use the 30-foot buffer because the County was not aware of the 100-foot requirement when the Planning Board reviews the Plan. She added that the State has said that until the County amends the Watershed Ordinance to add the 100-foot buffer requirement, the County should not issue any SIA permits allowing for 30-foot buffers. Chairman Pearce stated that if the Board does not follow through on that notice, what ramifications will there be to the County? Ms. Smith stated that the State could fine the County. She said on the Ingles project, she had put on the permit that the County has a 30-foot buffer requirement, but the State has a 100-foot requirement so that they would be put on notice about this and based on her discussions with the Board of Commissioners, it was her intention to continue doing that if the County had any other Special Intensity Allocation permits between now and the time this matter is settled. She said that might not be in compliance with what the State wants, but she felt that was the only solution she had under the Watershed Ordinance at this time because it says 30 feet. Ms. Armstrong inquired whether there were any applications pending at this time? Ms. Smith stated that the County does not have any at this time, but there could be one that we are not aware of in the future. Chairman Pearce feels that the Board can either recommend the County come into compliance with the State, the 100-foot buffer, based on the information we have and the demand for the change by the State or tell the Board of Commissioners that there are a lot of things going on about this and that the Planning Board is not prepared to act on a recommendation regarding the 100-foot buffer until legal opinions are given and, accordingly, if the Board of Commissioners needs an answer and the Planning Board needs to act on it, the Planning Board would then recommend a moratorium. He said some people would not like the idea of a moratorium and he added that he is one of them. He feels that legislation by a moratorium happens because people are usually unable to act for political reasons. Mr. Allison said that he agrees with the Mills River people that he wants to see what the Attorney General’s office will have to say on this issue. Chairman Pearce feels that most likely because of the time of year and other factors the County will probably not hear anything in less than 30 days and unless the County has conclusive evidence that the State is wrong, the County would have an obligation to include the 100-foot buffer. Ms. Dabaibeh said that since others are contesting this, she does not feel that the Planning Board should agree to it until the Board knows exactly what we have to do. Chairman Pearce stated that just because they are contesting it doesn’t make it right. He said right now the State regulation specifically is interpreted by those people who work there and by previous verbal opinions that the 100-foot buffer does apply. Mr. Allison asked if a subdivision came in, what are the Planning Board’s legal grounds? Ms. Smith said that a subdivision, unless it needs the 10/70 provision for common area, would be okay under the County’s ordinance but Staff would have to put them on notice that the State’s requirement is 100-feet for 10/70. Chairman Pearce stated that there could be some legal ramifications. Mr. Allison asked if the Planning Board recommends a moratorium, how long would it take to get the answers back? Ms. Smith stated that, for instance, the County requested an Attorney General’s opinion on a floodplain matter over six months ago and still has not received an answer back. Chairman Pearce stated another recommendation the Planning Board can give is to recommend approval until a legal opinion has been received that is contrary to or that specifically negates this particular requirement and request that it then be brought back to the Planning Board for further examination. At that time, the Planning Board could recommend that the Ordinance be amended back to 30 feet or to whatever number we feel is appropriate. Chairman Pearce said he did not like the County being left out on a limb. Mr. Allison said that when the State and whoever was involved in the County at the time decided to make Mills River a watershed, it messed up everyone that lives in Mills River as they did not think about the ramifications in the future. Mr. Patterson asked Ms. Smith, “What is your time frame in giving out this allocation?” Ms. Smith stated that it can be within a couple of days to a week. Mr. Patterson asked if there are any guidelines saying it could be thirty days? Ms. Smith didn’t think so. Mr. Patterson stated that if that can be done, you can put it back onto the Commissioners until they vote instead of putting the County into a legal situation. He said he feels that when you set standards to 100 feet, it usually is hard to back them down to a lower level and he added that he would rather see a moratorium than to approve the 100-foot buffer. Chairman Pearce stated that with a moratorium basically you cannot do anything if this affects you. Mr. Patterson said it’s usually commercial type development or open space. Ms. Smith stated that the County would need to turn a permit around in a reasonable time so that we would not hold anyone up because we have no precedent for that. Mr. Allison stated that he feels Mills River would go along with a 30-60 day moratorium as he would as well, rather than going with the 100-foot buffer and have Mills River find out more on the interpretation and rules. Mr. Patterson stated that he would agree with the moratorium until such time the County gets the interpretation back. Mr. Carland stated that he agrees with Mr. Pearce and Mr. Patterson as he does not like the moratorium but in this case it may have to happen. Ms. Armstrong asked whether the County Attorney has looked at this or is there anyone the Board can reach out to for legal help? Ms. Smith stated that Angela Beeker, County Attorney, has been involved with it when it went for discussion to the Board of Commissioners but she has not forwarded a formal opinion on it, but has advised the Board as well as Planning Staff with regard to the 30-foot versus the 100-foot buffer. Ms. Smith added that Ms. Beeker also has to advise the Board of Commissioners on this. Ms. Armstrong also asked about involving legislators. Mr. Snyder said he has discussed this with Tom Apodoca whose advice was to let the lawyers do their job and then at some point in time whenever our legislators need to get involved they will. Mr. Snyder said that if the Attorney General’s office is dragging their feet on this, then that is the time that they would involve the legislators in this matter. He would rather not get too many people involved with this at this point.
Chairman Pearce asked the Board if they voted on a moratorium, would they be in favor of a sixty-day moratorium or a shorter time frame? Mr. Patterson stated he would be in favor of a 30-60 day moratorium and would like to see a response back from the Attorney General or someone from that official office during that time frame. He added that the problem with the State is when they set a precedent, no matter if that is really how it reads, they have set a precedent for it and will hold to it. Chairman Pearce said that if at the end of sixty days we do not have the Attorney General’s opinion, would the Board then recommend to the Board of Commissioners to go ahead and change to the 100-foot buffer or at that time would you recommend continuing to extend the moratorium? Mr. Patterson stated at that time, our hands would be forced. Chairman Pearce said that if we are proposing a moratorium and we do not receive the information we want within sixty days, will we go for an indefinite period of time until we get the Attorney General’s opinion? Mr. Allison said he feels that the people in Mills River will not understand having a moratorium just to find out the rules. Mr. Carland asked would this be for any new applications? Chairman Pearce stated that it would cover any new watershed applications requesting a 10/70 allocation; any existing ones would have been permitted. Ms. Smith said it would be from the point of the public hearing and the adoption. Mr. Allison stated that if the Planning Board sends a recommendation to the County Commissioners for the approval of the 100-foot buffer and the Town of Highlands has success then we could go back and change it. Chairman Pearce said it was specifically applicable to the Town of Highlands. Ms. Armstrong stated spot approval? She doesn’t feel they can do that anymore than spot zoning. She feels that the rule cannot apply to one municipality and not the other. Chairman Pearce stated that they could look at the specifics of the community and that may differ from one to the other. Mr. Allison asked if the Planning Board can give a recommendation, under protest; such as, the Planning Board feels the 100-foot buffer is wrong, but in the event any other township should receive a lesser buffer by the State, then we would request the County Commissioners to ask for the same buffer. Ms. Dabaibeh asked whether the Planning Board can ask for an extension of making this decision based on the fact that other things have come into light since the Planning Board was given this January 5, 2004 deadline? She added that this makes more sense than to come to a resolution tonight and she also added that she is against a 100-foot buffer. Chairman Pearce stated that the real issue is, “Is the 100-foot buffer correct or incorrect?” The State has notified the County that it is not in compliance and the Board of Commissioners could have adopted the amendment. Ms. Dabaibeh said that she does not feel as a Planning Board member that she has enough time to make a recommendation tonight. Chairman Pearce asked whether at any point in time were the County Commissioners aware in your initial meeting with them that there were some controversy and some legal challenges? Ms. Smith said she is not sure what the communication was other than what Mr. Snyder told Mills River. She said she had mentioned to the Commissioners that at one point a State person thought there had been an Attorney General’s opinion, but that he could never find it and that is all that they knew. She said this was about one month ago. Mr. Allison stated that he understands what Ms. Dabaibeh is saying, but if we do that as a Planning Board we have to protect Henderson County and the Commissioners and the Planning Department and not approve anything for a certain length of time so we can make a moratorium. Chairman Pearce stated that the Board of Commissioners has given the Planning Board the assignment to forward a recommendation by January 5th and we will in one way or another answer it. Chairman Pearce then suggested that the Planning Board send the following recommendation: “The Planning Board does not feel that they have had adequate time to properly address this subject because we understand there are several requests for the Attorney General’s opinion regarding the 10/70 and the 100-foot buffer requirement. We understand that there are other challenges by other municipalities regarding this subject. If a decision is deemed necessary by January 5, 2004, we would recommend a 60-day moratorium on 10/70 watershed permits.” Chairman Pearce then adjusted his suggested recommendation to read: “The Planning Board recommends one of the two following suggestions: (1) Moratorium for 60 days on 10/70 Watershed Permits (as previously stated) or (2) Amending the Water Supply Watershed Ordinance to reflect a 100-foot buffer
Ms. Armstrong asked if there wasn’t a third suggestion: that the Planning Board does not have enough information to make this decision? Chairman Pearce feels by giving these two suggestions he is implying that the Planning Board does not have enough information, but it could be added that if a decisions is deemed necessary by January 5, 2004 or before, the Planning Board would recommend the two suggestions he implied because at this point in time we have no other information to base a decision on. Ms. Dabaibeh said she doesn’t see why as a Planning Board member one can’t say, “I don’t have enough information to approve or not approve this.” She added that as a Board member, she does not feel like the Board has enough information to approve or not approve it. Chairman Pearce feels that we have State regulators who control how we function in certain parts of our Ordinance and State regulators have dictated that we have an error in our regulations that need to be corrected. He said that until someone can show him that the State regulators are wrong, and the fact that people don’t like it or that it is being contested doesn’t mean it is wrong, we have nothing to indicate that it is wrong. Mr. Patterson asked, “how are we protecting the County from a possible lawsuit, if we don’t make a recommendation of some type of moratorium or temporary suspension of the allocation?” Mr. Allison asked the representatives of Mills River present what they wanted? Chairman Pearce stated that he is against a moratorium and would approve the 100-foot buffer and be willing to fight to back it down if we have legal challenges. Chairman Pearce said that someone has ascertained that a 100-foot buffer is better than a 30-foot and if you are going to increase density you need more buffer to solve it. He said that on the other side of the coin, you do not have to take a 10/70 allocation nor do you have to request it as there are just so many we can give out, which is another issue. The issue is that we have the entire County to be concerned about and not just Mills River and if the Planning Board does something wrong, then the County will get fined, not the Town of Mills River. He added that we need to come within compliance of the law or have a moratorium. Ms. Armstrong asked what is the harm of setting it for sixty days and putting the heat on the people who stand to benefit the most and seeing if they can work on getting some type of resolution? Mr. Allison asked the representatives of Mills River present what they wanted? Chairman Pearce noted that Mills River is only a portion that is affected by this. Mr. Allison stated that they are a big portion of the watershed. Mr. Patterson feels that it is approximately 18% that Mills River is part of and it really only affects perennial streams and there are a lot of streams that are not on the map. Mr. Snyder answered Mr. Allison’s question, by saying he dislikes a moratorium but he said he is also against the 100-foot buffer. He said he is a firm believer of personal property rights. He said that probably until we get all of this sorted out; he would like to see a 30-day moratorium so we can work on this matter. He said if the Town of Mills River needs to get the legislators involved to get something done, then he will ask for their help. Mr. Carland said that if the Planning Board could gain some time from the County Commissioners, then a 30-day moratorium could also be implemented. After some further review of what had been said, Chairman Pearce made a motion to recommend to the Board of Commissioners that they amend the Water Supply Watershed Ordinance to reflect the 100-foot buffer. Leon Allison seconded the motion. He said that with regret he seconded this motion so that we would be in compliance with the State rules. Chairman Pearce further added to the motion that it is based on the fact that the County is apparently out of compliance with the 10/70 provision. He would also recommend to the Board of Commissioners that if the Attorney General’s opinion is rendered that indicates that the State is incorrect in the requirement of a 100-foot buffer, the Planning Board would further recommend that the Board of Commissioners would reverse any changes to reflect what the State Attorney Genera’s opinion might be regarding this matter. Leon Allison seconded the motion as amended. Vivian Armstrong, Cindy Dabaibeh, and Paul Patterson voted against the motion. Leon Allison and Tedd Pearce voted in favor. The motion failed. Ms. Armstrong made a motion that if it is necessary to issue a moratorium of 60 days on the issuance of this narrowly defined group of permits that we do that and give the Town of Mills River the opportunity to research and fight this issue. Chairman Pearce defined Ms. Armstrong’s motion by stating that she recommends to the Board of Commissioners the issuance of a 60-day moratorium on the 10/70 -SIA allocations in the watersheds. Paul Patterson stated he would consider this motion if it was reduced to 30 days and Ms. Dabaibeh agreed. Ms. Armstrong asked whether 45 days would be acceptable and Mr. Patterson and Ms. Dabaibeh agreed. Ms. Dabaibeh asked, “Can the County Commissioners request from the State of North Carolina, Division of Water Quality, whether we can have more time and give the Planning Board a continuance until the Planning Board’s January meeting? Chairman Pearce stated that in this motion we might want to add to the 45-day moratorium that the Planning Board also recommends that the Board of Commissioners request an Attorney General’s opinion regarding the applicability of the 100-foot buffer, in as much as the State has put the Planning Board on notice that the County is not in compliance with the 10/70 watershed buffering requirements and knowing there are several municipalities requesting Attorney General opinions. Mr. Patterson asked when a moratorium would begin? Ms. Smith stated the process requires that they Commissioners get a recommendation from the Planning Board, then a public hearing is set. After the hearing, they can consider what to do. Mr. Patterson asked whether that is two Commissioners’ meetings? Ms. Smith said that the Board of Commissioners January 5, 2004 meeting, their next meeting is January 21, 2004 and she added she really doesn’t know what they will decide to do, but they usually follow that procedure. She said that if the Planning Board recommends the 45-day moratorium and the Commissioners decide to implement one, it will likely become effective the date they consider the moratorium or on some other date. Mr. Patterson stated that could be another month and a half before something could transpire. Ms. Dabaibeh stated that it is a busy time of year with the holidays, but she said that she would feel more comfortable if more Planning Board members were in on this discussion. After some further discussion, the final motion was: “The Planning Board would recommend to the Board of Commissioners a 45-day moratorium on further SIA permits and that the Commissioners would request the Attorney General’s opinion regarding the applicability of the 100-foot buffer. Cindy Dabaibeh seconded the motion. She added that she would request that the Board of Commissioners let the Planning Board come back to them on this matter with further information after the Planning Board’s January 20, 2004 meeting, when hopefully we will have a full Board. Chairman Pearce stated that the Planning Board always has a right to forward further information to the Board of Commissioners. Paul Patterson, Cindy Dabaibeh, Vivian Armstrong voted for the motion. Tedd Pearce and Leon Allison voted against the motion. The motion carried.
Subcommittee Assignments and Meeting Dates. Ms. Smith asked that a subcommittee be appointed to consider how to approach the broader issues related to the Water Supply Watershed Ordinance. Chairman Pearce appointed Vivian Armstrong to the Short Term Zoning Subcommittee to replace Kevin Keefe, who had recently resigned from the Planning Board. Ms. Smith stated that there might be three rezoning requests at the January Planning Board meeting, so if any of those requests are sent to this Subcommittee, they will be extremely busy. Chairman Pearce considered an Ad Hoc Subcommittee to study the watershed issues. Chairman Pearce said that he would like to discuss this further with Ms. Smith to form the members of this committee. Mr. Snyder stated that this issue got back to the Planning Board because of his discussion with Chairman Hawkins and said that the Town of Mills River Planning Committee could meet with the Planning Board’s subcommittee to talk more about this issue. Ms. Smith stated that when the date and time has been set for the Ad Hoc Subcommittee, we could forward this information so that the Mills River Planning Committee representatives can come to the meeting. Mr. Snyder asked
because at tonight’s meeting there has been discussion regarding legal help, he wanted to know if
anyone from the County’s legal department as well as a legal representation from the Town of Mills River could come to this subcommittee meeting? Ms. Smith stated that often in many matters the Staff asks for a legal representative to join in a meeting. Ms. Smith asked what was the timeframe for completing the Subcommittee study of the watershed issues? Chairman Pearce stated he feels that it could be completed by June 30, 2004. Chairman Pearce also asked Ms. Smith to get with Walter Carpenter, Chairman of the Subdivision Issues Subcommittee, after January 6, 2004, on scheduling a subcommittee meeting.
Adjournment. There being no further business, Tedd Pearce made a motion to adjourn
and Leon Allison seconded the motion. All members voted in favor. The meeting adjourned
at 9:25 p.m.
Tedd Pearce, Chairman Kathleen Scanlan, Secretary